Farley v. Peebles
| Decision Date | 16 February 1897 |
| Docket Number | 6996 |
| Citation | 70 N.W. 231,50 Neb. 723 |
| Parties | ROSALIE FARLEY v. WILLIAM E. PEEBLES ET AL |
| Court | Nebraska Supreme Court |
ERROR from the district court of Cuming county. Tried below before NORRIS, J. Reversed.
REVERSED AND REMANDED.
Breckenridge & Breckenridge and C. C. McNish, for plaintiff in error:
It was error to exclude proof not only of acts and declarations resulting in plaintiff's damage, but of facts tending to show the unlawful combination itself, as against any and all defendants not shown to be present and directly connected with the particular declaration or fact.
The testimony of the witness Sloan was not properly excluded as privileged communications. (Home Fire Ins. Co. v. Berg, 46 Neb. 600; Henry v. Nubert, 35 S.W. [Tenn.], 444; In re Turner, 31 A. [Pa.], 867; Romberg v. Hughes, 18 Neb. 579; Clay v. Tyson, 19 Neb. 530; George v. Silva, 68 Cal. 272; Thiesen v. Dayton, 82 Iowa 74; Plano Mfg. Co. v. Frawley, 68 Wis. 577.)
Guy T. Graves and Jay & Beck, contra.
References: Lawson v. State, 32 Ark. 220; Nelson v. Becker, 32 Neb. 99; People v. Barker, 27 N.W. [Mich.], 539; Clay v. Tyson, 19 Neb. 530; Hapgood Plow Co. v. Martin, 16 Neb. 27; Rupert v. Penner, 35 Neb. 587; Omaha S. R. Co. v. Beeson, 36 Neb. 361; United States v. Cole, 5 McL. [U. S.], 513.
The facts and issues are stated by the commissioner.
Rosalie Farley brought this action against William E. Peebles, A. C Abbott, D. N. Wheeler, George F. Chittenden, and Harry F. Swanson, alleging in her petition that she is a member of the Omaha tribe of Indians; that there was made to her by said tribe, on the 1st of May, 1892, a lease of 21,632.18 acres of the unallotted tribal lands of said Omaha Indians for a period of five years, or until the allotment of the lands leased; that said lease was made for grazing purposes, rent being reserved at twenty-five cents per acre per year; that said lease was duly approved by the commissioner of Indian affairs and the secretary of the interior; and that plaintiff took possession under said lease of the lands therein described; that the lands were of great value to her for grazing purposes, and that she derived large profits therefrom; that in 1892 the defendants conspired together to interfere with her rights and to destroy her business of grazing and pasturing cattle upon said lands, and of renting said lands to owners of cattle for grazing purposes; and pursuant to said conspiracy the defendants caused to be printed and circulated among the customers of plaintiff a notice purporting to be signed by the members of the council of the Omaha tribe, which notice was to the effect that plaintiff's lease had expired, and that any cattle or stock found on said lands after May 1, 1893, would be taken up for trespass and held for damages. She further alleged that said notice was not in fact issued by the Omaha tribe; that many of the council knew nothing thereof and never signed or authorized the signing thereof, all to the defendants' knowledge; that the sole purpose of issuing said notice was to prevent plaintiff from securing cattle to graze on said lands; that in further pursuance of said conspiracy the defendants caused said notice, with comment, to be published in a newspaper in Thurston county, which newspaper was published by the defendant Swanson; and that said newspaper circulated largely among plaintiff's patrons. The plaintiff further averred that in pursuance of said conspiracy, and for the purpose of ruining plaintiff's business, the defendants procured the institution in the circuit court of the United States of an action in equity in the name of certain members of the council of the Omaha tribe, appearing for themselves and other members of the tribe, the object whereof was to obtain a decree, contrary to the facts, adjudging the plaintiff's lease to be canceled, and that said action was begun for the purpose of slandering plaintiff's title; that when said tribe learned of the commencement of said action it repudiated the same; that several of the ostensible plaintiffs to said action did not authorize the suit to be brought and did not sign or swear to the bill, although said bill had attached the jurat of one of the defendants, a notary public for Thurston county, indicating that all said plaintiffs had made oath thereto. Plaintiff further alleged that by reason of such acts certain persons who had executory contracts with the plaintiff for the pasturing of cattle had been induced to cancel the same, and that other persons had been prevented from entering into contracts with her, all to her damage in the sum of $ 8,000. The answer, while admitting certain allegations of minor importance, denied most of the allegations contained in the petition, including all charges of conspiracy and wrongful acts. A trial to a jury resulted in a verdict, followed by judgment, for defendants. The plaintiff prosecutes error.
In addition to the foregoing statement, it may be well to say that the Omahas are a tribe of Indians having their residence chiefly in Thurston county. They were formerly in possession of a reservation, but by virtue of certain treaties and acts of congress a portion of their land was sold for their benefit, and a large portion of the remainder was allotted in severalty to members of the tribe. There remained unallotted a considerable body of land, subject to lease for grazing purposes under certain supervision by the Indian bureau, for the benefit of the tribe. While the members of the tribe have adopted the habits of civilized life, a council composed of twelve members is retained and exercises a certain control over property still enjoyed by the members of the tribe in common. It is to this communal property that this suit relates. These last facts are stated partly from the evidence, and partly as derived from the treaties and acts of congress and as matters of public notoriety, of which the court can properly take notice.
In view of these facts it cannot be questioned that the plaintiff stated a cause of action. She alleged, more in detail than we have stated, a valid lease to herself of a large tract of land, the equitable ownership of which, if not the legal title, rests in the tribe of which she is a member; a conspiracy among persons outside the tribe to deprive her of the beneficial enjoyment of that lease; this conspiracy carried into effect by the publication of a false warning purporting to be, but not, in fact, signed by those having control of the tribal affairs, whereby strangers would be induced to avoid contracting with plaintiff on the faith of her lease; the institution of an action in the name of the Indians, but without their authority, to cancel her lease; and damages as the result of such acts.
There are many assignments of error, but we address our attention to only two groups, which present, as we think, the two questions of most importance developed by the trial. The other assignments relate either to matters of minor importance, to matters probably accidental to the first trial and not likely to recur, or to questions not properly preserved by exceptions or in the motion for a new trial.
Thomas L. Sloan was called as a witness for the plaintiff. Mr. Sloan is a member of the bar of the state practicing in Thurston county, and is himself an Omaha Indian. It was sought to show by Sloan that Chittenden, one of the defendants, had approached him, seeking to retain him as an attorney in business against Mrs. Farley; that Sloan had informed him that he was generally retained on behalf of Mrs. Farley, and that he therefore could not accept a retainer against her; that thereafter Chittenden had made certain statements to him to the effect that Wheeler & Chittenden, who were partners in the real estate business, desired to secure Sloan's services to assist them in obtaining control of the land in controversy as against Mrs. Farley, and to use his influence with the tribe for the same purpose. Still further, that at a later time, and after information as to Sloan's retainer on behalf of Mrs. Farley, the defendant Peebles had joined the defendants Wheeler & Chittenden in a further effort and further statements to the same effect, and that an offer had been made Sloan of a large retainer if he would accept such employment, and also an offer to indemnify him against any damages which Mrs. Farley might recover on account of the breach of his contract with her. The court's rulings on this matter were not very consistent. The offers were made a number of times. A portion of the evidence was admitted. Other portions were excluded, but the result of it all was an order striking the whole of Sloan's testimony from the record. It is probable that some portions were incompetent and should have been excluded, but there can be no doubt that a considerable portion of that excluded or stricken out should have been admitted. The objection was on the ground that it was sought to elicit from the witness privileged communications made to the witness as an attorney at law. Our statute provides (Code of Civil Procedure, sec. 333): "No practicing attorney, counsellor, * * * shall be allowed, in giving testimony, to...
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