2d of January, 1901, the grand jury found and returned an indictment against the same parties, for assaulting G. with intent to rob him, in violation of section 6821, Rev. St. 1906. The indictment for blackmailing was quashed on the 2d day of March, 1901. On the 14th day of August, 1901, H., one of the accused parties, commenced his action against G. to recover damages for malicious prosecution on account of the said proceedings before the justice and the court of common pleas; but the indictment against H. and the others for assaulting G. with intent to rob him was still pending and was not disposed of until November 25, 1902.

Held, that the indictment for assault with intent to rob was a continuation of the criminal prosecution started before the justice of the peace, and the same was not legally terminated when said action was commenced.

(Syllabus by the Court.)

Error to Circuit Court, Montgomery County.

Action by one Hurleman, a minor, by his next friend, Frank Ritter, against Jacob Gaiser. Judgment for plaintiff was affirmed by the circuit court, and defendant brings error. Reversed.

On the 14th day of August, 1901, the defendant in error, by his next friend, Frank Ritter, commenced an action against the plaintiff in error, to recover damages for malicious prosecution, in which petition it is averred that Gaiser, on or about the 21st day of January, A. D. 1901, falsely, maliciously, and without reasonable or probable cause therefor, filed an affidavit before Lee Markey, a justice of the peace in and for Dayton township, in Montgomery county, against the plaintiff, charging that on or about the 2d day of January, 1901, in said county, the plaintiff, Hurleman, did unlawfully, knowingly, maliciously, feloniously, and verbally demand of him, said Jacob Gaiser, the sum of $4,000, with menaces to do injury to the person of him, the said Jacob Gaiser, to wit, to assault, strike, and beat him with a club and rope, and to kill him, the said Gaiser, with intent thereby to then and there, by means of such menaces, to unlawfully, willfully, maliciously, and feloniously extort from him, Gaiser, said sum of money; and that he, Gaiser, caused a warrant for the arrest of the plaintiff to be issued and his arrest thereon secured; that plaintiff was required to enter into recognizance for his appearance to answer said charge; that on the 25th of January the case was heard by the justice, and the plaintiff was held to answer to the court of common pleas of that county, and he was required to give recognizance for his appearance there, which he gave; that on the 31st day of January, 1901, Gaiser appeared before the grand jury, and there willfully, maliciously, and without probable cause testified in said cause, and furnished to the grand jury certain false information against the plaintiff, and thereby procured the indictment of plaintiff on said charge; that on the 2d of March, 1901, said indictment was quashed and dismissed, and the plaintiff discharged, and said cause is wholly ended and deter

mined; that he was compelled to employ counsel to defend him, etc.-and prayed damages in the sum of $5,000. Gaiser answered, alleging: (1) That upon the transcript sent up from the docket of Lee Markey, justice of the peace, of the proceedings had before him against the plaintiff, and upon the testimony, the grand jury found and returned two separate indictments against the plaintiff and others jointly, one of which was still pending when this action was commenced; that said bills were found upon the same matters and facts, identical in time and place of occurrence. The answer denies that the prosecution is ended. (2) The defendant denies all malice and pleads probable cause for the arrest and prosecution; that he detailed all the facts to a competent lawyer, and sought his advice, and acted upon it in instituting the prosecution. The reply denies the pendency of the prosecution when the action was commenced. On the issues, the case was tried to a jury. At the close of the plaintiff's evidence, the defendant, Gaiser, moved the court to direct a verdict in his favor on the ground "that the proof of the plaintiff did not show that the prosecution for which damages was claimed was fully determined and ended." The motion was overruled, and the defendant excepted. cepted. The defendant then introduced his evidence, against which the plaintiff introduced evidence in rebuttal. The defendant excepted to the charge of the court. A verdict was returned for the plaintiff assessing damages. The motion for new trial was overruled, and judgment rendered on the verdict. On error, the circuit court affirmed the judgment. The case is nere on error to reverse both judgments. The material facts are stated in the opinion.

Oscar M. Gottschall, for plaintiff in error. W. A. Hallanan, for defendant in error.

PRICE, J. (after stating the facts). It was incumbent upon the plaintiff, on the trial of his action for malicious prosecution, to establish by a preponderance of the evidence, among other things, that the prosecution for which he was asking damages had legally terminated prior to the commencement of such action, and if he failed to make out the averment of his petition to that effect he had no right to recover. The question was fairly raised at the close of the plaintiff's evidence, by the motion of the defendant, Gaiser, asking the trial court to direct a verdict in his favor on the ground that plaintiff had failed, in his evidence, to establish that the prosecution complained of had legally ended. The court overruled the motion, and defendant excepted.

One of the grounds assigned in the motion for new trial is that the court erred "in overruling the motion of defendant to instruct the jury to return a verdict for the defendant at the close of the plaintiff's testimony." The motion for new trial containing this assign

ment was overruled. This ruling was complained of by Gaiser in his petition in error filed in the circuit court. The same question is presented in the petition in error filed in this court, wherein it is alleged that the circuit court erred in affirming the judgment of the court of common pleas, and in not reversing the same. Therefore our first duty is to determine the vital question whether the plaintiff in the trial court established by a preponderance of the evidence the fact that the criminal prosecution complained of had terminated or ended when he commenced his action for damages on account of the same. To decide this point, we are required to examine some of the facts disclosed by the record. As shown by the petition, the substance of which appears in our statement of this case, the plaintiff in error, Gaiser, on or about the 21st day of January, 1901, filed his affidavit against defendant in error, Frank Hurleman, and two others, charging therein that on the 2d day of January, 1901, in Montgomery county, Ohio, they did unlawfully, knowingly, maliciously, and verbally demand of him, said Jacob Gaiser, the sum of $4,000, with menaces to do injury to his person, by assaulting, striking and beating him with a club and rope, etc., with intent thereby then and there, by means of such menaces, to unlawfully, maliciously, and feloniously extort from him said sum of money. The affidavit charged the accused persons with a violation of section 6830, Rev. St. 1906; a law penalizing such acts to extort money as blackmailing and making the same a felony. On hearing of the case, the examining magistrate held the accused, including Hurleman, to answer to the court of common pleas, and recognizance was asked and given for their appearance before that court. The petition further alleges that on the 31st day of January, 1901, Gaiser appeared before the grand jury, and there willfully, maliciously, and without probable cause testified in said cause and furnished to the grand jury certain false information against the plaintiff, and thereby procured the indictment of the plaintiff on said charge, but that on the 2d day of March, 1901, said indictment was quashed and dismissed, and plaintiff discharged. The foregoing is the prosecution which the petition avers was thus wholly ended and determined. The printed record shows that the petition correctly details the contents of the affidavit upon which plaintiff and the others were arrested and bound over to the court of common pleas, and that the indictment found by the grand jury charged them with the same offense. But the record does not stop here. It appears that the same grand jury at the same time, and we think on the same testimony, found and returned another indictment, styled in the record as an indictment for assault with intent to rob. We do not find a copy of this indictment in the record; but we think it is entirely clear

that it was found on the same testimony that supported the indictment for blackmailing which was quashed, and that it covered the precise criminal transaction set out in that indictment. It appears that there was but one encounter between the parties, and that was on the 2d of January, 1901, and that after the grand jury heard Gaiser and the other evidence which he furnished, and perhaps on advice of the prosecuting attorney, the two indictments were found upon the same testimony. It is not claimed that Gaiser was twice heard before the grand jury, or that there were two separate examinations, which resulted in the two indictments. The petition does not allege that plaintiff was arrested on the indictment for assault with intent to rob, and the record shows his bond was fixed at $200 and that he remained at large on such bond until the indictment was dismissed on the 25th day of November, 1902. Such being the facts as we glean them from the record, what is the character of the second indictment as compared with the other? The crime of committing an assault with intent to rob is defined by section 6821, Rev. St. 1906: "Whoever assaults another with intent to kill or commit robbery * shall

be imprisoned in the penitentiary not more than fifteen years nor less than one year." There is one element common to both indictments, namely, an unlawful attempt to obtain the property of another. In one it was charged, that with menaces and threats to do bodily injury to Gaiser, the accused parties demanded of him the sum of $4,000. In the other it was charged in substance that the same parties on the same day and at the same place attempted to gain the same property through robbery. Both sections of the statutes whose violation was alleged in the respective indictments, are found in the same title and chapter, under the title of "Crimes Against the Person." The two indictments had a common root. Gaiser, on appearance before the grand jury, furnished the facts from which both indictments sprang. The dual form of the charge was at the instance, no doubt, of the counsel for the state.. Again, had the indictment for assault with intent to rob been prosecuted to the conviction of Hurleman, he would have been convicted for the transaction of January 2, 1901, for the occurrences of that day would have been marshaled to secure such conviction.

The action in the trial court for malicious. prosecution, which we are reviewing, was commenced on the 14th of August, 1901, and the indictment for assaulting Gaiser with intent to rob, was pending until November 25, 1902, and, of course, the prosecution on that indictment was not legally terminated when the action was commenced. That the criminal prosecution had ended prior to the beginning of the civil suit for damages on account of the same is of vital importance. As said by Bigelow in his work on Torts (marginal page 183): "if the suit for the alleged

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

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

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

(74 Oh. St. 225)

CLEVELAND CITY RY. CO. v. CONNER. (Supreme Court of Ohio. May 22, 1906.) 1. CARRIERS-STREET CARS-WRONG TRANSFER TICKET-EJECTION OF PASSENGER.

A passenger on a street railway, who has paid fare and is entitled to ride over another line belonging to the same company, and who, having asked for a transfer ticket over such other line, is given, by mistake of the conductor, a transfer which is not good over such other line, may, nevertheless, if he has exercised such care about the receiving and making use of the transfer ticket as persons of ordinary prudence are accustomed to exercise under the same or similar circumstances, lawfully insist upon being carried over such other line without further payment of fare; and if such passenger, without fault on his part, is ejected from a car for refusing to pay fare other than by such transfer ticket, he may recover damages for the tort, and cannot be restricted to damages for breach of the contract to carry him. [Ed. Note.-For cases in point, see vol. 9, Cent. Dig. Carriers, §§ 1427, 1484.] 2. SAME EVIDENCE.

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

Error to Circuit Court, Cuyahoga County. Action by one Conner against the Cleveland City Railway Company. Judgment for plaintiff. Defendant brings error. Affirmed.

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

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

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

ductor on the St. Clair Street line was strictly within the line of his duty as between him and his employer, therefore the plaintiff has no cause of action against the employer for putting him off the car. The premise is palpably correct; and the conclusion is just as clearly incorrect. This is not a controversy between the master and the servant; nor between the passenger and the conductor; nor yet between the carrier and the passenger solely in regard to the act of the carrier's servants in ejecting the passenger from the car; but it is an action against the carrier for the wrongful and negligent act of giving the transfer, as the proximate cause of the resulting injury, which was the refusal to carry the plaintiff as he had the right to be carried, and putting him off the car. Since the complaint is against the company itself, it can avail the defendant nothing to show that one of its servants obeyed a reasonable rule of the defendant in putting the plaintiff off of the defendant's car, when the defendant itself, through the agency of another servant, created the conditions which caused him to be put off. "Qui facit per alium facit per se." It is as though a single individual had first agreed to carry the plaintiff by the St. Clair Street line and by mistake had given a ticket over the Woodland Avenue line, and then, when he came to take up the ticket, taking advantage of his own mistake or wrong, refused to honor it, and forcibly ejected the plaintiff. The defendant, plaintiff in error here, is the actor throughout this transaction; although it acted through different agencies in giving and refusing to accept the transfer, and ejecting the plaintiff. It is, therefore, not sound reasoning to argue that this company is not liable in tort for refusal to carry the plaintiff and ejecting him from the car, upon the theory that the conductor, who removed the passenger from the car under a rule of the company, is personally without blame in the matter. The common pleas court therefore erred when it instructed the jury that when the plaintiff was informed that the transfer did not entitle him to ride on that car, it was his duty to pay fare, and if he did not do so, the company had the right to remove him; and that if the company was guilty of no other wrong than giving the wrong transfer the plaintiff could recover five cents, the fare for one trip, and no more. It would be unprofitable to review and discuss irreconcilable decisions in other jurisdictions. In every essential feature this case is controlled by the reasoning in P., C., C. & St. L. Ry. Co. v. Reynolds, 55 Ohio St. 370, 45 N. E. 712, 60 Am. St. Rep. 706, which we see no reason to overrule or qualify. It is conceded, however, that in order to recover, the plaintiff must be without fault in receiving and making use of the erroneous transfer; and the court of common pleas very properly instructed the jury in effect that the plaintiff in receiving, examining and using the transfer, must exercise such care as ordinarily prudent per

sons are accustomed to exercise concerning that matter under the same or similar circumstances. In Railway Co. v. Reynolds, supra, it appeared in an agreed statement of facts that the plaintiff was without fault in getting on the wrong train; but in this case, in the absence of the evidence, we cannot even conjecture what the jury might have found upon the issue, if the court had not practically directed a verdict for the defendant upon the theory which we have considered.

There is a degree of insistence in the argument for the plaintiff in error, that the record discloses a failure on the part of the plaintiff below, to make a statement or explanation of the facts to the conductor of the St. Clair Street car; and that the plaintiff was thereby precluded from the right to recover. The bill of exceptions does not bring before us the evidence which was adduced on the trial; and .for that reason we cannot determine whether the defendant in error, plaintiff below, did or did not make such a statement. Whether or not the making of such a statement is a necessary ingredient of the plaintiff's right to recover for the tort, or whether or not the failure to make such a statement would constitute a complete defense to the action, are questions which are not without difficulty; but with the best consideration which we have been able to give the subject, we have not discovered any substantial reason, nor has any been stated to us, for adopting the affirmative proposition involved in either question. We can conceive, however, that the failure by the passenger to explain how he came into possession of the transfer, and that he was without fault in getting on the car without a proper transfer, might under some circumstances, very much mitigate the damages; and we can conceive a condition of facts under which the making of such an explanation by the passenger would even tend to enhance the damages. That is as far as we feel inclined to go; and therefore the failure to make such a statement or explanation, if there was any such failure, would not of itself justify a reversal of this judgment. The judgment is affirmed.