Bresewski v. Royal Brush & Broom Co. [Vol. VIII, N. S.

the primary cause of that accident was the slipping upon the icy sidewalk, yet we held that one of the proximate causes of the injury was the failure of the Milner Company to guard this area way. Our decision in that case was reversed by the Supreme Court; there were two grounds urged for a reversal, one that we were in the wrong upon the doctrine of proximate cause, the other that the record disclosed that Blickley was guilty of contributory negligence. The decision of the Supreme Court was not reported, and we are, therefore, in ignorance of the real grounds upon which the Supreme Court decided the case. But until we are better informed, we feel like adhering to that doctrine. We feel that we were right in that case, and that we were right in the case of Ziehr v. The Maumee Paper Company, which is now pending in the Supreme Court; and upon the authority of these cases we feel that this case, so much like them, especially so much like the case of Zichr v. The Maumee Paper Company, must be decided in the same way, at least until we are better informed. Therefore, the judgment of this court will be that the judgment of the court below be reversed and the case remanded.

We do not mean to hold that the failure to guard the machine was, under the circumstances, as a matter of law, a proximate cause; but simply that it was a question to be submitted to the jury to say whether or not, under all the circumstances, the company might have reasonably anticipated an accident of this character resulting from this exposed machinery.

Ashton Coldham, for plaintiff in error.

King & Tracy and H. W. Lloyd, for defendant in error.

1906.]

Hamilton County.

DOMINION OVER CHATTELS CONSTITUTING CONVERSION.

[Circuit Court of Hamilton County.]

H. L. MACKEY, DOING BUSINESS AS THE CINCINNATI MORTGAGE LOAN COMPANY, V. THE GEORGE W. MCALPIN COMPANY.

Decided, March 17, 1906.

Conversion-Facts Constituting-Where Chattels are Seized by Mortgagee-Holding Prior Lien.

The taking possession by a mortgagee of chattel property upon which another holds a prior lien affords ground for an action for conversion.

SWING, J.; JELKE, P. J., and SWING, J., concur.

This action comes into this court on error to the judgment of the court of common pleas. In that court, the George W. McAlpin Company brought suit against the plaintiff in error for the sum of $272, being the alleged value of a certain piano, which the said George W. McAlpin Company claim was their property, and which was wrongfully converted by the said plaintiff in error. In that court the case was tried to the court without the intervention of a jury, and the court rendered judgment in favor of the plaintiff in error for the full amount claimed.

The principal error relied upon by plaintiff in error in this court is that the judgment of the court was not sustained by sufficient evidence. In the case of Railroad Company v. O'Donnel, 49th O. S., page 189, the following statement is made in the second proposition of the syllabus:

"Any wrongful exercise of dominion over chattels in exclusion of the rights of the owner or withholding of them from his possession under a claim inconsistent with his rights, constitutes a conversion."

The evidence in this case shows that the McAlpin Company had a mortgage on the property for the amount claime. It also shows that the plaintiff in error had a mortgage on the property in the sum of $34.50; that the mortgage of the McAlpin Company was prior in date to the mortgage of the plaintiff

Mackey v. George W. McAlpin Co. [Vol. VIII, N. S.

in error. One Mr. Berry was a general owner of the piano, having purchased the same from the George W. McAlpin Company, and said Berry had possession of the property. He moved out of the building in which he resided and in which he had the piano, leaving the piano, without notifying either the McAlpin Company or the plaintiff in error. Thereupon plaintiff in error took possession of the piano and removed the same from the building, and stored the same with one Pagels. It fairly appears from the evidence that at the time plaintiff in error took possession of the property, he had no personal knowledge of the prior lien of the McAlpin Company, but shortly after he took possession of the piano, he was informed by the attorney of the McAlpin Company that the McAlpin Company had a prior lien; that the mortgage was on record.

Some time after this, the McAlpin Company made demands on plaintiff in error for the property, with which demand plaintiff in error refused to comply. He not only refused to comply with the demand for the return of the property but also refused to inform the McAlpin Company where the piano was. More than a month after the piano was taken possession of, the McAlpin Company brought this suit as for a conversion.

It seems to us that these facts clearly bring the case within the rule of law as announced in the case above referred to. While the evidence does not disclose that at the time the plaintiff in error took possession of the property, there was any intention to assert any dominion over the property to the exclusion of the McAlpin Company, yet such really was the fact, because the McAlpin Company had the prior claim to the property, and it seems to us that if plaintiff in error intended to disavow its taking upon the discovery of the fact, even if he was not chargeable by the facts as disclosed in the record, it was incumbent upon the plaintiff in error to have disavowed the claim and to have tendered to the McAlpin Company the piano. But instead of doing this, he still persisted in exercising dominion over the property in defiance of the claim of the McAlpin Company, and thereafter the McAlpin Company were justified in treating the act as one of conversion as far as they were concerned.

Judgment will therefore be affirmed.

Phares, Gusweiler & Rosenberg, for plaintiff in error.

D. D. Woodmansee, for defendant in error.

INJURIES UPON A PASSENGER INFLICTED BY A CONDUCTOR, [Circuit Court of Fairfield County.]

THE SCIOTO VALLEY TRACTION COMPANY V. JACOB GRAYBILL.

Decided, September 21, 1906.

Tort-Master and Servant-Electric Railways-Liability of Company for Injuries to a Passenger-Ejected from Car Maliciously and Without Justification-Scope of Conductor's Employment-Punitive Damages.

1. It is within the scope of employment of the conductor of a trolley car to control and manage the car and to eject a passenger when necessary to preserve peace and order in the car, and where in so doing a malicious assault is committed the company is liable therefor.

2. Where one who became intoxicated before entering a car, but conducted himself with moderation after the relation of passenger was established, was subjected to an unjustifiable and unprovoked assault and ejectment, a verdict in his favor will not be set aside because for a substantial sum and out of proportion to the physical injuries which he sustained.

TAGGART, J.; DONAHUE, J., concurs; MCCARTY, J., not sitting. In this case the defendant in error filed his petition in the common pleas court of this county, alleging that he had been wrongfully ejected from one of the cars of the plaintiff in error by the conductor then being in the employ of said traction company, and that said conductor threw him on the floor of the car, dragged him off the car, wounding and cutting his face, bruising his person and otherwise injuring him. There are other averments in this petition which tend to set forth the complaint of the defendant in error, the plaintiff below.

The traction company files its answer and admits that at the time alleged the plaintiff boarded the car and delivered to the conductor a ticket which had theretofore been purchased from

Traction Co. v. Graybill.

[Vol. VIII, N. S.

the company's agent as a token of his right to a passage on said car. The answer further admits the averment that the plaintiff was ejected from the car by the conductor, and claims that it was necessary to eject him by reason of the fact that he was intoxicated and using profane and indecent language, and that no more force was used than was reasonably necessary to accomplish that purpose. The case proceeded to trial and judg ment, and a motion for a new trial was filed on behalf of the company. But two questions are presented for our consideration:

1. That the verdict is excessive.

2.

That the court was in error in its charge to the jury on the trial of said case.

The complaint as to the charge of the court and the right of the plaintiff to recover in this case, rests upon the contention that the conductor was not engaged in the scope of his employment when he committed the assault upon the plaintiff, and that consequently the company is not liable for the unprovoked and unjustifiable assault of the conductor. The second question is a sequence to this in that the company claims that it could not be held for punitive damages in case the testimony shows that the assault was malicious, willful and unprovoked.

We think it clear from the record in this case that it was the duty of the conductor to control and manage said car, and if necessary to eject a passenger from said car for the purpose of preserving peace and order, and that if the conductor in the line. of his duty and while engaged in this employment maliciously and willfully committed the acts complained of the company is liable.

The case of The Nelson Business College Company v. Lloyd, 60 O. S., 448, distinctly holds that: "an employer is liable for the willful and malicious acts of his servant done in the course of the servant's employment."

2. "When the act complained of may or may not be from its nature, in the course of the servant's employment, and this depends upon the real motive or purpose of the servant in doing. the act, it is a question for the jury to determine upon a consideration of all the circumstances adduced in evidence."