Ledlie v. Wallen , 17 Mont. 150 ( 1895 )

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. 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 upon 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.) 551; Townsh. Sland. & L. pp. 189, 162; Newell, Defam. pp. 163, 192.) The common law did not punish forni cation. Bedress 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. ’ ’ (Hill, Torts, § 29; Shafer v. Ahalt, 48 Md. 171; Terwilliger v. Wands, 17 N. Y. 54; Douglas v. Douglas (Idaho), 38 Pac. 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. (Q. B.) 384, said: “I think that to prevent a woman whose character for chastity is assailed from bringing an action for the purpose of vindicating it is cruel; but, as the law at present stands, such an action is not maintainable, unless it be shown that the loss of some substantial or material advantage has resulted from the speaking of the words. That is not shown in this declaration, and therefore I reluctantly hold that the demurrer is good.”

But to supply the omissions of the law (and Montana was one of the exceptions, in having no legislation on this subject), we cannot construct statutes without legislating, which is beyond our power. The very few decisions where actions like this have been sustained without warrant of statute, and where no special damages are alleged, have not been followed or approved of by text writers or judges generally. To the credit of the state the law is now changed, for we note that by the Code of 1895 (section 457, Penal Code) every person guilty of living in an open and notorious state of fornication is punishable, while slander, among other meanings, is defined to be a false and unprivileged publication other than libel, which imputes to a woman ‘ ‘want of chastity. ’ ’

But, conceding that the words in themselves are not actionable, it is nevertheless contended that plaintiff pleads that the defamatory words were spoken with the intent to injure her, not alone as a woman, but in her business or profession as a school teacher. This argument, when sifted, is that she has, by reason of the use of the slanderous words, stated enough to sustain her action as one for special damage to her business. Upon this point the rule is, a plaintiff may recover for defamatory words spoken of her, even though the words spoken are not in themselves actionable, if the complaint alleges such claim in due form, and the evidence is sufficient; “but the claim must be specifically set forth, in order that the defendant may be duly notified of its nature, and that the court may have the means to determine whether the alleged special damage is the natural and proximate consequence of the defamatory words alleged to have been spoken by the defendant. ’ ’ (Pollard v. Lyon, supra.)

The supreme court of Massachusetts, in Cook v. Cook, 100 Mass. 194, says: “ To sustain the action on this ground, it is necessary that the declaration should set forth precisely in what way such special damages resulted from the words relied on. It is not sufficient to allege generally that the plaintiff has suffered special damages, or that he has been put to great costs and expenses thereby, or that he has had to pay one hundred dollars in costs to the other party in the suit, in reference to which the words are alleged to have been spoken, in the form of testimony. It must be made to appear by proper averments, how these special damages were occasioned by the words alleged to have been uttered falsely and maliciously. ” (See, also, Odgers on Slander & Libel, page 302.)

The authorities generally hold that special damages are a pecuniary loss, but the United States supreme court includes in this class the loss of substantial hospitality of friends, and cites, as among other illustrative examples given by text writers, ‘ ‘ loss of marriage, loss of profitable employment or of emoluments, profits, or customers, ” etc. (Newell on Defam. page 850; Townsh. on Slander & Libel, § 345.) It is unnecessary to decide what special damages will support the action, but such damages, whatever they may be, must be pleaded with certainty, not.as they are in plaintiff’s complaint.

We are reluctant to deny the plaintiff another opportunity to amend her complaint, and have concluded to ’ remand the case, with directions that if the plaintiff, within 30 days from the filing of the remittitur' in this case in the district court, offers an amended complaint, properly pleading special damages, the judgment should be set aside, and the action proceeded with; otherwise the judgment of the district court will be affirmed.

demanded.

Pemberton, C. J., and De Witt, J., concur.