Western States Title Ins. Co. v. Warnock, 10444

• Decision Date: 16 June 1966
• Docket Number: No. 10444,10444
• Citation: Western States Title Ins. Co. v. Warnock, 415 P.2d 316, 18 Utah 2d 70 (Utah 1966)
• Parties: d 70 WESTERN STATES TITLE INSURANCE COMPANY, Plaintiff and Appellant, v. Ned WARNOCK, Defendant and Respondent.
• Court: Utah Supreme Court

Page 316

415 P.2d 316

18 Utah 2d 70

WESTERN STATES TITLE INSURANCE COMPANY, Plaintiff and Appellant, v.Ned WARNOCK, Defendant and Respondent.

No. 10444.

Supreme Court of Utah.

June 16, 1966.

Mabey, Ronnow, Madsen & Marsden, Salt Lake City, for appellant.

Critchlow, Watson & Warnock, A. W. Watson, Salt Lake City, for respondent.

KELLER, District Judge:

By this appeal the appellant seeks a reversal of a summary judgment granted by the Hon. Stewart M. Hanson, a judge of the District Court within and for Salt Lake County in a proceeding wherein Western States Title Insurance Company is plaintiff and Ned Warnock is defendant.

The complaint upon which the plaintiff bases its right to relief consists of two causes of action.The first alleges in substance that the defendant on or about the 19th day of March 1965, maliciously prepared a document referred to as Exhibit 'A' and that such document was by the defendant mailed to some two hundred to four hundred persons, and upon information and belief alleges that said document came to the attention of an additional five hundred to one thousand persons.

The record discloses that Exhibit 'A' was not in fact attached to the complaint.Counsel for the defendant does not make a point of the failure of the plaintiff to attach the exhibit, and on the contrary sets it forth in full in their brief and specifically agree that this court may consider the case as though it had been made a part of the plaintiff's complaint.In the interest of brevity we quote from plaintiff's Exhibit 'A' the only language that could possibly provide a contention that the exhibit was libelous:

'I have instituted a suit against Harold Calder and Western States Title Insurance Company on my own behalf and on behalf of you, the members.If we recover from Harold Calder or the Western States Title Insurance Company on the slander of title suit, then any money recovered after costs have been paid will be distributed to you, the members, as your interests appear.'

The second cause of action alleges in brief that on or about March 10, 1965, the defendant stated to one Milo S. Marsden, Jr. the following:

'Western States Title Insurance Company has violated its fiduciary responsibility to them.'

That by the word 'them'the defendant was referring to the parties to a certain trust held by plaintiff as trustee covering land owned by Joseph P. Kesler, the Indian Springs Health and Recreation Association or the Indian Springs Country Club.

The relief sought by each of these causes of action is general damages in the sum of $100,000 and punitive damages in a like sum.No special damages are pleaded in either cause of action.

Outside the allegations of the complaint the trial court had before it at the time of granting the summary judgment undisputed information contained in motions and affidavits from which we summarize the following: That the defendant in this action was counsel for Joseph P. Kesler and the Indian Springs Health and Recreation Association in the suit referred to in the language hereinabove quoted from plaintiff's Exhibit 'A'; that Milo S. Marsden, Jr. was one of the counsel for the defendant in said suit; that the defendant and said Milo S. Marsden, Jr. participated in the taking of a deposition of one Herbert L. Gleason; that such deposition constituted a part of the legal proceedings in said suit; that the comment alleged in the second cause of action to constitute a slander was made only to said Milo S. Marsden, Jr. immediately after the taking of such deposition.Affidavits filed disclose that Marsden and the defendant differ slightly in their recollection of the words spoken by the defendant on the occasion just referred to above.It makes no difference which version we accept as true as each may...