Butler v. Evening Leader Co.

134 F. 994, 1905 U.S. App. LEXIS 5089

Opinion

PLATT, District Judge.

As to the second defense: If it be- assumed that both Annie Butler and Lillie Cody had appeared as wing shots with Buffalo Bill under the nom de plume of “Annie Oakley,” and that both had been praised by King Edward, etc., even then a statement that “Annie Oakley, the wing shot,” etc., passed through the experience set forth in the article, with no earmarks pointing to Lillie Cody, would not, as I read it, be a complete justification as against the plaintiff. As the case will stand, the plaintiff must bear the burden of showing that the article referred to her; and the defendant, in denying that, is at liberty to show that it referred to some one else. If it referred to some one else, and not to plaintiff, it is unimportant whether it is true or false.

The facts alleged in the third defense can be introduced under the general issue. Atwater v. Morning News Co., 67 Conn. 510, 34 Atl. 865. Notice of intention to produce them is permissible under the practice act, but a definite defense can hardly be construed to be such a notice and nothing more.

Let the second and third defenses be stricken out, at defendant’s costs.