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 157 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 158 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 by 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 cause 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 159 sulted in the death of Brady, was the violation of said ordi

nance.

re

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, 90 Am. St. Rep. 564, 63 N. E. 607, 61 L. R. A. 277, 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 160 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 are overruled.

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

concur.

For Authorities Bearing upon the Question involved in the principal case, see the notes to Johnson v. State, 90 Am. St. Rep. 571; Westrup v. Commonwealth, 124 Am. St. Rep. 322.

FILMORE v. METROPOLITAN LIFE INSURANCE COMPANY.

[82 Ohio St. 208, 92 N. E. 26.]

LIFE INSURANCE-Killing of Insured by Beneficiary. The beneficiary in a life insurance policy cannot recover thereon where the death of the assured is caused by the intentional and felonious act of such beneficiary. (p. 780.)

LIFE INSURANCE-Killing of Insured by Beneficiary.-In an action to recover upon a policy of life insurance brought by the person named therein as the beneficiary, an answer by the insurance company alleging that the plaintiff murdered the assured states a defense, such an averment, in legal effect, being tantamount to the allegation that the killing charged was intentional and felonious. (p. 780.)

(Syllabi by the court.)

James Johnson, Jr., and C. S. Olinger, for the plaintiff in

error.

Martin & Martin, for the defendant in error.

211 CREW, J. The plaintiff in error, Elmer G. Filmore, as the beneficiary under a policy of life insurance issued to Emma Filmore, his wife, by defendant in error, the Metropolitan Life Insurance Company, brought suit against said. company in the court of common pleas of Clark county, Ohio, to recover the sum of two hundred and thirty-nine dollars, with interest thereon from September 3, 1906, which sum he alleged in his petition was due him as such beneficiary under the policy of insurance so issued by said company. For answer to plaintiff's petition the insurance company pleaded two defenses, the first of which was a general denial, and the

second was in words and figures following, to wit: "For a second cause of defense to the petition, this defendant says that on the third day of September, 1906, 212 the said plaintiff murdered his wife, Emma Filmore, in the city of Springfield, county of Clark, state of Ohio; that on the twenty-fifth day of October, 1906, he was indicted by the grand jury of said county for manslaughter on account of the killing of his said wife, and on the thirty-first day of December, 1906, he was convicted of said crime, and on February 25, 1907, he was sentenced by the court of common pleas to six years' hard labor in the Ohio penitentiary, at Columbus, Ohio, where the said plaintiff is now confined. Defendant says that plaintiff having caused the death of the said assured, as herein set forth, he is estopped from asserting any claim as beneficiary under said policy. Defendant, having fully answered, prays to be hence dismissed with its costs." To this defense a demurrer was interposed by the plaintiff, Elmer G. Filmore, on the ground that the facts therein stated were insufficient in law to constitute a defense. This demurrer was overruled by the court of common pleas, and the plaintiff not desiring to plead further, judgment was entered dismissing his petition. This judgment of dismissal was subsequently affirmed by the circuit court, and the plaintiff in error now asks that this judgment of affirmance be reversed by this court. The sole question here presented is as to the legal sufficiency, against a general demurrer, of this second defense as pleaded in defendant's answer. It is conceded by counsel for plaintiff in error to be the well-settled and established rule of law that a beneficiary under a policy of life insurance is without right to recover thereon where the death of the insured has been intentionally caused 213 by the act of such beneficiary, but it is contended in the present case that the second defense of defendant's answer is lacking in essential allegation, and is fatally defective, because it contains no direct or sufficient averment that the killing of the assured by Elmer G. Filmore, the beneficiary under said policy, was an intentional killing. That such objection is purely technical, and in the present case wholly without merit, is apparent, we think, from a consideration of the character and legal effect of the matter pleaded and the allegations made in said second defense. One of the express averments found in this second defense is, that the plaintiff, Elmer G. Filmore, murdered his wife, Emma Filmore, who was the assured in the policy of insurance upon which he was seeking to recover, and while it is true that neither the circumstances of the killing nor the constituent elements of the crime thus charged are pleaded with the particularity that would be necessary in an indictment charging the same crime, it is equally true that in an answer in a civil action such particularity of statement is not required, but it

is sufficient if, in such pleading, the matter constituting the defense be stated "in ordinary and concise language"; Rev. Stats., sec. 5066. Murder, being specifically defined by statute in Ohio, is a term or word of technical significance and determinate legal meaning. Hence, the averment in an answer in a civil suit that the plaintiff therein murdered his wife is not the averment of a mere conclusion, but is the allegation of a determinate and issuable fact, which, if 214 denied, could not be supported by proof merely of an unintentional or involuntary killing, for while in this state, under our Criminal Code, there are two degrees in the crime of murder, first and second, the purpose or intent to kill is made by statute an essential element of each, except only in the case of death caused from maliciously placing an obstruction upon a railroad track, etc.: Rev. Stats., sec. 6890. Wherefore it follows that the allegation in the second defense of defendant's answer in this case that the plaintiff, Elmer G. Filmore, murdered his wife, is tantamount to an allegation that he intentionally killed her, and the term "murder" employed therein by the pleader to designate and define the plaintiff's act itself necessarily imports that such killing was unlawful and felonious. And as is said by Mr. Justice Field in New York Mut. Life Ins. Co. v. Armstrong, 117 U. S. 591, 6 Sup. Ct. Rep. 877, 29 L. ed. 997: "It would be a reproach to the jurisprudence of the country if one could recover insurance money payable on the death of a party whose life he had feloniously taken. As well might he recover insurance money upon a building that he had willfully fired." In the case of Schreiner v. High Court of Illinois Catholic Order of Foresters, 35 Ill. App. 576, cited and relied upon by counsel for plaintiff in error as supporting their contention in the present case, the court also clearly recognizes the principle applicable to all contracts of insurance, that the insured or beneficiary cannot under such contract receive indemnity for a loss that he himself has intentionally brought about, the second paragraph 215 of the syllabus in that case being as follows: "There can be no recovery in an action founded upon intentional wrong. The beneficiary in an insurance policy cannot recover where the death of assured has been intentionally caused by his act." For the reasons hereinbefore stated we are of opinion that in the case at bar the allegation of defendant's second defense that the plaintiff murdered his wife should be construed as pleading an intentional killing, and, therefore, as sufficient against a general demurrer. The view we have taken as to the legal effect of this averment renders unnecessary a consideration of the other averments of said second defense. Judgment affirmed.

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