1. LIBEL AND SLANDER — Letter — Alleged Assault — Not Prosecutable Crime — No Error — Finding — Libel Per Se. Where plaintiff's complaint alleged that defendant, in a letter, had accused plaintiff of assaulting an elderly gentleman in a show ring in Cheyenne, defendant's contention that letter was not libelous, per se, because no prosecutable crime was charged is not persuasive; and there was no error in trial court's granting summary judgment on the basis that the letter was libelous per se.
Opinion by JUDGE ENOCH.
This is a libel action brought by Harold McLaughlin against Lawrence Gomba. The parties appear here in reverse order to that in which they appeared in the trial court and will be referred to by name or by their trial court designation. McLaughlin alleged in his complaint that a letter written and delivered to other persons by Gomba contained false and defamatory statements concerning him. Gomba's answer contained 22 defenses, the major one being that the statements were substantially true. Neither party requested a jury. The court concluded that the statements constituted libel per se, and granted McLaughlin's motion for summary judgment. Following a hearing to the court on damages, McLaughlin was awarded one dollar nominal damages. Gomba appeals.
The letter in question was written by Gomba on April 1, 1968, and was addressed to one Jean S. Brown. Copies were mailed to three other persons. Included in this letter were the following words which are the basis of this action:
". . . nor as devastating as the action taken by McLaughlin at Cheyenne a few years back when he bodily assaulted an elderly gentleman in the show ring."
Gomba admitted he wrote and published the letter and that the "McLaughlin" referred to was the plaintiff. Gomba further admitted that he could not prove McLaughlin committed an assault in Cheyenne, but alleged McLaughlin did assault an elderly gentleman from Cheyenne in a show ring near Brighton, Colorado, in 1961. The trial court concluded that proof of this incident would not constitute a defense of truth.
Gomba alleges several errors for our consideration.
I.
[1] Gomba contends the trial court erred in granting a summary judgment because the complaint was not properly one of libel per se and the pleadings were insufficient for recovery under libel per quod. Gomba argues the statement is not libel per se because there was no allegation that a crime chargeable by indictment or information had been committed by McLaughlin and this could not have been alleged because the statute of limitations had run on the alleged assault in Brighton. We do not find this argument persuasive.
A false writing published of another of a character which charges him with the commission of an act which will make him the subject of odium is libelous per se. Burns v. Republican Publishing Co., 54 Colo. 100, 128 P. 1122. Determination of whether the statement is libelous per se is for the trial court to determine. Knapp v. Post Printing Publishing Co., 111 Colo. 492, 144 P.2d 981. We find no error in its ruling.
II.
[2] Gomba next contends the trial court erred in granting a summary judgment because there were genuine issues of fact upon which a trial should have been held. In cases of libel per se, it is only necessary that plaintiff prove the defendant wrote and published a defamatory statement. Gomba admitted writing and publishing the letter and the trial court found the statement was defamatory. Gomba conceded he could not prove McLaughlin committed an assault in Cheyenne. The trial court found, and we agree, that as a matter of law, proof that McLaughlin committed an assault near Brighton, would not support a defense of truth. There were, therefore, no genuine issues of fact and the trial court correctly granted the summary judgment. Ridgewood Mobile Homes Park, Inc. v. Alameda Water and Sanitation District, 159 Colo. 178, 410 P.2d 641.
III.
[3] Gomba argues the trial court erred in denying his motion for costs and attorney fees under R.C.P. 37(c). Gomba served Mclaughlin with a request for an admission that McLaughlin assaulted a man in a show ring near Brighton. McLaughlin denied any such assault. Gomba then took depositions of witnesses to the alleged assault to prove its occurrence. Rule 37(c) provides:
"If a party, after being served with a request under rule 36 to admit the genuineness of any documents or the truth of any matters of fact, serves a sworn denial thereof and if the party requesting the admissions thereafter proves the genuineness of any such document or the truth of any such matter of fact, he may apply to the court for an order requiring the other party to pay him the reasonable expenses incurred in making such proof, including reasonable attorney's fees. Unless the court finds that there were good reasons for the denial or that the admissions sought were of no substantial importance, the order shall be made."
Consistent with its determination that proof of the incident in Brighton would not constitute a defense of truth, the trial court denied Gomba's motion on the ground that the admissions sought were immaterial to the action. This decision was within the sound discretion of the trial court and will not be disturbed. Superior Distributing Corp. v. White, 146 Colo. 595, 362 P.2d 196.
IV.
[4] Gomba also alleges the trial court erred in granting a summary judgment because defendant's statement was a conditionally privileged communication. Gomba did not raise this defense in his answer nor was it set forth as a point of error in his motion for a new trial and we will not now consider it. Pinello v. Kurtz, 138 Colo. 351, 333 P.2d 624.
Judgment affirmed.
CHIEF JUDGE SILVERSTEIN concurs.