
    (Clark County, O., Probate Court.)
    IN RE ASSIGNMENT OF WM. D. LOWRY.
    A person who performs labor on a farm by the month or by the day, under the direction and control of his employer, in the operation and management of his farm, is an operative within sec. 6355, Rev. Stats.
    Where the relation of master and servant does not exist between employer and employed, the employee cannot be an operative within sec. 6355.
    A blacksmith following an independent calling, shoeing horses, sharpening plows, etc., for and to be used by a farmer, is not an operative within sec. 6355, and is not entitled to preference in the distribution of the assets of an assignor.
   ROCKEL, J.

E. Waldeck and J. P. Lohnes, creditors of D. Lowry, the assignor herein have filed their applications in this court, asking that the claims may be preferred claims under sec. 6355, Rev. Stats.

The assignee waived all matters of jurisdiction and entered his appearance herein and asked the direction of the court, and that an order be made in preference to the payment of said claims.

Win. D. Lowry, at the time of his assignment was a farmer, having under his management and control about 105 acres. The claimant, E. Waldeck, performed labor on the farm s part of the time by the day, always under the direction and control of the assignor. The labor performed being the usual and ordinary work of a farm laborer.

J. P. Lohnes, the other claimant, was a neighboring village blacksmith, and at his shop shod the assignor’s horses, sharpened his plows, tightened his wagon tires, and repaired different farming utensils, which were necessary and used by the assignor in the conduct of his farm. Sec. 6355, provides :

“All taxes of every description assessed against the assignor, upon any personal property held by him before his assignment, shall be paid by the assignee 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 services of the assignor, shall be entitled to receive out of the trust funds, before the payment of the general creditors, the full amount of tne wages due to such person for such labor, performed within twelve months preceding the assignment, not exceeding three hundred dcliars.

That part of said section providing “and every person who shall have performed any labor as an operative in the services of the assignor,” will require consideration to determine whether the claimants herein, can fairly claim to come within its provisions.

Is their labor that of an operative in the services of the assignor, is the question at issue.

But three courts in Ohio have given consideration to this section to my knowledge.

The first was an unreported decision of the Common Pleas of Franklin county, which came into my possession while counsel in the case next herein referred to. In that case, the court gave a very strict construction to the law, and held that a clerk in the dry goods store of the assignor, was not an operative within the meaning of the statute, and was therefore not entitled to a performance over general creditors.

The next is the ease of Akron Iron Co. v. Whitely, etc., 25 Bull., 203, from the Common Pleas of this county. There were a large number of claimants in this case who had performed service tor the W7. N. Whitley Reaper & Mower Manufacturing .Company. Some had performed manual labor in the shop, others set up machines in the field,.others were traveling salesmen,, who sold machines, at times put them up in the field, and who also made contracts with local agents to sell the machines.

All these the court held in a elaborate and well reasoned opinion, were within the statute and were entitled to a preference. The Franklin county case is referred to as giving a narrow and limited construction to the statute.

In the Akron Iron Co. v. Whitely case, a veterinary Surgeon, who had attended the horses used in drays and delivery wagons of the Whitely Company, presented a claim but the court held his claim did not come within the statute, that his was professional labor, which was not included in the plane and labor as an operative in the service of the assignor. ”

The third case is Green v. Weller, 6 O. S. C., 351, where it was held that the secretary of an incorporated manufacturing company is not entitled to preference over the general creditors, although as such secretary he acted as manager, overseer and superintendent, and in so doing, performed manual labor in packing and shipping for the concern.

In each one of these cases the claimant performed different kind of labor, or stood in a different relation to their employees. And while therefore these decisions, strictly speaking, cannot conflict, yet they are not in entire accord. The first adopts a very strict construction, the second a very liberal, and the third neither so strict as the first, nor as liberal as the second.

The usual definition given to the word operative, isa “workman,” “one employed to perform work for another, ”an “artisan,” etc. Workman means a person who performs work for another, be it skilled or unskilled, manual or mental labor.

I have never taken any stock in the idea that the legislature by the use of the word in sec. 6355, meant to limit it to skilled labor, or in fact to any particular kind of labor. It seems to me that as used in the statute, it was not meant to exclude any kind of laborers, but as a broad term including every person who performs labor in the operation of his employer’s business.

The man who follows the plow is just as much an operative to the farmer in the tillage of his land, as is the man who wields the hammer in a large manufacturing establishment. And in either case they are just as necessary to the operation of their employer's business, as if their labor was what is known as skilled labor. They are operative just as much as if they were skilled laborers. For what reason the legislature could mean to include in this word only skilled labor or labor in a manufacturing establishment, is not evident to me.

The object of the law unquestionably is to furnish protection to that class of laborers, who from their condition in life, can ill afford to lose their wages, and who from the nature of their service, know little of the financial condition of their masters, and even it they did know such financial condition. they are usually unable to assert ard protect their rights. Their earnings are usually small and would not justify the employment of counsel to enforce their claims.

The law insures to him who earns his daily bread by the sweat of his brow, that when the days’ work is "done, the bread is earned. And no act of the employer who has received the benefit of that work, can deprive him of the fruits of his labor.

H. W. Stafford, for Assignee.

O. H. Miller, for Claimants.

The law is just and human and no hairsplitting should be used in it3 application. —And the court will therefore hold that a person who performs labor on a farm by the month or by the day, under the control and direction of the farmer in the operation and management of his farm, is an operative within sec. 6355, Rev. Stats.

As to the claim of the blacksmith, who shod the horses and sharpened the plows used by the assignor in the operation of his business of farming, being an operative within the meaning of sec. 6355, I cannot accede. It is not the kind of labor that excludes his claim, but the nature of his service. If the assignor in the management of his farm had needed a blacksmith and would have employed him, not to do any particular work or job, but to do all his work, under his direction and control, he might come within the law. In other words, in order to be included within the act, the relation of master and servant must exist between the employer and employee. The language of the statute is, “every person who shall have performed any labor as an operative in the service of the assignor.”

If the person who performs the labor does so in pursuit of an independent calling, and does not while performing such labor, remain entirely under the control and direction of the person for whom the labor is performed, such person is not a bervantand the relation of master and servant does not exist between him and his employer.

In the case at bar, the blacksmith was following an independent calling. He was at no time entirely under the control and direction of the assignor. He did work for whoever came. He not only shod the assignor’s horses, but those of neighboring farmers. '

The relation that existed between him and the assignor was that of bailor and bailee. He had his lien at common law and could have retained possession of the animal or article upon which the labor was performed,’ until he received his pay.

Having either carelessly or unintentional surrendered this right, the court should not now aid him with a doubtful, and as I think, wrong construction of the law.

The court therefore will hold that a blacksmith, following an independent calling, shoeing horses and sharpening plows, etc., used by farmers in the operation and conduct of his farm, is not an operative within sec. 6355, Rev. Stats., and not entitled to a preference in the distribution of the assets of an assignor.  