McKinzie v. Huckaby

• Decision Date: 02 June 1953
• Docket Number: Civ. No. 5780.
• Citation: 112 F. Supp. 642
• Parties: McKINZIE v. HUCKABY et al.
• Court: U.S. District Court — Western District of Oklahoma

112 F. Supp. 642

McKINZIE v. HUCKABY et al.

Civ. No. 5780.

United States District Court W. D. Oklahoma.

June 2, 1953.

Francis M. Pickel, Jr., Oklahoma City, Okl., for plaintiff.

Butler, Rinehart & Morrison, Oklahoma City, Okl., and McLaury & McLaury, Snyder, Okl., for defendants.

WALLACE, District Judge.

The plaintiff, Pauline McKinzie, brings this action against T. C. Huckaby and The First National Bank, Snyder, Oklahoma, to recover $5 for medical expenses incurred, $30 for loss of time, $50,000 for slander and loss of reputation and $50,000 exemplary damages, alleging in substance: that defendant Huckaby, as president of the defendant bank came to the town of Mineral Wells, Texas, and brought an armed man into the place of business where the plaintiff was employed; that Huckaby then and there accused plaintiff of removing a mortgaged car across the State line and of disposing of the same without the permission of the mortgagee; that Huckaby stated in the most belligerent tones that he was the owner of a mortgage of record on said car and that he had come for the car; that the threats and intimidating actions of the armed man, represented by Huckaby to be a local policeman of the town of Snyder, Oklahoma, so distracted the plaintiff that she became nervous and upset and ill; that the slanderous remarks of the defendant Huckaby in the presence of her employer and co-workers "has created a doubt in their mind and has further acted upon the nervous system of the plaintiff"; that Huckaby further stated he intended to take everything that she owned or hoped to own and "that he would give the plaintiff one week and he would come for everything"; that although the plaintiff at one time did owe a sum of money to "The Planters State Bank" at Mountain Park, Oklahoma the defendant bank's legal predecessor secured by a mortgage on a 1947 Chrysler that this note and mortgage had been paid in full.

The defendants, after taking the plaintiff's deposition, have moved for summary judgment in their favor under Rule 56.¹

Unquestionably, the complaint as drawn states a cause of action against the defendants.

However, plaintiff in her desposition in describing the occurrences pertaining to this case testified:²

"Q. All right. Where did you see him Huckaby and what did he say to you and what did you say to him? A. He came into my place where I work about 15 minutes until 12:00 or 10 minutes until 12:00, something like that, and when I saw him come in, all of the men were there, and I didn't want to say anything and I just told him I would see him at 12:00, and he could just wait in front on me, so when I went out to get in the car, I got in his car and sat in the back, and he had Ed Killingsworth, the law in Snyder, with him. Of course, I was scared to death. I didn't know what the deal was as I thought everything was settled, and I was to send him the money, you know, and I didn't even dream about him coming down there because it had not been but about four or five days since I got a letter, and it did kind of just tear me all to pieces. When I saw the policeman, I did go all to pieces. I just couldn't talk.

"When I got in the car, I said, `Mr. Huckaby, why don't you go up to Oklahoma City and see Dudley? plaintiff's husband I have done all I am going to do. I can pay you this much. I was going to send this to you but I can pay you this $50 and I can proceed to draw my check and pay you $25 more, which would pay it up ahead of time, and he said `I don't want the money. I want the car or all of the money', pertaining to my car. He said `Where is your car?' I said, `It is sitting across over there.'

"I asked him to come out to my house and I would show him the chattel mortgage, and I wanted to know why he was there and find out what he wanted me to do about it, since we had made that agreement.

"When I came back out to the car, the policeman was standing by the side of the car and I didn't know what they were going to do with me.

"Q. Pardon me. Was this downtown or at your home? A. That was out at my home.

"Q. All right, go ahead. A. So, after I showed him these papers and my chattel mortgage and everything and told him I had called Dudley and he had told me to go ahead and pay him that, he said, `I just won't accept it.' He said that to me two or three times. He looked at my chattel mortgage and papers and then he handed them over to the policeman and let him see them and they handed them back to me. I just sat there and he turned around and said to me `Mrs. McKinzie why have you been stringing me along like this?' I said, `What do you mean, Mr. Huckaby?' Of course, I was crying and he said, `Well, I will give you one week from today.' That was on Tuesday. `Next Tuesday, I have got to have the money or I have got to have the car, one or the other.'

"That was the last I heard of it.

"Q. Now, that was out in front of your house? A. Yes, sir; right in my driveway.

"Q. Then, did they take you back to your work? A. No, sir; they taken me down in front of the gas company and let me out and I walked back across there and got in my car and went home.

"Q. You got in their car at your house? A. Yes, sir.

"Q. (Continuing) And came down to the gas company with them? A. Yes, sir."

This and other portions of the plaintiff's deposition together with stipulations by counsel indicate the following significant variances between the allegations in the complaint and the undisputed facts:

1. Huckaby came alone into the place of business where plaintiff worked and he did so in a nonbelligerent manner; the ununiformed policeman remained in Huckaby's car out in front unidentified.

2. No commotion or stir was created by Huckaby in the presence of the plaintiff's employer or plaintiff's fellow employees; and, upon request by the plaintiff Huckaby waited out in front in his car.

3. The plaintiff got into Huckaby's car to talk with him of her own volition; at such time the plaintiff recognized Huckaby's companion to be a policeman from Snyder and she became emotionally upset.

4. Plaintiff owed the bank an unpaid balance and had disposed of the mortgaged automobile.

The hearing indicated further that Huckaby drove the plaintiff out to her house at her own request to enable the plaintiff to obtain certain papers with which she hoped to convince Huckaby that the mortgage in question had been satisfied and released. Thereafter the plaintiff was driven back to town at her own request and was let out of the car at a place of her own choosing.

Clearly, the Rule permitting summary judgment was not intended to cut off a right of trial by jury where there are contested issues to try and summary judgment should be granted only when the moving party is entitled to judgment as a matter of law where the truth is quite clear and where no genuine issues remained for trial.³

The Court has carefully considered the uncontested facts in the instance case and is of the opinion that under no theory of law is the plaintiff entitled to recover in this action.

Under these facts no action for libel or slander could possibly lie for two reasons: (1) The remarks made by Huckaby were true (2) The remarks were not made within hearing distance of third persons, in this case, within hearing distance of the plaintiff's employer or fellow employees.⁴ In addition, there is a very serious question whether the remarks even if published could be considered of a slanderous character.⁵

Although the complaint is framed fundamentally along the line of slander or libel, the Court has also considered whether, under the undisputed facts, there could have been an "invasion of the plaintiff's right of privacy." Naturally, if such...