Cobbey v. State Journal Co.

• Decision Date: 12 July 1907
• Docket Number: No. 14,122.,14,122.
• Parties: COBBEY v. STATE JOURNAL CO. ET AL.
• Court: Nebraska Supreme Court

77 Neb. 626

113 N.W. 224

COBBEY

v.STATE JOURNAL CO. ET AL.

No. 14,122.

Supreme Court of Nebraska.

July 12, 1907.

Syllabus by the Court.

An action for the malicious prosecution of a civil suit cannot be maintained if there was probable cause for bringing the suit complained of.

Both malice and want of probable cause must exist in order to justify an action for malicious prosecution.

A judgment in a civil suit or a conviction in a criminal suit by a court of competent jurisdiction is prima facie evidence of the existence of probable cause, but this is a rule of evidence, and is subject to rebuttal by proof that no probable cause in fact existed.

Where the question at issue was whether or not a statute was void as being in conflict with the Constitution, the judgment of the district court to the effect that the statute was void constitutes prima facie evidence of the existence of probable cause under the rule laid down in Nehr v. Dobbs, 47 Neb. 863, 66 N. W. 864; but, since in such a case the ultimate question of whether probable cause existed depends upon a construction of the law by this court, it is determined that the circumstances were sufficient to justify the bringing of the suit, and that probable cause existed.

Petition examined, and held not to state a cause of action against the defendants for maliciously combining and conspiring together to injure the plaintiff's business.

On rehearing. Former opinion reversed, and judgment below affirmed.

For former opinion, see 110 N. W. 643.

Letton, J., dissenting as to the proposition in headnote 5.

BARNES, J.

At the former hearing of this case, the only point considered was the objection to the jurisdiction of the district court on the ground that service could not be made upon a domestic corporation in a county other than that in which it was situated and had its principal place of business. Another objection was presented, but not orally argued, which was that the petition did not state a cause of action against Stonebraker, the sole defendant served in Gage county; that the court acquired no jurisdiction against him, and therefore acquired no jurisdiction of the defendants who were served in Lancaster county. The action was brought against Orville M. Stonebraker, Charles D. Traphagen, Highland H. Wheeler, the State Journal Company, and the Nebraska State Journal Association. The petition charges that the two corporations defendant are engaged in the publication of a daily and weekly newspaper, called the “Nebraska State Journal”; that the defendants Stonebraker and Traphagen are employed by said corporations and financially interested in each of them; that the corporations are both engaged in the publication and sale of a compilation of the Statutes of Nebraska made by the defendant Wheeler, who is also interested with the other defendants in the sale of that book, and the acts committed by the defendants jointly and severally were done for the purpose of promoting the sale of said book. The petition further alleges that the plaintiff is engaged in compiling and publishing Annotated Statutes of Nebraska; that he was authorized by the Legislature of 1903 to prepare the Statutes of the state; that 500 sets of such Statutes, of two volumes each, were to be delivered as soon as published to the Secretary of State, to be distributed to the members of the Legislature and state officers, at the price of $9 per set; that when said Statutes were nearly completed, and for the purpose of hindering and delaying the plaintiff in the publication of said Statutes and of discrediting the said Statutes of the plaintiff in the eyes of the public, and of thereby hindering and preventing the sale of the plaintiff's Statutes when published, and to prevent advance sales of said Statutes and for the enhancement of the sales of the said Compiled Statutes of Nebraska published by the defendants, the defendant Stonebraker, at the instigation and connivance of the other defendants, commenced an action against the Secretary of State to enjoin him from accepting and receiving the 500 sets of Statutes sold to the state, and against the Auditor of Public Accounts to enjoin him from issuing a warrant to pay for the same, alleging that the act which authorized such purchase was unconstitutional, well knowing that this was not the case, and that the State Journal Company had sold thousands of copies of Statutes to the state under like circumstances; that a temporary injunction was granted by the district court, which, on a final hearing, was made permanent, and a judgment therein was rendered against this plaintiff; that on appeal to the Supreme Court the judgment of the district court was reversed, and the case was dismissed. The petition further charges that the defendant published in the State Journal numerous articles in praise of their Compiled Statutes, and reflecting upon the plaintiff and the work done in the preparation of his Annotated Statutes, and that the sales of his statutes have been largely decreased thereby; that by reason of the acts of the defendants the publication of plaintiff's Statutes was delayed; that he was obliged to pay interest upon the money which he borrowed to enable him to publish the books, and was obliged to pay premiums for insurance upon the books prepared for delivery, that he was put to great expense in looking after the action and trying to secure its dismissal; that he lost the sale of a large number of Statutes by reason of the defendant's conduct--all to his damage, in the sum of $5,000. Stonebraker's objection to the jurisdiction of the court is, in effect, a demurrer to the petition, and will be so considered. At the outset we are met by a sharp controversy between the parties as to the nature of the cause of action. The plaintiff contends that the action is one to recover for the malicious prosecution of a civil suit and for a conspiracy to injure the plaintiff's business by publishing false and malicious statements concerning plaintiff's Statutes in a newspaper controlled by the defendants, while the defendants insist that the action is one to recover damages for the malicious prosecution of a civil action only.

Since both parties agree that the action is, in part at least, one for the malicious prosecution of a civil suit, we will first determine whether the petition is sufficient to sustain such an action. We assume, but do not decide, that an action for the malicious prosecution of a civil suit may be brought by a person not a party to the suit, but whose property or business was affected by the proceeding; and it is no longer an open question in this state that an action may be maintained for the malicious prosecution of a civil suit, even where there has been no restraint of the person or seizure of property. McCormick Harvesting Machine Co. v. Willan, 63 Neb. 391, 88 N. W. 497, 56 L. R. A. 338, 93 Am. St. Rep. 449. It is also equally well settled that the essential grounds upon which such an action rests are malice and want of probable cause, and both of these elements must be established by the plaintiff. Turner v. O'Brien, 5 Neb. 542;Vennum v. Huston, 38 Neb. 293, 56 N. W. 970;Hagelund v. Murphy, 54 Neb. 545, 74 N. W. 956. In an action for the malicious prosecution of a civil suit, it is necessary to prove want of probable cause, malice, and actual damage to the plaintiff resulting from the maintenance of the suit. Parmer v. Keith, 16 Neb. 91, 20 N. W. 103;Jones v. Fruin, 26 Neb. 76, 42 N. W. 283.

The facts pleaded in the petition show that the injunction suit was prosecuted to final determination in the district court by the defendant Stonebraker. A temporary injunction was obtained which was afterwards made permanent, and a final judgment was rendered by that court in his favor. Under the rule of the older cases, such a judgment rendered by a court of competent jurisdiction, after a full consideration of the case, would be held to be conclusive evidence of the existence of probable cause for the institution of the suit; but the later cases hold mainly to the doctrine that though in a criminal case there has been a conviction, or in a civil case a judgment, in favor of the plaintiff, yet the presumption that probable cause existed, based upon the fact of the adjudication, may be rebutted by proof that the judgment had been procured by fraud, perjury, or other undue means upon the part of the defendant. Nehr v. Dobbs, 47 Neb. 863, 66 N. W. 864. The plaintiff in that case was convicted of having maliciously and unlawfully killed a certain dog belonging to Dobbs. Upon error to this court the judgment was reversed, and the cause ordered dismissed. The conviction in that case, as also the judgment in the injunction suit in question in this case, was the result of a mistake of law upon the part of the district court; but there is a distinction, however, in the cases, which is a very material and important one. In the Nehr Case, Dobbs was aware that his dog had no collar, and the statutes expressly provided: “It shall be lawful for any person to kill any dog found running at large on whose neck there is no collar, as aforesaid, and no action shall be maintained for such killing.” The question before the trial court in that case was a mixed one of law and fact, while in the injunction suit in question herein there was no question of fact involved. The matter presented for determination was simply whether the law authorizing the purchase of the Statutes was unconstitutional. This was purely a question of law, upon which the best legal minds might reasonably differ; and we are convinced, from a consideration of the legal question involved, that there was room for an honest belief on the part of a reasonable man that the law authorizing the purchase of the Statutes from the plaintiff herein was unconstitutional, and therefore there existed probable cause for the bringing of the injunction suit. The plaintiff argues, however,...