Rittenhouse v. Johnson

McNEILL, J. This action was instituted in the district court of Lincoln county, Okla., on August 23, 1920, by plaintiffs in error against defendants in error to recover $60,-000 as damages for slander of title to certain lands in Carter county belonging to plaintiffs in error. The parties will be referred to as they appeared in the court below. It appears that the defendant Charles Lincoln McGuire was the owner of the property in question prior to his marriage with Irene Frances McGuire; that they were divorced on October 23, 1919, by the district court of Lincoln county, and said Irene Frances McGuire was awarded the land in controversy as her permanent alimony free and clear of all incumbrances, liens, leases, mortgages, etc. Plaintiffs acquired their title to the premises in question by warranty deed on the day said divorce was granted. Plaintiffs charge in their petition that, on December 22, 1919, the 'defendants ‘Roy; Johnson and Charles iLneoln McGuire placed of record in the office of the county clerk of Carter county a pretended oil and gas lease, dated June 25, 1918, purporting to have been executed by Charles Lincoln McGuire and Irene Frances McGuire to Roy M. Johnson covering said premises. Plaintiffs further allege they had no notice, knowledge, or information of the existence of said pretended lease and never learned of the existence of the same until after the same was placed of record; that said lease was void and that the same was placed of record in violation of a temporary restraining order and injunction issued in said divorce proceeding; that said defendants recorded said instrument with the intent of preventing plaintiffs from leasing said premises for oil and gas purposes, preventing plaintiffs from selling the oil and gas rights in said premises ; that said defendants maliciously, knowingly, willfully, and wrongfully conspired together to slander the title of said plaintiffs; that by reason of the wrongful acts of the defendants, plaintiffs have suffered special damages in the sum of $60,-000. Defendants denied the slandering of plaintiffs’ title. It appears that this and other litigation arose by reason of the said divorce proceeding. The district court of Lincoln county, on February 21, 1919, issued an injunction and restraining order against the defendant McGuire in said divorce suit from disposing, selling, or in any manner conveying said defendant’s real or personal property located in Love, Murray, Garvin, and Carter counties. A citation was issued out of said court on June 5, 1920, for the arrest of said McGuire and Roy Johnson, requiring them to appear before said court to answer charges of contempt by reason of the filing of the leases in question. The matter came on for hearing on September 13, 1920. A jury was iimpanejled. After the evidence was introduced the court directed a verdict In favor of the defendant Roy Johnson, and submitted the matter of the guilt of the defendant McGuire to the jury. The jury found the defendant McGuire not guilty. Thereafter, on June 1, 1921, judgment was entered in the district court of Carter county canceling the oil and gas lease in. question. An appeal from said judgment was thereafter lodged In this court, which was concluded in August, 1926, wherein this court canceled said oil and gas lease. On August 13, 1921, plaintiffs, in said district court of Lincoln county, filed an amended and substituted petition and the matter in controversy herein concerning the slandering of title did not come on for trial until January 2, 1929. The matter was submitted to the jury, and it rendered a verdict for the defendants. This was the second time that a jury in Lincoln county found in favor of the defendants in reference to the filing of the lease in question. The plaintiffs contend that they were entitled to a directed verdict, and that the *171 court should have rendered a judgment for plaintiffs notwithstanding the verdict. They urge in support of this proposition that malice, which is the gist of their cause of action, is presumed. The defendants offered evidence to the effect that the plaintiff F. A. Rittenhouse knew of the existence of these aforesaid leases prior to the receiving of his deed, and that he had been informed by the defendant McGuire of this fact; that their acts in reference to the recording of the leases were in good faith and were done without malice. The defendant McGuire testified that he believed the lease was a legal, valid, and subsisting lease, made and accepted in good faith. Malice is a question at issue in a suit to recover damages for slander of title. It is necessary for the plaintiffs to prove the publishing of the slanderous instrument and falsity thereof; that special damages have been sustained by reason thereof; possession of an estate or interest in property slandered; and that the acts of the defendants were malicious. Ward v. Mid-West Gulf Co., 97 Okla. 252, 223 P. 170. Odgers, Libel & Slander (Eng. Ed. 1887, sec. 142) p. 109, uses this language: “The law has been laid down by an eminent authority on this subject that it is not actionable for any man to assert his own rights at any time, and, though defendant may fail to prove such right, if, at the time he spoke, he supposed, in good faith, that he had such right, no liability is imposed ; that it is not sufficient for a plaintiff to prove in such action absence of right in defendant; he must also offer evidence of express malice, and that defendant could not honestly have believed in existence of right on his part, or had no reasonable cause for such belief; and even then the jury are not bound to find malice, for a defendant, though acting stupidly, may have been prompted by innocent motive.” Disputed questions of issuable facts were presented to the jury and the jury found that plaintiffs were not entitled to recover. Such questions are for the determination of the jury, and where a cause is submitted to the jury under instructions which fairly cover the issues and properly embody the laws, the verdict of the jury will not be disturbed on appeal where there is any competent evidence reasonably tending to support the same. Chapman v. Carroll, 134 Okla. 65, 272 P. 850. Under this record, plaintiffs were not entitled to a directed verdict nor a judgment notwithstanding the verdict. The plaintiffs also urge that the trial court committqld error in not permitting said Irene Frances McGuire, the former wife of the defendant C. Lincoln McGuire, to testify in reference to the oil and gas lease in question, and contend that even though said testimony might be inadmissible as to the defendant McGuire, it was clearly admissible as against the defendant Roy M. Johnson. The offer as imade by plaintiffs clearly contains incompetent matters. In the offer was a question of whether or not there were any unfilled blanks in the oil and gas lea.se which had been seDt to her for execution; that the defendant C. Lincoln McGuire, her former husband, advised her that the lease had been done away with and destroyed; that she executed the lease in blank at his request for the purpose of immediate sale. The trial court is not required to separate the admissible from the inadmissible in a tendejr where an offer of proof is made, although it is within its discretion to do so. Such refusal, however, is not error. It may properly reject the whole. 38 Cyc. 1335; Juby v. Craddock (Mont.) 185 P. 771; De Atley v.Streit (Mont.) 263 P. 967; Moore v. School Dist. No. 23, Stephens Co., 94 Okla. 133, 221 P. 51, and Stickney v. Hughes (Wyo.) 75 P. 945. To permit said former wife to testify to the facts set forth in said offer would be in violation of section 589, C. O. S. 1921 [O. S. 1931, sec. 272], The defendants at no time urged, nor contend, that said Irene Frances McGuire said that she ever advised plaintiffs of said lease prior to the recording of same. Her evidence would have been cumulative. Plaintiffs testified on this question. Plaintiffs were not prejudiced in that regard. We conclude that the trial court committed no error in sustaining the objection to said offer. Other assignments of error are urged, in reference to admitting incompetent, irrelevant, and immaterial testimony, in the giving of certain instructions and in refusing plaintiffs’ requested instructions. We consider it unnecessary to discuss the same. We have examined the record and find no merit in such contentions. Judgment affirmed. LESTER, O. J., CLARK, V. O. J., and OULLISON and S WIND ALL, JJ., concur. KORNEGAY, J., specially concurring. RILEY, J., dissents. ANDREWS, J., disqualified.