Enright v. Gibson

• Decision Date: 21 February 1906
• Citation: 76 N.E. 689,219 Ill. 550
• Court: Illinois Supreme Court
• Parties: ENRIGHT v. GIBSON.

219 Ill. 550

76 N.E. 689

ENRIGHT

v.GIBSON.

Supreme Court of Illinois.

Feb. 21, 1906.

Appeal from Appellate Court, First District.

Action by Estella A. Gibson against Michael G. Enright.From a judgment for plaintiff, affirmed by the Appellate Court, defendant appeals.Affirmed.William E. Mason and Lewis F. Mason, for appellant.

Morse Ives and G. I. Haight, for appellee.

RICKS, J.

This was a suit brought by appellee, Estella A. Gibson, against appellant, in the superior court of Cook county.The declaration consisted of two counts.The first count alleged false imprisonment, and the second malicious prosecution.The cause was tried before a jury, and a verdict rendered for $5,000, $2,500 of which was remitted and judgment entered for the sum of $2,500, from which an appeal was prosecuted to the Appellate Court, where the judgment of the superior court was affirmed, and a further appeal is now prosecuted to this court.

Appellant conducted an employment office in the city of Chicago.Appellee was his clerk and in charge of what is termed by the evidence ‘the female department.’For that department she kept a certain book, which contained merely the list of persons wanting female help, their locations and street numbers, the class of work, and the wages proposed to be paid.Appellee had been thus employed about six weeks.On Saturday evening, May 25, 1901, she took the book in question home with her, claiming that it was for the purpose of sewing the covers on the index to it and completing the index to the entries of orders.Appellant suspicioned that she had taken this book for the purpose of copying and furnishing to his competitors the entries therein contained.He missed the book the same evening that appellee took it, and sent a clerk to recall appellee to the office, who claims that when he saw appelleeshe directed him to return to appellant and say to appellant that he did not see her.On Sunday afternoon she returned to the office with the book.Appellant was there and requested her to take a seat.She offered to show him the book and to tell him what she had been doing with it.Appellant immediately called an officer, directed him to arrest appellee, and accompanied the officer and appellee to the police station, where appellee was confined over night.Appellee claims that the door of the room in which she was detained until the officer arrived was locked, while the evidence on the part of appellant tends to show the contrary.On Monday morning, after appellee had been taken to the police station and confined overnight, appellant made a complaint charging appellee with larceny of the book in question.The cause was heard the following day, and appellee was discharged, and the suit at bar followed.Appellant was not an officer, and it is not contended that there is no evidence in the record fairly tending to support the first count, being the count for false imprisonment.

The errors relied upon relate wholly to the instructions.The complaint is that instructions 16, 17, 18, 19, and 20 offered by appellant were not given as offered, but were modified by the court and given as modified.Instructions 16, 17, and 18 relate to the elements of probable cause and good faith on the part of Enright.The sixteenth, as offered, defined probable cause, and advised the jury that unless they believed that the appellant acted without probable cause and with malice they should find him not guilty.The seventeenth, as offered, advised the jury that the burden of proof was upon appellee to show that the defendant did not have probable cause, and that if she failed to do so the jury should find the defendant not guilty.The eighteenth, as offered, was, in effect, that if Enright acted in good faith, upon evidence, whether true or false, which was sufficient to create in the mind of a reasonably cautious man a reasonable belief of guilt of the plaintiff, then they should find the defendant not guilty.The nineteenth, as offered, was that the plaintiff must show that the defendant acted without probable cause and with malice, and that if the jury believed from the evidence there was probable cause and no malice was shown, they should find the defendant not guilty.The twentieth, as offered, advised the jury that it was not necessary for appellant to prove the actual guilt of appellee of the crime of larceny as bailee, but that if he acted upon facts and circumstances known to him, and they were such as would lead a reasonable and prudent man to believe her guilty, and that he did believe her guilty, then the jury should find the defendant not guilty.All these instructions, as offered, were general, and, unless modified, would be applicable alike to each count of the declaration.The court refused them as offered, and modified each of them by restricting its application to the second count of the declaration.As modified and given they stated correct principles of law applicable to the charge of malicious prosecution.

Counsel for appellant, however, take the position that the instructions are also applicable to the charge of false imprisonment contained in the first count, and in support of the contention cite Harpham v. Whitney, 77 Ill. 32,Bourne v. Stout, 62 Ill. 261,McGuire v. Goodman, 31 Ill. App. 420, andFord v. Buckley, 68 Ill. App. 447.While those cases announce the principle that appellant contends for, they are applied wholly to cases for malicious prosecution, and not to cases for false imprisonment.Not one of the cases cited arose upon the charge of false imprisonment.By the common law, and according to the holdings in many of the states, a private person may justify an arrest by showing that a felony had been actually committed and that he had reasonable grounds to suspect that the person arrested committed the felony.2 Am. & Eng. Ency. of Law (2d Ed.) 885;3 Cyc. 885, and authorities therein cited.By section 4 of division 6 of our Criminal Code(Hurd'sRev. St. 1903, c. 38, § 342, p. 677), it is...