Talcott v. Rice

• Decision Date: 31 October 1913
• Docket Number: 17,370
• Citation: 143 N.W. 803,94 Neb. 539
• Parties: OSCAR TALCOTT, APPELLANT, v. CHARLESS W. RICE ET AL., APPELLEES
• Court: Nebraska Supreme Court

143 N.W. 803

94 Neb. 539

OSCAR TALCOTT, APPELLANT, v. CHARLESS W. RICE ET AL., APPELLEES

No. 17,370

Supreme Court of Nebraska

October 31, 1913

APPEAL from the district court for Douglas county: WILLIS G. SEARS JUDGE. Affirmed.

AFFIRMED.

Nelson C. Pratt, for appellant.

W. W Slabaugh, contra.

LETTON J. BARNES, FAWCETT and HAMER, JJ., not sitting.

OPINION

LETTON, J.

This is an action for malicious prosecution. In 1909 the plaintiff was the owner of a pool hall in the village of Valley, the defendants Coy, Byars and Butts were members of the board of trustees, and defendant Rice was marshal of that village. The petition charged that the defendants caused a complaint to be filed against the plaintiff in the county court of Douglas county, which contained three counts, the first two charging him and two others with unlawfully keeping intoxicating liquor for the purpose of sale without a license, and a third count charging that about March 12, 1909, the plaintiff and the same persons unlawfully sold to one James Snodgrass one quart of whiskey without having obtained a license; that the complaint was signed and sworn to by the defendant Rice on the advice and connivance of the other defendants maliciously and without probable cause; that they caused a warrant to issue and the plaintiff to be arrested; that plaintiff appeared for a preliminary examination, and that after a full and complete hearing he was acquitted and discharged. He avers that he was innocent of the charges, and that he has been greatly injured in his credit and reputation, and has been damaged in the sum of $ 7,000.

The answer of each defendant pleads his official station, his duty to maintain the peace and dignity of the village and to enforce the laws and ordinances of the village relating to the sale of malt, spirituous and vinous liquors, and that the complaint was filed with probable cause and without malice. After the evidence had been adduced, the district court, on motion of defendants, directed the jury to return a verdict in their favor, which was done and the cause dismissed at the plaintiff's cost. The motion for a new trial and assignments of error made here are substantially for the reasons that the court erred in directing a verdict, and in excluding evidence that the reputation of the witness Snodgrass for truth and veracity was bad at the time he made certain statements to the defendant Byars.

The question which lies at the root of the whole matter is whether the evidence was sufficient to require the submission of the case to the jury.

The undisputed testimony shows that plaintiff conducted a pool hall in the village from November 13, 1908, to April 20, 1909. In connection with the pool hall he sold confectionery, cigars and soft drinks, and had a card table at which chips were used in playing. In March, 1909, a complaint was sworn to by one Harrier and a search warrant issued against plaintiff, but the officers found no liquor except a small amount of whiskey in a quart bottle. This complaint was dismissed for a defect therein. A second complaint was filed and sworn to by Harrier. Defendant Rice, as marshal, was the official who made the search. He arrested defendant on that complaint, but found no liquor at that time, and the defendant was discharged. A third complaint was filed that day by Rice himself, which is the prosecution on which this action is founded, charging Oscar Talcott, Peter Sawyer and Joseph Loretz, instead of Talcott alone. A hearing was had upon this latter complaint, and the defendants were discharged for want of probable cause.

Plaintiff testified that he had not kept liquor for sale in the pool hall, nor at any other place, and that he did not sell intoxicating liquor in the pool hall nor authorize anyone to sell liquor for him, and quite a number of witnesses testified to being in the pool hall and seeing no liquor sold there. On the other hand, the defendants each testified to many complaints being made that liquor-selling and gambling were going on at the pool hall. Mr. Byars testified that he saw a great many beer and whiskey bottles about the pool hall in the alley...