Butler v. Stockdale

Opinion by Be aven, J., The plaintiff brought suit in trespass against the defendant, for assault and battery and false imprisonment. There was nothing in the statement and nothing whatever in the claim of the plaintiff during the trial which indicated an intention to claim damages for malicious prosecution. This was especially eliminated by the distinct admission of the plaintiff’s attorney that no such claim was made, to which the trial judge assented. It was, therefore, not incumbent upon the judge to set out in his charge the distinction between false imprisonment and malicious prosecution, nor was it necessary for him to define malicious prosecution and set forth the elements which must enter into it, in order to maintain the action and entitle to a recovery, notwithstanding the irrelevant point for charge submitted by defendant in which he incorporates the elements essential to a recovery in an action for malicious prosecution. On the other hand, testimony which might have been competent and relevant in an action for malicious prosecution, as tending to show malice, was not so in an action for false imprisonment, and this leads to the principal question in the case. 1. The appellant’s first specification of error relates to the admission of newspaper articles describing the alleged larceny by the plaintiff of the goods of the defendant and comments relating thereto. The offer was objectionable in itself and the testimony therein contained both incompetent and irrelevant. [106] After the offer had been made, inquiry was made of the plaintiff’s attorney as to whether or not he proposed to follow the offer by proof that the defendant had the newspaper articles referred to inserted in the newspaper and the reply was, “I am going to try to.” This was not a sufficient offer. Even if the testimony had been proper, it should not have been admitted, unless accompanied by a distinct offer to follow it with proof that the defendant had inserted the newspaper articles referred to. There was no evidence connecting the plaintiff with the publication of the articles beyond the mere fact of the arrest and imprisonment of the plaintiff. The testimony should have been stricken out, therefore, after it was received, because the plaintiff was not connected in any way whatever with the publication, but, waiving the technicality, the evidence was not competent for the purpose for which it was admitted. The trial judge, in admitting it, said: “We will admit this testimony, not for the purpose of showing any false imprisonment, but for the purpose of showing the pain and suffering which the plaintiff was compelled to endure in consequence of the alleged false imprisonment.” The offer, however, was to show, and the result must have been, mental pain and suffering not from the imprisonment but from the reading of the newspaper articles concerning the same, the publication of which was a distinct offense. They were in no sense a result of the false imprisonment. Under no view, therefore, which we can take of it, was the testimony admissible. The offer should have been excluded and the first and second specifications of error are, therefore, sustained. 2. The third, fourth and fifth assignments of error involve the admissibility of the record of the testimony of the defendant and some of his witnesses in the trial of the plaintiff in the court of quarter sessions for larceny, with which she was charged by the defendant. All of these witnesses were examined upon cross-examination in a general way as to their testimony in that trial and their attention called to particular parts of their testimony relating to specific facts. They were not shown the stenographer’s notes and were not particularly interrogated as to the answers to specific questions, nor did the defendant make any request that this should be done. In order to contradict their testimony as to particular facts, the record [107] of the stenographer’s notes was read, the court properly con. fining the same to such portions as contradicted the testimony in chief of the witnesses. The appellant puts it more strongly than this in his argument, but a careful examination of the testimony shows that this was the fact and in this there was no error. As we view the case, in the light of what has been said in regard to the charge of malicious prosecution, the admission of the record of the trial of the plaintiff in the court of quarter sessions upon the charge of larceny preferred by the defendant^ which showed her acquittal, was not erroneous. It is proper, in an action of trespass for false imprisonment, to show that the defendant had no reasonable ground for making the arrest and of this the verdict of acquittal by a jury is evidence. There was evidence of some force used by the defendant in compelling the plaintiff to ascend the stairway and enter the room in which she alleged she was confined. It is true that the trial judge in his charge to the jury says that no physical injury was inflicted upon the plaintiff. There may, however, be an assault and battery, without any distinct physical injury resulting; that is, such an injury as will be manifest by pain or marks upon the person, and this is not at variance in any respect with the definition quoted by the appellant from Green-leaf, namely, “ Assault is an intentional attempt by force to do an injury to the person of another and a battery is committed whenever the violence menaced in an assault is actually done, though in ever so small a degree, upon the person.” 3. Admitting that the defendant had reasonable cause for suspecting the plaintiff of an intention to appropriate the soap which he found in her hands and was, therefore, justified in making an arrest, there can be no justification for the mode of confinement which he practiced, whether it be two or three hours according to his account, or over five hours according to hers. The plaintiff was placed in an upper room of the store, where she could communicate with no one, and was kept there against her will for several hours. The office of a justice of the peace was within a convenient distance of the store and, whether the justice were in his office or not, it would have been easy for the defendant to accompany the plaintiff to the office of the justice and there apply for a warrant and secure a legal [108] arrest thereupon. There was, therefore, no error in the refusal of the court of the defendant’s second and third points for charge. 4. The plaintiff in her statement does not claim damages in terms for mental suffering, humiliation and injury to feeling, but these are clearly included in the general claim for damages “ and other wrongs ” committed by the defendant against the plaintiff. Such damages are regarded as being the legitimate subject of claim in an action for false imprisonment. As was said in Duggan v. B. & O. R. R. Co., 159 Pa. 248: “ If there has been any actual loss, then the damages must be compensatory and for false imprisonment or for trespass in improperly ejecting plaintiff from the cars, such damages include, in addition to actual expenses incurred, compensation for loss of time, interruption of business, bodily or mental suffering, humiliation and injury to feelings.” There are numerous specifications of error but those which appear to be worthy of special note are disposed of in what we have said and, except as to the admission of the newspaper articles referred to in the first and second specifications of error, no error of which the defendant can rightfully complain was committed in the course of the trial but, for the reasons stated in disposing of those specifications, the case must be retried. Judgment reversed and a new venire awarded.