Deupree v. Thornton

Sedgwick, J. In our former opinion (97 Neb. 812) the judgment of the district court was affirmed. Upon consideration, a rehearing was ordered, further briefs have been filed and — 805 — arguments have been heard in the case. The cause of action is stated in the petition as follows: “That the defendants unlawfully, maliciously and wickedly intending to injure the plaintiff and to ruin the plaintiff in his business and to make it impossible for the plaintiff to get custom for his said hotel and boarding house and to earn a living for himself and family, and with the intent and purpose to coerce and to force the plaintiff against his will to quit said business and said hotel and boarding house and to leave the said village of Orchard, in violation and in disregard to the laws of the state of Nebraska, and with intent to injure plaintiff in his good name and character as a good moral citizen, and in his good name as a business man and keeper of his said hotel and boarding house, did falsely and maliciously publish of and concerning the plaintiff, and of and concerning his said hotel and boarding house, and caused it to be believed, that the plaintiff was guilty of keeping a house of ill fame, and that he (the plaintiff) was using his said hotel and boarding house for and as a house of ill fame resorted to for the purpose of prostitution, and did, on or about the 6th day of January, 1908, unlawfully, maliciously, wickedly and secretly combine, confederate and conspire together, and that they did then and there wickedly design, construct and compose, and did unlawfully and wickedly abet counsel and assist each other in designing, constructing and composing of a certain wicked contrivance in writing, in substance following, to wit: ‘Mr. Deupree: Notice is hereby given that we, the undersigned town board and citizens of Orchard, have absolute evidence that you are keeping a house of ill fame, and that you are hereby notified to leave town in ten days’ — and signed by Neis Lindquist, Sidney D. Thornton, Jr., Ora J. Goldsmith, Archie D. Joyce, John Thomas Fletcher. That the defendants, in pursuance of the aforesaid agreement and conspiracy, did, on or about the 6th day of January, 1908, publish and cause to be published of and concerning his said hotel and boarding house said wicked, false and libelous contrivance ifi writing, and caused the same to be circulated through the village of — 806 — Orchard, and among the good people of said village of Orchard and surrounding country; and continued to publish and circulate said wicked, false and libelous contrivance, and continued to cause the same to be believed of and concerning the plaintiff and his said hotel and boarding house, until plaintiff was forced, against his will, by reason of said publication, to quit said hotel and boarding-house business on or about the 16th day of October, 1909, and to quit the town of Orchard on or about the 18th day of October, 1909.” The evidence establishes that, for several months during the latter part of the year 1907, the plaintiff was keeping a hotel and boarding house in the village of Orchard, a town of about 500 inhabitants, and that the general reputation of his house in that village was bad. The defendants produced nine or ten witnesses who so testified. Some of these witnesses showed but little knowledge in the matter, and their evidence was indefinite and unsatisfactory, but many of them appear to be. responsible citizens of the village who knew the general reputation of the hotel, and their evidence is clear and satisfactory. The plaintiff produced in rebuttal four witnesses. Mr. Ryan testified that he was a carpenter by trade and worked in the village. He was asked: “Mr. Ryan, did you ever hear anything against that hotel or the girls in that hotel prior to the time you heard of this petition being circulated?” He answered: “No, sir; I didn’t.” Mr. Andrews testified that he lived in the village in 1907 and in 1908. He was asked: “Did you ever hear anything derogatory to Mr. Deupree or the reputation of the house or girls’that were there prior to the time these men presented the petition up there charging the hotel with immorality? A. No, sir; I never heard anything.” Upon cross-examination he said: “To tell the truth I never heard very much talk since, as far as that goes. Q. You were living there in the town? A. Yes, sir; I don’t hear much of what these people do; I don’t know what the reason is I don’t.” Mr. Howard testified that he had lived in Orchard for a number of years. He was questioned about a particular girl who had worked in — 807 — the hotel, and was then asked: “There was nothing about that girl’s reputation before this talk about the hotel? A. I don’t know. Q. There was nothing about the other girls’ reputation before the talk and this petition was circulated up there? A. No, sir; I don’t know.” On cross-examination he testified that he was not in town during the fall of 1907. Mr. Hagerman had lived in Orchard about eight years. He was asked: “Did you ever hear anything about this hotel — about its reputation- — prior to the time you heard of this petition being circulated? A. No, sir.” On cross-examination he was asked: “Was there any talk about any of the girls around there? A. I don’t remember whether I heard any or not.” None of these witnesses testified that he knew the general reputation of the house. When we consider that this evidence was given more than four years after the transaction in question, and also the leading character and indefiniteness of the questions, it can hardly be said to have any probative force. The whole evidence establishes beyond any reasonable doubt that the general reputation of the plaintiff’s hotel in that community for several months in the latter part of the year 1907 was bad, as being a house of prostitution and assignation. Three of these defendants were members of the board of trustees of the village. Mr. Thornton was clerk of the board, and not a member of the board, as supposed in our former opinion. The defendant Hicks was not the marshal of the village, as suggested in our former opinion, and was “runner” for a competing hotel. It is clear from this evidence that these defendants and a large number of citizens of the village signed á paper of some kind, but it is wholly uncertain as to what were the contents of this paper. The plaintiff in his petition alleged that the “substance” of this paper was: “Mr. Deupree: Notice is hereby given that we, the undersigned town board and citizens of Orchard, have absolute evidence that you are keeping a house of ill fame, and that you are hereby notified to leave town in ten days.” This was alleged by the plaintiff, and, as the instructions show, was — 808 — also considered by tbe court as indicating that tbe purpose and object of the petition was to drive plaintiff from tbe town and ruin bis business. There is no evidence in tbe record as to tbe contents of this paper except tbe evidence of tbe plaintiff himself. He testifies that be never saw tbe paper, and testifies only to what be claims some of tbe defendants told him was tbe substance of tbe paper. Even as to what be was told was tbe substance of tbe paper, bis evidence is very indefinite and unsatisfactory. He testified that be bad a conversation with tbe defendant Fletcher some time in tbe following June, and was then asked tbe question: “Now, tell tbe jury what you said to Mr. Fletcher about reports that were circulated about you, and what Mr. Fletcher said about that, particularly what was said about a petition that bad been circulated in Orchard. * * * Q. Bid be say what was in tbe petition? A. That in tbe petition, that I was running a bouse of ill fame, and that tbe town board bad got tbe petition out and signed it and circulated it to that effect to keep me out of business.” He testified to a statement made by another member of tbe board: “He told me tbe same as Mr. Fletcher, that tbe town board bad been misinformed that I was running that kind of a bouse, and they got up tbe petition that I was running a bouse of ill fame, and they signed it and circulated it to that effect thinking it was so.” These defendants positively denied ever having-made any such statements to tbe defendant; but, if tbe evidence of tbe plaintiff as to these statements is to be believed and considered competent, it comes far short of proving that tbe paper signed by these defendants contained any demand that tbe plaintiff should leave town. It stated, according to tbe plaintiff’s final version of tbe matter, that tbe plaintiff “was running a bouse of ill fame,” and tbe evidence establishes, as before observed, that this was tbe general reputation of tbe bouse, which is, at least prima, facie, evidence that tbe statement contained in tbe paper was true. To sign, and even to circulate, a statement which would be libelous if untrue, but which is in fact true, cannot of itself be evidence of conspiracy. — 809 — The whole evidence, taken together, is consistent with the purpose on the part of these officers to do away with a bawdy house in their village, rather than to injure the plaintiff. If so, the paper was signed by them “with good motives, and for justifiable ends.” 'Const., art. I, sec. 5. There is evidence in the record that the defendant Hicks attempted to divert customers from the plaintiff’s house in favor of the house by which he was employed, and that upon divers occasions he used extravagant language in explaining what he considered was the reputation of the plaintiff’s house; but there is no evidence that any other of these defendants was in any way responsible for Mr. Hicks’ conduct, and, if he made himself liable for slander, any action for damages caused thereby was barred long before this action was begun. Upon re-examination of the record and further consideration, we are satisfied that the evidence wholly fails to support any cause of action against these defendants. Even if a cause of action had existed, it would be barred by the statute of limitations. It does not appear that any further or different evidence can be furnished. The judgment of the district court is therefore reversed and the action dismissed. Reversed and dismissed.