any one, "to whose orders the workman was bound to conform." Hitherto the English law on this point has been the stricter rule that a deputy's negligence is chargeable upon the principal only when the delegation of authority is total, not partial nor over a certain department of work: Murphy v. Smith, 19 C. B. N. S. 361; Conway v. Belfast, &c., Ry., 11 Ir. R. C. L. 345. This portion of the act also has been construed: One may be superintendent although he occasionally assists in manual labor, while on the other hand a man whose duty it was to manage a guy-rope on a crane and give directions when to hoist and lower, has been held not a superintendent. Again, when a foreman induced a boy by the promise of extra pay to do work which by a known rule of the employer was forbidden to boys, it was held that, in the circumstances, the order was not one to which the boy was bound to conform: Osborne v. Jackson, L. R., 11 Q. B. Div. 619; Shaffers v. General Steam Nav. Co., L. R., 10 Id. 357; Bunker v. Midland Ry. Co., 47 L. Times 476. Another and a radical change in the law is wrought by the section of the act which gives an action against the employer where an employee is killed or injured by the negligence of a fellowworkman in charge or control of any railway signals, trains, and so forth. This provision abolishing the defence of common employment, as far as certain classes of railroad workmen are concerned, has been interpreted with some exactness. A man having charge of a set of trucks run by a hydraulic engine along a line of railway, was held to have "charge of a train." A nice distinction was made in another case: A man who worked under an inspector, and whose business it was to clean and oil switches and signals, after oiling some switch gear, left the cover of the box which enclosed the gear projecting over the track, so that a train was thrown off the rails. It was decided that as his business was only to oil and clean, he had not control within the meaning of the act : Cor v. G. W. Ry. Co., L. R., 9 Q. B. Div. 106; Gibbs v. G. W. Ry. Co., 11 Id. 22. The act includes a temporary railroad laid down by a contractor: Doughty v. Firbank, 10 Q. B. Div. 358. (A steam crane fixed on a car is not a loco motive: Murphy v. Wilson, 52 L. J., Q. B. 524.) Coming to this country, we find that in Georgia a railroad is liable to one employee for the negligence of another, when the injured person is not chargeable with contributory negligence. Wisconsin has a similar statute: Code of Georgia, 2083, 2203, 3033, 3036; Baker v. W. & A. Rd., 68 Ga. 699; R. Stat. Wis. 1816, Gumz v. C., M. & St. P. Ry., 52 Wis. 672. (This statute not class legislation: Ditberner v. C. M. & St. P. Ry., 47 Wis. 138.) Statutes in Iowa and Kansas apply only to persons operating railroads; not to other railroad employees. This construction was put upon the Iowa statute, and also upon the Kansas statute copied from it, that they might not be open to the constitutional objection of partial and class legislation. McClain's Dig. (Iowa) p. 357 Compiled Laws of Kansas 1879, p. 784; Deppe v. Rd., 36 Iowa 52; Mo. Pac. Ry. v. Haley, 25 Kans. 35. Accordingly, opening and closing the doors of a round-house has been pronounced not connected with the operation of a railroad; nor is a section-hand loading a car within the benefits of the act, although he would be when going over the line on a hand-car: Malone v. Rd., 11 Am. & Eng. Rd. Cas. 165; Smith v. Rd., 59 Iowa 73; Frandsen v. Rd., 36 Id. 372. In certain states (Maine, Mississippi, Missouri, West Virginia, Colorado), statutes giving to "any person" injured the right to sue the railroad company, do not extend to employees. In Kentucky it is otherwise: Carle v. Bangor, &c., Rd., 43 Maine 269; Rd. v. Hughes, 49 Miss. 258; Proctor v. Rd., 64 Mo. 112; A. T. & S. F. Ry. v. Farrow 6 Col. 498; Randall v. B. & 0. Rd., S. C. U. S., 15 Am. & Eng. Rd. Cas. 243; McLeod v. Ginther, 80 Ky. 399. A Massachusetts statute prevents employers evading by contract any lia bility which otherwise they might be subject to, but imposes no new liability: Mass. Gen. Stat. 1882, p. 422. Under the English act, workman may contract not to claim compensation: Griffiths v. Dudley, L. R., 9 Q. B. 357. We pass over the statutes in both countries which establish regulations for the government of mines and factories, and make the owner answerable to his employees for the disregard of these regulations, because such statutes only define the employer's negligence, and introduce no new principles of law. In studying the English Employers' Liability Act, one cannot but be struck with the evidences of care and attention it displays. The act is careful to define the terms it uses. By limiting the compensation which injured parties can recover, the plundering of employers through the prejudices and sympathies of juries is prevented. By the requirement that timely notice of injury sustained shall be sent to the employer, he is enabled to know what he is sued for, and need not fear lest all manner of swindling actions be sprung upon him. How much calling of witnesses and wrangling of counsel will that clause of the act dispense with, by which all rules and regulations of employers are considered good which have the approval of government. Our own statutes are most of them short articles or parts of articles in ccdes, and seem to be due rather to impulse than to any thorough examination of the law of master and servant. It has no doubt been observed by the reader, that all the American statutes apply only to railroad employees, and that the English act makes its most decided change in the law in favor of the same class. This no doubt proceeds from the fact that there is no other employment in which so great a number of men are, at once, in such danger from the carelessness of others, and so powerless to provide against it. But to make the change in the law impartial and thorough, the right to recover ought to be extended to persons engaged in other employments, who are exposed to unusual risks from their fellow servants, which they cannot guard against. In Hoth v. Peters, 55 Wis. 405, the plaintiff, a workman in a lumber yard, was on a car piling lumber, and was injured by the starting of the car. The employer was held not liable. If the plaintiff had been a railroad employee, doing the very same work, no doubt he would have recovered damages. The ground upon which the changes in the law which we have been surveying must stand, we take to be the weakness of the defence of common employment, when it rests upon an assumption of law, and not upon ascertained facts. The circumstances of many, if not most cases, make it absurd to pretend that the injured party could have insured his safety by watching others in the same service. Take, as an example, the leading case quoted at the beginning of this paper, that of an engineer hurt by the carelessness of a switch-tender. If the law is to remain unchanged, let it be upon the ground that the servant assumes the risks incident to his employment, a conclusion which though it may sometimes bear hard, is reasonable enough. Never was it more important than it is now, when the tendency in every department of thought is to pass authority by, and search into the causes of things, that the law should commend itself to the plain sense of men in its reasonings as well as its rules. CHARLES CHAUNCEY SAVAGE. The Supreme Court of New York. KINGMAN v. FRANK. Where a married woman, having a separate estate or business, employs her husband to manage the same, and agrees to pay him a stated compensation for his services, a chose in action in his favor against her is created, which, on her failure to pay, can be reached by a judgment creditor of the husband. APPEAL from a judgment entered upon an order sustaining a demurrer to a complaint. DANIELS, J., delivered the opinion of the court. This suit was brought by the plaintiff as a judgment creditor of the defendant Gustave Frank, after the issuing and return of an execution unsatisfied against his property. The only property which it was alleged he had that was applicable to the payment of the judgment, was a debt of $1040 owing to him from his wife. This debt was alleged to have arisen for services performed by him in her employment, under an agreement by which she agreed to employ him to manage and superintend a separate business carried on by her as a dealer in dry goods and notions, for which she agreed to pay him eight dollars a week. It is further alleged that he entered upon the performance of the agreement, and continued under it in her service until the alleged indebtedness had accrued in his favor. The demurrer was served upon the alleged ground that these facts did not constitute a cause of action, and it was sustained by the court for the reason that the husband himself could not enforce the payment of his salary by an action against his wife. That she should employ him as she did to perform services for her in her separate business, resulted from the statutory provision empowering her to carry it on the same as though she was an unmarried woman, and the existence of that power of employment derived from this statutory authority has already received the sanction of the courts: Fairbanks v. Mothersell, 60 Barb. 406: Abbey v. Deyo, 44 N. Y. 343; Foster v. Persch, 68 Id. 400. As she could enter into a lawful contract for the employment of her husband in this manner, and has been required by the statute to be considered as a feme sole in the exercise of the authority conferred upon her, it would seem to follow that she could obligate and bind herself for the payment of the stipulated compensation. From the facts made to appear, the sum of money alleged in the complaint, has been earned by him, and become payable from her for the performance of his services under a lawful agreement entered into by her, and it is to be presumed in support of the plaintiff's action that she would be willing to pay over the amount voluntarily to him in satisfaction of his demand against her husband, as soon as the legal right to receive payment shall be acquired in these proceedings from her husband. Certainly the court has no ground to assume, and for that reason to defeat the action, that she would not honestly and fairly perform her contract by payment of the money as soon as the plaintiff shall be placed in a position where he would have a legal right to receive it. But it will not follow from the inability of the husband to collect the debt by means of legal proceedings, that the plaintiff would be prevented from doing so by reason of the same disability, if it should be considered to exist. For this disability would extend no further than to affect the remedy, and would not stand in the way of the plaintiff to recover the debt, or of a receiver appointed for that purpose under a proper judgment of this court. To warrant such a recovery all that would seem to be necessary is an obligation on the part of the wife to pay the money, and that obligation has been created by her contract and the performance of her husband's services under it. These facts together with the acquisition of the demand by the plaintiff, or by a receiver in the action, would be all that could be legally required to maintain an action for the recovery of the debt. In this respect the case would resemble that of a foreign executor or administrator who while he could not maintain an action in this state to recover a demand due to the testator or intestate might still assign it to another person, who could upon the title so acquired, successfully prosecute such an action. And that an assignee might in like manner recover this demand would seem to follow from the principle of Fitch v. Rathbone, 61 N. Y. 576. For if the assignee of the wife may maintain an action against her husband for the conversion of her property, it would seem to follow that the assignee of the husband might also maintain an action against the wife to recover the amount of an indebtedness she had lawfully incurred to her husband. The case of Perkins v. Perkins, 2 Barb. 561, when its circumstances are considered, will not appear to be an authority sustaining the conclusion arrived at by the special term. The other authorities as well as the result of the statute to which reference has been made, appear to be sufficient to enable the plaintiff to maintain this action, and to obtain satisfaction of his demand out of the legal obligation created against the wife in favor of her husband. The judgment should be reversed with costs, and judgment should be directed for the plaintiff on the demurrer, with leave to the defendants to withdraw the demurrer and answer in twenty days on payment of the costs of the demurrer and of this appeal. DAVIS, P. J., and BRADY, J., concur. The capacity of a married woman to have and to deal with her separate estate, and to contract, and to trade and do business, comes from the equity doctrine, and the respective state statutes; yet the question involved in the foregoing case, is of general application, and not limited by statutory restrictions. In the above case it was held that the husband's wages, due from his wife for his services under contract in her separate business, are subject to his debts. But the question of general interest is whether or not the husband's creditors can reach the fruits, products or results of his labor, skill and industry, created in the conduct or management of his wife's business or estate. As a rule, this product or result is first his wages, or compensation, when it is agreed that he shall receive compensation, or secondly, it is the benefits, increase or profits, which his wife's separate estate or business receives from that labor and skill, when there is no such agreement for compensation. In the former case the benefits from the husband's labor and skill accrue to the husband, and in the latter case, to the wife. In the former case, it is based on agreement for compensation, and in the latter it is not. The courts hold, that in the former case the product of the husband's labor and skill, to wit: his wages or compensation are subject to his debts, and in the latter case, such product to wit: 1. When his labor is bestowed gratuitously on her separate estate or in her business. 2. When there is no agreement for compensation; and 3, when he gratuitously makes improvements upon her separate estate, are not subject to his debts. In any case, the subject-matter and the thing which the husband's creditors want, is the fruit, product or result, of the husband's labor. Because one is not gratuitous the product is liable, and be cause the other is gratuitous, such product is not liable. It is not gratuitous when it is agreed that he receive compensation for his labor, and it is gratuitous when there is no agreement for compensation for his labor, or for his improvements on her property. The husband's creditors want this product, or result, or fruit of the husband's labor, no matter under what form it may appear. If they can reach it when it is in the form of an agreement for compensation, there can be no logical reason why they should be prevented from reaching it when not produced under the form of such agreement. In consequence of the great contrariety of the opinions, and the unsatisfactory condition of the reasons adduced, all the decisions are here reviewed, and they seem to settle the following: 1st. That the husband'swages or compensation is liable. 2d. When he works without any agreement as to compensation, the product or fruits of his labor and skill are not liable. 3d. When he voluntarily places improvements or repairs on her separate property, such improvements or repairs, cannot be touched by his creditors. |