Walker v. Colorado Springs Sun, Inc.

• Decision Date: 17 March 1975
• Docket Number: No. 26327,26327
• Citation: 188 Colo. 86,538 P.2d 450
• Parties: Wesley W. WALKER and Katherine L. Walker, Plaintiffs-Appellees, v. The COLORADO SPRINGS SUN, INC., et al., Defendants-Appellants.
• Court: Colorado Supreme Court

Page 450

538 P.2d 450

188 Colo. 86

Wesley W. WALKER and Katherine L. Walker, Plaintiffs-Appellees, v. The COLORADO SPRINGS SUN, INC., et al., Defendants-Appellants.

No. 26327.

Supreme Court of Colorado, En Banc.

March 17, 1975.

As Modified on Denial of Rehearing June 2, 1975.

Spurgeon, Aman & Hanes, Gregory R. Piche, Colorado Springs, for plaintiffs-appellees.

Holme, Roberts & Owen, John L. Kane, Jr., Phillip C. Gans, Denver, for defendants-appellants The Colorado Springs Sun, Inc., William J. Woestendiek and Doyle Trent.

Yegge, Hall & Evans, Richard D. Hall, Thomas B. Kelley, Denver, for amicus curiae The Colorado Press Assn.

GROVES, Justice.

This is an appeal from a judgment entered on a verdict awarding $29,200 compensatory damages and $9,900 in exemplary damages in a libel action against the Colorado Springs Sun; its editor and publisher, William J. Woestendiek; one of its reporters, Doyle Trent; and one Simco. Simco is not here on this appeal and by using the word 'defendants' we refer only to the Sun, its publisher and its reporter. We affirm as to the Sun and its editor and publisher, Woestendiek, but reverse as to the reporter, Trent.

Unless we indicate otherwise, our recitation of the facts is based upon undisputed testimony.

In late 1971, the vacant home of Mrs. Alter, an elderly widow who was living in a nursing home, was burglarized. In value, only one-third of Mrs. Alter's property was taken by the thieves. Items that were taken were sold to the plaintiffs Mr. and Mrs. Walker, who operated an antique shop under the name of 'Cobweb Antiques' (called Cobweb) in Colorado Springs. The plaintiffs bought the goods in good faith, having no knowledge of the theft or of the fact that the items were stolen goods. They paid $112.50 for the property.

Simco, a friend of Mrs. Alter, identified some of the stolen items displayed for sale at Cobweb as belonging to Mrs. Alter. Simco returned to the shop with two police officers. Mr. Walker provided the police with cancelled checks identifying the persons from whom he had purchased the goods, and removed the items from the shelves. The property was created and a hold order placed on it by the police. Simco was told by an assistant district attorney that recovery of the goods was a civil matter between the owner of the goods and the Walkers. Simco offered $60 to the Walkers if they would release the goods to him. The offer was refused. Simco told the Walkers that they could sell the goods for $2,000, to which neither of them responded.

Simco then visited the Colorado Springs Sun (referred to as the Sun) where he told the story to the reporter, Trent. Simco told Trent, among other things, the following: that the police suggested that Simco find the goods himself; that Simco searched through all the Colorado Springs antique shops before discovering the stolen goods at Cobweb; that the thieves helped themselves to everything of value from Mrs. Alter's home; that Mrs. Alter said, 'I will not pay for things that are already mine'; that neither he nor Mrs. Alter could afford a lawyer; that the Cobweb had purchased the goods for $112.50; that he offered to buy the goods back; that Walker said he stood a chance to make a good profit if he could sell the items; and that Simco had hired a lawyer but wasn't sure that he was going to ask the lawyer to pursue the matter. Simco also told Trent either (a) that the stolen goods were worth $2,000; (b) that the value of the goods was $2,000; or (c) that the Walkers had them up for sale for $2,000. Simco told Trent that he had looked at some of the price tags. Nothing in the record supports a contemplated sale price approaching $2,000.

Several articles concerning the matter were published by the Sun. It also published some letters received from readers. These articles and letters are the bases for the libel action.

After Simco related the story to Trent, the reporter contacted Assistant District Attorney Elvin Gentry, who informed him that he was familiar with the case and that Simco had approached him and asked help in effecting the return of Mrs. Alter's goods. Gentry told Trent that he had informed Simco that, since there were no criminal charges against the Walkers, the district attorney's office could offer no help as the ownership of the goods was a civil matter; that the district attorney's office handled only criminal matters; and that it could not give advice in civil matters. A detective of the Colorado Springs Police Department confirmed that a burglary had occurred at Mrs. Alter's home and that some of the property had been identified at the Cobweb.

Trent next contacted Mrs. Walker. Mrs. Walker testified that Trent identified himself as a reporter for the Sun, told her he was calling in regard to some things taken from Mrs. Alter and asked if she knew what he was talking about. When she said 'yes,' he asked her if she still had the items and she again said 'yes,' and told him that he would have to talk with their attorney. Trent's version of the conversation varied. He testified that he told her of Simco's story and asked her if it were true; that she neither confirmed nor denied the truth of the statements, but responded by telling him to talk to their lawyer; and that he did not ask for, nor did Mrs. Walker tell him, the name of their attorney.

Trent subsequently wrote the first article which was published by the Sun on February 28, 1972 which quoted Mrs. Alter as saying 'I will not pay for things that are already mine.' The article said further that the Walkers refused to return the property 'even though everyone--including the police--know it is hers,' that the goods represented 'everything of value' in her home and that 'Simco said the shop owners told him they paid $112.50 for the items, and have priced it (sic) for resale at about $2,000.'

On March 2, 1972, the Sun published an article, whose authorship is not of record, which related and compared laws of several different states relating to stolen property in the hands of a third party. It spoke of 'someone like Mrs. Anna Alter, currently facing such a problem.' It neither mentioned the Walkers nor named their shop.

After a settlement was negotiated by attorneys representing Simco and the Walkers, Trent published an article entitled 'Dealer 'Sells Back' Burglarized Goods' and stating that Mrs. Alter would recover some of the property--'but only after a second hand dealer makes a profit.' It related again the difficulties encountered by Simco in trying to recover stolen property. Before this article was published, Trent contacted Mrs. Walker, who told him that the $2,000 figure used in the previous article written by Trent was incorrect. Walker stated to Trent that he had purchased the goods for $112.50 and that a final settlement had been reached for $150. Walker did not tell Trent of any other possible errors, nor did he tell him that he (as Walker later testified) had increased the value of the goods to the extent of $112 by repairing and refinishing them.

In addition to the three articles mentioned, the Sun published an editorial written by defendant Woestendiek in a regularly appearing column called 'Thinking Out Loud' wherein he expressed 'outrage' at 'what seemed to be unjust treatment given 93 year old Mrs. Anna Alter.' The article repeated the story of the burglary and that the Cobweb put the goods up for sale for $2,000. Woestendiek had received all his information from his reporters and staff, making little or no independent investigation.

Woestendiek also selected a number of letters concerning the subject and published them under a heading called 'Sound Off' in which letters to the editor are printed. Woestendiek testified that he considered the opinions expressed by the writers of the letters to be of public interest; and that the focus-issue underlying all the publications, including the letters involved, was the return of stolen goods to the rightful owner.

Among the letters which were published was one printed under the heading, 'Black eye for all dealers,' in which the author stated that he had read of Cobweb's 'preferring to resell the merchandise rather than return it to their rightful owner.' Another writer expressed anger at 'law used to protect the guilty and not the innocent.' 'A Concerned Citizen' expressed an unwillingness to do business with 'a shop owner who knowingly sells stolen goods.' Another letter stated that although Mr. Walker

'undoubtedly bought these goods 'in good faith;' that is not the point. If any one can buy stolen goods and resell them, knowing they are stolen--as Mr. Walker did--then any 'fence' can do the same . . ..'

The headline above another letter read 'State 'fence' paradise.'

A thorough exegetic treatment of this case would involve a lengthy discussion of the law as it existed, both generally and particularly in Colorado, prior to the announcement of New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 in 1964. Such an opinion would include a discussion of the extent to which we may be changing the rule of prior decisions of this court and extended reasons therefor, even though the determination here made has not been required to date by First Amendment decisions of the United States Supreme Court. We do not do so because here our principal effort is to adopt the rule of the plurality in Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed. 296 (1971), and rule on sufficiency of the evidence in this case under that rule. Perhaps, at a later time, when we are deciding more of the current legal questions in libel we may undertake to set forth an historical background.

New York Times Co., supra, held that the First and Fourteenth Amendments forbade a public official from recovering damages for a defamatory falsehood relating to his official conduct unless it was proved that the statement was made with 'actual malice.' 'Actual malice,' as distinct...