BALDWIN, District Judge.
The action is based upon certain statements said to have been made by agents of the defendant, acting within the scope of their employment, of and concerning plaintiff.
Three causes of action are attempted to be set out in the complaint. The defendant has, by general demurrer, attacked the sufficiency of each of them.
The portions of the several causes of action which plaintiff contends show an infringement of her primary right by the defendant are as follows:
First Alleged Cause of Action.
"That heretofore, and on or about the 29th day of January, A. D. 1935, the defendant, Safeway Stores Incorporated, a corporation, then and there acting by and through its agent, Alvin Cobb, which said agent was then and there acting within the course and scope of his employment, did falsely, in the presence and hearing of Mrs. Annie Bawden, at or near 1520 Clayton Avenue, Butte, Silver Bow County, Montana, utter, speak and publish of and concerning plaintiff false and defamatory words as follows:
"`She (speaking of plaintiff) cashed a check at the Safeway Store and ordered a sack of flour sent to an address where there was no house and received change for the check. The check was no good and if you (referring to Mrs. Annie Bawden) don't have her (speaking of plaintiff) come down and see me, we will have the Sheriff after her' (speaking of plaintiff); to the damage of plaintiff in the sum of $10,000.00."
Second Alleged Cause of Action.
"That, as plaintiff is informed and believes, on or about the 26th day of January, A. D. 1935, some person, to plaintiff unknown, delivered and passed to the said defendant, Safeway Stores Incorporated, at 129 North Main Street, Butte, Montana, a false and fraudulent check in an amount unknown to plaintiff, and did receive in payment therefor certain goods, wares and merchandise unknown to plaintiff, as well as certain sums of money and change, the exact amount being to plaintiff unknown; but all of which is well known to the defendant; that on or about the 29th day of January, A. D. 1935, the said Alvin Cobb, while acting within the course and scope of his employment as agent and employee of the defendant, Safeway Stores Incorporated, did go to the home of plaintiff's mother, Mrs. Annie Bawden, at 1520 Clayton Avenue, Butte, Silver Bow County, Montana, and did then and there demand of said Mrs. Annie Bawden that plaintiff on the following day come to the store of the defendant, Safeway Stores Incorporated, at 129 North Main Street, Butte, Montana, and did threaten to send a Sheriff for plaintiff if plaintiff did not go to said store; that thereafter, and on or about the 30th day of January, A. D. 1935, plaintiff did go to the store of the said Safeway Stores Incorporated, and there, in the presence of divers and numerous good citizens of Silver Bow County and the State of Montana, and in the hearing of said persons and in the presence and hearing particularly of Jerry Keller and Chris Aho, whereupon in the presence and hearing of said persons and within sight thereof, the said Alvin Cobb, while acting within the course and scope of his employment as agent of defendant, did exhibit and wave about in the air a check, which plaintiff is advised and believes, and therefore alleges was a worthless and fictitious check theretofore passed upon the said Safeway Stores Incorporated, by some person or persons unknown to plaintiff, and did then and there say to said John Doe O'Brian: `Is that the girl that passed this check?' (referring to plaintiff), whereupon the said John Doe O'Brian said: `Yes, that is the girl,' (indicating plaintiff); thereupon, the said Alvin Cobb, in the presence and hearing of said persons, stated: `There is another woman coming up here from the Federal Bakery to identify her,' (indicating plaintiff) whereupon in the presence, sight and hearing of said persons so gathered together, the said Alvin Cobb informed plaintiff that he would call the Sheriff and demand of plaintiff that she go to the County Attorney's Office at the Court House in Silver Bow County, Montana."
Third Alleged Cause of Action.
"That, as plaintiff is informed and believes, on or about the 26th day of January, A. D. 1935, some person to plaintiff unknown, delivered and passed to the said defendant, Safeway Stores Incorporated, at 129 North Main Street, Butte, Montana, a false and fraudulent check in an amount unknown to plaintiff, and did receive in payment therefor certain goods, wares and merchandise unknown to plaintiff, as well as certain sums of money and change, the exact amount being to plaintiff unknown, but all of which is well known to defendant; that the check hereinafter referred to, as plaintiff is informed and believes, and therefore alleges on information and belief, is the false and fraudulent check so passed and delivered to the said defendant on or about the 26th day of January, A. D. 1935, by some person unknown to plaintiff; that on or about the 30th day of January, A. D. 1935, at the office of the County Attorney of Silver Bow County, Montana, in the Court House at Butte, Montana, in the presence and hearing of divers persons there gathered together, and particularly in the presence and hearing of Joe Boric, Deputy Sheriff of Silver Bow County, Montana, T. F. O'Connell, Deputy County Attorney of Silver Bow County, Montana, D. D. Semrou, Manager of the defendant corporation, and Jennie Doe, whose true name is unknown to plaintiff, but who was at said time, as plaintiff is informed and believes, an employee of the Federal Bakery of Butte, Montana, John Doe O'Brian, while acting within the course and scope of his employment as agent and employee of defendant, speaking of and concerning the worthless check theretofore passed upon said defendant on or about the 26th day of January, A. D. 1935, by some person unknown to the plaintiff, said of and concerning plaintiff `She is the girl that passed the check. I've known her for four years or I would not have cashed the check.'"
The case is grounded upon the provisions of subdivision 1 of section 5691 of the Revised Codes of Montana, 1921, which, so far as it is material here, is as follows: "Section 5691. Slander, what constitutes. Slander is a false and unprivileged publication other than libel, which: 1. Charges any person with crime. * * *"
No special damages are alleged or claimed.
Defendant contends that none of the quoted language, attributed to defendant's agents, "charges the plaintiff with the commission of any crime, hence the quoted language is not slanderous per se," with the result that as no special damages are alleged by plaintiff the complaint does not state facts sufficient to constitute a cause of action.
In reply, plaintiff says: "We agree with counsel for defendant that unless the statements attributed to defendant's agents of and concerning plaintiff, as set forth in the respective causes of action are slanderous per se, the cause or causes of action setting forth such matter, is or are vulnerable to a general demurrer, as no special damage is alleged, the plaintiff relying only upon such damage as is presumed to flow from a false, defamatory and slanderous charge which is actionable per se, that is, which on its face is slanderous taking into consideration the time, place and circumstances under which the utterance was made."
In their briefs filed therein plaintiff and defendant agree that as no special damage is alleged therein each cause of action set out in the complaint is vulnerable to attack by general demurrer unless the statement said to be false and defamatory is slanderous per se. This concession must of necessity be made, for such is the settled law in Montana. Ledlie v. Wallen, 17 Mont. 150, 42 P. 289; Brown v. Independent Publishing Company, 48 Mont. 374, 389, 390, 138 P. 258; Burr v. Winnett Times Publishing Company, 80 Mont. 70, 76, 258 P. 242; Porak v. Sweitzer's, Inc., 87 Mont. 331, 338, 339, 287 P. 633; Tucker v. Wallace, 90 Mont. 359, 364, 3 P.(2d) 404; Campbell v. Post Publishing Company, 94 Mont. 12, 17, 20 P.(2d) 1063. See, also, Pollard v. Lyon, 91 U.S. 225, 23 L.Ed. 308.
The precise question then presented for consideration and decision is, Are the words said to have been spoken by defendant's agents of and concerning plaintiff slanderous per se?
In Tucker v. Wallace, 90 Mont. 359, 364, 3 P.(2d) 404, 405, the court said: "The term `per se' means `by itself, simply as such; in its own nature without reference to its relations,' and, to constitute libel (or slander) per se, the published statement of or concerning the plaintiff must be susceptible of but one meaning (Woolston v. Free Press 90 Mont. 299 2 P.(2d) 1020), and, therefore, a publication which requires innuendo to demonstrate wherein it is slanderous cannot be slanderous per se."
In Manley v. Harer, 73 Mont. 253, 256, 258, 235 P. 757, 758, the court stated the rule as follows:
"Words are defamatory per se which upon their face and without the aid of extrinsic proof are injurious to the person concerning whom they are spoken. If the injurious character of the words does not appear from their face when taken in their plain and natural meaning and according to the sense in which they appear to have been used, they are not defamatory per se but are said to require innuendo. 36 C.J. 1150.
"`When the words are unequivocal in their import, and obviously defamatory, it is not necessary to employ colloquium or innuendo to explain their application and meaning; but if the words be of doubtful significance or derive their libelous character not from their own intrinsic force, but from extraneous facts it is necessary to allege the meaning...
