Republican Pub. Co. v. Mosman

• Decision Date: 03 October 1890
• Citation: 15 Colo. 399,24 P. 1051
• Parties: REPUBLICAN PUB. CO. v. MOSMAN.
• Court: Colorado Supreme Court

24 P. 1051

15 Colo. 399

REPUBLICAN PUB. CO. v. MOSMAN.

Supreme Court of Colorado

October 3, 1890

Appeal from district court, Larimer county. On rehearing.

The facts necessary to an understanding of the opinion are as follows: In December, 1885, appellee, Frank J. Mosman plaintiff below, was engaged in mercantile business, in the city of Ft. Collins, Larimer county, Colo., and appellant the Republican Publishing Company, defendant below, was a corporation, and the owner, proprietor, and publisher of a certain newspaper having a circulation in said city of Ft Collins. On December 29, 1885, the defendant published in its said newspaper the following article of and concerning the plaintiff: 'Inhuman, if true. A case of cruelty which should be carefully investigated. Special to the Tribune-Republican. Fort Collins, Colorado, December 28. Last fall, F. J. Mosman and family, consisting of a wife and one child, came to Fort Collins from some place near Buffalo, New York. Mr. Mosman was troubled with weak lungs, and by the advice of relatives he selected Colorado as the place where his disease would in a measure be cured. His wife, as beautiful young woman but 20 years old, cheerfully left the home of her childhood and relatives, and came with him because she was told that his lung trouble would be relieved by the change. Shortly after their arrival a second child was born, and all was supposed to be cheerful in the household by those with whom an acquaintance had been formed, until within a few days past, since which time it has developed that the husband is in the habit of abusing his young wife. Mosman, shortly after coming here, bought out a shoe dealer on Linden street, and has since conducted the business, receiving a fair share of the trade. The first that was known of the mistreatment of his wife was a few days since. She called on a near neighbor and endeavored to sell a portion of the furniture out of her house, saying that 'Fred [her husband] failed to keep enough fuel at home to keep her warm.' The neighbor declined to buy, as she had no room for more furniture, and asked her how the babe was getting along. The inquiry brought the tears to the eyes of the young wife, who said, 'Jud took the babe away three days since, and has not returned it yet. He took it down to his mother's, and when he went away he said he would never come back again, nor ever let me see the babe again.' She was completely overcome with grief, and nearly crazy at the condition in which she was placed; and all this time her husband was at his store in a happy frame of mind over the game which he was playing on his poor, defenseless wife at home, who dared not leave the house, as he thought, she being a stranger in the locality in which she lived. As soon as the husband found that some of the neighbors had become interested in his wife's condition, he made overtures towards a reconciliation, which was effected, the poor wife being nearly frantic over the loss of her child, and willing to make any concessions in order to have it with her again. But the reconciliation was only a sham, for he immediately called upon those to whom his wife had told her pitiful tale, and made all efforts to impress upon their minds that his wife is crazy, and her ravings are not to be noticed. But his efforts in that direction were not crowned with success, and he received but little sympathy and considerable condemnation from all to whom he appealed. Nothing daunted, and with a zeal worthy of a better cause, he returned to his home, telling his wife, 'I have just been to call upon our friends, and have fixed them so that they will have nothing more to do with you,' after which he employed a prominent physician to visit his wife and examine her with a view of having her incarcerated in the insane asylum, as being of unsound mind, and unfit to have charge of her children. The physician made the visit, and declares that the poor woman's mind is in an unsettled condition, and that he doubts not that incarceration in an insane asylum would be a great relief and a benefit to her.' The plaintiff brought suit against defendants for publishing said article, alleging damages generally in the sum of $10,000. The cause was tried by a jury, who returned a verdict in favor of the plaintiff for the sum of $775. Motions for a new trial and in arrest of judgment were overruled, and judgment was entered on the verdict in favor of the plaintiff. Defendant brings this appeal.

L. B. France, for appellant.

Clark & Davidson, T. M. Robinson, and E. A. Ballard, for appellee.

ELLIOTT J., ( after stating the facts as above.)

The publication by defendant of the article complained of at the time and place alleged in the complaint not being denied, proof of such publication was, by a familiar rule of practice, unnecessary at the trial. The statement in the answer that defendant did not wickedly, etc., intending to injure, etc., publish the supposed defamatory libel, is not a denial of the publication, but merely a denial of malicious intent in publishing. The answer, however, not only denies that defendant was actuated by malice in publishing, but denies that the article was either scandalous or libelous. The answer also alleges that the matters published of and concerning the plaintiff were of current and common report before the publication thereof by defendant, and that said matters were and are true. The reply denies that such reports and rumors were current, etc., and denies that the same, or any of them, are or ever were true. The assignments of error cover a wide range, and raise important questions upon the law of defamation. The argument of counsel in support thereof is original and comprehensive, and, in some instances, most radical views are expressed. That some changes have been made in the law relating to libel and slander by modern legislation, notably in matters of pleading and practice, is well understood, and that much light has been gained from modern decisions and authors evincing growth in this as in other branches of our jurisprudence, will be readily conceded. But on this appeal, as in other cases, it is the province of this court simply to ascertain and announce the law as we find it, so far only as the same is applicable to the questions properly presented by the record. At the outset it is contended by counsel for appellant that the article complained of is not libelous per se, and not actionable, unless its publication has occasioned special damages to plaintiff, and that such special damages must be alleged and proved to warrant a recovery; that, inasmuch as special damages are not alleged, the complaint does not state facts sufficient to constitute a cause of action; and that defendant is entitled to judgment thereon in its favor in any event. If the premises thus stated by counsel for appellant be granted, the logic of his argument would seem to be unanswerable, and the conclusions inevitable. To render a publication libelous per se, appellant's counsel in his brief claims the common-law rule to be: 'The words must contain an express imputation of some crime liable to punishment,--some capital offense or other infamous crime or misdemeanor.' It is conceded that the Criminal Code (Rev. St. 1868, c. 22, § 121) gives a definition of libel as a crime or misdemeanor different from the foregoing; but it is insisted that, for the purpose of a civil action, defamatory words, either oral or written, to be libelous per se, must fall within the limits of the common-law rule, as above stated. As the rule thus contended for lies at the foundation of appellant's first assignment of error, let us test it by the authorities of the common law, and the light of reason and experience.

The cases relied on by counsel for appellant to support the view that defamatory words are not actionable per se unless they contain an express imputation of some crime liable to punishment, are cases of mere oral slander, and do not sustain the theory that oral and written defamation are subject to the same rules in determining what words are or are not actionable per se. The case of Onslow v. Horne 3 Wils. 186, decided in 1771, in which Lord Chief Justice DE GREY laid down the rule above quoted from appellant's brief, was an action for words spoken, and no allusion is made to a case of written slander. The same is true of the case of Brooker v. Coffin, 5 Johns. 188, a case much relied on by appellant. It is worthy of special note that in the case of Steele v. Southwick, 9 Johns. 214, a case of libel, the same court draw the distinction between oral and written slander. It is true, an occasional text-writer has given some countenance to the theory of appellant, above stated, as being reasonable and logical, but none have been bold enough to declare the same to be the law. The following quotations from standard authors show clearly what the law is upon the subject. Chancellor Kent, in his Commentaries, (volume 2, p. 16,) speaks as follows: 'As a part of the right of personal security, the preservation of every person's good name from the vile arts of detraction is justly included. The laws of the ancients, no less than those of modern nations, made private reputation one of the objects of their protection. The Roman law took a just distinction between slander spoken and written; and the same distinction prevails in our law.' In Starkie, on Slander and Libel, (page 39,) it is said: 'The law * * * makes that to be actionable without special damage, when it is written or printed, which would not have been deemed actionable had it been merely spoken.' And, again: 'Whatever tends to lower and degrade a man's moral character in society, or to expose him to contempt and ridicule, is criminal, if it be...