212 P. 1103 | Mont. | 1923
prepared the opinion for the court.
The action is before us on an appeal from a default judgment. The complaint was filed April 30, 1920. ’ The defendants were regularly served with process August 24, 1920. No appearance was made by either defendant until the notice of appeal was filed. Default was entered September 18, 1920, by the clerk of the court and indorsed on the complaint November 6, 1920. Judgment was taken and entered November 6, 1920, against the defendants for $15,000, the full amount prayed for in both causes of action set out in the complaint. The complaint reads as follows:
“I. That at Glendive, Mont., on the 12th day of December, 1912, this plaintiff and one Gena Munson intermarried as husband and wife, and up to and including the 26th day of June, 1918', they lived together as husband and wife.
“II. That as a result of said marriage there was born to said parties two children, Dorothy Munson, age 6 years, and Edna Munson, age three years, who are now living with their mother, Gena Munson, at Halstad, Minnesota.
“III. That prior to the 26th day of October, 1918, the above-named defendants, for the purpose of influencing said Gena Munson, his wife, against this plaintiff, and for the pur
“IV. That said statements were all made by these defendants to the said Gena Munson, well knowing that the same were untrue and false, and that by reason thereof the home of this plaintiff has been broken up, and he has been deprived of the comfort, society, aid, and affections of his wife and children, and suffered great mental distress in body and mind to his damage in the sum of $10,000, which amount he alleges he has been damaged.
“For a Second Cause of Action, Plaintiff Alleges:
“L That at Dawson county, Mont., on or about the 28th day of April, 1918, the above-named defendants, then and now residents of the state of Montana, for the purpose of injuring the good name and reputation of this plaintiff, caused to be spoken, uttered, and published to the community at large
“Wherefore plaintiff prays judgment against the defendants and each of them as follows.:
“I. For the sum of $10,000 as set forth in his first cause of action.
“II. For the sum of $5,000 as set forth in his second cause of action.
“III. For his costs hereof.”
The only specification is that neither cause of action states facts sufficient to constitute a cause of action.
The pleading is not a model one, and there are several points which might have been urged against it if an appearance had been made in the district court. We are, however, limited in our examination to the one point as to each cause of action.
The rule in eases where the sufficiency of the complaint is raised for the first time in this court on appeal is stated in Ellinghouse v. Ajax Live Stock Co., 51 Mont. 275, L. R. A. 1916D, 836, 152 Pac. 481:
“The objection is regarded with disfavor, and every reasonable deduction will be drawn from the facts stated in order to uphold the pleading. So, also, will the pleading be held sufficient if the defect made the basis of the objection is not a
The first cause of action is for alienation of the affections of plaintiff’s wife. In such an action “the complaint should set forth the marriage relation, and the loss by the plaintiff of the person, affection, society and aid of his or her wife or husband, and that the same was accomplished by the intentional, wrongful or malicious conduct of the defendant.” (1 Standard Ency. Proe. 776.) We are of the opinion that, reasonably construed, the first cause of action states all of those ultimate facts.
It is appellants’ apparent contention that, if the divorce which it is alleged was obtained was actually obtained on grounds which existed independently of the statements which defendants caused to be conveyed to the wife, then there is no cause of action stated. Such is not the law. It may be a defense to such an action that the plaintiff himself caused the alienation or that the affections were voluntarily withdrawn by plaintiff’s spouse. However, even though there had been an estrangement, so long as they remained husband and wife, a plaintiff has the right to rely upon the possibility of reconciliation, and anyone who intermeddles, and thus prevents a reconciliation, must suffer for the consequences. (See Moelleur v. Moelleur, 55 Mont. 30, 173 Pac. 419.) We are constrained to hold that as against the attack made the complaint is sufficient as to the first cause of action.
As to the second cause of action, however, a different situa tion obtains. That cause of action is for slander, and the only reasonable construction of that statement is that defendants published the statement that plaintiff was himself making slanderous statements of and concerning his wife. Such statements, at worst, would not be actionable per se. They do not charge plaintiff with crime or having been charged with crime or punished for crime. They do not impute in him presence of disease as contemplated by statute. They do not impute to him impotence or want of chastity. And there is no allegation of special damage such as is required where the
We recommend that the cause be remanded to the district court of Dawson county, with directions to modify the judgment by reducing the amount allowed to $10,000.
For the reasons given in the foregoing opinion, the cause is remanded to the district court of Dawson county, with directions to modify the judgment by reducing the amount allowed to $10,000.
Judgment modified.