Magnolia Petroleum Co. v. Davidson

• Decision Date: 18 April 1944
• Docket Number: 31081.
• Citation: 148 P.2d 468,194 Okla. 115,1944 OK 182
• Parties: MAGNOLIA PETROLEUM CO. et al. v. DAVIDSON.
• Court: Oklahoma Supreme Court

148 P.2d 468

194 Okla. 115, 1944 OK 182

MAGNOLIA PETROLEUM CO. et al. v. DAVIDSON.

No. 31081.

Supreme Court of Oklahoma

April 18, 1944

Syllabus by the Court.

1. In an action for damages for slander brought by a discharged employee against his employer, a corporation, and two of its employees acting in a supervisory capacity, where the alleged defamatory words were spoken in the presence and hearing of a fellow employee only, such communication was privileged and not actionable.

2. A 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, and which contains matter which without the occasion upon which it is made, would be defamatory and actionable.

3. 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 privileged communications.

Appeal from Superior Court, Creek County, Drumright Division Herbert L. Arthurs, Judge.

Action by Sherman G. Davidson against the Magnolia Petroleum Company and others to recover damages for slander and libel. From a judgment for plaintiff, defendants appeal.

Reversed with directions.

Robert W. Richards and B. B. Blakeney, Jr., both of Oklahoma City and Tom Wallace, of Sapulpa, for plaintiffs in error.

Kermit Nash and Charles E. Webster, both of Drumright, for defendant in error.

CORN Chief Justice.

This action was commenced in the Superior Court of Creek County, Oklahoma, by Sherman G. Davidson against Magnolia Petroleum Company and two of its employees, Pat D. Blackburn and Elmer White, to recover damages for slander and libel. The jury returned a verdict for the plaintiff in the sum of $6,500, and the court rendered judgment accordingly.

It is alleged by the plaintiff in his petition that Pat D. Blackburn, acting as employee and agent of and for Magnolia Petroleum Co., a corporation, and in the performance of his duties as such employee and agent, did, in several different conversations with, and in the presence and hearing of certain persons, maliciously speak, publish and circulate of and concerning plaintiff certain slanderous, false, malicious, scandalous and defamatory words, to-wit:

"He is guilty of making un-American utterances.

We are afraid that if we don't fire him he will blow something up.

The F. B. I. are after him and forced us to fire him."

The alleged slanderous words spoken by Elmer White were as follows:

"Davidson was fired because we were afraid he would blow something up.

The F. B. I. had him fired." It was also alleged that the defendant, Magnolia Petroleum Company, was guilty of libel in filing with the Unemployment Compensation and Placement Division of the Oklahoma State Department of Labor the "Separation Notice" which contained the statement that plaintiff was discharged by said company because of "unpatriotic remarks."

In answer thereto, each of the defendants filed a separate answer, White and Blackburn answering substantially the same by general denial, and further alleging that if any publication was made, it was privileged, and that if defamatory words were spoken, they were true. The Magnolia Petroleum Company answered by general denial, but admitted that Blackburn and White were its employees during the time mentioned; that the plaintiff had been an employee of said corporation for a number of years prior to his discharge on January 5, 1942; that it filed the separation notice mentioned, but that it was required by the laws of the State of Oklahoma and was privileged. Said company specifically denied that it had, acting through its codefendants, or otherwise, made the statements set forth in plaintiff's petition, or that there was publication as alleged. It further alleged that if the slanderous words were spoken or published, it was on a privileged occasion, and that said statements, if spoken or published, were true.

The plaintiff replied separately to the separate answer of each of the defendants, denying in effect all allegations set forth in each answer.

The libel charge growing out of the "Separation Notice" aforesaid was ruled out by the trial court as a privileged communication, and no appeal therefrom was taken by the plaintiff, and it is not involved in this appeal.

The parties are referred to herein as plaintiff and defendants, respectively, as they appeared in the trial court.

It is first contended that the trial court erred in overruling the defendants' separate demurrers to the plaintiff's evidence.

The record discloses that Pat D. Blackburn was district superintendent of the gasoline department of the Magnolia Petroleum Company, with headquarters at Drumright, and Elmer White was foreman of the gasoline plant near the town of Oilton.

On January 3, 1942, Blackburn heard a rumor on the streets of Oilton relating to trouble between employees at the plant originating in arguments pertaining to the war. The next day he went out to the plant and asked Mr. White, plant foreman, to make an investigation and report the facts to him.

The investigation disclosed that a serious argument had occurred between the plaintiff and E. H. Whiteside, both employees at the plant, which aroused ill feelings between the two, and almost resulting in a fight on the job.

Blackburn interviewed several employees who had personal knowledge of the incident and who had heard the plaintiff make remarks of a partisan nature in regard to the European conflict over a period of several months before we were attacked by the Axis powers. Having completed the investigation, Blackburn discharged the plaintiff from his employment with the company. This action was taken on January 5, 1942.

Blackburn took sworn statements from employees of the Company who had heard such statements made by plaintiff from time to time and mailed these affidavits to the office of the Company at Dallas, Texas, and mailed copies to the F. B. I. at Oklahoma City.

The plaintiff admitted that he had made remarks and statements on many occasions that could be misconstrued as unpatriotic, but that he did not mean them as such, and had no intention of injuring the government when he made them. He contends that they were misconstrued, and the construction placed upon them by his employer as "un-patriotic remarks" was unjustified and defamatory. But whether said remarks were made, or if made, were misconstrued, we think is immaterial to the determination of this case, for, under the record herein, same was not published within the meaning of the law.

Fellow employees who had heard his remarks at different times expressing his attitude toward the international situation and the war were called as witnesses at the trial and testified concerning the remarks they had heard him make. The pertinent testimony was as follows:

E. H Whiteside testified that on December 31, 1941, "I came into the boiler house telling about the news I had heard. Having a boy on the ocean, naturally I was interested in what the Japs were doing, and I was listening good, and I went in telling the boys, and I told them also that Hitler had promised his people complete victory this coming year. That, of course, was still 1941. And I said 'The commentator said that old Hitler forgot to say that he promised them the same thing for the last year.' When I said that, Mr. Davidson said 'Hurrah for Adolph', and he laughed. I said 'Red, don't let me hear you say that again' and when I told him that the third time--I don't remember the exact conversation between times and I won't undertake to state it--when...