in the nature of express malice appears. The question of the existence of such circumstances should be submitted to the jury by appropriate instructions. Appeal from the District Court of Arapahoe County. Mr. L. B. FRANCE, for appellant. Mr. L. WALKER and Mr. J. M. WASHBURN, for appellee. THOMSON, J., delivered the opinion of the court. The subject-matter of this action is the following publication concerning the appellee made by the appellant in its newspaper, The Denver Republican: "IN THE PROPER PLACE. "JOHN CONROY JAILED FOR MAKING ASSAULTS ON LITTLE GIRLS. "John Conroy was yesterday arrested by Detectives Ingersoll and Ustick for assault and battery. Conroy is one of the mean, low-lived counterfeits on manhood who make a practice of enticing little girls from their homes and then attempting assault. Two children living at 935 and 945 Seventh avenue, on Tuesday were decoyed by Conroy. He did not succeed in his dastardly purpose, being driven from it by the cries of the girls. Yesterday Conroy was identified by the girls' mothers and his arrest followed." The defendant answered the complaint, denying its several allegations, averring that the published statements were true, that they were published in good faith, believing them to be true, and that they were privileged. Upon the trial of the cause the jury found a verdict in favor of the plaintiff for $1,500, and judgment was rendered upon the verdict, from which the defendant appealed. If the publication was not privileged it was clearly libelous; but the claim of privilege is made and we shall examine it. If the writer had contented himself with giving the fact of the arrest and the charge upon which it was made, the claim of privilege would be entitled to consideration, but he proceeded upon his own responsibility to brand the plaintiff with an opprobrious epithet, and to assert him guilty of the most disgraceful and infamous of offenses. If the statements were false the mere fact that the defendant believed them to be true does not justify their publication; and, giving the words the force and effect which were obviously intended, we do not understand upon what theory the claim of privilege can be made in their behalf. In White v. Nicholls, 3 How. (U. S.) 266, Daniel, J., classifies privileged communications as follows: 1-Publications made in the bona fide discharge of a public or private duty, legal or moral; or in the prosecution of the rights or interests of the author. 2-Anything said or written by a master in giving the character of a servant who has been in his employ. 3-Words used in the course of a legal or judicial proceeding. 4-Publications duly made in the ordinary mode of parliamentary proceedings. It is only under the first of the foregoing classes that a claim of privilege can be made in this case. There is no special privilege attached to a newspaper as such, and nothing which would not justify an individual in his defamatory statements would justify it. It is evident that the article complained of was published as a matter of local news, and not in the discharge of any duty owed by the defendant to itself or others; and the publication was therefore not privileged. See Foster v. Scripps, 39 Mich. 376; Sheckell v. Jackson, 10 Cush. 25; Mallory v. PioneerPress Co., 34 Minn. 521. Evidence was introduced by the defendant tending to prove the truth of the statements; and other evidence of a rebutting character was given in behalf of the plaintiff. Some questions are made upon the rulings of the court admitting and rejecting evidence, but we do not discover any error in these rulings of sufficient importance to warrant a reversal of the judgment. Several instructions requested by the defendant were refused. Some of them did not correctly state the law, and were therefore properly refused; while those to which the defendant was entitled were substantially embraced in the instructions given. In a certain sense it may be said that pecuniary loss is the gist of an action for libel, because, in theory, the damages sustained are compensated in money; but it would have been misleading and erroneous to instruct the jury that their verdict must be confined to the pecuniary loss actually proven. Where, as in this case, the words are actionable per se, the law presumes damages. No special evidence concerning them is required. The real gist of the action is the injury to the plaintiff's reputation. When that is clear there is no need to inquire further; and it is for the jury to determine what amount, by way of compensation, shall be allowed for the injury. Neither would it have been proper to instruct the jury that, to entitle the plaintiff to a verdict, express malice must be shown. The language being libelous upon its face, and not being within any of the classes of privileged communications, the law implies malice in the author, whether, in fact, it existed or not; and evidence of malice is not required outside of the proof of the publication itself. The instructions given by the court clearly and correctly presented the law applicable to the case, with one exception; but that exception is fatal to the judgment. Among the instructions given was this: 66 "In a suit for libel the injury to the plaintiff's reputation is the gist of the action, and the damages are not necessarily confined to the pecuniary consequences. In such case the jury may take into consideration, in making their award, the actual damages, if any, sustained, and may also award what is known as exemplary or punitive damages in the nature of punishment and to deter others from a similar offense." Before the passage of the act of 1889, it was settled in this state by a series of adjudications that exemplary damages could not be recovered in any civil action. Murphy v. Hobbs, 7 Colo. 541; G. S. L. & P. Ry. Co. v. Yeager, 11 Colo. 345; Rep. Pub. Co. v. Miner, 12 Colo. 77. That act is as follows: "SECTION 1. That in all civil actions in which damages shall be assessed by a jury for a wrong done to the person, or to personal or real property, and the injury complained of shall have been attended by circumstances of fraud, malice or insult, or a wanton and reckless disregard of the injured party's rights and feelings, such jury may, in addition to the actual damages sustained by such party, award him reasonable exemplary damages." Session Laws, 1889, p. 64. This statute did not operate to change the rule, as it had been established, in any case where nothing is shown except the naked wrong. In French v. Deane, 19 Colo. 509, where this act was the subject of discussion, Chief Justice Hayt said: "To justify exemplary damages there must be some wrong motive accompanying the wrongful act, or a reckless disregard of plaintiff's rights." In libel the law implies malice from the fact of the publication, but no actual malice may exist. The publication may be made in a belief of its truth, and without any desire or intention to do the aggrieved party an injury. Where such is the case, the statute does not contemplate the recovery of more than compensatory damages. Exemplary damages can be awarded only where something in the nature of express malice appears. The publication must not only be libelous per se, but it must be attended by circumstances of fraud, malice or insult, or a wanton and reckless disregard of the injured party's rights and feelings. The question of the existence of such circumstances must be submitted to the jury by appropriate instructions, and an instruction which submits to them the question of exemplary damages, without also submitting to them the question whether the facts upon which the statute gives the right to such damages have been proved, is fatally defective. For these reasons the instruction in question was erroneous, and the judgment must therefore be reversed. Reversed. THE ACME COAL MINING COMPANY V. McIVER. 5 267 5 282 1. EVIDENCE. In an action for damages for injuries sustained, where the whole case made was one of carelessness, the injuries not resulting from the use of defective machinery or appliances, the admission of evidence tending to show that defendant's machinery and appliances were defective and unsafe, and instructions as to an employer's duty to provide safe and proper machinery, etc., present false issues and constitute reversible error. 2. EMPLOYER AND EMPLOYEE-FELLOW SERVANT. A master is not liable to one servant for an injury inflicted by another in the common service, unless he can be charged with some degree of fault or negligence in his employment or retention. 3. SAME. If a servant is generally known to be negligent and incompetent, the master is chargeable with negligence for not knowing his reputation, but the bad reputation must be so general that negligence may be imputed for failure to make inquiry. 4. SAME. The master is only required to use reasonable diligence in the selection of competent servants, with reference to the nature of the employment and the dangers incident to the employment of unskillful or incompetent persons. This rule is controlled by another: that when a coservant is injured through the incompetency of a fellow servant, and he knows or has the same means of knowing such incompetency as the master has, he cannot recover for injuries resulting to him from such servant's negligence. If the servant runs the risk with his eyes open, he will ordinarily have no remedy, Appeal from the District Court of Boulder County. APPELLANT was operating by steam machinery a coal mine, and had in its employment a large number of miners and other men engaged in the different occupations pertaining to the prosecution of the work. Among them was George McIver, husband of Annie McIver (appellee), aged 28 years, and Mathew Ranson, aged 16 years. The shaft through which the coal was hoisted was about 125 feet deep, divided into two compartments, in each of which was a "cage" for hoisting the coal to the surface. The cages 5 267 35S 16 |