Beshiers v. Allen

• Citation: 148 P. 141,46 Okla. 331,1915 OK 182
• Decision Date: 13 April 1915
• Docket Number: 4041.
• Parties: BESHIERS v. ALLEN.
• Court: Supreme Court of Oklahoma

148 P. 141

46 Okla. 331, 1915 OK 182

BESHIERS v. ALLEN.

No. 4041.

Supreme Court of Oklahoma

April 13, 1915

Rehearing Denied May 11, 1915.

Syllabus by the Court.

Words actionable in themselves, because they charge the plaintiff with having committed a felony, spoken to a sheriff while engaged in hunting for the culprits actually guilty of the felony, are qualifiedly privileged if they are spoken in good faith, with an honest belief that they are true, with the sole intent of aiding justice, and with no motive or intent to injure the person spoken of.

In order to show express notice where the scandalous words spoken of the plaintiff were spoken on an occasion of qualified privilege, evidence of a repetition of such charge made to other persons, both before and after an action is commenced, are admissible for the purpose of showing malice but not for the purpose of increasing the damages.

Where such evidence is admitted, and the defendant requests a special instruction to the jury, that they cannot consider such evidence in arriving at the amount of the damage, and such request is refused, held error.

Commissioner's Opinion, Division No. 2. Error from District Court, Bryan County; A. H. Ferguson, Judge.

Action by Earl Allen against A. C. Beshiers. Judgment for plaintiff and defendant brings error. Reversed and remanded.

This was an action for slander, tried in the district court of Bryan county, before Hon. A. H. Ferguson, judge. There was a verdict and judgment in favor of the defendant in error (plaintiff below), and the case is brought to this court by proper proceedings in error. For convenience the defendant in error herein will be called plaintiff, and the plaintiff in error defendant, being the positions they occupied in the trial court.

The plaintiff in his petition alleged, in substance:

That he was a citizen of the county of Bryan, Okl., and is, and was at the times mentioned, engaged in the business of civil engineer, and was the county surveyor for Bryan county, and that the defendant is a citizen and resident of Bryan county, Okl.; that on or about the 24th day of May, 1911, at the town of Albany, in the county of Bryan, a certain bank, known as the Albany State Bank, was robbed by persons unknown to the plaintiff, and that subsequent thereto, and on the 25th day of May, 1911, in a certain conversation which the defendant had in the hearing and presence of one A. S. Hamilton, who was at said time the sheriff of Bryan county, the defendant maliciously spoke and published of and concerning the plaintiff the following slanderous, false, malicious, and defamatory words:

"I can tell you who robbed that bank; it was that surveyor, Earl Allen; I think it was he who robbed that bank on account of what he said to me on yesterday in Kemp; I tell you right now if he did not rob that bank he was closely connected with persons who did rob it and knows all about it. If I was the sheriff of this county I would put him in jail before night."

That this conversation referred to the robbing of the Albany State Bank at Albany, and at the time this conversation was had with the sheriff he was investigating the robbery for the purpose of ascertaining who had robbed the bank. The plaintiff further alleges that on or about the 24th of May, 1911, in a conversation that the defendant had with Earl Allen, and in the presence of Earl Allen and J. A. Groves, and in the hearing of other persons, whose names are unknown to the plaintiff, in the town of Kemp, in said county, the defendant maliciously spoke of and concerning the plaintiff the following slanderous, false, malicious, scandalous, and defamatory words:

"If I were the sheriff of Bryan county, I would put you in jail before night for robbing this bank."

The petition, then, in the usual form alleges that these words were maliciously and slanderously spoken of the plaintiff by the defendant, charging him with the commission of a crime, and tending to blacken and injure his honesty, virtue, integrity, morality, and reputation, and to expose him to public contempt and ridicule, and to injure and damage his business, and that the words so spoken were utterly false. The petition further alleges that by the acts of the defendant the plaintiff was permanently injured and damaged in his good name and reputation, and he is exposed to public contempt, and was and is damaged in his business of civil engineer, all of which amounts reasonably to the sum of $10,000.

The evidence in this case is directly conflicting in a great many respects. The plaintiff's evidence tended to prove that the defendant, who was a stranger to him, met him in the wagon yard at Kemp, and told the plaintiff of the bank being robbed; the information conveyed by the defendant of the robbery of the bank being, according to plaintiff's testimony, the first intimation that he had that the bank had been robbed. On the part of the defendant evidence was offered that the plaintiff, at Kemp, first told the defendant of the robbery of the bank, of which fact the defendant was at that time ignorant, and proceeded to give a description of the man who robbed the bank, and of the horses they rode, and other particulars of the robbery; that the defendant asked the plaintiff how he knew so much about this robbery, and where he got his information, whereupon the plaintiff answered, "At the telephone office," and the defendant asked the plaintiff if he had been to the telephone office, and plaintiff did not say whether he had or not; that at that time the defendant used the words, "I believe you either robbed the bank or you know who did, and if I was the sheriff of Bryan county, I would put you in jail." It will be noticed in the petition that one count sets out that the slanderous words were spoken to the sheriff of Bryan county at a time when the sheriff was investigating the robbery for the purpose of ascertaining who had robbed the bank. The evidence of the sheriff that the defendant had spoken these words to him was allowed to go to the jury over the objection of the defendant, who claimed that the words were privileged, being given to an officer in the discharge of his duty. During the trial the plaintiff was allowed to introduce the testimony of the deputy sheriff of Bryan county, who served the summons in this case on the defendant that at the time summons was served the defendant told the sheriff, in regard to the charge he had made against the plaintiff of robbing the bank, "I said it, but I seen my way clear when I did say it, that he is guilty of the robbery." This repetition of the alleged slander, of course, was not set out in the petition, as the conversation took place after the action was commenced. The plaintiff was also allowed to introduce testimony that one Walker had a conversation with the defendant in...