Daniels v. Stock

• Decision Date: 08 April 1912
• Citation: 21 Colo.App. 651,126 P. 281
• Parties: DANIELS v. STOCK.
• Court: Colorado Court of Appeals

126 P. 281

21 Colo.App. 651

DANIELS v. STOCK.

Court of Appeals of Colorado

April 8, 1912

Rehearing Denied June 10, 1912

Appeal from District Court, City and County of Denver; Harry C Riddle, Judge.

Action by Sarah A. Stock against William F. Daniels. Judgment for plaintiff, and defendant appeals. Affirmed.

George S. Redd and George Stidger, both of Denver (John Horne Chiles, of Denver, of counsel), for appellant.

Stephen W. Ryan and Horace N. Hawkins, both of Denver, for appellee.

CUNNINGHAM J.

We are confronted in this case with an abstract consisting of 747 pages, and briefs aggregating 212 pages, and 110 assignments of error. As the writer of this opinion views the record, the most important question presented is how the five members constituting this court can be expected to find time to read it understandingly. The vital questions involved in the appeal, we feel certain, could have been adequately presented, and much more satisfactorily considered, had but a fraction of the space actually consumed been occupied. We suggest in no spirit of carping criticism that unnecessarily voluminous abstracts and briefs often serve to retard the progress of the courts, without advancing the interests of the litigants. The practice of filing such records accounts, in no small degree, for the congested condition of the dockets, about which much criticism is heard, and the responsibility for which is not always justly placed.

Appellee plaintiff below, brought this action in the district court to recover damages growing out of an alleged libel. Defendant was charged with having published the following language of and concerning the plaintiff, to wit: "The Stock case is fully covered by the attorney, so I will only add that because of the relation of the woman's mother with the Big Five Company, and, because of the sympathy that has been extended to her on account of her claim that she was abused and maltreated by her husband, in defending the case care was taken not to bring out anything reflecting upon her character further than seemed to be absolutely necessary. No such care for a blackmailer will be observed on a new trial, if the case should ever come to trial again. *** There is now in force an indemnity policy insuring us against damages for injury to either employés or patrons, and, while this insurance would not cover such a verdict as they rendered in favor of Mrs. Stock, I believe it will afford ample protection because of the vigorous and effectual manner in which corporations furnishing this kind of insurance prosecute and punish persons making false and fraudulent claims. In this connection I wish to bring to your attention a difference of opinion between Messrs. Redd (attorney for the company) and Merrill (secretary for the company) on the one side, and myself on the other. I believe that no matter what the final result of Mrs. Stock's attack upon us may be, we should vigorously prosecute her and that she should be sent to the penitentiary, as I believe she can be, by the evidence in hand. I believe this prosecution should be commenced and earnestly pushed to a final decision, no matter what the result, for even if we should finally fail to convict, the very fact that in every instance where there is any suspicion of fraud, there will be a thorough investigation and prosecution if facts warrant, will deter blackmailers from making fraudulent claims. Such prosecution should also extend to any witnesses against whom there is any evidence of perjury. Mr. Redd agrees with me as to witnesses, but not as to the principal, while Mr. Merrill thinks nothing should be done." The undisputed facts are that the defendant incorporated the above language in a typewritten report made by him to the stockholders of the Big Five Mining Company, of which he was president and manager; that, after dictating and revising his report containing the above language, he mailed one copy to its secretary and another to the attorney; that this report was printed in pamphlet form, there being several hundred copies of the pamphlet issued, and that it was printed in the Daily Mining Record, a paper published in the city of Denver, having a circulation of about 20,000; that the Mining Record charged for and collected from the Mining Company advertising rates for publishing the report, and the company also paid for printing the pamphlets. It seems that Mrs. Stock brought suit against Daniels and others prior to the making of this report for damages she claimed to have sustained while taking a bath in a public bathhouse in Idaho Springs owned by defendant and his associates. After the date of plaintiff's alleged injury, Daniels and his associates transferred the bath property to the Mining Company, the company assuming all responsibility for any damages which plaintiff might establish by reason of her alleged injuries. Defendant was heavily interested in and was president and manager of the Big Five Mining Company. Mrs. Stock's suit for damages was tried in the district court, resulting in a judgment of $10,000 in her favor. It is this judgment, and the trial leading up to it, to which Daniels makes reference in his report to the stockholders of his company. These are substantially the facts, in so far as they are not seriously controverted. Defendant's answer to the complaint consisted, first, of a general denial; second, privileged communication; and, third, justification on the ground that the statements contained in the alleged defamatory matter were true.

1. Complaint is made of the wide latitude permitted by the trial court in cross-examination of certain of defendant's witnesses. In view of the large discretion properly lodged in trial courts in matters of this sort, and of the past unfriendly relations existing between plaintiff and certain of the witnesses, we perceive no serious grounds for complaint on that score. Moreover, the consideration of much of this evidence was properly limited by instruction No. 17, requested by the defendant. As to the admission of the evidence referred to in said instruction, appellant is in no position now to complain, since he asked that it be submitted to the jury for a certain limited purpose in said instruction prescribed. If he did not desire the jury to consider it at all, appellant should have tendered an instruction asking that it be entirely withdrawn from the consideration of the jury. Other evidence introduced on cross-examination, and of which defendant now complains, might have been similarly restricted, had a timely instruction to that effect been tendered.

2. The trial court gave instruction No. 9, which reads as follows "The jury is instructed that in this case the defendant denies publication. It is not necessary that there should be any direct proof of publication. The establishment, to the satisfaction of the jury, of any fact or facts from which they may legally infer publication by the defendant, will be sufficient; and in this connection the jury is instructed that the admission of the defendant contained in his answer, that he 'used the words set out in the complaint,' may be considered by the jury as competent evidence in connection with the other evidence in the case, as tending to establish publication." The court also permitted plaintiff to introduce certain paragraphs from defendant's answer, contained in the second and third defenses, wherein defendant used, in connection with pleas of privileged occasion and justification, the following language, in substance: "That the defendant used the words set out in the second paragraph of the complaint in said report," etc.--referring to the alleged libelous words. Defendant predicates error on the action of the court in giving the aforesaid instruction, and in admitting that portion of the answer, which, by admitting the use of the alleged libelous language, contradicts the first defense, wherein the publication of the language is denied. Defendant asserts that the Code permits the pleading of inconsistent defenses, no matter if such defenses be so inconsistent with each other that the proof of one would necessarily disprove the other, and defendant cites numerous opinions from our Supreme Court and Court of Appeals to support his assertion. Our Supreme Court, it must be conceded, has frequently categorically held that inconsistent defenses might be set up in an answer. If the writer of this opinion were convinced that these rulings were meant to, and, when properly interpreted, did include defenses so contradictory that the proof of one necessarily disproved the other, he would feel that the question was foreclosed in this state, so far as this court is concerned, since an application for a reconsideration thereof could only be properly addressed to the Supreme Court. After a careful reading of every opinion he can discover, from both of the courts of last resort in this state, which in any wise refer to the question of inconsistent defenses, the writer is disposed to think that counsel for the defense, and probably the profession generally, have taken these opinions too literally, and carried them beyond the point they were intended to cover. Entertaining this impression, he feels at liberty to give the subject further consideration, limiting, and intending to limit, his remarks strictly to that branch of the discussion properly applicable to such inconsistencies as have been already referred to. Prof. Sunderlin, in his article on Pleading, in 31 Cyc. 147 et seq., considers the question of inconsistent defenses in all its phases. At page 149 he says: "Even where there is no express prohibition (in the Code) it is held in many jurisdictions that the privilege of pleading as many defenses as may exist is limited by the...