Marland Refining Co. v. Harrel
| Decision Date | 27 March 1934 |
| Docket Number | 22296. |
| Citation | 31 P.2d 121,167 Okla. 548,1934 OK 201 |
| Parties | MARLAND REFINING CO. v. HARREL. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
1. If a defendant, after its demurrer to the evidence of the plaintiff has been overruled, does not stand upon the demurrer, but puts in its evidence, it waives the demurrer and, if it does not move for a directed verdict after the parties have finally rested, it cannot urge against an adverse verdict that the evidence was insufficient to establish a cause of action in favor of the plaintiff.
2. The term "per se" means by itself; simply as such; in its own nature without reference to its relations; and, in connection with slander and libel, the term is applied to words which are actionable because they, of themselves without anything more, are opprobrious. In other words, a publication is actionable per se when the language used therein is susceptible of but one meaning, and that an opprobrious one, and the publication on its face shows that the derogatory statements, taken as a whole, refer to the plaintiff and not to some other person.
3. In determining whether the article is libelous per se, the article alone must be construed, stripped of all insinuations, innuendo, colloquium, and explanatory circumstances. The article must be defamatory on its face "within the four corners thereof."
4. The matter of presenting amendments of pleadings during the trial is a matter largely within the discretion of the trial court and, where defendant attempts to amend an answer during trial, so as to interpose a special defense, the court did not abuse its discretion in refusing said amendment.
5. In an action for damages for injuries sustained, the court will not grant a new trial on the ground of excessive damages unless the amount awarded is so flagrantly outrageous and extravagant as to clearly show that the jury was actuated by passion, partiality, prejudice, or corruption.
Appeal from District Court, Creek County; Fred A. Speakman, Judge.
Action by Otis C. Harrel against the Marland Refining Company. From a judgment in favor of the plaintiff, the defendant appeals.
Affirmed in part, and reversed in part.
William H. Zwick and Robert R. Pruet, both of Ponca City, and A. L. Hull, of Oklahoma City, for plaintiff in error.
George H. Jennings, of Sapulpa, and Wayne H. Lasater, of Dallas, Tex., for defendant in error.
This action was filed in the district court of Creek county by Otis C. Harrel against the Marland Refining Company wherein the plaintiff sought to recover damages for certain oral and written statements made and circulated in and around the city of Sapulpa by the agents and employees of the defendant company, which plaintiff alleges were libelous or slanderous. The petition contained seven causes of action, but demurrers were sustained to the second, third, and fourth causes of action, and no cross-appeal has been filed by plaintiff, so that we are concerned here only with the first, fifth, sixth, and seventh causes of action. Upon each of these causes of action a jury verdict was rendered favorable to plaintiff, on which judgment was rendered and from which judgment defendant has appealed. The parties will be referred to as they appeared in the trial court.
It appears that plaintiff entered the employ of defendant in July, 1928, and his employment was terminated April 23, 1929; that he was an agent of the defendant company and had charge of the wholesale and retail sales of their products in and around the city of Sapulpa. The various causes of action herein relate to specific instances and separate acts, and to avoid confusion we are dealing with each separately.
In plaintiff's first cause of action, it is charged that the supervising agent of the defendant procured from one Sebe Christian, county judge of Creek county, a certain affidavit which is set out in full as follows:
It appears that, when the affidavit was presented to Sebe Christian for signing, he substituted for the words "were done with the intent to defraud or cheat" the words "was done so without his knowledge or consent"; that the said defendant through its officers and agents exhibited said affidavit to various persons for the purpose of making it appear that plaintiff had forged or caused to be forged the name of Sebe Christian to two certain invoices which covered two coupon books for $10 each. Plaintiff alleges that the result of the circulation of said affidavits was to damage his good name, social standing, reputation, and business standing in the sum of $10,000, and that it has thereby become more difficult for him to secure employment in his chosen avocation, and that a certain surety company, who had executed a surety bond for him to defendant company, had since refused to execute a bond for him by reason of said imputation of dishonesty caused by the circulation of said affidavit.
For answer generally, defendant pleads that the various causes of action are barred by the statute of limitations; that the court is without jurisdiction in this cause of action; a general denial of all material allegations contained in all of the causes of action.
In addition thereto for answer to the first cause of action, it is alleged that plaintiff had sold certain products to Sebe Christian and thereafter defendant had billed the said Sebe Christian with purchase price of such products and was thereafter advised by Christian that he had paid the purchase price to plaintiff and thereupon defendant obtained the affidavit in question. Defendant denied malice and alleged that the affidavit was obtained for the purpose of adjusting the account of Sebe Christian and that the contents of the statement are true.
On the first cause of action, the jury found for the plaintiff and fixed the amount of his recovery at $1,500.
For plaintiff's fifth cause of action, it is alleged that one E. C. Callahan or M. M. Dermedy was supervising agent for the territory in which Sapulpa was located, and that the said Callahan, in the hearing of one John Boyd and one Wheeler, whose initials are unknown to plaintiff, made certain slanderous statements to the effect that the plaintiff was a thief, a scoundrel, and a crook generally, and that plaintiff had blended and adulterated the gasoline of defendant for the purpose of cheapening the product in order to sell a greater number of gallons to his customers and thereby enhance the amount of his sales so that plaintiff could, would, and did divert to his own use the price of the gasoline above the amount which was originally furnished to him by the said company for such sales. Thereafter follows the formal allegations of damages to plaintiff's reputation. It is charged that, as a result of said slanderous statement, plaintiff has been injured in the sum of $10,000. To this cause of action, defendant entered a general denial. The jury found in favor of plaintiff and assessed his recovery in the amount of $2,500.
For plaintiff's sixth cause of action, it is alleged that one Mr. Farr, a representative of the defendant on or about April 30, 1929, in conversation with Mr. H. Beatty of the Oil City Grocery Company and other persons, stated that plaintiff padded the accounts of the said Beatty or the Oil City Grocery Company with the intention of robbing the defendant in the sum and amount of said account and that said plaintiff was dishonest, unworthy of trust, unfitted for the agency aforesaid, and that he, as supervisor, had been forced to discharge the plaintiff from...
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