Pierce v. Oard

• Decision Date: 12 April 1888
• Parties: PIERCE v. OARD.
• Court: Nebraska Supreme Court

23 Neb. 828

37 N.W. 677

PIERCE

v.OARD.

Supreme Court of Nebraska.

April 12, 1888.

Syllabus by the Court.

Every person having reasonable and probable cause to believe that a crime has been committed has the right to communicate his suspicion to a magistrate having jurisdiction of the case; but the existence of reasonable and probable cause for the suspicion is essential to make the communication privileged.

One P., a merchant, applied to a justice of the peace for a warrant against one O., a married woman, on the ground that she had taken a pair of overshoes of the value of $1.15 from his store. The justice assured P. that he was acquainted with O., and that she would not commit the act complained of, and that there was a mistake, and offered to pay for the overshoes, and refused to issue the warrant. A few hours afterwards, P. again applied to the justice for the warrant, saying in effect that O. had stolen three pairs of shoes from his store, and that he could prove it. The justice again refused to issue a warrant, saying in effect that P. was mistaken. On the next day P., with a constable, went to the residence of O. without process, and charged Mrs. O., in the presence of her husband and children, with the larceny of the shoes, and procured payment, under threats of arrest, etc., for the shoes, and $1.50 for costs. There was a large amount of testimony tending to show that Mrs. O. had paid for the shoes when they were procured. Held, that the communications of P. were not privileged, and that a verdict against him for $325 was fully sustained by the evidence.¹

Error to district court, Buffalo county; HAMER, Judge.Dilworth, Smith & Dilworth, and George Evans, for plaintiff in error.

A. H. Connor and J. M. Stewart, for defendant in error.

MAXWELL, J.

This action was brought by the defendant in error against the plaintiff in error in the district court of Buffalo county, it being alleged in the petition that on the 27th day of November, 1884, said Pierce, in the presence and hearing of divers persons, maliciously spoke and published of and concerning her, defendant in error, the false and malicious words, to-wit, “She [meaning the plaintiff] stole a pair of shoes out of my store, and I can prove it;” and, for a second cause of action, that on the 27th day of November, 1884, said plaintiff in error, in conversation with divers persons, maliciously and falsely spoke and published of and concerning said plaintiff (defendant in error) the other false and malicious words, “She [meaning the said plaintiff] stole three pairs of shoes out of my store, and I can prove it; and she carried them out under her shawl;”--by which she has sustained damage in her reputation in the sum of $5,000. In December, 1885, defendant, by leave of court, filed an amended answer, alleging that on the 26th of November, 1885, he was engaged in the mercantile business in the town of Gibbon, Buffalo county, Neb., and that on that day he missed from his store some shoes, which he had not sold, and having good reason to believe that Margaret Oard, the defendant in error, had wrongfully taken the shoes missed by him, he, for the purpose of protecting his property, and bringing to justice the parties who had taken the shoes from him, and in good faith, made the following complaint in writing: “ State of Nebraska, Buffalo County--ss: Before me, William L. Beatty, justice of the peace in and for said county, personally came J. W. Pierce, who, being duly sworn according to law, deposes and saith that on or about the 26th day of November, 1884, at and in the county of Buffalo, and state of Nebraska, one Margaret Oard, then and there being, did unlawfully steal, take, and carry away three pairs of rubbers of the value of three dollars and forty-five cents, said rubbers then and there being the property of said affiant, J. W. Pierce; and further deponent saith not. Subscribed in my presence, and sworn to before me, this ______ day of ______, 188--,”--which complaint he presented to William Beatty, a justice of the peace of Buffalo county, and desired said justice to swear him to said complaint, and issue a warrant as required by law, which said justice then and there refused to do; that he went to Martin Oard's on November 28th, and it was then and there agreed that Mrs. Oard was to pay for one pair of shoes and part of the costs, which was then and there done, and in consideration of which it was then and there agreed that all matters between the parties were then and there fully settled. And he alleges that all conversation he had of the Oards was with officers of the law, and for the purpose of protecting his rights, and investigating and determining who had taken his property, and bringing the proper parties to justice. And he denies each and every other allegation in the petition not heretofore admitted. Mrs. Oard filed a reply, alleging that on the 28th of November, 1884, the said John Pierce and one Wheeler, who was acting constable, came to her house, and stated that he had a warrant for the arrest of plaintiff for stealing said shoes, and the costs of procuring such warrant; and that she then and there stated that she did not owe him anything for the shoes, and then and there refused to pay...