Bland v. Lawyer-Cuff Co.

Decision Date12 February 1918
Docket NumberCase Number: 8144
Citation72 Okla. 128,178 P. 885,1918 OK 95
PartiesBLAND v. LAWYER-CUFF CO.
CourtOklahoma Supreme Court
Syllabus

¶0 1. Libel and Slander--"Conditionally Privileged Communication"--Question for Jury--Evidence.

A "conditionally privileged communication" is one made in good faith upon any subject-matter in which the party communicating has an interest, or in reference to which he has or honestly believes he has a duty to perform, and which, without the occasion upon which it is made, would be defamatory and actionable; and where there is no dispute as to the circumstances under which a publication was made, it is a legal question for the court to determine whether the occasion is such as to bring the alleged defamatory publication within the protection afforded to "conditionally privileged communications," but whether the act which gives the publication the privileged character claimed for it is established by the evidence is a question for the jury, and where the evidence is conflicting it is proper for the court to instruct the jury as to what facts constitute a conditionally privileged communication, and leave them to say whether those facts are proven.

2. Release--Joint Tort-Feasors.

An acknowledgement by the plaintiff of satisfaction against one of two defendants sued as joint tort-feasors will not release the other unless such instrument shows that it was intended to have such effect.

Error from District Court, Oklahoma County; Edward Dewes Oldfield, Judge.

Suit by the Lawyer-Cuff Company against W. F. Bland and R. N. McConnell. Cause dismissed as to defendant McConnell, and judgment for plaintiff against defendant Bland, and he brings error. Affirmed.

Chas. H. Garnett, for plaintiff in error.

Grant Stanley, for defendant in error.

WEST, C.

¶1 This was a suit instituted by Lawyer-Cuff Company, a corporation, against R. N. McConnell and W. F. Bland in the district court of Oklahoma county on the 9th day of January, 1914, for damages for alleged libel. Four causes of action were alleged in plaintiff's petition. A demurrer, however, was sustained as to the first cause of action. The plaintiff, in substance, in each of the remaining causes of action, alleged that the plaintiff was engaged in the mercantile business at Maud, in this state, with a capital stock of $ 50,000, and that in conduct of its business it was necessary to obtain credit; that it was a solvent concern, and had a good reputation, and that McConnell operated a law office, collection agency, and reporting agency at Oklahoma City, and defendant R. N. McConnell was engaged in sending out reports as to the financial condition and responsi- bility of persons engaged in the mercantile business in different towns of Oklahoma, including Maud, and that Bland was employed by McConnell for said purpose; alleged that on the 10th day of May, 1913, defendants falsely, wickedly, and maliciously wrote a letter concerning plaintiff to the Huiskamp Bros., at Keokuk, Iowa, as follows to wit:

"Oklahoma City, Okla., May 10th, 1913. "Huiskamp Bros. Co., Keokuk, Iowa:
"Gentlemen: In re Lawyer-Cuff & Co., Maud, Okla. We are advised to-day, on good authority, that this concern is getting in extremely hard shape financially, and something is liable to happen at most any time. If you are interested, we suggest that you take immediate steps to collect your money. Please treat this information as con- fidential.
"Yours very truly,
"R. N. McConnell."

¶2 And did on the 20th day of May, 1913, falsely, wickedly, and maliciously write a letter and mail to, and say of and concerning said plaintiff to, the Huiskamp Bros. Company, of Keokuk, Iowa, as follows, to wit:

"Oklahoma City, Okla., May 20, 1913.
"Huiskamp Bros. Company, Keokuk, Iowa:
"Gentlemen: In re Lawyer-Cuff Company, Maud, Oklahoma. Yours of the 16th received. We know nothing definite regarding the financial condition of this concern, although we have heard several rumors recently. One is to the effect that they are making preparation to pull off a good deal; whether there is anything in this, of course, we do not know. You can take it for what it is worth, and trust you will hold it in strict confidence.
"We have known both Lawyer and Cuff for the last four or five years, and Cuff especially. We have a suit pending against him now for the Brown Shoe Co. Cuff is a grand rascal, and the trade here has but little confidence in him.
"Should we hear anything definite, will be glad to advise you.
"Very truly yours,
"W.F.B.--C.H.
"R. N. McConnell."

¶3 And did on the 7th day of September, 1913, falsely, wickedly, and maliciously write a night lettergram, and send to the Huiskamp Bros Company, of Keokuk, Iowa, saying of and concerning said plaintiff as follows, to wit:

"Oklahoma City, Okla., Sept. 7th, 1913.
"i ch ra 14 NL
"Huiskamp Bros. Co., Keokuk, Iowa:
"Lawyer-Cuff Co. bad shape checks going to protest bankruptcy. Better look after claim.
"742AM8th
"R. N. McConnell."

¶4 And did on the 10th day of September, 1913, falsely, wickedly, and maliciously write a letter and mail to, and say of and concerning said plaintiff to, the Huiskamp Bros. Company, of Keokuk, Iowa, as follows, to wit:

"Oklahoma City, Okla., Sept. 10th, 1913.
"Huiskamp Bros. Co., Keokuk, Iowa:
"Gentlemen: In re Lawyer-Cuff Co., Maud. We wired you the other day that this concern was failing in condition. We are advised recently that a large number of their checks have been going to protest and numerous claims are in the hands of attorneys for collection. We are also advised that four or five suits have been filed against them, and that the large creditors are upon the ground, demanding security.
"We understood some time ago that you were interested, and for that reason we wired you as we did. We did not give you this information in order to secure your claim, but desire to post you, so that if you still have a large claim against this firm you can take steps to secure yourself.
"Yours very truly,
"WFB/JC
"R. N. McConnell."

¶5 And did on the 16th day of September, 1913, falsely, wickedly, and maliciously write a letter and mail to, and say of said plaintiff to the Huiskamp Bros. Company of Keo- kuk, Iowa, as follows, to wit:

"Oklahoma City, Okla., September 16th, 1913.
"Huiskamp Bros., Keokuk, Iowa:
"Gentlemen: In re Lawyer-Cuff Co., Maud. Yours of the 12th received and fully noted. Will say that there are rumors going around constantly regarding the insolvency of this firm and the likelihood of their being forced into bankruptcy at any time.
"We were advised to-day by local attorneys that they were filing three or four dif- ferent suits against this firm.
"Now we understand that your claim is large, and that you, of course would not want to take any steps that would jeopardize your interest; however, if you want us to go to Maud and make a full and complete investigation for you, will be glad to do so for $ 10 per day and expenses.
"Yours very truly,
"W.F.B./JC.
"R. N. McConnell."

¶6 And alleged that plaintiffs were injured in their good name, fame, and credit, and brought into public scandal, infamy, and disgrace, and their credit destroyed, to the damage of plaintiffs in the sum of $ 10,000.

¶7 The other causes of action are practically the same except as to the libelous communications, which were based upon two other annoymous letters, which are as follows:

"9-22-'13.
"E. Walker C. G. Co., St. Louis, Mo.:
"Gentlemen: If Lawyer-Cuff Company, Maud, Oklahoma, owe you anything, you had better get it now. The big steal will soon come off. The Co. is a corporation. In the last few months the individual members of the Co. have bought hundreds of acres of land taking title in own names. When the Co. goes broke, as it surely will, Cuff and Lawyer Company will have plenty of land but the Lawyer-Cuff Company will have nothing but a badly run down stock and $ 50,000 worth of poor accounts. This is their scheme. Do as you think best if they owe you.
"I know your company well as I bought a great many goods from you in Mo. where I once owned a big store. I think a great deal of you, hence this gentle 'tip.' I was in Maud yesterday and got next to this whole rotten fraud.
"Yours truly,
"An Old Customer."
"9-22-'13.
"John Deere Plow Co., Oklahoma City, Okla.
"Gentlemen: Take a gentle 'tip' from father and get your money from Lawyer-Cuff Co., Maud. They will be in bankruptcy in 10 days. This is no rumor. I know the whole rotten deal.
"Yours truly,
"An Old Satisfied Customer."

¶8 Defendants answered denying the material allegations pleaded; admitted that McConnell was engaged in the business alleged, and that Bland was employed as alleged; pleaded the truth of the statement in the first cause of action; pleaded that it was a privileged communication; and denied the writing of the anonymous letters. The plaintiff dismissed his cause of action against the defendant R. N. McConnell, and the cause proceeded to trial to a jury as against the defendant W. F. Bland. Judgment was rendered for $ 6,000 actual damages and $ 4,500 exemplary damages against defendant W. F. Bland, and cause is brought here for review.

¶9 The parties will be designated as they appeared in the court below.

¶10 Defendant complains of the trial court below under five assignments, as follows:

"First. The trial court erred in refusing to hold that the communications to Huiskamp Bros. Co. were privileged, and in re- fusing to give defendant's requested instruction No 2 to that effect, and in giving instruction No. 6 of the general charge to the jury, in which the question of whether or not said communications were privileged was submitted to the jury.
"Second. The trial court erred in giving instruction No. 6 of the general charge to the jury.
"Third. The trial court erred in refusing to give instruction No. 1 or instruction No. 3, requested by the defendant.
"Fourth. The trial court erred in that the judgment rendered is not supported by the evidence and is contrary to law.
"Fifth. The trial court erred in overruling the
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