Stith v. Fullinwider , 40 Kan. 73 ( 1888 )

Opinion by

Clogston, C.:

The errors complained of are: First, the refusal of the court to strike out the supplemental answers of the defendant; second,.the court threw the burden of the issues upon the defendant, and gave him the opening and closing; and third, objections to the instructions of the court to the jury.

As to tbe first of these complaints, we see no error in the court’s permitting the several answers and supplemental answers of the defendant to be filed. The last two supplemental answers filed by the defendant were occasioned by the motion of the plaintiff to require said answers to be made more definite and certain. These were filed in compliance with the order of the court, and upon plaintiff’s motion. The right to amend pleadings is largely in the discretion of the court. No delay seems to have been occasioned by the filing of these answers, and we see no abuse of discretion.

As to the second objection, we judge that the only question seriously contended for by the plaintiff is, that the court held that the burden of the issues was upon the defendant, and that he had the opening and closing.

Section 275 of the code of civil procedure provides:

“1. The party on whom rests the burden of the issues may briefly state his case, and the evidence by which he expects to sustain it. 2. The adverse party may then briefly state his defense, and the evidence he expects to offer in support of it. 3. The party on whom rests the burden of the issues must first produce his evidence.”

Plaintiff’s petition charged the defendant with libel, by writing and publishing a certain letter charging the plaiutiff with being dishonest, and with transactions which imputed dishonesty and unfair dealing, which words and charges were actionable per se. No special damages were charged or claimed-The defendant in his supplemental answers admitted the writing and publishing of the letter, and justified the same upon the ground that the charges therein stated were true. The charges in the letter being actionable, malice must be imputed, and the good character and reputation of the plaintiff presumed. . No special damages being claimed, no burden was on the plaintiff, and upon the issues, without evidence, judgment must have been for the plaintiff. The burden of the issues, then, was upon the defendant, and under our statutes the defendant was entitled to first introduce his evidence, and to have the opening and closing. This question is a disputed one in many of the states, but nearly all agree upon this one proposition, that although the court may commit an error in permitting a party to open and close his case, yet such an error is not such a substantial error as would require a reversal of an action, (Town. SI. & Lib., § 276;) while in many other states it has been held, and particularly in states which have statutes like ours, that where a defendant justifies, the burden is upon him. (Ranson v. Christian, 56 Ga. 351; Gaul v. Flemming, 10 Ind. 253; Fry v. Bennett, 28 N. Y. App. 324.)

As the plaintiff in error points out no specific objections to the instructions of the court to the jury, and as we see no apparent error therein, we shall not carefully consider them.

It is therefore recommended that the judgment of the court below be affirmed.

By the Court: It is so ordered.

All the Justices concurring.