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 sel for the defendants at the time the letters The first was withdrawn from the considera- were introduced made no request for a caution of the jury.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 ationary 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 particular purpose, that the court should so advise the jury at the time of its introduction; but by this suggestion we must not be understood as holding that it is error for the court not to do so, when counsel objecting to its reception failed to make a request of the court to advise the jury for what purpose it is competent. We notice the omission in this instance, for the purpose of bringing out more clearly the error which the court committed in giving instruction No. 14. The verdict of the jury was to the effect that they found the issues for plaintiffs on the second and third causes of action, and assessed their damages in the sum of $1,000. On behalf of the defendants it is claimed this verdict is erroneous, for the reason that it does not appear what amount was assessed in the way of damages upon each of the two causes separately. In support of this contention it is urged that as the jury failed to designate separately the damages assessed upon each cause of action, it is impossible to tell whether or not the damages returned were determined by the unanimous verdict of the jurors. Whether or not there is any merit in this contention is not properly here for our consideration. No such objection or exception was taken to the verdict of the jury at the time it was rendered; neither was the question now presented raised in the trial court by a motion for a new trial. The general rule applicable is that a question not presented for the determination of the trial court will not be considered for the first time on appeal. If counsel for defendants were dissatisfied with the verdict for the reasons which they now assign, they should have called the attention of the trial court to its alleged defects by the objection which they now urge upon our attention. When counsel neglect to point out alleged errors occurring at the trial in such time and manner as will afford the trial court an opportunity for their correction, they will not, as a general rule, be heard to complain of such errors in a court of review. D. & R. G. v. Ryan, 17 Colo. 98, 28 Pac. 79. Plaintiffs were copartners doing business under the firm name and style of the Colorado-Texas Commission Company, and were engaged in carrying on a general commission business in the city of Denver, and in buying and selling and otherwise disposing of consignments of produce as wholesale commission merchants. At the trial the plaintiffs offered, and the court admitted, in evidence, over the objections of the defendant, two letters reflecting upon the business integrity of the plaintiffs, which were not counted upon in the complaint as constituting libels for which damages were claimed. Prior and contemporaneous publications of similar import to those for which damages are claimed in an action for libel are competent to show malice; hence, in the case at bar, the letters objected to were competent for that purpose, and the general objection to their admission was properly overruled. They were admitted, however, without any caution to the This instruction was to the effect that when language is used concerning merchants which, from its nature, will, as its natural and proximate consequence, occasion them a pecuniary loss, its publication constitutes prima facie a cause of action for which general damages may be recovered, without any evidence of damage other than that which is implied from the fact of publication. The instruction then proceeds as follows: "The law does not restrict you to any calculation of damages done in the way of dollars and cents, or to a calculation of damages on a pecuniary basis, but you are at liberty in determining this question to award the plaintiffs, if entitled to recover herein, such damages as, in the exercise of your reasonable judgment, under all the evidence in the case, you may think the plaintiffs should have by way of compensation for the injuries done to them in their capacity as merchants or traders, not exceeding, however, the amount demanded in the respective counts of the complaint herein." It will be observed that the instruction fails to caution the jury not to increase the damages on account of the letters to which objections were interposed, and advised that such damages may be assessed as, in their judgment, from all the evidence, the plaintiffs should have for the injury suffered by them in their capacity as merchants and traders. For the purpose of showing malice, the letters under consideration were competent, but no damages for their publication could be awarded, because none were claimed on that account. They were only proper to consider in determining whether or not the letters, which were charged to be libelous and declared upon in the complaint, were actuated by malice of the defendants towards the plaintiffs, but not in aggravation of damages. Bearsley v. Bridgman, 17 Iowa, 290. No such caution was given the jury; and when they were told that language concerning merchants and traders calculated to occasion them a pecuniary loss as the result of its publication constitutes a cause of ac struction on that point. In the circumstances of this case, that proposition is clearly untenable, for the obvious reason that it would impose upon counsel, where the court had given an erroneous instruction, the burden of tendering a correct one; otherwise, they would be precluded from assigning error on the one which was incorrect. covered, followed with the further statement their counsel to have tendered a correct into the effect that in awarding damages they were at liberty to award such sum as, in their judgment, from all the evidence in the case, they might think the plaintiffs should have by way of compensation for the injury done to them in their capacity as merchants and traders, it is evident that they could consider the letters for which no damages were claimed as causing injury which they could take into consideration, in estimating the sum which should be awarded the plaintiffs. In other words, under this instruction, in the absence of any caution to the jury at the time the letters were received directing their attention to the fact that they could only be considered for the purpose of determining whether or not the defendants were actuated by malice in publishing the letters declared upon, or any instruction limiting their effect to this one question, the jury, in estimating damages, were at liberty to take into consideration all four of the letters, instead of limiting them to those set up in the complaint. This was erroneous, for the simple reason that it is error to so instruct a jury as to permit them to consider matters in estimating damages which cannot be considered for that purpose. Letton v. Young, 2 Metc. (Ky.) 558; Taylor v. Moran, 4 Metc. (Ky.) 127. On behalf of the plaintiffs it is urged that as the instruction correctly stated what would constitute a libel against merchants, and also stated correctly that damages for such libel are not restricted to a calculation of damages on a pecuniary basis, that a general exception thereto was not good, because it did not designate what was incorrect by separating it from that which was correct. The rule that when an instruction embraces several distinct propositions of law, some of which are correct, a general exception to the whole instruction is not good, does not apply where the instruction authorizes the wrong application of that which is correct. In the case at bar, conceding that the portions thereof referred to by counsel for plaintiffs are correct, it authorizes the jury, in estimating damages, to consider letters which could not be considered for that purpose. It is further urged by counsel for plaintiffs that inasmuch as the court, by previous instructions, stated in substance that the second and third causes of action were based upon the letters described therein, the jury understood that they were limited in estimating damages to these letters. The suggestion is not tenable. By one instruction the jury were told that the plaintiffs seek to recover upon certain letters; by the other, all letters could be taken into consideration in estimating damages. It is also urged by counsel for plaintiffs that if defendants desired an instruction to the effect that the letters which were only competent for the purpose of establishing malice could not be considered as substantive grounds for damages, it was the duty of It is next urged that the court erred in not directing a verdict for the defendants on the causes of action upon which the verdict was based. In support of this contention it is claimed that the letters sued on were privileged communications; and for this reason the case should not have been submitted to the jury, as it was the duty of the court, and not of the jury, to decide whether the communications were privileged or not. The letters complained of were written by the defendants in response to inquiries received from parties asking for information regarding the responsibility and standing of the Colorado-Texas Commission Company. The response to these inquiries reflected upon the honesty and business integrity of that partnership. Every one owes it as a duty to his fellowmen to state what he knows about a person when inquiry is made; otherwise, whether or not men were honest could not be ascertained, except by experience. But for such inquiries it would often occur that parties about to enter into business relations with others would be unable to ascertain in advance their character with respect to integrity or capability. The interest of society demands and requires that inquiries may be made respecting such matters, and that answers thereto may be given without subjecting the party answering such inquiries to an action for libel or slander, for the opinion furnished in response to such inquiries; hence, where a party to whom an inquiry is addressed regarding another communicates bona fide without malice to the person making inquiry facts regarding the person inquired about, it is a privileged communication; and so it follows that a party is justified in giving his opinion in good faith of the integrity and standing of a tradesman in answer to an inquiry concerning him. Townsend on Slander and Libel, § 241a; Rude v. Nass, 79 Wis. 321, 48 N. W. 555, 24 Am. St. Rep. 717; Denver P. W. Co. v. Holloway, 34 Colo. 432, 83 Pac. 131, 3 L. R. A. (N. S.) 696, 114 Am. St. Rep. 171; Harrison v. Bush, 5 Ellis & Blackburn, 344. As was said, in substance, in the case last cited, a communication made bona fide upon any subject-matter in which the party communicating has an interest, or in reference to which he has a duty, is privileged, if made to a person having a corresponding interest or duty, although it contains incriminatory matter, which, without this privilege, would be slanderous and actionable; and this, though the duty be not a legal one, but only these letters were also privileged, and therefore were not admissible to prove actual malice in writing the letters declared upon. That a party was actuated by malice in making a defamatory communication which is privileged cannot be established alone by introducing other privileged communications, nor would the latter be admissible for this purpose until there was some other testimony tending to prove the malice of the party making a privileged communication; but where there is some testimony tending to prove actual malice, then other communications, although privileged in their nature, are competent for the purpose of corroborating or establishing it. a moral or social duty of imperfect applica- | signed in support of this contention is that tion. But the person to whom such an inquiry is addressed cannot abuse his privilege in answering it. If he knowingly makes a false charge against the person inquired about, he cannot claim immunity, because, in response to an inquiry, it is not his duty to circulate a falsehood. Odgers on Libel and Slander, p. 198. If the testimony bearing on the question of whether or not a communication is privileged is not conflicting, the question of its character in this respect would be one of law for the court. On the other hand, if there was an issue on the subject as to whether or not it was privileged, it would be one of fact for the jury to determine under appropriate instructions. 18 Ency. 1050; Townsend on Libel and Slander, §§ 287, 288. But, even though a communication be privileged, the question of good faith, belief in the truth of the statements made, and the existence of actual malice, remain for the jury to determine when, under the issues and testimony, it is in issue, and the burden of establishing the facts which would render a privileged communication actionable rests upon the plaintiff (Denver P. W. Co. v. Hollo way, supra); but the falsity of the statements of a privileged communication is not sufficient of itself to raise the inference that they were maliciously inspired. Fowles v. Bowen, 30 N. Y. 20; Ritchie v. Arnold, 79 Ill. App. 406. So far as advised from the present record, it appears the letters declared upon were privileged, in the sense that they were written in response to what the defendants believed were bona fide inquiries regarding the business integrity of the plaintiffs; and if the court submitted to the jury the question of whether or not they were privileged, it was error. What the instructions might disclose on this subject it is not necessary to determine, for the reason that at another trial, if the facts presented are substantially the same as now, this error can be avoided. The plaintiffs charged that the letters upon which they base their right to damages were inspired by malice; that the statements therein were false and injurious; and as there was some testimony tending to prove this charge, it was proper for the court to submit to the jury the question of the good faith of the defendants, their belief in the truth of their statements, and whether or not they were inspired by malice in making them. If these questions were resolved in favor of the defendants from the testimony, then the verdict should be for them, even though it should develop that the statements made were untrue. Rude v. Nass, supra. In this connection we notice the contention of counsel for the defendants that the letters referred to in discussing instruction No. 14, and which we said were competent for the purpose of proving malice, were not There was no evidence that the plaintiffs were known in the community where the letters declared upon were published, and it is therefore urged by counsel for defendants that plaintiffs were not entitled to recover general damages. It appears to be conceded that these letters contained such reflections upon the honesty and integrity of the plaintiffs that they were actionable per se, unless words charged as libelous are actionable per the letters were privileged. Where the se, the law presumes damages. No special for the jury to determine what amount by evidence concerning them is required. It is way of compensation shall be allowed for the injury. Republican Publishing Co. v. Conroy, 5 Colo. App. 262, 38 Pac. 423; Re- 1897, p. 248 (section 3387a, 3 Mills' Ann. St. By virtue of the provisions of the laws of Rev. Supp.; section 4778, Rev. St. 1908), it is made the duty of any person or persons trading or doing business in this state, under the name of manager, or in any other representative name, and any person or persons using as a part of the business name the words "& Company," to file for record with the clerk and recorder of the county in which such business or trading is carried on, an affidavit setting forth the full Christian and surname, and addresses of all the parties who are so represented. Failure to comply with this provision is made a misdemeanor, and persons, partnerships, and associations trading and doing business under the name mentioned, on failure to file the affidavit required, "shall not be permitted to prosecute any suits for the collection of their debts, until such affidavit shall be filed." At the time of the alleged libels, the plaintiffs had not complied with this statute, although they did comply with its provisions prior to the commencement of their action. On behalf of the defendants, an instruction was requested and refused, which mentioned the statute, and stated that "in default of such affidavit the persons so trading are prohibited from instituting or defending any 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 Colorado-Texas Commission Company, and no affidavit as required was filed until after such letters were written, the plaintiffs were violating the law, and would not be permitted to complain that the defendants believed plaintiff John F. Beeler was the only person interested in the firm; and further, that if these letters were written by the defendants in good faith, without actual knowledge that the plaintiff Mrs. Beeler was connected with the firm, and the facts set forth in such letters were true, as to the plaintiff John F. Beeler, then the verdict should be for the defendants. where; that he was not contemplating on that date the shipping of any produce to Denver; that he had been engaged in the hotel business at Littleton, since which time he had been employed as janitor at the courthouse, with the exception of a period when he tended bar. He further stated that the letter which he addressed to the defendants was written at the request of a party named Sherrer; that he (the witness) dictated the letter which was written by Sherrer; that he wrote the letter to the defendants simply because Sherrer requested it; that he was not acquainted with either the plaintiffs or 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 action. Pedroni v. Eppstein, 17 Colo. App. 424, 68 Pac. 794; Ralph v. Lockwood, 61 Cal. 155. The defendants requested an instruction to the effect that if the plaintiffs procured the writing of the letter complained of with the 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 reCompany, 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. He 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 libcl 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 wased 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. 156 Mass. 543, 570, 31 N. E. 656; Sutton v. [Ed. Note.-For other cases. see Pleading, Cent. Dig. §§ 686-709; Dec. Dig. § 248.*] Smith, 13 Mo. 120. 3. APPEAL AND ERROR (§ 169*) - QUESTIONS REVIEWABLE QUESTIONS NOT RAISED IN TRIAL COUrt. If the defendants were guilty of no wrong against the plaintiffs with respect to the Finn letter, except a wrong invited and procured by them to be committed for the purpose of making it the foundation of an action, it would be unjust to permit them to profit by it. He who thus acts values money more than character. The judgment of the district court is reversed and the cause remanded for a new trial. Reversed and remanded. STEELE, C. J., and WHITE, J., concur in reversal upon the grounds stated, except those stated in discussing instruction No. 14, and as to those, express no opinion. On Petition for Rehearing. GABBERT, J. In support of their petition for rehearing, counsel for appellees contend that we have ignored section 10 of our Bill of Rights, which provides, in substance, that in suits and prosecutions for libel, the truth thereof may be given in evidence, and that the jury, under the direction of the court, shall determine the law and the facts. This is inconsistent with the position assumed by counsel in their original brief; but aside from this, the question of the applicability of the section of the Bill of Rights referred to has not been in any wise determined. The question does not appear to have been raised below; it was not urged upon our attention in the original brief; and we have not expressed any opinion whatever on that subject. The petition for a rehearing is denied. AMEND A question not raised in the trial court will not be considered on appeal. Error, Cent. Dig. § 1018; Dec. Dig. § 169.*] Negligence which is not the approximate Whether those acts of negligence charged in the complaint in an action for personal inthe cause of the injury should be submitted to jury which there is testimony to establish were the jury. [Ed. Note.-For other cases, see Negligence, Cent. Dig. §§ 327-332; Dec. Dig. § 136.*] 6. TRIAL (§ 253*)-INSTRUCTIONS-ISSUES. An instruction authorizing a recovery on the jury finding the negligence alleged in the complaint in an action for injuries to a servant is erroneous as taking from the jury the negligence pleaded as a defense, unless other inissues of assumption of risk and contributory structions obviate the objection. [Ed. Note. For other cases, see Trial, Cent. Dig. §§ 613-623; Dec. Dig. § 253.*] 7. MASTER AND SERVANT (§§ 101, 102*)-DUTY OF MASTER. A master must exercise reasonable care in providing reasonably safe appliances for the use of his servant, and where, through his failure so to do, the servant is injured without fault on his part, the master is liable. [Ed. Note.-For other cases. see Master and Servant, Cent. Dig. §§ 171, 173; Dec. Dig. §§ 101, 102.*] 8. MASTER AND SERVANT (§ 105*)-DUTY OF MASTER-CUSTOMARY ACTS. 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 as are usually employed by others in like circumstances, and, where it is usual to guard against the tendency of a belt shifting from a loose to a tight pulley by a device usually adopted, the failure of a master to adopt such guard is negligence, especially in view of the danger to which a servant is exposed by the sudden starting of machinery, unless he has provided some other reasonably safe means to prevent the shifting of the belt. [Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 185-191; Dec. Dig. 8 105.*] 9. NEGLIGENCE (§ 65*)-"CONTRIBUTORY NEG LIGENCE. "Contributory negligence" which will defeat a recovery for personal injury is such negligence on the part of the person injured but for which he would not have been injured. [Ed. Note. For other cases, see Negligence, Cent. Dig. § 83; Dec. Dig. § 65.* [Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 686-709; Dec. Dig. § 248.*] 2. PLEADING (§ 248*) — COMPLAINT MENT-ALLOWANCE. Where the complaint, in an action for injuries to an operator of a machine caused by the starting of the machine by the power belt shifting from the loose to the fixed pulley, alleged that the machine was not provided with a guard to prevent the belt from passing from one pulley to another, etc., an amended complaint, alleging 10. MASTER AND SERVANT (§§ 206, 219*)-INthat the belt was not properly adjusted because it had stretched and had a tendency to slip from one pulley to the other, and that the in For other definitions, see Words and Phrases, vol. 2, pp. 1540-1547; vol. 8, p. 7617.] JURY TO SERVANT-ASSUMPTION OF RISK. A servant accepts service subject to the risks naturally and reasonably incident to the |
