Cuyahoga Circuit Court. been sen out to make a collection, accepted 152 pounds less than the amount of the claim, and rather than lose his employment, or for som.c other reason, he paid from his own mone hundred pounds; but later the debtor paid the entire amount of tnis claim. The clerk being dead, his administrator brought suit and maintaine his action to be himself paid back the one hundred pounds, the court hoiding that the party who paid the money was entitled to have it back when the debtor paid it to the original creditor; but this, it seems to us, is not based upon the reasoning applicable in the present case. If this money paid by the property owners had been for an amount more than suffictent to make the street improvement, as is sometimes the case we the council levi s a greater assessment than turns out to be necessad a part of it i to be paid back, nobody would doubt that that which war to be paid back should be paid to the man who first paid it; and that in such case the administrator of Harkness would be entitled to have that moncy paid back to him. Such is the fair conclusion to be drawn from the case of Russell v. The Mayor of New York et al., 58 N. Y. 330. If this is the kind of a case-if the same reasoning applies to this that applies to that; if it ought to be governed by the same rule, clearly this money should be paid to Harkness. But is it governed by the same rule? The language of the ordinance is that the money paid by the property owner or his predecessor in title shall be paid to the property owner. It is not to be said, of course, that the party holding this term for years was the predecessor in title to the heirs of Schiely; but it is difficult to distinguish between the rights of the Schielys to this money, as the facts are, and what their rights would have been if they had purchased from Harkness. It is clear that the purpose of the city council in passing the ordinance granting tais franchise was to secure the payment to the property owners of money that had been paid. When these franchises are granted the city council requires something from the railroad company to whom the franchise is granted, and for some reason that seems to be acquiesced in everywher.. It is required usually, where streets are about to be paved, to pay fo: paving that portion of the street bounded by a line ne foot outside of ench side of the street railroad tracks. In this case the property owners whose property abutted upon the street where pavement was already made, should be paid on an equality with the property owners whose property abutted on that portion of the street not yet improved. I can think of no reason why the street railway company, as a part of the consideration for its franchise, should pay to the property owners abutting upon the line of the railroad, rather than to the general public, except that for some reason it is conceived that because of the construction of the street railroad, there is a sense in which the abutting property owners are damaged; certainly pavements outside or the tracks will be worn faster than they otherwise would, and there are doubtless other reasons owners of abutting property ought to be compensated for allo street railroad to pass in front of their property. For some reason that is the universal custom, so far as I know. Certainly the manner in which the street in front of this property is used, after the expiration of the term granted by the lease, was of no interest to the lessee other than it was of interest to the public in general, while it might be of great importance to the property owners. If that is the reason why it was proper for the council to require money to be paid, then it seems clear that it should go to the property owners and not to the administrator of Harkness. Har.ness paid nothing which was not legally and properly assessed and applica Davis v. Greenlee. to the proper purpose. By reason of a subsequent arrangement between the city and the street railroad company a part of that money is to be paid back by the street railroad company to some one. If the property had been sold, the provision of the franchise ordinance is that it shall be paid to the property owner if the money was paid by the predecessor in title. The same reason that would require money in that case to be paid to the property owner would, as we think, require it to be paid to the property owners in this case. The co: rt of common pleas so held, and and we think there was no error in that holding. This question has occurred to me that the judgment was for the defendants, and one of the defendants was the administrator of the estate of Schiely. I do not see what interest the administrator has in this money. It was not a claim existing in fovor of any one at the time of Schiely's death, or that grew out of any transaction which occurred before his death. The rights of the Schielys grow out of the fact that they own the premises, and not out of the fact that they inherited the premises. But it is said by counsel on both sides that there is no controversy about that matter, and peed not therefore be considered; and hence the judgment of the lower court is affirmed. Henderson & Quail, Attorneys for Plaintiff in Error. STATUTES. [Hamilton Circuit Court, February, 1897.] DAVIS, ASSIGNEE, V. GREENLEE. CONSTRUCTION OF SECTION 6355, REVISED STATUTES. The preference given by section 6355 to "operatives" over other creditors ap plies only to those classed as operatives in the usual and dinary cerse of the word. HEARD on Error. SMITH, J. In this case the assignee of Sloan seeks the reversal of the judg ment of the court of common pleas, which required him to pay from the assets of his assignor's estate to Greenlee $300 as a preferred claim for services rendered by him as a laborer and operative while in the service of said Sloan, and in preference to any claims under and by virtue of any chattel mortgages given on assigned property by said Sloan. The agreed statement of facts brought into the record by a bill of exceptions, shows this state of fact. Sloan, the assignor, before his assignment, was engaged in publishing and selling Sloan's Legal Directory to attorneys in United States and in Canada. Greenlee was employed by him as a traveling agent to work for him in obtaining subscribtions to such book, and in selling it in the territory aforesaid, and in collecting accounts due to Sloan, and traveled from place to place to do this, going from office to office, and interviewing prospective subscribers and presenting the merits of the publication. He was to be p id for his services $100 per month and all his traveling expenses. At the time of the Hamilton Circuit Court. assignment the balance due to him for his services was $652.05, more than $300 of which was due for the services for the year immediately preceding the assignment. Shortly before the assignment (seven days before), Sloan gave chattel mortgages upon the property assigned to other persons, for antecedent debts, on which there were certain sums due, and that said mortgages were rated liens on the property in the hands of the assignee The claim of Greenlee to priority of payment from the fands in the hand of the assignee is based on section 6355, Revised Statutes, which provides for the payment of prefered claims by an assignee as follows: "All taxes of every description assessed against the assignee upon any personal property held by him before his assignment shall be paid by the assignor or trustee out of the proceeds of the property assigned, in preference to any other claims against the assignor, and every person who shall have performed any labor as an operative in the service of the assignor shall be entitled to receive out of the trust funds, before the payment of the other creditors, the full amount of the wages duc to such person for such labor performed within twelve months preceding the the assignment, not exceeding $300. But he foregoing provision shall not predjudice or in any way effect securities given or liens obtained or in good faith for value, but judgment by confession on warrants of attorney rendered within two months prior to such assignment, or secureties given within such time to create a preference among creditors, or to secure a pre existing debt other than upon real estate or the purchase money thereof, shall be of no force or validity as against such Ïaims fe iabor, to the extent above provided, in case of assignment." The mortgages referred to, having been given less than two months before the assignment and to secure a preexisting debt, the only question in dispute is, whether the wages of Greenlee, to the amount of $300, for services rendered to Sloan, the assignor. within the twelve montus next preceding the assignment, have priority as to payment from the assets in the hands of the assignee over the amou due on such mortgage claims. That is. did Greenlee perform labor an operative in the service of the assignor? While we are not disposed to place a very strict construction uron this language as used in this statute, and in view of what we deem De the purpose of the Legislature in its enactment, viz: to protect and prefer the claims of those who as workmen or laborers serve their cmployer in the house, field, factory or mine, or in other like s vices, would be strongly inclined to be liberal in the construction to be placed upon it, yet we are of the opinion that on the admitted facts of this case, it can not rightfully be said that Mr. Greenlee performed labcr as an operative in the service of Mr. Sloan so as to entitle him under the terms of this statute to a preference. Certainly in the ordinary and usual use of the word, a person rendering services like those rendered him, would not be spoken of as "an operative," and the definition of the word and of the other words, laborer and wo: as given by the exicons, would indicate that the common acceptation of the meaning of these words is the correct one. It surely can not be that the statute was intended to give a preference to every person who had performed labor of any kind for the assignor within the period prescribed. If so, he lawyer who may have tried a case for him, or the physician or surgeon who may have rendered him service ine line of their profession, m be cons.delcu as operatives," for it is on when the service is renderec City of Toledo v. Duffy. as an operative that the statute applies, and this could not have been the intention of the Legislature. The view we take of the case as to the meaning to be given to these words is supported by the cases of Green v. Weller, 3 C. D., 488, and Brockay v. Innas, 39 Mich., 47, and we are not cited to any authority to the contrary. It is strengthened, too, by the history of the legislation on the subject. Prior to March 6, 1861, the statute simply provided for the payment of taxes as a preferred claim. On that day an amendment was enacted which, in substance, was the same as that now in force. (Ô. L. 58), providing that any person who shall have performed any labor as an operative "in the service of any person or corporation" who assigns, shall be preferred. On May 7, 1878, (Vol. 75, 134), the law of 1861 was amended providing "that every person who shall have performed labor in the service of any person or corporation" should be entitled to a preference for his wages not exceeding $300. This act, it will be perceived, left out the provision that the labor was to be performed as an operative, and if still in force would perhaps entitle Crconlee to the priority claimed. But it cannot be said that this statute was ever in force, for the reason that in the revision of the laws, passed on the same day (Vol. 75. 943), the old provision was reenacted by it only those who performed labor as operatives were preferred. And this provision has been carried into all amendments since made, and the words "as an operative" certainly have some meaning. Taking this view of the subject, we must reverse the holding and judgment of the court of common pleas and enter a judgment on the agreed state of facts that Greenlee is not entitled to priority, as claimed, over the mortgages referred to. David Davis for Plaintiff in Error. A. M. Warner, contra. CHARGE TO JURY. [Lucas Circuit Court, January 26, 1897.] Haynes and King, JJ. CITY OF TOLEDO, V. MARGARET DUFFY. 1. ERRONEOUS Charge as to RIGHT OF INJURED PARTY To Recover PHYSICIAN'S FEES. In an action for damages, including physician's fees, for injuries sustained by plaintiff, a married woman, it is crror for the court to charge the jury that plaintiff's right to recover such fees depended upon the fact "whether she herself is or is not liable to pay these expenses.' 2. RIGHT OF INJURED PARTY TO RECOVER PHYSICIAN'S FEES. Such fees cannot be recovered, where the evidence clearly shows that there was no employment by plaintiff of the physician, but that instead the husband was clearly liable; and it was therefore the duty of the court to have directed the jury that the fees for the physician's services could not be recovered by plaintiff in this case as against the city. ERROR. 7 Dec. 8 Lucas Circuit Court. HAYNES, J. Margaret Duffy brought suit in the court of common pleas of this county against the city of Toledo to recover damages for a personal in jury sustained by her while walking along a street of the city, by reason of a defective sidewalk. Such proceedings were had that a judgment was rendered in her favor for $500. The defendant in that suit-plaintiff in error here-the city of Toledo, prosecutes error here, claiming error in two particulars: one, the admission of certain evidence as to the condition of the sidewalk; and the other, that there was error in the charge of the court in regard to the physician's fees. So far as the testimony in regard to the condition of the sidewalk is concerned, I shall not stop to discuss that. We said at the hearing of the case all that we desire to say, and that in substance is, that these questions have been before us several times during the past few years and we have uniformly held that such evidence was admissible, and that we have at times given our reason for that holding at some length. Indeed, one case of a kindred nature decided by us went to the supreme court, and was affirmed by that court. So that on the objections to the evidence, we find that there was no error committed by the court of common pleas. In regard to the charge of the court, we think there was error. In the course of the trial the plaintiff testified as to what physician she had who attended her during her illness, and the physician was called as a witness. It appears that the plaintiff was taken, perhaps, to the physi cian's office, and afterwards she sent for the physician, and he came and attended to the case. The bill for his services was $35. The physician testified that he charged the bill against the husband upon his book of account, at the time. The court said to the jury this: "The question whether or not the plaintiff, being a married woman, can recover as a part of her damages, if she is entitled to recover at all, medical expenses necessarily incurred in being treated for her injury, depends upon the answer to this question; whether she herself is or is not liable to pay these expenses. It is not claimed here that she has paid them. Therefore they could not be included as a part of her damages unless she is liable for them-unless the physician who rendered the services could maintain an action against her and recover for them from her. Ordinarily, if a married woman employes a physician to treat her, and that is all there is to it, if he treats her at her request upon her employment, she is liable; but if the services were rendered under such circumstances as to show that there was no intention upon the part of the physician to charge her, and that it was his intention and her own also that he should charge her husband alone, and the husband is liable, then he could not maintain an action against her; she would not be liable for such services, and therefore could not recover them as a part of her damages. If her husband alone is liable, she cannot recover them in this case; but if she is liable, then she can recover." The statute, commencing at section 3108, defines the rights of the husband and wife, which is in many respects eclaratory of the commor law; at section 3110, that the husband must support himself and his wic and minor children out of his property or by his labor; if he is not abe to do it, his wife must assist so far as she is able. Clearly this plainti being a married woman, known at the time she employed the physici to be such, the husband was first liable for her care in sickness, and it was his duty to furnish her the necessary means for her recovery, so far as he |