
    (Eighth Circuit — Cuyahoga Co., O., Cir’t Court,
    Jan. Term, 1895.)
    Before Caldwell, Hale and Marvin, JJ.
    MILES v. SALISBURY.
    
      Malicious Prosecution — Liability of husband for action of wife instituting criminal proceedings in his absence— .
    (11. A wife,in the absence of the husband having charge of the home and the general management of affairs,is not by virtue of that relation authorized in his name to institute a criminal prosecution and make him thereby liable for damages if the charge turns ou't to be erroneous.
    
      Probable cause — What sufficient—
    (2). In determining whether one who instituted a criminal prosecution,had reasonable ground or probable cause therefor, the surroundings exactly as they were at the time must be considered, and if he really did believe in the fact as-charged, and from the information he then had, it was reasonable for him to rely upon such information, he may institute the proceedings without making further inquiry.
    
      Same — Action for damages — Good character of accused — General' reputation as proof of knowledge of character—
    (31. Bearing upon the question whether or not a party had “probable cause” to institute criminal proceedings, it is. proper to show the character and standing of the person, accused which had come to the knowledge of the party who-instituted such proceedings. Evidence of his general reputation in the neighborhood in which both parties resided, is-some evidence tending to establish such knowledge.
    
      Same — Evidence of good character admissible in chief—
    
    (41. In an action for damages for malicious prosecution, proof of the good character of the plaintiff is admissible as evidence in chief.
    
      
      Punitive damages — Erroneous charge—
    (5). A charge in regard to punitive damages,as follows: “And if in your judgment you think it to be a suitable case for inflicting punishment upon the defendant, you may add to it. what is known as punitive damages, and assess such a sum against the defendant as you may find would be suitable punishment under the circumstances for causing the arrest of defendant”, thus leaving to the jury the whole subject of determining whether punitive damages should be allowed at all and, if so, to what extent, without any limitations whatever, is erroneous.
    Error to the Court of Common Pleas of Cuyahoga county-
   Hale, J.

This case is pending in this court on proceedings wherein it is sought to reverse the judgment of the court of common pleas. The judgment was rendered in favor of the defendant in error against the plaintiff in error in an action for a malicious prosecution. It is not claimed that the plaintiff in ■error in any way expressly authorized the institution of the ■criminal proceeding which it is now claimed to have been malicious. During the whole period over which the transaction-extended, the plaintiff in error resided in the state of New York, or was in the city of New York, and had no knowledge whatever of the prosecution until after it had terminated. The responsibility of the plaintiff was maintained upon the ground that his wife, who was in charge of the home and the farm in the absence of the husband, and who did in fact institute this criminal proceeding, acted as agent of her husband, and by reason of such agency the husband was responsible for the prosecution. The vital questions in the case arise upon the charge of the court and the-effect of the testimony upon the question of the agency of the wife. After as careful review as we have been able to make, we find and hold that the court below erred in the charge given to the jury upon the effect to be given to the testimony tending to establish the agency of the wife, and also in refusing to charge request three upon the same subject. It simply presents this question,as to whether or not the wife, in the absence of the husband, having charge of the farm or home,having the general management of affairs in the absence of the husband, is by virtue of that relation, authorized in his name to institute a criminal prosecution and make him thereby liable for such prosecution; and while the question may be debatable, we differ with the court upon that question. We think that no such liability can be inferred simply from such relation,and nothing further was shown in the case. Again, that part of the charge that I will now read is certainly open to criticism. We adopt the definition of “probable cause” given by the court in the 20th Ohio Rep.,II9:“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 with which he is charged;” that is, a ■belief in the truth of the charge,founded upon a reasonable ground to support that belief, is sufficient. So that I suppose, in determining whether one who instituted a criminal prosecution had reasonable ground or probable cause to institute such proceedings, we consider the surroundings of that individual exactly as they were at the time, and if .he really did believe in the fact as charged, and from the information he then had it was reasonable for him to rely upon those facts, he might institute the proceedings without maxing further inquiry. But the court said: “You are to determine as to whether or not Mrs. Salisbury acted maliciously in thus instituting this criminal proceeding by the facts afid circumstances known to her and the surroundings at the time of the arrest, and in determining both of these questions (that is, probable cause and malice) you have a right to take into consideration and charge Mrs. Salisbury with knowing, not only such facts as she actually knew, but such facts as she might by the exercise of ordinary care have ascertained by way of an investigation of the matter, and so in determining malice you are to take into consideration the facts and circumstances known to her, and such facts aB she might have ascertained by the exeroise of ordinary care in inquiring into and investigating the subject or truth of the charge which she made against the plaintiff, and from these facts and circumstances say as to whether she acted maliciously, and actéd without probable cause.”

In determining whether the party had probable cause, the inquiry should be, what did she know at the time, and what did she know or believe, and was it sufficient to sustain such a belief. We hold that this part of the charge was misleading.

Again, after giving to the jury the rule for the- assessment of compensatory damages, with which no fault is found, the court said this: “And if in your judgment you think it to be a suitable case for inflicting punishment upon the defendant, you may add to it what is known as punitive damages, and assess such a sum against the defendant as you may find would be suitable punishment under the circumstances for causing the arrest of the defendant.” Without any explanation of the class or kind of cases in which punitive damages may be awarded,without any statement of the rules of law by which the jury were to be governed in the assessment of such damages in a proper case, and without any explanation to the jury of the grounds upon which punitive damages could be awarded in this case, the court left to the jury the whole subject of determining whether punitive damages should be allowed at all and, if so, to what extent, without any limitations whatever. This we think was error. We think it cannot be justly claimed that the jury received proper instructions upon this branch of the case.

Again, there is complaint made of various rulings in the rejection and admission of evidence, and our attention has been called by a carefully prepared brief to each one of these rulings of which complaint is made. There are about fifty of them. Having found error in what we regard the vital point in the case, we have not deemed it essential to carefully consider each one of these rulings. It is claimed by plaintiff in error that the court erred in allowing proof of the good character of the plaintiff below as evidence in chief. This court at a former term sustained the right to the introduction of such testimony, and we now adhere to that ruling. We do not think the case cited to us in the 50th Ohio St, is in point.

And one of the questions here is, whether or not the plaintiff in error had “probable cause”to institute criminal proceedings against the defendant in error. Searing upon that question, it was proper to show the character and standing of the defendant in error which had come to the knowledge of the plaintiff in error. It was a circumstance properly to be considered by the jury in determining as to whether or not there was “probable cause” for the commencement of the prosecution. Nor will it answer to say that there was no evidence offered in the case that the plaintiff in error had knowledge of the character of the defendant in error. The evidence of his general reputation in the neighborhood in which both plaintiff and defendant resided,is some evidence tending to establish such knowledge —at all events we do not think the court erred in the admission of this testimony.

W. G, McFarland and J. M. Jones, for Plaintiff in Er-xor.

J. N. Armor and W. S. Kerruish, for Defendant in Error.

There are some other questionable rulings on the rejection and admission of evidence which, if we were not reversing the case for other errors, we would feel bound to more carefully consider; aná we by no means wish to be understood as approving of such rulings. For the reasons specified the judgment of the court below will be reversed and the cause remanded to the court of common pleas for further trial.  