46 Colo. 440 | Colo. | 1909
delivered the opinion of the court:
The appellant contends that the judgment should
The demurrer, to the second defense, was based upon the ground that it did not state facts sufficient to constitute a defense, and that the matters therein set forth were immaterial and irrelevant.
Directing our attention to the defense demurred to we find that, while some of the allegations therein are legal conclusions, others are clearly well plead, and as to such the demurrer confessed their truth, and the ruling of the court thereon deprived the defendant of the right to show to the jury what the facts of the case wer-e, how the publication came to be made, the way it was intended, and was understood, by the readers of the paper. These we think the defendant had a right to bring before the jury and it was error to limit the pleadings in that respect.
Libel is defined by Mills ’ Ann. Stats., § 1313, as follows: “A libel is a malicious defamation expressed either' by printing, or by signs, or pictures or the like, tending to blacken the memory of one who is dead, or to impeach the honesty, integrity, virtue or reputation, or publish the natural defects of one who is alive, and thereby to expose him or her to public hatred, contempt or ridicule. ’ ’
Under this statute the defamation must be malicious, and as applied to this case, must impeach the virtue of the plaintiff. While it is true that the publication concerning one of a false and scandalous article, libelous per se, implies malice sufficient to support the charge, and entitle the plaintiff to compensatory damages, it does not preclude a defendant from showing there was, in fact, no maliciousness in the publication and thus prevent exemplary damages
The article under consideration, in order to be libelous, must also impeach the virtue of the plaintiff. Every false article is not an actionable libel, just as every untruth is not a lie. To be an actionable libel the elements to make it such must be present in the article itself, or fairly implied therefrom and the circiimstances surrounding its publication. So if the elements that constitute libel are clearly expressed in-the article, it is actionable per se, and becomes conclusive upon .the publisher, unless, under the circumstances, the words used were fairly capable of being understood in a special sense, rendering them not defamatory, and that they were so understood.
The intent of the publisher and the effect of the publication, must be gathered from the words and the circumstances under which they were uttered, and the publisher is, prima facie, presumed to have used them in the sense which their use is calculated to convey to the minds of the readers of the publication. When so construed the words may be defamatory on their face, in which case the action may be maintained, unless the defendant can, and does, allege and prove,- that, under the circumstances, they were fairly capable of being understood in a special sense, rendering them not defamatory, and that they were so understood. Or they may not be defamatory on their face, in which case the action cannot be maintained, unless the plaintiff can, and does, show that they were, under the particular circumstances, fairly ca
We find in vol. 2, Current Law, p. 707, note, tbe law applicable to this case stated as follows:
“If tbe words, when construed according to tbeir natural and ordinary meaning, are defamatory on their face, which, as we have seen, is a question of law for the court, the action may be maintained unless the defendant, and the burden is on him, can and does show that they were capable of a special meaning rendering them not defamatory, and that they were so understood.—Peake v. Oldham, Cowp. 275; Bigelow’s Cas. 122; Bigelow’s Lead. Cas. 73.
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“The mere fact that the words might possibly have been used in a special sense rendering them not defamatory, is no ground for so construing them, so as to exempt the defendant from liability, instead of giving them their natural meaning, unless it is shown that they wefe in fact used and understood in such special sense.
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“Although the words complained óf are not only capable of the defamatory meaning ascribed to them, but ordinarily and naturally have such meaning, they are not actionable, where the-defendant proves the circumstances under which they were used, and these circumstances show that the words were not only used, but understood by the hearers, in a sense which does not render them actionable.—Pollock Torts (Webb’s ed.), 313; Lord Cromwell’s Case, 4 Coke 13; Van Rensselaer v. Dole, 1 Johns. Cas. (N. Y.) 279; Chase’s Cas. 115; Dedway v. Powell, 4 Bush (Ky.) 77, 96 Am. Dec. 283; Trabus v. Mays, 3 Dana (Ky.) 138, 28 Am. Dec. 61; Shecut v. McDowell, 3 Brev. (S. C.) 38, 5 Am. Dec. 536; Fawcett v. Clark, 48 Md. 494, 30 Am. Rep. 481; Egan v. Semrad, 113 Wis. 84.
*449 “Thus, as we have seen, it is not actionable to call a man a ‘murderer’ where the word is shown to have, been used and understood with reference to his killing game by engines or traps (Lord Cromwell’s Case, 4 Coke 13), or to call men ‘highwaymen, robbers and murderers,’ where the words are shown to have been used and understood with reference to transactions known not to amount to the charge the words import.—Van Rensselaer v. Dole, 1 Johns. Cas. (N. Y. 279.”
It is clearly a question of law for the court to determine whether or not words constituting an alleged libel, and which are actionable per se, are capable of having the special meaning claimed by a defendant, and when the court holds that, words, ordinarily actionable per se, may, nevertheless, under the circumstances of a particular case, have such special meaning, then it becomes a question of fact, to be determined by the jury, as to what the real meaning is, and how the words were understood.
To illustrate these principles we- adopt the example suggested by counsel. The wife of A is despondent, because her husband neglects her, and commits suicide. These facts are well known to the public generally. B thereupon, while the matter is fresh in the minds of the people, publishes of A that he murdered his wife. A sues B for libel, alleging that B accused him of having committed murder. B answers that while the language used would ordinarily mean whát A claims, yet, under the circum-^ stances of the accusation, the real meaning was that A’s absence from home, and neglect of his wife, so preyed upon her mind that .she killed herself, and that the readers of the publication so understood the charge. Under these circumstances the court certainly would have no right to sustain a demurrer to the answer, and to hold that the publication means
It is certainly libelous, prima facie, to say of an unmarried woman that she has become a mother, for such words ordinarily imply the want of chastity, and bring the case clearly within the statutory definition of libel. Almost without exception such a charge carries with it the imputation that the female is guilty of fornication, is lacking in virtue, but we are of the opinion that this does not necessarily follow. To say of an unmarried female, whe- has been carnally known against her will, that she' has become a mother does not necessarily charge her with unchastity or impeach her virtue. It is not a certain accusation of unlawful or illicit intercourse on her part. It does not necessarily mean that she is guilty of fornication or any wrong. It may mean only that mysterious nature has taken its course in that process by which the human race is propagated and continued. An unmarried female may become a mother and. still be virtuous. Such an one, who has. been carnally known against her will, and as a result thereof becomes a mother, has not thereby lost her virtue, nor her chastity. She may, notwithstanding the outrage committed upon her, be of unspotted purity. The child in her arms is not the result of her own evil. Marian Erie in “Aurora Leigh,” expresses this thought when, with her babe in her arms, she says:
“Man’s violence,
Not man’s seduction, made me what I am.”
Sec. 69, Mills’ Ann. Code, expressly provides that the answer in an -action for libel may allege,
It has been held that a defendant newspaper may plead in mitigation of damages that it merely copied the libelous article from another paper.—Arnott v. Standard Assn. 3 L. R. A. (Conn.) 69.
In Edwards v. San Jose P. Society, 37 Amer. St. (Cal.) 70, it is held, that while good faith is not a defense, it may be pleaded in mitigation of damages.
In Republican Publishing Co. v. Mosman, supra, 409, this court said:
“If the truth of the published matter could be established by evidence, it was a complete justification and defense. The defendant was also entitled to give in evidence any circumstances properly in mitigation of said publication, for the purpose of reducing the amount of damages, even if the publication was, in fact, false.—Const., art. 2, § 10; Code Civil Proced., § 69.”
The sustaining of the demurrer, and the striking of portions of the answer by the trial court are so at variance with our view of the law applicable to this case, that the judgment must he, and accordingly is, reversed. Reversed.