Lindquist v. Friedman's, Inc. , 366 Ill. 232 ( 1937 )

I am unable to concur in the foregoing opinion. Plaintiffs entered the store of defendants and presented a spurious five dollar bill in payment for goods received. Every essential visible element of passing counterfeit money was present and the only thing lacking was intent. Naturally, one passing a counterfeit bill would not admit that he knew it was not genuine. The facts justified the defendants in detaining plaintiffs for the purpose of making a further examination. There was probable cause present. Under the circumstances, while defendants may have been guilty of false imprisonment in so far as the intention of the plaintiffs is concerned, there certainly was, in my opinion, a total lack of malice. The plaintiffs were unknown to the defendants and there could be no reason, other than a justifiable one, in attempting to discover all the facts concerning the transaction.

An instruction was given by the court authorizing the jury to assess punitive damages. Counsel objected, in so far as he was able, before the giving of this instruction and when the court intimated that it would give the instruction, the defendants were authorized, without waiving their rights, to offer another instruction on their own behalf on this question. The question of malice is not one of fact for the jury but is a question of law for the court, and before such an instruction should be given authorizing the jury to assess punitive damages, the court first should determine as a matter of law, whether or not it is a case which authorizes the assessment of punitive damages. Eshelman v.Rawalt, 298 Ill. 192, 198; Beckwith v. Bean, 98 U.S. 266.

In my opinion the giving of the instruction on behalf of the plaintiffs referred to was error and the only damages, if any, to which the plaintiffs were entitled, would be actual damages growing out of the arrest.

Mr. JUSTICE JONES, also dissenting.