Kosonen v. Waara

• Citation: 285 P. 668,87 Mont. 24
• Decision Date: 26 February 1930
• Docket Number: 6558.
• Parties: KOSONEN v. WAARA.
• Court: United States State Supreme Court of Montana

285 P. 668

87 Mont. 24

KOSONEN v. WAARA.

No. 6558.

Supreme Court of Montana

February 26, 1930

Rehearing Denied March 18, 1930.

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

Action by Mrs. Hilja Kosonen against Christina Waara. From an order setting aside a default and permitting defendant to answer plaintiff appeals.

Reversed and remanded with direction.

C. S. Wagner and Walker & Walker, all of Butte, for appellant.

Harry Meyer, of Butte, for respondent.

MATTHEWS J.

The plaintiff, Hilja Kosonen, instituted action against the defendant, Christina Waara, for damages for alleged slander and secured personal service of summons. On July 13, 1928, defendant's default, for failure to appear, was duly entered by the clerk of the court on præcipe by plaintiff, and thereafter, a hearing being first had, default judgment was entered on June 4, 1929, for damages in the sum of $1,250. Two days after entry of judgment, defendant moved the court "to set aside the default heretofore entered * * * on June 4, 1929," to stay the execution of judgment, and to allow defendant to file a tendered answer. This motion was supported by affidavits and based upon the alleged insufficiency of the complaint to state a cause of action, and the asserted inadvertence, surprise, and excusable neglect of defendant. The motion was granted on condition that defendant pay all costs to date and strike from her tendered answer an alleged affirmative defense and counterclaim. Defendant complied with the conditions imposed and filed her answer.

Plaintiff has appealed from the order setting aside the default and permitting defendant to answer; her counsel attack the sufficiency of the showing made and contend that the application was not timely, as section 9187, Revised Codes of 1921, requires such application to be made within six months after entry of default.

1. We enter upon the consideration of the questions thus presented bearing in mind that the matter of setting aside judgments and orders lies within the sound legal discretion of the trial court and that the reversal of such an order may be had only on a showing of "manifest abuse"; that judgments by default are not favored, as it is the policy of the law to have cases tried on their merits in order that justice may be done between the parties, and, to this end, in applying our statute granting this discretion to the courts, they should exercise and maintain that liberal spirit which prompted the Legislature to grant the discretionary power, and, consequently, this court requires a stronger showing of abuse to warrant a reversal of an order granting relief than is required in case the court refuses to do so. Pacific Acceptance Corporation v. McCue, 71 Mont. 99, 228 P. 761; Reynolds v. Gladys Belle Oil Co., 75 Mont. 332, 243 P. 576; St. Paul Fire & Marine Ins. Co. v. Freeman, 80 Mont. 266, 260 P. 124.

Further, in entering upon the consideration of an appeal, this court always indulges the presumption that the conclusion reached by the trial court is justified and that no error has been committed; the burden rests upon the dissatisfied party to overcome this presumption. Ringling v. Smith River Dev. Co., 48 Mont. 467, 138 P. 1098; Dover Lumber Co. v. Whitcomb, 54 Mont. 141, 168 P. 947; State v. Schoenborn, 55 Mont. 517, 179 P. 294; Lindeberg v. Howe, 67 Mont. 195, 215 P. 230.

Under these well-established rules, the order of which complaint is made here must be affirmed if, upon any ground, the conclusion of the trial court is justified.

2. The first question, in logical order, for determination is as to the sufficiency of the complaint, for, if insufficient, the court was without jurisdiction to render judgment therein; in such case the pronouncement of the court is, in fact, no judgment and may be stricken at any time without reference to the limitation prescribed in section 9187, and without further showing than the presentation of the judgment roll. Crawford v. Pierse, 56 Mont. 371, 185 P. 315; Hodson v. O'Keeffe, 71 Mont. 322, 229 P. 722.

The complaint, with only unimportant recitations omitted, alleges:

"I. That, at the times hereinafter mentioned, plaintiff was, and now is, a chaste * * * married woman residing at 486 1/2 East Park Street, Butte, * * * Montana."

"II. That * * * on the 26th of May, 1928, at 504 East Broadway, Butte, * * * defendant, in the presence of * * * divers * * * women, * * * with the intent to slander and defame the good name and reputation of this plaintiff, said of and concerning this plaintiff, 'You are a wide whore.' * * *

III. That the said false and slanderous words were uttered * * * in the English language and understood by the persons to whom said words were spoken, with the express and malicious purpose * * * to hold this plaintiff out to the world * * * to public contempt and ridicule."

This complaint is a model of brevity, but it is defective in certain particulars which will be hereafter considered; undoubtedly it would be held fatally defective under the strict rules of common-law pleading applicable to such a case, but happily those ancient rules which rendered such an action a contest between pleaders and the real matter in issue of secondary importance have been swept aside by our Codes.

Under our rules of pleading the complaint, in any case, need only contain "a statement of the facts constituting the cause of action, in ordinary and concise language" (section 9129, Rev. Codes 1921), and, in this connection, it is specifically provided that, in libel and slander cases, it is no longer necessary to state extrinsic facts for the purpose of showing the application to plaintiff of the defamatory matter out of which the cause of action arose, "but it is sufficient to state, generally, that the same was published or spoken concerning the plaintiff" (section 9175, Id.).

In considering the sufficiency of a pleading, "its allegations must be liberally construed, with a view to substantial justice between the parties" (section 9164, Id.), and "the court must, in every stage of an action, disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the parties, and no judgment shall be reversed or affected by reason of such error or defect" (section 9191, Id.).

Even so, these liberal rules of construction do not permit a court to read into a pleading a substantial allegation which has been omitted therefrom. Conrad National Bank v. Great Northern Ry. Co., 24 Mont. 178, 61 P. 1; Montana Amusement Securities Co. v. Goldwyn Dist. Corp., 56 Mont. 215, 182 P. 119.

As the complaint does not plead special damages, it is first important to determine whether the charge set out in the complaint is actionable per se.

In this state "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; * * * 4. Imputes to him impotence or want of chastity; or 5. Which, by natural consequence, causes actual damage." Section 5691, Rev. Codes 1921. Words used in the Codes in the masculine gender include the feminine. Section 16, Id. Our statute, therefore, declares that a false and unprivileged publication of a charge of unchastity is slander.

At common law, imputing unchastity to a woman was not actionable per se. This condition of the law was declared "barbarous" and "cruel" by English judges of high rank (Roberts v. Roberts, 5 Best & S. [Q. B.] 384), but, being without power to legislate, they were helpless in the matter. Quoting from the cited case, this court, in Ledlie v. Wallen, 17 Mont. 150, 42 P. 289, 290, said: "We agree with the appellant's counsel that, if the words spoken [referring to plaintiff as a 'damned dirty whore'] are not actionable in themselves, 'it is a disgrace to the state.' * * * But to supply the omissions of the law * * * we cannot construct statutes without legislating, which is beyond our power." After commenting on the common-law rule, the court declared, "to the credit of the state the law is now changed," citing section 33, Civil Code of 1895 (now section 5691, above), but held that, as plaintiff had not alleged that she was a married woman (which she probably was not, as she was a school teacher), she could not recover, for the reason that fornication was made a crime only when continued "in open and notorious cohabitation" (section 457, Penal Code 1895), thus reverting to the rule that the words spoken must impute criminality and perpetuating the barbarism of the common law. If the court was right in so construing the section, now 5691, the decision is controlling here, for section 457 cited (now section 11006, Rev. Codes 1921) refers either to fornication or adultery, and we have no other statute making adultery a crime.

However the error of the court is manifest from a reading of section 5691. It is divided into subdivisions separated by semicolons, which have the same effect as though the conjunction "or" was used (Webster's Internat. Dictionary), and means slander is a false publication which charges any person with crime, or imputes to him the present existence of an infectious, contagious, or loathsome disease, or imputed to him (or her) unchastity. Since that decision was promulgated, without reference to it, this court has clearly indicated that the unqualified charging of a woman with unchastity is actionable per se. D'Autremont v. McDonald, 56 Mont. 522, 185 P. 707; Daniel v. Moncure, 58 Mont. 193, 190 P. 983. And this is the rule under the modern...