author: Wii/i/iAMS, J.

text:
    Railroad Company v. Kassen.

      Negligence — When party may recover notwithstanding his own negligence — Duty of railroad company to person who has fallen from train.

    1. It is a well settled rule of tlie law of negligence, that the plaintiff may recover, notwithstanding his own negligence exposed him to the risk of the injury of which he complains, if the defendant, after he became aware, or ought to have become aware, of the plaintiff’s danger, failed to use ordinary" care to avoid injuring him, and he was thereby injured.
    2. Where the employes of a railroad company, engaged in operating one of its trains, have notice, such as a person' of ordinary prudence would believe and act upon, that a passenger had stepped or fallen from the train while moving at a high rate of speed, onto the track, where he is exposed, in a helpless condition, to the danger of injury from another of its trains, the company owes him the duty of observing due care to prevent his being so injured, although he was guilty of negligence in so stepping or falling from the train, and that was known to the employes thereon; and in such case, the company should, in the exercise of proper care, stop the train from which the passenger fell, and remove him from the track; if that could be done without danger to the passengers or employes on the train, or notify those in charge of the train from which he was in danger of receiving injury, and cause it to be operated with a due regard for his safety, or adopt some other reasonable precaution to avoid injury to him. The omission to use such care, if injury in consequence ensue, is actionable negligence.
    3. The rule, that the negligence of the injured party, which proximately contributes to the injury, precludes him from recovering has no application where the more proximate cause of the injury is the omission of the other party, after becoming aware of the danger to which the former party is exposed, to use a proper degree of care to avoid injuring him.
    (Decided March 23, 1892.
    Error, to the Superior Court of Cincinnati.
    I. On the evening of the 23rd of October, 1883, the defendant below, ran an excursion train over its road, from Hamilton to Middletown, returning to Hamilton- about twelve o’clock that night. The distance between the two points is twelve miles, and the time occupied in running it, each way, was about thirty minutes. Joseph Kassen, who was a passenger both ways, while on the return trip, and when the train was in rapid motion, walked through the rear car, onto- the platform, and stepped or fell off, onto the railroad track, where, about two hours afterwards, he was run over by another of defendant’s trains, and, was thereby, it is claimed, killed. The action below, to recover damages for wrongfully and negligently causing his death, was brought by the administrator of his estate, against the defendant, in the superior court of Cincinnati. The petition charges, “that by reason of the negligence of the defendant and its servants, there was no light upon the platform, nor was there any barrier or guard there placed to prevent passengers falling from said platform, so that without any fault on his part he fell upon the track o'f the railroad, and was greatly and permanently injured thereby, and he was unable by his own exertion to move from the track; that the agents of the defendant in charge of the train were at once notified of the falling of Kassen from the train, but they failed and refused to stop the train or to care for the fallen passenger, but permitted him to remain' on the track where he had fallen; and that within an hour or two after Kassen had fallen upon the track, and while he yet remained there injured as aforesaid, another train, owned and controlled by the defendant, passed over the road at this place where Kassen was ljdng, and notwithstanding the notice which defendant had received, and by reason of negligence of the defendant and its agents, the said train ran over the said Kassen, and he was thereby killed.”
    These allegations of the petition, were denied by the answer. A trial of the issuesjto a jury_ having resulted in a verdict for the plaintiff, upon which judgment was rendered at special term, and afterwards affirmed in general term, the defendant prosecuted error to this court.
    The record shows, that on the trial, the plaintiff gave evidence tending'to prove, that the cars of the excursion train •on which the plaintiff’s intestate was a passenger^ were crowded with people, and that he was passing through the cars looking for a seat; that the night was dark, the door of the rear car through which he passed was open, and the platform from which he stepped or fell, was unprovided with any guard or light; that he was seen to fall upon the railroad track, immediately after which, the brakeman in that car was notified, and he was requested to stop the train; the train was not stopped, but passed' on to the -next station and finally to Hamilton; that the train could have been stopped without danger to the passengers or the train, and without any great inconvenience; that there were telegraph offices, which were open, at each of the stations where the train stopped before reaching Hamilton, and also at the latter place, where the train arrived in time to have given notice of the accident by telegraph to those in charge of any subsequent train coming from the direction of Middle-town, before leaving that place, and that no notice was given or attempted. The evidence further tended to prove, that by the fall, Kassen was rendered unconscious and disabled, but was not killed; and while lying upon the track in that condition, another train passed over the road from Middletown to Hamilton, an hour or two after he had fallen, and ran over and killed him; which train did not reach Middletown until nearly an hour after the train from which the deceased fell had arrived at Hamilton.
    At the conclusion of the evidence, and before the argument, the defendant requested, .the court to give in charge to the jury, the following instructions, which were given:
    “1. Kassen was guilty of negligence in falling or stepping off the train, and if he was killed thereby or injured so that he would have died from such injuries, your verdict must be for the-defendant.
    2. There is no evidence of negligence on the part of the persons operating the train which ran over Kassen.
    3. If Hess, (the brakeman) was not told that a man had fallen off the train, or if Hess did not hear such statement, your verdict must be for the defendant.”

      The defendant also requested the court to instruct the jury as follows:
    “4. It was Kassen’s own fault that he fell or stepped off the train, and the railroad company was under no obligation to stop the train simply for the purpose of picking him up' and carrying him as a passenger to Hamilton.” The court gave this instruction with the following modification;
    “ But if the employes running the train, or any of them,, had such notice at the time of the fall as would lead a man of ordinary average prudence to believe that by the fall Kassen was thrown unconscious or helpless upon the track, and so exposed to danger from a train following, then it was. their duty to stop their train and rescue him from such danger if such stop might have been made without danger to themselves or to the passengers of their train, and failure to discharge such duty would render the company liable if death was caused by the following train while Kassen lay unconscious or helpless on or near the track.”
    The court in its general charge, after the argument,, instructed the jury as follows:
    “I have already stated in the special charges which were given you before the argument, that the evidence in this-case shows that the young man in falling or stepping off the-car was himself nc?t acting with ordinary care, so that for the falling off the car he has no right of action against the-company.
    “Again, I have charged you that there is no evidence of negligence in the employes of the company who were running the train which ran over the man.
    “The only question left in this case, therefore, for you to-determine is, whether or not the company had notice through the employes of the train from which he fell, that the man had fallen upon the track and was there in an unconscious or helpless condition, such that .his death or injury would be likely to occur from a following train.”
    Exceptions were taken by the defendant, to the refusal of the court to give in charge the fourth instruction above set forth, without modification, and also, to the modification given by the court. These exceptions present the questions in the case.

      Ramsey, Maxwell Cf Ramsey, for plaintiff in error.
    I. If the liability of thede fendant, as declared by the court below, depends upon receipt of notice, that the deceased was lying helpless on the track exposed to danger, the notice must have been of that fact. Notice that a man has fallen off the car is not notice that he is lying on the track exposed to danger. It is a .question of the construction of the English language and for the court. The court is not at liberty to leave it to the jury to construe words against their plain meaning. There are no “surrounding circumstances” to affect the construction. The words testified to are plain and unambiguous.
    The most that can be said is that it was open to the brakeman to conjecture as to the fate of the fallen passenger. He may have been killed. He may have landed in safety-When, or from which side he fell was not- stated. A man falling from a fast moving train would naturally be thrown a considerable distance.
    The claim of the plaintiff is really this, that every time a drunken passenger negligently falls, or wilfully jumps, from a train, it devolves upon the brakeman to stop the the train, abandon the duties for which he is employed, to get off and walk back over track and bridges, it may be for miles, and in the dead of night, to see if perchance the man has added trespass to negligence. If that be the law this judgment can be sustained; otherwise, not. McClelland, Adm., v. L. N. A. & C. Ry. Co., 94 Ind., 276; Henderson v. Louisville & Nashville Railroad, 123 U. S., 61.
    II. But even if the communication to Hess can be distorted into notice, that Kassen was lying helpless upon the track, we submit that the company is nevertheless not liable.
    Kassen by his own act had ceased to be a passenger, and had become a trespasser upon the defendant’s roadway. It is immaterial that he had been a passenger. The case is the same as if he had come upon the track from an adjoining field, or fallen upon it from a crossing wagon.
    Suppose a brakeman standing looking back from the.rear platform of a moving train, should see a drunken man come from an adjoining field and lie down upon the track, or should see him fall, stupid and unconscious, from his wagon while crossing the railroad track, would the brakeman be under a legal obligation to stop the train and go back, or take any other steps to rescue the man from the danger of being run over by some subsequently passing train? And would the company be liable for his failure to do so, if the passenger should be run over by a later train, without negligence on. the part of the employes operating that train? In the case supposed, just as in the case at bar, the company would of course be liable, notwithstanding the man was a trespasser, if a later train had run over him, with notice of his presence-on the track; but the notice must have been to some one-concerned with the operation of that train, and representing-the company in that behalf, although not necessarily to an employe on the train; it would be sufficient if given to the train dispatcher, or to the track-walker.
    But the liability of the company would arise in that case because of its responsibility under the rule respondeat superior, for the wrong of an individual. That is the ground of all corporate liability in cases of tort. There is no such thing as corporate tort, in the absence of personal culpability. Whenever a corporation is guilty of tort it is because some person for whom the corporation is responsible has committed a tort, for which that person might be held individually liable. - I affirm this as a principle of universal application. Ret us apply it to the case at bar. Was any agent of the company guilty of a personal tort? If not, the essential predicate of liability by the company is wanting. Confessedly the engineer of the second train committed no tort. Did the brakeman of the first train? Congar v. C. & N. IV. Ry. Co., 24 Wis., 157.; Commonwealth v. Boston & Maine Ry. Co., 129 Mass., 500.

      Baker & Goodhue, for defendant in error.
    I. It is claimed by counsel for the railroad that the notice to Hess, who was the brakeman, was insufficient. But as there was testimony tending to show that the brakeman had notice, we submit that in the absence of a motion for a new trial the question of its sufficiency, as a matter of fact, will not be passed on by this court. But we contend it was sufficient. Notice to the brakeman was notice to the company. Railway Company v. Ranney, 37 Ohio St., 665; Railroad v. Manson, 30 Ohio St. 451.
    II. The defendant company, if as a matter of law, the brakeman’s knowledge was the company’s knowledge, knew that a man had stepped off their train upon their track from a train going at a considerable rate of speed, and, of course must be charged with the knowledge that in the ordinary course of things a fall from a train going at that rate of speed upon the track would probably stun or make unconscious or helpless a passenger so falling from a train.
    . The train stopped at two stations between that particular point and Hamilton, both of which were railroad telegraph stations, as was also Hamilton. The company took absolutely no steps either- to investigate or discover the condition of the passenger, or to render him any assistance, or to warn other trains of the probability at least of a man lying upon their track in that condition.
    If Kassen was stunned by the fall, and lay helpless upon that track and the company had knowledge oi his condition, or had such knowledge that presumably they ought to have known of his probable condition, then it was in the power of the defendant company to have averted his killing by the second train. Upon this state of facts what duty devolved upon the railroad company. Counsel for the company contend that it was purely humanitarian; we aver it was legal.
    In support of the view of counsel for the company that the court erred in refusing to give charge four, and erred in giving the same modified as indicated, four cases are cited. An examination of these cases, we think, discloses that none of them are applicable, either in point of fact or principle, to the case at bar.
   Wii/i/iAMS, J.

The instructions of the court, relieved the jury from the inquiiy, whether there was any negligent omission of duty, on the part of the railroad company, with respect to providing a light or guard for the platform of the car from which Kassen fell; and wholly exonerated the company from any blame for his fall.

The single question submitted to the determination of the jury was, whether the company, through its employes, had notice that Kassen “had fallen upon its track, and -was there in an unconscious or helpless condition, such that his death or injury would be likely to occur from a following train;” and upon that question, the jury was instructed, that if the company had such notice, its duty was to exercise due care to prevent his death or injury, and its failure to do so, would render it liable, “if death was daused by the following train, while Kassen lay unconscious or helpless on ornear the track. ”

As no motion for a new trial was made, the finding of the jury upon the issues of fact submitted to it, is not open to review.' Westfall v. Dungan, 14 Ohio St. 276; Randall v. Turner, 17 Ohio St. 262; Everett v. Sumner, 32 Ohio St. 562. But if it were, we cannot say there was no evidence to sustain the verdict. In the disposition of the case here, therefore, it must be accepted as established by the verdict, that the death of Kassen did not result from his fall, but was caused by the train which subsequently ran over his body; and also, that the defendant had due notice of Kassen’s fall, in time to have prevented his death, by the exercise of ordinary care, either by stopping the train from which he had fallen, and removing him from’ the track, or by such notice to those in charge of the following train, as would have enabled them, by proper precaution, to prevent injury from it. Assuming then, that by his own negligent act, Kassen was on the defendant’s track, in a disabled and helpless condition, liable, if not removed, to be run over and killed by a train operated by the defendant, of which, the defendant, through its employes, had such notice as a person of ordinary prudence would believe and act upon, was it under any obligation to use reasonable care to prevent the destruction of his life, which otherwise probably would, and in fact did result from the movement of one of its trains? Or, did Kassen’s own negligence, relieve the defendant from the observance of ordinary care to prevent the injury which ensued, or so contribute to it, as to deprive his representative of a right of action for the injury, death having resulted therefrom? The court properly instructed the jury, that the employes operating the train which ran over Kassen, were without fault. They had no notice that he was on the track, and were not required to anticipate his presence there. Until they discovered him, they were justified in running the train as if the track was clear; and it is not claimed that after his discovery, they omitted any precaution for his safety. If those employes had received notice of Kassen’s situation in time to have avoided the injury, it is clear that it would have been their duty to exercise due care in the management of the train, to do so, notwithstanding he was there through his own fault, which was known to them; and for their omission to use such care, the defendant would be liable. While they were ignorant of the situation, the defendant was not; and though the injury might have been easily averted, no means were employed for that purpose. The train from which Kassen fell might have been stopped, and he removed from the track. It is not contended that to have done so, would have endangered the passengers or employes on the train, or caused any considerable inconvenience. The defendant’s servants in control of the train which ran over Kassen, could have been notified by telegram at Middletown, of his exposed condition, and they, by the use of ordinary care in the operation of the train, could have saved him from the injury. Either precaution would have prevented the injury; and a reasonably prudent person, under the circumstances would, we think, have adopted one or the other. A proper appreciation of human life, would' dictate as much to a person of ordinary prudence.

It is a well settled rule of the law of negligence, that the plantiff may recover, notwithstanding his own negligence exposed him to the risk of injury, if the defendant, after he became aware, or ought to have become aware of the plain-tift’s danger, failed to use ordinary care to avoid injuring him. The danger to which Kassen was exposed, while on the railroad track, after his fall, was that of injury from a train belonging to the defendant, operated by machinery and agencies under its control, for which it was responsible, and not' from some independent cause; and, though the defendant may not have been under any obligation to use care to prevent his injury by others, it owed him the duty of observing ordinary care to avoid injuring him in the use of its own property. And in the exercise of such care, it should have stopped the train from which he had fallen, and i emoved him from the track, or notified those in charge of the train which followed it, or would first pass over that part of the road, and cause it to be run with due regard for his safety, or adopted some other reasonable precaution to avoid the injury. The omission to do so, was actionable negligence; and Kassen’s death having been caused by such negligence, as found by the jury, the defendant is liable, unless the negligence of Kassen, so contributed to his death, as to defeat the action; and we think it did not. The rule, that the negligence of the injured party which proximately contributes to the injury of which he complains, precludes him from recovering, does not apply, where, as in this case, the more proximate cause of the injury is the omission of the other party, after becoming aware of the danger to which the former party is exposed, to use a prbper degree of care to avoid injuring him. In Kerwhacker v. C. C. & C. R. R. Co., 3 Ohio St., 172, it is held, that: “When the negligence of the defendant in a suit upon such ground of action,' is the proximate cause of the injmy, but that of the plaintiff only remote, consisting of some act or omission not occurring at the time of the injury, the action is maintainable.” And such is the well settled law. The negligence of the plaintiff’s intestate, in stepping or falling from the train while moving at a high rate speed, was only the remote, and not the proximate cause of his death; the proximate cause being, the omission of the defendant to use proper care, after having become aware of the danger to which his negligent act had exposed him.

We find no error in the charge of the court or in the refusal to charge as requested.

Judgment affirmed.


source: Caselaw Access Project

author: MiNSHaul, J.

license: Public Domain

text:
    Lester v. Buel et al.

      Gambling contracts — “ Options u — “ Futures ” — “ Margins ” — When such — Particeps criminis— When parties to, are — Sections 6934a, and 4®yo, Revised Statutes, construed.

    1. A contract whereby one of the parties is to have the option to buy or sell at a future time a certain commodity, on the understanding of both that there is to be no delivery of the commodity, the party losing to pay to the other the difference in the market-price simply, is by common law, as well as by statute, in this state (§ 6934a, Revised Statutes, as adopted April 25, 1882), a “gambling contract,” or wager upon the future price of the commodity, and therefore void.
    2. Where the purchase or sale of a commodity is adopted as a mode of disguising a wager upon the market-price of the commodity at a future time, the fact that one of the parties assumes to make the purchase, or sale, as a commission merchant only, will not alter the real relation in which they stand as parties to a wager. B)ach is in law particeps criminis to the wager, and either may, as loser, recover from the other as “winner,” under the provisions of § 4270, Revised Statutes.
    (Decided March 22, 1892.)
    Error to tlie Circuit Court of Cuyahoga county.
    The action below was commenced in the common pleas March 17,1883, by J. T. Tester against E. C. Buel and John Doe (whose real name was alleged to be unknown), upon an account attached to the petition. The allegations being, that at the times stated in the account, the plaintiff bought and sold for the defendants the kind and quantities of grain, and at the prices stated therein, on which by agreement he was to receive the commissions charged. The account is as follows:
    “E. C. Buee and JohN Doe,

      In account with

    J. T. Tester & Co., Dr.

    1882.
    Dec. 19, To 5,000'bushels Year Corn at 52 . $ 2,600 00
    “ 19, To Commission . . . 12 50

      “ 21, To Cash. 37 50
    1883.
    Jan. 3, To 15,000 bushels January Corn, 49f. 7,462 50
    “ 3, To Commision ..... 37 50
    “ 5, To Cash. 500 00
    “ 9, To 15,000 bushels February Wheat, 97$ 14,681 25
    “ 9, To 5,000 bushels February Wheat, 98 4,-900 00
    “ 9, To Commission. 50 00'
    “ 12, To 10,000 bushels May Corn, 55$ . 5,550 00
    “ 12, To Commission .... 25 00
    “ 15, To 10,000 bushels May Wheat, 104f 10,475 00
    ■“ 15, To Commission .... '25 00
    “ 20, To 30,000 bushels February Wheat, 102$ 30,750 00
    “ 20, To Commission. 75 00
    “ 23, To 10,000 bushels May Wheat, 108f 10,875 00
    “ 23, To Commission .... 25 00
    “ 24, To 10,000 bushels May Wheat, 108$ 10,837 50
    “■ 24, To Commission. 25 00
    “ 31, To 50,000 bushels May Wheat, 110$ 55,187 50
    “ 31, To 15,000 bushels March- Corn, 55$ . 8,287 50
    “ 31, To 15,000 bushels May Corn, 57f . 8,662 50
    “ 31, To Commission. 200 00
    Feb. 2, To 20,000 bushels. May Wheat, 111 . 22,200 00
    “ 2, To Commission ...... 50 00
    “ 6, To 10,000 bushels May'Wheat, 111$ . 11,137 50
    " 6, To 15,000 bushels May Corn, 58$ . 8,737 50
    “ 6, To Commission.62 50
    “ 7, To 20,000 bushels March Corn, 57$ . 11,450 00
    “ 7, To 20,000 bushels May Wheat, 112$ . 22,575 00
    “ 7, To Commission..... 100 00
    “ 9, To 10,000 bushels May Wheat, . . 11,187 50
    “ 9, To Commission. 25 00
    “ 12, To 25,000 bushels May Wheat, 112$ . 28,031 25
    “ 12, To 25,000 bushels May Wheat, 112$ 28,062 50
    “ 12, To Commission ..... 125 00
    " 17, To 50,000 bushels May Wheat, 116$ 58,437 50
    “ 17, To Commission ..... 125 00
    “ 19, To 50,000 bushels May Wheat, 115$. 57,750 00
    “ 19, To Commission ..... 125 00

      “ 24, To 100,000 bushels May Wheat, 114# 114,875 00
    “ 24, To Commission .... 250 00
    $546,587 50
    1882. Cr..
    Dec. 16, By Cash ..... $ 150 00
    “ 16, By 5,000 bushels May Wheat, 99# „ 4,956 25

      “ 19, By Cash ..... 150 00
    “ 20, By 5,000 bushels Year Corn, 53 2,650 00
    “ 21, By 5,000 bushels Jan. Corn, 50# . . 2,53125
    “ 27, By 5,000 bushels May Wheat, 99f . 4,987 50
    “ 27, By Cash ..... 150 00
    1883.
    Jan. 5, By Cash ..... 150 00
    “ 5, By 10,000 bushels Jan. Corn . 5,200 0Ó
    “ 9, By Cash. 600 00
    “ 10, By 20,000 bushels Feb. Wheat, 98 . 19,600 00
    “ 12, By 10,000 bushels May Wheat, 105# 10,525 00
    “ 13, By 10,000 bushels May Corn, 56 5,600 00
    “ 16, By 20,000 bushels May Wheat, 104# . 20,950 00
    “ 17, By Cash. 300 00
    “ 17, By Cash ..... 500 00
    “ 3, By Cash ...... 300 00
    “ 19, By Cash . . . . 100,00
    “ 20, By Cash. 900,00
    " 22, By 30,000 bushels Feb. Wheat, 103# 81,050 00
    “ 23, By 10,000 bushels May Wheat, 109# 10,925 00
    ' " 24, By 30,000 bushels May Wheat, 107# 32,212 50

      “ 31, By 10,000 bushels March Corn, 55# 5,550 00
    “ 31, By 5,000 bushels March Corn, 55# 2,781 25
    “ 31, By 15,000 bushels May Corn, 57# , 8,681 25
    Feb. 2, By 20,000 bushels May Wheat, 112 22,400 00
    “ 6, By 10,000 bushels May Wheat, 112# 11.250 00
    “ 6, By 15,000 bushels May Corn, 59# 8,887 50
    " 9, By 40,000 bushels May Wheat, lllf 44,700 00
    “ 9, By 40,000 bushels May Wheat, 111# . 44,650 00
    “ 9, By 20,000 bushels March Corn, 55f. 11,150 00
    “ 17, By 25,000 bushels May Wheat, 117 29.250 00
    “ 17, By 25,000 bushels May Wheat, 116# 29,187 50

      “ 21, By 100,000 bushels May Wheat, 114J 114,500 00
    “ 21, By Cash , . ' . . . 500 00
    “ 26, By 50,000 bushels May Wheat, 118 . 56,500 00
    Jan. 31, By Cash ..... 1,075 00
    $545,550 00
    Balance . '. . . . $1,037 50
    For the difference between the debit and credit side of the account, $1,037.50, the plaintiff asked judgment.
    F. C. Buel and Charles H. Watkins (the latter being as stated, the person designated as John Doe,) filed an answer,, and, as a first defense, denied that they, or either of them, ever requested the plaintiff to buy or sell any grain for them, or agreed to pay any commissions therefor.
    As a second defense they averred that at the times said transactions are said to have taken place, the plaintiff maintained on Water street in Cleveland, Ohio, certain devices by which wagers were entered into and determined between the plaintiff and others on the future prices of grain in the market at Chicago. The wagers were made by a person, called the “customer,” depositing with the plaintiff a certain amount of money, known as a “margin.” The wager, as averred, was effected as follows: Whenever on a particular day, a “customer” deposited with the plaintiff such “margins,” and notified him of his desire “to buy” a specified quantity of grain, a price was fixed as the price of the grain on that day, on the understanding of both, that if the price ofisuch grain should thereafter advance in the grain market at Chicago, in such event the plaintiff would account to the customer and pay over, a sum equal to the advance on the entire quantity bought, less one-fourth of one per cent, of the market value; and if the price should decline, in such event, the customer would account and pay over to the plaintiff such difference, with one-fourth of one per cent, added. Again, whenever the customer made a deposit and notified the plaintiff'“to sell” for him a certain quantity of grain, a price being fixed as the price of the grain on that day, it was understood by both that, if the price of the grain should thereafter decline in the Chicago’ market, the plaintiff would-account for and paj*- over to' the defendant the difference on the entire quantity bought, less one-fourth of one per cent., or if the price should thereafter advance, that the “customer” would pay to the plaintiff such difference with a like per cent, added. And it was understood, that so long as the customer kept his deposit good, the wager should be renewed and continued; but should he fail to do so, the plaintiff might terminate it at once and demand payment; it being no part of the understanding that any grain should actually be bought, sold or held for, or on account of, the “customer.” The. plaintiff had a private wire which he employed in the management of his “ system, ” by which he reported to his “ customers, ” the fluctuations in the grain market at Chicago; and a “ticker” by which was determined the winnings and losses under the wager so arranged.
    It is then averred, that each and every transaction mentioned in the account attached to the petition, took place in-conformity to the above system, and was a wager. That it was well understood that no actual sales or purchases of grain were to be made, and that none were in fact made; the losses being adjusted on either side as determined by the future changes of grain in the Chicago market.
    By way of counter-claim, the defendants say, that upon wagers made upon the price of grain in the Chicago market, they lost and paid to the plaintiff the sum of $3,887.50, not as separate wagers, but by a continuous series from about January 3, 1883, to February 23, 1883, as a series .of bets and losses are continuous at a single game of cards; and that the sums arise out of the transactions set forth in the plaintiff’s petition; wherefore they ask judgment for that amount.
    After the overruling of certain motions to make more definite and certain, and to strike out, the plaintiff replied, denying each and every allegation of the second defense and counter-claim, except that he had an office at the city of Cleveland, and a private wire to Chicago, by which early intelligence of the grain market was obtained, and was made intelligible by a telegraphic machine in his office; and that be required and received security from bis customers against sudden and unexpected fluctuations of the market; and charged and received a commission from bis customers of one-quarter of one per cent, on all purchases and sales made through him by them.
    The case was tried to a jury, which rendered a verdict in favor of the defendants for $3,685.18. A motion for a new trial was made and overruled'and judgment entered upon the verdict. The plaintiff took a hill of exceptions setting forth all the evidence, which was signed and made a part of the record by the court. On error the judgment was affirmed by the circuit court.
    The errors relied on in this court, are in the charge of the tourt and in its refusal to charge as requested, to which reference is made in the opinion. ,

      White] Johnson & Me CasIm, for plaintiff in error.
    Assuming that the contracts made by Tester for the defendants were gambling transactions, (of which there is, however; not a scintilla of proof), the transaction would be made by section 6934a a gambling contract, and therefore void. This, however, is no more than is provided by section 4269 in relation to any other gambling contract, and ■does not in and of itself, without the help of section 4270, enable the defendants to recover from anybody the money which they have lost. This court held, as do the courts of most states in the union, and the English courts, that merely declaring a gambling contract void does not enable the loser to recover from the winner the amount which has been paid, because in such cases the doctrine that the courts would leave the parties to an illegal contract where it found them, would apply. y
    But section 6934a having declared such contracts to be gambling contracts, section 4270, probably, .enabled the defendants, proceeding in accordance with the provision of that section, to recover from the person named in that section the. money that they nray have lost by the gambling contract. It was under this section that the counter-claim was framed.
    It will be observed that this section says that if any person loses to any other person, and pays the winner, the action may be brought. Clearly the person to whom the plaintiff has lost is the “winner;” so that if the plaintiff loses to Smith, Smith is the winner within the meaning of the statute, and if the money is paid to Smith, then it is paid to the winner, and recovery may be had of Smith, because Smith is the winner, in the language of the statute. Hooker v. De Palos, 28 Ohio St., 251; Kahn v. Walton, 46 Ohio St., 195.
    Who, then, is the person to whom the loser loses? Who is the “winner,” the person who wins from the loser the money which is at stake? Is it the agent of the loser who makes for him the bet, who is entrusted by him with money to pay the winner, and who has paid the money to the winner, the order not having been countermanded, such a person in any just sense of the word the person to whom the loser has lost, the person who has won the stakes from the loser? ■
    Eet us go for a moment outside of the law of gambling, and consider what has been the rulings in cases of other contracts made illegal by statute, or which are malum in se. Wharton on Agency, sec., 250; Smiths. Bromley, Douglass’ Rep., 696, note; Tompkins v. Bernet, 1 Salk., 22; Bone v. Ekless, 5 H. & N., 925, 928.
    It is difficult to say wherein a broker who makes a gam-, bling contract for his principal is any more liable criminally than is a stake-holder in a regular bet, and yet it is the uniform ruling that where there is an illegal bet, coming within the prohibition of the statutes making betting a crime, and allowing the money to be recovered back, if the money is paid over by a stake-holder to the winner before the loser- notifies him not so to do, no recovery can be had by the loser against the stake-holder. Without saying anything about the English cases, such has been the constant ruling in the United States, Perkins v. Eaton, 3 N. H„ 152; Livingston v. Wootan, 1 Nott & Mc.C, 178; Okerson v.
      Chittenden, 62 la., 297; Riddle v. Perry, 19 Neb., 505, 509, and cases cited; 2 Pars., Cont., 627; Pettillon v. Hippie, 90 Ill., 420; Bucbnan v. Pitcher, 1 Comstock, 892.
    It certainly is very novel doctrine that if I give money to a man to go and play at faro .for me and he goes and loses, that I may recover this money from him. Such a doctrine makes gambling by proxy at once pleasant and profitable. If my proxy wins, then, I may certainly recover from him the money which he has in his hands arising from the gambling. Wharton on Agency, sec. 280.
    The exact question here involved was passed upon by the supreme court of the United States on much the same facts and the same evidence as this case. White v. Barber, 128 U. S., 392; Patterson v. Clark, 126 Mass., 531; Lon v. Harvey, 114 Mass., 80, 81; Roulstone v. Moore, 19 Weekl., U. Bull, 387-
    We are unable to see how the fact that the parties, as between themselves and the state in a criminal prosecution, are all principals, varies the relations which exist between themselves either by contract or the nature of the relation or transaction between them, if Smith in the transaction is in fact as between him and Jones the agent of Jones and working for Jones. We do not know of any rule of law which says that as between themselves, the man who is really agent and working for another is to be regarded as hostile to and acting against him.
    Our contention that the fact that the agent gambling for another is liable criminally as a principal, does not affect his relation and responsibility civiliter to his principal, seems to us confirmed by another line of reasoning. It is quite uniformly held that where an agent gets money into his hands because he has been agent in an illegal or criminal transaction, and as the results thereof, that he ’is liable for such money to his principal as agent. Wharton on Agency, § 250 ; Norton v. Blinn, 39 Ohio St, 145, 149: Brooks v. Martin, 2 Wall, 70; Pointers. Smith, 7 Hiesk. (Tenn.) 137.
    We further believe that under the rulings which have been made, and on the evidence which is given in this case, .and under the charge which the trial court made to the jury, wbicb we tbink is abundantly supported by authority, there was no gambling in the contracts which were made by Tester for defendants, nor was there any gambling as between Tester and the defendants; and that Tester had a right to do just what he did do. Thacker v. Hardy, T- Rep. 4 Q. B., 685; Lehman Bros. v. Strassburger, 2 Woods. 554; Sawyer v. Tagart, 14 Bush., 727; Ashton v. Dakin, 4 H. & N. 867,869; Ex parte Rogers, T- R. 15 Ch. Div., 207,212; Kent v. Miltenberger 13 Mo. App., 505, 507; Clark, Assignee, v. Foss, 7 Biss., 540, 544; Teasdale v. McPike, 25 Mo. App., 341; Cockrell v. Thompson, 85 Mo., 517, 518; Kingsbury v. Kirwan, 11 J. & S., 451; (Affirmed 77 N. Y., 612); 14 Abbots N. C., 474; Baldwin v. Flag, 36 N. J. Eq., 48, 55; Bangs v. Hornick, 30 F. R., 97; Warren, Lord & Co. v. Hewitt, 45 Ga., 501, 507; Jackson v. Foote, 12 Fed. R., 37, 39, 40.

      Geo. A. Gh'oot, for defendant in error.
    If the transactions between the parties were gambling transactions, then under the statute, section 4272, the defendants in error could recover from the plantiff in error all money that they had lost. There can be no doubt as to the right of these defendants to recover in this case, if the transactions were gambling transactions. Were these transactions gaming or waging transactions, or were they valid and legitimate contracts between the parties? • This was substantially the only question involved in the case.
    It must be conceded that in order to make the transactions legitimate and give validity to the contracts, it must have been understood by the parties that the grain was to be delivered and payment made at the agreed price. Did the parties expect to deliver the grain said to have been purchased? Manifestly not. That there was no such intention to deliver grain, or to receive pay for it, is clearly shown from the testimony. All the business was done in the bucket shop of the plantiff in Cleveland. Grisewood v. Blane, 73 EC. T. R-, 526.

      If settlements were to be'mlde by tire payment of differences between the contract price and the market price of the grain, at the date fixed for executing the contract, then the transaction is a gambling transaction and is null and void. On the face of it the contract may be regular, but, if under -the guise of such a contract, the intention was to speculate, merely,' in the rise and fall of the prices of. the goods, and there was no intention to deliver the goods, then-such a contract is a gambling one and null and void. This doctrine is fully sustained by the following authorities: Benjamin on Sales, vol. 2, 717; 6thAmer. ed. by Corbin, 828; Bigelow v. Benedict, 70 N. Y., 202, 206;. Story v. Salmon, 71 N. Y., 420, 422; Kingsbury v. Kirwan, 77 N. Y. 612; Irwin v. Williar, 110 U. S., 499; Embrey v. Jemison,-131 U. S., 836.
   MiNSHaul, J.

Two questions arise upon this record: The first relates to the right of the plaintiff to recover upon his petition; and the second relates to the right of the defendants to recover upon their counter-claim, although-the plaintiff may have no right -to recover upon his petition; in other words, whether the purchases and sales of grain on which the plaintiff has charged and seeks - to recover commissions, were wagers upon the future, price of the commodities bought and sold; and if so, whether under the statutes of this state the defendants may recover from him the amount claimed, as the “winner” of the money so “lost” and paid to him.

Though all the evidence is set forth in a bill of exceptions, it is not the province of this court to consider it for the purpose of determining whether the finding of the jury is right as a matter of fact. If the evidence was submitted to' the jury under proper instructions, we must accept its finding as an affirmation of the claim of the defendants, as to the character of the alleged purchases and sales of grain, on which the plaintiff seeks to recover the commissions charged in the account on which he has brought his suit.

It is well settled 'that purchases or sales of commodities of any kind for future delivery are valid, although the seller may not own the commodity at the time the contract is made, and will have no other means of performing than by going into the market and making the requisite purchase when the time for delivery arrives; “but such a contract is only valid when the parties really intend and agree that the goods are to be delivered by the seller and the price to be paid by the buyer; and, if under the guise of such a contract, the real intent be merely to speculate in the rise or fall of prices, and the goods are not to be delivered, but one party is to pay to the other the difference between the contract price and the market price of the goods at the date fixed for executing the contract, then the whole transaction constitutes nothing more than a wager, and is null and void.’ Benjamin on Sales, section 542.

This is so well settled that we think it unnecessary to do more than refer to a few of the leading cases on the subject: Irwin v. Williar, 110 U. S. 499, 508, 510; Embrey v. Jemison, 131 U. S. 336, 344; Bigelow v. Benedict, 70 N. Y. 202, 206; Kahn v. Walton, 46 Ohio St. 195, 215.

In this state, by an act adopted April 25,1882, and embodied in section 6934a, Revised Statutes, such contracts are declared to be “gambling contracts,” and the parties making them liable to fine and imprisonment. Its language, applicable to this case, is, “Whoever contracts to have or give to himself or another the option to sell or buy, at a future time, any grain, or other commodity, * * * where the intent of the parties thereto is that there shall not be a delivery of the commodity sold, but only a payment of differences by the parties losing upon the rise or fall of the market,” shall be fined and imprisoned; and the contracts so made “shall be considered gambling contracts, and shall be void.” So that in this state the character of such contracts rests not merely upon judicial decision, but also upon statute; and there is no room for question as to what the law is in such cases. Many of the other states have similar statutes. And, indeed, Mr. Bishop says, “By common consent, all bargains for the purchase and sale of things — for example, stocks-and commodities — where it is the understanding of- the parties, whether expressed or not, that' the things are not to be delivered, but at the agreed time the 'differences’ between their market values at the two periods are to be adjusted, and all other transactions of this nature, are illegal or against public policy, to the extent that the courts will not enforce them. These are all gambling contracts, disturbing the course of trade, and not tolerated by the law. “But,” he adds, “ a sale, in good faith, for future, actual delivery, is valid, even though, at the time of the sale, the seller has not the article in possession.” Bishop on Contracts, section 584 and notes.

And the law is the same where the suit is by one who acted as broker, to recover commissions for making the purchases or sales, where he had knowledge of the character of the transactions; for in such case he is a particeps criminis, and has no better right to recover than either of the other parties to the wager. Embrey v. Jemison, supra; Kahn v. Walton, 46 Ohio St. 195; Pearce v. Foote, 113 Ill. 228.

The evidence in the case tended to show that the transactions between the parties were simply wagers upon the course of the grain market at Chicago, although the plaintiff and his witnesses testified that the purchases and sales were real, and that deliveries would have been made if required by the customer. The defendants testified that there wás no such understanding and that the transactions were simply wagers; and, looking at the circumstances as detailed in evidence, we are unable to see; how either, party could have had any other understanding. The account attached to the petition, shows that, in the brief period of about two months 535,000 bushels of grain were bought, and that exactly the same number was sold, without a single delivery having been made. The customer was required to deposit a certain amount in the way of “ margins,” and which he was to keep good — by adding thereto, when in the course 'of the transactions he met with losses. There were, it seems, twenty-three different, but continous, deals. When a certain number of bushels of corn or wheat was bought for future delivery, on the next, or a few days thereafter, a like number was sold. If the sale was at a price higher than the purchase, commissions were deducted, and the remainder, if any, went to the credit of the customer’s account; if for less than the purchase, the commissions were added to the difference, and the sum went to his debit. Or, if the first transaction was a sale, it would be closed by a purchase of a like number of bushels. And here, if the purchase was upon a rising market, the customer lost, if upon a declining market, he gained, and his account was in each case debited or credited accordingly. Now, when it is remembered, that neither of the defendants had any actual connection with the grain business, had no need to buy or sell grain of any kind — the one being a young physician and the other an assistant in the office of the city treasury, and without the means! as the plaintiff knew, of purchasing such large quantities of grain; and as no grain was in fact delivered, each transaction being settled according to the difference in the market between the time of purchasing and the time of selling, or conversely, between the time of selling and the time of purchasing, what inference should be drawn from such a state of facts other than that reached by the jury?

The court charged the jury that, “A contract for the sale of grain or other commodity, to be delivered at a future day, is not invalidated by the fact that it was to be delivered at a future day, or by the additional fact that at the time of the making of the contract the vendor had not the goods in his possession, or by the additional fact that at the time he had not entered into any contract to buy or procure the goods, nor by the further fact that at the time he had no reasonable prospect of procuring them for delivery,' according to the tenor of the .contract. In such case, if either party to the contract has the right to compel a delivery or receipt of the goods, it is a valid contract, although the parties thereto, thereafter settle and agree to close up the transactions by a payment of differences. Nor does the statute of Ohio, which has been read and commented upon in your hearing, apply to sales of grain or other goods for future delivery, where the only option is as to the time of delivery, within certain limits.” And then charged' that, “An understanding between the vendor and vendee, at the-time the contract is made, that the goods shall not be delivered or received, but merely to pay or receive the difference between the price agreed upon and the market price at the time agreed upon for its delivery, brings the transaction within the statue, and is void. Nor does it matter what form the parties give to their contracts,” * * * “no amount of painstaking or legal exactness,” they were told, could change the result, if the intention of the parties appeared to have been to deal in future options simply.

The case was in this regard fairly submitted to the jury,' and, we may add, that, if it was proper for us to weigh the evidence, we would not feel at all disposed to disturb the verdict. It matters little what devices may be used, ot what phraseology may be adopted for the purpose of giving to a transaction a fair mercantile appearance, if a court and jury are satisfied from all the circumstances in evidence, that it is simply a wager in disguise, there is no rule of law nor principle of reason, that can require them to .disregard', their convictions upon the subject. Persuasions so obtained are no more than the result of- the aggregate proof of the evidence, by which, in every case, the verdict of the jury should be rendered; and no amount of what they may honestly believe to be perjury, can require them to disregard conclusions forced upon their' minds by all the evidence in the case.

The next question is, had the defendants the right on their counter claim to recover back the sums paid the plaintiff in the way of margins. .This the court charged they had the right to do, “less the amount they received by the way of profits, ” if the jury found under the instructions before given them, that the “ contrácts were gambling transactions,” and were known'at the time tobe such by the plaintiff.

The plaintiff makes two objections to the right of the defendants to recover. 1. That he simply acted as agent of the defendants in making the purchases and sales, and that the money received by him was paid to the persons with whom he dealt on behalf of the defendants; and that he is, therefore, not the “winner” — the statute, section 4270, Revised Statutes, simply providing for a recovery against the “ winner” by tbe loser on any bet or wager. 2. That be paid the money over according to the understanding before notice or suit brought.

If these purchases and sales of grain were in fact wagers on the future price of the grain ostensibly dealt in, then it is clear that the relation of principal and agent did not exist between the defendants and'the plaintiff; and, that they were such, was found -by the verdict of the jury under proper instructions from the court.

The parties to a wager stand in opposed relations, each acting for himself in the matter of making it. Both may be particeps criminis with respect to the crime, in other words principals in its commision, but neither acts for the other. And this is so in many offenses against public policy, as in usury and the like.

It is not doubted but that in a sense either party to a wager may have an agent — that is, either may act for himself through another. As in this case, the defendants at first acted through Hale, who, by their direction, put up the margins for them; and so the plaintiff may have acted for or with other parties in Chicago. But under the finding of the jury, that the transactions between the parties were wagers, neither could have acted for the other. The assumption of the plaintiff that he was buying or selling wheat for the defendants, was a mere disguise adopted for the purpose of concealing the nature of the real transaction; and, as it had no foundation in fact, the agency based upon it is alike a mere assumption and had no real existence. The transactions were had directly-with the plaintiff though his agent, Collins, at C] eveland. The money was received of the defendants by Collins and transmitted to him at Chicago. If he saw fit to divide with others associated with him in making the wager, that was a matter of his own concern, but it cannot alter the case, nor affect the right df the defendants to recover from him as a “winner” under the statute.

The cases cited and relied on by counsel for the plaintiff in error, are without application here, for the reason that they are all cases where there was no question about the agency of the party from whom a recovery was sought. Smith v. Bromley, Doug. Rep. 696, note; Bone v. Eckless, 5 H. & N. 925, 928; Wharton on Agency, section 250. They establish the well settled principle, that where money is delivered to an agent to be applied to an illegal purpose, whilst the agent has no right to retain it, yet where he has paid it over in accordance with the instructions to him, before notice from the principal not to do so, no recovery can be had against him. For example, if suit had been brought by Buel and Watkins to recover of Hale the money placed in his hands to be put up as margins with Tester, Hale, by way of defense, might have shown that he had placed the money as instructed before notice to him not to do sof But Tester can make no such defense, the character of' agent .having been simply assumed, to conceal the real nature of the relation between himself and the defendants, and to disguise what was known to be a crime. The relation was an assumed, and not a real one; and is, therefore, no defense to the action given the loser by statute to recover of the winner money lost on a wager.

The provisions of section 4270 are not directed against any particular form of gambling. The language is, “If any person, by playing at any game, or by means of any bet or wager, loses to any other person any sum of money or other thing of value, and pays or delivers the same, or any part thereof, to the winner,” the person who so loses and pays may within the time named recover the same “from the winner thereof.” The evil is the same whether the money is' wagered upon the turn of a card, the result of a horse race, or the course of the market; and the language is broad enough to include not only either of these forms of betting, but any form in which money is lost, and paid to the “winner” upon a bet or wager. A wager is generally defined by lexicographers as something hazarded upon an uncertain event; and this agrees with its legal acceptation. As defined by ANSON, “A wager is a promise to pay money, or transfer property upon the determination or ascertainment of an uncertain event.” Anson, Contr. 166. With regard to the future, the market is always a matter of uncertainty and speculation. When left to its natural course it will fluctuate from day to day, but still more so when manipulated by gamblers, who, under the disguise of buying and selling, simply lay wagers upon its future course. Such transactions the legislature has, in section 6934a, Revised Statutes, declared to be gambling, and this section should be construed with section 4270, Revised 'Statutes, so as to suppress gambling upon the future price of grain and other commodities, as upon any other -uncertain event, not merely because of its evil influence upon public morals, but because of its ruinous effect upon legitimate trade and commerce. In Pearce v. Foote, 113 Ill. 228, 239, Scott, J., in construing similar statutes of the state of Illinois, said: “Although the statutes being considered are highly penal, there is no warrant for construing them with any uureasonable strictness. They ought rather to have a just, if not liberal, construction, to the end the legislative intention may be accomplished, — to prohibit all dealings in options in grains or other commodities. Nothing is productive- of more mischievous results. Considerable fortunes secured by a life of honest industry have been lost in a single venture in “options.” The evil is all the more dangerous from the fact it seemingly has the sanction of honorable commercial usage in its support. It is a vice that has in recent years grown to enormous proportions. legitimate transactions on the board of trade áre of the utmost importance in commerce. Such contracts, whether for immediate or future delivery, are valid in law, and -receive its sanction and all the support that can be given to them. It is only against unlawful “ gambling contracts” the penalties of the law are denounced, and no subtle finesse of construction ought to be adopted to defeat the end it is to be hoped may be ultimately accomplished.”

It may well be doubted, whether it required the legislative declaration contained in section 6934», Revised Statutes, that contracts for such options as are made punishable by it, should be construed to be “gambling contracts,” to bring them within the remedy given the loser against the winner by section 4270, Revised Statute; for, being wagers upon an uncertain event, they would come within the letter and spirit of that section, without such legislative provision; and, to so hold, is not to give to tlie statute a liberal but a strict construction.

We see no error in the charge of the court. It was liberal to the plaintiff, and, in some respects, more so than was required by the law and facts of the case.

Judgment affirmed.


author: Dickman, J.

text:
    Reinhard v. City.

      Illegal arrest — Burden of proof — Receiving money in lieu of bail— Involuntary payment.

    1. It is illegal, unless authorized by statute, for a police officer or magistrate, to receive money in lieu of bail for the appearance of a person accused of a criminal offense.
    2. A police officer arrested a person for an alleged misdemeanor under a state law, before any charge had been preferred against him or warrant had been issued for his apprehension; and demanded from him, while tinder arrest, a deposit of money in lieu of bail for his appearance before the mayor, which deposit was made by the person arrested, to avoid imprisonment. The money was paid into the city treasury, and afterwards, the city by its promissory note, paid the same to the county; but while the money was in the hands of the city, the party who was arrested demanded of the city that it pay over the same to him, which the city refused to do. In an action against the city by the party arrested, to recover the money, in which the legality of his arrest became a material issue, it was incumbent on the defendant, to show, that such a state of facts existed as justified the officer in making the arrest without the previous issue of a warrant, and that he did not detain the party arrested an unreasonable time before obtaining a legal warrant.
    3. Unless established by satisfactory evidence that the circumstances were such as to authorize the officer to make the arrest without the previous issue of a warrant, the payment of the money by the party arrested as a substitute for bail for his apperance, and to avoid imprisonment, is to be deemed an involuntary pay ■ ment, and the sum so paid may be recovered by him in an action against the city, as money by it had and received for the use of the plaintiff.
    (Decided March 10, 1892.)

      ERROR to the Circuit Court of Franklin county.
    The plaintiff in error, John G. Reinhard, on October 31, 1882, filed his petition in the court of common pleas which reads as follows:
    “The plaintiff says that the defendant, the city of Columbus, Ohio, is a city of the first grade of the second class, and is duly incorporated under the laws of said state. That on or about the thirty-first day of December, A. D., 1879, the said defendant unlawfully and wrongfully received into its possession two hundred dollars in money, property of this plaintiff, of the value of two hundred dollars, and on or about the Same date, without the consent of plaintiff, converted the said money to its own use.
    Plaintiff demanded of said defendant said sum of money on or about the second day of January, A. D., 1880, and the said defendant then, and has ever since then, refused to deliver the same t® this plaintiff.
    Wherefore, plaintiff has been damaged by reason of the premises by said defendant in the sum of two hundred dollars, with interest thereon from said thirty-first day of December, A. D., 1879, for which, together with his costs herein expended, plaintiff asks a judgment against said defendant.”
    On December 16, 1882, the defendant in error, the city of Columbus, filed the following answer to the petition:
    “The defendant, for answer to the petition of the plaintiff herein filed, says:

      First Defense — It denies that it unlawfully received the money in the petition mentioned, or unlawfully converted the same to its own use.
    The defendant says further, that the plaintiff and another person were, on or about the thirtieth day of December, A. D., 1879, arrested by the police authorities of said city, charged with an offense against the laws of the state of Ohio, whereupon, on said day, the plaintiff deposited the sum of one hundred dollars for himself and a like sum for his companion, with said police authorities, as bail for their appearance respectively, on December 31, 1879, before the mayor of said city, to answer said charge, failing in which, the money so deposited was by said mayor declared forfeited, and the same, less costs, retained by said mayor, amounting to $5.20, and leaving $194.80, was by said mayor, deposited in the treasur}*' of said city.

      Second Defense — For its second defense the defendant says: It adopts each and áll the allegations of its first defense herein, and makes the same -a -part of this, its second defense, the same as if here again alleged and bodily set out, and that on or about the sixth day of December, A. D., 1881, and before the bringing of this action, before the magistrate, it was compelled to, and did, by its promissory note of that date, pay said sum of $194.80 so received from the plaintiff and deposited in the treasury of said city, to the county of Franklin in said state, the same having been by the mayor of said city received as bail in a prosecution under the laws of said state, and not under the ordinances of said city of Columbus.
    “Wherefore, the defendant prays that it may go hence without day, and recover of the plaintiff its costs in this behalf expended.”
    On January 26, 1886, the plaintiff filed his reply, in the following words:
    “The plaintiff now comes and for his reply to the answer to the defendant herein filed, says: For his reply to the first defense set forth in said answer, that he admits, that on the 30th day of December, A. D., 1879, he and another person who accompanied him, were arrested by the police authorities of the city of Columbus; but he 'denies that at the time of said arrest -he and his companion were charged with the violation of the laws of the state of Ohio, or any law -thereof, but on the contrary, this plaintiff avers, that he and his companion were' arrested without a warrant having been issued therefor -by said police authorities, on the day aforesaid, and taken to the city prison of said city, and there the police authorities demanded of this plaintiff a deposit ot the sum ot two hund ed dollars as bail for the appearance of this plaintiff and his companion before the mayor of said city on the following morning, to answer to some pretended violation of the laws of Ohio, which had not at that time been preferred against either this plaintiff and his companion, or both of them, and in default of payment of which sum of money by plaintiff the said police authorities ordered both this plaintiff and his companion to be imprisoned within the city prison of said city until the said next morning. Whereupon, in order to prevent the said imprisonment of this plaintiff and his companion, plaintiff avers that he was compelled to deposit, and did deposit, with the the said police authorities, said sum of money as aforesaid.
    “Plaintiff avers that on the following morning, to-wit: December 31, 1879, in his absence, the said mayor caused to be filed before him an affidavit charging this plaintiff and his companion with the violation of a -state law, falling within the class of offenses known as misdemeanors, within said state. And thereupon in his absence, and immediately after said affidavit was sworn to before the said mayor, said mayor declared the said sum of two hundred dollars so deposited with said police authorities, as aforesaid, forfeited unto the city of Columbus. All of which was done in his absence and without his knowledge and consent, and plaintiff further avers that said affidavit was never read to him until after said forfeiture, and he never was arraigned and required to plead to the matters therein charged against him, which were wholly false and untrue, and he was never given an opportunity to defend against the charge therein contained, nor was there ever a hearing or trial had upon the matters and things charged therein.
    “Plaintiff avers, that upon the following day, January j., 1880, he first learned of the action taken aforesaid by the said mayor upon said affidavit, and in and about the filing of the same, and the pretended forfeiture of this plaintiff’s said money, and on the following day, January 2, 1880, he went to said mayor and requested him to set aside the said forfeiture of said money unto said city of Columbus, and to give to him a hearing upon said affidavit, all of which the said mayor declined to do.
    “ Plaintiff thereupon, on the same day, while said money was in the hands of said city, to-wit: on January 2, 1880, demanded of the said city said money, and requested it to pay the same over to him, which it then and ever since then has refused to do, and since which time plaintiff has never relinquished his claim to said money, and at which time he notified the said city that he would bring an action against it for the recovery of said sum of money.
    “ For his reply to the second defense, plaintiff avers, that the said city of Columbus had no power or authority to execute to the said county of Franklin, the pretended note therein mentioned, and at the time therein mentioned, or at any other time, and if it did execute such a note to said county the same was without authority, illegal, null and void.
    “And if the said city of Columbus ever did execute to said county said promissory note, it was long after plaintiff 'had demanded the payment to.him of said money, as averred in his reply to the first defense, which said aver-ments are here adopted as a part of this reply to the second defence, the same as is herein written.
    “Wherefore, by reason of the premises, plaintiff avers that the said defendant did unlawfully and illegally receive into his possession said sum of $200, on December 31, 1879, and did on the same day unlawfully and illegally convert the same to its own use, as averred in his petition, and plaintiff here renews his prayer as contained in his petition for judgment against the defendant.” -
    The city of Columbus demurred to this reply. The court of common pleas sustained the demurrer, and (the plaintiff not desiring to plead further') ordered and adjudged that the cause be dismissed. The circuit court affirmed the judgment of the court of common" pleas, and the plaintiff in error asks this court to reverse the judgments of the circuit and common pleas courts.

      Marriott & Hughes, for plantiff in error.
    The reply does not show whether the parties were found in the act of committing an offense, or whether the officer making said arrest acted upon information alone.
    Outside of the record we will state that he acted upon information alone. But in either case it may be that the arrest would be held legal under sec. 7129, of the Revised Statutes, and Ballard v. The State, 43 Ohio St., 340. If, however, the arrest was legal, all of the subsequent steps were without authority, illegal, and void.
    Granting that a police officer may, under said section, make an arrest without a warrant, upon information, for the violation of a state law, what further authority has he in the premises and what must he do with the prisoner?
    Simply detain him until a legal warrant can be obtained. See secs. 7130, 7131, et seq.

    No authority is given him anywhere to either imprison the accused or to let him to bail, If the arrest be made upon warrant it is the duty of the officer to take his prisoner immediately before some magistrate of the county to be dealt with according to law. Revised Statutes, sec. 7139 •and 7142.
    The only statute authorizing a police officer to take bail is in case of arrests for violation of a city ordinance. Sec. 1965, Revised Statutes.
    But where the offence charged is the violation of a- state law, there is no power or authority in the officer making arrest to either let to bail or imprison, but Ue must take the accused before some magistrate of the county where the alleged crime was committed for a preliminary hearing; and there is no authority for the officer making the arrest to demand a deposit of money with him or anyone else for the appearance of the arrested party to appear before a magistrate to answer some charge to be preferred at some future time.
    The only instance in which bail is authorized to be given, before indictment, is after the prisoner is taken before a magistrate for preliminary, hearing and an adjourment is found necessary. In such case the magistrate may take bail for the appearance of the accused upon the day of trial. That such bail cannot be a deposit of money in lieu of a recognizance, is decided in the Dumick Case, 41 Oliio St., 602. See also, Shamokin Bank v. Street, 16 Ohio St., 1; Blackstone’s Com. vol. 4, 247; Butler v. Foster, 14 Ala., 323; United States v. Fow, 1 Cranch, U. S. C. Ct., 486.

      As we have said, after the arrest, if that can be held to have been legal, the subsequent preceedings were all illegal and void. The threatenend imprisonment was illegal. The demand for a deposit of money was illegal, and the reciept thereof was illegal. The forfeiture of the money to the city by the mayor was illegal. Then how could the city accquire any right thereto whatever as against the plaintiff who never relinquished his claim to the same.
    The parties after being arrested without warrant, upon imformation, should have been detained until a legal warrant could have been obtained, and then taken before a magistrate for preliminary trial. Until. this~ was done, there was no authority in any person to take bail of any character.
    Here then is a case where, we repeat, there was not a voluntary payment of an illegal demand, but a compulsory payment of an illegal demand .in order to prevent the imprisonment of the person of plaintiff and said other person.
    Under such a state of facts, does the plaintiff lose the right to recover back his money ?
    The law seems to be clear upon this subject that he does not, Butlers. Foster, 14 Ala., 323; Myers v. Cincinnati, 1 Ohio St., 268; Baker yr. Cincinnati, 11 Ohio St., 537; Carter v. Waterson, 38 Ohio St., 319; United States v. Faw, 1 Cranch, U: S. C. Ct., 486; Boling v. Young, 88 Ohio St., 140' Stephana. Daniels, 27 Ohio St.,'527; Telegraph Co.sr. Myer, 28 Ohio St., 521; Wolfsr. Marshal, 52 Mo., 167; Wabannsee Co. v. Walker, 8 -Kan. 431; Eaton, v. Eaton, 35 N. J. Raw, 290; 3 Abb. Ct. App. (N. Y.) 10; Beckwithsr. Frisbie, 32 Vt., 559; Harmony v. Binham, 12 N. Y. (2 ICem.) 99," 68 N. C. 134,- 12 Am. Rep., 627; 25 Mich., 456; 56 Ill. 542; 27 Mich., 497; Chandler v. Sanger, 114 Mass., 364; 19 Am. Rep. 367; 61 Me. 227; 12 Am. Rep. 556; 70 N. C. 55; 37 Tex. 47; 60 Barb. 80; Durr v. Howard, 6 Ark., 461; Maxwell v. Griswold, 10 How. JU. S.) 242; White si.Hezlman, 34 Penn. St., 142. ’ :

      Paul Jones and Florizel Smith, city solicitors, and James Caren, for defendant in error

      I. The deposit of money by the plaintiff in error in lieu of bail for his appearance in police court was, upon the release of the plaintiff and his companion, the execution of an illegal contract voluntarily entered into by the plaintiff.
    The transaction at the prison was certainly illegal. The payment by Reinhard was purely voluntary as far as the reply reveals — and for many reasons.
    Reinhard chose his own remedy. He did not choose an immediate trial; he did not choose to ask his friends to enter into a recognizance; he did not choose false imprisonment with his right for action for damages therefor; he did not choose to avail himself of the efficacy of the writ of habeas corpus; but he did choose to make the deposit in lieu of bail. His reason for choice were his own and doubtless good, and his reason in not explaining them in his reply was also doubtless good.
    The conclusion reached is that Reinhard and the police authorities entered into a contract for the appearance of himself and a stranger in court that was illegal because of the provisions of the statues regulating the duties of police authorities in such matters and- void as against public policy. Roll v. Raguet, 4 Ohio St., 400.
    II. The police authorities are not the officers or agents of the city, and the city is not liable for any of their unlawful acts, and, hence, cannot be held to answer for the illegal demand by such authorities of money to be deposited in lieu of bail and its subsequent forfeiture by such authorities. Especially so when the arrest was for an offence against the state and not a violation of any of the ordinances of the city, and the city has not appropriated to its own use the money so forfeited. Dillon, Municipal Corporations, sec. 974, 4th ed.; Burch v. Hardwicke, 30 Gratt., 38; Calwell v. City of Boone, 51 la., 687; Buttrick v. City of Lowell, 1 Allen (Mass.) 172; Ogg v. Lansing, 35 la., 495; Stedman v. City and County of San Francisco, 63 Cal., 193; Burough-of Norristown v. Fitzpatrick, 94 Pa. St., 121; Prother v. City of Lexington, 13 B. Mon. (Ky.) 559; Worley v.. Town of Columbia, 88 Mo., 106; Pollock's Admr. v. Louisville, 13 Bush. 221; Cook v. Macon, 54 Ga., 468; Harris v.
      City of Atlanta, 62 Ga., 290; McElroy v. Council of Albany,, 65 Ga., 387; Attaway v. Cartersyille, 68 Ga., 740; Ready v. Tuskaloosa, 6 Ala., 327; Dargan v. Mobile, 31 Ala., 469; Richmond v. Long's Admr., 17 Gratt. 375; Greenwood v. Louisville, 13 Bush., 226; Western College v. Cleveland, 12 Ohio St., 375; Wheeler v. Cincinnati, 19 Ohio St., 19.
   Dickman, J.

It is manifest from the record that the plaintiff in error and his companion were arrested without the previous issue of a warrant. The arrest was to answer an imputed violation of a state law falling within the class of offences known as misdemeanors, for which, at that time, no charge had been preferred against either of them.

The 21st section of the criminal code (66 Ohio R. 291)' provided: “Every sheriff, deputy sheriff, constable, marshal or deputy marshal, watchman or police officer, shall arrest and detain any persons found violating any law of this state,, or any legal ordinance of any city or incorporated village, until a legal warrant can be obtained.”

And section 142 of the municipal code (66 Ohio R. 173) provided that the city marshal “shall arrest any person in the act of committing any offense against the laws of the state or the ordinances of thfe corporation, and forthwith bring such person before the mayor, or other competent authority for examination or trial.”

By these two sections statutory power is conferred upon the officers named to arrest without warrant, and to detain for a limited time, to the end that there may not be a failure of justice through the escape of criminals. But the officer, if not armed with a warrant, has no authority to arrest unless the persons are “found violating,” or, are “in the act of committing an offense against” a law of the state or an ordinance of a city or incorporated village.

The record does not disclose that the plaintiff and his companion were “found violating,” or, “in the act of committing an offense against” any law or ordinance, or that the officer in making the arrest acted upon knowledge, or reliable information which proved to be true. Ballard v. State, 43 Ohio St. 340. Where no affidavit charging the commission of an offense is filed with the magistrate, and no warrant or process is issued for the apprehension of the person charged, it will not be presumed, that an officer making an arrest acted under circumstances precluding the necessity of an affidavit and warrant. And in an action by the party arrested, in which the legality of such arrest is deemed a material issue in the case, it will not be incumbent upon him to establish that the officer was not, under the circumstances, authorized to arrest without warrant, but it will rather devolve upon those defending the officer to show, that such a state of facts existed as justified the officer in making the arrest without the previous issue of a warrant and that he did not detain the arrested party an unreasonable length of time before obtaining a legal warrant.

In Shanley v. Wells, 71 Ill. 78, which was an action of trespass, for false imprisonment, it was held that, where a policeman arrests a party as a vagrant, under a city ordinance, without a warrant, it is incumbent on him, when sued in trespass therefor, to show that the offence was in fact committed in his presence; that the burden will be on him to establish that fact by satisfactory evidence, to exonerate himself from liability.

In Gallimore v. Ammerman et al., 39 Ind. 323, the complaint charged that the defendants, one a justice of the peace and the other a marshal of the town, jointly acting, assaulted the plaintiff, and by force compelled him to go from the place where he was, to a shanty, where they imprisoned him, and detained him as a prisoner therein for .the space, of seventeen hours against his will. The complaint did not contain an allegation that the acts of the defendants were done .illegally, or wrongfully, or without any competent authority. “In our opinion,” said the court, “no such allegation was necessary. The facts alleged, on being proved, would entitle the plaintiff, prima facie, to recover; and absolutely, unless it should be shown that the acts were' rendered rightful and legal by some competent excuse or authority. Such excuse or authority must come from the defendant. Whoever assaults or imprisons another must justify bimself by showing specially to the court that the act was lawful. 1 Chit. PI. 501.”.

Applying the rule as recognized in the above cited cases, it cannot be presumed, in view of the allegations in the defendant’s answer and in the reply to which the defendant demurred, that the plaintiff and his companion were legally arrested by the police authorities.

While under, arrest, the police authorities demanded of the plaintiff a deposit of the sum of two hundred dollars in place of bail for the appearance of himself and his companion before the mayor on the following morning; and ordered that in default of the plaintiff making such deposit of money, both of the parties under arrest should be imprisoned. To prevent such imprisonment, the plaintiff paid the sum of money demanded. It was the duty of the police authorities to detain the arrested parties until a legal warrant could be obtained; or until they entered into a recognizance according to law for their appearance before the proper magistrate. But, they had no authority to accept money in lieu of bail, nor would the mayor have been so authorized, as the statutes of Ohio contain no provision for taking money as a substitute. Bail may be defined as a delivery of a person to his sureties, upon their giving, together with himself, sufficient security for his appearance; he being supposed to continue in their friendly custody, instead of going to jail. To say nothing of its liability to abuse, the deposit of money with the officer, as security lor the appearance of the accused, would not be so likely to secure the end proposed as that provided by the statute.

In Butler v. Foster, 14 Ala. 323, it was held that, a judicial officer, authorized to receive bail for the appearance of persons charged with criminal offenses, cannot receive from the accused, a sum of money in lieu of, or as substitute for bail, no such power being conferred by statute; and if so paid in, neither the state, nor the county, has any claim to it. See also Columbus v. Dunnick, 41 Ohio St, 602. State v. Lazarre, 12 La. Ann. 166; United States v. Faw, 1 Cranch C. C. 486.

The money demanded from the plaintiff in lieu of bail was an illegal exaction, and though declared forfeited to the city upon his failure to appear before the mayor on the morning after his arrest, and deposited in the city treasury, was nevertheless the property of the plaintiff, and was money had and received by the city for his use, if involuntarily paid by him to prevent his imprisonment. While the money was in the hands of the city — before the city had, by its promisory note, paid the money to the county, as having been received as bail in a prosecution under the laws of the state — the plaintiff demanded the same of the city, and requested its payment over to him, and upon payment being refused, gave the city notice that he would bring an action against it for the recovery of the money detained. The city, therefore, in obligating itself to the county, did so with full knowledge of the plaintiff’s claim.

-But it is contended that a deposit of money by the plaintiff as a substitute for bail, was, upon the release of himself and hi's companion, the execution of an illegal contract voluntarily entered into by the plaintiff, and that in such case a court of justice will leave the parties as.it finds them. The facts, as made evident in the pleadings, are sufficient to negative the idea of a voluntary deposit by the plaintiff. It is averred and not denied, that without the issue of a warrant — no affidavit charging the commission of an offence having been filed with a magistrate — the plaintiff and his companion were arrested, taken to the city prison, and there the police authorities demanded a deposit of two hundred dollars asbail for their appearance in court, and ordered that in default of the payment of that sum, both be imprisoned until the following morning.

These salient facts attending the arrest, and the questionable legality of the arrest, are plainly inconsistent with free will or voluntary action, on the part of the plaintiff in making the money deposit in lieu of bail. Although the mor.ey was paid upon an illegal demand, with full cognizance of the unlawful character of the transaction, it was paid to avoid imprisonment upon an arrest of doubtful legality. The conclusion clearly deducible from many cases on the subject is, that a payment of money upon an illegal demand, when the party is advised of all the facts, will be considered involuntary when it is made to procure the release of the person or property of the party from detention; or, when the other party is armed with apparent authority to seize upon either, and the payment is made to prevent it. Wolfe v. Marshal, 52 Mo. 167, and -cases cited. The principle is well and briefly stated in 2 Greenl. Ev. § 121: “Under the count for money had and received, the plaintiff may also recover back money proved to have been obtained from him by duress, extortion, imposition, or taking any undue advantage of his situation, or otherwise involuntarily and wrongfully paid; as by demand of illegal fees or claims, tolls, duties, taxes, usury and the like, where goods or the person were detained until the money has been paid.”

In Norton v. Danvers, 7 Term 375, a defendant, on being informed that a bailable writ - had been issued against him, voluntarily gave a bail- bond, and it was held, that he could not afterwards object to the insufficiency of the affidavit to hold to bail. But Tord KENYON said: “The affidavit to hold to bail is only process to bring the party in, and if he choose to waive any objection to that, he may. do it; and in this case I think he has waived taking advantage of this objection. If indeed the defendant has been actually under arrest at the time, his consent to give a bail bond would not have been binding on him, because it might be considered as given under duress; but here he voluntarily gave this bail bond; and on that - ground only my opinion is founded.”

It is averred by the defendant that the plaintiff deposited with the police authorities the sum of one hundred dollars for himself and a like sum for his companion, as bail for their appearance respectively before the mayor of the city. It being conceded that the entire sum of two hundred dollars was the property of the plaintiff and by him advanced, the money, if wrongfully withheld by the city, must be treated as had and received by the city for his use only. The plaintiff alleges in his original petition that the city converted the money to its own use, but such conversion would not militate with the fact that the money had been received for the use of the plaintiff, and afterwards misapplied. As money had and received, one may recover back money paid under'an illegal contract, when he is not in pari delicto with the defendant. 1 Steph. N. P. 335-341; 1 Selw. N. P. 84-94; Worcester v. Eaton, 11 Mass. 376: Boardman v. Roe, 13 Mass 105; Wheaton v. Hibbard, 20 Johns. 290; Merwin v. Huntington, 2 Conn. 209. So, where the person' is arrested for improper purposes without just cause; or, for a just cause, but without lawful authority; or, for just cause and by lawful authority, but for an improper purpose; and pays money to obtain his discharge, it may be recovered as so much money had and received for the plaintiff’s use. Bull, N. P. 172, 173; 5 Com. Dig. Pleader, 2 W. 19; Richardson v. Duncan, 3. N. H. 508; Watkins v. Baird, 6 Mass. 506.

Our conclusion is, that the court of common pleas erred in sustaining the demurrer to the reply of the plaintiff, and that the judgments of the courts below should be reversed, and the cause remanded for further proceedings,

Judgment accordingly.