200 N.W. 811 | Minn. | 1924
The complaint charges a conspiracy on the part of defendants to defame plaintiffs, and in carrying out the purpose it is alleged that on several different occasions in 1922 defendant Harry Starkey, in the hearing and understanding of one Clifford Swanson, made the false and defamatory statement that plaintiffs were making and selling moonshine at their home, and that defendant Nellie Starkey made a like false statement to a police officer, who in reliance upon the same caused a search warrant to be issued and plaintiffs' home searched for intoxicating liquor. The exact language used upon the different occasions is set out with proper innuendoes. The answer admitted the residence of the parties, their relations as husband and wife, and denied the other allegations of the complaint.
The court had power to open the case after both parties had announced that they rested, and should have so done when plaintiffs made the request. The object was merely to let the police officer, who had testified, identify Nellie Starkey as the person who had made the complaint to him that plaintiffs were violating the law, she not having appeared in court until after the officer had testified. Where no delay, or great inconvenience, or prejudice will result, the court should ever be ready to grant litigants full opportunity to present all their testimony before the case is submitted. As matters stood when plaintiffs asked the favor, it should have been granted without question. It would not have interfered with an orderly trial, and clearly would have been in the interest of justice.
The learned trial court seemed to take the view that a conspiracy was not proven, in that defendant Nellie had not been sufficiently identified as the one who made the charge against plaintiffs to the police officer and upon which charge the search warrant was issued. If a cause of action was proven against either defendant, it was error to direct a verdict in favor of both. Proof that only one of the defendants had committed the wrong would entitle plaintiffs to a verdict against that one, regardless of the existence of the conspiracy charged. But we think there was sufficient evidence to show defendant Nellie's connection with the alleged defamation to go to the jury. The alleged conspirators were husband and wife. When the relationship is so intimate, the proof need not be strong *60
in order to permit a jury to find a common purpose and concert of action existing between the parties charged with the wrong. Pfefferkorn v. Seefield,
Moreover, we think it was clearly for the jury, as the evidence stood when plaintiffs rested, to say whether or not defendant Nellie did not make the false statement to the police officer that plaintiffs were conducting an unlawful business. She admitted that before the raid she was at the office of the chief of police and that a day or two after she saw the officer who testified to ascertain the result. The officer testified that, when informed that no evidence of intoxicants was found, she besought him not to divulge that she had instigated the search. The officer also testified that prior to the search, the same woman, on a slip of paper, now destroyed, charged plaintiffs with the offense. He was not certain of the first name, but stated it was Mrs. Starkey, and gave her residence as that where defendants live.
To falsely charge a person with the manufacture and sale of "moonshine" is unquestionably an actionable wrong. Moonshine is generally understood to mean intoxicating liquor. State v. Tremont,
We think the learned trial court erred in directing a verdict for defendants.
The order is reversed. *61