Obaugh vs. Finn, 4 Ark. 110

By the Court, Ringo, C. J. Several questions are presented by the record and assignment of errors; one of which is, that the Court erred in overruling the demurrer to evidence. The argument in support of this objection rests upon the assumption, that the publication charged in the declaration is not in itself libellous, and will not support an action at law, unless special damages be alleged and proved.

And a great number of adjudged cases have been cited to show that the language contained in the publication, if uttered verbally, would not, in law, be deemed slanderous, or support an action; and we are urged to. disregard the well-known distinctions between libels and slander, and to hold,' that no action can be maintained for the publication of language which, if only verbally spoken-, would not support an action. We have carefully examined the cases cited, and, upon deliberate consideration, come to the conclusion, that the law, in this respect, is too well established to be now questioned or departed from1.

The distinction has been uniformly maintained for ages, in the courts of England, and has been recognized in most, if not all, of the United States. And language, though not actionable, if merely spoken, has, in many cases? béíen adjudged libellous, when written and published.' And the rule appears to be well established, that anjr words, written and published, throwing contumely on the party, or prejudicing him in his employment, are actionable.

That the language used in the publication, upon which this action is founded, is such as to bring the individual, of whom it was published, into contempt, ridicule, and disgrace, and injure him in his employment or trad e,‘ there can, in our opinion, be no doubt. It is, therefore, within the rule above stated, and is actionable, without any allegation of special damages arising therefrom. The testimony proved the publication, by the order of Obaugh, as stated in the declaration, and that Finn was a plasterer by trade, doing business as such, in the city of Little Rock and county of Pulaski.

The demurrer admitted the truth of these facts, and they were unquestionably sufficient in law to maintain "the action. And, therefore, there was no error in the judgment of the Court overruling said demurrer. But it is insisted, that the Court erred in refusing to discharge the jury, on the motion of the plaintiff in error, upon his demurrer to the evidence being filed and received by the Court, and in retaining it until the demurrer was adjudicated and disposed of by the Court, and then suffering them to pass upon or try the issue joined, notwithstanding his interposition of the demurrer to the evidence.

The authorities cited in the briefs, clearly show, that the object and effect of a demurrer to evidence are, to take from the jury, and refer to the Court, the application of the law to the testimony; and, where the testimony is, upon such demurrer, adjudged insufficient in law to maintain the action, it is equally certain, that a final judgment must be pronounced thereilpon in favor of the defendant; and the like judgment must be given for the plaintiff, if the demurrer be overruled, in all cases where the subject-matter of the controversy is such as not to require the intervention of a jury, for the purpose of ascertaining or assessing unliquidated damages.

These rules appear to be well settled, and are not questioned by either party in this case.

It is also admitted, that the usual course of proceeding, upon a demurrer to the evidence being filed, is either to take a verdict for the plaintiff, conditionally, and then discharge the jury; or, to discharge the jury before any verdict is rendered, and then dispose of the demurrer; and if, in the latter case, the demurrer should be decided in favor of the plaintiff, and the damages to which he is entitled be un-liquidated, a writ of inquiry is awarded, and another jury impanneled thereupon, to inquire of and assess them.

And the latter course of proceeding] upon a reference to the books and cases cited in the ‘briefs, appears to be the most usual; but it is said that either would be regular; and cases are cited, by the defendant in error, to prove that, in some of the American States, a course of proceeding, different from either, has been indulged, and suqh departure therefrom held to be no error. Besides, he insists that it is a mere matter of practice, which’ may be modified or changed by the Circuit Court at will, and so be regulated according to its sense of propriety or convenience.

This-argument is plausible; and we have experienced some difficulty in coming to a satisfactory conclusion upon the question. Our deliberations, however, have resulted in the opinion, that, notwithstanding it is in some respects a matter of practice, yet, it is a practice so interwoven with the law, that it can neither be disregarded nor changed at the discretion of the Court.

Nor do we consider it any more a matter of mere practice than the filing of the demurrer itself; which the Court, under some circumstances, in the exercise of a sound legal discretion, may qertainly refuse to receive; yet, when the testimony is in every respect certain, or .in writing, the defendant would, as wc apprehend, have a legal right to demur, if he desired to withdraw it from the consideration of the jury. And, in such case, the Court, in, (tie exercise of any discretion with which it is vested, would not be justified in refusing to receive it, or compel the plaintiff to join therein.

It may be regarded as in many respects similar to the right of filing or amending the pleadings in a cause, the admission or rejection of which anciently depended upon the practice of the courts, and was regulated by nothing but their discretion.

But many of the rules of practice, so established, have long since become incorporated with the common law, so as to constitute a part thereof — thus forming not merely rules of practice, but constituting principles of law, binding upon the courts as well as the parties, and establishing legal remedies, prescribing-their form and order, as well as the manner of conducting them.

Take the order of pleading as an illustration; and inquire by what authority the courts, wherever the common law has been adopted, refuse to receive or regard pleas to the jurisdiction of the Court, or in abatement of the suit, after a plea in bar of the action has been filed.

The answer, we apprehend, must be, that the law forbids such defence, after a defence has been interposed in bar of the action; yet, the order of pleading was originally .nothing but the practice adopted by the courts themselves, for convenience and the better administration of justice, which, in the course of time, became parcel of the common .law.' And, therefore, a party failing to observe the order so established, often loses the advantage of a defence, of which he could have availed himself, if he had interposed it at a proper time and in legal form; and so it has been uniformly ruled by this Court.

And cases. may be found, where judgments have been set aside, because the established order of pleading had not been observed; the judgment having been given upon some defence, which, according to that order, had been waived, or superseded by the interposition of some defence posterior to it in the legal order of pleading. Yet, this could not be, if the order of pleading depended upon the simple discretion or mere practice of the Court, as contradistinguished from the rules of practice and order of proceeding prescribed by law.

Such, also, is the character of the rule which prescribes the order of proceeding upon the filing of a demurrer to evidence; it is a rule of practice established by law, which the Court and parties arc bound to observe.

In the present case, the rules of proceeding established in such case, have been entirely departed from, and a course of proceeding, wholly unauthorized by any rule or precedent, has been adopted, with the. sanction of the Circuit Court, without the assent of the plaintiff in error, and in derogation of his legal rights; and, therefore, there is error in the proceeding and judgment against him, of which he may well complain, although it is impossible* to know what would have been the result, if the proceeding had been conducted according to law.

He had a legal right to require that it should be so conducted; or, in other words, he was entitled to a legal trial, which was refused him by the Court. And, therefore, it is unnecessary to determine such other questions asare presented by the record and assignment of errors, as they will probably never arise upon another trial of the case. Judgment reversed.