Thelma Oil & Gas Co. v. Sinclair Gulf Oil Co.

• Decision Date: 15 January 1924
• Docket Number: Case Number: 12255
• Citation: 222 P. 686,1924 OK 50,97 Okla. 5
• Parties: THELMA OIL & GAS CO. v. SINCLAIR GULF OIL CO. et al.
• Court: Oklahoma Supreme Court

1924 OK 50

222 P. 686

97 Okla. 5

THELMA OIL & GAS CO. v. SINCLAIR GULF OIL CO. et al.

Case Number: 12255

Supreme Court of Oklahoma

Decided: January 15, 1924

Syllabus

¶0 1. Malicious Prosecution--Failure of Proof --Demurrer to Evidence.

In an action for malicious prosecution the burden of proof is upon the plaintiff to establish by the evidence want of probable cause and malice in instituting the proceeding, but where the evidence of the plaintiff fails to show malice and the absence of probable cause in prosecuting the proceedings complained of, it is not error for the court to sustain a demurrer to the testimony.

2. Trial -- Demurrer to Evidence -- When Sustained.

A demurrer to the evidence admits all of the facts which the evidence reasonably tends to establish, and all the inferences and conclusions which may reasonably be drawn therefrom; but where the evidence introduced is insufficient to sustain a verdict or judgment in favor of the party introducing the evidence, it is not error for the court to sustain a demurrer to such evidence.

3. Malicious Prosecution--Defenses -- Advice of Counsel.

It may be stated as a general rule that, where a party has communicated to his counsel all the facts bearing on the case of which he has knowledge, or could have obtained by reasonable diligence and inquiry, and has acted upon the advice received honestly and in good faith, the absence of malice is established, the want of probable cause is negatived, and the action for malicious prosecution will not lie.

Commissioners' Opinion, Division No. 5.

Error from District Court, Carter County; Thos. W. Champion, Judge.

Action by Thelma Oil & Gas Company against Sinclair Gulf Oil Company. Judgment for defendant. Plaintiff brings error. Affirmed.

Ledbetter, Furman & Ledbetter, for plaintiff in error.

Edw. H. Chandler, Farrar L. McCain, and Summers Hardy, for defendants in error.

PINKHAM, C.

¶1 Plaintiff in error, Thelma Oil & Gas Company, will be referred to as plaintiff, and the defendants in error will be referred to as defendant.

¶2 This action was commenced by plaintiff in the district court of Carter county against Sinclair Gulf Oil Company, a corporation, Indiahoma Oil Gas Company, a corporation, and W. L. Garrett.

¶3 The petition of the plaintiff charged that during the year 1917, the Crystal Oil Company, the Indiahoma Oil Gas Company, and W. L. Garrett planned and conspired together to deprive plaintiff of the rightful use and enjoyment of a certain oil and gas lease, and in pursuance of that conspiracy an action was commenced by the Indiahoma Oil Gas Company, in the district court of Oklahoma county, against the plaintiff. Thelma Oil Gas Company, and an action was commenced by Crystal Oil Company against the plaintiff, Thelma Oil & Gas Company, in the district court of Carter county, which actions clouded the title to the leasehold estate of plaintiff; that Sinclair Gulf Oil Company took over the assets and burdens of Crystal Oil Company, and thereafter maintained and prosecuted to judgment the suit theretofore filed by Crystal Oil Company against Thelma Oil & Gas Company and others in the district court of Carter county. That the causes of action in the district court of Oklahoma county and in the district court of Carter county resulted in final judgments for the plaintiff, and that no appeal was ever taken from said judgments. That the filing of said suits was malicious and without probable cause; that the wrongful acts of the defendants had resulted in damages to the plaintiff. Crystal Oil Company was not made a defendant, and the Sinclair Gulf Oil Company is the only party defendant in error here.

¶4 The Sinclair Gulf Oil Company filed its answer, in which it denies each and every allegation of the petition, except such as therein admitted. It is admitted that the Crystal Oil Company commenced an action in the district court of Carter county against the plaintiff on or about January 3, 1917, and that said action was finally terminated in favor of the plaintiff. That said action was commenced by the Crystal Oil Company against plaintiff in good faith with probable cause and without malice; that prior to the institution of said suit the Crystal Oil Company sought advice of counsel and made disclosures to counsel consulted by it of all the facts then within its knowledge, and that acting on said advice of counsel the said action was instituted.

¶5 On these pleadings the case was tried before a jury in the district court of Carter county, and at the conclusion of the testimony the defendant demurred to the evidence offered on behalf of plaintiff, and said demurrer was by the court sustained. Judgment was entered. A motion for new trial was filed and overruled by the court and the appeal in this action was perfected to this court.

¶6 A number of assignments of error are set out in the petition in error, which are presented together in the brief of plaintiff under the second assignment of error, which is as follows:

"The trial court erred in sustaining the demurrer to the evidence of the plaintiff, which was excepted to at the time."

¶7 It is contended by the plaintiff that all the necessary essentials of an action for malicious prosecution were alleged and proven by the plaintiff.

¶8 It is argued that this case shows very clearly that the trial court exceeded its authority in sustaining the demurrer to the evidence; that the question of what amounts to probable cause is one of law for the court; that it is the duty of the court when evidence has been given to prove or disprove probable cause to submit to the jury its credibility with proper instructions that certain facts amount to probable cause or that they do not. It is contended there was evidence in the case that the suit of the Crystal Oil Company versus Thelma Oil & Gas Company was instituted without probable cause, and the court should therefore have permitted the jury to pass on the credibility of the evidence.

¶9 Numerous decisions of this court are cited in the briefs of both plaintiff and defendant on the question of probable cause and malice in cases of this character. These cases have been examined and from them it may safely be said that the law is now settled in this state that the burden of proof is upon the plaintiff in an action for damages for malicious prosecution to prove both want of probable cause and malice on the part of the defendant. Allison v. Bryan, 50 Okla. 677, 151 P. 610; Sims v. Jay, 53 Okla. 183, 155 P. 615; El Reno Gas & Electric Co. v. Spurgeon, 30 Okla. 88, 118 P. 397; Herrick v. Devorak, 56 Okla. 499, 155 P. 1153; James Leather Co. v. Woody, 67 Okla. 184, 169 P. 878; Shaw v. Cross, 83 Okla. 273, 201 P. 811.

¶10 This court has also held that where the substantial facts as to probable cause are not disputed, whether they were sufficient to constitute probable cause is a question of law for the court. Dunnington v. Loeser, 48 Okla. 636, 150 P. 874; Robberson v. Gibson, 62 Okla. 306, 162 P. 1120; Hopkins v. Stiles, 70 Okla. 173 P. 449; First State Bank v. Denton, 82 Okla. 137, 198 P. 874.

¶11 It is also well settled by the decisions of this court that where the uncontroverted evidence shows that the prosecutor laid all the material facts within his knowledge before a competent attorney and acted honestly and in good faith upon the advice given, then absence of malice is established, the want of probable cause is negatived, and he is exonerated from all liability, and an action for damages for the prosecution of said action cannot be maintained. Roby v. Smith, 40 Okla. 280, 138 P. 141, 138 P. 141; Central Light & Fuel Co. v. Tyron, 42 Okla. 86, 140 P. 1151; Allison v. Bryan, 50 Okla. 677, 151 P. 610; El Reno Gas & Electric Co. v. Spurgeon, 30 Okla. 88, 118 P. 397; Sims v. Jay, 53 Okla. 183, 155 P. 615; Herrick v. Devorak, 56 Okla. 499, 155 P. 1153; Jones Leather Co. v. Woody, 67 Okla. 184, 169 P. 878.

¶12 In the light of these decisions the question arises, and it is the only question in the case: Did the court err in sustaining the demurrer to the evidence of the plaintiff?

¶13 The answer, of course, depends upon the character of the evidence introduced on behalf of the plaintiff.

¶14 It appears that the purpose of the action commenced in the district court of Carter county by Crystal Oil Company was to obtain a specific performance of a contract by which Thelma Oil & Gas Company had agreed to convey an oil and gas mining lease to Indiahoma Oil & Gas Company, and which Indiahoma Oil & Gas Company had agreed to convey to Crystal Oil Company.

¶15 It appears that the only steps taken by the Crystal Oil Company were the filing of the petition and the presentation to the court upon demurrer of the question whether the allegations of the petition were sufficient to state a cause of action in favor of the plaintiff in that case.

¶16 There was evidence to the effect that prior to the institution of the action of the Crystal Oil Company, the plaintiff had an opportunity to make a sale of the oil and gas lease in controversy to a responsible party at an estimated price of $ 90,000, and the negotiations leading up to the proposed sale were embodied in a contract submitted in evidence, and that the purchase of said property would have been made had not the Crystal Oil Company filed suit against the plaintiff asking specific performance of a contract for the sale of the said oil and gas lease.

¶17 There was further testimony that after the termination of the suit between the Crystal Oil Company and the plaintiff, the plaintiff sold the leasehold estate involved herein for the sum of $ 41,500, which was the best sum that could be obtained at that time for the property. There was also testimony as to a number of items of expense which the plaintiff was required to expend by reason of the said suits.

¶18 In the trial of the instant case the plaintiff offered in evidence the deposition of Edw. H. Chandler.This witness testified that he was...