Bernstein v. Dun & Bradstreet, Inc., 19724

• Decision Date: 29 January 1962
• Docket Number: No. 19724,19724
• Citation: 149 Colo. 150,368 P.2d 780
• Court: Colorado Supreme Court
• Parties: Harry BERNSTEIN, Plaintiff in Error, v. DUN & BRADSTREET, INC., a foreign corporation, Defendant in Error.

Page 780

368 P.2d 780

149 Colo. 150

Harry BERNSTEIN, Plaintiff in Error, v. DUN & BRADSTREET, INC., a foreign corporation, Defendant in Error.

No. 19724.

Supreme Court of Colorado, In Department.

Jan. 29, 1962.

Rehearing Denied Feb. 26, 1962.

McLean & McLean, Denver, for plaintiff in error.

Lesher, Schmidt & Van Cise, Denver, for defendant in error.

SUTTON, Justice.

The parties appear here in the same order as in the trial court and will be referred to as plaintiff and defendant.

This is an action for damages for libel.

In his complaint the plaintiff, an attorney and a certified public accountant, averred that he had been damaged in the sum of $9,900.00, by statements issued by defendant, a foreign corporation, in a 'report', which statements plaintiff claims were libelous.

Defendant filed a Motion to Dismiss for failure to state a claim, which motion was denied.

Defendant next filed a Motion for More Definite Statement or for Bill of Particulars and plaintiff, in due time, filed a 'More Definite Statement,' in compliance with the court's Order. The defendant then moved to strike the complaint and to dismiss the action on the grounds that plaintiff had 'failed to comply with the Court Order' under Rule 12(e).

The court gave plaintiff leave to file an amended complaint or to make the statement more definite, which plaintiff elected not to do. Whereupon the court granted defendant's motion and dismissed the action.

Plaintiff challenges this ruling by writ of error.

The complaint in the trial court alleged in pertinent part:

That plaintiff was, is and had been for many years, a Certified Public Accountant; and that, prior to September 2, 1959, had for many years enjoyed an excellent reputation in his profession.

That on or about September 2, 1959, defendant published and distributed a report labeled 'Rating Change' (concerning the financial condition of a Colorado Corporation and its officers who were purportedly clients of plaintiff) in which defendant stated that it (the report) was 'prepared from unaudited interim financial statement submitted directly by Harry Bernstein, CPA,' and 'Bernstein does not respond to request for interview,' all of which concerned plaintiff in his capacity (as a CPA) and his profession.

That the statements made were false; that plaintiff had not prepared the financial statement referred to and had never been contacted by defendant, nor had defendant ever attempted to contact plaintiff.

That in making this publication defendand intended it to mean that the plaintiff, Harry Bernstein, did not properly conduct his business as a certified public accountant and did not respond to defendant's requests.

That as a result of the publication, plaintiff had been defamed, has suffered injury and prejudice to his profession and reputation and had been damaged in the sum of $9,900.00.

The 'report' in question was attached to the complaint, incorporated therein and by reference, made a part thereof.

In its bill of particulars defendant asked:

1. What statements in the report attached to the complaint were defamatory, asserting that the words quoted in the complaint were not defamatory in and of themselves.

2. That the plaintiff be required to plead special damages because the statements made were not libelous per se, being, if defamatory at all, merely libelous per quod, and that plaintiff should state, in specific detail, each item of prejudice and injury and all specific gains and profits he would have acquired, including names of each client and the business he lost from each and the amount of profit he would have made on each.

3. That plaintiff be required to list the names and addresses of all persons and organizations to whom the allegedly 'defamatory matter was communicated.'

Plaintiff's replies to the bill of particulars can be summarized to the effect that the report is part of the complaint and whether the statements 'taken as a whole were defamatory was a matter of argument'; that the statements are libelous per se and not per quod--thus damages are presumed and no special damages need be plead; that the extent of the damages and the publication of the alleged libel were within the knowledge of defendant and not of plaintiff.

Upon plaintiff's failure to file and amended complaint or to make his last filed statement more definite pursuant to the court's order granting defendant's Motion for a More Definite Statement, the trial court dismissed the action under Rule 12(e), R.C.P.Colo.

Plaintiff urges two grounds for reversal:

1. He asserts that the court erred in dismissing the plaintiff's cause of action under Rule 12(e), R.C.P.Colo.; and

2. That the court erred in holding that the defamatory statements made by defendant were not libelous per se, but were libelous per quod.

The trial court, in dismissing plaintiff's cause of action under Rule 12(e), R.C.P.Colo., specifically stated that the alleged libelous statements set forth in plaintiff's complaint were not libelous per se, and that therefore special damages had to be pleaded in particularity. This, in effect, was a determination by the trial court that plaintiff had failed to state a claim upon which relief could be granted. For in Colorado special damages are a necessary element of a claim in defamation when the alleged defamatory remarks are libelous per quod. See for example Knapp v. Post Co., 111 Colo. 492, at page 499, 144 P.2d 981 (1943); Brown v. Barnes, 133 Colo. 411, 296 P.2d 739 (1956).

In his brief plaintiff emphasizes the fact that the trial court denied defendant's original Motion to Dismiss for failure to state a claim upon which relief could be granted. Plaintiff argues that if the complaint failed to state a claim at this stage of the proceedings the trial court should have so ruled. The denial of defendant's Motion to Dismiss, plaintiff argues was in effect a ruling by the trial court that the complaint was sufficient on its face even without the averment of special damages; therefore the trial court erred in subsequently dismissing the action.

We fail to see merit in this argument. Since special damages are an essential element of an action for libel per quod, Knapp supra; Brown supra, plaintiff was required to specifically plead them. Having failed to do so the trial court could then have dismissed the plaintiff's complaint under Rule 12(b)(5), R.C.P.Colo., for failure to state claim upon which relief could be granted; however, this is not to say that the trial court was bound to dismiss the action at that stage of the pleadings.

Colorado's Rules of Civil Procedure are designed to dispense with ritualistic, common-law, forms-of-action pleading. For instance, Rule 2, R.C.P.Colo., provides that 'there shall be one form of action to be known as 'civil action." Rule 8 (e)(1), R.C.P.Colo., provides, inter alia, that no technical forms of pleading are required. Under Rule 8(a), R.C.P.Colo., the essential element of a complaint (for purposes of the issue under discussion) is 'a short and plain statement of the claim showing that the pleader is entitled to relief.' In view of our liberal policy under these rules of dispensing with the overly technical aspects of common-law pleading, the trial court had the discretion to allow the plaintiff the opportunity of supplying the essential allegation of special damages by a More Definite Statement; it was not bound to dismiss the complaint entirely under the circumstances. See 2 Moore, Federal Practice 2306 (1960). The granting of defendant's Motion for a More Definite Statement and the denial of defendant's original Motion to Dismiss in no way...