There the publication was a clear and unequivocal charge of malfeasance in office which the court said was clear to all men, an entirely different charge from that shown by the record in this case. Plaintiff also cites Vorhees v. Toney, 32 Okla. 570, 122 P. 552. There the plaintiff is charged with theft and robbery. That in itself is sufficient to show that that case is no authority here.
"In an action for slander, the defendant, by reason of sections 5634 and 5666, Comp. Laws 1009, may set up in his answer as his defense both a general denial, and that the defamatory language alleged to have been used by him is true." The same paragraph, above quoted, appears in the case of Vorhees v. Toney, 32 Okla. 570, 122 P. 552, and in the second paragraph of the syllabus in the last mentioned case, this court said: "A plea of justification, in an action for slander, requires certainty of averment, and must justify the sting of the very charge alleged."
This would only mitigate. It did not tend to justify. Wallace v. Kopenbrink, 31 Okla. 26, 119 P. 579. See, also, Voorhes v. Toney, 32 Okla. 570, 122 P. 552; Hubbard Cowling, 36 Okla. 603, 129 P. 714. We think because of the errors mentioned the plaintiff is entitled to a new trial, and to accomplish this the cause must be reversed and remanded, with directions to set the judgment aside and grant a new trial.
The common-law rules, however, exclude, as tending to prove such general reputation, testimony of particular instances of misconduct on the part of the complainant, but such rules have sometimes been relaxed so as to permit the introduction of testimony with reference to acts of the same general nature as the one charged, in mitigation of damages. 37 C. J., p. 76; Osterheld v. Star Co., 146 A.D. 388, 131 N.Y.S. 247, 251 et seq., par. 5; Vorhees v. Toney, 32 Okla. 570, 122 P. 552, 554, par. 3; Parker v. Coture, 63 Vt. 155, 21 A. 494, 495, 25 Am.St.Rep. 750. See in this connection the following Texas cases: Texas Midland Railroad v. Dean, 98 Tex. 517, 522, 85 S.W. 1135, 70 L.R.A. 943; Collins v. Clark, 30 Tex.Civ.App. 341, 72 S.W. 97, 98 (writ refused); Houston T. C. R. Co. v. Ritter, 16 Tex.Civ.App. 482, 41 S.W. 753, par. 3. Courts and text-writers have from time to time expressed dissatisfaction with the common-law rules of procedure in cases of defamation. Farley v. Evening Chronicle Pub. Co., 113 Mo. App. 216, 87 S.W. 565, 569, and authorities there cited.