McKenzie v. Denver Times Pub. Co.

• Decision Date: 09 October 1893
• Citation: 3 Colo.App. 554,34 P. 577
• Parties: McKENZIE et al. v. DENVER TIMES PUB. CO.
• Court: Colorado Court of Appeals

34 P. 577

3 Colo.App. 554

McKENZIE et al. v. DENVER TIMES PUB. CO.

Court of Appeals of Colorado

October 9, 1893

Error to district court, Arapahoe county.

Action by M.C. McKenzie and Henry Leopold, copartners as the McKenzie Lumber Company, against the Denver Times Publishing Company. Judgment for defendant, and plaintiffs bring error. Reversed.

Reddin & O'Hanlon, for plaintiffs in error.

Benedict & Phelps, for defendant in error.

THOMSON J.

This is an action for libel, brought by McKenzie and Leopold against the Denver Times Publishing Company. The complaint charges that the plaintiffs were copartners, doing business in Denver, Colo., under the firm name of the McKenzie Lumber Company, as lumber merchants and tradesmen, engaged in buying and selling lumber at wholesale and retail in the state of Colorado and other states and territories. That the defendant was a corporation organized under the laws of the state of Colorado, and, as such, was the publisher and proprietor of the Denver Times, a daily newspaper published in Denver, and of general and large circulation in Colorado and other states and territories. That on the 22d of September, 1891, the defendant published in its said newspaper, of and concerning the plaintiffs in their trade and business, the following false and libelous matter "Business Changes. McKenzie Lumber Company, Denver Attached." There was no allegation of special damage. When the case came on for trial the plaintiff McKenzie was sworn as a witness, and had testified to the copartnership and business of the plaintiffs, when the defendant interposed a motion to exclude all further evidence for the plaintiffs on the ground that the complaint did not state facts sufficient to constitute a cause of action, because the words set forth were not libelous per se, and, no special damage being alleged, the plaintiffs were not entitled to a recovery. The court sustained the motion, and instructed the jury to render their verdict for the defendant, which was done accordingly.

The ruling of the court in sustaining the motion, and giving the instruction, presents the only question which we are called upon to determine in the case. Were the published words actionable per se? We are of the opinion that they were. The law has special regard for the credit of merchants and traders, and words which impute to them insolvency, financial difficulty or embarrassment, or dishonesty or fraud, are actionable in themselves, without the necessity of alleging or proving special damages. Upon this proposition the authorities are unanimous. Townsh.Sland. & L. 273, 276; Newell, Sland. & L. 192, 195; Odgers, L. & Sland. 30. The courts in a variety of instances have applied this general doctrine to particular cases, a few of which we shall notice. The words, "Joseph Hermann, brick maker, is in the hands of the sheriff," were held actionable per se. Hermann v. Bradstreet Co., 19 Mo.App. 227. In Mott v. Comstock, 7 Cow. 654, the defendant, speaking of a certain sum of money then due and owing from the plaintiff, a merchant, to one Matthew Harris, said: "There is poor Harris; it is hard for him to lose his debt." These words were held actionable by the court, as implying that the plaintiff was insolvent, and unable to pay the debt. To say of a trader that his checks were dishonored is actionable. Townsh.Sland. & L. 275. In Sewall v. Catlin, 3 Wend. 292, the following words, spoken of the plaintiffs as merchants, in answer to the question, "Were there any failures yesterday?" "Not that I know of, but I understand there is trouble with the Messrs. Sewalls," were adjudged to be libelous per se. The learned judge, delivering the opinion of the court, says: "I am inclined to think the words were actionable in themselves, being spoken of the plaintiffs as merchants. The witness inquired of the defendant 'if there were any failures yesterday,' to which he replied, 'Not that I know of, but I understand there is trouble with the Messrs. Sewalls.' This answer in connection with the interrogation, was most obviously calculated to convey an injurious impression in relation to the mercantile standing and credit of the plaintiffs. The witness had heard of no failures, but he had heard that the Sewalls were in trouble. Every person would understand from this expression,...