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composed and published of and concerning considered on the question of malice. Counthem. The complaint contained three counts. sel for the defendants at the time the letters The first was withdrawn from the considera- were introduced made no request for a caution of the jury. On the remaining two a tionary instruction limiting the purpose for verdict was returned in the sum of $1,000, which the letters were competent; but, notin favor of the plaintiffs, on which judg. withstanding this omission upon their part, ment was subsequently entered. From this we think the better practice is that when judgment the defendants have appealed. testimony is competent only for some par

The verdict of the jury was to the effect ticular purpose, that the court should so adthat they found the issues for plaintiffs on vise the jury at the time of its introduction; the second and third causes of action, and but by this suggestion we must not be underassessed their damages in the sum of $1,000. stood as holding that it is error for the court On behalf of the defendants it is claimed this not to do so, when counsel objecting to its verdict is erroneous, for the reason that it reception failed to make a request of the does not appear what amount was assessed court to advise the jury for what purpose in the way of damages upon each of the two it is competent. We notice the omission in causes separately. In support of this con- this instance, for the purpose of bringing out tention it is urged that as the jury failed more clearly the error which the court comto designate separately the damages assessed mitted in giving instruction No. 14. upon each cause of action, it is impossible This instruction was to the effect that to tell whether or not the damages returned when language is used concerning merchants were determined by the unanimous verdict which, from its nature, will, as its natural of the jurors. Whether or not there is any and proximate consequence, occasion them merit in this contention is not properly here a pecuniary loss, its publication constitutes for our consideration. No such objection or prima facie a cause of action for which genexception was taken to the verdict of the jury eral damages may be recovered, without any at the time it was rendered; neither was evidence of damage other than that which the question now presented raised in the trial is implied from the fact of publication. The court by a motion for a new trial. The instruction then proceeds as follows: “The general rule applicable is that a question not law does not restrict you to any calculation presented for the determination of the trial of damages done in the way of dollars and court will not be considered for the first time cents, or to a calculation of damages on a on appeal. If counsel for defendants were pecuniary basis, but you are at liberty in dissatisfied with the verdict for the reasons determining this question to award the plainwhich they now assign, they should have tiffs, if entitled to recover herein, such damcalled the attention of the trial court to its ages as, in the exercise of your reasonable alleged defects by the objection which they judgment, under all the evidence in the case, now urge upon our attention. When coun- you may think the plaintiffs should have by sel neglect to point out alleged errors occur- way of compensation for the injuries done ring at the trial in such time and manner as to them in their capacity as merchants or will afford the trial court an opportunity traders, not exceeding, however, the amount for their correction, they will not, as a gen- demanded in the respective counts of the eral rule, be heard to complain of such er- complaint herein." rors in a court of review. D. & R. G. V. It will be observed that the instruction Ryan, 17 Colo. 98, 28 Pac. 79.

fails to caution the jury not to increase the Plaintiffs were copartners doing business damages on account of the letters to which under the firm name and style of the Colo- objections were interposed, and advised that rado-Texas Commission Company, and were such damages may be assessed as, in their engaged in carrying on a general commission judgment, from all the evidence, the plainbusiness in the city of Denver, and in buying tiffs should have for the injury suffered by and selling and otherwise disposing of con- them in their capacity as merchants and trasignments of produce as wholesale commis- ders. For the purpose of showing malice, sion merchants. At the trial the plaintiffs the letters under consideration were compeoffered, and the court admitted, in evidence, tent, but no damages for their publication over the objections of the defendant, two let could be awarded, because none were claimters reflecting upon the business integrity of ed on that account. They were only proper the plaintiffs, which were not counted upon to consider in determining whether or not in the complaint as constituting libels for the letters, which were charged to be libelwhich damages were claimed. Prior and ous and declared upon in the complaint, were contemporaneous publications of similar im- actuated by malice of the defendants towards port to those for which damages are claimed the plaintiffs, but not in aggravation of damin an action for libel are competent to show ages. Bearsley v. Bridgman, 17 Iowa, 290. malice; hence, in the case at bar, the letters No such caution was given the jury; and objected to were competent for that purpose, when they were told that language concernand the general objection to their admission ing merchants and traders calculated to ocwas properly overruled. They were admit- casion them a pecuniary loss as the result ted, however, without any caution to the of its publication constitutes a cause of ac

covered, followed with the further statement, their counsel to have tendered a correct in.. to the effect that in awarding damages they struction on that point. In the circumstances were at liberty to award such sum as, in of this case, that proposition is clearly untheir judgment, from all the evidence in the tenable, for the obvious reason that it would case, they might think the plaintiffs should impose upon counsel, where the court had have by way of compensation for the injury given an erroneous instruction, the burden done to them in their capacity as merchants of tendering a correct one; otherwise, they and traders, it is evident that they could con- would be precluded from assigning error on sider the letters for which no damages were the one which was incorrect. claimed as causing injury which they could It is next urged that the court erred in take into consideration, in estimating the sum not directing a verdict for the defendants on which should be awarded the plaintiffs. In the causes of action upon which the verdict other words, under this instruction, in the ab- was based. In support of this contention it sence of any caution to the jury at the time is claimed that the letters sued on were prive the letters were received directing their atten- ileged communications; and for this reason tion to the fact that they could only be con- the case should not have been submitted to sidered for the purpose of determining wheth-the jury, as it was the duty of the court, and er or not the defendants were actuated by not of the jury, to decide whether the commalice in publishing the letters declared up-munications were privileged or not. The leton, or any instruction limiting their effect to ters complained of were written by the dethis one question, the jury, in estimating fendants in response to inquiries received damages, were at liberty to take into consid- from parties asking for information regarderation all four of the letters, instead of lim- ing the responsibility and standing of the iting them to those set up in the complaint. Colorado-Texas Commission Company. The This was erroneous, for the simple reason response to these inquiries reflected upon the that it is error to so instruct a jury as to honesty and business integrity of that partpermit them to consider matters in estimat- nership. ing damages which cannot be considered for Every one owes it as a duty to his fellowthat purpose. Letton v. Young, 2 Metc. (Ky.) men to state what he knows about a person 538; Taylor v. Moran, 4 Metc. (Ky.) 127. when inquiry is made; otherwise, whether

On behalf of the plaintiffs it is urged that or not men were honest could not be asceras the instruction correctly stated whattained, except by experience. But for such would constitute a libel against merchants, inquiries it would often occur that parties and also stated correctly that damages for about to enter into business relations with such libel are not restricted to a calculation others would be unable to ascertain in adof damages on a pecuniary basis, that a gen-vance their character with respect to integeral exçeption thereto was not good, because rity or capability. The interest of society it did not designate what was incorrect by demands and requires that inquiries may be separating it from that which was correct. made respecting such matters, and that anThe rule that when an instruction embraces swers thereto may be given without subjectseveral distinct propositions of law, some of ing the party answering such inquiries to an which are correct, a general exception to the action for libel or slander, for the opinion whole instruction is not good, does not apply furnished ' in response to such inquiries; where the instruction authorizes the wrong hence, where a party to whom an inquiry is application of that which is correct. In the addressed regarding another communicates case at bar, conceding that the portions there- bona fide without malice to the person makof referred to by counsel for plaintiffs are ing inquiry facts regarding the person incorrect, it authorizes the jury, in estimating quired about, it is a privileged communicadamages, to consider letters which could not tion; and so it follows that a party is justibe considered for that purpose.

fied in giving his opinion in good faith of the It is further urged by counsel for plaintiffs integrity and standing of a tradesman in anthat inasmuch as the court, by previous in- swer to an inquiry concerning him. Townstructions, stated in substance that the sec- send on Slander and Libel, $ 241a; Rude v. ond and third causes of action were based Nass, 79 Wis. 321, 48 N. W. 555, 24 Am. St. upon the letters described therein, the jury Rep. 717; Denver P. W. Co. v. Holloway, 34 understood that they were limited in esti- Colo. 432, 83 Pac, 131, 3 L. R. A. (N. S.) 696, mating damages to these letters. The sug- | 114 Am. St. Rep. 171; Harrison v. Bush, 5 gestion is not tenable. By one instruction Ellis & Blackburn, 344. the jury were told that the plaintiffs seek to As was said, in substance, in the case last recover upon certain letters; by the other, cited, a communication made bona fide upon all letters could be taken into consideration any subject-matter in which the party comin estimating damages.

municating has an interest, or in reference to It is also urged by counsel for plaintiffs which he has a duty, is privileged, if made that if defendants desired an instruction to to a person having a corresponding interest the effect that the letters which were only or duty, although it contains incriminatory competent for the purpose of establishing matter, which, without this privilege, would malice could not be considered as substantive be slanderous and actionable; and

this, grounds for damages, it was the duty of though the duty be not a legal ove, but only

a moral or social duty of imperfect applica-, signed in support of this contention is that tion. But the person to whom such an in- | these letters were also privileged, and therequiry is addressed cannot abuse his privilege fore were not admissible to prove actual in answering it. If he knowingly makes a malice in writing the letters declared upon. false charge against the person inquired That a party was actuated by malice in about, he cannot claim immunity, because, in making a defamatory communication which response to an inquiry, it is not his duty to is privileged cannot be established alone by circulate a falsehood. Odgers on Libel and introducing other privileged communications, Slander, p. 198. If the testimony bearing on

nor would the latter be admissible for this the question of whether or not a communica- purpose until there was some other testimotion is privileged is not conflicting, the ques- ny tending to prove the malice of the party tion of its character in this respect would be making a privileged communication; but one of law for the court. On the other hand, where there is some testimony tending to if there was an issue on the subject as to prove actual malice, then other communicawhether or not it was privileged, it would be tions, although privileged in their nature, one of fact for the jury to determine under are competent for the purpose of corroboratappropriate instructions. 18 Ency. 1050; ing or establishing it. Townsend on Libel and Slander, SS 287, 288.

There was no evidence that the plaintiffs But, even though a communication be privi- were known in the community where the leged, the question of good faith, belief in the letters declared upon were published, and it truth of the statements made, and the ex

is therefore urged by counsel for defendants istence of actual malice, remain for the jury that plaintiffs were not entitled to recover to determine when, under the issues and tes. general damages. It appears to be conceded

that these letters contained such reflections timony, it is in issue, and the burden of establishing the facts which would render a

upon the honesty and integrity of the plainprivileged communication actionable rests up- the letters were privileged.

tiffs that they were actionable per se, unless

Where the on the plaintiff (Denver P. W. Co. v. Hollo

words charged as libelous are actionable per way, supra); but the falsity of the statements of a privileged communication is not sufi: se, the law presumes damages. No special cient of itself to raise the inference that they for the jury to determine what amount by

evidence concerning them is required. It is were maliciously inspired. Fowles v. Bowen, 30. N. Y. 20; Ritchie v. Arnold, 79 111. App. way of compensation shall be allowed for

the injury. Republican Publishing Co. v. 406.

So far as advised from the present record, Conroy, 5 Colo. App. 262, 38 Pac. 423; Reit appears the letters declared upon were 399, 24 Pac. 1051, 18 Ency. 1082.

publican Publishing Co. v. Mosman, 15 Colo. privileged, in the sense that they were written in response to what the defendants be- 1897, p. 248 (section 3387a, 3 Mills' Ann. St.

By virtue of the provisions of the laws of lieved were bona fide inquiries regarding the Rev. Supp.; section 4778, Rev. St. 1908), it business integrity of the plaintiffs; and if is made the duty of any person or persons the court submitted to the jury the question trading or doing business in this state, under of whether or not they were privileged, it the name of manager, or in any other reprewas error. What the instructions might dis- sentative name, and any person or persons close on this subject it is not necessary to de- using as a part of the business name the termine, for the reason that at another trial, words "& Company,” to file for record with if the facts presented are substantially the the clerk and recorder of the county in which same as now, this error can be avoided. The such business or trading is carried on, an plaintiffs charged that the letters upon which affidavit setting forth the full Christian and they base their right to damages were in- surname, and addresses of all the parties spired by malice; that the statements there who are so represented. Failure to comply in were false and injurious; and as there with this provision is made a misdemeanor, was some testimony tending to prove this and persons, partnerships, and associations charge, it was proper for the court to submit trading and doing business under the name to the jury the question of the good faith of mentioned, on failure to file the affidavit rethe defendants, their belief in the truth of quired, "shall not be permitted to prosecute their statements, and whether or not they any suits for the collection of their debts, were inspired by maiice in making them. If until such affidavit shall be filed.” these questions were resolved in favor of the At the time of the alleged libels, the plaindefendants from the testimony, then the ver- tiffs had not complied with this statute, aldict should be for them, even though it should though they did comply with its provisions develop that the statements made were un- prior to the commencement of their action. true. Rude v. Nass, supra.

On behalf of the defendants, an instruction In this connection we notice the conten- was requested and refused, which mentioned tion of counsel for the defendants that the the statute, and stated that "in default of letters referred to in discussing instruction such affidavit the persons so trading are proNo. 14, and which we said were competent hibited from instituting or defending any for the purpose of proving malice, were not suit”; and continuing, was to the effect that

their business at the time the letters declar- , never in the produce business there or elseed upon were written under the name of the where; that he was not contemplating oli Colorado-Texas Commission Company, and no that date the shipping of any produce to Denaffidavit as required was filed until after ver; that he had been engaged in the hotel such letters were written, the plaintiffs were business at Littleton, since which time he violating the law, and would not be permit had been employed as janitor at the courtted to complain that the defendants believed house, with the exception of a period when plaintiff John F. Beeler was the only person he tended bar. He further stated that the interested in the firm; and further, that if letter which he addressed to the defendants these letters were written by the defend- was written at the request of a party named ants in good faith, without actual knowledge Sherrer; that he (the witness) dictated the that the plaintiff Mrs. Beeler was connected letter which was written by Sherrer; that with the firm, and the facts set forth in such he wrote the letter to the defendants simply letters were true, as to the plaintiff John F. because Sherrer requested it; that he was Beeler, then the verdict should be for the not acquainted with either the plaintiffs or defendants.

the defendants; that Sherrer requested him The statute only applies to suits for the col- to send the answer to an address in Denver, lection of debts due the firm doing business which he gave him; and that when the anto which it applies. It does not apply to swer came, he sent it to Sherrer at the adsuits for torts. The action by plaintiffs is dress given. At the trial Sherrer could not one for tort, and hence it was not within the be found, and his evidence could not be obstatute. For this reason the instruction was tained. Beeler testified that he received the erroneous, because it, in effect, advised the Finn letter through the mail, but did not jury that the failure to file the affidavit in- know who sent it. hibited the plaintiffs from maintaining their The defendants requested an instruction to action. Pedroni v. Eppstein, 17 Colo. App. the effect that if the plaintiffs procured the 424, 68 Pac. 794; Ralph v. Lockwood, 61 Cal. writing of the letter complained of with the 155.

view of bringing an action thereon, that the Independent of these considerations, the defendants are guilty of no wrong against instruction was not the law. Its last para- them, and that procuring the letter in such graph is to the effect that if the letters were circumstances could not be made the basis of written in good faith, without knowledge an action. This instruction should have been that Mrs. Beeler was a member of the part- given. The circumstances under which the nership, doing business under the firm name letter to the defendants was written and the and style of the Colorado-Texas Commission fact that it was sent to Sherrer who had re Company, and that the charges in such let- quested Finn to write the letter which called ters were true as to John F. Beeler, then the forth the response subsequently mailed to verdict should be for the defendants. The plaintiffs are suspicious, to say the least. action was by the firm. The libel charged: Finn was not engaged in the produce busiwas a libel of the firm, doing business under ness. He had no interest whatever in ascerthe name and style mentioned. Libelous let- taining what the standing of the plaintiffs ters, although naming but one member of the might be. He did not contemplate engaging firm, might result in injury to the partner- | in the produce business, and had never been ship; so the mere fact that Mrs. Beeler was so engaged. And although there is no direct not named in either of the letters, or the de- testimony connecting the plaintiffs with this fendants were not aware that she was a transaction, the inference that they procured member of the partnership, would not jus- Sherrer to induce Finn to write the letter to tify a verdict in their favor, if it appeared the defendants and turn over the answer to that from the letters written the partnership them is very strong. Who Sherrer was is not was damaged. Partners may maintain a joint disclosed. It does not appear he had any inaction for libel or slander which tends to in- terest to protect, either present or prospectjure the business of their firm, even though ive, which would induce him to make any inthe defamatory words refer to or concern but quiry regarding the plaintiffs. Finn wrote one of its members. 18 Ency. 1055; Taylor the letter at his suggestion. Áe requested v. Church, 1 E. D. Smith (N. Y.) 279.

the answer to be mailed to him, which was One of the letters declared upon was writ- done. Plaintiffs obtained it through the mail. ten to A. E. Finn, at Littleton, in this state. Beeler says he did not know who sent it. As a separate defense the defendants plead On this state of facts, unless satisfactorily ed that the inquiry received by them from explained, the jury might have determined Finn which caused the writing of the letter that Sherrer was acting for the plaintiffs to him was written at the instigation of the when he procured Finn to write the letter of plaintiffs, for the purpose of securing a letter inquiry. Alleged defamatory statements, inwith the premeditated purpose of bringing vited or procured by a plaintiff or a person an action for libel thereon. Finn testified in acting for him, will not support an action for substance that he was a janitor at the court-libel. In such circumstances, the party claimhouse at Littleton, where he had been em- ing to have been libeled by a letter in reployed for a year and a half previous to the sponse to a request regarding him, has invitletter written to the defendants; that he was ed the commission of a wrong, and will not

be heard to complain that he was libeled.jury occurred by the starting of the machinery, 18 Ency. 1018; Howland v. Blake Mfg. Co., did not introduce a new cause of action. 136 Mass. 543, 570, 31 N. E. 656; Sutton v. Cent. Dig. Ss 686-709; Dec. Dig. $ 248.*]

(Ed. 'Note.---For other cases. see Pleading, Smith, 13 Mo. 120. If the defendants were guilty of no wrong

3. APPEAL AND ERROR (8 169*) — QUESTIONS

REVIEWABLE - QUESTIONS NOT RAISED IN against the plaintiffs with respect to the TRIAL COURT. Finn letter, except a wrong invited and pro A question not raised in the trial court cured by them to be committed for the pur. will not be considered on appeal. pose of making it the foundation of an ac- Error, Cent. Dig. $ 1018; Dec. Dig. $ 169.*]

(Ed. Note.-For other cases, see Appeal and tion, it would be unjust to permit them to profit by it. He who thus acts values money

4. NEGLIGENCE (8 56*). — ACTIONABLE NEGLI

GENCE-PROXIMATE CAUSE. more than character.

Negligence which is not the approximate The judgment of the district court is revers- cause of an injury is not actionable. ed and the cause remanded for a new trial.

[Ed. Note.-For other cases, see Negligence, Reversed and remanded.

Cent. Dig. $8 69, 70; Dec. Dig. $ 56.*]
5. NEGLIGENCE ($ 136*)—EVIDENCE-QUESTION

FOR JURY. STEELE, C. J., and WHITE, J., concur in Whether those acts of negligence charged reversal upon the grounds stated, except in the complaint in an action for personal inthose stated in discussing instruction No. 14, jury which there is testimony to establish were

the cause of the injury should be submitted to and as to those, express no opinion.

the jury.

(Ed. Note.-For other cases, see Negligence, On Petition for Rehearing.

Cent. Dig. 88 327-332; Dec. Dig. § 136.*] GABBERT, J. In support of their petition 6. TRIAL ($ 253*)-INSTRUCTIONS—ISSUES.

An instruction authorizing a recovery on for rehearing, counsel for appellees contend the jury finding the negligence alleged in the that we have ignored section 10 of our Bill complaint in an action for injuries to a servof Rights, which provides, in substance, that ant is erroneous as taking from the jury the in suits and prosecutions for libel, the truth negligence pleaded as a defense, unless other in

issues of assumption of risk and contributory thereof may be given in evidence, and that structions obviate the objection. the jury, under the direction of the court, [Ed. Note.-For other cases, see Trial, Cent. shall determine the law and the facts. This Dig. $8 613–623; Dec. Dig. § 253.*] is inconsistent with the position assumed by 7. MASTER AND SERVANT (88 101, 102*)-DUTY counsel in their original brief; but aside

OF MASTER.

A master must exercise reasonable care in from this, the question of the applicability providing reasonably safe appliances for the of the section of the Bill of Rights referred use of his servant, and where, through his failto has not been in any wise determined. The ure so to do, the servant is injured without fault

on his part, the master is liable. question does not appear to have been raised below; it was not urged upon our attention servant, Cent. Dig. 88 171, 173; Dec. Dig. 88

(Ed. Note.-For other cases. see Master and in the original brief ; and we have not ex- 101, 102.*] pressed any opinion whatever on that sub- 8. MASTER AND SERVANT ($ 105*)-DUTY OF ject.

MASTER-CUSTOMARY ACTS. The petition for a rehearing is denied.

Ordinarily a master has exercised due care in providing against injury to his servants through machinery which they use, when he

has equipped the same with such safety devices (48 Colo. 388)

as are usually employed by others in like cir

cumstances, and, where it is usual to guard KENT MEG. CO. V. ZIMMERMAN.

against the tendency of a belt shifting from a (Supreme Court of Colorado. July, 1910.)

loose to a tight pulley by a device usually adopt

ed, the failure of a master to adopt such guard 1. PLEADING ($ 248*)-COMPLAINT-AMEND- is negligence, especially in view of the danger MENT-ALLOWANCE.

to which a servant is exposed by the sudden Where, by amendment of the complaint in starting of machinery, unless he has provided a personal injury action, the plaintiff adheres to

some other reasonably safe means to prevent the injury originally declared on, an alteration the shifting of the belt. simply in the manner by which defendant caused [Ed. Note.-For other cases, see Master and the injury does not introduce a new cause of Servant, Cent. Dig. $8 185–191; Dec. Dig. 8 action.

105.*] [Ed. Note. For other cases, see Pleading, 9. NEGLIGENCE (8 65*)—“CONTRIBUTORY NEGCent. Dig. $$ 686–709; Dec. Dig. $ 248.*]

LIGENCE." 2. PLEADING ($ 248*) — COMPLAINT — AMEND- feat a recovery for personal injury is such neg.

Contributory negligence" which will deMENT-ALLOWANCE.

ligence on the part of the person injured but Where the complaint, in an action for inju- for which he would not have been injured. ries to an operator of a machine caused by the starting of the machine by the power belt shift, Cent. Dig. S 83; Dec. Dig. $ 65.*

[Ed. Note.-For other cases, see Negligence, ing from the loose to the fixed pulley, alleged that the machine was not provided with a guard

For other definitions, see Words and Phrases, to prevent the belt from passing from one pulley vol. 2, pp. 1540–1547; vol. 8, p. 7617.] to another, etc., an amended complaint. alleging 10. MASTER AND SERVANT (SS 206, 219*)-INthat the belt was not properly adjusted because JURY TO SERVANT-ASSUMPTION OF RISK. it had stretched and had a tendency to slip A servant accepts service subject to the from one pulley to the other, and that the in- risks naturally and reasonably incident to the

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