Jackisch v. Quine

62 Colo. 72 | Colo. | 1916

Garrigues, J.,

after stating the facts as above:

Numerous questions are presented and argued in the briefs, two of which only, will be considered.

1. The ruling of the court in sustaining defendant’s motion for judgment on the pleadings was erroneous, for the reason that the document filed under the name of a “Motion for judgment on the pleadings,” was a general demurrer to the complaint. We have often held that the right to cure a defective complaint, if any defect exists, by amendment cannot be cut off by converting a motion of this kind into a general demurrer. Such a motion by defendant could not take the place of a general demurrer to the complaint. — Roberts v. C. S. & I. Ry. Co., 45 Colo. 189, 101 Pac. 59; Shuler v. Allam, 45 Colo. 372, 376, 101 Pac. 350, and cases cited; Whitehead v. Johnson, 51 Colo. 139, 119 Pac. 472; Eppich v. Blanchard, 58 Colo. 139, 143 Pac. 1035.

2. The principal question presented by the record is as to whether the words, “Short in his accounts,” spoken of a clerical employe, are actionable per se. Defendant in error in discussing the subject claims the gist of the action is based upon the word “short,” and proceeds to argue that such word is not actionable per se. No one would seriously contend that saying of another he was short, would be actionable per se; but for an employer to say of his clerk that he was ‘ ‘ short in his accounts,” is quite another matter. The words must be taken and considered in their commonly accepted meaning; and there is no doubt that people generally would understand that the person to whom they were applied was guilty of wrongfully converting to his own use the funds or property of his employer. Taking this view, we must hold that used as they are charged to have been in this complaint, the words are actionable per se. In Sunley v. Insurance Co., 132 Ia. 123, 109 N. W. 463, 12 L. R. A. (N. S.) 91, it is said in substance that the statement that an employe is ‘ ‘ short in his accounts, ’ ’ charges him with a criminal act, but if this were not so, it imputes to him dishonesty and unfaithfulness and is actionable per se.

It would have been error to have granted a motion by defendant for judgment on the pleadings. We have held where issue has been joined by the filing of a complaint, answer and replication, and defendant then moves for judgment on the pleadings, the motion should not be granted unless the pleadings are not sufficient to sustain a different judgment notwithstanding any evidence which might be produced. The pleadings in such a case must show that in no event can plaintiff recover. — Rice v. Bush, 16 Colo. 489, 27 Pac. 720; Mills v. Hart, 24 Colo. 507, 52 Pac. 680, 65 Am. St. Rep. 241; Roberts v. C. S. & I. Ry. Co., 45 Colo. 188, 101 Pac. 59; Larimer & Weld Co. v. Ft. Collins Co., 60 Colo. 241, 152 Pac. 1160; Stuart v. Colo. Eastern Co., 61 Colo. 58, 156 Pac. 152; Wallace v. Collier, 59 Colo. 148, 147 Pac. 660.

The judgment 'will be reversed and the cause remanded with directions to permit the parties to amend their pleadings as the); may be advised.

Reversed and remanded.

Mr. Justice White and Mr. Justice Scott concur.