ThePhitf behind the Suif
m
mmm
9niOSnii
Aro Always
the Cheapest!
Correct in every particular.
Correct in Weave; Correct in
Workmanship;. Correct in
Styles, and always Correct in
Prices. Such are the goods
can be found at our store.
Everything in Gent's and
Boy's Ready-to-Wear Cloth
ing and Furnishings.
nrunn..
in
IUUI
PLATTSMOUTH,
NEBRASKA
WHEN THE KETTLE SINGS
It's a sign of coal satisfaction. Want
to bear tbe music In your kitchen?
Easy order coal from this olllce and
yard. Tbe output of tbe Tren,ton
mine the fuel we handle has no su
perior anywhere, Its equal In few
places.
J. V. EGENBERGER
rnUAC Bell No. Kl.
PUTTSMOUTH, - lEBRISK
DosiTimo toSoo
the Southwest
Every first and third Tues
day of each month, low-priced
homeseeker's excursions are
run over the lines of the : : :
Missouri Pacific
Iron Mountain
into the rich and resourceful
farmingregionsof theSouth
west. It is a splendid chance
for the Northern and Eas
tern farmer, tf ter his wheat
is gathered, to combine a
pleasure and propecting trip.
Write for rates and literature to
HUGH NORTON, Agent.
M. T. Ry., riattamouth, Neb,
grroe
V 7m
UUll
DISTftieT JUDGE
TRAVIS' DECISION
Journal Prints Opinion In Full
For Public
On the motion for new trial the
court finds where two separate and
Independent causes of action are Join
ed to the same petition and each ap
pears upon the trial of one of the
causes of action that this is error and
there is no error In the other, can a
new trial be granted upon one of the
causes of action and a judgment en
tered upon the verdict In the other?
Section 341 Code of Civil proced
ure of Nebraska provides: "A new
trial is a re-examination in the same
court of an Issue of fact after a ver
dict by a Jury, report or referee, or
a decision of a court"
We find this provision precisely in
the codes of many other states.not
ably California and Montana. The
California, Montana and Nevada
courts construing these very words,
have held that a new trial can be
granted upon one of the causes of
action and overruled as to the other,
In the case of R&msdell vs. Clark,
20 Montana 103, 49 Pac, 592, the
court say:
"The appellant concedes that
there was no errer In the order
of the lower court granting a new
trial so far as the second alleged
breach of the lease Is concerned,
because the evidence was conflict
ing on that branch of the case. He
objects, however to the alleged
order In so far as It grants a new
trial as to the first and third
branches of the lease. Does the
complaint contain more than one
cause of action? We are of the
opinion that three separate causes
of. action are set forth by plain
tiff in his complaint. It is true
each is connected with the same
contract, but each differs essen
tially from the other two. Can a
new trial to be granted as to one or
more of several causes of action
(included and tried In the same
suit? We are of the opinion that
this can be done where, as In this
case, the issues have not been
blended, and each caiitw of notion
remains distinguishable and sep
arate even after verdict. Section
295, div. 1, Comp. St. 1887, and
Bectlon 1170, Code Civ. Proc. 1895,
define a new trial to be "a re ex
amination of an issue of fact in
the same court after a trial and
decision by a jury, court or ref
erees." The case of Town Co.
v. Neale (Cal.) 20 Pac, 372, lays
down this rule under an Identical
statute. See also, Lake v. Bender,
18 Nev. 361 Pac. 711 and 7 Pac.
74. Where the Issue or Issues In
one cause of action have been
properly tried, It Is the duty of
the trial court. In passing upon a
motion for a new trial, to grant It
only as to those Issues which have
been Improperly tried, where this
can bo done readily, and with
out confusion resulting upon the
retrial."
See also 34 N. E,. 242; 7 Pac, 74,
In this case the Jury found sep-
rately upon the first cause of action
and separately upon the second
cause of action. The mere fact that
these findings are upon the same
piece of paper does not menn that
it is one compound verdict. It is
essentially two verdicts. A verdict
may be defined to be the answer of
the Jury to the questions of fact con
talned In the Issue formed by the
pleadings.
28 Conn., 140.
A' verdict is a decision of an issue
by Jury.
Froman v. Patterson, 10 Mont.,
107.
In effect, in this case, two separate
causes of action were tried and the
Jury were Instructed upon each
cause of action, and the Jury found
the Issues separately upon each
cause of action and In effect render
ed two verdicts. The first verdict
for slander has been maintained; the
second Is set aside and a new trial
granted.
In view of the fact that counsel of
both sides have so carefully, dill
gently and ably argued tho 14th in
struction, It may be due to counse
to give the reasons of the court for
the finding that the 14th lustruc
tlon should not have been given
I find our court, from tho 5th Ne
braska down to the present tlnu
repeatedly declaring that want of
probable cause and malice miiKt bo
alleged and proven each as a fact. 26
Neb., pane 76. Jones vs. l'urln, tho
Court says: "Want of probable causo
being shown, the question of mallco
Is still a fact for the Jury to find.'
And the court has no where said t lint
malice is not a question of fact fop
tho Jury to weigh. Whntcvcr Infer
ences or presumptions arise woul
only be questions of fact to b
weighed by tho Jury. As In a crlm
Inal enwo tbe preemption of Inno
Benefit '
cence Is a fact to be taken to the jury
room to be weighed by the jury along
with the other evidence. Our court
does say that the Jury may infer
malice from want of probable cause,
but as a fact only. It is not the prov
ince of the jury to find the law.
The instruction in question con
tained the finding of a fact, to-wit:
the inference of malice and
says to the Jury you must
find this inference to be true,
depriving them of the right to weigh
the same as evidence. The Instruc
tion gives them to understand that
this Inference Is not to be rebutted,
but is to be found as a fact, as in
the same manner as when the court
directs the Jury upon an undisputed
fact to find it. It tells the Jury not
to weigh the presumption at all, but
to take it as true and that the pre
sumption Is conclusive
Malice is not and never can be
implied simply from an unfounded
prosecution, but may be Inferred
from want of probable cause to In
stltute the prosecution. But' this
needs explanation. Tne books are
misleading in this, that they take
the phrase "want of probable cause"
anr say that malice may be inferred
from want of probable cause. This is
not what the court means. What is
meant is that malice may be inferred
from the facts which show want of
probable cause, and these facts may
or may not show both want of prob
able cause and malice. If the facts
which show want of probable
cause show malice, then malice
may be inferred by the Jury,
but if the facts which show want of
probable cause do not show malice,
then malice may not be inferred and
these facts are to bo considered and
weighed by the Jury
Carson v. Edgworth 43 Mich., 241,
The Missouri court has explained
this. Few other, courts have taken
the trouble to do so.
If the defendant had probable
cause to institute this prosecution, it
does not matter how malicious he
was or what was his motive. In this
cause It is a question for the jury to
determine from the facts which con
stitute want of probable cause or
probable cause; whether he had prob
able cause, and the court cannot as
sume upon a state of facts in dispute
that want of probable cause was
proven in the case and then say upon
a disputed state of facts that they
must find malice. It would bo right
to say in the instruction, if they
found want of probable cause that
you may Infer malice but It
would not be right to tell tliem that
If they found want of probablo cause
they must find malice. The Jury
must consider the facts which con
stitute want of probable cause and
from these facts determine 'whether
or not they can reasonably Infer mal
ice. See Shapp vs. John, 76 Mo.. 6f0.
If in this case the evidence indisput
ably showed want of probable cause
and the facts which constituted want
of probable cause showed malice and
the evidence was Indlsputed on the
other issues to be proved by plain
iiir, men me court could direct a
verdict, or If the evidence was India
puted that there was want of prob
able cause and the same facts showed
malice or facts showing malice were
absolutely proven and Indlsputed,
then the court could tell the jury
that they must Infer malice and that
is all the case In the 13th Nebraska
and the case In the 95th Northwest
em at page 686 determine. They
seem to be an apparent exception to
the general rule, but In fact are not.
In these cases want of probable
cause was indisputably snown and
the same facts which constituted
want or probable cause showed mal -
Ice.
See 26 Cyc, 110; also Bartlott vs.
Hawley, 37 N. W., S81; see also 2nd
Kansas, the case of Malone vs. Mur
phy, pages 254-258.
In the case of Bartlett vs. Hawley
the court says:
1 Malicious Prosecution
Probable Cause Malice.
In an action for malicious pros
ecution tho question of probable
cause, upon a given state of facts,
Is for the court; but whether the
prosecution originated in malice Is
for the Jury.
2. It may bo Inferred by tho
Jury from the want of probnblo
cause, and also from conduct show
ing vindlctlveness and ill will, or
an attempt to use criminal process
to compel thtt settlement of a dis
puted claim.
3. But undisputed evidence
dearly showing that the defendant'
has knowingly and wrongfully In
stituted a groundless prosecution
in wilful violation of duty and dis
regard of the riKhts of the pluln-
tiff, may establish a prima faclo
ease of malice as matter of law
such as (if rebutted) to justify the
court In setting aside an adverse
verdict.
' But the general rule is that the
question of malice Is for the Jury,
though it may be true that in some
cases the evidence of want of prob
able cause and of Intentional
wrong may be so clear as to au
thorize the court to hold that cer
tain und'sputed facts establish a
prima facie case, warranting a
verdict unless rebutted. Briggs vs.
Richmond, 10 Pick. 395. And see
Kavanagh vs.. Beck with, 44 Barb.
195; Robinson vs. Stewart, 10 N."
Y., 194; Cunningham vs. Free
born, 11 Wend. 241; Webb vs.
Dagget, 2 Barb. 12.
In 2nd Ks. 248 the court says:
On trial of the case In the court
below, after the introduction of the
evidence of both parties the court
among other things, charged the
Jury as follows: "The rule of law
is, that if there was an absence
of probable cause, tho prosecution
wac malicious, the law implying
malice from want of probable
cause," and also: "If, then, If
you should find there was a want
of probable cause, you must find
for the plaintiff, for the law pre
sumes malice from want of prob
able cause, and no other proof of
malice is required."
To sustain the action for ma
licious prosecution, two things are
essential malice and want of
probable cause. Malice Is not of
itself sufficient; neither is want
of probable cause. Both must oc
cur. Affirmative proof of malice
Is as necessary as affirmative proof
of the absence of probable cause.
Both are Issues to be submitted to
the Jury, and both must be found
from the testimony as facts, by
the Jury, to sustain a verdict for
the plaintiff.
How, then, can they be said to
find from the testimony that there
was malice if the court should say
to them that the evidence which
shall convince them of the exist
ence of malice. The evidence might
clearly show that the defendant
acted in the best of faith, but up
on an entirely innocent mistake of
fact. The Jury might bo fully sat
isfied of the entire absence of
probable cause In such a case; yet
the rule as given the Jury by the
court below would compel them
to find that the prosecution v.ts
malicious. The real effoVt of the
rule would be that tho jury would
find one of the essential facts, and
the court would find the other, and
compel the Jury to adopt Its find
ing. Such we do not believe the law
to be. The Jury may consider the
absence of probable cause As a cir
cumstance tending to show mal
ice. It may be In individual cases
a circumstance sufficient to satisfy
them of malice. They are to be
the sole judges of that. They are
not bound by the law to be so sat
isfied. They may Infer malice
from want of probable cause, but
they are not bound to so Infer It.
Therefore we think the court
erred In charging the Jury that
malice was Implied from want of
probable cause, and the judgment
will be reversed.
The court is clearly of the opinion
that in this instruction in
the case at bar the jury were
directed to find malice as a fact. This
was clearly error and for that the
defendant is entitled to a new trial
on the second cause of action
There are other errors In the rec
ord, but it is. not necessary to go
any further. Upon the second cause
of action the verdict for $7,500 is set
aside and a new trial granted.
Auto Turned Over.
Wednesday a party of five were
here from Rockport, Mo., being a
physician, a county official and thiee
friends. They came over in an auto
and spent the afternoon hre having
a srood time with some of their
friends and started home-about 5:30
o'clock and when they reached tho
Burlington bridge they were going at
jthe rate of about 25 miles per hour
The man in charge of the machine
seemed to be under the Influence of
trust made goods and In trying to
turn off the bridge the machine
struck one of tho posts and was over
turned, throwing nil tho party out
and seriously Injuring one man and
bruising the others up considerably.
The physician looked after tho In.
Jured and after tho bridge men as
slsted them In righting the machine
all of tho men were placed back In
It and after making the brldgo men
promise not to say anything thoy
started for home. It was In this wuy
the matter was kept quiet until this
time. Nebraska City News.
New Restaurant.
we, me undersigned, nave pur
chased the restaurant formerly
known as the "Adair Cafe" situated
upon Fourth street In the Gund
building, and will continue to run
tho mime as a first-class, upto-dato
restaurant.. A nharo of tho pntron
ago Is solbitcd.
(',. I,. Multls and J. C. Brady
COLONEL
MAKES HIT
Representative Bates Gives Goad Im
pression at Lincoln
The democratic representative
from this county Col. M. A. Bates
seems to be making good right on
the start in his new duties as a leg
islator. That the Colonel Is In evi
dence and that the people of Cass
and Otoe counties who elected him
will have a representative who will
be no figurehead but a live member,
Is vouchsafed by the attention given
him by the papers. Both the State
Journal and the Bee pay him some
handsome compliments. The State
Journal referring to the democratic
caucus says "A call for a caucus was
circulated during the afternoon, the
time for meeting being set for 7:30
In the evening. It was generally
agreed that M. A. Bates, the democ
ratic editor with the silk tile, Bhould
call the meeting to order." Col Bates,
however, declined the position.
The Bee gave an even more ex
tended comment, heading Us refer
ence "Bates Is Modest." It says:
"Colnel Bates of the Plattsmouth
Journal Is one of the distinguished
members of the house. The Colonel
stands about six feet high and Is
broad In proportion. He carries a
gold headed cane and wears a high
silk hat and in appearance is in keep
ing with the profession to which he
has the honor to belong. He is a
candidate for the chairmanship of
the committee on printing and that
Is all ho wants at the hands of the
organization.
This Is not bad as a starter for
our representative and the local
democrats are Justly proud of their
proxy in the lower houso.
Rank Foolishness.
"When attacked by a cough or
cold, or when your throat is Bore, It
Is rank foolishness to take any other
medicine than Dr. lng's New Discov
ery," says C. 0. Eldrldgo of Empire
Ga. "I have used New Discovery for
seven years and I know it is the best
remedy on earth for caughs and
colds, croup, and all throat and lung
troubles. My children are subject to
croup, but New Discovery quickly
cures every attack." Known the
world over as the kind of throat and
lung remedies. Sold under guaran
tee at F. G. Fricke & Co.'s drug store
at uOc and $1.00. Trial buttle free.
DO MUCH
BUSINESS
Commissioners' Session a Busy One
Bids Asked For
Prom Tuesday's Dallv.
The county commissioners were in
session today and besides allowing
an unusual grist of bills against the
county, transacted a great deal of
other business. Among other things
they approved the official bonds of
Geo. A. B. Hicks, M. Sulser, and
Frank Rouse as road overseers, C. E.
Hulbert as Justlco of the peace, and
W. S. Kltsell as constable.
County Judgo Beeson filed his re
port for the fourth quarter of 1908
showing his office had collected
$596.50. County Clerk Rosencrans
filed his report for the fourth quarter
showing his office had taken in
$240.90 and County Recorder Schnei
der's report for the last quarter of
the, year showed his collections as
$363.25. Sheriff Qulnton filed his
report for the second and third quar
ters of 1908 showing collection by
his office of $103.95. All The re
ports were approved by the board.
The county clerk was instructed
to advertise for bids for the county
printing for the year commencing
February 22, 1909 and ending Feb
ruary 22, 1910. He was also in
structed to advertise for bids, for
county physician for districts 1, 2, 3,
4, 5, 6 for a like period and for bury
Ing paupers during the same space
of time.
J. II. Tarns was onco more elected
superintendent of the poor farm for
the year 1909, his work In that ca
paclty proving excellent and satisfy
ing the commissioners.
Fever Hurt's.
Fever sores and old chronic soreB
should not be healed entirely, but
should bo kept In healthy condition.
This can be done by applying Cham
bcriuln s Salve. This salve has no
superior for this purpose. It is also
most excellent for chapped hands,
sore nipples, burns and diseases of
tho skin. For Bale by F. Q. Fricke &
Co.
TO THE POLICY HOLDERS OF
THE PLATTE MUTUAL 1NSUR
ANCECO:
The annual meeting of tho Platte
Mutual Insurance Company will bn
held at tho offleo of Judge M. Ar
cher at ten o'clock a. m., Saturday,
January 9lh, for tho purposo of
rencwlngthennnual statement and of
the annual election of directors for
the ensuing term.
Henry H. Goring, Sec.
W. .1. White, Pres.
C.E.
M PRftOTT'
M pJP? g
sons
"Where Quality Counts."
Copyright. 190S,
KaMnwiildWcU,Chicc
Pre-lnvcntary
Sale of Suits
Before takinsr invoice and before re
ceiving any of our new goodB for spring,
r a i -1. i i
we are going io reauce me price on me
remainder of our Fall and Winter goods.
The reduction will be bonafide and runs
from 10 to .0 per cent. This is not an
auction of old out-of-date goods, but
new desirable merchandise, backed up
by our guarantee.
C.E.
WESCOTT'S
SONS
"When Quality Counts."
The New Plant Sold.
From Tuewlay' Dully.
According to advertisement the.
plant of ho Evening News and the
Semi-Weekly News-Herald was. sold
this afternoon at trustees sale, tbe
sale taking place at the office at
three o'clock. There was no great
rush of blddem for the plant only
two parties entering the lists. C. A.
Rawls started tho bidding at $500
and Commissioner Frcidrkh raising
It $100 after which Rawls bid $700
and tho bidding ceased. Mr. Rawls
ths became the owner of the plant
for $700. Tho low price which th
plant brought scorns to preclude tho
general creditors realizing anything
at all on their claims. By the time
the expenses for tho past month have
been paid and the labor claims paid
off there will b-nothlng left for the
other creditors. It Is not known yet
what the policy of the new proprietor
will bo nor what process he will
adopt to realize his Investment from
the plant . There are various rumors
as to the plan of reorganization which
will' be put into effect but nothing
reliable. In view of the liabilities
which tho firm had, something over
eight thousand four. hundred dollars,
the small price the assets realized.
causes unbounded astonishment..
Stomach Trouble Cured.
If you have any trouble with your
stomach you should take Chamber
Iain's Stomach and Liver Tablets. Mr.
J. P. Clote of Edina, Mo says: "I
have used a great many different
medicines for stomach trouble, but
find Chamberlain's Stomach and
Liver Tablets more beneficial than
any other remedy I ever used." For
sale by F. G. Fricke & Co. '
Fine Walnut Timber.
From TuPBduy's Dally.
Charles Miller and Win. Sales to
day brought Into the city and shipped
to Brady Neb., In care of C. B.
Schleicher for tho Brady lodgo of
Woodmen, a flno walnut log. The.
log Is ten feet In length and measures
fifteen Inches In diameter. The Brady
lodge will have tho log cut up and
dressed Into tables for their lodge
room. Tho wood Is a very flno spec
iman of walnut and will makn a
very handsome nnd artistic decora
tion for tho rooms.
I Vr Rent.
A six room house In good repair
to rent. Inquire of J. II. Becker.
IBf Pit
if M
Si Pi'
