This action was brought originally in the Tuscarawas Common Pleas by Elmer H. Horn, Administrator of the estate of Harold Horn against the Improved Telephone Company in an effort to recover damages for the alleged wrongful death of the deceased while in the employ of the company.

The petition and return of the sheriff recites The Improved Telephone Company and a motion to quash service was over-ruled leave granted to insert the word “Home” between the words “Improved” and “Telephone.”

The Company set up the defense of contributory negligence in that at the date of the accident the deceased, a minor, was in a certain alley after 8:00 P. M. in violation of the city ordinance which defense was struck out by the Court.

The judgment of the Common Pleas in favor of the Administrator was affirmed by the Court of Appeals.

The Company in the Supreme Court contends:

1. That service should have been quashed.

2. That the defense of contributory negligence as set up was good.