157 P. 958 | Mont. | 1916
delivered the opinion of the court.
Plaintiff herein alleges as a first ground of recovery that when the wrong complained of was committed, she had, for six years, been conducting the Fowlie Hotel in the city of Helena; that she had been well and favorably known to the traveling public, bearing a good name for honesty and uprightness; that Thomas Cruse, the defendant, was one of the most wealthy and influential citizens in the city of Helena; that Mary Margaret Cotter, his daughter, lately deceased, was the owner of a large amount of valuable jewelry; that she was an intimate friend of plaintiff and had been in the habit of visiting her at the Fowlie Hotel;
Repeating the matters alleged by way of inducement in the first cause of action, the plaintiff, as a second ground of recovery, alleges that in September, 1913, the said Cruse illegally and maliciously, intending to injure the plaintiff in her good name and character which she had theretofore borne as a hotel proprietress, initiated and undertook a campaign against her, by which he endeavored, by artifice, intimidation and intrigue, and through the agency of detectives, to compél her to give up the jewelry; that for the more ready accomplishment of this purpose, these agents went to the hotel of plaintiff and by the aforesaid means, and in pursuance of their unlawful purpose, frequently suggested .that plaintiff had stolen the said jewelry; that all these acts caused the plaintiff much worry, mental pain, anguish and suffering, and greatly impaired her business, for that many persons, learning of the aforesaid malicious acts, ceased to patronize plaintiff, so that she. was brought into hatred, contempt, and public infamy; that to further said malicious design and purpose, in September, 1913, the said Cruse assembled a mob of detectives at the courthouse in the city of Helena to make an entrance into plaintiff’s hotel, to intimidate, frighten and overawe her, and thereby to compel her to surrender possession of the jewelry; and that, hearing of this, she became greatly frightened and alarmed, thereby being caused to suffer great
To the first cause of action the defendant demurred on the ground of uncertainty, and to the complaint as a whole on the ground that there were improperly joined therein a cause of action for injury to character, and one for injury to the person. The demurrer having been overruled, the defendant answered, denying that the slanderous words were Spoken and that defendant had done any of the acts alleged in the second cause of action. The trial resulted in a verdict and judgment for plaintiff on the first cause of action for $7,500, the jury finding for the defendant on the second. Pending his motion for new trial, defendant Cruse died, and the persons who are now defendants, being the executors of his will, were substituted in his stead. The cause is before this court on appeals from the judgment and from an order denying a new trial. For convenience, Cruse will be referred to as the defendant.
1. It is contended that the court erred in overruling the demurrer to the complaint on the second ground thereof. As the
2. It is argued with much earnestness that the evidence is insufficient to justify the verdict. The trial in the district court consumed fourteen days. The testimony of the witnesses in narrative form covers more than 600 pages. This is accounted for in part by the fact that there had been litigation between defendant and some of the witnesses in this ease for alleged services performed by them at his instance as detectives, in an effort to gain information as to the whereabouts of some of Mrs. Cotter’s jewels, which they represented to be of the value of from $40,000 to $60,000. Some of the principal witnesses had testified during the course of this litigation. The depositions of some of them had been taken by way of precaution for use in the case at bar. On both occasions the witnesses were examined and cross-examined at great length. Much of the testimony theretofore given found its way into the record through the efforts of counsel for defendant to impeach them, by showing contradictory and inconsistent statements touching the utterance of the slanderous words imputed to the defendant. Again, counsel on both sides went to unusual lengths in examining and cross-examining them, not only as to matters relevant and material, but also as to matters of no evidentiary value whatever. It is surprising that the patience of the trial judge was not taxed to the breaking point early during the course of the proceedings. We shall not undertake to examine these narratives and sift from the mass of them those parts which the jury must have accepted as disclosing truthfully what was said and done by the actors during the greater part of the year 1913, covered by the alleged investigations of the witnesses.
The defendant was a man of wealth, and prior to his death had been engaged in banking and other business in Helena and other parts of Montana. His daughter, Mrs. Cotter, was the owner of a number of articles of valuable jewelry which she had
So, also, there were contradictory and inconsistent statements made by some of the other witnesses, rendering it questionable
3. During his investigations in his effort to ascertain who had possession of the articles in question, Keys associated with himself the witnesses Roberts and Chatfield; he also sought the assistance of Duncan, the sheriff of Lewis .and Clark county. Later the witness Lechner, a priest of the Catholic church, took part iu the investigation. It is questionable whether he had
That for wrongs committed by the agent while acting within
Evidence was offered by the plaintiff, and admitted without
4. It is contended that the words, if uttered by. the defendant, were privileged, in that they were communicated only to the
Thesé remarks incidentally dispose of the contention that the court erred in submitting certain instructions to the.jury on •the subject of malice, and in refusing others requested by defendant.
5. Error is assigned upon the giving of the following instruction : “ The court instructs the jury that before the plaintiff
6. Error is assigned upon the giving of this instruction: “You
Tbe judgment and order are reversed and tbe cause is remanded for a new trial upon tbe first cause of action.
Reversed and remanded.