Brown v. Barnes
| Decision Date | 23 April 1956 |
| Docket Number | No. 17796,17796 |
| Parties | E. M. BROWN, Plaintiff in Error, v. E. J. BARNES, Defendant in Error. |
| Court | Colorado Supreme Court |
Earl A. Wolvington, Sterling, Wormwood, O'Dell & Wolvington, Denver, for plaintiff in error.
Karl C. Falch, Sterling, McNichols, Dunn & Nevans, Joseph F. Little, Peter J. Little, Denver, for defendant in error.
Plaintiff in error will herein be referred to as plaintiff, and defendant in error as defendant, these being the respective positions the parties occupied in the trial court.
Plaintiff's complaint sought damages for alleged slander of plaintiff by defendant. It appears that plaintiff, a candidate for re-election as sheriff of Logan County, Colorado, sued defendant for alleged defamatory remarks made by defendant at a political meeting held October 19, 1954 at Crook, Colorado. It was alleged in plaintiff's complaint that defendant 'intentionally and maliciously contriving to injure the plaintiff and to deprive him of the confidence of the people of Logan County did * * * speak and publish of and concerning the plaintiff, in the presence and hearing of diverse good people, the following false, scandalous and defamatory words, to-wit: (meaning that plaintiff had embezzled or otherwise dishonestly accumulated property of the value of Eighty Thousand Dollars ($80,000); that plaintiff was guilty of malfeasance in office, and guilty of dishonest and fraudulent practices.') Plaintiff alleged that his reputation was thereby injured; that he suffered great mental anguish on account of the statements made; that he lost the election in 1954 as a result of such statements. He prayed for actual and exemplary damages.
By his answer defendant put in issue the allegations of plaintiff's complaint and for separate defenses he alleged that the language used by defendant was not meant or understood to mean that plaintiff was guilty of malifeasance or dishonest or fraudulent practices; that the portion of the alleged remarks, other than those in parenthesis as above set forth, were true; that plaintiff carried the election in the precinct where Crook, Colorado, is situate; that plaintiff gave the editor of a Sterling, Logan County, Colorado, newspaper the story containing the remarks complained of and 'not only authorized such publication of said words on October 24, 1954, but promised said editor of said newspaper that no libel suit would be brought against said newspaper by said plaintiff on account of such publication * * *.' That if plaintiff suffered damage on account of said words uttered, such damage was occasioned by the publication of said remarks in the Sterling newspaper.
At the conclusion of plaintiff's evidence, counsel for defendant moved the trial court for a directed verdict in favor of defendant. This motion was granted and from the judgment of dismissal entered in the action plaintiff brings the case here on writ of error.
For reversal it is urged that the trial court erred in holding that the words spoken by defendant were not slander per se; that there was sifficient evidence to submit the case to the jury; that no proof of actual damage is necessary in an action of this kind.
The trial court held that the words spoken were slander per quod and not slander per se. Counsel for plaintiff contend that the words uttered by defendant were 'slanderous themselves and needed no construction to explain the slanderous meaning.' They say that the fair import of the language used 'plainly insinuated that plaintiff did dishonestly accumulate his property and steal from Logan County.' If such be the import of the language employed then it seems pertinent to inquire why plaintiff inserted in his complaint the innuendo above set forth. Moreover when defendant, prior to trial, moved to have the innuendo stricken from the complaint, counsel for plaintiff resisted and the trial court denied the motion to strike that portion of the complaint. The trial court treated the case as one of slander per quod and so did counsel for plaintiff. Witnesses were called by plaintiff and testified concerning this language and the meaning they attached to the words employed; yet it appears that all of these witnesses voted for plaintiff at the November, 1954 election.
Words which are libelous per se do not need an innuendo, and conversely words which need an innuendo are not libelous per...
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Wegner v. Rodeo Cowboys Association, Inc., 201-68.
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