91 Neb. 430 | Neb. | 1912
Action in the district court for Cass county for malicious prosecution. Judgment for plaintiff for $1. Defendant appeals.
The complaint upon which plaintiff ivas prosecuted was filed in the county court of Cass county by the county attorney, and charged that defendant, being a druggist witli permit from the city council of the city of Plattsmouth to sell liquors for medicinal, mechanical and chemical purposes only, did on July 5, 1908, unlawfully sell intoxica
One of the errors assigned by defendant, and the only one we deem it necessary to consider, is that the trial court erred in overruling his request for a peremptory instruction, and in submitting the case to the jury. The evidence of plaintiff himself is that one Reggs came to his store on Sunday, July 5, 3908. “He said he wanted some whisky. 1 said, ‘We don’t sell it on Sunday.’ He said, ‘I Avant it for medicine. I have got to have it. I am going to go into the country.’ I asked him what his name was and Avliere he lived, and he told me and that he was Avorking out in the country. I says, ‘Do you want it for medicine?’ and he said, ‘Yes, sir; I do.’ I asked him how much he wanted, and put it up for him; took his money and delivered the goods to him, making the entry of the sale in the poison register.” The poison register shows that the sale Avas 12 ounces.
The controlling question is: Did defendant Leyda procure the prosecution of plaintiff maliciously and without probable cause? The fact that a man is prosecuted on a criminal charge through promptings of malice on the part of the one instituting the prosecution is not sufficient ground upon Avhich to base a suit for malicious prosecution, if there is probable cause for such prosecution. There must be both malice and want of probable cause before such an action Avill lie. In this case there is an entire absence of CAddence to sIioav that defendant made any false representations whatever to the county attorney, or did
The judgment of the district court is therefore reversed and the cause remanded, with directions to dismiss the action at plaintiff’s costs.
Reversed.