
    Samuel Newman, Resp’t, v. The New York, Lake Erie & Western Railroad Co., App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed November 7, 1889.)
    
    1. False imprisonment.
    Plaintiff was arrested on suspicion by a detective in the employ of defendant. When arrested he was apparently disguised, and had a box filled with inflammable substances. In an action for false imprisonment, Held, that the question whether the detective was justified in arresting him on suspicion of having committed, or of contemplating the commission of a crime, should have been submitted to the jury.
    2. Same—When offices excused fob aebesting- on suspicion.
    If plaintiff’s appearance, under the circumstances, was such as to justify the careful conclusion of the officer that he had either committed, or was about to commit, a ielony, the officer is excusable for making the arrest, although, in fact, the suspicion was unfounded.
    3. Same—Chabge.
    The court refused to charge the jury that defendant was not liable for the action of the sergeant or justice in detaining plaintiff, unless they believed that the detective requested that also. Held, error.
    4. Same—Exemplaey damages.
    As no malice or ill will was shown, but the detective appeared to have acted in good faith in making the arrest, no case was made for exemplary damages.
    Appeal from a judgment recovered on the verdict of a jury, and from an order denying a motion for a new trial.
    
      Charles Steele, for app’lt; J. Delahunty, for resp’t..
   Daniels, J.

The jury rendered a verdict in favor of the plaintiff for the sum of $500, as damages for his arrest and detention by the act of a person in the employment of the defendant as a detective. The arrest was made at the depot of the defendant where the plaintiff was awaiting the departure of a train on which he had purchased a ticket and sleeping berth to Lackawaxen. After his arrest he was taken before a police sergeant and detained in custody during-the night, and upon his examination on the following morning and his identification by a reputable citizen of New York he was discharged by the justice. The cause assigned for his arrest was his general suspicious appearance. The evidence as to this was obtained in some degree from the plaintiff himself, but it was chiefly given by the witnesses sworn on behalf of the defendant. The detective who is alleged to have made the arrest, or directed the making of the arrest, testified that the plaintiff had on a rubber suit and a hood, part of which came down upon his face leaving his mouth and that part of it right under his nose only visible ; that there were holes in the hood through which he could see; that he had a mustache on, which was on one side, and the witness pulled it off, and when his cap was off he could see that he had false whiskers. He was regarded as a suspicious and disorderly person and for that reason the arrest was made. In his possession was a paper box which contained bottles of liquid substances, rags in an oily condition and eight or ten wax tapers, and upon these facts he was detained by the sergeant before whom he was taken.

The court held the arrest to have been without legal authority and unlawful and for which the defendant was liable in damages if it was made by an officer of the defendant employed for this purpose. This ruling of the court seems, under the authorities, to have exceeded the legal rule, for there were circumstances in the case connected with the plaintiff’s appearance and the contents of the box in his possession and the statements made by him from which it might be inferred that he was a person who either had committed or was contemplating, the commission of a crime. At least the evidence upon this subject was sufficient to present that inquiry to the jury and the court was in error in taking it from their consideration by the decision 'which was made. ■

It did not appear what was the law in the state of New Jersey upon this subject, but as the common law is presumed to prevail there, the officer was authorized to make the arrest if the facts were such as to indicate the plaintiff to have been either a criminal or a person contemplating the commission of a felony. This principle was considered in Beckwith v. Philby, 6 Barn. & Cress., 635, where it was held that an officer was authorized to make the arrest and detention of an individual when there was reasonable cause to suspect that he had either committed a felony or was about to commit one, having in his possession the implements proper and necessary for that purpose. And whether the party arrested was accompanied by such circumstances as to warrant the belief that he was a criminal, or probably intended the commission of a felony, was a question for the jury and not for the court. The same general principle was followed in Lawrence v. Hedger, 3 Taunt., 14, and it has the sanction of Eanes v. State, 6 Humph. (Tenn.), 53, and Holley v. Mix, 3 Wend., 350. In that case it was declared to be the law that if no felony was committed by any one, and a private individual arrest without warrant, such arrest is illegal, though an officer would be justified if he acted upon information from another which he had reason to rely on. Id., 353. And this was approved in Burns v. Erben, 40 N. Y., 463, 469. And to the like effect is 1 Hilliard on Torts, 220-1, and cases referred to in note. Whether the officer who was in the employment of the company was excused for making the arrest, if he in fact made it at all, was, therefore, for the jury to consider and decide under the evidence. If his appearance, under the circumstances, was such as to justify the careful conclusion on the part of the officer that the plaintiff had either committed a felony or was about to commit a felony, then he was excused for making the arrest, although it turned out that the suspicion was unfounded.

The plaintiff’s testimony was to the effect that he was detained by the sergeant during the night at the instance of the officer in the employment of the defendant. The testimony of the officer was to the contrary, that he made no complaint against the plaintiff, and that of the sergeant was that the officer did not request him to detain the plaintiff, but that he did so for the reason that he did not consider his explanation was satisfactory, or that he ought to let him go. The court, in view of this evidence, was asked to direct the jury, if they should be of the opinion that Brown arrested the plaintiff, that the defendant was not liable for such damages as were caused by the action of the sergeant, Wohlleben, or Justice Stilsing, in detaining him, unless they believed that Brown requested that also. The court declined so to charge, and to that the defendant excepted. This point was considered in Lock v. Ashton, 18 L. J., Q. B., 76, and the court there held that the defendant was not liable for damages for the detention of the plaintiff by the magistrate himself. And this authority appears to have entitled the defendant to this instruction front the court. From the time when the plaintiff was taken before the sergeant he was subject to his control and direction, and if he in the discharge of his duty and the exercise of his authority considered the case to be one requiring the further detention and examination of the plaintiff, it was his act, and not that of the defendant. If, on the contrary, the detention was produced by the instigation or urgency of an officer in the employment of the defendant, having authority on its behalf to make the arrest, then the defendant would be liable for the damages sustained by this continued detention of the plaintiff, and the case should have been in that manner submitted to the jury, instead of the subject being withdrawn, as it was, from their consideration by this refusal to charge.

The court also charged the jury that if Brown, the officer in the defendant’s employment, arrested the plaintiff, and in making the arrest acted recklessly, and with wanton disregard of the rights of the plaintiff, that then the jury might award damages by way of punishment of the defendant; what is called “ exemplary damages.” The defendant’s counsel requested the court to direct the jury that there being no evidence of malice, the plaintiff was not entitled to recover beyond his actual pecuniary loss, and was not entitled to recover exemplary or punitive damages. These requests were refused, and exceptions were taken to the refusal, as well as to the charge given by the court. The evidence failed to establish the fact that there was any ill will, or malice, or wanton disregard of the plaintiff's rights in making the arrest. It appeared on the other hand to have been made in good faith upon the suspicion deemed to be warranted by the circumstances, that he was either a criminal or a person contemplating the commission of a crime. And under this evidence no case was presented for the allowance of exemplary damages. Upon that subject the exceptions were well taken.

The judgment and order should be reversed, and a new trial directed, with costs to the defendant to abide the event.

Van Brunt, P. J., and Brady, J., concur.  