Spears Free Clinic & Hosp. for Poor Children v. Maier, 16907

• Decision Date: 21 September 1953
• Docket Number: No. 16907,16907
• Parties: SPEARS FREE CLINIC & HOSPITAL FOR POOR CHILDREN v. MAIER.
• Court: Colorado Supreme Court

Page 489

261 P.2d 489

128 Colo. 263

SPEARS FREE CLINIC & HOSPITAL FOR POOR CHILDREN v. MAIER.

No. 16907.

Supreme Court of Colorado, en Banc.

Sept. 21, 1953.

Charles Ginsberg, George Louis Creamer, Denver, for plaintiff in error.

Van Cise & Van Cise, Denver, for defendant in error.

STONE, Chief Justice.

Plaintiff, Spears Free Clinic and Hospital for Poor Children, is a Colorado corporation not for profit, which operates a chiropractic clinic known as Spears Clinic, and a chiropractic sanitarium known as Spears Sanitarium. Defendant Maier is a physician. One Susia A. Bowers was received as a patient in the Spears Sanitarium on May 28, 1946, and remained there until the evening of June 3, 1946, when she was removed to a hospital where she was under the care of defendant. The day after such removal surgery was performed on her, following which she died. On June 7, 1946, the day of her death, defendant made out and signed a death certificate, and, upon the bottom margin thereof wrote: 'This patient died from criminal neglect at Spears Sanitarium. Dr. Maier.' More than three years thereafter, on December 3, 1949, in an article in a Denver newspaper, a portion of said death certificate containing defendant's above-mentioned statement was photostated, following affirmation of the truth of said statement by defendant to a reporter of said newspaper. Thereafter, on January 14, 1950, this action for libel was brought against defendant.

In the amended complaint, in a so-called first cause of action, it was alleged that defendant signed and placed of public record the death certificate and personally wrote across the bottom thereof the words, 'This patient died from criminal neglect at Spears Sanitarium,' and that said certificate has continually since reposed in the records of the Department of Health of the State of Colorado with said words inscribed upon it, open to public inspection, and has been continuously inspected, seen and viewed and said words 'have been continually and continuously published from and since the said date and are now being so published.'

For a so-called second cause of action, plaintiff alleged that the defendant on December 3, 1949, caused to be published in a newspaper a photostatic copy of the death certificate, including said marginal statement, and that defendant then further stated to said newspaper that Susia A. Bowers died after having 'laid several days no care' at Spears Sanitarium, and caused said statement to be published, and that said statement was false.

Defendant, in answer to the first count of the complaint, pleaded, inter alia, the statute of limitations providing that actions for libel shall be commenced within one year next after the cause of action shall accrue, and not afterwards. In answer to the second count, he admitted the signing of the death certificate and denied the other essential allegations.

Defendant moved to dismiss the first count of the plaintiff's complaint on the ground that it failed to state a claim upon which relief could be granted, and upon hearing subsequent to answer wherein the statute of limitations was pleaded, the motion was sustained and judgment entered upon the pleadings for dismissal of said count. The case came on for trial to a jury on the remaining count, where verdict and judgment were in favor of defendant, and plaintiff here seeks reversal.

The first stated ground for reversal is that the court erred in granting defendant's motion to dismis the first count of the complaint. Several challenging legal propositions are argued in the briefs; but, in view of our conclusion, we think we need now consider only that based on the statute of limitations. It is not disputed that each publication of a libel is a separate cause of action. Being such, each should be separately pleaded. Lininger v. Knight, 123 Colo. 213, 226 P.2d 809. Cause or right of action accrues on the date of publication. Plaintiff's amended complaint was filed pursuant to an order of the court requiring it to state, as a separate cause of action, in separate counts each and every act of alleged libel, together with the dates thereof. No special damage was alleged, and plaintiff's case rests on libel per se. The count which was stricken contained a specific allegation only as to one act of libel, to wit, that of placing of public record of death certificate with the libelous words across the bottom, and one specific date thereof to wit, June 7, 1946, which was more than three and a half years prior to the commencement of the action. Under our statute of limitations, action is barred if not commenced within one year 'next after the cause of action shall accrue'. Section 2, chapter 102, '35 C.S.A.

Even if we were to ignore the order for separate statement and search the pleading of that count for allegation of other causes of action within the period of limitation, we find therein no allegation nor contention that defendant subsequently made or distributed copies of said death certificate or of his marginal statement thereon;...