Knapp v. Post Printing & Pub. Co.

• Decision Date: 11 October 1943
• Docket Number: 15070.
• Parties: KNAPP v. POST PRINTING & PUBLISHING CO. et al.
• Court: Colorado Supreme Court

144 P.2d 981

111 Colo. 492

KNAPP v. POST PRINTING & PUBLISHING CO. et al.

No. 15070.

Supreme Court of Colorado, En Banc.

October 11, 1943

Error to District Court, City and County of Denver; Robert W Steele, Judge.

Action by George J. Knapp against the Post Printing & Publishing Company and others for libel. Judgment of dismissal, and plaintiff brings error.

Affirmed.

George J. Knapp, pro se, for plaintiff in error.

Smith Brock, Akolt & Campbell and J. H. Shepherd, all of Denver for defendants in error.

GOUDY Justice.

This proceeding is here on writ of error for review of a judgment of the district court of the City and County of Denver dismissing the complaint of plaintiff in error, to whom we hereinafter refer as plaintiff.

December 6, 1940, plaintiff filed his complaint, pro se, against defendants in error, defendants below, hereinafter designated as defendants, for damages in a large amount arising out of their alleged libelous publication of certain statements regarding him in an issue of the Denver Post of September 9, 1940, plaintiff at that time being a candidate for nomination for governor of Colorado at the primary election to be held September 10, 1940.

After motions of defendants to strike and to make the complaint more specific, definite and certain, had been granted in part and denied in part, plaintiff filed a bill of particulars. Thereafter defendants filed their demurrer, based upon the grounds, inter alia, that the complaint did not contain or set forth facts sufficient to constitute a cause of action against them, or any of them; that the words alleged to be libelous were published on a privileged occasion; that the alleged libelous language is expressive only of the opinions of the defendants, and cannot be made the basis of a libel suit by innuendo or otherwise; that the alleged libelous publication is not actionable per se, and will not permit of the recovery of general damages in any event, and no element of special damage is alleged in the complaint; that the words alleged to be libelous must be interpreted according to their natural, ordinary and commonly-accepted meaning, and, so interpreted, they are harmless and impute no defamation of plaintiff, and such meaning cannot be changed by innuendo.

March 17, 1941, the trial court entered an order sustaining the demurrer, and it was further ordered that 'leave to amend the complaint will not be granted.' Judgment of dismissal followed in due course.

Our Code of Civil Procedure was still in effect March 17, 1941, and section 79 thereof provided, inter alia: 'After the demurrer, and Before the trial of the issue of law therein, the pleadings demurred to may be amended as of course, and without costs, by filing the same as amended, and serving a copy thereof on the adverse party, or his attorney, within ten days, * * *.' Construing this section, we stated in Barnard v. Moore, 71 Colo. 401, 207 P. 332, 335: 'We are of the opinion that under the Code, §§ 79 and 81, the plaintiff, after demurrer sustained, had a right to amend without leave.' In the instant case plaintiff waived his right to amend as of course by failing to file an amendment, and serve a copy thereof on the adverse party. McDonald & Co. v. Hallicy, 1 Colo.App. 303, 29 P. 24.

The published article of which complaint is made is:

'Be Sure to Vote Tuesday--Here are Marked Ballots to Help You.

'These marked ballots are published for the convenience of the voters in Tuesday's primary election. Cut out the ballot of your party and take it to the polls with you. It will help you in eliminating the worst * * * and in selecting the best candidates. In publishing these marked ballots The Denver Post is not trying to tell anybody how to vote. It is merely passing on to the voters the results of its investigation of the merits of the various candidates. Few voters know personally all the candidates. Few have an opportunity to check up for themselves on all the candidates. As a public service, the Post has investigated carefully the candidates on both, Democratic and Republican tickets. For the convenience of the voting public, The Post's conclusions are presented in the form of these marked ballots:

"Mark in this

Column

"For Governor

(Vote for one)

George E. Saunders Both

John A. Carroll Qualified

George J. Knapp

Plaintiff was the only candidate for nomination on either the Democratic or Republican tickets who was designated by the publication as not qualified, but other choices were shown by marking a cross after the preferred candidates.

Plaintiff complains of the orders of the district court on defendant's motion to strike and motion to make more definite and certain, but a review of the complaint and these motions and orders does not convince us that plaintiff was prejudiced by the rulings of the trial judge, nor that his complaint is weakened in the slightest degree thereby. It is unnecessary, however, to give any further consideration to assignments of error thereon, as the judgment is being affirmed on other grounds, and it would make no difference in this opinion had the complaint appeared here in its original form.

A definition of libel which has received general acceptance and approbation is to be found in 33 American Jurisprudence, page 38, section 3. It reads: 'A libel is a malicious publication, expressed either in printing or writing or by signs and pictures, tending either to blacken the memory of one who is dead, or the reputation of one who is alive, and expose him to public hatred, contempt, or ridicule.' See, also, 36 C.J. p. 1143, § 3. Criminal libel in Colorado is defined in section 199, chapter 48, '35 C.S.A., in almost identical words, as follows: 'A libel is a malicious defamation expressed either by printing, or by signs, or pictures or the like, tending to blacken the memory of one who is dead, or to impeach the honesty, integrity, virtue or reputation, or publish the natural defects of one who is alive, and thereby to expose him or her to public hatred, contempt or ridicule.'

'Words may be actionable per se, that is, in themselves, or they may be actionable per quod, that is, only on allegation and proof of special damage.' 33 Am.Jur. p. 39, § 5. It is difficult to ascertain from plaintiff's brief what his position is. In some places he contends that the words are libelous per se, in others that they are libelous per quod. In his complaint he has attempted to allege innuendoes which are unnecessary, if the words are libelous per se. 'Words which are libelous per se do not need an innuendo, and, conversely, words which need an innuendo are not libelous per se.' 33 Am.Jur. p. 40, § 5.

In Rocky Mountain News Printing Co. v. Fridborn, 46 Colo. 440, 104 P. 956, 959, we said:

'Every false article is not an actionable libel, just as every untruth is not a lie. To be an actionable libel, the elements to make it such must be present in the article itself, or fairly implied therefrom and the circumstances surrounding its publication. So, if the elements that constitute libel are clearly expressed in the article, it is actionable per se, and becomes conclusive upon the publisher, unless, under the circumstances, the words used were fairly capable of being understood in a special sense, rendering them not defamatory, and that they were so understood.

'The intent of the publisher and the effect of the publication must be gathered from the words and the circumstances under which they were uttered, and the publisher is prima facie presumed to have used them in the sense which their use is calculated to convey to the minds of the readers of the publication. When so construed, the words may be defamatory on their face, in which case the action may be maintained, unless the defendant can, and does, allege and prove that under the circumstances they were fairly capable of being understood in a special sense,

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