Meeker v. Post Printing & Pub. Co.

• Decision Date: 07 April 1913
• Citation: 135 P. 457,55 Colo. 355
• Court: Colorado Supreme Court
• Parties: MEEKER v. POST PRINTING & PUBLISHING CO.

135 P. 457

55 Colo. 355

MEEKER v. POST PRINTING & PUBLISHING CO.

Supreme Court of Colorado

April 7, 1913

On Petition for Rehearing, October 6, 1913.

Error to District Court, City and County of Denver; Greeley W Whitford, Judge.

Action by Rozene E. Meeker against the Post Printing & Publishing Company. Judgment for defendant, and plaintiff brings error. Reversed and remanded.

Robert H. Kane and Dan B. Carey, both of Denver for plaintiff in error.

John T Bottom, of Denver (Milnor E. Gleaves, of Denver, of counsel), for defendant in error.

HILL J.

The plaintiff in error charges the defendant with libel, which alleged libelous articles were set out in full in the complaint, wherein it was alleged that the defendant, well knowing the premises, willfully, wickedly, falsely, maliciously, and with a wanton and reckless disregard of the rights and feelings of the plaintiff, thus published in its newspaper and circulated these libelous articles, and that they were false, scandalous, defamatory, libelous statements and matter of and concerning the plaintiff. By answer the defendant admits that the articles were by it published and circulated as alleged, but denies that it was with malice towards the plaintiff or any other person. It further alleges that the statements made in the articles were true. The verdict and judgment were for the defendant. The plaintiff brings the case here for review.

The articles set forth in the complaint, and by the answer admitted to have been published and circulated, come within the rule announced by this court in Republican Pub. Co. v. Mosman, 15 Colo. 399, 24 P. 1051, and for the reason therein stated are libelous per se. In such case, without any allegation or proof of special damages, the plaintiff is entitled to compensatory damages, unless the defendant alleges and proves the truth of the charges published. The Republican Pub. Co. v. Mosman, supra; Melcher v. Beeler, 48 Colo. 233, 110 P. 181, 139 Am.St.Rep. 273; Lehrer v. Elmore, 100 Ky. 56, 37 S.W. 292.

These publications, in part, stated that certain libelous charges, naming them, were made and set forth in a complaint and certain affidavits filed in a civil suit then pending against this plaintiff. The publication of the contents of these papers was before trial, and before any action had taken place on such pleadings or papers; in such cases it appears to be conceded that the publications were in no sense privileged. 25 Cyc. 404; Republican Pub. Co. v. Conroy, 5 Colo.App. 262, 38 P. 423; Park v. Detroit Free Press Co., 72 Mich. 560, 40 N.W. 731, 1 L.R.A. 599, 16 Am.St.Rep. 544; Barber v. St. Louis Dispatch Co., 3 Mo.App. 377; Cowley v. Pulsifer, 137 Mass. 392, 50 Am.Rep. 318.

Where the publication is not privileged, the rule is that, where the libelous article is published as being alleged in the complaint, it is not sufficient as a defense to show that it was thus alleged; but the truth of the charge must be shown. Republican Pub. Co. v. Miner, 3 Colo.App. 568, 34 P. 485; Starkie on Slander and Libel, 278; Townshend on Slander and Libel (4th Ed.) § 210; Odgers on Libel and Slander, pp. 161-172; Jones, Varnum & Co. v. Townsend's Adm'x, 21 Fla. 431, 58 Am.Rep. 676; Powers v. Skinner, 1 Wend. (N.Y.) 451; Dement v. Houston Printing Co., 14 Tex.Civ.App. 391, 37 S.W. 985; Evans v. Smith, 5 T. B. Mon. (Ky.) 363, 17 Am.Dec. 74; Cooley on Torts (2d Ed.) p. 220. None of these rules appear to be seriously controverted; we announce them simply as the shortest way to reach the assignments which necessitate a reversal of the judgment.

Section 75, Revised Code 1908, provides in actions for libel or slander that the defendant may in his answer allege both the truth of the matters charged as defamatory and any mitigating circumstances to reduce the amount of damages, and whether he prove the justification or not he may give in evidence the mitigating circumstances. Under Code provisions like ours, it is held that justification and mitigating circumstances are new matter to be pleaded in the answer. Bliss on Code Pleading (3d Ed.) §§ 361-363; 13 Ency. of Pl. & Pr., p. 77; McKane v. Brooklyn Citizen, 53 Hun, 132, 6 N.Y.S. 171; Fry v. Bennett, 16 N.Y.S. Ct. 201; Mielenz v. Quasdorf, 68 Iowa 726, 28 N.W. 41.

Likewise, the general rule is in specially pleading mitigating circumstances that the answer should state the facts on which the mitigation is predicated. 25 Cyc. 464; Fenstermaker v. Tribune Pub. Co., 13 Utah 532, 45 P. 1097, 35 L.R.A. 611; Knox v. Commercial Agency, 40 Hun (N.Y.) 508.

It will be observed that the defendant, while pleading the truth of the matters alleged, does not plead any mitigating circumstances, unless the denial in its answer that it was published with malice toward the plaintiff or any other person constitutes such a plea. As to this allegation, where the article is libelous per se, it has repeatedly been held, in which we concur, that when standing alone it fails to constitute a defense. 25 Cyc. 457; Fenstermaker v. Publishing Co., 13 Utah 532, 45 P. 1097, 35 L.R.A. 611; Bliss on Code Pleading (3d Ed.) § 360. The denial of malice does not constitute a good plea in mitigation of damages; it sets forth no allegation of facts as required by our Code and held by all the authorities necessary in order to make up such an issue. One reason for the rule requiring a defendant to plead his facts in mitigation of damages is that the plaintiff may be advised as to what facts the defendant relies upon as his defense in that respect, and in order that issues may be framed thereon so as to prevent surprise at the trial concerning the facts which the defendant intends to prove in order to sustain this defense. It is based upon the same necessity which requires written pleadings in all cases in courts of record. Rocky Mountain News v. Fridborn, 46 Colo. 440, 104 P. 956, 24 L.R.A. (N. S.) 891.

It will thus be observed that the answer contains but one defense that is the truth of the articles published, which was done without malice, etc. Regardless of this the court, over the plaintiff's objections, admitted evidence to establish that similar articles had been published in other newspapers, also, a long line of hearsay testimony, which, at best, would also tend to establish that such rumors were in circulation in the community, and that certain persons had told other persons that they had heard such facts existed. These alleged libelous articles pertained in part to the treatment, at her hands, of the plaintiff's mother. The testimony of a brother and others as to what the mother told them was admitted; also the testimony of certain newspaper reporters as to what the neighbors in the vicinity had told them they knew or had heard concerning the transaction. The complaint filed in the district court of Weld county in the original suit, to which the publications in part referred, was admitted in...