dissenting:
To my mind it is clear that the declaration in this case charg*463es false imprisonment, and not malicious prosecution. On that theory it was tried in the lower court and argued by both parties in this court. In none of the briefs is there any suggestion that the case asserted was one for malicious prosecution. It is, then, by the law of false imprisonment that it must be judged. In such a case the plaintiff is not required to prove malice or want of probable cause. The burden of establishing probable cause is on the defendant. 5 Enc. Ev. 733. But the majority of the court rules that because the plaintiff alleged malice and want of probable cause, although it was unnecessary for him to do so, he must prove them. This, I believe, is not in harmony with either reason or authority. “The demand and refusal diarged in the declaration in this case,” says the court of appeals of Maryland (Ferguson v. Tucker, 2 Harr. & G. 182), “being the unnecessary averment of the breach or infringement of ihe contract stated, need not be proved, and may be rejected as surplusage.” Speaking of unnecessary allegations in a declaration, Judge Sanborn of the circuit court of appeals for the eighth circuit said: “If the cause is well stated without them,— if their removal from the complaint would still leave the averments sufficient to constitute a cause of action, — they are mere surplusage, and may be disregarded.” Geer v. Ouray County, 38 C. C. A. 250, 97 Fed. 442. See also 1 Estee, Pl. & Pr. 4th ed. § 191; Bliss, Code Pl. § 215; Lake County v. Keene Five-Cents Sav. Bank, 47 C. C. A. 464, 108 Fed. 515; Grubb v. Mahoning Nav. Co. 14 Pa. 302; Billingham v. Bryan, 10 Iowa, 317; Nixon v. Reeves, 65 Minn. 159, 33 L.R.A. 506, 67 N. W. 989. The only case cited by the majority in support of their conclusion is Rich v. McInerny, 103 Ala. 345, 49 Am. St. Rep. 32, 15 So. 663. It is largely based on a section of the Alabama Code prescribing the form of a complaint in a false imprisonment action.
The majority review the testimony upon the question of probable cause and reach the conclusion that it “constituted reas nisi ble ground for the suspicion that the plaintiff was implicated in the commission of a felony” and that “the defendants were justified in accepting and acting upon” the statement of Tyler. *464There is not a line or word in the assignments of error which invites the court to do this. The point was not argued in the brief of either party, and the appellee has never been given an opportunity to be heard upon it in this court. “I object in all cases,” said Mr. Justice Daniels of the Supreme Court of the United States, “to the decision of questions not strictly in point or which have not been regularly discussed, and not only maturely, but necessarily, considered. If there is any one source of embarrassment more prolific than all others, it is this very practice.”
The court did not err in refusing to give the third instruction requested by the defendants, because all its elements were embodied in the fourth instruction requested by them and given by the court. District of Columbia v. Gray, 6 App. D. C. 314; Wallace v. United States, 18 App. D. C. 152; Finney v. District of Columbia, 47 App. D. C. 48, L.R.A.1918D, 1103. But it is urged that in addition to those elements the fourth instruction imposed upon the defendants the burden of showing that they acted “without malice,” and that it was immaterial whether or not they had malice if there was probable cause for their action. It may be admitted as a sound proposition of law that if they had probable cause they would be justified even though they were moved by malice, and that this instruction, by placing upon them the obligation to show that they were without malice, imposed too great a burden; none the less defendants arc in no position to complain, for the obvious reason that they requested the court to give the instruction with those words in it. If there is any rule of practice that is well settled, it is that a party may not predicate error upon the giving of an instruction which he himself requested.
The majority find that prejudicial error was committed by the refusal of the court below to permit the witness Edwards to answer the question, “Did Mr. Louis Oarroll ask you to place a charge of larceny against this plaintiff?” No offer of proof was made, so we do not know what the defendants expected to prove by the question. To predicate a reversal upon the ruling, we must assume that the answer would be in the negative, for *465otherwise it would not be favorable to defendants; but we are not permitted to indulge in a presumption in order that we may overturn a judgment. Rather, it is our duty to assume that every action of the lower court is right until the contrary appears. Boley v. Griswold, 20 Wall. 486, 488, 22 L. ed. 375; 376; Cliquot's Champagne, 3 Wall. 114, 140, 18 L. ed. 116, 119; Sturges v. Carter, 114 U. S. 511, 522, 29 L. ed. 240, 244, 5 Sup. Ct. Rep. 1014; Bear Lake & River Waterworks & Irrig. Co. v. Garland, 164 U. S. 1, 25, 41 L. ed. 327, 336, 17 Sup. Ct. Rep. 7. Furthermore, Edwards had said but a moment before that Carroll requested him “to order the arrest of the plaintiff as a party connected with the theft of his goods.” If we assume that Edward’s answer to the question under consideration would be in the negative, it would have no tendency to disprove his first- statement, because there is a distinction between a request to order the arrest of a person and a request to place a charge against him. Yet one would indicate as much as the other responsibility on Carroll’s part.
Of course, where a party who causes the arrest of another has probable cause for believing him guilty, he merits, and should receive, the protection of the court, but in the case at bar the question at issue is as to whether or not the defendants had such cause. If they had not, they are not entitled to the protection of the court; and two juries have found that they were without probable cause for their action. Parry’s rights are just as sacred as those of the defendants and should be protected with the same jealous care.
Believing that there is no error in the record and that the case should be affirmed, I dissent.