Campbell v. Post Pub. Co.

• Decision Date: 25 March 1933
• Docket Number: 7026.
• Parties: CAMPBELL v. POST PUB. CO.
• Court: Montana Supreme Court

20 P.2d 1063

94 Mont. 12

CAMPBELL v. POST PUB. CO.

No. 7026.

Supreme Court of Montana

March 25, 1933

Rehearing Denied April 15, 1933.

Appeal from District Court, Silver Bow County; Wm. E. Carroll Judge.

Action by Mary Campbell against the Post Publishing Company. From a judgment for defendant, plaintiff appeals.

Affirmed.

Frank K. Sullivan, Philip O'Donnell, and Roy P. Leahy, all of Butte, for appellant.

D. M Kelly, D'Gay Stivers, John V. Dwyer, and John A Groeneveld, all of Butte, for respondent.

ANGSTMAN Justice.

This is an action for damages for an alleged libel. At the conclusion of all of the evidence the court granted defendant's motion for a directed verdict in its favor. Plaintiff's motion for a new trial was denied, and she appealed from the judgment.

In denying the motion for new trial the court's order recites: "Herein upon plaintiff's motion for a new trial after a verdict directed by the court in favor of defendant after trial had upon the merits, from all of which testimony plaintiff's complaint was supported as to all the material allegations of fact therein alleged, save and except as to proofs of actual damages (nominal damage not being allowable under the pleadings by reason of the publication not being libelous in itself), and no special damage having been alleged in the complaint and none having been shown, the court this day denies said motion for a new trial herein."

The effect of the court's order is to hold that the complaint is insufficient and that the want of allegations was not cured by the evidence. If the complaint is insufficient, the order must be sustained. Bray v. Cove Irrigation District, 86 Mont. 562, 284 P. 539.

The complaint charges that defendant printed and published at Butte, on February 20, 1931, the following article in its newspaper, which was widely circulated, to wit:

"To honor Mrs. P. McGivern, whose birthday occurred during the week, Mrs. Marion Campbell Evans, Mrs. May Doran, and Mrs. Nellie Shea arranged a surprise party at the McGivern home on Boardman Street.

Dancing and the serving of a midnight supper gave pleasure to the guests who were Mr. and Mrs. C. Karls, Mr. and Mrs. M. Murphy, Mr. and Mrs. J. B. Sullivan, Mr. and Mrs. J. Engligh, Mr. and Mrs. R. C. Hendrickson, Mr. and Mrs. T. M. Griffin, Mr. and Mrs. J. Evans, Mr. and Mrs. M. Brady, Miss Jewell Whalen, Miss Maureen Doran, Miss S. Forbis, Dick Hodge, Mike Hunt and Haves Hoar with the honor guest."

It alleges that plaintiff is the wife of Dan Campbell and enjoys a good reputation; that there is no such person as Mrs. P McGivern, but that Patrick McGivern is a resident of Butte and a friend of plaintiff; that about the time of the publication a Mrs. Bridget Gallagher resided in Butte and that there was a rumor current among the friends of McGivern, Mrs. Gallagher, and plaintiff that McGivern and Mrs. Gallagher intended to intermarry; that no surprise party had been given, and that the publication was false in toto; that plaintiff is known among her friends, both as Mrs. Mary Campbell and Mrs. Marian Campbell; that the published words "Mrs. Marian Campbell Evans" were of and concerning plaintiff; that J. Evans, referred to in the published article, refers to James Evans, a roomer at the rooming house conducted by plaintiff in Butte; that James Evans and Ruby O. Evans prior to March 6, 1931, were husband and wife; that on January 24, 1931, James Evans commenced action against his wife for a divorce and had ceased to live with her after January 19, 1931, which facts were generally known by the friends of James Evans and plaintiff in Butte. It is charged that by the words "Mrs. Marian Campbell Evans" and "Mr. and Mrs. J. Evans" it was meant to the friends of plaintiff that plaintiff and James Evans (a) had intermarried at a time when they were both then and there married, and known to be married, to other persons; (b) had committed the crime of bigamy; (c) had attended a surprise party as husband and wife at a time when both were then and there married...