Hazy v. Woitke

• Decision Date: 03 May 1897
• Citation: 48 P. 1048,23 Colo. 556
• Parties: HAZY v. WOITKE.
• Court: Colorado Supreme Court

48 P. 1048

23 Colo. 556

HAZY v. WOITKE.

Supreme Court of Colorado

May 3, 1897

Error to district court, La Plata county.

Action by Adolph Hazy against F. E. Woitke. Judgment of nonsuit, and plaintiff brings error. Reversed.

This action was instituted in the district court by defendant in error, as plaintiff, against plaintiff in error, as defendant, for damages for libel and slander. The complaint contains two causes of action founded on libel and two causes for slander. The language in each cause of action, while in substance the same, is somewhat differently expressed in the several causes of action. It appears from the record that plaintiff and defendant had a disagreement in reference to the payment for certain work done by defendant for plaintiff. This disagreement engendered bad feeling on the part of defendant, and, as a consequence thereof, the complaint charges that the the defendant deliberately, willfully, and maliciously stated and caused to be published the statement that plaintiff had attempted to induce the defendant to burn his (plaintiff's) house, in order that he might procure the insurance upon the same. In the first cause of action it is charged that the defendant said to William Bacon, D. C Sargent, Joe Prewett, and divers other persons that the plaintiff had made the offer in the following language 'I will give you fifty dollars if you will burn my house and give you the contract to build a new one.' The second cause of action is substantially the same as the first, but the words are alleged to have been published in writing instead of orally, as in the first cause of action. In the third cause of action the defendant is charged to have slandered the plaintiff by the use of the following language 'A. Hazy offered me fifty dollars and the contract to build a new house, if I would burn his house on Third street, in the city of Durango.' In the fourth and last cause of action a similar statement is alleged to have been published by the defendant in the Durango Weekly Tribune, a newspaper published in the city of Durango, and of general circulation both in Durango and elsewhere in La Plata and adjacent counties. For a first defense the defendant denies each and every allegation of plaintiff's complaint. For a second defense to plaintiff's first cause of action the defendant admits using the language attributed to him, but pleads in justification that he made such statements only to D. C. Sargent, who was, at the time, marshal of the city of Durango, and that he made the statement to the marshal in the discharge of his (plaintiff's) duty as a citizen, to secure the protection of the property of the good citizens of Durango from fire. He alleges that the house which the defendant desired him to burn was situate within 25 feet of other houses, to which the fire was liable to be communicated. The defendant, in justification of the statement charged to have been made to Joe Prewett, alleges that the latter was, at the time, a member of the firm of Prewett & Prewett, insurance agents, doing a general insurance business in the city of Durango, and that this firm had placed a large amount of insurance for plaintiff upon his house with companies for which they were acting as agents, and that the communication was so made to Mr. Prewett in confidence in order to protect the companies which held such insurance. The defendant denies that he ever communicated the alleged slanderous words to William Bacon, or to any other persons, as complained of in the first cause of action. For a third defense to the first cause of action to defendant avers the truth of the statements therein charged. For a second and further defense to plaintiff's second cause of action the defendant alleges that the publication complained of is true in fact. Among other defenses, it is averred that certain statements made by the defendant at other times were privileged, as they were made while the defendant was a witness upon the stand, duly sworn to testify the truth, etc., in an action then pending before a certain justice of the peace, in which J. Corey was plaintiff and A. Hazy was defendant. The new matters set up in the answers are denied in the replication, and upon these issues the case was tried to the court and jury. At the conclusion of plaintiff's evidence, upon motion of the defendant, a judgment of nonsuit was entered. From this judgment the plaintiff brings the case here by error.

T. J. Jackson and John Hipp, for plaintiff in error.

Miller & Reese, for defendant in error.

HAYT C.J. (after stating the facts).

The judgment in this case does not sound in damages, and the controversy does not relate to a franchise or freehold; hence the jurisdiction of this court is invoked solely upon the ground that the construction of a provision of the state constitution is necessary to the determination of the case. The claim of the plaintiff in this respect is that in all suits and prosecutions for libel the cause must be submitted to the jury, the court being prohibited, as it is said, by section 10 of article 2 of the state constitution, from entering a judgment of nonsuit in this class of actions. The section reads as follows: 'Sec. 10. That no law shall be passed impairing the freedom of speech; that every person shall be free to speak, write or publish whatever he will on any subject, being responsible for all abuse of that liberty and that in all suits and prosecutions for libel, the truth thereof may be given in evidence, and the jury, under the direction of the court, shall determine the law and the facts.' The history of this constitutional provision shows beyond question that the power conferred upon the jury to determine the law, in cases of libel, is given for the protection of the defendant, and not to aid a plaintiff. It is the result of the argument made by Lord Erskine, more than 200 years ago, in defense of the dean of St. Asaph, charged with seditious libel, and is founded upon the necessity of maintaining the liberty of the press. The speech, which is a model of forensic eloquence, is reported in full, with the proceedings of the case, in 21 How. St. Trials, 847, the case occupying 200 pages. This effort of Erskine in behalf of freedom of the press resulted in the adoption by parliament of the libel bill of 1792, known as the 'Fox Libel Act,' which is given in full at page 665 in the first American edition of Mr. Odgers' work on Libel and Slander, prepared by Mr. Bigelow. The preamble of this act shows it to have been passed...