
    Case 56 — PETITION ORDINARY
    Dec. 11.
    Morgan v. Booth.
    APPEAL PROM DAVIESS CIRCUIT COURT.
    1. An answer must controvert separately and specieically the charge made in each paragraph of the petition.
    2. An answer is insueeicient in an action eor slander which denies the truth of two charges taken together, when the charges are made in separate paragraphs of the petition, and admits the speaking of the words complained of.
    3. An answer claiming that the words were privileged — that they were used by the defendant in conducting his own defense in a trial before a justice of the peace — is in the nature of a plea in confession and avoidance.
    4. A party to A judicial proceeding may by himself or counsel write or say any thing of and concerning the case, or of a witness who testifies in the case, that is pertinent and material to the matter in controversy, and he can not be held to answer for scandalous words, unless, under the pretense of pleading his cause, he designedly wanders from the point iii question, and maliciously heaps slander upon the party whose action or evidence is under consideration; and so long as it can be said that such party confines himself to that which is pertinent and material, he is under no obligation to show that his words are absolutely true, and can not be made to answer for maliciously saying that which the law permits him to say. (Townshend on Slander, 348-350 and 858, 359.)
    6. While malice will usually be implied, from the use of false and slanderous words, still it is a question of fact for the jury, and ought not to be taken from them by the court, and especially in a case where it is claimed that the words were privileged.
    L. P. LITTLE eor appellant.
    1. Appellant’s defense, in this action of slander, was two-fold: 1. He denied uttering the words charged, and denied malice; 2. He pleaded that, on the occasion when the words were alleged to have been uttered, he was conducting his own defense in the case in which appellee testified, and that any thing then said was in good faith in his defense, *and addressed to the court, therefore privileged.
    
    This case is an exception to the rule established in Harper v. Harper, (10 Bush, 447,) that a plea of justification must admit the speaking of the words complained of. In that case the character of the words and the object for which they were uttered were pleaded and relied on as a justification; whereas in this case it was the occasion which gave the appellant the right and privilege of saying what he did of and concerning the appellee and his testimony, in conducting his own defense in good faith in a court of justice.
    
      The plea of privilege evidently covers the occasion on which the words were spoken. Although the words sued for are denied, yet when the appellant says that all he said on that occasion was said in his defense, he in effect says, that “ If I used the words, I used them in my defense.”
    
      When it is the occasion, as in this case, that furnishes the privilege, and not the character of the words spoken, as in the Harper case, it should be all-sufficient to plead the occasion.
    
      A plea of justification must admit the speaking of the words, and assert that they were true; hut a plea of privilege is widely different, in that the truth or falsity of the words is indifferent. The purpose or occasion which excuses, rebuts malice.
    2. The alleged slanderous words were not substantially proven; they must be substantially proven as laid; equivalent words will not do. (Taylor v. Moran, 4 Met. 132.)
    3. The justification must be as comprehensive as the charge. (Townshend on Slander, 332.)
    4. Instruction No. 1' was erroneous, in that it submitted to the jury a question of unmixed law, in directing the jury to determine whether the words recited were spoken or substantially spoken. Thus the jury were to determine, not only the question of fact as to what words were spoken, but also the question of law as to whether the words they found to have been spoken were substantially those recited in the instruction.
    “While the proof of speaking is for the jury, the correspondence between the words spoken and laid, is for the court.” (Taylor v. Moran, 4 Met. 132; 3 Wharton, 138.)
    5. Instruction No. 2 was erroneous, in that it directed or permitted the jury to find damages for other words than those laid, as follows: “The jury, in assessing the damages, should consider any and all the circumstances under which the words were spoken in aggravation or mitigation thereof, in their discretion.”
    The jury should have been cautioned by the court in view of the defendant’s privilege in defending himself, that they should not give damages for any other slanderous words than those sued for. (2 Green-leaf on Evidence, sec. 414; Letton, &c. v. Young, &c., 2 Met. 562'; Bodwell v. Swan, &c., 3 Pick. 378; Taylor v. Moran, 4 Met. 131; Ami. L. Cas. 244.)
    
      6. Authorities relating to privileged words are cited as follows: Bunton v. Worley, 4 Bibb, 38; Forbes v. Johnson, 11 B. Mon. 51; 1 Hilliard on Torts, 319; Townshend on Slander, 354-356; Addison on Torts, 967.
    7. Malice is a necessary ingredient in slander. (Trabue v. Mays, 3 Dana, 141; Hart v. Reed, 1 B. Mon. 168; Hanning v. Bassett, 12 Bush, 362.)
    W. N. SWEENEY and OWEN & ELLIS roe appellee.
    1. The words complained of were actionable. (1 Bibb, 167; 7 Mon. 315; Townshend on Slander, sec. 286.)
    2. Malice was properly assumed in the instructions as a legal implication from the falsity of the words charged. (Townshend on Slander, 121-135.)
    When the words are actionable, and are false, and not privileged, the wrong to the plaintiff has necessarily been accomplished, whatever the intent of the wrong-doer; and this can not be necessary to be proved or disproved except in the way of aggravation or mitigation of the damages.
    3. While under the Code a defendant may plead not guilty and justification, though contradictory, it is clear that a justificatory plea must now, as formerly, admit the speaking of the words.
    4. The use of the word “perjury,” as alleged and proven in this case, was slander per se. (2 Bibb, 319 ; 4 Bibb, 99; 2 Mar. 220; 8 B. Mon. 486.)
   CHIEF JUSTICE LINDSAY

delivered the opinion or the court.

Appellee avers that he was duly and legally sworn as a witness to testify in an action between the commonwealth and the appellant, then pending before one F. M. King, a justice of the peace; that he did testify; and that while in testifying of and concerning a material question involved in the case, the appellant maliciously and falsely charged upon and spoke of and concerning him and his testimony these words, That his said testimony was false, and the reason the plaintiff testified falsely against him was, that he (the plaintiff) was a bitter enemy of him (the defendant), and that he (the plaintiff) knew nothing about the said case in court.”

And also, at the same time and place, these other words, “ Your testimony is false, and you know nothing. about this case; and you would not so testify if you were not my bitter enemy; and that the plaintiff had perjured himself.”

The answer of appellant is .not good as a plea of not guilty. While he denies having used the language charged by appellee in the first and second paragraphs of his petition, he does not controvert each charge separately and specifically, but rather denies the truth of the two charges taken together, and then, to make plain his intent, he proceeds to deny that he used said language or any similar language falsely or maliciously, or with intent to injure the good name or fame of appellee; and, by way of further explanation or excuse, explains that he conducted his own defense before the justice, and cross-examined plaintiff, and called attention to certain alleged inconsistencies and contradictory statements in his testimony; and he claims that anything he may have then said, was addressed to the court in attempting to sustain his defense to the action, and for no other purpose, and was not in excess of his lawful right to indulge in fair criticism and legitimate argument.

According to the well-established rules of .construction, this answer in effect admits the speaking of the words complained of, and sets up and relies on the time and circumstances attending the speaking to show that they were privileged, and therefore not the subject of an action for slander. It is essentially a plea in confession and avoidance. A party to a judicial proceeding may, by himself or counsel, Write or say any thing -of and concerning the case, or of a witness who testifies in the case, that is pertinent and material to the matter in. controversy, and he can not be held to answer for scandalous words, unless, under the pretense of pleading his cause, he designedly wanders from the point in question, and maliciously heaps slander upon the party whose conduct or evidence is under consideration ; and so long as it can be said that such party confines himself to that which is pertinent and material, he is under no obligation to show that his words are absolutely true; and can not be made to answer for maliciously saying that which the law permits him to say.. (Townshend on Slander, 348-350 and 358, 359,- and authorities cited.)

The instructions given by the court do not conform to this view of the law, and are also objectionable in other particulars.

The effect of instruction No. 1 is, that if the words charged were spoken and were false, then the law implies malice; and' the only question left open for the jury was that of damages. While malice will usually be implied from the wrongful use of false and slanderous words, still it is a question of fact for the jury, and ought not to be taken from them by the court, and especially in a case where it is claimed that the words were privileged.

Instruction No. 2 is also objectionable in assuming that it was the duty of the jury to find for the appellee.

Instructions Nos. 3 and 4 do not correctly present the law of the case on the question of privilege. According to said instructions the jury could not return a verdict for appellant on the ground that the words were privileged, unless they could find from the evidence that he believed they were true, and were necessary and material to his defense, and were used by him for the sole purpose of promoting it.

The jury should have been instructed, that appellant admitted speaking the words complained of, and that if they believed they were spoken maliciously and were false, they should find for appellee, unless they further believed said words were pertinent and material to a question in controversy in the action pending before the justice, in which case they should find for appellant.

For the errors pointed out the judgment is reversed, and the cause remanded for a new trial on principles consistent with this opinion.  