be inferred from the evidence given in support of the plaintiff's case. It is therefore incumbent upon the defendant to plead the same by his answer, if he desires to avail himself of such defense, and if he fails to so plead, no finding in relation to contributory negligence is required: Kenny v. Kennedy, 9 Cal. App. 350, 99 Pac. 384; Green v. Southern Pacific Co., 132 Cal. 254, 64 Pac. 255; Cahill v. Stone & Co., 153 Cal. 571, 96 Pac. 84, 19 L. R. A. (N. S.) 1094; Birsch v. Citizens' Electric Co., 36 Mont. 574, 93 Pac. 940; Smith v. Ogden etc. R. Co., 33 Utah, 129, 93 Pac. 185. 27. Contributory negligence is a matter of defense, to be proved affirmatively by the defendant, and hence the burden of proof of such defense is on him: Robinson v. Western Pacific R. Co., 48 Cal. 409, 426 (for personal injuries-negligence of street railway company); McQuilken v. Central Pacific R. Co., 50 Cal. 7, 8, (for injuries to infant passenger-negligence of steam railroad company); Nehrbas v. Central Pacific R. Co., 62 Cal. 320, 324, (by parent for damages for loss of five minor children-negligence of steam railroad company at crossing); MacDougall v. Central Pacific R. Co., 63 Cal. 431, 434, (for personal injuries to passenger suffered while in act of alighting-negligence of steam railway company); Yik Hon v. Spring Valley Water Works, 65 Cal. 619, 620, 4 Pac. 666, (damages for injuries to property-negligent maintenance of defective water-pipes); Magee v. North Pacific Coast R. Co., 78 Cal. 430, 433, 21 Pac. 114, 12 Am. St. Rep. 69, (for personal injuries to servant-negligent maintenance of defective fence and cattle-guard); House v. Meyer, 100 Cal. 592, 593, 35 Pac. 308, (damages for negligence). 28. Contributory negligence. - Conflict of authorities.-In many jurisdictions it is the rule that contributory negligence is a matter of defense, and that the burden of establishing it is upon the defendant. Where this rule obtains, the plaintiff has made his case when he has shown injury to himself, and negligence on the part of the defendant which was the proximate cause of it. It then devolves upon the defendant to allege and prove contributory negligence as matter of defense, the presumption being in favor of the plaintiff, that he was at the time of the accident in the exercise of due care, and that the injury was caused wholly by the defendant's negligent misconduct. This is the doctrine of the supreme court of the United States, and it is the rule in Alabama, California, Georgia, Kentucky, Kansas, Maryland, Minnesota, Missouri, New Hampshire, New Jersey, Nebraska, Ohio, Oregon, Pennsylvania, Rhode Island, South Carolina, Texas, Wisconsin, West Virginia, Vermont, and Colorado, as well as in England. 29. The rule in some jurisdictions is that the burden is upon the plaintiff in these actions to show his own free-. dom from contributory negligence. The authorities in Massachusetts, Maine, Louisiana, North Carolina, Michigan, Illinois, Connecticut, Iowa, and Indiana support this latter doctrine. In a recent decision in the supreme court of Idaho, the doctrine that contributory negligence is a matter of defense, and that the burden of establishing it is upon the defendant, is favored: Crawford v. Bonner's Ferry L. Co., 12 Idaho 678, 87 Pac. 998, 1000, 10 Am. & Eng. Ann. Cas. 1. 30. A plea of contributory negligence In general terms, like a plea of negligence in general terms, is good after verdict: Gardner v. Metropolitan etc. R. Co., 223 Mo. 389, 122 S. W. 1068, 1076. 31. Defense must establish plea.-Contributory negligence is a matter for the defense to allege and establish: Northern Pacific R. Co. v. Hess, 2 Wash. 383, 26 Pac. 866, 867. See Hocum v. Weitherick, 22 Minn. 152; Kansas etc. R. Co. v. Pointer, 14 Kan. 37. 32. Failure to submit evidence in support of defense.-As contributory negligence is a defense which, if established, defeats the plaintiff's action, the plaintiff can not complain where the court fails to submit evidence in support of such defense to the jury: Haralson v. San Antonio T. R. Co. (Tex. Civ. App.), 115 S. W. 876. 33. When plaintiff waives pleading of defense.-As to whether contributory negligence is an affirmative defense, to be specially pleaded, or whether evidence thereof may be given under a general denial, not decided; but where, on the trial, evidence as to contributory negligence was given without objection, held that an objection, made later, on the ground that such negligence was not pleaded, if such be an objection, was waived by the defendant: Woodruff v. Bearman F. Co., 108 Minn. 118, 121 N. W. 426, 427. 34. Defense of due performance of duty must appear either by a direct traverse of plaintiff's case as to the fact of injury or by the proof that the injury occurred without defendant's particular fault: Wilson v. California C. R. Co., 94 Cal. 166, 170, 29 Pac. 861, 17 L. R. A. 685. 35. TRIAL AND PROOF.-Negligence as a question of fact.-The question of negligence is, in general, a question of fact, and not of law, and the verdict of the jury, or finding of the lower court, can not be disturbed unless the lack of negligence on the part of the defendant or the existence of contributory negligence on the part of the plaintiffs follows necessarily as a conclusion of law from the undisputed facts: Schneider v. Market Street R. Co., 134 Cal. 482, 488, 66 Pac. 734, (negligence of street railway company); Brown v. Los Angeles R. Co., 2 Cal. App. 618, 621, 84 Pac. 362, 88 Pac. 1135. And as to the contrary doctrine, see authorities cited in the same case. 36. Physical examination of plaintiff by defendant's physicians.-For authorities holding that the trial court has a right, in its discretion, to make an order requiring the plaintiff to submit to an examination at the hands of defendant's physicians, see Murphy v. Southern Pacific Co., 31 Nev. 120; 101 Pac. 322, 331. 37. Right to present evidence under averment of legal conclusion where no objection is made to the pleading.—In an action to recover damages for personal injuries alleged to have been received by the plaintiff as the result of a collision with a street-car, the plaintiff in his petition alleged the fact that the speed was in violation of an ordinance in such a manner as rendered it a statement of a mere conclusion of law; nevertheless, if no objection be made to the pleading, the court may permit evidence under the averment which would have been competent had the pleading been made more specific, as it might well have been had objection thereto been urged at the proper time: Doherty v. Des Moines C. R. Co. (Iowa), 121 N. W. 690, 694. CXV. Injuries to Personal Property, and the Un Form No. 931. For slander of title. (Common form.) $390. Annotations 1547 1548 § 389. COMPLAINT [OR PETITION]. FORM No. 931-For slander of title. (Common form.) [Title of court and cause.] Plaintiff complains of defendant, and for cause of action alleges: day of 1. That plaintiff was on the 19 and ever since has been, the owner in fee of a tract of land situate in the county of in this state, bounded and described as [here describe]; that on said date, and while he was so the owner thereof, plaintiff caused said land to be offered and exposed for sale at public auction on said 19 . day of 2. That the defendant, well knowing the premises, maliciously, and without probable cause, and to cause it to be suspected that plaintiff could not give a good title to said land, and to prevent plaintiff from effecting a sale thereof, did then and there publicly say, in the presence and hearing of [here name the person or persons], and of other persons then and there assembled for the purpose of bidding on said property and buying the same, concerning plaintiff and his said property, the defamatory matter, namely: [Set forth exact words uttered, or substantially as uttered.] 3. That said defamatory matter was and is false and malicious, and was and is known by defendant to be false. 4. That by reason of the utterance of said false and defamatory words said and [naming the persons], who attended at said auction sale for the purpose of then and there bidding for and buying said land, were, and each of them was, dissuaded and prevented from bidding for the same, and refused, and still refuse, to purchase the same; that the plaintiff, by reason of the said acts and words of defendant, has been unable to sell said land, and has been injured by the aforesaid acts of the defendant, in the sum of $ Wherefore, plaintiff prays judgment against defendant for $ and for costs of this action. [Verification.] § 390. ANNOTATIONS.-Slander of title. A. B., Attorney for plaintiff. 1. Essentials of an action for slander of title. 2. Interest of plaintiff must be shown. 3. Malice and want of probable cause. 4, 5. Complaint must show special damages. 6. Damages must result from slanderous statement. ac 1. Essentials of an action for slander of title.-In order to maintain an tion for slander of title the plaintiff must show (1) he possesses an estate or interest in the property, (2) falsehood and malice in the utterance of slander concerning it, and (3) a pecuniary injury or damage to plaintiff. It is necessary to establish that the words spoken were false, and were maliciously spoken by the defendant, and also that the plaintiff has sustained some special pecuniary damage as the direct and natural result of their having been so spoken. As words spoken of property are not in themselves actionable, it is necessary to allege the facts which show wherein the plaintiff has sustained damage; and as special damage is the only ground upon which the action can be maintained, it is essential that such damage be distinct and particularly set out in the complaint: Edwards v. Burris, 60 Cal. 157, 161; Burkett v. Griffith, 90 Cal. 532, 537, 27 Pac. 527, 25 Am. St. Rep. 151, 13 L. R. A. 707, and note. 2. Interest of the plaintiff In the premises must be shown from the petition; otherwise, it is deficient: Stark v. Chitwood, 5 Kan. 141, 145. 3. Malice and want of probable cause must be averred to sustain the action: Stark v. Chitwood, 5 Kan. 141. 4. Complaint must show special damages. In order to maintain the action for slander of title, it is necessary to establish that the words spoken were false, and were maliciously spoken by the defendant, and also that the plaintiff had sustained some special pecuniary damage as the direct and natural result of their having been so spoken. As words spoken of property are not in themselves actionable, it is necessary to allege the facts which show wherein the plaintiff sustained damage; and as special damage is the only ground upon which the action can be maintained, it is essential that such damage be distinctly and particularly set out in the complaint: Burkett v. Griffith, 90 Cal. 532, 537, 27 Pac. 527, 25 Am. St. Rep, 151, 13 L. R. A. 707, citing Linden v. Graham, 1 Duer (N. Y.) 670; Swan v. Tappan, 5 Cush. 104. 5. Special damages constitute the gist of an action in the nature of one for slander of title; therefore, where the complaint is deficient in alleging such damages, it is demurrable: Wilson v. Dubois, 35 Minn. 471; 29 N. W. 68; 59 Am. Rep. 335. 6. Damages must result from slanderous statement.-The utterance of a mere falsehood, however malicious, will not sustain the action unless damage has resulted therefrom, and the damage which can be recovered is only such as is the direct and natural result of the utterance of the words. Therefore, where a complaint fails to show that the statements and declarations alleged to have been made by the defendant could have caused any damage to the plaintiff, a demurrer thereto is properly sustained: Burkett v. Griffith, 90 Cal. 532, 541, 27 Pac. 527, 25 Am. St. Rep. 151, 13 L. R. A. 707. 7. Where contract is binding upon intending purchaser.-Where the complaint shows upon its face that the intending purchaser is still bound by the contract to purchase, such complaint fails to show that the plaintiff has sustained any damage: Burkett v. Griffith, 90 Cal. 532, 540, 27 Pac. 527, 25 Am. St. Rep. 151, 13 L. R. A. 707. 8. Repetition of defamatory words by third person.-The originator of defamatory words respecting plaintiff's title is not liable for subsequent repetition of those words by another without his direction or authority: Burkett v. Griffith, 90 Cal. 532, 542, 27 Pac. 527, 25 Am. St. Rep. 151, 13 L. R. A. 707, citing Parkin v. Scott, 1 Hurl & N. (Eng.), 153; Ward v. Weeks, 7 Bing. (Eng.) 211; Terwilliger v. Wands, 17 N. Y. 54; 12 Am. Dec. 420; Gough v. Goldsmith, 44 Wis. 262, 28 Am. Rep. 579; Hastings v. Stetson, 126 Mass. 329, 30 Am. Rep. 683; Crain v. Petrie, 6 Hill, 522, 41 Am. Dec. 765. |
