Hamlin v. Spaulding
27 Wis. 360
Wis.
1869
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The decision in this cause was announced at the June term, 1869.

Paine, J.

As a general proposition, the instruction of the court below on the subject of vindictive damages was erroneous. The action being for an illegal arrest and false imprisonment, the defendant attempted to justify as constable, acting on a charge and suspicion of felony in making the arrest. The court told the jury that if the defendant had no good reason to believe that the plaintiff had committed the crime of larceny, they might give vindictive damages. This is too severe a rule. It might be possible for an officer to believe in fact that a person was guilty, *364without a good reason. Officers called on to arrest without warrant are frequently obliged to judge hastily from appearances, or the information of strangers, and one might in good faith form a belief of guilt upon grounds which a jury, having an opportunity to judge of the whole facts with greater deliberation, might think insufficient. In such a case, although he might be liable for actual damages, he ought not to be punished by vindictive damages. To justify these, the arrest should be made in bad faith, and, if not with actual malice, at least for the purpose of serving some ulterior object outside of the administration of criminal justice.

If the bill of exceptions in. this case purported to contain all the evidence, perhaps we should affirm the judgment upon the ground, that the verdict was right upon the evidence, and that the instruction, although inaccurate as applicable generally to such actions, was sufficiently accurate upon the facts shown here. Por if this was all the evidence, it would be pretty clear, if the defendant had no good reason to believe the plaintiff guilty, that he did not in fact believe it, and that he was using his official position to enable him to regain possession of the horses, under the chattel mortgage, by arresting the persons who had them in charge, and who had retaken them as he had every reason to believe, under a claim of title.

But as we cannot say that the evidence in the bill is all that was offered, and as the instruction was inaccurate as a general proposition, the judgment must be reversed, and the cause remanded for a new trial.

By the Court. — So ordered.