Clausen v. Omaha Loan & Building Association
| Decision Date | 06 November 1936 |
| Docket Number | 29714 |
| Citation | 269 N.W. 517,131 Neb. 666 |
| Parties | MADGE M. CLAUSEN, APPELLANT, v. OMAHA LOAN & BUILDING ASSOCIATION, APPELLEE |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Douglas county: WILLIS G. SEARS JUDGE. Affirmed.
AFFIRMED.
Syllabus by the Court.
1. " An order of the trial court granting a new trial will not ordinarily be disturbed by this court, and not at all unless it clearly appears that no tenable ground existed therefor." De Matteo v. Lapidus, 116 Neb. 549, 218 N.W. 379.
2. " As a general rule, ‘ one who, before instituting a criminal prosecution, makes a full, fair and honest statement to an attorney of all the facts within his knowledge, or which he could have ascertained by the exercise of reasonable diligence, bearing upon the guilt of the accused, and in good faith acts upon his advice, will not be liable in an action for malicious prosecution.' " Duffy v. Scheerger, 91 Neb. 511, 136 N.W. 724.
3. Want of probable cause is an indispensable element of an action for malicious prosecution.
4. " In an action for malicious prosecution where there is sufficient undisputed evidence to show probable cause, the trial court should direct a verdict for the defendant." Bechel v. Pacific Express Co., 65 Neb. 826, 91 N.W. 853.
Appeal from District Court, Douglas County; Sears, Judge.
Action by Madge M. Clausen against the Omaha Loan & Building Association and others. From the judgment rendered, plaintiff appeals.
Affirmed.
O'Sullivan & Southard and T. J. O'Brien, for appellant.
Kennedy, Holland, De Lacy & Svoboda, Sidney W. Smith and H. W. Shackelford, contra.
Heard before GOSS, C. J., GOOD, EBERLY, PAINE and CARTER, JJ.
This is a law action to recover damages for malicious prosecution. Plaintiff appeals from two judgments in two separate trials. On the first trial, before the late Judge Redick, she recovered a verdict and judgment for $ 17,700. This was set aside. On the second trial, before Judge Sears, plaintiff's action was dismissed when plaintiff rested, at the close of evidence before the jury on behalf of plaintiff. Plaintiff brings up the record on both trials, seeking, first, the restoration of the judgment in the first trial, and, on failure to secure that, second, a reversal of the judgment of dismissal on the second trial.
This action was begun on March 29, 1933, by the filing of a petition, but on some day, not named, but shortly before the first trial (which began February 28, 1934), plaintiff presented an amended petition upon which the case was tried.
The amended petition declared against Omaha Loan & Building Association, a corporation, Sidney Smith, its attorney and official, Penelope Anderson, its attorney and official, Lucile Huff, its employee, and Alfred Nelson, an officer of the Omaha police department. It charged that, on or about March 16, 1933, defendant association falsely and maliciously, and without reasonable or probable cause therefor, induced defendant Alfred Nelson to charge plaintiff with being insane, and that said Nelson did thereupon file such a complaint before the insanity commission of Douglas county, causing that commission to make out a warrant for apprehension of plaintiff and to arrest and imprison plaintiff; that upon the filing of the complaint plaintiff was arrested and committed to the Douglas county hospital against her will, there placed in a ward with a number of insane people and held incommunicado from 2 p. m., March 16, 1933, to 1 p. m., March 17, 1933, when she was taken before the insanity commission, given a full hearing, and found to be perfectly sane; that plaintiff is 50 years of age and had up until the time of her prosecution a good reputation in the city of Omaha and had innumerable friends and customers, who purchased soap and other toilet preparations from her, by which means she earned her livelihood and maintained her son, who attended Central high school; that defendants Smith, Anderson and Huff testified without reasonable or probable cause before the insanity commission; that plaintiff had been greatly injured in her credit and reputation, brought into public scandal and disgrace, suffered great pain of body and mind, and her income reduced about $ 25 a week, all to plaintiff's damages in the sum of $ 50,000, for which she prays judgment.
For its separate answer defendant association admitted its status as a building and loan association, admitted that Sidney Smith was its attorney, that Penelope Anderson was an attorney and an employee of the association, and that Lucile Huff was also its employee; admits that, on March 16, 1933, plaintiff was arrested on a warrant duly issued by the insanity commission, and that on the next day a hearing was had and she was discharged, but defendant denies all other allegations of the petition.
Each of the other defendants made separate answer to the amended petition. It does not appear necessary to notice their answers here because, on the second day of the first trial, these personal defendants were, on their motions, dismissed out of the action, and thereafter it proceeded as against defendant association.
We have not been favored with the reasons of Judge Redick for setting aside the judgment on the verdict of $ 17,700. It may well have been because the verdict was so large as, in the light of the evidence, to shock the sensibilities of the court. It may be that he felt he had prejudiced defendant by certain rulings on the admission and exclusion of testimony. By instruction No. 10, the court informed the jury he had stricken from the record six specified and numbered items, testified by or on behalf of plaintiff, as immaterial and instructed them not to consider these items in arriving at a verdict; and instructed the jury that the evidence of Robert A. Nelson, on behalf of defendant, which had been stricken by the court on the trial was restored to the record for their consideration. This may well have been considered by the court as confusing to the jury, as well as precluding defendant from following up the presentation of its evidence, had the rulings been corrected on the taking of evidence, rather than by an instruction. Be that as it may, a trial judge has wide latitude in the use of his discretion in granting a new trial.
In De Matteo v. Lapidus, 116 Neb. 549, 218 N.W. 379 there were three trials...
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