Ling v. Whittemore

• Decision Date: 14 September 1959
• Docket Number: No. 18354,18354
• Citation: 140 Colo. 247,343 P.2d 1048
• Parties: Alfred C. LING, Plaintiff in Error, v. Willie WHITTEMORE, Defendant in Error.
• Court: Colorado Supreme Court

Page 1048

343 P.2d 1048

140 Colo. 247

Alfred C. LING, Plaintiff in Error, v. Willie WHITTEMORE, Defendant in Error.

No. 18354.

Supreme Court of Colorado, En Banc.

Sept. 14, 1959.

Gaunt & Byrne, Lysle R. Dirrim, Brighton, for plaintiff in error.

Philip G. Collins, Francis R. Salazar, Denver, for defendant in error.

DOYLE, Justice.

The plaintiff in error, who will be herein referred to as Ling, seeks review and reversal of a judgment of the district court entered upon a jury verdict awarding defendant in error, who was plaintiff in the district court and who will be herein referred to as Whittemore, $3,000 of which $1,500 was actual and $1,500 exemplary damages. The claim was in defamation and originally alleged that the defendant had perpetrated the defamation by a writing. This theory was changed at the trial and the case was submitted to the jury on the plaintiff's theory that the defendant had slandered him. The controversy arose from the unauthorized taking by Whittemore of a vehicle which was then owned by Ling, and as a result of the efforts of Ling to recover it.

In May, 1954, Whittemore was hired as a salesman by Ling, who was then an automobile dealer in Brighton, Colorado. In connection with this employment, Whittemore purchased an automobile from Ling and paid $100 down and agreed to pay the balance in monthly installments starting on June 18, 1954. The chattel mortgage executed by Whittemore to Ling was assigned by the latter to the General Credit Corporation. Whittemore was discharged on September 23, 1954, and following his discharge the automobile was repossessed by the General Credit Corporation, Whittemore having failed to make the September 18th payment. General Credit then assigned the vehicle back to Ling, who had agreed to repurchase in the event of default. Ling executed a note and chattel mortgage to General Credit in the amount of $1,859.38. On September 28, 1954, General Credit applied for a certificate of title and on October 18 assigned this to Ling. On September 30, 1954, after possession of the vehicle had been given to Ling and after his execution of the note and chattel mortgage to General Credit, Whittemore, in company with a Mr. McKinney, went to the defendant's place of business and asked for his license plates. Under the pretext of showing the automobile to McKinney, Whittemore entered it, locked the doors and drove off. Ling immediately followed him and Whittemore drove from Brighton to Henderson and, after he had attached the license plates, drove to Longmont, Colorado, where he remained until October 6 and then returned to his residence near Henderson. The car was repossessed following his return. Ling meanwhile searched the immediate neighborhood in an effort to find the car and while doing so talked to a Mrs. Donna May Bromley, the plaintiff's landlady. In seeking the aid of Mrs. Bromley in locating the car, Ling told her that 'He (Whittemore) had taken a car from his lot, had stolen a car from his lot--had stolen his car from his lot.' The alleged slander stems from this statement. Ling's contentions are:

1. That the court erred in its refusal to hold that plaintiff was guilty under the undisputed facts of stealing an automobile and in its refusal to rule that the statement of Ling was therefore true and a complete defense to the action.

2. That the court erred in failing to rule that the occasion was conditionally privileged and in its refusal to instruct the jury on conditional and qualified privilege.

3. That the court erred in allowing Whittemore to amend his complaint during the course of the trial to change his theory from libel to slander so as to rely upon a transaction different from that set forth in the pleadings.

The determinative question in the case is whether the facts adduced at the trial establish that the occasion was one of conditional or qualified privilege. Denver Public Warehouse Co. v. Holloway, 34 Colo. 432, 83 P. 131, 3 L.R.A.,N.S., 696; Melcher v. Beeler, 48 Colo. 233, 110 P. 181; Bereman v. Power Publishing Co., 93 Colo. 581, 27 P.2d 749, 92 A.L.R. 1024 and Hoover v. Jordan, 27 Colo.App. 515, 150 P. 333 all recognize that, depending upon the circumstances, one has a privilege to communicate in good faith printed or written matter to another notwithstanding that it is defamatory where the publisher is promoting a legitimate individual, group or public interest. In the Denver Public Warehouse Co. case [34 Colo. 432, 83 P. 132], quoting from Newell on Slander and Libel, the Court said:

'* * * 'A privileged communication is an exception to the rule that every defamatory publication implies malice. A qualified privilege is extended to a communication made in good faith upon any subject-matter in which the party communicating has an interest, or in reference to which he has a duty either legal, moral or social, if made to a person having a corresponding interest or duty, and the burden of proving the existence of malice is cast upon the person claiming to have been defamed. * * * 'The theory of privilege in connection with the law of defamation involves a variety of conditions of some nicety, and also a doctrine not always of easy application to a set of facts, and, such being the case in any trial, whether civil or criminal, while the questions of libel or no libel, malice or no malice are matters of fact for the jury, the question of privilege or no privilege is entirely one of law for the judge. That is to say, it is exclusively for the judge to determine whether the occasion on which the alleged defamatory statement was made was such as to render the communication a privileged one. The jury, however, will be the proper tribunal to determine the question of express malice, where evidence of ill will is forthcoming; but, if, taken in connection with admitted facts, the words complained of are such as must have been used honestly and in good faith by the defendant, the judge may withdraw the cause from a jury and direct a verdict for the defendant.'''

It was there held that an officer of a corporation was in the exercise of a privilege when he wrote a letter to the manager of the company warehouse accusing an employee of thefts.

The Melcher case, supra [48 Colo. 233, 110 P. 184], upheld the qualified privilege in connection with the writing of defamatory letters in response to character inquiries. Here the Court said:

'* * * Every one owes it as a duty to his fellowmen to state what he knows about a person, when inquiry is made; otherwise, whether or not men were honest could not be ascertained except by experience. But for such inquiries it would often occur that parties about to enter into business relations with others would be unable to ascertain in advance their character with respect to integrity or capability. The interest of society demands and requires that inquiries may be made respecting such matters, and that answers thereto may be given without subjecting the party answering such inquiries to an action for libel or slander, for the opinion furnished in response to such inquiries; hence, where a party to whom an inquiry is addressed regarding another communicates bona fide without malice to the person making inquiry facts regarding the person inquired about, it is a privileged communication; and so it follows that a party is justified in giving his opinion in good faith of the integrity and standing of a tradesman in answer to an inquiry concerning him.--Townsend on Slander and Libel, § 241-a; Rude v. Nass, 79 Wis. 321, 48 N.W. 555, 24 Am.St.Rep. 717; Denver Public Warehouse Co. v. Holloway, 34 Colo. 432, 83 P. 131, 3 L.R.A.,N.S., 696; Harrison v. Bush, 5 Ellis & Blackburn 344.'

In the Bereman case a labor newspaper called plaintiff and others 'labor spies' as a result of activity on the part of plaintiff seeking to persuade customers of a union laundry to patronize a non-union laundry. In holding that this was qualifiedly...