Prairie Oil & Gas Co. v. Kinney

• Decision Date: 14 September 1920
• Docket Number: 9746.
• Citation: 192 P. 586,79 Okla. 206,1920 OK 304
• Parties: PRAIRIE OIL & GAS CO. v. KINNEY.
• Court: Oklahoma Supreme Court

192 P. 586

79 Okla. 206, 1920 OK 304

PRAIRIE OIL & GAS CO. v. KINNEY.

No. 9746.

Supreme Court of Oklahoma

September 14, 1920

Syllabus by the Court.

A "defect of parties" means too few, and not too many, parties.

A defect of partiesplaintiff, appearing upon the face of the petition, must be taken advantage of by demurrer to the petition.Ordinarily, when the defect of parties does not appear upon the face of the petition, the objection must be taken by answer, but where the defect of parties does not appear upon the face of the petition, and is not known to the defendant at the time the pleadings are made up, but is first discovered at the trial, upon discovery of such defect the matter should then be called to the attention of the trial court by proper objection.If no specifie objection is made to the defect of partiesplaintiff in the trial court, it will be considered waived, and cannot be raised for the first time on appeal.

The verdict of the jury will not be reversed, where there is any evidence in the record reasonably tending to support it.

The test applied to a demurrer to the evidence is that all the facts which the evidence in the slightest degree tends to prove, and all inferences or conclusions which may be reasonably and logically drawn therefrom are admitted, and the court cannot weigh conflicting evidence, but must treat as withdrawn the evidence which is most favorable to the demurrant.

It is an actionable tort for one to maliciously interfere with a contract between two parties and induce one of them to break the contract to the injury of the other.

"Malice," in the sense used herein, means a wrongful act done intentionally without just cause or excuse.

Error from District Court, Creek County; Ernest B. Hughes, Judge.

Action by John L. Kinney against the Prairie Oil & Gas Company.From a judgment of the county court on a trial de novo, on an appeal from justice court, in favor of plaintiff, defendant brings error.Affirmed.

Burford Miley, Hoffman & Burford, of Oklahoma City, and T. J Flannelly, of Independence, Kan., for plaintiff in error.

C. W Lively, of Ripley, W. Va., for defendant in error.

RAINEY C.J.

This action was originally instituted in a justice court in Creek county, Okl., and subsequently appealed to and tried de novo in the district court of said county, resulting in a judgment in favor of the plaintiff.

The facts in the case are substantially as follows: The defendant was the owner of a tank farm near Drumright, Okl., and the plaintiff and his wife were engaged in running a boarding house for the accommodation of the men at work on the tank farm, said boarding house consisting of a tent, household goods, and equipment situated on the farm and near the tanks.One of defendant's tanks was set on fire by lightning, and the fire spread to a second tank.Plaintiff's property was in a place of danger, which induced him to employ one Hays to remove it, and plaintiff paid Hays $3 in advance for his services.After Hays had commenced the work of removing the property, defendant's foreman, one McGarvey, who was collecting men and teams to build a dike or dam in order to confine the burning oil, approached Hays in the presence of the plaintiff, and said, "Unhitch that team and hitch it to this scraper," to which Hays replied, "No; I am helping Kinney."McGarvey then said, "Damn that stuff; what does that amount to compared with a tank of this oil?"Hays then hitched his team to a scraper and assisted McGarvey.According to the plaintiff's testimony, he was then only able to save the tent, and his other property was consumed by the fire.

Plaintiff offered his evidence and rested, and defendant demurred thereto on the ground that the same, taken with all legal presumptions in its favor, did not prove a cause of action in favor of the plaintiff and against the defendant.This demurrer was overruled, and defendant excepted and moved for an instructed verdict in his favor, which motion was also overruled and exceptions taken.The court thereupon instructed the jury on the law of the case, which, as above stated, returned a verdict for the plaintiff.

On direct examination plaintiff testified that the property destroyed and for which compensation was sought in damages was his, but on cross-examination, in response to a question as to whom it belonged, answered that it belonged to him and his wife.The latter was not made a party to the suit.It is contended by the defendant that plaintiff's wife was capable of suing and recovering anything due her for the loss of her goods, and that plaintiff had no legal right to recover for loss of his wife's property, and that therefore there was no evidence authorizing a verdict for the plaintiff.

From the evidence in the record we cannot say that all the property belonged to the plaintiff and his wife jointly, or whether only some of the articles were his wife's separate property.Giving plaintiff's evidence the favorable inferences to which it is entitled on demurrer, he was entitled to recover in some amount, and we cannot say there was not any evidence authorizing a verdict in his favor.It is also fair to presume that in saying the property belonged to himself and his wife plaintiff was speaking in the same sense that any head of a family does with reference to household goods.

But if she were a necessary party to the action, did the defendant properly raise the question in the trial court?As was held in Niblo v. Drainage Dist. No. 3 et al.,58 Okl. 639, 160 P. 468:

" 'Defect of parties' means too few, and not too many, parties, and hence is not synonymous with 'misjoinder of parties,' which means an excess of parties."

Under the fourth division of section 4740, a defect of partiesplaintiff or defendant is a ground for demurrer, and under section 4742, when the defects do not appear upon the face of the petition, the objection may be taken by answer.This section further provides that--

"If no objection be taken, either by demurrer or answer, the defendant shall be deemed to have waived the same, except only the objection to the jurisdiction of the court, and that the petition does not state facts sufficient to constitute a cause of action."

It seems to the writer that under the plain wording of these provisions the only way to take advantage of a defect of partiesplaintiff is in the manner above provided; that is, by demurrer if the defect appears on the face of the petition, otherwise by answer.However, the Supreme Court of Kansas, by a divided court, in the case of Atchison, T. & S. F. Ry. Co. v. Hucklebridge,62 Kan. 506, 64 P. 58, construing identical provisions of the Kansas Code, held:

"Civil Code, section 91, * * * which requires defects in petitions other than those which appear on their face, and other than those of jurisdiction and in statements of fact, to be set up by answer, does not apply to a petition by a partner who conceals the fact of partnership and wrongfully brings suit in his own name for an injury to the partnership property.In such case the defendant, if ignorant of the partnership until disclosed upon the trial, may then raise the objection without amendment of his answer."

I agree with the views of the minority of the Kansas Court, wherein they say:

"The decision of the majority interpolates into the section of the Code quoted an exception or proviso which has no existence either in its language or its implications.The Code says that defects not appearing on the face of petitions must be taken advantage of by answer; otherwise, they will be deemed waived; and it elsewhere makes provision for taking advantage of such defects as do not appear upon the face of the petition and were not known to exist until disclosed upon the trial.Civil Code, § 139, * * * authorizes the making of amendments to conform pleadings to the facts proved upon the trial, and it is not the law in all cases that the allowance of such amendment is in the discretion of the court.The refusal of an amendment to a defendant's answer, by way of objection to a plaintiff's petition, for a defect in such petition unknown to the defendant, and concealed by the plaintiff, and discovered only upon the trial of the case, is not within the discretion of the court.At any rate, to refuse such amendment would be an abuse of the court's discretion.However, the question has been several times heretofore decided.Railway Co. v. Nichols,9 Kan. 235-242;Seip v. Tilghman,23 Kan. 290;Coulson v. Wing,42 Kan. 507, 22 P. 570.In all these cases there was a defect of partiesplaintiff, such as in the case before us, remaining undiscovered until the trial; and in all of them it was ruled that the objection could be raised only by answer."

Appreciating the fact that the construction of the above sections of the Code by Kansas Court prior to the adoption of the Code in this state is entitled to great weight, we are constrained to follow the majority opinion, but under it, as well as under our own decisions (Kansas City, M. & O. Ry. Co. v Shutt,24 Okl. 96, 104 P. 51, 138 Am. St. Rep. 870, 20 Ann. Cas. 255;Choctaw, O. & G. Ry. Co. v. Burgess et al.,21 Okl. 653, 97 P. 27), the objection must be made in apt time and at the trial.In the instant case, when it was brought out on cross-examination that the property involved in the suit was the property of the plaintiff himself and his wife, defendant did not then ask leave to amend his answer by setting up the alleged defect of parties, nor object on this ground to the case proceeding to judgment.The demurrer filed by it to the evidence did not specify a defect of parties nor was the question raised in the motion for new trial, and we are of the opinion that it cannot be raised for the first...