The defendant in error sued the plaintiffs in error in the court of common pleas of *Page 521 Franklin county to recover damages for the alleged wrongful and unjustifiable acts of the plaintiffs in error in causing the arrest and imprisonment of defendant in error. The trial resulted in a judgment in favor of defendant in error for $1,500.
The record discloses that some one using the name of Miller purchased of the plaintiffs in error a pair of shoes at their store in Columbus and induced them to cash a forged check, thereby obtaining the shoes, and a sum of money in addition thereto, and it is conceded that such person committed a crime.
The defendant in error lived, owned, and operated a barber shop near the shoe store of plaintiffs in error. Plaintiffs in error accused the defendant in error of being the person who committed the crime, and, without process being issued, caused a police officer to arrest and take in custody the defendant in error.
In an attempt to establish defendant in error's guilt, plaintiffs in error caused him to be subjected to certain indignities, and, after he had been held in jail over night and had been exhibited to several persons in an effort to identify him as the person who had recently committed similar offenses in that city, and after plaintiffs in error had failed to prefer written charges against him, he was released from prison.
In his petition for damages, plaintiff charged that the defendants falsely accused him of making, issuing, and using a forged check, and obtaining money thereon, and caused him to be imprisoned and deprived of his liberty, and that said accusation was false and known by defendants to *Page 522 be false and "was maliciously done without probable cause."
The case was tried as though the action was one known at common law as malicious prosecution. The principal error complained of, and the only one we think it necessary to consider at length in this opinion, grows out of the fact that the trial court, in the charge to the jury, treated and designated it as a malicious prosecution case instead of a false imprisonment case.
Of course, since forms of actions were abolished by the Code, it is of little importance what the court called this cause of action provided the charge of the court correctly stated the law applicable to the facts alleged in the pleadings and supported by evidence at the trial.
So tested, the action was what was known at common law as an action for false imprisonment; there was no judicial proceeding or prosecution, malicious or otherwise, but there was a false imprisonment. Although the plaintiff alleged want of probable cause and malice, he was not required to prove either in order to establish a right to recover.
The specific error complained of is that the court charged that "if probable cause is not shown and proved, the jury will, in that instance, be warranted in finding that malice was present," and, in another part of the charge, that:
"In an award of damages for a wrongful act of malicious prosecution, the jury may in its judgment include damages other than compensatory, classed as exemplary, as an example to others. In making such an award of damages in a case involving the elements of malice or insult, the jury may, if *Page 523 in its judgment it so decides, make an award of exemplary or punitive damages in addition to the damages which are merely compensatory, and in such case the jury may include a reasonable counsel fee in your estimate of damages."
It is claimed that as the action was for false imprisonment, in which malice was not a necessary element, and was important only as a predicate for exemplary damages, this charge was erroneous, in that it permitted the jury to imply malice from want of probable cause and to award exemplary damages, although there was no actual malice or ill will on the part of the plaintiffs in error.
We do not think such claim is justified when the charge is taken as a whole and considered in connection with the evidence and the manner in which the case was tried. The court was not requested to charge differently, or to in any way modify the charge. The case being clearly one for false imprisonment and the defendants having specifically admitted that they accused plaintiff of "making, issuing, and using a forged check and obtaining money thereon," and that plaintiff was imprisoned, and that no affidavit was filed, nor warrant issued, they were liable unless they proved that the circumstances were such that a reasonable person acting without prejudice would have fairly suspected that the plaintiff was the one who committed the crime; in other words, the burden of proving probable cause was on the defendants. They pleaded probable cause and good faith; that was a defense and their only defense, but the court relieved them of that burden and charged the jury that plaintiff could not recover unless he proved a want of probable cause on the part of *Page 524 defendants, and, not only that, but the court charged also that the plaintiff could not recover unless he proved malice on the part of the defendants. And in connection with this unnecessary burden which the court placed upon the plaintiff, the court charged that malice might be inferred from proof of want of probable cause — that is, malice necessary to establish a case of malicious prosecution. Plainly, that is what the court referred to and what the jury would understand. If defendants then thought that such reference to malice in the charge might be construed as applying to the question of exemplary damages, they should have called the court's attention to it and requested a specific charge that malice inferred from want of probable cause would not authorize an award of exemplary damages.
Moreover we find from the record in this case that the evidence established that wanton and reckless invasion of the rights of another which authorized a jury to award exemplary damages. Before defendant in error was locked up in jail, the developments indicated that plaintiffs in error were mistaken and that the defendant in error was not the one who passed the check, but plaintiffs in error insisted that the officers take the defendant in error to jail and promised to file the necessary affidavit, which they afterwards declined to do. The defendant in error was a neighbor and known to plaintiffs in error, a man of good reputation and standing; he protested his innocence and submitted to a test suggested by plaintiffs in error, that of trying on certain shoes; and the situation was then such that the jury might well have found that to proceed and have *Page 525 the defendant in error placed in jail was a wanton and reckless disregard of the rights of defendant in error. There are other facts and circumstances shown in the record supporting such conclusion, so that it is evident that, if the jurors allowed exemplary damage, it was not based upon malice "implied" from the lack of probable cause.
The reference to implied malice in one part of the charge was unfortunate, but the part of the charge referring to exemplary damages was, in the absence of any request, a correct statement of the law. Roberts v. Mason, 10 Ohio St. 278.
Actual malice, in the sense of ill will or evil design, is not the only predicate for the allowance of exemplary damages. Where A is purposely depriving B of his liberty and having him imprisoned without legal proceedings, acts wantonly and without probable cause and in reckless disregard of the rights of B, and B is released because of A's failure to institute legal proceedings, the jury may award exemplary damages, although A had no "actual" malice. Hayner v. Cowden, 27 Ohio St. 292, 22 Am.Rep., 303; Houran v. Whitney, 20 C.C. (N.S.), 489, 24 C.D., 523;Royal Furniture Co. v. Weist, 23 C.C. (N.S.), 425, 34 C.D., 327;Kelley v. Great Northern Ry., 142 Minn. 492, 171 N.W. 276;Stevens v. O'Neill, 51 A.D. 364, 64 N.Y.S., 663.
Complaint is also made because the trial court permitted the defendant in error to introduce evidence as to his good reputation in the community, where he and the plaintiffs in error lived, it being contended that defendant in error did not claim in his petition any damages for injury to his reputation, *Page 526 and that this was one of the cases where general character was not involved in the issue.
We hold that the trial court did not commit any prejudicial error in reference to this matter. We think that under the circumstances of this case this evidence was admissible on the question of probable cause, the evidence showing that one of the plaintiffs in error knew the defendant in error, that they were each engaged in business in the same vicinity and were customers of one another, and each knew the other lived in the community, and, when all the circumstances are considered, we think it is clear that the defendant in error had made out a prima facie case charging the plaintiffs in error with a knowledge of his good reputation at the time the acts complained of as wrongful were committed by the plaintiffs in error. Melanowski v. Judy,102 Ohio St. 153, 131 N.E. 360.
But it is further contended that if this evidence was competent on the question of whether or not plaintiffs in error had probable cause for causing the imprisonment of defendant in error, it was not competent on the question of damages.
Here, again, such question is not raised by the record because the court was not asked to instruct the jury to limit the consideration of such evidence to the question of probable cause. The matter was not in any manner called to the attention of the court, and we do not think the situation was such that it was the duty of the court, at the time the evidence was admitted, to admonish the jury that the evidence was being received for a particular purpose and should not be considered for any other purpose. *Page 527
We do not find any prejudicial error in the other complaints that are made as to the admission of evidence, nor in those made in criticism of the charge.
It is also urged that the judgment was excessive. By the very nature of the wrong done the damage which the defendant in error should recover was incapable of exact measurement, and was, of necessity, largely in the discretion of the jury. It is impossible to ascertain in money the exact equivalent for the injury that was done the defendant in error. And then, too, the wrong done was wanton and without just excuse, and, under such circumstances, the extent of the jury's discretion is even wider than in the case of merely compensatory damages. We do not find this verdict excessive.
Judgment affirmed.
PARDEE, P.J., and FUNK, J., concur.
Judges of the Ninth Appellate District sitting in place of Judges ALLREAD, FERNEDING and KUNKLE, of the Second Appellate District. *Page 528