Daniel v. Moncure

• Decision Date: 25 June 1920
• Docket Number: 4170.
• Citation: 190 P. 983,58 Mont. 193
• Parties: DANIEL v. MONCURE.
• Court: Montana Supreme Court

190 P. 983

58 Mont. 193

DANIEL v. MONCURE.

No. 4170.

Supreme Court of Montana

June 25, 1920

Appeal from District Court, Big Horn County; Charles L. Crum, Judge.

Action for slander by Marie Allen Daniel against W. P. Moncure. Judgment for plaintiff, and new trial denied, and defendant appeals. Reversed and remanded.

F. B Reynolds, of Billings, and John L. Waddell, of Hardin, for appellant.

E. E Enterline, of Billings, and C. F. Gillette, of Hardin, for respondent.

HOLLOWAY J.

This action was brought to recover damages for alleged slander. Plaintiff charges in her complaint that on May 10, 1915, in the presence of herself and other persons, the defendant used to and concerning her the following language:

"This is the toughest and commonest thing on the reservation. We won't have this thing around. She's the damnedest, commonest, toughest thing around here. I wouldn't have your damn old homestead (referring to a homestead held by plaintiff and her husband) the next one to me. I'll look for a man and put him on the place of mine (referring to some lands adjoining the homestead held by plaintiff and her husband and occupied by defendant) and tell him what you are."

By innuendo it is alleged that by the use of this language defendant intended to convey, and did convey, the meaning that plaintiff was a coarse, indecent, and unchaste woman. Defendant denied generally all the allegations of the complaint, and pleaded justification as follows:

"That the charged and supposed defamatory words in the complaint set forth were each and all of them true, and that the plaintiff was, on or about the 10th day of May, 1915, an unchaste woman, and was the damnedest, commonest, and toughest thing on the reservation, in the sense that she was a coarse, vulgar, indecent, and unchaste woman."

The trial of the cause resulted in a verdict for plaintiff, and defendant appealed from the judgment and from an order denying a new trial.

Throughout the proceedings the court below ruled that the language set forth in the complaint is slanderous per se, and upon these rulings the principal assignments of error are predicated. Special damages are not pleaded, and it follows that, unless the theory adopted by the trial court is correct, the complaint does not state a cause of action. Brown v Independent Pub. Co., 48 Mont. 374, 138 P. 258.

It is a rule of the law of slander that, if the language used, in and of itself, is not defamatory, but becomes so only in the light of the circumstances surrounding the utterance, the extrinsic facts disclosing its slanderous character must be pleaded. Cooper v. Seaverns, 81 Kan. 267, 105 P. 509. There are not any extrinsic facts stated in this complaint, so that the correctness of the trial court's position must be tested by reference to the language itself.

Slander is defined by section 3603, Revised Codes, as follows:

"Slander is a false and unprivileged publication other than libel, which:

1. Charges any person with crime, or with having been indicted, convicted, or punished for crime.

2. Imputes in him the present existence of an infectious, contagious, or loathsome disease.

3. Tends directly to injure him in respect to his office, profession, trade or business, either by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade or business that has a natural tendency to lessen its profit.

4. Imputes to him impotence or want of chastity; or,

5. Which, by natural consequence, causes actual damage."

There are certain well-defined rules applicable to cases of this character upon which the authorities are generally agreed:

(a) The alleged defamatory matter is to be construed as an entirety and with reference to the remaining portions of the conversation. Brown v. Independent Pub. Co., above.

(b) The opprobrious words are to be construed according to their usual, popular, and natural meaning and common acceptation, that is, in the sense in which persons out of court and of ordinary intelligence would understand them (25 Cyc. 355), for the presumption is to be indulged that the third party or parties present so understood them.

(c) If the language is not slanderous per se, the innuendo cannot make it such. Paxton v. Woodward, 31 Mont. 195, 78 P. 215, 107 Am. St. Rep. 416; Lemmer v. Tribune, 50 Mont. 557, 148 P. 338.

(d) If the language is susceptible of two meanings, one defamatory and the other not, it is for the jury to determine in what sense it...