Rosenkranz v. Barker

• Decision Date: 14 November 1885
• Citation: 3 N.E. 93,115 Ill. 331
• Parties: ROSENKRANZ and another v. BARKER.
• Court: Illinois Supreme Court

115 Ill. 331

3 N.E. 93

ROSENKRANZ and another

v.BARKER.

Supreme Court of Illinois.

Filed November 14, 1885.

Appeal from First district.

Statement of case is in the opinion of the court.

Rosenthal & Pence

, for Omar L. Rosenkranz.

Shuman & Defrees, for J. Hawley Weber.

Abbott, Oliver & Showalter, for appellee.

CRAIG, J.

This was an action brought by A. E. Barker in the superior court of Cook county against O. L. Rosenkranz and J. H. Weber, to recover damages for an alleged malicious prosecution and false imprisonment. A trial of the cause before a jury resulted in a verdict and judgment in favor of the plaintiff for $2,000. The defendants appealed to the appellate court, where the judgment was affirmed. The facts out of which this litigation grew, so far as is necessary to state them, are substantially as follows: In 1882 Barker resided in Iowa, and was engaged in a small way in the jewelry business. In the latter part of the year he bought a bill of goods of Rosenkranz & Weber, of Chicago, amounting to $350. The goods were sold by a traveling man named Johnson. When the bill became due $100 was paid, but no part of the balance has ever been paid. Rosenkranz resided in Wisconsin and did business in Milwaukee, but at the same time he was a partner in the jewelry business of Rosenkranz & Weber, in Chicago, the firm being composed of Rosenkranz and Lucy B. Weber, who was the wife of J. H. Weber. J. H. Weber had the general management of the business of this Chicago firm. On or about the first of February, 1883, the bill of goods remaining unpaid, Johnson, who had sold the goods, induced Barker to visit Chicago under the pretense that he would enter into partnership with him in the jewelry business in Chicago. Upon the arrival of Barker, Weber was notified by Johnson of the arrival, and on the fifth day of February, 1883, Weber filed a petition and obtained an order for a writ of ne exeat. The writ was issued and placed in the hands of the sheriff, who arrested Barker and held him in custody 10 or 12 hours, when he was released on bail. Subsequently, and on the seventeenth day of March, 1883, on demurrer, the petition was dismissed. It does not appear that Rosenkranz had any knowledge that the proceedings had been instituted against Barker until about the first day of April, 1883, and at this time a petition for a ne exeat had been held bad on demurrer and dismissed, and Weber had then or a few days thereafter appealed to the appellate court. When Rosenkranz learned what had been done he notified Weber that it was wrong, and advised the dismissal of the appeal from the appellate court, and under his advice no further steps were taken to prosecute the appeal.

At the request of plaintiff the court instructed the jury that if Rosenkranz became acquainted with the facts in the matter about the last of March, 1883; that, being so informed as to said facts attending the commencement of said proceedings, said Rosenkranz suffered said proceedings to be continued in the courts through the medium of an appeal, and did not in any way discountenance said proceedings, or put a stop to the same,-then the court instructs the jury that if they find from the evidence that said ne exeat proceedings were instituted maliciously and without probable cause, and said Rosenkranz was so informed, but allowed the ne exeat case to proceed, then all such facts, if the jury so believe, may be taken into consideration in determining whether said Rosenkranz ratified and approved of the arrest of said Barker; and if he did so approve and ratify the arrest of said Barker, then he would be equally liable with Weber, if said arrest was made maliciously and without probable cause. The court also instructs the jury that if they found the defendants guilty under the evidence, that the arrest was malicious and without probable cause, and that plaintiff has sustained actual damages, then, on assessing damages, they are not limited to compensation for actual damages sustained, but may give exemplary or vindictive damages.

These instructions are claimed to be erroneous as to the defendant Rosenkranz. An instruction which is not based on the evidence in the case is improper, and should not be given; it is liable to mislead the jury, and usually results in a wrong verdict. As to the first instruction supra, we find no evidence in the record upon which it could fairly be predicated. Rosenkranz testified, and in this he is corroborated by other evidence, that when he came to Chicago and learned for the first time of the proceedings, he notified Weber, who was in charge of the matter, that it was wrong, and the appeal ought to be dismissed. Here he not only failed to sanction and approve, but condemned, what been done, and under his direction no further steps were taken to prosecute the appeal. The conduct and acts of Rosenkranz contain no element of approval, and the instruction based upon the theory of an approval, in the absence of any evidence to sustain such theory, could do no less than mislead the jury. As respects the other instruction, we are of opinion as to Rosenkranz it is erroneous. It is not claimed that he ordered, advised, or directed the arrest, or that he even knew of the occurrence until after the proceedings in the ne exeat case had been dismissed. The claim is that after knowledge of the arrest he approved what had been...