
    John Rider et al. v. John H. Murphy.
    Filed April 7, 1896.
    No. 6468.
    1. Malicious Prosecution: Probable Cause: Malice. To render a prosecuting witness liable in an action for malicious prosecution, it must be alleged and proved that bis conduct in tbe premises was inspired by malicious motives and was without probable cause.
    2.-: -. Probable cause is tbe existence of sucb facts and circumstances as would excite tbe belief in a reasonable man’s mind, acting on tbe facts within tbe knowledge of tbe prosecutor, that tbe person charged was guilty of tbe crime for which be was prosecuted. (14 Am. & Eng. Ency. Law, 24.)
    3. : Malice. Evidence examined and found wholly insufficient to sustain the finding of the jury that the plaintiffs in error were inspired by malicious motives in causing the defendant in error to be prosecuted for the crime of embezzlement, and wholly insufficient to support the finding of .the jury that such prosecution was begun and carried on without probable cause.
    Error from the district court of Douglas county. Tried below before Ogden, J.
    
      James W. Orr and Lee S. Estelle, for plaintiffs in error.
    
      Schomp & Corson, contra.
    
   Ragan, C.

In the district court of Douglas county John H. Murphy sued John Rider and Fred H. Glick and one J. A. Rider, since deceased, for damages for malicious prosecution. Murphy had a verdict and judgment, and Rider & Glick prosecute to this court a petition in error.

It appears that in the autumn of 1891 Rider & Glick were engaged in business in the city of Omaha, and dealing in butter, eggs, and poultry and other farm products. On the trial of this case the evidence of Murphy, so far as the same is material here, was, in substance, as follows: In November, 1891, at the instance of Rider & Glick, he went to Milford, in this state, to purchase butter and eggs and poultry. He purchased a considerable quantity which he shipped to Rider & Glick. Murphy paid his traveling expenses and Rider & Glick furnished the money to pay for the products bought. These products Murphy shipped to Rider & Glick at Omaha and they disposed of them. When Murphy returned to Omaha from the Milford trip, a difficulty arose between him and Rider & Glick as to the amount of money that was coming to him from them for the products he had bought and shipped them on this Milford trip. Murphy claimed that he was to have one-half the profits realized from the products purchased, and that those profits ought to be somewhere in the neighborhood of $300. Rider & Glick, on the other hand, claimed that the amount due to Murphy was $6.77. They made him out a statement from the books showing this fact and offered him a check for that amount of money. Murphy became enraged and refused to accept the check in settlement, threw it down, and left the office of Rider & Glick. He called at the office of Rider & Glick several times after that time, but the Milford deal was not talked of at all those visits.

Early in December, 1891, Murphy, while at the office of Rider & Glick, was told by them that he could make some money by buying potatoes in Iowa for them; that they would furnish the money to pay for the potatoes and pay thirty cents a bushel for all the potatoes — not exceeding a certain quantity — which he might buy, Murphy to have as compensation the difference between what he might pay for the potatoes and the thirty cents a bushel which Rider & Glick were to pay. He agreed to go to Iowa and buy potatoes on these terms and went to Glick and said, “I will take that, check now.” Glick thereupon handed Murphy the check for $6.77. The check was dated the 8th of December, 1891, and Murphy the next morning presented this check to the bank on which it was drawn, and he then discovered that it had written across the back of it, “in full settlement of account,” whereupon he erased that indorsement and cashed the check. Murphy then went to Iowa and contracted for some potatoes. He caused Rider & Glick to deposit $100 in a bank in Iowa to his credit with which to pay for the potatoes bought. He then came to Omaha and told Rider & Glick that he had bought some potatoes for them; that they would be shipped in refrigerator cars and would not arrive for about a week,., and then demanded of them that they first settle up the Milford deal in accordance with what he claimed. This, we repeat, is substantially Murphy’s evidence. The record further shows that no part of the money which Rider & Glick furnished Murphy was ever returned to them nor did they ever receive any of the potatoes bought with that money by Murphy. Yery soon after the last interview described between Murphy and Rider & Glick the latter ascertained that Murphy had used the money sent him in buying potatoes; that he had put them in a car and consigned them to Hayden Bros., a firm doing business in the city of Omaha, Acting upon this information Rider & Glick swore out a complaint charging Murphy with embezzlement. He was bound over to the district court, an information charging him with embezzlement was filed by the prosecuting attorney, on which he was tried and acquitted. This is the prosecution made the basis of the present .action. Does this evidence support the verdict? In Dreyfus v. Aul, 29 Neb., 191, this court held: “To entitle the plaintiff to recover in such an action he must prove a want of probable cause, malice of the defendant, and that the criminal prosecution is ended.” This case was followed in Vennum v. Huston, 38 Neb., 293, and it was there held: “To render a prosecuting witness liable in an action for malicious prosecution it must be alleged and proved that his conduct in the premises was inspired by malicious motives and was without probable cause.” In Davie v. Wisher, 72 Ill., 262, probable cause is thus defined: “Probable cause is defined to be a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offense charged.” And in 14 American & English Encyclopedia of Law, 24, the authorities, as to what constitutes probable cause, are collated, and it is there said: “Probable cause is the existence of such facts and circumstances as would excite the belief in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which he was prosecuted.”

Now, let us examine the undisputed evidence in this case, and the evidence of Murphy himself, in the light of the rules and authorities quoted above. Rider & Glick prosecuted Murphy for the crime of embezzlement. They knew at the time they did so that he had been acting as their agent to purchase potatoes for them; that he had used the money they furnished him for that purpose in the purchase of potatoes; that he had shipped these potatoes to other persons and that he had in effect, according to his own evidence, demanded of them that they allow him some $300 which he claimed was due from the Milford deal, as a condition precedent to his delivering to them the potatoes which he had bought for them with their money, or the proceeds thereof. They also knew that when he was first informed as to the amount coming to Mm from the Milford deal that he had refused to accept it; that subsequently he had undertaken to buy potatoes for them and had voluntarily demanded the check which he had refused in settlement of the Milford deal; that he had received and cashed that check; and they had the right to believe from Murphy’s conduct that the difference which had existed between them in reference to the profits of the Milford deal had by them been settled to Murphy’s satisfaction, or that he had accepted the check in settlement. (Treat v. Price, 47 Neb., 875.) It seems to us that these facts and circurnstances known to Rider & Glick, and on which they acted, were sufficient to excite the belief in their minds, they being reasonable men, that Murphy was guilty of the crime with which they charged him, but whether Murphy accepted the check of $6.77 in settlement of the Milford deal or not, the evidence shows beyond all question that Rider & Glick thought he had; and the argument is now made here in behalf of Murphy, that Rider & Glick had the books showing the profits of the-Milford deal; that they had Murphy in their power, and that he, Murphy, felt and realized his position, and thought what he lacked in power he must supply by policy; he must in some way get the firm of Rider & Glick to be his creditor rather than, his debtor; in other words, this argument is a concession by Murphy’s counsel, that at the time he accepted the check not only did Rider & Glick believe that he accepted it in settlement, but that Murphy knew they so understood. But if it be conceded that Murphy did not -accept this check in settlement of the Milford deal, he was none the less the agent and trustee of Eider & Glick in the transaction of purchasing the potatoes. We think, therefore, that Eider & Glick had probable cause to believe Murphy guilty of embezzlement at the time they caused him to be arrested for that crime.

There is in the record no evidence to support the finding of the jury that the conduct of Eider & Glick in causing Murphy to be prosecuted for embezzlement was inspired by a malicious motive; nor to support the finding of the jury that the prosecution was begun and carried on without probable cause. The judgment of the district court is reversed and the cause remanded.

Eeversed and remanded.  