This was an action for false arrest and imprisonment by Herman Diers against James P. Mallon, as principal, E. William and others, as sureties on the official bond of said Mallon, as sheriff of the county of Dodge. There was a verdict for the defendants, a new trial was denied, and judgment was entered upon the verdict. Plaintiff prosecutes error.
The facts in the case, as disclosed by the record before us, are, in substance, as follows: On the 10th day of December, 1889, one Carlos F. Pulsifer was murdered near the village of Crowell, in Dodge county. A day or two later the defendant sheriff arrested and held in his custody in the jail of said county, Charles Shepherd and Christian Furst upon the charge of having committed said murder. During said imprisonment, and on the 13th day of said month of December, the sheriff was present at a conversation had between said Shepherd and the attorney of the latter, T. M. Franse, Esq., in which the former stated to the latter, in substance and effect, that the plaintiff Diers
The ninth assignment of error, which is the first one discussed in the brief of counsel for plaintiff, is based upon the holding by the court as a matter of law that Mallon had probable cause for making the' arrest and in withholding that question from the jury. The point is raised by the fourth instruction given, which reads as follows:
“4. The jury are instructed the evidence in this case shows that the defendant Mallon, at the time he made the arrest complained of, had reasonable and probable cause to suspect that the plaintiff was guilty of procuring the alleged murder to be committed, although as a matter of fact the plaintiff was innocent of that charge. The only questions then left for the jury to determine is: First — Did the defendant Mallon, in keeping the'plaintiff in custody, use*126 more force and violence than was reasonably necessary to-safely keep and retain him in custody? In other words, is the defendant Mallon guilty of an assault and battery upon the person of the plaintiff Diers? Second — What, if any, damages has the plaintiff suffered by reason of such assault and battery?”
That Pulsifer was murdered is not questioned. The plaintiff was arrested for being implicated in the crime, by the defendant Mallon, without any warrant therefor having been issued. The authority of a sheriff, constable, or peace officer, in the absence of any express statutory provision to arrest without process upon reasonable suspicion one who is charged with the commission of a felony, and detain him for a reasonable time until a warrant can be procured is most fully established by the adjudicated eases. (Rohan v. Sawin, 5 Cush. [Mass.], 281; Wade v. Chaffee, 8 R. I., 224; Beckwith v. Philby, 6 Barn. & Cress. [Eng.], 635; Doering v. State, 49 Ind., 56; Davis v. Russell, 5 Bing. [Eng.], 354; Holley v. Mix, 3 Wend. [N. Y.], 350; Fanes v. State, 6 Humph. [Tenn.], 53; Burns v. Erben, 40 N. Y., 463; Firestone v. Rice, 71 Mich., 377; Filer v. Smith, 96 Mich., 347; Marsh v. Smith, 49 Ill., 396; Shanley v. Wells, 71 Ill., 78; Simmerman v. State, 16 Neb., 615; 7 Am. & Eng. Ency. Law, 675, and cases cited; Cooley, Torts [2d ed.], 202.) Judge Cooley, in his valuable treatise on Torts, after discussing the liability of a private person for arresting one on suspicion of crime, observes: “A peace officer may properly be treated with more indulgence, because he is specially charged with a duty in the enforcement of the laws. If by him an arrest is made on reasonable grounds of belief he will be excused, even though it appear after-wards that in fact no felony had been committed.” The reason of the rule is stated by Dewey, J., in Rohan v. Sawin, su/pt'a, in the following apt language: “It has been sometimes contended that an arrest of this character, without a warrant, was a violation of the great fundamental
Counsel for plaintiff’insist that the question whether the sheriff had reasonable or probable ground for believing that plaintiff procured the murder to be committed should have been submitted to the jury, and, therefore, the court erred in not submitting to the jury the question to pass upon. If there was any conflict in the testimony upon the subject, then we would agree with counsel that it would have been reversible error for the court to withdraw the question of probable cause from the jury. Where the facts are in dispute, the question of reasonable ground for believing that the person arrested without process has com
Did Mallon have reasonable or probable cause for arresting the plaintiff? In determining this point it is important to keep in mind the meaning of “ probable cause.” We know of no clearer definition of that term than the one given by the court of appeals of Maryland in Johns v. Marsh, 9 The Reporter [Md.], 143, in the following language: “Probable cause, according to the definition adopted i by this court, is a reasonable ground of suspicion, supported I by circumstances sufficiently strong in themselves to warrant a cautious man in believing that the accused was guilty. (Boyd v. Cross, 35 Md., 197; Cooper v. Utterbach, 37 Md., 282.) It is very true, probable cause does notjlepend on the actual state of the case in point of fact as it may turn |out upon legal investigation. It is made to depend upon :knowledge oTfacts and circumstances which were sufficient to induce the defendant or any reasonable person to believe the truth of the accusation made against the plaintiff, and that such knowledge and belief existed in the mind of the defendant at the time the charge was made or being prosecuted, and were in good faith the reason and inducement for his putting the law in motion.” Applying the foregoing to the case under consideration, did the trial court wrongfully determine, as a matter of law, that the sheriff had probable ground for making the arrest? We are firmly
What we have sard disposes of the assignment of error based upon the refusal of the court below to permit plaintiff to prove that the relations existing between him and Pulsifer were the most friendly and confidential, and were so known in the community where they resided. Had this testimony been received it would not have shown want of probable cause. Mallon was not bound to show that Diers was in fact guilty, nor was he required to make inquiries of
It is argued that the court erred in holding that the plaintiff was detained an unreasonable length of time before he was taken before the county court for examination,— in other words, that the question of unreasonable detention should have been submitted to the consideration of the jury. Had the evidence been conflicting upon that branch of the case, then it would have been for the jury to pass upon. But there is not a particle of conflict in the testimony as to the length of time, or the circumstances under which the plaintiff was held; therefore the reasonableness of the detention was a question of law for the court. This is the rule laid down in 2 Thompson, Trials, sections 1559 to 1561, and is believed to be sound. See Roth v. Buffalo & S. L. R. Co., 34 N. Y., 553, where the court, in considering the same question, say: “ When the testimony is conflicting and the facts are unsettled, the jury aré to decide, under the instructions of the court, as to the law. When there is no dispute as to the facts, the question is purely one of law, and the court should decide it.” In view of the facts already detailed we do not think plaintiff was held an unreasonable length of time, and the court did not err in so deciding. It was Sunday that the arrest was made, and although, as contended by plaintiff, the Code confers upon magistrates in criminal proceedings the power to hold an examination upon the first day of the week, they are not required so to do. (Pepper v. Mayes, 81 Ky., 674.) Therefore Mallon was not derelict of duty in not filing a complaint causing a warrant to be issued, and taking the plaintiff, before a magistrate on the day of the arrest. As
The eleventh assignment of error is as follows: “The court erred in refusing to give to the jury instructions numbered 1, 2, 3, 4, and 5 as requested by plaintiff.” ThBse five requests to charge read thus:
“1. An officer should not receive every idle rumor, but should make such diligent inquiry touching 'the truth of" the charge as the circumstances will permit, before he assumes to arrest upon the information of another.
“ 2. Mallon had no right to put irons upon plaintiff unless-it was necessary for his safe keeping, and if it was not necessary for his safe keeping, then defendants are liable.
“3. The detention of plaintiff by defendant, without a. warrant, under arrest until Tuesday following his arrest,, was detaining him an unreasonable time, and renders the-defendants liable.
“4. It was the duty of the defendant Mallon, when he-arrested plaintiff, to procure a warrant as soon as he reasonably could, and if he did not so procure a warrant, he is guilty of false imprisonment for such length of time as-plaintiff was so held without his consent.
“ 5. If you find from the evidence that plaintiff was sub*132 jected to treatment unnecessarily severe after his arrest, the defendants are liable for such damages as plaintiff has suffered by reason of such unnecessary severity.”
While it is urged the law of the case is correctly set forth in these requests, it is conceded that if the trial court was right in withholding from the jury the question of probable cause and that of the reasonableness or unreasonableness of the detention of plaintiff after his arrest, that the first, third, and fourth of these requests were rightly refused. We quite agree with the counsel in this, and as we have reached the conclusion that both the question of the probable cause for making the arrest and the reasonableness of the detention of the plaintiff were questions ■of law for the court, and that it properly determined them, it follows that no error was committed in not giving the said first, third, and fourth instructions. The refusing of plaintiff’s requests copied above having been assigned as error en masse, both in the petition in error and motion for a new trial, and a portion of them having been rightly»refused, under a rule established by an unbroken line of decisions the remaining requests to charge will not be considered by us.
What we have just stated applies with equal force to the twelfth assignment, which is predicated upon the giving of the fourth, fifth, sixth, seventh, and eighth instructions. The giving of these instructions is assigned as error in the motion for a new trial in this language:
“5. The court erred in giving to the jury instructions numbers 4, 5, 6, 7, and 8, and all other instructions excepted to by the plaintiff.”
One or more of these instructions, and especially the eighth, on the measure of damages, stated the law applicable to the facts proved, hence the entire assignment will not be further considered.
Another contention is that the court erred in not permitting the plaintiff to introduce evidence of his good char
It is argued that the verdict is not sustained by sufficient evidence and is contrary to law. The basis of this contention is the treatment which the plaintiff received at the hands of the sheriff at the time he was taken into custody and during his imprisonment. In Atwood v. Atwater, 43 Neb., 147, which was an action for false imprisonment, we had under consideration the liability of a police officer for making an arrest under a warrant, and it was held that if such officer acts oppressively in the execution of the process placed in his hands and unnecessarily abuses the person
“While an officer is bound to treat his prisoners with such kindness as may be consistent with security, and will not be warranted in employing any harsh or unnecessary restraint, yet it is his duty to use such reasonable precautions as the case requires to prevent escape, especially in ar*135 rest for felony or offenses of great magnitude. His action in this regard is to be considered in the light of all the facts and circumstances proved by the evidence on the trial of the case, bearing upon the question of what means are reasonably necessary to keep the prisoner safe and secure.
“The jury are instructed that in order to constitute an assault and battery in this case it is necessary that the jury, from the evidence, find that the defendant Mallon had, at the time and place complained of, unlawfully used force and violence upon the person of the plaintiff in excess of what was reasonable and necessary under the circumstances to safely detain and secure the safe-keeping of the plaintiff. If the jury from the evidence find there was no excess of force or violence used by the defendant beyond what was •sensibly necessary to safely keep the plaintiff, then the defendant would not be liable in this action; but if the jury from the evidence believe that the defendant Mallon did use any excess of force or violence beyond what was reasonably necessary to safely keep the plaintiff, then the defendant would be liable to the plaintiff for any injury or •damage suffered by the plaintiff by reason alone and rising solely out of the use of such excessive force or violence wantonly or excessively inflicted.”
Under these instructions, which are substantially the same as those approved by the supreme court of Michigan in Firestone v. Rice, 71 Mich., 377, the jury decided that the sheriff was justified in placing the plaintiff in irons. After a careful consideration of the evidence returned, in the bill «of exceptions we are satisfied that it sustains the verdict. The sheriff was not prompted to do as he did through malice or ill-will, but he acted in good faith, believing it was necessary to handcuff the plaintiff to prevent his escape. In the language of Morse, J., in Firestone v. Rice, supra: “ Having reasonable cause for making the arrest, the question arises, was the officer justified in handcuffing the parties? We think the rule laid down by the circuit
After a careful consideration of the record and the able arguments of counsel, we are convinced that plaintiff has had a fair and impartial trial, and there being no reversible error committed by the trial court, the judgment is
Affirmed.