numerous conversations with her husband of facts learned from him and to the contents of letters written from one to the other. Under subsection 1 of section 606 of the Civil Code of Practice providing 'neither a husband nor a wife shall testify, even after the cessation of their marriage, concerning any communication between them during marriage,' all the foregoing testimony was incompetent." To the same effect is New York Life Ins. Co. v. Johnson's Admr., 24 Ky. Law Rep. 1867, 72 S. W. 762; Buckel v. Smith's Admr., 26 Ky. Law Rep. 494, 82 S. W. 235.

If the testimony offered by the wife as to what her husband told her, when no one else was present, was not a "communication" between them, we are at a loss to know what would be a "communication." It will be noticed that the code prohibition is not against the disclosure of "confidential" communications; but, although the word "confidential" is not used, it was evidently the purpose to exclude only such communications as would naturally grow out of the marriage relation. As was said in Commonwealth v. Sapp, 90 Ky. 580, 29 Am. St. Rep. 405, 12 Ky. Law Rep. 484, 14 S. W. 834: "The word 'communication,' therefore, as used in our statute should be given a liberal construction. 709 It would not be confined to a mere statement by the husband to the wife or vice versa, but should be construed to embrace all knowledge upon the part of the one or the other obtained by reason of the marriage relation, and which but for the confidence growing out of it would not have been known to the party." There might be communications between the husband and wife that it would be competent for either to testify concerning, as when they were made in the presence or hearing of third parties; thus making it plain that they were not that character of communications that the law will protect and prohibit either party from disclosing. So third parties may testify as to conversation overheard by them between husband and wife: Commonwealth v. Everson, 29 Ky. Law Rep. 760, 96 S. W. 460. Another exception to the rule is made in the Sapp case (90 Ky 580, 12 Ky. Law Rep. 484, 29 Am. St. Rep. 405, 14 S. W. 834), where it was held that either could testify in a prosecution against the other for an assault or attempt to do violence; and yet another exception made in cases where the husband or wife may testify to facts known to the witness from other means of information than such as result from the marriage relation or that come to either of them independent of it: Elswick v. Commonwealth, 13 Bush,

155; English's Admr. v. Cropper, 8 Bush, 292. Again, other exceptions are made in Shepherd v. Commonwealth, 119 Ky. 931, 24 Ky. Law Rep. 698, 85 S. W. 191, and Shipp v. Commonwealth, 124 Ky. 643, 30 Ky. Law Rep. 904, 99 S. W. 945, 10 L. R. A., N. S., 335. But here the communication concerning which the wife offered to testify was manifestly made to her by the husband because she was his wife, and solely by virtue of the marriage relation. It does not fall within any of the exceptions mentioned, nor those specified in the Code of Practice.

710 Another error complained of is in permitting a witness to testify that he heard the plaintiff make a slighting or disrespectful remark about her husband. We think this evidence was competent. It was admissible to prove acts and declarations of the plaintiff that tended to show the state of feeling of plaintiff toward her husband, for the purpose of illustrating the extent of her affection for him, and the part she took, if any, in contributing to sever the marital relations or in causing her husband's affections to be alienated from her.

The other errors complained of are of minor importance; and, as they did not prejudice the substantial rights of the plaintiff, we do not deem it necessary to extend this opinion in discussing them.

The judgment of the lower court is affirmed.

Actions by a Wife for the Alienation of Her Husband's Affections are discussed in the note to Clow v. Chapman, 46 Am. St. Rep. 472-478. There are many authorities recognizing the right of a married woman to sue a third person for alienating her husband's affections: See Betser v. Betser, 186 Ill. 537, 78 Am. St. Rep. 303; Reed v. Reed, 6 Ind. App. 317, 51 Am. St. Rep. 310; Price v. Price, 91 Iowa, 693, 51 Am. St. Rep. 360; Deitzman v. Mullin, 108 Ky. 610, 94 Am. St. Rep. 390; Scott v. O'Brien, 129 Ky. 1, ante, p. 419. Actions against a mother in law or father in law for alienation of affections are discussed in the recent cases of Boland v. Stanley, 88 Ark. 562, 129 Am. St. Rep. 114; Jones v. Monson, 137 Wis. 478, 129 Am. St. Rep. 1082, and cases cited in the cross-reference note thereto.

The Admissibility in Evidence of Privileged Communications between husband and wife are discussed in the note to Commonwealth v. Sapp, 29 Am. St. Rep. 418. The matter that the law prohibits either the husband or the wife from testifying to as witnesses includes any information obtained by either during the marriage or by reason of its existence. It should not be confined to mere statements by one to the other, but embraces all knowledge upon the part of either obtained by reason of the marriage relation, and which, but for the confidence growing out of it, would not have been known: Mercer v. State, 40 Fla. 216, 74 Am. St Rep. 135. See, also, Fuller v. Fuller, 177 Mass. 184, 83 Am. St. Rep. 273; National Lumberman's Bank v. Miller, 131 Mich. 564, 100 Am. St. Rep. 623; Johnson v. Johnson's Committee, 122 Ky. 13, 121 Am. St. Rep. 449.

SPARKS v. BARBER ASPHALT PAVING COMPANY. [129 Ky. 769, 112 S. W. 830.]

STREET ASSESSMENT-Original Construction.-A city, in ordering a street to be graded and paved after a part of it has already been improved by an abutting owner, at his own cost, orders the original construction of the street for which abutting owners may be taxed. (p. 493.)

STREET ASSESSMENT-Original Construction.-A street is not constructed, within the meaning of the law, until its construction is prescribed by the city authorities; and until the construction is so prescribed and property holders required to pay therefor, the cost thereof as required by the city may be assessed against their property. (p. 494.)

A. E. Richards and A. B. Bensinger, for city of Louisville.

Wm. Furlong and John Woodbury, for Barber Asphalt Paving Company.

Gregory & McHenry, for appellant Sparks.

Wm. Furlong, John L. Woodbury, A. E. Richards and A. B. Bensinger, for the appellee.

771 HOBSON, J. What is now Frankfort avenue in the city of 772 Louisville was formerly the Louisville and Shelbyville turnpike. While the pike was still in the possession of the turnpike company, the town of Crescent Hill was formed, which included within its limits a part of the pike. While the road was the property of the turnpike company and within the town of Crescent Hill, the Louisville Water Company improved the part of the road with macadam along the front of the Louisville Water Company's property, extending westwardly to the intersection of Crescent avenue. The width of the improvement was forty-four feet. A part of the road was raised three or four feet, to the level of the tracks of the Louisville and Nashville Railroad Company, which run parallel with the road. In addition to this gutters and curbings were put in. The entire cost of the improvement was borne by the Louisville Water Company. After all this had been done some years, the boundaries of the city of Louisville were extended so as to take in the town of Crescent Hill; and on April 7, 1905, the city passed an ordinance for the construction of a part of Frankfort avenue by grading, curbing, and paving with asphalt. The section so ordered to be improved included within it that part of the street which had been before improved by the water company

voluntarily for reasons of its own. The only question necessary to be determined on this appeal is whether the making of the asphalt street under the ordinance was original construction as to this part of the street which had before been improved by the Louisville Water Company. The circuit court held that it was original construction, and the property owners who were assessed for it have appealed.

The rule as declared by this court in a number of opinions is that until the street is improved as provided 773 by the municipal authorities, and an improvement is made for which the property owners are charged, there is no original construction of the street; in other words, the abutting property may be taxed to construct the street, and this power of taxation is not affected until it is exercised: McHenry v. Selvage, 99 Ky. 232, 18 Ky. Law Rep. 473, 35 S. W. 645; Wymond v. Barber Asphalt Paving Co., 25 Ky. Law Rep. 1135, 77 S. W. 203; Helm v. Figg, 28 Ky. Law Rep. 396, 89 S. W. 301; Catlettsburg v. Self, 115 Ky. 669, 25 Ky. Law Rep. 161, 74 S. W. 1064; Adams v. Ashland, 26 Ky. Law Rep. 184, 80 S. W. 1105; Lindsey v. Brawner, 29 Ky. Law Rep. 1238, 97 S. W. 1; Gast v. Minor, 28 Ky. Law Rep. 1256, 91 S. W. 251; Barfield v. Gleason, 111 Ky. 491, 23 Ky. Law Rep. 128, 1120, 63 S. W. 964. The circuit court followed the rule declared in these opinions. The facts in many of these cases cannot be distinguished from the facts of this case. The cases differ in degree, but not in principle. The rule declared by the court rests upon the ground that until the abutting property has once been compelled to bear the burden the city has not constructed originally the street, which in justice to all other property within the city and upon an equal basis under the statute it should do. If appellant's contention were sustained, it would follow that Frankfort avenue might be constructed as an asphalt street at the cost of the adjoining land owners on certain squares, and could not be so constructed on other squares, although the city authorities had not before defined how the street should be constructed. If this were the rule, there could be no uniformity in the streets of the city, and persons who paid for the construction of an asphalt street in front of their property might not receive 774 the benefits contemplated by law, because right by the side of them might be property owners who could not be required to pay, and either there could be no asphalt street constructed in front of them or it must be done at the cost of the city. If it was done at the cost of the city, the burden would in part fall on those who had already paid for the con

struction of their part of the street; and if it was not so done, they would have no asphalt street. It is essential that the streets of the city must be uniform. To have uniformity, they must be regulated by the city authorities. There could be no uniformity if each property owner might improve the street in front of him, and thus forestall action by the city authorities, directing how the street shall be constructed. As the city authorities have control of the streets, a street, in the meaning of the law, is not constructed until its construction is prescribed by the city authorities; and until it is so prescribed, and the property holders are required to pay for constructing the street, the cost of constructing the street as required by the city authorities may be assessed against their property.

Judgment affirmed.

Petition for rehearing by appellant overruled.

Assessments for Local Improvements Against Abutting Property in proportion to frontage are valid and constitutional: Northern Pacific Ry. Co. v. City of Seattle, 46 Wash. 674, 123 Am. St. Rep. 955. See, too, Job v. Alton, 189 Ill. 256, 82 Am. St. Rep. 448; Adams v. Shelbyville, 154 Ind. 467, 77 Am. St. Rep. 484.

LOUISVILLE RAILWAY COMPANY v. McCARTHY. [129 Ky. 814, 112 S. W. 925.]

IMPUTED NEGLIGENCE.-The Negligence of a Husband in Driving a Vehicle in Which His Wife is Riding is not imputable to her from the mere fact of the marital relation. (pp. 497, 498.)

Fairleigh, Straus & Fairleigh and Green & Vanwinkle, for the appellant.

Morton K. Yontz, for the appellee.

816 LASSING, J. This is an appeal from a judgment of the Jefferson circuit court, wherein appellee recovered fif teen hundred dollars' damages for personal injuries which she received in a collision with one of appellant's cars while she was being driven west on Frankfort avenue in a carriage. She charged that the collision and consequent injury to her was due to the gross negligence of the agents and servants of appellant in charge of the car. The answer, in addition to traversing the allegations of the petition, pleaded