Lucas County Circuit.

The same evening that this note was written Mrs. Robinson and her sister and one Helstern took the note to Black's store in Whitehouse. Mrs. Robinson fearing that she would be identified and unable to carry out the scheme, sent her sister into the store with Helstern. The sister ordered of the clerk, who was a son of Black, certain dry goods designated by Mrs. Black, being careful to see that the value did not exceed $7.50; the actual value of the goods so ordered being $7.42. When the goods were wrapped up she threw on the counter the note written by Mrs. Robinson to Black and proceeded to depart with the goods. The clerk undertook to prevent her carrying away the goods without paying for them but she held on to the goods and departed. The clerk followed them to the door and said in the presence and hearing of Mrs. Robinson that they would all be arrested for taking the goods. Thereupon L. W. Black went to the justice of the peace, E. R. Sly, and informed him fully of all the facts and Mr. Sly drew an affidavit which was signed and sworn to by Black in which it is charged as follows:

"That Ogle Robinson and unknown man and woman on or about the 227th day of September, 1909, at the county of Lucas, did unlawfully steal, take and carry away merchandise to the value of seven dollars and forty-two cents, the property of the said L. W. Black."

Upon the filing of this affidavit with the justice he issued a warrant directed to any constable of the county reciting substantially the language of the affidavit and commanding the arrest of the parties. Constable Bradley reached the home of Mrs. Robinson not long after she and her sister arrived there and arrested them and Helstern, and detained Mrs. Robinson and her sister at his own residence in Whitehouse until the following morning, when he took them before a justice of the

peace.

The foregoing facts are not controverted by any of the parties to the transaction. When the parties reached the office of the justice of the peace the defendants were arraigned and the affidavit read to them. Mrs. Robinson testified that she then stated to the justice of the peace that she took the goods but

Sly v. Robinson.

did not steal them. The justice treated her statement as a plea of guilty and proceeded to sentence the defendants. He, however, suspended the sentence, except the costs, which were subsequently paid by Mrs. Robinson's mother.

The trial in the common pleas court resulted in a verdict of $550 against all of the defendants and in favor of Mrs. Robinson; that court, however, granted Black a new trial and the plaintiff being required so to do remitted $200 from the verdict against the other defendants, and judgment was rendered accordingly.

We are unanimously of the opinion that the transaction as testified to by Mrs. Robinson herself, constitutes the offense of larceny. The authorities are quite uniform and are collected in 25 Cyc., 25. The rule as so stated is:

"Where parties are enaged in a cash sale, the whole transaction is incomplete until the payment is completed, and passession of the goods remains in the seller and that of the money in the buyer until they are simultaneously exchanged. If in such case the buyer gets control of the goods and makes off with them without paying for them, he is guilty of larceny. And conversely, if the seller gets the money and refuses to give up the goods, it is larceny."

I cite also Hildebrand v. People, 56 N. Y., 394. The rule just mentioned is peculiarly applicable in Ohio in view of the language of our uniform sales law as contained in Sec. 8422, G. C.

It is strenuously insisted in argument that the affidavit which undertook to charge larceny is wholly insufficient for that purpose and was so defective that the justice acquired no jurisdiction to issue the warrant. This contention is based largely upon the decision of our Supreme Court in Redmond v. State, 35 Ohio St. 81, in which "a certain lot of dry goods" was held to be an insufficient description when the indictment is assailed by a demurrer.

We need not determine in this case whether this affidavit would or would not be vulnerable if so assailed. The only question we have here, so far as the affidavit is concerned, is whether it is absolutely void or whether is was sufficient in form to give the justice jurisdiction. It must be remembered that the

Lucas County Circuit.

justce of the peace had jurisdiction generally over this class of offenses as an examining magistrate, and that in the exercise of that jurisdiction he held the affidavit sufficient. While not recommending the charging of offenses in such general language as is used in this affidavit in employing the word "merchandise," yet we are clearly of the opinion that under the circumstances in this case the justice of the peace had jurisdiction, and if acting in good faith would not be liable in an action for false imprisonment. This rule has been laid down in many cases and we can only stop to cite a few: Gardner v. Couch, 137 Mich., 358, [100 N. W. 673; 101 N. W. 802; 109 Am. St. 684]; Smith v Jones, 16 S. Dak., 337, [92 N. W. 1084]; Rush v. Buckley, 100 Me. 322 [61 Atl. 774; 70 L. R. A. 464].

On the trial of the case in the common pleas court the judge directed a verdict in favor of the plaintiff, leaving to the jury the assessment of damages only. For the reasons given, this action of the trial court was erroneous. In charging the jury the trial court instructed them that they might, if they chose, include as a part of the compensatory damages, attorneys' fees. This instruction was given to the jury without any qualification that attorneys' fees could only be allowed in the event that it appears in the case that the defendants had acted maliciously. It has, however, been the rule in Ohio as laid down in Roberts v. Mason, 10 Ohio St. 278, Diehl v. Friester, 37 Ohio St. 473, 478, and United Power v. Matheny, 81 Ohio St. 204, [90 N. E. 154, 28 L. R. A. (N. S.) 761], that attorneys' fees may be included in actions of this kind as a portion of the compensatory damages, but that it can only be so done when it appears that the defendants have acted through fraud, malice or insult.

As a result of a careful examination of the record, we are all of the opinion that the verdict is not sustained by the evidence. For the errors indicated the judgment will be reversed and the cause remanded.

Wildman and Kinkade, JJ., concur.

Smillie v. Cleveland Ry.

NEGLIGENCE STREET RAILWAYS.

[Cuyahoga (8th) Circuit Court, June 10, 1912.]

Marvin, Winch and Niman, JJ.

W. R. SMILLIE V. CLEVELAND RY.

1. Correct Concrete Rule Applicable to Facts in Particular Case. In a personal injury damage case if a correct concrete rule of conduct applicable to the facts of the particular case is given in charge to the jury, it is of no importance whether the observance of the rule is ascribed to the exercise of reasonable care or of the highest degree of care.

2. Assumption of Risk in Attempting to Board Moving Car. In an action for damages for injuries resulting from negligently starting a car which plaintiff was about to board as a passenger, it is proper to charge that one who undertakes to get on a moving car, assumes such risks as are incident thereto, and if injured thereby can not recover.

ERROR.

A. W. Lawson, for plaintiff in error.

Squire, Saunders & Dempsey, for defendant in error.

NIMAN, J.

The action in the court below was for the recovery of damages on account of injuries claimed to have been sustained by the plaintiff in being thrown or jerked from the step of a street car operated by servants of the defendant, as he was mounting the platform of the car.

The verdict was for the defendant and the plaintiff in error seeks by this proceeding to reverse the judgment rendered thereon, after the overruling of his motion for a new trial.

The errors complained of relate to the charge of the trial court to the jury. Not all the evidence is before us, but only so much as counsel for the plaintiff in error considered necessary to disclose the alleged errors in the charge.

The petition charged that the car on which the plaintiff attempted to get, had come to a full stop for the purpose of receiving the plaintiff and other passengers, and while the plaintiff was

Cuyahoga County Circuit.

in the act of boarding the car, it was started suddenly forward with a great jerk, with such force and violence that it threw the plaintiff backward and over and around the rear of the car and thereby broke his hold from the same and threw him to the ground.

From such evidence as is before us, and from the charge of the jury, however, it appears that the car had not come to a full stop, and the case was tried and presented to the jury upon the theory that the car had not fully stopped when the plaintiff attempted to get on.

One portion of the charge claimed to be erroneous is in the following language:

"And this brings me to the duty of the defendant company in this instance, and the correlative duty of the plaintiff, for the right to recover for injuries received must rest upon the fact that the defendant violated some duty it owed to the plaintiff. The duty of the defendant in this respect to the plaintiff was, if it stopped the car or brought it to such a slow rate of speed as to be an invitation for the plaintiff to board, or attempt to board the car, then it was the duty of the defendant, in the exercise of reasonable care, to keep the car in that condition long enough so that the plaintiff, in the exercise of reasonable care, might with safety board the car."

One objection urged against this part of the charge is that it might and did lead the jury to believe that after holding the car the length of time sufficient to permit the plaintiff, with ordinary care, to get safely on the car, without regard to any position of danger he might be in at the time, it would not be negligence to start the car and throw him off.

If the evidence were such as to show knowledge of a dangerous position on the part of the plaintiff, chargeable to those operating the car, this argument would have greater weight than in this case, with such evidence as is before us. We do not think the jury could have been misled in the manner suggested by the language quoted.

Another objection to this part of the charge, in connection with other language in which the court defined negligence, is that the duty of the defendant company toward the plaintiff, and the degree of care required of the defendant are not correctly stated.