Such an agreement

did not constitute a good consideration. was against public policy. From the averments in the pleading the gift was not, as a matter of fact, an adjustment of property rights, but simply an inducement to forbear to interpose a defense to the action for divorce, which, he states, would have prevented her from obtaining it.

It is urged by counsel for appellant that, if the transaction is against public policy, then the law will leave the parties where they were found; that equity will not relieve either party from such a transaction. The facts averred do not make a case for the application of that principle of equity. It was simply a void contract. If, at the time the contract was made, the appellee was entitled to recover the note or the amount of it, her cause of action was not destroyed by reason of that agreement. It being void, it left the parties with rights as fixed by law.

As we have said, it is insisted that, under the judgment of divorce in the Jessamine circuit court, it simply restored to the parties the property rights possessed by each of them before their marriage, and that the plaintiff is not entitled to recover the note or the amount of it. The language of the judgment does not conform to the requirements of section 425 of the Civil Code of Practice. That section reads as follows: "Every 17 judgment for a divorce from the bond of matrimony shall contain an order restoring any property, not disposed of at the commencement of the action, which either party may have obtained, directly or indirectly, from or through the other, during marriage, in consideration or by reason thereof; and any property so obtained, without valuable consideration, shall be deemed to have been obtained by reason of marriage. The proceedings to enforce this order may be by petition of either party, specifying the property which the other had failed to restore; and the court may hear and determine the same in a summary manner, after ten days' notice to the party so failing." This section of the code was enacted at a time when the husband was entitled to the personal property of his wife, providing he reduced it to his possession. Under this section of the code property was not to be restored which had been disposed of at the commencement of the action. Since the enactment of this section of the code the legislature has enacted statutes regulating the rights of husbands and wives in each other's property entirely different from the statute

which was in force at the time of the adoption of the code, from which we have quoted, section 425.

18

Section 2127 of the Kentucky Statutes of 1903 reads as follows: "Marriage shall give to the husband, during the life of the wife, no estate or interest in the wife's property, real or personal, owned at the time or acquired after the marriage. During the existence of the marriage relation the wife shall hold and own all her estate to her separate and exclusive use, and free from the debts, liabilities or control of her husband. No part of a married woman's estate shall be subjected to the payment or satisfaction of any liability, upon a contract made after marriage, to answer for the debt, default or misdoing of another, including her husband, unless such estate shall have been set apart for that purpose by deed of mortgage or other conveyance; but her estate shall be liable for her debts and responsibilities contracted or incurred before marriage, and for such contracted after marriage, except as in this act provided." Under this section of the statute, appellant would not have any interest in or control of the personal property of appellee, whether she owned it at the time of her marriage or after the marriage. The fact that he got possession of the eight hundred dollar note without valuable consideration would not have devested the appellee of her right to it. The mere reduction of it to his possession would not have given him any property rights in or to the note. Had she died while her husband had the note in possession, it would not for that reason have belonged to him. Had he refused to surrender it to her in her lifetime, she could, by appropriate action, have compelled him to do so. If the husband had not acquired the right to the note by contract, although the judgment for divorce had not provided for the restoration of their respective property. still she could have maintained the action to recover the note or its value, if he had converted it to his own use. The mere fact that he disposed of the note before the judgment of divorce does not prevent appellee from recovering the note or its equivalent. The provision of section 425 of the code to the effect that property is not to be restored which had been previously disposed of is not operative against the rights of the wife created and fixed by section 2127 of the Kentucky Statutes of 1903. So her right to maintain this action is independent of the judgment 19 granting the appellant a divorce. It exists in virtue of section 2127 of the

Kentucky Statutes of 1903. Although the court might have adjudged, under section 425 of the Code of Practice, that the appellant would not have been compelled to account to the appellee for the amount of the note, had he converted it to his own use previous to the commencement of the action for divorce, still, under section 2127 of the Kentucky Statutes of 1903, which must be read in connection with the code section supra, this action can be maintained. In the case of Price v. Price, 25 Ky. Law Rep. 1803, 78 S. W. 888, this court held that a husband can become indebted to the wife under the act of 1894, and execute to her an enforceable obligation. This declaration was made in an action wherein the wife sought to recover from the husband the amount of the note which he had executed to her previous to the commencement of the action for divorce. The court based her right to recover upon the statute. The court did not allow her to recover simply because it was a note creating an obligation, but the recovery could have been had on any legal liability which the husband had incurred to the wife previous to the commencement of the action for divorce.

Judgment affirmed.

A Privileged Communication Between Husband and Wife are not rendered admissible in evidence by their subsequent divorce: Robinson v. Robinson, 22 R. I. 121, 84 Am. St. Rep. 832; State v. Kodat, 158 Mo. 125, 81 Am. St. Rep. 292; note to Commonwealth v. Sapp, 29 Am. St. Rep. 418.

Contracts to Facilitate Divorce are unenforceable, as against public policy: Barngrover v. Pettigrew, 128 Iowa, 533, 111 Am. St. Rep.

206.

BENNETT v. LOUISVILLE RAILWAY COMPANY.

[122 Ky. 59, 90 S. W. 1052.]

CARRIER-Starting Car Before Passenger is Seated.-A street railway company is not required to hold its car still until every passenger that boards it takes a seat, unless he is old, feeble or otherwise in a condition demanding unusual care. (p. 455.)

R. C. & J. J. Davis, for the appellant.

Fairleigh, Straus & Fairleigh, Kohn, Baird & Spindle, and Greene & Van Winkle, for the appellee.

61 NUNN, J. Appellant instituted this action against the appellee to recover damages for injuries received upon one of its cars, as she alleged, by the negligent management and op

eration thereof by the motorman. On the trial the jury returned a verdict in favor of the appellee, and she has appealed.

She alleged in her petition, in substance, that the 62 motorman stopped the car for her, and as she entered the door of the car and was in the act of taking her seat, the motorman negligently turned on the current and started the car with a sudden and unusual jerk, by which she was thrown with great force and violence against the end or edge of the seat, and by reason of which she received painful injuries to her body and spinal column; that she was made sick and sore, and confined to her bed for a long time, suffering great pain, and was compelled to undergo a serious and painful operation, in the removal of the lower end of her spinal column; that her loss of time and medical expense amounted to five hundred dollars, and was otherwise injured and damaged to the extent of five thousand dollars. The appellant asked for a reversal, for the reason that the verdict was against and contrary to the evidence. That the court erred in giving to the jury instructions 2 and 3.

The appellant and one witness sustained her allegation that the jerk in starting the car by the motorman was a sudden and unusual one, and that by reason thereof she was injured, and in the way and manner and to the extent stated. There was no contrariety of evidence as to the extent of her injuries. The appellee introduced one witness, whose testimony tended to show that the jerk made in starting the car was not sudden or unusual. We are of the opinion that the preponderance of the evidence favored the claim of the appellant, but we are not authorized to reverse the judgment of the lower court on that account.

Instruction No. 3 complained of by appellant is an instruction in the usual form upon the question of contributory neglect. The objection to this instruction 63 is that there was no evidence upon which to base it. It is true that there was a bare scintilla of evidence, if any, to authorize it. It is a doubtful question as to whether or not it should have been given, but in our opinion the giving of it did not prejudice the substantial rights of the appellant.

Instruction No. 2 reads as follows: "It was not the duty of the agent and servant of the defendant in charge of the car to have the car remain standing until the plaintiff was seated in said car; and unless you believe from the evidence

that the said agent or servant in charge of the car failed to exercise that degree of care with which he was charged, as set out in instruction No. 1, and by a reckless or unnecessary jerk or lurch of said car started the same, and the plaintiff was injured thereby, the law is for the defendant, and you should so find." By the first instruction the court, in effect, instructed the jury that it was the duty of the agent of appellee in operating the car upon which appellant was a passenger to observe the highest degree of care which a prudent person would exercise under like circumstances, in the management and control of the car, to enable appellant to board it with safety, and if the jury believed from the evidence that the agent in charge failed to exercise the degree of care stated, and by a reckless or unnecessary jerk or lurch of the car started the same, and appellant was thereby thrown against the seat and injured, then the law was for her.

The appellant complains of that part of the second instruction which told the jury that it was not necessary for the agent in charge of the car to have it remain standing until the appellant was seated. This 64 instruction seems to be in conformity with the rule enunciated in the case of Louisville etc. R. R. Co. v. Hale, 102 Ky. 600, 19 Ky. Law Rep. 1651, 44 S. W. 213, 42 L. R. A. 293, and Sheffer v. Louisville etc. R. R. Co., 22 Ky. Law Rep. 1305, 60 S. W. 403. Both of these cases, however, were against steam railways, but we can see no reason why the same rule would not be applicable to street railways. It would be impracticable to require in every instance those in charge of a street-car to have it remain still until every passenger that boards it takes a seat. This would make street-car travel slow, vexatious and inconvenient.

There are instances in which a car should be permitted to remain still until the passenger is seated; that is, where the passenger is old, feeble, crippled, or in any condition which makes it reasonably apparent to those in charge of the car that the person needs unusual care and precaution for his or her protection. But the case at bar does not come within this rule. It is true that she was proven to be large and fleshy, but there was no proof that her flesh was any great burden to her, nor was there anything proven which might have indicated to the motorman in charge of the car that any extra precautions were required on his part for her safety. The judgment is affirmed.

Petition for rehearing by appellant overruled.