Opinion
No. 7,605.
Submitted October 23, 1936.
Decided November 21, 1936.
Slander — When Actionable Per Se, When not — Special Damages — Pleading and Proof — Evidence — Insufficiency. Slander — Words Actionable Per Se. 1. In the law of libel and slander much which, if spoken, would not be actionable without the averment of extrinsic facts or the allegation and proof of special damages, when written or printed, is actionable per se. Same — Distinction Between Actions Where Plaintiffs Engaged in Business Where Credit Vital, and Others Where This Consideration Absent. 2. In determining whether alleged slanderous words are actionable per se, there is a distinction between plaintiffs who are merchants, traders or those engaged in a vocation where credit is especially vital, and those engaged in other occupations, such as that of a stenographer. Same — When Slander Actionable Per Se. 3. To constitute slander (or libel) per se, the published statement of or concerning the plaintiff must be susceptible of but one meaning; hence a publication which requires innuendo cannot be slanderous per se. Same — Case at Bar — Words Spoken Held not Actionable Per Se. 4. Held, in an action for slander by a stenographer against a mercantile establishment, an employee of which in denying plaintiff credit was alleged to have said in the store within hearing of others: "Your credit is no good; you don't pay your bills; you owe too many bills in town," held not slanderous per se, within the meaning of section 5691, Revised Codes, defining "slander," the words in no manner having reflected upon the skill or ability of plaintiff as a stenographer. Same — Pleading Where Words not Actionable Per Se. 5. In suits for slander, if the words alleged to have been spoken are not actionable per se, special damages must be alleged and proved to make them actionable. Same — Injury to Plaintiff — Necessary Showing. 6. In an action for slander it is important to show where the slanderous statement was made and that the person to whom it was made was in a position to injure plaintiff in his business or occupation. Same — Special Damages — Insufficiency of Evidence. 7. Where in a slander action it was not shown that defendants (see par. 4, supra) intended that the words spoken should be repeated and the persons present when they were spoken were plaintiff's sister-in-law and an intimate friend, presumably disinclined to do anything to injure plaintiff, attempted proof of special damages to the effect that her employer discharged her on account of the slander, and that she was prevented on account thereof from securing employment, held insufficient.
Appeal from District Court, Silver Bow County; T.E. Downey, Judge.
Mr. T.J. Davis, for Appellants, submitted a brief and argued the cause orally.
Mr. N.A. Rotering and Mr. William B. Frame, for Respondent, submitted a brief; Mr. Rotering argued the cause orally.
The statement complained of in this case is not, and cannot be, slander per se. To be slanderous at all, a publication must be false and unprivileged, and must be one which exposes the complainant to hatred, contempt, ridicule or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation. (Sec. 5691, Rev. Codes.) And to be slanderous per se, the statement must be such as on its face, without the aid of any explanation, necessarily accomplishes at least one of these effects. ( Brown v. Independent Pub. Co., 48 Mont. 374, 138 P. 258; Lemmer v. Tribune, 50 Mont. 559, 148 P. 338; Manley v. Harer, 73 Mont. 253, 235 P. 757; Shaffroth v. Tribune, 61 Mont. 14, 201 P. 271.) The language used must be susceptible of but one meaning, and that an opprobrious one. ( Burr v. Winnett Times Pub. Co., 80 Mont. 70, 258 P. 242; Manley v. Harer, supra; Porak v. Sweitzer's, Inc., 87 Mont. 331, 287 P. 633; Daniel v. Moncure, 58 Mont. 193, 190 P. 983.) And the statement and imputation must be of such character that the court can presume as a matter of law that it would tend to injure his business or to disgrace and degrade a person, or hold him to public hatred, contempt or ridicule, or cause him to be shunned or avoided. The mere possibility of this is not enough ( Lemmer v. Tribune, supra; Reid v. Providence Journal Co., 20 R.I. 120, 37 A. 637.) And in order that a statement be considered slanderous as tending to injure one in his occupation it must, as the books say, "touch him in his occupation by impeaching his skill therein, by charging him with unfitness or want of ability to discharge the duties thereof, or by attributing to him corrupt, dishonest, or fraudulent conduct therein." (Newell on Slander and Libel, 4th ed., sec. 130; Kee v. Armstrong, Byrd Co., 75 Okla. 84, 182 P. 494, 5 A.L.R. 1349; Oklahoma Pub. Co. v. Gray, 138 Okla. 71, 280 P. 419.) If the words used are not in any proper sense ambiguous or doubtful, and, in their ordinary and proper signification, convey no defamatory meaning, it is a rule of nearly universal acceptance that such meaning can neither be enlarged nor restricted by innuendo. ( Quinn v. Prudential Ins. Co., 116 Iowa, 522, 90 N.W. 349; Heralds of Liberty v. Rankin, 130 Miss. 698, 94 So. 849; Mulligan v. Cole, L.R. 10 Q.B. 549; Boynton v. Remington, 85 Mass. (3 Allen) 397; Baldwin v. Walser, 41 Mo. App. 243; Hatch v. Lane, 105 Mass. 394.)
In the case of Ellsworth v. Martindale-Hubbell Law Directory, Inc., (N.D.) 268 N.W. 400, a very recent case, the supreme court of North Dakota held that the mere allegation that the "plaintiff's reputation" and "his business and practice" were injured was insufficient as an allegation of special damages necessary in stating a cause of action for libel.
Not every imputation of a breach of morals or good manners is actionable, nor is slander per se to be predicated upon mere vilification and abuse. (17 R.C.L., p. 349; McCue v. Equity Co-op. Pub. Co., 39 N.D. 190, 167 N.W. 225; Vinson v. O'Malley, 25 Ariz. 552, 220 P. 393, 37 A.L.R. 877; Wiley v. Oklahoma Press Pub. Co., 106 Okla. 52, 233 P. 224; 40 A.L.R. 573; Yankwich, Essays on Libel, p. 64.)
Because, as this court has so definitely said, that to constitute slander per se the language must be susceptible of but one meaning and that an opprobrious one, and because ambiguous language or language susceptible of nonslanderous interpretation is insufficient, it has been held that there was no slander per se in the following instances: Of a county attorney, that the officers had been double-crossed by advance information of a raid on a bootlegger's plant ( Rowan v. Gazette Printing Co., 74 Mont. 326, 239 P. 1035); or of a street railway employee, that he was discharged for "failing to ring up the fares collected" ( Pittsburgh etc. Ry. v. McCurdy, 114 Pa. St. 554, 8 A. 230, 60 Am. Rep. 363); or of a custodian that a library "had been plundered by him" ( Carter v. Andrews, 16 Pick. 1); or of a public official that he "sold out" ( Sweaas v. Evanson, 110 Minn. 304, 125 N.W. 272); or of a business man that he "presented forged instruments" ( Velikanje v. Millichamp, 67 Wn. 138, 120 P. 876); or of a chauffeur that he had "taken the life of an innocent child" ( Diener v. Star Chronicle Pub. Co., 230 Mo. 613, 132 S.W. 1143, 33 L.R.A. (n.s.) 216; 232 Mo. 416, 135 S.W. 6); or of an employee that he "used the company's goods and money for a private use" ( Johnson v. Brown, 13 W. Va. 71); or of a bookkeeper or other person than a trader or merchant that he owes a debt and refuses to pay or owes a debt long past due ( Porak v. Sweitzer's, Inc., supra.) The reason for these and many other like rulings is apparent. In all of the cases cited the language stated is open to a slanderous or libelous interpretation, but it is also open to a nonslanderous or nonlibelous one; it does not necessarily expose the person concerning whom it was uttered to public hatred, contempt, ridicule or obloquy, or necessarily cause him to be shunned or avoided, or necessarily tend to injure him in his occupation. (See Lemmer v. Tribune, supra.)
Referring to the alleged slanderous statement here complained of, while to always make payment of one's bills promptly, and as they become due, is a noble virtue, and undoubtedly a thing to be desired both by the creditor and the debtor, the present business conditions, commonly known as "the depression," have been such a terrific strain upon the financial circumstances of every American citizen as to make it extremely difficult for him or her to have promptly and completely paid his or her bills. To owe bills, and to be unable to pay them promptly, is such a common condition at the present time, and has so little to do with the goodness or badness of one's moral or financial character, that the imputation of the existence of bills and a failure to have paid them would not be such as to make such a statement or imputation actionable by the plaintiff. It is no longer considered, in any sense, a reflection upon a person, either morally or financially, that such person has contracted bills which he or she is, for the present, unable to pay. Nor would the fact that one owes bills and is unable to pay them interfere with, reflect upon, nor in any sense make it difficult for him to secure employment as a stenographer nor office man nor woman. The fact that one might owe bills which one has not paid would be no criterion of one's ability to carefully and rapidly take dictation, prepare and type legal documents, to answer the telephone, nor to supervise, and act as stenographer in, a law office.
Counsel for the plaintiff, realizing that the words used are not actionable per se, nevertheless, over the general objection of defendants, attempted to prove special damages. "Special damages are such as are the natural, but not the necessary, consequences of the act of which complaint is made." ( Sankey v. Chicago etc. Ry. Co., 60 Mont. 242, 244, 198 P. 544; Rickards v. Aultman etc. Co., 64 Mont. 394, 400, 210 P. 82.) "They must be such as may fairly be supposed to have entered into the contemplation of the parties, that is, such as might naturally be expected to follow a breach; and they must be certain, both in their nature and in respect to the cause from which they proceed." ( Butte Floral Co. v. Reed, 65 Mont. 138, 153, 211 P. 325.) The proof offered completely fails to substantiate any special damage, even though there had been an attempt made to plead such alleged special damages.
The language herein complained of constitutes slander. One of the reasons for the loss of plaintiff's employment was the utterance and publication of that language. The words were untrue and they were unprivileged. None of them came within the provisions of section 5692, Revised Codes. They caused plaintiff great damage. She was, therefore, entitled to recover. "The publication of any untrue and malicious charge is libelous when damage is shown to have resulted as a natural and proximate consequence." ( Hollenbeck v. Ristine, 105 Iowa, 488, 75 N.W. 355, 67 Am. St. Rep. 306; Hollenbeck v. Hall, 103 Iowa, 214, 72 N.W. 518, 64 Am. St. Rep. 175, 39 L.R.A. 734; Williams v. Seiglitz, 186 Cal. 767, 200 P. 635; Harris v. Zanone, 93 Cal. 59, 28 P. 745.)
In Noeninger v. Vogt, 88 Mo. 589, the defendant, referring to plaintiff in his business of merchant and miller, said in part: "You are a defrauder; all that you have you accumulated by defrauding." The court, holding these words to be actionable per se, said: "Any charge of dishonesty against an individual in connection with his business, whereby his character in such business may be injuriously affected, is actionable. * * * Language which imputes to one fraud, or want of integrity in his business, is actionable, per se, and hence special damages need not be alleged."
In a California case the defendant wrote a letter in which he said that he "owed Mr. Meline an apology for having recommended appellant in the first instance." This language was held to have been libelous. ( Von Stein v. Hardie, 105 Cal.App. 780, 288 P. 680; Kosonen v. Waara, 87 Mont. 24, 285 P. 668, 669.)
In Continental Nat. Bank of Memphis v. Bowdre, 92 Tenn. 723, 23 S.W. 131, the Tennessee court held that a postcard sent by a bank to a correspondent, from whom it had received a draft on B. Bros. Co., a mercantile firm, for collection, and reading, "B. in hands of notary," while in fact the draft had been paid to the bank, was libelous per se.
The headnote of an Idaho case is as follows: "Language in the report of a mercantile agency as follows: `The Pacific Packing Company has been sued in the superior court of Los Angeles county, California, by the Pacific Fruit Auction Company for the sum of $230,000 for money advanced' — if false and maliciously made, is libelous, and therefore actionable, without alleging in the complaint any other than general damages." ( Pacific Packing Co. v. Bradstreet Co., 25 Idaho, 696, 139 P. 1007, Ann. Cas. 1916D, 761, 51 L.R.A. (n.s.) 893; Minter et al. v. Bradstreet Co., 174 Mo. 444, 73 S.W. 668; McKenzie v. Denver Times Pub. Co., 3 Colo. 554, 34 P. 577; Newell v. How, 31 Minn. 235, 17 N.W. 383; see, also, D'Autremont v. McDonald, 56 Mont. 522, 185 P. 707; Daniel v. Moncure, 58 Mont. 193, 200, 190 P. 983; Manley v. Harer, 73 Mont. 253, 235 P. 757.)
Every publication of language concerning a man or his affairs which as a necessary or natural and proximate consequence occasions pecuniary loss to him is prima facie a slander or libel. (Townshend on Slander and Libel, 58; Bartlett v. Federal Outfitting Co., 133 Cal.App. 747, 24 P.2d 877.) Any untrue malicious charge which is published is slanderous when damages are shown to have resulted as a natural and proximate consequence. ( Harrison v. Burger, 212 Ala. 670, 103 So. 842; Cooley on Torts, 242.) Here the charge was heard by a number of people who were then at the defendant corporation's place of business; the charge was untrue; it was said loudly and insultingly and it resulted in damages to the plaintiff. ( Kelly v. Independent Pub. Co., 45 Mont. 127, 122 P. 735, Ann. Cas. 1913d 1063, 38 L.R.A. (n.s.) 1160.)
Appellants contend that under subdivision 3 of section 5692 of the Revised Codes, the words were privileged. But that is incorrect. The language of the statute is as follows: "A privileged publication is one made: * * * 3. In a communication, without malice, to a person interested therein, by one who is also interested, or by one who stands in such relation to the person interested as to afford a reasonable ground for supposing the motive for the communication innocent, or who is requested by the person interested to give the information." Strangers to the transaction were present. The jury found that the statements were made with malice. The strangers were not interested in the transaction. And no one requested defendant Hickey to give any such information. The cases are to the effect that no privilege exists if the statement was made maliciously. The publication must be made without malice and not to needlessly injure another. ( Briggs v. Brown, 55 Fla. 417, 46 So. 325; Tierney v. Ruppert, 150 App. Div. 863, 135 N.Y. Supp. 365; Holmes v. Royal Fraternal Union, 222 Mo. 556, 121 S.W. 100, 26 L.R.A. (n.s.) 1080.) Furthermore, there never is any privilege to make an untrue statement or publication.
This is an action to recover damages for slander. The complaint alleges, in substance, that the plaintiff is a business woman holding a responsible position as stenographer in a law office, where one of the necessary qualifications is honesty, integrity and good credit; that plaintiff went to the place of business of the defendant company and applied for credit to purchase a gas stove, selected a stove, signed a conditional sales contract and a credit memoranda reference, paid $5 on the contract, and was advised that the stove would be delivered in the afternoon of the same day or in the forenoon of the following day; that, the stove not being delivered, plaintiff called to inquire as to the reason, and that the defendant Hickey, acting within the scope of her employment, falsely and loudly and in the presence of others uttered to the plaintiff the slanderous words complained of, and that the slanderous words were "contrived by defendants wickedly and maliciously with the intent to injure the plaintiff in her good name, fame and credit and to bring her into public contempt, hatred, ridicule, obloquy and to cause her to be shunned and avoided; that defendants made such statements publicly for the purpose of injuring and hurting plaintiff in her business and occupation."
The defendants' demurrer to the complaint was overruled and they were given 30 days to plead further. The answer denied all the material allegations of the complaint. The matter was heard by the court sitting with a jury. Plaintiff presented her evidence and rested, and thereupon the defendants moved for a nonsuit, which was denied. After the hearing was completed, defendants moved for a directed verdict, which was likewise denied.
Plaintiff in her prayer for relief asked for $2,500 actual and $3,500 exemplary damages. The jury returned a verdict in favor of the plaintiff and fixed her actual damages at $750, but allowed no exemplary damages. Judgment was entered in accordance with the verdict. Defendants' motion for a new trial was denied. The appeal is from the judgment.
Counsel for the defendants assigns twenty distinct specifications of error, advances numerous contentions and cites a multitude of authorities to support his arguments thereon. Counsel for the plaintiff likewise argue the matter at length, citing many authorities. We think, however, that the questions to be determined are: (1) Were the words alleged to have been uttered by the defendant Hickey slanderous per se? and (2) If such words were not slanderous per se, did plaintiff allege and prove special damages?
Plaintiff's testimony recounting the words constituting the alleged slander, after stating that she selected a certain stove at the Montgomery Ward Co. store and was then referred to the office, is as follows: "In the office they took the reference sheet and investigated my credit. I gave references. * * * After the contract was signed I then left the store. They said they would try to have the stove delivered that afternoon and if not they would have it out the next day in the forenoon which was Saturday. They said they would deliver it at the house, my house. Miss Hickey said so to me. * * * The next day the stove was not delivered before noon and I waited until in the afternoon, after 2 o'clock. * * * My sister-in-law and I went down there. Her name is Mrs. Larson. * * * When we went in there about half-past 2 in the afternoon of February 9, 1935, there was several people in the store and I talked to Miss Irene Hickey who was connected with the defendant corporation — the defendant Miss Hickey. * * * When I talked to her she was at the desk in the office of the defendant Montgomery Ward Company. I think I spoke first. I told her who I was and asked her why they had not delivered the stove. Miss Hickey made reply to me; she said `Just wait a minute' and she reached for the report that she had, I presume it was the one I had signed. She didn't say anything more than `Just a minute,' right then. I didn't say anything immediately just after she said `Just a minute.' Miss Hickey was the first to speak after that. It was just long enough for her to get the report she has after she said `Just a minute' that she spoke, and then she said `Why your credit is no good, you don't pay your bills' she said `You owe too many bills in town.' When she made that statement `Your credit is no good' and the rest that I have testified to, I was standing just outside of the desk. The desk is just a desk and it is not closed in, and her desk is just over, just kind of a table; her desk is just back of that.
"There were several people around; there were some working in the store and there were some more in shopping, members of the public. Miss Hickey spoke very loud and insulting when she said `Your credit is no good,' and it was so that the other people could hear. The statement she made first was `Why your credit is no good' and then she said `You don't pay your bills,' and she said `You owe too many bills in town.' When Miss Hickey said that I said `I don't think I owe anyone in town.' After I said that Miss Hickey said `Oh yes you do; you have owed the Uncle's jewelry store a bill for over two years.' The Uncle's jewelry store is on West Park, in the second block on the north side of the street, in Butte, Montana. I know Mr. Uncles. When Miss Hickey said to me `Why you owe James Uncles a bill for over two years' I said `Why I paid that bill over a year ago.' Then Miss Hickey said, `That bill has not been paid.'
"I had business transactions with James Uncles prior to the 8th day of February, 1935. On the 9th day of February, 1935, there was not a bill outstanding against me at James Uncles. There had been a bill that I owed at James Uncles prior to the 8th day of February, 1935. That had been paid in March, 1934, and I have a receipt for it. * * * The last statements which I have testified were made by Miss Hickey were made in a very loud tone of voice. When Miss Hickey made the final statement `That bill has not been paid' I asked her if they would send the stove up and she said `No.'"
Later in her testimony the plaintiff stated that she asked that the contract be canceled, and still further along she testified: "I first met Irene Hickey Friday, February 7th when I went in the door and never saw her before. I again saw her on the 9th and those are the two times I ever had any conversation at all with Miss Hickey; neither of us girls had ever met and neither of us knew anything about the other that I know of."
Our statute says: "Slander is a false and unprivileged publication other than libel, which: * * * 3. Tends directly to injure him [a person] 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." (Sec. 5691, Rev. Codes.) Plaintiff must find in these words the ground on which her right to recover is based. The plaintiff's occupation was not that of an office, profession, trade or business, and necessarily her right to recover must be shown by injury suffered in her occupation as a stenographer, as that is the only occupation, for which it appears she was "peculiarly" fitted.
The text-books treat libel and slander under the double [1, 2] heading, and many of the established rules pertinent to the subjects are applicable to both, but there is a marked distinction between the two when it comes to a consideration of the facts and the application of the law. (36 C.J., p. 1146, sec. 3.) It is also true that in the law of libel and slander much which, if spoken, would not be actionable without the averment of extrinsic facts or the allegation and proof of special damages, when written or printed, is actionable per se. (17 R.C.L. 287, sec. 26.) It will also be noted that there is a distinction between plaintiffs who are merchants, traders or those engaged in a vocation wherein credit is especially vital, and those engaged in other occupations such as the plaintiff here. ( Porak v. Sweitzer's, Inc., 87 Mont. 331, 287 P. 633, 635; 17 R.C.L. 299; 36 C.J. 1170; Estes v. Sterchi Brothers Stores, 50 Ga. App. 619, 179 S.E. 222; Stannard v. Wilcox Gibbs Sewing Mach. Co., 118 Md. 151, 84 A. 335, 338, Ann. Cas. 1914B, 709, 42 L.R.A. (n.s.) 515; Wrought Iron Range Co. v. Boltz, 123 Miss. 550, 86 So. 354.)
Were the alleged defamatory words actionable per se? In view [3, 4] of the fact that no precise rule has been laid down that serves as an exact guide in determining when alleged words are slanderous and actionable per se and when they are not, the court is compelled to rely upon decisions in actions of a similar character to determine whether the facts in a particular case bring it within the cases held to be actionable per se, and in proceeding on such authority it is difficult to draw the line between many of the decisions, as it is frequently found that in actions where the facts are quite similar, the decisions are not in harmony.
We are impressed with the reasoning and the conclusions arrived at in the cases of Stannard v. Wilcox Gibbs Sewing Mach. Co., supra, and in the case of Nichols v. Daily Reporter Co., 30 Utah, 74, 83 P. 573, 575, 117 Am. St. Rep. 796, 8 Ann. Cas. 841, 3 L.R.A. (n.s.) 339, where excerpts from numerous cases are recited, and from a careful study of such cases and many others of a similar nature, the difference between facts in a case of slander that are construed to be actionable per se and those where special damages must be alleged and proved, becomes fairly clear.
It has often been said that "the term `per se' means `by itself, simply as such; in its own nature without reference to its relations,' and, to constitute libel (or slander) per se, the published statement of or concerning the plaintiff must be susceptible of but one meaning * * * and, therefore, a publication which requires innuendo to demonstrate wherein it is slanderous cannot be slanderous per se." ( Tucker v. Wallace, 90 Mont. 359, 3 P.2d 404, 405.) From this general outline the courts must determine in each case whether certain words alleged to be slanderous per se are such in fact.
Words that have been held to be actionable per se, and to the contrary, in adjudicated cases lead to a clearer conception of the question than any definition we find in the books. In Porak v. Sweitzer's, Inc., supra, this court said: "As respects a charge of failure to pay debts, without any imputation of insolvency, it seems to be settled that a writing containing the mere statement that a person who is not a trader or merchant, or engaged in any vocation wherein credit is necessary for the purpose and effectual conduct of his business, owes a debt and refuses to pay or owes a debt which is long past due is not libelous per se, and does not render the author or publisher of such statement liable without proof of special damages," citing cases. The controversy in the Porak Case arose over defendant's publishing in a delinquent debtor's list the name of the plaintiff, who was a bookkeeper.
In the case of Armstrong v. Sun Printing Publishing Assn., 137 App. Div. 828, 122 N.Y. Supp. 531, it was said: "In order that words shall be libelous per se as disparaging a person in his trade or business, they must have been spoken of plaintiff in relation thereto, and be of such a character as would prejudice him by impeaching either his skill or knowledge."
"Words, spoken and published of another, are not, ordinarily, slanderous and actionable per se unless they impute to the person of whom spoken the commission of a crime, or subject him to public ridicule, ignominy or disgrace." ( Davis v. Meyer, 115 Neb. 251, 212 N.W. 435, 50 A.L.R. 1410.)
In the case of Stannard v. Wilcox Gibbs Sewing Mach. Co., supra, Stannard was manager of the Baltimore office of a New York concern. Stannard's wife purchased a sewing machine from the defendant for which she had not fully paid. The defendant corporation wrote the home office of Stannard's employer in New York, stating the facts and suggesting that it was assumed that the New York office would be interested in the manner their employee took care of his bills, and stating that if the account was not speedily settled, it would be referred to its attorneys. Stannard sued for libel. In announcing its decision in favor of the defendant, the court said: "The statements in regard to him [Stannard] in no way related to the manner of his performance of his duties as manager of the Holmes Electric Protective Company, or charged him with being unfit for the proper performance of them; nor did he lose his position because of the letter in question, in which case he would have sustained special damage. Under these conditions, and applying the rule of law already stated, the letter cannot be regarded as actionable per se, and the trial court committed no error in sustaining the demurrer."
In Nichols v. Daily Reporter Co., supra, it was said: "To publish of one that he was indebted for a bill, but would not pay it, unless a certain sum was `knocked off,' and that it was a `dirty Jew trick to try to beat the house,'" was held not libelous per se.
A letter written by a landlord to a mortgagee of his tenant's chattels located on the premises, that defendant had made no arrangements for the rent and that he would thereafter look to the mortgagee for the rent, is not libelous per se. ( Bush v. McMann, 12 Colo. App. 504, 55 P. 956.)
A statement, in the presence of others, that "all I want you to do is to pay your honest debts" was held not slanderous. ( Hamilton v. McKenna, 95 Kan. 207, 147 P. 1126, 1128, L.R.A. 1915E, 455.)
A statement that the plaintiff had been made defendant in a criminal action was held not to be libelous per se in Ruble v. Kirkwood, 125 Or. 316, 266 P. 252.
We are of the opinion that the slanderous words alleged to have been uttered by the defendant Hickey in the action at bar were not, as a matter of law, and by themselves considered, actionable per se. Such words in no manner reflect upon plaintiff as a stenographer. Such being our conclusion, it then becomes necessary to determine whether plaintiff proved any special damages or not.
In suits for slander, if the words are not actionable per [5] se, special damages must be alleged and proved. ( Brown v. Independent Publishing Co., 48 Mont. 374, 138 P. 258; Campbell v. Post Publishing Co., 94 Mont. 12, 13, 20 P.2d 1063; Burr v. Winnett Times Publishing Co., 80 Mont. 70, 258 P. 242; Manley v. Harer, 73 Mont. 253, 235 P. 757.)
Defendants contend that the complaint does not allege special damages, but we do not consider that question of importance here, unless the evidence establishes the fact that special damages were sustained. Did the plaintiff prove special damages? The testimony shows that the plaintiff and her sister-in-law, Mrs. Dona Larson, were present when the alleged slanderous words were uttered, and in addition the defendant Hickey and Evelyn Segar, an employee of the defendant company. The testimony as to the presence of these parties is not in conflict. The plaintiff and her witnesses contend, and defendants deny, that Mrs. Kizzie Simenoff, another witness for plaintiff, was present. Defendants contend, and plaintiff and her witnesses deny, that O.J. Peterson, manager of the defendant company, was present "sitting about six feet from the defendant Hickey," when it is alleged the slander was uttered. Plaintiff testified that Peterson was in the front part of the store. As to the presence of Mrs. Simenoff and Peterson, the testimony is in positive and sharp conflict. The testimony is also in sharp conflict as to the utterance of the slanderous words, the witnesses for the defendants testifying that no such words were uttered, and the testimony of the witnesses for the plaintiff being to the contrary. Plaintiff testified that other persons in the store heard the slanderous utterance, but named only those above mentioned.
The only testimony in the record given in support of special damages is to the effect that plaintiff states she is quite sure that "Scotty" Frame, the attorney by whom plaintiff had been employed for some years, was led to discharge her because of the slanderous words alleged to have been uttered by the defendant Hickey at the time mentioned; that an application which she had at the Butte Business College for a position was without results for the same reason, and plaintiff also believed her application to take the civil service examination was not answered for the same reason.
The rule laid down in Tucker v. Wallace, supra, disposes of this contention as injury, if any, that the plaintiff suffered by reason of the alleged slanderous utterance, must have come to her by reason of its being heard by her sister-in-law, Mrs. Larson, or by Mrs. Simenoff. Mrs. Simenoff testified rather strongly about her friendship for the plaintiff, and obviously would not permit any such utterances to lead her to do anything to injure the plaintiff; and, furthermore, it does not appear that Mrs. Simenoff was in need of the services of a stenographer or had ever employed one.
In Tucker v. Wallace, supra, quoting from Odgers on Libel and Slander, sixth edition, 472, it was said: "If I myself tell the story to your employer, who thereupon dismisses you, you have an action against me; but if I only tell it to your friends and relations and no pecuniary damage ensues from my communication to any one, then no action lies against me, although the story is sure to get round to your master sooner or later. The man whose lips actually utter the slander to your master, is the only person who can be made defendant; for it is his publication alone which is actionable as causing special damage. * * * It would seem, therefore, that, in case of slander, it is [6] important to show where the statement was made and that the person to whom it was made was in a position to injure plaintiff's business." It was also said in that case that "liability for slander attaches only to the initial publication, and the offender is not liable for its repetition, unless he requests or intends its repetition.
There is nothing in the record to show that defendants [7] intended the slander should be repeated, nor is it reasonable to assume that its repetition would in any way serve or be of benefit to the defendants, or that they desired it to be repeated. It is obvious that if the slander were repeated to plaintiff's employer, or any of the other persons mentioned by plaintiff, where the repetition is assumed by plaintiff to have been injurious to her, the repetition must have been made by the plaintiff or someone for whom the defendants were in no way responsible.
In order to show special damages in this action, we think it was necessary that the plaintiff show that the alleged slander injured her in her occupation as a stenographer. In the case of Galloway v. Cox, 172 S.C. 101, 172 S.E. 761, defendant went to the plaintiff, to whom he had rented a woodyard, to collect a small rental. The plaintiff did not have the money to pay the rental and so informed the defendant, whereupon the defendant said, "Galloway, I have found you dishonest. I have found you out and that is enough for me." The court held that "the complaint must state facts which show, if proven to be true, that they will injure the plaintiff in his business. * * * `The rule is that in order to render language concerning one in a specific character or relation actionable it must touch him in that specific character or relation; that is, the words must have such a close reference to such relation or character that it can be said that they are defamatory by means of an imputation upon one in that character distinctly from and independently of being an imputation upon him as an individual,'" citing 36 C.J. 1182.
There is nothing in the record to indicate the plaintiff's ability as a stenographer was brought in question, and a statement that she did not pay her bills promptly, whether true or not, raises no question about her ability as a stenographer. Plaintiff was not injured in the occupation out of which she earned her livelihood. The words uttered were not heard by plaintiff's employer or by anyone else who it has been shown was in a position to injure plaintiff.
The complaint, as a matter of law, did not state a cause of action, and the cause is therefore remanded, with instruction to the trial court to enter a judgment of dismissal.
ASSOCIATE JUSTICES STEWART and ANDERSON concur.
MR. CHIEF JUSTICE SANDS and MR. JUSTICE MATTHEWS, being absent, did not hear the argument and take no part in the foregoing decision.