Limbeck v. Gerry , 39 N.Y.S. 95 ( 1896 )

Giegerich, J.

(charging the jury). Gentlemen of the jury: This action is brought to recover damages claimed in consequence of plaintiff’s alleged illegal arrest, or, as it is moi’e usually denominated, “■ false imprisonment.” False imprison-. ment is the unlawful restraint of a person contraiy to his will, either with or without process of law. It is a trespass to the . person, committed by one against anothex-, by unlawfully ai’resting and detaining him'against his will; a direct wrong or illegal act in which the defendant must have participated, or which must have been of his direct or indirect procurement. Two things are requisite in order -to constitute the offense: (1) Detention of the person; (2) the" unlawfulness of such detention. A pure, nakedj unlawful detention, unaf-. fected by any question of motive.or.purpose, constitutes false imprisonment. The want of lawful authority is an essential element of the offense; malice is not.

The allegations of the complaint, in substance, are : That on the 25th day of August, 1893, at the city of’ Newport, in the state of Rhode Island, one Richards imprisoned the • plaintiff for the space of two hours,; that the defendant aided, abetted and procured such imprisonment, which the plaintiff avers was without reasonable cause and without any right or authority . on the part of the said Richards or the defendant, and that' the same was done maliciously, with intent to injure the plaintiff, and by force and against'her will, and ..was unlawful; whereby plaintiff was insulted and humiliated and was injured in her credit, character and reputation, and whereby and wherefrom she suffered great pain and anguish of mind and body. The answer of the defendant is a general denial of these allegations which I have read; and,'as a further defense and in justification of all of defendant’s acts in the premises, he alleges, in substance, as follows : That in the latter part of June, 1893, in London, England, the defendant engaged the plaintiff, as a servant in his family ; that the defendant, with . his family, accompanied by the plaintiff, arrived in New York from England about July 5, 1893, and proceeded to Newport, Rhode Island, where they occupied a cottage in said city; that the services of the plaintiff were specially rendered to defendant’s eldest daughter as maid and personal attendant, and in the performance of such duties the plaintiff had charge of the room and personal effects of defendant’s said daughter; that on or about . August 17, 1893, during the absence of this defendant and his ’ family from said cottage, which was left in charge of defend: ant’s servants, including the plaintiff, a felony was committed in said cottage, and certain valuable jewels and jewelry were. ' stolen' from the room occupied by the defendant’s - said ; daughter; that the articles stolen consisted of several diamond pins, a pearl bracelet and a diamond.and emerald ring, which ■ were usually kept in a bureau drawer in boxes; that thé articles were taken from the boxes and each box closed and replaced; .that articles of solid silver which were on the bureau and other valuable articles in the bureau were not taken; that upon the discovery of said felony notice thereof was given to the police authorities, and B. H. Richards, a police officer of the city of Newport, proceeded to investigate the circumstances of" said robbery, and that all of defendant’s servants, excepting the plaintiff, had been in defendant’s employ for a long time. In addition to the answer as originally .drawn (the same having been amended on this trial) it states that when the defendant first met the plaintiff she wore an unusual kind of jewelry ; that she had the custody of the jewels; that the defendant was never robbed before; that it was known to the plaintiff that he and his family would be away on the day this supposed robbery took place; that neither the silverware nor the other pins which were in the room of his daughter were taken; that there was no evidence of disorder in the room; that other articles of greater value which might have been taken were not; that - the plaintiff represented one Steers to be a half-brother when in fact he- was not such; that she went out walking at an ■unusually early hour in the morning with a married man whom she also represented to be her brother; and that there was no'explanatioir made by her of the robbery, nor why she had not locked up the jewelry.

And the answer further alleges that on or about the 25th day of August, 1893, the said B. H. Richards called at defendant’s cottage and requested the plaintiff to accompany him to the office of the chief of police and make a statement in reference to said felony ; that thereupon the plaintiff accompanied said Richards to the police headquarters, and subsequently returned to defendant’s house ; that on the 28th day of August, 1893, the plaintiff left defendant’s service; that this defendant never made any charges or accusations against said plaintiff in reference to said felony; all his acts in the premises were without malice, and that there was reasonable cause for his action.

-The facts I have stated are also alleged in mitigation of ' -damages which might be seen fit by yon ■ to be' given, in this case if you should come to the conclusion'that she is entitled to any. . •

The very first question for you to decide is' whether or not the plaintiff was arrested as alleged in the complaint; If you find that she was not, you may end your deliberations right-there and bring in a verdict for the defendant; for, in order to recover, the. plaintiff is bound to. establish this proposition to your satisfaction by a fair preponderance of the evidence, and if she has failed to do that, or in case the evidence upon . this point, is evenly balanced,.so that it does not preponderate in favor of -one side, or the other,, your verdict will be in favor' of the defendant.

In order to constitute an arrest an actual laying on of hands or personal violence is not necessary; it is simply necessary that the arrested party be within the control of the officer or other person mating the arrest, and submit himself to such control in consequence of some claim of right to make the-arrest or authority to make.it by. such officer or other person! ..Any deprivation-of the liberty of another, without his consent, whether it be by actual violence, threats or otherwise, constitutes an imprisonment within the méaning of the law. And I charge you at this point, at the request of the plaintiff, her tenth and eleventh propositions.

“I further charge you that it was not necessary that the ' plaintiff be touched or actually arrested;. if she ha.d reasonable ground to apprehend that coercive measures'would be used and under such circumstances submitted, then- it is sufficient to prove an 'arrest.

“ I charge you further that actual force is not necessary to constitute an arrest; An arrest may be made by a- show of force or threats,, and such show of force or threats, if submit- - ted' to, is as much an arrest as if sticli arrest had been, forcibly • accomplished.”" ;

The act relied upon as an arrest must have been intended as. such and so understood by the party arrested,'or there is nó imprisonment, The’ contention of the plaintiff- as to the alleged arrest and detention briefly is: That she .did not willingly accompany Detective Richards to the station house; that she was placed in a closed carriage by Richards and taken by him, against her protest, to the station house, where she was questioned, among other things, about the robbery, and that she returned to the house of the defendant in the same carriage, where her effects were examined by the latter officers in her room in defendant’s house, without a search warrant and without her consent.

The claim of the defendant upon this question, in short, is that the plaintiff was not arrested, but volunteered to accompany Richards, to the station house, in order, as witnesses for the defendant testify, to make a statement with respect to the robbery of the jewels; and that plaintiff’s effects were examined, not by Richards and Captain Garnett, but by her with a view of showing her innocence, -blow, gentlemen, you have heard the proofs in this case, including the testimony of the plaintiff, upon one side, and the testimony of the defendant; Detective Richards and Captain Garnett on the other, and I leave it to you to determine, from the entire evidence, whether or' not, the plaintiff was arrested. And at this juncture I deem it proper to charge you, at the request of the defendant, as follows: “Seventh. That if the plaintiff went' voluntarily as testified by the defendant’s witnesses, there was no arrest.” “ Eighth. That unless the plaintiff was either taken by force or yielded from fear to the authority and control of the officer Richards, no arrest took place.” “ Thirteenth. Visiting a police station wit;h an-officer to make a statement does not constitute an arrest.” I charge you the fourteenth iri the following modified form: “ Fourteenth. "When a felony has been committed' the" police are charged with the duty of investigating it, in order to ascertain who has committed it; and for that purpose may request the attendance at the police station for the purpose of examination of all persons whom they have reason to believe have any knowledge of the offense or the means whereby • it was committed.” And the fifteenth in the following modified form: “Fifteenth. .A person so requested to attend, and who has not been, and is not, charged by the police with any par- • ticipation in the crime, cannot b.e said to have been arrested.” T charge the- seventeenth request in the following modified form: Seventeenth. If the jury believe that the Newport police, whether on théir own. responsibility or at the request of the defendant, merely requested the plaintiff to go to police headquarters for the purpose of making a statement., of her knowledge of the loss of the'jewels, then the jury must render . a verdict for the defendant.”

If you find, gentlemen, however, that the plaintiff was arrested,' as alleged by her, you will proceed to the.question . ' whether the same was had at the procurement or direction of the defendant. You will recollect that the defendant’s contention throughout the trial of this case has been that he merely notified the police of the robbery, and left the entire matter in* their hands. The testimony with respect to the defendant’s alleged participation, in the arrest is as follows (I quote from the testimony of Margaret Limbeck, the plaintiff- herein, as furnished by the. stenographer): “ Q. What' took place then ?' A. Mr. Richards ceased speaking and Mix Gerry began to speak to me' and he said he wished me to go with this man. He said in a very kindly manner — Mr. Gerry stood and said, ‘ If you can recover for Miss Gerry her jewels or assist in' any way, would not you do so ? ’ and I said ‘ Yes, sir; I would do.everything I could; but I cannot give -this man any more information if I were to go with him than . I could now,’ and he said, ‘ It is immaterial; you- will have to go with him; he is an officer; he is sent down here by. the police authorities and I am- wéll acquaintéd with him-; you -will have to go. with him.’ And . I said: ‘I cannot tell anyv more; why do I want to go with him ?■ ’ ‘ Tut, tut, tut, tut,’ .- he said, ‘ you must gti with ' him.’ Mr. Gerry then, being my • master, I could not refuse'; I, had to -go. Q. Did you'go willingly ? A. No, sir ; I did not. . Q.'Mr.- Gerry said you .would have to go'with him, that he .was an officer of the police? A- Yes, sir.” And she further testified : “ Q. In the conversation you had with Mr. Gerry, in which he said you must go, or you would have to go, and that this man belonged to the police authorities, did he say anything about whether he knew this man was coming or not, or how he knew the man, what his business was or anything of that sort ? A. Yes, sir; he did. Q. What did he say % A. He said he had committed the matter into the hands of the police, and that this man had been sent down, and I was suspected and I had to go with him.”

I quote from the testimony of the defendant upon his direct examination : “ Q. How, what occurred as near as you can recollect it ? A. The plaintiff came in and said, * There is a man who wants me to go with him, from the Central Police Station ; says he is a detective. I have heard of people being kidnapped, and I don’t like to go with a strange man that I don’t know anything about.’ I said,£ You need not trouble yourself about it; I know Mr. Richards to be an officer connected with the Central Police Station. The probability is that the police desire to consult with you or obtain information from you in reference to the robbery.’ ‘Well,’ she said,- ‘ you are my master ; what do you advise me to do ? ’ I said, ‘ I don’t give you any advice at all; I don’t understand that you are under any necessity to go ; you are at liberty to. do just as you please. You can go with him or not, as you choose.’ She said, ‘ If that is the case, I will go with him; I did not care to go away with a man I did not know anything about.’ And then they went down the steps and drove off together.”

And Mr. Richards, the detective, in his direct examination, testified as follows: “ Q. Did she ” (meaning the plaintiff) “come down again % A. She did. Q. Was she dressed to go? A. I don’t think she was. She came in answer to Commodore Gerry. While upstairs there was some talk about not knowing who I was. Just then the commodore came in, and he said, 1 Do you want to see me, Richards ? ’ and I said, ‘ Ho, sir; I have called to see Miss Limbeck,’, and he said, ‘All right,’ and he rang a bell and sent a second man, a footman or something, to tell Miss Limbeck to come. Miss Limbeck responded. Q. She came down to where; to what room ?’ A. The commodore and I were in the hall downstairs, where-I stood; and she came down there and says,1 There is a man. who says he is' a detective and wants me to go with him.-’ I don’t' remember whether she said where; but. she simply said,. ‘ He wants me to go with him, and I' don’t, know him,’ and said 'something about being kidnapped or something like that. The commodore said,.‘ Thatis all right;’ that he knew me; it was all nonsense, and he presumed that, we wished her to-go to the station to make a statement regarding this matter. Q. Did he tell her that she was free to go or not', as she chose.? A. Well, I don’t-remember any such conversation as-that. Q. Have you - stated all that was said ?' A. She said-something about, if that was—I forget her exact words; hut. the effect was that it was all, that it was all right, and she would go ; and in consequence she did go.”

It" is not absolutely necessary tó show that, the defendant" gave personal orders or directions to the police touching the-, arrest in order to establish a prima facie .case against the-defendant. If it is shown that the defendant made a charge-against the plaintiff, and the surrounding circumstances and the conduct and acts of the defendant raise- a fair and reasonable presumption that a wrongful act was ordered or directed to-be done by the defendant, there is enough to- call upon him to-answer the charge and rebut the presumption. The burden of proof upon the proposition as to the arrest being directed or procured by the defendant is upon the plaintiff. She must establish this proposition by a fair preponderance' of the evidence. If, to your minds, she has failed to do that, or the evidence upon this point is evenly balanced, so that it does not: preponderate in favor of either one- side or the other, your verdict will be in favor'of the defendant. If you find from the whole evidence that the defendant complained to the police of the robbery of the jewels in his house, and stated various circumstances of suspicion which had coiné to his. knowledge, and the police officer made inquiry into those-circumstances and on his own authority arrested the plaintiff ■ and took her to the police station, the defendant is entitled to your verdict.

And I now charge you, at the request of the defendant, as follows : “ First. That the defendant cannot be held in damages in this action unless he arrested the plaintiff himself or instigated, directed or procured Richards to do so.” “ Fifth. That mere advice to the plaintiff to go with the officer did not constitute such participation in his act as to make the defendant liable.” “ Sixth. That if the defendant laid the whole matter before the police authorities of ¡Newport, and the officer, Richards, in the discharge of his duty, and on his own respon- ■ sibility, made the arrest of the plaintiff, the defendant is not liable for his act.” “ Ninth. That even if the jury should find there was an arrest, yet the defendant is not responsible ■unless he procured it, caused it, counseled or advised it, or participated in the act.” “ Tenth. To make him liable he must have required the officer to make the arrest or assisted him in making it.” “ Eighteenth. If the defendant, on learn- " ing of the loss of his daughter’s jewels, merely told all the facts and his suspicions to the police of the city of ¡Newport, and the police officers of that city, in the exercise of their proper authority and discretion, concluded to and did arrest the plaintiff, the defendant ■ is not responsible to her in this action.” ilNineteenth. Every one is answerable for specifically directing the arrest or imprisonment of another; but one is not answerable for acts done upon his information or suggestion by an officer of the law if they are done not purely as ministerial acts, but in the exercise of the officer’s proper-authority or direction.” “ Twentieth. If the defendant participated in any arrest of the plaintiff he is liable as principal ; but if he merely told his suspicions to an officer, and the latter arrested on his own responsibility, he is not liable at all-in this action.”

I charge you, at the request of the plaintiff,- in the following modified form: “ I charge you that if you find from the evidence th&t the detective Richards did arrest the plaintiff, ■ •and that the defendant was present and aided and encouraged the arrest, then in that event the defendant will be guilty of •an arrest.” ■

¡Now, gentlemen, if you find that the defendant did direct -or procure plaintiff’s arrest, you will next inquire and deter- • mine whether the arrest was without probable cause. .

The burden of proving the want of probable cause is upon The plaintiff . It is undisputed that if the plaintiff was arrested "it was done without a warrant. "As a "general principle no person can be arrested or taken into custody without a warrant; but if a felony or a breach of the peace has, in fact, ibeen committed by the person arrested, the arrest may be justified by ■ any person, without warrant, whether there •was time to procure a warrant or not; yet if an inno•cent person ,be arrested upon suspicion by a private individual, such individual is not, excused unless such offense has, in fact, been committed, and there was. reasonable. ground ■ to suspect the person arrested.The ' proofs' show that a. felony was committed in the house, .of the defendant at ¡Newport, Rhode Island, on or about ¡the 17th of August, 1893; jewels -belonging to one of the. •daughters of the defendant, and valued, according to the-testimony of' the defendant, at from $3,000 to $5,000, having been "taken therefrom.. If you find- that the plaintiff was arrested ■•at the defendant’s procurement or, direction, you will next .ascertain and determine whether there was reasonable ground to suspect the plaintiff.. In other words, did the defendant ¡have probable cause to warrant, him in his belief that plaintiff •had committed the robbery % Probable cause' is a reasonable .'ground of suspicion supported by circumstances sufficiently •strong in themselves to warrant' a cautious man in his belief that the person accused is guilty of the offense with which he ¡is charged. It does not depend upon the guilt or- innocence of .the accused or upon the fact whether a crime has been committed., A person making a criminal accusation may act upon ■appearances; and, if the apparent facts are such that á discreet and prudent person would be led to. the belief that a crime had been committed by the person charged, he will be jtistified,. although it turns- out that he was deceived and that the party accused was innocent; Public policy requires that a person be protected who in good faith and upon reasonable grounds causes an arrest upon a criminal charge, and the law will not subject him to, liability therefor. But a groundless suspicion, unwarranted by the conduct of the accused or by facts known to the accused when the accusation is made, will not exempt the latter from liability to the innocent person for damages causing his arrest. And I deem it important at this point to charge you, at the request of the plaintiff: “ Fourth. I charge you further that it is not a capricious or hasty opinion upon the part of the defendant that would entitle him under the law-to have plaintiff arrested. He must go further and show to the jury that he acted upon such information, facts and circumstances as would lead a reasonably prudent man to suspect that the plaintiff was connected with the crime.” And I charge you at the request of the defendant: “ Third. A felony having been committed in this house, the defendant is not liable to the plaintiff in damages if he had reasonable ground or probable cause to suspect that she was in some way concerned in the commission of the crime.”

The defendant has given you certain reasons why he suspected the plaintiff in this action, and they were enumerated upon cross-examination, and read again upon the amendment of the answer. Perhaps, in order that I may not be charged with injusticé, I had better briefly state them again: That the other servants were old servants ; that when' the defendant first met the plaintiff she wore an unusual kind of jewelry; that she was the custodian of the jewels; that the defendant was never robbed before; that it was known to the plaintiff that he and his family would be away on the day the robbery took place; that neither the silverware, nor the other pins which were in the room of his daughter were taken; that there was no evidence of disorder in the room; that other articles of greater value which might have been taken were not; that the plaintiff represented Steers as a half-brother, when, in fact, he was not such; that she went out walking at an unusually early hour in the morning with a married, man whom she also represented as her brother; and that there was no explanation made by the plaintiff of the robbery, nor why she had not locked up the jewelry.

The contention of the plaintiff is that the grounds or the facts and circumstances upon which the defendant based his Suspicion are in conflict; in other words, that there is a conflict of evidence as to at least some of them, which I will now enumerate, as my memory serves me. She denies that she was the custodian of the jewelry; she denies that she went out walking with Steers at an unusually early hour in the morning; she says that she did so at broad daylight; she says, that she did make an explanation of the robbery. She further said that her meeting with Steers was in the daytime, open and without secrécy. Probably there are other circumstances,, to which your attention has been called by the able and eloquent counsel for the plaintiff, which are in conflict with the defendant’s theory, and I leave it for you to say, gentlemen, from the' entire evidence, whether or not the facts embraced in the defendant’s answer, as amended on this trial and testified to by him, have been actually established by the evidence. If you. find that such facts as are set ■ forth in the defendant’s answer, as amended upon this trial, exist, I charge you that the same constitute probable cause, and, in case you find them to be facts, your verdict will be for the defendant.

. I charge you here, at plaintiff’s request, her' first proposition : “ First. If you believe from the evidence that the plaintiff was arrested, and that the defendant was instrumental in having her arrested,'and that the plaintiff up to the time of her arrest uniformly bore a good reputation for honesty and integrity; that defendant knew her reputation to be such up to. the time of her arrest, then that fact is a proper one to be considered by the jury in connection with all other evidence in the case, in determining whether or not defendant, had a probable cause.to believe and did believe in good faith that the "plaintiff was guilty of. the crime charged against her.” And I charge you: “ Fifth. If you find from the evidence that the defendant omitted to make such inquiry and. investi- ' gation of the conduct of the plaintiff as would suggest itself to a reasonably prudent man, and that such investigation would have discovered the fact that the plaintiff had no connection with the larceny or burglary, then the defendant cannot be absolved upon the ground of probable cause to believe the plaintiff guilty.”

And I charge you in this connection, at the request of the ■defendant, as follows': “ Fourth. That in determining whether the defendant had such probable cause or reasonable ground to suspect that the plaintiff was concerned in' the commission of the crime, the jury may consider the fact that the plaintiff had been recently engaged, while the other servants of defendant had been long with him; that" she had the general custody and control of the jewels which were stolen; that the defendant’s family, including the owner of the jewels, were absent on the day when they were stolen;-that there was no evidence that the house had been entered by a stranger; that the bureau from which the jewels were taken shoWe'd no disorder ; that other jewelry and property of value was left on the bureau and in the room undisturbed; that no one had any right of access to the room of the defendant’s daughter except the plaintiff and one other servant who had been with the family several years; that the plaintiff left the house in the afternoon without locking the bureau or the room; .that the tracks on the roof, which the plaintiff pointed out as evidence of the entrance of a stranger, were shown to have been there long before the jewels were stolen, and that the plaintiff was having constant meetings in the morning with a married man whom she had represented to be her brother.”

You may ■ take these facts into consideration if you find them to be such from the entire evidence. •

I charge you further, at the request of the defendant:

“ Twenhy-jvrst. If the jury believe that the plaintiff was a 'new servant of the defendant; that all of his other servants -had been long with him or had come so recommended that he knew all about them; that the plaintiff, as the maid of the defendant’s daughter, had general care and custody of all her property, and of the furniture' in which the lost jewels were kept; that the larceny of the jewels occurred when all, the family were absent, but when the plaintiff was in or about the premises; that there weré no evidences that the house had. been entered by a. strangerthat there were no evidences of disorder, about the room of defendant’s daughter stich as burglars usually leave, and no evidence of disorder at all in the room ;■ that other valuable property on the top of. the bureau and in- the drawer ■ where the jewels were kept was. left untouched; and if • you ' further find that the plaintiff .gave no satisfactory explanation as to the probable way in which the jewels disappeared,' and that the defendant, after* the loss of the jewels, learned that the plaintiff was in the habit of continually meeting a ■ man very early in the morning and at other times whom she falsely represented to be her brother; that even if the defendant directed the arrest of the plaintiff or participated in it, he had probable cause to suspect that the plaintiff was in some way concerned in the commission of the crime, and cannot be held liable to the plaintiff• in this action.” That request is. slightly altered. ■ “ Twenty-second. That if the jury, and other reasonable men, under similar circumstances, would have suspected the plaintiff of being in some .way concerned in the larceny of the jewels, then they cannot find a verdict for the plaintiff- in this action.” “ Twenty-thvrdi That if the jury believe- that, reasonably careful meii would have entertained •the suspicion concerning the plaintiff’s donnection with the loss of the jewels which the defendant did on August 24th, 1893, and testified to by him, then they must find a verdict for the defendant.” I charge you the twenty-fourth, in the following modified form: “ Twenty-fourth. Defendant claims there was every precaution to save plaintiff’s feelings and that there was no malice. You may take into consideration, with respect to these/ contentions, the following undisputed facts, viz.:. That there was a covered carriage which conveyed the plaintiff to and from the police' station } that there was no entry in the blotter of the arrest of the; plaintiff at the police station or alleged arrest, and that the detective, Richards, and the captain were not in uniform.” I charge you the — “ Twenty-fifth. The knowledge of' Richards was the knowledge of the defendant, inasmuch as. the acts of Richards are claimed to have been the acts of the defendant.” “ Twenty-sixth. If the defendant had reason able cause to suspect, plaintiff of the commission of the felony,, he would have failed in his duty if he had not informed the police authorities.”

Before submitting this case for your final deliberation, permit me to impress upon you the importance of the following-considerations :

It is my duty to instruct you as to the law which you are-to apply ‘to the facts as you shall find them; for you are the sole judges of the facts, and your guide 'as to the law of the case is the charge of the court and not the statements of counsel. When the plaintiff rested, the defendant moved for a, dismissal of the complaint, which was denied; and upon the close of the entire case the defendant renewed that motion, and also made a motion for a direction of a verdict in his favor,, which motions were denied. I charge you, gentlemen, that, the denial of these motions is not to be taken by you as any indication that I think the plaintiff is entitled to recover. It is simply a ruling of the court that she has presented such a state of facts as requires a consideration of them by a jury. While the law makes the parties litigant in this case competent, witnesses, yet you have a right to take into consideration! their situation and interest .in the result of your verdict and the circumstances which surround them, and you may give to. their testimony only such weight as you deem . it to be fairly entitled to. In determining the issues in this case, you are to carefully weigh the evidence, and if you can-reconcile the apparently conflicting statements of the witnesses, it is your duty to do so and determine which side, you believe has the bétter recollection of the facts and eir-: cumstances. You must decide this case upon the evidence as you recollect it; and you are not to take the counsel’s.nor the court’s statement thereof unless it is in accord with your recollection. You have heard the contention of the respective parties to this cause, as ably and eloquently presented by their counsel; and the strict attention paid by you to the case will, I am convinced, enable you to consider the evidence properly and come to a. safe and prudent result. These considerations;, if they stood alone, would, in my opinion, justify a trial judge in refraining from making any comment upon the testimony; but as it might also with propriety be said by either or both of the .parties litigant that portions of the evidence pertinent to their side of the case have been omitted and undue prominence given to unimportant facts, or that parts of the evidence had been erroneously stated, I will, therefore, not make any comment on the evidence beyond that already made.

If you find that the plaintiff’s arrest was for probable cause-your verdict will be for the defendant. Your verdict .will likewise be for the defendant unless you find affirmatively that the plaintiff was arrested at the direction of the defendant and without probable cause. Unless you find all of these propositions in favor of the plaintiff, your verdict will be for the defendant.

' If, however, you find from the whole- evidence, and under these instructions, that the plaintiff is entitled to recover, you will procded to the consideration of the question of damages. In that event you may give what in law are called “ compensatory damages;” that is,, such damages as will compensate her for the injury to her feelings and anxiety of mind. And' if you further find from the evidence that such arrest was maliciously and wantonly made, then in assessing the plaintiff’s damages you. may give what in law are called “ exeim pla-ry” or “punitive” damages that is, such damages as will not only give plaintiff compensation for the damages actually suffered by her, but will also afford a lesson, an example to others in like cases. And if any material. circumstance has been shown to your satisfaction which’ will, in your opinion, mitigate the damages against the defendant, you may take that into consideration.

I charge you, at the request v of the plaintiff, as follows:

Fourteenth. If you find for the plaintiff in this case, you x have a right to consider, as an element of ‘ damages in fixing the amount of your verdict, the mortification, humiliation and ■shame suffered by the plaintiff by reason of lier arrest and imprisonment, if you find that there was such.” “ Fifteenth. ■ If you find for the plaintiff upon all the facts in the case, as I 'have ■charged you, you have a right to- assess punitive damages, that is, such damages as would punish the defendant for his action in aiding and abetting in the- arrest of the plaintiff, provided ■such is proved to be the fact, and provided further, that he ■acted without probable cause.” “ Sixteenth. I charge * you that you have the right to infer malice upon' the part of the -defendant, if you find from the proof that he had no probable -cause to suspect the plaintiff.” And at this point ! think it better to read again, in connection with this question of malice, the defendant’s twenty-fourth request, as modified:

“The defendant claims that there was every precaution to /save the plaintiff’s feelings, and that there was no malice. In passing upon these questions you may take into consideration these undisputed facts—that there was a carriage which conveyed the plaintiff to and from the police station; and there was no entry in the blotter at the police station of the alleged arrest of the plaintiff; and that the detective Richards and the captain were not in uniform.” And I charge you, at tlie , request of the defendant: “ Twenty-seventh. As a matter of law an employer is under no obligation to give a servant quitting or when discharged from his employment any statement, reference of ' certificate whatever as to character, capability, honesty or morality, or on any other subject; and the refusal to give or the withholding of any such statement, reference or certificate. does not create any right of action or -claim for damages whatever against the employer.”

Unless you find from the entire evidence, and under the instructions of the court, that the .plaintiff is entitled to recover, you cannot and must not award anything to her out of sympathy. You have no right to render a verdict against, . the defendant merely because he may have sufficient means-with which to pay any judgment entered thereon.' On the other hand, you should not withhold justice from the plaintiff ■merely because she is poor and an alien.' You must decido this case precisely as you would or ought to do between two- ‘ individuals who are strangers to "you, and neither sympathy ■nor prejudice should be' allowed to influence your verdict in-the slightest degree.' You will, therefore, without fear, favor, sympathy, prejudice or passion, render such a verdict on all the facts and circumstances of the case as you, in the exercise ' of a sound judgment on the facts of the case, guided by the ■law as laid down by the court, consider the ease entitled'to.

Before you retire I wish to thank you most heartily-for the-strict attention- you have paid to the proceedings, and for the-exemplary patience exhibited by you.

The jury thereupon retired and returned' a verdict in favor )f' the defendant.