2d of January, 1901, the grand jury found and mined; that he was compelled to employ returned an indictment against the same parties, counsel to defend him, etc.—and prayed damfor assaulting G. with intent to rob him, in violation of section 6821, Rev. St. 1906. The

ages in the sum of $5,000. Gaiser answered, indictment for blackmailing was quashed on the alleging: (1) That upon the transcript sent 2d day of March, 1901. On the 14th day of up from the docket of Lee Markey, justice August, 1901, H., one of the accused parties,

of the peace, of the proceedings had before commenced his action against G. to recover damages for malicious prosecution on account

him against the plaintiff, and upon the testiof the said proceedings before the justice and mony, the grand jury found and returned the court of common pleas; but the indictment two separate indictments against the plaintiff against H. and the others for assaulting G. with

and others jointly, one of which was still intent to rob him was still pending and was not disposed of until November 25, 1902.

pending when this action was commenced; Held, that the indictment for assault with that said bills were found upon the same intent to rob was a continuation of the criminal

matters and facts, identical in time and prosecution started before the justice of the peace, and the same was not legally terminated

place of occurrence. The answer denies when said action was commenced.

that the prosecution is ended. (2) The de(Syllabus by the Court.)

fendant denies all malice and pleads prob

able cause for the arrest and prosecution; Error to Circuit Court, Montgomery Coun

that he detailed all the facts to a competent

lawyer, and sought his advice, and acted upAction by one Hurleman, a minor, by his

on it in instituting the prosecution. The re next friend, Frank Ritter, against Jacob

ply denies the pendency of the prosecution Gaiser. Judgment for plaintiff was affirmed

when the action was commenced. On the isby the circuit court, and defendant brings

sues, the case was tried to a jury. At the error. Reversed.

close of the plaintiff's evidence, the defendOn the 14th day of August, 1901, the de ant, Gaiser, moved the court to direct a verfendant in error, by his next friend, Frank dict in his favor on the ground "that the Ritter, commenced an action against the proof of the plaintiff did not show that the plaintiff in error, to recover damages for prosecution for which damages was claimed malicious prosecution, in which petition it is was fully determined and ended.” The moaverred that Gaiser, on or about the 21st day tion was overruled, and the defendant exof January, A. D. 1901, falsely, maliciously, cepted. The defendant then introduced his and without reasonable or probable cause evidence, against which the plaintiff introtherefor, filed an affidavit before Lee Markey, duced evidence in rebuttal. The defendant a justice of the peace in and for Dayton excepted to the charge of the court. A vertownship, in Montgomery county, against the dict was returned for the plaintiff assessing plaintiff, charging that on or about the 2d damages. The motion for new trial was day of January, 1901, in said county, the overruled, and judgment rendereu on the verplaintiff, Hurleman, did unlawfully, know dict. On error, the circuit court affirmed ingly, maliciously, feloniously, and verbally the judgment. The case is were on error to demand of him, said Jacob Gaiser, the sum of reverse both judgments. The material facts $4,000, with menaces to do injury to the per are stated in the opinion. son of him, the said Jacob Gaiser, to wit, to

Oscar M. Gottschall, for plaintiff in error. assault, strike, and beat him with a club and

W. A. Hallanan, for defendant in error. rope, and to kill him, the said Gaiser, with intent thereby to then and there, by means PRICE, J. (after stating the facts). It of such menaces, to unlawfully, willfully, was incumbent upon the plaintiff, on the maliciously, and feloniously extort from him, trial of his action for malicious prosecution, Gaiser, said sum of money; and that he, to establish by a preponderance of the eviGaiser, caused a warrant for the arrest of dence, among other things, that the prosethe plaintiff to be issued and his arrest there

cution for which he was asking damages had on secured; that plaintiff was required to legally terminated prior to the commenceenter into recognizance for his appearance to ment of such action, and if he failed to make answer said charge; that on the 25th of Jan out the averment of his petition to that uary the case was heard by the justice, and effect he had no right to recover. The questhe plaintiff was held to answer to the court tion was fairly raised at the close of the of common pleas of that county, and he was plaintiff's evidence, by the motion of the de. required to give recognizance for his appear-fendant, Gaiser, asking the trial court to diance there, which he gave; that on the 31st

rect a verdict in his favor on the ground day of January, 1901, Gaiser appeared before that plaintiff had failed, in his evidence, to the grand jury, and there willfully, mali establish that the prosecution complained of ciously, and without probable cause testified had legally ended. The court overruled the in said cause, and furnished to the grand motion, and defendant excepted. jury certain false information against the One of the grounds assigned in the motion plaintiff, and thereby procured the indictment for new trial is that the court erred “in overof plaintiff on said charge; that on the 2d ruling the motion of defendant to instruct of March, 1901, said indictment was quashed the jury to return a verdict for the defendant and dismissed, and the plaintiff discharged, at the close of the plaintiff's testimony." The and said cause is wholly ended and deter motion for new trial containing this assign

y, The crime of committing an assault with in

ment was overruled. This ruling was com that it was found on the same testimony that plained of by Gaiser in his petition in error supported the indictment for blackmailing filed in the circuit court. The same ques which was quashed, and that it covered the tion is presented in the petition in error precise criminal transaction set out in that filed in this court, wherein it is alleged that indictment. It appears that there was but the circuit court erred in affirming the judg one encounter between the parties, and that ment of the court of common pleas, and was on the 2d of January, 1901, and that in not reversing the same. Therefore after the grand jury heard Gaiser and the our first duty is to determine the vital other evidence which he furnished, and perquestion whether the plaintiff in the trial haps on advice of the prosecuting attorney, court established by a preponderance of the the two indictments were found upon the evidence the fact that the criminal prosecu same testimony. It is not claimed that Gaiser tion complained of had terminated or ended was twice heard before the grand jury, or when he commenced his action for damages that there were two separate examinations, on account of the same. To decide this which resulted in the two indictments. The point, we are required to examine some of the petition does not allege that plaintiff was facts disclosed by the record. As shown by arrested on the indictment for assault with the petition, the substance of which appears intent to rob, and the record shows his bond in our statement of this case, the plaintiff in was fixed at $200 and that he remained at error, Gaiser, on or about the 21st day of large on such bond until the indictment was January, 1901, filed his affidavit against de dismissed on the 25th day of November, 1902. fendant in error, Frank Hurleman, and two Such being the facts as we glean them from others, charging therein that on the 2d day the record, what is the character of the secof January, 1901, in Montgomery county, Ohio, ond indictment as compared with the other? they did unlawfully, knowingly, maliciously, and verbally demand of him, said Jacob tent to rob is defined by section 6821, Rev. St. Gaiser, the sum of $4,000, with menaces to 1906: “Whoever assaults another with indo injury to his person, by assaulting, strik tent to kill or commit robbery

* * shall ing and beating him with a club and rope, be imprisoned in the penitentiary not more etc., with intent thereby then and there, by than fifteen years nor less than one year.” means of such menaces, to unlawfully, ma There is one element common to both indictliciously, and feloniously extort from him ments, namely, an unlawful attempt to obsaid sum of money. The affidavit charged the tain the property of another. In one it was accused persons with a violation of section charged, that with menaces and threats to do 6830, Rev. St. 1906; a law penalizing such bodily injury to Gaiser, the accused parties acts to extort money as blackmailing and demanded of him the sum of $4,000. In the making the same a felony. On hearing of the other it was charged in substance that the case, the examining magistrate held the ac same parties on the same day and at the cused, including Hurleman, to answer to the same place attempted to gain the same propcourt of common pleas, and recognizance erty through robbery. Both sections of the was asked and given for their appearance statutes whose violation was alleged in the before that court. The petition further al respective indictments, are found in the leges that on the 31st day of January, 1901, same title and chapter, under the title of Gaiser appeared before the grand jury, “Crimes Against the Person.” The two inand there willfully, maliciously, and with dictments had a common root. Gaiser, on out probable cause testified in said appearance before the grand jury, furnished cause and furnished to the grand jury

the facts from which both indictments sprang. certain false information against the plain The dual form of the charge was at the intiff, and thereby procured the indictment of stance, no doubt, of the counsel for the state. the plaintiff on said charge, but that on the Again, had the indictment for assault with 2d day of March, 1901, said indictment intent to rob been prosecuted to the convicwas quashed and dismissed, and plaintiff tion of Hurleman, he would have been condischarged. The foregoing is the prosecution victed for the transaction of January 2, 1901, which the petition avers was thus wholly for the occurrences of that day would have ended and determined. The printed record been marshaled to secure such conviction. shows that the petition correctly details the The action in the trial court for malicious contents of the affidavit upon which plaintiff prosecution, which we are reviewing, was and the others were arrested and bound over commenced on the 14th of August, 1901, and to the court of common pleas, and that the the indictment for assaulting Gaiser with inindictment found by the grand jury charged tent to rob, was pending until November 25, them with the same offense. But the record 1902, and, of course, the prosecution on that does not stop here. It appears that the same indictment was not legally terminated when grand jury at the same time, and we think the action was commenced. That the crimon the same testimony, found and returned inal prosecution had ended prior to the beanother indictment, styled in the record as an ginning of the civil suit for damages on acindictment for assault with intent to rob. count of the same is of vital importance. As We do not find a copy of this indictment in said by Bigelow in his work on Torts (marthe record; but we think it is entirely clear ginal page 183): “if the suit for the alleged

malicious prosecution should be permitted brought suit against Schippel for malicious before the prosecution itself is terminated, prosecution. The Supreme Court held that inconsistent judgments might be rendered - "where a criminal prosecution is commenced a judgment in favor of the plaintiff in the before a justice of the peace, and is afteraction for the prosecution, and a judgment wards dismissed, with the intention of comagainst him in that prosecution; and it is of mencing it again in the district court, and ten said that judgment against the party on the same day it is commenced in the disprosecuted would show, and that conclusively trict court, the criminal prosecution before that there was probable cause for the pros the justice of the peace cannot constitute ecution.” This statement is qualified in the the basis of an action for a malicious prosenext section, where the author says: "But, cution while the criminal prosecution is still since conviction would show that the charge pending in the district court.” In Bacon v. was not false, the prosecution could not have Towne et al. 4 Cush. (Mass.) 217, it is held been wrongful." The termination of the that "if, in an action for a malicious prosecuprosecution need not be by a verdict of ac tion in instituting proceedings before a magquittal, but may be by an authorized nolle istrate against the plaintiff on a criminal prosequi, or other form of legal discharge. charge upon which the plaintiff was bound In Newell on Malicious Prosecution, 358, the over and subsequently indicted, it appear that author says: “It is a well-settled rule of law the indictment has been withdrawn by a that, when a party is arrested and bound nolle prosequi on account of a formal defect over on a criminal charge, he must show, in therein, and that a second indictment has order to prove a discharge and a termination been returned upon the same evidence, for of the prosecution, that no bill was found the same or a substantive part of the same against him by the grand jury. The com charge, the original complaint and the proplaint in such case, being only a preliminary ceedings thereon must be considered as the step, is regarded as part of the proceedings actual cause of the second indictment.” The which are subsequently continued in the opinion of the court was rendered by Chief court to which the party is bound to answer Justice Shaw. In Bacon v. Waters et al., 2 to that which may be found against him by Allen (Mass.) 400, it was held that "if one the grand jury. But it does not follow that who is charged with larceny in a complaint the prosecution originally commenced by before a magistrate is held under recognicomplaint before a magistrate is terminated

zance to answer before the superior court, because the accused party is not charged by but not at the next or any regular term thereindictment with precisely the same offense of, and at the next term of that court is inas that set out in the complaint. If on the dicted by the grand jury, on the same evisame evidence, the grand jury present an in dence which was before the magistrate, for dictment for a different offense from that fraudulently receiving the stolen goods, and charged before the magistrate, it does not not for the larceny, and the indictment is destroy the indentity of the prosecution, but placed on file and not pleaded to, the finding only shows that different minds arrive at of the indictment is to be regarded as a condifferent conclusions from proof of the same tinuance of the same prosecution, and placfacts. The prosecution commenced against ing it on file is not a termination thereof, the party still continues, and cannot be said so as to authorize the person indicted to to be at an end until the indictment found maintain an action for malicious proseby the grand jury is finally disposed of.” cution.” The opinion of the court by Bige

This authority is precisely in point in the low, C. J., furnishes cogent reasons for the case at bar, and, if sound, controls its decis- foregoing proposition. ion. Is it sound? In Schippel V. Norton It is claimed by the defendant in error, (Kan. Sup.) 16 Pac. 804, it appears, that on that the indictment for assault with intent the 27th of December, 1879, Norton, Wag to rob was not instigated by Gaiser, because staff, and another through a mistake of it was indorsed, "Indictment found on testiboundary lines, went upon the land of Schip mony sworn and sent to the grand jury at pel and cut down and carried away one or the request of the prosecuting attorney," and more trees standing and growing thereon. therefore such indictment was not a continuImmediately thereafter Schippel consulted ance of the prosecution instituted by Gaiser the county attorney, and stated to him the

before the justice of the peace. But we facts, and the attorney advised the com think such is not the function or effect of the mencement of a criminal prosecution against indorsement. Section 7207, Rev. St. 1906, Norton and the others. Such prosecution was provides: "No indictment for a misdemeanor commenced before a justice of the peace shall be found a true bill by the grand jury of the county, on December 31, 1879, the unless the name of the prosecuting witness county attorney having charge of the same. is indorsed thereon, unless such bill is found On January 6, 1880, the county attorney dis upon testimony sworn and sent before the missed this prosecution, and on the same day grand jury at the request of the prosecuting commenced a new prosecution against the attorney, or of the foreman of the grand jury, same parties in the district court for the in which case, the fact that the bill was so same offense. Afterwards, and before the found shall be indorsed on the bill; but latter prosecution was ended, Norton it shall not apply,” etc., to indictments under

Error to Circuit Court, Cuyahoga County.

Action by one Conner against the Cleveland City Railway Company. Judgment for plaintiff. Defendant brings error. Affirmed.

Squire, Sanders & Dempsey, for plaintiff in error. Smith, Beardsley & Morgan, for de. fendant in error.

certain sections of the statute. Each of the indictments we are considering, charged a felony, and not a misdemeanor, and there was no requirement or authority for the indorsement upon the indictment. Not being authorized, it proves nothing upon the subject. Besides we have found, from the evidence introduced by the plaintiff and from the circumstances attending it, that both indictments were found upon the same evidence on the same day, and that they were a continuance of the prosecution which Gaiser instituted before the justice—all growing out of the single alleged criminal transaction on the 2d day of January, 1901. We are of the opinion, therefore, that the criminal prosecution was not ended prior to the commencing of the action under consideration, and that this appears without contradiction in the plaintiff's evidence, upon which the court should have directed a verdict in favor of defendant. The court of common pleas heard the entire case, but there was nothing offered by the defense to show that the prosecution had ended. It was a part of the answer that the prosecution was not ended prior to the filing of the petition for malicious prosecution.

These views lead us to reverse the judg. ments of the circuit and common pleas courts, and on the ground that it clearly appears that the criminal prosecution was not ended when the action for damages was commenced we render judgment for the plaintiff in error.

Judgment reversed.

SHAUCK, C. J., and SUMMERS, DAVIS, and SPEAR, JJ., concur.

DAVIS, J. The defendant in error was a passenger on a Franklin Avenue street car, which belonged to the plaintiff in error. Just before arriving at the corner of Pearl and Detroit streets he asked the conductor for a transfer to the St. Clair Street line, also owned by plaintiff in error, and received the same just as he was leaving the Franklin Avenue car at the corner of Pearl and Detroit streets. It was 7:30 o'clock in the evening in the month of December, 1900. By mistake the conductor gave to the defendant in error a transfer to the Woodland Avenue line, also owned by plaintiff in error, instead of a transfer to the St. Clair Street line. The defendant in error got on the St. Clair Street car at the corner of Pearl and Detroit streets, as he had intended, and he claims that he did not know of the mistake in the transfer until the conductor on the St. Clair Street car refused to accept the transfer, and demanded payment of the fare, which the defendant in error refused to make. He was forcibly ejected from the car, and brought this action to recover damages for the refusal to carry him, and for ejecting him. Upon the trial of the case in the court of common pleas, the jury was instructed that if it should be found that the defendant did exercise the care in giving the transfer that it should have exercised under all the circumstances, and that the plaintiff did exercise the care that he should have exercised in receiving the transfer, and that the defendant had not been wrong in any other respect, then the verdict should be for five cents and no more; because, as was said to the jury, the only damage done to a passenger by giving him an improper transfer is to compel him to pay five cents for his subsequent transit and therefore that is the measure of his damage. The jury were also specifically instructed that when the attention of this passenger was called to the fact that the transfer did not entitle him to ride on the St. Clair Street line, it was his duty to pay for his transit; and that if he refused to pay, the company had a right to remove him from the car, using no more force than was necessary. The verdict was for the defendant company. Judgment was entered upon the verdict, which judgment was reversed by the circuit court for errors in charging the jury and in refusing to charge as requested by plaintiff. This proceeding in error is prosecuted to reverse the judgment of the circuit court, and to affirm the judgment of the court of common pleas.

It appears to have been the opinion of the court of common pleas that, because the con.


A passenger on a street railway, who has paid fare and is entitled to ride over another line belonging to the same company, and who, having asked for a transfer ticket over such other line, is given, by mistake of the conductor, a transfer which is not good over such other line, may, nevertheless, if he has exercised such care about the receiving and making use of the transfer ticket as persons of ordinary prudence are accustomed to exercise under the same or similar circumstances, lawfully insist upon being carried over such other line without further payment of fare; and if such passenger, without fault on his part, is ejected from a car for refusing to pay fare other than by such transfer ticket, he may recover damages for the tort, and cannot be restricted to damages for breach of the contract to carry him.

[Ed. Note.For cases in point, see vol. 9, Cent. Dig. Carriers, 88 1427, 1484.] 2. SAME-EVIDENCE.

A failure by the plaintiff to make a statement or explanation before he was put off the car, would not of itself defeat his right to recover; but such fact is admissible in evidence as part of the res gestæ as bearing upon the question of the plaintiff's good faith in accepting and using the erroneous transfer, and as affecting the amount of damages.

(Syllabus by the Court.)

ductor on the St. Clair Street line was strictly sons are accustomed to exercise concerning within the line of his duty as between him and that matter under the same or similar circumhis employer, therefore the plaintiff has no stances. In Railway Co. v. Reynolds, supra, cause of action against the employer for put it appeared in an agreed statement of facts ting him off the car. The premise is palpably that the plaintiff was without fault in getting correct; and the conclusion is just as clearly on the wrong train; but in this case, in the incorrect. This is not a controversy between absence of the evidence, we cannot even conthe master and the servant; nor between the jecture what the jury might have found uppassenger and the conductor; nor yet between on the issue, if the court had not practically the carrier and the passenger solely in regard directed a verdict for the defendant upon the to the act of the carrier's servants in ejecting theory which we have considered. the passenger from the car; but it is an ac There is a degree of insistence in the argution against the carrier for the wrongful and ment for the plaintiff in error, that the recnegligent act of giving the transfer, as the ord discloses a failure on the part of the proximate cause of the resulting injury, plaintiff below, to make a statement or exwhich was the refusal to carry the plaintiff planation of the facts to the conductor of the as he had the right to be carried, and putting St. Clair Street car; and that the plaintiff him off the car. Since the complaint is was thereby precluded from the right to reagainst the company itself, it can avail the cover. The bill of exceptions does not bring defendant nothing to show that one of its before us the evidence which was adduced on servants obeyed a reasonable rule of the de the trial; and .for that reason we cannot defendant in putting the plaintiff off of the de termine whether the defendant in error, plainfendant's car, when the defendant itself, tiff below, did or did not make such a statethrough the agency of another servant, creat ment. Whether or not the making of such a ed the conditions which caused him to be put statement is a necessary ingredient of the off. “Qui facit per alium facit per se.” It plaintiff's right to recover for the tort, or is as though a single individual had first whether or not the failure to make such a agreed to carry the plaintiff by the St. Clair statement would constitute a complete defense Street line and by mistake had given a ticket to the action, are questions which are not over the Woodland Avenue line, and then, without difficulty; but with the best considwhen he came to take up the ticket, taking eration which we have been able to give the advantage of his own mistake or wrong, re subject, we have not discovered any substanfused to honor it, and forcibly ejected the tial reason, nor has any been stated to us, plaintiff. The defendant, plaintiff in error for adopting the affirmative proposition inhere, is the actor throughout this transaction; volved in either question. We can conceive, although it acted through different agencies in however, that the failure by the passenger to giving and refusing to accept the transfer, explain how he came into possession of the and ejecting the plaintiff. It is, therefore, not transfer, and that he was without fault in sound reasoning to argue that this company getting on the car without a proper transfer, is not liable in tort for refusal to carry the might under some circumstances, very much plaintiff and ejecting him from the car, upon mitigate the damages; and we can conceive the theory that the conductor, who removed a condition of facts under which the making the passenger from the car under a rule of the of such an explanation by the passenger company, is personally without blame in the would even tend to enhance the damages. matter. The common pleas court therefore That is as far as we feel inclined to go; erred when it instructed the jury that when and therefore the failure to make such a the plaintiff was informed that the transfer statement or explanation, if there was any did not entitle him to ride on that car, it such failure, would not of itself justify a was his duty to pay fare, and if he did not reversal of this judgment. do so, the company had the right to remove The judgment is affirmed. him; and that if the company was guilty of no other wrong than giving the wrong trans SHAUCK, C. J., and PRICE, CREW, SUMfer the plaintiff could recover five cents, the MERS, and SPEAR, JJ., concur. fare for one trip, and no more. It would be unprofitable to review and discuss irreconcilable decisions in other jurisdictions. In every

(191 Mass 570) essential feature this case is controlled by

YOUNG V. WINKLEY. the reasoning in P., C., C. & St. L. Ry. Co. v.

WINKLEY V. YOUNG. Reynolds, 55 Ohio St. 370, 45 N. E. 712, 60

(Supreme Judicial Court of Massachusetts. EsAm. St. Rep. 706, which we see no reason to

sex. May 17, 1906.) overrule or qualify. It is conceded, however,

1. PARTNERSHIP — ACCOUNTING - FINDINGSthat in order to recover, the plaintiff must CONFLICT. be without fault in receiving and making use In a suit for a partnership accounting, the of the erroneous transfer ; and the court of

master made a finding that there was no agree

ment between the partners with reference to common pleas very properly instructed the a retainer of one of them by third persons and jury in effect that the plaintiff in receiving, followed this by a finding that there was a conexamining and using the transfer, must ex

ference between the partners shortly after the ercise such care as ordinarily prudent per

consolidation of their business, with reference to the retainer, and that from the conduct of

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