Burris v. Bush, 170 N.C. 394 (1915)

Dec. 8, 1915 · Supreme Court of North Carolina

170 N.C. 394

R. F. BURRIS and Wife, ALICE BURRIS, v. JOHN A. BUSH.

(Filed 8 December, 1915.)

Slander — Pleas—Justification—Evidence—Statutes.

Where there is no plea of justification or of mitigating circumstances, in an action for slander, evidence of the truth of the charge is incompetent. Revisal, sec. 502.

Appeal by defendant from Adams, J., at February Term, 1915, of Caldwell.

Action to recover damages for slander, in wbicb tbe defendant denies speaking tbe words alleged in tbe complaint, but does not allege any facts nor rely on any plea in justification or mitigation. Tbe defendant offered evidence tending to prove tbe truth of tbe words. Tbis was excluded by tbe court and tbe defendant excepted. There was a verdict and judgment in favor of tbe plaintiff and tbe defendant appealed.

W. G. Newland for plaintiff.

No counsel for defendant.

AlleN, J.

Tbe statute (Rev., sec. 502) permits a defendant in actions for libel or slander to allege “both tbe truth of tbe matter charged as defamatory and any mitigating circumstances to reduce tbe amount of tbe damages; and, whether be prove tbe justification or not, be may give in evidence tbe mitigating circumstances,” but, in tbe absence of a plea in justification or mitigation, evidence of tbe truth of tbe charge is incompetent. Upchurch v. Robertson, 127 N. C., 128; Dickerson v. Dail, 159 N. C.; 541.

It follows that there is no error in excluding tbe evidence offered by tbe defendant.

No error.