Ledlie v. Wallen

• Decision Date: 11 November 1895
• Citation: 42 P. 289,17 Mont. 150
• Parties: LEDLIE v. WALLEN.
• Court: Montana Supreme Court

42 P. 289

17 Mont. 150

LEDLIE v. WALLEN.

Supreme Court of Montana

November 11, 1895

Appeal fro district court, Missoula county; Frank H. Woody, Judge.

Action by Helena Ledlie against John C. Wallen for slander. From a judgment for defendant, plaintiff appeals. Reversed, with leave to amend complaint within 30 days; if not amended judgment to be affirmed.

C. S Marshall, Geo. W. Reeves, Wallace P. Smith, and Marshall & Corbett, for appellant.

Webster & Wood, for respondent.

HUNT J.

Plaintiff sues defendant in action for slander to recover damages. She charges that defendant wickedly, maliciously, and falsely and with intent to injure and destroy her business of school teaching, spoke of her to various persons as a "damned dirty whore," and that by reason of the speaking of the said false and slanderous words plaintiff is and has been damaged in the sum of $5,000. From the complaint we cannot tell whether the plaintiff was a single or married woman, nor is there any allegation of special damage, except such as may be inferentially drawn from the charge that she has suffered damage in her character, good name, and reputation, and from the intent to destroy her business as a school teacher. The district court sustained a general demurrer. Plaintiff declined to amend, judgment went against her, and she appeals.

The case at bar is almost exactly like that of Pollard v Lyon, 91 U.S. 225, where the supreme court reviews with great care the authorities upon actions in slander in England and in our own country. In that case a woman sued in slander. The words spoken of her were, "I saw her in bed with Captain Denty." They were treated as charging lack of chastity. It was there held, as it must be in this case, that the words used did not impute the offense of adultery, inasmuch as the complaint did not allege that either plaintiff or the defendant was married at the time the words were spoken. Upon that authority we will regard the words in this case as imputing fornication to the plaintiff. But at the time this action was brought there were no statutes in this state punishing fornication by an unmarried woman, nor was there any law making it slander per se to accuse a woman of unchastity. The plaintiff's remedy, if any she has, must therefore be under the theory that the words spoken were actionable per se, without a statute making them so. The common law, except in certain cases not necessary here to be considered, as declared by an overwhelming line of the highest authorities, is that "unwritten words, by all, or nearly all, the modern authorities, even if they impute immoral conduct to the party, are not actionable in themselves, unless the misconduct imputed amounts to a criminal offense, for which the party may be indicted and punished." Pollard v. Lyon, supra; Odgers, Sland. & L. p. 53; Dunnell v. Fiske, 11 Metc. (Mass.) 552; Townsh. Sland. & L. pp. 189, 162; Newell, Defam. pp. 163, 192. The common law did not punish fornication. Redress was alone furnished in the ecclesiastical courts. Therefore, to charge a woman with a breach of chastity, to call her a "whore," was not actionable, except by custom in London, without averring and proving special damages. Frisbie v. Fowler, 2 Conn. 707; Bish. New Cr. Law, § 38. Odgers (Sland. & L. p. 88) writes that: "Two explanations may be assigned for the undesirable state of our law on this point: (1) In the days when our common law was formed, every one was much more accustomed than they are at present to such gross language, and epithets such as 'whore' were freely used as general terms of abuse, without seriously imputing any specific act of unchastity. (2) The spiritual courts had jurisdiction over such charges, and, though they could not award damages to the plaintiff, they could punish the defendant for the benefit of his soul; but all actions in the ecclesiastical courts for defamatory words were abolished by 18 & 19 Vict. c. 41, and no attempt was made to substitute any remedy in the ordinary courts of law." Hil. Torts, § 29; Shafer v. Ahalt, 48 Md. 171; Terwilliger v. Wando, 17 N.Y. 54; Douglas v. Douglas (Idaho) 38 P. 934.

We agree with the appellant's counsel that, if the words spoken are not actionable in themselves, "it is a disgrace to the state." Lord Brougham, over half a century since, pronounced such a condition of the law "barbarous," and Chief Justice Cockburn, more recently, in Roberts v. Roberts, 5 Best & S. 382 said: "I think that to prevent a woman whose character for chastity is assailed from bringing an action for the purpose of...