#### McCarthy *versus*De Armit.

1. In an action of trespass against the mayor and police officers of a city for an unlawful arrest and imprisonment, the burden of proof is upon the defendants to show that the arrest and imprisonment were by authority of law.

2. A, peace officer who arrests and imprisons one upon reasonable suspicion of felony, will be excused from liability even though it appear afterwards that in fact no felony has been committed.

3. The gist of an action for false imprisonment is the unlawful detention, and the general rule is that malice will be inferred in such cases from the want of probable cause, so far at least as to sustain the action.

4. If a peace officer wantonly arrests and imprisons an innocent man, he ought to be held liable in quite as heavy punitive damages as a private person would be fora causeless and malicious prosecution; but if without malice, and in the honest endeavor to arrest and bring a felon to justice, he arrests and imprisons an innocent person who is unjustly suspected, he will not be held liable therefor.

5. If the mayor of a groat city, together with certain of his police officers, be sued for false imprisonment made in an effort to suppress riot and arrest a murderer, the evidence on the part of the defendants showing their good faith and the existence of probable cause, need not be very strong to shift the burden upon the plaintiff to establish want of reasonable cause and malice.

6. Where a mayor or justice of the peace maliciously and without reasonable cause orders the arrest and imprisonment of a person for an alleged felony or breach of the peace, he will be held liable to the person thus arrested not only for compensatory damages but also for exemplary damages, proportioned to the wantonness and oppressiveness of Ms conduct.

*7.*As a general rule all the defendants in an action of trespass are alike guilty ; each is liable for the damages sustained, without regard to the different degrees or shades of guilt. Hence the damages are not divisible, and the verdict should usually be against all the defendants for such sum as the most culpable ought to pay.

8. However, in an action of trespass where intent must be considered, as against the mayor and police officers of a city for false imprisonment, if some of the defendants acted in good faith and others maliciously, and *64hence some are liable to exemplary damages and others not, the damages should be only compensatory to the plaintiff.

9. Where in such an action the defendants are all liable for exemplary damages, but in different amounts, the jury should be instructed as regards such exemplary damages to assess them according to the acts of the most innocent of the defendants.

October 31st 1881.

Before Sharswood, C. J., Mercub, Gordon, Trunkev, Sterrett and Green, JJ. Paxson, J., absent.

Error to the Court of Common Pleas No. 2, of *Allegheny county:*Of October and November Term 1881, No. 7.

Trespass vi et armis, by Harry C. De Armit against William C. McCarthy, Solomon Coulson and five others, to recover damages for the alleged unlawful arrest and imprisonment of the plaintiff. The defendant, McCarthy, was mayor, and the other defendants were police officers of the city of Pittsburgh.

On the trial, before Kirkpatrick, J., the following facts appeared :

The great riots of 1877, in the city of Pittsburgh, were in the month of July. Eor several days prior to July 21st 1877, the employes of numerous railroads centering in the city had struck for higher wages, and as a means of enforcing their demands they organized themselves into regular companies on each road, and prevented the transportation of freight over any of the roads. Some passenger trains were allowed to run, but freight cars were not. This accumulated in the city hundreds of cars and vast quantities of property of all kinds belonging to shippers, and as each train was thus waylaid the trainmen joined the organized forces. No actual destruction of property or life happened until on Saturday, July 21st, when, on the Pennsylvania railroad, a regiment of soldiers from Philadelphia attempted to clear the tracks, so that freight trains might be sent east. A conflict occurred on that day between the trainmen and a vast body of persons there assembled and the troops, in which men were killed on both sides. Hundreds of workmen, in the excitement of the hour, sympathized in and joined, with the trainmen, while the “ tramps ” came in great numbers, no one knew from where or how. Saturday night was given over to riot; thousands of dollars’ worth of goods were burned or stolen, and the flames ruined depots and warehouses, and tracks and engines and cars. The mob broke open gun-shops, and, armed with weapons and cannon they paraded the streets and controlled the city. The Philadelphia troops were driven into the round-house, and there were attacked and besieged.

In the Saturday battle the troops killed a young man by the name of De Armit, the brother of the plaintiff below. On Sun*65day morning these troops left the round-house, and were going out of the city towards the arsenal, when they were frequently fired upon. One man, known as “ Pat, the Avenger,” was known to have killed two, and was supposed to have shot more. On Sunday the citizens organized, and, with the help of some citizen soldiers and regulars, who were sent out by the general government, and other soldiers in charge of Governor Hartranft, peace in the city was compelled and the mob quelled.

The excitement somewhat subsiding on Tuesday and Wednesday (July 24th and 25th), numerous arrests were made, but the chief criminal, “ Pat, the Avenger,” against whom the efforts of the police were directed, could not be found. The mayor received one or more anonymous letters informing him that' one of the De Armits, the brothers of the man who was shot by the troops, was Pat, the Avenger. He disregarded them, but one of his detectives, W. J. White, informed him that a reputable citizen, Bostwiek by name, had pointed out to him “ Pat, the Avenger,” and that it was one of the De Armits. The mayor directed White to investigate and see if this were true. While this investigation was going on, rumors pointed to a De Armit as “ Pat.”

White was referred by Bostwiek to one Graham as the man who pointed out to Bostwiek “ Pat, the Avenger,” and said it was one of the De Armits. Graham, when visited, refused to tell what he knew, but referred White to one Dale as possessing all the necessary information. Dale was visited, and informed White that he was afraid to speak. White asked Dale if he knew the man, and he said, “I don’t like to say anything at the present time. I have got property here, and am afraid to *ex-presa*myself.” White asked him if the party didn’t live on Forty-eighth street. He said he did. He asked him if his name wTas De Armit, and he said, “ You are damn near it, I have nothing more to say,” and he walked away.

As the result of investigation, the mayor directed the arrest of plaintiff. This was effected about midnight on Saturday, July 29th, at his house, by some of the policemen defendants, who were detailed by the chief of police for that duty. The plaintiff was lodged in a cell in the station house, where he remained over Sunday, closely imprisoned. On Monday morning he was taken before a judge on a writ of habeas corpus, and, at the request of Mayor McCarthy, was held for a further hearing. Dale testified that he had seen the man called *“*Pat, the Avenger,” shoot two soldiers, but ho and other persons failed to identify the plaintiff as the culprit. On Monday afternoon Mayor McCarthy met one Leffler, who said he had seen “ Pat, the Avenger,” shooting, and was sure De Armit was. not the man. The mayor immediately notified the district attorney of this fact, and by the mayor’s advice De Armit was discharged the next *66morning, at the adjourned hearing, with a statement by the judge that the investigation showed that he was not “ Pat, the Avenger.”

The plaintiff, in aggravation of damages, alleged accompanying circumstances of willful and uncalled-for abuse on the part of the policemen in making the arrest. He alleged that, first, four policemen walked up to his house, asked if lie lived there, and then said his brother was hurt and wanted to see him ; seeking thus to induce him to go out. This he refused to do, and, with oaths, the parties left. About one hour afterwards twelve or fourteen men came down the road towards his house, when he (De Armit) fired upon them. They then closed in on his house, called upon him to come out, kicked in his front door, held cocked revolvers to his head, and with profanity abundant, in the presence of his wife, arrested him and then brought him to the city, and not until after he was arrested would they tell him why he was wanted; that when brought to the watch-house he was placed in a filthy cell and became covered with vermin. This was all denied by the defendants.

The plaintiff presented, inter alia, the following points :

I. That to prevent a recovery in this action defendants must show probable cause for the arrest and detention of plaintiff. Ans. This point is affirmed. There was no warrant or process upon which the plaintiff was arrested, and it is plain the injury complained of was of that forcible and direct kind that unless it was maliciously done, under color of legal process, is remediable in an action of trespass. The ground of proceedings in the two cases are different. In the one plaintiff must show want of probable cause. In the other, this form and cause of action (arrest without information or wai’rant, viz., trespass), it is enough for him (the plaintiff) to prove the act of violence, and the defendant must justify it, if a private individual (not this case), by proving an offence actually committed and plaintiff guilty of it; if a peace officer or officers (this case), that he had reasonable ground, probable cause, to suspect the plaintiff to be concerned in the offence.

10. That the probable cause to justify the arrest and detention of the plaintiff must be that which would justify any prudent and cautious man in the premises. Ans. “ This point is affirmed.”

*II.*Malice in this action need not be specially proved on part of plaintiff. Ans. “ This point is affirmed; we have already so stated with the reasons for the same in detail in our answer to the plaintiff’s first point.”

14. The testimony for defendant, if believed, does not disclose any ground of probable cause, and the verdict should be for plaintiff. Ans. “ This point is affirmed.”

*6715. If the jury believe there were circumstances of outrage or oppression, either in the arrest of the plaintiff or his detention afterwards, by any of the defendants, the jury may give exemplary damages. Ans. *“*This point is affirmed.”

The defendants presented, inter alia, the following points: *8.*That the probable cause operating on tlie mind and judgment of the mayor, William O. McCarthy, does not depend upon the actual state of the case, hut upon liis honest and reasonable belief at the time of the arrest. Ans. “ This point is refused.”

5. That in this form of action, trespass vi et armis for false imprisonment, the law requires substantially the same allegations, proof of malice and want of probable cause, as in an action for malicious prosecution. Ans. “ This point is refused.”

His Honor charged the jury, inter alia:

“ These answers to the points, gentlemen of the jury, are of such a plain and unequivocal character that they cannot be mistaken, and will enable us to correct' ourselves or be reviewed by a higher tribunal if necessary. JBut whilst I have so stated in regard to the evidence, if believed, not constituting *“*probable canse ” for the arrest, the evidence becomes important, and the jury should consider it in the light of estimating the amount that the plaintiff ought to recover.....It is for the jury to say, in view of all this evidence, what the recovery ought to be, whether merely nominal, more than nominal, or to what extent the plaintiff ought to have recovery here.....

“ I should further say to you, as I do, that in this regard there will be a, distinction between William C. McCarthy, one of these defendants, and the officers making the arrest; 1 mean as to the wanton character of the arrest. If the officers exceeded their power, and if tlioy behaved wantonly, cruelly and recklessly', and after a method that was unjustifiable, W. C. McCarthy would in no respect be responsible for such conduct on the part of the officers.”

After the jury liad retired, they were sent for by the court, who further instructed them as follows:

“ I instructed you that jrou could divide the verdict, assessing upon each the amount that yon thought lie ought to pay for his conduct in the premises. I now instruct you, that in that respect, upon reflection, I am satisfied there was error, that there can be but one verdict and one judgment in this case, and that whatever amount you render in this case must be rendered against tlie defendants as such. You understand me, not dividing or assessing it upon each separately, but in gross against tlie defendants, assessing against these defendants tlie amount which you think the most guilty of all ought to pay in tbe premises. I *68now instruct you that your verdict must be against the defendants jointly, making no distinction, for whatever amount you may think the one most responsible and most guilty ought to pay.

Juryman. We are not at liberty to make a distinction between exemplary damages and any other damages ?

By the Court. If I have not stated, I ought to state that you have the right to find exemplary damages if you think the act has been wanton, cruel and unjust. You have the right to find exemplary or punitive damages, so called. ■

Juryman. In such case as that we divide the damages ?

By the Court. No, sir; you simply assess whatever damages you find against everybody, you understand, as a whole. You cannot divide any damages.

Juryman. The act contemplates exemplary damages as well as other damages?

By the Court. It does.

Verdict for the plaintiff, for $2,500, and judgment thereon. The defendants took this writ of error, assigning for error, inter alia, the answers to the plaintiff’s and defendants’ points above given, and the instructions of the court above quoted.

*D. T. Watson*and *M. Swartzwelder,*for the plaintiffs in error. —

The mayor, acting as such, is a quasi judicial officer, who is not responsible in a civil action for his errors of judgment, and if the arrest was ordered by him with the honest belief on his part that De Armit was concerned in the commission of the I felony, he would not be liable in this action. To maintain an laction against the mayor in such a case the plaintiff must prove malice.

The proof in this case did fully establish the commission of a felony, and, taking into consideration all the surroundings, the mayor had reasonable ground to suspect or believe that De Armit was engaged in firing upon and killing some of the Philadelphia troops, and was justified in making the arrest on such well founded suspicion, without a warrant previously issued. The mayor was vested by Act of May, 1857, with all the powers and authority possessed by aldermen and justices of the peace, so far as regards the detection and punishment of felonies and misdemeanors, and to that extent was acting as judge.

Our third point, that probable cause does not depend on the actual state of the case in point of fact, but upon the honest and reasonable belief of the mayor at the time of the arrest, should have been affirmed: Smith *v.*Ege, 2 P. E. Smith 421. The Court erred in their instructions as to damages: Little Schuylkill Nav. Co. *v.*Richards, 7 P. F. Smith 142.

*69
      *IVest MoMurray,*and *8. Schoyer,*Jr., for tbo defendant in error.

Mr. Justice Trunkey

delivered the opinion of the court, November 21st 1881.

Prosecutions are presumed to have been properly instituted; and hence, to sustain ail action for malicious prosecution, malice and want of probable cause must both concur and be proved by the plaintiff: Walter *v.*Sample, 1 Cas. 275; Dietz *v.*Langfitt, 13 P. F. S. 234.

] Probable cause does not depend on the state of the case in point of fact, but upon the honest and reasonable belief of the party prosecuting. Among the numerous attempts to define it are, “ A reasonable ground of suspicion, supported by circumstances sufficient to warrant a cautions man in believing that the party is guilty of the offence;” and, “ A deceptive appearance of guilt arising from facts and circumstances misapprehended, or misunderstood, so far as to produce belief.” The substance of all the definitions is a reasonable ground for belief of guilt. Representations of others may be an adequate foundation for it, especially if made by those who have liad opportunities for knowledge, or who have made investigation: Smith *v.*Ege, 2 P. F. S. 419. lie who has probable cause, or in other words, reasonable grounds for belief of guilt, stands acquitted of liability : Travis *v.*Smith, 1 Barr, 234. This question must be judged by the circumstances existing at the time of the arrest for the offence charged; and it is immaterial that the prosecutor subsequently learned his mistake: Swain *v.*Stafford, 4 Ired. 392. The belief must be that of a reasonable and prudent man, else the most baseless prosecutions would be safe. But some allowance will be made where the prosecutor is so personally injured by the offence that he could not likely draw his conclusions with the same impartiality and absence of prejudice that a person entirely disinterested would deliberately »do. And all that can be required of him is that he shall act j, as a reasonable and prudent man would be likely to act under Nike circumstances: Cole v. Curtis, 16 Minn. 182. In Fisher *v.*Forrester, 9 Cas. 501, Woodward, J., said of the defendant who had commenced a prosecution which failed, doubtless he was greatly excited and not wholly without cause; and it is not strange that he was mistaken, in some particulars, in recounting the events of the moment. And he was not condemned for Ms mistakes.

What facts and circumstances amount to probable cause is a question of law. Whether they exist in any particular case is a question of fact. Where the facts are in controversy the sub-1 ject must be submitted to the jury, in which event it is the *\*
      *70duty of the court to instruct them what facts will constitute probable cause, and submit to them only the question of such facts. This principle is well settled. If all the evidence is insufficient to establish probable cause the court shall so instruct the jury, for they are not at liberty to find a fact without evidence ; and if the admitted facts amount to probable cause, the court should direct a verdiqt for the defendant, even if his malice were clearly proved, jj

Malice in law exists títere an act is done wrongfully and designedly by one person to the injury of another. Prosecutions may be instituted and pursued with pure motives, but so regardless of the forms of law and judicial proceedings as to render the transactions illegal and malicious : Page *v.*Cushing, 38 Me. 523. Yet something more than mere legal or theoretical malice is requisite to sustain an action for malicious prosecution,. for it must be proved as a fact^ It may be inferred from the want of probable cause, and generally is, but its existence is a fact for the jury. . Where it is a just and proper inference from all the facts and circumstances of the case, upon all the evidence in the cause, that the defendant was not actuated by any improper motives, but only from an honest desire to bring a supposed offender to justice, the action will not lie, because such facts and circumstances disprove that which is of the essence of the action, namely, the malice of the defendant in pressing the charge: Vanderbilt *v.*Mathis, 5 Duer 304. When the prosecutor submits the facts to an attorney at law, who advises they are sufficient, and he acts thereon in good faith, such advice is often called probable cause and is a defence to an action for malicious prosecution; but in strictness, the taking of the advice of counsel and acting thereon rebuts the inference of malice arising from the want of probable cause. The law favors honest efforts to bring the guilty to justice, and where a citizen proceeds by complaint before a magistrate, though the prosecution be unwarranted in fact, if his motives were pure he will be protected.

The foregoing principles have been brought into view because most of them apply in the pending case. This action is against the mayor and his officers for false imprisonment, and in some respects it is by no means analogous to an action for malicious prosecution. In that the presumption is that the defendant is not guilty. In this, the act in itself is wrongful, and the burden is upon the defendants to prove that the imprisonment was by authority of law. The question of probable cause in trespass for false imprisonment is one of law, and upon principle there is no ground for diversity on this point. It was so treated in Burns *v.*Erben, 40 N. Y. (Hand) 463, and in Wake*71ly *v.*Hart, 6 Binn. 316; and is sustained by tbe weight of authority *in*this country and in England.

The fact of felony, and reason for suspecting a particular person, justify his arrest by a private person. But a peace officer, who arrests one upon reasonable suspicion of felony, will be excused, even though it appear afterwards that in fact no felony had been committed. It may be expected that a felon will flee from justice, if an opportunity is afforded him, and that if he knows he is suspected he will do what may be in his power to obliterate the evidences of his crime. In those circumstances are found forcible reasons for prompt action in bis arrest. The public safety, and due apprehension of criminals charged with heinous crimes, imperiously require that such arrests should be made without warrant by officers of the law. “ Many an innocent man has been and may be taken up on suspicion; but tbe mischief and inconvenience to the public, in this point of view, is comparatively nothing; it is of great consequence- to the police of the country.” Burns *v.*Erben, supra; Rohan *v.*Sawin, 5 Cush. 281; Wakely *v.*Hart, supra; Cooley on Torts 174.

The gist of false imprisonment is unlawful detention, and the general rule is that malice will be inferred from the want of probable cause, so far at least as to sustain the action. Constables and other police officers, who arrest persons suspected of having committed felony, in actions for damages, should be allowed to defend upon like principles as a private person, who causes an arrest by a complaint on oath; for it is the duty of these officers to make such arrests. If an officer wantonly and maliciously arrests an innocent man, he ought to be liable in quite as heavy punitive damages as a private person would be for a causeless and malicious prosecution; but if without malice, and in the honest endeavor to arrest and bring a felon to justice, lie takes an innocent person, who was unjustly suspected, he should not suffer at all. And if the sheriff or mayor of a great city, or a justice of the peace, be sued for false imprisonment, made in an effort to suppress riot, or to arrest a murderer, the evidence on the part of the defendant showing his good faith, and the existence of probable cause, need *not*be very strong *to*shift the burden upon the plaintiff to establish want of reasonable cause and malice. It is of tbe utmost importance that these officers act promptly and fearlessly, as well as honestly, in such circumstances.

In the order for the plaintiff’s arrest, the mayor acted in his ministerial capacity, not liis judicial. No complaint had been made before bim; lie did not hear and determine. Many of the proper acts of a justice of the peace are ministerial. In the performance of these, if he wrongfully injure an individual, he would be liable the same as if he were not clothed with eer*72tain judicial functions. If an officer fail to perform a ministerial duty of a purely public character, as the execution of a capital sentence, no private person would have a right of action against him. When the ministerial duty involves individual rights, the case is different. If a justice of the peace, without reasonable cause, maliciously orders the arrest of a person .for breach of the peace, or felony, he may be compelled to answer the injured party in compensatory damages, and, also, exemplary, proportionate to the wantonness and oppressiveness of his conduct. Otherwise the danger from the acts of reckless officers would be only less than the danger of holding honest and prudent officers liable in damages whenever they mistakenly arrested an innocent man.

In trespass all the defendants are alike guilty, each is liable for the damages sustained without regard to the different degrees or shades of guilt; the damages are not divisible, and the verdict should be for one amount against all the defendants, for such sum as the most culpable ought to pay. This rule has few exceptions. However, when exemplary damages are claimed against a defendant, his intent must be considered. Two persons may be liable, one for punitive damages, and the other only for compensatory. As where the plaintiff was arrested by a police officer, and another, one acting in good faith and the other maliciously, the true criterion of damages is the whole injury which the plaintiff sustained from the joint trespass. In such case, if the plaintiff means to get exemplary damages, he should proceed against the party which ought to be punished in that way: Clark *v.*Newsam *&*Edwards, 1 Exc. 130. Under the evidence in this case, the jury should have been instructed, as respects exemplary damages beyond compensation for the injury done to the plaintiff, to assess them according to the acts of the most innocent of the defendants, and if any defendant was not liable for exemplary damages, none should be included in the verdict, for the question was as to the motives of the defendants.

Having expressed our opinion upon the principal questions of law raised by the assignments of error, it remains to consider whether the jury were rightly instructed to render a verdict for the plaintiff, if the defendants failed to prove probable cause, or to disprove malice, the instruction was just.

lOn Saturday, July 21st 1877, a riot occurred in Pittsburgh, duriBg which more than twenty persons were killed and a vast amount of property destroyed. Eor ten days the community was considered in a dangerous condition, troops were juesent under the command of the Governor of the State, an extra force of police was employed, and a committee of public safety were meeting every day. At Forty-ninth street, near the cemetery, on *73Sunday morning, two soldiers were killed. The night before a brother of the plaintiff had been killed, as alleged, by the soldiers. Within a few days Mr. Bostwick told White, a detective officer, that James Graham, on Sunday, had pointed to a man and said, “Bostwick, there goes Do Armit, the man that shot those two soldiers at the cemetery.” White at once informed the mayor, who directed him to investigate in the neighborhood where the men were shot. He did so, and was informed that several citizens had seen the murderer, who left his gun at the house of Reardon, immediately after the shooting. Graham told him to go to Dale, who could give him the information wanted. Dale did not like to say anything, was afraid to express himself, and in answer to the question if the name was De Armit, said, “ You are — near it. I have nothing more to say,” and walked off. The officer found it difficult to get people to talk about it, they evaded, and appeared to be in fear; but all who said anything said the man was a De Armit, from the reports. The officer communicated what he learned to the mayor. These facts the jury could well have found, and doubtless would, had the opportunity been given. The fact of the felony is now admitted, and it was then notorious. By law, the mayor is the chief conservator of the peace in the city of Pittsburgh. Upon the verity of the testimony adduced by the defendants, the mayor had probable cause to suspect that the plaintiff had committed the crime. “ The condition of the community during the time covered by the testimony ” was material for him to consider with the fact that citizens appeared in fear, and evaded the inquiries of the detective officer. Probably, they feared the mob, or the murderer. This fact, also, would hear upon the apparent necessity of arresting both the De Armits at the same time. The facts, as they appeared at and before the giving of the order for the arrest, must control in determining if there was reasonable cause. Very often appearances are not tlie same after *the event,*as before.;

We think the facts hi this case more clearly show probable cause for the arrest, than did the facts in Smith *v.*Ege, 2 P. F. S. 419, for the prosecution. There the prosecutor employed detectives 'who were informed by the neighbors that suspicion rested upon the Smith family; a girl told them one of the Smith boys had said to her he committed the murder, and a knife said to.have belonged to the murdered man was found in the cabin of the hoys. Upon this information, complaint was made by Ege, the father and sons were arrested and committed to jail, and on a further hearing they were discharged. It was held, in an action by the father for malicious prosecution, that there was reasonable ground for belief of the guilt of the plaintiff and his sons.Where a high crime has been committed very stringent *74proof is not required to establish that the prosecutor had ground for reasonable belief that a suspected party was guilty. As already seen, peace officers may arrest upon suspicion of felony. A high officer, as the sheriff, may arrest a parly merely suspected of a capital offence. Suspicion is not belief. Probable cause for suspicion by a prudent and reasonable man, that a party committed a high crime, may not be sufficient to induce him to believe sucb party guilty. If tbe mayor bad good reason to suspect, it was bis duty to act, to the end that tbe felon should not escape.

W ere the evidence insufficient to establish probable cause, and such as to warrant a finding that the defendant, as mayor of the city, without malice, and with the single purpose of bringing the'murderer to a trial by due process of law, ordered the plaintiff’s arrest, the fact would be for the jury. Because the plaintiff was innocent of the crime, it does not follow that the mayor was malicious.

An innocent man is unfortunate when he is suspected of having committed a high crime, and is deeply injured when imprisoned upon suspicion; but be has no redress, if his injury came through the proper aetiouof a public officer while in the faithful performance of his duty.”\

Tbe questions set out in the tenth, eleventh and twelfth assignments were so foreign to the issue that they ought to have been overruled. Though asked in cross-examination, they were not admissible as tending to discredit tbe witness.

Judgment reversed, and venire facias de novo awarded.