Opinion
7 Div. 344.
October 12, 1922.
Appeal from Circuit Court, Etowah County; O. A. Steele, Judge.
Motley Motley, of Gadsden, for appellant.
The falsity of defamatory words is presumed, and it is not necessary that the complainant shall in the first instance offer any proof that the words were false. 25 Cyc. 491. A presumption which establishes an element of a case imposes upon the other party the burden of proof on that point. 190 Ala. 245, 67 So. 440; 126 Ala. 369, 28 So. 582; 16 Ala. 791.
W. J. Boykin, of Gadsden, for appellee.
Assignments of error, not insisted upon in the manner prescribed, are waived by appellant. 16 Ala. App. 130, 75 So. 722; 188 Ala. 218, 66 So. 434; 4 Ala. App. 625, 58 So. 812.
The trial court erred in striking a portion of the trespass count of the complaint. Such allegations are not intended as a basis for the recovery of special damages, but merely to show an aggravation of the trespass, and thereby make a case for punitive damages.
But proof of such matters may be made without any allegation thereof in the complaint. Wilkinson v. Searcy, 76 Ala. 176; Standard Oil Co. v. Davis, 94 So. 754. And the bill of exceptions shows that plaintiff was allowed to show all that was said and done on the occasion in question, and also the fact of the presence of his wife and daughter. The error in striking the matters of aggravation from the complaint was very clearly of no prejudice to plaintiff.
Post, p. 565.
In actions for libel or slander the law presumes that defamatory words are false, and this presumption continues until it is overcome by evidence showing that they are true. Starks v. Comer, 190 Ala. 245, 253, 67 So. 440; 25 Cyc. 491, e. Hence, where defamatory words are shown to have been spoken of plaintiff by defendant, the burden of showing that they are true is upon the defendant, whether under a special plea of justification, or under a plea of the general issue merely. Starks v. Comer, supra.
And, since a plea of the general issue is a denial of the falsity of the words spoken — though the effect of the denial is limited to a mitigation of damages merely — the matter of their truth or falsity is an issue before the jury, and the plaintiff is entitled to have the jury instructed that the burden of proof thereon is upon the defendant, notwithstanding the defendant has in fact offered no evidence upon that issue.
According to the New Standard Dictionary a lie is "an untruth deliberately told; the uttering or acting of that which is false for the purpose of deceiving; intentional mis-statement"; and such is undoubtedly the common understanding of the word. The defamatory language charged and proven in the instant case is that plaintiff swore a lie against defendant in a judicial proceeding, wherein defendant was the defendant, and plaintiff was a witness. This, in the common understanding, imports a charge of perjury, and is actionable per se. Canterbury v. Hill, 4 Stew. P. 224; Ramey v. Thornberry, 7 B. Mon. (Ky.) 475; Huffer v. Miller, 74 Md. 454, 22 A. 205; Wood v. Southwick, 97 Mass. 354; Brace v. Brink, 33 Mich. 91; Perselly v. Bacon, 20 Mo. 330; Spooner v. Keeler, 51 N.Y. 527; Gudger v. Penland, 108 N.C. 593, 13 S.E. 168, 23 Am. St. Rep. 73; Bricker v. Potts, 12 Pa. St. 200; Magee v. Stark, 1 Humph. (Tenn.) 506. The case of Robertson v. Lea, 1 Stew. 141, where the charge was that the plaintiff "swore to falsities" merely — not "lies" — is obviously not in conflict with this view.
Very clearly, then, charges 1 and 2, requested by plaintiff, stated correct propositions of law, applicable to the pleadings and evidence, and their refusal was prejudicial error, as laid in the tenth and eleventh assignments.
It is of no consequence that the trial judge, having incorrectly instructed the jury at the close of the trial that the burden of proof was on the plaintiff to show the falsity of the defamatory language, and having then refused to give the charges referred to, on the next morning, before giving the case to the jury, withdrew his statement that the burden of proof was on the plaintiff. He did not then instruct the jury that the burden was on the defendant, and it was not incumbent on the plaintiff to again request the giving of charges 1 and 2, previously refused, but it was incumbent on the trial judge to change his ruling as to those charges, of his own motion, and to give them as requested.
Counsel for appellee complains of the insufficiency of the brief of counsel for appellant in its discussion of and insistence upon the assignments of error, under the requirements of Supreme Court rules 10 and 12 (175 Ala. xviii, 61 South. vii). It is true that the brief for appellant does not refer to the tenth and eleventh assignments of error by number, as it should in strictness have done. But, in view of the simplicity of the record, and of the facts that only four or five rulings are discussed, and that specific reference to the assignments was not necessary to our understanding of the argument, we have preferred to condone the fault in this instance.
For the errors noted, the judgment will be reversed, and the cause remanded for another trial.
Reversed and remanded.
ANDERSON, C. J., and McCLELLAN and THOMAS, JJ., concur.