JOHN J. BURKE, Appellant, v. GEORGE MASCARICH, Respondent

[No. 12569. Department Two. November 26, 1889.] JOHN J. BURKE, Appellant, v. GEORGE MASCARICH, Respondent. Slander — If Falsity of Charge be Admitted by the Pleadings, the Plaintiff is not Required to Prove It. —Where the answer in an action for slander admits that the words spoken were false, it is error to instruct the jury that the plaintiff must prove that they were false. Id.—Privilege — Communication by One Voter to Another concerning Candidate. — The reckless repetition by one voter to another of a charge against a candidate for public office, without any attempt at investigation of its truth or probability, is not privileged. Appeal from a judgment of the Superior Court of Contra Costa County, and from an order refusing a new trial. The complaint alleged that the slander for which the action was brought consisted in saying of and concerning the plaintiff that “he is a state’s prison convict, and he has been in the state’s prison.” At the time of the publication of the slander, the plaintiff was a candidate at an election for a public office. The further facts are stated in the opinion. Chase & Chase, for Appellant. L. B. & L. Mizner, and W. S. Tinning, for Respondent. [MAJORITY — Hayne, C. The Court.] Hayne, C. Action for slander; verdict and judgment for defendant. Plaintiff appeals. The answer does not set up the truth of the charge alleged to have been made against the plaintiff, which was slanderous per se; and at the trial the defendant admitted that he made it. No attempt was made to prove that the charge was true, and none could have “been made under the pleadings. In this state of .the case the court gave the following instructions: “The law allows the defendant in an action for slander to plead the truth of the matter alleged to be defamatory, and this does not remove the burden from the plaintiff to prove that the alleged slanderous matter is false, even though the defendant does not set up the truth of the alleged slanderous matter.” This was, in effect, to tell the jury that it was necessary for the plaintiff.to prove a matter which was admitted by the pleadings, and was manifestly erroneous. There are other errors in the record; but as they need not arise upon a retrial, we deem it sufficient to say that while a communication from one voter to another concerning the character of a candidate for public office may be privileged, and consequently excusable, even though it turns out to have been untrue, yet that the reckless repetition of a mere rumor, without any attempt at investigation of its truth or probability, is not within the protection of the rule. We therefore advise that the judgment and order appealed from be reversed, and the cause remanded for a new trial. Vanclief, C., and Belcher, C. C., concurred. The Court. For the reasons given in the foregoing opinion, the judgment and order are reversed, and the cause remanded for a new trial.