Smith v. McDuffee

• Decision Date: 15 September 1914
• Parties: SMITH v. MCDUFFEE ET AL.
• Court: Oregon Supreme Court

143 P. 929

72 Or. 276

SMITH v. MCDUFFEE ET AL.

Supreme Court of Oregon

September 15, 1914

On petition for rehearing. Petition denied.

For former opinion, see 142 P. 558.

MOORE, J.

It is maintained by plaintiff's counsel in a petition for rehearing that an alleged error, duly assigned, properly set forth and orally argued at the trial in this court, was not referred to in the opinion, whereby their client was prejudiced. The action of the trial court thus complained of consists in receiving, over objection and exception testimony given by the defendants and their witnesses tending to show that the reputation of the plaintiff for honesty integrity, and moral worth in the vicinity in which he lived was bad at the time the search warrant was procured, when no testimony on the subject had been given by him or his witnesses.

In an action to recover damages for causing to be issued without probable cause a search warrant, upon a complaint based on information and belief, the plaintiff shows a prima facie case when he proves at the trial that, upon search by an officer, the property involved was not found as disclosed by the return indorsed on the writ, and that for a long time prior to the search the plaintiff had borne a good reputation in the community for honesty and integrity. 25 Am. & Eng Ency. Law (2d Ed.) 151; Newell, Malic. Prosecution, 273 Hillard, Torts (3d Ed.) 462. Another text-writer discussing this subject remarks:

"In an action for wrongfully suing out a search warrant, where the evidence as to plaintiff's guilt is purely circumstantial, his good character may be shown to disprove reasonable cause on defendant's part for suing out the writ." 35 Cyc. 1276.

To the same effect see, also, Israel v. Brooks, 23 Ill. 575; Mark v. Merz, 53 Ill.App. 458; Blizzard v. Hays, 46 Ind. 166, 15 Am. Rep. 291; McIntire v. Levering, 148 Mass. 546, 20 N.E. 191, 2 L. R. A. 517, 12 Am. St. Rep. 594; Olson v. Tvete, 46 Minn. 225, 48 N.W. 914; Woodworth v. Mills, 61 Wis. 44, 20 N.W. 728, 50 Am. Rep. 135.

In such case as testimony regarding the plaintiff's good reputation is admissible when offered by him, for the purpose stated, so too evidence of his bad reputation must also be receivable to rebut an inference of want of probable cause when, upon a search of his premises or person, the property sought to be recovered is not found. Thus in Rodriguez v Tadmire, 2 Espinasse's Nisi Prius Rep. 720, in an action for malicious prosecution, where the defendant gave evidence of probable cause, it was ruled that a witness might be asked whether the plaintiff was not a man of notoriously bad character, though an objection was made by his counsel to the inquiry on the ground that character was not in issue in the case, so that...