Melcher v. Beeler

• Decision Date: 02 May 1910
• Citation: 48 Colo. 233,110 P. 181
• Parties: MELCHER et al. v. BEELER et al.
• Court: Colorado Supreme Court

110 P. 181

48 Colo. 233

MELCHER et al. v. BEELER et al.

Supreme Court of Colorado

May 2, 1910

On Petition for Rehearing July 5, 1910.

Appeal from District Court, City and County of Denver; F. T Johnson, Judge.

Action by John F. Beeler and another against L. L. Melcher and another. Judgment for plaintiffs, and defendants appeal. Reversed and remanded.

Stokes & Sherman, for appellants.

John W Helbig and R. D. Rees, for appellees.

GABBERT J.

Appellees as plaintiffs, brought an action against the appellants, as defendants, to recover damages resulting from alleged libelous letters and publications which, it was charged, the defendants had composed and published of and concerning them. The complaint contained three counts. The first was withdrawn from the consideration of the jury. On the remaining two a verdict was returned in the sum of $1,000, in favor of the plaintiffs, on which judgment was subsequently entered. From this judgment the defendants have appealed.

The verdict of the jury was to the effect that they found the issues for plaintiffs on the second and third causes of action, and assessed their damages in the sum of $1,000. On behalf of the defendants it is claimed this verdict of erroneous, for the reason that it does not appear what amount was assessed in the way of damages upon each of the two causes separately. In support of this contention it is urged that as the jury failed to designate separately the damages assessed upon each cause of action, it is impossible to tell whether or not the damages returned were determined by the unanimous verdict of the jurors. Whether or not there is any merit in this contention is not properly here for our consideration. No such objection or exception was taken to the verdict of the jury at the time it was rendered; neither was the question now presented raised in the trial court by a motion for a new trial. The general rule applicable is that a question not presented for the determination of the trial court will not be considered for the first time on appeal. If counsel for defendants were dissatisfied with the verdict for the reasons which they now assign, they should have called the attention of the trial court to its alleged defects by the objection which they now urge upon our attention. When counsel neglect to point out alleged errors occurring at the trial in such time and manner as will afford the trial court an opportunity for their correction, they will not, as a general rule, be heard to complain of such errors in a court of review. D. & R. G. v. Ryan, 17 Colo. 98, 28 P. 79.

Plaintiffs were copartners doing business under the firm name and style of the Colorado-Texas Commission Company, and were engaged in carrying on a general commission business in the city of Denver, and in buying and selling and otherwise disposing of consignments of produce as wholesale commission merchants. At the trial the plaintiffs offered, and the court admitted, in evidence, over the objections of the defendant, two letters reflecting upon the business integrity of the plaintiffs, which were not counted upon in the complaint as constituting libels for which damages were claimed. Prior and contemporaneous publications of similar import to those for which damages are claimed in an action for libel are competent to show malice; hence, in the case at bar, the letters objected to were competent for that purpose, and the general objection to their admission was properly overruled. They were admitted, however, without any caution to the jury to the effect that they could only be considered on the question of malice. Counsel for the defendants at the time the letters were introduced made no request for a cautionary instruction limiting the purpose for which the letters were competent; but, notwithstanding this omission upon their part, we think the better practice is that when testimony is competent only for some particular purpose, that the court should so advise the jury at the time of its introduction; but by this suggestion we must not be understood as holding that it is error for the court not to do so, when counsel objecting to its reception failed to make a request of the court to advise the jury for what purpose it is competent. We notice the omission in this instance, for the purpose of bringing out more clearly the error which the court committed in giving instruction No. 14.

This instruction was to the effect that when language is used concerning merchants which, from its nature, will, as its natural and proximate consequence, occasion them a pecuniary loss, its publication constitutes prima facie a cause of action for which general damages may be recovered, without any evidence of damage other than that which is implied from the fact of publication. The instruction then proceeds as follows: 'The law does not restrict you to any calculation of damages done in the way of dollars and cents, or to a calculation of damages on a pecuniary basis, but you are at liberty in determining this question to award the plaintiffs, if entitled to recover herein, such damages as, in the exercise of your reasonable judgment, under all the evidence in the case, you may think the plaintiffs should have by way of compensation for the injuries done to them in their capacity as merchants or traders, not exceeding, however, the amount demanded in the respective counts of the complaint herein.'

It will be observed that the instruction fails to caution the jury not to increased the damages on account of the letters to which objections were interposed, and advised that such damages may be assessed as, in their judgment, from all the evidence, the plaintiffs should have for the injury suffered by them in their capacity as merchants and traders. For the purpose of showing malice, the letters under consideration were competent, but no damages for their publication could be awarded, because none were claimed on that account. They were only proper to consider in determining whether or not the letters, which were charged to be libelous and declared upon in the complaint, were actuated by malice of the defendants towards the plaintiffs, but not in aggravation of damages. Bearsley v. Bridgman, 17 Iowa 290. No such caution was given the jury; and when they were told that language concerning merchants and traders calculated to occasion them a pecuniary loss as the result of its publication constitutes a cause of action for which general damages may be recovered, followed with the further statement to the effect that in awarding damages they were at liberty to award such sum as, in their judgment, from all the evidence in the case, they might think the plaintiffs should have by way of compensation for the injury done to them in their capacity as merchants and traders, it is evident that they could consider the letters for which no damages were claimed as causing injury which they could take into consideration, in estimating the sum which should be awarded the plaintiffs. In other words, under this instruction, in the absence of any caution to the jury at the time the letters were received directing their attention to the fact that they could only be considered for the purpose of determining whether or not the defendants were actuated by malice in publishing the letters declared upon, or any instruction, limiting their effect to this one question, the jury, in estimating damages, were at liberty to take into consideration all four of the letters, instead of limiting them to those set up in the complaint. This was erroneous, for the simple reason that it is error to so instruct a jury as to permit them to consider matters in estimating damages which cannot be considered for that purpose. Letton v. Young, 2 Metc. (Ky.) 558; Taylor v. Moran, 4 Metc. (Ky.) 127.

On behalf of the plaintiffs it is urged that as the instruction correctly stated what would constitute a libel against merchants, and also stated correctly that damages for such libel are not restricted to a calculation of damages on a pecuniary basis, that a general exception thereto was not good, because it did not designate what was incorrect by separating it from that which was correct. The rule that when an instruction embraces several distinct propositions of law, some of which are correct, a general exception to the whole instruction is not good, does not apply where the instruction authorizes the wrong application of that which is correct. In the case at bar, conceding that the portions thereof referred to by counsel for plaintiffs are correct, it authorizes the jury, in estimating damages, to consider letters which could not be considered for that purpose.

It is further urged by counsel for plaintiffs that inasmuch as the court, by previous instructions, stated in substance that the second and third causes of action were based upon the letters described therein, the jury understood that they were limited in estimating damages to these letters. The suggestion is not tenable. By one instruction the jury were told that the plaintiffs seek to recover upon certain letters; by the other, all letters could be taken into consideration in estimating damages.

It is also urged by counsel for plaintiffs that if defendants desired an instruction to the effect that the letters which were only competent for the purpose of establishing malice could not be considered as substantive grounds for damages it was the duty of their counsel to have tendered a correct instruction on that point. In the circumstances of this case, that proposition is clearly untenable, for the obvious reason that it would impose upon counsel, where the court had given an erroneous instruction, the burden of tendering a correct one; otherwise, they would be precluded from...