Linehan v. Linehan

WHITE, P. J.

In a complaint containing 10 causes of action plaintiff charged defendant with libel in Counts I, II and III; Counts IV, V, VI, VII, VIII and IX charged slander, while Count X alleged invasion of plaintiff’s right to privacy. Following a trial before the court without a jury, judgment was rendered in favor of plaintiff on Counts IV, V, VI and IX (slander), and Count X (invasion of privacy). Damages were assessed at $1,500 compensatory and $2,500 as punitive. Motion for a new trial was denied. Defendant prosecutes this appeal from the judgment.

After all briefs were on file and at the time the cause was called for oral argument, respondent presented a motion to dismiss the appeal upon the ground that “. . . no valid ground of appeal is presented by Appellant’s Opening Brief and that said appeal is made frivolously and for the purpose of delay.” Said motion was submitted for decision. Upon consideration of the record we have concluded to deny the motion to dismiss and to determine the appeal on the merits.

The following we regard as a fair epitome of the factual background surrounding this litigation as reflected by the record. At all times embraced within the pleadings defendant was a former wife of one Robert E. Linehan, having obtained a judgment of divorce from him on October 23, 1946, in the Second Judicial District of the State of Nevada, County of Washoe, and in which action she was the plaintiff and testified. Prior to the events about to be narrated, appellant

[252]

was never remarried to Linehan. Respondent in this action married Linehan April 15,1950, at Las Vegas, Nevada. There was evidence that following this marriage between respondent and Linehan, appellant held herself out publicly as the only lawful wife of Linehan. The record below discloses that pursuant to a design on her part, and over a period of some two years, appellant made repeated personal and telephone calls to the home of respondent and respondent’s relatives, and stated to third persons that respondent was not the lawful wife of Linehan but was cohabiting with him knowing him to be the husband of appellant. The latter repeatedly engaged in public episodes of name-calling and vilification of respondent in connection with the latter’s marriage. Appellant followed respondent from Whittier, California, to Boston, Massachusetts, to Montreal, Canada, in each of which places respondent then resided, and repeated the foregoing charges to third persons. Appellant wrote relatives of respondent, repeating the above charges and accusing respondent of poisoning Linehan. In a divorce proceeding between respondent and Linehan, appellant appeared in the courtroom and repeated the above charges and characterized respondent’s marriage as “bigamous.” Appellant stated to another relative of respondent, and to a friend, that respondent was consorting with Linehan illegally and sinfully. In the presence of various persons, appellant stated respondent was a narcotics addict.