Cawrse v. Signal Oil Co., 164 Or. 666 (Or. 1940)

BELT, J.

This is an action to recover damages resulting from an alleged slander of title to real property owned by the plaintiff. The cause was submitted to a jury and a verdict returned in favor of the plaintiff in the sum of $2,000. From the judgment entered thereon, the defendant appeals.

In view of the defendant’s motions for nonsuit and directed verdict, the statement of the facts will be made in the light most favorable to the plaintiff.

Plaintiff is the owner of a quarter-acre of land upon which is located a gasoline service station. The station is on the Pacific highway in Marion county a short distance north of Jefferson. On September 5, 1935, plaintiff’s predecessor in title, Alma Peterson, leased the property to the defendant oil company for a period of three years. Under the terms of the lease, the lessor remained in possession and operated the station as the agent of the lessee oil company, selling its products. It was stipulated in the lease that: “This agreement shall be personal to the lessor and shall not be assignable by him without the written consent of the lessee.” Alma Peterson, after operating the station for some time, sold the property to L. E. Scrivner who, on- April 17, 1937, conveyed it to the plaintiff. None of the deeds of conveyance made any reference to the lease. When plaintiff purchased the property from Scrivner, he inquired from the latter as to whether there was any lease on the premises and was assured there was none. At that time plaintiff

notified the defendant company to remove its “Signal Oil Company” signs from the premises and it did so. Plaintiff desired to deal with the Shell Oil Company and handle its products. He entered into negotiations with the Shell Company but it advised him its products could not be delivered to bim because the Signal Oil Company asserted it had a lease on the premises and that “they would have to stay off.”

Thereupon plaintiff, on May 8, 1937, wrote to defendant the following letter:

He had all but the sign on top of the building taken down. Will you please have this sign removed?

Defendant, under date of May 12,1937, in response to the above letter, wrote in part as follows:

Thereupon, plaintiff on May 14, 1937, thus answered :

station on which they would infringe if they delivered gas to me to be sold through this station.

Plaintiff had a purchaser, one Van M. G-reer, who was ready, able and willing to pay $3,500 in cash for the property. Greer testified that he called on the Standard Oil Company, Shell Oil Company and Bichfield and “they all three advised me they couldn’t service me with gasoline,” for the reason that the “Signal Oil Company had a lease on the station.” G-reer said he was not willing to buy the station unless he could handle gasoline other than that furnished by the Signal Oil Company. G-reer eventually refused to purchase the property for the reason above stated.

Slander of title is the false and malicious statement, oral or written, made in disparagement of a person’s title to real or personal property causing him special damage. The essential elements of plaintiff’s cause of action are: (1) The uttering and publication of the slanderous words by defendant; (2) the falsity of the words; (3) malice; and (4) special damages. Witmer v. Valley National Bank, 223 Iowa 671, 273 N. W. 370; Rittenhouse v. Johnson, 161 Okla. 169, 17 P. (2d) 457; 37 C. J. 130; Odgers on Libel and Slander (6th Ed.) 68; Newell Slander and Libel (4th Ed.) § 167.

Defendant concedes having represented to some of the oil companies that it claimed a lease on the service station in question. The court properly instructed that at such time the defendant did not have a valid and subsisting lease as to the plaintiff. Counsel concede that the defendant company had no valid lease at such

time but contend that “it thought it had one.” The covenant concerning services of the lessor was of a personal nature and did not run with the land. The statements made by defendant to third persons relative to plaintiff’s title were undoubtedly false. There is evidence tending to show that, as a proximate result of such false statements, the plaintiff lost the sale of his land at a profit.

The vital question in the case is whether there is any substantial evidence tending to show that such statements by defendant were made maliciously. Did defendant have any reasonable ground for believing that it had a lease binding on.the plaintiff? Or did the defendant make such statement for the purpose of injuring the plaintiff and thereby forcing him to purchase Signal Oil Company products? Plaintiff could not recover if defendant honestly believed it had a valid lease. Malice purports an intention to vex, injure, or annoy another person. Long v. Rucker, 166 Mo. App. 572, 149 S. W. 1051; Cardon v. McConnell, 120 N. C. 461, 27 S. E. 109; Fearon v. Fodera, 169 Cal. 370, 148 P. 200, Ann. Cas. 1916D, 312, and note; Briggs v. Coykendall, 57 N. D. 785, 224 N. W. *202; Bourn v. Beck,* 116 Kan. 231, 226 P. 769; Odgers Libel and Slander (6th Ed.) 72.

It was not incumbent upon plaintiff to establish malice by direct evidence. It is sufficient if a reasonable inference of malice may be drawn from the evidence. Of course, if the defendant at the time of making such statement knew it had no lease or had no probable cause for believing it had one, it acted maliciously. Where different reasonable inferences can be drawn from the evidence on such issue, the question is for the jury to decide. In this connection, we ask,

why did the defendant remove its advertising signs from the premises if it honestly believed it had a lease ? We think the good faith of the defendant is challenged by the evidence.

It is contended by defendant that, since it never represented to Greer that it had a lease, plaintiff cannot recover in this action. Suffice it to say there was publication of the alleged slander of title. It was made to a third person. There is evidence that the false statement concerning plaintiff’s title was communicated to the prospective purchaser by the oil company to whom defendant made such representation. Defendant relies upon Burkett v. Griffith, 90 Cal. 532, 27 P. 527, 13 L. R. A. 707, 25 Am. St. Rep. 151, but we think that case fails to support its contention. There, Sketchley was the prospective purchaser. The court, in denying relief to the plaintiff therein, said:

There is some substantial evidence tending to establish all the essential elements of the action. We conclude, therefore, that no error was committed in denying motions for nonsuit and directed verdict. The judgment is affirmed.

Bean and Bailey, JJ., not sitting.