Keller v. Safeway Stores, Inc.

CourtUnited States State Supreme Court of Montana
Citation108 P.2d 605,111 Mont. 28
Docket Number8063.
PartiesKELLER v. SAFEWAY STORES, Inc., et al.
Decision Date23 September 1940

Rehearing Denied Dec. 3, 1940.

Appeal from Second Judicial District Court, Silver Bow County Jeremiah J. Lynch, Judge.

Action by Audrey Keller against Safeway Stores, Incorporated, and another, to recover damages for alleged slander. From a judgment for plaintiff, defendants appeal.

Reversed and remanded for new trial.

ANGSTMAN J., dissenting on motion for rehearing.

R. F Henningsen, A. C. Kremer, and H. D. Carmichael, all of Butte, for appellants.

R. L. Brown and Emigh & Murray, all of Butte, for respondent.


This action was brought to recover damages for alleged slander. Plaintiff charges in her complaint that on Januray 29, 1935, the defendant Safeway Stores, acting through its agent in the course and scope of his employment, did falsely in the presence and hearing of Mrs. Annie Bawden, plaintiff's mother, utter of and concerning plaintiff the following unprivileged words: "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."

The trial of the cause resulted in a $10,000 verdict for plaintiff, and defendants have appealed from that judgment. This cause was formerly before the Federal District Court where a general demurrer was sustained to the complaint. Keller v. Safeway Stores, Inc., D.C., 15 F.Supp. 716.

There are three main questions for decision: (1) Does the language constitute slander per se? (2) Was it uttered by an agent of the Safeway store acting within the course and scope of his employment? (3) Are the damages excessive?

Slander, among other things, is a false and unprivileged publication other than libel which: "1. Charges any person with crime." Sec. 5691, Rev.Codes.

"A crime or public offense is an act committed or omitted in violation of a law forbidding or commanding it, and to which is annexed, upon conviction, any of the following punishments: (1) Death; (2) Imprisonment; (3) Fine; (4) Removal from office; or, (5) Disqualification to hold and enjoy any office of honor, trust, or profit in this state." Sec. 10721, Rev.Codes.

Did the language alleged to have been spoken charge plaintiff with crime? If it did, then it was slanderous per se. To determine this question resort must be had to the following well-established rules of law in libel and slander cases:

(1) In determining whether false defamatory words said to have been spoken of and concerning the party complaining are or are not slanderous per se, 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, for the presumption is to be indulged that the third party or parties present so understood them. Daniel v. Moncure, 58 Mont. 193, 190 P. 983; Burr v. Winnett Times Pub. Co., 80 Mont. 70, 258 P. 242; Porak v. Sweitzer's, Inc., 87 Mont. 331, 287 P. 633; Campbell v. Post Publishing Co., 94 Mont. 12, 20 P.2d 1063.

(2) The statement made must be viewed by the court as a stranger might look at it, without the aid of special knowledge possessed by the parties concerned. Campbell v. Post Pub. Co., supra; Woolston v. Montana Free Press, 90 Mont. 299, 2 P.2d 1020.

(3) The language used must be susceptible of but one meaning and that an opprobrious one. Campbell v. Post Pub. Co., supra; Burr v. Winnett Pub. Co., supra; Manley v. Harer, 73 Mont. 253, 235 P. 757; Brown v. Independent Pub. Co., 48 Mont. 374, 138 P. 258.

(4) 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., supra; Rowan v. Gazette Printing Co., 74 Mont. 326, 239 P. 1035; Woolston v. Montana Free Press, supra; Cooper v. Romney, 49 Mont. 119, 141 P. 289, Ann.Cas.1916A, 596; Shaffroth v. The Tribune, 61 Mont. 14, 201 P. 271.

(5) If the language is not slanderous per se, it cannot be made so by innuendo (Daniel v. Moncure, supra; Brown v. Independent Pub. Co., supra), because the term "per se" means by itself; simply as such; in its own nature without reference to its relations. Woolston v. Montana Free Press, supra. As otherwise stated in Manley v. Harer, supra [75 Mont. 253, 235 P. 758]: "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."

Tested by the foregoing rules, of what did the alleged words charge plaintiff? We must point to some statutory provision which defines as a crime the acts and conduct attributed to have been committed by plaintiff in the alleged slanderous statement. In doing this, it must be borne in mind that it is not necessary to constitute a libel or slander that the language used should charge the commission of a crime with the technical accuracv of an information or indictment. 36 C.J. p. 1202; 16 Cal.Jur. 50. "A defamatory charge does not have to be made in direct, positive language, but impliedly it may be made so plainly that it can have only one meaning and may constitute libel per se." Burr v. Winnett Times Pub. Co., supra [80 Mont. 70, 258 P. 245]. Odgers on Libel & Slander, 6th Ed., p. 117, states the matter thus: "Where spoken words are sought to be made actionable, as charging the plaintiff with the commission of a crime, we have seen that a criminal offense must be specifically imputed. It will not be sufficient to prove words which only amount to an accusation of fraudulent, dishonest, vicious or immoral, but not criminal, conduct. Still it is not necessary that the alleged crime should be stated with all the technicality or precision of an indictment; it is enough if the crime be imputed in the ordinary language usually employed to denote it in lay conversation. Again, if criminal conduct be distinctly imputed, it is not necessary to specify the kind of crime imputed. All that is requisite is that the bystanders should clearly understand that the plaintiff is charged with the commission of a crime. 'The meaning of the words is to be gathered from the vulgar import, and not from any technical legal sense."'

Here the plain and natural meaning apparent from the face of the words spoken states of the plaintiff: That she obtained a sack of flour from the Safeway Store by means of a no good check; that she received change for the check; that she ordered the flour sent to an address where there was no house; and, if she did not come down and see the manager of the store about the matter, they would have the sheriff after her.

Looking at these statements as a stranger and giving to the words used their natural, usual and popular meaning and common acceptation, the clear imputation charged is unequivocally conveyed to our minds, that this plaintiff obtained money through the pretense of a no good check. The statement that the flour was ordered delivered to an address at which there was no house suggests that plaintiff resorted to such artifice to further her plan of obtaining the change for the check.

Section 11411, Revised Codes, makes it a crime to obtain money or property by means or use of a false or worthless check. It provides: "Every person who obtains or attempts to obtain from another any money or property, by means or use of brace faro, or any false or worthless checks, or by any other means, artifice, device, instrument or pretense, commonly called confidence games or bunco, is punishable by imprisonment in the state prison not exceeding ten years." The statement having charged plaintiff of doing just that, we fail to see how it can seriously be contended that she was not charged with crime. It follows that the language used constituted slander per se. See Juretich v. People, 223 Ill. 484, 79 N.E. 181.

Section 11411, supra, apparently was not considered by the federal court in determining this cause, but it did hold in its decision that knowledge and intent were both essential to the commission of the crime of obtaining money or property by false pretenses under section 11410, Revised Codes, and that from the statement made a third party would not necessarily have concluded that plaintiff had been guilty of false pretenses within the meaning of section 11410. Argument to the same effect is advanced by counsel with respect to section 11411, the statute on which the jury was instructed. Granting that knowledge and intent are essential elements of the crime, and that the state in a prosecution under the false pretense statute, and under the confidence game statute, would probably have to charge intent and knowledge to make out a sufficient information, still we fail to see where that requirement has any application to an alleged slanderous statement charging one with crime. We believe the fallacy of such a view is most aptly demonstrated by the case of Carl v. McDougal, 43 Cal.App. 279, 184 P. 885, 886. In that case the alleged slanderous statement was: "Mr. Carl is a forger. He has forged my name to a check, and I have a lithographed copy of the check in my office." The court in its decision said: "In criminal prosecutions for forgery, the intent to defraud is not only an essential element of...

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