App.] Standard Steel Castings Co. v. Painter. way or staging used by its employes, the same being more than five feet from the floor. The petition did not allege in so many words that the company regularly employed five or more men, and there was no allegation as to whether or not it had complied with the provisions of the Workmen's Compensation Act. The company answered, and plead contributory negligence. Painter replied denying contributory negligence, and the case came on for trial without either side alleging whether or not the employing company was subject to the provisions of the Workmen's Compensation Act or whether or not it had complied with such act. crane * * * Painter in his petition alleged that the employing company owned and operated a shop and factory and was engaged "in the business of manufacturing steel castings, and one of the departments in its factory is known as a chipping room, in which it owns and operates a large overhead travelling which it uses for the purpose of lifting and carrying large steel castings and other material." And in the trial of the case he testified that "they make castings and axles and all such things as that for automobiles;" that "there is the foundry and the machine shop and the blacksmith and the pattern shop, and then there is this chipping room." He was then asked how many men were employed there, and counsel for the company admitted "that we employ more than five men, if that is what you are getting at." Counsel for plaintiff replied "All right," and did not pursue the subject further. The record therefore disclosed that the employing company regularly employed more than five men, which was in no wise controverted in Standard Steel Castings Co. v. Painter. [14 Ohio the pleadings or evidence, but the plaintiff, Painter, offered no proof upon the subject of whether or not the employing company had or had not complied with the Workmen's Compensation Act. When the plaintiff rested, the defendant also rested without offering any proof as to whether or not the employer had complied with the Workmen's Compensation Act. If the defendant, could avail itself of the defense of contributory negligence, which it had plead, the evidence of the plaintiff was such as to justify the court in charging upon that subject. The court charged as follows: "The claim of contributory negligence, I might say, has no place in this case. Where the negligence consists in the violation of a duty to guard machinery, there is no defense of contributory negligence." It is claimed that in so charging the court committed error, and on that ground we are urged to reverse the judgment of $25,000, which Painter recovered for the loss of a leg, below the knee. At common law the employing company had the right to plead and have considered the defense of contributory negligence. In this case that right was not taken away by Section 6245-1, because that section was not applicable; that right was not taken away by Section 1465-73 of the Workmen's Compensation Act, because there was no proof that the employer had not complied with that act; therefore, it was error for the court to charge that the defense of contributory negligence, which had been pleaded, had "no place in this case." App.] Standard Steel Castings Co. v. Painter. We need not determine whose duty it was to plead and prove the facts which would enable the court to apply the provisions of the Workmen's Compensation Act, or to determine whether or not there is a presumption that one required to comply with the law has done so. The fact is that the Workmen's Compensation Act applied, and such act, under the allegations and proof, did not deprive the employing company of its common-law right to avail itself of the defense of contributory negligence, and there was no other act applicable to the case which deprived the employing company of its common-law right to avail itself of the defense of contributory negligence, and it having plead that defense, and that question under the evidence being for the jury, the court was in error in charging that there could be no defense of contributory negligence in the case. Judgment reversed for error in the charge of the court. Judgment reversed. VICKERY and INGERSOLL, JJ., concur in judgment. [14 Ohio Ex parte Crouse. EX PARTE CROUSE. Habeas corpus — Collateral attack — Commitment to children's home Order in contempt unauthorized, when - Refusal of witness to answer. Children having been placed in a children's home under commitments of a court having competent jurisdiction, by proceedings regular in all particulars, a writ of habeas corpus cannot issue from another court on the ground that such children are unlawfully restrained of their liberty, where there is no showing in the habeas corpus proceeding that the commitments by which the children are held are void for illegality and where no proceeding in error was prosecuted from the court of domestic relations on the ground of irregularity. Therefore a witness in such habeas corpus proceeding cannot be committed to jail for contempt for refusing to answer certain questions. (Decided June 6, 1921.) IN HABEAS CORPUS: Court of Appeals for Hamilton county. Mr. John C. Hermann and Mr. Herbert E. Ritchie, for petitioner. Mr. Wm. F. Fox and Mr. Eli G. Frankenstein, for respondents. CUSHING, J. On April 12, 1921, a writ of habeas corpus was issued by this court. The petition stated that the petitioner, Meigs V. Crouse, was illegally restrained and deprived of his liberty by Ferd Bader, sheriff of Hamilton county, Ohio. The sheriff answered that he held the petitioner, Crouse, under a commitment of Judge Joseph B. Kelley, of the court of insolvency of Hamilton county, Ohio, on the charge of contempt of court. A copy of the commitment was attached to the answer. The commitment contained the following: "That the said Meigs V. Crouse stand committed to the county jail of Hamilton County, Ohio, until such time as said Meigs V. Crouse signifies his willingness to answer certain questions." Crouse was committed to jail for contempt in refusing to answer the questions stated below, in case No. 9437 of the court of insolvency. The controversy arose out of a commitment by the juvenile court of Hamilton county, Ohio, in case No. 16655 of that court, wherein five children had been committed to the Children's Home, of which Crouse was superintendent. The record is that on May 20, 1920, the following children of the ages stated, Marie Anderson, 14 years of age; James Charles Anderson, 9 years of age; Mary Frances Anderson, 7 years of age; Florence Henrietta Anderson, 5 years of age; and India Ruth Anderson, subsequently deceased, were adjudged dependents and committed to the Children's Home. The proceeding in the insolvency court was in habeas corpus, and it is claimed that the children named, except India Ruth Anderson, were unlawfully restrained of their liberty. At the hearing it was made to appear that all of the children were in the Children's Home under commitments by the court of common pleas, division of domestic relations, regular in all particulars; that that court had determined that the children were dependents, as provided under the commitments, and had ordered A. C. Crouse to deliver the children to Meigs V. Crouse, the superintendent of the Children's Home, and that they remain in the care and custody of the |