ue of the horse, harness, and vehicle would be wholly immaterial under the exemption law. Nor is value in any sense material when a motor vehicle is owned and used by a

physician in making his professional calls.

Judgment affirmed.

Corfman, Ch. J., and Gideon, Thurman, and Frick, JJ., concur.

I. Introduction, 74.

riage or buggy," especially when the

74.

III. Cases holding automobiles not exempt, 76.

IV. Question as affected by value of automobile, 78.

1. Introduction.

On the question under annotation, the courts have reached different conclusions. This is due partly to dissimilarity of statutory provisions. In some cases, as subsequently indicated, the courts have expressly distinguished other cases reaching the opposite conclusion on the ground that the statutes involved were not alike. The question is one of statutory construction, it being generally agreed. that the exemption statutes should be liberally construed, and the inquiry being whether the spirit of the statute, enacted as it generally appears before the days of automobiles, considered in connection with the express language used, requires or justifies the holding that it applies to automobiles.

II. Cases holding automobiles exempt. It is held in SPANGLE v. CORLESS (reported herewith) ante, 72, that under a statute exempting from execution one horse with vehicle and harness "or other equipments, used by a physician . . . in making his professional visits," an automobile used by a physician in making such visits is exempt from execution.

In Patten v. Sturgeon (1914) 130 C. C. A. 505, 214 Fed. 65, the court, in a bankruptcy proceeding, held that an automobile was a carriage within the meaning of the Oklahoma statute which exempts to every family from attachment or execution and every other species of forced sale "one car

And it was held in Parker v. Sweet (1910) 60 Tex. Civ. App. 10, 127 S. W. 881, that an automobile was a carriage within the meaning of an exemption law, the court saying: "It appears an automobile may or may not be a carriage according as the term is used in its broad or narrow sense, and the well-recognized rules for statutory construction might well call for an affirmative answer in one case and a negative answer in another. For instance, if the statute is a penal one a strict construction is the rule, and the use of the term 'carriage' would perhaps not include an automobile; while if the statute is an exemption statute, which under all the canons of construction is to be liberally construed, the broader interpretation would be adopted and 'carriage' would include automobile. Of course, automobiles were unknown to our lawmakers when the statute under consideration was passed, and they could not have had in mind specifically to exempt such vehicle, but this is not necessary. The legislature did have in mind the exemption to every family of a means of conveyance for the convenience and comfort of its members, and the use of the word 'carriage' in that connection is merely generic, indicating the use or purpose rather than the particular character of vehicle. An automobile is essentially a carriage, used for identically the same purposes as the horse-drawn carriages of our fathers' days, the principal difference between the two being the motor power employed. From the standpoint of utility no distinction can be made between the two. We have adverted to the fact that exemption

V.

statutes are to be liberally construed. It has been expressly so held many times in this state. Applying this rule, the supreme court in Allison Brookshire (1873) 38 Tex. 199, held that a mule was a horse within the meaning of our exemption statutes. If a mule is a horse, undoubtedly an automobile is a carriage."

To the same effect is Peevehouse v. Smith (1913) - Tex. Civ. App. —, 152 S. W. 1196, in which the court said that the laws of the state exempted to each family, among other things, one carriage or buggy; that it was held in the Parker Case (Tex.) supra, that an automobile was a "carriage" within the meaning of the statute, and that in that decision the court fully concurred.

That an automobile is a "carriage" within the meaning of the Texas exemption statute is the view taken also in Hammond v. Pickett (1913) - Tex. Civ. App., 158 S. W. 174. But it was held that as the exemption was not to the head of the family, but to the family, and there had been a dissolution of the family by a divorce from bed and board under the laws of Louisiana, the husband was not in a position to claim the exemption.

It was held in Lames v. Armstrong (1913) 162 Iowa, 327, 49 L.R.A. (N.S.) 691, 144 N. W. 1, Ann. Cas. 1916B, 511, that an automobile is a vehicle within the meaning of the Iowa statute exempting to certain classes of persons a team and wagon "or other vehicle" used in earning a living. The court cited cases to the effect that a statute making a carriage exempt applied to automobiles, and said that if an automobile is a carriage under exemption statutes it saw no reason why it was not exempt as a vehicle under the statute in question. The court admitted that this might not be so under a penal statute, which should be strictly construed.

It was held also in Lames v. Armstrong (Iowa) supra, that the statute applied so as to exempt an automobile belonging to a general agent for life insurance who required the constant use of such automobile in covering his territory, which extended over several

counties, the court holding that such an agent was a "laborer," within the meaning of the statute exempting, in the case of "a physician, public officer, farmer, teamster, or other laborer," the team and wagon or other vehicle by the use of which he habitually earned his living. Of course the question as to who is a "laborer" within the meaning of such statutes extends beyond the scope of the annotation.

The holding in the above case that an automobile used by the head of a family in earning a living is a vehicle within the meaning of the statute, and therefore exempt from execution, is approved by implication in Re McClellan (1919) 187 Iowa, 866, 174 N. W. 691, where, however, it was held that an automobile which had belonged to a retired farmer who used it merely for convenience or pleasure should not, on his death, be turned over to his widow as exempt property, in the absence of proof that the deceased earned some portion of his livelihood by use of the automobile.

And, following its earlier decisions, the court in Waterhouse v. Johnson (1922) 194 Iowa, 343, 189 N. W. 669, held that an automobile used in conveying himself and his tools to and from his work by one who was engaged in the business of laying tile drains upon the farms of others, and who himself performed part of the physical labor involved, was within the statute and exempt from execution.

In Kaiser v. Pua (1917) 23 Haw. 584, the statute expressly exempted from attachment and execution one dray, truck or automobile by the use of which a cartman, drayman or truckman actually earned his living. And it was held that a married woman who owned a motor truck with which she did the business of a teamster or truckman was within the statute although she did not drive the truck herself but it was driven by her husband, who collected the earnings and deposited them in a bank to her credit, the wife having no other business or occupation, and by the use of the truck.

actually earning a living for herself and family.

III. Cases holding automobiles not exempt.

In WHITNEY V. WELNITZ (reported herewith) ante, 68, it is held that an automobile is not within the Minnesota statute exempting from execution one "wagon, cart or dray."

And in Re Wilder (1915) 221 Fed. 476, a bankruptcy proceeding, the court held that a taxicab owned by a hackman was not exempt under the California statute exempting "two

horses, two oxen, or two mules, and their harnesses, and one cart or wagon, one dray or truck, one coupé, one hack or carriage, for one or two horses, by the use of which a cartman, drayman, truckman, huckster, peddler, hackman, teamster or other laborer habitually earns his living." The court said that the taxicab did not fall within the literal terms of the statute, and that while those provisions should be construed liberally, yet the court was not warranted in creating by interpretation new exemptions; that the legislature, although it had been in session several times since taxicabs had been in general use, had not included them in the exempt list, and the court was not warranted in doing so by interpretation of the language in question.

And under the above provision of the California statute, it was held in Crown Laundry & Cleaning Co. v. Cameron (1919) 39 Cal. App. 617, 179 Pac. 525, that an automobile used by one engaged in the business of collecting clothes from and returning them to patrons of a laundry was not exempt from attachment or execution, the court saying: "Clearly it appears to us that a motor-driven vehicle is not a cart, wagon, dray, truck, coupé, hack, or carriage, as those terms are used in the section. The section plainly says that such exempt vehicles are vehicles which may be drawn by 'one or two horses.' If that the legislature intended motor vehicle should be exempt from attachment, we think that it would have so declared in plain terms, and that for the courts to add to the

a

V.

statute any articles not enumerated would in effect be judicial legislation." The court distinguished Lames Armstrong (1913) 162 Iowa, 327, 49 L.R.A. (N.S.) 691, 144 N. W. 1, Ann. Cas. 1916B, 511, set out under II., supra, on the ground that the Iowa statute contained the general term "or other vehicle."

It was held in Eastern Mfg. Co. v. Thomas (1909) 82 S. C. 509, 64 S. E. 401, that an automobile is not a tool or an implement of trade within the meaning of exemption laws. Generally as to what are "tools," "implements," "instruments," "utensils," or "apparatus" within the meaning of Debtors' Exemption Laws, see annotation in 2 A.L.R. 818, and 9 A.L.R. 1020.

So, in Hammond v. Pickett (1913)

Tex. Civ. App. -, 158 S. W. 174, the court said it was clear that the exemption of an automobile could not be successfully claimed under the statute exempting all tools and apparatus belonging to a trade or profession.

or

In Prater v. Riechman (1916) 135 Tenn. 485, 187 S. W. 305, it was held that an automobile was not within the Tennessee statute exempting certain property including two horses mules, one oxcart, a wagon (not exceeding $75 in value), and harness. The court said: "The animals and vehicles named in the schedule are such as were usually owned by such debtors and used by them in the work necessary to be done to support their families, and to accomplish such limited transportation of themselves and their families as might be necessary. An automobile, on the other hand, is an invention not in use when the exemption statute was passed, and so of course is not mentioned therein, and was not within the intent of the legislature. The automobile is the product of a civilization advanced much beyond the date of our exemption legislation; and it is as a means of transportation, a different class of vehicle altogether from those named in the statute. It was invented to meet the needs of a different class of citzenship from that intended to be protected by the exemption statutes. It is a vehicle whose owner is usually

well able to pay his debts, and, whether willing or not so to do, should be thereto compelled." The court in this instance also regarded the decision in Lames v. Armstrong (Iowa) supra, cited under II. supra, as of no value as authority, because of differences in the phraseology of the two statutes which were involved.

In Burns v. Christianson [1921] 16 Alberta L. R. 394, 60 D. L. R. 173, it was held that an automobile of a licensed professional chauffer was not within a statute exempting "the tools and necessary implements to the extent of $200 used by the execution debtor in the practice of his trade or profession." The ground of the decision is stated by one of the judges as follows: "Taking the section in its ordinary meaning, I cannot think that the legislature, when using the two words 'tools' and 'implements' in the plural and placing a limitation in value obviously upon a number of articles taken together, intended to include a single but very valuable article in the nature of a conveyance which the debtor uses as a carrier of passengers. Even if the carriage of passengers for hire came within the meaning of the word 'trade,' which I think it does not, I do not think a single valuable chattel like an automobile is within the meaning of the expression 'tools and implements.' When the legislature said to a debtor in substance, 'You may possess and enjoy the tools and implements (in the plural) of your trade up to the value in all of $200, and you cannot be disturbed in their possession by execution,' I cannot believe that it means to say, 'You may acquire a single chattel of three or four, five or ten, times that value, use it as your means of livelihood in conveying passengers and you shall not be disturbed.' This would exempt steamboats and aeroplanes when so used."

And it was held in Robitaille v. Asselin (1915) Rap. Jud. Quebec 49 C. S. 1, that an automobile of the value of $1,400, even if it was the only vehicle which the party owned, was not exempt because of the fact that

he used it to earn his living as a cab

man.

The provision of the Georgia statute which exempts certain specific chattels, as a farm horse or mule, or yoke of oxen, common tools of trade, etc., but does not specifically name an automobile, was held not to include automobiles, in Gann v. McGee (1916) 19 Ga. App. 13, 90 S. E. 976 (syllabus by the court only reported). Another statutory provision, however, allowed an exemption of real and personal property to the aggregate value of $1,600, so that exemption might apparently be claimed under this statute.

The annotation does not purport to cover cases in which the question indicated in the above title was not discussed, but in which automobiles were taken on attachment or execution, and other objections were raised than that of exemption, as, for example, that of ownership. The mere fact that an automobile is sold on execution does not, of course, even by implication, tend to support the doctrine that if it is the only automobile which the debtor possesses it might not under certain circumstances be claimed as exempt. By way of illustration, attention is called to several cases of the kind above referred to. Thus, it is apparently assumed in Jaddatz v. Grace Harbor Lumber Co. (1916) 194 Mich. 273, 160 N. W. 587, that the automobile in question was subject to execution, the question discussed being that of ownership. To the same effect is Burns v. Hammel (1916) 32 Cal. App. 214, 162 Pac. 669, recovery of damages from the sheriff who had taken and sold the property under execution being denied. So, the implication in such cases as Littler v. Jefferis (1923) 36 Idaho, 608, 212 Pac. 866, seems to be that the automobile in question would not have been exempt from the levy of attachment had it belonged to the judgment debtor, it being held that the evidence warranted the finding that it was the separate property of the wife, and not the separate property of the husband, or community property, and that