Republican Pub. Co. v. Miner

Stallcup, C. 1. Against the objection of appellant, the court permitted witnesses for appellee to testify as to their understanding-of what was charged by the said matter so published June 21st; their testimony being that [86] they understood that the offense of attempt to murder by poisoning was charged thereby. I think this evidence was improperly admitted, and that the evidence so admitted was prejudicial to appellant. By section 10, article 2, of our constitution it is provided that in cases of this kind, under the direction of the court, the jury shall determine the law and the fact. ' The admission of improper evidence, calculated, as this was, to influence the jury in such determination, cannot be said to be without prejudice, especially in view of the directions upon which the question was submitted to the jury, wherein the court, correctly, as I think, directed the jury to find from the evidence and the publication whether or not the publication charged an attempt to commit murder by poisoning the family of Potter. There was no pretense that the witnesses who gave the said testimony were possessed of superior knowledge in the premises, or that the question was one calling for or admitting of expert testimony. The evidence had no legitimate place in the case, and was calculated to mislead the jury. See Railroad Co. v. Wilson, ante, p. 20. 2. Por libel charging the crime of murder, or attempt to murder, a recovery may be had without proof of an actual pecuniary loss. This is so because the natural or necessary consequence thereof is to cause injury to the person so defamed—-in his'feelings, in his reputation, in his pecuniary affairs, or in all of them.- It seems to be accepted without showing that injury follows to the person who is so wrongfully assaulted in his reputation and character; and this seems in accord with reason, as it is certainly reasonable and* right that every person should desire the esteem of the people of the community in which he lives, and that the same should be held of value. There was no error, therefore, in the court’s instruction on this branch of ’the case. 3. The appellant upon the defense was permitted by the court to give testimony showing the general reputa [87] tion of the appellee in the neighborhood for “peaceableness, quietness and as a neighbor ” before and at the time of said publication. And in rebuttal the appellee was permitted to give testimony as to her general reputation in the neighborhood as to good moral character and worth. The appellant upon the defense also offered to prove, among other things: First, by the attending physician of the said Potter family that the said family were suffering from the effects of arsenical poison upon the occasion referred to; second, by the manager of the Republican Publishing Company that he called to see the appellee after the publication of the said article, and that she refused to see him (there being nothing to disclose the purpose for which he wished to see her); third, by witness George Bennett, a neighbor of the appellee, that the matters contained in the publication were currently reported in the neighborhood at and before the same were published,— all of which were rejected by the court. By section 73 of our code it is provided as follows: ■ “In the actions mentioned in the last section [libel and slander] the defendant may, in his answer, allege both the truth of the matter charged as defamatory and any mitigating circumstances, to reduce the amount of damages; and, whether he prove the justification or not, he may give in evidence the mitigating circumstances.” Other states have a like legislative provision concerning the rights of defendants in actions for damages for libel and slander, and the scope thereof has been considered by the courts of those states. See Bush v. Prosser, 11 N. Y. 347; Bisbey v. Shaw, 12 N. Y. 67; Wilson v. Fitch, 41 Cal. 363. The damages recoverable in this action under the decisions of this court are confined to compensatory as distinct from punitive damages; that is to say, nothing is recoverable as penalty for malice in an action of this kind. This was conceded by the parties in this case and [88] the jury was so instructed by the court. See Murphy v. Hobbs, 7 Colo. 541; Railroad Co. v. Yeager, 11 Colo. 345. According to the law applicable in this case the mitigating circumstances referred to in said section 73 are limited to circumstances tending to show a mitigation of the injury inflicted — a mitigation of the damages naturally flowing therefrom. The circumstances showing the acts and conduct of the party inflicting such injury in retracting or explaining the matter published, or anything else tending to lessen or to remove the injury or in any way to restore the injured party to the esteem previously enjoyed, are admissible in mitigation. Likewise evidence tending to show the character of plaintiff and his general reputation should, I think, be admissible in this state; and this is especially true where, as in the case at bar, no special damages are alleged or proven. Circumstances which in no way mitigate the injury or show the extent of the injury inflicted cannot mitigate the damages or lessen the amount of compensation deemed commensurate with the injury. Where punitive damages are eliminated entirely from the case, as in this state, circumstances relating to malice seem to have no purpose or place in the case. It will be seen that in many of the other states the recovery in such cases is not so limited, but may extend to punitive damages. For this reason the rule as stated in those states is inapplicable here. See Wilson v. Fitch, 41 Cal. 363; Bisbey v. Shaw, 12 N. Y. 74. It does not appear that the evidence above stated could in any way mitigate the compensatory damages recoverable in this action. The rejection thereof, therefore, was not error. 4. The appellant requested the court to instruct that, if the jury believed that the matter published was true, there could be no recovery. There was no error in refusing such instruction, as the appellant did not justify, [89] by pleading, the truth of the matter published. Cooley, Torts, 207, 208. Neither was there any attempt to prove the truth thereof. For the errors noticed the judgment should be reversed and the case remanded. Per Curiam. For the reasons given in the foregoing opinion of Commissioner Stalloup, the judgment of the court below is reversed and the cause remanded. . Iieversed.