author: Spear, J.

text:
    Strangward v. The American Brass Bedstead Company.

      Motion by each party in jury case — After impaneling jury, before evidence is offered — To direct verdict on pleadings — Is waiver of jury trial and submission of case to court — Judgment conclusive, when — Lease for two years, rent payable per year — Is lease for fixed term and not a monthly renting.

    1. A motion by each party in a jury case after the impaneling of the jury in the court of common pleas, to direct a verdict in his favor on the pleadings, made to the court before evidence is offered, is a waiver of a jury trial and a submission of the case to the court, and a party cannot, as of right, after his motion has been overruled, and that of the other party sustained, give evidence in support of his case.
    2. When a matter has been finally determined in an action between the same parties by a competent tribunal, the judgment is conclusive, not only as to what was determined, but also as to every other question which might properly have been litigated in the case.
    3. A lease which provides for a term of two years, the rent to be a stated sum per year during the continuance of the lease, is a leasing for a fixed term and is not a renting from month to month although the rent is to be paid in specific instalments on the first day of each month in advance. (Grant v. Ramsey, 7 Ohio St., 1S8, approved and followed.)
    4. A recovery for a monthly instalment of rent, that being all that was due at the time action was commenced, is not a bar to recovery for instalments subsequently coming due upon the lease.
    (No. 11624
    Decided April 12, 1910.)
    Error to the Circuit Court of Cuyahoga county.
    Action was commenced in the common pleas of Cuyahoga, October 5, 1906, by plaintiff in error, William Strangward, against The American Brass Bedstead Company, defendant in error, to recover rent for the months of May, June, July, August and September, 1906, less a credit of $59.83, upon a written lease covering certain premises in the city of Cleveland. The lease was executed November 1, 1904, and was for the term of two years and to terminate October 31, 1906. Rent was to be $960 per year in instalments of $80 payable on the first day of each month in advance from the commencement of the term. The amount claimed was $400 less the credit before stated which was for rent received from a portion of the premises from August 10, 1906, to October 6, 1906.
    The answer pleaded as a defense the recovery May 4, 1906, of a judgment before .a justice of the peace, and afterwards in the common pleas on appeal, for $169, which was for rent on lease, and that the amount of the rent asked for in the present case could have been demanded in said action in said justice's court and in said appeal as and in violation of the terms of the lease. Further, the answer alleged that six months prior to April 1, 1906, plaintiff did not furnish sufficient power in the building according to the terms of the lease for defendant to carry on the business of manufacturer which by the lease plaintiff was bound to do; that defendant notified plaintiff of the same and plaintiff then promised to remedy the defect but failed to do so; that in March, 1906, upon being requested to furnish power according to the lease, plaintiff ordered defendant to vacate the premises, which, on April 1, 1906, defendant did and has not been in possession since.
    Plaintiff's reply denied that he did not furnish sufficient power according to the terms of the lease, and denied that he at any time ordered defendant to vacate the premises. It admitted the recovery of the judgment before the justice May 4, 1906, and afterwards in the common pleas on appeal, but averred that the judgment was for rent for the month of April, 1906; it averred further that the amount of rent asked in the petition in this case had not at that time accrued and could not at that time have been demanded. It further averred that all matters and things in connection with the failure of plaintiff to live up to the terms of the lease were in issue in that cause, and that by reason of the premises defendant is now estopped from setting up said defense because the same has already been adjudicated.
    Upon these pleadings the parties' went to trial to a jury. After reading the petition, answer and reply to court and jury, the plaintiff moved the court to instruct the jury to bring in a verdict for the plaintiff on the pleadings and the facts admitted therein. Thereupon the defendant also moved the court to direct the jury to bring in a verdict for the defendant upon the pleadings and facts stated therein. The court then, upon due consideration, granted the motion of the plaintiff and overruled that of defendant. The jury returned a verdict accordingly. Motion for new trial by defendant was overruled and judgment entered on the verdict, to all which defendant excepted. The circuit court reversed this judgment for error in granting plaintiff’s motion for judgment and overruling that of defendant, and the plaintiff now asks a reversal of the latter judgment.

      Messrs. Smith, Taft & Arter, for plaintiff .in error, cited and commented upon 'the following authorities:

      Petersine v. Thomas, 28 Ohio St., 596; Bridge Co. v. Sargent, 27 Ohio St., 233; Mengert, Trustee, v. Brinkerhoff, 67 Ohio St., 472; Hixon v. Ogg, 53 Ohio St., 361; Railroad Co. v. Smith, 54 Ohio St., 596; Babcock & Co. v. Camp, 12 Ohio St., 11; 1 Freeman on Judgments, Sections 330, 331; Mead v. Darling, 159 Fed. Rep., 684; James v. Allen County, 44 Ohio St., 226; Fox v. Althorp, 40 Ohio St., 322; Grant v. Ramsey, 7 Ohio St., 158; 2 Ency. PI. & Prac. (1905 ed.), 1026, 1027; 4 Cyc., 328; Marshall v. Clothing Co., 184 Ill., 421; McDole v. McDole, 106 Ill., 452; Holthausen v. Kells, 18 N. Y. App., 80; Stiles v. Himmelwright, 16 Pa. Sup. Ct., 649; La Farge v. Mansfield, 31 Barb., 345.

      Mr. A. E. Bernsteen and Mr. William H. Miller, for defendant in error, cited and commented upon the following authorities:

      James v. Allen County, 44 Ohio St., 226; Glass Co. v. Stoehr, 54 Ohio St., 157; Steinau v. Gas Co., 48 Ohio St., 324; Stephenson v. Repp, 47 Ohio St., 551; Cockley v. Brucker, 54 Ohio St., 214; Stein v. Steamboat, 17 Ohio St., 471; Erwin v. Lynn, 16 Ohio St., 539; Ewing v. McNairy & Clafflin, 20 Ohio St., 315; 1 Ency. PI. & Pcac., 154, 155; Burckhardt v. Green, 26 C. C., 315, 68 Ohio St., 711; 12 Ency. PI. & Prac., 848; Jones on Landlord & Tenant (1905), section 652; Boston
      v. Binney, 11 Pick., 1; Warren v. Ferdinand, 9 Allen, 357; Burnham v. Roberts, 103 Mass., 379.
   Spear, J.

Upon the making in the court of common pleas of the motion by each party for judgment on the pleadings this kind of a case was presented to that court: By the written lease, admitted by defendant to have been duly executed as pleaded, the defendant was liable for the rent claimed to be due unless the new matter pleaded in the answer and not controverted by the reply, established a valid defense. That new matter consisted of five specific allegations, viz.: 1. The recovery of the judgment of May 4, 1906, before the justice of the peace for rent on the lease; 2. That the amount of the rent asked for in the petition could have been demanded in that suit; 3. That six months prior to April 1, 1906, plaintiff violated his contract by not furnishing sufficient power as agreed in the lease, and that the plaintiff agreed to remedy the defect but failed to do so; 4. That in March, 1906, plaintiff ordered defendant to vacate the premises; 5. That defendant left the premises April 1, 1906, and has not since been in possession. The second, third and fourth allegations are distinctly denied by the reply. As' to the second it may be further remarked that it much resembles a conclusion of law, but if treated otherwise the record aids the contention of plaintiff, for it seems unreasonable to conclude that the' mere fact that rent accruing prior to the commencement of the suit before the justice was the subject of action in that case could make ineffective a suit brought afterward for rent subsequently becoming due. If this be so then rent subsequently becoming due could not have been demanded in that suit. There is nothing in the record showing conclusively the exact date of the commencement of the suit before the justice. It is not, however, to be presumed, in aid of a technical defense,' that it was commenced on or after the first day of May. The fact that it was tried on the fourth of May raises no presumption that it was not commenced in April, and if any inference is to be indulged it would be that the party would have naturally demanded all that appeared then to be due. The effect in law of this situation is easily determined by recurrence to the lease itself. That instrument does not purport to be a lease from month to month, but is “for the term of two years commencing on the first day of November, 1904,” and the rent is to be $960 per year. But the rent is to be paid “in instalments of $80 each, payable on the first day of each month in advance,” the lessee being thus obligated to pay rent for two years but in monthly instalments. It would follow necessarily from this that suit might be prosecuted at once for any one month’s rent if default were made in payment, and that, too, without in the absence of any new factor, involving any question of rent subsequently becoming due under the lease. It would seem that this proposition is so plain as to require no argument in its support. So that defendant’s affirmative defense rested finally upon the remaining- allegations, viz.: that the defendant left the premises April 1, 1906, and was not afterward in possession. As to this averment of the vacation of the premises by the defendant it is enough to' say that, as appears by the pleadings, they were abandoned by the defendant without fault of the plaintiff, and it cannot be the law that a lessee, obligated by a written lease to pay rent for two years, can escape liability by simply abandoning the premises rented. The reply makes the further point that all matters and things in connection with the failure of plaintiff to live up to the terms of the lease were in issue in the suit commenced before the justice, and have thus been adjudicated. If they were not, clearly they might have been, inasmuch as that ground of defense existed, if it ever did exist, at the time of the commencement of the suit before the justice. This being the case presented to the trial judge it is difficult to see that he could have properly done other than what he did do. The case turned wholly on the pleadings and we think they were clearly sufficient to justify a verdict and judgment.

As it appears to us the rules of law applicable to the case are simple. And the real issue would seem to be entirely covered by the case of Grant v. Ramsey, 7 Ohio St., 158. That action was for rent due upon a lease made in parol but for less than three years. The rent was to be six dollars per month payable monthly. A previous suit for rent coming due earlier had been tried and determined in -favor of the plaintiff. The tenant had vacated the premises upon the ground that his term had expired, but urged as- an additional ground that the landlord had refused to fulfill his contract to put the lease in writing. The syllabus of the case follows: “(1) Where a question of fact has once been tried and adjudicated by a court of competent jurisdiction, it cannot be re-opened in a subsequent suit between the same parties. They are concluded by the former judgment. (2) A parol lease of lands for more than one year, but less than three, will, by the taking possession under it, and the payment of rent according to its terms, be withdrawn wholly from the operation of the statute of frauds. (3) In such a case the tenant cannot, by a voluntary abandonment of the premises during the term, terminate his further liability to pay rent, although the landlord may have neglected to execute a written lease according to the agreement of the parties, unless the abandonment appears to have been on account of such neglect.”

We have not overlooked the clause in the lease to the effect that if the rent shall be in arrears and unpaid the lessor may avoid the lease and enter into possession and sue for and recover all rent due at the time of such entry. But the clause is ineffective to aid the defendant there being no averment in the answer as to such re-entry, and .the record not otherwise showing when it took place. We are therefore not called upon to give construction to this clause.

Nor have we overlooked the fact that the bill of exceptions shows that the defendant offered to introduce evidence. The offer came too late, the cause having already been submitted to- the court, and the court having rendered its judgment on the motions. To allow or refuse the application was within the discretion of the court, and no statement having been made to the .court of what the defendant expected to prove, it cannot be claimed that there was an abuse of discretion. Bank v. Hayes, 64 Ohio St., 100; Thompson v. Simpson, 128 N. Y., 270.

We are of opinion that there is no error in the record of the common pleas. The judgment of the circuit court will be reversed and the judgment of the common pleas affirmed.

Reversed.

Summers, C. J., Crew, Davis, Shaucic and 'Price, JJ., concur.


source: Caselaw Access Project

author: Crew, J.

license: Public Domain

text:
    The Toledo, St. Louis & Western Railroad Company v. Burr & Jeakle et al.

      Action against railroad company — For damages from ffre caused by locomotive sparks — Plaintiff’s counsel in argument to jury— Stated defendant made offer of settlement — Judgment rendered in favor of plaintiff should be reversed — Notwithstanding counsel’s attempted withdrawal of improper statement,
    In an action against a railroad company to recover damages for the destruction of plaintiff’s property by fire, alleged to have been communicated thereto by sparks emitted from one of the defendant’s locomotives, plaintiff’s counsel in argument to the jury stated that “within thirty days after the occurrence of this fire counsel for the defendant made an offer of settlement and that offer was repeated as late as the day of the commencement of this trial,” which statement, upon objection being made thereto, counsel for plaintiff stated he would withdraw, and the court directed the jury to disregard the same. When it appears from the record that under all the evidence adduced in the case the question of defendant’s negligence and consequent liability is a very close question of fact, a judgment entered upon a verdict in favor of the plaintiff should be re-’ versed notwithstanding counsel’s attempted withdrawal of his improper statements and the admonition of the court to the jury to disregard them, unless it clearly appears from the record that such improper statements did not influence the verdict rendered.
    (No. 11418
    Decided April 12, 1910.)
    Error to the Circuit Court of Henry county.

      This action was originally commenced in the court of common pleas of ITenry county, Ohio, by Burr & Jeakle and The Ohio German Fire Insurance Company as plaintiff, against The Toledo, St. Louis & ’VY'estern Railroad Company as defendant, to recover damages from said railroad company for the destruction by fire — alleged to have been communicated by sparks emitted from one of defendant’s locomotive engines — of a sawmill owned by said Burr & Jeakle and insured by them in The Ohio German Fire Insurance Company. The peti - tion'by way of stating the interest of said insurance company, alleged that subsequent to the fire said insurance company had paid to Burr & Jeakle under said policy and because of said loss, the sum of one thousand and eighty-eight dollars, and had taken an assignment of the claim of said Burr & Jeakle against the railroad company. The only allegations of negligence in the petition were: “that on the 3d day of December, 1904, the said defendant by its agents and servants so negligently, carelessly and improperly ran and conducted a locomotive of said defendant along its said railroad tracks, along and near the side of the said sawmill of said plaintiff, Burr & Jeakle, that a vast amount of fire, and burning sparks and showers of ignited fragments of combustible material carelessly and negligently allowed to issue from the chimney or smokestack of said locomotive did by the carelessness, negligence and improper management of said locomotive by the agents and servants of defendant set fire to and burned the said sawmill.” The defendant company by way of answer denied. all allegations of negligence on its part, and averred affirmatively, “that at the time of the fire the defendant’s locomotive was'equipped with a device or contrivance which would most effectually guard against the emission of sparks and fire which would otherwise be thrown out, and with one of the best and most approved spark arresting devices known and in use at said time, and that the locomotive was being operated at the time of the fire by competent employes in a careful and prudent manner.” These affirmative allegations of the answer were denied by reply. Upon the issues thus presented the case was tried to a jury and resulted in a verdict against the railroad company for $1,720.00. A motion for new trial was filed and overruled, and judgment was entered upon this verdict." This judgment was affirmed by the circuit court.

      Mr. Charles A. Schmettau; Mr. W. W. Campbell and Mr. Clarence Brown, for plaintiff in error.
    Misconduct of counsel. Hayes v. Smith, 62 Ohio St., 161; Railroad Co. v. Pritschau, 69 Ohio St., 438; Miller v. State, 73 Ohio St., 195; Coal Co. v. Sneddon, 98 Ky., 684; Morris & Co. v. Maddox, 97 Ga., 575; Holden v. Railroad Co., 169 Pa. St., 1; Wagner v. Hade Township, 215 Pa. St., 219; Bagully v. Journal Assn., 56 N. Y. Supp., 605; Manigold. v. Traction Co., 81 App. Div., 381; Rudiger v. Railway Co., 101 Wis., 292.

      Messrs. Donovan & Warden and Mr. James P. Ragan, for defendants in error.
    Misconduct of counsel. Hayes v. Smith, 62 Ohio St., 161; Railroad Co. v. Pritschau, 69 Ohio St., 438; Warder, Bushnell & Glessner Co. v. Jacobs, 58 Ohio St., 77; Traction Co. v. Parks, 97 S. W. Rep., 510.
   Crew, J.

The only error assigned in this case which need be especially considered in this opinion, is that of the alleged misconduct of counsel in the argument of the case to the jury. Upon the argument of this cause in the court of common pleas one of the counsel for plaintiffs stated to the jury among other things, “that within thirty days a’fter the occurrence of this fire, Mr. Schmettau, as counsel for the defendant, made an offer of settlement, and that offer was repeated as late as the day of the commencement of this trial.” To this statement the defendant by its counsel then and there excepted. And thereupon, to quote from the record, “counsel who had made the statement, stated to the jury that he withdrew the statement objected to,” and the court then instructed the jury as follows: “Gentlemen of the jury, it becomes my duty to say to you on this question that here is absolutely no evidence in this case that either party ever wanted to settle or that any attempt was ever made to settle; and I will say to you further, as a matter of law, that if the parties had gotten together in an effort to settle this case, the law wouldn’t permit such effort to settle, to be given to the jury -in evidence; it is your duty to disregard absolutely the whole of any statement by any counsel to the effect that any effort was made to settle this case or any other case.” And thereupon the argument proceeded. That the statements thus made by counsel transcended the bounds of legitimate argument and were grossly improper, is both obvious and conceded, but it is claimed that any prejudicial effect which such statements may have had was removed or cured by the subsequent action of court and counsel. This conclusion, we think, by no means follows, nor does it affirmatively appear in this case that such conclusion is justified by the facts. While it is true that courts of last resort have frequently, though not uniformly, held the rule to be, that the prejudice, if any, resulting from the misconduct of counsel in argument to the jury may be eliminated or cured by the prompt withdrawal of the objectionable statements made by counsel, accompanied by an instruction from the court to the jury to disregard such statements, yet this rule, so far as our examination of the authorities has disclosed, is recognized and applied by the courts in those cases only, where it is made to appear by the record from a consideration of the character of the statements made, that their prejudicial effect has probably been averted by such withdrawal and instruction. As remarked by Shauck, J„ in Cleveland, Painesville & Eastern Railroad Co. v. Pritschau, 69 Ohio St., 447: “It is due to differences in the character of the misconduct rather than to differences of opinion in reviewing courts that it has in some cases been held that the effect of the misconduct may be eliminated by instructions, and in others that it cannot be.” When we consider, in the present case, that there was no direct evidence establishing the origin of this fire, and that upon the whole of the evidence adduced on the trial the question, of defendant’s negligence and consequent liability was at best a very close question of fact involved in much uncertainty and doubt, the harmful and extremely prejudicial effect of a statement by counsel to the jury, that soon after the fire the railroad company had offered to settle the loss, and that such offer had been renewed on the very day the trial commenced, becomes at once' perfectly apparent. And the attempted withdrawal of these statements from the jury was, we think, wholly impotent to rid them of the mischievous inference that they were nevertheless true; and was utterly ineffectual to dislodge or remove from the minds of the jurors the harmful impression, which such statements were calculated, and obviously intended, to produce. No other rational conclusion can be reached in this case than that plaintiff’s counsel by the making of such statements intended thereby and in that way to get before the jury a fact which he was not entitled to, and one which from considerations of public polic)'- the .law forbade should be mentioned on the trial, and this, for the sole and obvious purpose of inducing in the minds of the jury the impression or belief, that the railroad company in making such offer of settlement had, indirectly at least, confessed and admitted its liability. Manifestly this was the purpose of counsel’s ' statements, and we think it impossible to say in this case that such was not their effect. While it should perhaps be said, that after objection made, court and counsel did all in their power to counteract and overcome the effect of these improper and prejudicial statements, yet the mischief had been done, the poison had be injected, and that which thereafter occurred was not, in our judgment, a sufficient antidote. It is the policy of the law to encourage the settlement of legal controversies, and hence it does not permit an offer of compromise to be given in evidence as an acknowledgment or admission of the party making it, and this salutary rule, which is grounded upon considerations of public policy, just as imperatively forbids that the fact that such offer was made shall be mentioned or commented upon by counsel in argument to the jury, and when it is, unless it shall clearly appear from the record in the particular case' that the verdict of the jury was' not affected thereby, the misconduct is such as to require in the due administration of justice, that a new trial be granted therefor. The view that misconduct of counsel, such as is complained of in this case is sufficient to warrant and require the granting of a new trial unless it be made to appear that the verdict of the jury was not in any manner influenced thereby, is fully supported by the several cases cited in the brief of counsel for plaintiff in error, and by many others.

As this case must be remanded for new trial, there is perhaps one further assignment of error we should notice briefly. On the trial of this cause in the court of common pleas counsel for the railroad company requested the following instruction, which the court refused to give: “The laws of Ohio expressly permit a railroad company to operate its engines during the months of December, January and February without using a spark arresting- device and if, therefore, you find that the defendant’s engine was, at the time of the fire, equipped with and using such a device, that was merely a voluntary precaution against fire taken by the defendant, and which the law did not require of it. The jury are, therefore, not concerned with the questions whether the spark arrester was or was not of the best pattern, or was or was not in repair except as the fact that it was of the best pattern and was in good repair, if proved, may tend to show that the engine so equipped did not and could not have started the fire.” This instruction, we think, contains a correct statement of the law. It was, under the issues and evidence in this case, a pertinent instruction, and should therefore have been given to the jury. Inasmuch, however, as it affirmatively appears by answers to the special interrogatories submitted to the jury, at the request of counsel for the railroad company, that defendant’s locomotive, at the time of the fire, was equipped with a proper spark arresting device, and that said spark arrester was then in good repair, the refusal to charge as requested was not, we think, in view of what was said in the general charge upon that subject, such prejudicial error as to require a reversal on that ground.

Judgments of the circuit court and of the court of common pleas reversed, and cause remanded to the latter court for a re-trial according to law.

Spear, Davis, Shauck and Price, JJ., concur.


author: Summers, C. J.

text:
    Walker et al. v. The Village of Dillonvale.

      Taxpayer may maintain action — In behalf of self and others, when —To recover money illegally paid out of public treasury — Question of compensation of members of village cotmcil — Section 197, Municipal Code.

    1. In the absence of statutory regulation a taxpayer may maintain an action, on behalf of himself and other taxpayers, to recover money illegally paid out of the public treasury; and in such action may unite as defendants all against whom any relief is asked and whose right will be affected by the determination of the subject of the action.
    2. Section 197, Municipal Code, as amended in 1904 (97 O. L., 118), fixes the compensation of a member of council of a village at two dollars for each meeting, not to exceed twenty-four meetings in any one year, and it is not necessary that it should have been fixed by an ordinance, passed before the commencement of his term of office, but the council may authorize its payment by a resolution passed after the services have been rendered.
    (No. 11441
    Decided April 12, 1910.)
    Error to the Circuit Court of Jefferson county.
    ■ The facts are stated in the opinion.

      Mr. E. E. Erskine and Mr. 'Carl H. Smith, for plaintiffs in error.
    Sections 1777 and 1778, Revised Statutes, specifically indicate what suits the solicitor or taxpayer can bring in the name of the village or city, i And if defendant in error is resorting to his remedy in equity to compel the restitution of these funds the suit should have been brought by Thomas McCabe, a taxpayer of the village of Dillonvale, on behalf of himself and other taxpayers, ast provided in Section 5005. Nor is the village of Dillonvale the real party in interest in this case to compel the return of this money, as provided in Section 4993.
    Defendant in error does not charge the plaintiffs in error with fraud, collusion or even haste in drawing this money from the village treasury. The only irregularity which' the most liberal construction of this petition will permit, is that no ordinance was passed by the village council at the beginning of the year 1905 fixing their salaries. Section 197, Municipal Code, amended April 18, 1904 (97 O. L., 118).
    In the attorney general’s report of 1906, at page 205, he holds that councilmen in villages who are elected to office without compensation may vote themselves a salary while in office. Mechem on Public Offices & Officers, Section 858; Purcell v. Parks, 82 Ill., 346; State, ex rel., v. Carlisle, 3 N. P., N. S., 545.
    Whatever interpretation may be placed upon this' section of the new code by the courts it is clearly manifest from this resolution that these men felt that under its provisions they were justly and legally entitled to this compensation of forty-eight dollars each. '
    Courts do not relieve parties from their acts and deeds fairly done on a full knowledge of facts, though under a mistake of law. Lyon v. Richmond, 2 Johns. Ch. (N. Y.), 51; Mays v. Cincinnati, 1 Ohio St., 268; Phillips, Exr., v. McConica, Gdn.. 59 Ohio St.. 1.

      In the case at bar the village has received the services of the councilmen; the councilmen have in turn received their compensation, to which the statutes clearly prescribe they are entitled. Can there, we submit, be any recognized distinction between the services rendered by these councilmen to the village of Dillonvale in the case at bar and the labor and materials furnished by the bridge company in the case of State, ex rel., v. Fronizer, 77 Ohio St., 7.

    That a municipality is bound by an authorized payment made by its officer or to its officers under a misconstruction or mistake of law, has been recognized in other states. People v. Foster, 133 Ill., 496; Morgan Park v. Knopf, 199 Ill., 444; Snelson v. State, 16 Ind., 29; Hedrick v. United States, 16 Ct. Cl., 88; 2 Dillon on Municipal Corporations, Section 914; Commissioners v. Noyes, 35 Ohio St., 201; Frederick v. Douglas County, 96 Wis., 411.

      Mr. W. C. Brown, for defendant in error.
    In the following authorities the reason given to entertainment of suits brought by the taxpayer are, that there is no clear and adequate remedy at law; and that such action will prevent a multiplicity of suits. Newmeyer v. Railroad Co., 52 Mo., 81, 14 Am. Rep., 394; State, ex rel., v. Board of Education, 35 Ohio St., 368; Jackson v. Norris, 72 Ill., 364; Frame v. Felix, 167 Pa. St., 47, 31 Atl. Rep., 375; Bound v. Railroad Co., 45 Wis., 543.
    There is no foundation. in authority for the claim that the power of chancery is only in junetive. It would be a reproach to justice if it were true. In the present case the appropriation was made, the warrant was drawn and the money paid by the treasurer, before an attorney could have comprehended the situation, or have written the caption of a complaint. Russell v. Tate, 52 Ark, 541, 20 Am. St., 193; Bailey v. Tillinghast, 99 Fed. Rep, 801; Crampton v. Zabriskie, 101 U. S., 601; 15 Am. & Eng. Ency. Law (1 ed.), 1140; 16 Cyc, 34; 1 Pomeroy’s Equity Juris. (3 ed.), Section 260; Clee v. Sanders, 74 Mich, 692; Shakespear v. Smith, 77 Cal, 638, 20 Pac. Rep, 294.
    Aside from the inadequacy of the remedy at law the taxpayer as such has a claim to enter a court of equity on the theory of the relation of trust. Analogous with the right of the shareholder of the private corporation to compel restitution from the directors is the right of the taxpayer to compel fair dealing from those in control of municipal funds. 2 Dillon on Municipal Corporations, Section 915, It was a conversion of trust funds for which each of them, as also the mayor who ordered and the treasurer who made the payment, are liable. Frost v. Belmont, 88 Mass, 152; Loan Association v. Lyon, 29 N. J. Eq, 110; Blakie v. Staples, 13 Grant U. C., 67; 2 Dillon on Municipal Corporations, Section 914; McClain v. McKisson, 15 C. C., 517; Brockman v. Creston, 79 Ia, 587, 44 N. W. Rep, 822; Cope v. Wells-ville, 25 W. L. B., 250.
    If Sections 5006 and 5008, Revised Statutes, do not grant to the plaintiff the full relief that existed in equity before the passage of the code, then the plaintiff can resort to the rules of equity as found in the doctrine of preventing multiplicity of suits. Peter v. Foundry & Machine Co., 53 Ohio St., 534; 1 Pomeroy’s Equity Juris. (3 ed.), Section 255; Hardie v. Bulger, 66 Miss, 577, 6 So. Rep, 186; Hayden v. Thompson, 71 Fed. Rep, 60; Blair v. Newbegin, 65 Ohio St., 425; Insurance Co. v. Beard, 80 Fed. Rep, 66; State, ex rel., v. Fronizer, 2 N. P., N. S, 373; State, ex rel., v. Sullivan, 15 C. C., 477; Egbert v. Building Assn., 8 N. P., 507; Zinn v. Baxter, 65 Ohio St., 341.
    If the case at bar should have been brought by the plaintiff, Thomas McCabe, on behalf of himself as taxpayer and on behalf of all other taxpayers, the error may be rectified by an appronriate amendment.. Shaw v. Jones, 4 N. P., 372; 2 Bates’ Pleading, Practice, Parties & Forms, 1789.
   Summers, C. J.

In April, 1906, a suit was commenced entitled The Village of Dillonvale on Relation of Thomas McCábe against Harry Walker, William S. Parlett, William Lappin, George King, Asa Hooper and Oliver I. Guyton, as individuals and as councilmen of the village. The relator avers in the petition that he is a taxpayer of the village and that the defendants, on the first Monday of May, 1903, qualified as councilmen of the village and acted as such up to and on the fourth day of December, 1905. when they, as such councilmen, adopted the following resolution: “Be it resolved by the council of Dillonvale that each member shall receive his year’s salary as provided by the new code.”. That the clerk issued to each a voucher for $48.00, and that the village treasurer paid to each $48.00 upon such voucher. That the council of the village had at no time by ordinance, or otherwise than by such resolution, provided for the payment of salaries to councilmen of the village, and then prayed for judgment for and in behalf of the village against the defendants and each of them in the sum of $288.00.

Each of the defendants filed a demurrer to the petition on six of the ten grounds authorized by statute. The court overruled the demurrers, and the defendants not desiring to plead further entered judgment against each in the sum of $48.00, with interest and costs. On error the circuit court affirmed.

The third, fourth, fifth and sixth grounds of the demurrer are, that the plaintiff has not legal capacity to sue; that there is a misjoinder of parties defendant; that separate causes of action against several defendants are improperly joined; and that the petition does not state facts sufficient to constitute a cause of action. The plaintiffs contend that Section 1777, Revised Statutes, which provides that the city solicitor shall apply in the name of the corporation to a court of competent jurisdiction, for an order of injunction to restrain the misapplication of the funds of the corporation, or the abuse of its corporate powers,- or the- execution or performance of any contract made in behalf of the corporation in contravention of the laws or ordinances ■ governing the same, or which was procured by fraud or corruption; and that he shall likewise, whenever an obligation or contract made on behalf of the corporation granting a right or easement, or creating a public duty, is being evaded or violated, apply for the forfeiture or the specific performance of the same ; and in case any officer or board fails to perform any duty expressly enjoined by law or ordinance, he shall apply to a court of competent jurisdiction for a writ of mandamus to compel the performance of such duty; and Section 1778, Revised Statutes, which provides that in case the solicitor fails, upon the request of any taxpayer of the corporation, to make the application provided for in the preceding section, it shall be lawful for the taxpayer to institute suit for that purpose in his own name, on behalf of the corporation, do not authorize a suit by either the solicitor or a taxpayer to recover money illegally paid out of the treasury. They concede that if a remedial statute, giving a remedy which formerly might be had in equity, is not as full in its application or administration as the rules of equity permit, a party may still resort to equity for the remedy which the statute fails to provide, but contend that in such case the suit would have to be brought in the name of the taxpayer on behalf of himself and the other taxpayers.

Section 1777 does not confer a right, but imposes a duty upon the city solicitor, and while Section 1778 authorizes a taxpayer, in the cases specified, to bring suit if the solicitor upon request in writing-fails to do so, and prohibits the court to entertain such a suit by a taxpayer excepting in the event of such failure, still it is not to be construed as a limitation on the remedy by a taxpayer in cases, not within the statute. In The Cincinnati Street Railroad Company et al. v. Smith et al., 29 Ohio St., 291, 303, Gilmore, J., speaking of these sections says: “The sections do not provide remedies that were previously unknown. Courts of equity had long1 taken jurisdiction and granted injunctions in such cases when properly presented by interested individuals, whose rights were put in jeopardy by the illegal or unauthorized acts, or threatened acts, of municipal corporations. The sections were therefore simply intended to regulate the practice in such cases to this extent, that applications for injunctions in such cases should be made by the city solicitor, and should not be made without his knowledge.”

The fact, therefore, that the relief sought by the taxpayer in the present case is not within the terms of those statutes does not show in him a want of capacity to sue.

Platt, etc., v. Colvin et al., 50 Ohio St., 703, was a suit by a stockholder in the United States Express Company, a joint stock association, to recover monev that had been stolen from the company. In the court of common pleas a demurrer to the petition was sustained on the ground that the plaintiff was without capacity to sue. In the opinion Williams, J., after stating the rule in chancery, that suits must be prosecuted by the real parties in interest, and all who unite in interest must be joined, and citing cases illustrative of the application of the rule with its exceptions, says: (711) “The rule, and its exceptions, in their breadth and substance, were adopted into our code (Sections 4993, 5007 and 5008, Revised Statutes), and, by its provisions made applicable to the civil action which it substituted for what was theretofore known as the suit in equity and the action at law.” And it is there held that: “Section 5008, of the Revised Statutes, which provides that when the parties are very numerous and it is impracticable to bring them all before the court, one or more may sue for the benefit of all, applies to actions of a legal, as well as to those of an equitable nature.” And it is held that a stockholder in the unincorporated joint stock association might sue in behalf of himself and all other stockholders for the recovery of tlie money which had been stolen from the company.

If a stockholder in such an association may sue in behalf of himself and the other stockholders, and if a taxpayer may sue to enjoin the misapplication of the funds of a city, we see no good reason why he may not be permitted to sue on behalf of the city to recover the funds that have been misapplied. If those entrusted with the custody of public funds, or those whose duty it is to protect the public, interests are remiss in their duty, or refuse to act, the taxpayer should be permitted to do so, and the courts in the exercise of a sound discretion will prevent any abuse of the privilege.

Mr. Justice Field in Crampton v. Zabriskie, 101 U. S., 601, savs: “Of the right of resident taxpayers to invoke the interposition of a court of equity to prevent an illegal disposition of the moneys of the county, or the illegal creation of a debt which thev, in common with other property-holders of the county, may otherwise be compelled to pay, there is at this day no serious question. The right has been recognized by the state courts in numerous cases; and from the nature of the powers exercised by municipal corporations, the great danger of their abuse, and the necessity of prompt action .to prevent irremediable injuries, it would seem eminently proper for courts of equity to interfere, upon the application of the taxpayers of a county, to prevent the consummation of a wrong, when the officers of these corporations assume, in excess of their powers, to create burdens upon property-holders. Certainly, in the absence of legislation restricting the right to interfere in such cases to public officers of the state or county, there would seem to be no substantial- reason zvhy a bill by or on behalf' of individual taxpayers should ■ not be entertained to prevent the misuse of corporate power. The courts may be safely trusted to prevent the abuse of their process in such cases.” And Judge Dillon (Dillon on Municipal Corporations [4 ed.], Section 922),' after a survey of the cases, American and English, states his conclusion to the effect that the taxpayer may invoke the aid of the courts to prevent the abuse of its powers by a municipality and that, in the absence of statutory regulations, the right to do so is not inconsistent with the right so to do in the state or some public officer. In Webster et al. v. Douglass County, 102 Wis., 181, it is said by Winslow, J., that: “It is well settled in this state that a taxpayer may maintain an action in equity, on behalf of himself and all other taxpayers, to restrain public officers from paying out the public money for illegal purposes and may also, under the proper circumstances, compel public officers and even third persons to repay into the public treasury money already paid out illegally.” To the same effect is Land, Log & Lumber Company v. McIntyre, 100 Wis., 245.

A solicitor is not one of the officers of a village provided for by the municipal code, and the regulations prescribed by Sections 1777 and 1778 do not apply.

The fact that the suit in the present case is in the name of the village on relation of the taxpayer instead of in the name of the taxpayer for the use of the village, or on behalf of all the taxpayers of the village, has not in it sufficient merit to require a denial of relief, but the court may treat the action as one in the name of the taxpayer on behalf of the village.

It follows that the plaintiff is not without legal capacity to sue.

There are cases that hold that the defendants joined must be charged in the same-character and cannot be charged personally and officially. See Pomeroy’s Remedies and Remedial Rights, Section 502, and Bliss’ Code Pleading, Section 123, where the cases are cited and criticised. The object of the present, suit is to recover from the defendants personally and not as couricilmen, money averred to have been illegally paid to them from the village treasury, no judgment or relief against them as officials is asked, and we think they as councilmen are misjoined as defendants.

The next question raised by the demurrer is whether separate causes of action against several defendants are improperly joined. On the facts stated the village might have maintained an action against each of the defendants to recover the money paid to him, but as said by Mr. Justice McLean in Gains and Wife v. Chew et al., 2 Howard, 619, 643: “There can be no doubt that a bill might have been filed against each of the defendants, but the question is whether they may not all be included in the same bill.” He also says (642) : “In general terms a bill is said to be multifarious, which seeks to enforce against different individuals, demands which are wholly disconnected.” And it is there held that the defendants were not misjoined although they had purchased distinct parcels of real estate and at different times because their title depended upon the power of the executors to convey the land, and in this controlling question they had a common interest. In Penn v. Playward, 14 Ohio St., 302, 306, Peck, C. J., says: “There-is much obscurity in the title of the code as to 'parties to civil actions/ owing to the effort to blend, in one system, the rules pertaining to suits at law and in chancery; but the rules of courts of equity will be found to predominate in its provisions.” The rule in equity pleading as to multifariousness is made applicable to the civil action of the code by the provision for a demurrer on the ground that separate causes of action against several defendants are improperly joined, and an examination of the cases in which that rule is applied leads to the conclusion that the defendants are propeidy joined. The controlling question is the right of the councilmen to compensation when it has not been fixed by ordinance. In that question the defendants' are equally interested, for the same state- of facts applies to each and the result as to each must be the same whether the question^ is determined in one suit or in several.

The right of a councilman of a village to compensation for his services as such, when it has not been fixed by ordinance, depends upon whether it is fixed by statute, and upon this depends also the answer to the question whether the petition states a cause of action. The municipal code of 1902 (Section 126) provides' that the compensation of members of council in cities, “if any is fixed, shall be in accordance with the time actually consumed in the discharge of their official duties,” - and is limited not to exceed a stated sum per year. It is further provided that the salaries shall be paid semi-monthly and that a proportionate reduction shall be made for non-attendance upon any regular or special meeting; and that code twice provides (Sections 194 and 197) that no compensation shall be allowed to the members of the council of a village; but in 1904 (97 O. L., 118) these prohibitions were repealed and Section 197 was amended as follows: “Provided that members of council may receive as compensation the sum of two dollars for each meeting, not to exceed twenty-four meetings in any one year.”. The amended section does not provide, as does Section 126, respecting members of council in cities, that the compensation of members of council, “if any is fixed,” shall not exceed a stated sum per year, but that they may receive two dollars for each meeting. The statute itself fixes the compensation and we do not think the legislature intended that an ordinance should be necessary to fix it. The statute does not fix it at $48.00 per year, but authorizes the payment of that amount, if twenty-four meetings are held in one year, and the petition does not aver that a less number, were held.

It follows that the petition does not state a cause of action and that the judgments are reversed and the petition dismissed.

The questions presented are very well considered in the circuit court in an opinion by Cook, J., •reported in 14 O. C. C. R. (N. S.), 385, and the case is reported here only because we reach a different conclusion upon the question of the necessity of an ordinance to fix the compensation.

Reversed.

Crew, Spear, Davis, Shauck and Price, JJ., concur.


author: By the Court.

text:
    Ball v. The City of Portsmouth et al.

      Requirement of municipal corporations — To pay costs of improvements — -At intersections of ■streets — Section 55 of Municipal Code — Interpretation of said section as to expense of surveying, etc.

    1. The provision of Section 53, Municipal Code of 1902, which requires the corporation to “pay the costs of intersections” when streets are improved includes all manholes, catch basins and tiling at intersections.
    2. The obligation which the section imposes upon the corporation with respect to the payment of expenses of surveying and advertising for such improvement does not exceed the requirement that “it shall nqt he less than one-fiftieth of such cost and expenses.”
    (No. 11457
    Decided April 12, 1910.)
    Error to the Circuit Court of Scioto county.
    The facts are stated in the opinion.

      Mr. Harry Ball, for plaintiff in error.

      Mr. R. S. L. Small, city solicitor, for defendant in error.
   By the Court.

Ball brought suit in the court of common pleas on behalf of himself and numerous other owners of property abutting on Fourth street in the city o£ Portsmouth, that street having been improved under a scheme contemplating the assessment of the cost and expenses of the improvement upon the abutting property. Suit was brought to enjoin the city from collecting assessments on the property of the plaintiffs for specified items of such cost and expenses as were claimed by them to be payable by the city by force of the provisions of the statute under which the improvement was made. The cause was tried on appeal in the circuit court where as to some of the items an injunction was granted as prayed for. The items which are brought to our attention by the petition in error are the cost of manholes and catch basins at street intersections; tiling in cross streets at such intersections north and south of the street improved, tiling in the intersections and incidental expenses, with respect to which items the injunction was refused by the circuit court. The view urged by counsel for the plaintiffs is that payment of the cost of all these items is charged upon the city by the following provision of Section 53, Municipal Code of 1902: “In all municipalities the corporation shall pay such part of the cost and expense of improvements for which special assessments are levied as council may deem just, which part shall not be less than one-fiftieth of all such cost and expenses; and in addition thereto, the corporation shall pay the cost of intersections.”

With respect to catch basins, manholes and tiling, their location in street improvements is determined by considerations which address themselves to engineers. When they are so located as to become a part of the intersections, the cost of their construction is imposed upon the city in terms which are too plain to admit of interpretation. If there were occasion to seek the reason for the provision of the statute it might be found in the fact that all that is included within the intersections is to be used in the improvement of the crossing streets when such improvement shall be made, and manifest inequality would result from assessing the cost of their construction upon property abutting upon the street first improved.

The item of “incidental expenses” with respect to which the plaintiffs seek an injunction, is for such proportion of the cost of surveying and advertising the improvement as the intersections bear to the whole improvement. It is consistent with the terms of the statute, and with all that is presented for our consideration, to regard the item as included -within the “cost and expenses” of which the corporation is, by the provision quoted, to pay such part as the council may deem just, but not less than one-fiftieth of .the whole. The record shows that the city has paid such minimum proportion thereof and the circuit court properly refused the injunction as to that item.

The judgment of the circuit court will be so modified as to further enjoin all assessments on account of catch basins and manholes and tiling at intersections.

Judgment accordingly.

Spear, Davis, Si-tauck and Price, JJ., concur.


text:
    The State of Ohio v. Collingsworth.

      Death resulting from acts in violation 6† penal ordinance of munici-. polity — Not unlawful killing under Section 68il, Revised Statutes.

    The violation of a penal ordinance of a municipality, as a result of which violation death ensues, is not an unlawful killing within the provisions of Section 6811, Revised Statutes, which defines the crime of manslaughter.
    (No. 12118
    Decided April 12, 1910.)
    Exceptions to the decision of the Court of Common Pleas of Franklin county.
    The nature of the case is found in the opinion.

      Messrs. Webber, McCoy, King & Game, for the exceptions.
    Where the general assembly authorized municipalities to legislate upon matters pertaining to the regulation and use of the highways within their corporate limits, and, within the scope of their authority, they legislate upon such matters, such municipal legislation is a law, with all the force and effect of a statute. Freund on Police Power, Section 168; Toledo v. Cone, 41 Ohio St., 159; Construction Co. v. Cleveland, 22 C. C., 152, 67 Ohio St., 197; Campbell v. Cincinnati, 49 Ohio St., 474; Madden v. Smeltz, 2 C. C., 171; Raynolds v. Cleveland, 13 O. D., N. P., 125; Thomas v. Fremont, 12 O. D., N. P., 604; Cleveland v. Bryan, 8 N. P., 552; Moerder v. Fremont, 19 C. C., 394; Lewis v. Railway Co., 8 N. P., 418, 3 C. C., N. S., 115; Cincinnati v. Miller, 29 W. L. B., 364; Markle v. Akron, 14 Ohio, 591; Alvord v. Richmond, 3 N. P., 136, 4 O. D., 177; 9 Ency. Dig. Ohio Reports, 887; Piqua v. Zimmerlin, 35 Ohio St., 507; Cleveland v. Lenze, 27 Ohio St., 383; Lowden v. Cincinnati, 2 Disney, 203.
    Where a penal ordinance of a municipality defines what shall constitute a misdemeanor and prescribes a punishment for the violation of such an ordinance, it is manslaughter, to say the leaát, to kill a person while engaged in the wilful violation of such an ordinance. Johnson v. State, 66 Ohio St., 67; 4 Am. & Eng. Ann. Cas., 800; 3 Russell on Crimes' (6 ed.), 173; Wharton on Homicide (3 ed.). Section 4; Thompson v. State, 131 Ala., 18; Sparks v. Commomvealth, 3 Bush (Ky.), 111; 1 Bishop on Criminal Law (8 ed.), Section 327.

      Mr. Edward C. 'Turner and Mr. John A. Connor, against the exceptions.
    Neither the evidence of the existence nor evidence of the violation of a municipal ordinance ténds to support an indictment for manslaughter under Section 6811, Revised Statutes.
    The ordinance offered in evidence, or at least that part of it here pertinent, was void.
    The 'Ordinance offered in evidence provides for the punishment of something’ merely malum prohibí him and not malum in se. Johnson v. State. 66 Ohio St. 59.
    The only present authority under which an Ohio municipality could pass or enforce such an ordinance is sub-section 9 of Section 7, Municipal Code, Section 1536-100, Revised Statutes. Cooley on Constitutional Limitations, 240; Commonwealth v. Adams, 114 Mass., 323; People v. Pearne, 118 Cal., 154; Estell v. State, 51 N. J. L., 182; 1 Bishop on Criminal Law (2 ed.), 258; Archbold’s New Criminal Procedure, 9.
   By the Court.

The grand jury of Franklin county presented an indictment against Dell Collingsworth, of which the following is a copy:

“Indictment for Manslaughter.
“The State of Ohio, Franklin County, ss.:
“In the Court of Common Pleas, Franklin county, Ohio, of the Term of January, in the year of our Lord one thousand nine hundred and nine.
“The jurors of the grand jury of the state of Ohio, duly elected, impaneled, sworn and charged to inquire of crimes and offenses committed within the body of Franklin county, in the state of Ohio, in the name and by the authority of the state of Ohio, upon their oaths do find and present that at the time hereinafter mentioned the city of Columbus, Ohio, had adopted and there was in force in said city the following ordinance:
“ 'Whoever shall ride or drive any animals' in any highway, thoroughfare or public place in this city quicker than or beyond a moderate gait, or shall not slacken the pace of such animal or animals in approaching any crosswalk, upon which any person may be in the act of passing, or in the act of approaching or leaving a street car, or shall ride or drive any such animal so as to cause such animal or any vehicle thereto attached, to come in collision with or strike any other object or other person, or shall leave any such animal standing in any public place without being' fastened or so guarded as to prevent its running away, or shall turn any such animal loose in any thoroughfare, or shall hitch or fasten any such animal to any tree or tree box without the consent of the owner, or shall hitch or fasten any horse or other animal to any lamp post or water hydrant, shall be deemed guilty of a misdemeanor, and upon conviction thereof, shall be fined not less than five nor more than fifty dollars, or be imprisoned not more than thirty days, or both.’
“And that at the time hereinafter mentioned one James Brady was then and there walking upon a certain highway, to-wit, Buttles avenue, in said city of Columbus.
“And the jurors of the grand jury aforesaid do further find and present that Dell Collingsworth, late of said county of Franklin, on or about the thirtieth day of December, in the year of our Lord one thousand nine hundred and eight, within the county of Franklin aforesaid and within the corporate limits of said city of Columbus, did drive a certain horse with a vehicle attached to said horse so that said horse and the vehicle thereto attached unlawfully and in violation of said ordinance did then and there come in collision with and strike and wound the said James Brady while the said James Brady was so walking upon the said Buttles avenue as aforesaid, from which said wounds so inflicted by the said horse and vehicle so driven by the said Dell Collingsworth as aforesaid, the said James' Brady then and there died. And so the jurors of the grand jury aforesaid,, upon their oaths as aforesaid, do say that the said Dell Collingsworth, in the manner and hy the means aforesaid, did then and there unlawfully kill one James Brady then and there, being contrary to the statute in such cases made and provided, and against the peace and dignity of the state of Ohio.
“Karl T. Webber, “Prosecuting Attorney, Franklin County

The accused demurred to the indictment, but the demurrer was overruled, and on a plea of not guilty the case proceeded to trial by jury. During the progress of the trial, the state offered in evidence the ordinance adopted by the city of Columbus and which is copied in said indictment. The accused objected to the introduction of the ordinance, which objection the court sustained. To this decision the state excepted. As this ruling was fatal to the case sought to be made by the state, the court instructed the jury to return a verdict of acquittal, which was done. The prosecuting attorney took a bill of exceptions containing the points decided and obtained leave to file the same in this court, under Section 7305, Revised Statutes', to obtain the opinion- of this court upon the questions decided.

We have an imperfect record of the proceedings below, but the indictment discloses that the state predicated the charge of manslaughter upon the violation of a municipal ordinance. Or, to put the proposition in another form, it is alleged that •the unlawful act committed by the accused, which resulted in the death of Brady, was the violation of said ordinance.

The present statute defining manslaughter provides that, “Whoever unlawfully kills another, except as provided in the last three sections, is guilty of manslaughter, and shall be punished,” etc. Before the section assumed its present brief form, the crime of manslaughter was defined thus: “That if any person shall unlawfully kill another without malice, either upon a sudden quarrel, or, unintentionally while the slayer is in the commission of some unlawful act, every such person shall be deemed guilty of manslaughter, and on conviction thereof, be punished,” etc.

In addition to what this court said in Johnson v. State, 66 Ohio St., 59, we think it is sufficient to say, that the unlawful act being committed which results in the death must be an act prohibited by law, as distinguished from an act forbidden by an ordinance of one of the municipalities of Ohio. It would seem that the case just cited decides the question before us and leaves little to be said in justification of the decision of the trial court. There are many municipal corporations in this state, and each may have its ordinances, appropriate to its local needs, and therefore there cannot be any uniformity in such local laws, if they should be entitled to the name of laws. Many of the counties of the state contain several municipal corporations. What may be an unlawful- or prohibited act in one, may be lawful in another, and so throughout the state. We are not permitted to say that what may constitute an essential element of manslaughter in one city or village, need not be present in the ordinances of other cities or villages of the state. If the act of killing a person which ensues from violating a municipal ordinance constitutes manslaughter, then we have a law of a general nature which perhaps is not. of uniform operation throughout even Franklin county. Neither is it of uniform operation throughout the various municipalities of the state. The unlawful act contemplated as an essential element of manslaughter must be uniformly unlawful throughout the state. Otherwise, what might be that crime in Columbus might not be such in Dayton, Toledo, Cleveland, or any other city or village in the state.

While the ordinance excluded by the court in the case under consideration may be a wise public regulation for Columbus, its vitality is expended in punishing persons who violate its provisions according to the scope of the penalties therein prescribed. It may be that there is need for action by our general assembly to provide a general law to cover cases similar to this, but until it answers the call the courts are powerless in the premises.

In our judgment, the trial court committed no error in excluding the ordinance, and the exceptions to its rulings aré overruled.

Exceptions overruled.

Summers, C. J., Crew, Spear, Davis, Shauck and Price, JJ., concur.


text:
    The Ohio Farmers' Insurance Company v. Titus.

      Fire insurance company cannot be deemed — To have waived condition, voiding the policy — If insured property be mortgaged— Unless by agreement thereunder — Because insurance agent ,had knowledge of mortgage — Law of knowledge of company, through agent — Result of disagreement between insured and insurer— As to amount of loss — Burden of proof as to waiver by company.

    1. An insurance company cannot be deemed to have waived a condition in a policy of fire insurance rendering it void “if the subject of insurance or any part thereof, or the real estate or any part thereof described in the application as that on which any building insured herein is situated now -is, or shall hereafter be incumbered by mortgage or otherwise,” unless by agreement endorsed thereon, or added thereto, simply because its agent had notice or knowledge of the existence of a mortgage incumbrance and received premiums, when an agreement as to such mortgage was not endorsed on the policy and where such policy also provided that “No officer, agent or adjuster or other representative shall have power to waive or alter any of the provisions or conditions of this policy, except such as by the terms of this policy are made subject of an agreement endorsed hereon or added hereto and as to such provisions or conditions, such waiver or alteration, if any, shall only be valid when actually endorsed hereon or added hereto by such officer, agent or adjuster; nor shall any permission or privilege affecting this insurance exist or be claimed by the insured unless so written, endorsed 'or attached.”
    2. The provisions of a policy of insurance that impose a duty on the insured, in the event of disagreement as to the amount of ' loss, to procure an award or ascertainment of the loss by appraisers do not constitute a condition precedent, unless there is a disagreement as to the amount of the loss, and when in a suit to recover under a policy the insured avers that there was 1 no disagreement as to the amount of the loss, and further avers , that he has performed all the conditions on his part to be performed, such provisions are not put in issue by a general' denial but to make them an issue and to place upon the insured 1 the burden.of proving a waiver of them, they should be pleaded by the insurer.
    (No. 11430
    Decided April 12, 1910.)
    Error to the Circuit Court of Clark county.
    The facts are stated in the opinion.

      Mr. Lee Elliott and Mr. 'Chase Stewart, for plaintiff in error.
    The policy was issued October 26, 1902, and at the time of the fire was within a few months of expiration, so that the plaintiff had had it in his possession nearly three years. Under the rule laid down by this court in Insurance Co. v. Hook, 62 Ohio St., 256, and applied to fire insurance policies in Insurance Co. v. Baldwin, 62 Ohio St., 368, the insured is conclusively presumed to know the contents of his policy. Both these cases sustain the further proposition that the agent could not verbally waive the conditions of the policy, when by its express terms, which the insured is conclusively presumed to know,- it is expressly provided that he shall not have the power to do so.
    In Assurance Co. v. Building Ass’n, 183 U. S., 308, the limitation on the agent’s authority was in precisely the language used in the policy under consideration.
    The averments in the plaintiff’s second cause of action that there had been no disagreement as to the amount of loss, were evidently intended to remove this part of the case from the rule laid down in Graham v. Insurance Co., 75 Ohio St., 374, making an appraisal, or an offer to appraise and a refusal by the insurer, a condition precedent to the right to sue.
    We submit that the averments of the petition that there had been no disagreement between the plaintiff and the insurer as to the. amount of the loss were disproved by the evidence offered by the plaintiff himself; that the plaintiff’s own case established the fact of disagreement and brought him within the rule of Graham v. Insurance Co., supra.

    The plaintiff’s third cause of action is on an alleged agreement by the defendant to. pay $2,178 in settlement of the loss on both policies. The only evidence offered in support of this averment that the defendant agreed to pay the above amount is the testimony of the plaintiff that Corry, the defendant’s soliciting agent in Springfield, told him the company would pay this amount, which was the footing of the proofs of loss, in a few days. There is no pretense that any other person or officer of the company ever knew or heard of any promise by Corry to pay.

      Messrs. Stafford & Arthur, for defendant in error.
    Did the insurance company hold out Wallace & Corry to the world, and people of this community, as authoized to act in the capacity in which they did? Mechem on Agency, Sections 84, 86; Abbott’s Trial Evidence (2 ed.), 590, 591; Insurance Co. v. McGookey, 33 Ohio St., 556.
    We contend that the said Wallace & Corry were, in so far as the rights of Titus are concerned, general agents for said insurance company and Titus had a right to rely upon their acts and conduct as that of general agents for said company in their dealings with him. Insurance agents are ordinarily held to be general agents of the company. Mechera on Agency, 931; Insurance Co. v. Bennett, 1 N. P., 73, 56 Ohio St., 749; Krumm v. Insurance Co., 40 Ohio St., 229; Machine Co. v. Insurance Co., 50 Ohio St., 549; Kinkead’s Instructions, Section 266; Insurance Co. v. Kukral et al., 7 C. C., 356, 31 W. L. B., 223; Mechem on Agency, Section 6; 22 Cyc., 1429; 19 Cyc., 781; Insurance Co. v. Brown, 24 C. C., 52, 68 Ohio St., 655.
    If the said Wallace & Corry were general agents for this company in this county, then we contend that they had power to waive this condition, or any other, of said policy. Insurance Co. v. Hock, 8 C. C., 341, 56 Ohio St., 735; Insurance Co. v. Kukral, 7 C. C., 356, 31 W. L. B., 223; Insurance Co. v. Maloney, 33 W. L. B., 147; Machine Co. v. Insurance Co., 50 Ohio St., 549; Insurance Co. v. Wilson, 70 Ohio St., 359; Insurance Co. v. Harvey, 72 Ohio St., 186.
    After the issuance of the policy, knowledge of the agent of any of the breaches of the policy, is imputed to the company. 19 Cyc., 809.
    The delivery of the policy waives the payment of the premium, and in this case it is not denied that the policy was delivered and also the additional insurance placed upon the same. Machine Co. v. Insurance Co., 50 Ohio St., 549; Richards on Insurance, Section 595; Insurance Co. v. Kelly, 24 Ohio St., 346; Johnson v. Insurance Co., 66 Ohio St., 13.
    There was a total loss of the entire property covered by both policies. Insurance Co. v. Fish Co., 14 C. C., 160, 61 Ohio St., 643.
    No controversy had arisen relative to the value or amount of the loss.
    The holdings of the supreme court by a long line of authorities at that time, were to the effect that before the arbitration clause would serve any company as a defense, it must have appeared that they demanded such arbitration. Graham v. Insurance Co., 75 Ohio St., 375; Insurance Co. v. Carnahan, 63 Ohio St., 269.
   By the Court.

Titus sued the insurance company to recover for an alleged loss by fire. The petition set forth three causes of action. The first to recover eight hundred dollars for loss of the barn on a policy for six hundred dollars, to which an addition of two hundred dollars was subsequently made. The second, to recover $1,378 for loss of contents on a policy insuring the- contents of the barn to the amount of $2,"400. The third averred that the defendant had adjusted the amount, of the loss and had agreed to pay $2,178 in settlement. The barn and contents were alleged to have been totally destroyed by a fire on July 11,-1905.

For answer, the defendant admitted the issuing of the policies and denied generally .the other allegations of the petition. For a second defense, it averred that by the terms of the policy of insurance, issued on the barn, the entire policy, unless otherwise provided- by agreement endorsed thereon or added thereto, was void, if the subject of insurance, or any part thereof, or the real estate, or.any part thereof, was, or should thereafter be incumbered by mortgage or otherwise. That it was further provided and agreed by the terms of the policy, between the insured and the company, that no officer, agent or adjuster or other representative should have power to waive or alter any of the provisions or conditions of the policy, except such as by the terms of the policy were made, the subject of agreement, endorsed thereon or added thereto, and as to such provision or conditions, such waiver or alteration, if any, should only 'be valid when actually endorsed thereon or added thereto by such officer, agent or adjuster; “nor shall any permission or- privilege affecting this insurance exist or be claimed by the insured unless so written, endorsed or attached.” It then averred that after the issuance of said policy, and before the time of the fire, the real estate on which the barn was situated was incumbered by a mortgage in the sum of four thousand dollars, without any agreement therefor being endorsed on,' or added to, the policy of insurance, in violation of the terms and conditions of the policy, and that thereby by its terms, the policy became and was at the time of the loss by fire wholly void and of no effect. Subsequently, by amendment, it averred that it was further provided and agreed by the terms of the policy on the building, that the entire policy should be void if the premium, or any note given therefor, should have been due and unpaid for thirty days at the time of the loss, and averred that the premium for the additional insurance had never been paid, whereby the policy became null and void.

The plaintiff replied admitting the incumbrance for four thousand dollars and that it was made without any agreement therefor being endorsed on the policy; but averred that on or about the date of the execution of the mortgage he had notified the company of the execution of the mortgage, the date thereof, to whom executed and the amount thereof, and that the company then' consented to the incumbrance and waived the condition of the policy pleaded in the answer, and averred that the company thereafter received additional premiums, and neglected to endorse the agreement to waive the provisions, as to incumbrance, on the policy, although opportunity had been given it to do so. The plaintiff also denied that it had not paid the premium.

During the trial the plaintiff was given leave to amend, at bar, the second cause of action, to conform to the proof by adding the following averment: “Plaintiff further says that the loss of said personal property insured by said policy was total, and an appraisement of same was impossible, and well known by said defendant to be so; that said defendant compan}^ never disputed the amount or value thereof, but that said amount and value of said loss was ascertained and determined by said defendant; and further that there has been no disagreement as to the amount of said loss between said plaintiff and defendant.” The amended answer was withdrawn and refiled. At the close of plaintiff’s evidence, the defendant moved the court to direct the jury to return a verdict for the defendant on the first cause of action, and at the close of all the evidence requested the court in its charge to so instruct the jury. The court overruled the motion and refused the request, and on request of plaintiff gave the jury, before argument, the following instruction, to which the defendant excepted: “If you find from the evidence that Wallace & Corry were the general agents for the defendant in this county, and that said'plaintiff notified said Wallace & Corry of the increase of his mortgage from $2,500 to $4,000 prior to the loss; and subsequent thereto and prior to any loss, the said defendant, with the knowledge of the existence of said mortgage, granted additional insurance on said barn, then I charge you that the granting of such additional insurance was a waiver■ on the part of said defendant of that condition in said policy, requiring the consent of the company to encumbrances on the property insured, subsequent to the issuance of the policy, to be endorsed on said policy in writing.”

The court in the general charge instructed the jury as follows, to which the defendant excepted: “If, therefore, you find from the testimony that at the time of the execution of the $4,000 mortgage that the plaintiff went to Wallace & Corry and advised them of the execution of a new mortgage for $4,000, and the cancellation of the old one for $2,500, and that Wallace & Corry advised the plaintiff that it would be all right to so execute the new mortgage for $4,000 and cancel the old one for $2,500, and if you further find from the evidence that Wallace & Corry were the general hgents of the defendant .in .this county, in the procuring of insurance, and had general authority to represent the defendant in the transaction of its business in this county, as an insurance company, such as by the filling out and issuing of policies, the making of contracts of insurance and the collection and handling of the moneys of the defendant, and the adjustment and payment of certain losses of the defendant, then these facts may be considered by you for the purpose of enabling you to determine whether or not Wallace & Corry had authority on behalf of the defendant to waive the provision of the said contract of insurance, in regard to the manner by which the agreement and consent of the defendant to the said incumbrance of $4,000 might be secured.

“If you find from the evidence that the defendant company, prior to the said loss, knew of the execution of this new mortgage for $4,000, and the cancellation of the old mortgage for $2,500, and with such knowledge acquiesced therein and recognized the validity of the said policy of insurance under such changed conditions, such as by accepting payment of premiums thereafter from the plaintiff, or by paying losses thereunder' to the plaintiff on said policy, then the defendants would be considered as having consented to such change in the incumbrance on said property and would be considered as having waived a strict compliance with the provisions of the policy as to the manner .in which its consent or agreement to such new incumbrance should be secured.

' “The burden, of showing the authority of Wallace & Corry to waive a strict compliance with the provisions of the policy in question is upon the plaintiff.”

The 'jury found for the plaintiff for $2,138.75, the plaintiff remitted five dollars and judgment was entered for $2,133.75, and on error ip the circuit court the judgment was affirmed.

The plaintiff in error contends that the court erred in not directing a verdict for the defendant on the first cause of action; that the plaintiff’s evidence tended to prove a disagreement as to the amount of the loss, and no appraisement or demand and refusal, and that, therefore, the second cause of action falls within the rule in Graham et al. v. The German American Insurance Company, 75 Ohio St., 374.

The contract of insurance stipulated that the policy, unless otherwise provided by agreement endorsed thereon, should be void if the real estate, or- any part thereof described in the application, should thereafter be incumbered by mortgage or otherwise. And further: “And no officer, agent or adjuster or other representative shall have power to waive or alter any .of the provisions or conditions of this policy, except such as by the terms of this policy are made the subject of agreement endorsed hereon or added hereto, and as to such provisions or conditions, such waiver or alteration, if any, shall only be valid when actually endorsed hereon or added hereto by such officer, agent or adjuster; nor shall any permission or privilege affecting this insurance exist or be claimed bjr the insured unless so written, endorsed or attached.”

The insured had the policy in his possession and is presumed to know its provisions. These provisions are valid, they are usually found in such contracts, and are considered necessary for the protection of the company. They cannot be waived by the agent, excepting in the manner stipulated in the policy, and would afford very little protection to the company if they could be. (Union Central Life Insurance Co. v. Hook, 62 Ohio St., 256; The Eureka Fire & Marine Insurance Co. et al. v. Baldwin, 62 Ohio St., 368; Northern Assurance Co. of London v. Grandview Building Association, 183 U. S., 308.) To avoid them it must be shown that the company waived them or is estopped to enforce them, and this cannot be done by proof of acts or representations of the agent, not brought to the knowledge of the company. There is no evidence in the record even tending to prove that the company knew of the additional incumbrance. The most that can be claimed for the evidence is, that it tended to prove knowledge on the part of the agents who issued the policy, and that these agents were general agents for the county. But it is not contended that these agents had any authority to make contracts not containing the provisions . already referred to, and the fact, if such was the fact, that they were general agents for the county did not affect the question. There was no evidence tending to prove that the company accepted premiums with knowledge of the additional incumbrance, and nothing to estop the company as to any matter in issue.

In Graham et al. v. The German American Insurance Co., 75 Ohio St., 374, it is held that a provision similar to the one in this case as to appraisement, is a condition precedent when there is a disagreement as to the amount of the loss; and that when there is a disagreement as to the amount of the loss, an appraisal is required by the terms of the contract, and in a suit on the policy the burden is on the insured to show performance. In the instant case the evidence tended to show that the company withheld the payment of the loss because of the receipt of an anonymous letter stating that the insured did not have any personal property in the barn and that he had set fire to the barn, and counsel for the company contend that this shows that the amount of the loss was in dispute. The plaintiff not only averred that there was no disagreement as to the amount of loss, but also the performance of all the conditions on his part to be performed. Section 5091, Revised Statutes, provides that, “In pleading the performance' of conditions precedent in a contract, it shall be sufficient to state that the party duly performed all the conditions on his part; and if such allegation be controverted, the party pleading must establish, on the trial, the facts showing such performance.” The provision as to appraisement is a condition precedent only when there has been a disagreement as to the amount of the loss, and in view of the statute, and the averments of the petition that there was no disagreement as to the amount of the loss, and that the plaintiff had performed all the conditions om his part to be performed, the defendant, in order to raise the issue and put the plaintiff to his proof as to performance of this condition, should have denied performance of all the conditions and should have pleaded specifically this provision of the policy.

The making of the additional incumbrance and the failure to endorse .being admitted, and there being no evidence tending to prove waiver by the company, the trial court should have directed a verdict for the company as to the first cause of action, and the judgment will be modified by deducting the amount of the loss of the building. •

Judgment modified.

Summers, C. J., Crew, Spear, Davis, Shauck and Price, JJ., concur.


author: Price, J.

text:
    The State of Ohio v. Whitten.

      Defendant indicted for pocket-picking — Section 6818, Revised Statutes — Not error for court to refuse to charge — Jury might find defendant guilty of petit larceny.

    The defendant in error was being tried on an indictment for pocket-picking, which act is made criminal by the provisions of Section 6818, Revised Statutes, and he requested the court to charge the jury as follows: “You may find the defendant not guilty of the offense charged, but guilty of petit larceny.” The court refused to so charge.

      Held: not error.
    (No. 12143
    Decided May 3, 1910.)
    Error to the Circuit Court of Franklin county.
    The whole case is stated in the opinion.

      Messrs. Webber, McCoy, King & Game, for plaintiff in error.
    The circuit court erred in its ruling -and decision that under the Ohio law a person charged by indictment with the crime of pocket-picking could be found guilty by a jury of the offense of larceny. Barber v. State, 39 Ohio St., 660; State v. Johnson, 58 Ohio St., 417.
    Where a jury finds a person guilty of pocket-picking, their verdict need not find and return any value of the property taken. Harris v. State, 57 Ohio St., 92.
    Again, the crime of pocket-picking under our statutes is an offense against the person, while larceny is an offense against property. Harris v. State, 57 Ohio St., 94.
    Had it been intended to include larceny as one of the offenses-for which a person could be punished under an indictment for pocket-picking, the law would simply have made pocket-picking one of the general classes of larceny as is done in some of the states and simply designated it as larceny from the person. Ellars v. State, 25 Ohio St., 385; Armstrong v. State, 21 Ohio St., 357.

      Mr. Moses Bronson Earnhart, for defendant in error.
    The defendant in error requested the court to' charge the jury that he might not be found guilty of pocket-picking, but guilty of the crime of petit larceny. This request was refused, and the jury required to find his guilt or innocence upon the charge of pocket-picking. So, driven to decide, rather than acquit, the jury found him guilty of larceny from the person. The failure of the court' to so charge when it was an included offense is prejudicial error. Hanson v. State, 43 Ohio St., 378; Howard v. State, 25 Ohio St., 401; State v. Eno, 8 Minn., 220.
    An indictpient for robbery involves the question of simple larceny, of which the person under indictment might have been convicted. . People v. M’Gowan, 17 Wend., 386; State v. Lewis, 2 Hawks (N. Car.), 98; Hickey v. State, 23 Ind., 21; People v. Jones, 53 Cal., 58; Commonwealth v. Prewitt, 82 K.y., 240; 1 Wharton’s Criminal Law, Sections 846, 856; State v. Graff, 66 Ia., 482; Brown v. State, 33 Neb., 354.
    . Robbery involves larceny, a taking of property from the person, and force or fear. 2 Bishop’s Criminal Procedure, Section 1001; Stevens v. State, 19 Neb., 651.
    Pocket-picking is not so heinous an offense as the crime of robbery, but “involves a stealing.” Harris v. State, 57 Ohio St., 94; 4 Blackstone’s Commentaries, 240.
    Whitten could have been indicted either for pocket-picking, or petit larceny, or both offenses set out in the one indictment, as was done in this prosecution. His conviction or acquittal, however, ends the accusation of larceny hereafter. Fanning v. State, 80 Tenn., 651; Brown v. State, 2 C. C, N. S., 409.
    If robbery includes pocket-picking and larceny, pocket-picking must include larceny. Matthews v. State, 4 Ohio St., 539; State v. Tofte, 59 Kans., 755; Conner v. State, 97 Ala., 83; Thomas v. State, 91 Ala., 34.
    The question is, is larceny involved in pocket-picking and so charged m this indictment? 2 Bishop’s Criminal Procedure, Section 1001; Brown v. State, 2 C. C., N. S., 409.
   Price, J.

At the January term of the court of common pleas of Franklin county for the year 1909, the grand jury presented an indictment against defendant in error, Edward Whitten, charging him with pocket-picking in violation of Section 6818; Revised Statutes, especially the latter part of the section. He plead not guilty to the indictment and the case was tried to a jury. The indictment alleges that the offense was committed on or about the 28th day of September, 1908, in said county, the victim being John W. Inks. Some of the material facts disclosed on the trial tend to show that at the date of the alleged crime, John W. Inks, the prosecuting witness and owner of the watch taken, resided at Fredericktown, Knox county, Ohio. Fie had at least two friends, one residing at that town, and another who resided in Indiana, but for some purpose was temporarily at Fredericktown.

There was a Saturday night train on the 'C., A. & C. railroad which stopped at Mt. Vernon on its way to Columbus. These parties took some conveyance from Fredericktown to Mt. Vernon, and there boarded the train to Columbus, all desiring to see and know the capital city on Sunday, and they arrived there at an early hour of that day. They visited many places and saw many, to them, interesting sights. Some of these places were breweries, and others were no less attractive.

Inks had heard of the German Village (a suburb of “Greater Columbus,” we presume), and to sate his curiosity, he, with the others, repaired to' the enchanted precincts of this village, where they arrived Sunday evening about seven or eight o’clock. He there saw the accused, who was engaged as a dispenser of beer and other beverages to visitors of the place, and he was also something of an. overseer, of the. delectable grounds. It seems probable that he dispensed some to Inks, who was then .in. the possession of his watch.

In due course of time the soporific effect of frequent libations, or the surcharged ambient atmosphere of the village, brought on a desire for slumber, and being obsessed by the feeling, Inks sought to and did recline on one of the benches of the village, and there became oblivious until about two o’clock of the following morning. He then had no watch to tell him the time of day. He straightway proclaimed his loss, and also informed the chief of police and requested that due search be made for his missing property. In a few days a policeman detailed for the duty, called at the office of a pawnbroker on South High street, Columbus, and the business man of that place exhibited a watch, which answered the description given. Engraved on the inside were the words: “John W. Inks, from Mother, 1907. ”s

The pawnbroker, as required, had recorded the description of the watch,' and a brief description of the man who had presented it, and to this record the accused, Whitten, had signed the name, “John W. Inks,” instead of his own name. He had obtained five dollars on the watch and gone his way. A short time after the above discovery, the policeman met the accused on the street and communicated what he had found out, and accused went with «the officer to the pawnshop and admitted that he had put the watch in pawn, but claimed he had bought it from another person and did not take it from the person of Inks. On the trial he testified to the same effect. There were other inculpatory facts and circumstances adduced at the trial which tended to establish his guilt. These facts and circumstances led to his indictment and were in evidence at the trial.

During its progress some questions were raised on the introduction of testimony, but as none of them are urged in this court, we pass them by. The accused requested that several instructions be given the jury. Some of these were given in substance, and others were not so given. Among these special charges only one now seems important, inasmuch as the circuit court found error in refusing to give it, for which error it reversed the judgment of the court of common pleas and-remanded the cause for further proceedings.

The following is the charge refused: “You may find the defendant not guilty of the offense charged, but guilty of petit larceny.” Did the trial court err in refusing to so charge? We must look to the indictment and the statute under which it is found in order to answer the question. Omitting the caption, the following is a copy of the indictment: “That Edward M. Whitten, late of said county, on or about the 28th day of September, in the year of our Lord one thousand nine hundred and eight, within the county of Franklin aforesaid, in and upon one John W. Inks, then and there being, unlawfully did make an assault and then and there one certain hunting case gold filled watch of the value of twenty dollars ($20) of the personal property of the said John W. Inks, from the person and against the will of the said John W. Inks, unlawfully, without force and violence, and without putting him, the said John W. Inks, in fear, did steal, take, and carry away, with intent then and there the personal' property aforesaid unlawfully to steal, contrary to the statute in such cases,” etc.

A brief consideration of the statute will assist in determining whether the charge should have been given. The statute is Section 6818, Revised Statutes, especially the latter part thereof. The whole section reads: “Whoever by force or violence, or by putting in fear, steals and takes from the person of another anything of value, is guilty of robbery, and shall be imprisoned in-the penitentiary not more than fifteen years and not less than one year, and whoever otherwise than by force and violence, or by putting in fear, shall steal and take from the person of another anything of value, shall be deemed guilty of pocket-picking, and shall he imprisoned in the penitentiary, not exceeding five years nor less than one year.”

This section is in Chapter 3 of Title I of the crimes act, which is entitled “Crimes against the person;” while larceny is defined by Section 6856, Revised Statutes, which is part of Chapter 4 of Title I, entitled “Crimes against property.” The act of pocket-picking is classed as an offense against the person — larceny of the person, as it is called in Section 575 of McClain on Criminal Law. As this author so speaks of this subject, the entire section is now in point. “To constitute larceny from the person, the property must have been under the protection of the person. The fact that the one from whom the property is taken is asleep does not prevent larceny being from the person. To constitute -this offense it is not essential that any violence be used, or fraud. The taking the property from the hand is enough, even if there is no resistance. The offense is thus in some cases distinguished from robbery. To constitute larceny from the person, the article must be completely removed from the person and all connection with the person severed. The offense is sometimes described by statutes so as to involve the idea of a secret taking without the owner’s knowledge. The offense of stealing from the person is an independent substantive offense distinct from that of larceny, and as such must be charged and proven, and as usually defined, it is a felony without regard to the value of the property stolen. The allegations of the indictment must show not merely larceny, but the taking from the person by some of the means specified in the statute. * * *' The offense being distinct from that of larceny, it is not necessary to allege the felonious stealing, taking and carrying away as required in the common law indictment for larceny, but it will be sufficient to charge the act as described in the statute.”

Some of the doctrine of the foregoing section is found in Harris v. The State, 57 Ohio St., 92, where this court held: “A verdict rendered upon the trial of a valid indictment for pocket-picking, which finds the defendant guilty of pocket-picking in manner and form- as charged in the indictment, is sufficient to sustain judgment and sentence,' although such verdict does not find and return the value of the property taken.”

The statute supporting the indictment in the present case does not require the indictment to allege, or the evidence to establish' any particular value of the property taken, as is necessary in making out a case of larceny, although the property taken must be of some value. Under a charge of larceny it becomes necessary to prove the value of the property taken, and likewise necessary that the jury find the value and state it in the verdict. This is required by Section 7315, Revised Statutes, which provides that, “When an indictment charges an offense against property by larceny, embezzlement, or obtaining by false pretenses, the jury, on conviction, shall ascertain and declare in the verdict the value.of the property stolen, embezzled, or falsely obtained.”

Moreover, this course of practice is required in order to measure the penaltv in cases of larceny, for Section 6856, Revised Statutes, provides that, “Whoever steals anything of value is guilty of larceny, and shall, if the value of the thing stolen is thirty-five dollars or more, be imprisoned in the penitentiary not more than seven years nor less' than one year, or, if the value is less than that sum, be fined, not more than two hundred dollars, or imprisoned not more than thirty days or both.” Therefore, in such case, the verdict must find the value to enable the court to administer the appropriate penalty.

It is argued for this special charge, that stealing or larceny is an element in the crime of pocket-picking, and an offense of a lesser grade, meriting less severe penalty. The first part of the proposition may be true, but the element of stealing is in many other distinct offenses, such as robbery and burglary. See Sections 574 and 575, McClain on Criminal Law. But this furnishes no sufficient justification for the request in the present case, if the charge in the indictment is an offense distinct f'rom and independent of the crime of larceny, and we find that it is so independent and different in-character. The second part of the proposition that the grade‘of punishment for larceny may be less than that for pocket-picking, is of no force here because of the weakness of the request itself and the condition of the evidence.

If the accused desired the jury to have the liberty to' find him guilty of petit larceny rather than pocket-picking, the request should have asked the court to direct the jury to find the value of the property stolen, so the court might know whether the offense was grand or petit larceny. No such request was made or contained in the instruction asked. We have just seen that on the charge made in the indictment the "jury need not find and return the value of the property. Harris v. State, supra. Besides all this, there is no evidence in the record as to the value of the watch taken, except the opinion of the accused. . The state introduced none upon the subject, and the accused did not venture to do so except to elicit the opinion of the defendant that it was worth eight or ten dollars. It is true that the indictment lays the value of the watch at twenty dollars, but in pleading the general issue of not guilty, value is denied, and there was no proof on the subject except as stated.

Notwithstanding the allegation of value in the indictment, had the state desired and been able to do so, we think of no rule to prevent proof that •the watch was of greater value, even exceeding thirty-five dollars, which, if returned in the verdict, might have subjected the accused to longer imprisonment than is prescribed for pocket-picking. Hence the scope of the penalty is not the same in the two cases.

But we need not reason further on the subject, for the character' of the case and. of the evidence could not admit of such an instruction. We go back to the position that pocket-picking is a crime independent of and' distinct from larcenyj and intended to be made so by the statute. Section 6818, supra, until 1883, defined, the crime of robbery only, but .on March 5, 1883, the legislature amended the section by adding thereto the definition of the crime of pocket-picking, which is also a crime against the person. See 80 O. L., 38. There seemed to be a call for a provision to cover a ground between robbery and larceny. There grew in numbers and activity a class of gentry with velvet fingers, who, without committing acts of violence, so preyed upon the innocent and unsuspecting by their skill in manipulation, that the lawmakers endeavored to provide a remedy, and they have done so. They did not make a hew offense, so much as they declared the acts named to be an offense to be punished as there prescribed. The act'then'became a distinct crime.

We are of opinion the court did not err in refusing the special charge requested. The. trial corift carefully instructed' the jury on every feature of the case, so they could correctly apply the law to the facts established by the evidence.

From these considerations it follows that the circuit court erred in reversing the judgment of the court of common pleas, and the judgment of the former is reversed and that of the latter affirmed.

Judgment reversed.

Summers, C. J.; Spear, Davis and Shauck, JJ-, concur.