rehearing">

Supplemental Opinion on Petition for Rehearing.

Donegan, J.

In their petition for rehearing appellees stress the claim that this court erroneously places upon the appellees, defendants in the trial court, the burden of proving probable cause, and erroneously holds that a conflict on the question of disclosure created a jury question on the issue of probable cause. Complaint is also made that the court was in error in the statement of the record on the question of full and fair disclosure. As to the latter complaint, we frankly admit that the court was mistaken in stating that “the appellant * * * testified positively that he had an agreement with L. W. Moore under which he was to receive a dollar a day for the work done by him as porter, and that he was to receive his return railroad ticket to St. Louis in case he was to discontinue working at the hotel.” Under the evidence as to these matters, it was incorrect to say that the appellant testified positively that he had an agreement with L. W. Moore in regard to the amount of extra compensation claimed by him for janitor work, but we think the statement made by the witness does show an agreement as to return transportation to St. Louis.

It is true, as stated by appellees, that the burden of proving want of probable cause was upon the plaintiff. We do not think it true, however, as further contended by the appellees, that the facts in this case are such as to make it a case for the court to determine, as a matter of law, that the defendants did have probable cause in filing the information.

Appellee, L. W. Moore, testified that he had a conversation with appellant at the dinner table, the evening he arrived, and told him that his wages would be $40 per month as clerk, that he was to do the regular clerking work, set the cuspidors out in the lobby for the janitor to clean them, and to start the kitchen range about five o’clock in the morning, and that the appellant made no comment in regard to this work. Moore also testified that he never discussed with the appellant the matter of taking money out of the cash drawer for any purpose and did not tell *504 him he could do so and put in a slip of paper; that he did not talk to appellant about paying him for extra work; that he could not remember that appellant demanded any certain amount for the extra work; and that he did not recall that the appellant ever mentioned the fact that he was entitled to a dollar a day. Moore further testified that he never discussed the matter of appellant’s transportation from Clarion to St. Louis and never told him that he would pay appellant’s transportation from Clarion to St. Louis.

The appellant, Weisz, testified that, in a conversation with Moore at the dinner table the evening he arrived, Moore told him he would get $40 a month and have a little side work at night, and that the night man would tell him about the side work. Weisz further testified that he told Moore that if he did not like his position he would expect his transportation back to St. Louis, and that “he (Moore) said that he would take care of that but that if I stayed I would like it.” Weisz also testified that when he went to work the night man told him he would have to do porter work, sweep the lobby, take the carpets out and beat them, and take the cuspidors out, and that from then on he did this -work; that on the following night Moore told him that he would have to take care of the garage all night long if any customers came; and that about the fourth night he told Moore: “I should be getting a dollar a day extra in addition to all the extra work. He (Moore) said that he would make that right with me.”

We think it may be conceded that if these facts be as testified to by the appellee, Moore, then the disappearance of the appellant under the circumstances attending it might be held by the court, as a matter of law, to furnish a reasonable cause for the filing of the information. If, however, the facts be as testified to by the appellant, Weisz, we do not think that the court could pass upon the existence of probable cause, as a matter of law. Appellee, Moore, further testified that from an examination of the slip which was left by appellant in the cash register he knew that the appellant was claiming the money taken by him as due him. Whether or not the conversation testified to by the appellant was sufficient to show an agreement in regard to the wages for extra work, we think it was sufficient to show an agreement in regard to the return ticket to St. Louis. When all of the conversations, as testified to by the appellant, are considered in connection with appellee’s admission that he knew from the slip *505 left in the cash drawer that appellant claimed the money taken to be due him, we think there is ample in the evidence to indicate that the appellant might honestly have thought that he was entitled to this money, and that the appellee, Moore, knew that appellant took the money out of the cash drawer with no thought or intention of embezzlement, but with the honest belief that it belonged to him and that he had the right to take it. We think that, under the facts in this case, the rule announced in Erb v. German American Insurance Company, 112 Iowa 357, 364, 83 N. W. 1053, 1055, is applicable:

“ ‘When the facts are in controversy, the subject of probable cause should be submitted to the jury, either for specific finding of the facts or with instructions from the court as to what facts will constitute probable cause.’ ”

If the facts relied upon by appellees were not sufficient to constitute probable cause, they might still justify the filing of the information if, before doing so, a full, fair and complete disclosure of all the facts known to them had been made to an attorney, and they had then acted upon the attorney’s advice in instituting the' prosecution. We do not think that, under the state of this record, it can be said, as a matter of law, that such a full, fair and complete disclosure was made, because there is a conflict in the evidence as to the truth of some of the things told the attorney and as to other things not disclosed. Appellee denied that there was any talk of or any agreement in regard to the transportation of appellant back-to St. Louis, and denied that he talked to the appellant about paying him for extra work or that the appellant demanded any certain amount for extra work. Hobbet, the attorney, testified that Moore told him the item of $14.66 for salary was correctly figured; that as to the $11.00 item for porter work there had been some talk about extra work, that appellant made some objection about this extra work, that on one or two or possibly three occasions the appellant had stated to Moore that he did not like doing this extra work; and that appellee stated to the witness that there was no talk about the carfare to St. Louis. There is sufficient discrepancy between the testimony of the appellee and of the attorney to raise a question as to whether a full, fair and complete disclosure was made. When to this is added the testimony of the appellant as to his conversations with appellee in regard to extra work and trans *506 portation back to St. Louis, and privilege of taking money due him out of the cash drawer, by leaving a slip, there would seem to be no doubt that the question whether or not a fair and complete disclosure was made was one which would have to be determined by the jury.

We find no merit in other grounds argued in the petition for rehearing and, with the addition of the statements above set forth, we find that the opinion heretofore entered should stand, and that the petition for rehearing should be, and is hereby, overruled.

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