Siebert v. Vivoni

3 P.R. Fed. 161

Opinion

Rodet, Judge,

delivered the following opinion:

This is an action for libel by the plaintiff against three defendants. José A. Vivoni and Manuel Ramirez Ortiz filed answers which were demurred to, and, on the hearing as to the demurrer, they took leave to amend their answers, and did so, leaving issuable pleas on the record. This particular defendant, Dionisio Ulises Pabón, also filed an answer which was demurred' to, but he did not take leave to amend, and stood on his demurrer. His answer contains five paragraphs. The first traverses and avoids the allegation of the petition as to the occupation of the plaintiff; the second denies that the words alleged to have been published are malicious or libelous; the third denies that the plaintiff has suffered any damages in any sum whatever; the fourth denies that the matter published is defamatory or actionable per se; and the fifth justifies by alleging the truth of the publication, and offers to prove it. The demurrer sets out that the answer does not state facts that constitute a defense, and that it is ambiguous, etc., in that it does not appear from it what defense is relied upon, and because the different allegations thereof are inconsistent with each other. The respective counsel have filed memoranda of their authorities in the premises before us, and we have examined the. same.

We have recently had occasion to give the question of libel a considerable examination in the Stokes v. Dooley Case, ante, 1, wherein we filed a somewhat extensive opinion, and therefore feed that the subject is so fresh in our mind as to be able to pass upon the issue here without any citation of authority, referring entirely to our opinion in that case as authority for our action.

We have examined the answer carefully, and while it is not as specifically drawn as we would like to see, still we feel that, under §§ 571 and 572 of the Revised Statutes of Porto Rica it ought to be permitted to stand, save paragraph 4 thereof, denying that the matter is actionable per se. With this we cannot agree, for we think tbe matter is grossly libelous, particularly as it is alleged to be published of tbe plaintiff in his official capacity. Tbe 5th paragraph of tbe answer, while not specific, still we tbink it ought, to be permitted to stand as an attempted justification, and, as stated in the Stokes v. Dooley Case, supra, tbe plaintiff will be relegated to bis remedy for a bill of particulars, and tbe bill of particulars, when furnished, which must be within five days after plaintiff demands it, must specify delinquencies connected with tbe text of tbe libelous matter as alleged to have been published.

Therefore, if defendants shall not furnish a bill of particulars within five days after a written demand is filed therefor, the demurrer will stand sustained to the entire answer, because, in the event of its being sustained as to paragraph 5, which eliminates the justification, it should also be sustained as to paragraphs 2 and 3, and that would necessarily eliminate the answer from the files and record, and entitle the plaintiff to judgment, and it is so ordered.