most universally provided by statute that, as to certain trespasses, -conspicuously, where ornamental shrubs and trees are injured,— double or treble damages may be awarded.292 Similar provisions are common with respect to killing stock.293 The legislature has the power to provide for the recovery of a certain sum, as punitive damages, where an injury is caused by an illegal act, though the same illegal act may subject the offender to a criminal prosecution.29* Where a general verdict is returned under such a statute, the presumption is that it includes all the damages to which the plaintiff is entitled.295 However, it has been held that the better practice is for the jury to find for single damages in terms, and for the court, on motion, to double or treble them, as the case may require.296 Such statutes are penal. Therefore they are strictly con

strued.2 297

Damages for Death by Wrongful Act.

Where damages are awarded for death by wrongful act, ordinarily both the cause of action and the extent of recovery are created and determined by statute.298 The ordinary statutory extent of recovery is the reasonable expectation of pecuniary benefit of the statutory beneficiaries.299 It is commonly (but not invariably) provided

292 Yocum v. Zahner, 162 Pa. St. 468, 29 Atl. 778; Brown v. State, 100 Ala. 92, 14 South. 761; Humes v. Proctor, 73 Hun, 265, 26 N. Y. Supp. 315. Berg v. Baldwin, 31 Minn. 541, 18 N. W 821; Potulni v. Saunders, 37 Minn. 517, 35 N. W. 319.

293 Spealman v. Missouri Pac. R. Co., 71 Mo. 434; Scott v. St. Louis, I. M. & S. R. Co., 75 Mo. 136; Henderson v. Wabash R. Co., 81 Mo. 605.

294 State v. Schoonover, 135 Ind. 526, 35 N. E. 119. Cf. State v. Stevens, 103 Ind. 55, 2 N. E. 214. But see dissenting opinion of Judge Elliott.

295 Tait v. Thomas, 22 Minn. 537; Livingston v. Platner, 1 Cow. (N. Y.) 175. 296 Cross v. U. S., Gall. 26, Fed. Cas. No. 3,434; 1 Sedg. Dam. (7th Ed.) 588; 1 Suth. Dam. 826; Royse v. May, 93 Pa. St. 454; Chipman v. Emeric, 5 Cal. 239; Palmer v. York Bank, 18 Me. 166; Shrewsbury v. Bawtlitz, 57 Mo. 414; Osburn v. Lovell, 36 Mich. 246. It would seem that, to entitle plaintiff to double or treble damages, the complaint must distinctly refer to the statute. Livingston v. Platner, supra. And see Strange v. Powell, 15 Ala. 452. 297 Sedg. St. & Const. Law, 284.

298 Ante, p. 330, "Death by Wrongful Act."

299 Kelley v. Central R. Co., 48 Fed. 663; Boden v. Demwolf, 56 Fed. 846. Loss of companionship or society, e. g. of a husband, is not an element of damage. Schaub v. Railroad Co., 108 Mo. 74, 16 S. W. 924; Atchison, T. &

that the recovery shall, under no circumstance, exceed a stated amount.300 Of such a statute, Judge Parker said in Dwyer v. Railway Co.: 301 "When we have a statute so barbaric, and almost brutal, as to prohibit the consideration by the jury of that terrible agony, grief, and suffering of the faithful wife and her children for their loss by death of such a husband and father as Dwyer, we should award fairly compensatory damages. The award should be made with a reasonably liberal spirit. Under this statute, man is considered only an animal,-a beast of burden, like a horse or a mule, with nothing to be considered, when he is killed by negligence, but his earning capacity. Then, under such a condition, when his earning power is fairly shown, and manifestly the jury have not gone beyond it, in giving damages to his wife and children, we cannot infer that they have done that which is shocking to its sense of justice, or that they acted from passion or prejudice."

S. F. R. Co. v. Wilson, 4 U. S. App. 25, 1 C. C. A. 25, 48 Fed. 57. But see Harkins v. Car Co., 52 Fed. 724. Nor can damages be given for the pain and suffering of deceased, nor the wounded feelings or grief of his relatives. Kelley v. Central R. Co., 48 Fed. 663; Cheatham v. Red River Line, 56 Fed. 248; The Corsair, 145 U. S. 335, 12 Sup. Ct. 949.

300 Cooley, Torts, 319; 5 Am. & Eng. Enc. Law, 128, note 2.

301 52 Fed. 87-90. As in California. Code Civ. Proc. Cal. § 377; In re Humboldt Lumber Manuf'rs' Ass'n, 60 Fed. 428. In Colorado a parent may recover damages for the death of a child, although the latter never contributed to the parent's support. Mollie Gibson Consolidated Mining & Milling Co. v. Sharp (Colo. App.) 38 Pac. 850. The limit in many of the state statutes, as well as that of congress, in such cases should have weight in fixing the amount of damages to be recovered. Cheatham v. Red River Line, 56 Fed. 248–250. In this case Billings, J., said: "There are no tables of productive lives. It is human experience that some lives are almost worthless to those dependent on them, and some which are and which promise to be support and comfort come to produce nothing but shame and sorrow. In fixing the value of human life, and in trying to be just alike to the injured and the injurer, no chimerical estimate should be made, but rather should there be a resort to sober judgment." Limiting jury to certain mathematical calculations is erroneous. St. Louis, I. M. & S. Ry. Co. v. Needham, 10 U. S. App. 339, 3 C. C. A. 129, 52 Fed. 371. In Harkins v. Car Co., 52 Fed. 724, it was held that the wife's maximum of recovery was not necessarily limited to a sum which would produce an annual income equal to one-half his annual earnings. Accordingly, a verdict of $7,000 for the death of a day laborer was sustained.

Civil Damage Acts.

In many states it is expressly enacted that liquor dealers may be held liable in civil damages for harm caused by the sale of intoxicants.3 302

302 Black, Intox. Liq. c. 13; Cooley, Torts, pp. 283-307. Among the more recent illustrative cases on this subject are State v. Cox (Kan. App.) 40 Pac. 816; Cornelius v. Hultman (Neb.) 62 N. W. 891; Franklin v. Frey (Mich.) 63 N. W. 970; Ford v. Cheever, Id. 975; Plucknett v. Tippey (Neb.) 63 N. W. 845.

141. False imprisonment is the unlawful and total restraint of the liberty of the person.

Legality of Restraint.

Law

The restraint must be illegal, but need not be malicious. ful authority to restrain the freedom of locomotion of another person is a full defense to an action for false imprisonment.1 At common law, the arrest of a privileged person was not the basis for an action of false imprisonment, because such arrest is voidable only, and not void. It could not constitute a trespass, and so was unavailable and insufficient as a foundation for the action.2 The arrest of

1 Diehl v. Friester, 37 Ohio St. 473. Post, p. 424, "Legal Authority as Justification." Where a firm holds property in trust, a misappropriation by one partner, with the knowledge and assent of the other, is a misappropriation by the latter, so far as the right to arrest him in a civil action for a breach of the trust is concerned. Boykin v. Maddrey, 114 N. C. 89, 19 S. E. 106. Patteson, J., in Bird v. Jones, 7 Adol. & E. (N. S.) 742–752, 7 Q. B. 742. And see Bauer v. Clay, 8 Kan. 580, and Come v. Knowles, 17 Kan. 440.

2 Deo v. Van Valkenburgh, 5 Hill, 242; Kreiser v. Scofield, 10 Misc. Rep. 350, 31 N. Y. Supp. 23; Smith v. Jones, 76 Me. 138; 7 Am. & Eng. Enc. Law, 694, and notes; 3 Lawson, Rights, Rem. & Prac. 1067, and note; Cooley, Const. Lim. (5th Ed.) 162, note.

LAW OF TORTS-27

3

the person may have been entirely proper, but subsequent detention, as for an unreasonable time, or refusal to accept any or reasonable bail, may constitute false imprisonment. At common law, trespass, not case, lay for false imprisonment. Accordingly, liability proceeded, not on the theory of evil motive or of negligence, but of acting at peril. Therefore, to entitle the plaintiff to recover, it is not necessary for him to allege or prove either malice or want of probable cause." Malice is material only so far as the question of damage is concerned. It is immaterial whether the

detention be accomplished with or without legal process.

8

3 Manning v. Mitchell, 73 Ga. 660; Ocean Steamship Co. v. Williams, 69 Ga. 251; Gibbs v. Randlett, 58 N. H. 407. But it is not an actionable trespass for a sheriff to arrest the accused on a warrant procured by defendant in one county, take him into a second for identification, and finally into a third,— his own county. Knight v. International & G. N. Ry. Co., 9 C. C. A. 376, 61 Fed. 87. Cf. Kent v. Miles, 65 Vt. 582, 27 Atl. 194.

4 1 Chit. Pl. (14th Am. Ed.) p. 185; Withers v. Henley, Cro. Jac. 379; Maher v. Ashmead, 30 Pa. St. 344; Bebee v. Steel, 2 Vt. 314; Kent v. Miles, 65 Vt. 582, 27 Atl. 194; Knight v. International & G. N. Ry. Co., 9 C. C. A. 376, 61 Fed. 87; Castro v. De Uriarte, 12 Fed. 250; Holly v. Carson, 39 Ala. 345; Platt v. Niles, 1 Edm. Sel. Cas. (N. Y.) 230; Price v. Graham, 3 Jones (N. C.) 545. In Michigan, trespass on the case lies for false imprisonment (by statute), and the two may be joined in one action. Moore v. Thompson, 92 Mich. 498, 52 N. W. 1000. And see Barhydt v. Valk, 12 Wend. 145; Nebenzahl v. Townsend, 61 How. Prac. 353.

5 State v. Hunter, 106 N. C. 796, 11 S. W. 366; Landrum v. Wells (Tex. Civ. App.) 26 S. W. 1001.

• Cunningham v. East River Electric Light Co. (Super. N. Y.) 17 N. Y. Supp. 372; King v. Johnston, 81 Wis. 578, 51 N. W. 1011; Rich v. McInery (Ala.) 15 South. 663; Boaz v. Tate, 43 Ind. 60; Akin v. Newell, 32 Ark. 605; Boeger v. Langenberg, 97 Mo. 390, 11 S. W. 223; Rosen v. Stein (Sup.) 7 N. Y. Supp. 368. See Smith v. Botens, 59 Hun, 617, 13 N. Y. Supp. 222; Clow v. Wright, Brayt. (Vt.) 118; Krebs v. Thomas, 12 Ill. App. 266; Neall v. Hart, 115 Pa. St. 347, 8 Atl. 628; Firestone v. Rice, 71 Mich. 377, 38 N. W. 885; Olmstead v. Doland (Sup.) 6 N. Y. Supp. 130; Mitchell v. Malone, 77 Ga. 301; Going v. Dinwiddie, 86 Cal. 633, 25 Pac. 129; Murray v. Friensberg (Sup.) 15 N. Y. Supp. 450.

7 Johnson v. Bouton, 35 Neb. 898, 53 N. W. 995; Hewitt v. Newburger, 66 Hun, 230, 20 N. Y. Supp. 913. But see Beebe v. De Baum, 8 Ark. 510; Akin v. Newell, 32 Ark. 605; Chrisman v. Carney, 33 Ark. 316; Ruffner v. Williams, 3 W. Va. 243; Frazier v. Turner, 76 Wis. 562, 45 N. W. 411.

8 Lynch v. Metropolitan El. Ry. Co., 90 N. Y. 77; Hildebrand v. McCrum, 101 Ind. 61.