Weisz v. Moore
| Decision Date | 29 October 1936 |
| Docket Number | 42587. |
| Citation | 269 N.W. 443,222 Iowa 492 |
| Parties | WEISZ v. MOORE et al. |
| Court | Iowa Supreme Court |
Appeal from District Court, Palo Alto County; F. C. Davidson, Judge.
Supplemental opinion.
For former opinion, see 265 N.W. 606.
James W. Fay, of Emmetsburg, and Jensen & Wieben, of Dysart, for appellant.
Helsell, McCall & Dolliver, of Fort Dodge, A. J. Burt, of Emmetsburg, and Morling & Morling, of Emmetsburg, for appellees.
In their petition for rehearing appellees stress the claim that this court erroneously places upon the appellees, defendants in the trial court, the burden of proving probable cause, and erroneously holds that a conflict on the question of disclosure created a jury question on the issue of probable cause. Complaint is also made that the court was in error in the statement of the record on the question of full and fair disclosure. As to the latter complaint, we frankly admit that the court was mistaken in stating that " the appellant * * * testified positively that he had an agreement with L. W Moore under which he was to receive a dollar a day for the work done by him as porter, and that he was to receive his return railroad ticket to St. Louis in case he was to discontinue working at the hotel." Under the evidence as to these matters, it was incorrect to say that the appellant testified positively that he had an agreement with L. W Moore in regard to the amount of extra compensation claimed by him for janitor work, but we think the statement made by the witness does show an agreement as to return transportation to St. Louis.
It is true, as stated by appellees, that the burden of proving want of probable cause was upon the plaintiff. We do not think it true, however, as further contended by the appellees, that the facts in this case are such as to make it a case for the court to determine, as a matter of law, that the defendants did have probable cause in filing the information.
Appellee, L. W. Moore, testified that he had a conversation with appellant at the dinner table, the evening he arrived, and told him that his wages would be $40 per month as clerk, that he was to do the regular clerking work, set the cuspidors out in the lobby for the janitor to clean them, and to start the kitchen range about 5 o'clock in the morning, and that the appellant made no comment in regard to this work. Moore also testified that he never discussed with the appellant the matter of taking money out of the cash drawer for any purpose and did not tell him he could do so and put in a slip of paper; that he did not talk to appellant about paying him for extra work; that he could not remember that appellant demanded any certain amount for the extra work; and that he did not recall that the appellant ever mentioned the fact that he was entitled to a dollar a day. Moore further testified that he never discussed the matter of appellant's transportation from Clarion to St. Louis and never told him that he would pay appellant's transportation from Clarion to St. Louis.
The appellant, Weisz, testified that, in a conversation with Moore at the dinner table the evening he arrived, Moore told him he would get $40 a month and have a little side work at night, and that the night man would tell him about the side work. Weisz further testified that he told Moore that if he did not like his position he would expect his transportation back to St. Louis, and that " he (Moore) said that he would take care of that but that if I stayed I would like it." Weisz also testified that when he went to work the nightman told him he...
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