Switzer v. Anthony

• Decision Date: 03 April 1922
• Docket Number: 10048.
• Citation: 206 P. 391,71 Colo. 291
• Parties: SWITZER v. ANTHONY et al.
• Court: Colorado Supreme Court

206 P. 391

71 Colo. 291

SWITZER v. ANTHONY et al.

No. 10048.

Supreme Court of Colorado, En Banc.

April 3, 1922

Rehearing Denied May 1, 1922.

Error to District Court, City and County of Denver; Julian H Moore, Judge.

Action by Ellen Switzer against Caroline M. Anthony and another. From judgment directing verdict for defendants, plaintiff brings error. Affirmed as to defendant named.

Reversed and remanded as to defendant the Denver Express Publishing Company.

Duncan McPhail, of Springfield, for plaintiff in error.

Wayne C. Williams, of Denver, for defendants in error.

DENISON J.

The plaintiff in error brought suit for libel against Caroline M Anthony and the Denver Express Publishing Company, publisher of the newspaper, the Denver Express. The complaint alleged that the defendants conspired to publish and did publish the following:

'Insult the Flag, Woman Says, so She'll Avenge it.

'Mrs. Ellen Switcher, 2936 W. 3rd av. (meaning the plaintiff herein), called the American flag a 'dirty rag,' according to Mrs. Caroline M. Anthony, a neighbor. Mrs. Anthony's forbears were pioneer American settlers and she immediately protested against the insult to the flag. Then she claims Duncan McPhail, an attorney, got into the argument and sided with Mrs. Switcher (meaning the plaintiff herein). So Mrs. Anthony Wednesday asked the district attorney's office to have the two deported as 'undesirable aliens.' She was referred to the commissioner of immigration. 'If he doesn't deport them, I'll take the matter into my own hands and avenge the flag,' said Mrs. Anthony.' On trial, after evidence on both sides, the court directed verdicts for the defendants.

The material facts are as follows, and are undisputed:

Mrs. Anthony complained to the deputy district attorney of some misconduct of the plaintiff, Mrs. Switzer, and at the same time said that another woman had referred to the American flag as a 'dirty rag.' A reporter, in writing the story for the Express, got his wires crossed and put Mrs. Switzer in the other woman's place. Neither he nor anybody in connection with the newspaper knew the plaintiff or anything about her, or had any wish to defame her.

Mrs. Anthony was shown to have had nothing to do with the libel and was properly discharged.

We are forced to the conclusion that the direction of the verdict for the defendant the Express Publishing Company was erroneous. The court stated the following reasons for its action: (1) That no conspiracy had been shown as alleged in the complaint; (2) that the article referred to one Ellen Switcher and was in no way connected with Ellen Switzer; (3) that no malice or want of good faith had been shown; (4) that the plaintiff was not the person libeled; (5) that the complaint did not state facts sufficient to constitute a cause of action; (6) that the statute defined 'libel' as malicious defamation; (7) that the matter is one of qualified privilege.

Counsel for the defendant in error adds to this that no damage was shown.

As to the first ground, the allegations are that the defendant Anthony 'did convey and deliver' to the defendant corporation the libelous matter, and that 'said defendants did contrive and conspire together, * * * and did print, publish and circulate of and concerning' plaintiff the matter above set forth.

The gravamen of this charge is, of course, the publication, did the allegation that the defendants did or did not conspire does not affect the sufficiency of the complant, and the failure to prove it does not constitute a variance; therefore the first reason given by the court was unsound. Under the old practice the rule might have been otherwise, but under our Code one can see no reason for declaring a variance when the real gravamen has been proved. Code 1908, § 84.

As to the second point, that the article referred to Ellen Switcher and not Ellen Switzer, the court might have added that it described her as residing at 2936 West Third avenue, when in fact she resided at 2905 West Second avenue; but the evidence was that there was no such number as 2936 West Third avenue, and no such, person known as Ellen Switcher, and one witness testified that while she knew plaintiff, and that the proper spelling of her name was Ellen Switzer, she (the witness) pronounced it 'Switcher.' The plaintiff hereself testified that because of the odium of the charge she was subjected to insult. These things tended to show, and would justify the jury in finding, that there was an accurate enough description in the alleged libel to identify the plaintiff, and that it did identify her, and therefore it was for the jury to say whether the defamatory matter was spoken of and concerning the plaintiff, because it was for them to determine what the article meant. Republican Publishing Co. v. Miner, 12 Colo. 77, 86, 20 P. 345.

In this connection, it should be remembered that the fact that neither the reporter nor anybody else connected with the newspaper knew the plaintiff is immaterial to the right to recover. It is not necessary that they should have known her and have intended to defame her. Upon this point we cannot agree with the case of Hanson v. Globe Newspaper Co., 159 Mass. 293, 34 N.E. 462, 20 L.R.A. 856, or with couns...