German-American Ins. Co. v. Huntley

• Decision Date: 12 December 1916
• Docket Number: 7844.
• Citation: 161 P. 815,62 Okla. 39,1916 OK 1020
• Parties: GERMAN-AMERICAN INS. CO. v. HUNTLEY ET AL.
• Court: Oklahoma Supreme Court

161 P. 815

62 Okla. 39, 1916 OK 1020

GERMAN-AMERICAN INS. CO. v. HUNTLEY ET AL.

No. 7844.

Supreme Court of Oklahoma

December 12, 1916

Syllabus by the Court.

By section 4958, Rev. Laws 1910, two classes of privileged publications are recognized: (1) Those where the occasions designated, regardless of malice, constitute an absolute privilege and preclude recovery of damages; and (2) those in which the circumstances of the defamatory publication together with the testimony, rebut the presumption of malice and afford a qualified privilege.

The word "fact" is used in the fourth paragraph of said section in its ordinary sense to denote the act, the thing done, the circumstance, the publication itself.

Where the circumstances under which the publication was made are undisputed, it is exclusively for the court to determine whether the occasion on which it was made, or the "fact" and the testimony, render it either absolutely or qualifiedly privileged. Otherwise, it is a question of fact to be determined by the jury.

In an action for libel, where plaintiff has established that defamatory matter has been published by the defendant concerning him, he is entitled to recover, unless the "fact" (the publication itself) and the testimony rebut the presumption of malice. The burden of adducing evidence to rebut such presumption is upon the defendant.

If the fact and the testimony rebut the presumption of malice, the burden then rests upon the plaintiff to show express malice in order to recover.

A corporation is liable in an action for libel published by its officers, servants, or agents whenever such publication is made in the performance, or within the scope of the general duties of such officers, servants, or agents.

Certain instructions examined, and held prejudicially erroneous.

Commissioners' Opinion, Division No. 3. Error from District Court, Grady County; Will Linn, Judge.

Separate actions by W. M. Huntley and C. S. Huntley against the German-American Insurance Company. Judgment for plaintiffs and defendant brings error. Reversed and remanded.

Scothorn Rittenhouse & McRill, of Oklahoma City, for plaintiff in error.

Bond, Melton & Melton, of Chickasha, and Bond & Sandlin, of Duncan, for defendants in error.

BLEAKMORE C.

W. M. Huntley and C. S. Huntley commenced separate actions in the district court of Grady county, each seeking recovery of damages against the German-American Insurance Company for libel based upon the publication of a certain letter written by the state agent to a local agent of said company. The issues in the two cases being identical, they were tried together in the court below, where several judgments were rendered against defendant company, each in the sum of $1,000, from which defendant has appealed; and by stipulation the cases are here consolidated for the purpose of review.

The plaintiffs were partners engaged in the mercantile business at Rush Springs, Okl. On March 31, 1914, their stock of goods and fixtures--to insure against the loss of which defendant had issued its policies of insurance--were totally destroyed by fire. Thereafter the loss thus occasioned was adjusted, plaintiffs accepting a less sum than claimed under the provisions of the policies. After such settlement had been effected and payment made by defendant, its state agent wrote to its local agent at Rush Springs the following letter:

"Referring to the loss on the Huntley risk, I beg to state that this matter has now been disposed of on a compromise basis, companies paying $4,500.00. This loss has been a most disagreeable affair, as there is more than a reasonable doubt as to the honesty of the assured, and I feel satisfied that both the Huntley brothers know more about the origin of the fire than it is to their interest to admit. The adjustment of this claim was very much complicated by affidavit furnished by you, which so weakened our defense that a compromise was deemed necessary, and I trust that hereafter, should any losses occur, that no action whatever will be taken by you in behalf of the assured unless you are duly authorized to do so. I am very confident that the affidavit

secured from you was obtained under a misrepresentation as to existing facts, as I know that you would not knowingly embarrass either the companies or the adjusters. This experience with the Huntley boys is sufficient for us and I must ask that you please refrain from interesting the German-American on any property in which either C. S. Huntley or W. M. Huntley have any ownership, and if at this time we have other policies for these parties, I will ask you to please cancel same on a pro rata basis, returning the surrendered contracts to the Chicago office so that our files may be complete. Trusting you will accept this communication in the same spirit as intended, with kindest personal regards, I remain."

The local agent to whom this letter was addressed exhibited it to divers persons. By the petition it is alleged:

"That said letter, containing said false and defamatory matter, was received by said local agent, A. N. Murphy, and by said A. N. Murphy exhibited to various persons in the town of Rush Springs, Okl., where plaintiff and the said C. S. Huntley have resided for a number of years. That by said false and defamatory statements the defendant meant to charge that this plaintiff and the said C. S. Huntley had either set fire to their stock of merchandise and fixtures or had it done, and were therefore guilty of arson, a crime under the laws of the state of Oklahoma, and said statements were so understood by these persons to whom said statements and defamatory matter were exhibited, and it was intended by the defendant that the same should be so understood by persons reading said letter."

Defendant answered by way of general denial, and alleged:

"But this defendant specifically denies under oath that A. N. Murphy acted as its local agent or representative in the matter of exhibiting 'to various persons in the town of Rush Springs, Okl.,' said letter referred to in plaintiff's petition herein, if in truth and in fact the said A. N. Murphy did so exhibit said letter; and this defendant specifically denies under oath that the said A. N. Murphy was ever authorized by it to exhibit said letter to any person or persons whomsoever, and specifically denies under oath that the said A. N. Murphy as this defendant's local agent had any such authority, and states the fact to be that said letter was a confidential and privileged communication from this defendant's state agent, James Brundrit, to the said A. N. Murphy, as its local agent, and that as such local agent the said A. N. Murphy had no authority to publish or exhibit the same to any person or persons whomsoever, or in any manner whatsoever, and if he, the said A. N. Murphy, did so act in the premises, such act was not authorized or countenanced by this defendant, and was not within the scope of said A. N. Murphy's authority as this defendant's local agent."

Before the loss was adjusted, investigation in regard thereto had been made by a representative of the state fire marshal, the adjuster for the defendant company, and others, who had reported to the state agent of the company that the fire which destroyed the property of plaintiffs was of incendiary origin, and that the facts and circumstances surrounding it gave rise to suspicion that plaintiffs had burned or caused the burning of such property. The matter had also been investigated by the county attorney in connection with the fire marshal, and evidently it had been determined that the evidence was insufficient to warrant the prosecution of the plaintiffs for arson.

Relative to the letter in question the state agent of defendant, Mr. Brundrit, testified as follows:

"Q. And when you wrote that letter the policy had been settled and paid? A. The loss had. Q. It was a closed transaction? A. Yes, sir; in so far as the insured was concerned. Q. You took the policies up at Oklahoma City? A. Yes, sir. Q. It was a closed transaction so far as the company was concerned? A. Yes, sir; but not as between me and the agent; he had written me two or three letters wanting me to get that thing out of the way, and it was my business--to notify him that it was out of the way. Q. Settled and paid off? A. Yes, sir. Q. In telling him that was it necessary to tell him that the Huntley boys had burned up their store? A. The agent does not like to have policies canceled, and when a policy is canceled it is customary to let him know why, give him our reasons for not wanting to carry the business. Q. Why does the agent want to know? A. Because if he did not know he would probably put us on the risk again. Q. You instruct them to not take a risk, and they go ahead and take it anyway? A. No, but you have to give him instructions. Q. You could instruct him to not put any more risks on the Huntleys without telling him that they had burned up their goods? A. Yes, sir; but it was a good idea to let him know why. Q. You had circulated this report? A. No, sir. Q. You wrote this? A. Yes, sir. Q. You meant it? A. Yes, sir; my opinion. Q. You meant it was not an honest loss, and meant to tell him in that letter that the Huntley boys had burned up their goods? A. From the information I had I wanted him to know that I did not think the claim was an honest one, and that they knew more about the origin of the fire than they would admit. Q. You meant they burned it or had it burned? A. Yes, that is the opinion. Q. That is the way you wanted the agent to understand it? A. Yes. Q. Do you think it was necessary to say that when you told the agent to cancel the policies? A. That is my reason for canceling it. Q. You did not instruct the agent to exhibit the letter to any one? A.

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