Daniel v. Moncure , 58 Mont. 193 ( 1920 )

MR. JUSTICE HOLLOWAY,

delivered the opinion of the court.

This action was brought to recover damages for alleged slander. Plaintiff charges in her complaint that on May 10, 1915, in the presence of herself and other persons, the defendant used to and concerning her the following language: “This is the toughest and commonest thing on the reservation. We won’t have this thing around. She’s the damnedest, commonest, toughest thing around here. I wouldn’t have your damn old homestead [referring to a homestead held by plaintiff and her husband] the nest one to me. I’ll look for a man and put him on the place of mine [referring to some lands adjoining the homestead held by plaintiff and her husband and occupied by defendant] and tell him what you are.” By innuendo it is alleged that by the use of this language defendant intended to convey, and did convey, the meaning that plaintiff was a coarse, indecent and unchaste woman. Defendant denied generally all the allegations of the complaint, and pleaded justification as follows: “That the charged and supposed defamatory words in the complaint set forth were each and all of them true, and that the plaintiff was, on or about the tenth day of May, 1915, an unchaste woman, and was the damnedest, commonest and toughest thing on the reservation, in the sense that she was a coarse, vulgar, indecent and unchaste woman.” The trial of the cause resulted in a verdict for plaintiff, and defendant appealed from the judgment and from an order denying a new trial.

Throughout the proceedings the court below ruled that the [1] language set forth in the complaint is slanderous per se, and upon these rulings the principal assignments of error áre predicated. Special damages are not pleaded, and it follows that, unless the theory adopted by the trial court is correct, the complaint does not state a cause of action. (Brown v. Independent Pub. Co., 48 Mont. 374, 138 Pac. 258.)

It is a rule of the law of slander that, if the language used, [2] in and of itself, is not defamatory, but becomes so only in the light of the circumstances surrounding the utterance, the extrinsic facts disclosing its slanderous character must be pleaded. (Cooper v. Seaverns, 81 Kan. 267, 105 Pac. 509.) There are not any extrinsic facts stated in this complaint, so that the correctness of the trial court’s position must be tested by reference to the language itself.

Slander is defined by section 3603, Revised Codes, as follows :

“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, either by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade or business that has a natural tendency to lessen its profit.

“4. Imputes to him impotence or want of chastity; or,

“5. Which, by natural consequence, causes actual damage.”

There are certain well-defined rules applicable to cases of this character upon which the authorities are generally agreed:

(a) The alleged defamatory matter is to be construed as an [31 entirety and with reference to the remaining portions of the conversation. (Brown v. Independent Pub. Co., above.)

(b) The opprobrious words are to be construed according [4] 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 (25 Cyc. 355), for the presumption is to be indulged that the third party or parties present so understood them.

(c) If the language is not slanderous per se, the innuendo [5] cannot make it such. (Paxton v. Woodward, 31 Mont. 195, 107 Am. St. Rep. 416, 78 Pac. 215; Lemmer v. Tribune, 50 Mont. 559, 148 Pac. 338.)

(d) If the language is susceptible of two meanings, one [6] defamatory and the other not, it is for the jury to determine in what sense it was used. (D’Autremont v. McDonald, 56 Mont. 522, 185 Pac. 707.)

In so far as disclosed by the pleadings, the language quoted constituted substantially the entire conversation, and, according to plaintiff’s version of the affair, little, if anything, more was said.

Counsel for plaintiff concede, as they must, that the trial [7] court’s rulings can be justified only upon the assumption that the language, as it is set forth in the complaint, charges “want of chastity,” for it cannot be brought within any other provision of the statute above. Does this language, of itself, impute to plaintiff a want of chastity? That it does not is beyond controversy, and a reference to any standard dictionary is sufficient to demonstrate the correctness of this conclusion. It is not alleged that any or all of the opprobrious epithets had a local meaning or significance which implies want of chastity, and of those epithets only the word “common” has that significance under any circumstances, according to the lexicographers. The term “common,” when applied to a woman, may impute want of chastity or not, depending upon the circumstances of its use. In its primary sense it means universal; pertaining equally to two or more; usual, habitual; not distinguished from the majority, as a common soldier; the common people. It means, also, trite; commonplace; low; inferior; vulgar; coarse. (Century Dictionary.)

In the absence of any prefatory allegations disclosing that the language was used in a defamatory sense to denote want of chastity, it is not slanderous per se, and the trial court erred in its rulings. (D'Autremont v. McDonald, above.) But counsel for plaintiff insist that by his plea of justification defendant has supplied the necessary allegations omitted from [8] the complaint. Under our very liberal rules of pleading in civil actions, the defendant may interpose as many defenses as he has, even inconsistent defenses, provided only that they are not so far inconsistent that, if one be true, the other must necessarily be false. (Johnson v. Butte & Superior C. Co., 41 Mont. 158, 48 L. R. A. (n. s.) 938, 108 Pac. 1057; O’Donnell v. City of Butte, 44 Mont. 97, 119 Pac. 281.)

If defendant had admitted that he used the language set [9] forth in the complaint, the position taken by counsel for plaintiff would be invulnerable; but we see no reason why these defenses may not be interposed without detriment to the defendant. The plea of justification is hypothetical in effect, if not in form, and amounts to no more than this:, Defendant denies that he used the language or intended to impute to plaintiff a want of chastity, but, if the jury should find that he employed language which had that effect, he asserts that it was true. There is some analogy, at least, between this defense of justification as pleaded in this instance and the plea of contributory negligence which presupposes the existence of primary negligence. In Day v. Kelly, 50 Mont. 306, 146 Pac. 930, and in Nelson v. Northern Pac. Ry. Co., 50 Mont. 516, 148 Pac. 388, we held that a general denial and plea of contributory negligence may be joined, and that the latter plea does not confess the negligence charged in the complaint.

The answer does not supply the allegations omitted from the complaint, and which are necessary to disclose that the language is slanderous. The other assignments need not be considered.

For the reason that the complaint does not state a cause of action, the judgment and order are reversed, and the cause is remanded for further proceedings not inconsistent with the views herein expressed.

Beversed and remanded.

Mr. Chief Justice Brantly and Associate Justices Hurly, Matthews and Cooper concur.