Reinhart & Donovan Co. v. Guaranty Abstract Co.

WELCH, J.

(dissenting). I think this case should be tried and determined on its merits as was the case in Federal Court referred to in the majority opinion. National Life v. Parkinson, 136 Fed. 2d 506.

In my view it is erroneous to hold this plaintiff barred or estopped by that former action. It is apparent from reading this majority opinion and that opinion, 136 Fed. 2d 506, that the issues are not identical as regards general abstracting usage, custom and practice, on account of the year’s difference of time in the abstracts and certificates sued upon.

The Federal decision emphasizes the trial court’s finding as to “the universal usage, custom and practice of abstract-ers prevailing on October 4, 1939, in reflecting taxes” etc., (136 Fed. 2d 512.)

It seems from the briefs here that Reinhart & Donovan contend this usage and custom was the controlling point in the Federal decision, while the abstract company contends that decision “disregarded usage and custom entirely.” It may be that neither such contention is exactly correct. However, the Federal decision certainly did not disregard the usage and custom, because it emphasized it as a fact, and as a controlling fact by which to measure the statutory liability. If this was not the controlling point of that decision, it at least was an important point in that case.

It needs no vigorous assertion that the custom and usage may or may not have been the same when the abstract was furnished and certified to plaintiff here in 1938, immediately after our final decision in 1938 of the Ivester case, 183 Okla. 519, 83 P. 2d 193. The plaintiff here asserts that the usage and custom was different in 1938, and that the proof in this record shows it. I think that fact should be considered here as important, if not controlling, as it was so considered in the Federal case, and should be determined in this case as it was there.

Of course, the time element is often controlling as to fact questions, and as to rights and liabilities. The same premises may at one time be properly determined to be exempt from execution as a homestead and at another time to be not so exempt. See Clay v. Brown, 161 Okla. 221, 17 P. 2d 378, and Clay v. First National Bank in Ardmore, 170 Okla. 225, 39 P. 2d 64. Further examples are unnecessary.

I respectfully dissent to the conclusion that the issues in the Federal question are identical so as to here estop plaintiff.