a restriction upon her power to encumber or alienate the same; when, therefore, an improvement upon her estate is necessary and proper for a full and complete enjoyment of such estate, she can charge her separate property with debts created in making the improvement.5

6

2. Husband's Power in this Regard.-It is settled beyond all question that the courts will not recognize any right in a husband to charge the separate real estate of his wife by his contracts for its improvement against (or without) her consent; he has no more authority to do so than a mere stranger would have. And it seems that a wife's merely joining with her husband in a promissory note given for labor and material bestowed upon her real property cannot create a charge upon the land. It is sometimes stated that a wife may be bound by the acts of her husband, in reference to her separate property, when they are performed by her authority and approved by her 8 And in one case, where a husband gave his individual notes for the value of improvements made upon his wife's separate estate, which he held in charge and trust, and the wife assented to and acknowledged the improvements and the debts, and the husband became insolvent, it was held, in equity, that the separate estate of the wife was liable for the debts, and that the creditors of the husband were entitled to the same equity which he would have had, had he paid the debts. And we find it decided that evidence that the work was done with her knowledge, may warrant the jury in finding that she agreed to pay for it, although it raises no such presumption of law as will authorize the judge to direct a verdict for the plaintiff. 10 But the better rule seems to be, that the express contract of the wife is necessary in order to bind her property. And the mere

fact that she had knowledge of the use, in the improvement of her separate estate, of building materials which had been contracted for by her husband, will not render her liable in

5 Lindley v. Cross, 31 Ind. 106.

6 Johnson v. Tutewiler, 35 Ind. 353; Hughes v. Peters, 1 Cold. (Tenn.) 67; Barto's Appeal, 55 Pa. St. 386.

7 Johnson v. Tutewiler, 35 Ind. 353. But see Marsh

v. Alford, 5 Bush, 392.

8 Baker v. Roberts, 14 Ind. 552.

9 Smith v. Poythress,[2 Fla. 92.

10 Westgate v. Munroe, 100 Mass. 227.

It

assumpsit on the husband's contract.11 will be sufficient, however, if the husband's agency to contract in her behalf and to charge her estate is clearly shown, or if some fraud imputable to her has induced the plaintiff to part with value. 12 In Pennsylvania a further limitation is imposed, viz.: that a married woman is not liable for a debt contracted for the avowed purpose of improving her separate estate, unless it is shown that the money was in fact applied to that object.13 And although a debt contracted in this manner, and for this purpose, will constitute an equitable charge upon her separate estate, yet a judgment given by her for such debt is null and void; it was so at common law, and the rule has not been changed by the enabling acts.14

3. Liability to Mechanic's Liens.-It is held in several of the States that a mechanics' lien can be created in the usual manner, notwithstanding the owner of the property is a married woman, if the labor and materials are furnished at her request, for the improvement of her individual estate, or upon her husband's request, with her consent, and by her express authority.15 And it is said that even without the enabling statutes she would be able thus to subject her property to mechanic's liens.16 But in certain other States this power is rigorously denied; and it is held that no contract or agreement for materials, or work and labor, upon a building, can be entered into with a married woman, so as to enable a mechanic to enforce a lien upon the building for the materials found and work and labor done. 17 Because, as stated in these States, her ability to contract in reference to her separate estate must be strictly confined to the objects and the manner prescribed by be statute, and if the statute is silent as to

11 Wagner v. Henderson, 3 Pennyhacker (Pa.) 248. 12 Ainsley v. Mead, 3 Lans. 116.

13 Heugh v. Jones, 32 Pa. St. 432.

14 Brunner's Appeal, 47 Pa. St. 67. Nor can she bind herself by a bond for money borrowed to be applied, and which was applied, to the improvement of her separate real estate. Vandyke v. Wells, 103 Pa. St. 49.

15 Greenleaf v. Beebe, 80 Ill. 520; Littlejohn v. Millirons, 7 Ind. 125; Tucker v. Gest, 46 Mo. 339: Husted v. Mathes, 77 N. Y. 388; Hauptman v. Catlin, 20 N. Y. 247; Lloyd v. Hibbs, 81 Pa. St. 306.

16 Hauptman v. Catlin, 20 N. Y. 247. 17 Rogers v. Phillips, Eng. 366; Selph v. Howland, 23 Miss. 264; Gray v. Pope, 35 Miss. 116; O'Neil v. Percival, 20 Fla. 937. And see Kirby v. Tead, 13 Met. 149.

mechanic's liens, it is not in her power to do anything which will give rise to one.

But even where such a lien on a married woman's property is allowed, its validity and regularity are closely scrutinized, and the law still extends its jealous care to the protection of the wife's interests. For example, the rule established in Pennsylvania is as follows: To charge the separate property of a married woman with a mechanic's lien for work and labor done or materials furnished, it must be alleged in the claim and proved on the trial, that the work and labor or materials were necessary for the reasonable improvement or repair of such separate estate, and substantially that they were so applied, and that the same was done and furnished by her authority and consent.18 the divestiture of a wife's title under a mechanic's lien depends (in that State at least) on what appears on the record, not on proof that she consented to the contract; and hence if the claim of lien does not set out all things necessary to bind the wife's estate, it is void and cannot be helped by extrinsic evidence.19 In Rhode Island it is now necessary that the contract or request of a married woman, for the performance of work upon her estate, should be in writing, in order to subject her property to the lien of a mechanic; 20 this is a new rule introduced by the revised statutes of that State.21

For

4. Husband has no Power to raise mechanic's Lien. It is certain that a mechanic's lien cannot be created upon the separate real estate of a married woman, for work done or materials furnished in erecting improvements thereon, under a contract with her husband, against her wish, or without her implied assent. 22 As remarked by Adams, J., in a recent Iowa decision: "We know of no rule by which a wife's premises can be charged with a lien for improvements erected thereon by an improvident husband against her protest. Possibly, if the lumber had been bought in

18 Einstein v. Jamison, 95 Pa. St. 403.

19 Lloyd v. Hibbs, 81 Pa. St. 306; Schriffer v. Saum, 81 Pa. St. 385.

20 Briggs v. Titus, 7 R. I. 441.

21 Bliss v. Patten, 5 R. I. 377; Rev. Stat. R. I., c. 150, § 1.

22 Spinning v. Blackburn, 13 Ohio St. 131; Johnson v. Parker, 27 N. J. L. 239; Garnett v. Berry, 3 Mo. App. 197; Esslinger v. Huebner, 22 Wis. 632; Dearie v. Martin, 78 Pa. St. 55.

her name, and she knew it, or had reason to suspect it, she should have expressly notified the plaintiffs that she repudiated the assumed agency. But it was not bought in her name. The husband bought it ostensibly for himself, as he had a right to do. The plaintiffs extended credit to him alone, and took his note, as was their right, whatever he might wish to do with the lumber, and we think their remedy must be confined to a personal judgment against him, as the court held. It is claimed that they ought to have a lien at least against the addition [built with the lumber in question,] and have a right to go upon the premises and detach and remove it, but it appears to us otherwise. The lien could attach only upon the husband's interest. But the moment the improvement was made it became an integral part of the entire structure, the title to which was in the wife. He had seen fit to make it for her benefit, and the lumber which he had owned as a chattel, he had transferred to her by the act by which he made it a part of her realty." 23 But it appears that in Alabama, by statute, the husband may contract for the erection or repair of buildings situated on lands forming part of the wife's separate estate, and the lien of a mechanic or material-man for work done or material furnished in the erection of such buildings attaches to the property, without the participation of the wife in, the making of the contract.

24

It seems reasonable to hold, however, that the wife's estate will be bound by a mechanic's lien for work or materials engaged by the husband alone, if the latter acts with her knowledge and consent, and if she so bears herself with reference to the work as to show that she approves it and intends to become responsible for it. And we find a number of cases taking this view. 25 So where a building is erected on land belonging to a married woman in her separate right, upon a contract made by her husband, with her full knowledge and assent, and she does not disclose her interest, or take steps to prevent the building, she will be estopped to set up her

23 Getty v. Framel (S. C. Iowa, October, 1885), 21 Reporter, 80.

24 Exp. Schmidt, 62 Ala. 252; Ala. Code, 1876, § 3440. 25 Collins v. Megraw, 47 Mo. 495; Burdick v. Moon, 24 Iowa, 418; Forrester v. Preston, 2 Pittsb. 298; Schwartz v. Saunders, 46 Ill. 18.

right in defense to an action to enforce a mechanic's lien for work done under the contract. 26 A more stringent rule obtains in Indiana. It is there held that a wife may have full knowledge that her hnsband is about building a house upon her land, and she may consent thereto and approve thereof, but that does not bind her property, nor give the builder a right to acquire a lien upon it; a fair test whether a wife has done such acts as will bind her property, or enable a mechanic or material-man to acquire a lien thereon, would be to inquire whether the acts done by her would bind her personally if she were free from coverture. By the laws of Ken tucky the estate of a married woman will be liable for necessaries furnished to her or her family when the indebtedness is evidenced by writing signed by her and her husband; and a note executed jointly by husband and wife in payment for lumber used in repairing their house, which belonged to the wife, is sufficient "evidence in writing" to support a mechanic's lien on the house.28 A similar requirment exists, as we have already seen, in Rhode Island.29

Where a building is erected, or improvements made, on the wife's separate property, under a contract with the husband which is invalid as against her, there seems to be authority for holding that the builder's lien may nevertheless attach to the husband's life interest or tenancy by the curtesy in the land. 30 Thus it is said: "A mechanic's lien in many respects resembles a mortgage. Neither will affect the rights of the wife unless she so cooperates with her husband as to bind her estate. But so far as the interest of the husband extends, it will be as much bound in the one case as in the other." 31

Where husband and wife jointly contract for building a house on her land, a mechanic's lien will be valid against the property.32 5. Claim of Husband's Creditors against Improvements Made by Him.—It is a general

26 Schwartz v. Saunders, 46 Ill. 18. 27 Capp v. Stewart, 38 Ind. 479.

28 Marsh v. Alford, 5 Bush, 392.

29 Cameron v. McCullough, 11 R. I. 173; Briggs v.Titus, 7 R. I. 441.

30 Flannery v. Rohrmayer, 46 Conn. 558; Fitch v. Baker, 23 Conn. 569; Washburn v. Burns, 34 N. J. L. 18.

31 Fitch v. Baker, 23 Conn. 569.

32 Greenough v. Wigginton, 2 Greene (Iowa), 435.

rule that if a husband expends time and money in improving his wife's individual estate, but has no agreement with her, through trustees or otherwise, that his labor and means so used shall vest in him any interest in such estate, or entitle him to any claim against or compensation from her property, he gains no right or title thereto which his general creditors can reach by attachment or by the aid of a court of equity.33 For example, where a lot of land, with a log house upon it, was granted to 'the wife by her mother, and the husband, at his own expense, but with materials furnished mostly from the estate of the mother, made repairs, requisite to render the premises habitable, it was held that a judgment creditor of the husband had no claim for the satisfaction of his judgment upon such improvements. However, if the husband is in embarrassed circumstances, his money expended in improving his wife's estate may amount to a gift to the wife in fraud of his creditors, and they might thus far make the wife's estate liable to pay their demands; but this can never be true of his mere personal labor.&

34

3

H. CAMPBELL BLACK.

33 Webster v. Hildreth, 33 Vt. 457; White v. Hildreth, 32 Vt. 265; Corning v. Fowler, 24 Iowa, 584; Hoot v. Sorrell, 11 Ala. 386.

34 Robinson v. Huffman, 15 B. Mon. 80. 35 Hoot v. Sorrell, 11 Ala. 386.

NEGLIGENCE-DEFECTIVE MACHINERY—

DAMAGES-PLEADING-CONTRIBUTORY

NEGLIGENCE.

WOODWARD IRON COMPANY V. JONES.

Supreme Court of Alabama.

1. Notice of Defect in Machinery to EmployerContributory Negligence. When a workman or servant gives notice to his employer of a defest in the machinery which he is required to use, and, relying on the employer's promise to have the defect remedied, continues in the service, he is not guilty of contribut ory negligence, "at least until a reasonable time elapses within which to make the repairs."

2. Action for Damages-Averment of Complaint.In an action to recover kamages on account of injuries afterwards sustained, it is not necessary to aver in the complaint that the employer had had reasonable time to remedy the defect after the notice was given.

3. Contributory Negligence-Facts which will Sustain Defense of.-When the plaintiff was working in the shaft of a coal mine, through which ran two railroad tracks, over which cars descended and brought

up coal, the motive power being supplied by a stationary steam-engine above ground; and had charge of a switch at a resting place along the line of the shaft, where descending cars could be turned off or placed back on the track, and of an adjacent "sump" in which the water was accumulated, and from which it was pumped to the surface by an engine; and while standing on track, repairing the water pipe which had become clogged, was struck by a descending car, which he did not see or hear until too late, on account of the noise and steam in the shaft, the steam having escaped from a defective joint in the pipe, to which he had called the attention of the superintendent two days before held, that the plaintiff knowing that the empty car was above, and having neglected to have the switch turned by his assistant, whom he had sent up to that point for another purpose, and being cognizant of the noise and steam which filled the shaft, was guilty of contributory negligence, and was not entitled to recover, although the general order was that a descending car should not be stopped at the switch until a full car was ready to be carried back.

Appeal from Birmingham City Court. Tried before Hon. H. A. Sharpe. Hewitt, Walker & Porter, counsel for appellants; Smith & Lowe, for defendants.

The opinion of the court states the facts of the

case.

STONE, C. J. delivered the opinion of the court. The Woodward Iron Company, appellant in this cause, was engaged in mining coal, as one line of its business. The coal was reached by a shaft sunk in the earth; and extending down the shaft were two lines of railroad track, over which cars descended and brought up the coal. The cars were moved up and down the tracks by a steam engine which was above ground, and stationary. The force was applied to the cars by means of an iron rope.

The cars were let down empty, and drawn back loaded. There were rents, or stopping points along the line of the shaft, styled in the testimony "lifts," and at these "lifts" there were switches on the track, by which the descending cars could be turned off, or placed back on the track. These switches were so arranged and distributed up and down the shaft, as to be connected with the rooms or excavations, from which the coal was mined. There were also along the line of the shaft what are in mining phrases, called "sumps"-rude wells or cisterns, in which the water in the mine was trained to collect; and from which it was pumped out of the mine by the steam engine which moved the cars in the shaft. One, Harrison, was the superintendent of the entire works, representing and performing the functions of the Iron Compary, and Jones was an employe and laborer, under his direction. Corcoran v. Holbrook, 59 N. Y. 517; Ford v. Fitchburg R. R. Co., 110 Mass. 240. The first "lift" or rest on the line of the shaft, and first switch, were about seventy-five yards below the surface, or entrance, to the shaft. Above this switch, and near the entrance, was the first pump. Below the switch, some seventy-five feet, was a "sump," near the line of the track. A steam-pipe extended down the shaft, through

which the hot steam passed from the engine. The business assigned to Jones was to superintend the switch, attach and detach cars, superintend the pump, and the cistern or "sump," in which the water collected. He had an assistant, a colored man, under his control; but he was under the control of Harrison, the superintendent.

The present suit is for the recovery of damages of the Woodward Iron Company, for an injury alleged to have been suffered through the negligence of Harrison, its superintendent. The averment of the complaint on which the right of action is based is in the following language: "The plaintiff, being then and there, on, to-wit, the 10th day of March, 1884, a servant of the defendant, engaged in keeping said pumps in operation, and in attaching loaded cars to the train operated in said mines as aforesaid, was engaged in relieving the water pipes of said pumps of mud that had accumulated therein, and was obstructing the passage of water therein; and while so engaged at the place where he was obliged to do said work, was stricken by one of defendant's cars operating in said mine as aforesaid, and badly bruised and injured; and at the time plaintiff was stricken as aforesaid, he did not see the said car, and was unable to see and get out of the way of the same, in consequence of the steam that had accumulated in said tunnel or slope between him and the said cars. And the plaintiff avers that said steam had escaped from said steam-pipe at a joint thereof, and that he had called the attention of the defendant to said joint, and that the same was out of repair, and the defendant had promised the plaintiff to have the same repaired at night when the said mines were not being operated, but negligently omitted to do so; and relying on the promise of the defendant, the plaintiff thereafter continued to perform his duties as aforesaid, and was injured as aforesaid." There was a demurrer to the complaint, assigning, among others, the ground that "there is no allegation that the defendant had had time to repair the same from said notice prior to the alleged injury." The court overruled the demurrer.

The demurrer raises the question squarely, what change, if any, is wrought in the status of the parties, by a notice given to the employer of a defect in the machinery, and his promise to have the same remedied. If the employe, after such notice and promise, remain in the service, is this an implied agreement on his part to take the risk on himself, or is the effect to continue or revive the liability of the employer, and to absolve the employes from the imputation of contributory negligence, springing out of the continued service? The authorities are overwhelmingly in favor of the latter of these propositions, at least, until a reasonable time elapses within which to make the repairs. Waiting such reasonable time, it would seem, if the repairs are not made, the employe should quit the service, if perilous; and failing to do so, is it illogical to presunie he agrees to in

cur the risk? And would he not thereby be guilty of proximate contributory negligence. We propound these inquiries, with no intention of answering them, as this phase of the question is not raised by this record. Our purpose is to prevent a misinterpretation of our ruling. Beach Con. Neg. § 140; Holmes v. Clark, 6 Hurlst. & Nor., 340, S. C. Ib. 937; Snow v. H. R. R. Co. 8 Allen, 441; Patterson v. P. & C. R. R. Co. 76 Penn. St. 389; S. C. 18 Amer. Rep. 412; Kroy v. Chicago, R. I. & P. R. R. Co. 32 Iowa, 357; Greenleaf v. Dub. & S. C. R. R. Co. 33 Ib. 52; 2 Thompson Neg. 1010; Buzzel v. L. Manfg. Co., 48 Me. 113. The city court did not err in overruling the de

murrer.

We have stated above that the only negligence with which the defendant is charged was the failure to repair the defective joint in the steam-pipe. The accident and consequent injury occurred about two days after the superintendent was notified of the defective joint. The testimony most favorable to plaintiff-his own testimony-shows the following state of facts at, and immediately preceding the injury: Plaintiff Jones, with his colored assistant were at their post at the first lift and switch, and together went down to the sump. They found the sump full of water and overflowing-the nozzle of the hose connected with the pump above being so choked with mud, that the pump lifted no water. Plaintiff immediately set to work to clear the pipe of mud, and was thus engaged twenty or thirty minutes when the descending car struck him. Plaintiff while so engaged was standing on the track of the railroad, and must so stand to do the work. He knew that a car was above him, and was liable to come down at any moment. He knew the switch at the first lift was not turned, and if the car came down, it would follow, without obstruction, the line of the track on which he was standing until it reached him. While engaged in removing the mud from the nozzle of the hose, he sent his colored assistant up to the switch, but gave him no instructions to turn the switch, nor to intercept the descending car, unless there was a loaded car at the lift to be attached. The superintendent's instructions were that a descending empty car was not to be stopped by turning the switch, unless there was at the time and place a loaded car to be drawn to the surface. There was no loaded car at the place. One in the shaft or slope could ordinarily hear a descending car for a distance of seventy-five yards, and by the light of his miner's lamp, could see it seventyfive feet before it reached him. At the time of the accident there was such a noise in the shaft, not made by plaintiff, that he conld not hear the approaching car; and the shaft was so choked with the escaped steam that he could not see the car until it got within three feet of him; but he did not know this until the car struck him. The record discloses no proof that the persons operating the engine, or any others except plaintiff and his assistant knew that anything was disordered at

the sump, or that plaintiff was away from his post at the switch. And there is no proof that plaintiff gave any directions, or took any precautions to have himself notified of the approaching car. Plaintiff had been employed about the mine for some months, and in his present line of duty for three weeks. The defense made was that the plaintiff had, by his own negligence, contributed proximately to the injury he complained of.

In Central, etc. Co. v. Letcher, 69 Ala. 106, this court, quoting from the language of Black, C. J., in R. R. Co. v. Aspell, 23 Penn. St. 147, said: "It has been a rule of law from time immemorial, and it is not likely to be changed in all time to come, that there can be no recovery for an injury caused by the mutual default of both parties. When, it can be shown that it would not have happened except for the culpable negligence of the party injured, concurring with that of the other party, no action can be maintained." So, in Gothard v. Alabama, etc. R. Co., 67 Ala. 114, this court said: "When contributory negligence is relied on as a defense to an action for damages, it is not essential that the plaintiff should have been the cause of the injury; for if his negligence contributed proximately to an injury which he could have avoided by the use of ordinary care or diligence, he cannot recover." In Gonzales v. New York, etc. R. Co., 38 N. Y. 440, it was said to be "the duty of the injured party, who knew a train was just due, to look in the direction from which it should come, before attempting to cross the railroad track, and that if he omitted to do so, he was guilty of negligence which precluded a recovery." In Houston, etc. R. Co. v. Fowler, 56 Tex. 452; s. c., 8 Amer. & Eng. R. Cas. 504, it is said: "If the employee had the opportunity to observe the degree of danger attending the performance of the service, damages cannot be recovered of the company on the ground that the latter knew the danger, and the former did not.” When a servant is employed upon work which, equally with the knowledge of the master and the servant, is of a dangerous nature, the master is not liable for the consequences of an accident occurring to the servant in the course of that employment, unless there be negligence on the part of the master, and the absence of rashness on the part of the servant."

In Whart. Neg., § 221, it is said to be the rule in this country "that a servant does not, by remaining in his master's employ, with knowledge of defects in machinery he is obliged to use, assume the risks attendant on the use of such machinery, if he has notified the employer of such defects, or protested against them, in such a way as to induce a confidence that they will be remedied. The only ground on which this exception can be justified is, that in the ordinary course of events the employee, supposing the employer would right matters, would remain in the employer's service, and that it would be reasonable to expect such continuance. But this reasoning does not apply