Walker v. Associated Press

• Decision Date: 15 August 1966
• Docket Number: No. 21732,21732
• Citation: 160 Colo. 361,417 P.2d 486
• Parties: Edwin A. WALKER, Plaintiff in Error, v. The ASSOCIATED PRESS, Defendant in Error.
• Court: Colorado Supreme Court

Page 486

417 P.2d 486

160 Colo. 361

Edwin A. WALKER, Plaintiff in Error, v. The ASSOCIATED PRESS, Defendant in Error.

No. 21732.

Supreme Court of Colorado, En Banc.

Aug. 15, 1966.

Earl J. Hower, Denver, Clyde J. Watts, Oklahoma City, Okl., for plaintiff in error.

Winner, Berge, Martin & Camfield, Denver, for defendant in error.

McWILLIAMS, Justice.

Edwin A. Walker, hereinafter referred to as the plaintiff, brought a bibel action against the Associated Press, a New York corporation, and The Denver Post, Inc., a Colorado corporation. In this writ of error we are concerned only with plaintiff's three claims for relief against the one defendant, Associated Press.

After permitting the plaintiff to amend his complaint on several occasions, the trial court eventually granted a motion to dismiss filed by the Associated Press, and judgment of dismissal followed. It is this judgment of dismissal which the plaintiff now seeks to have reversed.

In order to better understand this matter it becomes necessary to analyze with some degree of particularity the several complaints, and amendments thereto, filed by the plaintiff. This action was commenced by the plaintiff on September 30, 1963 with the filing of a complaint. In his original complaint the plaintiff claimed to have been libeled in the following publications: (1) an editorial appearing in The Denver Post on October 1, 1962; (2) a news article appearing in The Denver Post on October 2, 1962; and (3) an Associated Press news release of October 3, 1962, which was forwarded by the Associated Press to The Denver Post.

Our examination of the original complaint leads us to conclude that by the words used in this complaint plaintiff intended to charge, and did charge, the Associated Press with only one allegedly libelous publication, i.e., its news release of October 3, 1962, and that it was The Denver Post which was said to have libeled plaintiff in its editorial of October 1, 1962 and in its news article of October 2, 1962. Be that as it may, in our view on November 14, 1963 plaintiff cleared up any possible doubt on this particular matter by quite definitely charging Associated Press with only one libelous publication, namely its news release of October 3, 1962.

Thereafter, on February 17, 1964, the trial court granted the motion to dismiss filed by Associated Press, and the plaintiff was granted time within which to file a second complaint. This the plaintiff did on March 11, 1964, in what he chose to denominate as an 'amended Complaint.' This amended complaint contained what plaintiff labeled as counts one, two and three. Count one related to The Denver Post editorial of October 1, 1962, but in this pleading Both The Denver Post and the Associated Press were charged with this particular publication.

Count two of the amended complaint related to The Denver Post news article of October 2, 1962, and again in this amended complaint Both the Associated Press and The Denver Post were charged with this publication.

Count three of the amended complaint was directed solely against the Associated Press, and it concerned the press release of October 3, 1962.

To this amended complaint Associated Press again filed a motion to dismiss alleging, as to counts one and two, that 'such alleged claims * * * did not accrue within one year prior to the filing of the amended complaint.'

The trial court agreed with this contention of Associated Press, and dismissed these particular counts on the ground that they were barred by the only year statute of limitation. C.R.S.1963, 87--1--2. In our handling of this writ of error we shall first concern ourselves with the propriety of this particular ruling, laying aside for a moment a consideration of the third count in the amended complaint.

Counsel apparently agree that If counts one and two represent 'new' claims against Associated Press, then each is barred by the applicable statute of limitation. Plaintiff argues, however, that counts one and two are not really new claims, but on the contrary relate back to the original complaint. Being, then, merely an enlargement upon the averments in the original complaint, plaintiff urges that counts one and two are therefore not barred by the one year statute of limitation. See Platte Valley Motor Co. v. Wagner, 130 Colo. 365, 278 P.2d 870; Smith v. La Forge, 170 Kan. 677, 228 P.2d 509, and Doyle v. Oklahoma 677, Pub. Co., 206 Okla. 254, 242 P.2d 155.

Associated Press argues, to the contrary, that counts one and two represent New claims as to it, even though not to The Denver Post. In other words, it is pointed out that the Associated Press, as opposed to The Denver Post, was never charged with the publication of The Denver Post editorial of October 1, 1962 or the Denver Post news article of October 2, 1962 until March 11, 1964, the date when the amended complaint was filed.

In the original complaint it would appear that The Denver Post was charged with two libelous publications, i.e., its editorial of October 1, 1962 and its news article of October 2, 1962, and that the Associated Press was charged with only one libelous publication, i.e., its news release of October 3, 1962, which it is observed occurred subsequent to the dates of the allegedly libelous publications of The Denver Post.

If, however, there be doubt as to which defendant was charged with which libelous publication, the matter in our mind was, as already mentioned, fully cleared up by the plaintiff himself when he filed his Amendment to Complaint on November 14, 1963. In that pleading it is quite evident that Associated Press is charged with only one libelous publication, namely its press release of October 3, 1962. Hence, when plaintiff in his Amended Complaint of March 11, 1964 avers that the Associated Press also published the allegedly libelous editorial and news article appearing in The Denver Post, he truly is setting forth 'new' claims, 'new' at least as to the one defendant, the Associated Press.

These three separate publications, of course, constitute separate and distinct claims. See Hartmann v. Time, Inc. Sup., 60 N.Y.S.2d 209. Accordingly, we conclude that counts one and two in the amended complaint constitute 'new' claims against the Associated Press, and not having been asserted against Associated Press within one year after the cause of action accrued, are now barred by the provision of C.R.S. 1963, 87--1--2. See Evans v. Republican Publishing Company, 20 Colo.App. 281, 78 P. 311 and Spears Free Clinic & Hospital for Poor Children v. Maier, 128 Colo. 263, 261 P.2d 489.

We shall now proceed to a consideration of count three in the amended complaint. In all of his various pleadings the plaintiff alleged only general--as opposed to special--damages. And this was so even though he was given more than adequate opportunity by the trial court to amend his several complaints in this regard. However, he chose not to so do, and the trial court eventually dismissed count three of the amended complaint for this failure on the part of plaintiff to allege special damages. The reasoning of the trial court was that the allegedly libelous press release was only libelous per quod, and that in such event the plaintiff had to allege special damages, and the mere allegation of general damages was legally insufficient.

Plaintiff admits that he only alleged general damages, but contends that such is sufficient because, contrary to the determination made by the trial court, the news release--he claims--was libelous per se. So,...