59 Pa. Super. 260 | Pa. Super. Ct. | 1915
Opinion by
The second, third and fourth assignments of error are criticised by appellee’s counsel as relating to the reasons given by the court for its action and therefore to matters not assignable for error. The fifth is also criticised as not being self-sustaining. These criticisms are well-founded. But the first and sixth assignments, while not in strict form, indicate the substantial question sought to be raised by the appeal, namely, whether the defendant was entitled to binding direction in his favor. That question will be considered.
1. The fundamental distinction between the injury of malicious prosecution and the injury of false imprisonment necessitates different rules of pleading and evidence. The action for the former, though, under the Act of May 25, 1887, P. L. 271, the same in name as the action for the latter, is essentially different from it. It presupposes a previous judicial proceeding and, ordinarily, its termination favorable to the defendant therein: 19 Cyc. of Law & Pro. 356. But to constitute the injury of false imprisonment the two requisites are: “1. The detention of the person; and, 2. The unlawfulness of such detention:” 3 Bl. Com., Lewis’s ed., 127. A previous judicial proceeding not being an essential
2. The defendant further bases his contention that the court ought to have given binding direction in his favor, upon the alleged facts, that he was a police officer acting under general orders of his superior to arrest anyone who attempted to peddle fruit or fish and blew a horn upon the streets of the city after ten o’clock at night; that shortly after this hour the plaintiff, a huckster, was notified by and promised the defendant to refrain from blowing his horn; that after he had passed from defendant’s view plaintiff or some one in his wagon blew the horn again; whereupon the defendant pursued and arrested him for disorderly conduct, and took him to the station house, where he was detained for a time. On the other hand, plaintiff testified that the notification was given a few minutes before ten o’clock, and that his horn was not blown afterwards. It is thus seen that, even if it be conceded that plaintiff’s blowing of the horn after notification and promise to refrain would have been justifiable cause for his arrest without warrant, and imprisonment, the question whether he committed the act was in dispute, and, therefore, it was the exclusive province of the jury to determine it.
It is argued that, although plaintiff did not commit the act, yet, if defendant had reasonable ground of suspicion supported by circumstances sufficient to warrant an ordinarily prudent man in believing he did, he had probable cause for arresting him and this would be
The assignments of error are overruled and the judgment is affirmed.