VII. That the persons publishing it inserted it as an item of public news, without malice, believing the same to be true.58 of The defendant answers to the complaint, and alleges: ........ 18.., at an action was tried in the court in which. was plaintiff, and the he was tried plaintiff herein was defendant [or an indictment having been found against the plaintiff for therefor in the may be]. ... court; or otherwise, as the case II. That the article published in the defendant's newspaper, mentioned in the complaint, was a fair and true report of the testimony of one of the witnesses, named in the course of the said trial.50 ... § 3650. Privileged communication — another form. [TITLE.] Form No. 866. The defendant answers to the complaint, and alleges: made court I. That at the time of publishing the words mentioned in the complaint, an action was pending in the between [the parties to this action]. II. That at that time this defendant applied to B. C., the judge of the said court, for an order of and 58 This form and the three following are from the form book of the code commissioners of New York. 59 Words spoken or written in a legal proceeding, and material to the controversy, are privileged. No action will lie upon them, and it is not necessary for the defendant to deny the allegation of malice. Garr v. Selden, 4 N. Y. 91; and see Suydam v. Moffatt, 1 Sandf. 459; Buddington v. Davis, 6 How. Pr. 401. An allegation in the answer that the words were spoken in a privileged communication raises the issue of malice, upon which the plaintiff is entitled to introduce any competent evidence of express malice as fully as though it had been alleged in the complaint and denied in the answer, and other utterances of words of similar import would be competent evidence for that purpose. Harris v. Zanone, 93 Cal. 59. For other cases of privileged communication, see ante, vol. 1, p. 620, par. 1678. upon his application presented to the said judge an affidavit containing the words complained of, which said affidavit was pertinent to the said application. III. That the defendant did not in any other way publish the said words. The defendant answers to the complaint, and alleges: I. That he was at the time of uttering the words mentioned in the complaint the [confidential clerk] of II. That the said .... inquired of the defendant the character of the plaintiff, with a view of employing him as a clerk [or as the case may be], and the defendant then stated to him the matter referred to in the complaint. III. That the defendant had probable cause for believing, and did believe, the same to be true. CHAPTER IV. INJURIES CAUSED BY NEGLIGENCE. § 3652. Denial of ownership and possession. [TITLE.] Form No. 868. The defendant answers to the complaint, and alleges: That at the time of the grievance alleged the defendant was not the owner, and had not the possession or control of the premises in which said hole or hatchway was [or, that the said horse and carriage alleged to have been injured were not the property of the plaintiff]. § 3653. Plaintiff's own negligence. [TITLE.] Form No. 869. The defendant answers to the complaint, and alleges: That the defendant and his servants used due care and diligence about the construction of the said building [or in re pairing said street, and replacing the pavement thereof; or in guarding the said excavation with proper bulwarks, and in putting up lights during the night-time; or otherwise, according to the allegations in the complaint], and that said injury was not caused by any negligence on the part of the defendant or his servants, but was owing to the negligence and fault of the plaintiff himself. 8654. General denial. In an action for damages for negligence, it is not necessary that the answer should aver that the plaintiff's negligence contributed to the injury in order to enable defendant to offer evidence of that fact. It may be shown, under a general denial of the plaintiff's charge, that the injury was caused by defendant's negligence.1 § 3655. Concurrent negligence. If, in an action brought by a laborer against his employer, to recover damages for an injury sustained by the employer's carelessness, the employer relies for a defense upon the fact that such injuries were caused by the negligence or improper conduct of a fellow-servant, an averment to that effect should be made in the answer. An averment that the plaintiff's injury was caused by his own negligence does not raise the issue.2 Query, whether in action against a carrier, for injuries resulting in the death of a passenger, owing to the concurrent negligence of the carrier and a third party, the defense of concurrent negligence in the agencies producing death, if a defense at all, can be heard without being specially pleaded.3 § 3656. Denial of possession of vicious dog. [TITLE.] Form No. 870. The defendant answers to the complaint: That he does not own the said dog, and never did; and that he was not the possessor of the said dog at the time of the grievances alleged, nor at any other time, before or since said alleged grievances. 1 MacDonnell v. Buffum, 31 How. Pr. 154; see Magee v. Railroad Co., 78 Cal. 430; Johnson v. Railroad Co., 23 Oreg. 94; also, § 1836, ante. 2 Conlin v. S. F. & S. J. R. R. Co.. 36 Cal. 404. 3 Lockhart v. Lichtenthaler, 46 Penn. St. 151. 3657. General denial. In an action for keeping a ferocious dog, which bit the plaintiff, defendant may on general denial avail himself of want of proof that the dog was accustomed to bite.⭑ The defendant answers to the complaint: That at the time of the grievances alleged the defendant did not know, and had no reason to believe, that said dog was accustomed to bite mankind, or was of a mischievous nature [or otherwise, according to the allegations of the complaint]. 4 Hogan v. Sharpe, 7 Car. & P. 755. The defendants answer to the complaint: I. That said goods described in the complaint were not the property of the plaintiff, and were not deposited with the defendants by him or his agents. II. That the same was the property of one A. B., to whom the possession of them belonged when this action was brought.1 § 3660. Estoppel - hirer of chattels. A bailee or agent can not dispute the original title of the bailor or principal, from whom he has received property.2 To the general rule that a bailee will not be allowed to set up title in a third party, in an action brought by the bailor, there is an exception in the cases where the bailor's possession was obtained by fraud.3 A hirer of chattels, in the absence of a special agreement, is not bound to make good their loss by fire, while in his possession, without his fault.1 1 See Beach v. Berdell, 2 Duer, 327, where this defense was sustained. 2 Vosburg v. Huntington, 15 Abb. Pr. 154; and compare Sund v. Seaman's Sav. Bank, 37 Barb. 129. A claim by a bailee in his answer of the ownership of goods intrusted to his keeping, and a denial of any title in his bailor, obviates the necessity of proving a demand for the goods before bringing suit and waives the omission of an allegation of such demand. Doggett v. Gray, 110 Cal. 169; see § 2103, ante. 3 Hayden v. Davis, 9 Cal. 573. As to the liability of a transferee of property bailed, see Robinson v. Haas, 40 id. 474. 4 Story on Bailm., § 414; Hyland v. Paul, 33 Barb. 241. |