Berry v. The State. owner, with intent to conceal and secrete them, until a reward was offered for their return, and for the purpose of obtaining such reward, such taking was larceny. The request refused embodied the converse of this proposition. We think the instruction was right. It is not easy to reconcile the various definitions of larceny given by text writers, and the authorities. See 2 Bish. Cr. L., § 758, note. In 2 East's Crown Law, 553, it is defined to be, "the wrongful or fraudulent taking and carrying away, by any person, of the mere personal goods of another, from any place, with a felonious intent to convert them to his (the taker's) own use, and make them his own property, without the consent of the owner." Mr. Baron PARKE, in commenting on this definition, held it incomplete in not defining the meaning of the term "felonious," and declared the taking must be, not only wrongful aud fraudulent, but also "without color of right," and that "there must be an intention to deprive the owner wholly of his property." Regina v. Holloway, 1 Den. C. C. 370. The contention of the plaintiff is that the facts established at the trial did not bring the case within the rule thus stated, inasmuch as there was no intention to deprive the owner wholly or permanently of his property. In an exact sense, it is not true that an intent to appropriate permanently the property taken is a necessary ingredient in the crime of larceny, if by permanent appropriation is meant keeping the specific property from the possession of the owner. If A wrongfully takes from B, without his consent, a bushel of wheat, and returns and sells it to B, no one will contend that the fact that the wheat was thus returned, and intended to be so returned when taken, relieves the act of taking of its felonious character. In such case, the offense of larceny would be as complete as if the wheat had been sold to a stranger. So, if the geldings taken in the case at bar had been disguised, returned and sold to the owner in pursuance of purpose formed when they were taken, that the transaction would have constituted larceny cannot be doubted. Yet, in respect to the fraudulent character of the transaction, or in point of moral obliquity, it would be difficult to distinguish it from the case here made. The only possible difference in the two cases is, that in the one there would be an intent to convert the whole value of the property, and in the other only a part. But in this case there was an utter absence of intention to restore the property unless money was paid for its restoration. There was Berry v. The State. no evidence tending to show a purpose to return the property unless a reward was offered therefor. A return, at all events, was not designed. It is true that all parties concerned in the taking contemplated and expected that the owner would offer such reward; but the purpose to return was founded wholly on the contingency that a reward would be offered, and unless the contingency happened the conversion wus complete. Whether an intent to return at some remote period of time, in case no reward was offered, would have reduced the transaction to a lesser offense, we have not considered. See note to Reg. v. Holloway, above cited. In Regina v. Spurgeon, 2 Cox's C. C. 102, where property was temporarily deposited by the owner in a public room, and was taken away by the prisoner for the purpose of exacting a reward for its restoration, the jury being of the opinion that he would not have restored it without such reward, it was held to be larceny. In Reg. v. O'Donnell, 7 Cox's C. C. 337, it was held that if property be taken with the intention of holding it until the rightful owner should pay a certain sum, and obliging such payment, the offense of larceny was complete. In The Queen v. Hall, 5 British Crown Cases, 389, the prisoner took a quantity of fat from A, removed it to another room, and in a short time offered to sell it to A as the fat of one Robinson, a butcher. It was held that he was guilty of larceny. Manning, 1 Dearsly's C. C. 21, is to the same effect. Regina v. Gardner, 9 Cox's C. C. 253. Regina v. In Regina v. Peters, 1 Car. & Kir. 245, it was held, "that if a person drop a chattel, and another find it and take it away with. intention to appropriate it to his own use, and only restores it because a reward is offered, he is guilty of larceny. In Commonwealth v. Mason, 105 Mass. 163; 7 Am. Rep. 507, it was held, that taking a horse while trespassing upon the taker's premises, with intent to conceal it until the owner should offer a reward for its return, and then to return it and claim the reward, or with intent to induce the owner to sell it astray for less than its value, is larceny. MORTON, J., said: "We think that when a person takes property of another, with the intent to deprive the owner of a portion of the property taken, or of its value, such intent is felonions and the taking is larceny." And again: "The jnry must have found, under the instruction given them, that the defendant took the horse with intent to conceal and retain it until Berea Stone Company v. Kraft. he could obtain a reward from the owner, or until he could effect a purchase from him at a price less than its real value. The intent in either contingency was to deprive the owner of, and appropriate to his own use, a portion of the value of the property. We are of opinion that upon principle, and the weight of the authorities, the taking with such intent was larceny." Mr. Bishop, in 2 Crim. Law, § 841 (a), says: "The doctrine seems to be both in principle and authority, that if the intent is not to deprive the owner of the whole thing but of a part of it, or a part interest in it, the transaction will be larceny." See, also, 2 Whart. Crim. Law, § 1781 et seq. Regina v. Holloway, so much relied on by plaintiff's counsel, was this. The prisoner was indicted for stealing some dressed skins of leather. A special verdict was returned showing that "the prisoner took the skins, not with the intent to sell or dispose of them, but to bring them in and charge them as his own work and to get paid by his master for them." The skins had been dressed by another workınan and not by the prisoner. It was held not to be larceny. In the case of Regina v. Poole, 1 Dears. & Bell's C. C. 347, similar in principle to Regina v. Holloway, COMPTON, J., referring to the latter case, said: "I confess I am not so clear as to the principle of that decision. If this had been the first time the point had been raised, I should have been inclined to think that there was sufficient here to make out the lucri causa." Whether this criticism is just or not, that case is clearly distinguishable from the present. [Omitting unimportant questions.] Judgment affirmed. The master is liable for an injury to a servant resulting from the negligence of a superior servant, while the latter is discharging the duties of one under his control, to the same extent as if the act causing the injury had been committed by an inferior servant under his directions.* * See Malone v. Hathaway (64 N. Y. 5), 21 Am. Rep. 573 and note, 579; Brothers v. Cart ter (52 Mo. 373), 14 Am. Rep. 424; Mullan v. Phila., etc., Steamship Co. (78 Penn. St. 25) 21 Am. Rep. 2 and note, 7. Berea Stone Company v. Kraft. OTION for leave to file a petition in error. Action of negli gence, for injuries to plaintiff's person while in the defendant's employment and engaged in loading stone upon its cars, through the negligence of the agents and servants of the company "in the selection, use and employment of unsafe, insecure and dangerous implements and machinery for the purpose of loading the said stone upon cars for transportation, and allowing to drop a large stone, of about three thousand pounds weight, upon the plaintiff's foot, whereby he became permanently injured." Verdict for the plaintiff. The company was engaged in loading stone from the quarry on cars, under the direction and superintendence of Orville Stone, its agent, who was foreman of the quarry; the company employed for such purpose a derrick, wire rope, chains, and hooks; the chains for hoisting soft stone, the hooks for raising hard stone; the latter were unsafe and dangerous when used to hoist soft stone, of which fact Stone and the company had knowledge. The plaintiff below and another laborer were engaged in loading the stone, the plaintiff being on the car some twentyfive or thirty feet above the stone. While such co-laborer was temporarily absent, Stone, the foreman, who had directed the use of the hooks instead of the chains, fastened the same, with the assistance of a workman, to a soft stone, to be elevated to the car by means of the derrick. As the stone reached and swung over the car, the plaintiff took hold of it to steady it, when the hooks gave way where they were fastened to the stone, breaking out a part of the same, and the stone fell, inflicting the injury. The defendant below asked the court to instruct the jury as follows: 1. "That a corporation is liable to an employee for negligence or want of proper care in respect to such acts and duties as it is required to perform as master or principal, without regard to the rank or title of the agent intrusted with their performance." 66 That, if the injury happened" (was caused) "by the negligence of the defendant's foreman, when he was doing the work of a colaborer with the plaintiff, and not when in the discharge of his duties as foreman and representative of the defendant, the plaintiff cannot recover, unless the plaintiff shows that the defendant did not exercise reasonable care and prudence in the selection of a foreman." The court refused to give either of these requests, and the defendant excepted. The judgment was affirmed. Berea Stone Company v. Kraft. E. Sowers, with whom was J. E. Ingersoll, for the motion, cited Flike v. Railroad, 53 N. Y. 549; 13 Am. Rep. 545; Harper v. Railroad, 47 Mo. 567; 4 Am. Rep. 353; Brickner v. Railroad, 2 Lans. 506; Ford v. Railroad, 110 Mass. 240; 14 Am. Rep. 598; Corcoran v. Holbrook, 59 N. Y. 517; 17 Am. Rep. 369. A. Slutz, with whom was W. T. Buckner, contra. BOYNTON, J. The errors assigned for which a reversal of the judgment is sought, are the refusal of the court to give to the jury the instructions requested, and the order overruling the motion for a new trial. That a corporation is liable to an employee for negligence, or want of proper care in respect to such acts and duties as it is required to perform as master or principal, without regard to the rank of the agent intrusted with their performance, may, as a matter of law, be very clear. But the proposition has no application to the case. It is true that the negligence charged as the cause of the injury, consisted in the selection, use, and employment of unsafe, insecure, and dangerous implements and machinery for the purpose of loading stone upon cars for transportation. But upon the trial, no question was made or doubt raised, of the fact that the company had supplied suitable and proper machinery and implements for loading stone, both hard and soft; but its liability was asserted on the ground of its negligent and careless use or employment of machinery and apparatus for hoisting stone, safe and suitable for the especial purpose or use for which such machinery was designed, but unsafe and dangerous for the use to which it was applied. The request obviously had reference to the duty of a master to furnish, so far as the exercise of due care will accomplish it, suitable and safe instrumentalities for carrying forward his work, and these having, admittedly, been furnished, and the request having no other bearing, it was properly refused. The second request was evidently founded on a misconception of the negligent act which gave rise to the company's liability. It was founded on the hypothesis that the want of care charged, and resulting in the injury to the defendant in error, consisted in the negli gent or careless attachment of the hooks to the stone to be raised; hence it was contended that when Stone, the foreman, assisted in attaching or fastening the hooks to the stone, he was performing, not the duty of foreman, but the work of a common laborer, for the |