5 Colo. App. 208 | Colo. Ct. App. | 1894
delivered the opinion of the court.
The complaint, after alleging that the defendant, The Pueblo Press Publishing Company, was a corporation, engaged in the printing and publishing of a newspaper in the county of Pueblo, having a general circulation in that county, and known as the “Pueblo Press,” proceeds as follows :
“ Plaintiffs further say that they are a company composed of Henry Craig and J. D. Sexton, doing business under the name and style of Craig & Sexton, and they are now and have been for six or seven months last past, engaged in the business of making and selling tómales in the city of Pueblo, county o£ Pueblo, and state of Colorado; that on the 28th day of November, 1891, to be referred to hereafter, plaintiffs were and had been for some time immediately prior thereto, controlling, owning and doing all, or almost all, of said business then and there being done within said city of Pueblo, county and state aforesaid; that plaintiffs had by strict attention to business, honesty and fair dealing towards their customers, built up said business until the daily receipts
The answer of the-defendant admitted that it was a corporation, engaged in printing and publishing a newspaper in Pueblo county, having a general circulation in that county, but denied all the other averments of the complaint. The cause proceeded to trial and evidence for the plaintiffs was given which showed the publication by the defendant of the matters complained of. The evidence also tended to prove that the publication was intended to apply to the plaintiffs, that it was understood by the public as applying to them, and that as a consequence their business suffered serious injury. It was shown that the plaintiffs were not Dagos, that they had not been classed as Dagos among their neighbors or by the public, that they were the only firm in the city engaged in the manufacture and sale of tómales, and that none were made or sold by Dagos. At the close of plaintiffs’ case the defendant moved the court for a judgment of nonsuit. The motion was sustained, and judgment given for the defendant, to reverse which the plaintiffs prosecute this appeal.
The only question we are required to determine relates to the sufficienc}- of the complaint. The libelous character of the published words is not, and cannot very well be, questioned ; but it is contended that on their face they do not •refer to the plaintiffs, and that the complaint does not contain the necessary averments to show the application of the defamatory matter to them. The persons alluded to in the libelous publication were termed “ Dagos,” and the plaintiffs were not Dagos, but the persons intended were otherwise described in such manner that their identitjr could easily be fixed. In reference to these persons it was stated in the publication that nearly the whole business of Pueblo was owned and controlled by one company. From this description it could not have been difficult for the citizens of Pueblo to ascertain what persons were meant, notwithstand
The complaint avers that the words in question were published of and concerning the plaintiffs, and upon the authority of the case cited no further allegation was requisite to apply the words to the plaintiffs; but, conceding that this averment is not sufficient in itself, and that the allegation of some extrinsic fact or facts, identifying the plaintiffs with the persons alluded to in the publication, was necessary, we find a statement in the complaint which fully satisfies the requirement. It is set forth, by way of inducement, that at the time of the publication the plaintiffs were, and had. been for some time previously, controlling, owning and doing all, or almost all, of the business mentioned, which was being done within the city of Pueblo. This is substantially the language used in the publication to describe the persons to whom it referred, and is a sufficient identification of the plaintiffs as being those persons. We are of the opinion that the defendant’s objection to the complaint is not well taken; and as the evidence given was ample, in the absence of any showing by the defendant, to authorize a verdict for the plaintiffs, the court erred in granting the nonsuit. The judgment must be reversed.
Reversed.