Vol. I.] MOREY U. NEW YORK LIFE INS. Co. [No. 4. is claimed that, being the agent, it was a fraud in him to make such a promise, as it misled the assured, and induced him to take the policy which he would not otherwise have done; but it is apparent from the proof that he did not make the promise as agent, or pretend to bind the defendant, but only made it as a friend and relative of John B. Morey; it was a mere personal promise, for the fulfilment of which he could only look to him who made it; Morey, the agent for this purpose, was more the agent for the assured than the insurer; so that upon the facts, this want of notice cannot avail the plaintiff. The remaining question is, did the failure to place in the hands of the agent at Canton the premium receipt on or before the time of payment, waive and excuse payment on that day? The conditions of the policy require payment at defendant's office in the city of New York, unless a different place is stipulated for in writing between the parties, or to an agent having for delivery a printed receipt, signed by the president of the company, or other officer mentioned. The advance payment was made to the local agent in Canton upon the delivery of the policy. The fact that the premium receipt for the second payment was forwarded to the local agent in Canton shows that that was the place where payment was expected to be made, and where it doubtless would have been made but for the death of said John B. Such evidently being the understanding between the parties, I am satisfied that had the tender of the amount due been made to the local agent at Canton on the day and within the time stipulated, the forfeiture claim could not have been maintained; but, unfortunately for the plaintiff, this was not done. I cannot accept the position as correct, that nothing can avoid the forfeiture but an agreement of waiver of payment made by the principal officers of the company in New York, or by actual payment or tender of payment there, or to a local or other agent having the premium receipt, signed as provided for. Where, by an express agreement or by the course of business between the parties, it is understood that payment will be made to the local agent, and no notice has been given in sufficient time that payment shall be made at the office and principal place of business stipulated in the contract, a tender of payment to the local agent, whether received by him or not, will excuse the policy holder and prevent the forfeiture. To hold otherwise would open the door to the grossest frauds upon the part of these foreign insurance companies. The company, when its coffers have been in part filled with the hard earnings of the policy holders, could withhold the receipt from him who had been depriving himself and family of the comforts, if not the necessaries of life for years, to provide, as he supposed, something for his helpless family when he shall have been laid in the grave; and when he comes, perhaps, on the last moment in which payment can be made, he is for the first time informed that he must pay in New York, or all he has paid will be forfeited a thing which it is impossible for him to do, and which would be gross injustice. It is said, and is in proof, that these receipts are furnished to the local agents through the general agency for the state, and if the agents' accounts at the principal office are not satisfactory, the receipts are withheld. The answer to this is, that it is a thing about which the policy holder is not presumed to know anything; it surely cannot be held that PALMER V. RICHARDSON. Vol. I.] [No. 4. he is responsible, or to be affected by dereliction in duty of the company's agent, over whom he has no sort of control. John B. Morey is not presumed to have known of the absence of the receipt, and its absence could have had no influence upon his unfortunate neglect; and however much it is to be regretted that the widow and orphan shall be deprived of the maintenance and support a kind husband and father intended for them, the rules of law must be applied to the facts, which being done, necessarily results in favor of the defendant. Judgment for defendant. 1. In order for the plaintiff to recover in an action for malicious prosecution, the burden of proof is upon him, to show clearly by a preponderance of evidence that the defendant did not have probable cause to institute the criminal prosecution against him. Good faith on the part of the prosecutor is always a good defence, unless it appear that he closed his eyes to facts around him which would have been sufficient to convince a reasonably cautious man that no crime in fact had been committed by the person about to be prosecuted. 2. The fact that the defendant before instituting a prosecution alleged to be malicious and without probable cause, had honestly laid all the facts before counsel and followed his advice, is pregnant evidence to show the existence of probable cause. CRAIG, J. This was an action on the case brought by Michael J. Richardson against Eugene P. Palmer, in the circuit court of Cook County, to recover for an alleged malicious prosecution, instituted by the latter against the former. The cause was tried by a jury and a verdict rendered in favor of the plaintiff for $1,000. A motion for a new trial was made and overruled, and judgment entered upon the verdict, from which the defendant appealed to this court. A reversal of the judgment is asked mainly on the ground that the verdict is contrary to the weight of the evidence. It seems to be difficult for a jury to comprehend that an innocent person may be arrested for a criminal offence, and, at the same time, the law afford no redress against the person who caused the arrest and prosecution, and yet experience teaches us this is not an uncommon occurrence. While it is a great hardship that an innocent person should be prosecuted for a criminal offence, yet it is far better for the preservation of peace, order, and the well-being of society, that this should occasionally occur, than that the citizen should be deterred from instituting criminal prosecutions for a violation of the laws of the land. In order for the plaintiff to recover in this case, the burden of proof was upon him to show clearly, by a preponderance of evidence, that the de PALMER V. RICHARDSON. [No. 4. Vol. I.] fendant did not have probable cause to institute the criminal prosecution against him. Ross et al. v. Innis, 35 Ill. 487. Good faith on the part of the prosecutor is always a good defence, unless it appears that he closes his eyes to facts around him, which are sufficient to convince a reasonably cautious man that no crime in fact had been committed by the person about to be prosecuted. Probable cause has been defined by this court to be a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offence charged. Richey v. McBean, 17 Îll. 65; Jacks v. Stimpson, 13 Ill. 701; Ross et al. v. Innis, 35 Ill. 505; Collins et al. v. Hayte, 50 Ill. 353. The main question for consideration in this case then is, Did the plaintiff, by his proof, tested by the correct rules of law that govern this class of cases, make a case which justified the jury in rendering the verdict they did? Upon a careful examination of the facts in this case, as shown by the record, we have arrived at the conclusion that the verdict is manifestly contrary to the weight of the evidence, and that the jury did not comprehend the law as applicable to the evidence in the case. The prosecution instituted by the defendant, Palmer, which the jury found to be malicious and without probable cause, so far as it is material to state them, grew out of these facts: About 4 o'clock on the morning of the fire in Chicago, October 9, 1871, the plaintiff and one Carragher, with a horse and wagon, went to the store of Hotchkin, Palmer & Co., which was about to be burned, and loaded their wagon with valuable goods, worth from $1,500 to $2,000, and started to the place of business of plaintiff. As the wagon started, Palmer's attention was called to it by his clerk, and he followed and got upon the wagon; the three men had not proceeded far when a controversy arose between Palmer and Richardson in regard to where the goods should be taken and the amount of compensation Richardson should receive for hauling the goods; angry words were exchanged, and the contest was excited. Palmer finally called upon a man who was passing for assistance. After this, Richardson took the goods to a place of safety where Palmer wanted them taken; the goods were unloaded; Richardson kept back a piece of beaver-cloth as pay for hauling, which he insisted Palmer agreed he should have. Palmer refused to let him have this, and the evidence of Palmer and Carragher shows that Richardson took off this piece of goods by force. The evidence shows that about the time these goods were loaded in the wagon by Richardson and Carragher, several lots were stolen as they were carried out of the store and piled up; that Palmer was not acquainted with Richardson. Palmer and his clerk testify that Richardson had no authority to load his wagon with goods. Ludlow, the clerk, swears that he had entire charge of taking care of and saving the goods, and that he gave no authority to Richardson to take or haul goods; that he had no knowledge of Richardson until about the time the wagon started to drive off with the load; he saw it and directed Palmer's attention to the wagon, and as it moved off Palmer got upon it. That plaintiff and Carragher attempted PALMER V. RICHARDSON. Vol. I.] [No. 4. to haul off this load of goods in defiance of Palmer, is sworn to by Palmer, and he seems to be corroborated by this fact. He testifies that on the road he had difficulty with Richardson and called for assistance, and a man passing by interfered. Richardson and Carragher in their evidence, both testify that Palmer did call for assistance. There is another very suspicious fact in the case. Palmer testifies that after the goods were unloaded and the two men got in the wagon to start off, he discovered several shawls under the cushion that the men were sitting upon, and that he got in the wagon and forced them off the seat, and got the shawls. Plaintiff and Carragher, in their evidence, concede the fact, but undertake to explain that they did not know the shawls were there. These are the leading facts in the case, and upon them, some days after Richardson took the piece of beaver-cloth, Palmer had him arrested for stealing it. When these facts are taken in connection with the further fact that Richardson was an entire stranger to Palmer, and that during this fire larceny was of common occurrence; that excitement ran high, and that law and order were, to a great extent, set at nought, can it be said that Palmer, in causing the arrest of the plaintiff, acted without probable cause and with malice? We do not think the evidence justifies that conclusion. There is another fact in the case that tends to show that Palmer acted in good faith and without malice. Before he commenced the criminal prosecution, he took legal counsel of Mr. Swezey, an attorney-at-law in Chicago, who had been in the habit of doing business for him. Mr. Swezey testifies that Palmer gave him a full statement of the facts in the case; that in stating the facts he gave them as fully and fairly as he did in his evidence on the stand; and that, upon hearing the facts stated, he advised Palmer that there was sufficient ground for the arrest. It is a clear proposition of law, that if Palmer laid all the facts before his attorney with an honest view to learn if they would warrant a criminal prosecution, and was advised they would, such will go far to show probable cause. In view of all the facts we are satisfied that justice demands that this cause should be submitted to another jury. The judgment will be reversed and the cause remanded. Reversed and remanded. Vol. I.] CRISSY . HESTONVILLE, MANTUA, AND FAIRMOUNT PASS. RAILW. Co. [No. 4. SUPREME COURT OF PENNSYLVANIA. [JANUARY, 1874.] CONTRIBUTORY NEGLIGENCE. - CARE REQUIRED ON THE PART OF A CHILD WHO HAS BEEN INJURED. CRISSY v. HESTONVILLE, MANTUA, AND FAIRMOUNT PASSENGER RAILWAY COMPANY. Where negligence is concurrent, a child will not be held to the exercise of the same degree of care and discretion as an adult. MERCUR, J. The first assignment of error is not according to the rules. All the other assignments are to the charge of the court, and will be considered together. As a general rule a question of negligence must be submitted to the jury. It should be where there is any substantial doubt as to the facts, or to the inferences to be drawn from them. Pennsylvania R. R. Co. v. Barnett, 9 P. F. Smith, 259; Johnson v. Bruner, 11 P. F. Smith, 58. There is no absolute rule as to what constitutes negligence. It is dependent upon the particular circumstances of the case. Where the measure of duty is not unvarying; where a higher degree of care is demanded under some circumstances than under others; where both the duty and the extent of the performance are to be ascertained as facts, a jury alone can determine what is negligence, and whether it has been proven. Mc Cully v. Clarke et al. 4 Wr. 406; Pennsylvania Canal Co. v. Bently, 16 P. F. Smith, 30. Where the measure of duty is ordinary and reasonable care, it is always a question for the jury. Westchester & Philadelphia R. R. Co. v. McElwee, 17 P. F. Smith, 311. Where negligence is concurrent, a child will not be held to the exercise of the same degree of care and discretion as an adult. Rauch v. Lloyd et al. 7 Casey, 358; Pennsylvania R. R. Co. v. Kelly, Ib. 372; Smith v. O'Connor, 12 Wright, 218; Õakland Railway Co. v. Fielding, Ib. 320; Glassey v. H., M. & F. Passenger R. R. Co. 7 P. F. Smith, 172; Kay v. Pennsylvania R. R. Co. 15 P. F. Smith, 269. Now let us apply the law to the facts in this case. The plaintiff was a child of the age of thirteen years. He and his companion, a boy of the same age, signalled the driver, as the defendant's car crossed Thirteenth Street. The car was slackened to receive them; they stood there by the side of the driver all the way out to Forty-first Street and Lancaster Avenue. No objection was made by either the driver or conductor to their riding there; neither of them requested the plaintiff to step inside of the car; the conductor came to him and collected his fare; at Forty-first Street and Lancaster Avenue, the plaintiff said to his companion in a voice sufficiently loud for the driver to hear, "I am going to get off here." The speed of the car was thereupon slackened; the plaintiff took hold of the dasher with one hand, and the iron on the car with the other, and stepped off; the car continued in motion; the plaintiff's foot slipped; he retained his hold to save himself; he was dragged two or three yards, and until |