Volume 160 — Colorado Reports

1. <bold>WORKMEN'S COMPENSATION</bold> — <italic>Review — Order — District Court — Time</italic><italic>Limitation — Statute — Bar — Alternative Relief — Rules.</italic> A claimant who fails to seek review of a commission order in the district court within the twenty day period specified by C.R.S. 1963, 81-14-7 is thereafter barred from asking for judicial review; and she is also barred from seeking alternative relief pursuant to R.C.P. Colo. 106 (2) and (4) in view of fact that C.R.S. 1963, 81-14-8 provides the sole remedy for claimant's cause of action.

1. <bold>CRIMINAL LAW</bold> — <italic>Fair Trial — Pre-trial Publicity — Evidentiary Hearing</italic><italic>— Post Conviction Relief — Motion.</italic> Reviewing court is in accord with Attorney General's position that defendant's claim, that he did not receive fair and impartial trial because of allegedly massive and highly prejudicial pre-trial publicity, can only be determined after an evidentiary hearing, hence, judgment denying defendant's motion under Rule 35(b) is reversed and the cause remanded with direction that further and additional hearing be held.

1. <bold>LIBEL and SLANDER</bold> — <italic>Limitation of Action — One Year — Statute.</italic> In action for libel, reviewing court concludes that counts one and two in amended complaint constitute "new" claims, and not having been asserted against defendant within one year after the cause of action accrued, are now barred by the provision of C.R.S. 1963, 87-1-2. 2. <italic>Press Release — Libel Per Se — Crime.</italic> Press release in question was libelous per se in that it charged plaintiff with the commission of a crime. 3. <bold>INDICTMENT and INFORMATION</bold> — <italic>Charge — Crime — Language — Statute.</italic> One can be charged with the commission of a crime even though it is not done in the exact language of the statute. 4. <bold>COURTS</bold> — <italic>Libel Per Se — Malice — United States Supreme Court — Rule —</italic><italic>Damages.</italic> Rule announced by United States Supreme Court in <italic>New York Times</italic><italic>Company v. Sullivan</italic> applies to instant controversy to the end that even though the news release in question is libelous per se, nevertheless, plaintiff cannot recover unless he is able to show actual malice on the part of defendant. 5. <bold>LIBEL and SLANDER</bold> — <italic>Malice — Amended Complaint — Cause of Action.</italic> Charge of actual malice in count three of amended complaint by public personage against press association involving an allegedly libelous statement stated a cause of action.

1. <bold>CORPORATIONS</bold> — <italic>Long-Arm Statute — Reliance — Jurisdiction — Process —</italic><italic>Agent — State.</italic> It is not necessary to rely on "long-arm" statute to sustain jurisdiction of district court over foreign corporation where service of process was not made outside of state, but was made upon agent of foreign corporation in the state. 2. <italic>Long-Arm Statute — Jurisdiction — Limitation — Extension.</italic> The "long-arm" statute was passed by the Legislature in order to <italic>extend</italic> rather than to <italic>limit</italic> the jurisdiction of the courts of the state. 3. <bold>CONSTITUTIONAL LAW</bold> — <italic>Process — In Personam — Presence — Forum — Minimum</italic><italic>Contacts — Due Process — Fair Play.</italic> Due process requires only that in order to subject a defendant to a judgment <italic>in personam</italic>, if he be not present within the territory of the forum, he have certain minimum contacts<page_number>Page 492</page_number> such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. 4. <italic>Continuous Dealings — In Personam Jurisdiction — State Agent — Due</italic><italic>Process.</italic> When the activities of the agent are such as to constitute a continuous course of dealings within the state, due process is not denied by the exercise of <italic>in personam</italic> jurisdiction through service on the agent in the state. 5. <bold>CORPORATIONS</bold> — <italic>Foreign — Personal Service — Within the State —</italic><italic>Activities of Agent.</italic> As long as personal service is had within the state, the action itself need not arise out of activities of agent of foreign corporation within the state. 6. <italic>Foreign — Agent — Office — Telephone — Solicitation — Correspondence</italic><italic>— Trouble Shooter — Doing Business Within State.</italic> Where foreign corporation had an agent in the state who maintained a company office in his home, listed a home telephone under company's name, solicited orders, forwarded correspondence and acted as "trouble shooter" for company when needed, <italic>held</italic>, trial court probably found that company was doing business within the state and was subject to jurisdiction of its court. 7. <italic>Minimum Contacts Rule — Fair Play — Justice — Compliance.</italic> Under facts of instant case, reviewing court cannot say that the "minimum contacts" rule has not been met or that the maintenance of this suit would offend traditional notions of fair play and substantial justice. 8. <italic>Federal Due Process — Doing Business — State Law.</italic> So long as the dictates of federal due process are met, what constitutes doing business within a state is a matter of state law. 9. <italic>Foreign — Finding — Doing Business — Within the State — Evidence —</italic><italic>Weight.</italic> Reviewing court is of the opinion that as a matter of state law the finding of the trial court that the foreign corporation was doing business within the state is proper and not against the manifest weight of the evidence.

1. <bold>WORKMEN'S COMPENSATION</bold> — <italic>Hearing — Findings — Suitability of Employment</italic><italic>— Permanent and Total Disability.</italic> Where Commission failed to hold hearing<page_number>Page 504</page_number> and make express findings as to suitability of offered employment by employer to employe who had become permanently and totally disabled because of loss of vision as result of accident arising out of and in course of employment, and court nonetheless ordered reinstatement of Commission's earlier order that employe receive permanent total disability benefits,<italic>held</italic>, judgment reversed and cause remanded to trial court with direction that it remand matter to Commission with direction that Commission, after hearing, make express findings going to suitability of employment offered employe by employer. 2. <italic>Permanently and Totally Disabled — Suitability of Employment.</italic> The fact that a permanently and totally disabled person may, by some Herculean effort, perform a given task does not necessarily mean that such employment is suitable. 3. <italic>Reviewing Court — Fact-finding Body — Resolution of Question —</italic><italic>Employment — Suitability — Statute.</italic> Reviewing court is not a fact-finding body charged with resolution of question as to whether offered employment is or is not suitable; such, according to C.R.S. 1963, 81-12-8(2) is the Commission's sole responsibility. 4. <italic>Burden of Proof — Suitability of Employment — Permanent Total</italic><italic>Disability.</italic> Employer has burden of establishing "suitability" of employment offered injured employe where he seeks to avoid resumption of compensation payments to employe for injuries causing permanent total disability. 5. <italic>Burden of Proof — Benefits.</italic> A claimant has the burden of establishing his rights to compensation benefits. 6. <italic>Loss of Both Eyes — Total and Permanent Disability — Burden of Proof</italic><italic>— Statute.</italic> Under C.R.S. 1963, 81-12-8 (2) which provides that loss of both eyes shall prima facie constitute total and permanent disability, employe, in instant case, sustained such burden by establishing his loss of vision in both eyes. 7. <italic>Benefits — Reduction — Suitable Employment — Statute.</italic> Under C.R.S. 1963, 81-12-8 (2) compensation benefits, otherwise due, may be reduced where employer offers his injured employe "suitable employment."

1. <bold>CONSTITUTIONAL LAW</bold> — <italic>United States Supreme Court — Decision — Right to</italic><italic>Counsel.</italic> The United States Supreme Court decision of <italic>Escobedo v. Illinois</italic> hold that where an investigation is no longer a general inquiry into an unsolved crime, but is focused on a particular suspect who is in custody, and where the police carry out a "process of interrogation that lends itself to eliciting incriminating statements" the accused has been denied a constitutional right to counsel unless specific precautions are taken. 2. <bold>CRIMINAL LAW</bold> — <italic>United States Supreme Court — Decision — Right to</italic><italic>Counsel — Interrogation — Incrimination.</italic> The concept of police interrogation which falls within the ambit of the <italic>Escobedo</italic> opinion is a process of interrogation that <italic>lends itself to eliciting incriminating</italic><italic>statements;</italic> record in instant case contains no such process. 3. <italic>Police — Custody — Gas — Incriminating Statement — Right to Counsel.</italic> There is no duty on a police officer to seal the lips of persons in custody by resort to adhesive tape or gag to prevent them from making any statement which might be incriminating.<page_number>Page 529</page_number> 4. <italic>Unsolicited Statements — Decision — United States Supreme Court —</italic><italic>Inapplicability — Appeal and Error.</italic> Where statements of accused were not made in response to any question directed to him by police officer but were wholly unsolicited and voluntarily made, <italic>held</italic>, such situation is outside the ambit of the <italic>Escobedo</italic> opinion, and trial court did not err in permitting defendant's statement to go to the jury. 5. <bold>LARCENY</bold> — <italic>Instruction — Intoxication — Specific Intent — Appeal and</italic><italic>Error.</italic> Refusal of court to give instruction on intoxication of defendant as bearing upon his ability to form specific intent in larceny prosecution was not error.