Kendall v. Lively, 13376.
| Decision Date | 12 March 1934 |
| Docket Number | 13376. |
| Parties | KENDALL v. LIVELY. |
| Court | Colorado Supreme Court |
Rehearing Denied April 2, 1934.
In Department.
Error to District Court, Jefferson County; Samuel W. Johnson Judge.
Action by Clarence Lively against R. W. Kendall. Judgment for plaintiff, and defendant brings error.
Affirmed.
Boatright & Boatright, of Denver, for plaintiff in error.
Emory L. O'Connell and A. X. Erickson, both of Denver, for defendant in error.
Kendall was defendant below. Lively, as plaintiff, brought an action of slander against him in the district court and received a verdict for $200 actual damages and $275 exemplary damages. Judgment was duly entered on the verdict. The case is here for review.
The plaintiff was engaged in the business of producing and selling milk and operating a general dairy business in the town of Arvada and its vicinity. The defendant was in the business of buying milk from various persons, treating and selling it in the same territory. They were thus business competitors. Among the alleged slanderous utterances are words to the effect that the milk sold by the plaintiff was filthy, dirty, unhealthful and taken from filthy and unhealthy cows, and that it showed on analysis an extremely high bacterial count and a high count of B. Coli (so called). Other statements were along similar and equally objectionable lines concerning the business of the plaintiff. In fact, the expressions were such as to charge acts in violation of the state dairy commissioner act (C. L. 1921,§ 3072, amended by Sess. Laws 1923, p. 260, § 1). It is readily seen that these statements are actionable per se. See Newell, Slander and Libel (4th Ed.) §§ 129, 138, 154.
The assignments of error raise a number of questions.
1. The defendant claims the court erred in admitting evidence of allegedly defamatory words spoken by his employees, whereas the complaint charged them against himself. That method of pleading a tort committed by one through his agent is proper and permissible. 39 C. J. p 1352, § 1576; Erisman v. McCarty, 77 Colo. 289, 292, 236 P. 777, 779. The acts of servants or agents are then the acts of the master or principal. Newell, § 330. The evidence is clear to the effect not merely that the employees were acting within the scope of their employment, but that the defendant authorized, instigated, and ratified the alleged slanders. Hence there was no error in regard to the point raised.
2. It is said that the complaint does not state facts sufficient to constitute a cause of action, that there is a fatal variance between pleadings and proof, and that the evidence fails to establish a cause of action. We think the pleadings are adequate and the proof ample. Because of what we have said above about holding a principal for the slander emanating from his agent, we find no variance.
3. The contention is put forth that the actual damages awarded are unreasonable, unconscionable, and excessive for the reason that there was no proof of damage. Where words are actionable per se, which is the case here, injury is presumed without the pleading or proving of special damage, and a plaintiff is entitled to general damages as a matter of course. These are recoverable by inference of law and require no...
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Sunward Corp. v. Dun & Bradstreet, Inc.
...of presumed general damages is difficult at best and unavoidably includes an element of speculation. See Kendall v. Lively, 94 Colo. 483, 31 P.2d 343, 344 (1934) (presumed damages "are recoverable by inference of law and require no evidence." (citing Newell, Slander and Libel Sec. 721 (4th ......
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Williams v. District Court, Second Judicial Dist., City and County of Denver
...defamation per se, Stump v. Gates, 777 F.Supp. 808, 825 (D.Colo.1991), aff'd, 986 F.2d 1429 (10th Cir.1993); Kendall v. Lively, 94 Colo. 483, 485, 31 P.2d 343, 344 (1934); Hayes v. Smith, 832 P.2d 1022, 1024 (Colo.App.1991), cert. denied (July 20, 1992), the jury must still consider any act......
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...459, 45 P.2d 172 (1935) ($1,500.00 exemplary and $900.00 actual for personal injuries from concealed spring gun); Kendall v. Lively, 94 Colo. 483, 31 P.2d 343 (1934) ($275.00 exemplary and $200.00 actual for slander); Bullerdick v. Pritchard, 90 Colo. 272, 8 P.2d 705 (1932) ($700.00 exempla......
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...Per se where, in certain instances, damages are presumed. See Cinquanta v. Burdett, 154 Colo. 37, 388 P.2d 779 (1963); Kendall v. Lively, 94 Colo. 483, 31 P.2d 343 (1934); Kobey v. Eddy, 21 Colo.App. 140, 121 P. 948 (1912); McKenzie v. Denver Times Publishing Co., 3 Colo.App. 554, 34 P. 577......
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Rule 51 INSTRUCTIONS TO JURY.
...v. Brock, 22 Colo. App. 470, 125 P. 599 (1912). Instructions are to be read together and considered as a unified whole. Kendall v. Lively, 94 Colo. 483, 31 P.2d 343 (1934). In construing a charge, each instruction is to be considered in connection with the entire charge. Dozenback v. Raymer......
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ARTICLE 25 EVIDENCE GENERAL PROVISIONS
...of the master, where the defamatory words were spoken or published by the authority or with the consent of the latter. Kendall v. Lively, 94 Colo. 483, 31 P.2d 343 (1934). Evidence of pecuniary loss is unnecessary to a right of action for a libelous charge of attempt to commit murder. Repub......