Republican Pub. Co. v. Conroy

• Citation: 5 Colo.App. 262,38 P. 423
• Parties: REPUBLICAN PUB. CO. v. CONROY. [1]
• Decision Date: 12 November 1894
• Court: Court of Appeals of Colorado

38 P. 423

5 Colo.App. 262

REPUBLICAN PUB. CO. v. CONROY. ^[1]

Court of Appeals of Colorado

November 12, 1894

Appeal from district court, Arapahoe county.

Action by John Conroy against the Republican Publishing Company. There was a judgment for plaintiff, and defendant appeals. Reversed.

L.B. France, for appellant.

L Walker and J.M. Washburn, for appellee.

THOMSON J.

The subject-matter of this action is the following publication concerning the appellee, made by the appellant in its newspaper, the Denver Republican: "In the Proper Place. John Conroy Jailed for Making Assaults on Little Girls. John Conroy was yesterday arrested by Detectives Ingersoll and Ustick for assault and battery. Conroy is one of the mean low-lived counterfeits on manhood who make a practice of enticing little girls from their homes, and then attempting assault. Two children, living at 935 and 945 Seventh avenue, on Tuesday, were decoyed by Conroy. He did not succeed in his dastardly purpose, being driven from it by the cries of the girls. Yesterday Conroy was identified by the girls' mothers, and his arrest followed." The defendant answered the complaint, denying its several allegations, averring that the published statements were true; that they were published in good faith, believing them to be true; and that they were privileged. Upon the trial of the cause the jury found a verdict in favor of the plaintiff for $1,500, and judgment was rendered upon the verdict, from which the defendant appealed.

If the publication was not privileged, it was clearly libelous; but the claim of privilege is made, and we shall examine it. If the writer had contented himself with giving the fact of the arrest and the charge upon which it was made, the claim of privilege would be entitled to consideration; but he proceeded upon his own responsibility to brand the plaintiff with an opprobrious epithet, and to assert him guilty of the most disgraceful and infamous of offenses. If the statements were false, the mere fact that the defendant believed them to be true does not justify their publication; and, giving the words the force and effect which were obviously intended, we do not understand upon what theory the claim of privilege can be made in their behalf. In White v. Nicholls, 3 How. 266, Daniel, J., classifies privileged communications as follows: (1) Publications made in the bona fide discharge of a public or private duty, legal or moral, or in the prosecution of the rights or interests of the author; (2) anything said or written by a master in giving the character of a servant who has been in his employ; (3) words used in the course of a legal or judicial proceeding; (4) publications duly made in the ordinary mode of parliamentary proceedings. It is only under the first of the foregoing classes that a claim of privilege can be made in this case. There is no special privilege attached to a newspaper as such, and nothing which would not justify an individual in his defamatory statements would justify it. It is evident that the article complained of was published as a matter of local news, and not in the discharge of any duty owed by the defendant to itself or others; and the publication was therefore not privileged. See Foster v. Scripps, 39 Mich. 376; Sheckell v. Jackson, 10 Cush. 25; Mallory v. Pioneer-Press Co., 34 Minn. 521, 26 N.W. 904.

Evidence was introduced by the defendant tending to prove the truth of the statements, and other evidence of a rebutting character was given in behalf of the plaintiff. Some questions are made upon the rulings of the court admitting and rejecting evidence, but we do not discover any error in these rulings of sufficient importance to warrant a reversal of the judgment.

Several instructions requested by the defendant were refused. Some of them did not correctly state the law, and were therefore properly refused; while those to which the defendant was entitled were substantially embraced in the instructions given. In a certain sense, it may be said that pecuniary loss is the gist of an action for libel because, in theory, the damages sustained are compensated in money; but it would have been misleading and erroneous to instruct...