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UNITED STATES DEPARTMENT OF LABOR
JAMES J. DAVIS, Secretary
BUREAU OF LABOR STATISTICS
ETHELBERT STEWART, Commissioner
BULLETIN OF THE UNITED STATES \
BUREAU OF LABOR S T A T I S T I C S / .............. l l O e
LABOR LAWS
OF T H E
UNITED
r -| 7
D i#
STATES SERIES
DECISIONS OF COURTS AND
OPINIONS AFFECTING LABOR
1927-1928
JUNE, 1930
UNITED STATES
GOVERNMENT PRINTING OFFICE
WASHINGTON : 1930
For sale by the Superintendent of Documents, Washington, D. C.
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•
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Price 85 cents
ACKNOWLEDGMENT
This bulletin was prepared by Charles F. Sharkey, of the United
States Bureau of Labor Statistics,
xn
CONTENTS
Pag©
Introduction___________________________________________________________
Opinions of the Attorney General:
Wages— “ watches ” — license— suspension__________________________
Decisions of courts:
Aliens— seamen—admiralty (Plamals v. The Pinar Del Rio)— New Y o r k ..
Contract of employment:
Advancements— seamen— wages (Jackson et al. v. The Archimedes)—
New Y ork--------------------------------------------------------------------------------Assignment of wages— release (Bryant v. Askin & Marine Co.)— South
Carolina-----------------------------------------------------------------------------------Authority to hire— additional service (Johnson v. Chicago & N. W. Py.
Co.)— Minnesota_______________________________________________
Breach—
changed conditions as affecting (Armstrong v. Cherry et al.)—
California__________________________________________________
damages for breach (Hazen v. Cobb et al.)— Florida_____________
discharge— damages (Gary v. Central of Georgia Ry. Co.)—
Georgia_________ ___________________________________________
duress as affecting— seamen— wages (The Z R -3 )— Washington.
engaging in similar business— restraint of trade (Emler v. Ferne)—
Ohio_____ ________________ _________________________________
interference by third party (Owen et al. v. Westwood Lumber
Co.)— Oregon______________________________________________
Compelling employees to trade in company store— restraint of trade
(Deon v. Kirby Lumber Co. et al.)— Louisiana___________________
Continuation school— constitutionality (People v. Braunstein)—
New York______________________________________________________
Discharge—
rescission of contract (Diffley v. Jacobson Mfg. Co.)— New Jerseyseamen— wages (United States Steel Products Co. et al. v.
Adams)— Louisiana_________________________________________
Engaging in similar business— trade secrets—
(Deuerling v. City Baking Co.)— Maryland____________________
(Olschewski v. Hudson)— California___________________________
enforcement (Club Aluminum Co. v. Young et al.)— Massachu
setts_______________________________________________________
information gained may be used in competitive employment
(El Dorado Laundry Co. v. Ford)— Arkansas________________
injunction—
(Excelsior Laundry Co. v. Diehl et al.)— New Mexico______
(Maas & Waldstein Co. v. Walker et al.)— New Jersey______
Enticing employee— construction of statute (Armstrong v. Bishop)—
Mississippi______________________________________________________
Invention of employee—
(Atlas Brick Co. v. North)— Texas____________________________
rights of employer (Magnetic Mfg. Co. et al. v. Dings Magnetic
Separator Co.)— Wisconsin------------ -------- ------------------------------
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VI
CONTENTS
Contract of employment— Continued.
Liability of principal for acts of his agents— authority (Gasco v.
Tracas)— Indiana_______________________________________________
“ Open port law” — interference— interstate commerce— constitution
ality of statute (Ratcliff v. State)— Texas________________________
Profit-sharing plan— jurisdiction (Patton t;. Babson Statistical Organ
ization (Inc.))— Massachusetts__________________________________
Qualifications of employee— constitutionality (Atchison T. & S. F. Ry.
Co. v. State)— Arizona__________________________________________
Removal of railroad shops— unemployment— injunction (Lawrence et
al. v. St. Louis-San Francisco Ry. Co.)— Oklahoma______________
Removing property of laborers— trespass (State v. Hunter)— Louis
iana____________________________________________________________
Employers’ liability:
Admiralty—
contractor—
employee— safe place to work (Wallace v. United States)—
Washington____________________________________________
fellow service— safe place to work— seaman (Smith v. United
States)— New York____________________________________
contributory negligence— jurisdiction (Colonna Shipyard (Inc.)
v. Bland)— Virginia_________________________________________
Federal statute— fellow servants— longshoreman working on
ship (Hammond Lumber Co. v. Sandin)— Washington_________
jurisdiction (Messel v. Foundation Co.)— Louisiana_____________
negligence— explosion— Federal statute— seaman (Petition of
Clyde S. S. Co.)— New York_________________________________
res judicata— (Baltimore S. S. Co. et al. v. Phillips)— Maryland__
seamen— injury (Williams v. Oceanic Stevedoring Co.)— Texas__
Assumption of risk—
abrogation of defenses— statute of limitations (Baltimore & Ohio
S. W. R. Co. v. Carroll)— Indiana____________________________
car checker (Toledo, St. L. & W. R. Co. v. Allen)— Missouri______
contributory negligence—
death— negligence (Burgess v. North Carolina Electrical
Power Co.)— North Carolina____________________________
negligence— safe place to work (Sanders v. Armour & Co. of
Delaware et al.)— Missouri______________________________
damages— negligence— safe place to work (Woodley Petroleum
Co. v. Willis)— Arkansas____________________________________
defective platform— fellow service— negligence (Sunderland v.
Steanson et al.)— Kansas____________________________________
negligence—
(Howe v. Michigan Central R. Co.)— Michigan-------------------(Missouri Pacific R. Co. v. Steen)— Texas---------------------------(Norfolk & Western Ry. Co. v. Lumpkins)— Virginia________
(Olson v. Great Northern Ry. Co.)— North Dakota-------------(Owen v. Elliott Hospital)— New Hampshire_______________
contributory negligence (Lancaster v. St. Louis & S. F. Ry.
Co.)— Oklahoma_______________________________________
proximate cause (Pullman Co. v. Montimore)— Kansas__________
safe place and appliances (Duejack v. New Jersey Zinc Co.
(Inc.))— New Jersey-------------------------------------------------------------
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CO N TEN TS
vn
Employers’ liability— Continued.
Death—
Page
69
(Hoffman v. State of Missouri)— Missouri______________________
dependents (Chicago, Burlington & Quincy R. Co. v. WellsDickey Trust Co.)— Minnesota______________________________
70
release (Mellon, Director General of Railroads, etc. v. Goodyear)
Kansas____________________________________________________
71
Death of brakeman— damages (Gulf, Colorado & Santa Fe Ry. Co.
v. Moser)— Texas----- -------------------------------------------------------------73
Death of conductor (Linstead v. Chesapeake & Ohio Ry. Co.)—
Kentucky-------------- ------------------------------------------------------------------73
Death of fireman (Wabash Ry. Co. v. Whitcomb)— Indiana...................
74
Disfigurement (Odom v. Atlantic Oil Producing Co. in re Odom)—
75
Louisiana______________ _______ _____ ______ _____________________
Fellow servant— injury (Southern Ry. Co. v. Louise Taylor)—
District of Columbia____________________________________________
76
Injury—
of brakeman— safety appliance— limitations (Grew v. Boston &
Maine R .)— New Hampshire________________________________
77
of engineer by mail sack crane (Chesapeake & Ohio Ry. Co. v.
Leitch)— West Virginia_____________________________________
78
of station agent (Missouri Pacific R. Co. v. Aeby)— Arkansas.
79
of switchman— jurisdiction (Sullivan v. Wabash Ry. Co.)— Ohio—
80
Interstate commerce— jurisdiction— workmen's compensation (Miller
v. Reading Co.)— Pennsylvania__________________________ ______ _
81
Lump sum settlement— compromise (Musick v. Central Carbon Co.
(Inc.) )— Louisiana_____________________________________________
82
Minor unlawfully employed (Kucinski v. City Laundry & Cleaning
Works)— Michigan--------------------------------------------------------------------84
Negligence—
84
(Gulf & Ship Island R. Co. v. Curtis)— Mississippi_____________
children unlawfully employed— damage (Chesapeake & Ohio
Ry. Co. v. Stapleton)— Kentucky____ _______________________
85
constitutionality— punitive damages (Louis Pizitz Dry Goods
87
Co. (Inc.) v. Yeldell)— Alabama___________________________
death of car inspector (Kansas City Southern Ry. Co. v. Jones)—
T exas________ _____ ________ _______ _______________________
87
death of “ water b o y ” (Chesapeake & Ohio Ry. Co. v. Russo)
— Indiana__________________________________________________
88
employee killed by special officer (Atlantic Coast Line R. Co. v.
Southwell)— North Carolina___________________ ___________89
evidence (Gulf, Mobile & Northern R. Co. v. Wells)— Mississippi.
90
injury (Saunders v. Boston & Maine R .)— New Hampshire____
91
injury of switchman— res ipsa loquitur (Pennsylvania R. Co.
v. Hough)— Indiana________________________________________
92
messenger boy— workmen's compensation (Ray v. Western
Union Telegraph Co.)— Massachusetts______________________
93
mine— status of owner (Glover's Administrator v. James)—
Kentucky_______ _______________ ___________________________
94
scope of employment— damage (Barry v. Boston & Maine R.)
— New York_______________________________________________
95
workmen's compensation acts (Lockhart v. Southern Pacific Co.)
96
— California_______________________________________ ______
V III
CO NTENTS
Employers’ liability— Continued.
Poison— death— duty of employer to warn employee (Baumgartner
v. Pennsylvania R. Co.)— Pennsylvania__________________________
Railroad policeman (Delaware, Lackawanna & Western R. Co. v.
Scales)— New York_____________________________________________
Seamen— negligence— care and cure (United States Shipping Board
Emergency Fleet Corp. et al. v. Greenwald)— New Y ork_________
State police acting as strike guard— status of employees (Hudson v.
St. Louis S. W. Ry. Co. of Texas)— Texas_______________________
Stevedore—
fellow servant— independent
contractor— negligence— seamen
(Buzynski v. Luckenbach S. S. Co. (Inc.) et al.)— Texas____
negligence of fellow servant— contractor (Bojarski v. M. F.
Howlett (Inc.) )— Pennsylvania_____________________________
Unlawful employment— construction of statute— child labor (Perry
v. Western Union Telegraph C o . T e n n e s s e e ____________________
Volunteer employee— emergency (Henry Quellmalz Lumber &
Mfg. Co. v. Hays)— Arkansas____________________________________
Employment offices— constitutionality of law as to fee fixing (Ribnik
v. McBride)— New Jersey____________________________________________
Employment service— monopoly— interference with interstate commerce
— shipping of seamen— antitrust act (Anderson v. Shipowners'Associa
tion of the Pacific Coast)— California________________________________
Examination, licensing, etc., of occupations:
Barbers— construction of statute (State v. Leftwich)— Washington..Cosmeticians— cosmetic therapy law— constitutionality (Baker et al.
v. Daly et al.)— Oregon__________________________________________
Detective— license— impairment of contract (Andrews et al. v. La
Crosse Refrigerator Corp. et al.)—Wisconsin_____________________
Employment agency— discretionary powers (Lyons v. Gram, com
missioner of labor statistics, etc.)— Oregon_______________________
Land surveyor— constitutionality— injunction (Doe v. Jones et al.)
— Illinois_______________________________________________________
Pharmacist— constitutionality of statute (Louis K. Liggett Co. v.
Baldridge)— Pennsylvania_______________________________________
Hours of service:
Closing time of barber shops— constitutionality (Chaires v. City of
Atlanta)— Georgia______________________________________________
Sunday labor (Spann v. Gaither, commissioner of police)— Maryland. _
Labor organizations:
Arbitration agreement— award— “ agreeing to disagree’’ (Atchison,
Topeka & Santa Fe Ry. Co. et al. v. Brotherhood of Locomotive
Firemen and Enginemen)— Illinois_______________________________
Collective bargaining— contempt— injunction (Brotherhood of Ry.
& S. S. Clerks, etc. v. Texas & N. O. R. Co. et al.)— Texas_______
Conspiracy—
boycott— inj unction—
(Decorative Stone Co. v. Building Trades Council of West
chester County et al.)— New York______________________
(A. T. Stearns Lumber Co. v. Howlett et al.)— Massachu
setts___________________________________________________
expulsion of member (Sweetman v. Barrows et al.)— Massachu
setts________________________________________________________
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CO N TEN TS
Labor organizations— Continued.
Conspiracy— Continued.
interference with employment— injunction (Barker Painting Co.
v. Brotherhood of Painters, Decorators & Paperhangers of
America)— District of Columbia____________________________
open shop (Nolan v. Farmington Shoe Mfg. Co.)— Massachusetts,
“ peaceful” picketing— injunction (Exchange Bakery & Restau
rant (Inc.) v. Rifkin et al.)— New York_____________________
Criminal syndicalism— constitutionality—
(Fiske v. State of Kansas)— Kansas___________________________
(Whitney v. People of State of California)— California_________
instruction of court (Burns v. United States)— California_______
Injunctions—
(Bittner et al. v. West Virginia-Pittsburgh Coal Co.)— West
Virginia____________________________________________________
boycott—
(Columbus Heating & Ventilating Co. v. Pittsburgh Build
ing Trades Council et al.)— Pennsylvania_______________
monopoly— interstate commerce (Aeolian Co. et al. v. Fischer
et al.)— New York-------------- ----------- -----------------------------contempt—
(Day v. United States)— Indiana__________________________
Clayton Act (Armstrong et al. v. United States)— Indiana. _
internal government (International Hod Carriers’ Local No. 426
v. International Local No. 502, etc.)— New Jersey___________
lockout—
(McGrath v. Norman et al.)— New York__________________
(Moran v. Lasette et al.)— New York_____________________
membership (McNichols et al. v. International Typographical
Union et al.)— Indiana_____________________________________
membership rights (International Union of Steam and Operating
Engineers et al. v. Owens)— Ohio____________________________
sympathetic strike (Lundoff-Bicknell Co. v. Smith et al.)— Ohio.
Picketing—
boycott— injunction (S. A. Clark Lunch Co. v. Cleveland Waiters
and Beverage Dispensers1 Local 106 et al.)— O hio.:._________
contempt— injunction— anti-injunction statute (Ossey et al. v.
Retail Clerks7 Union et al.)— Illinois________________________
injunction—
(L. Daitch & Co. (Inc.) v. Retail Grocery and Dairy Clerks*
Union of Greater New York et al.)— New York_________
(Manker v. Bakers’ , etc., Union et al.)— New Y ork________
(Sarros et al. v. Nouris et al.)— Delaware__________________
Refusal to work on nonunion products— conspiracy— injunction
(Bedford Cut Stone Co. et al. v. Journeyman Stone Cutters’ Asso
ciation of North America et al.)— Indiana_______________________
Rights of seniority— railroads (Crisler v. Crum et al.)— Nebraska
Rules— seniority rights— employment contract (West v. Baltimore
& Ohio R. Co. et al.)— West Virginia___________________________
Strike—
breach of contract— injunction (Interborough Rapid Transit Co.
v. Green et al.)— New York--------------------------------------------------
IX
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X
CO NTENTS
Labor organizations— Continued.
Strike— Continued,
conspiracy—
injunction—
(Goldman v. Cohen et al.)— New York_______________
(United Cloak and Suit Designers’ Mutual Aid Asso
ciation of America v. Sigman et al.)— New York____
restraint of trade (International Organization, United Mine
Workers of America et al. v. Red Jacket Consolidated
Coal & Coke Co. et al.)— West Virginia_________________
contempt— conspiracy— injunction (State ex rel Continental Coal
Co. v. Bittner)— West Virginia______________________________
expulsion— damages (Mullen v. Seegers)— Missouri_____________
mass picketing— disorderly conduct (People v. Friedman et al.)—
New York__________________________________________________
picketing— unlawful assembly (State v. Butterworth et al.)—
New Jersey_____ __________________________ _____ ___________
strike insurance— construction of contract (Bower & Kaufman v.
Bothwell et al.)— Maryland_________________________________
unlawful arrest (United States v. Adams)— Colorado___________
Trade agreement—
right of third party to sue (H. Blum & Co. v. Landau)— Ohio__
street railway (Des*Moines City Ry. Co. v. Amalgamated Ass’ n
of Street Ry. Employees, §tc., et al.)— Iowa_________________
Pensions:
Group insurance— coverage— deceased employee not discharged
(Thompson v. Pacific Mills et al.)— South Carolina_______________
Vested right (Cowles et al. v. Morris & Co. et al.)— Illinois_________
Safety laws:
Employees on buildings— constitutionality of law (Jones, Chief Safety
Inspector v. Russell)— Kentucky_________________________________
Requirement of fans— mines— constitutionality (Dairymple v. Sevcik)— Colorado__________________________________________________
Wages:
Hiring by month— discharge (Ross v. Fair et al.)— Mississippi______
Minimum wage—
intermittent service (Sparks v. Moritz)— Washington__________
wage fixing— illegal— municipality (Wilson et al. v. City of
Atlanta)— Georgia__________________________________________
Nonpayment of— emergency employee— construction of statute
(Chicago, R. I. & P. Ry. Co. v. Russell)— Arkansas______________
Prevailing rate of wages in locality— constitutionality of statute—
public works— (Campbell v. City of New York)— New York______
Profit-sharing—
(Friedle v. First National Bank of the City of N. Y. et al.)— New
Y ork_______________________________________________________
bonus (George A. Fuller Co. v. Brown)— North Carolina______
Vested rights (Burgess v. First National Bank et al.)— New Y ork.
Seamen— injury— care and cure (Pacific Steamship Co. v. Peter
son)— Washington______________________________________________
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CO NTENTS
Workmen’s compensation:
Accident—
burns—
doing of act without permission (Ziolkowski v. American
Radiator Co. et al.)— New York________________________
wound (Zurich General Accident & Liability Insurance Co. v.
Brunson et al.)— Oregon_______________________________
disease—
brain tumor (McCarthy v. General Electric Co.)— Penn
sylvania_______________________________________________
cancer (Winchester Milling Corporation v. Sencindiver)—
Virginia_______________________________________________
typhoid fever (John Rissman & Son v. Industrial Commis
sion et al.)— Illinois____________________________________
typhoid fever—proximate cause (Fidelity & Casualty Co. of
N. Y. v. Industrial Accident Commission of Calif, et al.)—
California______________________________________________
employees injured by fire— sleeping quarters (Guiliano v. Daniel
O’ Connell’s Sons)— Connecticut. ____________________________
exposure— pneumonia— city fireman (Costly v. City of Eveleth)—
Minnesota------ -------------------------------------------------------------------intoxication as cause— presumption (Shearer et al. v. Niagara
Falls Power Co.)— New York_______________________________
loss of sight (Superior Coal Co. v. Industrial Commission et al.)—
Illinois_____________________________________________________
occupational disease—
automobile sander (Maxwell Motor Corporation v. Winter)—
Ohio___________________________________________________
benzol poisoning (Seattle Can Co. v. Department of Labor
and Industries of Washington et al.)— Washington_______
caisson worker (Beaty et al. v. Foundation Co. et al.)—
Michigan______________________________________________
cement handling (Kosik v. Manchester Construction Co.
et al.)— Connecticut____________________________________
grinder—
inhaling foreign matter (Cishowski v. Clayton Manu
facturing Co. et al.)— Connecticut__________________
pneumoconiosis (Romaniec v. Collins Co. et al.)—
Connecticut_______________________________________
lead poisoning (Kostsier v. Cargill Co.)— Michigan________
leather poisoning (Dillingham’s Case)— Maine------------------mercury p o i s o n i n g — constitutionality— jurisdiction— (A.
Fishman Hat Co. (Inc.) v. Rosen et al.)— New Jersey____
phosphorus poisoning (Turner v. Virginia Fireworks Co.
et al.)— Virginia________________________________________
potters’ consumption (Ewers v. Buckeye Clay Pot Co.)—
Ohio________________ ______ ___________________________
sulphuric acid poisoning—
(Gilliam v. Mid-Continent Petroleum Corporation)—
Oklahoma_________________________________________
tuberculosis (Depre v. Pacific Coast Forge Co.)— Wash
ington_____________________________________________
XI
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xn
CO NTENTS
Workmen’s compensation— Continued.
Accident— Continued.
occupational disease— Continued.
wheat dust— tuberculosis (A. D. Thomson & Co. v Jepson
et al.)— Wisconsin______________________________________
wood alcohol poisoning (Pearson v. Armstrong Cork Co.)—
New Jersey____________________________________________
recurrence of injury (Industrial Commission of Colorado et al. v.
Weaver)— Colorado_______________________________________ _
violation of statute (Silvers Case)— Massachusetts____________
Additional award— total disability (Young v. Industrial Commission of
Colorado et al.)— Colorado______________________________________
Admiralty—
jurisdiction—
award (Balestrere v. Industrial Accident Commission et al.)—
California______________________________________________
exclusiveness of remedy (Baker Towboat Co. v. Langner)—
Alabama_______________________________________________
Federal Longshoremen’s and Harbor Workers’ Act—
(Perry v. United States Employees’ Compensation Com
mission et al.)— California_________________________
constitutionality (Joseph Chernik, petitioner v. Clyde
S. S. Co.)— New York_____________________________
fisherman (Tyler v. Industrial Commission)— Ohio_________
proximate cause (T. Smith & Son (Inc.) v. Taylor)— Loui
siana__________________________________________________
seaman (Alaska Packers’ Association v. Industrial Accident
Commission of California et al.)— California____________
stevedore (Resigno v. F. Jarka Co. (Inc.) et al.)— New Yorkwaiver (Fitzgerald v. Harbor Lighterage Co.)— New York__
Agreement to assign compensation— hotel employee (Dallas Hotel
Co. v. Buffington)— Texas_______________________________________
Alien beneficiaries— insurance— assignment (Bacchaieff v. Depart
ment of Labor and Industries of Washington)— Washington______
Award—
agreement— vested rights— loss of eye (Haugse v. Sommers Bros.
Mfg. Co. et al.)— Idaho------------------------------------- -------- ---------change of conditions— insurance (Savannah Lumber Co. v.
Burch)— Georgia____________ ______ _______ ________________
death following disability— employee (Commercial Casualty
Insurance Co. et al. v. Industrial Commission of Utah et al.)—
Utah________ _______ ________ ______________________________
disability— evidence (Cameron Coal Co. v. Industrial Commission
et al.)— Illinois_____________________________________________
election— settlement (Beekman v. W. A. Brodie (Inc.) et al.)—
New York__________________________________________________
employment status (Kutil v. Floyd Valley Mfg. Co. et al.)—
Iowa_______________________________________________________
lump sum—powers, etc., of commission (Utah-Idaho Central
R. Co. et al. v. Industrial Commission of Utah)— Utah______
penalty— noncompliance (State, for benefit of Bredwell et al. v.
Hershner et al.)— Ohio_____________ ________ ___ . . . _____ . . .
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CO NTENTS
Workmen's compensation— Continued.
Award— Continued.
permanent partial disability—
(George A. Fuller Co. v. Industrial Commission et al.);—
Illinois_________________________________________________
construction of statute (Ketchikan Lumber & Shingle Co. v.
Walker)— Alaska_______________________________________
release (Allen v. Kansas City Fiber Box Co.)— Kansas_____
permanent total disability— loss of sight (Moore v. Western Coal
& Mining Co.)— Kansas____________________________________
powers, etc., of commission (Silvey v. Panhandle Coal Co. No. 5)—
Indiana____________________________________________________
proximate cause— evidence (Unkovich et al. v. Interstate Iron
Co.)— Minnesota___________________________________________
review—
attorney’s fees (Lindstrom v. Amherst Mining Co. et al.)—
Minnesota_____________________________________________
change of condition (Gvozdic v. Inland Steel Co.)— Indiana.
construction of statute (Slatmeyer v. Industrial Commis
sion)— Ohio____________________________________________
disfigurement (Comar Oil Co. et al. v. Sibley et al.)— Okla
homa__________________________________________________
insurance (Maryland Casualty Co. v. Industrial Commis
sion et al.)— Wisconsin_________________________________
intentional and willful acts (Western Clay & Metal Co. et al.
v. Industrial Commission of Utah et al.)— Utah________
joint employment (Hartford Accident & Indemnity Co. v.
Industrial Accident Commission of California et al.)—
California______________________________________________
jurisdiction (Weighton et al. v. Austin Co. et al.)— New
Y ork_______________________________ _____ _____________
powers, etc., of commissions— jurisdiction (Northwestern
Casualty & Surety Co. v. Doud et al.)— Wisconsin______
temporary disability (Eureka Coal Co. et al. v. Melcho)—
Indiana____________________________________________________
vested right—
procedure (Greenwood et al. v. Luby et al.)— Connecticut. _
surviving beneficiaries (Bry-Block Mercantile Co. v. Car
son)— Tennessee_______________________________________
wages from profits (Griglioni v. Hope Coal Co.)— Kansas______
Basis of award—
“ average weekly wage” (Merrill v. State Military Department)—
Maryland__________ ._______________________________________
dependency— review (Pacific Indemnity Co. v. Industrial Acci
dent Commission et al.)— California_________________________
Casual employment— injury in the course of employment (York
Junction Transfer & Storage Co. et al. v. Industrial Accident Com
mission of California et al.)— California__________________________
Contractor—
casual employment (Thompson v. Wagner)— New Jersey_______
contract of employment— employee (Henry v. Mondillo)— Rhode
Island______ _______ ____ _____ _____________________________
damages (Montgomery v. Board of Commissioners of Erie
County)— Ohio..................... ............................................................
X III
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X IV
CO NTENTS
Workmen’s compensation— Continued.
Contractor— Continued.
death—
Page
(Clark v. Monarch Engineering Co.)— New Y ork_______
277
injury (Purkable et al. v. Greenland Oil Co.)— Kansas_____
279
employee—
(Medford Lumber Co. et al. v. Mahner et al.)— W isconsin..
280
(Rouse v. Town of Bird Island)— Minnesota______________
281
casual employment (Pacific Employers' Insurance Co. v.
Department of Industrial Relations et al.)— California..
283
construction of statute (American Radiator Co. et al. v.
Franzen et al.)— Colorado______________________________
284
death (Robson v. Martin et al.)— Pennsylvania____________
285
scope of employment (Fieber & Reilly v. Entwistle)—
Indiana________________________________________________
286
temporary total disability (Moody v. Industrial Accident
287
Commission et al.)— California_________________________
employment status (Flaharty v. Trout et al.)— Pennsylvania___
289
evidence— employer (New York Indemnity Co. v. Industrial
Accident Commission of California et al.)— California_______
290
lessor— injury— death (Wisinger v. White Oil Corporation)—
Texas______________________________________________________
292
loss of eye (Schonberg v. Zinsmaster Baking Co.)— Minnesota___
293
repairing sidewalk for city (Morgannelli’s Estate v. City of Derby
et al.)— Connecticut________________________________________
294
Convict labor—
(California Highway Commission, Department of Engineering v.
Industrial Accident Commission et al.)— California__________
295
employee not entitled to compensation (Lawson v. Travelers'
Insurance Co.)— Georgia____________________________________
296
Coverage—
agricultural workers— casual employment (Hoshiko v. Industrial
Commission of Colorado et al.)— Colorado__________________
297
baseball player— jurisdiction (Metropolitan Casualty Insurance
Co. of New York et al. v. Huhn, and Metropolitan Casualty
Insurance Co. of New York et al. v. Reiger)— Georgia_______
298
casual employment—
(Sink v. Pharaoh)— Minnesota____________________________
301
volunteer (Johnson v. City of Albia)— Iowa_______________
302
city fireman— third party— election (Behr v. Soth)— Minnesota.
303
election— legal liability— usual course of business (Paradis'
Case)— Maine---------------------------------------------------------------------304
employment status— “ building w ork" (Harrel v. Quiring)—
Kansas_____________________________________________________
305
extrahazardous employment—
(Edwards v. Department of Labor and Industries of Wash
ington)— Washington___________________________________
307
employee oiling street car tracks (Murphy et ux. v. Schwartz
et al.)— Washington____________________________________
308
farmer (Gabel v. Industrial Accident Commission)— California_
309
game warden— contract of employment (State Conservation
Department v. Nattkemper)— Indiana_________________ ____
310
CO NTENTS
Workmen’s compensation— Continued.
Coverage— Continued.
hazardous employment—
(Estes v. State Industrial Accident Commission)— O regon..
ferryboat captain (San Francisco & Sacramento Ry. Co.
et al. v. Industrial Accident Commission of California
et al.)— California______________________________________
public employment (Moore v. Industrial Accident Fund)—
Montana______________________________________________
seasonal occupation (Froehly v. T. M. Harton Co. et al.)— Penn
sylvania____________________ ______________________________
tractor driver— insurance— election (Heal et al. v. Adams et
a l.)— Wisconsin___________________________________________
Dependency—
(Ocean Accident & Guarantee Corporation v. Industrial Commis
sion of Arizona)— Arizona___________________________________
condition at time of death (London Guarantee & Accident Co. v.
Industrial Accident Commission of California)— California__
contributions to family support (Bartkey v. Sanitary Farm
Dairies et al.)— Minnesota__________________________________
widow— anticipation of dependency (Hamer-Paskins Co. v.
Industrial Commission et al.)— Illinois______________________
wife separated from husband (Thurman v. Union Indemnity
Co.)— Massachusetts_______________________________________
Dependent— claims— death following disability (Thorpe v. Depart
ment of Labor and Industries of Washington)— Washington______
Employee—
casual employment—
independent contractor (Chamberlain v< Central Vermont
Ry. Co.)— Vermont____________________________________
usual course of business (Oilmen’s Reciprocal Association v.
Gilleland)— Texas______________________________________
implied contract of hire (School District No. 4, Town of Sigel v.
Industrial Commission et al.)— Wisconsin___________________
independent contractor— award (Dutcher v. Victoria Paper
Mills et al.)— New Y ork-----------------------------------------------------when relationship begins and ends (Brewer v. Department of
Labor and Industries)— Washington________________________
Employers’ liability—
contractor— employee (Southern Pacific Co. v. Industrial Com
mission of Utah et al.)— Utah______________________________
duty of employer to instruct (Bilodeau v. Gale Bros. (Inc.))—
New Hampshire____________________________________________
independent contractor (Reynolds v. Addison Miller Co. et al.)—
W ashington.------------ ---------------------------------------------------------injury arising out of employment (Moore v. J. A. McNulty Co.
et al.)— Minnesota_________________________________________
interstate commerce— dependency (Mobile & Ohio R. Co. v.
Industrial Commission of Illinois et al.)— Illinois____________
Extraterritoriality—
alien labor (Saunders’ Case)— Maine__________________________
evidence (Bradtmiller v. Liquid Carbonic Co. et al.)— Minnesota.
jurisdiction— contract for service outside State (Watts v. Long)—
Nebraska____________________ _____________________________
XV
Page
311
312
313
314
315
316
317
318
319
320
321
322
323
325
326
327
328
330
331
332
334
336
337
338
XVI
CONTENTS
Workmen’s compensation— Continued.
Injury—
aggravation— disease— death (Smith v. Mason Bros. Co. et al.)—
Minnesota_________________________________________________
incidental employment— evidence (Zurich Accident & Liability
Insurance Co. v. Industrial Commission of Wisconsin et al.)—
Wisconsin__________________________________________________
insanity— suicide— proximate result (Delinousha et al. v. Na
tional Biscuit Co.)— New York_____________________________
negligence— right to recover in addition to compensation (Arnold
v. Ohio Gas & Electric Co.)— Ohio__________________________
notice— loss of use of member— review (Beech v. Keicher et al.)—
Tennessee__________________________________________________
release— beneficiary (Texas E m p loyed Insurance Association v.
Morgan et al.)— Texas--------------------------------------------------------Injury arising out of employment—
act of God— earthquake (Enterprise Dairy Co. et al. v. Industrial
Accident Commission of California et al.)— California________
causal connection— going to and from work (Bountiful Brick Co.
et al. v. Giles et al.)— Utah__________________________________
hospital employee (Yitas v. Grace Hospital Society)— Connecti
cut-------------------------------------------------------------------------------------minor— dependents (Kovacs v. Manning, Maxwell & Moore
et al.)— Connecticut------- ----------------------------------------------------presumption (Karlson v. Rosenfeld)— I^ew Jersey______________
suicide— causal connection (Wilder v. Russell Library Co.)—
Connecticut________________________________________________
vibrations in ear of telephone operator (Brown v. North Dakota
Workmen’s Compensation Bureau)— North Dakota_________
Injury arising out of and in the course of employment—
(Pacific Fruit Express Co. v. Industrial Commission of Arizona
et al.)— Arizona____________________________________________
accidental discharge of officer’s revolver (Employers1 Liability
Assurance Corporation v. Henderson)— Georgia___- __________
act of God—
earthquake (London Guarantee & Accident Co. v. Industrial
Accident Commission)— California______________________
employee killed by lightning (Netherton v. Lightning Deliv
ery Co. et al.)— Arizona________________________________
farm hand killed by lightning (Aetna Life Insurance Co. v.
Industrial Commission)— Colorado_____________________
tornado (Slanina v. Industrial Commission of Ohio)— Ohio »
asphyxiation— departure— evidence (Union Indemnity Co. v.
Malley et al.)— Texas_______________________________________
assault (Field v. Charmette Knitted Fabric Co.)— New Y ork___
causal connection—
(Sellers v. Reice Construction Co.)— Kansas______________
(Stocker v. Southfield Co. et al.)— Michigan______________
intoxication— evidence (Mausert v. Albany Builders’ Supply
Co. et al.)— New York_________________________________
loss of eye (Ryan v. State Industrial Commission et al.)—
Oklahoma______________________________________________
railroad ticket agent— evidence (Phillips v. Kansas City, L.
& W. Ry. Co.)— Kansas........................................................
Page
340
340
342
343
344
345
347
348
349
351
352
353
355
355
357
357
358
359
359
360
362
362
363
365
366
367
CO NTENTS
X V II
Workmen’s compensation— Continued.
Injury arising out of and in the course of employment— Continued.
Page
department store employee— personal errand (Industrial Com
mission of Ohio v. Ahern)— Ohio____________________________
369
disobedience of orders—
(Industrial Commission of Colorado et al. v. Cornelius)—
Colorado______________________________________________
370
(Shoffler v. Lehigh Valley Coal Co.)— Pennsylvania_______
370
(State ex rel Storm v. Hought et al.)— North Dakota______
372
(Swardleck’s Case)— Massachusetts_______________________
373
negligence (Corrina v. De Barbieri et al.)— New York_____
374
employee burned to death (Giliotti v. Hoffman Catering Co.)—
375
New Y o r k ...______________________________________________
employee shot by passenger (Maher v. Duluth Yellow Cab Co. et
al.)— Minnesota______ •_____________________________________
376
employee shot during altercation (Sloss-Sheffield Steel & Iron
377
Co. v. Harris)— Alabama___________________________________
evidence—
powers, etc., of commission (American Mutual Liability
Insurance Co. et al. v. Hardy)— Georgia________________
378
res gestae (Selz-Schwab & Co. v. Industrial Commission et
al.)— Illinois___________________________________________
379
fall of employee in hurrying (Mannix’s Case)— M a s s a c h u s e t t s 380
freezing—proximate cause (Gibbons v. United Electric Railways
Co.)— Rhode Island_____________________________ ___________
381
going to and from work—
(Denver & Rio Grande Western Railroad Co. v. Industrial
Commission et al.)— Utah______________________________
381
(Ferreri’s Case)— Maine__________________________________
383
(Jett et al. v. Turner)— Alabama__________________________
384
(Savannah River Lumber Co. v. Bush)— Georgia__________
385
(Simonson v. Knight et al.)— Minnesota___________________
386
(St. Louis & O ’ Fallon Coal Co. v. Industrial Commission et
al.)— Illinois___________________________________________
387
causal connection—
(Langenheim v. Industrial Commission of Ohio)— Ohio.
388
notice (Industrial Commission of Colorado et al. v.
Nissen’s Estate)— Colorado________________________
389
employment contract (Wabnec v. Clemons Logging Co.)—
Washington____________________________________________
390
“ plant” (Wade v. Harris et al.)— Washington____________
391
riding bicycle on public highway (Northwestern Fuel Co. v.
Swanson et al.)— Wisconsin____________________________
392
special errand (State Compensation Insurance Fund v. In
dustrial Accident Commission of California et al.)— Cali
fornia____ _____________________________________________
393
golf club attendant (Colarullo’s Case)— Massachusetts________
394
heart disease— policeman— evidence (Reardon v. City of Austin
395
et al.)— Minnesota_________________________________________
heart failure—
(Guay v. Brown Co.)— New Hampshire___________________
396
preexisting condition (Knock et al. v. Industrial Accident
Commission of California et al.)— California____________
397
103151°—30------2
X V III
CONTENTS
Workmen’s compensation— Continued.
Injury arising out of and in the course of employment— Continued.
heat prostration (King v. Buckeye Cotton Oil Co.)— Tennessee—
helper (Rachels v. Pepoon)— New Jersey---------------------------------hernia—
(O’Brien v. Wise & Upson Co. (Inc.) et al.)— Connecticut__
death following operation— proximate cause (Valeri v. Vil
lage of Hibbing)— Minnesota___________________________
evidence—powers, etc., of commissions (Livingston v. Indus
trial Commission of Utah et al.)— Utah-------------------------limitations (Industrial Commission of Colorado et al. v.
W. A. Hover & Co. et al.)— Colorado___________________
waiver (Otto v. Chapin et al.)— M ich igan -._______________
hospital nurse (Favorite v. Kalamazoo State Hospital et al.)—
Michigan__________________________________________________
hotel employee (Farwell’s Case)— Maine---------------------------------inference (Steffes v. Ford Motor Co.)— Michigan_______________
intentional and willful acts (Consolidation Coal Co. v. Ratliff
et ux.)— Kentucky_________________________________________
janitor (Orcutt v. Trustees of Wesley Methodist Episcopal
Church)— Minnesota_______________________________________
overexertion—
(Georgia Casualty Co. v. Mixner et al.)— Texas___________
(Skroki v. Crucible Steel Co. of America)— Pennsylvania. _
parties— construction of statute (Department of Game and In
land Fisheries et al. v. Joyce et al.)— Virginia________________
poisoning—
(Krause v. Swart wood et al.)— Minnesota_________________
evidence (Manley et al. v. Harvey Lumber Co. et al.)—
Minnesota_____________________________________________
preexisting condition—
(Standard Coal Co. v. Industrial Commission of Utah
et al.)— Utah_____________________ ____________________
arthritis (Warlop v. Western Coal & Mining Co.)— Kansas__
causal connection (Singlaub v. Industrial Accident Commis
sion of California et al.)— California____________________
public officer (Los Angeles County et al. v. Industrial Accident
Commission of California et al.)— California_________________
salesman demonstrating automobile (Engsell v. Northern Motor
Co. et al.)— Minnesota_____________________________________
shooting—
(Coco v. Wilbur)— New Jersey____________________________
(Maryland Casualty Co. v. Peek)— Georgia_______________
transportation of employee— death following disability (Little
field’s Case)— Maine________________________________________
watchman—
(Ryerson v. A. E. Bounty Co. et al.)— Connecticut______
(Taylor’s Case)— Maine__________________________________
wife competent to testify (McDonnell v. Swift & Co.)— Kansas.
willful acts (Mallory S. S. Co. v. Higgins)— Alabama___________
Page
398
399
400
402
403
405
406
407
409
410
411
412
413
414
415
417
418
419
420
422
424
426
427
428
429
430
431
432
433
CONTENTS
Workmen's compensation— Continued.
Injury in course of employment—
causal connection— disease (Cockrell v. Industrial Commission
et al.)— Illinois_____________________________________________
company policeman (Stearns Coal & Lumber Co. v. Ball et al.)—
Kentucky__________________________________________________
horseplay (Badger Furniture Co. et al. v. Champeau et al.)—
Wisconsin__________________________________________________
smallpox— inference (Vilter Mfg. Co. et al. v. Jahncke et al.)—
Wisconsin__________________________________________________
Lump sum award— powers, etc., of commissions (Kaylor v. Callahan
Zinc-Lead Co.)— Idaho_________________________________________
Medical and surgical aid—
amputation of leg (Lanham v. Himyar Coal Corporation)—
Kentucky__________________________________________________
autopsy— causal connection (Taylor’s Case)— Maine___________
burns from smoking— causal connection (Fischer v. R. Hoe &
Co. (Inc.) et al.)— New York____________ __________________
causal connection— dependency (Atamian’s Case)— M assachu
setts_______________________________________________________
contract with doctor— notice (Henry v. American Enamel Co.)—
Rhode Island______________________________________________
permanent total disability (Eberle v. Miller)— Minnesota______
preexisting condition (Pfeiffer v. North Dakota Workmen’s
Compensation Bureau)— North Dakota_____________________
refusing medical, etc., treatment (Consolidated Coal Co. v.
Crislip et al.)— Kentucky___________________________________
Minor illegally employed—
(Humphries v. Boxley Bros. Co.)— Virginia____________________
action for damages (Burk v. Montana Power Co.)— Montana__
Workmen’s compensation insurance—
Classification of rates (State ex rel. Reaugh Construction Co. v.
Industrial Commission of Ohio)— Ohio___________________________
Damages (Cleveland Commercial Auto Body Co. v. Frank)— O h io..
Election— damages (Diamond v. Cleary)— Indiana_________________
State fund— employers’ solvency (State ex rel. Williams v. Industrial
Commission and State ex rel. Rudd v. Industrial Commission)—
Ohio________________________ ________ __________________________
Cumulative index and list of cases______________________________________
X IX
Page
434
435
437
438
439
440
440
442
442
444
445
447
449
450
451
453
454
455
457
459
BULLETIN O F TH E
U. S. BUREAU OF LABOR STATISTICS
N o.
517
W A SH IN G T O N
JUNE,
1930
DECISIONS OF THE COURTS AND OPINIONS AFFECTING LABOR
1927, 1928
Introduction
T h is b u l l e t i n is the fourteenth in a series of publications by the
Bureau of Labor Statistics presenting decisions of courts and opin
ions on questions affecting labor. Prior to the year 1912 articles
on decisions were published regularly in the bimonthly bulletins of
the Bureau of Labor Statistics and its predecessors as a part of that
publication. Beginning with the year 1912, annual bulletins have been
published with the exception of the volumes for the years 1919, 1920,
1923, 1924, and the present bulletin, which covers a 2-year period,
The separate bulletins published since 1912 are numbered 112, 152,
169,189, 224, 246, 258, 290, 309, 344, 391, 417, and 444.
The policy adopted in the publication of this bulletin and the pre
ceding ones has been to select and produce decisions of courts having
a special interest and importance to labor in general and to those
students interested in the relations of employer and employee. No
attempt, however, has been made to present a complete list of cases
of the classes used, but rather to present illustrative ones embodying
the principles under consideration.
The cases have been selected principally from the State courts of
last resort and the Federal courts (including the United States Su
preme Court). However, in some instances cases have been selected
from courts with appellate jurisdiction, as in New York, Indiana,
and Texas.
The National Keporter System, published by the West Publishing
Co., of St. Paul, Minn., has been the chief source for the material
used, although the Washington Law Eeporter and the advance sheets
of the opinions of the Attorney General for the Department of Jus
tice have also beeia reviewed and examined*
1
2
DECISIONS OF T H E COURTS AND OPINIO NS
As in the preceding bulletins, cases on the subject of workmen’s
compensation comprise the large part of the decisions, while cases on
employers5 liability may be ranked next in number, with cases on
labor organizations, contracts of employment, hours of service, and
wages completing the subject matter.
The facts in each case have been set forth briefly by the editor and
abridged for the most part, and important opinions and conclusions
by the court are quoted, though occasionally the findings of the court
are stated in a briefer form by the editor without quotations.
The decisions used appeared in the publications named below dur
ing the two years, 1927 and 1928.
Opinions of the Attorney General, volume 45, pages, 168-506.
Federal Reporter, volume 15 (2d), page 609, to volume 28 (2d), page 1023.
Supreme Court Reporter, volume 47, page 218, to volume 49, page 83.
Atlantic Reporter, volume 135, page 241, to volume 143, page 672.
New York Supplement, volume 218, page 401, to volume 231, page 488.
Northeastern Reporter, volume 154, page 193, to volume 163, page 768.
Northwestern Reporter, volume 211, page 1, to volume 222, page 144.
Pacific Reporter, volume 250, page 993, to volume 271, page 1119.
Southeastern Reporter, volume 135, page 769, to volume 145, page 608.
Southern Reporter, volume 110, page 369, to volume 118, page 768.
Southwestern Reporter, volume 288, page 1, to volume 10 (2d), page 872.
Washington Law Reporter, volumes 55 and 56.
Opinions o f the A ttorn ey General
W a g e s —“ W a t c h e s ” —L i c e n s e —S u s p e n s i o n .—Opinions of Attor
ney General, 'bolvme 35, page 197 (March 17,1927).—The Secretary
of Commerce requested an opinion as to whether section 4450 of the
Revised Statutes of the United States authorized local boards of
inspectors to revoke or suspend the license of a master of a vessel
for failure to comply with the provisions of the seamen’s act relating
to the division of watches while at sea. The section referred to
provides that local boards of inspectors shall investigate all acts
of incompetency or misconduct committed by any licensed officer
while acting under the authority of his license, and power is given
to the local boards to suspend or revoke any license if the board is
satisfied that such officer is incompetent or is guilty of misbehavior
or is negligent.
Section 2 of the seamen’s act (38 Stat. 1164, c. 153) provides in
part:
That in all merchant vessels of the United States of more than 100
tons gross, excepting those navigating rivers, harbors, bays, or sounds
exclusively, the sailors shall, while at sea, be divided into at least
two, and the firemen, oilers, and water tenders into at least three
watches, which shall be kept on duty successively for the performance
of ordinary work incident to the sailing and management of the
vessel.
The Attorney General in his opinion cited a Supreme Court case
(O’Hara v. Luckenback Steamship Co., 269 U. S. 364) in which it
was ruled that the primary purpose of section 2 of the seamen’s act
was to insure the safety of the vessel and those on board. (For
opinion of court see B. L. S. Bui. No. 444, p. 120.) The failure of the
master to comply with the provisions of section 2 may be regarded,
the Attorney General pointed out, as an act of omission on the part
of the master and may amount to “ misbehavior or negligence or be
said to have endangered life.”
I am, therefore, of the opinion that local boards of inspectors,
under section 4450 of the Revised Statutes, have authority to revoke
or suspend the license of the master of a vessel for failure to comply
with section 2 of the seamen’s act relating to the division of watches
while at sea.
3
4
O PIN IO N S OF T H E A TTO RN EY GENERAL
The Attorney General, in an opinion dated August 9, 1927, held
that an act (sec. 4583, R. S.) relating to the payment of an extra
month’s wages to seamen discharged in a foreign country because
“ the voyage is continued contrary to agreement55is not to be applied
by consuls in cases of complaint by seamen for violation of section 2
of the seamen’s act.
[Quoted matter in the decisions of cases reported in this bulletin have been punctuated
in accordance with the rules for punctuation laid down by the Government Printing
Office for Government publications and does not follow, in all cases, the reported
decisions.]
D ecisions o f the Courts
Aliens—Seamen—Admiralty—Plamals v. The “ Pinar Del Rio
Supreme Court of the United States (May lip, 1928), 48 Supreme
Court Reporter, page 457.—H. Plamals, a subject of Spain, was a
member of the crew of the British ship Pinar Del Rio. The ship was
anchored at Philadelphia, Pa., on April 27, 1923, and while Plamals
was being hoisted up to paint the smokestack a rope broke and he
fell, sustaining serious injuries.
Six months after the accident Plamals brought an action against
the ship in the District Court of the Southern District of New York,
alleging that his injuries were due to the fault or neglect of the
steamship or those in charge of her in selecting a defective rope and
also in ordering him to perform services not within the scope of his
duties. Plamals claimed his right to an action under the Jones Act
(41 Stat. 1007), which is as follows:
Sec. 20. That any seaman who shall suffer personal injury in the
course of his employment may, at his election, maintain an action
for damages at law, with the right of trial by jury, and in such action
all statutes of the United States modifying or extending the commonlaw right or remedy in cases of personal injury to railway employees
shall apply; and in case of the death of any seaman as a result of
any such personal injury the personal representative of such seaman
may maintain an action for damages at law with the right of trial
by jury, and in such action all statutes of the United States confer
ring or regulating the right of action for death in the case of railway
employees shall be applicable. Jurisdiction in such actions shall be
under the court of the district in which the defendant employer
resides or in which his principal office is located.
The district court held that the rights of the parties were governed
by the law of the ship’s flag and that the British workmen’s compen
sation act afforded the only remedy. This court accordingly dis
missed the petition of Plamals. He thereupon appealed to the circuit
court of appeals, which court affirmed the decision of the lower court,
holding that the Jones Act should not be construed as to subject ves
sels to secret liens securing undisclosed and unlimited claims by
seamen for personal injuries.
5
6
DECISIONS OF T H E COURTS
The case was carried by Plamals to the United States Supreme
Court, and on May 14, 1928, the decisions of the lower courts were
affirmed. In the opinion written by Mr. Justice McReynolds he said
in part as follows:
We agree with the view of the circuit court of appeals and find it
unnecessary now to consider whether the provisions of section 33 are
applicable where a foreign seaman employed on a foreign ship suffers
injuries while in American waters.
The record does not support the suggestion that the Pinar Del Rio
was unseaworthy. The mate selected a bad rope when good ones
were available.
We must treat the proceeding as one to enforce the liability pre
scribed by section 33. It was so treated by petitioner’s proctor at
the original trial, and the application for certiorari here spoke of it
as based upon that section. The evidence would not support a
recovery upon any other ground.
Section 33 brings into our maritime law the provisions of certain
statutes which define the liability of masters to employees originally
intended to be enforced in actions at law. They imposed personal
liability and gave no lien of any kind. The statute which extended
them to seamen expressly provided that the employer might be sued
only in the district where he resides or has his principal office. This
provision repels the suggestion that the intention was to subject the
ship to in rem proceedings. Generally, at least, proceedings of that
nature may be brought wherever the ship happens to be.
The ordinary maritime privilege or lien, though adhering to the
vessel, is a secret one, which may operate to the prejudice of general
creditors and purchasers without notice, and is therefore sfricti
juris. It can not be extended by construction, analogy, or inference.
To subject vessels during all the time allowed by the statute of
limitations to secret liens to secure undisclosed and unlimited claims
for personal injuries by every seaman who may have suffered injury
thereon would be a very serious burden. One desiring to purchase,
for example, could only guess vaguely concerning the value. “An
act to provide for the promotion and maintenance of the American
merchant marine ” ought not to be so construed in the absence of
compelling language.
C o n t r a c t or E m p l o y m e n t —A d v a n c e m e n t s — S e a m e n —W ages —
Jackson et al. v. The “ Archimedes ” (Lamport & Holt Line {Ltd.),
claimant), Supreme Court of the United States {January 3, 1928) yIfi
Supreme Court Reporter, page 164-—John J. Jackson, a British sea
man, and others, shipped from Manchester, England, in May, 1922,
aboard the Archimedes, a British vessel, to New York and return.
When they signed the shipping articles they received advances on
account of wages, which was customary and sanctioned by the
British law. The vessel arrived in New York on June 1, and on
June 3 the men applied for and received from the master further
7
CONTRACT OF E M P L O Y M E N T
payments on account of wages which, in addition to the advances
made in England, exceeded one-half of the wages then earned and
unpaid. They made a formal demand upon the master on June 8
for one-half of the wages then earned and unpaid, disregarding the
advances made in England. The master refused; the men left the
ship and brought suit^ claiming that they were entitled to the full
wages earned at the time of the demand without deducting the ad
vances made in England, since these were invalidated by section 10
of the Dingley Act, as amended (making it unlawful to pay a seaman
his wages in advance), and should be disregarded in computing the
amount of the wages due.
The district court dismissed the case on the ground that the
Dingley Act does not prohibit advances to seamen on foreign vessels
in foreign ports, and such advances can not be treated as invalid and
disregarded when wages are demanded in this country. The case
was taken to the court of appeals and judgment was affirmed.
The case was carried to the United States Supreme Court, and this
court affirmed the decision of the State court. The court based its
decision on a former case decided in Sandberg v. McDonald (248
U. S. 185, 195), in which it was held that section 11 of the seamen’s
act did not render invalid the contracts of foreign seamen as to the
advance payment of wages made by a foreign vessel in a foreign
country in which the law sanctioned such contract and payment, and
that when the seaman demanded in this country payment of half
wages the master was entitled to deduct the advances made in the
foreign country.
In the case of Neilson v. Rhine Shipping Co. (248 U. S. 205), the
United States Supreme Court likewise held that the seamen’s act of
1915 did not make invalid advances that had been made to seamen
by the master of an American vessel in a foreign port.
The court concluded that section 10 of the Dingley Act as amended
expressed no intention to extend the provisions of the statute to ad
vance payments made by foreign vessels while in foreign ports.
Nor can such an intention be “ gathered from implication ” or from
anything in the legislative history of the amendment, in which no
reference was made to foreign vessels.
C ontract
of
E
m ploym ent—
A
s s ig n m e n t
of
W
ages—
R
elease—
Bryant v. AsTcin <& Marine Co., Supreme Court of South Carolina
{August 27, 1928), 1JU. Southeastern Reporter, page 231.—Edith
Bryant, on November 21, 1925, went to the store of Askin & Marine
Co. in Columbia, S. C., and purchased a coat for the sum of $16.98.
According to the terms of the sale she paid $1 cash and entered into
8
DECISIONS OP T H E COURTS
a written agreement to pay the balance of $15.98 in weekly install
ments of $1. At the same time she executed an assignment of her
wages due and which might become due to her as an employee of the
Pacific Mills, as security. She made subsequent payments aggregat
ing $6 and then defaulted nine installments. She owed a balance of
$9.48. (Why the amount should not be $9.98 is not shown.) Askin
& Marine Co. then filed with the Pacific Mills the assignment of the
wages. The Pacific Mills recognized the assignment, and held out
of the employee’s wages at three different pay periods, a total sum of
$12.20, an excess of $2.72 over the balance.
The father of the girl, acting as agent for her, went to the store
and requested a release of her wages in excess of the amount due to
Askin & Marine Co. The request was refused. An action was
then brought in the Common Pleas Circuit Court of Richland
County, S. C., by the father of the girl, as her guardian, against
Askin & Marine Co., based upon the theory that the company had
collected more of the girl’s wages than it was entitled to collect.
A judgment was given to the girl, and the Askin & Marine Co.
carried the case to the Supreme Court of South Carolina. The con
tention of the company was that they can not be charged with the
collection. The question involved was the relation which the mills
bore to the company. Was the Pacific Mills acting as the agent of
the company?
The supreme court, in an opinion written by Judge Cothran, on
August 27, 1928, held that the judgment of the lower court should
be reversed and a judgment in favor of the company be given. The
court said in part:
The right to assign wages to be earned in the future, under a
present contract of employment, has been generally recognized.
After notice of the assignment, the defendant was entitled to receive
the accruing wages of the plaintiff, to be applied, when received
from the mills, upon the obligation which the assignment was given
to secure.
The result, whether it be considered as a collection or a with
holding by the Pacific Mills, is that the mills became a debtor of the
defendant to the extent of the wages withheld.
The defendant may have been negligent in not notifying the mills
of the amount of the account against the plaintiff, so that the mills
would not withhold anything m excess of that amount, or in not
calling upon the mills for the money as it was being withheld, and
the mills may have been negligent in not reporting to the defendant
the collections as made; yet all this would not support the allegation
that the defendant had willfully collected from the plaintiff an
amount in excess of the account due, for it collected nothing.
The defendant unquestionably had a cause of action against the
mills for the amount withheld; the plaintiff had a cause of action
against the mills for the excess of its collections over the debt; and
9
CONTRACT OF E M P L O Y M E N T
that is all that the situation develops, except doubtless the right of
the plaintiff to force the mills to pay to the defendant what had been
held, pay her the balance, and have the assignment returned to her,
a cause of action not set up in the complaint. We see no grounds
upon which the plaintiff’s action can be sustained, even for the $2.72
excess, against the defendant. The defendant’s motion for a directed
verdict should have been sustained.
The Supreme Court o f Michigan reversed a judgment of the circuit court of
the State in a case where a clerk in a shoe store under a contract of employ
ment was held entitled to a percentage of sales in the shop but not on the gross
sales of the entire business. (Olesky v. Dishneau-Peterson Shoe Co. (1928),
217 N. W. 750.)
C ontract
op
E
m ploym ent—
A
u t h o r it y
to
H
ir e —
A
d d it io n a l
S e r v ic e —Johnson
v. Chicago <& N. W. Ry. Go., Supreme Court of
Minnesota (July 13, 1928), 220 Northwestern Reporter, page 602.—
P. S . Johnson was employed as a stenographer in the office of the
district master car builder of the Madison, Minnesota, and Dakota
divisions of the Chicago & North Western Railway Co. in Minne
sota. On July 1, 1922, a strike of the 500 or 600 men employed was
called. Johnson’s salary as a stenographer was $95.66 per month.
The district master car builder, Henry Marsh, had also a chief
clerk employed, and at the time of the strike sent him elsewhere
and designated Johnson as acting chief clerk, in which capacity he
served during the continuance of the strike. Johnson claimed that
he was promised the salary of the chief clerk and also an extra
amount of $10 per day. The larger salary promised Johnson was
placed on the pay roll of the Winona office, headquarters of the divi
sion, but the head office of the railroad at Chicago failed to send pay
checks to Johnson in the amounts specified on the pay roll, nor did his
pay checks include any for the extra service rendered. Johnson
brought an action in the district court, Winona County, Minn.,
claiming the amount of money due for the extra services rendered.
The district court returned a judgment in favor of Johnson. The
railroad company appealed the decision to the Supreme Court of
Minnesota for the reason that no authority was shown in the master
car builder, Marsh, to employ Johnson as acting chief clerk or to
fix his compensation or to employ him to do extra work and to prom
ise additional pay for it. The supreme court of the State affirmed
the lower court. The court said in part as follows:
Marsh had some over 500 men under him. He had authority to
employ men in his department and assign them to their work. His
power to employ a stenographer and chief clerk was admitted.
But he testified he acted subject to the approval of the superin
tendent of the car department of defendant at Chicago. However,
10
DECISIONS OF T H E COURTS
he did not, previous to employing any men, communicate with the
superintendent for permission or direction. It is obvious that the
jury had ground for finding authority both from his testimony and
from the position he held. In the nature of things, with more than
500 men under him, with his superior more than 300 miles away, he
would have to possess authority to hire and discharge help. Add
to that the emergency created by a strike disrupting the business
o f a corporation engaged in public service. There was abundant
room for finding that defendant had invested Marsh with, at least,
apparent authority to assign plaintiff to do the work he did do and
to arrange to pay a not unreasonable compensation during the
emergency.
Contract of E mployment—Breach— Changed Conditions as
A ffecting— Armstrong v. Cherry et al., District Court of Appeals,
First District, Division 1, California {February 25,1928), 26^ Pacific
Reporter, page 798.— Charles Armstrong entered into a written con
tract on August 1, 1925, with Max Cherry, doing business as the
Cherry Motor Express Co., under the terms of which Cherry was
to employ Armstrong as an expressman for a period of one year at
a wage of $30 per week. Armstrong continued under the terms
of the agreement for 16 weeks from August 1, 1925, to the 1st day
of December of the same year and received $480 for such services.
Armstrong claimed that Cherry disposed of his business on De
cember 1, 1925, for the purpose of evading and defrauding him of
the money due him for the remaining 36 weeks, amounting to $1,080.
Armstrong then brought an action in the superior court of Alameda
County, Calif., against Max Cherry for money due him under the
cdntract of employment, claiming that because of the transfer his
contract was breached.
Cherry denied the contention of Armstrong, and adduced facts
at the trial to show that he had become ill and turned the business
over to his sons.
Armstrong continued in the employment after he had knowledge
of the change of ownership and his wages were increased by the
sons in the hope that Armstrong would perform his work in a
more satisfactory manner. However, he continued to disobey orders,
and the contract relation was finally terminated.
Cherry defended the action on the ground that Armstrong after
knowledge of the change in the business voluntarily continued his
employment with the sons at an increased wage, and that not having
performed his duties satisfactorily the sons were entitled to discharge
him and thus terminate the employment.
11
CONTRACT OP E M P L O Y M E N T
The superior court found that Armstrong had voluntarily con
tinued in the service of the sons under a new contract of employ
ment, and at the time of his discharge there was due him the sum
of $21.20, and judgment was accordingly rendered for this amount.
Upon appeal by Armstrong to the District Court of Appeals, First
District, Division 1, of California, the judgment was affirmed. The
court in affirming the judgment of the superior court said that:
It is a rule universally recognized, that while a master may not
close out his business without becoming liable in damages to an em
ployee under a contract of employment for a specific term, still, an
immaterial change gives no cause of action for damages where there
is otherwise no change in the manner of conducting the business
and the employer continues in a way to be the real owner. However
this may be, and it is no part of this opinion, there is no evidence
in the record to show, as alleged by plaintiff, that the business was
transferred or disposed of with the intent to evade, deceive, or de
fraud him. On the contrary, it shows that the sons had done every
thing to induce plaintiff to continue in his employment, and that
they gave him an increased wage in the hope that he would properly
perform his duties. A reading of the entire evidence also shows that
plaintiff was familiar with the inability of Max Cherry to further
continue the management of the business on account of sickness,
and his sons were substituted in his place, and that he willingly
continued in his employment under the new arrangement and ac
cepted the sons as his employers in the place of the father. This
being so, the evidence fully supports the finding of the trial court.
C ontract
of
E
m ploym ent—
B
reach—
D
am ages
for
B
reach—
Hazen v. Cobb et al., Supreme Court of Florida (July 10, 1928) 117
Southern Reporter, page 858.—H. D. Hazen brought an action in the
circuit court, Orange County, Fla., against C. C. Cobb and another,
doing business as the Cobb-Vaughan Motor Co., to recover damages
for breach of a special contract of employment. Hazen was em
ployed as a motor truck and tractor salesman for the period of one
year at a stated monthly salary and in addition a certain commis
sion on sales made. Hazen alleged that he entered the employ of
the company according to the contract and kept and performed his
contract in every particular, and that about four months after the
contract was made the company, without any provocation on his
part, broke and breached the contract by discharging him from em
ployment. That as a result of such discharge he was forced to seek
employment elsewhere, suffering great damage and humiliation.
A judgment was given in favor of the motor company. Hazen
carried the case to the Supreme Court of Florida, where the judg
ment of the lower court was reversed.
12
DECISION'S OF T H E COURTS
The court in reversing the judgment said in part:
The only ground stated in this contract which gave the employers
the right to terminate it was that they should “ deem ” the employee
“ incapable of serving them in a profitable manner.” This did not
mean that they might at any time arbitrarily discharge him without
reason. The intent of the language used manifestly is that, if the
employers should at any time conclude, upon any reasonable ground
whatsoever, that the employee “ was incapable of serving them in a
profitable manner,” they should have the right to terminate the con
tract, on “ paying up commissions to date ” ; but the reason or rea
sons for their conclusion must have had some relation to the ques
tion of the employee’s capacity to serve them in a profitable manner,
and they must have acted in good faith. I f this much appeared, the
court, or jury, would not attempt to substitute its judgment for that
of the employer, as to the sufficiency of the reasons or grounds upon
which they acted, even though erroneous; but if the action of the em
ployers was devoid of any reasonable basis whatever, it would not
only be insufficient to sustain the breach but would tend to show bad
faith.
The essential facts constituting a breach of contract should be set
forth in unequivocal terms, and with such sufficient certainty as will
apprise the defendant in what particular he has failed to perform.
Yet the same certainty is not required in assigning the breach of a
contract as in setting forth its terms; all that is required is that the
breach be substantially and with reasonable certainty set forth.
The breach of contract assigned in the special count was that “ the
defendants, without any provocation on the part of the plaintiff,
did breach and break the said contract by discharging the plaintiff
from their employment.” As the contract expressly authorized de
fendants to discharge the plaintiff under certain circumstances, this
assignment of breach was not sufficient. It was not coextensive with
the import and effect of the contract. Non constat but that the dis
charge complained of may have been upon the ground permitted by
the contract. So the special count was subject to demurrer on this
score, and the trial court will not be put in error for sustaining the
demurrer merely because this ground was omitted. This defect was
met by the amended fourth count, which alleged that the defendants,
in disregard of their contract, and without any provocation on the
part of the plaintiff, and without deeming the plaintiff incapable of
serving them in a profitable manner, and without paying up his com
missions due him under said contract, did on a date named discharge
the plaintiff from their employment and sought to cancel and ter
minate their contract with plaintiff, “ to the great damage and
humiliation of plaintiff,” etc.
It is a well-settled rule that when an express simple contract is
open and unexecuted and plaintiff proceeds for a breach of it he
must declare specially. General assumpsit will not lie. The law will
not imply a contract where a valid express one exists. This rule is
supported by the great weight of authority.
But where an express contract has been fully performed on plain
tiff’s part, and nothing remains to be done under it but the payment
of money by defendant, which is nothing more than the law would
13
CONTRACT OF E M P L O Y M E N T
imply against him, plaintiff may declare specially upon the original
contract, or generally on the common counts, at his election; and if
he adopts the latter course, he may offer the contract in evidence
to show that he has performed what was agreed to be done and to
show the value of the services performed or the materials furnished.
Also, where a special contract has been partly performed by the
plaintiff and has been put an end to by mutual consent of the par
ties, or by the act of the defendant, or by “ act of God,” or the con
tract for technical deficiencies in its execution is not legally enforce
able, and the part performance of the contract was beneficial to
the defendant and accepted by him, or full performance waived by
him, the plaintiff may recover on the common counts for the actual
value of the services rendered or materials furnished and thus ac
cepted and enjoyed.
But if a party desires to recover damages for the breach of an
executory contract, not for the value of the services actually per
formed or materials actually furnished by him thereunder prior to
such breach, but for the compensation or profits he might have de
rived thereafter if the other party had permitted the full perform
ance of the contract, his remedy is not in general assumpsit on the
common counts, but he must declare specially on the contract and
claim such damages as he is legally entitled to for the breach of
same.
Thus, in the matter of a contract for personal services, we have
held that a cause of action for1an entire breach of the contract im
mediately arises upon the wrongful discharge of an employee under
a contract for a definite time, and it is not necessary to await the
termination of that period before asking the courts for redress.
The measure of damages recoverable in such a case is, prima facie,
the contract price or wages for the unexpired part of the term, in
cluding, of course, any unpaid balance due under the contract at the
time of discharge for services already performed.
Under the status of the pleadings at the trial, the court was with
out error in holding that the plaintiff could not, under his common
counts, introduce evidence of the special contract before he had
proven what services, if any, he had rendered defendants.
The Supreme Court of Washington held in a case that where a contract
for employment at a stated yearly salary constituted an employment for an
indefinite period it could be abandoned by either party at will without incurring
any liability. (Davidson v. Mackall-Paine Veneer Co. (1928), 271 Pac. 878.)
C ontract
of
E
m ploym en t—
B
reach—
D
is c h a r g e —
D
am ages—
Gary v. Central of Georgia Ry. Co., Court of Appeals of Georgia,
Division No. 2 (February 20, 1928), H I Southeastern Reporter, page
819.—J. M. Gary was employed by the Central of Georgia Railway
Co. from October, 1909, until August 8, 1924, first as a fireman
and then as a locomotive engineer. Gary entered the service of the
railroad under a contract made with him through the Brotherhood
103151°—SO----- 3
14
DECISIONS OF T H E COURTS
of Locomotive Engineers. Under the terms of the contract there
were embodied rules of the brotherhood relative to working condi
tions. On August 8, 1924, Gary received a letter from the superin
tendent of the railroad dismissing him from the company’s service.
Gary brought an action in the Superior Court of Richmond County,
Ga., against the Central of Georgia Railway Co. for damages for
an alleged breach of a contract of employment. Gary contended that
his dismissal was premature and illegal because under the terms of
the contract he was allowed 30 days within which to appeal from
the result of an investigation conducted on August 6, 1924, and
having entered an appear he could not be rightfully discharged until
it was disposed of. He also denied the number of demerit marks
placed against him and charged that they were unjustified and il
legal and therefore constituted no reason for his discharge. The
superior court returned a judgment in favor of the railroad. Gary
thereupon appealed to the Georgia Court of Appeals, which in an
opinion dated February 20, 1928, reversed the lower court. In an
opinion written by Judge Bell, he said in part as follows:
I f the contract of employment had contained no provision as to
when or how it might be terminated, the defendant might have
discharged the plaintiff at will; but since, under specific stipula
tions, the relation could be Fevered only in a particular way or on the
happening of a certain event, the act of the defendant in dismissing
the plaintiff without a compliance with these conditions would con
stitute a breach of the contract. According to the terms of the
agreement, the plaintiff could not be demerited, suspended, or dis
charged from the service of the company without a fair and im
partial trial, had in a manner and before persons stated, after no
tice of the charges for investigation and opportunity to have two
enginemen as his representatives to discuss the points at issue. The
plaintiff, in his petition^ denies that these conditions were complied
with. We think that the letter of August 8, 1924, discloses that the
trial of August 6, 1924, was in reference only to demerits, and it is
our opinion that the defendant could not rightfully dismiss the
plaintiff from its service where the only issue for investigation re
lated to such a matter. The clear intent and purpose of the agree
ment was that the plaintiff could only be dismissed after a hearing
which involved the question of the right of the defendant to dis
miss him upon some ground. The contract contains no provision
authorizing the dismissal of the plaintiff merely for an accumula
tion of demerits, in the absence of a trial upon that question.
In regard to the employee’s claim of loss of seniority rights and
loss of his right in the group policy of insurance, the court said:
The damages which the plaintiff claimed because of the loss of his
right of seniority, as it is set forth in this case, and because of his
having been blacklisted and boycotted by other railroads, were too
15
CONTRACT OF E M P L O Y M E N T
remote and speculative to constitute proper elements of recovery.
“ Remote or consequential damages are not allowed whenever they
can not be traced solely to the breach of the contracts, or unless they
are capable of exact computation, such as the profits which are the
immediate fruit of the contract, and are independent of any collat
eral enterprise entered into in contemplation of the contract.”
Nor was the plaintiff entitled to be compensated for the alleged
loss of his right in the group policy of insurance, assuming that the
value of such right was sufficiently shown. This policy appears to
have been issued subsequently to the making of the contract of em
ployment and is in no way referred to therein. “ Damages recover
able for a breach of contract are such as arise naturally and accord
ing to the usual course of things from such breach, and such as the
parties contemplated, when the contract was made, as the probable
result of its breach.”
C ontract
of
E
m ploym ent—
B
reach—
D
uress as
A
f f e c t in g —
S ea
The “ Z R -3 ” District Court, Western District,
Washington, Northern Division (January 15, 1927), 18 Federal
Reporter (2d), page 122.—This was a suit in admiralty brought by
one Stratton and others against the motor ship ZR-3 for wages
claimed on account of services rendered in packing fish on the ship
during the season of 1925.
One June 3, 1925, one Einstoss, owner of the motor ship ZR-3,
entered into a contract with Stratton and others to pack fish at a stip
ulated price. The contract also called for transportation from Seattle
to Alaska on condition that the employees remain with the company
for the entire season and render satisfactory services. In case of
breach of contract by any employee the amount paid for transporta
tion from Seattle to Alaska was to be deducted from the wages and
no allowance made for return passage except in case of illness.
In the midst of the work and while “ the fish were running well ”
several of the employees approached the superintendent and re
quested a modification of their agreement.
The superintendent
ordered the packers to go to work and he would wire Einstoss.
Einstoss refused to modify the agreement and the fishermen declined
to work. The superintendent later was authorized to settle the
question and he notified the objectors that they would receive the
same compensation as the others. Near the close of the season
the superintendent was ordered to return all but 11 of the fishermen
to Seattle. Upon this announcement all but five or six asked per
mission to be returned to Seattle. The employees asked that their
transportation be furnished, and the company stated that they
would have to pay their own return fare.
m en
— W
ages—
16
DECISIONS OF T H E COURTS
The contention of the shipowners was that the service rendered
was a landsman’s service so that a lien against the vessel could not
be claimed. It was also contended that the agreement to pay the
increased wages was without consideration, and hence not binding.
As to the first of these contentions, the court cited the Federal
law (Comp. St. sec. 8392): “ Every person * * * who shall be
employed or engaged to serve in any capacity on board the same
(vessel) shall be deemed and taken to be a seaman.” This does not
imply that all must be mariners “ in the full sense of the word.”
Changing conditions have made the term cover “ all persons em
ployed on the vessel to assist in the main purpose of the voyage.”
This being a fishing boat, packing and salting fish was its main
purpose and the purpose for which the employees had undertaken
the voyage. After reaching remote waters the refusal to work was
based on no change in conditions or character of the service, but
was a breach of a written contract for the purpose of coercing
“ a promise from the superintendent to pay an increased compensa
tion for what they were legally bound to do.” To enforce the ful
fillment of such an extorted promise the court said would be “ gross
injustice.”
The district court thereupon dismissed the suit.
C ontract
of
E
m ploym ent—
B
reach—
E
n g a g in g i n
S im il a r B
u s i
—Emler v. Feme, Court of Appeals of
Ohio, Hamilton County {November 15, 1926), 155 Northeastern
Reporter, page J$6.—Mack Ferne and William Emler entered into a
contract to establish and operate a beauty parlor in the city of Cin
cinnati. Ferne was to purchase and install the necessary fixtures.
Emler was to be manager and operator and was to receive a per
centage of the net profits, including a weekly salary. The contract
provided that the agreement was to be good for 10 years, and that
William Emler would not engage in a similar business of his own
or in his own name or for anyone else in a similar line of business.
No territorial limitation was fixed. It appeared that, after operat
ing the beauty parlor for over a year, disagreement arose, and Emler
opened a beauty parlor across the street.
Ferne brought an action to prohibit Emler from entering into a
competitive business, and for damages for breach of contract.
Ferne recovered a judgment and Emler carried the case to the
court of appeals, where the lower court was reversed.
The legality of the contract was held by the court to determine the
case, and after setting out the provisions of the agreement said
in part:
ness—
R
e s t r a in t
of
T
rade
CONTRACT
of
em ploym ent
17
That such provisions in a contract void the contract is clearly the
law of Ohio. The trial court evidently took the view that the re
striction of a 10-year period, without limitation as to space, was
divisible, and that the court might, on its own motion, divide the
restriction as to space by holding the contract good as to Hamilton
County.
Had the covenant in the contract under consideration provided
that Emler should not engage in a business of his own for 10 years
in the city of Cincinnati or elsewhere, the covenant would have been
upheld, and the trial court would have been correct in so holding.
But there is no such limitation. The 10-year covenant, as above
stated, is without territorial limitation, and if that part is bluepenciled there is nothing on which to base a restriction.
The negative covenant as to space is a general restraint of trade
and is not divisible. Had the covenant provided that the parties
should not engage in the same or similar business for the period of
100 years, it would not be contending that the court might grant the
injunction for a period of five years. In other words, the court can
not make the contract for the parties. He can not place a restriction
on a negative covenant, where there is no valid negative covenant.
We therefore hold that the trial court was without power to grant
the injunction and award damages as it did. That judgment will
be reversed.
Contract of E mployment—B reach—I nterference by T hird
P arty— Owen et al. v. Westwood Lumber Co., District Court, Dis
trict of Oregon (January SI, 1927), 22 Federal Reporter (2d), page
992.—This was an action brought by Richard Owen and Bert S.
Kingsley, copartners doing business as the O. K. Trading Co., against
the Westwood Lumber Co., of Wheeler, Oreg., to recover damages
alleged to have been caused by the lumber company’s violation of an
Oregon act (secs. 2177 and 2178, Oregon Laws) making it a crime
for anyone to compel by threats or intimidation or by using any
means to compel an employee against his will to board at a par
ticular hotel or purchase goods or supplies at any particular store.
Owen and Kingsley were merchants in the town of Wheeler* and the
Westwood Lumber Co. conducted a sawmill at the same place. The
lumber company also conducted a general mercantile store under
the name of the Bay Mercantile Co. The partnership contended
that the lumber company compelled all of its employees, by intimida
tions and threats of discharge, to cease trading or doing business with
the O. K. Trading Co., in violation of the statute.
The Westwood Lumber Co. answered the allegations, holding that
the Oregon act referred to is violative of the fourteenth amendment
to the Constitution of the United States, which declares that “ no
State shall * * * deprive any person of life, liberty, or prop
erty, without due process of law ” ; and, second, if the act is valid,
18
DECISIONS OF TH E COURTS
the plaintiff has no right to maintain an action for its violation, be
cause it was intended for the benefit of the employees, and not mer
chants or innkeepers.
The District Court for the District of Oregon decided in favor of
the lumber company. In an opinion by District Judge Bean, he re
ferred to two United Sta-tes Supreme Court cases as governing the
present case, and said in part as follows:
I am unable to distinguish the case in principle from that of Adair
v. U. S. (208 U. S. 161, 28 Sup. Ct. 277), or Coppage v. Kansas (236
U. S. 1, 35 Sup. Ct. 240). The former involved the constitutionality
of an act of Congress (30 Stat. 424) concerning interstate carriers
and their employees, which made it a crime for any employer subject
to the act to require an employee to enter into an agreement not to
become a member of a labor organization, or threaten any employee
with the loss of employment, or unjustly discriminate against any
employee, because of his membership in such an organization. The
court held the law invalid because an invasion of the personal liberty
as well as rights of property granted by the fifth amendment to the
Constitution.
In Coppage v. Kansas, supra, the court held a Kansas statute
(Laws 1903, ch. 222) making it a misdemeanor for an employer to
require an employee not to become or remain a member of any labor
organization during the time of his employment was not a legitimate
police regulation, as it has no relation to the public health, morals,
or welfare, and was repugnant to the due-process clause of the
fourteenth amendment and an unwarranted interference with the
right of liberty and property therein guaranteed.
If, as held in these cases, a law which makes it unlawful for an
employer to require an employee to enter into an agreement not to
become or remain a member of a labor organization as a condition to
his employment is invalid, because an unlawful interference with
liberty of contract, manifestly a law making it unlawful for an
employer to require as a condition for remaining in his employ to
trade at a particular store is likewise invalid.
For these reasons the demurrer, in my opinion, should be sustained.
If, however, I am in error in this conclusion, it is clear to mv mind
that plaintiff has no right of action for a violation by the defendant
of the act in question. It was not intended for the benefit of inn
keepers and merchants, but for employees. It is an attempt to pro
tect an employee from the greed and avarice of his employer, and
the right of action, if any, for damages on account of a violation
thereof is in the injured employee, and not merchants and inn
keepers, who might be incidentally benefited by the observance of
the statute.
C
o n t r a c t of
E
m ploym ent—
C o m p e l l in g E
m plo ye e s to
T
rade in
Deon v. Kirby Lumiber Go.
et al., Supreme Court of Louisiana (November 29, 192%
6 ), 111 South
ern Reporter, page 55.—The Kirby Lumber Co. is a Texas corpora
tion operating a large sawmill plant and general merchandise store
C
om pany
S tore— R
e s t r a in t of
T
rade—
CONTRACT OF E M P L O Y M E N T
19
at Merryville, La. Prior to May 27, 1926, Jones Deon opened a gen
eral mercantile store in the town. A few days prior to the opening
of the Deon store the general manager of the lumber company, at a
mass meeting called for the purpose, publicly notified or caused to be
notified all employees of the company that they were prohibited from
purchasing any goods or wares in the Deon store and warned the
employees that if they visited his store or family they would be
immediately discharged. A suit for damages was brought against
the company, its manager and others alleging that there was a con
spiracy and contract to boycott Deon and that the acts constituted a
restraint of trade. The trial court ruled against Deon and the case
was taken to the supreme court of the State. That court, however,
affirmed the lower court, saying that “ It may also be observed there
is no law which compels a man to part with his property; hence in
this State, at least, an employer who is engaged in mercantile busi
ness may, without making himself civilly liable therefor, induce his
employees to discontinue their patronage of competing mercantile
establishments and give it entirely to him, by appeals, persuasion,
and creating a fear that they would be discharged from their em
ployment if his requests were not complied with.”
C ontract
of
E
m ploym en t—
C o n t in u a t io n
S c h o o l — C o n s t it u
—People v. Braunstein, Court of Appeals of New York
(May 29, 1928), 162 Northeastern Reporter, page 89.—Abraham
Braunstein was convicted in the city magistrate’s court for violating
section 601 of the education law in that his son failed to attend a
continuation school in New York City. The son was over 16 years
of age, had graduated from a public school, and attended a high
school for six months. On account of his father’s financial losses he
was obliged to leave school and to begin work. He attended a con
tinuation school and, in addition, he attended a night high school
and later a night preparatory school. He was employed in a law
office in the daytime and attended a continuation school during office
hours. His employer informed him that his absence from his duties
at the office interfered with the business, and that he would be obliged
to discharge him. Thereupon the boy, to save his position, ceased to
attend the continuation school.
From a conviction in the lower court the father appealed to the
supreme court, appellate division. Here the lower court was af
firmed. The case was taken to the court of appeals by Braunstein
on constitutional objections to the statute. The chief objection
against the statute was that, as night schools had been created and
t io n a l it y
20
DECISIONS OF T H E COURTS
regulated by the department of education, the boy should be excused
from the continuation day school if he attended a night school.
The court of appeals, in upholding the constitutionality of the law
said in part, as follows:
There is a reason for the distinction. That children at work all
day should also be compelled to study at night is an evil in itself.
Probably, under present conditions, it is an evil that may not be
wholly corrected. So far as possible it should be minimized. Dayschool attendance should be encouraged. Many employers may coop
erate in carrying out the policy of the department. Others might
not. They might insist that their employees attend night schools to
avoid the interruption, thus making such attendance m effect com
pulsory. Once we had a law requiring children working in the day
time to attend evening school. The experiment was abandoned. It
was found that their health was injured out of all proportion to the
value of the education they received. The requirement as to girls
also involved moral hazard. That should not be done indirectly
which was found unwise when done directly. In truth, the evening
schools are intended primarily for those who have reached maturity.
And even four hours a week in a continuation school is not a mere
waste of time. They do not confine themselves to vocational training.
Optional courses may be taken leading to general education. For
these reasons we think the distinction made by the legislature
between day and night schools is justified.
All minors in districts where continuation schools exist are
treated alike. And, treated as a labor law rather than as one affect
ing education solely, it is not discriminatory. It separates those
who have completed a 4-year secondary course from those who
have not. It seeks to induce all to do so. I f they will not or can not,
it makes their right to work subject to the necessity of acquiring
some further daytime instruction. The legislature might forbid all
minors under 18 to engage in regular work during the hours of the
school day. It might require them to spend those hours in study. It
may do less.
Certiorari was later denied in the Supreme Court of thrt T1>nted
States. (49 Sup. Ct. 95.)
C
ontract
of
E
m ploym ent—
D
is c h a r g e —
R
e s c is s io n
of
Con
—Diffiey v. Jacobson Mfg. Co., Supreme Court of New Jersey
(November 28, 1928), 11±3 Atlantic Reporter, page 696.—P. Gerome
Diffley was employed by the Jacobson Manufacturing Co. On June
13, 1927, he was engaged to work for the company at a salary of
$6,500 per year, payable $125 weekly.
Diffley remained in the employment only a short time when he
claimed that the contract was annulled and he was discharged. Five
days after Diffley entered into the contract the Jacobson Manufac
turing Co. advised him that they did not wish to continue him on a
salary basis, but offered to engage him on a commission. Diffley
tract
CONTRACT OF E M P L O Y M E N T
21
refused this offer. Then the company offered to pay the first install
ment of $125, provided that Diffley would execute a general release.
This also was refused by the employee. Later he agreed to execute
the release, but the company refused to carry it out.
Diffley brought an action in the Second District Court of Newark
to recover damages in the sum of $500 for the breach of the contract
of employment. A judgment was awarded Diffley and the company
thereupon appealed to the Supreme Court of New Jersey. The
contention of the company was that their action did not constitute
a rescission. The supreme court held that it did, and said:
It was notice from the employer to the employee that it would not
continue the contract and offering other terms. I f wrongful, the
employee was entitled to recover the damages sustained thereby.
Relative to the questions raised by the company as to whether there
was a mutual rescission, the court said:
It is also claimed that there was later a mutual rescission. This
is not the case. The subsequent negotiations pertained wholly to an
adjustment of the damages sustained because of defendant’s wrong
ful act, and had no bearing otherwise on the former contract between
the parties.
Whether it was the duty of Diffley to continue to tender his services
the court in conclusion said that it was not incumbent on him to
pursue a fruitless offer to continue to work for one who had ter
minated the contract.
The judgment of the lower court was therefore affirmed
Contract
of
E mployment — D ischarge — Seaman — W ages —
United States Steel Products Go. et. al. v. Adams, Supreme Court of
the United States (<January 3, 1928), 48 Supreme Court Reporter,
page 162.—Donald J. Adams, on November 29, 1921, signed articles
for services as an oiler on the steamship Steel Trader, owned by the
United States Steel Products Co., at New Orleans, La., during a
voyage from that city to East Indian ports and return, at $80 per
month. The ship made a stop at Port Arthur, Tex., and on Decem
ber 12,1921, while at that port, Adams was discharged without cause.
He received his wages and $80 in addition from the shipping com
missioner. The vessel did not return to New Orleans until May 19,
1922, and Adams thereupon brought proceedings in the admiralty
court to recover as damages the stipulated wages from December
12, 1921, to May 19, 1922, plus $2.50 per day for subsistence. The
lower court granted recovery for the amount of such wages ($414.50)
less $30, with interest from May 19, 1922, and the circuit court of
appeals affirmed the award.
22
DECISIONS OP TH E COURTS
The company appealed the case to the United States Supreme
Court, and this court, speaking through Mr. Justice McReynolds,
on January 3, 1928, reversed the decree of the district court. The
only matter for the consideration of the higher court was the proper
interpretation and construction of section 4527 of the Revised Stat
utes of the United States.
The court said: “ We think both courts adopted improper views.
According to the plain language employed, the section in question
applies where the discharge takes place before the commencement
of the voyage or before one month’s wages are earned. Also we
think, in the specified circumstances, payment of wages actually
earned, with an additional sum equal to one month’s wages, satisfies
all liability for breach of the contract of employment by wrongful
discharge. The legislation was intended to afford seamen a simple,
summary method of establishing and enforcing damages.”
The court considered that the Supreme Court of Massachusetts, in
the case of Calvin v. Huntley (178 Mass. 29, 32), properly inter
preted section 4527.
“ The object of the statute is not to punish but to provide a rea
sonable rule of compensation for a breach of contract. We think
the statute not penal but remedial.” The case was accordingly re
versed and remanded to the State court.
Contract o f E mployment—E ngaging i n Similar B usiness—
T rade Secrets— Deuerling v. City Baking Co., Court of Appeals of
Maryland (April 20, 1928), 1^1 Atlantic Reporter, page 51$ .—
Charles A. Deuerling was employed as a driver-salesman for the
City Baking Co., of Baltimore, Md. On September 27, 1927, a con
tract was entered into between Deuerling and the baking company,
by which he agreed to perform definite stipulated services in con
sideration of receiving stated compensation. By the terms of the
contract it was to continue from week to week and to be terminated
by the act of either party. It provided that in the event of its
termination by either party, the employee would agree not to directly
or indirectly, for a period of three months after such termination,
solicit, sell, or attempt to sell or deliver any bakery products to any
one located on the route assigned to him at any time during his last
six months’ employment.
On December 15,1927, Deuerling left the service of the City Bak
ing Co. and entered the employ of the Schmidt Baking Co. (Inc.).
He at once visited the customers of his former employer in the
territory described in the original contract of employment.
CONTRACT OF E M P L O Y M E N T
23
The City Baking Co. brought a suit in the circuit court of Balti
more City to restrain Deuerling from breaching the contract. The
court granted the order and Deuerling thereupon appealed to the
Court of Appeals of Maryland. The contention of Deuerling was
that the terms of the contract were harsh and imposed a hardship
upon him. The court of appeals found no error in the action of the
lower court and affirmed the order of that court, in part as follows:
Restrictive covenants in contracts of employment affecting the
right of the employee to accept employment with others or engage
in business for himself may be divided into two classes: First, one
not to accept employment with others during the term of the con
tract; and, second, not to engage in a similar business or accept
employment with others for a similar purpose for a definite period
of time after the termination of the contract. Each of these classes
of covenants, whether they be against similar employment during
the term of the contract or against engaging in business for one’s
self or in similar employment for another for a definite time after
the termination of the contract, is in a degree in restraint of trade,
for it is undeniable that the right to labor or use one’s skill, talents,
or experience for one’s own benefit, or furnish them to another for
compensation, is a natural and inherent right of the individual, and
is often expressed by the term “ freedom of trade.” In the exercise
of such a right the employee has an interest, as also the general
public, who are entitled to have the energy, industry, skill, and
talents of all individuals freely offered upon the market, and it can
be easily imagined that, by unreasonable curtailment through re
strictive covenants contained in contracts of employment the public
at large might thereby be deprived of the service of individuals so
essential to the progress, welfare, and happiness of mankind.
It was early recognized that a decree of specific performance
against an employee under an ordinary contract of employment
might result in a species of industrial servitude, which the courts
would not require to be performed; and following this line of rea
soning, they held, in cases in which specific performance would not
be decreed, that injunctive relief in aid of specific performance would
not be given. Later this rule was modified to the extent of holding
that in cases where the employment necessitated that the employee
have a special individual qualification, or the service was of an
unusual and unique character, and the contract for such service con
tained a restrictive covenant, the breach of such a convenant would
be enjoined.
In our opinion, there is no valid distinction between a court of
equity enforcing by injunction this restrictive implication and en
forcing the specific restrictive covenants contained in the contract in
this case. The parties to this contract agreed to the restrictive
covenant, and if its terms are fair and reasonable a court of equity
should enforce its provisions by granting injunctive relief. The
question of whether it is reasonable depends upon circumstances,
the more important of which are: Is the purpose to be obtained a
fair and conscionable one; will it do greater harm to the employee
24
DECISIONS OF T H E COURTS
than good to the employer; and if it is reasonable as between the
parties, does it so injuriously affect the public as to make it void as
against public policy? The compensation paid the employee here
was as well based upon his compliance with the restrictive covenant
as his rendering service. The character of the service rendered, and
which had been rendered by the appellant since 1916, was such as
necessarily brought him into frequent, if not daily, contact with the
customers served with the appellee’s products. The executive and
managing officers of the appellee rarely, if ever, saw its customers,
the personal contact being between the customers and the appellant,
and for practical purposes they might well be said to be customers of
the appellant rather than of the appellee. Knowing, from the nature
of the business, that this was true, it was, in our judgment, entirely
reasonable for the employer to include in the contract such a restric
tive covenant, and the purpose or object to be secured fair and
conscionable.
The purpose being fair, the method of accomplishment is reason
able. We are of the opinion that an employer, under such circum
stances, is entitled to the protection which this covenant affords.
Neither do we think that its terms are harsh or impose any hardship
upon the employee which outweighs the protection to which the
employer is entitled. It does not restrict him from entering the em
ploy of any other bakery company immediately upon his leaving
the appellee, nor does it restrict him from engaging in the sale of
bakery products for himself or future employer over any area other
than the comparatively small territory described in the contract,
and not over that except for the short period of three months.
Again, we can see nothing inimical to the public interest resulting
from the enforcement of this restrictive covenant. The people at
large, with the exception of those along this one particular route,
are entitled to be served with bakery products by the appellant. He
can engage in this character of business for himself, and his services
are for hire to any other bakery company, to cover all territory ex**
cept the single route mentioned in the contract, and then only, as
to that, for the period of three months. We find, as between the
parties, that this covenant should be enforced; and when we apply
to it the test of the public’s interest we do not find any such injury
as would render it void as against public policy.
C ontract
of
E m ploym en t— E
rade
S e cr e ts —Olschewshi v .
n g a g in g
in
S im il a r
B
u s in e s s —
Hudson, District Court of Appeals,
First District, Division 2r California (December 5 ,1927), 262 Pacific
Reporter, page J$.—Frederick Olschewski was a trustee in bank
ruptcy of the estate of the Eagle Laundry Co., a defunct corpora
tion. W. G. Hudson was the executor of the estate of James T .
Murphy, who prior to his death had been an agent of the Eagle
Laundry Co., in charge of a laundry route in the city of San Fran
cisco. About July 28, 1924, a sale of the laundry route, together
T
CONTRACT OF E M P L O Y M E N T
25
with seven others, was negotiated. A demand was made of the
agent Murphy that he deliver to the purchaser all memoranda and
the lists of customers. The agent refused to comply with the de
mand, and thereupon sold his route to the Crystal Laundry Co., of
San Francisco, a competitive laundry company. After the sale the
agent acted as the “ outside driver ” of the Crystal Laundry Co.
The trustee in bankruptcy of the estate of the Eagle Laundry Co.
brought an action in the superior court of San Francisco for dam
ages against the executor of the estate of Murphy in the sum of
$2,500. The trustee contended that the sale of the laundry route by
Murphy constituted a conversion of the property, and therefore they
were entitled to damages from the estate.
The superior court awarded a judgment to W. G. Hudson, the
executor of the deceased employee’s estate. An appeal to the Dis
trict Court of Appeals, First District, Division 2, of California,
was then made by Olschewski.
The appeals court affirmed the judgment of the superior court,
and, in the course of his opinion, Judge Thompson said in part:
It must be assumed that as an agent and employee in charge of this
route for said company the deceased was possessed of knowledge of
the list of individuals residing in said district who were accustomed
to patronize his employer, although it is not affirmatively alleged
that he had a list or memorandum of the names of customers, either
written or otherwise, or that he had access to any such list. How
ever, as such confidential agent he was bound to exercise utmost good
faith in behalf of his employer and not take advantage of his trade
knowledge and information secured in the course of his employment
to use it for his personal benefit.
Manifestly a laundry route does not consist solely of a specific
district or territory, nor does it consist of a vested right to, or monop
oly of, the patronage of all the residents of said district. Competing
laundry companies may possess independent lists of customers resid
ing in the same house, block, or district. Obviously, a customer of
one laundry company to-day, for good and valid reasons, or for no
reason whatever, may become the customer of a competing company
to-morrow. For friendship, whim, better service, or cheaper prices,
a customer may change his laundry at will. No laundry company
may have a vested property right to claim, as customers, particular
individuals, nor all the residents of a specific district. The field is
open for fair competition on the part of any and all who desire to
solicit patronage.
It is, however, the duty of a laundry-route agent to extend uniform
courtesy and fair treatment and take no undue advantage of his
trade knowledge, so that he may retain the good will and patronage
of the individual customers for the benefit of his employer. A list
of laundry customers is a property right which may be appropriately
protected, but it is not a tangible right which may be handled and
transferred like stocks, bonds, personal effects, household goods, or
animals. The property right of a laundry route is akin to the good
26
DECISIONS OF TH E COURTS
will of a business. Unlawful interference with property rights in
the good will of a business, or the benefits of trade and patronage of
a specific list of customers in a definite route, may be protected by
injunctive relief in a court of equity. But there is nothing definite
or tangible in the character of the ordinary list of laundry customers
which makes an effort to transfer the district in which they live
subject to an action of conversion.
The court in conclusion cited a case (Boehm v. Spreckles, 183 Calif.
239, 191 Pac. 5) as somewhat similar to the one under consideration.
In that case it was held that a contract between a newspaper pub
lisher and a carrier for the exclusive control of a newspaper route,
created a mere agency, and conveyed no interest in property. The
court, continuing, said that—
The characteristics of this newspaper route were similar to those
of the laundry route in the instant case. The deceased, as the agent
of the laundry company, acquired no title to the property and, hav
ing none, his attempt to transfer the route to an alleged purchaser
would convey no title. The title of the Eagle Laundry Co. was
therefore in no wise affected by this alleged sale. Its former cus
tomers of this route were privileged to continue to patronize appel
lant’s business,, regardless of the attempted sale. The only acts of
the deceased of which appellant may complain were the violation of
his trust as confidential agent and the consequent damage to their
business on account of a possible loss of customers. Under such
circumstances the remedy is not found in an action for conversion,
and the demurrer was therefore properly sustained.
Contract of E mployment—E ngaging i n Similar B usiness—
T rade Secrets— E nforcement— Club Aluminum Co. v. Young et al.,
Supreme Judicial Court of Massachusetts (April 1928), 160 North
eastern Reporter, page 8 0 —The Club Aluminum Co. is engaged in
the manufacture and sale of aluminum cooking utensils. Young
was a salesman in the employ of the company. It was the policy
of the company in marketing its product to train their salesmen in
order that they would be qualified to give practical demonstrations
of the advantages of cooking with aluminum ware. Under the terms
of the contract entered into with the Club Aluminum Co., Young
for one year after the termination of the agreement would not engage
in the sale of aluminum cooking utensils by a similar plan to that
used by the company either for himself or for other companies in
the States in which the Club Aluminum Co. was operating at the
time of the termination of the contract. Young remained in the em
ploy of the company for about three months, during which period he
received the customary specialized training. He then left the serv-
contract
of
em ploym ent
27
ice of the company and entered the employment of one of its com
petitors.
A suit was brought in the superior court by the Club Alumi
num Co. against the former employee to prevent him from remain
ing in the employ of the competing company.
The superior court dismissed the suit and the company thereupon
carried the case to the supreme judicial court of the State.
The highest court of the State affirmed the superior court. Chief
Justice Rugg, in delivering his opinion, said in part:
Knowledge confidentially gained in the course of employment may
be made the subject of restrictive agreement and acts in derogation
of such a contract will be restrained. But an employer can not by
contract prevent his employee from using the skill and intelligence
acquired or increased and improved through experience or through
instruction received in the course of the employment. The employee
may achieve superiority in his particular department by every law
ful means at hand, and then upon the rightful termination of his
contract for service use that superiority for the benefit of rivals in
trade of his former employer.
The bill contains no allegations fairly susceptible of the interpre
tation that the plaintiff had special proprietary rights in the “ method
or plan * * * employed by it in marketing its product.” Of
course the plaintiff is entitled to protection against unlawful inter
ference by others with the conduct of its business. But this com
plaint is not of that nature. The plan described in the bill was
not used by the plaintiff alone. It was not hidden from others. It
was openly practiced both by the plaintiff and at least three of its
competitors in business. There are no allegations to the effect that
the training given by the plaintiff to Young was based upon secrets
possessed by the plaintiff to the exclusion of others. “ Highly spe
cialized training and personal supervision ” in connection with the
sales of ordinary merchandise well known in the market, alleged to
have been given by the plaintiff to all its salesmen, are statements
too general in nature to constitute ground for legal relief. The
specifications of the bill go no further than similar indefinite and
magniloquent descriptions.
The allegations of the bill do not show interference with the good
will of the plaintiff’s business. Whatever may be the signification
of good will in different connections, there is nothing in the present
record to establish derogation of the good will of the plaintiff’s busi
ness by acts of the defendant Young.
C on tra ct
of
E m p lo y m e n t— E n g a g in g
T r a d e S e c r e t s — I n f o r m a t i o n G a in e d M a y
in
S im ila r
Be
U s e d i n C o m p e tit iv e
B u s in e s s -
E m p l o y m e n t —El Dorado Laundry Go. v. Ford, Supreme Court of
Arkansas (May 23, 1927), 294 Southwestern Reporter, page 893.—
Garland Ford was in the employment of the E l Dorado Laundry Co,
28
DECISIONS OF T H E COURTS
for five months and had access to a printed list of his employer’s cus
tomers. Thereafter he left this employment and obtained similar em
ployment with the Crow Laundry, which conducts a laundry in the
same city. In the latter employment he solicited his former employ
er’s customers. The former employer brought suit to enjoin Ford
from soliciting its customers. The injunction was denied and the su
preme court affirmed the decision. The court pointed out that this
was not a case where Ford was hired upon the express condition that
he would agree for a limited length of time not to solicit trade from
the customers of his employer served by him. The court decided that
the facts did not bring the case within the rule that there was an im
plied contract on the part of the employee not to use to the detriment
of his employer any trade secret which he might have learned in the
course of his employment. Quoting the Maryland Supreme Court,
the court said that “ in the majority of cases which have passed on
the question, it is held that in the absence of an express contract, on
taking a new employment in a competing business, an employee may
solicit for his new employer the business of his former customers.”
C
ontract
of
E
m ploym ent—
E
n g a g in g
in
S im il a r
B
u s in e s s -
Excelsior Laundry Co. v. Diehl et al
Supreme Cowrt of New Mexico (January £, 1927), 252 Pacific Re
porter, page 991.—J. O. Diehl was employed on a laundry route by
the Excelsior Laundry Co. of Albuquerque, N. Mex. For several
years the company had prepared and kept a list of its patrons and
customers which they considered was a business and trade secret, and
revealed to their driver employees only so far as the list related to
their respective districts. These lists the company considered were
one of the important and valuable assets of their business.
Diehl became ill and was unable to perform his duties as a driver
and solicitor and shortly thereafter the company discharged him.
Diehl after his discharge secured employment with the Imperial
Laundry Co., similar to that which he had rendered to the Excelsior
Co. He proceeded at once to visit the same customers and patrons
that he had served under his former employment. He solicited the
old customers to transfer their patronage to him and the company
he was now working for.
The Excelsior Laundry Co. brought an action in the District Court
of New Mexico against their former employee and the Imperial Co.
to restrain them from soliciting the patronage from any of the per
sons who were their customers prior to February 19,1923. The dis
trict court gave a judgment to the Excelsior Laundry Co. Diehl and
the Imperial Laundry Co. then appealed the case to the Supreme
Court of New Mexico.
T
rade
S ecrets— I
n j u n c t io n
—
CONTRACT OF E M P L O Y M E N T
29
The State supreme court found that the restraining order granted
by the lower court was too broad, and that if the injunction had been
limited so as to restrain the practices described in one of the findings
of the lower court there would be no objection. The conclusion of the
State court was that in the absence of contract the laundry employee
having lists of customers may not be enjoined from soliciting old
customers for the new employer. The court therefore ordered a
reversal of the judgment of the lower court, and that a modified
injunction be issued.
The Supreme Court of Louisiana affirmed the lower court in a case of an
employee in a real-estate office who visited a store in which he was formerly
engaged and dictated letters. It was held that he did not violate his contract
of employment requiring him to devote his entire time to his employer’s
business. (Dugan v, Clesi (1928), 115 So. 660.)
Contract o f E mployment—E ngaging i n Similar B usiness—
T rade Secrets—I njunction— Maas & Waldstein Go. v. Walker et al.,
Court of Chancery of New Jersey (December 2,1926), 135 Atlantic
Reporter, page 275.—Henry Walker entered the employ of the Maas
& Waldstein Co., manufacturers of lacquers and enamels, at Newark,
N. J., in 1906, as manager. He later became a director and secretary
of the company and finally president, which office he held until his
removal by the board of directors in February, 1925. Walker subse
quently entered the employ of the Miner-Edgar Co., a competitor in
the lacquer and enamel business. The Maas & Waldstein Co. brought
a suit in the Court of Chancery of New Jersey against Walker to
restrain him from using the secret formulas or processes of the com
pany in connection with the business of the Miner-Edgar Co.
Walker contended that the Maas & Waldstein Co. had no formulas or
processes not already known to the trade; that if there was any secret
process or formula in the possession of the company it was the
product of Walker’s brain and he had the better right to the claim.
Walker also denied that he had taken any documents and that no
information had been imparted by him to the Miner-Edgar Co., and
that it was not the intention of that company to make use of any such
information.
The chancery court held that the Maas & Waldstein Co. was in
possession of secret formulas and that Walker had acquired all of
his practical knowledge and experience in the manufacture of
lacquers and enamels while employed by that company. The opinion
of the court in granting the request of the company is in part as
follows:
The facts of this case and the plainly apparent intention of the
defendants, although denied by them, in my judgment, warrant the
103151°—30----- 4
30
DECISIONS OP T H E COURTS
issuance of an injunction, and the decree in this cause should be so
framed as to protect the complainant, but, at the same time, preserve
to the defendants their own property rights and privilege of earning
a livelihood. The defendants should be restrained from using the
secret formulas, processes, and other trade secrets of the complainant
and from representing to the trade that they can manufacture ac
cording to those formulas. They should not be restrained from rep
resenting that they can furnish lacquers and enamels equal in quality
to those of the complainant, nor can they be restrained from solicit
ing business from the trade generally, irrespective of whether or not
that trade includes former or present customers of the complainant.
C
ontract
op
E
m ploym ent—
E
n t ic in g
E
m ployee—
C o n s t r u c t io n
v. Bishop, Supreme Court of Mississippi
{June 11, 1928), 117 Southern Reporter, page 512.—Reuben Arm
strong recovered a judgment in the circuit court of Bolivar County,
Miss., against J. W. Bishop for damages alleged to have been sus
tained by him because of the employment by Bishop without his con
sent of a laborer who was under contract with him for a specified
time.
Chapter 160, Laws of 1924 (1927 Code, sec. 917), prohibits the
willful interference with, enticing away, or knowingly employing a
laborer of another employer or landlord who has contracted for a
specific period of time.
On a motion by Bishop the judgment was set aside by the lower
court, and a judgment was then rendered in favor of Bishop, dis
missing the action on the ground that the court erred in not granting
the plea of Bishop that the case be directed in favor of him.
Armstrong thereupon carried the case to the Supreme Court of
Mississippi on the grounds that the laborer had contracted with him
to perform certain work and that Bishop knew that she was under
a contract and to entice her away was in violation of the statute.
Bishop answered (1) by denying that he knew that Nancy Davis
had contracted with Armstrong for a specified time, (2) that he
understood that Armstrong had released the laborer from the obliga
tion of her contract, and (3) that the laborer had already broken
her contract with Armstrong and had left his employ.
The State supreme court, however, decided in favor of Armstrong,
and ordered the judgment of the court below reversed. The court
in reversing the judgment said in part:
of
S t a t u t e —Armstrong
As hereinbefore set forth, Bishop knew when he employed Nancy
that she was under a contract with Armstrong to make a crop for
him; and one under a contract to make a crop for another is a
laborer within the meaning of the statute, whether his compensation
contract
of
em ploym ent
31
therefor is to be money or a part of the crop. * * * It is true that
Nancy’s contract with Armstrong did not fix the exact date when it
would expire by limitation, but the time therefor is necessarily
implied, being that which was necessary to make the crop, which
includes the harvesting thereof.
Under the statute, the consent which an employer must give before
another can knowingly employ his employee must be in writing, and
the consent which Nancy advised Bishop that Armstrong had given
to her leaving his employment was not so manifested.
When Nancy approached Bishop, she told him she intended to
leave Armstrong, and was evidently seeking some one who would
pay her account with Armstrong and give her employment, and her
later message to Bishop could have meant only that Armstrong had
consented to her leaving him; that she intended to do so, and wished
Bishop to pay her account with Armstrong and give her employ
ment. She had not, therefore, left Armstrong’s employment when
Bishop moved her from Armstrong’s land to that of the appellee.
C o n t r a c t o f E m p l o y m e n t — I n v e n t i o n o f E m p l o y e e — Atlas Brick
Go. v. North, Commission of Appeals of Texas, Section A (.November
1926), 288 Southwestern Reporter, page llfi.—In a case arising
in Texas the law with reference to the rights of the employer to an
invention of one of his employees was stated as follows:
{a) The mere fact that an inventor at the time of his concept is
in another’s service is not sufficient to give the employer an interest
in or title (or right of title) to the invention. This is so because
the employee may perform all of the duties properly assignable to
him, and during the same period independently exert his conceptive
faculties, “ with the assurance that whatever invention he may thus
conceive and perfect is his individual property.” (6) But, if he be
employed “ to devise or perfect an instrument or a means for accom
plishing a prescribed result, he can not after successfully accomplish
ing the work for which he was employed, plead title thereto as
against his employer or, it may be added, rightly decline formal
transfer of title. * * * (c) And, when one is in the employ of
another, in a certain line of work, and devises an improved method or
instrument for doing that work, and uses the property of the employer
or the services of coemployees to develop and put in practicable form
his invention, and assents to the use by the employer of such inven
tion, the jury upon those facts may properly find that he intended
to give, and did give, to the employer “ an irrevocable license to use
such invention ” ; i. e., a shop right. It ought to be added that the
true contract between the parties may rest in parol as effectively
as in writing, and that what the words used and the facts imply are
as competent in results as an expressed agreement.
The above case arose in the district court of El Paso County, Tex.,
on April 4, 1925, when the Atlas Brick Co. demanded an accounting
of money received by the employee, North, from his patented process
32
DECISIONS OF T H E COURTS
for the manufacture of bricks. A judgment was given to the com
pany and North appealed to the Court of Civil Appeals of Texas.
The case was reversed by this court and an appeal was taken to the
Commission of Appeals of Texas where the judgment of the lower
court was affirmed. (For a complete statement of the facts in the
case, see 281 Southwestern Reporter, p. 608.)
C ontract
of
E
m ploym ent—
I
n v e n t io n
of
E
m ployee—
R
ig h t s
of
—Magnetic Mfg. Go. et al. v. Dmgs Magnetic Separator
Go., Circuit Court of Appeals of Wisconsin (December 16, 1926),
16 Federal Reporter (2d), page 789.—One Bethke entered the em
ploy of the Dings Magnetic Separator Co. on June 1, 1917, and re
mained in its employ until on or about May 15, 1918. There ap
peared to be no well-defined contract between the company and
Bethke, but his duties were chiefly devoted to mechanical engineer
ing problems. During his employment Bethke made some inventions
on magnetic separators and assigned them to his employer. Later
he made another invention but did not assign the patent right, but
severed his connection with the company, and shortly thereafter he
and two other employees became directors of a competitor company
and thereupon assigned his application for a patent to this com
petitor.
The Dings Magnetic Separator Co. contended that Bethke was
bound to assign the patent to them. An action was brought for the
assignment of the patent. In the district court the case was decided
in favor of the Dings Magnetic Separator Co. Thereupon the com
petitor company carried the case to a higher court.
The main question in the case was the exact character of the em
ployment of Bethke, the inventor, at the time the invention was
conceived and produced.
The court of appeals held that “ if the minds of the parties met,
and both understood that the employee, for part of his compensation,
was to devote part or all of his time and use his knowledge and
skill in making a new magnetic separator, or developing an improve
ment,” then the case would fall within the case of Standard Parts
Co. v. Peck (264 U. S. 52).
The court said in part:
We observe no justifiable distinction between two contracts, one of
which, for an express compensation, obligates the employee to de
vote his entire time to improving a given machine, and one which,
for a consideration, requires the employee to devote a part of his
time to improving such machine. The obligation or undertaking for
compensation to improve the machine, or build a new one, is present
E
m ployer
33
CONTRACT OF E M P L O Y M E N T
in each contract, and determines, under the Peck decision, the em
ployer’s right to the patent, provided the improvement evidences pat
entable novelty.
As to whether Bethke agreed to devote any part of his time for
the compensation paid him (rather small, it must be admitted) to
improving the magnetic separator is the decisive and, we may add,
close question in this case. It might well be resolved in appellant’s
favor, but for the construction which Bethke placed upon his own
contract. During his employment, and prior to the invention of the
article covered by the patent in suit, Bethke made two other inven
tions on magnetic separators, to cover which he made two applica
tions for patents. In both instances he promptly, voluntarily, and
unhesitatingly assigned the applications to appellee.
But in the third instance, the present case, he was apparently con
vinced that he had made a much more valuable improvement in mag
netic separators, and did not disclose his application for a patent to
his employer. Instead, he severed his connection with the company.
Shortly thereafter, he and two other employees of appellee company
became directors of a competitor, and thereupon he assigned his
application for a patent to this competitor.
This action on the part of Bethke speaks louder than the testimony
of any witness in the case. It is inconceivable that he would have
thus transferred his applications for the patents if he had not con
strued his contract of employment to be as appellee’s president testi
fied. Such a contemporaneous construction of the contract by
Bethke’s own action, at a time when there was no occasion to dis
simulate, is most persuasive. Certainly, in face of it, we are not
justified in disturbing the findings of the district judge, who saw
and heard the witnesses, and who tried the entire case with the
single purpose in mind of ascertaining the exact contract relation
existing between Bethke and his employer.
The judgment was therefore affirmed.
C ontract
of
E
m ploym ent—
L
ia b il it y
of
P
r in c ip a l f o r
A
cts of
Gasco v. Tracas, Appellate Court of
Indiana (February 3, 1927), 155 Northeastern Reporter, page 179.—
Edward B. Gasco was employed by Theodore Tracas in his drycleaning establishment at Roseland, Ind. On February 19, 1924,
Gasco received injuries while operating a power-driven machine at
the plant.
Gasco brought an action against Tracas in the Superior Court
of St. Joseph County, alleging that Tracas had negligently failed
to provide protection against injury during the shifting of a belt
on the machinery. Tracas was not insured under the workmen’s
compensation act, and the action was brought to recover damages
in the sum of $2,500. From the facts of the case it appeared that
Gasco had been hired by the brother-in-law of Tracas. During the
H
is
A
g en ts—
A
u t h o r it y —
34
DECISIONS OF TH E COURTS
absence of Tracas, the brother-in-law had complete charge of the
plant.
Tracas asked the court to return a judgment in his favor because
Gasco had not proved that he was an employee. The court granted
the request, and Gasco thereupon appealed the case to the Appellate
Court of Indiana, contending that the lower court was in error in
refusing to grant him a new trial and that the verdict as given was
contrary to the law and not sustained by sufficient evidence. The
appellate court reversed the lower court and granted a new trial,
the court saying in part as follows:
The question here involved is not as to the authority that Jacobs
had as agent between himself and appellee, the owner of the cleaning
plant, but rather as to his apparent authority when the rights of
innocent third persons who have relied thereon are involved. If
Jacobs, as agent, acted within his apparent authority in employing
appellant, his principal would be bound thereby.
It was not necessary that there should have been a direct contract
between appellant and appellee, in order that the relation of master
and servant might exist between them, within the meaning of the
rule which requires reasonable care to prevent injury to employees.
There being some evidence of negligence that resulted in the in
jury, the question as to such relation should have been submitted
to the jury, and in determining the same, while the rule that an
agency may not be established by the declarations of the agent him
self must be recognized, evidence of the acts of Jacobs within the
scope of his general apparent authority, of his directions to those
about him in the conduct of the work, and his conversations with
them in reference thereto was competent for the purpose of deter
mining the extent of his ostensible authority and as to whether under
it appellant was justified in his belief that he was employed, through
Jacobs, by appellee.
Appellant sought to give evidence that after the accident, and at
a time when he was making claim against appellee for damages
because of his injury, the only ground asserted by appellee for
refusing to recognize liability was the alleged drunkenness of appel
lant at the time of the accident, and no other reason was given for
such refusal. It was error to exclude this evidence. Appellant was
then claiming damages of appellee growing out of the relation of
master and servant existing between them, and the fact that appellee
refused to recognize liability upon some other ground and made no
reference to the want of the relation of employer and employee
between himself and appellant was competent to go to the jury for
its consideration, in determining whether at that time appellee was
denying his liability on the ground that appellant was not his em
_________
ployee.
C ontract
of
E
m ploym ent—
“ O
pen
P
ort
L
aw
”— I
n terference—
Ratcliff v .
State, Court of Criminal Appeals of Texas ( October 6, 1926), 289
I
nterstate
C om m erce— C
o n s t it u t io n a l it y
of
S tatu te—
CONTRACT OF E M P L O Y M E N T
35
Southwestern Reporter, page 1072.—A. W. Ratcliff was convicted
of violating the “ open port law ” enacted by the Legislature of Texas
in 1925. The law was designed to prevent interference with em
ployees of common carriers as would injuriously affect the movement
of commerce. A conviction under the statute was made punishable
by confinement in the penitentiary for a period of from one to five
years. Ratcliff was convicted in the District Court of Potter County
for simple assault on one Mullens, who was employed as a guard for
a railroad company engaged in the movement of commerce, and
sentenced to. serve one year in the penitentiary. He appealed the
case to the Court of Criminal Appeals of Texas on the ground that
the statute was unconstitutional because it was class legislation, and
that the language of the statute was unintelligible. This court re
versed the district court for the reasons as set forth by Ratcliff.
Contract
E mployment—Profit-Sharing Plan—Jurisdic
v. Babson Statistical Organization {Inc.), Supreme
of
tion— Patton
Judicial Court of Massachusetts (Mary 19, 1927), 156 Northeastern
Reporter, page 531/,.— In 1919 Edna S. Patton entered the employ
ment of the Babson statistical organization as a dental hygienist at a
fixed salary. Shortly after beginning work she was given a booklet
by the organization entitled Log of the Crew, which contained a
statement of a profit-sharing or deferred salary plan. The plan
specified that the profit-sharing fund would apply only to the Babson
statistical organization and to employees who had been employed two
full calendar years. Edna Patton remained in the employ of the
organization until October 11, 1923, when she was discharged. She
brought an action to recover the deferred salary which she claims
to be entitled to during the years 1922 and 1923.
The contention of the president of the organization was that the
clause in the plan “ if any question arises as to the interpretation
or application of any feature of the plan, the decision of the president
shall be final” is a bar to her recovery.
The supreme court, however, said in part that “ it is plain that if
the clause in question is an agreement for arbitration it is invalid.
It is a general rule that an agreement purporting to oust the courts
entirely of their jurisdiction is void.” The court, however, did not
decide whether it was an attempt to oust the court.
Relative to the provision contained in the Log the supreme
court, speaking through Mr. Justice Crosby, said:
The provision in the Log of the Crew that “ anyone leaving
the employ of the organization between December 31, 1922, and
December 31, 1923, * * * shall forfeit all claim to any of the
36
DECISIONS
of
the
courts
above funds,” has no application to the plaintiff, who was discharged
in October, 1923. It follows that the jury could have found she was
entitled to recover the deferred salary for 1923.
The question remains whether the jury would have been warranted
in finding for the plaintiff on the first item of the verdict for deferred
salary for the year 1922. During this year she knew that she was
devoting a portion of her time to work on the teeth of students of the
Babson Institute, an organization separate from that of the defendent. The plan expressly recites that its profit-sharing part
applies only to the Babson Statistical Organization and not to
the Babson Institute or the Babson Park Co. She testified that the
only calendar year for which she had received deferred salary was
1922 and that in 1923 she was paid two-thirds of that salary. She
knew that one-third of her weekly salary had been paid to her
during 1922 by the Babson Institute, and it had amounted to $390.
She also testified that in 1923 Mr. Larson, the assistant cashier of
the defendant, gave her a card with figures on it and explained
t*o her that she would receive deferred salary on only two-thirds of
her pay because one-third of it came from the Babson Institute and
that no deferred salary would be paid on it. She then accepted the
deferred salary on two-thirds of the weekly salary without objection.
The plaintiff is not entitled to recover on the one-third of her
salary paid in 1922 by the Babson Institute. To hold otherwise
would be contrary to the express terms of the plan.
It follows that in accordance with the terms of the report judgment
is to be entered for the plaintiff under item 2 for $427.86 with interest
thereon from the date of the verdict.
Judgment was therefore given to Edna Patton subject to stipula
tion for a part only of the recovery sought.
C
ontract
of
E
m ploym ent—
Q
u a l if ic a t io n s
of
E
m ployee—
Con
—Atchison, T. & S. F. R. Go. v. State, Supreme
Court of Arizona (March 19, 1928), 265 Pacific Reporter, page 602.—
The Arizona Revised Statutes of 1913, Penal Code, paragraph 403,
provides that:
s t it u t io n a l it y
No railway company or corporation operating a line or lines of
railway within this State shall hire, employ, or permit any person
to act as telegraph or telephone operator for the purpose of receiving
or transmitting messages, orders, or other instructions, governing
or affecting the movement of any train or trains, unless said person
shall be at least 18 years of age and have had not less than one year’s
experience as a telegraph operator.
The Atchison, Topeka & Santa Fe Railway Co. had in its employ
one E. J. Tilson, a conductor, who on April 18, 1925, was in charge
of a freight train running from Gallup, N. Mex., to Winslow, Ariz.
The train stopped at Cheto, Ariz., a station without a telegraph
operator, in the late afternoon, and after waiting about an hour for
instructions Tilson went into a booth and called the train dispatcher
CONTRACT OF E M P L O Y M E N T
37
at Winslow. The train dispatcher thereupon gave the instructions
asked for by Tilson as to the movement of his train.
Tilson was 51 years of age and had been a conductor in the em
ploy of the railroad for 20 years. He had never been a telegraph
operator, although he had used telephones since he was a boy and
had had experience with railroads in taking orders respecting the
movement of trains.
The State of Arizona charged that the railroad willfully and un
lawfully permitted Tilson to act as a telephone operator for the
purpose of receiving an order governing the movement of a train
over its line of railway in Arizona, when Tilson had had less than
one year’s experience as a telegraph operator, required by the State
statute.
The Atchison, Topeka & Santa Fe Railway Co. was convicted of
violating section 403 in the Superior Court of Navajo County, Ariz.
The railroad company appealed to the supreme court of the State,
contending that the provisions of section 403 violated both the State
and Federal Constitutions. That it violated the Federal Constitu
tion because it deprived the railroad company of its liberty and
property without due process of law, and the State constitution be
cause the legislature had prohibited the enacting of a law granting
to any citizen, individual, or corporation any special privilege.
The State pointed out, however, on the other hand, that the statute
was adopted to promote the safety of the crew and passengers of
the train. The supreme court said that the only inquiry was whether
the provision of one year’s experience as a telegraph operator was a
reasonable or arbitrary measure.
The supreme court, in an opinion by Judge McAlister, rendered
on March 19, 1928, reversed the judgment of the lower court. The
court in the course of its opinion said in part as follows:
Its purpose being evident, the question arises whether its provi
sions are adapted to that end; that is, does it promote the safety of
the crew and passengers of the train for those handling telephone
orders affecting train movements to be telegraph operators with a
year’s experience? Just how such knowledge would make one more
efficient as a telephone operator does not appear. Neither in the act
itself nor in the evidence is there anything indicating that it would,
and that this is true is not strange, since it is clear that the ability to
hear or talk over the phone can in no way be enhanced by one’s
experience in sending or receiving messages by telegraph for a year
or even a longer period. Would it not be just as reasonable or just
as likely to produce the result the act seemingly intends to require
that a person receiving or sending telephone messages concerning
train movements must nave theretofore spent a year in some other
occupation, such, for instance, as that of mail clerk, section foreman,
bookkeeper., or traveling salesman, the duties of which, it will be
agreed, tend in no degree whatever to qualify him the better for
38
DECISIONS OF T H E COURTS
hearing or talking over the phone? Clearly it will be contended
by no one that experience in any of these pursuits, any more than in
telegraphy, would better equip a person to use the phone, and such
being true it is difficult to understand how it can be said that the
qualification prescribed, one year’s experience as a telegraph operator,
tends in any degree to accomplish or has any connection with the end
to be attained—the promotion of the safety of the crew and passen
gers of a train.
It follows that the means used to accomplish the end sought in
paragraph 403 are wholly unsuited to its attainment and, therefore,
that in so far as it requires one using the telephone to receive or
transmit messages or orders affecting the movement of trains to have
not less than one year’s experience as a telegraph operator it is wholly
foreign to the end it was intended to accomplish, and is therefore
unreasonable and arbitrary. Instead of producing the result desired
its only effect is to reduce to a very small number the class from
which those who use the telephone for receiving or transmitting or
ders or messages affecting train movements may be selected, and
while this alone would not render it obnoxious to the constitutional
provisions invoked, since it operates uniformly upon all of that class,
yet its effect is to make a classification founded upon an unreasonable
and arbitrary basis which renders it violative o f both the State and
Federal Constitutions.
Contract of E mployment—Removal
of
Railroad Shops—U nem
ployment—I njunction— Lawrence
et al. v. St. Louis-San Francisco
Railway Go., Supreme Court of the TJmted States {May 81, 1987),
Ifl Supreme Court Reporter, page 720.—By an Oklahoma act of 1917
(Compiled Laws 1921, secs. 3482-3485, 5548) a railroad was pro
hibited from removing its shops or division points which had been
located at any place within the State for five years or more without
first securing the permission of the corporation commission of the
State. The St. Louis-San Francisco Railway Co. desired in 1917 to
remove their shops from Sapulpa to Tulsa, Okla. Upon the com
plaint of the citizens of Sapulpa, the corporation commission issued
an order prohibiting such removal. The railroad company complied
with the order. Ten years later, while the restraining order was in
effect, the railroad company, without authority of the commission,
directed that the division point be changed to Tulsa. The citizens
of Sapulpa thereupon filed a motion for a hearing, and the commis
sion renewed the temporary restraining order.
Meanwhile the railroad company filed a suit in the District Court
of the United States for the Northern District of Oklahoma, and
charged that the act of the State violated the commerce, due process,
and equal protection clauses of the Federal Constitution* and that
the commission acted without authority.
CONTRACT
of
39
em ploym ent
A decree granting an injunction was given the railroad company,
enjoining the commission from hearing the cause pending before it,
from taking any other action with regard to it, and from making
or enforcing any order restraining the railroad from removing its
shops.
An appeal was taken to the United States Supreme Court, and
this court on May 31, 1927, reversed the decision of the lower court,
because the bill failed to state that the railroad company was in
danger of suffering such an irreparable injury as to justify the issu
ance of a temporary injunction. Mr. Justice Brandeis stated in part,
“ that the removal of the shops which had been located in Sapulpa
for a generation would probably affect property values seriously, and
might bring disaster in its train. It might ruin business. It might
result in unemployment. It might compel many of Sapulpa’s citi
zens to seek homes elsewhere. On application for an interlocutory
injunction such considerations are of weight.” Further, the court
held that u the respect due to the State demands that the need for
nullifying the action of its legislature or of its executive officials be
persuasively shown ” before a restraining order be issued.
C ontract
of
E
m ploym en t—
R
e m o v in g
P
roperty
of
L
aborers—
■
—State v. Hunter, Supreme Court of Louisiana {July 11,
1927), lilt Southern Reporter, page 76.—Henry Hunter was con
victed of going on the premises of a citizen of the State of Louisiana
in the nighttime without his consent, and of moving or assisting in
moving a tenant and his property in violation of a law passed in 1926.
Hunter appealed the case, contending that the law violated his
constitutional rights contained in the second section of article 4 of
the United States Constitution, that the citizens of each State shall
be entitled to all the privileges and immunities of citizens in the
several States, and violated also the provision that no State shall
make or enforce any law which shall abridge the privileges or im
munities of citizens of the United States, and the due-process clause,
and the equal-protection clause of the fourteenth amendment.
The Supreme Court of Louisiana on July 11, 1927, affirmed the
conviction of the lower court, stating that the law as enacted was a
valid exercise of a power granted to the State to protect its citizens,
and Hunter was not deprived of any rights guaranteed him by the
United States Constitution.
The case was taken by Hunter to the Supreme Court of the United
States, and that court affirmed the judgment of the Supreme Court
of Louisiana on December 12, 1927, on the ground that no Federal
question was presented.
T
respass
40
E
DECISION'S OF T H E COURTS
m ployers’
L
ia b il it y
— A
d m ir a l t y —
C
ontractor—
E
m ployee
—
Wallace v. United States (Draper Engine
Works Go., Interpleaded), District Court, Western District, Wash
ington, Northern Division ( October 1, 1926), 16 Federal Reporter
(2d), page SQ9.—William Wallace was employed as a machinist by
the Draper Engine Works Co. The engine company was under con
tract with the United States to perform repair work on the steam
ship West Gamibo, a Government owned and operated merchant
vessel, then in the port of Seattle, Wash.
On June 30, 1924, while Wallace was engaged in performing some
repair work in No. 3 hold of the ship he was injured. The owner
of the ship, the United States, on its own account was at the same
time doing some painting in No. 3 hold of the ship, directly over
the place where Wallace was employed. In arranging the scaffold
ing for the painting job, a heavy plank fell, striking Wallace on
the head, shoulder, and back, severely injuring him.
Wallace brought a suit against the United States and the engine
company, alleging negligence. The United States denied liability,
and contended that if liability existed, it was that of the contractor
and not of the owner, and also that the employee, Wallace, assumed
the risk of the employment, and was himself guilty of contributory
negligence.
The district court awarded a judgment in the sum of $25,000 in
favor of Wallace against the United States, and also in favor of the
interpleaded company. The pinion of the court was expressed by
Judge Neterer, saying in part:
S afe P
lace
to
W
ork—
The testimony does not disclose negligence on the part of the
libelant. He exercised due care and caution under the circumstances.
The conduct of the painters in the arrangement of the scaffolding,
and in changing and moving the same without notice to the libelant
of the changing condition, did not show reasonable care and caution.
The libelant was not required to exercise care to discover extraor
dinary dangers arising from the acts of the owner’s employees or of
the contractor, but had a right to assume that proper care would be
taken for his protection until advised.
The hazard created by the owner in the construction, arrangement,
and movement of the scaffolding in the manner shown, in view of
what was done by the libelant and the owner, can not be regarded
as of the ordinary risk of the employment assumed by the libelant;
* * * nor was libelant, under the circumstances shown, charged
with knowledge. * * * The libelant had a right to assume, in the
absence of a notice, that danger would not be increased, and that rea
sonably safe appliances would be used in carrying forward the work
and was not required to be constantly on the lookout for new changes
unknown to him.
Upon the pleadings and the proof, negligence on the part of the
employees or owner is fully sustained; and it also appears that the
41
e m p lo y e r s * l i a b i l i t y
employees were unskilled and inexperienced, and incompetent in
building and moving or changing scaffolding, and that such negli
gence and incompetence is the proximate cause of libelant’s injury.
No confirmation is needed by application of the rule of res ipsa
loquitur.
The contractor was bound to furnish libelant a reasonably safe
place in which to work. This duty was discharged until the place
was made unsafe by the owner, for which act, in the absence o f spe
cific stipulations, the owner is liable.
Employers’ Liability—Admiralty—Contractor—Fellow Serv
ant—Safe Place to Work— Seaman—Smith v. United States Dis
,
trict Court, Southern District of New York {July 18, 1924), case
affirmed {February 1 1927), 18 Federal Reporter {2d), page 110.—
,
Raymond O. Smith was a member of the crew on the steamship
Dochet. He was injured by falling through a hatchway while the
ship was being loaded at a dock in Brooklyn, N. Y., on August 29,
1921. Smith was third officer on the ship and was acting as a
checker of cargo. The loading of the ship was in charge of Brady
& Gioe (Inc.), stevedores. The foreman of the stevedoring concern
sent word to Smith to come on deck. At the time Smith was on top
of some bags of flour, and jumped down on the floor; he hesitated
a moment on account of the darkness and took a second step and
fell down the steps of the hatch, the cover of which was off.
Smith brought a suit in admiralty on the grounds that he was
not provided with a reasonably safe place in which to perform his
work and also on the failure to provide sufficient light.
The negligence in failing to provide a safe place was said by the
court not to afford a basis for a right of action unless the relation
of master and servant existed. Since Smith was not employed by
the stevedores, action against them must be dismissed.
The question remained whether the vessel was responsible. There
was no evidence that the hatch or its covers were defective, and
appropriate lighting fixtures were shown to have been furnished by
the ship’s owner, but, as there was no need for them at the place
where Smith was injured, they were not being used at the time.
The cover of the hatchways had been removed by the ship’s crew
who were fellow servants of Smith, and he, being third officer, knew
the custom and necessity as to hatchways being open while loading
or discharging a cargo and hence the court said that no right of
recovery from the owner of the ship existed.
The maritime law declares the fellow-service rule in force as to
“ all members of the crew, except perhaps the master,” and no lia
bility attaches for their neglect, although a seaman is entitled to
42
DECISIONS OF T H E COURTS
maintenance and cure whether the injuries were received through
negligence or pure accident. A decree in favor of the shipowners
and the other parties to the suit was directed in accordance with
these principles.
The case was appealed to the circuit court of appeals by Smith and
this court on February 21, 1927, affirmed without an opinion the
decree of the district court.
E mployers’ L iability—A dmiralty—Contributory Negligence—
Jurisdiction— Colonna Shipyard (Inc.) v. Bland, Supreme Court
of Appeals of Virginia (Jwne H , 1928), 143 Southeastern Reporter,
page 729.—William H. Bland was employed as a ship carpenter by
the Colonna Shipyard (Inc.), of Virginia. While working on the
steamship Gloucester, afloat at the repair yard of the company in
the Elizabeth River, Va., he sustained injuries by falling from a
ship’s ladder, while acting in obedience to orders of his employer
and in the course of his work. Bland was required to go into the
hold of the ship to build foundations for ammonia tanks, to be used
in connection with refrigeration. The way of access provided for
him from the deck through the hatchway to the hold of the ship
was by a ladder. The ladder was old, one side of it had broken and
was repaired by splicing. While descending the ladder with his
tool box weighing between 25 and 30 pounds the ladder, because of
its structural weakness, buckled on its weak side and caused Bland
to fall.
He brought an action in the law and chancery court of the city of
Norfolk, Va., against the Colonna Shipyard (Inc.), alleging that
the employer failed to furnish a reasonably safe way for passing
and repassing to the hold of the ship. This court awarded a judg
ment to Bland. The company then carried the case to the Supreme
Court of Appeals of Virginia.
The chief point for the assignment of the case to a higher court
was upon the proper construction of the statute, giving to the United
States district courts exclusive original jurisdiction of all civil cases
of admiralty and maritime nature, saving to suitors, in all cases, the
right of a common-law remedy, where the common law is competent
to give it. The statute so saving the common-law remedy was reen
acted in the Judicial Code (secs. 24 and 256) and preserved to
litigants a common-law remedy in the State courts.
The contention of the company was that the relief to be afforded
in the Virginia courts when pursuing the common-law remedy which
is saved or allowed, must be according to the rules of the common
law, so that contributory negligence of the employee is a complete
defense in such an action.
e m p l o y e r s ’ l ia b il it y
43
The appeals court held that the instruction given by the trial court
was correct. The court in the opinion cited the latest case on the
subject—Messel v. Foundation Co., 274 U. S. 427, 47 Sup. Ct. 695,
and continued in part as follows:
When one suffers an injury under such circumstances as to be a
maritime tort, his rights are fixed by the admiralty law; but he may
choose the forum in which to assert those rights. He has his remedy
at common law, but his recovery and the precise relief to be afforded
him are determined by the admiralty law which is applied, whether
he sues in the common law or the admiralty court. He may pursue
his remedy at common law in the State court, but that court must
administer the iadmiralty law. He may select his court, but can
not add to or change his rights or the defendant’s rights, which are
the same in both forums.
The trial court, in this case, observed this rule, refused to instruct
the jury that contributory negligence would be an absolute bar to
the action, but instructed them, on the contrary, in accordance
with the admiralty rule, that if they believed from the evidence that
the injuries received by the plaintiff were the result of negligence
on the part of both the plaintiff and the defendants, they should
apportion the loss against both the plaintiff and the defendants, and
that such negligence on the part of the plaintiff should mitigate the
damages which they would otherwise find for the plaintiff.
Relative to the contention that the lower court erred in refusing
to set aside the verdict because it was contrary to the law and the
evidence, the court said in part:
The claim is that there can be no recovery because there is no
evidence that the defendant was guilty of any negligence which was
the proximate cause of the injuries which the plaintiff sustained.
This contention is based upon what is generally spoken of as the
“ simple ” or “ common tool ” doctrine.
This principle is well settled, but it can not be applied in this
case. The defective ladder which caused the injury m this case is
not such an appliance; not a tool. On the contrary, it is rather a
place, the equivalent of a staircase, a way which the plaintiff was
directed by his employer to use as his means of access to and from
the hold of the vessel, his place of work.
A case illustrating the principle applicable in the instant case was
cited:
In Virginia Bridge & Iron Co. v. Jordan, 143 Ala. 603, 42 So.
73, it appeared that the plaintiff was injured passing over or along
the trestle of the defendant company to the place where he had
to work in constructing a bridge. It was necessary, in order to do
his work, to pass over a plank or piece of timber connecting the
two parts of the work; the plank was placed loosely upon the trestle,
unfastened, and while attempting to pass over the plank, it tilted
and the plaintiff was thereby thrown to the ground and seriously
injured.
44
DECISIONS OF T H E COURTS
That case illustrates the principle applicable here. It was held
to be the duty of the employer there, as here, to provide a reason
ably safe way for passing and repassing. The ship and ladder here
were under the sole control of the defendant for the purpose of
making the repairs, and of course there can be no doubt about the
duty of the employer not to expose the employee to unnecessary
danger.
The ladder cases in which it is held that the employer has dis
charged his duty if he supplies the servant with proper material
for the construction of the ladder, of which he has custody and which
he is to use, have no application. Nor do those cases apply in which
the ladder itself is supplied by the master ready for the use of
the servant. The master’s duty is discharged in such case if the
ladder is reasonably safe when delivered to the employee for use.
I f it thereafter becomes unsafe in the course of such use, the servant
knows better about this than the master and he can not charge the
master with having any knowledge superior to his own.
As we have indicated, the principle which controls here is that
which imposes upon the master the duty to provide a safe place
in which his servants are required to work, and this duty extends
to providing a reasonably safe entrance and exit to and from the
place of work.
After referring to several other cases involving in general the
same principle, the court concluded as follows:
We have no intention by citing these cases of impinging to the
slightest degree upon the “ simple tool ” doctrine, or the line of
cases in which employees having control of and using movable
ladders were denied the right to recover. This ladder, while mov
able within the hatchway, was in no sense an appliance intrusted
to the plaintiff here for his use in connection with his work. He
had not constructed it; it was not in his custody; it was accessible
to others; he had no reason to doubt its sufficiency and was not
charged with any specific duty to inspect it. It was like a stairway,
merely his means of access to his work in the hold of the ship, which
his employer directed him to use, and this direction imposed upon
the employer the duty to exercise reasonable care to see that it was
a reasonably safe means of access. Certainly the court can not say,
as a matter of law, that the defendant was free from negligence.
At most all that could be urged to relieve the defendant of re
sponsibility is that the questions of original and contributory negli
gence here arising were questions of fact to be submitted to the jury.
This has been fairly done in this case.
The Special Court o f Appeals of Virginia on October 30, 1928, affirmed the
lower court awarding a judgment of $35,000 to an acetylene welder who re
ceived an electric shock while installing new boiler tubes in a ship. The
court held that the State workmen’s compensation act was inapplicable, and
that the employee did not assume the risk of injury from use of a wet electriciight cord, where no warning was given him. (Colonna Shipyard (Inc.) v. Dunn
(192S), 145 S. E. 342.)
45
EM PLOYERS ’ L IA B IL IT Y
Employers’ Liability—Admiralty—Federal Statute—Fellow
Servants—Longshoreman Working on Ship—Hammond Lumber
Go. v. Sandin, Circuit Court of Appeals, Ninth Circuit February
, 1927), 17 Federal Reporter {2d), page 760.—One Oscar Sandin,
while working as a stevedore stowing lumber on a vessel owned by
the Hammond Lumber Co. at Vancouver, Wash., sustained bodily
injuries. He brought an action against the lumber company and
recovered the sum of $7,000. The company appealed the award.
{
14
From the evidence it appeared that lumber was being lowered from
the dock by means of slings. The work was being directed by the
first mate who, becoming dissatisfied with the size of the loads which
were being sent down, ordered that they be made larger. In com
pliance with that order two of the sailors on the dock made up a
load “ possibly 6 feet square or 7 feet square, all the sling would
go around.” The sling was loaded about twice the usual quantity,
and during the transfer from the dock to the deck it came apart,
several of the boards striking and injuring Sandin.
Sandin contended that the mate, in giving the order to increase
the size of the sling loads of lumber was a vice principal or represent
ative of the master, overseeing and directing the work; and that
such order had for its effect to make the place of work dangerous,
with consequent failure on the part of the master to provide a safe
place to work for his employees. The company while conceding it to
be the duty of the master to provide a reasonably safe place to work,
denied that the order given by the mate was negligent, and con
tended that irrespective of that question, it was an order given by
the mate in the execution of work in which both were engaged as
fellow servants and that the giving of the order, if improvident,
was a negligent act of a fellow servant, for which the master could
not be held responsible. The court of appeals in affirming the award
of the lower court said in part:
We are of the opinion that, under the rule adopted in this juris
diction, the order of the mate was no more than one relating to the
execution of work in which both he and the plaintiff were engaged
as fellow servants; * * * but we think that the question becomes
immaterial in this case, since the evidence clearly established that the
negligence which caused Sandin’s injuries was attributable either
to the mate in the giving of his order, or to the faulty construction,
by the sailors, of the sling load which collapsed, and in either case
the defendant would be liable. (International Stevedoring Co., v.
Haverty (decided October 18, 1926, by the Supreme Court of the
United States), 47 Sup. Ct. 19.)
It was held in that case that a longshoreman is a seaman within
the meaning of section 33 of the merchant marine act of 1920 (Comp.
St., sec. 8337a), which section provides that “ any seaman who shall
suffer personal injury in the course of his employment may, at his
103151°—30----- 5
46
DECISIONS OF T H E COURTS
election, maintain an action for damages at law, with the right of
trial by jury, and in such action all statutes of the United States
modifying or extending the common-law right or remedy in cases
of personal injury to railway employees shall apply.” It is admitted
that the defense that an actionable injury was caused by the negli
gence of a fellow servant was abrogated by the Federal railroad
employer’s liability act (Comp. St. secs. 8657-8665), and it is now
apparent that although, under the view of the law prevailing in this
jurisdiction at the time, plaintiff in error was entitled to the directed
verdict requested, he was not in reality so entitled, and the refusal
of the trial court to direct the verdict becomes immaterial. It is also
clear that the instructions to the jury, under which they were not
permitted to find a verdict for the plaintiff if the negligent act of
which he complained was that of a fellow servant, placed upon him
a more onerous burden than the law warranted.
E mployers’ L iability — A dmiralty — J urisdiction — Messel v.
Foundation Co., Supreme Court of the United States (May 31,
1927),
Supreme Court Reporter page 695.—Robert L. Messel
was employed by the Foundation Co. during September, 1919, as a
helper to a boilermaker, and while so engaged he was sent with a
boilermaker on board the steamship La Grange, then afloat on the
Mississippi River at New Orleans, to add 8 feet to the smokestack
of the steamer. While engaged in this work Messel was brought
directly over the mouth of the steam escape pipe running from the
engine room and while in this position scalding steam was allowed
to escape from the pipe, inflicting serious injuries upon him.
On December 20, 1920, he filed suit for $10,000 damages, because
of these injuries in the civil district court for the parish of Orleans,
against his employer, the Foundation Co., a New York corporation
doing business in Louisiana.
The employer contended there was no legal cause of action and
that Messel must bring his action under the State workmen’s com
pensation law. On July 19, 1922, the court decided in favor of the
employer. On appeal the Court of Appeals of the Parish of Orleans
decided that if the petitioner’s right of action was not under the
workmen’s compensation act the State courts had no jurisdiction.
The Supreme Court of Louisiana refused to review the case, May 25,
1925, on the ground that the judgment of the court of appeals was
correct. The case was then taken to the Supreme Court of the United
States. That court on May 31, 1927, reversed the State courts and
held that Messel had a legal right to sue in the State courts.
The court of appeals in Louisiana had held that the suit was based
on section 2315 of the Revised Code of Louisiana, which offers a
remedy in the State court for “ every act whatever of man that causes
damage to another, obliges him by whose fault it happened to repair
it,” but as the Louisiana workmen’s compensation act was made es-
em ployees’
47
l ia b il it y
elusive by its terms, it prevented the operation and application of
section 2315, granting what was equivalent to a common-law remedy
in the enforcement of such a maritime claim. Speaking through
Chief Justice Taft, the Supreme Court of the United States said:
The State court’s ruling, as we conceive it, was not that section
2315 was not broad enough to include a suit for a maritime tort as
between master and servant, if the Federal law permitted it, but
that the Federal law does not permit it, and therefore such a suit can
only be maintained in a Federal admiralty court. That is an errone
ous view of the rulings of our court as to the application of work
men’s compensation acts. Section 2315 offers a remedy in the State
court for any act whatever of man that causes damage to another
and obliges him by whose fault it happened to repair it. That in
sides everything except what the workmen’s compensation act bars
from recovery under this general section. The workmen’s compenation act does not bar from recovery suit for damages against an
other for a maritime tort. Clearly, therefore, suit for such a tort is
not excluded from the jurisdiction of the State court under section
2315 unless the Federal law forbids. To hold that the Federal law
forbids would be to deprive the petitioner in this case of the right
secured to him under judiciary act 1789, section 9, as now contained
in paragraph 3 of section 256 of the Judicial Code (Comp. St., sec.
1233), which gives exclusive jurisdiction in courts of the United
States of all civil causes of admiraltv and maritime jurisdiction,
“ saving to suitors in all cases the riglit of a common-law remedy
where the common law is competent to give it.”
E
m ployers’
L
ia b il it y —
A
d m ir a l t y —
N
e g l ig e n c e
— E
x p l o s io n
—
Petition of Clyde S. S. Co., United
States District Court, Southern District of New York (July t6,
1926), 16 Federal Reporter (2d), page 930.—Adolph Beer was an
officer of the American steamer Inca. While the ship was lying at
a dock in San Pedro de Macoris, Dominican Republic, an explosion
of gunpowder occurred, killing Beer and several others.
Beer’s widow brought an action against the owner of the ship
charging negligence. The case was decided in the Supreme Court
of the State of New York, in favor of the widow. The judgment
was set aside and a new trial ordered.
Meanwhile the steamship company instituted proceedings in the
district court of New York. The widow defended her claim, alleg
ing that the steamship company (1) failed to maintain the vessel in
a reasonably safe and seaworthy condition; (2) failed to properly
warn the crew of the presence of gunpowder; (3) failed to take suf
ficient, proper, and customary precautions to safeguard the members
of the crew.
The steamship company contended that Beer was guilty of con
tributory negligence. At the time of the accident the crew was en
F
ederal
S tatu te— S e a m a n —
48
DECISION’S OF TH E COURTS
gaged in transferring the gunpowder, which was in cans packed in
boxes. Hord, a member of the crew, stated that as the boxes were
being stacked on deck he noticed powder trickling from one of the
cases, and that he called the captain’s attention to the fact. He fur
ther stated that the master of the ship instructed Beer to cover the
powder with a tarpaulin and to watch it. Hord also testified that
one of the members of the vessel’s discharging gang lighted a match
and dropped it on the deck. Immediately thereafter the explosion
occurred. The court, in the course of its opinion, said in part:
The fact that the powder was known to be scattered on deck, or
on the boxes, and was allowed to remain, was an act of negligence.
Cargo was being discharged in the immediate vicinity, and, consid
ering the possibility of a friction spark being created irom the con
tact of cargo with the iron deck, or the carelessness of a workman,
the presence of the powder was a constant menace to every one on
board. Upon the testimony, I am forced to find that the explosion
took place in the manner described by Hord.
The probf that the captain was aware of the loose powder stands
uncontradicted. This, with what has already been said, is enough
to inflict liability upon the vessel. Had there been no powder on
the deck, it is probable that the protection sought to be secured by
covering the cans with a tarpaulin would have been sufficient for the
occasion. But, if the testimony of Hord is to be believed, the dis
aster was all but invited. Undeniably, there are some differences in
detail in the evidence, but I do not think them sufficient to discredit
the essential facts to which Hord has testified.
As for contributory negligence on the part of Beer, it is to be
noticed that there is no evidence that he was advised that powder
had leaked from one of the cases, nor that he saw it, or could readily
have done so. I find, therefore, that his contribution to the accident
is not established.
Relative to the amount of damages to which the widow was
entitled the court said that:
At the time of death, Beer was 32 years of age, and had been going
to sea for 14 years. He held a master’s license for ocean-going ves
sels, but had never sailed a ship under his own command. His
salary was $132 per month, but he sometimes made from $40 to $50
per week. His remittance to his wife for the support of herself
and 5-year-old child was in the neighborhood of $35 per week.
Under the mortality tables, Beer had an expectancy of about 34
years. With these facts upon the record, there can be little doubt
that the award to be made to claimant should not be less than
$25,000. It will be fixed at that sum.
E m ployers’
L i a b il it y — A d m ir a l t y — R es
J u d i c a t a — Baltimore
8. S. Co. et al. v. Phillips, Supreme Court of the United States
{May 16, 1927),
Supreme Court Reporter, page 600.—Vernon
EM PLOYERS* L IA B IL IT Y
49
Phillips, an infant, 18 years of age, was employed on board a vessel
operated by the Baltimore Steamship Co. He was injured by the
fall of a strong back used to support a portion of the hatch. Phillips
contended that the injury was caused by the negligence of the steam
ship company and their employees and sued for $15,000 in the
District Court of Maryland. He contended also that if negligence
should not be established, that he be given wages, maintenance, and
cure. The district court held that the accident was not due to the
negligence as stated by the boy and refused to award damages, but
granted the sum of $500 as the cost of maintenance and cure.
A second suit for damages was brought in the Supreme Court
of the State of New York, but later removed to the Federal Dis
trict Court for the Eastern District of New York. The employer
contended that the decision of the Maryland court barred a further
suit for damages at any time in the future. The court ruled in favor
of the employee. The United States Circuit Court of Appeals
affirmed the judgment, holding that the second suit for damages
was based upon a different cause of action. The case was then taken
to the Supreme Court of the United States. That court reversed
the judgment of the circuit court and held that the facts relative
to the case gave rise to a single cause of action for damages, and
that the judgment rendered in the first case is an absolute bar to
the subsequent action between the same parties, not only in respect
of every matter which was actually offered to sustain the demand,
but also as to every ground of recovery which might have been
presented.
Employers’ Liability—Admiralty— Seamen—Injury— Williams
v. Oceanic Stevedoring Go., District Court, Southern District of
Texas (August 8, 1928), 27 Federal Reporter (2d), page 905.—E. C.
Williams had been awarded a judgment against the Oceanic Steve
doring Co., of Galveston, Tex., for injuries received in the course of
his employment. The Oceanic Stevedoring Co., on August 3, 1928,
requested the District Court for the Southern District of Texas to
set aside the final judgment, on the ground that Williams at the
time of his injury was at work on a foreign vessel, one registered
under the laws of Italy and flying the Italian flag, and that section
33 of the merchant marine act, commonly called the Jones Act did
not apply to longshoremen at work on a foreign vessel. Williams
contended that the case having gone to trial and judgment, without
the point being made, that it was too late now to present it. The
court, however, granted permission to reopen the case. Both sides
presented cases to sustain their position.
50
DECISIONS OF T H E COtJRTS
The district court in an opinion by Judge Hutcheson held that
an injured longshoreman at work on a foreign vessel was entitled
to recover for injuries under the merchant marine act, and therefore
denied the motion to set aside the judgment.
The court said in part as follows:
Plaintiff’s position is, and his cases sustain him in it, that the
question of whether a vessel on which an injury occurs to a long
shoreman in American waters is of foreign or American registry
or ownership, is wholly immaterial, where there is no privity of
contract between the longshoreman and the vessel, for it is the law,
that, in the absence of privity of contract between the plaintiff and
the respondent, changing plaintiff’s rights, his rights in an action
ex delicto are those given him by the country in whose territorial
waters the injury occurred and not those given by the country whose
flag the ship may at that time fly.
At first statement, plaintiff’s position seemed to me sound, and
further reflection serves but to more firmly establish its soundness.
A consideration of the state of the admiralty law before the passage
of the Jones Act, and of the sweeping effect of that act upon the
rights of seamen in fact (Panama R. R. v. Johnson, 264 U. S. 375,
44 Sup. Ct. 391, 68 L. Ed. 748) and in effect (International Steve
doring Co. v. Haverty, 272 U. S. 50, 47 Sup. Ct. 19, 71 L. Ed. 157),
establishes, I think, beyond question, that the denial to longshore
men, seamen only in effect, o f the benefits of the act merely because
of the fact that the injury occurred on a ship of foreign registry
with which he had no privity whatever, is a strained and unreason
able application of it, whatever may be said of the correctness of
those decisions which deny its application to a seaman in fact having
privity with the foreign ship.
There is much, I think, to be said for the view that, Congress
having created an admiralty jurisdiction in the courts of the United
States to entertain personal injury suits by seamen, in the absence
of some definitive restriction ox that jurisdiction, it should be given
effect wherever the sovereignty of the United States extends, includ
ing certainly its own territorial waters, over ships of any registry,
irrespective of the registry of the ship on which the injury occurs.
Employers’ Liability—Assumption o f Risk— A b r o g a t i o n o f
Defenses— Statute o f Limitations— Baltimore & Ohio Southwest
ern Railroad Co v. Carroll, Supreme Court of Indiana (October 0,
1928), 163 Northeastern Reporter, page 99.—The history of this
case dates back to October 24, 1917, when Guerney O. Burtch re
ceived injuries while assisting in unloading a heavy machine from
a freight train of the Baltimore & Ohio Southwestern Railroad Co.
at Commiskey, Ind. An action was brought on February 20, 1918,
in the Jackson Circuit Court of Indiana by Burtch against the
Baltimore & Ohio Southwestern Railroad Co. A judgment was
.
em ployers’
l ia b il it y
51
rendered on May 28, 1918, in favor of Burtch in the sum of $8,000.
The railroad company appealed to the Supreme Court of Indiana,
where the judgment was affirmed on March 14, 1922. (See B. L. S.
Bui. No. 344, p. 95.)
Burtch died from the injuries on February 10, 1921, and his
widow was appointed administratrix of his estate and was substi
tuted as a party in the subsequent legal proceedings. (The name
of the widow was changed to Carroll by her marriage about three
years after Burtch’s death.)
On an application to the Supreme Court of the United States
by the railroad company for a review of the case the judgment of
the State court was reversed January 7,1924. (See B. L. S. Bui. No.
391, p. 93.) In accordance with the mandate of the United States
Supreme Court this court reversed the judgment of the Jackson
Circuit Court and directed that a new trial be granted. This was
done and on March 5, 1924, the widow filed an amended complaint.
The first paragraph (which did not go to the jury) charged a cause
of action under the Indiana employers’ liability act, the second was
an action at common law, and the third was based upon the Federal
employers’ liability act. The railroad company answered the com
plaint by a general denial. A trial was held in the Jennings County
Circuit Court and a judgment of $15,000 was awarded to the widow.
The railroad company requested a new trial, which was overruled
on June 1, 1925. Upon appeal to the State supreme court on Aug
ust 28, 1925, the case was transferred to the appellate court on Feb
ruary 26, 1926, and on January 13, 1927, the case was retransferred
to the Indiana Supreme Court. Two questions of law were
assigned by the railroad company:
(1) Is the action for (a) the injury or (&) the death of Burtch
barred by the statute of limitations because the amended complaint
thereon was not filed within two years? (2) Are the facts proven
such as show as a matter of law an assumption of risk by appellee’s
decedent which bars a recovery?
The Supreme Court of Indiana, speaking through Judge Martin,
regarding the question whether the action was barred by the statute
of limitations, said that—
Where additional or amended paragraphs of complaint are filed
after the lapse of the statutory limitation which are founded upon
the same transaction as that sued on in the original complaint, and
which merely expand or amplify what has already been alleged,
they relate back to the commencement of the action, at which time
the statute of limitations was arrested, and they are not affected
by the intervening lapse of time. And an amendment to a com
plaint alleging that the parties were engaged in interstate commerce,
52
DECISIONS OF T H E COURTS
but alleging no different state of facts, does not introduce a new or
different cause of action, and hence may be made although the
limitation period had elapsed. It follows that the action for the
injury and for the death of Guerney O. Burtch, sued on in appellee’s
amended complaint, is barred by neither the Federal nor State
statutes of limitation.
As to the second assignment the court said that—
The Federal employers’ liability act, supra, relating to the lia
bility of common carriers by railroad to their employees suffering
injuries while engaged in interstate commerce, abrogates the common-law rule under which the negligence of a fellow servant is a
bar to recovery; * * * its effect being to make the negligence
of a fellow servant the negligence of the employer.
It eliminates contributory negligence as a bar to recovery, by pro
viding as a rule of comparative negligence that damages shall be
diminished by the jury in proportion to the amount of negligence
proximately attributable to the injured employee, and eliminates
entirely the defense of contributory negligence in cases where the
violation by the carrier of any (Federal) statute enacted for the
safety of employees proximately contributed to the injury. It does
not, however, change the rule that an employee shall be held to have
assumed the risk of his employment, except where there is a violation
by the carrier of a (Federal) statute enacted for the safety of em
ployees that proximately contributed to the injury or death of such
employee.
The risk of his employment that the employee assumes is the ordi
nary, usual, obvious, and unavoidable dangers and perils naturally
incident thereto, so far as these are not attributable to the employers’
negligence. The defense of assumption of risk, like that of contribu
tory negligence, is based upon the knowledge and appreciation of the
servant of the danger causing the accident, and knowledge is pre
sumed as regards the usual and ordinary risks.
The risk resulting from the negligence of the employer will also be
assumed by the employee when, with knowledge thereof and appre
ciation of the danger resulting therefrom, he continues his employ
ment without objection, and is thereafter injured by reason of such
negligence, and knowledge of the negligent conduct and resulting
danger will be presumed when such conduct and danger are so patent,
open, obvious, or apparent that an ordinary careful person under the
circumstances would observe and appreciate them. But if the em
ployee had no notice or knowledge of the peril, or by the exercise of
reasonable and ordinary care he could not have known of it, he can
not be held to have assumed the risk.
The employee does not assume the risk of a defect in an appliance
unless he knew of the defect and knew that it endangered his
safety, and of which defect the employer knew or for which he was
responsible.
The evidence in the case at bar does not conclusively show, nor
does it show at all, that the risk of injury was the ordinary and usual
risk and peril incident to decedent’s employment. There is evidence
to show that the risk was extraordinary, in the sense in which that
EM PLOYERS ’ L IA B IL IT Y
53
word has been used in the cases, and arose out of the negligence of
the employer’s conductor, was unknown to appellant, and was not a
risk whicii he was bound to appreciate or take notice of. It was
therefore, under proper instructions, a question for the jury.
The judgment of the Jennings County Circuit Court was therefore
affirmed.
N o t e . — This case w a s reversed by the United States Supreme Court, February
4, 1930 (50 Sup. Ct. 182.)
Employers’ Liability—Assumption
of
Risk—Car Checker—
Toledo, St. L. & W. R. Go. v. Allen, Supreme Cowrt of the United
States {February 20,1928), 4S Supreme Court Reporter, page 215.—
Hilbert S. Allen was employed as a car checker by the Toledo, St.
Louis & Western Railroad Co. On October 27, 1922, while so em
ployed in the railroad yard at Madison, 111., he was struck and in
jured by a shunted car. Allen brought an action against the railroad
company in the circuit court of St. Louis, Mo., seeking damages under
the employers’ liability act. He alleged that he was injured by reason
of the failure of the railroad company to maintain an adequate space
between the tracks in the railroad yard, and also for the failure of
other employees of the company to warn him of the approach of the
car. The lower court returned a verdict in favor of Allen. The
railroad company thereupon carried the case to the Supreme Court of
Missouri, contending that there were not sufficient facts to warrant a
determination of the case in favor of Allen. The judgment of the
lower court was affirmed by the higher court. The case was then car
ried to the Supreme Court of the United States by the railroad com
pany. This court reversed the State court, holding that Allen as
sumed the risk of the employment, saying, through Mr. Justice
Butler, in part as follows:
The act of Congress under which plaintiff seeks recovery took pos
session of the field of liability of carriers by railway for injuries
sustained by their employees while engaged in interstate commerce,
and superseded State laws upon that subject. This case is governed
by that act and the principles o f the common law as applied in the
courts of the United States. The plaintiff can not recover in the
absence of negligence on the part of defendant. And, except as speci
fied in section 4 of the act (45 U. S. C. A., sec. 54; Comp. St., sec.
8660), the employee assumes the ordinary risks of his employment,
and when obvious or fully known and appreciated by him, the extraor
dinary risks and those due to negligence of his employer and fellow
employees. Defendant did not owe to plaintiff as high a degree of
care as that due from carriers to their passengers or others coming
on their j>remises for the transaction of business. The reason for the
distinction is that plaintiff’s knowledge of the situation and the
54
DECISIONS OP T H E COURTS
dangers existing because of the narrow space between the tracks was
at least equal to that chargeable against the defendant.
The rule of law which holds the employer to ordinary care to
provide his employees a reasonably safe place in which to work did
not impose upon defendant an obligation to adopt or maintain any
particular standard for the spacing or construction of its tracks and
yards. Carriers, like other employers, have much freedom of choice
in providing facilities and places for the use of their employees.
Courts will not prescribe the space to be maintained between tracks
in switching yards, nor leave such engineering questions to the uncer
tain and varying opinions of juries. Having regard to plaintiff’s
knowledge of the situation, it is clear that the evidence when taken
most favorably to him is not sufficient to warrant a finding that
defendant failed in any duty owed him in respect of the space be
tween the tracks.
In any event plaintiff assumed the risk. He was familiar with
the yard and the width of the space between the tracks and knew
that cars were liable to be shunted without warning to him. The
dangers were obvious and must have been fully known and ap
preciated by him.
E mployers’ L iability—A ssumption of Risk—Contributory
Negligence—Death—Negligence— Burgess v. North Carolina Elec
trical Power Co., Supreme Court of North Carolina (February 23,
1927), 136 Southeastern Reporter, page 711.—John H. Burgess was
employed as a lineman for the North Carolina Electrical Power Co.
He was killed when he fell from a pole which he was climbing while
in the performance of his work as a lineman.
The widow of Burgess brought an action in the Superior Court
of Buncombe County against the power company, alleging that the
pole from which her husband fell was defective, in that at the time
it was selected for use in the power transmission line it was too soft to
hold the spikes the deceased used in climbing the pole; that when
he had climbed the pole a distance of 20 or 25 feet from the ground,
the spike upon which he was supporting himself tore loose from the
pole, thus causing him to fall and sustain the injuries from which
he died. The widow also alleged that the company knew, or could
have known had they made a reasonable inspection at the time of
its selection, that the pole was then defective; that the company was
negligent in using such a defective pole and that such negligence
was the proximate cause of the fall, resulting in the fatal injuries.
A judgment was given the widow in the superior court. The
power company carried the case to the Supreme Court of North
Carolina, denying that the pole was defective or that they were
negligent in selecting and using the pole.
em ployees’
l ia b il it y
55
The State supreme court affirmed the judgment of the lower court,
saying in part:
It is ordinarily the duty of the employer to make a reasonable
inspection of the appliance or instrumentality, at least at the time
of its selection, in order to determine whether or not it is free from
defects discoverable by such inspection. A breach of this duty is
negligence, and, if such breach results in damage, the negligence is
actionable.
The evidence in the instant case tended to show that the defect in
the pole which caused plaintiff’s intestate to fall existed at the time
the pole was selected by defendant’s foreman for use in the line in
process of construction, and that it could have been discovered by an
ordinary inspection. The foreman selected the pole, and directed
plaintiff’s intestate and other employees of defendant to use the pole.
Before selecting said pole, it was the duty of defendant’s foreman
to make a reasonable inspection of the pole, having in mind that
linemen in the employment of defendant would be required to climb
the pole after it was installed by using spikes strapped to their feet.
The failure to make such inspection, if found by the jury, was negli
gence, and defendant is liable for damages resulting from such negli
gence. It can not be held, upon all the evidence, as a matter of law,
that plaintiff’s intestate by his own negligence contributed to his
injuries, or by his contract of employment assumed the risk of such
injuries. Issues involving these defenses were properly submitted to
the jury.
E mployers’ L iability—A ssumption
Negligence—Negligence—Safe Place
B isk—Contributory
W ork— Sanders v. A r
of
to
mour <&Go., of Delaware, et al., Court of Appeals, Springfield, Mo,,
(February 5, 1927), 292 Southwestern Reporter, page 44^.— Mrs.
W. J. Sanders was employed in the tipping room of the poultry
department of Armour & Co. at its plant in Springfield, Mo. She
was injured on July 12, 1924, when she slipped and fell on the floor
of the room in which she was working. The floor of the tipping
room had been sprayed with a disinfectant composed of lime and
water, and the substance had become so thick on the floor that it
made it slippery and dangerous to walk upon. Mrs. Sanders, while
in the act of crossing the floor with some dressed poultry, in the
performance of her duties, received injuries to her hip and spine,
from which cause this action arose.
An action was brought by the husband of Mrs. Sanders in the
Circuit Court of Greene County, Mo., against the Armour Co., for
damages for the loss of aid, services, and the companionship of his
wife. It was alleged that the company was negligent in permitting
the condition of the floor to exist. The circuit court returned a
judgment in favor of the injured employee. The company appealed
the case to the court of appeals, contending that the condition of the
56
DECISIONS OF T H E COURTS
floor was incident to its business, and hence the accident and subse
quent injury established no liability on their part; that whatever
the condition of the floor, the employee knew of that condition and
continued to work until noontime of the day she was injured without
complaint or request that the workplace be rendered safer, and
hence she should be conclusively presumed to be guilty of contribu
tory negligence, barring recovery. The appellate court affirmed the
judgment of the lower court and in answering the contention of the
company said in part:
As to the first proposition, which is merely the doctrine of as
sumption of risk, it may be taken as established that for sanitary
purposes it was necessary to whitewash the floor. This does not
mean, however, that it was necessary or an incident to the carrying
on of defendant’s business, that the floor should be wet or caused to
be slippery while employees were at work. The evidence is that the
whitewashing could be done and usually was done when the em
ployees were not at work and in time to dry before their work com
menced. I f the danger could, by exercise of ordinary care, have been
obviated by the master, then it was not an incident to the business.
The fact that sanitation was an incident to defendant’s conduct of
its plant would not relieve it of the duty to exercise ordinary care in
furnishing plaintiff’s wife with a reasonably safe place in which to
work. Under the law of this State, plaintiff’s wife did not assume
risks brought about by defendant’s negligence, although she may
have had knowledge thereof and continued to work without com
plaint.
The real question is whether defendant was guilty of negligence.
In other words, could defendant, with knowledge of the condition
and in the exercise of ordinary care, have anticipated that there was
a reasonable probability an employee might be injured because of the
act of defendant in spraying the floor with a lime solution so that
it was wet and slippery at the place where and during the time when
its employees were at work?
In the case at bar, defendant knew plaintiff’s wife, together with
some 30 other employees, were required to make frequent trips across
this floor in carrying the dressed chickens to the checking desk; also
the fact that the employees had knives in their hands used in their
work added somewhat to the danger of walking on the floor, because
the employees necessarily had to guard against coming in contact
with the knives, as the evidence shows. The spraying of the floor,
under such circumstances, so that during the time these women were
at work the floor was slippery with wet lime placed thereon by de
fendant’s servants, in our opinion, made a question for the jury as
to whether defendant, in the exercise of ordinary care, had reason to
anticipate an employee might, with reasonable probability, be injured
thereby.
On the question of contributory negligence, the mere fact that
plaintiff’s wife knew of the slick condition of the floor does not
convict her of contributory negligence as a matter of law. In order
to be chargeable with contributory negligence as a matter of law
57
E M P L O Y E R S 1 LIA B IL IT Y
the danger attending the work must have been so obvious and threat
ening that no reasonably prudent person would have encountered it.
E
m ployers’
L
ia b il it y —
A
s s u m p t io n
of
R
is k —
D
am ages—
N
e g l i
Woodley Petroleum Co. v. Willis,
Supreme Court of Arkansas (January 17, 1927), 290 Southwestern
Reporter, page 958.—A. B. Willis was employed as a derrick man
by the Woodley Petroleum Co. of Arkansas. In the perform
ance of his duties as a derrick man he was injured when he fell from
the “ walking ” beam of the derrick, which was covered with oil and
mud. When the oil wells clogged or sanded up it was the duty of
the derrick man, in order to clean them, to pull the tubing and piping
out of the wells, and in replacing it the quickest way it was neces
sary to climb up the Samson post and go out on the walking beam to
slip the sand trap, or large pipe hanging to the cable in the derrick,
over the standing valve or smaller pipe, in order to connect them.
It was in response to an order of the company’s foreman that Willis
ascended the derrick and fell from the beam.
An action was brought in the Circuit Court of Union County,.
Ark., by Willis against the Woodley Petroleum Co. Willis alleged
negligence on the part of the foreman of the company in ordering
him to a dangerous place to perform his work and in failing to
provide a reasonably safe place in which the work could be per
formed.
A judgment was returned in favor of Willis by the circuit court.
The company thereupon carried the case to the Supreme Court of
Arkansas, contending that Willis was contributorily negligent and
that he had assumed the risk of the employment.
The State supreme court affirmed the judgment of the lower court,
and held that $20,000 was not an excessive verdict, saying in part:
gence—
S afe
P
lace
to
W
ork—
The testimony in the instant case does not show that appellee was
aware that the walking beam was covered with fresh oil and inud.
and that the danger was so imminent and obvious that a person oi
ordinary prudence would not continue in the work. It is only where
the record reflects such to be the fact that the doctrine of contribu
tory negligence and assumed risk becomes indistinguishable. Ap
pellee, in the instant case, may have been guilty of contributory
negligence in failing to observe the condition of the walking beam,
but he could not be held to an assumption of the risk if he did not
know of the defect, or if the defect was not so obvious and patent
that a reasonably prudent person would refuse to perform the labor.
We think it a correct declaration of law to the effect that an em
ployee is in duty bound to obey his employer, and has the right to
rely upon the superior knowledge of his employer as to the danger
58
DECISIONS OF T H E COURTS
involved in obeying him, unless he knows of the danger himself and
appreciates it, or unless the danger is so obvious and imminent that
a man of ordinary prudence would not encounter it.
E mployers’ L iability—A ssumption of Risk—D efective Plat
Service—Negligence— Sunderland v. Steanson et al,
form— F ellow
Supreme Cowrt of Kansas (January 8, 1927), 252 Pacific Reporter,
page 221.—Dye Sunderland was employed by O. L. Steanson as a
tool dresser about a drilling rig. Steanson had constructed a plat
form about the well which was being drilled, and while in the act
of moving a heavy tool over the platform the planks shifted, causing
injuries to Sunderland.
Sunderland brought an action in the District Court of Anderson
County, Kans., on the grounds that Steanson had furnished an un
safe place in which to work. A judgment was returned in favor of
Sunderland by the district court. Steanson then carried the case to
the Supreme Court of Kansas, contending that when workmen build
their own scaffolding, platforms, and other workplaces, the master is
not liable for consequences of defects in construction. The fellowservant rule and the assumption of risk was also invoked by Stean
son in answer to the complaint. The State Supreme Court of Kan
sas affirmed the district court, holding that while the rule invoked
by Steanson is sound, there is a condition attached that if the master
furnished the material he must furnish proper material which the
evidence in the instant case showed was not done.
The court also held that the fellow-servant rule did not apply here
because the failure of Steanson to furnish proper material consti
tuted a breach of an absolute duty, and that there was no assumption
of risk because Sunderland was ignorant of the manner in which the
platform was constructed.
E mployers’ Liability—A ssumption of Risk—Negligence— Howe
v. Michigan Central R. Co., Supreme Cov/rt of Michigan {December
8, 1926), 211 Northwestern Reporter, page 111.—Fred C. Howe was
employed at various capacities by the Michigan Central Railroad Co.
On December 30,1923, he was working as rear brakeman on a 70-car
through freight train running from Jackson to Detroit, Mich. It
was his duty to protect the rear of the train and when it stopped to
go back with flagmen’s signals and place torpedoes or other warning
signals on the tracks. When the train was a short distance from
Dearborn, Mich., a stop was made on account of a block signal. The
em ployers’
l ia b il it y
59
rear end of the train stopped on a bridge over the River Rouge. The
conductor got off the train and proceeded forward leaving Howe
at the rear door preparatory to going out with his signals. When
the train started up again the conductor returned to the car and dis
covered that his brakeman was not there. The body of Howe was
found the following day floating in the river.
The widow of Howe brought an action for damages against the
Michigan Central Railroad Co. in the Circuit Court of Wayne
County, Mich., under the Federal employers’ liability act. She
alleged that the railroad company was negligent in placing its tracks
on the bridge in such a manner that it cut off space that should have
been left between the tracks and the edge of the bridge, and because
of that Howe, as he stepped from the car, fell over the edge of the
bridge and in falling struck one of the spiles and was thereby
rendered unconscious and suffocated in the water.
The railroad company asked the court to decide in their favor.
This was refused and a judgment was given to the widow. The
railroad company carried the case to the Supreme Court of Michigan,
contending that there was no negligence on their part, and that Howe
had assumed the risk of the employment and therefore they were
not at fault.
The supreme court in speaking of the explanation offered as
causing the death of Howe said:
This is one possible explanation of the manner decedent came to
his death. It is by no means the only one. No eye saw him after
he left the car. No one even knows from which side of the car he
left. Is it not just as possible that he stumbled or slipped from the
platform or steps of the car and fell into the river? I f he did, the
space afforded him for walking between the car and the edge of
the bridge had nothing to do with it. One theory is as reasonable as
the other. Additional ones might be and have been advanced, but
the jury should not be permitted to conjecture that he fell from one
cause and not from another.
That there was no eyewitness to the accident does not always pre
vent the making of a possible issue of fact for the jury. But the
burden of establishing proximate cause, as well as that 01 negligence,
always rests upon the complaining party, and no presumption of it
is created by the mere fact of an accident. Something more should
be offered the jury than a situation which by ingenious interpreta
tion suggests the mere possibility of defendant’s negligence being
the cause of the injury.
Several cases holding practically the same views were cited by
the court, among which was the case of Chicago, Milwaukee & St.
Paul Railway Co. v. Coogan, administratrix (46 Sup. Ct. 564).
60
d e c is io n s
of
the
courts
Taking up the question of the assumption of the risk, the court
said:
In the instant case, even if we apply the rule most favorable to
plaintiff, and as contended for by counsel, deceased must be said to
have assumed the risk. Railroading is of necessity more or less
fraught with danger. Any danger in connection with an employee
leaving the train between stations must have been known to and
understood by him. As deceased rode the trains over this and the
other bridges, it was of course plainly observable that the bridge
had no railing and that the ballast between the edge of the bridge
and the tracks covered but a comparatively small space. He knew
the character of the construction of the bridges, and must have real
ized and comprehended the dangers in leaving the train while stand
ing on a bridge. They were dangers incident to his employment,
and if there was any defect in the manner of constructing the bridge
or laying the tracks, such defect was plainly observable.
The State supreme court held that the request of the railroad com
pany in the lower court for a judgment in their favor should have
been granted.
E mployers’ L iability—A ssumption of Risk— Negligence—Mis
souri Pacific R. Co. v. Steen, Court of Civil Appeals of Texas
(November 10, 1926), 288 Southwestern Reporter, page 532.—C. L.
Steen was employed as a switchman by the Missouri Pacific Railroad
Co. in their yards at Texarkana, Tex. He was killed in January,
1925, when his body was struck by a viaduct while he was riding on
top of a box car. It was Steen’s duty to go on top of the cars and
release the brakes on the cars to be moved. While the cars were mov
ing east and he was walking west, with his back to the viaduct, he
came in contact with the lower edge of the viaduct and was knocked
off the car. He fell between the cars and was run over and so injured
that he died shortly thereafter. His widow brought an action
against the railroad company in the District Court of Bowie County,
Tex., alleging that the company was negligent, (1) in the manner
of maintaining the track under the viaduct, which did not permit
the clearance of a man on top of a box car; (2) in failing to provide
a warning device; (3) in the manner in which the crossbeams under
the viaduct were placed and maintained; and (4) in failing to have
the switch engine on that occasion equipped with brakes in good
condition.
A judgment was given to the widow by the district court, and the
railroad company appealed to the Texas Court of Civil Appeals,
contending that Steen had assumed the risk of injury resulting from
61
E M P LO Y E R S 9 L IA B IL IT Y
the condition under which he was working. The railroad company
assigned other errors in the decision of the lower court, all of which
were overruled by the appeals court which held that the issues had
been fairly presented to the jury and that the verdict given the widow
should stand.
E m p lo y e r s ’ L i a b i l i t y — A s s u m p t i o n o f R is k s — N e g lig e n c e — Nor
folk <& Western Ry. Co. v. Lumpkins, Supreme Court of Appeals
of Virginia {September 20, 1928), m Southeastern Reporter, page
485.— L u m p k in s w as e m p lo y e d as a “ h ostler ” b y th e N o r f o lk &
W e ste rn R a ilw a y C o. at P o ca h o n ta s , V a .
H is du ties w ere to w ip e
o ff an d p o lish th e en gin es w h ich th e r a ilr o a d c o m p a n y se rv iced at
th is station. In 1916 the r a ilw a y ch a n g e d its m o tiv e p o w e r on the
P o ca h o n ta s b ra n ch fr o m steam to e le ctricity . In th e r a ilr o a d y a r d
th ere sto od an o ld -s ty le w a ter ta n k w h ich s u p p lie d w a ter f o r en g in e
ten ders.
A
r o p e w h ich ra ised th e v a lv e to p e rm it w a ter to flo w
th ro u g h h a d b rok e n , an d on th e e v e n in g o f F e b r u a r y 19, 1926,
L u m p k in s a ttem p ted to m ake rep a irs on th e tank. H e a scen ded
on e o f the la d d ers to the r o o f o f th e ta n k , ta k in g w ith h im a to rc h
an d an ir o n h ook .
S h o r tly th e re a fte r an e le ctric flash w as n o tice d ,
an d th e p la y in g o f flam es a lo n g the ir o n ban d s on th e tank.
p o w e r w as shut o ff an d L u m p k in s w as fo u n d dead.
fo u n d astride the ed g e o f the ta n k at the m an h ole.
The
H is b o d y w as
O n e en d o f th e
ir o n h o o k rested on th e lo w e r sp a n o f the e le ctric w ire.
T h e w id o w
o f L u m p k in s b r o u g h t an a ction in th e cir c u it c o u rt o f T a z e w e ll
C ou n ty , V a ., a ga in st th e N o r fo lk & W e ste rn R a ilw a y C o., a lle g in g
n e g lig e n ce on th e p a r t o f the ra ilro a d .
A judgment was given to the widow by the circuit court. The
railroad company carried the case to the Supreme Court of Appeals
of Virginia, contending that the company was guilty of no negligence
and that the widow is barred from recovery because the husband
had assumed the risk of the employment which resulted in his death.
The court of appeals affirmed the judgment of the lower court on
September 20, 1928, and in the opinion written by Judge Holt, after
reviewing several cases, said in part:
These authorities are sufficient to establish the proposition that
it is the duty of an employer to give special caution to a servant
sent out of the line of his employment into a place of danger, when
he is ignorant of the actual situation, or does not appreciate its
perils.
Men assume the ordinary risks incident to their work, and they
assume risks from perils open and obvious, and not only risks from
103151°—30----- 6
64
DECISIONS OF T H E COURTS
railroad company contended (1) that Olson was not employed in
interstate commerce, (2) that there was no negligence shown on the
part of the railroad in failing to furnish a safe place in which to
work, and (3) that Olson assumed the risk. The supreme court in
answering the reasons for the appeal said in part:
This court can take judicial notice of the fact that the Great
Northern Railway Co. is engaged in both interstate and intrastate
commerce. The roundhouse at Berthold was maintained principally
to serve the branch line extending from that point, but it is com
mon knowledge that the branch lines are feeders for the main line,
and that a large per cent of the freight coming from and going to
the branch is interstate freight. The testimony shows that the
engines kept in the roundhouse and repaired by the defendant were
used to haul grain, stock, and coal from the branch to the main line.
It has repeatedly been held that, when a carrier is engaged in both
intrastate and interstate commerce, using the same instrumentality,
appliances, and employees in both classes of commerce, and the work
in which the employee was engaged at the time of his injury is so
closely connected with interstate commerce as to be a part thereof,
it comes within the statute. It has been so held in the case of per
sons engaged in repairing tracks, bridges, and cars used in both
State and interstate commerce; * * * the general holding being
that one using or engaged in maintaining in proper condition any
instrumentality or appliance used by the carrier in interstate com
merce comes within the statute, although such instrumentality or
appliance may also be used for intrastate business. We therefore
conclude that this action was properly within the Federal employers’
liability act.
It is next contended by the defendant that, if plaintiff was injured,
he assumed the risk incidental to the employment. Assumption of
risk, like contributory negligence, becomes a question of fact where
there is a substantial conflict and reasonable men can draw different
conclusions from the evidence. The jury accepted, and we must
therefore assume, plaintiff’s theory as to the condition of the round
house to be true, it appears from such evidence that the roundhouse
became out of repair in the winter of 1923, causing plaintiff con
siderable inconvenience; that he complained to his superior about the
condition and some repairs were made; that in the summer of 1924
part of the paper roof was again blown off, leaving cracks in the
roof, and that the door would not close; that he again complained
and obtained a promise that it would be repaired; that it had not
been repaired, and plaintiff quit on November 25 or 26, 1924; and
that when he quit he was ill.
It is generally held, if a servant, before he enters the service,
knows, or if he afterwards discovers, or if by the exercise of ordi
nary observation or reasonable skill and diligence, having regard for
his age and experience, he can discover, that the building or appli
ances are unsafe or unfit, and if notwithstanding such knowledge or
means of knowledge he voluntarily enters into or continues in the
employment without objection or complaint, he is deemed to assume
the risk o f the danger thus known or discovered, and to waive any
em ployers’
l ia b il it y
65
claim for damages against the master in case it shall result in injury
to him. But, if the servant complains to the master or a represen
tative of the master of the danger, and receives a promise that the
same will be repaired, the servant will be excused tor remaining in
the service a reasonable time thereafter to await such reparation,
and will not be deemed to accept the risk, unless the danger is so
obvious, imminent, or glaring that a reasonably prudent man would
not, even after such promise, encounter it by continuing in the serv
ices, and under such circumstances he will not as a matter of law
be put in the position of having assumed the risk, but whether he
has done so will be a question for the jury; also what is a reasonable
time is ordinarily a question for the jury.
Under the Federal employers’ liability act the defendant is not
an insurer of the safety or health of its employees. Unless the de
fendant was negligent and such negligence caused the injury, it
can not be held liable in this case simply because plaintiff contracted
a disease. To justify a verdict, the injuries must have resulted from
the negligence of the defendant in failing to furnish a reasonably
safe place for plaintiff to work and not from the hazard of exposure
due to calking flues.
On account of the speculative character of the cause of the sick
ness of Olson, the supreme court of the State ordered that the ver
dict of the lower court be set aside and a new trial granted.
E m p l o y e r s ’ L i a b i l i t y — A s s u m p t i o n o f R i s k — N e g l i g e n c e — Owen
v. Elliott Hospital, Supreme Court of New Hampshire (<January 5,
1927), 186 Atlantic Reporter, page 183.—Carrie Owen was employed
as a cook in the Elliott Hospital. While at work at a gas stove her
dress caught fire from contact with the flame of a pilot burner and
she was severely burned. The burner was a part of the attachment
for heating the oven. The practice was to turn on a pet cock and
light the pilot burner, which in turn lighted the oven burners, and
then turn off the pet cock. There were two assistants employed in
the kitchen, one of whom had left the pilot burning. It was un
guarded, but readily observable either by seeing the flame or by
seeing that the pet cock was open, but the cook, not directing her
attention to it, did not notice it. She brought an action against the
hospital on the ground of negligence. A judgment was given to her
by the superior court. The hospital thereupon carried the case to
the supreme court of the State. The contention of the hospital was
that Carrie Owen had assumed the risk of the employment.
The State supreme court returned a judgment in favor of the
hospital, rendering a decision in part as follows :
The argument invokes discrimination between the defect and the
danger. The defect was not of itself a danger. The danger was the
unguarded flame. Without the flame there was no danger. The lack
66
DECISIONS OF T H E COURTS
of a guard as a defect, helping to produce the danger, was a source
and cause of it, so as to make the defendant negligent in its mainte
nance, if due care called for a remedy. But it was not the only
cause of the danger, and some active agency was required to unite
and combine with it. The inquiry is, therefore, to be directed to the
plaintiff’s assumption of the danger of the unguarded flame rather
than solely to her knowledge of the unguarded pilot. While such
knowledge was essential to her assumption of the danger, it was not
all that was required. Although aware of the defect, she did not
assume the risk, unless she also appreciated the unguarded flame
as a possible result of the unguarded pilot in connection with its
being left lighted. And, as the burden of proof is on the plaintiff
to show that she did not assume the risk, the specific inquiry is
whether there is any evidence that she did not thus assume it.
The cases have uniformly enforced the assumption of risk rule
when the servant’s knowledge of the danger is equal to, or greater
than, the master’s. * * * “ It can not reasonably be found that
of two persons of equal knowledge and of equal ability to appreciate
and understand a danger, one is in fault for not apprehending the
danger and the other is not.”
Here the plaintiff knew as much about the situation generally and
in detail as the defendant. Her knowledge of the lack of a guard,
of the likelihood of the pilot being left open, and of the, danger
therefrom, was equal to the defendant’s. The exposed flame as the real
danger was not a latent one. The plaintiff had as much information
as the defendant to tell if there was enough probability of the pilot
being left burning to call for one to be on the watch for it. The pilot
had been left burning by one of the plaintiff’s assistants. Whether
this was negligence as an act contrary to the practice in force or an
accident as an oversight free from fault, it was at best to be antici
pated by the plaintiff as much as by the defendant. I f it was negli
gent for the defendant not to anticipate such an occurrence and
warn the plaintiff about it, it was equally negligent for her not to
anticipate it and be on the watch for it without warning. She had
as much duty to look out for herself as the defendant had to look
out for her, in view of their equality of knowledge. If the plaintiff
was not at fault, it was because it was a danger not reasonably to be
foreseen, and the master has no duty to warn of such a danger.
But by the assumption of risk rule no duty is imposed on the
master to protect the servant against such a danger, and the servant’s
inattention to the danger is immaterial.
E mployers’ L iability— A s s u m p t i o n o f Risk—Negligence—Con
Negligence— Lancaster v. St. Lows & S. F. R. Co.,
tributory
Supreme Court of Oklahoma ( October 1927), 261 Pacific Reporter,
page 960.—Jordan Lancaster was employed as a section foreman by
the St. Louis & San Francisco Railway Co., known as the Frisco
Line. On November 25, 1924, he was killed by a collision between
one of the trains of the Frisco and a motor car operated by himself.
E M P L O Y E R S’ L IA B IL IT Y
67
The collision occurred about 5 miles east of Sulphur, Okla., while
Lancaster, together with one Roy, was traveling east on a motor car,
engaged in his regular duty as section foreman. The train was
backing from Scullin to Sulphur, Okla., on its regular schedule, as
it had been doing for some eight or nine months because of a de
fective turntable at Sulphur. From the facts in the case it showed
that there was a curve in the railroad at the place where the accident
occurred.
The widow of Lancaster brought an action in the District Court
of Carter County, Okla., against the railroad company, under
the Federal employers5 liability act. This court instructed the jury
to return a judgment in favor of the railroad company. The widow
thereupon brought the case to the Supreme Court of Oklahoma.
This court affirmed the judgment of the district court, and in the
opinion rendered on October 4, 1927, said in part as follows:
It is an established rule that a railway company owes no duty to
its employees to keep a lookout on its moving trains, or to ring a
bell or blow a whistle in order to warn employees of danger.
Under this well-established rule there can be but one question
presented in this appeal, to wit, whether the employees of the rail
way company, after actually discovering the danger of Lancaster,
used reasonable diligence in attempting to prevent the accident.
The train was being operated practically on its regular schedule,
and there is no testimony showing any carelessness or negligence
on behalf of the company in the operation of said train, other than
its failure to keep a lookout or to give warning, which, under our
law, is not required for the protection of employees. It follows
that the railroad company can not be held liable in this case unless,
from the testimony, they were negligent after discovering the peril
of Lancaster.
As to employees, the rule of this State is that a railway company
must exercise reasonable care to avoid an injury, after the peril of
the injured is discovered. But, as to such employees, there is no duty
requiring the use of reasonable care in order to discover the peril
of the injured or deceased, so long as there is no carelessness shown
in the actual operation of the train.
The attorneys for plaintiff in their brief cite numerous cases con
cerning contributory negligence. But there can be no contributory
negligence until a primary negligence is shown.
The train in this case was backing, and had been for several
months, which it must be assumed was known to the deceased em
ployee. This is not negligence per se. It was being operated prac
tically on its regular schedule, which was also known to the deceased,
and had been for several months prior to the accident. And, since
there is no evidence that the train was being run carelessly, the
deceased assumed the risk incident to his employment in the general
conduct of the defendant’s business.
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DECISION'S OF T H E COURTS
E mployers’ L iability—A ssumption
of K
is k
—Proximate Cause—
Pullman Co. v. Montimore, Circuit Court of Appeals, Fifth Circuit
(February 2,1927), 17 Federal Reporter (2d), page 2.—Paul Monti
more was employed as a porter by the Pullman Co. The sleeping
ear in which he was employed was placed on a siding at a point south
of Parsons, Kans., due to a defective drawhead.
Montimore was ordered to remain with the car to protect the prop
erty of the company. He was also directed by the Pullman con
ductor to drain the water from the car. To perform this work it
was necessary for Montimore to go outside and pull a lever. In doing
so water was blown upon his legs, which wet them, and later froze.
Upon detaching the car from the train there was no method of heat
ing it, and Montimore remained in the car on the siding from 10
o’clock the night of February 28 until 5 o’clock on the afternoon of
March 1.
Montimore claimed that due to the exposure he contracted a se
vere cold which resulted in bronchitis and pneumonia, as a result of
which he was confined to his bed for about three months, with the
final result that he contracted incipient tuberculosis.
Montimore brought an action against the company on the ground
that the Pullman Co. was negligent in causing and permitting the
car to be set out on the siding and in failing to rescue him after the
car was so set out. He recovered the sum of $8,700, and the com
pany thereupon appealed, contending that Montimore assumed the
risk of the employment, and also that the defense was not properly
treated by the charge of the court. The court found no error in the
charge, and in affirming the judgment of the district court, said in
part:
Plaintiff did not allege that his getting wet was caused by any
particular act of negligence of defendant, and, as above pointed out,
in charging the jury, the court expressly told the jury that the neg
ligence relied upon by plaintiff was, first, in setting the car out in
a comparatively isolated spot and ordering the plaintiff to remain
with it, and, second, in not removing him or rescuing him promptly
from his exposed position. We think it was competent for the
plaintiff to show as an incident to this exposure that he got wet in
the performance of his duties, without any particular allegation to
that effect in the petition.
E mployers’ L iability—A ssumption of Risk— Safe Place and
A ppliances—Ducjack v. New Jersey Zinc Co. (Inc.)9 Court of
Errors and Appeals of New Jersey (May
1928), H I Atlantic
Reporter, page 791.—John Due jack was employed by the New
Jersey Zinc Co. as a “ mucker” in its zinc mine. The duties re
em ployers’
l ia b il it y
69
quired the shoveling of ore or pieces of rock into a chute, and some
times into the car. The character of the employment necessitated
Duejack to work in the mine at a depression of 800 feet, and while
engaged in this employment he became afflicted with rheumatism,
which he attributed to the wet and damp condition of the place
where he was put at work.
Ducjack brought an action in the New Jersey Supreme Court
against the company to recover compensation for the impairment
of his health, alleging that the company had failed to exercise
reasonable care to furnish him with a reasonably fit and safe place
to work, and that the company also failed to furnish him with the
proper appliances to protect himself from injury.
The supreme court entered a judgment of a nonsuit on the ground
that the condition of the mine and the condition under which
Ducjack worked were obvious risks, and he by continuing to work
assumed the risks, and therefore recovery was debarred. Ducjack
appealed the case to the New Jersey Court of Errors and Appeals.
This court affirmed the judgment of the supreme court and said in
part:
The rule is well settled in Coyle v. Griffing Iron Co. (63 N. J.
Law, 609, at p. 612, 44 Atl. 665, 666), where this court says:
“ In other words the servant assumed all the risks and perils
usually incident to the employment, and included in such risks and
perils are those which it is a part of his duty to take knowledge
of by observation.”
It is to be observed that the plaintiff entered upon his employ
ment in 1921, and for the first year there was no water in the mine,
but afterwards, from 1922 until 1926, there was a dripping of water
into the mine, and the place where the plaintiff worked was wet;
nevertheless, for a period of nearly four years after making his
first complaint, and after he had suggested to the foreman that
the pains he was suffering from might be due to the water dripping
and collecting in the mine, he still continued in the defendant’s
employ at the same work and at the same place.
The cases cited by counsel of appellant in support of his conten
tion that the nonsuit was improperly ordered relate to instances
where the danger was latent. It goes without saying that there is
no analogy between a case of a latent danger lurking in a mine
from gases or other noxious or hurtful causes of whicn a plaintiff
had no notice or warning and the situation which is presented here
under the testimony in the cause.
E mployers’ L iability—D eath—Hoffman v. State of Missouri,
Supreme Court of the United States (April 11, 1927), Ifl Supreme
Court Reporter, page 485.—J. S. Foraker, an employee of the Mis
souri Pacific Railroad Co., was killed in the State of Kansas,
70
DECISIONS OF T H E COURTS
An action was brought by the State of Missouri in the State su
preme court in behalf of the administrator of the estate of Foraker
to compel the judge of a lower court in Missouri to hear the case.
The supreme court of the State decided in favor of the administra
tor. The case was taken by the railroad company to the United
States Supreme Court, which on April 11,1927, affirmed the decision
of the State court.
The railroad contended that suit should have been instituted in
the State of Kansas, where the accident occurred, and that the law
(Rev. Stat. Mo. 1919, sec. 1180) was void because to be sued in Mis
souri would impose an undue burden on interstate commerce. The
railroad company based their contentions on the case of Davis v.
Farmer’s Cooperative Equity Co. (262 U. S. 312). The Supreme
Court, in affirming the judgment of the lower court, dismissed the
contention of the railroad, stating that the facts in the two cases
differ. In the case under consideration the railroad is not a foreign
corporation; it is sued in the State of its incorporation, in a county
in which it has an agent and a usual place of business, in a State in
which it owns and operates a railroad, and carries on an intrastate
as well as an interstate business, and therefore it must submit, if
there is jurisdiction, to the requirements of orderly, effective admin
istration of justice, although thereby interstate commerce is inci
dentally burdened.
E m p l o y e r s ’ L i a b i l i t y —D e a t h —D e p e n d e n t s —Chicago, Burling
ton & Quincy R. Co. v. Wells-Dickey Trust Co., Supreme Gourt of
the United States (November 21,1927), 48 Supreme Gourt Reporter,
page 78.—One Anderson was instantly killed while employed by the
Chicago, Burlington & Quincy Railroad Co. He left no surviving
widow, child, or father. His mother had survived him, but died
before an administrator was appointed. No action was brought on
her behalf.
The Wells-Dickey Trust Co. was appointed special administrator
and brought an action in the State court under the Federal em
ployers’ liability act for the benefit of a dependent sister. The rail
road company requested a verdict in their favor upon the ground
that since the mother had survived the cause of action vested in her,
the cause of action abated when she died. The request was denied
by the lower court, and upon appeal the Supreme Court of the State
of Minnesota affirmed the judgment.
The case was taken to the United States Supreme Court, which,
on November 21, 1927, reversed the decision of the State supreme
court, The question is whether the sister, being “ next pf kin do-
Em
ployers
’
l ia b il it y
71
pendent upon such employee,” is under the circumstance entitled
to compensation.
Mr. Justice Brandeis, delivering the opinion of the court, stated
that the language of section 1 of the Federal employers’ liability
act made it clear that the sister was not entitled to compensation.
The statute does not provide for a life interest in one, with
remainder over to others in the line of distribution. Nor does it
provide for vesting the right to compensation in the one, with a con
ditional limitation to another, in case the one entitled at the death
happens to die thereafter without having secured recovery. The
cause of action accrues at the death. When it accrues there is an
immediate, final, and absolute vesting; and the vesting is in that one
of the several possible beneficiaries who, according to the express
provision in the statute, is declared entitled to compensation. Upon
Anderson’s death an administrator might have been appointed and
an action brought immediately. I f it had been so brought it would
have been for the benefit solely of the mother, and no other action
would have lain. The failure to bring the action in the mother’s life
time did not result in creating a new cause of action after her death
for the benefit of the sister.
Employers’ Liability— D e a t h —Release— Mellon, Director Gen
eral of Railroads, etc. v. Goodyear, Supreme Court of the United
States (May 28,1928), 48 Supreme Court Reporter, page 541.— Lewis
Goodyear was employed by the Director General of Railroads (oper
ating, in 1919, the Chicago, Rock Island & Pacific Railroad) at Belle
ville, Kans. Gn July 31, 1919, he was injured while employed on
the railroad. He claimed the right to recover damages under the
Federal employers’ liability act. On March 16, 1920, Goodyear
settled with the railroad, accepted the agreed sum, and signed a
general release. He died on May 4, 1920, and on April 19, 1921,
his widow brought an action for damages in the district court of
Republic County, Kans. She contended that her husband’s death
resulted from the injuries suffered on July 31, 1919. The railroad
company answered by setting up the settlement and release. The
widow replied that she and the other beneficiaries had a separate
cause of action for which the husband could not release. A judg
ment was given to the estate of the deceased by the district court, and
upon appeal by the railroad the decision was affirmed by the Supreme
Court of Kansas. The case was then carried to the United States
Supreme Court, where it was reversed.
The question for the court was whether'the settlement between
Goodyear and the railroad was made advisedly and in good faith,
and hence barred an action by the dependents for their pecuniary
loss through his death.
72
d e c is io n s
of
the
courts
After citing the provisions of the liability act, Mr. Justice McReynolds, for the court, said in part:
In Michigan Central Railroad Co. v. Vreeland (227 U. S. 59, 65,
67, 68, 69, 70, 33 Sup. Ct. 192), an action by the administrator to re
cover for loss suffered by the wife by reason of her husband’s wrong
ful death, this court considered the original statute (1908) and held
that the employee’s right of action to recover such damages as would
compensate for expenses, loss of time, suffering, and diminished
earning power did not survive his death, also that the mere existence
of such a right in the employee’s lifetime did not destroy the de
pendent’s right under the statute to recover for pecuniary damages
consequent upon the death.
In Frese, administratrix, v. Chicago, Burlington & Quincy Rail
road Co. (263 U. S. 1, 4, 44 Sup. Ct. 1,2), an action under the liability
act for damages consequent upon death of the plaintiff’s intestate,
it was said:
“ If the engineer could not have recovered for an injury, his ad
ministratrix can not recover for his death. (Michigan Central R. R.
Co. v. Vreeland, 227 U. S. 59. 70, 33 Sup. Ct. 192.)”
The injuries were due primarily to the default of the engineer,
and the employer never became liable to him.
In Reading Co. v. Koons, administrator (271 U. S. 58, 64, 46 Sup.
Ct. 405, 70 L. Ed. 835), the administrator sought recovery by suit
commenced seven years after the employee’s death, but within two
years after the granting of administration. This court declared
the action was barred.
Obviously, the settlement and release of March 16, 1920, satisfied
and discharged any claim against the director general for the per
sonal loss and suffering of Goodyear. Immediately before his death
he had no right of action, and nothing passed to the administratrix
because of such loss and suffering. Hence it is that the administra
trix must recover, if at all, under section 1, act of 1908, which imposes
liability for pecuniary loss sustained by dependents through death.
By the overwhelming weight of judicial authority, where a statute
of tne nature of Lord Campbell’s Act in effect gives a right to re
cover damages for the benefit of dependents, the remedy depends
upon the existence in the decedent at the time of his death of a right
of action to recover for such injury. A settlement by the wrongdoer
with the injured person, in the absence of fraud or mistake, precludes
any remedy by the personal representative based upon the same
wrongful act. Construing the statute of Kansas, the supreme court of
that State seems to have accepted this generally approved doctrine.
(Fuller, administratrix, v. Atchison, T. & S. F. R. Co., 124 Pac. 971.)
Considering the repeated holdings of many courts of last resort,
the declarations by this court, and the probable ill consequences to
both employees and employers which would follow the adoption of
the contrary view, we must conclude that the settlement and release
relieved the director general from all liability for damages con
sequent upon the injuries received by Goodyear and his death.
EM PLOYERS* L IA B IL IT Y
73
E m p l o y e r s ’ L i a b i l i t y — D e a t h o f B r a k e m a n — D a m a g e s — Gulf,
Colorado <& Santa Fe Ry. Co. v. Moser, Supreme Court of the
United States (November 21, 1927), 48 Supreme Court Reporter,
page 49.—One Moser, a brakeman employed by the Gulf, Colorado &
Santa Fe Railway Co., was killed in the course of his employment.
His widow, as administratrix of the estate, brought an action under
the Federal employers’ liability act to recover damages. Judgment
was given to the widow, and the case was removed by the railroad
company to the United States Supreme Court on the question relative
to the court’s charge to the jury on the estimation of damages.
The United States Supreme Court, by Mr. Justice McReynolds, on
November 21, 1927, reversed the judgment of the State court and
based its decision on a prior case decided by the court (Chesapeake
& Ohio Ry. Co. v. Kelly, administratrix, 241 U. S. 485, 491.)
In computing the damages recoverable for the deprivation of
future benefits, the principle of limiting the recovery to compensa
tion requires that adequate allowance be made, according to circum
stances, for the earning power of money; in short, that when future
payments or other pecuniary benefits are to be anticipated the verdict
should be made upon the basis of their present value only.
Employers’ Liability— D e a t h o f Conductor— Linstead v. Chesa
peake & Ohio Ry. Co., Supreme Court of the United States (Feb
ruary 20,1928), 48 Supreme Court Reporter, page 241.—J ohn A. Linstead was killed while employed as a conductor by the Cleveland, Cin
cinnati, Chicago & St. Louis Railway Co., known as the “ Big Four.”
He was working upon a freight train running upon the tracks of the
Chesapeake & Ohio Railway Co. between Stevens, Ky., and River
side, Ohio, near Cincinnati. It was the practice of the Big Four
for matters of convenience in the interchange of traffic to lend its
locomotive, caboose, and a train crew to take the freight trains that
come into Stevens, Ky., from the East, to the Big Four at River
side, Ohio, over the rails of the Chesapeake & Ohio. There was a
reciprocal service on the part of the latter company. On the day of
the accident Linstead had brought over his crew to Stevens, Ky., and
was proceeding to take a train of cars to Cincinnati, when it was
struck by a passenger train of the Chesapeake & Ohio Railway Co.
The question involved in the case was whether Linstead was work
ing for the Chesapeake & Ohio Railway Co. or for the Big Four
when he was killed.
An action was brought by the widow of Linstead under the Federal
employers’ liability act against the Chesapeake & Ohio Railway
Co. The district court in Kentucky returned a verdict in favor of
74
DECISIONS OF TH E COURTS
the widow, and the case was appealed to the circuit court of appeals,
which court reversed the judgment of the lower court. The case
was then taken to the United States Supreme Court, and on February
20, 1928, Mr. Chief Justice Taft delivered the opinion of the court,
reversing the judgment of the circuit court of appeals, and ordering
the judgment of the district court of Kentucky restored, holding that
Linstead was in the employ of the Chesapeake & Ohio Railway Co.,
and engaged in interstate commerce work.
The work which was being done by Linstead and his crew was
the work of the Chesapeake & Ohio Railway. It was the transporta
tion of cars, loaded and empty, on the Chesapeake & Ohio Railway
between Stevens and Cincinnati. It was work for which the Chesa
peake & Ohio Co. was paid according to the tariff approved by the
Interstate Commerce Commission; it was work done under the rules
adopted by the Chesapeake & Ohio Railway Co.; and it was done
under the immediate supervision and direction of the trainmaster
in charge of the trains running from Stevens to Cincinnati, and
that trainmaster was a superior employee of the Chesapeake &
Ohio Co.
Therefore the court concluded the Chesapeake & Ohio was master
and remained in charge of the operation with the immediate super
vision of the Big Four crew which was lent for the very purpose
of doing the work of the Chesapeake & Ohio.
Employers’ Liability—Death o f Fireman— Wabash Ry . Co. v.
Whitcomb, Appellate Court of Indiana {January 27, 1927), 15Ip
Northeastern Reporter, page 885.— S. A. Whitcomb was employed
as a fireman on the Wabash Railway. He was killed on November
12, 1923, in a collision between two engines belonging to the railroad
company at a point near Attica, Ind. On the morning of the day of
the accident the engine upon which Whitcomb was employed started
west from La Fayette, Ind., hauling an empty freight car and a
caboose for the purpose of loading scrap iron collected at wayside
stations along the company’s right of way. This iron was to be
transported by a later train to the company’s reclamation department
at Decatur, 111. The work train finished the day’s work at a point
near State Line, Ind., and started back to La Fayette. The engine
hauling the train eastbound was the same that hauled it westward;
the crew, the section men, and foremen were the same. As the train
was on the return trip it collided with another engine belonging to
the same company, resulting in the death of Whitcomb. An action
was brought by the widow of Whitcomb in the Wabash Circuit Court
of Indiana. The contention of the widow was that the work train
was engaged in interstate commerce and the Federal employers’
liability act would govern.
em ployees’
l ia b il it y
75
A judgment was given the widow and the children of the deceased
fireman in the sum of $25,000. The railroad company appealed the
decision of the lower court to the appellate court of Indiana, con
tending that the deceased was not engaged in interstate commerce
at the time he was killed.
The appellate court affirmed the judgment of the lower court. The
court, after examining the cases cited on the subject of liability under
interstate commerce, said in part:
We have examined the numerous authorities cited by appellant to
sustain the different phases of its proposition that the decedent was
not engaged in interstate commerce.
In each of the foregoing cases it was held that the injured em
ployee was not engaged in interstate commerce. But, as it seems to
the court, these cases are to be distinguished from the instant case, in
that in none of them was the employee engaged in loading any kind
of freight for the purpose of its transportation in interstate com
merce. Here the scrap iron, whether gathered at one station or nine,
was being loaded for the purpose of its transportation eventually
to a destination in the State of Illinois. One loading or unloading
an interstate shipment is engaged in interstate commerce.
It is apparent, from the averments of the complaint and from the
evidence, that the ultimate destination of the car of scrap was
Decatur, 111., outside the State of Indiana, and the fact that it was
changed from one train to another at State Line, and for that pur
pose was placed on the side track at State Line, could not change
the character of the shipment.
The mere fact that the designation of the train was changed for
its return trip did not change its character as an interstate train.
Except the car of scrap which it left at State Line after it was loaded,
it was the same train with the same cars, the same engineer and
fireman, and the same working force that had loaded the car, all
returning to the base from which they started in the morning. The
movement west to State Line and back to La Fayette was one con
tinuous operation in interstate commerce.
We have carefully examined the instructions, both those given and
those tendered and refused, and we hold that the jury was well
instructed as to the law governing the case, and that it did not err
in its refusal of instructions tendered.
E mployers’ L iability—D isfigurement— Odom v. Atlantic Oil
Producing Co., in re Odom, Supreme Court of Louisiana (November
V, 1926), 110 Southern Reporter, page 754-—Edgar A. Odom was
employed by the Atlantic Oil Producing Co. in drilling oil wells in
the parish of Bossier, La. He was thrown from an oil derrick while
adjusting a traveling block and received multiple injuries. He
brought an action under the employers’ liability act to recover com
pensation for the injuries sq received, claiming it in the sum of
76
DECISIONS OF T H E COURTS
$20 a week for a period of 400 weeks, and also $250 for medical,
surgical, and hospital service. The lower trial court held that since
Odom had not lost as much as two phalanges of any finger he was
not under the provisions of the statute entitled to compensation
for the injury to his hand, and that the only compensation that
could be allowed was for the time he was rendered unable to work
and that he was entitled to certain hospital and surgical expenses
incurred incidental to the injury. Upon the court refusing to grant
the employee the amount he claimed, the case was appealed to the
court of appeals, where the judgment was affirmed. Odom then
carried the case to the Supreme Court of Louisiana. This court upon
a review of the case affirmed the award in so far as it was applied to
the facts; the court went further, however, and held that as Odom
had asked for general relief, there was evidence that the loss of three
teeth constituted a part of the injury alleged, and he should be
compensated for such loss as is provided by the statute. The judg
ment of the court of appeals was accordingly amended by allowing
Odom additional compensation of $3 a week for 100 weeks, and as
amended the case was affirmed.
E mployers’ L iability — F ellow Servant — I njury — Southern
Railway Go. v. Louise Taylor, Court of Appeals of the District of
Columbia (.December 6, 1926), 2789 Washington Law Reporter, page
18.—Louise Taylor was employed as an elevator operator in the office
building of the Southern Railway Co. in Washington, D. C. While
so operating the elevator, it stuck at or near the eighth floor of the
building, and being unable to move it, the operator summoned a
Mr. Smith, the engineer, who went to the penthouse to release it.
When the elevator was released it suddenly dropped to a point
below the third floor, where the operator was found in an uncon
scious condition.
Louise Taylor brought an action against the railroad for per
sonal injuries. She recovered a judgment in the Supreme Court
of the District of Columbia. The railroad company appealed to the
Court of Appeals of the District of Columbia, contending that the
operator and the engineer were fellow servants.
The appellate court in the course of its opinion cited several cases
in which the question of fellow servants had been in issue. It then
said in part:
It is clear from the foregoing review of the law that Smith and
the plaintiff were employed by the railway company to perform
service in its office building; that the separate services which they
performed had an immediate common object, namely, the efficient
em ployers’
l ia b il it y
77
operation of the elevator; that neither of these employees worked
under the orders or control of the other; that the duty Smith was
called upon to perform was a mere mechanical piece of work in
connection with the operation of the elevator; that it was part of
his duties as engineer about the place and in no sense amounted to
work performed in a different and separate department of the service
from that performed by plaintiff.
The conclusion is irresistible that defendant, in the operation of
its elevator in its office building, is not affected by the statute abolish
ing the fellow-servant doctrine, as applied to common carriers en
gaged in commerce or trade in the District of Columbia. In reach
ing our decision, it is not a relevant matter of concern that the gen
eral business of defendant company is that of a common carrier,
and that its office building is used as the center from which the
operation of its extensive system of railroads is directed and con
trolled.
The judgment of the lower court was therefore reversed.
—I n j u r y or B r a k e m a n — S a f e t y A p p l i
a n c e — L i m i t a t i o n s — Grew v. Boston & Maine R., Supreme Court
of New Hampshire {June 28, 1928), 11$ Atlantic Reporter, page
707.—Daniel Grew was employed as a brakeman by the Boston &
Maine Railroad in the switching yards at Manchester, N. H. On
December 15, 1921, Grew was injured in attempting to climb to the
top of a box car, when a grab iron pulled away and threw him to
the ground.
He brought an action against the railroad company in the Superior
Court of Hillsborough County, N. H., alleging that he was injured
because the car upon which he was working was not provided with
secure grab irons, and a right of action accrued to him by reason of
the company’s breach of the safety appliance act.
A judgment was given to Grew, and the railroad company there
upon moved that the verdict be set aside. The case was transferred
to the supreme court of the State. The company contended that
Grew at the time of his injury was engaged in interstate commerce,
and that his rights were therefore governed exclusively by the Fed
eral employers’ liability act.
The State supreme court ordered that the judgment on the verdict
of the lower court be rendered in favor of Grew. The court cited the
section of the safety appliance act providing as follows:
E
m ployers’
L
ia b il it y
It shall be unlawful for any railroad company to use any car in
interstate commerce that is not provided with secure grab irons or
handholds in the ends and sides of each car for greater security to
men in coupling and uncoupling cars,
103151°— 30------- 7
78
d e c is io n s
of
the
courts
Judge Branch, in delivering the opinion of the court, continued, in
part, as follows:
Although the act contains no express language conferring a right
of action for the death or injury of an employee, “ the right of
private action by an injured employee, even without the employers’
liability act, has never been doubted.”
The subsequent passage of the employers’ liability act did not
affect this right, for it contains a specific provision that nothing
therein “ shall be held * * * to impair the rights of their em
ployees under any other act or acts of Congress.”
There is no Federal statute limiting the time in which an action
to enforce such a right must be commenced, and hence the State law
applies. It is plain that the present action was commenced within
the 6-year period prescribed by Public Laws, chapter 329, section 3.
Although it does not appear that the declaration referred to the
safety appliance act (45 U. S. C. A., sec. 1 et seq., U. S. Comp. St.
sec. 8605 et seq.), the plaintiff was none the less entitled to have
his rights determined in accordance with the law applicable thereto.
In a case governed by the provisions of the safety appliance act
the defendant may still avail itself of the defense of contributory
negligence (Minneapolis & S. P. Ry. v. Popplar, 237 U. S. 369,
35 Sup. Ct. 609), and the full benefit of this right was accorded to the
defendant in this suit. The issue of the plaintiff’s fault was sub
mitted to the jury under adequate instructions, and that portion
of the charge which placed the burden of proving this defense upon
the defendant correctly stated the rule which must be applied in the
administration of this Federal law.
Since the statutory obligation to furnish secure grab irons is
absolute, as pointed out above, the feliow-servant defense was not
open to the defendant, and that of assumption of risk is denied to it
by the terms of the statute.
It therefore appears not only that all the defendant’s rights were
fully protected but that it received the unmerited benefit of ex
tremely favorable instructions, based upon an erroneous view of the
law. Under these circumstances, we perceive no reason for setting
aside the verdict.
E mployers’ L iability—I njury of E ngineer by M ail Sack
Crane— Chesapeake & Ohio Ry. Co. v. Leitch, Supreme Court of the
United States {.April 9, 1928), IS Supreme Court Reporter, page
336.— One Leitch was injured while employed as an engineer on
the Chesapeake & Ohio Railway Co. His injury was caused by com
ing in contact with a mail crane or mail sack hanging from it as
he looked from the window of his engine cab. A verdict was given
to Leitch in the State court of West Virginia, which was sustained
by the supreme court of appeals of the State.
The case was carried to the United States Supreme Court, which
on April 9, 1928, through Mr. Justice Holmes, reversed the decision
of the State courts, holding that there was no distinction between
em ployers’
l ia b il it y
79
this case and one decided previously by the court (Southern Pacific
Co. v. Berkshire, 254 U. S. 415) in which it was held that the engi
neer took the risk. The court said that—
The grounds of that decision were that it is impracticable to re
quire railroads to have no structure so near to their tracks as to en
danger persons who lean from the windows of the cars; that they are
obliged to erect mail cranes near enough to the tracks for the trains
to pick up mail sacks without stopping; that it is almost if not quite
impossible to set the cranes so far away as to leave no danger to
one leaning out, and that in dealing with a well-known incident
of the employment, adopted in the interest of the public, it is un
reasonable to throw the risk of it upon those who were compelled to
adopt it.
The court reasoned that the railroad should not be made liable for
this class of injury except where some unquestionable disregard of ob
vious precautions is shown. Leitch in this case, as the plaintiff also
in the Berkshire case, knew of the existence of the crane; that he
was an experienced engineer and knew the fact that the crane con
stituted a threatened danger. The court therefore held that the
evidence did not show grounds for making an exception to the gen
eral rule and reversed the judgment of the State courts.
E mployers’ L iability—I njury op Station A gent—Missouri
Pacific R. Co. v. Aeby, United States Supreme Court («January
3,1928), 48 Supreme Court Reporter, page 177.—Mary I. Aeby was
a station agent employed by the Missouri Pacific Railroad Co. at
Magness, Ark. On January 13, 1921, while performing her duties,
she fell on the station platform and was injured. She brought an
action against the railroad company on the ground that her injuries
were caused by reason of a defect in the station platform due to the
negligence of the company. The lower court gave judgment to the
agent, and the railroad company appealed the decision to the State
supreme court, which court affirmed the judgment. The railroad
company contended that the platform was not a part of its “ works ”
within the meaning of the liability act; that there was not sufficient
evidence to hold them guilty of negligence; that the station agent
assumed the risk; and that the sole cause of her injuries was due
to her own negligence.
The railroad company appealed the case to the United States Su
preme Court, which on January 3, 1928, reversed the judgment of
the State courts, holding that there was no negligence on the part
of the railroad company. In the words of Mr. Justice Butler:
This case is governed by the act and applicable principles of com
mon law as established and applied in Federal courts. There is no
80
DECISIONS OF T H E COURTS
liability in the absence of negligence on the part of the carrier. Its
duty in respect of the platform did not make petitioner an insurer
of respondent’s safety; there was no guaranty that the place would
be absolutely safe. The measure of duty in such cases is reasonable
care, having regard to the circumstances. The petitioner was not
required to have any particular type or kind of platform or to main
tain it in the safest and best possible condition. No employment is
free from danger. Fault or negligence on the part of petitioner
may be inferred from the mere fact that respondent fell and was
hurt. She knew that it had rained and that the place was covered
with ice and snow. Her knowledge of the situation and of what
ever danger existed was at least equal to that chargeable against the
petitioner. Petitioner was not required to give her warning.
E
m ployers’
L
ia b il it y —
I
n ju ry
of
Sw
it c h m a n
— J
u r is d ic t io n —
Sullivan v. Wabash Ry. Co., Circuit Court of Appeals, Sixth Cir
cuit, Ohio {January 4, 1928), 23 Federal Reporter (2d), page 323.—
John Sullivan was employed as a yard switchman by the Wabash
Railway Co. at Detroit, Mich. His duties required him to assist in
the switching and the classification of both interstate and intrastate
freight to and from the several freight yards. At about 6 o’clock in
the morning of the day on which Sullivan was injured he was en
gaged with other members of the switching crew in taking a train of
four cars from one freight yard to another. After the four cars had
been unloaded Sullivan was directed by the conductor of the crew
to uncouple the locomotive engine and couple it to the caboose and
then to an empty car. On the way to the Canadian boat yard (a
yard used exclusively for interstate or international freight) the
train stopped in one yard called Delray to drop off the empty car,
and while in the act of uncoupling the caboose from the empty car,
so as properly to set it on the No. 5 track in that yard, Sullivan was
injured. An action was brought by Sullivan in the District Court
of the United States for the Western Division of the Northern Dis
trict of Ohio. The trial judge in that court dismissed the case for
want of jurisdiction, holding that Sullivan at the time he was in
jured was not engaged in interstate commerce or even in work so
closely related to it as to be practically a part of it, and therefore he
could not sue under the Federal employers’ liability act.
The case was appealed by Sullivan to the Circuit Court of Ap
peals of the Sixth Circuit. This court reversed the lower court and
held that Sullivan was engaged in interstate commerce at the time
of his injuries.
e m p lo y e r s 9 L ia b ilit y
81
Circuit Judge Mack, in the course of his opinion, reversing the
lower court, said in part:
On these facts we are of the opinion that dropping the intrastate
car at the Delray yard was merely incidental to the dominant inter
state task on which Sullivan was engaged at the moment of the
injury; that is, to take his engine and caboose to the boat yard in
order there to get the interstate cars. He necessarily passed through
the Delray yards en route; true, he was directed to take the empty
along and to drop it there; but, on the record, that order appears
to have been given only because of and incidental to the primary
order in reference to the boat yard. There were not two independent
jobs *The first, to go to Delray yards with the empty and there drop
the empty; the second, then only to go to the boat yard. While a
single order may cover two separate and distinct trips, a going and
a return (Grigsby v. Southern Ry. Co., 3 Fed. (2d) 988 (C. C. A. 6 )),
in the instant case the entire trip, in our judgment, was a single one
to the boat yard, with a purely incidental stoppage at the Delray
yards.
E mployers’ L iability—I nterstate Commerce—Jurisdiction—
W orkmen’s Compensation—Miller v. Reading Go., Supreme Court
of Pennsylvania (January 3, 1928), llfi Atlantic Reporter, page
618.—David Miller was employed as a brakeman in the Port Rich
mond yard o'f the Philadelphia & Reading Railroad Co. He was
injured during the course of his employment by reason o f a defective
car coupler. Miller brought an action in the court of common pleas,
Philadelphia County, Pa., against the railroad company, alleging a
violation of the Federal employers’ liability act and the safety appli
ance acts. The lower court returned a judgment for Miller. At the
trial court it was not shown that the employment of Miller was in
interstate commerce, and hence no recovery could be had under the
Federal employers’ liability act, but there was shown a loss occa
sioned by the failure to comply with the requirements of the safety
appliance acts.
The railroad company appealed the decision of the lower court to
the Supreme Court of Pennsylvania, contending that the State work
men’s compensation act provided a proper and exclusive remedy for
all employees sustaining injuries in the course of their employment,
and Miller should look to the act for redress.
The State supreme court affirmed the judgment of the lower court,
and in the opinion said in part:
The Federal liability act can be taken advantage of only when an
engagement by the defendant in interstate commerce appears, and
82
DECISIONS OF T H E COURTS
therefore that legislation furnishes no basis for recovery here. But
the safety appliance act protects intrastate traffic on an interstate
highway, such as the defendant in the present instance was engaged
in, and this is true, though the railroad itself is entirely within the
bounds of the State, if it has a connecting point with one passing
beyond. The Federal statute applies to all locomotives and cars used
on any railroad that is a means of intercourse between States, though
the employee injured may not at the time be employed in such
commerce.
Congress has seen fit to provide that certain appliances shall be
used by railroads engaged in business between the States or connected
with others furnishing such service, and for the protection of all
the performance of certain duties is made requisite. Recovery may
be had by employees, irrespective of the character of their work at
the particular moment of injury, when there has been a violation of
the requirements as to the use of safety appliances. These rights of
the one injured are not affected by the workmen’s compensation act,
for the same underlying reasons which led to the conclusion that the
Federal employers5liability act may notwithstanding be enforced.
The enforcement of claims arising under the safety appliance act,
in personal injury actions is not confined to the Federal tribunals.
The State courts must always hold themselves open for the prosecu
tion of civil rights growing out of the laws of the United States.
Our workmen’s compensation act gave to a board exclusive jurisdic
tion of proceedings to adjudicate claims of employees, which by con
sent, express or implied, it was agreed should be so disposed of, and,
as to such cases, jurisdiction of the courts to try and determine is
ousted. But as to demands not arising from the ordinary relation
of employer and employee, such as the enforcement of rights fixed
by Federal statute, their powers remain as if no such State legisla
tion was in force. It follows that there was power below to entertain
the present proceeding.
E
m ployers’
L
ia b il it y —
L
ump
Sum
S ettlem en t— C
o m p r o m is e —
Munich v. Central Carbon Co. (Inc.), Supreme Court of Louisiana
(May £, 1928), 117 Southern Reporter, page 277.—P. Harvey Musick
was employed by the Central Carbon Co., and while so employed on
December 28,1923, was burned about the face, chest, and hands. For
a period of about two weeks he received treatment for his burns at a
hospital in Monroe, La. He was discharged from the hospital and
upon the advice of his physician he returned to his home and re
mained there about two weeks, going to Monroe on an average of
three times a week to have his wounds dressed. While at his home he
contracted pneumonia and was then returned to the hospital, where
he died on February 1, 1924. At the time of his death Musick was
receiving a maximum compensation of $18 a week. The Central
Carbon Co. denied liability for the death of Musick, but agreed to
E M P L O Y E R S J LIA B IL IT Y
83
settle the matter of compensation between themselves and the widow
of Musick. The district court granted an order authorizing the com
promise settlement.
Two years later the widow of Musick brought an action against
the Central Carbon Co. to recover $10,832, less the sum of $3,000 paid
as a balance due under the compromise settlement, with legal interest.
The widow alleged that at the time of the death of Musick there was
due the sum of $18 a week for 277 [287?] weeks, making the aggre
gate sum of $5,166 due, and also that the compromise settlement was
a lump-sum settlement and was made contrary to law, because the
discount was at a greater rate than 8 per cent per annum. That be
cause of the settlement being made contrary to law the carbon com
pany was liable to her in double the amount that was due at the time
the lump-sum settlement was made, less the amount actually paid in
that settlement, or $10,332, less the $3,000 paid, or a balance of $7,332,
with legal interest from the time of demand.
A judgment was given in the lower court to the Central Carbon
Co., and the widow then carried the case to the Supreme Court of
Louisiana. The State supreme court held that the widow did not
show a cause of action to recover the penalty sued for and affirmed
the judgment of the lower court.
The court in the opinion, in part, said:
In the case before us, as appears from the facts alleged in the peti
tion, and in the proceedings made part of it by reference, it appears
that, at the time the settlement was authorized and made, it was a
matter in dispute as to whether the death of the deceased was caused
by the injury he received. The facts created some doubt as to whether
or not it was. The death occurred over a month after the injury had
been received. It occurred after defendant had been discharged from
the hospital as sufficiently well for him to return to his home, though
with the understanding that he should visit the hospital two or three
times a week to have his wounds dressed. Whether the pneumonia
that the deceased contracted some two weeks after he returned home,
which resulted in his death, was a consequence of the injuries he
received, so far as appeared, was surrounded by doubt. In these cir
cumstances. there was room for compromise, and the settlement made
was binding. It was a substantial settlement, and one that can not
be said to be out of accord with the statute. The fact that defendant
paid compensation to the deceased at the maximum of $18 a week
from the time of the injury to his death does not amount, as appar
ently urged by plaintiffs, to an admission that the injury caused the
death of the deceased. At best, the payments merely amount to an
admission that compensation was due for the injuries received. Nor
does the fact that defendant paid the amount of the settlement agreed
upon, after it was authorized by the court, or that defendant agreed
to the settlement upon the basis that the injury resulted in death,
imply that it admitted that the death was in fact the result of the
84
DECISIONS OF T H E COURTS
injury, and hence that there was no question at the time the settle
ment was authorized as to the cause of the death. The positions were
taken, by way of compromise, after stating that defendant denied
that the injury was the cause of death, merely to remove the differ
ences existing between plaintiffs and defendant, and thereby reach a
basis for settlement.
E m p l o y e r s ’ L i a b i l i t y —M i n o r U n l a w f u l l y E m p l o y e d —Kucin
ski v. City Laundry & Cleaning Works, Supreme Court of Michi
gan (April 3, 1928), 218 Northwestern Reporter, page 773.—Helen
Kucinski, a girl of 17 years of age, was employed by the City Laun
dry & Cleaning Works. Her chief duties consisted of receiving
sheets, pillow cases, and towels from the mangle and folding them.
She was injured when her hand was caught between the guard and
the steam drum of the mangle and drawn into it. Helen Kucinski
brought an action in the Circuit Court of Iron County, Mich.,
through her next friend, Stella Kucinski, against the City Laundry
& Cleaning Works, alleging negligence on the part of the company
in employing her in violation of the statute in that she was under 18
years of age and the company did not have an employment permit
required by law for her employment.
A judgment was returned in favor of the girl by the circuit court,
and the company appealed the decision to the Supreme Court of
Michigan. The State supreme court affirmed the lower court and
held that the company was guilty of negligence in employing the
girl and that they could not defend on the grounds of assumption
of risk or the negligence of a fellow servant. Judgment was there
fore affirmed. (A State law in Michigan now provides a 100 per
cent of the ordinary award to the claimant or to the State as a
penalty for the illegal employment.)
The Supreme Court of Michigan affirmed a judgment awarding compensation
to a boy 14 years of age unlawfully employed, and held a factory owner guilty
of actionable negligence in employing a boy in violation of the statute. (Sundstrom v . Fruit Growers’ Package Co. (1928), 219 N. W. 617. See also Besonen
v. Campbell (1928), 220 N. W. 301.)
E m p l o y e r s ’ L i a b i l i t y — N e g l ig e n c e — Gulf & Ship Island R. Co.,
v. Curtis, Supreme Court of Mississippi (March 7,1927), 111 South
ern Reporter, page 587.—George D. Curtis was employed as a brake
man on the Gulf & Ship Island Railroad Co. The railroad is a
common carrier having physical connection with the New Orleans
Great Northern Railroad at Columbia, Miss., at which point they
.deliver cars to each other under an interchange agreement.
E M P L O Y E R S 7 L IA B IL IT Y
85
On November 30, 1925, Curtis, while engaged in braking a train
in the railroad yards at Columbia, Miss., fell from one of the cars
and was killed.
The widow of Curtis brought an action in the circuit court of
Jefferson Davis County, Miss., against the Gulf & Ship Island Rail
road Co., alleging negligence on the part of the railroad for the death
of her husband.
A judgment was awarded to the widow by the circuit court. The
railroad company carried the case to the Supreme Court of Missis
sippi, contending that since the deceased was killed while engaged
on cars generally used in interstate commerce, the case was governed
by the Federal employers’ liability act. The State supreme court
in affirming the judgment of the lower court said in part:
The hauling of an empty freight car from one State to another
is interstate commerce, and the interstate character of such a car
begins when, and not until, it has been designated therefor, and
has begun to move for the purpose of being put into a train of the cars,
or attached to an engine, that would carry it forward on its journey.
Leaving out of view the fact that the cars here in question might not
have been used by the New Orleans Great Northern Railroad in inter
state commerce, under the facts here in evidence their use in such
commerce did not begin prior to the time when the appellant’s
switching crew commenced to move them for delivery to the New
Orleans Great Northern Railroad pursuant to the order of the
appellant’s station agent so to do.
E mployers’ L iability—Negligence—Children U nlawfully E m
& Ohio Railway Co. v. Stapleton,
ployed—D amage— Chesapeake
Court of Appeals of Kentucky (February 14,1928), S Southwestern
Reporter (2d), page 209.—Tobe Stapleton was employed by the
Chesapeake & Ohio Railway Co. as a section hand. On October 1,
1925, Stapleton was directed by his father, who was his foreman, to
get some drinking water for the section gang. In returning with the
water, he crawled under a freight train which had pulled up on a side
track and stopped. The train moved unexpectedly while he was under
the cars and he was run over and sustained permanent injury. At the
time of the injury Stapleton was 15 years of age. Suit was brought
under the Federal employers’ liability act, by the guardian of Staple
ton in the Circuit Court of Floyd County, Ky. The petition alleged
two specific acts of negligence on the part of the railroad: First, the
negligence of the train crew; and second, the employment of the boy
in violation of the Kentucky child labor law. A judgment was given
in favor of the boy. Upon appeal by the railroad company to the
86
DECISION’S OF T H E COURTS
Kentucky Court of Appeals, the court affirmed the judgment of the
lower court on February 14,1928.
The main question in the case was whether the boy was entitled
to recover because of his employment by the railroad company in
violation of section 331a9 of the Kentucky statutes, relative to the
employment of children under 16 years of age. The court of ap
peals held that a violation of the statute was negligence, saying that:
The Federal employers5 liability act makes a railroad company
liable for negligence. That section of Kentucky statutes is not sup
erseded by the Federal act. Whether the railroad company is guilty
of negligence depends upon the law of the State where the injury
happened unless the law of the State is in conflict with the Federal
act.
The court in disposing of the contention of the railroad company
that the boy was not entitled to recover because he was making an
improper and unauthorized use of the company’s premises said that:
It is true his duties did not require him to crawl under or through
the standing train, but he was attempting to discharge his duties
when he did so. He was not a volunteer or acting outside the scope
of his employment. He would not have attempted to crawl under
the train in carrying water to the section hands if he had not been
employed by appellant in violation of the statute.
This case was carried to the Supreme Court of the United States,
and was reversed on May 27, 1929. (40 Sup. Ct. 442.) Mr. Chief
Justice Taft delivered the opinion of the court in which he said in
part as follows:
That the State has power to forbid such employment and to pun
ish the forbidden employment when occurring in intrastate com
merce, and also has like power in respect of interstate commerce so
long as Congress does not legislate on the subject, goes without say
ing. But it is a different question whether such a State act can
be made to bear the construction that a violation of it constitutes
negligence per se or negligence at all under the Federal employers’
liability act. The Kentucky act, as we have set it out above, is a
criminal act and imposes a graduated system of penalties. There
is nothing to indicate that it was intended to apply to the subject
of negligence as between common carriers and their employees. It
is true that in Kentucky and in a number of other States it is held
that a violation of this or a similar State act is negligence per se,
and such a construction of the act by a State court is binding and
is to be respected in every case in which the State law is to be
enforced.
But, when the field of the relations between an interstate carrier
and its interstate employees is the subject of consideration, it becomes
a Federal question and is to be decided exclusively as such.
em ployees’
87
l ia b il it y
We have not found any case in which this question has been pre
sented to the Federal courts, but there are three or four well-rea
soned cases in State courts wherein this exact point is considered
and decided.
We think that the statute of Kentucky limiting the age of em
ployees and punishing its violation has no bearing on the civil lia
bility of a railroad to its employees injured in interstate commerce,
and that application of it in this case was error.
E m p lo y e r s ’
L ia b il it y — N e g lig e n c e — C o n s t it u t i o n a lit y — P u n i
Louis Pizitz Dry Goods Go. {Inc.) v . Yeldell,
United States Supreme Court {April 11, 1927), Jfl Supreme Court
Reporter, page 509.— C a r r ie Y e l d e l l w a s k ill e d t h r o u g h th e n e g
tiv e
D am ages—
lig e n t o p e r a t io n o f a n e le v a t o r b y a n e m p lo y e e o f L o u is P i z i t z D r y
G oods
Co.
(I n c .),
of
A la b a m a .
An
a c t io n
w as b rou g h t b y
th e
a d m in is t r a t o r o f th e e sta te a g a in s t th e c o m p a n y .
A verdict of $9,500 was given against the Dry Goods Co. in the
lower court, and on appeal, the higher court of the State affirmed
the award. The company did not deny its liability for the negli
gent act of its employee, but contended that the “ homicide act ” of
the State permits the jury to assess punitive damages against the
company for the mere negligence of its employee. It was also con
tended that such an act was oppressive, arbitrary, unjust, and in
violation of the fourteenth amendment of the United States Consti
tution.
The case was taken to the United States Supreme Court, and
this court on April 11, 1927, affirmed the judgment of the State
court, holding that the purpose of the State statute was to strike
at the evil of the negligent destruction of human life by imposing
liability, regardless of fault, upon those who are in a position to
prevent it, and that it was within the province of the State to im
pose such extraordinary liability, and that the act therefore was
not in violation of the fourteenth amendment.
E
m ployers’
L
ia b il it y —
N e g l ig e n c e — D
e a t h op
C ar I
n spector—
Kansas City Southern Ry. Co. v. Jones, Supreme Court of the
United States {March 19,1928), Ifi Supreme Court Reporter, page
308.—R. D. Ferguson was killed while employed as a car inspector
by the Kansas City Southern Railway C o.. From the evidence pre
sented no one saw the death, but the body was found between the
main line track and a parallel one. It was the contention of the ad
ministrator of Ferguson that he was engaged in inspecting the cars,
88
DECISIONS OF T H E COURTS
and so absorbed in his work that he did not hear the approaching
train but was relying upon the ringing of the engine bell, which
usually was rung, but which witnesses for Ferguson say was not rung
on this occasion.
The State court returned a verdict on this ground in favor of
Ferguson. The railroad company carried the case to the United
States Supreme Court, which on March 19, 1928, through Mr.
Justice Holmes, reversed the decision of the State court, holding
that evidence was insufficient to sustain a finding that death was
due to the railroad’s negligence rather than to that of Ferguson.
From the evidence presented the court said that 64nothing except
imagination and sympathy warranted a finding that the death was
due to the negligence of the petitioner rather than to that of the
man himself.”
E m p lo y e r s ’ L i a b i l i t y — N e g lig e n c e — D e a t h
o f “ W a te r B o y ”—
Chesapeake & Ohio Ry. Co. v. Russo, Appellate Court of Indiana,,
in Banc ( October 2^ 1928), 168 Northeastern Reporter, page 283.—
Tony Companion was employed by the Chesapeake & Ohio Rail
way Co. as a “ water boy ” for the maintenance crew. On June 8,
1925, near the station of Converse, on the company’s main-line rail
road in Indiana, Companion was killed when a freight train was
derailed at a place where he and the maintenance men were working.
An action was brought in Grant Circuit Court of Indiana by
Frank Russo, administrator of the estate of the deceased. The chief
cause of the complaint was that the railroad was negligent in main
taining the roadbed in a defective and unsafe condition during re
pair work, and in the failure of their servants to slow down the train
while passing over a section of the track under repair.
Judgment was given in the circuit court to Russo, and the railroad
company thereupon appealed to the appellate court of the State.
The railroad company maintained that there were not sufficient facts
to maintain a verdict in favor of the deceased employee; that as he
was a member of the repair gang he knew of the alleged dangerous
and defective condition of the track and therefore assumed the risk.
The appellate court affirmed the lower court in the following
language:
The evidence shows without dispute or controversy that the said
“ extra gang ” was engaged in taking up the old rails of the track
of appellant and replacing the same with new rails; that the busi
ness of the deceased was to carry water to the men directly engaged
in the work of replacing said rails; that he had entered upon his
employment on the morning on which he was killed; the records
of the appellant company introduced in evidence showed that he had
em ployers’
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89
labored three hours on that morning as “ water boy.” The question
then arises, Is a water boy who carries water to the laborers who are
actually engaged in work in furtherance of interstate commerce,
and who are therefore under the protection of the Federal act (45 U.
S. C. A., secs. 51-59), also entitled to the protection of that act?
This “ extra gang,” as a whole, was engaged in replacing the rails
of appellant’s track—taking out the old and putting in the new.
This was a work in furtherance of interstate commerce. This
work, of necessity, was not all of one kind; some laborer or laborers
distributed the spikes, others the plates, others placed the rails,
others the bolts necessary to fasten rail to rail, while still others did
the work of placing the bolts through the plates and rails and then
tightening the same. Each and all were contributing their part
toward the accomplishment of the end desired—the laying of a new
track to take the place of the old. The deceased was carrying water
to these men; he was, in this way, contributing his part toward
the accomplishment of the end desired; he had a part m this work
the same as the laborer who distributed and laid the new spikes upon
the tie where they were to be driven; each of such persons was doing
an act which aided other workmen to accomplish their particular
task more speedily and we hold that the work of the said deceased,
as a water boy, was so intimately connected with interstate commerce
as to be a part thereof.
The duty which appellant owed to the deceased, to exercise rea
sonable care to keep the place where deceased was working reason
ably safe for him, by so ordering and controlling the movement of
trains over said portion of said track, so weakened and dangerous,
was a primary one, and whether those in charge of said train knew
of the dangerous or unsafe condition of said track or not would not
relieve the appellant from doing its duty in the matter. I f these
men knew oi the condition of the track and that it was unsafe for
trains running at high speed and yet did not reduce the speed of
the train, their negligence in that regard would be the negligence of
the company. It was the appellant’s duty to establish reasonable
rules and regulations governing the operation of its trains; the track
was weakened and unsafe and it knew it, and it knew that reason
able care for the safety of its servants required that the speed of
trains at this place should be reduced, hence the duty to issue orders,
or to put a flagman there to flag trains and cause them to reduce
speed. That trains had gone over this track during Saturday night,
Sunday, and Sunday night without having been derailed and with
no flagman at said point and no orders to trainmen to slow down
can not relieve the appellant of any duty it owed toward the deceased.
E mployers’ L iability—Negligence—E mployee K illed by Spe
cial Officer—Atlantic Coast Line R. Co. v. Southwell, Supreme
Court of the United States (October 31, 1927), 48 Supreme Court
Reporter, page 25.—H. J. Southwell was an employee of the Atlantic
Coast Line Railroad Co. He was shot in North Carolina by a special
police officer of the railroad. The administratrix, Ida May South
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DECISIONS OF T H E COURTS
well, of the estate of Southwell, brought an action against the rail
road company alleging “ gross negligence willfully and wantonly
caused, permitted, and allowed.”
A judgment for the administratrix was affirmed by the Supreme
Court of the State of North Carolina. The railroad company ap
pealed the decision to the United States Supreme Court, which on
October 31, 1927, reversed the judgment of the State court.
The question involved was whether there was any evidence that
the death of Southwell resulted in whole or in part from the negli
gence of any officer of the railroad company.
The court, through Mr. Justice Holmes, said that there was no
evidence warranting such a judgment, and that it would be straining
the language of the Federal employers’ liability act somewhat to
say in any case that a willful homicide resulted from the failure of
some superior officer to foresee the danger and to prevent it. It would
therefore, the court said, u be extravagant to hold the railroad com
pany liable under the facts and circumstances of the case.”
E m p l o y e r s ’ L i a b i l i t y — N e g l i g e n c e — E v i d e n c e — Gulf, Mobile &
Northern Railroad Co. v. Wells, Supreme Court of the United States
(January 3, 1928), 48 Supreme Court Reporter, page 151.—W. F.
Wells was injured while performing the duties of a brakeman on a
freight train of the Gulf, Mobile & Northern Railroad Co. in the
State of Mississippi. He contended that the injuries were caused by
the negligence of the engineer. After the evidence of Wells had
been submitted the railroad company requested that a decision be
made in their favor. This was refused by the court, and a judg
ment was given to Wells. This judgment was later affirmed by the
supreme court of the State. The railroad company appealed to the
United States Supreme Court, which on January 3, 1928, through
Mr. Justice Sanford, reversed the decision of the State court. The
court held that there was no evidence on which to base the contention
that the injury was caused by the negligence of the engineer. The
statement of Wells that “ the engine gave an unusual jerk ” which
was more severe than any he had ever experienced or seen on a local
freight train, was a mere conjecture, as he could not see what oc
curred in the engine. The court therefore ruled that the evidence
as to whether the injury was caused by the negligence of the engi
neer as charged by Wells was insufficient to take the case to the jury,
and ordered the judgment reversed and the cause remanded to the
Supreme Court of Mississippi for further proceedings.
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E m p l o y e r s ’ L i a b i l i t y — N e g l ig e n c e — I n j u r y — Saunders v. Boston
& Maine R. Co., Supreme Gourt of New Hampshire (Jammry 5,
1927), 186 Atlantic Reporter, page 264-—Harry E . Saunders was
employed as an operator of a 1-man car upon an electric street rail
way, running out of Portsmouth, N. H., owned by the Boston &
Maine Railroad Co. He was ruptured while lifting with others, in
lilting a street car to release a pedestrian who had been run down
and wedged beneath the wheel guard. Saunders brought an action
against the railroad company, contending that the company failed
to equip the car with a fender or life guard and with a jack.
The company answered holding that Saunder’s duty was confined
solely to the operation of the car, and that therefore he was not
acting within the scope of his employment in attempting a rescue.
In the superior court the case was dismissed, and Saunders there
upon removed it to the supreme court of the State.
To determine whether in attempting to rescue Rollins he was act
ing within the scope of his employment, the test, the court said, was
whether the ordinary man, in the situation presented, would have
reasonably understood that he was expected to do so. The court
further said in part:
Here the plaintiff was charged with such responsibility as the
defendant had toward passengers and pedestrians growing out of
the operation of the car placed in his charge. It could be found
that the ordinary man in the plaintiff’s situation would have under
stood that his employer would expect him to do what he reasonably
could to extricate the man he had run down. He was not called
upon, before acting, to weigh and determine with nicety whether
or not, under the circumstances of the injury to Rollins, a jury would
probably find the railroad liable for damages. It was sufficient that
an ordinary person in his situation would have understood that
the interest of his employer required of him reasonable effort to
prevent such a claim, or to minimize the damages for which the
employer might be liable. (Carpenter v. Mfg. Co., 80 N. H. 77, 78,
79, 112 Atl. 909.) It could be found, therefore, that the plaintiff,
m seeking to release Rollins from his perilous position, was acting
within the scope of his employment.
Whether the railroad company owed a duty to Saunders to equip
its cars with jacks the court said in conclusion:
There was no evidence of the purpose for which such appliances
were carried. For anything that appears, they may have been pro
vided to meet some special emergencies, or to comply with statutory
requirements. Such testimony is not evidence upon which a jury
may be allowed to find that this defendent owed this plaintiff a duty
to equip its cars with jacks to relieve him from the potential danger
of overexertion. Nor have occasions for extricating pedestrians
from under electric cars been of such common occurrence that a jury
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DECISIONS OF T H E COURTS
The superior court found for the telegraph company. The case
was then taken to the supreme judicial court of the State, and the
decision of the lower court was affirmed. Judge Crosby delivered
the opinion of the court, saying in part:
To warrant a finding of negligence, it must appear that the negli
gence of the defendant had a causal connection with the injury to
the intestate from which death resulted. It was not negligence for
the defendant to send Toomey to the train to deliver the telegram,
nor was it negligence for the defendant to fail to warn him not to
board the train. His act in so doing caused him no injury. His
death was due to jumping from the train when it was in motion.
It was not evidence of negligence that the defendant failed to warn
him of such a dangerous act. It was a danger so obvious, not; only
to persons of mature age, but to a boy of the age of the intestate,
that he must have known that it was an act of great peril. The
defendant can not be charged with knowledge that the boy might
leap from the train while it was in motion, and therefore should
have warned him of the risk of injury by so doing. An employer
is under no duty to warn of dangers open and obvious to the ordi
nary inspection of an employee when tnere is no reason to suppose
that there is any need of such warning.
There was nothing to show that the deceased was not of average
intelligence. It is common knowledge that to alight from a fastmoving train may be accompanied by serious bodily injury or
death; ordinary experience has stamped it as a dangerous act known
to a boy of average intelligence, 15 years of age.
E
m ployers’
L
ia b il it y —
N
e g l ig e n c e —
M
in e —
S tatus
of
O
w ner—
Glover's Administrator v. James, Court of Appeals of Kentucky
(January 14, 1927), 290 Southwestern Reporter, page 344-—Robert
Glover in the Circuit Court of Pulaski County, Ky., on the grounds
that Glover’s death was occasioned by the negligence of James.
An action was brought against James by the administrator of
Glover in the the Circuit Court of Pulaski County, Ky., on the
grounds that Glover’s death was occasioned by the negligence of
James.
From the facts in the case it appeared that James, some years
before the accident, had operated the mine himself, but at the time
of the accident he was not operating it, but had leased it to one
Mounce. A judgment was given in favor of James, the court having
directed the jury to return this verdict. The administrator of
Glover’s estate then appealed to the Court of Appeals of Kentucky,
This court affirmed the judgment of the lower court, saying in
part:
EM PLOYERS* L IA B IL IT Y
95
Before the plaintiff can recover, he must show that the relation of
master and servant existed between the defendant and Glover, and
of this there was no proof whatever. The proof is all to the effect
that Mounce had leased this mine from the defendant; had employed
Glover and the other workmen; that the defendant had no charge of
them whatever; and they were, in no sense, under his control. Under
such circumstances, he can not be held responsible for Glover’s death.
Mounce, in operating this property as he did, under a lease from the
defendant, was an independent contractor, for whose acts and omis
sions the defendant was in nowise responsible.
Unless plaintiff could show that the defendant had general control
of the work, and had the right to direct the doing of it, the relation
of master and servant did not exist between the defendant and
Glover. Unless that relation existed, the defendant owed no duty
to Glover. Negligence is the failure to perform some duty. Where
there is no duty there can be no negligence.
L i a b i l i t y —N e g l ig e n c e — S c ope or E m p l o y m e n t —
—Barry v. Boston & Marne Railroad, Supreme Court,
Appellate Division, Third Department, New York (May 16, 1928),
229 New York Supplement, page 378.—Fred W. Barry was employed
as a fire watcher by the Boston & Maine Railroad in its yards at East
Deerfield, Mass. It was his duty to keep up the fires on unassigned
engines in the yard, to see that steam was kept at proper pressure,
and that there was a proper amount of water in the engine. From
the facts in the case it appeared that Barry boarded an engine to
perform his usual duties. He found the fireman raking the fires
and sat down upon the engineer’s seat across the boiler from him.
The engineer was not about, but later came into view and directed
Barry to move the engine. Barry moved the necessary lever, and
while so doing the fireman said, “ Be careful, there is no air on.”
The engine, however, started, and neither the fireman nor Barry
was able to stop it. It was headed toward a turntable pit, and Barry
jumped, breaking his ankle. He brought an action in the Trial
Term Court of Saratoga County, N. Y., against the railroad com
pany for damages under the Federal employers’ liability act.
The railroad company asked for a nonsuit and a dismissal of the
complaint upon the ground that Barry was not acting within the
scope of his employment when he moved the engine, and that the
cause of the accident was the failure of Barry to see that there was
air to operate the brakes before he started the engine. The lower
court awarded a judgment in favor of the railroad and Barry there
upon appealed to the Supreme Court, Appellate Division, Third
Department, New York.
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DECISIONS OF TH E COURTS
The appellate court ordered a reversal of the trial court, and in
an opinion by Judge Hill on May 16, 1928, said in part, as followsThe defendant argues that plaintiff alone was negligent, because
he started the engine without looking directly in front of him at the
gauge that indicated there was no air to operate the brakes. We
may concede that such conduct was negligent, but, if the engineer
also was negligent, plaintiff can recover. This engine was in charge
of the engineer. It could only be moved when he directed. A rule
of the company offered in evidence provides: “ The engineman is
personally responsible for every movement of the engine when in
service.” It was a negligent act to direct the movement of this engine
without affirmatively knowing that it could be done with safety.
Plaintiff’s employment required him to watch the fires on the
engines standing in the yard. Some of them, including the one in
question, were engaged in interstate commerce. His regular employ
ment brought him within the provisions of the Federal act.
The evidence does not disclose whether plaintiff had been seated
in the engine seconds or minutes. It was a question of fact for the
jury whether this temporary relaxation and conversation with a co
employee, immediately followed by an act in aid of the business of
his employer^ was an abandonment of his work. His superior, so far
as the operation of the engine was concerned, directed him to perform
an act in furtherance of an interstate movement of freight. There
was no rule or requirement that he should not obey such direction.
The negligent act of the engineer was imputable to the master.
E mployers’ L iability—Negligence—W orkmen’s Compensation
A cts— Lockhart v. Southern Pacific Go., District Court of Appeal,
Third District, California (May 15, 1928), 267 Pacific Reporter.
page 591.—Thomas R. Lockhart was employed by the Southern Pa
cific Co. in charge of a yard switch engine in the company’s railroad
yards at Los Angeles, Calif. His duties were to take cars in need
of repairs into the repair yard, and after they had been repaired to
place them on tracks where they might be sent back into service. It
was on the return trip after so placing the cars on the night of
April 14, 1924, that Lockhart was injured. He brought an action
against the Southern Pacific Co. in the Superior Court of Los An
geles County, Calif., alleging that he was injured through the negli
gence of the company. The railroad company denied the negligence
and alleged that at the time and place of the accident the company
was engaged in intrastate commerce, and that the Superior Court of
California was without jurisdiction to try the case, and that it could
only be heard by the industrial accident commission of California.
At the close of Lockhart’s case the superior court entered a judg
ment in favor of the railroad. Lockhart thereupon appealed to the
District Court of Appeal, Third District of California.
E M P L O Y E R S f L IA B IL IT Y
97
The main question raised on appeal was whether Lockhart was
employed in interstate commerce at the time of the injury. The
appeals court affirmed the lower court, and said in part:
I f it had been shown that the cars in question were generally used
in interstate commerce, it might be argued logically that plaintiff’s
work was so connected with the repair of the cars as to be of an
interstate character. “An employee performing repair work or other
work in connection with an engine, car, or other similar instru
mentality habitually used in interstate commerce is entitled to the
benefit of the provisions of the act, although at the time the instru
mentality is temporarily at rest or out of service, or is not being
put to the particular use for which it was designed. * * * Where
repair work is a part of interstate commerce, all minor tasks which
form a part of the larger one are likewise interstate commerce so as to
make a person engaging in them engaged in interstate commerce.”
(12 C. J. 47.) Here the evidence not only fails to show that the
cars in question were habitually used in interstate commerce, but it
does not appear that they were ever so used. The burden was on
the plaintiff to allege and prove that at the very time and place of
the accident, the defendant was engaged in interstate commerce.
The court answered Lockhart’s contention which he based on the
case of Helme v. Great Western Milling Co., 43 Calif. App. 416, 185
Pac. 510 (see B. L. S. Bui. No. 290, p. 102) that even though he was
engaged in interstate or intrastate work at the time he was injured,
nevertheless he was entitled to maintain his action on the ground
that the railroad was negligent.
The decision in that case was based on the provisions of subdivi
sion (b) of section 12 of the workmen’s compensation, insurance,
and safety act of 1913 (Stats. 1913, p. 279), providing that in a case
of gross negligence of an employer, an injured employee might, at
his option, maintain an action in court for damages or apply to the
industrial accident commission for compensation for the injury.
Those provisions were omitted from the act of 1917 (Stats. 1917,
p. 831), and therefore the case cited is inapplicable. It may be
stated further that gross negligence was neither alleged nor proved
in this case.
E mployers’ Liability—Poison—Death—Duty of E mployer to
W arn E mployee—Baumgartner v. Pennsylvania R. Co., Supreme
Court of Pennsylvania {Jammry 23, 1928), llfi Atlantic Reporter,
page 622.—Charles Baumgartner was employed as a common laborer
by the Pennsylvania Railroad Co. at Washington, Pa. His duties
were to shovel out of a pit ashes which had been dumped from the
locomotive engines. The practice was to dump the fires from the
engines into the pit and drench the ashes by means of a hose and
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DECISIONS OF TH E COURTS
then shovel them onto the platform and into a car. On November
19, 1922, while Baumgartner was about to finish his day’s work, he
lapsed into a semiconscious condition and died shortly thereafter.
It was thought that he died from carbon monoxide poisoning.
The widow of Baumgartner brought an action in the court of com
mon pleas, Allegheny County, Pa., against the Pennsylvania Rail
road Co., alleging negligence on the part of the railroad in not
informing the employee of the dangerous nature of the work.
A judgment was awarded the widow in the lower court. The
railroad company appealed the case to the Supreme Court of Penn
sylvania contending that Baumgartner’s death did not result from
the inhalation of the carbon monoxide gas.
The State supreme court affirmed the judgment of the lower court,
and in the opinion by Judge Walling said in part:
The suggestion that defendant was ignorant of the fact that burn
ing coal ashes would under certain conditions give off carbon mon
oxide gas is untenable. The evidence contains no such averment,
and the master is presumed to know the nature and qualities of the
materials he places in the hands of his servants. In other words,
he is presumed to have such knowledge of matters pertaining to
his business as is possessed by those having special acquaintance
with the subjects involved.
Assuming, as we must, at this stage of the case, that the situation
was one of danger, known to the master but not to the servant, then
the duty of the master to give warning was imperative.
Carbon monoxide poisoning can not be regarded as something out
side of the range of human experience. One of defendant’s experts
testified to having treated over 2,000 cases during the past 18 vears.
That defendant knew the dangers here involved may be inferred
from the fact that it gave other employees strict orders not to re
move the ashes until after the fire therein had been entirely extinuished. As the deceased had no knowledge of the danger to which
e was exposed, it can not be urged that he assumed the risk.
That the immediate cause of the death in question resulted from
the act of a coemployee in neglecting to completely extinguish the
fire before removal of the ashes is no defense under the Federal em
ployers’ liability act, which expressly provides that the carrier shall
be liable for the death of an employee resulting from the negligence
of any of the officers, agents, or employees of such carrier.
f
The Appellate Division, Third Department, of the Supreme Court of New
York, affirmed the lower court in a case of a railroad employee who was
killed when caught between an engine and wall. The railroad was held not
negligent, and the risk of using the space between the tracks and the wall was
obvious and one which the employee must have known and assumed. (Buffing
ton v. Boston & Maine Railroad (1928), 226 N. Y. Supp. 302.)
,
,
E mployers ’ L ia b ility — B ailroad P oliceman — Delaware, Lacka
wanna <Ss Western R. Co. v. Scales Circuit Court of Appeals Second
E M P L O Y E R S’ LIA B IL IT Y
99
Circuit (March 7 ,1927), 18 Federal Reporter (2d), page 78.—George
O. Scales was employed by the Delaware, Lackawanna & Western
Railroad Co. as a “ railroad ” or private policeman. His superior
officer was a man by the name of Caffrey. The two men jointly
owned a motor car, registered under the law of New York in the
name of Scales. In October, 1925, as Caffrey and Scales were re
turning in the motor car from Owego to Binghamton, N. Y., from
an investigation as to an alleged theft of property from the railroad,
the car being driven by Caffrey ran into a ditch, injuring Scales.
Scales brought an action against the railroad company in the
District Court of the United States for the Northern District of
New York, relying on the Federal employers’ liability act, and alleg
ing that he had been injured while tracing goods lost while in inter
state transit, and while under the orders of Caffrey, his “ immediate
superior officer.” By the negligence and carelessness of the rail
road’s agent, servant, and employee he was injured.
The district court returned a judgment in favor of Scales. The
railroad company appealed the decision to the Circuit Court of
Appeals, Second Circuit, on the grounds that the case was not one
governed by the Federal employers’ liability act. The court of ap
peals reversed the decision of the lower court and after reviewing
several citations showing inclusions and exclusions of persons under
the Federal employers’ liability act continued in part:
Applying these decisions to the matter in hand, it may be inferred
that, if Scales and Caffrey were engaged at Owego in work “ so closely
connected with interstate transportation as practically to be part of
it,” they would still be therewith connected in going to and returning
from that town; but the question remains, Is the business of being
a policeman for a railway engaged in both kinds of commerce an
(so to speak) interstate occupation? And, further, did it make
any difference that that which had been supposedly stolen at Owego
was in transit from one State to another? The answers to these
queries, so far as reported decisions go, are matters for reasoning
and inference, and in our judgment that method leads to a rejection
of the complaint.
We take notice of the fact that what are called railway policemen
are creatures of State law. There is nothing in Federal statutes
creating them, or giving them authority, allying them officially to
interstate commerce. Tneir police function is to arrest, pursuant
to State law, offenders against any lawful authority, State or na
tional. But evidently they have nothing to do with transportation
of any kind. A guard upon a car traveling between States would
be in a different position.
Nor did the fact that the goods missing disappeared while in inter
state transit vary this truth. As policemen, all that called Scales
and Caffrey into action was not transportation, but the cessation
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DECISIONS OP T H E COURTS
thereof. Nor did it make any difference that, assuming the goods
were stolen as suspected, the theft was, under existing statutes, an
offense against both State and national laws, for the duties and pow
ers of the railway police were neither modified nor enlarged by the
sanctions attached to the offense. In short, the occupation of Scales
and Caffrey on the day in question would have been exactly what it
was had they been peace officers of the appropriate county or city
instead of policemen employed by a private corporation.
Employers’ Liability— Seamen— N e g l ig e n c e —Care
and
Cure—
United States Shipping Board Emergency Fleet Corporation et al.
v. Greenwald, Circuit Court of Appeals, Second Circuit {January 10,
1927), 16 Federal Reporter {2d), page 948.— One Greenwald was
a seaman on board the steamship Ogontz, owned by the United States
Shipping Board Emergency Fleet Corporation and managed and
operated by A. H. Bull & Co. The seaman died on board the
ship at Accra, Gold Coast, Africa, on February 12, 1919, from
enteritis caused by food poisoning.
The administratrix brought an action in the District Court of the
United States for the Southern District of New York against both
parties, basing it on the so-called Lord Campbell’s Act, giving
damages for injuries causing death, the New York decedent estate
law, the death statutes of Pennsylvania and the District of Columbia.
The owners and the operating manager of the ship contended that
the deceased seaman having died in Africa, the right of action for
loss of his life was dependent upon the right of recovery of the law
of that land.
The judge of the district court submitted the case to the jury
under the statute of the District of Columbia, holding that the flag of
the ship determined the law of the land of the place of the damage.
Upon an appeal to the Circuit Court of Appeals, Second Circuit,
by the shipping interests, Circuit Judge Manton adopted the view
taken by the lower court, saying:
This merchant ship on the high seas is of the country of the flag
she flies, and the law of the flag applies to the right of action which
arose on the high seas.
Continuing, the court said:
The statute of the District of Columbia says: “ Whenever by an
injury done or happening within the limits of the District of Co
lumbia the death or a person shall be caused by the wrongful act,
neglect, or default of any person or corporation, * * * ” suit may
be maintained, and the recovery is limited to $10,000. (31 Stat. 1394,
ch. 854, secs. 1301, 1302, 1303.) Jurisdiction and the laws of the
Nation accompany the ship not only over the high seas but also in the
EM PLOYERS ’ LIA B ILITY
101
ports and harbors, and everywhere else they may be waterborne.
(United States v. Rodgers, 150 U. S. 249,14 Sup. Ct. 109.) This ship
was within the District as contemplated by the statute when on the
high seas, since she was a vessel of the District of Columbia, resident
and registry. This seaman was under the protection of that flag, and
his administratrix is entitled to the benefits of that statute.
The judgment against the Emergency Fleet Corporation and the
operating managers of the steamship Ogontz rendered by the court
below was accordingly affirmed.
E mployers’ L iability—State P olice A cting as Strike Guard—
Status o f E mployees— Hudson v. St. Louis Southwestern Ry. Go., of
Texas, Cornmission of Appeals of Texas, Section B (April 27,1927),
293 Southwestern Reporter, page 811.— Clayton Hudson, while doing
picket duty at Tyler, Tex., during the railway shopmen’s strike in
July, 1922, was shot and killed by one Pearce, a Texas ranger. The
St. Louis Southwestern Railway Co. had applied to the governor of
the State for a body of rangers to act as a guard for its property
and employees. The governor consented to send rangers, provided
the railroad company would furnish the funds with which to pay
their compensation. This was agreed to by the company, and a
number of rangers were sent to Tyler, and while stationed in and
about the railroad’s shops and yards the shooting took place. There
was no evidence shown of violence on the part of Hudson or the other
pickets. An action was brought by the parents of Hudson, and the
trial court decided in favor of the deceased. The railroad company
thereupon appealed the case, and the court of civil appeals set aside
the judgment of the lower court and held for the railroad company.
Later the parents of the deceased picketer appealed, and the Com
mission of Appeals of Texas, on April 27, 1927, returned a judgment
in favor of Hudson and ordered the case for a retrial. The conten
tion of the Hudsons was that Pearce was an employee of the railroad
company; that he had been selected and armed and was paid for his
services by the railroad company and when the killing occurred was
acting in furtherance of his employment. The railroad company de
fended by asserting that Pearce was subject only to the orders and
authority of the regularly appointed captain of the rangers force
and was not in their employ, nor was he at the time of the killing
performing any service for the railway company. As to whether
Pearce was an employee of the company and at the time of the kill
ing was acting within the scope of his employment, the court said:
It seems to be well settled that a public peace officer may become
the private employee of another for the purpose of guarding and
102
DECISIONS OF T H E C0TJKTS
protecting such other’s property, and the test of liability for a tort
committed by such officer or employee seems to be in what capacity
he was acting at the time the act was done. One may be both a
public peace officer and a private employee as watchman for an indi
vidual or corporation at the same time, and it does not, of course,
follow that the official character of the individual would be any
protection to an action against the employer for his acts done in
the course and within the scope of the employment. The question
is, “ Whose servant was he?” And, further, “ Was the act com
plained of committed while he was acting within the scope of his
employment if a servant of another?”
Now, public peace officers are not concerned with the guarding of
private property. Their duties pertain primarily to the public—
the arresting of offenders and the suppression and prevention of
crime, in a measure. The guarding of private property is not the
function of a public official, and when he is thus engaged he has
stepped aside from his official duties. Such seems to be lawful, but
the wisdom of it is extremely questionable. It is matter of judicial
notice in the courts that in cases of serious strikes by employees of
railway companies there does arise a species of industrial warfare in
which the principal weapon upon the one hand is the embarrassment
of lack of employment even at times to the point of want and hunger,
and, on the other, that universal aid to the strike—the picket. The
weapons are not always of equal potency, but the respective methods
are within themselves at least not unlawful. The fact remains,
however, in all such cases, and in the present case, the success of
the picket line is a telling factor in this industrial battle. It can
not be doubted, therefore, in the very nature of things, that a part
of the duties—yea, much of them—of these ranger guards had to do
with this picket line. Indeed, there is much evidence tending to
show this to be the case. The maintaining of such picket line and
performing services thereon being altogether lawful, there was noth
ing calling for the exercise by Pearce of any official act toward young
Hudson. He had violated no law and was not threatening any viola
tion. His services on picket duty for the strikers could only serve
as an embarrassment to the company and contribute in some measure
to its difficulties in efficiently carrying on its business. For this
reason it was highly important to the company that its shops should
be protected against the picket in so far as was lawful and proper,
and to that end it had a right, as it did, to employ and place guards
about its property. There can be no doubt but that the duty of
Pearce and other guards about the premises would necessitate the
ejectment of trespassers, and especially strikers, whose presence was
calculated to interfere with the progress of the company’s work.
That would be the plain duty of such guards. But the contention is
that, since Hudson was not trespassing nor threatening a trespass,
and was not violating any law of the State, nor threatening any, the
act of Pearce in shooting him was not only unjustifiable but was not
within the service for which he was employed; that he had turned
aside from such service and engaged in an altercation purely personal
and foreign to the service, for which his employer would not be
liable. But we can not sustain this contention. It "is not sufficient to
em ployers’
l ia b il it y
103
excuse the employer that the employee had had no authority to com
mit the particular wrong complained of, or even that he had been
expressly forbidden to do it. The test is not whether he was em
ployed to do that particular thing, but rather whether in doing it
he was acting within the scope of his employment. Of course an
employer never employs a servant to be negligent or to commit an
injury to any one in the course of his employment. Nevertheless he
is liable in those cases where such negligence or other wrongful act
occurs within the scope of the employment.
The case was accordingly ordered back for a retrial.
E mployers’ L iability—Stevedore—F ellow Servant—I ndepend
Contractor—Negligence— Seamen— Buzynski v. Luckeribach
ent
S. S. Co. {Inc.), et al., Supreme Court of the United States {May H,
1928), 48 Supreme Cou/rt Reporter, page 41fl.—Karl Buzynski was
employed as a stevedore by the Texas Contracting Co., which was
engaged in loading cargo on a steamship owned by the Luckenbach
Steamship Co. at a dock in Galveston, Tex. Buzynski was struck
and injured by a chain which fell from the end of the boom of a
derrick at a hatch on the steamship. The accident was caused by the
setting in motion of a winch on the ship which controlled the move
ment of the boom. The winchman was employed by the contracting
company, and hence a fellow employee of Buzynski.
Buzynski brought an action in the Federal District Court for
Southern Texas against the steamship and the contracting company
jointly, to recover damages for personal injuries on the grounds of
negligence of a fellow employee.
A judgment was awarded Buzynski by the Federal district court.
The case was appealed jointly by the two companies to the circuit
court of appeals, and this court reversed the judgment of the district
court, holding that there was no proof that the winch was defective
or that either of the companies was liable.
The case was finally carried to the United States Supreme Court
by Buzynski, and this court reversed the circuit court of appeals.
The court, through Mr. Justice Sanford, cited several previously
adjudged cases and one particularly in which it was held that—
The word “ seamen” as used in section 33 included a stevedore
engaged in the maritime work of stowing cargo upon a vessel, and
that under the applicable provisions of the employers’ liability act,
he could recover from the stevedoring company for an injury caused
by the negligence of a fellow servant.
The view of the circuit court of appeals that the contracting com
pany would not be liable for the negligence of a fellow servant was
erroneous and its judgment must be reversed. But since it did not
determine whether the accident was in fact due to such negligence,
104
DECISIONS OF TH E COURTS
or to some other cause, the case will be remanded to that court with
instructions to determine this question and take further proceedings
in conformity with this opinion.
E mployers’ L iability—Stevedore—Negligence
of
F ellow Serv
ant—Contractor— Bojarski
v. M. F. Howlett {Inc.), Supreme
Court of Pennsylvania {January 8, 1928), llfi Atlantic Reporter,
page 544.—Benjamin Bojarski was employed by Murphy, Cook &
Co., stevedores, of Philadelphia. The contractors were engaged in
unloading chalk material from the hold of a ship. They were with
out the necessary hoisting apparatus and hired from M. F. Howlett
(Inc.), a crane, with a fireman and engineer who operated it. The
hoisting device was attached to a lighter, towed to the offshore
side of the vessel, and rigged with a clamshell bucket. In the
operation of the crane, it was impossible for the engineer to see the
bucket when it dropped into the hold, nor could he determine, when
lifted, whether cars were ready on the wharf to receive the material
from the hold of the ship. To assist the engineer in the proper
unloading of the vessel, Murphy, Cook & Co. employed a man sta
tioned on the ship whose duty was to furnish by signal the necessary
information to the operator. When the bucket was raised and swung
toward the place of emptying, contrary to the order of the hatch
tender, a lump of chalk fell from it, striking Bojarski and injuring
him. He brought an action in the court of common pleas, Philadel
phia County, Pa., to recover damages against Howlett (Inc.), the
owners of the crane, for the negligence of the servant in charge of
the hoisting machine. A verdict was given to Bojarski by a jury,
but the court of common pleas subsequently entered a judgment for
M. F. Howlett (Inc.).
An appeal was taken by Bojarski to the Supreme Court of Penn
sylvania. This court affirmed the judgment of the lower court. In
affirming, the State supreme court said in part:
The undisputed evidence shows the work of unloading was to be
performed by Murphy, Cook & Co., which had charge not only of
the result, but also of the manner and means of its accomplishment.
It hired for temporary service the appliance of defendant, with its
operators, but the same was employed under its direction in the
furtherance of its business. Howlett (Inc.) were paid compensation
for the hourly use of the crane and those who managed it, but, for
the time being it was subject to the control of the stevedores.
An independent contractor is a person employed to perform work
on the terms that he is to be free from the control of the employer
as respects the manner in which the details of the work are to be
executed.
Having in view the principles stated, it can not be said that
Howlett (Inc.) was an independent contractor for the purpose of
e m p l o y e r s ’ l ia b il it y
105
unloading the vessel, but was employed by the stevedores to assist in
carrying out their obligation. It hired appliances to be used for and
under the direction of the latter and can not be charged as such with
liability for the negligence of the servant in charge of the hoisting
machine.
Murphy, Cook & Co. rented the crane and its operator for a fixed
compensation, dependent on the time during which it remained in
service, and it, with the engineer and fireman, came temporarily
within its employ.
An examination of the many authorities dealing with responsi
bility for injury, where one is injured by the falling of an object
during the course of placing or removing a cargo from a ship, will
show the respective decisions to depend on the determination as to
who at the time of the accident had control of the work in which the
servant was engaged. I f it was under the direction, generally or
temporarily, of the one having supervision of the general under
taking, he is held responsible. In the case before us, the crane and
its operator were let for use to the stevedore, who had charge of
the unloading, and they were under its direction. The hatch tender,
an employee of the hirer, gave the signal for movement to the engi
neer, and the latter for the time being was the servant of Murphy,
Cook & Co. It is the one, therefore, which must be looked to if any
recovery is to be had, and not the defendant, Howlett (Inc.), who
had no supervision of the work to be performed.
E mployers’ L iability—U nlawful E mployment—Construction
Statute—Child L abor— Perry v. Western Union Telegraph Go.,
of
Circuit Court of Appeals, Sixth Circuit (July 12, 1928), 27 Federal
Reporter (2d), page 197.— Charles John Perry, a minor less than
10 years of age, was employed by the Western Union Telegraph Co.
as a messenger boy to deliver telegrams from its Memphis (Tenn.)
office. On the night of October 3, 1925, shortly after 7 o’clock, he
was given a telegram to deliver near his home, and after delivering
it went to his home, ate a meal, and started on his way back to the
telegraph office. While returning to the office he was struck by an
automobile and severely injured. The Tennessee law makes it un
lawful to employ a minor under the age of 16 years to deliver tele
grams after 7 p. m. unless an age certificate is secured and kept on
file. The company, in this case, did not comply with the requirement.
Perry worked from 4 p. m. to 10.30 or 11 p. m., and he was paid
according to the number of messages delivered by him.
An action was brought by Perry in the United States District
Court for the Western District of Tennessee against the Western
Union Telegraph Co. Perry contended that the accident and re
sultant injuries occurred in consequence of his unlawful employment
by the company, and that there was a causal connection between the
unlawful employment and the injuries sustained.
106
DECISIONS OP T H E COURTS
The district court directed a verdict in favor of the telegraph com
pany, and the case was appealed to the United States Circuit Court
of Appeals, where the judgment of the district court was reversed.
The company contended that Perry departed from the direct route
after delivering the telegram, and was then engaged in personal
business in going to his home to eat and had not resumed his em
ployment, and therefore was not upon his employer’s business and
not performing the duties of his employment at the time of the
accident.
The circuit court of appeals pointed out that in some States the
right of the injured child to maintain a civil action for damages
against an employer violating a child-labor statute arises without
regard to the rules of common-law negligence. In the opinion writ
ten by District Judge Moinet, reversing the lower court, he said in
part as follows:
The test of liability, on the facts presented, is not whether the
plaintiff was at the moment in and about the business of his master
and acting within the scope of his employment, but whether his
presence then and there was the proximate result of the existence of
the employment; that is, whether it would have reasonably been con
templated and anticipated that his employment would result in such
a trip to and from his home. From the hours of plaintiff’s employ
ment, 4 p. m. to 11 p. m., and no provision being made as to time or
place for the plaintiff to eat, can it be said from the facts, that the
master did not reasonably contemplate and anticipate that the plain
tiff, during his hours of service, would go somewhere for his meals ?
We believe the facts presented herein, when established, furnish an
issue of fact for a jury.
The object of the child-labor law is very obvious and has been
repeatedly construed by the State and Federal courts. Tennessee
has held such statute to be construed liberally, “ to accomplish their
objects, correct the evils, and suppress the mischief aimed at.”
(Kitts v. Kitts, 136 Tenn. 319,189 S. W. 376; Chat. Imp. & Mfg. Co.
v. Harland, 146 Tenn. 85, 89, 239 S. W. 421.)
E mployers’ L iability — V olunteer E mployee — E mergency—
Henry Quellmalz Lwnher & Mfg. Co. v. Hays, Supreme Court of
Arkansas (March H , 1927), 291 Southwestern Reporter, page 982.—
William Hays was a minor 18 years of age. He was injured at the
cotton gin belonging to the Henry Quellmalz Lumber & Manufactur
ing Co., while assisting his uncle in unchoking a gin stand. From
the facts in the case it appeared that young Hays had been loading
cotton for a railroad company at Datto, Ark., on the morning of the
accident, and in the afternoon had gone to the cotton gin. When
E M P L O Y M E N T OFFICES
107
the gin stand became choked his uncle requested him to assist him in
lifting the breast of the stand, and Hays pulled out bunches of cot
ton which had become clogged and while so doing his hand was
caught in the machinery and injured so that it had to be amputated.
An action was brought by the boy’s father in the circuit court of
Randolph County, Ark., to recover damages on account of personal
injuries.
The circuit court returned a judgment in favor of the boy. The
company appealed to the Supreme Court of Arkansas, contending
that William Hays was a volunteer at the time that he received his
injuries, and that the company was not liable for damages.
The State supreme court reversed the judgment of the lower
court and dismissed the action, saying in part:
The undisputed evidence shows that there was no sudden or unex
pected emergency which would give the ginner the implied authority
to employ a temporary assistant to help him unchoke the gin stand.
I f he thought that the breast ©f the gin stand was too heavy and
bulky to lift up, he might have ealled to his assistance the other
ginner who was not more than 3 feet from him or another employee
who was working near by. The servant who had general control and
management of the gin nad not directed him to speed up his work.
On the other hand, the undisputed evidence shows that there was no
necessity to do that. The defendant was up with its ginning, and
there was no necessity whatever to speed up the work. The evidence
does not show that the gin stand had been choked to an extent where
it was dangerous to operate it or where it was liable to break. The
power might have been cut off at any time, and the ginner might
have proceeded at his leisure to unchoke the gin stand. Hence there
was no sudden or unexpected emergency calling for outside assist
ance, and the plaintiff in helping in the work was in law a volunteer
and not entitled to recover damages against the defendant for in
juries received under the circumstances detailed by him in his
testimony.
E mployment Offices—Constitutionality of L aw as to F ee
F ixing—RibniJc v. McBride, Commissioner of Labor of New Jersey,
United States Supreme Court (May 28, 1928),
Supreme Court
Reporter, page 545.—Rupert Ribnik filed with the New Jersey State
Commissioner of Labor a written application for a license to conduct
an employment agency. Sec. 5 (a) of the private employment
agency law of New Jersey (Acts of 1918, ch. 227) requires every
employment agency to “ file with the commissioner of labor for his
approval a schedule of fees proposed to be charged for any services
rendered to employers seeking employees, and persons seeking em
ployment, and all charges must conform thereto.”
108
DECISIONS OF T H E COURTS
The commissioner of labor rejected Ribnik’s application upon the
sole ground that in his opinion the fees proposed to be charged in
respect to certain permanent positions were excessive and unreason
able.
The action of the commissioner was brought up for review to the
supreme court of the State, where the statute empowering the com
missioner to fix and limit the charges to be made by the applicant
was sustained as constitutional under the due process of law clause.
(See Ribnik v. McBride, 133 Atl. 870; also B. L. S. Bui. No. 444, p.
64.) Ribnik then took the case to the State Court of Errors and
Appeals of New Jersey, which affirmed the lower court. (See Ribnik
v. McBride, 137 Atl. 437.)
The case was then taken to the Supreme Court of the United
States, where on May 28,1928, by a 6 to 3 decision the court reversed
the judgment of the New Jersey court, and held the fee-fixing pro
visions of the New Jersey law to be a violation of the due process of
law clause of the fourteenth amendment.
Mr. Justice Sutherland delivered the opinion of the court, and in
the course of his opinion pointed out that the State supreme court
had construed the statute as empowering the commissioner of labor
to fix and limit the charges to be made by the applicant. The court
said that it does not admit of doubt that the State has power to
require a license and regulate the business of an employment agent.
The main question before the court to be decided, Mr. Justice Suth
erland said, was “ whether the due process of law clause is contra
vened by the legislation attempting to confer upon the commissioner
of labor power to fix the prices which the employment agent shall
charge for his services.”
The court cited as authority other cases decided by the Supreme
Court: Adkins v. Children’s Hospital (261 U. S. 525), Wolff Co. v.
Industrial Court (262 U. S. 522), and Tyson and Bro. v. Banton
(273 U. S. 418).
The court in the course of its opinion reasoned as follows:
The business of securing employment for those seeking work and
employees for those seeking workers is essentially that of a broker;
that is, of an intermediary. While we do not undertake to say that
there may not be a deeper concern on the part of the public m the
business of an employment agency, that business does not differ in
substantial character from the business of a real-estate broker, ship
broker, merchandise broker, or ticket broker. In the Tyson case,
supra, we declared unconstitutional an act of the New York Legis
lature which sought to fix the price at which theater tickets should
be sold by a ticket broker, and it is not easy to see how, without dis
regarding that decision, price-fixing legislation in respect of other
brokers of like character can be upheld.
E M P L O Y M E N T SERVICE
109
An employment agency is essentially a private business. True, it
deals with the public, but so do the druggist, the butcher, the baker,
the grocer, and the apartment or tenement house owner; and the
broker who acts as intermediary between such owner and his tenants.
Of course, anything which substantially interferes with employment
is a matter of public concern, but in the same sense that interference
with the procurement of food and housing and fuel are of public
concern. The public is deeply interested m all these things. The
welfare of its constituent members depends upon them. The interest
of the public in the matter of employment is not different in quality
or character from its interest in the other things enumerated; but
in none of them is the interest that “ public interest55 which the law
contemplates as the basis for legislative price control.
Under the decisions of this court it is no longer fairly open to ques
tion that at least in the absence of a grave emergency * ♦ * the
fixing of prices for food or clothing, of house rental or of wages to
be paid, whether minimum or maximum, is beyond the legislative
power. And we perceive no reason for applying a different rule in
the case of legislation controlling prices to be paid for services ren
dered in securing a place for an employee or an employee for a place.
To urge that extortion, fraud, imposition, discrimination, and the
like have been practiced to some or to a great extent in connection
with the business here under consideration, or that the business is one
lending itself peculiarly to such evils, is simply to restate grounds
already fully considered by this court. These are grounds for regu
lation, but not for price fixing, as we have already definitely decided.
There are a number of States which have statutes like that now
under consideration, and we are asked to give weight to that circum
stance. It is to be observed, however, that with the exception of the
decision now under review none of these statutes has been judicially
considered, except in the State of California, where the legislation
was declared unconstitutional.
And it was said in oral argument, and not disputed, that, while
legislation of this character existed in several States, generally it was
not enforced, in some instances because the State’s attorney general
had advised that the legislation was unconstitutional. In any event,
under all the circumstances, and in the face of our prior decisions, we
do not regard the mere existence in other States of statutory pro
visions like the one now under review as entitled to persuasive force.
Mr. Justice Stone delivered a dissenting opinion, in which Mr.
Justice Holmes and Mr. Justice Brandeis joined.
Employment Service—Monopoly—Interference W ith Inter
state Commerce—Shipping of Seamen—Antitrust Act—Anderson
v. Shipowners' Association of the Pacific Coast, United States District
Court for the Northern District of California (June 21, 1968), 27
Federal Reporter (2d), page 163.—Cornelius Anderson, a seaman, on
behalf of himself and other seamen, brought a suit to enjoin the
103151°— 30—
a
110
DECISIONS OF TH E COUBTS
Shipowners’ Association of the Pacific Coast, the Pacific xlmerican
Steamship Association, and their members and agents from main
taining a combination in restraint of interstate and foreign commerce
and to recover damages. The association, composed of Pacific coast
shipowners, operated an employment bureau (subsequent to 1921
called the Marine Service Bureau) through which seamen were hired.
Anderson alleged that he attempted to register at the San Fran
cisco office maintained by the associations and was refused registra
tion because he could not produce his service record or discharge book.
He alleged that he was then employed by the mate of a vessel owned
by a member of one of the associations and was instructed to obtain
an assignment card from the employment bureau. The card was
refused. He, however, reported to the vessel under orders from the
mate, only to be finally rejected because the mate had been ordered to
take no seamen except through the employment office of the associa
tions. The suit was dismissed in the United States district court and
later the decree was affirmed in the United States circuit court of
appeals. The case was then taken to the United States Supreme
Court, which reversed the lower court and held that the complaint of
Anderson stated a good cause of action. (Anderson v. Shipowners
Association, 272 U. S. 859, 864; also B. L. S. Bui. No. 444, p. 64.)
Upon remanding the case to the United States District Court for
the Northern District of California a trial was had, but judgment
did not favor Anderson, as the court pointed out that he had failed
to prove that the associations and their members had bound them
selves to employ seamen exclusively through the Marine Service
Bureau and that the practices of the associations and the operators
of the bureau did not evidence a combination in restraint of trade.
In reaching this conclusion the court pointed out that after the
complaint of Anderson was filed, but prior to the trial, the agents
had made two changes in the form of the documents used by them.
One consisted in the elimination from the certificate or service record
book any statement that seamen would be employed only through the
Marine Service Bureau and must be registered there, and $ny state
ment that such service record or discharge book must be presented
in order to obtain employment. The ship-assignment cards no
longer contained the requirement that the bureau’s assignment card
be also presented. The court pointed out that since the facts at the
time of trial are the controlling facts in an action of this type, the
court could not and would not consider the possible effects of the
case of the documents formerly used.
The court further said that the opinion of the United States Su
preme Court is limited to a ruling that if the associations and their
^embers had in fact bound themselves to employ seamen only
E M P L O Y M E N T SERVICE
111
through the Marine Service Bureau in the manner alleged in the
complaint of Anderson, they would then have restrained their free
dom in conduct of foreign commerce. The district court in an
opinion by Judge Kerrigan said in part as follows:
The chief question, therefore, is as to whether the evidence shows
that defendants and their members have in fact bound themselves
by agreement, tacit, or express, to employ seamen through the Ma
rine Service Bureau exclusively. On this issue the evidence shows
an entire absence of express agreement. Further, the evidence fails
to show any tacit understanding, binding upon the members of de
fendants, requiring them to employ through the Marine Service
Bureau alone and to hire no seamen not registered there.
Officers of steamship companies, members of defendants, and the
managers of the Marine Service Bureau offices at San Francisco
and San Pedro testify that, while most of the members of the two
defendant associations secure a large proportion of their seamen
through the Marine Service Bureau, all of the members hire some
seamen from other sources who never register at the bureau. The
proportion of men hired outside the bureau varies widely. In some
instances it is a small percentage, but certain companies use the
bureau only for 50 per cent or less of their requirements. Two mem
ber companies do not use the bureau at all.
The testimony is that if the port captain, master, or mate, or
other authorized person, desires a particular man who has registered
at the bureau, that man will be hired, irrespective of his number or
position on the list at the bureau. Men may be hired out of turn as
the result of interviews by ship’s officers or company agents at the
bureau or as the result of a request for men of particular experience
or of a certain nationality.
It is further testified that the master or mate of a vessel may,
and frequently does, reject a man sent from the bureau, and that
that man returns to the bureau for employment without loss of the
priority due his registration number. The seaman also is free to
refuse the employment if not satisfied with the ship or the wages
offered.
The bureau has nothing to do with wages. Each member of de
fendants pays such wages as are necessary in the current economic
situation. Similarity of wage scales is due to similarity of condi
tion, rather than to any agreement among defendants or their mem
bers. No penalty is or has ever been imposed upon any member of
defendant associations for the independent selection of seamen
above mentioned. This evidence is uncontradicted.
It is true that the members of defendant associations support the
Marine Service Bureau by dues in the case of the shipowners’ associa
tion, and by special assessment in the case of the Pacific American
Association. But mere payment of such dues does not show an
agreement to use the Marine Service Bureau exclusively. The
weight of the contrary evidence showing that the members of de
fendants vary so widely in their use of the bureau rebuts any pre
sumption which might arise from the mere maintenance of the
bureau. There is further evidence to the effect that the existence
of the Marine Service Bureau has materially assisted in bringing
114
DECISIONS OF T H E COURTS
able, oppressive, and deprived them of their property without due
process of law in violation of the provision of the fourteenth amend
ment to the Constitution of the United States.
The district court held that the motion to dismiss should be over
ruled and an injunction issued, saying that: “ This constitutional
provision has been declared by the Supreme Court to mean ‘ not
only the right of the citizen to be free from mere physical restraint
of his person, as by incarceration, but the term is deemed to embrace
the right of the citizen to be free in the enjoyment of all his facul
ties; to be free to use them in all lawful ways; to live and work
where he w ill; to earn his livelihood by any lawful calling; to pur
sue any livelihood or avocation.’ ” (Allgeyer v. Louisiana, 165 U. S.
578. Meyer v. Nebraska, 262 U. S. 390.)
The court reasoned that this right is always subject to the police
power of the State. However, “ the legislature may not, under the
guise of protecting the public interest, arbitrarily interfere with
private business, or impose undue and unnecessary restrictions upon
lawful occupations.” (Lawton v. Steele, 152 U. S. 133.)
The court concluded that “ in our opinion the legislation in ques
tion violates that rule. It arbitrarily groups together different and
unrelated callings or professions and forbids citizens from following
one of them without qualifying under the enactment in all the
others.” This the court held was an arbitrary and unreasonable
exercise of legislative authority, and deprived the plaintiffs of the
right, guaranteed them by the constitution, to work and earn their
living by a lawful occupation.
E
x a m in a t io n ,
L
ic e n s in g ,
e t c .,
of
O
c c u p a t io n s —
D
e t e c t iv e —
Andrews et al. v. La Crosse
Refrigerator Corp. et al., Supreme Court of Wisconsin (June 18,
1928), 220 Northwestern Reporter, page 211f.—The Wisconsin Legis
lature in 1925 passed an act requiring the licensing of private indus
trial detectives. (C h . 289, Acts of 1925.) The act defined “ private
detectives ” as including among others “ those persons known as in
side shop operatives; that is, persons who do not undertake direct
employment, whether in shops or otherwise, with the owner of a place
of employment, but who are engaged by some independent agency
to operate or work in such place of employment and to render
reports of activities in such place of employment to such independ
ent agency or to the owners of the place of employment under the
direction of such independent agency.”
Floyd M. Andrews and others, doing business as the BaldwinAndrews Detective Service, on March 15, 1921, obtained a license
L
ic e n s e —
I m p a ir m e n t
of
C on tract—
E X A M IN A T IO N , L IC E N SIN G , E T C ., OF OCCUPATIONS
115
under the provisions of section 175.07 of the Wisconsin Statutes of
1923. The La Crosse Refrigerator Corporation of La Crosse, Wis.,
hired the detective service to perform services for them on June 10,
1925. The detective service did not obtain a license under the Acts
of 1925.
An action was begun in the circuit court of La Crosse County,
Wis., on March 19, 1926, by the detective service against the refriger
ator corporation to recover for services performed. The circuit court
returned a judgment in favor of the detective service. The refrig
erator company appealed to the Supreme Court of Wisconsin. The
main question involved in the case was whether the detective service
could recover for services performed after the passage and publica
tion of chapter 289 of the Acts of 1925. The State supreme court
reversed the judgment of the lower court, holding that as the detec
tive service had failed to bring itself within the provisions of the
statute they were not entitled to recover for services rendered.
The court in its opinion reversing the lower court said in part:
By the terms of the act the plaintiffs can not recover for such
services. It was argued and held in the court below that chapter
289 was invalid because it impaired plaintiffs’ contract. Assuming
that the plaintiffs had a contract for a term of service (a matter
very much in doubt), nevertheless the provisions of chapter 289
did not impair it. The plaintiffs might have complied with the law
and continued the performance of their contract. I f the argument
of the plaintiffs is sound, the operation of laws enacted in the exer
cise of the police power might be indefinitely suspended by the terms
of contracts of private parties. The law seems well established and
clearly applicable to the facts of this case.
Plaintiffs, having failed to bring themselves within the provisions
of the statute, are not entitled to recover for the services rendered.
E xamination, L icensing, etc., of Occupations—E mployment
A gency—Discretionary Powers— Lyons v. Grams, Commissioner of
Labor Statistics, etc., Supreme Court of Oregon ( October 18, 1927),
260 Pacific Reporter, page 220.—A. G. Lyons, doing business under
the firm name of the Star Employment Agency of Portland, Oreg.,
applied to the State labor commissioner for a license to operate an
employment agency. The application was made in the manner and
form as provided by the statute. The commissioner rejected the ap
plication for the reason that Lyons was not a suitable person to
operate an employment agency in that he had defrauded laborers
who had applied to him for employment.
Lyons asked the circuit court of Marion County, Oreg., to compel
the commissioner of labor to issue a license to him.
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DECISIONS OF T H E COURTS
Lyons contended that having complied with the statute the issuance
of the license by the labor commissioner was purely a ministerial
act, and it was not within the province of the commissioner to
determine whether he was a fit person to operate an employment
agency.
The main question involved in the case was whether the language
of the act, section 6728, Oregon Laws (as amended by ch. 244,
Laws of 1925), should be construed as directory or mandatory. The
section provided :
The commissioner of labor statistics and inspector of factories and
workshops may, upon the payment of an annual license fee and filing
of a bond in the amounts hereinafter provided, when such bond has
been approved by him, issue to the employment agent a license for
the period of one year: * * *
Does the labor commissioner therefore have any discretion in the
issuance of a license if there has been a compliance with the law as
to the manner and form of making the application? The circuit
court held that he did have discretionary powers and dismissed the
petition of Lyons. He thereupon appealed the decision to the Su
preme Court of Oregon for a final determination. This court affirmed
the lower court, and in the course of his opinion Judge Belt said
in part:
It is plain from the provisions of the act that the legislative
policy was to protect laborers and wage earners against the perni
cious activities of dishonest and unscrupulous employment agents.
In determining whether the language of section 6728, Oregon Laws,
as amended, is mandatory or permissive, we should have in mind
the object ox the legislation and the evils sought to be eradicated.
Without question, the labor commissioner was authorized to re
voke the license of any agent proved unworthy of conducting such
business, but it is insisted by appellant that, however unworthy
the applicant may be at the time of making the application, the
commissioner must issue the license if petitioner has been able to
find, among the many thousands of citizens, 10 freeholders who are
willing to make affidavit that they “ believe ” the applicant to be a
person of good moral character. I f plaintiff’s construction of the
act is correct, an employment agent whose license has been revoked
needs only to file another application in compliance with the statute
and he would be legally entitled to another license. We are not in
clined to adopt a construction which might lead to such an absurd
ity. What was the purpose of requiring the application to be filed
30 days prior to the issuance of the license? Was it not to give the
labor commissioner an opportunity to investigate and determine
whether the applicant was a person of good moral character? The
fact that the license was to be issued for a period of only one year
indicates the intention of the legislature to confer on the commis
sioner the power to exercise close supervision over persons to whom
licenses have been issued.
E X A M IN A T IO N , LIC E N SIN G , ETC ., OF OCCUPATIONS
117
Whether “ may ” should be construed as meaning “ must ” has
been much discussed, and many authorities could be cited showing
its use in a mandatory sense as well as in the ordinary meaning of
the word.
In the instant case we see no reason for departure from the usual
sense in which the word is used. Indeed, by holding that the labor
commissioner is vested with discretion, it is believed that the legis
lative policy to protect wage earners is recognized and given enect.
We are content to base this decision upon the fundamental prop
osition that it is not apparent from the context that the language
of the act relative to the issuance of licenses was used with any
other meaning than that which it is ordinarily understood to
express.
Having held that the labor commissioner is vested with discretion,
it follows, under the well-established rule, that mandamus will not
lie to control it.
E xamination, L icensing, etc., o f Occupations—L and Surveyor—
Constitutionality—I njunction— Doe v. Jones et al., Comity
Board of Examiners of Land Surveyors9 Supreme Court of Illinois
( October 22, 1927), 168 Northeastern Reporter, page 70S.—Jems K.
Doe was a surveyor in the State of Illinois, and brought an action
against William D. Jones, and others constituting the board of ex
aminers of land surveyors of Cook County. The State of Illinois
passed a statute establishing a board of examiners for land surveyors
and requiring a certificate of registration.- Doe contended that the
act violated the constitutional provision against unreasonable dis
crimination, and that it was void as not within the police power of
the State. The Superior Court of Cook County returned a decision
against Doe, and he thereupon appealed to the supreme court of the
State. This court on October 22, 1927, reversed the decision of the
superior court, holding that:
The police power of the State is exercised for the furtherance of
the public health, comfort, safety, or welfare, and, unless an act
restricting the ordinary occupations of life can be shown to fall with
in the police power, such act is void. It is not to be doubted that
such occupations as the practice of medicine and surgery and other
treatment of human ills, and the profession of law by reason of its
influence on the protection and safety of the rights of property and
liberty, do affect the public welfare, as does the manner of con
struction of buildings affect the public safety. These occupations,
therefore, may properly under the police power be regulated. What
then, is there in the occupation of land surveying that brings its
regulation within the safeguards of the police power? Under this
statute county surveyors and employees of a city, county, the State,
and the United States are exempt from the act. In other words,
those having to do with surveying for the public are not required to
118
DECISIONS OF T H E COURTS
be licensed. There is seen in the act, therefore, no element of public
welfare as such pertains to the protection of the public business. It
appears that the surveyors coming under the act are those whose
practice is largely confined to private contract.
As a result of the operation of the statute in question, private
individuals desiring a survey must select their surveyor from those
licensed by the board, and, in the absence of an element of public
safety or welfare, such is an unwarranted limitation on the right of
contract and a void interference with private business. As was said
by this court in Frazer v. Shelton, supra:
“ In order to say that private business must, in the interest of
public welfare, employ one certified by the State, it must appear
that the effect of an audit of that business is a matter of public wel
fare and not of private concern.”
I f the effect of the work of a land surveyor is but a matter of
private concern, the law regulating and licensing it as a business is
an unwarranted regulation of private business and of the right to
contract. While the legislature in this State has passed acts pro
viding for the permanent survey of lands and the establishment of
ermanent lines and corners by a commission of surveyors, such acts
ave been in the interest of the public welfare, or were acts providing
for the settlement of disputes, and have therefore been held valid.
Hood v. Tharp, 228 111. 244, 81 N. E. 861. Such acts are not the
regulation of private business.
The Superior Court of Cook County erred in sustaining the de
murrer to the bill and dismissing the same for want of equity. The
decree will therefore be reversed, and the cause remanded to that
court, with directions to overrule the demurrer.
E
Examination, Licensing, etc., of Occupations—Pharmacist—
Constitutionality of Statute— Louis K . Liggett Co. v. Baldridge,
United States Supreme Court (November 19, 1928), 1$ Supreme
Gourt Reporter, page 57.—The State of Pennsylvania passed an act
(Acts of 1927, Act No. 491, p. 1009) requiring that all pharmacies
or drug stores shall be owned only by licensed pharmacists. The
Louis K. Liggett Co. was a Massachusetts corporation authorized
to do business in Pennsylvania. At the time of the passage of the
act the company owned and operated a number of pharmacies at
various places within the State of Pennsylvania. After the passage
of the act the company purchased two additional drug stores in that
State and continued to carry on a retail drug store. The business
was and is carried on through pharmacists employed by the com
pany and duly registered in accordance with the statutes of the
State. All of the stockholders are not registered pharmacists, and
in accordance with the provisions of the act, the Pennsylvania State
Board of Pharmacy refused to grant the company a permit to carry
on business.
E X A M IN A T IO N , LICE N SIN G , E TC ., OF OCCUPATIONS
119
A suit was brought by the Liggett Co. in the District Court of
the United States for the Eastern District of Pennsylvania to enjoin
the attorney general from enforcing the act, on the ground that the
act in question contravenes the due process and equal protection
clauses of the fourteenth amendment of the Federal Constitution.
In the district court, before three judges a decree was rendered
denying a preliminary injunction, and dismissed the bill for want
of equity. The statute was held constitutional in the district court
on the ground that:
There was a substantial relation to the public interest in the own
ership of a drug store where prescriptions were compounded. In
support of this conclusion, the court said that medicines must be
in the store before they can be dispensed; that what is there is
dictated not by the judgment of the pharmacist but by those who
have the financial control of the business; that the legislature may
have thought that a corporate owner in purchasing drugs might
give greater regard to price than the quality, and that if such was
the thought of the legislature the court would not undertake to say
that it was without valid connection with the public interest and
so unreasonable as to render the statute invalid.
The drug company thereupon appealed to the United States Su
preme Court, where the case was reversed, and the act was held
unconstitutional on the ground that mere stock ownership of a
corporation owning and operating a drug store can have no real
or substantial relation to the public health, and therefore the require
ment created an unreasonable and unnecessary restriction on private
business. Mr. Justice Sutherland delivered the opinion of the court
and said in part:
A State undoubtedly may regulate the prescription, compounding
of prescriptions, purchase and sale of medicines, by appropriate leg
islation to the extent reasonably necessary to protect the public
health. And this the Pennsylvania Legislature sought to do by
various statutory provisions in force long before the enactment of
the statute under review. Briefly stated, these provisions are: No
one but a licensed physician may practice medicine or prescribe
remedies for sickness, no one but a registered pharmacist lawfully
may have charge of a drug store; every drug store must itself be
registered, and this can only be done where the management is in
charge of a registered pharmacist; stringent provision is made to
prevent the possession or sale of any impure drug or any below the
standard, strength, quality, and purity as determined by the recog
nized pharmacopoeia of the United States; none but a registered
pharmacist is permitted to compound physician’s prescriptions; and
finally, the supervision of the foregoing matters and the enforcement
of the laws in respect thereof are in the hands of the State board of
pharmacy, which is given broad powers for these purposes.
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DECISIONS OF TH E COURTS
It therefore will be seen that, without violating laws, the validity
of which is conceded, the owner of a drug store, whether a registered
pharmacist or not, can not purchase or dispense impure or inferior
medicines; he can not, unless he be a licensed physician, prescribe for
the sick; he can not, unless he be a registered pharmacist, have charge
of a drug store or compound a prescription. Thus, it would seem,
every point at which the public health is likely to be injuriously
affected by the act of the owner in buying, compounding, or selling
drugs and medicines is amply safeguarded.
The act under review does not deal with any of the things covered
by the prior statutes above enumerated. It deals in terms only with
ownership. It plainly forbids the exercise of an ordinary property
right and, on its face, denies what the Constitution guarantees. A
State can not, “ under the guise of protecting the public, arbitrarily
interfere with private business or prohibit lawful occupations or im
pose unreasonable and unnecessary restrictions upon them.
The claim, that mere ownership of a drug store by one not a
pharmacist bears a reasonable relation to the public health, finally
rests upon conjecture, unsupported by any thing of substance. This
is not enough; and it becomes our duty to declare the act assailed to
be unconstitutional as in contravention of the due process clause of
the fourteenth amendment.
H
ou r s
of
S e r v ic e — C l o s in g T
im e
of
B ar b e r S h o p s — C o n s t i t u
—Chaires v. City of Atlanta, Supreme Court of Georgia
{September H, 1927), 139 Southeastern Reporter, page 559.—The
city of Atlanta, Ga., passed an ordinance requiring all barber shops
to be closed during week days at 7 o’clock p. m. and on Saturday
nights at 9 o’clock p. m.
E. C. Chaires and others brought an action against the city to
restrain them from enforcing the ordinance. The contention of
Chaires was that the ordinance was an unlawful interference with a
legitimate business. That it violated the fourteenth amendment to
the Federal Constitution in that it deprived the barbers of their
liberty and property without due process of law, and denied to them
the equal protection of the laws. In holding the ordinance dis
criminatory and unreasonable and therefore invalid the supreme
court of the State said:
t io n a l it y
Persons engaged in the operation of barber shops are carrying on
a perfectly lawful business. It is not, in any sense of the word, a
noxious business. In fact, the business may be regarded as indis
pensable in the present development of our civilization, if we have
regard to the requirements of decency and cleanliness. There is
ample evidence in the record to show that if the barber shops are
closed at 7 o’clock in the evening and not permitted to open until
next morning, there will be a large and numerous class of citizens,
both white and colored, who can not avail themselves of the service
of barbers. It is shown that certain mercantile establishments, hav
ing in their service numerous employees, require the attendance of
HOURS
of
s e r v ic e
121
those employees until a later hour than that at which the barber shops
under this ordinance would be required to close. And in addition to
this, those engaged in domestic service and in the various branches
of such service are detained in the discharge of their duties in this
employment to an hour that would prevent their availing themselves
of the service rendered in barber shops, if such shops are closed at
the hour of 7 o’clock. The section of the ordinance with which we
are now dealing is therefore void, as being unreasonable, upon the
grounds which we have stated above, and other grounds could be
adduced if necessary. And it is discriminatory, because it selects one
particular lawful business that is in nowise noxious, and requires
those operating this business to close at a very early hour, but leaves
unregulated as to hours of closing various other businesses.
The act was therefore held to be unconstitutional.
H o u r s o f S e r v i c e — S u n d a y L a b o r — Spann v. Gaither, Commis
sioner of Police, Court of Appeals, Maryland (January 11, 1927),
136 Atlantic Reporter, page 4,1.—Anna K. Spann conducted a laun
dry in the city of Baltimore, Md. She conducted the laundry busi
ness largely on the plan of collecting the washing after midnight of
Sunday, as her patronage was among those who required that their
wash be collected after Saturday night and returned on Monday.
The Sunday laws prohibited the collection and washing on Sunday.
The city passed an ordinance forbidding the operation of a laundry,
and the collection and delivery of washing, between the hours of
midnight Saturday and 6 o’clock Monday morning. On the morning
of January 4, 1926, the commissioner of police of Baltimore ordered
the arrest of all drivers of laundry wagons or trucks on the streets
of the city between the hour of midnight Sunday and 6 o’clock Mon
day morning. The proprietor of the laundry brought an action
against one Gaither, commissioner of police, to restrain the enforce
ment of the act. The Circuit Court of Baltimore decided in favor of
the legality of the ordinance. The laundry proprietor thereupon
brought the case to the court of appeals of the State. The contention
of the laundry was that the ordinance as applied was invalid. The
court of appeals upheld the view of Anna K. Spann and reversed the
decision of the circuit court, holding that the ordinance was unrea
sonable, and therefore unconstitutional, saying:
The method of operation of an industry does not vary from day to
day, nor do evils incident to the industry prevail according to the
particular day of the week, and if' as here, the conditions requiring
relief, may, under the operation of the ordinance, rightfully obtain
on any day of the week, except a certain portion of Monday, the
fact that the incidence of the ordinance is confined to but a portion
of one day of the week is persuasive that the regulation is not justi
fied by public welfare, but is a purely arbitrary and unwarranted
122
DECISIONS OF TH E COURTS
interference with the management of a lawful business. No suffi
cient reason has been suggested or has occurred to the court as a
rational basis for the ordinance’s discrimination between the first
six hours of Monday and those of the remaining five days of the
week. It would be an anomalous law that would declare tne opera
tion of an industry during certain hours to be an evil which it was
necessary to abate, and then implicitly sanction it by forbidding such
operation during only one of the six days of the week. On its face
the ordinance has no substantial relation to the protection of the
public health, the public morals, or the public safety.
In the legislation before us, the inhibition is not general, but lim
ited to the employees of a laundry after Sunday is at an end, and
after the laborer has had his 24-hour period of rest. With the ex
piration of Sunday at midnight, the time of the worker is his own
and his right to labor, and his freedom to contract for his services
can not be impaired when his employment is in a laundry, since
that on this record is not so unhealthful an occupation as would
authorize the legislation found in the present ordinance as reasonably
necessary to protect the public health, safety, morals, or general
welfare.
The operation of the ordinance on this record does and could in
volve such oppressive, gratuitous, and unfair interference with the
rights of the class subject to its provisions as can find no justification
in the minds of reasonable men, and it becomes the duty of this court
to declare that the legislature never intended to delegate authority
to the mayor and council of Baltimore to pass an ordinance so re
stricting the operation of laundries during the first six hours of
every Monday. To the extent of these six hours the ordinance is
unreasonable and void, supra; and equity has jurisdiction to enjoin
its enforcement during this period, because the interests of the ap
pellant would be injuriously affected, if it were.
Labor Organizations — Arbitration Agreement — Award —
“Agreeing to Disagree ”—Atchison, Topeka and Santa Fe Railway
Go. et al. v. Brotherhood of Locomotive Firemen and Enginemen,
Circuit Court of Appeals, Seventh Circuit (May 24, 1928), 26 Fed
eral Reporter (2d), page 413.—Certain western railroads represented
by the conference committee of managers, and the firemen, helpers,
hostlers, and outside hostler helpers in the service of the railroads
represented by the Brotherhood of Locomotive Firemen and Enginemen entered into an arbitration agreement on August 6, 1927, under
the terms of the railroad labor act of May 20, 1926. On November
9,1927, the parties agreed to an extension of the time within which a
final decision should be reached to and including December 20,
1927.
On December
1927, the board of arbitration filed its memo
randum expressing its inability to agree, which memorandum was
filed with the clerk of the United States District Court. Four days
LABOR ORGANIZATIONS
123
later, December 9,1927, a representative of the Brotherhood of Loco
motive Engineers and Firemen requested the chairman of the board
to reconvene and continue its deliberations. The chairman of the
board notified the members, and the meeting was held on December
17, 1927. The two arbitrators representing the railroads declined to
attend the meeting. The other four members of the board, however,
met and made an award.
The Atchison, Topeka and Santa Fe Bailway Co. and others filed
a petition in the District Court of the United States for the eastern
division of the northern district of Illinois, to impeach the award.
The district court denied the petition. Upon appeal from the dis
trict court, the case was taken to the United States Circuit Court of
Appeals, for the Seventh Circuit. That court affirmed the action of
the district court on May 24,1928.
The circuit court said that there were but two questions involved
in the case: (1) Was the so-called award of December 17 binding
on the parties? (2) Was the award impeachable on any of the
grounds assigned by the railroads? The court quoted the railroad
labor act at length and pointed out:
True it may be contended^ and with force, that the specific pro
visions here under consideration do not expressly exclude a voluntary
termination of the arbitration before the expiration of the specified
eriod. While this is a possible contention, yet its acceptance would
o violence to the purpose of the act.
In considering these two provisions governing time limitations,
note that: (a) The provision requiring a time limit to be set forth
in the written agreement of the parties is mandatory; (b) the arbi
tration concerning which Congress was legislating related to matters
of public interest.
From the fact that the means and instrumentalities provided by
this act are available only to carriers and their employees, it is fair
to assume that Congress was endeavoring to avoid interruptions to
commerce so injurious to the public. It is no doubt true that the
settlement of a wage controversy, in and of itself, was much to be
desired. But this was not the primary object of this legislation.
Congress made the act applicable to but one industry and, to certain
limited disputes which experience had demonstrated were the most
fruitful causes of strikes, which in turn resulted in complete indus
trial paralysis. To permit those chosen as arbitrators to lay down
their burdens before a reasonable time for deliberation had elapsed,
would be hardly consistent with the purposes of such legislation.
While hot stated in so many words, it would seem that there was
imposed on the arbitrators the obligation to stay by their task until
an award was made or until lapse of time had terminated the
arbitration.
Further support for this conclusion is found in the subsection
which permits interested parties to act as arbitrators. The normal
or probable attitude of the partisan arbitrators is illustrated by the
S
124
DECISIONS OF T H E COURTS
record in the instant case. An open-minded consideration of the
questions at issue can hardly be expected where arbitrators are
chosen to represent contestants. It is somewhat of a misnomer to
call them arbitrators. They are advocates. It could hardly be
expected that such partisans would surrender one iota of their claims
until the arrival of the psychological moment for concessions.
And such contentions of the partisan members, persistently as
serted, would prove discouraging to the neutral arbitrators whose
inclinations and desires would be to terminate their labors before
exhausting all efforts to reach an agreement.
We must assume that Congress was providing a workable (not a
theoretical) means for settling disputes. It permitted those inter
ested in the outcome to act as arbitrators. Doubtless it thus acted
on the assumption that these members would bring to the body as
a whole, information and experience that would be valuable. But,
at the same time, it necessarily made a speedy disposition of the
controversy more difficult. To overcome this disadvantage, the act
required a written agreement by the parties which not only fixed
the date when the arbitrators would begin their hearings, but also
provided the date within which the award should be filed.
These twin provisions thus became inseparably tied up with the
arbitrators’ powers and duties. They are express provisions that
deal with the board’s duties and powers and exclude the existence
of other duties not consistent with them.
Continuing the court said in part that—
Reading the three sections together (the section prohibiting with
drawals, the section fixing a time limit within which the award must
be reached, and the section permitting a majority of the arbitrators
to make an award) we find a complete plan for the settlement of
disputes, which is not consistent with appellants’ contention that it
may be defeated by the arbitrators “ agreeing to disagree ” before
the expiration of the time fixed in the agreement to arbitrate.
The court further pointed out that—
To contend that third parties—strangers to the agreement—might
modify the agreement (limit or enlarge the powers of the arbi
trators) would be absurd. Only the parties to the agreement could
modify it or withdraw from it. Consequently, the agreement, as
originally entered into, remained in effect until terminated by lapse
of time.
Our conclusion is that, under this statute, the power of the arbi
trators to make an award did not cease until the expiration of the
time fixed by the agreement of the parties.
The circuit court of appeals therefore decided that arbitrators
acting in arbitration proceedings instituted and conducted under the
railroad labor act of 1926 can not agree to disagree prior to the
time at which the arbitration agreement ends.
The order of the district court denying the petition was therefore
affirmed.
LABOR ORGANIZATIONS
125
L abor O r g a n iza tio n s — C ollective B a r g a in in g — C o n t e m p t — I n
Brotherhood of Railway and Steamship Clerks, Freight
Handlers, Express and Station Employees, Southern Pacific Lines
in Texas and Louisiana, et al. v. Texas and N .O .R .C o. et oil., District
Court, Southern District, Texas (February 6, 1928), 24 Federal Re
porter (2d), page 426.— T h e B r o th e r h o o d o f R a ilw a y a n d S tea m sh ip
ju n c t io n —
C lerk s, F r e ig h t H a n d le rs, E x p re ss a n d S ta tio n E x p lo y e e s w as an
o rg a n iza tio n w h ich cla im ed t o represen t a la rg e n u m b er o f em p loyees
o f th e T e x a s & N ew O rlean s R a ilr o a d C o. in m atters o f w a g e agree
m ents.
F o r severa l years th e ra ilro a d co m p a n y h a d la b o r difficulties
w ith th e b ro th e rh o o d .
In 1923
th e U n ite d S tates R a ilr o a d L a b o r
B o a r d ord ered th e ra ilro a d to re co g n iz e the b ro th e rh o o d .
In 1927
a
w a g e d isp u te w a s in itia te d b y th e b ro th e rh o o d , a n d w h ile p e n d in g
b e fo r e a b o a rd o f m e d ia tio n the ra ilr o a d requested the b o a r d to r e
lin qu ish ju ris d ictio n . O n A u g u s t 3, 1927, th e U n ite d States D is tr ic t
C ou rt f o r the S ou th ern D is tr ic t o f T e x a s issued an in ju n c tio n re
stra in in g th e r a ilr o a d fr o m v io la tin g section 2 o f the r a ilr o a d la b o r
act, w h ic h p r o v id e s :
Representatives, for the purposes of this act, shall be designated
by the respective parties in such manner as may be provided in their
corporate organization, or unincorporated association, or by other
means of collective action, without interference, influence, or coercion
exercised by either party over the self-organization or designation
of representatives by the other.
On August 4, 1927, the board of mediation declined to relinquish
jurisdiction of the case before it and the railroad notified the board
that the brotherhood did not represent a majority of its clerical
employees, that it would have no further dealing with them, and that
it was satisfied that it could make an adjustment with the associa
tion of clerical employees, Southern Pacific Lines, which it said
represented a majority of the clerical employees. The railroad
thereafter continued a course of action in violation of the injunction.
Contempt proceedings were brought against the railroad. The rail
road contended that the injunction had not been violated, and also
raised the question that Congress did not have the power to enact
paragraph 3, section 2, of the railway labor act of 1926. The rail
road based its contention on the case of Coppage v. Kansas (236
U. S. 1) and Adair v. United States (208 U. S. 161). The district
court on February 6, 1928, handed down an opinion against the
railroad company.
In justifying a discussion of the authority of Congress to enact
the provisions found in the railway labor act and objected to by the
railroad, the court said:
In view, however, of the long-continued, persistent, and at times
bitterly rancorous assertion that noncontractual relations of employer
103151°—30------10
126
DECISIONS OF T H E COURTS
and employee do not present justiciable matters, that injunctions in
labor disputes are political and not judicial, and that a proceeding
of this kind is not the exercise of judicial power, but merely an essay
in usurped and tyrannical u government by injunction,” it seems
desirable to here briefly set down the reasons which support the
conclusions of the preliminary opinion that Congress had full au
thority to make justiciable a controversy of this kind.
After a discussion of prior laws of Congress, decisions by the
Supreme Court of the United States, and facts which led to the
enactment of the railway labor act of 1926 the court sustained the
power of Congress in the following language:
Nor can there longer be any doubt that Congress had the power
to, and that it must, in the interest of public peace and safety, make
certain, in the first step in negotiations between the railroad employer
and employee (who have long since come to be recognized, as to
this instrument of interstate commerce in their hands, not as private
persons having the right to exercise “ liberty through sheer antip
athy,” but as trustees of the public), that representatives of the
railroad companies should not meet representatives of the employees,
nominally elected by them, but in fact under the influence and control
of the railroad companies. I therefore easily find that the legisla
tion in question was not only within the power of Congress to enact,
but that it should be liberally construed and applied, so as to give
effect to the paramount public convenience subserved by it.
Nor do I think it more debatable that both the letter and the
spirit of the statute and of the injunction have been violated. While
it is hard to believe that a railroad and its officials would deliberately
seek to set at naught both the legislative and the judicial power of
the United States, it is difficult to avoid the conclusion that the vio
lation of the statute and of the injunction which followed its viola
tion, was the result of a strong and settled purpose to defy both,
and that that spirit of heady violence to obtain its ends, which has
so often exhibited itself in these labor disputes, in the conduct of
employees when the injunction was the other way, is not absent
here.
After a discussion of the activity of the railroad in strengthening
the association of clerical employees and weakening the Brotherhood
of Railway and Steamship Clerks, the court concluded as follows:
It is abundantly clear that the injunction issued to prevent such
violation has been completely nullified, and that a remedial order
should be entered, completely disestablishing the association of cleri
cal employees, as now constituted through the action of the defend
ant, as representative of their fellows, and reestablishing the brother
hood as such representative, until by proper ballot the employees,
without dictation or interference, vote otherwise, such order to fur
ther provide for the restoration to their positions and privileges of
the officers of the brotherhood, and the restoration without loss of
those of the employees whose discharge, though nominally predi
cated upon a violation of the rules, was really grounded upon an
tipathy because of their action on behalf of the brotherhood, and that
LABOR ORGANIZATIONS
127
the matters here involved should be referred to the proper law officers
of the Government, for them to determine whether a proceeding for
criminal contempt in the name of the United States should be begun.
On April 19, 1928, the injunction was declared permanent.
(This case was appealed by the railroad company and on June
10, 1929, the United States Circuit Court of Appeals, Fifth Circuit,
upheld the District Court of the United States for the Southern
District of Texas. (See 33 Fed. (2d) 13.)
L abo r O r g a n i z a t i o n s — C o n s p i r a c y — B o y c o t t — I n j u n c t i o n — Dec
orative Stone Co. v. Building Trades Council of Westchester County
et al., District Court, Southern District of New York (March 26,
1927), 18 Federal Reporter (2d), page 333.—The Decorative Stone
Co. was a corporation engaged in the business of manufacturing
artificial stone at New Haven, Conn. For many years the company
had solicited orders for the sale of its product from contractors en
gaged in the construction of buildings in New York and other States.
The Building Trades Council of Westchester County was a volun
tary unincorporated association of more than seven members, and
was a federation of business agents of all the building-trades unions
in Westchester County, including the business agent, Cronin, of the
Journeymen Stone Cutters’ Association of New York, and the busi
ness agent O’Leary, of the Machine Workers’, Rubbers’, and Helpers’
Association of New York.
The Decorative Stone Co. brought this action in the District Court
of New York against the Building Trades Council of Westchester
County, alleging a combination and conspiracy to restrain them from
engaging in interstate commerce in the sale and supply of its product
in New York City and surrounding territory.
From the evidence it appeared that for several years prior to
December, 1923, the organization of which O’Leary was a member
objected to the use of cast stone in any building under construction
in the district of New York, unless the cast stone was manufactured
in plants employing members of his union. At no time had this
union been affiliated with any union in New Haven, Conn. It also
appeared that O’Leary had been active in the metropolitan district,
following the various building operations and ascertaining whether
or not any cast stone manufactured by any plant in which the mem
bers of his union were not employed was being used. Evidence was
also shown that duress had been exercised, and that threats to call
strikes on other building operations had been resorted to. From the
testimony there was a clear inference that the purpose and effect of
the methods used by O’Leary and Cronin had been to virtually ex-
128
DECISIONS OF T H E COURTS
elude from the New York market cast stone manufactured outside
of the metropolitan district.
The district court for the southern district of New York held that
the Decorative Stone Co. was entitled to an injunction. As to the
conspiracy to exclude the product of the company, the court said:
Whatever may be said to justify what was done upon grounds of
social justice or economic welfare is not open to consideration in this
court. Decision is controlled by Duplex Co. v. Deering (254 U. S.
443). This is not a case in which the restraint of or interference
with interstate trade and commerce can be said to be the incidental
and indirect result of a controversy purely local in character and
not intended to restrain interstate trade. On the contrary, the pri
mary purpose and the direct result of what was done in New York
was to exclude the plaintiff’s product and the product of other
manufacturers moving in interstate commerce from entering the
New York market in competition with New York firms. * * *
The defendants conspired and contrived to prevent the use of plain
tiff’s product in building operations within the city of New York, and
in furtherance of this purpose, to refuse to handle it or to work on
any building in which its use was employed, and to procure all other
workmen employed in the building trades to do likewise, and in ac
complishment of this purpose, to order the men in plaintiff’s plant
to refuse to work on any stone intended for the New York market.
Therefore the court held that a union boycott of artificial stone
because it had been manufactured outside of a given territory was
a conspiracy against interstate commerce, and should be enjoined.
Labor Organizations— Conspiracy—Boycott—Injunction— A .
T. Stearns Lumber Co. v. Howlett et al., Supreme Judicial Court of
Massachusetts (May 23, 1927), 157 Northeastern Reporter, page
82.— Several manufacturers of trim or finish used in the construction
of buildings, each having a place of business in Massachusetts,
brought suit to enjoin the activity of the United Brotherhood of
Carpenters and Joiners of America in what was alleged to be an ille
gal combination and conspiracy. The aim of the union as found by
the master in chancery was to get men employed in the various mills
to join the union and, in order to accomplish this, sought to compel
the plaintiffs to sign an agreement, the result of which would be to
unionize all shops and mills and in consequence none but members
of the union would be employed either in the mills or on the work
of construction, and the union label would be used. The master
further found that agreements were made between the unions and
certain builders to hire union men, pay union wages, adopt union
hours, and furnish their carpenters with union material to work
upon, and that the carpenters declined to set trim made by nonunion
LABOR ORGANIZATIONS
129
men. The following excerpts give the principles of law applicable
to the case, as stated, among other things, by the court:
It is elemental that the unlawfulness of a conspiracy may be
found either in the end sought or the means to be used. It is
settled that “ an act lawful in an individual may be the subject of
civil conspiracy when done in concert, provided it is done with a
direct intention to injure another, or when, although done to benefit
the conspirators, its natural and necessary consequence is the preju
dice of the public or the oppression of individuals.” The restraint
imposed must be unreasonable. It is manifest that the numerical
size of a union or its preponderant position in the labor market does
not of itself make it illegal. “ The pertinent inquiry, whether there
is an unlawful purpose creating or tending to create a monopoly de
pends on the circumstances of each case. The facts peculiar to the
business, the conditions before and after the alleged restraint was
imposed, its nature, and the purpose sought to be attained, as well as
prevalent economic necessities, are to be considered as relevant. It
is primarily a question of fact. Where acts are not sufficient in
themselves to produce a result which the law seeks to prevent, for
instance, the monopoly, but require further acts in addition to the
mere forces of nature to bring that result to pass, an intent to bring
it to pass is necessary in order to produce a dangerous probability
that it will happen. But when that intent and the consequent dan
gerous probability exist, this statute (the Sherman Act), like many
others, and like the common law in some cases, directs itself against
that dangerous probability as well as against the completed result.”
I f the necessary and direct consequence of the acts done or contem
plated by the combination would unduly interfere with the free
exercise of the rights of those engaged in the manufacture of trim,
or of the nonunion workers, it is immaterial that it was not the
specific intent of the combination to restrain trade, but that its
object was to benefit themselves. The cases rest upon a conspiracy
to create a monopoly; not upon the existence of a monopoly. Before
discussing the various means used or contemplated by the union or
ganization to compel the plaintiffs to sign an agreement similar to
agreement A, it may be well to refer to some of the decisions of the
court in related matters. The strike for higher wages, shorter hours,
or better working conditions is recognized as legal. We have, how
ever, held a strike to enforce the employment of a larger number of
men than the employer desired illegal. Strikes to secure recogni
tion of the union, to force discharge of nonunion men, or to effect a
closed shop have been held illegal. Voluntary agreements between
the union organization and employers whereby the employer prom
ises to give preference in hiring to union men, or to give all his work
to members of the union, have been upheld. It is plain that, in the
absence of an agreement entered into voluntarily by the employer
with the union organization, whereby the employer agrees to buy
only union-made materials, a strike because of his refusal so to do
is illegal. The master found that the contractors and builders, on the
jobs in connection with which a controversy arose with the union,
previously had agreed to furnish their employees with union-made
materials; he has, however, failed to find whether the contractors
130
d e c is io n s
of
the
courts
and builders entered into these agreements voluntarily. Assuming
the agreements were entered into voluntarily, it is clear that such an
agreement could not affect existing contracts for the purchase of
nonunion made material, and; if this assumption be correct—other
wise the strike because nonunion materials were purchased would be
clearly illegal, then the question is presented, whether a strike or
threat to strike is justified because ox their failure to live up to the
agreement so made. It is to be noted that the strike affected not only
the strikers and their employers but the plaintiff employers and their
workers as well. Although the master made no specific finding—
whether agreements were entered into voluntarily or otherwise—
such strikes would not be justified even if it be assumed that they
were entered into voluntarily. The report of the master points to
no occasion wherein the workers refused to install nonunion made
trim for a builder or contractor who had not entered into an agree
ment with the union. But in the light of section 59 of the constitu
tion of the brotherhood, the votes of its members, and the master’s
finding that they declined to set any nonunion trim, the inference
is warranted that the workers had agreed to strike on any job—
irrespective of whether or not the contractor had entered into such
an agreement—and were ready to carry out their intention. The
sympathetic strike is held to be illegal generally. A strike to com
pel the employment of union foremen is illegal. “ In every instance
the action of the union carpenters in refusing to work because of
said trim (nonunion trim) was voluntary.” But the constitution
and by-laws quoted indicate an intention on the part of the union to
enforce its rules concerning nonunion materials by the imposition of
fines if necessary. It is well settled that the union can not compel
its members to join an unlawful strike by the imposition of fines.
The plaintiffs severally are entitled to a decree dealing with the fol
lowing issues: (1) The refusal of the members of the union to install
nonunion made material; (2) strikes to compel any employers to
refrain from purchasing nonunion made material; (3) the issuing
of an unfair list; (4) strikes to compel the hiring of union foremen
only; (5) the imposition of fines upon union men who are unwilling
to join unlawful strikes; and (6) the combination to induce employers
to sign agreement A or to agree to purchase union-made material
only. Upon the question of damages, the master found, that “ if
upon the facts as found, the court is of opinion that, as matter of
law, a conspiracy did exist, I find that damage in some amount,
which I am unable to determine, was done to the plaintiffs. I find
as a fact, however, that whatever damage the plaintiffs may have
sustained was that suffered by others in the same line of business
as the plaintiffs, and that they suffered no special damage what
soever.” On the record the plaintiffs are entitled to nominal dam
ages only.
L
ab o r
O r g a n iz a t io n s — C o n s p ir a c y — E
x p u l s io n
of
M
em ber—
Sweetman v. Barrows et al., Supreme Judicial Court of Massachu
setts (April 16, 1928), 161 Northeastern Reporter, page 272.—John
J. Sweetman was a member of a labor union of moving-picture oper
LABOR ORGANIZATIONS
131
ators known, as Local No. 182, which had jurisdiction in placing op
erators in many of the moving-picture theaters in and about Boston,
Mass. F. C. Barrows was an officer of the moving-picture operators’
union. In February, 1923, a plan of insurance was enacted by the
local union by which assessments were levied on the members.
Sweetman sought to have the assessment declared illegal and
brought court action. The court decreed that they were illegal and
restrained the union from collecting the assessment. Sweetman was
a member of good standing, and at a regular meeting of the union
in February, 1925, he was ordered to pay at once “ such illegal
assessments ” by the officers of Local No. 182. He refused and was
ousted from the meeting without a hearing. As a result of this
action he was deprived of all rights as a member in Local No. 182,
which carries with it the right to be placed and to secure work and
labor, and he therefore could not enter into a contract of employment
as a union picture operator. Sweetman sought relief in the superior
court of the State, on the grounds that the action of the local union
deprived him of his legal right to work and earn a living. In the
superior court the case was decided in favor of Sweetman, but upon
orders of the trial judge the verdict was ordered for Barrows and
the other members of the union. The case was carried to the State
supreme court by Sweetman, and this court ordered that a new trial
be held. Mr. Justice Carroll delivered the opinion of the court,
saying in part as follows:
Membership in the union was of value to the plaintiff, if his testi
mony were believed, as it was practically impossible for him to secure
employment unless he continued as a member. His right to follow
a lawful occupation under existing conditions will be protected by
the court, and if it were essential for him to remain in the union in
order to gain employment, he can recover for the wrong done him in
depriving him of the means of earning a living and in illegally ex
pelling him or refusing to recognize him as a member. He had
an undoubted right to dispose of his labor to the best advantage, and
if the defendants or any of them conspired to deprive him of this
natural right, he can recover damages for the wrong done. The
plaintiff could not continue as a member of the union unless he paid
his dues, but he was not required to pay the insurance assessment;
and if this assessment were insisted on as a condition to his member
ship, the members participating in this demand and in expelling the
plaintiff because of his failure to accede to it are liable for his loss
resulting from their misconduct. I f the plaintiff tendered his dues
as he testified, and the duly authorized officer of the union refused to
accept them, his expulsion was illegal. He was entitled to fair
treatment and could not be expelled and deprived of his member
ship except as authorized by the by-laws of the association.
The plaintiff’s action is against all the members of the local union,
many of whom were not present at the meeting at which the plaintiff
132
DECISIONS OF TH E COURTS
was expelled and who were not shown to have had knowledge of the
various acts complained of or in any way to have participated in
them. Mere membership in a voluntary association does not make
all the members liable for acts of their associates done without their
knowledge or approval, and liability is not to be inferred from
mere membership.
I f the contentions of the defendants were true no wrong was done
to the plaintiff. I f the jury found, as they could have found on the
evidence, that he was not allowed to remain in the meeting solely
because he refused to pay his lawful dues, the by-laws providing
that a member indebted to the local for three months’ dues “ shall
stand suspended, no vote for the local being required,” that he was
not discriminated against by the officers of the association, and was
not prevented from pursuing his occupation, then the plaintiff did
not suffer an injury which is to be imputed to the defendants* But
according to the plaintiff’s story his rights were invaded, he was un
lawfully deprived of membership in the union, he was prevented
from securing employment and following his occupation. The offi
cers and members of the association, who participated in this con
spiracy and who assented to these illegal acts, can be called upon to
respond in damages for the wrongs. It was for the jury to deter
mine who were present at the meeting of February 3, 1925, and who
participated in any of the acts complained of. They could find
on the evidence that all of the members who were present at this
meeting assented to the plaintiff’s expulsion and approved of the
acts of the officers.
The case is properly in this court. A verdict for the defendants
was ordered by the court. The plaintiff made out a case against
some of the defendants and a verdict could not be ordered for all
the defendants. There must be a new trial.
L
abor
O r g a n iz a t io n s — C o n s p ir a c y — I n t e r f e r e n c e
w it h
E
m ploy
Barker Painting Co. v . Brotherhood of Paint
ers, Decorators, and Paperhangers of America, Court of Appeals of
District of Columbia (November 7 ,1927), 23 Federal Reporter (2d),
page 71$.—The Barker Painting Co. was a corporation located in
New York City engaged in painting and decorating. The Brother
hood of Painters, Decorators, and Paperhangers of America was a
union labor organization affiliated with the American Federation
of Labor.
In 1923 the Barker Painting Co. entered into a contract to do
the painting work for a hotel in the city of Washington, D. C. The
rate of pay for New York union painters was $10.50 per day of 8
hours, working 5 days a week, while the Washington rate was $9
per day of 8 hours, working 5 ^ days a week.
The brotherhood had adopted certain rules and regulations relat
ing to union labor throughout the country; among the regulations
adopted and enforced were those known as the “ higher wage,”
m ent—
I
n j u n c t io n —
LABOR ORGANIZATIONS
133
“ shorter week,” and “ 50 per cent ” rules. These provide that where
a contractor undertakes a painting job “ outside his home city or
town, and in a locality where a district council or local council
exists,” he shall pay union painters the higher rate of pay and give
them the shorter working week prevailing as between the several
localities, and shall also employ at least 50 per cent of the painters
engaged upon the local contract from among the members of the
local union.
Accordingly, under these circumstances the Barker Painting Co.
would be compelled to pay $10.50 per day for those employed upon
the contract, whereas any contractor located in Washington would
be able to employ union painters for the same w^ork at $9 per day.
The company knew of these regulations before it entered into the
contract, but intended to protest against their observance. It con
ferred with officers of the local union for the purpose of inducing
them to waive the requirements. The request was refused and the
company was informed that members w^ould not be permitted to
work except in accordance with all of the union rules. The company
sought to secure union painters through the medium of advertising.
Favorable results were accomplished by these means, but the union
painters who presented themselves for employment were met by
officers of the union, who informed them that the company intended
to disregard the union rules, whereupon the painters refused to ac
cept the employment and left the place.
The Barker Painting Co. thereupon filed its complaint in the
Supreme Court of the District of Columbia, claiming that the rules
were discriminatory, arbitrary, unreasonable, and tended to create
a monopoly; that the enforcement of the rules under threat of fine
or expulsion constituted a conspiracy and was a violation of the
antitrust laws of the United States and if permitted would result
in irreparable injury to the company and its property.
The court entered a decree against the company and an appeal
was taken to the Court of Appeals of the District of Columbia. The
appeals court affirmed the decree of the lower court and in the opin
ion by Chief Justice Martin said in part as follows:
We think that the decree of the lower court was right. It is clear
that the union painters were free either to accept or reject employ
ment upon the terms offered by appellant, and correspondingly that
appellant was free to accept or reject the terms of employment
offered by the men. In this instance there was no strike or intimida
tion, nor any threat of disorder or interference with appellant’s right
to employ nonunion painters. It can not be claimed that there was
any breach of contract by the men; the latter simply refused to enter
into any contract of employment upon the terms offered by appel
134
DECISIONS OF T H E COURTS
lant. It is certain that appellant could not compel the union
painters to work for it upon its own terms, regardless of their
consent.
A s f o r th e ch a rg e th a t th e e n fo rce m e n t o f th e ru les b y th e u n io n
con stitu ted a co n sp ir a c y , th e co u r t s a i d :
Under these provisions the painters’ unions, and the individual
members thereof, are entitled to carry out the legitimate objects of
their organizations, provided no unlawful means be employed to
that end. The adoption of regulations fixing the wages of union
labor, together with provisions restricting the number of hours of
labor per day and of days per week, are within “ the legitimate ob
jects ” of such unions within the sense of the Clayton Act. Other
wise the provisions of the act regarding labor unions would be
futile.
In conclusion the court said in part :
Moreover, it is not unlawful for such unions to punish a member
by fine, suspension, or expulsion for an infraction of the union rules,
since membership in the union is purely voluntary. Nor do we
think that the regulations now in question are discriminatory, unrea
sonable, arbitrary, or oppressive. The higher wage and shorter
week rules were adopted by the brotherhood prior to the year 1913,
and the 50 per cent rule in 1922, and they have been in force ever
since. They are designed to meet a situation which without regula
tion would be productive of confusion and disorder for union labor.
The cost of living is higher in some places than in others; therefore
union wages vary in different localities. I f a contractor employs
union labor upon work in his own city, he must pay the union wages
of that locality; but, if he moves his iorce of local labor to another
city, he may meet there with a higher or lower union wage scale, as
well as with different limitations as to periods of labor. It was to
meet these contingencies that the rules now in question were adopted;
and this case does not involve their wisdom, but only their legality.
The rules do not discriminate against any particular person or place,
and are uniform in their operation throughout the country. As far
as appears, they were regularly adopted in good faith by the brother
hood, they govern the conduct of its members only, and the members
are lawfully entitled to obey them by abstaining from work in appli
cable cases if they so desire.
An action was brought later in the Supreme Court of the District of Colum
bia by the Barker Painting Co. against Local Union No. 368 of the Brother
hood of Painters, Decorators, and Paperhangers of America for the recovery
of reasonable attorney fees which were incurred by them in obtaining a dis
solution of the injunction. This court denied a recovery on the injunction
bond for attorney fees. On appeal, however, to the Court of Appeals of the
District of Columbia, the decree of the lower court was reversed, and recovery
was had for damage upon the injunction bond. (See Local Union No. 368 of
Brotherhood of Painters, Decorators, and Paperhangers of America et al. t?.
Barker Painting Co. (1928), 24 Feb. (2d) 879.)
LABOE ORGANIZATIONS
135
Labor Organizations— Conspiracy—Open Shop— Nolan v. Farmington Shoe Mfg. Co., District Court, District of Massachusetts
(April 6, 1928), 25 Federal Reporter (2d), page 906.—John D.
Nolan on behalf of the Shoe Workers’ Protective Union, a labor
union composed of persons engaged in the boot and shoe making
industry, complained in the United States District Court of the
District of Massachusetts that the Farmington Shoe Manufacturing
Co. of Dover, N. H., was endeavoring to induce the members of the
union to violate their contract by entering into an individual con
tract.
It was stated on behalf of the union that boot and shoe workers
who became affiliated with the Shoe Workers’ Protective Union
were required, upon signing an application, to promise that they
would obey and abide by the constitution of the union. The member
agreed “ (1) that he will remain a member of the Shoe Workers’
Protective Union until he is expelled; (2) that he will not violate
any of the provisions of this constitution; * * *
(3) that he
will not enter into or sign any individual contract of employment
with any person, firm, association, or corporation, or any contract
or agreement, which provides that he will not become or remain
a member of the Shoe Workers’ Protective Union or any local
union thereof.”
Sometime prior to November 8, 1927, the Farmington Shoe Man
ufacturing Co. called its employees together and asked them to sign
a contract which reads as follows:
In consideration of my employment by the Farmington Shoe
Manufacturing Co., with full knowledge that it operates as an open
shop, I voluntarily agree that I shall do nothing directly or in
directly to change that status of the operation of the company; that
I will do nothing to change the status of my fellow workmen, nor
will I aid or assist in any manner any person to make said Farmington Shoe Manufacturing Co. or its employees conduct work under
other than an open-shop basis.
On November 8, 1927, the union notified the shoe company that a
number of its employees were members of the union and that their
membership obligated them not to enter into or sign any individual
contract of employment with any person, firm, association, or
corporation.
It was stated in behalf of the company that no employee was dis
charged because of his membership in the union. A representative of
the company even told several of the employees that there was no
intention of interfering with the employees’ membership in the union.
The district court refused to give relief to the union and held
that the agreement required of the employees by the company not
136
DECISIONS OF T H E COURTS
to change the open-shop policy did not violate the rights of the labor
union. Judge Brewster in his opinion said in part as follows:
The defendant did not require its employees, as a condition of em
ployment, to sever their connection with the union. All the defendant
sought in the individual contract was the right to continue as an
open shop, and this demand was not necessarily incompatible with
membership in a trade-union.
The plaintiff has altogether failed to bring this case within the
doctrine of Hitchman Coal & Coke Co. v. Mitchell (245 U. S. 229,
38 Sup. Ct. 65, 62 L. Ed. 260, L. R. A. 1918C, 497, Ann. Cas. 1918Bj
461). There is nothing in the case to warrant the inference that the
defendant entered into any unlawful conspiracy to work injury to
the union. Its rights to conduct an open siiop and to employ labor
only upon the condition that the employee will do nothing to inter
fere with that right must be deemed beyond controversy, in view of
Hitchman Coal & Coke Co. v. Mitchell, supra, and numerous other
decisions in both the State and Federal courts.
It is only when an employer enters into an unlawful conspiracy
for the purpose of working injury to the union and adopts unlawful
means to that end that the doctrine of Hitchman Coal & Coke Co. v.
Mitchell, supra, can be invoked.
Obviously the defendant was actuated by a desire to promote har
mony and stability in its own manufactory by reducing the possi
bilities of labor disturbances, and whatever was done to that end
was done in furtherance of a lawful purpose and not designed or
intended to work injury to others. There has been no invasion of the
rights of the plaintiff’s organization which would justify a court of
equity in granting relief.
The complaint of the union was therefore dismissed.
Labor O r g a n i z a t i o n s —Conspiracy— “ Peaceful ” Picketing—In
Exchange Bakery and Restaurant (Inc.) v. Rifkin et al
ju n c t io n —
Court of Appeals of New York (May SI, 1927), 157 Northeastern
Reporter, page ISO.—The Exchange Bakery & Restaurant Corpora
tion was formed in 1918 and was always operated on a nonunion
basis. I f persons seeking employment were members of a union, they
were not employed, and if they joined a union they were discharged,
as the employment was at will and could be ended at any time by
either party. Soon after beginning work each waitress signed a
paper stating that it was the understanding that she was not a mem
ber of a union and pledging herself not to join one or if she did so
to withdraw from her employment. Subsequently four waitresses
joined the union without notifying their employer. Thereafter, on
April 22, 1925, a strike was called and the four waitresses left their
work. Picketing was carried on by two women walking in the street
close to the curb near the restaurant. There was no violence, intimi
LABOR ORGANIZATIONS
137
dation, or obstruction of entrances to the premises nor collection of
crowds. After four days a temporary injunction ended the picketing.
An appeal was taken from the decree of the court. The court of
appeals reversed the lower court and laid down the following prin
ciples of laws as controlling the case:
A workman may leave his work for any cause whatever. He need
make no defense, give no explanations. Whether in good or bad
faith, whether with malice or without, no one can question his
action. What one man may do, two may do or a dozen, so long as
they act independently. If, however, any action taken is conceited:
if it is planned to produce some result, it is subject to control. As
always, what is done, if legal, must be to effect some lawful result
.by lawful means, but both a result and a means lawful in the case
of an individual may be unlawful if the joint action of a num
ber. * * * The purpose of a labor union to improve the con
ditions under which its members do their work, to increase their
wages, to assist them in other ways, may justify what would other
wise be a wrong. So would an effort to increase its numbers and to
unionize an entire trade or business. It may be as interested in the
wages of those not members or in the conditions under which they
work as in its own members because of the influence of one upon the
other. All engaged in a trade are affected by the prevailing rate of
wages, all by the principle of collective bargaining. Economic
organization to-day is not based on the single shop. Unions believe
that wages may be increased, collective bargaining maintained only
if union conditions prevail not in some single factory but generally.
That they may prevail, it may call a strike and picket the premises
of an employer with the intent of inducing him to employ only union
labor. And it may adopt either method separately. Picketing with
out a strike is no more unlawful than a strike without picketing.
Both are based upon a lawful purpose. Resulting injury is inci
dental and must be endured. Even if the end sought is lawful, the
means used must be also. “ Picketing ” connotes no evil. It may not
be accompanied, however, by violence, trespass, threats, or intimida
tion, express or implied. No crowds may be collected on or near
the employer’s property. The free entrance of strangers, customers,
or employees may not be impeded. There may be no threats—no
statements, oral or written, false in fact, yet tending to injure the
employer’s business. We make no attempt to enumerate all the acts
that might make picketing illegal. Doubtless there are others.
When the situation in a particular case comes to be reviewed by the
courts, there will be no difficulty in drawing the line between acts
permissible and acts forbidden. We have been speaking in terms
of the workman. We might equally have spoken in terms of the
employer. The rule that applies to the one also applies to the other.
The latter may hire and discharge men when and where he chooses
and for any reason. But, again, any combination must be for lawful
ends secured by lawful means. I f believed to be for their interests,
employers may agree to employ nonunion men only. By proper
persuasion they may induce union men to resign from their unions.
138
DECISIONS OF TH E COURTS
They inay not, however, because of mere malice or ill will, combine
to limit the opportunities of anyone to obtain employment. The
means adopted must be lawful. No violence or intimidation, no
threats, no trespass, no harmful false statements, no means that
would be improper, were the workman the actor. * * * Where
the end or the means are unlawful and the damage has already been
done, the remedy is given by a criminal prosecution or by a recovery
of damages at law. Equity is to be invoked only to give protection
for the future. To prevent repeated violations, threatened or prob
able, of the complainant’s property rights, an injunction may be
granted. This is no novel assumption of jurisdiction. For many
years, while leaving to the law redress for single or isolated wrongs
to property rights, where there is danger or their repetition, the
chancellor has used this weapon to protect the innocent. The theo
retical basis of this power has been said to be the avoidance of a
multiplicity of actions. Whatever the basis, however, the power is
undoubted. It has been exercised in many ways. Repeated tres
passes have been prevented; the continued pollution of streams; the
maintenance of nuisances; the misuse o f a trade name. O her
instances might be cited. The rule is not different where behind the
facts presented to the court li6s a labor dispute. Freedom to con
duct a business, freedom to engage in labor, each is like a property
right. Threatened and unjustified interference with either will be
prevented. But the basis of permissible action by the court is the
probability of such interference in the future, a conclusion only to
be reached through proof contained in the record. Unless the need
for protection appears, equity should decline jurisdiction.
With reference to the pledge not to join a union the court said:
This paper was not a contract. It was merely a promise based
upon no consideration on the part of the plaintiff. * * * The
appellate division has based its decision in part upon the theory
that the defendants wrongfully attempted to persuade the plaintiff’s
employees to break this alleged contract. Even had it been a valid
subsisting contract, however, it should be noticed that, whatever rule
we may finally adopt, there is as yet no precedent in this court for the
conclusion that a union may not persuade its members or others to
end contracts of employment where the final intent lying behind the
attempt is to extend its influence.
L abor Organizations— Criminal Syndicalism— Constitutional
v. State of Kansas, Supreme Court of the United States
(May 16, 1927),
Supreme Court Reporter, page 655.—Harold B.
Fiske was convicted of violating the Kansas criminal syndicalism
act, in the district court of Rice County, Kans., and the conviction
was affirmed by the Supreme Court of Kansas. Fiske was charged
with publicly circulating books and pamphlets advocating criminal
syndicalism, by inducing certain persons to sign an application for
membership in the Workers’ Industrial Union, knowing that this
organization unlawfully taught and advocated criminal acts.
ity—Fisfce
LABOR ORGANIZATIONS
139
Fiske denied the charges and stated that while he was a member
of such an organization, it did not teach that it would obtain indus
trial control in any criminal way or unlawful manner.
The case was carried to the United States Supreme Court and on
May 16, 1927, that court reversed the judgment of the lower court.
The Supreme Court stated that no inference could be drawn from
the preamble of the organization that it taught or advocated criminal
syndicalism or other unlawful acts, nor that the organization of
workers was to be accomplished by other than lawful methods, nor
that the overthrow of existing industrial conditions was to be ob
tained by other than lawful means.
It was therefore held by the Supreme Court that the law as ap
plicable to Fiske was an arbitrary and unreasonable exercise of the
power of the State, unwarrantably infringing upon his liberty in
violation of the due process clause of the fourteenth amendment, and
ordered that the judgment of the lower court be reversed.
L abor Organizations— Criminal
Syndicalism— Constitution
ality—Whitney
v. People of State of California, Supreme Court
of the United States (May 16, 1927), 47 Supreme Court Reporter,
page 641.—Charlotte A. Whitney was convicted of violating the
California criminal syndicalism act and sentenced to imprisonment
by the superior court of Alameda County, Calif. The judgment
was affirmed by the district court of appeals.
The contention of Whitney was that the syndicalism act as applied
in her case was contrary to the due process and equal protection
clauses of the fourteenth amendment.
The case was taken to the United States Supreme Court, which
court on May 16,1926, affirmed the judgment of the court of appeals.
The Supreme Court did not review the judgment of the State court
because there was no Federal question involved, but based its deci
sion entirely upon the merits of the constitutional question consid
ered by the court of appeals. The Supreme Court said:
The essence of the offense denounced by the act is the combining
with others in an association for the accomplishment of the desired
ends through the advocacy and use of criminal and unlawful
methods. It partakes of the nature of a criminal conspiracy. That
such united and joint action involves even greater danger to the
public peace and security than the isolated utterances and acts of
individuals is clear. We can not hold that as here applied the act
is an unreasonable or arbitrary exercise of the police power of the
State, unwarrantably infringing any right of free speech, assembly,
or association, or that those persons are protected from punish
ment by the due process clause who abuse such rights by joining and
furthering an organization thus menacing the peace and welfare
of the State,
140
DECISIONS OF T H E COURTS
The case was, therefore, affirmed on the ground that the criminal
syndicalism act was not contrary to the due process or equal pro
tection clauses of the fourteenth amendment of the United States
Constitution.
L a b o r O r g a n iz a tio n s — C r im in a l S y n d ic a lis m — C o n s t i t u t i o n a l
Bums v. United States, Supreme Gourt
of the United States (May 16, 1927), 47 Supreme Gourt Reporter,
page 650.—William Burns was convicted in the United States Dis
trict Court for the Northern District of California of violating the
California criminal syndicalism act within the Yosemite National
Park on April 10, 1923. He was convicted under an act of Congress
of June 2, 1920, providing that if any offense shall be committed in
the Yosemite National Park which is not prohibited by a law of the
United States the offender shall be subject to the same punishment
as the laws of California prescribe for a like offense.
Burns contended that the law was in violation of the fourteenth
amendment of the Constitution of the United States, and also that
the instruction given by the court was erroneous and therefore that
he w^as entitled to a new trial. The case was removed to the Supreme
Court of the United States, where judgment of the lower court was
affirmed on May 16, 1927. That court dismissed Burns’s contention
relative to the violation of the provision of the Constitution, holding
that point had already been determined adversely to his contention
in the case of Whitney v. People of the State of California (274 U. S.
357). Relative to the contention that the instruction as given by
the court was erroneous, the court held that Burns failed to make
any objection to the charge complained of at the time of the trial.
Exceptions to a charge must be specifically made in order to give the
court opportunity then and there to correct errors and omissions.
Such was not done, and therefore the Supreme Court affirmed the
judgment of the lower court.
it y — In s tr u c tio n o f C o u rt—
L abo r O r g a n i z a t i o n s — I n j u n c t i o n s — Bittner et al. v. West Virginia-Pittsburgh Goal Go., Circuit Gourt of Appeals, Fourth Circuit,
West Virginia (October 29, 1926), 15 Federal Reporter (2d) page
652.—Van A. Bittner was an officer of the United Mine Workers of
America. An injunction had been issued against him and other offi
cers of the union to restrain them from interfering with the em
ployees of the West Virginia-Pittsburgh Coal Co. Bittner had asked
that the injunction issued against the union be modified, and upon a
refusal by the district court of West Virginia, he appealed. Four
reasons were given by the union for reversing the decree of the dis-
LABOR ORGANIZATIONS
141
trict court.— (1) that the facts of the case had already been de
termined in a prior case; (2) that the court was without jurisdiction;
(3) that the decree asked by the company would be violative of the
law; (4) that the granting of the decree would deprive the union of
having their side of the controversy heard. As to the first contention
brought forth by Bittner the court quoted 15 R. C. L., topic 66Judg
ments,” sec. 439:
I f it is doubtful whether a second suit is for the same cause of
action as the first, it has been said to be a proper test to consider
whether the same evidence would sustain both. If the same evidence
would sustain both, the two actions are considered the same, and the
judgment in the former is a bar to the subsequent action, although the
two actions are different in form. If, however, different proofs
would be required to sustain the two actions, a judgment in one is no
bar to the other. It has been said that this method is the best and
most accurate test as to whether a former judgment is a bar in subseuent proceedings between the same parties, and it has even been
esignated as infallible. Sometimes the rule is stated in the form
that the test of the identity of causes of action for the purpose of
determining the question of res judicata is the identity of the facts
essential to their maintenance.
In the present case the injunction decree in the old suit was entered
in 1913, and had reference to conditions existing then, as alleged in
the bill of complaint, and the evidence was to prove the then existing
conditions. The decree in that case referred to and determined the
rights of the parties as of that time and held that the acts done at
that time were in violation of the then rights of the parties. The
final decree, it is true, was entered in July, 1923, in the suit brought in
1913, and the 1913 decree could only have been supported by proof
of the allegations of the bill filed at that time. Van A. Bittner is
the only party to the present suit who was a party to the 1913 suit,
and the defendants in this suit, who were officers of the United Mine
Workers of America, because of that fact, and not in privity with
different individuals who were their predecessors in office in 1913,
are not bound by the decree in that suit.
The bill in this case charges that about the 1st of March, 1925, the
defendants and each of th«m did conspire and confederate together
for the purpose of unionizing all of the nonunion mines of northern
West Virginia, and in furtherance of that conspiracy did, during
the month of April, 1925, entreat, entice, and persuade a great num
ber of complainant’s employees to break their contracts of service
hereinbefore mentioned; they, the defendants, well knowing at the
time that complainant’s mines were being operated on a nonunion
basis and under contract as aforesaid with its employees to that
end.
The defendants, it is true, were acquitted in the contempt proceed
ings instituted against them for alleged violation of the injunction
order of 1913. Ihis, however, in no way affects complainant’s right
3
103151°—30----- 11
142
DECISIONS
of
the
courts
to the injunction prayed for, as the alleged contempt related to the
old case, and not to this.
Appellants question the jurisdiction of the court to hear and de
termine the issues raised by the pleadings. Upon what theory this
contention can be made successfully is difficult to perceive, as it seems
manifest that the court is clothed with full power, authority, and
'urisdiction, as well of the subject-matter as of the parties to the
itigation. The general purpose of the suit is to preserve and protect
to complainant its lawful right to use and enjoy its property. It is
the undisputed owner of valuable coal properties, particularly the
three large coal-mining properties described in the bill and located
in the State of West Virginia, in the northern judicial district of
that State. The mines are operated by complainant in the produc
tion of coal therefrom, which is sold for use within and without the
State, the mines being operated on what is known as the nonunion
basis.
The grievances of the complainant, as averred, are that the ap
pellants upon whom service of process was duly made, as well indi
vidually as officers and agents of the United Mine Workers of
America, have set about and combined and confederated among
themselves and with others to forcibly unionize complainant’s mines,
which would tend to destroy the value of the same and make im
possible the profitable production of coal; that complainant operated
its said mines under written contracts with its employees, one of the
provisions of which was that they would not, while in complainant’s
employ, join or become members of the United Mine Workers of
America without its knowledge, and that, if they did so, they would
leave the employ of complainant; that this method of operating its
mines, and the rights and benefits accruing to complainant under its
contracts of employment with its employees, was a most valuable
property right, which enabled it to successfully conduct its business,
and particularly to maintain the number of employees necessary to
carry on its business, and without which it could not have done so, and
to avoid strikes and such incidental interruptions as would result in
the practical destruction of its business ana property, and its right
to use and enjoy the same; that defendants well knew of complain
ant’s contracts with its employees, and the terms and conditions of
the same, and of the value of such contracts, but nevertheless will
fully and maliciously, and with the pvpose of and intending to
break up and destroy complainant’s business, deliberately set about to
induce and secretly persuade complainant’s employees and workmen
to break their contracts by becoming members of the United Mine
Workers of America, and keeping that fact away from the knowledge
of complainant until, with such numbers, they could undermine and
break up the complainant’s business, all of which actions and doings
were against good conscience and fair dealings.
{
As to the jurisdictional question advanced by the union the court
in the following language held that:
The right to maintain the suit against appellants is clear. The
complainant is a West Virginia corporation, and instituted this suit
LABOR ORGANIZATION'S
143
at its home in that State, and the appellants are citizens of the States
of Pennsylvania and Ohio, respectively, and were duly served with
process in the State of West Virginia, which gave and conferred
upon complainant in the State and district in which it resided, the
right to maintain this litigation, certainly against the appellants
herein individually, if not in their official capacities, as representing
the labor unions to which they belonged, and for which they acted.
This case in its essential features is practically a counterpart of
that of Hitchman Coal & Coke Co. v. Mitchell and Others (245 U. S.
229, 38 Sup. Ct. 65, 62 L. Ed. 260, L. R. A. 1918C, 497, Ann. Cas.
1918B, 461). In that case, as here, the right of injunction was in
volved and considered, growing out of an effort to unionize com
plainant’s mines by peaceable and persuasive methods, fraudulently
and deceptively practiced, in utter disregard of its rights and in
terests under the contractual relations with its employees, of which
the defendants w'ere fully advised.
In disposing of the third and fourth contention of the union offi
cials, the court considered them too general in their nature to call
for any special discussion by the court, saying:
This is an appeal from an order granting a temporary injunction
and refusing to dissolve the same, and not a decision upon final
hearing on the merits of the case. It appears that the court below in
the action taken neither violated any rule of equity, nor improperly
exercised the discretion reposed in it, and that the evidence entitled
the complainant to injunctive relief, and that the action taken, save
as hereinafter modified, is free from error. (Meccano v. Wanamaker, 253 U. S. 136,141, 40 Sup. Ct. 463, 64 L. Ed. 822; Amarillo v.
Southwestern Tel., etc., Co. (C. C. A. 5th Cir.) 253 F. 638, 165 C. C.
A. 264; National Picture Theaters v. Foundation Film Corp. (C.
C. A. 2d Cir.) 266 F. 208; Gassaway v. Borderland Corp. (C. C. A.
7th Cir.) 278 F. 56.)
Defendants criticize the scope of the injunction, contending that
its effect is to forbid the publishing and circulating of lawful ar
guments and the making oi lawful speeches advocating membership
in the union in the neighborhood of plaintiff’s mines, but we do not
think that this is the proper construction of the order, which is an
exact copy of that which was approved by the Supreme Court of
the United States in the Hitchman Coal Co. case, supra. In view
of what was said by that court in American Foundries Co. v. Tri-City
Council, there can be no doubt as to the right of defendants to use
all lawful propaganda to increase their membership. See Gassaway
v. Borderland Coal Co., supra. But, that there may be no misun
derstanding in the matter, we think that the order should be modified
by adding thereto the following provision:
“ Provided, That nothing herein contained shall be construed to
forbid the advocacy of union membership, in public speeches or by
the publication or circulation of arguments, when such speeches or
arguments are free from threats and other devices to intimidate,
and from attempts to persuade the complainant’s employees or any
of them to violate their contracts with it.
144
DECISIONS OF T H E COURTS
L abor O r g a n i z a t i o n s — I n j u n c t i o n — B o y c o t t — Columbus Heat
ing & Ventilating Co. v. Pittsburgh Building Trades Council et al.,
District Court, Western District, Pennsylvania (February 1, 1927),
17 Federal Reporter {2d), page 806.—The Columbus Heating &
Ventilating Co., an Ohio corporation, was engaged in the manufac
ture of heating and ventilating apparatus at Columbus, Ohio. The
company operated the factory on a nonunion basis, and sold its prod
ucts under a contract which also included the erection of the equip
ment. The company maintained an erecting force in Pittsburgh, and
the members of this force were members also of the local union of the
Amalgamated Sheet Metal Workers’ International Alliance.
The International Alliance had for a long time attempted to
unionize the employees at the Ohio plant, but without success. The
company was engaged in installing heating systems in five school
buildings in Pittsburgh, and on November 18, 1926, the Alliance
directed the Pittsburgh employees to stop all work on these
buildings.
The company appealed to the Federal court for an injunction,
alleging a conspiracy to restrain interstate commerce. A restrain
ing order and later a preliminary injunction was granted against
the union. The court cited the case of Duplex Co. v. Deering (254
U. S. 443), as controlling the facts in the existing case. A pre
liminary injunction was therefore granted by the court.
L abor
O r g a n iz a t io n s — I n j u n c t i o n — B o y c o t t — M o n o p o ly — I n
t e r s t a t e C o m m e rce — Aeolian Co. et al. v. Fischer et al., District
Court, Southern District of New York (May 15, 1928), 27 Federal
Reporter (2d), page 560.— T h e A e o lia n C o. w as e n g a g e d in the
m a n u fa ctu re , in sta lla tio n , a n d m ain ten an ce o f p ip e o rg a n s a n d o th e r
m u sica l in stru m en ts. J a c o b F is c h e r w as p re sid e n t o f th e P ia n o ,
O rg a n , an d M u sica l In stru m en ts W o r k e r s ’ In te rn a tio n a l U n io n o f
A m e rica .
T h e A e o lia n C o . h e ld co n tra cts f o r th e in sta lla tio n o f
p ip e org a n s in N e w Y o r k C ity .
M o st o f th e o rg a n s w ere m a n u fa c
tu re d an d tra n sp o rte d b y th e co m p a n y fr o m fa c to r ie s in o th e r States.
T h e co m p a n y m ade n o d iscrim in a tio n in th e e m p lo y m e n t o f la b o r
betw een u n io n an d n o n u n io n m en, an d th e ir em p loyees w ere fr e e to
jo in a n y u n io n .
S in ce p r io r to
1925
th e O r g a n W o r k e r s ’ L o c a l
N o . 9, a b ra n ch o f th e in te rn a tio n a l o rg a n iz a tio n , an d cla im in g ju r is
d ic tio n o f th e te r r ito r y in an d a b ou t N e w Y o r k C ity , has a ttem p ted
t o u n ion ize th e e m p loyees o f th e A e o lia n C o ., an d c o m b in e d an d
c o n s p ire d w ith th e u n ion s c o n tr o llin g a ll bran ches o f th e b u ild in g
in d u s try w ith in the m e tr o p o lita n
d is trict o f N e w
Y o r k , h o p in g
th ereb y to c o m p e l th e c o m p a n y to e m p lo y u n io n la b o r in th e ir w o rk .
LABOR ORGANIZATIONS
145
In October, 1925, the union circulated among the manufacturers
of organs within its jurisdiction a proposed contract to be submitted
to their employees providing for the regulation of hours of labor
and working conditions. The organ manufacturers refused to ac
cede to the terms of the proposed agreement, with the result that
in December, 1925, a strike was called by the union. The strike
continued for a period of 14 weeks, after which time the striking
employees returned voluntarily to their work. Subsequently the
union attempted to coerce general contractors to cancel their con
tracts with the organ manufacturers or to delay the work of the
company.
The Aeolian Co. and other manufacturers requested the District
Court for the Southern District of New York for an injunction to
prevent the union from interfering with their business, on the ground
that the unions were engaged in a combination and conspiracy in
restraint of interstate commerce.
The district court, in an opinion by Judge Thacher, held that an
injunction would not be granted because there was no interference
with interstate commerce involved.
The court said:
It seems entirely clear that this case can find no support in the
Sherman Act, as amended by the Clavton Act. Strikes were not
called or threatened against the use of plaintiff’s organs, but only
against the employment of nonunion labor in the local work of
installation and maintenance. The purpose of all that was done
was to coerce the employment of union men in one local craft through
the refusal of other crafts to work on the same building with non
union men. There was no intent, express or implied, to exclude
nonunion products from interstate commerce, as in the Bedford and
Duplex cases. On the contrary, the effect, if any, upon interstate
commerce, resulted from interferences with the local installation of
plaintiffs’ organ for a purely local object.
As to whether the organ manufacturers were entitled to relief
under the common law for the activities of the union in creating
sympathetic support the court said that:
All this has been done through peaceful persuasion, without threats
of violence or other unlawful act, and the question presented is
whether it is lawful for union men, engaged in the construction of
buildings and in the operation of theaters, to refuse to work while
nonunion men of another craft are at work on the premises.
In considering this question it is important to bear in mind that
the plaintiffs’ employees are entirely content. They have no con
troversy with their employer regarding their wages, or the hours
or conditions of their employment. It is, indeed, entirely clear that
Organ Workers’ Local No. 9 is attempting to coerce the employment
of union labor, not through the exercise of its members’ right to
146
DECISIONS OF T H E COURTS
strike, but by persuading members of other crafts to exercise their
rights in its behalf, and thus indirectly to accomplish its purpose,
which it failed to accomplish in the general strike of 1925.
In this State, a secondary boycott is not illegal per se, and is con
demned only if inspired by malicious intent and purpose to destroy
the good will or business of those against whom it is directed.
Continuing, the court said:
That workingmen may organize for purposes deemed beneficial to
themselves, and in their organized capacity may determine that their
members shall not work with nonmembers, or upon specified work
or kinds of work, is the settled law in this State. It was, therefore,
not unlawful for the defendant unions to forbid their members
working with nonunion men employed in the same craft. Selfinterest in such a case is sufficient justification, and injury to others
is incidental to the exercise of a personal right. How far the mem
bers of a craft may go in their organized capacity in refusing to work
in the same building with nonunion members of other crafts is a
question not so simple of solution. It depends upon the extent to
which those who cooperate have in point of fact a common interest,
and are justified in what they do by honest motives to advance selfinterest, as opposed to malicious intent to injure the business or good
will of another.
L abor Organizations—I njunction— Contempt— Day v. United
States, Circuit Court of Appeals, Seventh Circuit, Indianapolis
(April 5, 1927), 19 Federal Reporter (2d) , page 21,— Edgar Day was
charged with violating an injunction involved in the case of Arm
strong v. United States (18 Fed. (2d) 371). It was contended that
Day knew of the issuance of the injunction in that case and that he
conspired to do acts of violence in spite of the order. Day was
convicted in the United States District Court of Indiana, and he ap
pealed the decision to the circuit court of appeals. Day contended
that there were no sufficient ground upon which to charge him with
violating the order in that it did not show that he was in active con
cert or participating with the others named in the suit. The court
of appeals said:
Taking the information as a whole, it sufficiently charges that the
defendants to the suit were promoting a strike among the employees
of the street railway company; that they, and all persons acting in
combination or conspiring with them, or for or in the interest of
them or either of them, were enjoined from doing certain things
calculated to further the strike; that plaintiff in error and his code
fendants had committed acts which appear to be and could only be
acts in the aid of and in the interest of those promoting the strike.
They were the acts of associates and confederates in such cases, and
the averment that they did them, under the circumstances alleged,
147
LABOR ORGANIZATIONS
can receive no ^ther construction than that in so doing they were
in active concert and participating with the parties to the suit. The
demurrer to the information was properly overruled.
There is abundant evidence in the record to warrant the jury in
finding that plaintiff in error was guilty of the acts charged against
him; that is, that he assisted, aided, and abetted his codexendants in
the commission of the acts of violence charged. While his counsel
question the sufficiency of the evidence in this regard, their real re
liance seems to be that the evidence was not sufficient to show that he
acted in concert or participated with the defendants to the suit.
They base their contention upon section 19 of the Clayton Act
(Comp. St., sec. 1243c), which, so far as applicable here, reads:
“ Every order of injunction or restraining order * * * shall
be binding only upon the parties to the suit, their officers, agents,
servants, and employees, and attorneys, or those in active concert or
participating witn them, and who shall, by personal service or other
wise, have received actual notice of the same.” No question is raised
as to whether this means acting in concert with the parties to the
suit in doing the things which warranted the injunction, or in the
violation of it. But whichever view is taken, there was sufficient
evidence before the jury to warrant it in finding not only that plain
tiff in error was acting in concert with Armstrong and Parker, before
the injunction was entered, but also in the violation of it. By the
terms of section 19 the injunction was binding upon plaintiff in
error as one acting in concert with the defendants to the suit.
L abor O r g a n iza tio n s — I n j u n c t io n — C o n te m pt — C l a y t o n A ct —
Armstrong et al v. United States, Circuit Court of Appeals, Seventh
Circmt (March 30, 1927), 18 Federal Reporter (2d), page 371.—
R o b e r t B. A r m s tr o n g an d a n oth er w ere fo u n d g u ilt y o f v io la tin g
a co u rt ord er. T h e y w ere represen tatives o f a la b o r u n io n w h ich
attem p ted to u n ion ize th e em p loyees o f the In d ia n a p o lis S treet R a il
w a y C o. T h e r a ilw a y co m p a n y h a d en tered in to a w ritte n co n tra ct
w ith th eir em p loyees b y w h ich th e y a greed n o t to strik e o r p a r tic i
p a te in a n y strik e o f th e em p loyees, o r enter in to an agreem en t to
en g a g e in such strike. T h e u n io n officials w ere u n la w fu lly p ersu a d
in g th e ir em p loyees to v io la te th e ir co n tra ct a n d it w as a lleg ed th a t
th e y w o u ld con tin u e to d o so unless restra in ed b y th e cou rt.
The
ra ilw a y co m p a n y o b ta in e d an in ju n ctio n a g a in st th e a ctiv ities o f the
u n ion officials, re stra in in g th em fr o m fu rth e r a ttem pts to in d u ce th e
em p loyees to b rea k th e ir con tra cts.
A r m s tr o n g an d oth er u n ion m en
w ere accused o f v io la tin g th e in ju n c tio n o rd e r, an d a fte r a h e a rin g
w ere fo u n d g u ilt y in the U n ite d States D is tr ic t C o u rt fo r the D is tr ic t
o f In d ia n a .
T h e y a p p e a le d th e d ecision , an d th e C ir c u it C o u rt o f
A p p e a ls , S even th C ircu it, o n M a rch
cou rt.
30, 1927,
affirm ed the lo w e r
T h e con te n tio n o f A r m s tr o n g an d th e oth ers w as th a t u n d er
the term s o f th e C la y to n A c t th ey w ere en titled to a tr ia l b y a ju ry .
148
DECISIONS OF T H E COURTS
The court held that they were not entitled to a jury trial, citing
sections 21, 22, and 24 of the Clayton Act:
By the provisions of these sections it appears that, “ if the act or
thing so done by him be of such character as to constitute also a
criminal offense under any statute of the United States or under
the laws of any State in which the act was committed,” the person
charged shall be entitled, upon demand, to a jury trial, but tnat in
“ all other cases of contempt ” the proceedings may be “ in con
formity to the usages at law and in equity ” prevailing at the time
of the passage of the act.
The statute is too plain to admit of construction. However, the
Supreme Court, in Michaelson v. United States (266 U. S. 42, 45 S.
Ct. 18, 69 L. Ed. 162, 35 A. L. R. 451), having before it the question
of the constitutionality of the provisions for trial by jury upon
demand, as provided in section 22, said of the provision, “ it is of
narrow scope, dealing with the single class where the act or thing
constituting the contempt is also a crime in the ordinary sense.
The acts charged in the information were not “ of such character.”
Plaintiffs in error do not claim that the acts charged against them
constitute also a criminal offense under any law, State or National,
but urge that the violation of an injunction is itself a crime and
therefore triable by jury. This not only begs the question, but
ignores the word “ also ” in the statute. It was not error to deny
the demand for a jury.
The court also held that there was direct and substantial evidence
before the court upon which to base a finding of guilty.
Plaintiffs in error did not themselves testify, but as part of their
evidence they put upon the stand a shorthand reporter who read
lengthy reports of speeches made by them at a meeting, at which the
injunction was read and discussed and employees or the company
were urged, in defiance of it, to break their contracts and go upon
strike. These speeches were full of the usual protestations o f loyalty
to the court and respect for its order, but a tyro, reading between the
lines, could see what it all meant. The court must have found that
it was mere pretense. Upon this writ of error we are without power
to review findings of fact.
The court, in holding that section 20 of the Clayton Act was in
applicable to Armstrong and the other men, said:
Upon the proposition that the portion of the injunction alleged
to have been violated was void, being prohibited by section 20 of the
Clayton Act, the insistence is that the suit in which the injunction
was entered “ was a case between employer and employees, and that
being such the court was without power to enjoin the peaceful per
suasion of others to strike.”
The complaint alleged, the evidence established, and the court
found that plaintiffs in error were not, at the commencement of the
suit or at the time of entering the injunction, in the employ of the
railway company. The evidence further shows that they had never
LABOR ORGANIZATIONS
149
been in such employ. It also excludes the idea that they were pros
pective employees of the company. They were nonresidents of Indi
ana, one a resident of the State of Missouri and the other a resident
of the Dominion of Canada, sent to Indianapolis by a labor organi
zation, not to seek employment with the company, but as organizers
whose chief business was to induce the employees of the company to
break their contracts with it.
Plaintiffs in error were not past, present, or prospective employees
of the company and had no interest in the contract with its em)loyees, and were not in any view of the case entitled to the priviege or immunity given by section 20.
!
L abor
Organizations—I njunction—I nternal
Government—
International Hod Carriers* Building and Common Laborers' Union
of America, Local No. 1$6 v. International Hod Carriers’ Building
and Common Laborers' Union of America, Local No. 502 et al.,
Court of Chancery of New Jersey (August IS, 1927), 138 Atlantic
Reporter, page 532.—Local 426 of the Hod Carriers’ Union brought
an action in the New Jersey courts against Local Union 502 of the
same international union to restrain the members from holding
themselves out as such. Local 426 contended that Local 502 was
without authority to function as such organization. Local 502 on
the other hand contended that Local 426, being a voluntary asso
ciation, had no power to bring an action in its own name. The
Chancery Court of New Jersey dismissed the action brought by
Local 426, holding that the courts will not interfere with the inter
nal affairs of a voluntary association to settle disputes between local
organizations, and that an injunction would not be issued where the
local union had not exhausted its remedies within the international
union; and in the absence of fraud the court can not dissolve the
relationship between a local association and the international union.
L abor Organizations—I njunction—L ockout— McGrath v. Norman et al., Supreme Court, Appellate Division, Second Department
(July 1, 1927), 223 New York Supplement, page 288.—M. J. Me.
Grath, president of Local Union 418, United Association of Plumb
ers and Gas Fitters, brought an action against C. G. Norman, as
chairman of the board of governors of the Building Trades Em
ployers’ Association. An injunction was denied the plumbers and
gas fitters union, and this was appealed to the supreme court of the
State. This court affirmed the judgment of the lower court basing
its decision entirely on the opinion of Mr. Justice May of the lower
court. The facts in the case were that the plumbers’ union of
150
d e c is io n s
of
the
courts
Queens Borough had an agreement with the master plumbers’ asso
ciation, Queens Branch, providing that during the period of the con
tract the plumbers should be paid no less than the highest wage paid
to the trade in the city of New York. They were receiving $12 a
day. Plumbers later on in Brooklyn struck for $14 a day. The
Queens Borough plumbers refused to work on jobs in Brooklyn
during the pendency of the strike.
The Queens Borough Master Plumbers’ Association then locked
out the plumbers and the plumber’s union sought to enjoin the lock
out. The court held that the plumbers had violated the terms of
the contract, and were therefore not entitled to relief, saying:
It is agreed that ordinarily the right of an employer to lock out
and of employees to strike, where not restricted by special agreement,
is correlative; but the plaintiff, while not disputing that there is no
express limitation of the employers’ right, contend that it is curtailed
and controlled by implication from the agreement before mentioned,
specifically article 15, which reads as follows:
“ The members of Local Union No. 418 (the Queens local) reserve
the right to refuse to work on any job where union labor has not
been paid, or where work was performed by nonunion labor, or
where the conduct of the job has been detrimental to union labor.
The members of the master plumbers’ association agree not to com
plete any job on which the wages of union plumbers are unpaid.”
It is contended by the plaintiff that thereby the employees agreed
not to refuse to work—that is, agreed not to strike except for the
three reasons specified, as to which the right was reserved—and the
employers impliedly agreed to refrain from lockouts. The implica
tion may be a forced one in view of the fact that the article expressly
states what the employers agree to do, or rather not to do, which is
“ not to complete any job on which the wages of union plumbers
are unpaid ” ; but assuming the implication, it would only be opera
tive if the employees were fulfilling the counterobligations on their
art of not striking, except for one of the three specified reasons,
t is not disputed that individual members of the Queens union have
refused to work on Brooklyn jobs in which the Queens employers
were engaged.
Equity will not assist those who by indirection violate their agree
ments, or by such means attempt to secure that to which, under ordi
nary circumstances, they would not be entitled, any more than it
would aid them in such an attempt if made by direct action. It
was the intention of the parties that the wages of the Queens em
ployees should be no less than the amount paid in any of the other
boroughs, but not that the employers should stand idly by while
their employees were aiding and assisting in compelling the payment
of higher wages in Brooklyn, thereby enabling themselves directly
to share in such benefit. The object of the agreement under consider
ation was to avoid strikes and disagreements. Since the plaintiffs
directly and indirectly violated the terms thereof, they may not
reasonably protest against means of a like nature on the part of their
f
LABOR ORGANIZATIONS
151
employers to defeat their purposes. The plaintiffs are not in court
with clean hands, and equity will not assist them in securing ad
vantages to which they have shown they are not entitled.
The motion for an injunction pendente lite was denied.
L ab o r O r g a n i z a t i o n s — I n j u n c t i o n — L o c k o u t — Moran v. Lasette
et al., Supreme Court, Appellate Division, First Department, New
York (Jwne 24, 1927), 223 New York Supplement, page 283.—Mat
thew J. Moran, president of Local Union No. 463, United Association
of Plumbers and Gas Fitters, brought an action against Frank B.
Lasette as chairman of the board of governors of the Association of
Master Plumbers of the city of New York. The parties had entered
into an agreement which was a “ mutual compact for the establish
ment and maintaining of a standard rate of wages and for the set
tling of differences which may arise between the members.5’ There
were no restrictions of the locality to which the terms were appli
cable. In Brooklyn, N. Y., another local of the same national union
with which the plaintiffs were affiliated struck. On the day of this
strike all the members of the plumbers and gas fitters’ union em
ployed on jobs in Brooklyn quit their work in sympathy. The mas
ter plumbers’ association requested that the men be ordered to return
to their work. Upon the refusal of the union to permit any of its
members to work for the master plumbers’ association, the associa
tion .ordered a lockout. This case is an appeal from a court order
enjoining the association from continuing the lockout. The conten
tion of the plumbers and gas fitters’ union was that the real motive
of the association was not in securing the return of the employees to
work but in safeguarding themselves against a raise in the wage
scale, which the union contended they had no right to do under the
agreement. The court in denying the motion and reversing the
appeal said:
I f motives were determinative of this appeal, we should hold that
the primary motive of union and master plumbers was, respectively,
to gain and to defeat a wage increase. We are dealing here, however,
with a question of legal right. Unless surrendered by agreement,
the right to lockout was correlative with the plaintiff’s right to
strike. No injunction may issue if the agreement was essentially
breached by plaintiff, or if it did not prohibit a lockout.
The plaintiff by its own conduct lost its right to enforce any cove
nant against a lockout which might be implied. Refusal to order
back to work the men who concertedly left in Brooklyn was a direct
participation in a strike against these members of the defendants’
associations. These employers had a perfect right to accept contracts
in Brooklyn. The plaintiff’s attitude amounted to a refusal to per
mit any of the defendants’ members to do any work in Brooklyn,
152
DECISIONS OF T H E COURTS
The plaintiff could not arbitrarily permit its members to join in the
Brooklyn strike, directed in part against members of the defendants,
refuse to permit its men to work in Brooklyn, and then claim that
the defendants must sit idly by and suffer the consequences of this
strike, and the patent attempt by indirection to force up the wage
scale in Brooklyn, to the union’s consequent advantage. The plaintiff declared war; the defendants had a right to resist the attack.
on, the plaintiff was re
threatened irreparable
injury. It shows neither. The interference of a court of equity in
labor disputes, directed either against employer or laborer, should
be exercised sparingly and with caution. (Exchange Bakery &
Restaurant (Inc.) v. Rif kin, 157 N. E. 130 decided by the court of
appeals May 31, 1927.)
L a b o r O r g a n i z a t i o n s — I n j u n c t i o n — M e m b e r s h i p — McNichols et
al. v. International Typographical Union et al., Circuit Court of A p
peals, Seventh Circuit, Indiana (>September
, 1927), 21 Federal
Reporter (2d), page 497.—James P. McNichols and others brought
an action against the International Typographical Union and others
to restrain them from submitting proposed amendments to various
local unions. The union was composed of printers or those connected
with allied crafts, one of which was the craft called “ mailers.” The
amendment as proposed would lessen the influence of the mailers’
craft. The president of the union, Charles P. Howard, sought to
submit these amendments to the various local unions for approval.
They had been indorsed by 150 subordinate unions. A protest was
filed with the executive council of the union against the submission,
and at a meeting held for the purpose of acting on the petition and
the protest, a motion was made to sustain the protest and declare the
proposed amendment unconstitutional. The motion was ruled out
of order by the president, and an appeal was taken from the Chair’s
ruling. He refused to submit the appeal to a vote and an effort
was made to place in the chair one of the other members of the
executive council but Howard refused to surrender the chair. Four
of the five members of the executive council voted against the presi
dent’s ruling and in favor of declaring the amendments unconstitu
tional. The president, however, proceeded with the referendum.
An injunction was issued by the District Court of Indiana restrain
ing the union from submitting to the members of the union, proposed
amendments to its constitution. The union appealed the decision to
the circuit court of appeals, and this court affirmed the lower court
on September 24, 1927. As to whether the lower court had juris
diction, and whether the court’s construction of the union’s consti
tution and by-laws was correct the circuit court of appeals said; “ The
24
LABOR ORGANIZATIONS
153
record does not support appellant in either contention. The neces
sary diversity of citizenship depended upon the citizenship status of
one Seth R. Brown, a party defendant. * * * Upon this evidence
the trial court was justified in finding Brown a citizen of Indiana,”
and also that the court was justified in accepting the contention of
McNichols that the amount in controversy exceeded $3,000. As to
whether the court’s construction of the union’s constitution and by
laws, was erroneous, the court said:
After considering all of the provisions above quoted we are con
vinced that they may be, and should be, reconciled and each given
effect. This can be accomplished by giving due recognition to the
powers and duties of the executive council. Among other things,
section 7 of article 6, which deals with “ Duties of officers,” provides
that the executive council “ shall have general supervision of the
business of the international union and of subordinate unions.”
From the very nature of this organization the executive council is
a body of extensive power and authority. This provision, as well as
those found in sections 1 and 3 of article 17, necessitate the con
clusion that the submission of any proposed amendment must be
by the executive council.
Upon the undisputed evidence before us, there was no action by the
executive council. Four of the five members registered their votes
as opposed to such a submission. In the face of this record, the ac
tion of the president in attempting to submit the amendments was
unauthorized and illegal.
Situations may be conceived where the duty of the executive coun
cil is so clear and so plain that mandamus would lie to compel
action. But even in such a case the president could not assume to
act as, and for, the executive council.
We conclude, therefore, that all proposed amendments of the con
stitution of the union, instituted under section 3 of article 1, must be
submitted to the local unions by the executive council; that the
president is but a member of the executive council and has no
authority by virtue of his office to submit such amendments to the
local unions; that his action in attempting to submit the proposed
amendment in defiance of the vote of the other four members of the
executive council was illegal and void. The order is affirmed.
Labor Organizations—I njunction—Membership Rights— Inter
national Union of Steam'and Operating Engineers et al. v. Owens,
Supreme Court of Ohio (June SO, 1928), 16% Northeastern Reporter,
page 886.—John G. Owens was a member of the International Union
of Steam and Operating Engineers. He was affiliated with Local
Union No. 293 at Cleveland, Ohio. In March, 1923, the general
executive board of the international organization revoked the charter
of Local Union No. 293 by reason of a controversy growing out of
the question of calling a strike. Shortly thereafter a new local
union known as No. 874 was formed. Owens brought an action in
154
DECISIONS OF T H E COURTS
the court of common pleas seeking to enjoin the international union
from refusing to issue to him a transfer card to the new local union.
Owens asserted that the international union was an unincorporated
association supported by fees and dues of individual members; that
for many years he was a member in good standing, and because the
members of the local union refused to strike the charter of Local
Union No. 293 was revoked; that the constitution of the inter
national union provided that an expelled member might take a
transfer card to the nearest local union; that he had applied and
was deprived of his right as a union man and that as a result he was
injured in his trade and prevented from obtaining work.
The lower court found in favor of Owens. The case was then
taken to the court of appeals by the union, and this court affirmed
the lower court and ordered that a transfer card be issued to Owens.
The union denied the right of a member of an expelled union to a
transfer card and contended that by the constitution the general
executive board might in its discretion grant or deny such applica
tion for transfer. The union made a denial of the contentions of
Owens and averred that he had no property interest in the union.
The case was then carried to the supreme court of the State by the
union and this court reversed the judgment of the lower courts.
In a per curiam decision the court said in part as follows:
It is a well-settled principle of law, recognized by the courts of
this State and by the courts of other States, that the members of a
fraternal association by adopting a constitution and by-laws and
providing reasonable rules and regulations for settling their own
disputes, and by establishing their own tribunals of original, inter
mediate, and appellate jurisdiction, become bound thereby, provided
such constitution, by-laws, rules, and regulations do not contravene
the laws of the State. It is also well settled that the members of
such an association must conform to the reasonable rules and regula
tions thereof and must exhaust all remedies within the association
and before such regularly constituted tribunals.
It is conceded in the instant case that the International Union of
Steam and Operating Engineers is such a fraternal organization,
and it must therefore be conceded that, if the defendant in error has
pursued all his remedies before the tribunals within the association,
and if the duly constituted tribunals have failed to observe the con
stitution, by-laws, rules, and regulations of the association, the de
fendant in error is entitled to invoke the aid of the court to compel
such tribunals to accord to him those rights, if any, which are shown
to have been denied.
We have carefully examined the record and it clearly appears that
all proceedings were regular relating to the revocation of the charter
of Local Union No. 293 and the organization of Local Union No. 874.
The defendant in error had full notice of and participated in those
hearings, and he is precluded by the action taken in those matters.
LABOR ORGANIZATIONS
155
It is not, however, made clearly to appear by this record that when
the defendant in error made application for transfer to Local No.
874 he requested a hearing, or that a hearing was accorded to him.
I f he desired and requested a hearing and it was not accorded to him,
then a substantial right has been denied him. The court of common
pleas found the issues in favor of Owens and granted the injunction
as prayed for, and the court of appeals affirmed that judgment. The
effect of this order is to compel the issuance of a transfer card to
Local Union No. 874. In this the court of appeals erred. I f no
hearing has been accorded to Owens, he is entitled to have it, but
the courts do not guarantee more than that. The International
Union of Steam and Operating Engineers is required to complete
any uncompleted processes in determining any rights between its
members, and likewise any rights between members of any local
union and such local union itself. The judgment of the lower courts
should, therefore, be reversed because the courts have granted the
writ of injunction to compel the issuance of the card, where it should
only be directed to the international union to command them to
proceed with the uncompleted processes. Upon the issues joined the
judgment of the lower courts must be reversed.
L abor
Organizations—I njunction— Sympathetic
Strike—
Lundofi-Bicknell Go. v. Smith et al., Gourt of Appeals of Ohio
(January 11, 1927), 156 Northeastern Reporter, page 21$.—The
Lundoff-Bicknell Co. were general contractors in constructing the
Bell Telephone Co. building in Cleveland, Ohio. All of the men
working on the building were union men, and on September 13, 1926,
the subcontractor for the painting and glazing put four nonunion
glaziers to work. The workmen in the other crafts objected, and
upon failure of the company to discharge the nonunion men, the
union caused to be withdrawn about 500 members of various other
local unions. The company obtained an injunction against the build
ing trades in the lower court. The union then appealed the decision.
According to various sections of the contract between employers
and employees in the several trades there were provisions that44work
men are at liberty to work for whomsoever they see fit,” and that
the 44employers are at liberty to employ and discharge whomsoever
they see fit.” It also provided that 44in the event members of such
workmen’s organization can not be secured with reasonable effort
the employer shall be permitted to hire workmen in that craft who
are not members of that organization, provided they signify their
willingness to join such organization,” and for the purpose of ad
ministering the agreement an arbitration committee of 10 men was
appointed providing that 44any dispute or disagreement ” arising
between the parties shall before any action is taken be submitted to
the decision of this committee, and also that there shall be no cessa
tion of work pending such decision.
156
d e c is io n s o f t h e
co u rts
The court of appeals held that the company “ has not established
by preponderance of the evidence that the men quit work in obedi
ence to any order made by the officers and agents of said unions; but
we do find that the men quit by concerted action and that the officers
and agents of said unions were in sympathy with the men’s quitting.”
.The contention of the labor organizations was that the quitting of
the men was not a violation of their contract. The company on the
other hand contended that even if under each contract the presence
of nonunion men in a particular craft justified the workmen in such
craft in collectively quitting without violating their contract, none of
said contracts gave to the workmen in one craft the right to quit be
cause nonunion men were employed in another craft, and that that
matter, not being covered by any such express provision of the con
tracts, was a matter which the workmen were required by the con
tracts to arbitrate and that a strike without any attempt to arbi
trate was a violation of the contracts.
That the collective quitting of the men without an attempt to settle
the dispute was a violation of their contracts, the court said:
We are of the opinion that, considering the expressed objects and
purposes of these agreements and all the facts and circumstances, the
disagreement as to whether or not nonunion glaziers should be per
mitted to work upon the building was a dispute which the workmen
in crafts other than painting and glazing were required to attempt
to settle and adjust under the provisions of the contract.
Relative to the question of relief which a court of equity might
grant for violations of the contracts, the court stated:
Men may combine to do a lawful act by lawful means, and their
agreement to so act in concert does not constitute a conspiracy and
is not illegal. In this case there was no unlawful means employed.
Was the violation of their contracts unlawful? The mere breaching
of a contract is not unlawful; it may be wrong, and may render
the wrongdoer liable, but it is not prohibited by law. I f one con
tracts to build a house, he may change his mind and refuse to build
it, paying the damages; but he does not commit an unlawful act by
such breach of his contract. There are well-considered cases which
support the proposition that, if two or more whose individual breach
of a contract would not be unlawful act together in breaching such
contract, and do no wrong except the mere breach of the contract,
their acting in concert is not unlawful.
Accordingly, it has been held, and we think properly, that work
men, who are bound by contract not to strike, may by concerted ac
tion, leave the service of their employer, and their act in so doing
will not constitute an illegal strike, if they have a bona fide dispute
with their employer, and act honestly and peaceably, and not simply
to do injury and wrong, and do not interfere with the free action
of others, or molest the property of their employer; in other words,
LABOR ORGANIZATIONS
157
the mere violation of a contract not to strike does not render a strike
illegal.
Whether the court should issue an injunction as asked for by the
company, to compel the agents of the union to use their disciplinary
powers to make the men who struck return to work, the court said:
A court of equity should not make a mandatory order, which is
to be enforced by the extraordinary remedy of contempt, unless the
ultimate purpose to be accomplished by such order is one which such
court is empowered to accomplish. I f we can not order the men
themselves, who are parties to this suit, to perform personal services,
we ought not to make an order, the only purpose of which is to in
directly accomplish that result.
In holding that the maintenance of a sympathetic strike, although
in violation of the contract, was not enjoinable by the equity court
and that the petition of the company should be dismissed, the court
said:
The contracts established the terms of an employment, and the
working conditions when an employer hired a given worker, and
expressly provided that there should be no lockouts or strikes; after
the contracts have been completely breached, and the situation is
such that a court of equity does not have power to compel the parties
to resume operations and carry out the contracts, and there is no
evidence that the men desire to carry out their contracts by working
with nonunion glaziers or submitting that question to arbitration,
is there such a contract relation as will justify a court in enjoining
third parties from interfering with it?
The glaziers had no contract, and we do not find in the contracts
as to the other trades any express or implied provision as to whether
nonunion glaziers could or could not be employed on the building,
and considering the indefiniteness of the contracts and the character
of the controversy, and the fact that the men did not quit in obedience
to any order of their superiors, and that they have shown no desire
to discontinue their breach of said contracts, we do not find, under
the facts and circumstances of the case, that plaintiff is entitled to
an order protecting its contractual relations from the disruptive
influence of third parties.
The Supreme Judicial Court of Massachusetts affirmed the lower court in a
case in which it was held that an injunction was not too broad in restraining
a labor organization from conspiring to injure the company by refusing to
install material not made by union members and by threatening strikes. (A. T.
Stearns Lumber Co. v. Howlett et al., Irving & Casson-A. H. Davenport Co.,
et al. v. Same (1928), 163 N. E. 193.)
The Court of Appeals of New York reversed an appellate division of the
supreme court affirming an order of a special term court granting an injunc
tion, and held that there must be shown the probability of a threatened, unjus
tified interference with the company’s rights before an injunction may be
granted against inducing the employees to quit, notwithstanding the fact that a
public interest is involved. (Interborough Rapid Transit Co. v. Lavin et al.
Court of Appeals of New York (1928), 159 N. E. 863.)
103151°—30------- 12
158
DECISIONS OF T H E COURTS
Labor Organizations—Picketing— Boycott—Injunction— S. A .
Clark Lunch Co. v. Cleveland Waiters and Beverage Dispensers Loccd 106 et cd., Court of Appeals of Ohio (Cuyahoga County) (May
IS, 1926), 154 Northeastern Reporter, page 362.—The S. A. Clark
Lunch Co. was a corporation owning and operating a restaurant in
Cleveland, Ohio. The company brought an action against the Cleve
land Waiters and Beverage Dispensers Local 106 and others to re
strain them from further engaging in unlawful acts, such as dis
tributing cards, maintaining pickets in front of their place of busi
ness, annoying, coercing, or in any way deterring patrons from
entering its place of business. The lower court denied the company
any relief, and they brought the case to the court of appeals of the
State, and here the higher court affirmed the lower court. The de
terminative question in the case was whether the distribution of the
cards in the manner stated was an invasion of any legal rights of
the lunch company. The court held that:
It had no vested claim to the patronage of those whose interests
were adversely affected by its actions, nor did it have any vested
right to the patronage of any class of persons, or any person, who,
knowing of the situation and of its rejection of the proposals of the
defendants, did not wish to give it his business. On the other hand,
the defendants, by reason of their obligation to competitors who em
ployed union labor, and for the protection of their members, had a
legal right in a lawful way to influence and control the patronage of
their members and of their friends in favor of themselves and those
with whom they had contracts. This business or patronage is a
concrete asset ox the defendants, which they have a legal right to
control and to use for the benefit of their organizations, the members
thereof, and those in business who are under contract to employ
union labor.
The plaintiff, having determined to operate its business as a non
union concern, and having refused to employ union labor, may not
reasonably expect, nor has it the right to expect, the latter’s business
and support; and, furthermore, it has no legal right to prevent a
lawful publicity of its actions in this behalf by union labor. It
necessarily follows that, if plaintiff has a legal grievance in this
case, it rests only in the method and manner of the distribution of
the cards aforesaid.
I f the methods adopted do not intimidate or coerce, and are with
out violence, they are lawful. When they involve abuse, violence,
intimidation, or coercion, they are unlawful. There is not a scintilla
of evidence in this record of any facts to show that any person was
intimidated, abused, threatened, or coerced by receiving from the
hands of the representatives of the defendants the cards m question.
It is shown that the acts complained of are causing the plaintiff
a substantial loss in its business and profits. This fact furnishes no
basis for judicial interference, for the plaintiff had no vested prop
erty right in the business so lost to it. This is so for the reason that,
LABOR ORGANIZATIONS
159
while it had a legal right to determine its course of action, it must
be held to have considered in that connection the influence of union
labor on the public, and the benefit of its support and patronage.
These are factors in the situation it was bound to consider. It chose
to reject union labor and to employ nonunion labor at lower wages
and longer hours of service. It was bound to know that it could not
legally prevent publicity in respect to its action. Whatever financial
loss it now suffers is therefore due to causes of its own making, and
fldthin its control, which it must be held to have anticipated.
The court of appeals therefore concurred in the conclusions of the
lower court and dismissed the case.
L a b o r Organizations—Picketing— Contempt—I njunction—
A nti-injunction Statute.— Ossey et al. v. Retail Clerks’ TJnion et
al., Supreme Court of Illinois (June 22, 1927), 158 Northeastern
Reporter, page 162.—Isidore and Meyer Ossey, doing business as
Ossey Bros., department store in Chicago, on April 15, 1924, asked
that an injunction be issued against the Retail Clerk’s Union, Local
195, restraining the members of that organization from interfering
with the property, business, and customers of the department store.
On the following day the court granted an injunction restraining
the union from picketing in front of the stores operated by the part
nership. No further action was taken in the case until October 19,
1925, when the picketing was resumed. One of the owners of the
store thereupon brought an action against the several members of the
union for contempt. The superior court of the State found the
members guilty, and imposed sentences of fines and imprisonment.
The union appealed the case to the supreme court, which affirmed
the orders of the superior court. The members of the union rely
principally in their appeal upon an anti-injunction law passed by the
Illinois Legislature in 1925. The court in rendering its opinion
said:
The statute upon which the appellants rely for immunity is sub
stantially the same as section 20 of the act of Congress of October 15.
1914, known as the Clayton Act.
Under these provisions the Supreme Court of the United States
held in American Steel Foundries v. Tri-City Central Trades Coun
cil (257 U. S. 184, 42 S. a . 72, 66 L. Ed. 189, 27 A. L. R. 360), that
picketing in groups of from 4 to 12 near an employer’s manufactur
ing plant during a strike, accompanied by attempts at persuasion or
communication with persons entering or leaving the plant, resulting
in intimidation of employees and prospective employees, and of
obstruction of and interference with the business of the employer,
was unlawful and might be enjoined.
The appellants, by their answers to the petition, admitted that
they had picketed the complainants’ store. The evidence clearly
160
DECISIONS OF TH E COURTS
shows that the appellants obstructed the entrances to the store, and
not only dissuaded customers from entering it, but threatened them
with harm if they did enter. The picketing continued more than
six weeks. On the morning after it began, a brick was thrown
through one of the show windows. Later a piece of iron was found
inside of and near a broken window, and a fight occurred, in which
Winnick, among others, took part. Pedestrians, employees, and cus
tomers were intimidated. As the result of the picketing, and while
it was in progress, the complainants’ business was reduced at least
one-half.
The complainants’ business is a property right, and free access to
their places of business by the complainants, their employees, and
customers is an incident to that right.
The appellants’ intention to inflict loss upon the complainants, and
the consequent serious loss, are clear. To accomplish their purposes,
the appellants resorted to obstruction, intimidation, and violence.
Even if the validity of the act invoked by the appellants be assumed,
a question not now decided, it afforded them no immunity for their
acts.
The orders of the superior court, adjudging the appellants in con
tempt of court for their violations of the injunction, are affirmed.
Orders affirmed.
L ab o r O r g a n i z a t i o n s — P i c k e t i n g — I n j u n c t i o n —L. Daitch & Go.
(Inc.) v. Retail Grocery and Dairy Clerk's Union of Greater New
York et al., Supreme Court, Special Term, New York County, New
York (March 31, 1927), 221 New York Supplement, page 446-—This
was an action brought by L. Daitch & Co., seeking a permanent in
junction against the union and enjoining them from picketing in
front of several of their stores. The union admitted that there was
no strike called, that members picketed the premises, that they
shouted statements attracting crowds, spoke to customers, urging
them to refrain from entering the store, and committed acts of vio
lence. The union agreed that the acts of violence were unlawful
and that an injunction should issue. They asked the court, however,
for an adjudication of the question of whether their members had
the right to picket premises to compel the proprietor to operate a
union shop. The court dismissed this proposition, saying that “ The
court should not be required to render a decision upon a hypothesis.
Applications for injunctions must rely upon the specific facts in
each case. Each case—particularly of this type—has individual com
plexion and character.” Relative to the acts committed by members
of the union the court held that in the absence of strike, picketing
of the stores conducted by the company, urging their customers not
to enter, was an unlawful act and an injunction should issue.
LABOR ORGANIZATIONS
161
L a bo r O r g a n i z a t i o n s — P i c k e t i n g — I n j u n c t i o n — Manker v . Bak
ers', Confectioners’ and Waiters’ International Union of America,
Local 144 et al., Supreme Court, Westchester County, iVew YorA;
(March 31, 1927), 221 New York Supplement, page 106.—Louis
Manker conducted a bakery shop in Yonkers, N. Y. In February,
1927, he had in his employ Sam Halem, who was required to work
more than the number of hours per day permitted by the rules of
the local bakery union. Halem was a member of the union and went
on strike. Manker brought an action against the union to restrain
them from patrolling and parading in front of his premises.
The court declined to issue an injunction, saying: “ Whatever may
be the feeling of the general public with respect to the right of
organized labor to strike, and to carry on picketing in conjunction
with and in furtherance of the strike, the laws of the State of New
York and the rules of the Federal court have recognized such
right.”
The court cited numerous cases, the chief of which were, National
Protective Association of Steam Fitters and Helpers v. Cumming
et al. (170 N. Y. 315); Krebs v. Rosenstein (66 N. Y. S. 42); Wal
ter A. Wood Mowing & Reaping Mach. Co., v. Toohey (186 N. Y. S.
95); Foster v. Retail Clerks, etc. (78 N. Y. S. 860, 867); and Albee
and Godfrey Co. v. Arci (Sup.) (201 N. Y. S. 172), all holding the
right of the workingmen to organize, and to indulge in peaceful
picketing.
The motion of Manker for a temporary injunction was therefore
denied.
Sarros et al. v.
Nouris et al., Court of Chancery of Delaware (July 27, 1927), 138
Atlantic Reporter, page 607.—One Sarros was proprietor of a res
taurant located at Wilmington, Del. He and other restaurant pro
prietors met in 1926 with representatives of the union and a United
States Department of Labor representative, for the purpose of dis
cussing hours of labor, scale of wages, and working conditions of the
employees. An agreement was entered into embodying general
working terms and conditions.
On November 2, 1926, a strike was declared by the local union.
The contention of the restaurant proprietors was that the sole object
of the strike was to compel them to unionize their business. The
union denied the charge and contended that the proprietors violated
the terms of the agreement entered into, and that the strike was
brought to enforce it. Upon a review of the evidence the court held
L
a bo r
O r g a n iz a t io n s — P ic k e t in g — I n j u n c t io n —
162
DECISIONS OF T H E COURTS
that it did not appear that the agreement had been broken; “ not a
single instance of a dispute over wages, hours of employment, or
working conditions is shown. That nothing in the way of a serious
controversy between the complainants and their employees existed
prior to the promulgation of the strike, is shown not alone by the
evidence.”
What is the law, the court said, “touching the lawfulness of a strike
whose sole purpose is to accomplish what is familiarly known as the
unionization of an employer’s business ? ” In the United States Su
preme Court case of Hitchman Coal & Coke Co. v. Mitchell (245
U. S. 229) it was declared that “ the purpose entertained by defend
ants to bring about a strike at plaintiff’s mine in order to compel
plaintiff, through fear of financial loss, to consent to the unionization
of the mine as the lesser evil, was an unlawful purpose.”
In conclusion the court held that all picketing in support of a
strike for closed shop was unlawful:
In the instant case no challenge is made against the right of
employees to quit their work for any reasons they may see fit. The
complaint is that the defendants have chosen by a system of picket
ing to carry on a campaign against the continuance of others at
work for the complainants and at the same time to induce the public
to boycott the complainants in the conduct of their restaurant
business. In so far as the boycott is concerned the campaign has
met with a fair degree of success, though with respect to the other
object, viz, the inducing of others to avoid employment by the com
plainants, the strike appears to have been a complete failure. The
real object of the strike being as I have said to compel the com
plainants to unionize their business by subjecting it to control and
domination by the labor organization, an object which the law does
not recognize as legitimate, the complainants are entitled to protec
tion against the continued picketing of their place of business by
the defendants or their agents. If it is lawful for the defendants to
destroy a part of the complainants’ business by the picketing and
its incidental boycott, it would be lawful for them if possible to
destroy it in toto. As I read the authorities, their weight is to the
effect that such calamitous consequences can not be visited upon
the complainants as punishment for their refusal to surrender the
right which is theirs to employ nonunion labor if they choose.
The appellate division, first department, Supreme Court of New York, held in a
case that members of a labor union were entitled to peacefully picket the em
ployer’s business and advertise the existence of a lockout and could not be en
joined. (Federal Hats (Inc.) v. Golden et al. (1928), 226 New York Supple
ment, page 747.)
The Court of Errors and Appeals of New Jersey held that there was no
error and affirmed an order of the lower court where an injunction enjoining
picketing by union was granted even where no strike existed nor injury was
shown. (Snead & Co. v. Local No. 7, International Molders’ Union of North
America et al. (1928), 143 Atl. 331.)
163
LABOR ORGANIZATIONS
Labor Organizations—Refusal to W o r k on Nonunion Prod
ucts—Conspiracy—Injunction— Bedford Gut Stone Go. et al. v.
Journeyman Stone Cutters' Association of North America et al.,
Supreme Gourt of the United States (April 11 1927) , 47 Supreme
Gourt Reporter, page 522.— The Bedford Cut Stone Co., of Indiana,
,
brought an action against the Journeyman Stone Cutters’ Associa
tion of North America for combining to commit acts in restraint of
interstate commerce in violation of a Federal act, and for great and
irreparable damage to the company. The action was dismissed in
the Federal District Court for the District of Indiana for want of
jurisdiction, and later when the case was taken to the court of
appeals it affirmed the decision of the district court. The Bedford
Cut Stone Co. were quarriers and fabricators of Indiana limestone.
The Journeyman Stone Cutters’ Association of North America was
an association of mechanics engaged in the stonecutting trade. For
many years the stone company had contracts with the association
under which its members were employed at their several quarries
and works. In 1921 the company refused to renew the contracts
because certain rules or conditions proposed by the journeymen were
not acceptable. A strike was called, followed by a lockout, and the
company thereby organized an independent union. Efforts to adjust
the controversy were in vain. The association then urged its mem
bers working on buildings in other States to observe the rule of the
association that “ no member of this association shall cut, carve, or
fit any material that has been cut by men working in opposition to
this association.” As a result of this order the completion of many
buildings was more or less hindered in several States and the clear
object of the order was to induce the stone company to employ only
union stonecutters.
After the judgment of the circuit court of appeals affirming the
decision of the district court, the company appealed to the United
States Supreme Court. This court on April 11, 1927, reversed the
court of appeals and held that the activities of the Stone Cutters’
Association were for the purpose of destroying the market for the
companies’ product, and thus constituted an interference with inter
state commerce in violation of the Federal antitrust law.
Mr. Justice Sutherland delivered the opinion of the court. In
part, he stated that—
Whatever may be said as to the motives of the respondents or their
general right to combine for the purpose of redressing alleged griev
ances of their fellow craftsmen or of protecting themselves or their
organizations, the present combination deliberately adopted a course
of conduct which directly and substantially curtailed, or threatened
thus to curtail, the natural flow in interstate commerce of a very
large proportion of the building limestone production of the entire
164
DECISIONS OF T H E COtTRTS
country, to the gravely probable disadvantage of producers, pur
chasers, and the public, and it must be held to be a combination in
undue and unreasonable restraint of such commerce within the mean
ing of the antitrust act as interpreted by this court. An act which
lawfully might be done by one may, when done by many acting in
concert, take on the form of a conspiracy and become a public wrong,
and may be prohibited if the result be hurtful to the public or to
individuals against whom such concerted action is directed. * * *
The strikes, ordered and carried out with the sole object of preventing
the use and installation of petitioner’s product in other States, neces
sarily threatened to destroy or narrow petitioner’s interstate trade
by taking from them their customers. Where the means adopted
are unlawful the innocent general character of the organizations
adopting them or the lawfulness of the ultimate end sought to be
attained can not serve as a justification.
Labor Organizations—Eights o f Seniority—Railroads— Crider
v. Crum et al., Supreme Court of Nebraska (March 25, 1927), 218
Northwestern Reporter, page 366.—Aaron S. Crisler was a loco
motive engineer in the employ of the Chicago, Burlington & Quincy
Railroad Co. He was a member of the Brotherhood of Locomotive
Engineers, and brought an action against Joseph M. Crum and
other officers of the union to restrain them from interfering with his
seniority rights as an engineer and to compel the union to revoke
and rescind orders made by them which Crisler claimed affected his
rank and pay as an engineer. The union admitted the making of
the rules and orders but contended that they were made with full
authority and in accordance with the constitution of the brotherhood.
The District Court of Nebraska decided against Crisler, and he
appealed the case to the supreme court of the State. Crisler claimed
that his seniority was a property right and had been invaded and
wrongfully destroyed by the officers of the union. The court in
affirming the decision of the lower court said:
A labor union, organized as a voluntary, unincorporated associa
tion, may lawfully adopt rules for the government of its members
and provide tribunals within the association to determine contro
versies between members of local divisions or lodges of the associa
tion, provided such rules are reasonable and uniform and do not
contravene the law of the land or offend public policy. The laws
of the brotherhood provide that a member, before appealing to the
civil courts in any case of controversy arising within the organiza
tion, should previously exhaust all his remedies within the brother
hood. Members of a labor union, organized as a voluntary, unin
corporated association, are bound by and required to observe a law
of the association which requires that a member shall exhaust his
remedies within the association before appealing to the civil courts
in any case of controversy arising within the association and for
LABOR ORGANIZATIONS
165
which the laws of the association provide means for adjudication and
settlement. It is a general rule of equity that, when a member of a
voluntary, unincorporated association is aggrieved or feels injured
at any action taken by the officers or committees of the association,
within the scope of their authority and pertaining to its affairs,
and where the laws and rules of the association provide a means 01
redress, he should first exhaust the remedies provided by the laws
and rules of the association before applying to the civil courts.
In the instant case, plaintiff complains of the action of the of
ficers of the brotherhood who have acted on a matter within their
jurisdiction. He was entitled to appeal for relief to a higher
tribunal within the association. He elected not to pursue that course.
He is therefore not entitled at this time to appeal to a court of equity
for redress. It follows that the judgment of the district court should
be, and is, affirmed.
_________
L abor Organizations — Rules — Seniority Rights — E m p l o y
Contract— West v. Baltimore & Ohio R. Co. et al., Supreme
ment
Court of Appeals of West Virginia (March 22, 1927), 137 South
eastern Reporter, page 654.—H. T. West was employed as a carman
in the shops of the Baltimore & Ohio Railroad Co. at Gassaway,
W. Va. On January 6, 1922, he was laid off by the company until
such time as he should be recalled and given employment by it,
with the benefits of his place on the seniority list kept by the com
pany and the local lodge. On October 23 he applied for employ
ment and was informed by the company’s car foreman that he had
lost his seniority by accepting employment at another point. West
brought an action against the railroad and the Brotherhood of
Railway Carmen of America, Local Lodge No. 557. The circuit
court, Braxton County, decided against West, and he thereupon
brought the case to the supreme court of appeals of the State,
which court affirmed the lower court. West brought his action
against the union, and the appeal court held as in a prior case—
Simpson v. Grand International Brotherhood of Locomotive Engi
neers (83 W. Va. 355) : “ In the absence of a statute authorizing
such procedure, an unincorporated society or association can not
be sued as an entity by its name, nor can a judgment be rendered
against it merely by name. To confer jurisdiction, the persons com
posing it, or some of them, must be named as parties and process
served upon them individually.” The court also held that no con
tractual rights existing between West and the railroad had been
violated. A remedy was provided by the union constitution, the
court said, and that West had failed to prosecute his claims there
as far as he might have.
Both sides of the controversy were submitted to the board* The
constitution of the brotherhood, of which plaintiff alleged he was
166
DECISIONS OF T H E COURTS
a member in good standing, had provided a forum for the settle
ment of all disputes between members of the association and their
employers. By the provisions of the brotherhood’s constitution and
by-laws, his first duty was to resort to the proper tribunals of the
order for a decision on the question in issue. The arrangement as to
seniority was between the brotherhood and the railroad company,
not between plaintiff and the company. I f plaintiff had any rights
in the premises which he conceived had been violated, they did not
exist by virtue of any contract between him and the defendant
company. And the constitution of the brotherhood provided that
as to the railroad company, the final adjustment was to be taken
up between the brotherhood, or its joint protective board, and the
company. By becoming a member of the order plaintiff subscribed
to its constitution and by-laws. And we have held that in such
case recourse can not be had to the courts when the constitution and
by-laws of the association provide a remedy to which the parties
have agreed for the grievance complained of, and which has not
been pursued and exhausted.
And the rule seems to be that individual members of a labor
union are not bound by contracts between the union and employers,
unless such agreements are ratified by the members of the union as
individuals, and that in the absence of evidence of such ratification
by a member no rights accrue to him which he can enforce against
the employer.
There is here no evidence that plaintiff ratified or voted for the
contract under which he claims seniority rights. He alleges that
the contract was made between the brotherhood and the defendant
company, and there is nothing in the record from which it can
be inferred that he individually participated in the making of the
contract, or that he thereafter ratified it. It does not appear
whether the contract relied on was entered into before or after he
became an employee of the railroad company.
The judgment of the lower court was therefore affirmed.
L
abo r
O r g a n iz a t io n s — S t r i k e — B r e a c h
of
C ontract— I n j u n c
—Interborough Rapid Transit Go. v. Green et al., Supreme
Court, special term,, New York County (February 15, 1928), 227 New
York Supplement, page 258.—The Interborough Rapid Transit Co.
entered into a contract on June 30, 1927, with the company’s union,
the Brotherhood of Interborough Rapid Transit Co. Employees. The
terms of the contract provided that the company agreed to employ
members of the brotherhood; and the brotherhood in turn agreed
that its members would work for the company for a period of two
years from April 30, 1927, upon certain conditions set forth in the
contract. Each of the Interborough Co. employees was required to
sign an instrument that the employee had read or heard read the con
tract between the company and the brotherhood and had ratified and
approved the same and that he would remain in the employ of the
t io n
LABOR 0 R G A K I2 A T I0 K S
167
company until April 30, 1929, unless by mutual consent the employ
ment was terminated sooner. It was further agreed that the employee
would remain a member of the brotherhood, faithfully observing all
rules and obligations during the period of employment, and that he
would not become a member of or identified in any manner with the
Amalgamated Association of Street and Electric Railway Employees
of America.
The Interborough Rapid Transit Co. brought an action against
William Green and others in which an injunction and damages were
asked. The Interborough complained that members of the Amal
gamated Association, with knowledge of the 2-year contract, organ
ized the company’s employees and planned to call a strike on July
26, 1927, but this was abandoned after a conference with the mayor
of New York City; that thereafter by various methods they con
tinued their efforts to organize the employees of the Interborough
Co. as members of the Amalgamated; that the Amalgamated sought
to destroy company unions and the contractual relations existing be
tween them and the employers.
The contention of the company was that the contract between it
and the brotherhood involved mutual rights and obligations and
was therefore made upon ample consideration. The union on the
other hand, contended that the contract was without consideration,
and because of the conditions to which it was made subject should
fail.
The supreme court, special term, of New York County, on Feb
ruary 15, 1928, upheld this contention of the union and refused the
injunction asked by the company.
The court, after examining clauses 5 and 6 of the contract, said
in part:
Unlimited and practically unhampered power to discharge em
ployees is given to the company. Even as regards the causes of dis
charge listed as arbitrable, as, whenever the services of the employee
“ shall be rendered unnecessary by reason of any change in economic
conditions or the seasonal requirements of the company,” or “ by
reason of the adoption of any new device or the extension of the
use of any existing device.” arbitration here would merely establish
that the causes exist and tnat therefore the company may discharge.
The contract purports to bind the employee for two years, while the
employer is not in substance subject to a reciprocal obligation.
Where an employee abandons all right to leave the service of his
employer, whereas the employer reserves practically entire freedom
to discharge him, there is no compensating consideration.
Whatever the status of the contract at law, the provisions above
referred to are, to say the least, inequitable. The term of the con
tract is, in effect, controlled by the will of the employer and plain
tiff is therefore in no better position than it was in the Lavin case.
i6 8
DECISIONS OF T H E COURTS
In the view that I have taken of the contract it only remains to
determine whether the commission of, or threat to commit, such acts
on the part of defendants has been established as would justify a
court of equity to intervene.
Upon the record before me I do not find such conditions to exist.
Inducing the breach of promise to work is not involved. It has not
been established that violence, threats, fraud, or overreaching con
duct have been used to induce plaintiff’s employees to become mem
bers of the Amalgamated Association, nor that other acts have been
committed or threatened which would warrant the issuance of a
restraining order.
L abor Organizations— Strike—Conspiracy—I njunction— Gold
man v. Cohen et al., Supreme Court, Appellate Division, First
Department (March 2,1928), 827 New York Supplement, page 311.—
On August 2, 1926, Charles I. Goldman, as treasurer of the Inter
national Pocketbook Workers’ Union, entered into an agreement in
writing with Joseph Cohen, a partner in a firm engaged in the busi
ness of manufacturing pocketbooks. The main terms of the agree
ment provided for hours of labor, the wages of employees, the ad
justment of disputes, and further that the union agreed that their
members would work for the firm, and the firm in turn agreed to
employ only members of the union. The agreement was to continue
until August 1, 1929. While the contract was in force the pocketbook firm expressed their intention to conduct a nonunion shop and
to remove their plant from Manhattan to Lynbrook, Long Island,
N. Y. The union offered to furnish union labor in Lynbrook, but
this offer was rejected. Goldman, as representative of the union,
brought an action in the Supreme Court of New York County
against the firm, alleging a conspiracy to violate the terms of the con
tract by threatening to lock out the union members employed by
the firm and that in pursuance of this purpose the plant was to be
shut down in Manhattan and moved to Lynbrook. The union
requested that the firm be restrained during the pendency of the suit
from transferring their plant and business to Lynbrook and from
locking out any workers employed by the firm on account of mem
bership in the union.
The court granted the request to the extent only of forbidding the
firm from locking out or discharging any employees on account of
union affiliation.
The firm appealed from the orders of the supreme court to the
appellate division of the supreme court. The appellate court dis
missed the appeal and, in rendering an opinion, said in part:
LABOB
o r g a n iz a t io n s
led
The making of the contract being conceded, and upon this record,
the same subsisting in full force and effect, the plaintiffs are entitled,
pending the trial of the action, to injunctive relief for the protection
of such of their rights as are threatened and the violation of which
will produce irreparable damage. Usually in the past it has been
the employer who has sought the help of the courts for the protection
of his rights, but obviously the same principles of law apply equally
to both employer and labor union. Where a strike is threatened
by a labor union in violation of its contract with an employer, the
right of a court of equity to issue an injunction to prevent such
contractual violation is well settled.
Likewise, where an employer is threatening to order a lockout of
his employees in violation of his contract with the labor union in
behalf of the employees, the right of a court of equity to prevent such
contractual violation is necessarily measured by the same principle.
In both cases an injunction should issue, where there is no adequate
remedy at law and the damages are irreparable.
In the case of the employer seeking the injunction to prevent a
strike of his employees in violation of a contract, such inadequacy
of his remedy at law is well established. Likewise this court in a
recent case has squarely held that, where an employer threatens a
lockout in violation of a contract between the union and the em
ployer, such union and the employees have not an adequate remedy
at law.
The plaintiff, therefore, is entitled to restrain the defendants from
breaching their contract in the respects which this record shows is
threatened, namely, from ordering a lockout of the members of the
union because of such membership therein, and from refusing to
employ, in accordance with defendants’ needs, such members as are
sent by the union pursuant to the terms of the contract. The plain
tiff is clearly not entitled to enjoin the defendants from removing
their factory to Lynbrook. The contract in no way purports to
restrict the defendants as to the location of their plant.
The order, however, as resettled, is much too broad in enjoining
the defendants from breaching any of the terms and provisions of
the very long and complicated agreement between the parties. It
is not every breach of a contract which a court of equity will enjoin.
Only in so far as it is shown that the particular breach has been
threatened, and that the remedy at law is inadequate and the damage
irreparable, will a court of equity intervene. This is the rule ap
plied in the case at bar. It follows that the resettled order must be
modified.
The resettled order should therefore be modified, so that the same
shall enjoin the defendants during the pendency of the action from
locking out, or threatening to lockout, discharging, or discontinuing
employment of any workers employed by the defendants on account
of membership in or affiliation with the said International Pocketbook Workers* Union, and from refusing to employ as needed work
ers sent by the union at the defendant^ factory in Lynbrook, and
as so modified, affirmed, without costs.
170
DECISIONS OF T H E COURTS
L abor Organizations— Strike— Conspiracy—I
n ju n c t io n
—
United Cloak and Suit Designers' Mutual Aid Association of
America v. Sigman et al., Supreme Court, New York, Appellate
Division, First Department (November 26, 1926), 218 New York
Supplement, page 483.—The United Cloak and Suit Designers’
Mutual Aid Association of America was a membership corporation
composed of cloak and suit designers organized for the mutual aid
of its members. Morris Sigman was president of the International
Ladies’ Garment Workers’ Union, an unincorporated association
composed of workers engaged in the various branches of the women’s
wear industry.
The contention of the mutual association was that the Interna
tional Union had conspired to destroy their association by force,
threats, intimidation, and other unlawful means, and that by reason
of such action they seek to induce members of the association to
violate contracts with various employers. The complaint further
alleged that a general strike had been called by the international
against the employers of the members of the mutual association; that
in furtherance of the strike the international organizations had
ordered a large number of their members as well as gangsters to
assault, beat, and coerce the members of the mutual association in
connection with such strike, and that the international union sought
to force the entire membership of the mutual association to become
members of the International Cloak and Suit Designers’ Union,
Local No. 45. The mutual association asked that an injunction be
issued restraining the international from further interference with
its organization.
The relief prayed for was denied by the special term of the Su
preme Court of New York on the ground that it was not shown
that the acts of the international organization were injurious to the
mutual association as such; and that being a corporate body it
could not maintain its action in a representative capacity or obtain
injunctive relief which might have been given to the individual
members of the organization had they sued. From that order the
mutual association appealed to the appellate division of the New
York Supreme Court.
The appeals court reversed the order of the lower court and
granted the request of the mutual association for an injunction,
quoting as authority the decision of the United States Supreme
Court in the United Mine Workers of America v. Coronado Coal
Co. (259 U. S. 344, 387, 42 Sup. Ct. 570, 575), wherein it was held
that a corporate body was capable of suing and being sued.
Judge Martin in concluding his opinion said in part:
The plaintiff and similar bodies are organized to protect and en
force the rights of their members. To accomplish this object for
LABOR ORGANIZATIONS
171
which it is incorporated, plaintiff has capacity to bring a represen
tative action in its own behalf or that of its membership. Where
there are, as in the present case, a number of persons whose griev
ances arise out of the same set of facts, and where the issues in
volved are identical, equity, in order to avoid a multiplicity of suits,
will permit a representative action.
The decisions, not only of this court, but of the United States
Supreme Court, sustain the right of the plaintiff organization to sue
to protect its members against intimidation and other means of
destroying the association, such as have been resorted to in this
instance.
Although complaint is made against the issuance of injunctions in
these cases, it would be most unfortunate for the public, as well as
those who are the object of the violence and other abuses described,
if the courts should refuse immediate relief, especially in view or
the fact that it appears from this record that those charged with
the administration of the criminal law at times have not been as
active or vigilant as the conditions would have warranted.
Labor Organizations — Strike — Conspiracy — Restraint o f
Trade— International Organization, United Mine Workers of Amer
ica et al. v. Red Jacket Consolidated Coal & Coke Co. et al., Circuit
Court of Appeals, Fourth Circuit (April 18, 19%7), 18 Federal Re
porter (2d), page 839.—The International Organization, United
Mine Workers of America, is a labor organization with a large mem
bership of persons employed in and about coal mines. For a num
ber of years the organization has attempted to unionize the coal
miners in West Virginia. The Red Jacket Consolidated Coal &
Coke Co. and other companies in the case operate coal mines on a
“ closed nonunion shop ” basis, and their employees are notified that
union men will not be employed, and employment is accepted with
that understanding. Most of the miners enter into contracts in
which they agree that they will not join the union while remaining
in the service of the employer.
On July 1, 1920, a strike was declared by the union in the West
Virginia field in an attempt to unionize it. On September 30, 1920,
the Red Jacket Coal Co. instituted a suit in the District Court of the
United States for the Southern District of West Virginia to enjoin
the union and its officers and members from interfering with its
employees. A similar suit was instituted by the Borderland Coal
Co. on September 26, 1921, asking injunctive relief on behalf of
itself and 62 other companies operating in the same territory. A
short time before the institution of the Borderland suit, armed un
ion miners estimated at between 5,000 and 7,000 assembled at Marmet, W. Va., with the announced intention of marching into Mingo
County tq unionize that field. They engaged in combat with the
172
DECISIONS OF TH E COURTS
State officers who endeavored to stop them, and martial law was de
clared and Federal troops were sent into the territory to preserve
order. On April 1, 1922, while the strike order of July 1, 1920, was
still effective, the union called a nation-wide strike because of the
disagreement in the central competitive field (Illinois, Indiana, Ohio,
and western Pennsylvania).
This strike was declared to apply to all miners, union as well as
nonunion, and measures were taken to make it effective throughout
the fields of West Virginia then operating with nonunion miners.
The general strike was settled in August, 1922, by the Cleveland
wage agreement, but the strike was continued against the nonunion
operators of West Virginia.
Meanwhile other suits were instituted. The district court granted
a temporary injunction in each case, and later upon a consolidation
of all cases for a hearing, entered a final decree in each case. From
these verdicts the unions appealed to the United States Circuit Court
of Appeals for the Fourth Circuit.
One of the principal questions raised was whether the evidence
established a conspiracy in restraint of interstate trade and com
merce in violation of the Sherman Antitrust Act. This question
went to the very existence of the power to grant the injunctions, as
the jurisdictions of the court as to most of the parties to the suit
rested upon the fact that the cases arose under the laws of the United
States—a conspiracy in violation of the Sherman Antitrust Act.
Upon an appeal to the United States Circuit Court of Appeals,
this court affirmed the judgment of the district court, holding that
the district judge had found that a conspiracy existed, and the find
ing of the lower court judge should not be disturbed unless the
appellate court was satisfied that the trial court’s findings were
clearly wrong.
Circuit Judge Parker, who delivered the opinion of the court,
held that the evidence justified the conclusion that there was an
actual combination and conspiracy in restraint of trade quite foreign
to the normal and legitimate object of the union.
Quoting from the decision of the United States Supreme Court in
the Coronado case (259 U. S. 344), Judge Parker said that the mere
reduction in the supply of an article to be shipped in interstate com
merce, the illegal or tortious prevention of its manufacture or pro
duction is ordinarily an indirect and remote obstruction of that com
merce. But when the intent of those unlawfully preventing the
manufacture or production is shown to be to restrain or control the
supply entering into and moving in interstate markets, their action
is a direct violation of the antitrust act. The rule in the Coronado
173
LABOR ORGANIZATIONS
case, the court pointed out, applied, as the total production of the
mines of the companies was in excess of 40,000,000 tons per year,
and 90 per cent of which was shipped in interstate commerce. Inter
ference with the production in these mines would “ necessarily inter
fere with interstate commerce in coal to a substantial degree,” and
it was “ perfectly clear that the purpose of the union in interfering
with production was to stop the shipment in interstate commerce.”
The court, in conclusion, said that a conspiracy is in violation of
the statute where there exists an intent to restrain interstate trade
and commerce and a scheme appropriate for that purpose even
though it does not act directly upon the instrumentalities of com
merce.
The decree of the district court was therefore affirmed.
L a bo r
O r g a n iz a t io n s — S t r i k e — C o n t e m p t — C o n s p ir a c y — I n
—State ex rel. Continental Goal Go. v. Bittner, Supreme
Gourt of Appeals, West Virginia (December , 1926), 136 South
eastern Reporter, page 202.—Van A. Bittner was chief representative
of the United Mine Workers of America in northern West Virginia.
In 1925 he called a strike, directing all miners working in the non
union mines to cease their labors. Th§ Continental Coal Co. was
operating a nonunion coal mine near Fairmont. They brought action
against Bittner and other officers of the United Mine Workers, and
an injunction was issued restraining members of the union from using
force and coercion against the property and employees of the
company.
While the order of the court was still in force, Bittner made a
public address to a large group of miners. His language in that
address was the basis of the proceeding against him. After the
delivery of the speech he was adjudged in contempt of the court,
was fined $500 and ordered to be confined in jail for six months.
The case was appealed to the supreme court of appeals of the State.
The contention of Bittner was that the alleged contempt was a con
structive criminal contempt and that proof beyond a reasonable
doubt was necessary for conviction; that the evidence failed to show
any knowledge by Bittner of the injunction at the time he delivered
the address; and that he did not violate the injunction by the lan
guage he used, and that he could be proceeded against only, if at all,
by an indictment and a jury trial.
The court held that in a criminal contempt guilt must be estab
lished beyond a reasonable doubt, saying: “ Whatever may be the
rule in other States we are committed to the rule that the evidence
j u n c t io n
103151°—SO------ 13
14
174
DECISIONS OF T H E COURTS
in trials for contempt for violating an injunction must be sufficient
to establish guilt beyond a reasonable doubt.”
Applying this rule, the court further said: “ Bittner was not in
the immediate vicinity when the injunction was issued, but was in
another part of the State. Suspicious circumstances are not suffi
cient to convict in a criminal case. * * * Had there been evi
dence beyond a reasonable doubt that Bittner knew of the injunction
we would not hesitate in affirming the judgment, but we find it want
ing in this respect; and, giving him the benefit of the doubt, we have
come to the conclusion to reverse the judgment.”
Relative to the claim of Bittner that he was entitled to a trial by
jury in a case of criminal contempt, the court held that he was not,
saying: “ In a proceeding for a contempt of court for disobedience
to its lawful order or decree, there is no constitutional right of trial
by jury involved. It may be tried by the court summarily. * * *
Trial without jury in such cases is ‘ due process of law ’ within the
fourteenth amendment to the Constitution of the United States.”
The judgment of the lower court was therefore reversed.
L abor Organizations— Strike—E xpulsion—D amages— Mullen v.
Seegers, St. Louis Court of Appeals (May 3,1927), 294 Southwestern
Reporter, page 7^5.—Myrtle Mullen was a garment worker employed
in one of the shops of the Elder Manufacturing Co., in St. Louis.
She was a member of Local Union No. 238 of garment workers. On
March 7, 1918, a strike was called against a different shop of the
Elder Manufacturing Co. in St. Louis. She remained at her work
and the union fined her $25, her membership in the union was for
feited, and she was unable to obtain work in any union shop in St*
Louis. She brought an action against Martin Seegers as the general
organizer for the United Garment Workers of America. The circuit
court of St. Louis returned a verdict in favor of Myrtle Mullen in
the sum of $400. Thereupon Seegers appealed the decision to the
higher court. On May 3, 1927, the St. Louis Court of Appeals
affirmed the lower court. The contention of Seegers was that Myrtle
Mullen had failed to seek a remedy within the union organization.
The appeal court held that this was not necessary before commencing
an action for damages, quoting Martin on Labor Unions (sec. 825,
p. 397) : “ One who is wrongfully expelled from a union need not
exhaust his remedies within the union before bringing suit for
damages against those whose wrongful acts caused the expulsion,”
and in the words of Oakes in his recent work on Organized Labor
and Industrial Conflicts (sec. 69, p. 77), “ One unlawfully suspended
LABOR ORGANIZATIONS
175
or expelled from a union may sue for damages thereby occasioned,
and need not first exhaust his remedies within the organization.5’
The court therefore affirmed the judgment of the lower court.
L abor Organizations — Strike — Mass P icketing — Disorderly
Conduct— People v. Friedman et al.. Court of Special Sessions, City
of New York, Appellate Part, First Judicial Department (Septem
ber 27,1927), 224 New York Supplement, page 596.—During a strike
in the fur industry on June 29 and 30, 1927, in New York City,
I. Friedman and others were arrested and convicted of disorderly
conduct tending to a breach of the peace. He appealed the decision
of the lower court, and the higher court sustained the verdict. The
court held that the picketing as practiced in the case was of a dis
orderly nature and tended toward a breach of the peace. The streets
of the city, the court said, are free to all.
Primarily their use is to permit pedestrians to go about their busi
ness. To see that these streets are not obstructed is one of the first
duties of the police force, and to that effect many ordinances have
been enacted by the city authorities. The streets were never meant as
the gathering place for hundreds of people who are not using them as
a thoroughfare, and, when they are made use of in this way it is the
duty of the police to take action.
Labor Organizations—Strike — Picketing — Unlawful Assem
—State v. Butterworth et al., Supreme Court of New Jersey (No
vember 1, 1927), 139 Atlantic Reporter, page 161.—In the fall of
1924 a strike of textile workers in Paterson, N. J., was called. The
police of Paterson issued regulations during the strike forbidding
the holding of mass meetings in a certain hall. On the evening of
October 6, 1924, the strikers paraded from the headquarters of the
associated silk workers to a point near the city hall, where a pro
test meeting was held. A police officer read the riot act or procla
mation, and later, augmented by other officers, they dispersed the
crowd. Resistance was met and arrests followed. John C. Butterworth and others were convicted of holding an unlawful assembly.
He appealed the decision of the lower court. The supreme court
upheld the conviction, citing well-known authorities as to what cin
stitutes an unlawful assembly, and concluded by saying:
bly
The testimony, a consideration of the background of the case, and
the subsequent events also clearly show that the advertised meeting
in the City Hall Plaza, the most conspicuous place in the city, laid
out a program in defiance of the constituted authorities. It w as
intended, in a spectacular fashion, to emphasize a disapproval of the
action of the police. They, of necessity, knew this would provoke
176
DECISIONS OF T H E COURTS
police hostility, and from the inflamed state of a public mind in
the midst of a strike nothing would be more likely than a conse
quent breach of the peace, if not by themselves, at least by others
in sympathy with them. That such an outcome was probable is
inferable from the meeting itself, under the circumstances, and that
it was actually feared is evidenced by the testimony of the two police
officers referred to.
The situation created by the defendants presented an analogy to
a fire with obvious danger of a conflagration if not checked, ana this
tendency the principal defendants well knew.
Hence it seems to us idle to say that the trial judge found these
defendants guilty of an unlawful assembly without ample evidence
to justify a conviction.
This leads to an affirmance of the judgments of the court of special
sessions of the county of Passaic, and such judgments are affirmed.
This case was reversed by the Court of Errors and Appeals of
New Jersey (May 14, 1928). (See 142 Atl. 57.)
Labor Organizations— Strike—Strike Insurance— Construc
tion of Contract— Bower <& Kaufman v. Bothwell et al., Gourt of
Appeals of Maryland (March 3 , 1927), 136 Atlantic Reporter, page
892.—Bower & Kaufman were manufacturers of silk hosiery in
Philadelphia. They brought an action against James W. Bothwell
and others, surviving receivers of the Employers’ Mutual Insurance
& Service Co., under a contract providing reimbursement for moneys
due to strikes in their establishments. This factory, along with
others, in an association of Philadelphia hosiery manufacturers,
was operated through the year 1920 under a wage scale fixed by
agreement with the labor union of which its knitters were mem
bers, and this agreement was to expire at the end of the year. On
account of business conditions the employers decided to make a wage
reduction of 15 per cent in wages, and on December 1, 1920, they
closed the factory to impress on the employees the condition as it
existed and to show them the necessity of accepting a reduction. The
union voted against accepting the reduction, and the employees did
not return to work on the date the reduction in wages was to become
effective, and remained away until the following October, when
nearly all of them returned to work at their old wages.
The claim of the company was disallowed by the circuit court
and an appeal was taken to a higher court. The Maryland Court of
Appeals, on March 3, 1927, affirmed the order of the lower court.
By the terms of the policy a strike was one specially defined as
a cessation of work by the employees, and in the opinion of a ma
jority of the court a refusal of the knitters to return to work after a
month’s stoppage of work by the employers was something other
than the 'cessation of work by employees. The insurance company
LABOR ORGANIZATIONS
177
had at first made payments on reports of loss due to the strike but
subsequent payments were terminated. The court ruled that there
was neither waiver nor estoppel, the action of the insurer being based
solely on the understanding arrived at on fuller information. The
cessation of work had taken place by reason of the action of the em
ployers in so far as the greater number of its employees were con
cerned, and was not chargeable to a strike on their part, the court
said.
The higher court, however, affirmed the holding of the lower court
that allowance should be made for any loss which might be found to
have been sustained from the cessation of work by the finishers who
had remained at the factory during the month of December. This
the court thought proper because these workmen did cease work at
the beginning of the strike.
L abor O rg a n iz a t io n s — S t r ik e — U n l a w f u l A rrest — United
States v. Adams, District Court, District of Colorado, Denver {re
ported June 28, 1928, date of decision not given), 26 Federal Re
porter {2d), page H I .— A n arm ed cla sh o c c u rre d in W e ld C o u n ty ,
C o lo ., d u rin g an in d u stria l co n flict. F o llo w in g an a tte m p t o f a
g ro u p o f p erson s to trespass o n p riv a te p r o p e r ty , several o r d in a r y
officers o f th e la w fire d u p o n th e g r o u p , k illin g a n d w o u n d in g a fe w .
The
g o v e r n o r o f th e S ta te, W illia m
H.
A d a m s , ca lle d o u t th e S tate
m ilitia u n d er an o r d e r w h ich vested in th e co m m a n d e r o f th e m ilitia
a u th o rity to su p p ress th e a lle g e d in su rre ctio n b y w h a tev er m eans he
deem ed best. N o a ttem p t w as m a d e to d ecla re m a rtia l la w , to sus
p en d the w r it o f habeas co rp u s, o r to p u t aside th e c iv il a u th orities in
th e co u n ty in to w h ic h th e S ta te m ilitia w as sent. The c iv il co u rts
con tin u ed to fu n c tio n th e sam e as th e y d id b e fo r e th e em erg e n cy
arose.
Alongside of the regular form of government, a body of 35 militia
men acting under the orders of the governor exercised arbitrary
power, arrested persons and held them without charges that they
had violated the law, committed any act of violence, or resisted or
defied the peace officers of the State. Several persons were arrested.
An application was made in the United States District Court for the
District of Colorado for a writ of habeas corpus to secure their
release. The district court granted the writ of habeas corpus to
secure their release and discharged the prisoners. District Judge
Symes in his opinion stated that the proposition presented for deci
sion was that:
The governor has the power to grant at will a roving commission
to a body of State militia to go into any part of the State that he
178
DECISIONS OP T H E COURTS
may see fit, arrest and detain citizens, and deprive them indefinitely
of their liberty and the rights guaranteed them by the Federal Con
stitution, actuated, as in this case, by the best of motives.
The court said that:
The mere commission of crime does not justify extraordinary
remedies or setting aside the constitutional guaranties.
It further stated that:
There either must be martial law or no martial law, and, until
there is, no rogatory body can lawfully go around in this State,
depriving individuals of the rights that the Constitution, both
State and Federal, guarantees.
Either that martial law is justified and declared, and the territory
taken over, and the civil power made subordinate to the military,
or else they must recognize the civil power, and allow it to deal
with the situation.
Continuing, the court said that:
To admit that the governor of a State can lawfully do these things
is to say that a State officer can, in his uncontrolled discretion and
without a showing of any kind, set aside the Bill of Rights of the
Federal Constitution. I f so, it logically follows that the protection
of the fourteenth amendment is a matter of favor only, depending
on the whim of the governor, and not an absolute right.
The executive is vested with large discretion in such matters,
and courts can not inquire into the degree of necessity or substitute
its judgment for that of the governor. But there must be a limit
somewhere. Otherwise we have a government of men and not of
laws.
Labor Organizations— T r a d e Agreement—Right o f Third
Party to Sue— H. Blum & Go. v. Landau, Court of Appeals of
Ohio, Cuyahoga County {December IS, 1926), 155 Northeastern Re
porter, page 154.—The H. Blum & Co., in 1921, entered into an
agreement with the International Ladies’ Garment Workers’ Union.
The agreement in part provided for arbitration of disputes, condi
tions of employment, that it remain in force until 1922, and shall be
automatically renewed from year to year subject to the right of
either party to terminate it at the end of the year by giving three
months’ written notice. Rose Landau, an employee of Blum & Co.,
brought an action and recovered in the lower court wages due under
the contract of 1921, as subsequently enforced for the year 1924.
The company appealed the judgment of the lower court, contend
ing that there was no fact warranting the finding against them, and
that the renewal agreement was not in writing and hence not bind
ing on them.
LABOR ORGANIZATIONS
179
They argued that some affirmative act on their part was necessary
to bind them. The Court of Appeals of Ohio, on December 13,
1926, held otherwise, saying:
The case of plaintiff in error is argued on the theory that some
affirmative act was necessary in order to bind Blum to the agree
ment of 1924. Counsel cite Article X II I of the agreement, but the
record shows that the provisions of Article X III were ignored, so
that it is conceded that, if Blum terminated the contract, it was
not according to the provisions of Article X III. But it is asserted
that, because there was no affirmative assent to the revisions of 1924,
the company is not bound by its provisions. This position does
violence to the principle of acquiescence, laid down in the textbooks
and in the authorities, with respect to binding the members of a
voluntary unincorporated association, in the absence in the record of
any direct act on the part of Blum. His conduct is consistent with
acquiescence, and, in our judgment, this attitude under the record
binds him to the agreement of 1924.
Whether the contract entered into should be in writing the court
held that:
The revisions of 1924 were incidental to the main body of the
terms provided in the contract for the years 1921,1922, and 1923, and
when Section X III, relating to the 3 months’ notice, was ignored by
Blum, there was left the main body of the contract, to wit, a memo
randum in writing, but when there is added to this memorandum, in
writing, the revisions of 1924 by the agent of the association, and
therefore the agent of Blum, it can not be said that the agreement of
1924 is contrary to the provisions of section 8621 of the General
Code.
The court in conclusion held that an employee, even though her
name did not appear in the contract, had a right to enforce the
agreement:
That such a contract as the one at bar is enforceable there can be
no question. It clearly appears that the contract between the Gar
ment Manufacturers’ Association and the International Ladies’ Gar
ment Workers’ Union was a contract made for the benefit of third
parties, and that one of its considerations was lodged in the purpose
and intent to prevent strikes and lockouts deleterious to the con
tracting parties.
It may be said that the plaintiff below, Rose Landau, was not a
party to the agreement and, therefore, that she could not claim under
this principle. While formerly it was necessary to have the person
for whose benefit the contract was made a party thereto, yet the
great weight of later decisions is to the effect that, where the name
of the third party does not appear to the contract, if the terms are
made for the benefit of such person, the provisions of the contract
are enforceable, if they are otherwise meritorious, in a legal sense.
180
DECISIONS 03? T H E COURTS
It clearly appears in the record of this case that Rose Landau
was an employee of the defendant below, and that the membership
of Blum & Co. in the association which made the contract with the
union was for the purpose of producing a contract which was for her
benefit as well as the benefit of her coemployees. That such a con
tract is valid and enforceable is supported by unquestioned author
ity. Our own court, in Cleveland Railway Co. v. Heller (15 Ohio
App. 346) lays down this rule, and we think the doctrine applies
in this case as to the force and validity of the contract at bar.
Judgment was accordingly affirmed.
L abor
O r g a n iz a t io n s — T r a d e
A greem en t— S tr e e t
R a ilw a y —
Des Moines City Ry. Co. v. Amalgamated Ass'n of Street & Electric
Ry. Employees of America, Division
, of Des Moines, et al., Su
preme Court of Iowa (April 7, 1927), 213 Northwestern Reporter,
page 264.— T h e D es M oin es C ity R a ilw a y C o. in 1915 en tered in to
441
an agreem en t w ith the A m a lg a m a te d A s s o c ia tio n o f
E le c tr ic R a ilw a y E m p lo y e e s, D iv is io n
441,
S treet a n d
w h ich g e n e r a lly p r o
v id e d th at a ll em p loyees o f th e co m p a n y m u st be m em bers o f th e
a s s o c ia tio n ; th a t the co m p a n y w ill co lle ct th e “ ch eck o ff ” a n d p a y
it ov er t o th e a sso cia tio n ; th a t th e co m p a n y w ill re co g n ize th e au
th o rize d rep resen tatives o f the a ssocia tion in a d ju stin g a ll q u e stio n s;
an d th a t the agreem en t sh all con tin u e in fo r c e u n til M a rch 1, 1940.
I n J u n e , 1925, som e o f the m em bers o f th e association d em a n d ed
th at th e y be p a id th e ir w a ges in fu ll w ith o u t d e d u c tin g th e “ ch eck
o ff,” an d fu r th e r c o m p la in t w as m ad e o n the p a rt o f the association
th at th e co m p a n y h a d fa ile d to d isch a rg e on e o f its em p loyees on
p ro p e r request o f the associa tion . O n J u ly 2, 1925, th e co m p a n y
b ro u g h t an a ction again st th e a ssocia tion a lle g in g th at th e co n tra ct
en tered in to w as ille g a l an d v o id an d asked th a t th e a ssocia tion be
e n jo in e d fr o m fu rth e r d e m a n d in g th at th e co m p a n y p a y th e “ ch eck
o ff,” an d th a t th e a greem en t be d e cla re d n u ll an d v o id an d o f n o
fo r c e an d effect, an d th a t th e association b e e n jo in e d fr o m a tte m p t
in g to e n fo r c e it.
T h e D is tr ic t C o u rt o f I o w a d ism issed th e a ctio n ,
a n d the co m p a n y a p p e a le d the d ecisio n , an d on A p r i l
7, 1927,
th e
su prem e co u rt o f the S tate affirm ed the lo w e r cou rt.
The supreme court in affirming the decision said:
The constitution, rules, and by-laws of a voluntary unincorporated
association constitute a contract between the association and its
members, which governs the rights and duties of the members be
tween themselves and in their relation to the association, with refer
ence to all matters affecting its internal government and the iftanagement of its affairs, and are measured by the terms thereof.
(Dingwall v. Amalgamated Ass’n, 4 Cal. App. 565, 88 Pac. 597;
State Council v. Enterprise Council, 75 N. J. Eq. 245, 72 Atl. 19;
PEN SIO N S
181
Kalbitzer v. Goodhue, 52 W. Va. 435, 44 S. E. 264; Brownfield v.
Simon, 94 Misc. Rep. 720, 158 N. Y. S. 187; Strauss v. Thoman, 60
Misc. Rep. 72, 111 N. Y. S. 745; Gaines v. Farmer, 55 Tex. Civ. App.
601, 119 S. W. 874.) It would seem to follow from this doctrine
that the question of whether or not the local association has com
plied with the requirements of the constitution and by-laws of the
international is wholly a question between them, and so long as no
complaint is being made by the international against the local for
noncompliance, it does not lie with third parties to raise such a
question. We see nothing in this point that would call upon the
court to exemse its equity jurisdiction. It is insisted, further, that
the contract is void as against public policy because it, in effect,
unionizes an entire industry. No person is here complaining that
he is deprived of his right to freely dispose of his labor, and nothing
in the record shows that any person is deprived of such right. All
the cases cited by appellant on this proposition are cases in which
some person who was so deprived of his right was the complainant.
More than this, the evidence in the case shows that there are interurban lines, equipped with electricity, operated in the city of Des
Moines, the employees of which are required to possess the same or
similar skill or experience as the employees of appellant. I f it is
true that the contract contravenes public policy as between the par
ties thereto, both are pari delicti, and the law will leave them where
it finds them. (Elliott on Contracts, vol. 2, sec. 1064 and 1094, and
cases there cited.) We find nothing, therefore, in the case which re
quires the intervention of a court of equity so far as this question
is concerned.
The sum total of this holding is that the international association
is not a party to this action, and that whatever the provisions of its
constitution and by-laws may be, and whether the contract was made
in violation thereof, is a matter wholly between the local and the
international association; that as to the contract being against public
policy because it unionizes an entire industry, and also because it
requires a motorman and a conductor on each car while in operation,
these questions are not properly before us as the matters pleaded do
not warrant the intervention of a court of equity; that the attack
on the contract for want of consideration, lack of mutuality, and
the check off are each and all matters which are available as a defense
in a suit by an employee for the recovery of his wage, and therefore
not cognizable in equity.
The real purpose o f this litigation seems to have been to obtain
a declaratory judgment as to the matters involved herein. Such
proceedings, while very desirable in some cases at least, are unknown
to the practice in Iowa.
P en sio n s — G roup I n su r a n c e — C overage — D eceased E m pl o y e e
Thompson v. Pacific Mills et al., Supreme Court
of South Carolina (>September 23,1927), 139 Southeastern Reporter,
page 619.—J. J. T h o m p s o n w as in th e e m p lo y o f th e P a c ific M ills ,
N ot D ischarged —
w h ich e m p lo y e r h a d a p o lic y o f g r o u p life in su ran ce c o v e r in g its
em ployees.
D u r in g D ecem b er,
1924,
T h o m p s o n d ie d a fte r “ b e in g
182
DECISIONS OF TH E COURTS
sick for quite awhile.” He was still on the pay roll, however. In a
suit to recover under the policy the contention was made that as
Thompson was not at the time of his death in the active employ
ment of the Pacific Mills within the meaning and terms of the policy
he was not covered by the policy.
The supreme court said that if the highly technical construction
desired should be given it would be “ as sounding brass or a tinkling
cymbal.” It would make the policy “ almost valueless from the
standpoint of any real protection to the dependents of the employee.
Where death occurs to the employee of good standing who has been
incapacitated through sickness or disease for weeks, or perhaps even
months prior to his death, the need of his family for the aid of the
4death benefit ’ is not less than where the employee has met a sudden,
accidental, or violent death in the performance of the normal activi
ties of his employment.” Thompson had not been discharged, nor
had he left the service of his employer, and was still carried on the
pay roll of the employer. He was regarded and treated as an
employee entitled to every right and benefit that he would have had
in active service.
P e n s io n s — V e sted R i g h t — Cowles et al. v. Mo iris & Co. et al
Supreme Court of Illinois (April 21, 1928), 161 Northeastern Re
porter, page 150.—On January 1, 1909, Morris & Co., for many years
engaged in meat packing and kindred industries, established a plan
for the retirement of certain of its employees who had completed 20
years of continuous service and had attained the age of 55. Accord
ing to the plan the company was to contribute the sum of $25,000
per year until the “ Morris & Co. pension fund ” had reached the
sum of $500,000. The rule provided that the employees were to
contribute 3 per cent of their salaries to the fund. In case of volun
tary resignation of an employee, all payments made by him to the
pension fund should be returned without interest, and in case of dis
charge all payments with interest, computed semiannually at the rate
of 4 per cent. Morris & Co. made annual contributions of $25,000
to the fund as required by the rules, and in addition other contribu
tions were made both by the company and by the will of Edward
Morris and subsidiary companies.
The fund was in operation until March 31, 1923, when Morris &
Co. sold its business and property to Armour & Co. and ceased to
do business. It discharged all of its employees with the exception of
a few who were retained for a short time to wind up the affairs of
the company. At that time there were about 400 retired employees,
more than 2,000 active contributors to the fund, and $1,476,567.03 in
the fund. The pension fund committee proceeded to and did refund
SAFETY LAW S
183
to the contributing employees the amounts which they had contrib
uted to the fund plus interest at 4 per cent, which amounted to
$1,111,651.96, leaving in the fund $364,915.07, or an amount sufficient
to continue the monthly payments to the retired employees for a
period of possibly 17 months from March 31, 1923.
A suit was brought in the circuit court of Cook County, 111.,
against Morris & Co. and others by several of the retired employees
who had been receiving payments out of the pension fund to deter
mine the rights of the retired employees under the retirement plan.
There was a contention on the part of the pensioners that an im
plied contract existed on the part of Morris & Co. that it would con
tinue the pension fund until all claims of pensioners were fully paid.
Among other things contended was that the pensioners had a vested
right in the continuance of the fund for their benefit, and that a
conspiracy existed between Armour & Co. and Morris & Co. to de
prive the pensioners of their rights.
The case was dismissed in the circuit court, and upon appeal the
Appellate Court of Illinois affirmed the decision. The case was then
taken to the Supreme Court of Illinois. The supreme court held
that the retired employees did not have a vested right to any of the
property or income of Morris & Co. to pay their pensions, but must
look wholly to the fund.
The court said, in the opinion written by Judge Stone, that:
Before this court can say that a business firm is required by its
contract to continue in business or to answer in damages for failure
to do so, it must clearly appear that an express or implied contract to
do so existed.
The court was of the opinion that there was no implied contract
to continue in business or to keep alive the employees5 pension fund
until all claims were fully paid, in view of the rule limiting the pay
ment of all sums to the pension fund and providing that no pensioner
should be entitled to have any part of the company’s capital or in
come set aside to provide payments to pensioners.
The court further held that where the rules not only provided for
retirement payments from the employees’ pension fund but for the
contract right of each contributor to withdraw his contribution when
dismissed from service, the retired employees were bound by the
rules covering the pension fund, and therefore did not have a vested
right in the fund prior to that of contributing members.
S afety L aw s— E
L a w —Jones,
m ployees on
B
u il d in g s —
C o n s t it u t io n a l it y
of
Chief Safety Inspector v. Russell, Court of Appeals of
Kentucky (May 5, 1928), 6 Southwestern Reporter, page 460.—The
Legislature of Kentucky in 1926 passed an act (ch. 124) requiring
184
DECISIONS OF T H E COURTS
proper construction and use of scaffolding in all construction work
in cities of the first and second classes, and the appointment of safety
inspectors.
To carry the act into effect, the city of Louisville enacted an ordi
nance and appointed Oscar Jones as chief safety inspector. An
action was brought in the circuit court of Jefferson County by J. F.
Russell, a contractor, to enjoin the inspector from performing his
duties, on the ground that the statute was special or class legislation
in violation of the Kentucky constitution and a denial of the equal
protection of the laws guaranteed by the Federal Constitution.
A judgment was given to Russell in the circuit court, and an
appeal was taken by Jones to the Court of Appeals of Kentucky.
This court reversed the judgment of the lower court, and held that
the act of classification was not obnoxious to the State or Federal
Constitution.
“ It is apparent,” the court said, “ from the provisions of the
statute that it was enacted under the police power of the State to
promote the safety of workmen engaged in construction work which
required them to make use of the structures described in the statute.”
After reviewing several cases in which like classifications had been
held reasonable, the court said that:
The legislative power may be exercised to protect the public gen
erally, or some particular class of persons whose work subjects them
to peculiar hazards, and whether the general public or a particular
class is to be protected does not alter the reasonableness of the classi
fication of the subject upon which the law operates.
Judge Willis, in concluding his opinion reversing the judgment,
said in part:
Legislation may be limited legally as to objects or territory if it
operates equally on all persons and places subject to it under like
circumstances and conditions.
The reach of the power of government is constantly expanding
and with increased complexity of problems the need of classifica
tion is enlarged, and so long as constitutional guaranties are ob
served the legislature is unhampered in its discretion in dealing with
practical exigencies.
The act o f classification here challenged is not obnoxious to the
State or Federal Constitution, and the lower court erred in holding
it invalid.
S afety
L
aw s—
R
e q u ir e m e n t
of
F
ans—
M
in e s —
C o n s t it u t io n
—Dalrymple v. Sevcik, Supreme Court of Colorado (November
29, 1926), 251 Pacific Reporter, page 134.—The Colorado law re
quires that fans be installed in coal mines to maintain pure air in
a l it y
WAGES
185
the mine and that a competent and practical mine foreman be em
ployed by the owner of the mine. Fred Sevcik owned a small coal
mine from which was mined 3 to 6 tons of coal per day in the
winter. He generally operated the mine alone, but on January 23,
1926, he had one man employed underground working with him.
On that day the mine was closed down. The question of the con
stitutionality of the legal requirements was raised. The supreme
court held the laws valid, reasoning as follows: The mine in ques
tion was not closed because of its being then in a dangerous condi
tion, but because it might become so and for other reasons. The
statutes apply to every mine, large or small, and to every mine
owner, whether operating alone or with the assistance of others.
Coal mining is known to be a most hazardous and dangerous busi
ness—an occupation requiring the strictest supervision for the safety
of the mine worker. The statute, having as its object the preserva
tion of the health and lives of men working in a business so haz
ardous and so fraught with perils, should not be held unconstitu
tional unless it clearly is so. As applied to coal mining generally,
we have no hesitation in saying that the requirements of the statute
are reasonable and necessary and a proper exercise of legislative
function.
W ages — H i r i n g b y M o n t h — D is c h a r g e — Ross v. Fair et al., Su
preme Court of Mississippi (January 17, 1927), 110 Southern Re
porter, page 84,1.—J. I. Ross brought an action against D. L. Fair
and others to recover $200, salary claimed due him for one month’s
services and $50 for the use of house in which to live while acting
as foreman. Ross entered upon his employment as foreman of the
sawmill conducted by Fair on September 1, 1925, and worked in that
capacity through the month of September, and on the morning of
October 1 was discharged on the ground that his services were
unsatisfactory.
Ross contended that he was employed by the month as long as
his services were satisfactory. Fair contended, on the other hand,
that Ross was employed, not by the month, but only so long as his
services were satisfactory, and that they had a right to discharge
him at any time, and when they did discharge him they were only
liable to him for his earned salary up to that time. Whether Ross
was employed by the month or at will was a question for the jury
to decide. The court said:
Under the law, if appellant was employed and paid by the month,
as he testified he was, and was discharged by appellees after he en
tered upon their service for another month, then appellees breached
iheir contract with appellant, and are liable to him for the damages
186
DECISIONS OF TH E COURTS
he suffered; and if they breached their contract to furnish him a
house to live in while he was in their service, they would be liable
to him for whatever damages he suffered on that account. We think
the evidence made a square issue of fact whether appellant’s conten*
tion was well founded or that of appellees.
The judgment was therefore reversed.
W ages— M in im u m
W a g e — I n t e r m it t e n t
S e r v ic e — Sparks
v.
Moritz, Supreme Court of Washington (December SO, 1926), 251
Pacific Reporter, page 683.—Elizabeth Sparks, an adult woman,
operated a passenger elevator at a salary of $10 per month in the
building in which she lived. Her employment was not full time, as
she wras privileged to devote part of her time to her own household
and personal duties, and she did in fact absent herself from the ele
vator part of the time. She brought suit against her employer,
claiming additional wages under the minimum wage law of Wash
ington. The constitutionality of the act was questioned.
The supreme court of the State held that her employment was not
such employment as came within the provisions of the minimum
wage law or minimum wage order, as neither the law nor the order
of the industrial welfare committee required the payment of the
weekly minimum when the employee does not devote her time to
the earning of a living wage, but in connection with another calling
or with no calling works a few hours per day or few hours per week
or renders intermittent service. The statute was held not to apply to
such a situation.
The court said that it would ignore the question of the constitu
tionality of the law under the Federal Constitution and under the
decision of the United States Supreme Court in the case of Adkins
v. Children’s Hospital (261 IT. S. 525) until, if over, that question is
urgently necessary in a proper case for decision.
W
a ges —
M
in im u m
W
a ge —
W
a ge
F
ix in g —
I llegal— M
u n ic ip a l
—Wilson et al. v. City of Atlanta, Supreme Court of Georgia
(July 16, 1927), 1S9 Southeastern Reporter, page 11$.—William
Wilson and others brought an action against the city of Atlanta, Ga.,
to restrain the authorities from enforcing an ordinance fixing a mini
mum wage scale to be paid for work done upon the construction of
public buildings and bridges or repairs. The ordinance fixed the
wages for the various trades, the maximum number of hours to be
worked, and in case of violation of any of the provisions the contract
was to be declared null and void. The superior court denied the con
tention of Wilson and refused to issue an injunction. Wilson took
it y
187
WAGES
the case to the supreme court of the State, and in that court the
opinion of the trial court was reversed. The higher court held that
the facts in City of Atlanta v. Stein (111 Ga. 789) were controlling,
and that the ordinance was illegal because it tended to encourage
monopoly and defeat competition, and also placed a heavier burden
upon the taxpayers than they would have to bear if free competition
were allowed.
W a g e s — N o n p a y m e n t o f — E m e r g e n c y E m p lo y e e — C o n s t r u c t io n
Chicago, Rock Island and Pacific Railway Co. v. Rus
sell, Supreme Court of Arkansas (March 28,1927), 292 Southwestern
Reporter, page 375.— O n A u g u s t 17, 1921, D . L. R u ssell w as em
o f S ta tu te—
p lo y e d b y an en gin eer o f th e C h ic a g o , R o c k Is la n d & P a c ific R a il
w a y C o. to w a tch an en gin e b e lo n g in g to th e r a ilw a y co m p a n y .
The
en gin e an d tra in w as “ tied u p ” at C a lio n , A r k ., on a cco u n t o f co n g e s
tio n o f traffic.
R u ssell was h ire d to w a tch th e en g in e u n til ord ers
w ere receiv ed f o r th e en g in e to p ro ce e d to th e c o m p a n y ’s y a r d at E l
D o r a d o , A r k . T h e en gin eer a n d R u ssell a g reed th a t th e co m p e n sa
tion sh ou ld be
64
cents p er h o u r f o r the first e ig h t h ou rs a n d tim e
and a h a lf f o r ev e ry h o u r th e re a fte r.
12 h ou rs
R u ssell w a tch e d th e en g in e
$8.96. T h e
a to ta l o f
ra ilw a y c o m p a n y re fu se d to p a y R u ssell, an d a fte r rep ea ted d e
m ands he b ro u g h t an a ction a ga in st the co m p a n y based on an
A rk a n sa s statute w h ich p r o v id e d in p a rt th a t w h en ever an y r a ilw a y
an d w as e n title d to receiv e th e sum o f
co m p a n y sh a ll d isch a rg e w ith o r w ith o u t cause o r re fu se to fu rth e r
e m p lo y an y serva n t o r e m p lo y e e th e r e o f th e u n p a id w a ges o f a n y
su ch em p loyee sh a ll be due a n d p a y a b le ; a n d i f n o t p a id w ith in
seven d ays, “ th en as a p e n a lty f o r su ch n o n p a y m e n t th e w ages o f
such servan t o r e m p lo y e e sh a ll co n tin u e fr o m th e date o f th e d is
ch a rg e o r re fu sa l to fu r th e r e m p lo y at the sam e ra te u n til p a id .”
In the circuit court, Union county, Ark., a judgment was given
to Russell for the amount due, and in addition $307.20 as a penalty.
The railway company brought the case to the supreme court of the
State, which on March 28, 1927, ordered the judgment of the lower
court modified:
In construing this statute it has been said that it was penal in its
nature, and must therefore be strictly construed, and that no one can
recover thereunder unless he comes strictly within its provisions.
Construing this statute strictly, as we must do because of its penal
character, it must be said that there was neither a discharge of plain
tiff nor a refusal to longer employ him. Plaintiff was employed
in an emergency, and he was not discharged. It was not contem
plated that his employment would extend beyond the expiration of
the emergency. When the train could be moved plaintiff’s service
188
DECISIONS OP T H E COURTS
would no longer be required. He could not, therefore, have b e e n
longer employed after the engine had been moved.
Tne employment arose out of an emergency, and the payment of
the wages earned was therefore not a matter of routine to be re
ported by a foreman or keeper of time, and the language of the
statute does not appear to be broad enough to cover the facts of the
case.
W
ages —
P
r e v a il in g
R
a t e of
W
ages i n
L
o c a l it y —
C o n s t it u t io n
Campbell v . City of New York
(February 23, 1927), Court of Appeals of New York, 155 North
eastern Reporter, page 628.— S e c t io n 220 o f c h a p t e r 50 o f th e L a w s
o f N e w Y o r k o f 1921 p r o v i d e s f o r th e p a y m e n t o f n o t less th a n th e
a l it y of
S tatute— P
u b l ic
W
orks—
p r e v a ilin g r a te o f w a g e s t o w o r k m e n a n d m e c h a n ic s e m p lo y e d o n
p u b li c w o r k s f o r th e S t a t e o r a m u n ic ip a l c o r p o r a t io n .
Following the decision of the United States Supreme Court in
the case of Connally v. General Construction Co. (269 U. S. 385),
decided January 4, 1926, in which a criminal prosecution under the
Oklahoma prevailing rate of wages law resulted in an opinion hold
ing the law void for uncertainty, two cases arose in New York State,
Morse v. Delaney (218 N. Y. S. 571, affirmed 218 N. Y. S. 826), and
Campbell v. City of New York (216 N. Y. S. 141, affirmed 219 N. Y.
S. 131.) (For the facts in the cases, see B. L. S. Bui. 444, p. 112.)
The New York law was upheld and the cases were taken to the
Court of Appeals of New York. That court, on February 23, 1927,
upheld the constitutionality of the New York law. The court, in
referring to the Connally case, said that “ the decision was merely
this, that in its application to that employer the statute, which is
very similar to our own, was too obscure and indefinite to sustain a
charge of crime.” Referring to the cases before the court for deci
sion, the court said:
We are met in the case at hand by a problem of a different order.
There is no question before us now of punishment for crime. There
is merely a question of the regulation of a form of contract. The
legislature has said that contractors working for the State or for its
civil subdivisions shall bind themselves by a promise which is criti
cized as indefinite and meaningless. Plainly the Constitution of the
United States has nothing to say about regulations of that kind.
The fourteenth amendment does not embody a provision that munici
pal contracts shall be perspicuous and definite. * * * The form
of contract being lawful to the extent that it repeats the provisions of
the statute, there is no occasion to determine the remedies, criminal or
civil, that will be available to the municipality if the claim shall be
made hereafter that those provisions have been violated.
On April 1, 1927, an act amending section 220, chapter 50, of the
Laws of 1921, by defining “ prevailing rate of wage ” and “ locality ”
WAGES
189
became a law (ch. 563, Laws of 1927). This act apparently was
passed to make the prevailing rate of wages law meet the test of
Connally v. General Construction Co. The Campbell case was taken
to the Supreme Court of the United States, which court, on April
23,1928, in a per curiam decision, dismissed the case on the authority
of cases which held that the power of the State and its agencies over
municipal corporations within its territory is not restrained by the
provision of the fourteenth amendment. (48 Sup. Ct. 435.)
It appears from the above facts that the New York prevailing rate
of wage law is constitutional; that the provisions of the statute may
be written into contracts by the State or a municipality; and that in
view of the amendment of 1927 the statute may be sufficiently defi
nite to be the basis of a criminal prosecution and the contract suffi
ciently definite to be the basis of civil liability.
W ages — P r o f it S h a r i n g — Friedle v. First National Bank of the
City of New York et al., city court of New York, trial term (March,
1927), 221 New York Supplement, page 292.—William A. Friedle
was employed by the First National Bank of the city of New York.
In 1918 the bank established a profit-sharing fund for their employ
ees. Later, in 1921, another plan was adopted, and in 1923 the sec
ond plan was repealed and a third plan was substituted. This plan,
in some respects similar to the other ones, provided “ that the benefits
of the plan are not to be subject to withdrawal during the continu
ance of employment, but are in the nature of a gratuity for the
protection of the employees and their families at the termination
of the full period of employment; that no employee shall gain a
vested interest, and that an employee voluntarily leaving the services
of the bank without the written consent of the chairman and the
president shall forfeit any right to any benefits in said plan.”
Friedle continued in the service of the bank until June 2, 1923,
when he voluntarily left to take a position in another bank at an
increased salary. He brought an action to recover his share in the
profit-sharing fund set aside by the bank for the benefit of its em
ployees. The court in dismissing the case said:
There is no doubt but that plaintiff subscribed to the several plans,
including plan No. 3, by continuing in the bank’s-employ for the
period stated after the last-named plan was promulgated. The res
ervation in plan No. 2 that a new plan could be substituted at any
time was a reasonable exercise of the power creating the gratuity
fund. That plaintiff voluntarily left the service of the bank on June
2, 1923, without first obtaining the signatures of the president and
chairman consenting to his leaving as required by plan No. 3, is not
denied; and where the right to the fund is not a vested one, but con
103151°—30---- 14
190
DECISIONS OP TH E COURTS
tingent, depending upon a condition precedent set up by those creat
ing the fund in question, which under all the circumstances they had
a right to make, whether the refusal of those officers to give their
written consent was arbitrary or otherwise is not involved here.
It may well be that plaintiff would have been entitled to receive
the amount paid over and deposited on his behalf and to his credit
with the defendant First Security Co. on or about December 23,
1920, had he terminated his employment subsequent to that date
and prior to October 11, 1921, when the substituted plan (No. 2)
was adopted, because up to that date, as the plaintiff himself pleads,
the first plan was in full force and effect. But continuing in the
employ of the defendant bank after plan No. 2 was adopted and
promulgated as a substitute for said original plan without any
special reservation, we must conclude that the substitute plan was
received by the plaintiff in lieu of the original plan and accepted
by him as such.
Plaintiff in no way contributed to the fund. It was a gratuity
voluntarily created by the defendant bank by setting aside a certain
portion of its profits belonging to its shareholders for the benefit
of its employees, and to be enjoyed by them pursuant to the terms
of the plans adopted. No contractual relation can be spelled out
between the plaintiff and the defendants with respect to this fund,
the reason for which having been previously stated; and after a
careful reading of the very comprehensive and lengthy memoranda
submitted by both sides, a reading of the exhibits, the pleadings, and
the plaintifrs testimony, I am convinced that plaintiff, under the
circumstances as presented, is not entitled to recover.
W ages — P r o f it S h a r i n g — B o n u s — George A. Fuller Go. v.
Brown, Circuit Court of Appeals, Fourth Circuit (North Carolina),
October 19,1926, 15 Federal Reporter (2d), page 672.—The George
A. Fuller Co. was engaged during the years 1919 and 1920 in build
ing ships under a contract with the United States Shipping Board
Emergency Fleet Corporation at a yard known as Carolina Ship
yard, at Wilmington, N. C. The contract originally called for 12
ships, but was afterwards amended so as to provide for only 8.
In 1920 R. A. Brown was employed by the company as a general
storekeeper at a salary of $3,000 per year. In February of that
year he was paid the sum of $300 as a “ bonus,55 from the profits
derived by the company from the construction and sale of the ship
Cranford. At the same time the bonus system was explained to
Brown by an officer of the company. Subsequently the company
completed seven other ships and paid Brown $300 on each of five
of them inclosing in every case a statement regarding the bonus
system. No bonus was paid on the seventh and eighth ships, the
company claiming a loss on both of these, and it also refused to
make further bonus payments on each of the six ships first con
structed. Brown brought an action in the District Court of the
WAGES
191
United States for the Eastern District of North Carolina at W il
mington to recover $600 on each of the 12 ships called for in the
original contract, less the amount already paid him. The company
took the position that there was no binding contract, and conse
quently no liability on its part: (1) That there was no definite
promise to pay a bonus, but merely an indefinite statement of in
tention to give a gratuity which was to depend upon the discretion
of its own officers; (2) that in any event the bonus was not to be
paid except as authorized by the officers of the company; and (3)
that it was a condition of the payment of the bonus that the 12
ships should be completed and that this condition had not been
complied with. The district court found for Brown, holding that
he was entitled to recover from the company a balance of $300 on
the first six ships constructed and $600 each on the seventh and
eighth. The company appealed the judgment to the circuit court
of appeals, fourth circuit. In an opinion written by Circuit Judge
Parker he said in part:
As to the first proposition, we think that the statement made to
plaintiff and embodied in the paper attached to his receipt was more
than a mere expression of intention of giving a gratuity. When
considered in connection with the surrounding circumstances, it was
a definite promise that plaintiff should share in the profits realized
from each of the ships. Defendant had a profitable contract with
the Government, but on account of disorganized labor conditions
the realization of profit from the contract depended upon its ability
to hold its organization together and to proceed with the work. It
therefore made this offer to share profits, not only to plaintiff but
to various other persons who occupied positions in its organization,
paying only half of the bonus to which they were entitled upon the
completion of each of the ships and holding back the other half,
which it promised to pay upon the completion of the 12 which it
represented that it intended to build. It is true that the paper at
tached to plaintiff’s receipt contained the words, “ This bonus is paid
to you as a reward for the services you have rendered in the construc
tion of the ship named, but it is understood that it is not a part of
the compensation provided in your employment arrangements.”
But, conceding to this language its full effect, it does not mean
that the amount paid or promised plaintiff was a gift without con
sideration, but as expressly stated, was a “ bonus,” which “ is not a
gift or gratuity, but a sum paid for services, or upon a considera
tion in addition to or in excess of that which would ordinarily be
given.” (Cases cited.)
It is said, however, that there was no promise to pay the “ bonus,”
but a mere expression of hope or expectation on the part of the de
fendant, mere “ words of prophecy, encouragement, or bounty, hold
ing out a hope, but not amounting to a covenant.” But we do not
so interpret them.
Nor do we think that the promise is indefinite as to the amount
to be paid or void on the ground that a condition of the writing
192
DECISIONS OF T H E COURTS
reserves to the officers of defendant the right to determine whether
the bonus shall be paid or not. When a portion of the bonus was
paid plaintiff on the completion of each of the first six ships it was
agreed that this was approximately 50 per cent of the bonus on that
ship, and that the remaining 50 per cent would be paid plaintiff later
upon the completion of the 12 ships. This was certainly definite
enough.
We must construe the instrument as a whole and in the light of
the surrounding circumstances, bearing in mind that it provided not
only for the payment of the retained portion of the bonus on the
ship which had been completed but also for the payment of bonuses
on succeeding ships, for the increase of the bonus if profits on suc
ceeding ships should be greater, and for the forfeiture of the bonus
if plaintiff’s services should be unsatisfactory or if his employment
should be terminated prior to the completion of the 12 ships.
As to defendant’s second proposition, that the officers of defend
ant have not authorized the payment of the remainder of the bonus,
the answer is that the conditions upon which the remainder of the
bonus was to be paid to plaintiff have been complied with except in
so far as defendant by closing its yard and abandoning construction
has rendered it impossible to comply with same. Conceding that the
contract vests in defendant’s officers the right of determining
whether plaintiff has complied with the conditions of his contract,
they can not defeat his right by mere inaction or by withholding
the bonus on account of losses which they may have sustained on
other ships, when the conditions upon which he was entitled to the
remainder of the bonus have admittedly been complied with.
As to the proposition that the 12 ships were never completed the
answer is that the completion of the 12 ships was not a condition
of the payment of the remainder of the bonus, but merely fixed the
time at which it was to be paid. And it should be observed also
that the payment of the remaining 50 per cent of the bonus was not
conditioned upon the realization of a profit on the 12 ships. On the
contrary, the contract made upon the completion of the first ship
provided for the distribution of a share of the profits on “ each”
of the succeeding ones, and as each of the first six were completed a
distribution of half of the bonus was made. There was no condition
that any part of the half which was retained should be withheld if
the 12 ships were not completed or if loss was sustained upon any o f
them. As the remainder of the bonus was payable when the 12
ships should be completed, and as they were never completed, but;
construction was abandoned after the completion of the tenth, the
law implies a promise to pay within a reasonable time.
In concluding his opinion, Judge Parker said:
It follows that the judgment of the district court will be reversed
and the cause remanded for a new trial, unless the plaintiff shall pay
all the costs in this court and shall remit in writing on the judgment
in the district court the sum of $1,200 and interest thereon frOi%
November 20, 1920; and that, if the plaintiff shall pay such costs;
and make such remittitur within 60 days, the judgment of the district
court stands as affirmed.
WAGES
193
W age s —P r o f it S h a r in g — V este d R ig h t s —Burgess v. First Na
tional Bank et al.. Supreme Court of New York, Appellate Division,
Second Department (February 4,1927), 220 New York Supplement,
page 134.—The First National Bank and First Security Co. of New
York established a profit-sharing plan whereby a certain per cent
of the profits of the business were set aside and credited to the
employees. The amounts so credited were not subject to withdrawal
during the continuance of the employment, but were in the nature
of a gratuity to protect the employees or their families at the ter
mination of the employment and were subject to forfeiture for in
efficiency, lack of industry, or disloyalty, as determined by a com
mittee whose decision was final. James A. Fagan, who had been a
clerk in the bank, resigned on March 31, 1924, after a rehearing had
been denied him as to the legality of a fine of $1,000 against the
credit which he had in the endowment fund for an alleged clerical
error in the course and discharge of his duties as an employee of
the bank. Fagan assigned whatever interest he had in the fund
to Charles E. Burgess, who brought this action against the bank.
Burgess claimed that Fagan was entitled to share in all the rights
and benefits of the profit-sharing plan, and that the bank had
credited Fagan on its books with the sum of $3,825, of which he
had withdrawn the sum of $465, leaving $3,360 due and owing
Fagan, and for which Burgess as the assignee of Fagan asked a
judgment.
A judgment was given to the bank, and Burgess thereupon ap
pealed. Burgess contended that the plan provided for a bonus,
and that the share to which Fagan would have been entitled upon a
severance of his employment by the bank was vested in him.
The court adopted the opinion of the trial court in the following
language:
Plaintiff pleads himself out of court by alleging in his complaint,
in effect, that his assignor tried to obtain the required consent and
approval; that he failed to obtain i t ; and that thereupon he resigned
without it. Having left voluntarily and under the circumstances
detailed, it is clear that he has relinquished any interest which he
might have had in the fund in question, which a reading of the plan
shows was only accorded to him temporarily as a gift or gratuity,
and was subject to be defeated, inter alia, by his voluntary resigna
tion without the prescribed consent and approval.
The court therefore was of the opinion that the case was correctly
decided by the lower court and affirmed the judgment.
194
DECISIONS OF T H E COURTS
W ages— S e a m e n — I n j u r y — C are a n d C ure — Pacific Steamship
Co. v. Peterson, United States Supreme Court (November 26rj 1928),
49 Supreme Court Reporter, page 75.— C a r l G . P e te rso n w as a sea
m an in th e e m p lo y o f the P a c ific S tea m sh ip C o.
H e w as in ju re d
on a d om estic m erch a n t vessel o w n e d b y the c o m p a n y w h ile s e rv in g
as a seam an on a v o y a g e b etw een the p o rts o f P u g e t S o u n d a n d C a li
fo r n ia .
O n th e a rriv a l o f th e vessel at S a n F ra n c is co , P e te rso n w a s
rem ov ed fr o m th e vessel an d co n v e y e d to the m a rin e h o sp ita l fo r
m aintenan ce an d cu re, w h ere he w as m a in ta in ed an d g iv e n re a so n
able m ed ica l an d su rg ica l a tten tion and a llo w e d w ages to th e end
o f th e v oy a g e .
P e te rso n th e re a fte r b r o u g h t a su it in th e S u p e r io r
C o u rt o f W a s h in g to n a g a in st h is e m p lo y e r, a lle g in g th a t th e in ju r y
he received resu lted fr o m th e n e g lig e n ce o f th e m ate o f th e vessel
an d based h is r ig h t o f a ctio n ex p re ssly on section 20 o f th e seam en’s
act o f
1915 (38
1164),
1920 (41
S tat.
ch an t m a rin e act o f
as am en ded b y section
S tat.
988),
33
o f th e m e r
w h ich is as fo llo w s :
That any seaman who shall suffer personal injury in the course of
his employment may, at his election, maintain an action for damages
at law, with the right of trial by jury, and in such action all statutes
of the United States modifying or extending the common-law right
or remedy in cases of personal injury to railway employees shall
apply.
The steamship company denied the averments of negligence, but
alleged generally that because Peterson had elected to receive main
tenance, cure, and wages he could not maintain the suit for damages.
A judgment was given to Peterson in the Superior Court of Wash
ington, and upon appeal to the supreme court of the State by the
employer, the judgment was affirmed. (Peterson v. Pacific S. S. Co.,
145 Wash. 460, 261 Pac. 115.)
The case was then carried to the United States Supreme Court.
The steamship company contended that the phrase in the>seamen’s
act “ at his election ” required the injured seaman to elect whether
he would proceed for the recovery of maintenance, cure, wages, and
indemnity under the old maritime law or for the recovery of dam
ages under the new rule, and that he would be bound by the election,
whereas on the other hand Peterson contended that the phrase re
ferred at the most to an election between an action for compensatory
damages on the ground of negligence under the act of 1920 and the
inconsistent action for indemnity or compensatory damages on the
ground of unseaworthiness under the old maritime law and not to
an election between an action for damages under the act of 1920 and
the consistent and cumulative remedy for maintenance, cure, and
wages under the old maritime law.
WAGES
195
By the general maritime law of the United States prior to the
merchant marine act it was provided that—
A vessel and her owner were liable, in case a seaman fell sick or
was wounded in the service of the ship, to the extent of his main
tenance and cure, whether the injuries were received by negligence or
accident, and to his wages, at least so long as the voyage was con
tinued, and were liable to an indemnity for injuries received by a
seaman in consequence of the unseaworthiness of the ship and her
appliances; but a seaman was not allowed to recover an indemnity
for injuries sustained through the negligence of the master or any
member of the crew. (The Osceola, 189 U. S. 158, 175, 23 Sup. Ct.
483.)
By section 33 of the merchant marine act, as heretofore construed,
the prior maritime law of the United States was modified by giving
to seamen injured through negligence the rights given to railway
employees by the employers’ liability act of 1908 and its amendments
(45 U. S. C. A. secs. 51-59) and permitting these new substantive
rights to be asserted and enforced in actions in personam against the
employers in Federal or State courts administering common-law
remedies, with the right of trial by jury, or in suits in admiralty in
courts administering maritime remedies, without trial by jury.
(Panama R. R. Co. v. Johnson, 264 U. S. 375, 44 Sup. Ct. 391.)
The United States Supreme Court, in an opinion by Mr. Justice
Sanford, upheld the contentions of Peterson, and quoted from Mr.
Justice Story, to the effect that a claim for the expenses for curing
a seaman in case of sickness 44constitutes, in contemplation of law,
a part of the contract for wages and is a material ingredient in the
compensation for the labor and services of the seamen,” and from
Mr. Justice Gray to the effect that—
The right of a seaman to receive his wages to the end of the voy
age and to be cured at the ship’s expense, being 44grounded solely
upon the benefit which the ship derives from his service, and having
no regard to the question whether his injury has been caused by the
fault of others or by mere accident, does not extend to compensa
tion or allowance for the effects of the injury; but it is in the nature
of an additional privilege, and not of a substitute for or a restric
tion of other rights and remedies,” and 44does not, therefore, dis
place or affect the right of the seaman to recover against the master
or owners for injuries by their unlawful or negligent acts.”
The court then said that—
In short, the right to maintenance, cure, and wages, implied in
law as a contractual obligation arising out of the nature of the em
ployment, is independent of the right to indemnitv or compensatory
damages for an injury caused by negligence, and these two rights
are consistent and cumulative.
In conclusion the court said that—
Considered in the light of these several remedies and the extent
of the inconsistency between them, we agree with the view expressed
196
d e c is io n s op t h e
co u rts
by the Supreme Court of Washington that the statute was not in
tended to restrict in any way the long-established right of a seaman
to maintenance, cure, and wages, to which it made no reference.
And we conclude that the alternative measures of relief accorded
him, between which he is given an election, are merely the right
under the new rule to recover compensatory damages for injuries
caused by negligence and the right under the old rules to recover
indemnity for injuries occasioned by unseaworthiness; and that no
election is required between the right to recover compensatory dam
ages for a tortious injury under the new rule and the contractual
right to maintenance, cure, and wages under the old rules, the latter
being a cumulative right in no sense inconsistent with or an alterna
tive of the right to recover compensatory damages.
The judgment of the State court was therefore affirmed.
The Supreme Judicial Court of Massachusetts affirmed the lower court,
holding that where a laborer was a permanent employee under a civil-service
statute and brought action to recover wages for the time he was suspended,
and who accepted employment after each suspension, did not agree to such
illegal suspensions where no definite information as to period of suspension
was given. (Lake v. City of Fall River (1928), 161 N. E. 893.)
W o r k m e n ’s
C o m p e n sa tio n — A c c id e n t — B u r n s — D o in g
op
A ct
W i t h o u t P e r m i s s i o n —Ziolkowski
v. American Radiator Go. et al.,
Court of Appeals of Neto York (March 27, 1928), 161 Northeastern
Reporter, page 164.—Joseph Ziolkowski was employed as an electric
crane operator by the American Radiator Co. On the night of
January 27, 1927, while employed in the yards of a foundry belong
ing to the company, he was burned to death when his clothes caught
fire from the contents of two pails of hot coal which he had placed
in the cab of the crane in order to keep warm. The widow of
Ziolkowski proceeded under the workmen’s compensation law against
the American Radiator Co. and the insurance carrier, on the grounds
that the injury arose out of the employment. An award was made
by the State industrial board in favor of the widow. The com
pany carried the case to the State supreme court, appellate division,
third department, contending that the placing of the hot coals in
the cab was without their permission or knowledge. This court
reversed the lower court and dismissed the claim. The case was then
taken to the Court of Appeals of New York by the widow. This
court reversed the appellate division and in part said as follows:
It is natural for a workman exposed to the discomfort of great
cold to try to keep himself warm. The method adopted by the
employee here created a dangerous situation for him in the close
confinement of the small cab. His act may have been negligent; it
certainly was not an abandonment of his employment. He sought
to relieve himself, while his employment continued, from the dis-
197
WORKMEN *S COMPENSATION
comfort of extraordinary cold to which his employment exposed him
that night. His efforts were the natural result of the conditions
created by the employment. The risk was not only directly con
nected with the work, but it was a natural consequence of the work.
W o r k m e n ’ s C o m p e n s a t io n — A c c id e n t — B u r n s — W o u n d — Zurich
General Accident & Liability Insurance Go. v. Brunson et al., Circuit
Court of Appeals (Oregon), Ninth Circuit (November 29, 1926),
15 Federal Reporter (2d), page 906.— W i l l i a m B r u n s o n w a s e m
p lo y e d b y th e W e s t e r n L u m b e r Co. in f e l l i n g s n a g s a n d c le a r in g
th e la n d o n th e w o o d e d sid e o f a p r e c ip it o u s m o u n ta in in O r e g o n .
B r u n s o n w a s a c c u s to m e d t o t a k in g h is lu n c h e o n w it h h im a n d e a t
i n g i t in th e n o o n h o u r .
O n o n e p a r t ic u la r d a y i t w a s d a m p a n d
c o ld , a n d t o k e e p w a r m B r u n s o n a n d h is f e l l o w e m p lo y e e s set fir e t o
a p il e
o f d e b r is .
T h e y se a te d th e m s e lv e s a b o u t th e fir e f o r th e p u r
p o s e o f w a r m in g a n d d r y i n g th e m s e lv e s w h ile e a t in g lu n c h .
B ru n
s o n , w h ile se a te d , h a d o c c a s io n t o u se h is p o c k e t k n i f e t o c u t a t w i g
o r b u sh w h ic h w a s in th e w a y a n d in s o d o i n g a c c id e n t ly c u t h is
le g .
He
r e m o v e d h is b o o t t o e x a m in e th e w o u n d , a n d , w h ile r e
p la c i n g it , lo s t h is b a la n c e a n d f e l l o r r o lle d in t o th e fir e , b u r n in g
h im s e lf s e v e r e ly .
He
r e c e iv e d b u r n s a b o u t th e f a c e a n d lip s , w h ile
b o t h h a n d s w e r e p r a c t ic a l ly d e s t r o y e d a n d w e r e r e n d e r e d useless.
Brunson brought an action under the workmen’s compensation act
against the insurance company in the District Court of the United
States for the District of Oregon, alleging that the injury was the
result of an accident arising out of and in the course of the employ
ment. The district court awarded judgment to Brunson. The
court found that as a result of the accident Brunson was totally and
permanently incapacitated from following any gainful occupation.
The insurance carrier appealed the judgment to the circuit court of
appeals, ninth circuit (Oregon), contending that the accident did not
arise out of and in the course of the employment, nor was he perma
nently disabled. The circuit court of appeals affirmed the judgment
of the lower court and in part said as follows:
The court did not err in finding that the injury was received* in
the course of appellee’s employment. There was no intervening rela
tion or act to interrupt the continuity of conduct of the appellee in
his engagement in felling snags and clearing the land. Cutting the
shrub or twig with a jackknife was an act m harmony with and in
the course of employment, in a very small way. There was no inter
rupting cause or exposure to new danger, no risk to danger from
other agencies. It was at the place of and in line with his work. It
is not material that the twig was little and cut with a jackknife.
instead of a shrub or snag and cut with an axe. The relation oi
employer and employee was not suspended.
198
DECISIONS OF T H E COURTS
The appellee was doing what he might reasonably do at the time
and place. He was at a place where he was required to be. Stark v.
Ind. Accident Comm., 103 Or. 80, 204 P. 151. He was doing what
was reasonably incident to the employment. The risk was not unnec
essarily increased. He did not choose an unnecessarily dangerous
place. He acted like any reasonably prudent man employed in like
manner would under the same circumstances. No reasonable mind
upon consideration of all the circumstances can fail to see a causal
connection between the conditions under which the work was re
quired to be performed and the work he was engaged for and
required to do, the act that he was doing and the resulting injury.
Workmen’s Compensation— Accident— Disease— Brain Tumor—
McCarthy v. General ElectHc Co., Supreme Court of Pennsylvania
(June 30, 1928), 11$ Atlantic Reporter, page 116.— John W . Mc
Carthy was employed by the General Electric Co. at their plant in
Pennsylvania. On the evening of November 2, 1923, McCarthy sus
tained an injury from a fall upon the floor of the company’s plantHe was rendered unconscious and sent to a hospital, where the fol
lowing morning he left his bed without permission, fell again, be
came unconscious, and died five days after the accident. His widow
proceeded under the workmen’s compensation act, claiming compen
sation for the death of her husband in the course of his employment.
The referee rejected the claim, but it was later allowed by the com
pensation board. The court of common pleas of Erie County, Pa.,
also affirmed the award. The General Electric Co. appealed to the
supreme court of the State, contending that the death resulted not
from a fall but from a brain tumor. This was the main question
involved in the case. The opinion of the supreme court was writ
ten by Judge Walling, who said in part:
In England and some American jurisdictions, the injury must grow
out of the employment, but our statute contains no such requirement.
It is sufficient if the accidental injury happens in the course of the
employment. Furthermore, it is not necessary that the fall result
from an accident, as the fall is the accident; nor is it material that
the employee fell because he became dizzy or unconscious. An in
jury sustained by an accidental fall is compensable, although the
fall resulted from some disease with which the employee was afflicted.
In the instant case McCarthy was not without the protection of the
act, if hurt by a fall, although it resulted from a lapse of the brain,
whether it was gumma or merely vertigo. An accidental injury,
during the course of employment, from an unexplained cause, is com
pensable and the burden is not on a claimant to show the exact cause.
True, it was necessary for plaintiff to establish the fact that her
husband died as a result of the fall rather than from other cause.
Whether she did so was, under the conflicting evidence, for the com
pensation board to decide. Where, as here, the finding is supported
by substantial proof, it can not be overruled by the courts, even when
w o r k m e n ’s c o m p e n s a t io n
199
against the apparent weight of the evidence, for it is not our right
or duty to weigh conflicting evidence. The facts found by the
compensation authorities are as conclusive on appeal as the verdict
of a jury.
It having been found that McCarthy died as the result of an acci
dental fall sustained in the course of his employment, the right of
his widow to compensation was not affected by the fact that he may
have been afflicted with syphilis, or even had a tumor of the brain or
some other life-shortening malady.
The judgment was therefore affirmed.
Workmen’s Compensation— Accident— Disease— Cancer— W inChester Milling Corporation v. Sencindiver, Supreme Court of A p
peals of Virginia (June 16, 1927), 138 Southeastern Reporter, page
479.— J. F. Sencindiver was employed by the Winchester Milling Cor
poration as manager of its plant on and before May 29, 1925. On
that date, while engaged in the performance of his duties in the
course of his employment, while attempting to step from the milling
corporation’s elevator to a freight car, Sencindiver’s foot slipped and
he fell a distance of 4 or 5 feet, apparently injuring himself in the
groin and in the chest. The next day he complained to a doctor of a
pain in his left groin and soreness in his left side. Examination
disclosed a hernia in the left groin, but no external injury to the
left side. Sencindiver consulted with doctors and attempted to con
tinue working until September 14, at which time he stopped work
and was never able to resume work of any kind. On November 17
a rib was removed and specimens sent to Richmond, Va., for analysis
and the patient’s trouble was diagnosed as cancer of the rib. After
removal of the rib the cancer extended to other parts of the body
and on September 12, 1926, about 15y2 months after the injury
Sencindiver died. A claim was filed and an award made in favor of
the widow and children. The case was appealed to the supreme
court. That court affirmed the award, saying that whatever view
it took of the medical opinions “ they are frankly and at best but
theories, but taking them as they are in connection with the facts
heretofore narrated and taking a common sense, practical view, as
courts and commissions must take of the ordinary happenings of life,
boiled down to its last analysis, the medical theory is that there is a
relationship between the receipt of the injury and the origin of
sarcoma (or cancer of the rib) and that the degree of injury plays
no important part. With this in mind, we find a perfectly healthy,
strong man, who had never lost any time from work or complained
of any illness, suffers an injury, and from that time on is incapaci
tated, grows worse, sarcoma develops at the point of injury, from
200
DECISIONS OF T H E COURTS
which he dies. The lay mind under such circumstanes can reach no
other conclusion than that reached by the industrial commission,
viz., that the sarcoma was either caused by the injury or was aggra
vated by it ” and therefore was compensable.
Workmen’s Compensation — Accident — Disease — T y p h o i d
Fever— John Rissman <& Son v. Industrial Commission et dl., Su
preme Court of Illinois (October 28, 1926), 154 Northeastern Re
porter, page 208.— Josephine Howard was employed to operate a
power-driven sewing machine at the overall factory of John Riss
man & Son, in Westville, 111. She was taken ill at the factory and
died about 10 days later of typhoid fever. The disease was said
to have been contracted by drinking the water supplied by the em
ployers to the deceased and the other employees of the factory.
Her parents were awarded compensation by an arbitrator, which
was confirmed by the industrial commission. The Circuit Court of
Vermilion County, 111., set aside the award of the commission. There
upon the case was taken to the State supreme court, where the judg
ment of the circuit court was reversed. In reversing the judgment
the court said in part:
It is the law that an award under the compensation act can not
rest upon conjecture or surmise or upon the choice between two
views equally compatible with the evidence. It is the law, also,
that it is the province of the industrial commission to draw reason
able inferences from evidentiary facts, and that it is not the province
of the courts to set aside its findings or award unless manifestly
against the weight of the evidence.
The decision of the commission in this case that the deceased con
tracted typhoid fever at the defendant in error’s factory through
the drinking of water there furnished is not against the manifest
weight of the evidence but in our judgment is supported by the
weight of the evidence. It is practically certain that all the cases
there of typhoid fever were brought about through a source of in
fection common to all the patients and employees, and it matters
little whether that common source was foul water that was drunk
by them, or by filthy towels or other filthy articles used by them,
or by foul conditions that existed at the factory and were peculiar
to that working place and found only there, as disclosed by the
evidence. The evidence abundantly shows that working at the
factory and doing the things there that they were directed to do
caused the employees, including the deceased, to contract typhoid
or paratyphoid fever, and it is immaterial which of the two diseases
was contracted.
To the question of whether the death of the employee can be said
to be the result of an accidental injury, the court said:
This question has really, from the evidence in this record, been
practically decided by the decision of this court in Christ v. Pacific
201
W O R K M E N *S COM PENSATION
Mutual Life Ins. Co., 312 111. 525, 144 N. E. 161, in which case this
court decided that typhoid fever may be regarded as accidental if
the disease is contracted by accidental means. In that case, and in
other cases decided by this court, it was held that an accident may
be said to be an unforeseen or unexpected event of which the party*s
own misconduct is not the natural and proximate cause, and that
the result ordinarily and naturally flowing from the conduct of
the party can not be said to be accidental.
W
o r k m e n ’s
C o m p e n s a t io n — A
c c id e n t
— D
is e a s e
— T
y p h o id
& Casualty Co. of New York v.
Industrial Accident Commission of California et a lD istrict Court
of Appeals, First District, Division 1, California (July 20, 1927),
258 Pacific Reporter, page 698.—A l e x a n d e r S. G a r d in e r w a s e m
p l o y e d b y B a l f o u r - G u t h r i e & C o ., o f S a n F r a n c is c o . In J u n e , 1926,
h e w a s s$ n t t o V a lp a r a is o , C h ile , t o r e p r e s e n t th e c o m p a n y at a
n itr a t e c o n fe r e n c e t o b e h e ld a t th a t p o in t . He w a s a ls o in s t r u c t e d
F
e ve r —
P
r o x im a t e
C a u s e — Fidelity
t o v is it v a r io u s c o n c e r n s in S o u t h A m e r i c a w it h w h o m h is e m p lo y e r s
d id b u sin e s s.
He remained in Valparaiso about 10 days, and then visited several
places and ports where nitrate is produced and shipped, and arrived
at Ilia, and later at Arequipa, Peru, where he was taken to a hospital
and died of typhoid fever.
The commission found that Gardiner had sustained an injury aris
ing out of and in the course of his employment, and awarded com
pensation to his widow. The insurance carrier appealed the award,
contending that the disease contracted by Gardiner did not arise out
of nor was it proximately caused by the employment, and at the time
the disease was contracted he was not performing a service for his
employer.
The district court of appeals, in affirming the award of the com
mission, held that the court of appeals was without power to deter
mine the weight of the evidence, and whether the employee who had
contracted a contagious or infectious disease was subjected to an
exposure in excess of that generally experienced was a question of
fact for the industrial accident commission.
W o r k m e n ’s
C o m p e n s a t io n — A c c i d e n t — E m p l o y e e s
I n ju r e d
by
Guiliano v. Daniel OWormelVs Sons,
Supreme Court of Errors of Connecticut (March 5,1927), 136 Atlan
tic Reporter, page 677.— D a n ie l O ’ C o n n e ll’s S o n s w e r e c o n t r a c t o r s
F ir e — S le e p in g
Q u a rters—
e n g a g e d in M e r id e n , C o n n ., in b u il d in g a r o a d .
O n a c c o u n t o f th e
d iffic u lty o f e m p lo y e e s in p r o c u r i n g l o d g i n g , th e e m p lo y e r s r e n t e d
202
DECISIONS OP T H E COURTS
a barn in the vicinity of the job and gave their men the privilege of
sleeping in it as they desired. During the week preceding August 16,
1926, 14 of their 21 employees slept in this barn, the other 7 securing
quarters elsewhere. No charge was made by the employers to those
sleeping in the barn, or for the use of the gas stove which the em
ployers installed in the barn and on which the men were permitted
to cook their meals, and no extra pay was given to men who slept
elsewhere. On Saturday, August 15, the work of 4 of the 14 men
ended at 5.30 p. m. and they were under no obligation to report for
duty until Monday morning. The men were paid by the hour and
had the right to quit work at any time without notice. At 1 o’clock
a. m. on Sunday, August 16, the barn, in which these four men were
sleeping, caught fire. Two were burned to death, and the other two,
Nick Guiliano and Frank D. Stazio, escaped with minor injuries.
The two men who escaped filed a claim for injuries sustained An
award was granted in their favor. The award was set aside by
the supreme court of errors on appeal. The supreme court of errors
said that “ it is beyond controversy that an employee who was re
quired by the terms of his employment, or as incidental to it, to lodge
in quarters furnished by the employer, during such time is; when
not engaged in a service purely for himself, within the course of his
employment. But this general statement does not determine whether
these claimants, while they were sleeping in the barn, were engaged
in doing something so incidental to their employment as to bring
them within the course of their employment. We must go further
and ascertain what acts will be held incidental to their employment
and whether sleeping in this barn could, under the circumstances, be
held to be incidental to their employment.” The real question was
whether the injury occurred within the period of their employment
and whether sleeping in the barn was incidental to their employ
ment. The court pointed out that “ the period of employment covers
the working hours of the employee, and such reasonable time as is
required to pass to and from the employer’s premises in going to
or from work where the employer has, expressly or impliedly, by
his knowledge and conduct or acquiescence, included in the term
of employment the time in going to and from work. When the
employee at the close of his day’s work leaves the premises of his
employer and passes beyond the area which the employer has ex
pressly or impliedly made incidental to his employment, he is no
longer in the course of his employment because his period has
ended.” It could not “ be contended that, after their day’s work
and while absent from their employer’s premises they would, during
this absence, still be in the course of their employment.”
203
w o r k m e n ’s c o m p e n s a tio n
W o r k m e n ’s C o m p e n s a t io n — A c c i d e n t — E x p o s u r e — P n e u m o n i a —
City of Eveleth, Supreme Gourt of Minne
sota {February 17, 1928), 218 Northwestern Reporter, page 126.—
C i t y F ir e m a n —
H ugh
Costly
v.
C o s t ly w a s a m e m b e r o f th e fire d e p a rtm e n t o f th e c ity o f
On th e
E v e le t h , M i n n .
n ig h t o f F e b r u a r y
18,1926,
w h ile in th e p e r
fo r m a n c e o f h is duties* in e x t in g u is h in g a fire, h e su ffered a c h ill
f r o m e x p o s u re a n d s h o r tly t h e r e a fte r d ie d f r o m p n e u m o n ia .
The widow of Costly proceeded under the workmen’s compensa
tion act for the death of her husband. The industrial commission
denied her compensation on the ground that her husband’s death
was not a case under the law, defining an accident as an unexpected
or unforeseen event happening suddenly and violently, and “ pro
ducing at the time injury to the physical structure of the body.”
The widow carried the case to the supreme court of the State and
this court affirmed the order of the industrial commission.
The court based its opinion on a former case and said in part:
In State ex rel. Faribault Woolen Mills Co. v. District Court, 138
Minn. 210, 164 N. W. 810, we held that typhoid fever contracted by
£>n employee within the course of his employment and from a risk
arising therefrom was not compensable. The reason was that there
had been no accident within the statutory definition. The cases are
reviewed and the reasons for the holding gone into at length in that
decision. It is unnecessary to repeat or review them. In the pres
ent case there is no proof of “ injury to the physical structure of the
body ” of the deceased, at the time, as a result of his work at the fire,
as distinguished from the disease which soon followed. So, from
the standpoint of the statutory definition of accident and its exclu
sionary effect upon mere sickness, we are unable to distinguish the
pneumonia present in this case from the typhoid fever for which
compensation was sought in the Faribault Woolen Mills Co. case.
The legislative definition of accident is admittedly difficult of ap
plication in such cases, but that difficulty does not permit us to ignore
it or deny its effect. It is hard to see how it can have any function,
or how we can give such obviously restrictive words their usual
restrictive effect, unless we exclude from compensability such germ
diseases as typhoid and pneumonia where there is no proof of a
sudden and unforeseen event, as a cause, producing at the time
injury to the physical structure of the body.
But such a result, indefensible though it may be in logic, follows
necessarily a requirement such as that expressed in the restrictive
definition of our statute. It requires amendment rather than con
struction to come to a different result, and amendment is not for us.
W
o r k m e n ’s
C o m p e n s a t io n — A
c c id e n t —
I
n t o x ic a t io n as
C ause—
Shearer et al. v. Niagara Falls Power Go., Court of
Appeals of New York (May 10, 1927), 156 Northeastern Reporter,
page 66\—William A. Shearer was employed by the Niagara Falls
P
r e s u m p t io n —
204
DECISIONS OF T H E COURTS
Power Co. He was killed when he fell from a girder, while taking
down a bridge at Niagara Falls, N. Y. His widow claimed compen
sation. It was opposed by the company on the ground that Shearer
at the time of the accident was intoxicated. At a hearing the referee
found that while the employee was intoxicated it was not the sole
cause of the accident. Compensation was therefore awarded the
widow, which was later affirmed by the appellate division. The com
pany appealed. The Court of Appeals of New York, on May 10,
1927, reversed the lower court and dismissed the claim, holding
that the:
Order of appellate division affirming award of the State industrial
board should be reversed upon the ground that the award is not
supported by any evidence. The presumption arising from the pro
visions of section 21, subdivision 4, of the workmen’s compensation
act (Consol. Laws, c. 67), that death did not result solely from
intoxication, has been thoroughly and completely rebutted by the em
ployer. The evidence points unerringly to the fact of intoxication
and to intoxication as the sole cause of the accident.
W o r k m e n ’ s C o m p e n s a t i o n — A c c id e n t — L o s s o f S i g h t — Superior
Goal Go., v. Industrial Commission et. al., Supreme Court of Illinois
(June 22,1927), 158 Northeastern Reporter, page 209.— J o e S c h ie a ll
w a s e m p lo y e d b y th e S u p e r io r C o a l C o . as a m in e r . On D e c e m b e r
24, 1925, w h ile s e t tin g a p r o p in th e m in e , h e s t r u c k th e r o o f w it h
h is s le d g e h a m m e r a n d c a u s e d s o m e s u lp h u r t o f a l l , p a r t o f w h ic h
lo d g e d in h is l e f t e y e .
He
te s tifie d b e f o r e th e a r b it r a t o r t h a t f o u r
d a y s la t e r h is e y e b e c a m e r e d a n d s o r e a n d h e a ft e r w a r d s w e n t t o
h is f a m i l y d o c t o r , a n d th e n t o th e m in e p h y s ic ia n , w h o se n t h im t o
a n e y e s p e c ia lis t.
The eye specialist found a severe ulcer in the eye and put Schieall
in a hospital for five weeks. The eye had then completely healed,
leaving a scar. Was the accidental injury one arising out of and in
the course of his employment? The industrial commission found
that it was and granted Schieall an award.
The coal company appealed to the circuit court, and this court
set aside the award, whereupon Schieall brought the case to the su
preme court of the State. The higher court found that the lower
court had erred, and ordered the judgment reversed and confirmed
the award, saying:
Because of the slight character of the original injury, the plaintiff
in error, not foreseeing the possible consequences, in accordance with
the conduct of an ordinarily prudent man under like circumstances,
ignored any treatment of it at first, other than the removal of the
foreign substance, and only appreciated the possible serious results
205
w o r k m e n ’s c o m p e n s a t io n
of the injury as the condition of the eye gradually developed. That
he acted in this manner is no reason for denying him compensation.
The injury, however, was apparently so slight, and of so frequent
occurrence, that no serious result would ordinarily be anticipated.
I f the conduct of the plaintiff in error was such as a reasonably pru
dent person would adopt in his situation and circumstances, even
though the result of the original injury would have been less harmful
if a different course had been adopted, it was within the province of
the commission to find that the original cause continued to the end
and accomplished the final result, and was therefore the proximate
cause.
W
o r k m e n ’s
C o m p e n s a t io n — A
c c id e n t —
O c c u p a t io n a l D
ise a se —
Maxwell Motor Corporation v . Winter, Su
preme Court of Ohio (May 16, 1928), 163 Northeastern Reporter,
page 198.— M a r io n C. W i n t e r w a s e m p lo y e d b y th e M a x w e ll M o t o r
C o r p o r a t i o n in th e c it y o f D a y t o n , O h io . He w a s e m p lo y e d in th e
A
u t o m o b il e
S ander—
p a in t s h o p o f th e c o m p a n y as a s a n d e r w o r k in g o n a u t o m o b ile b o d ie s .
His
d u tie s w e r e to t o u c h u p a n y i m p e r fe c t io n s in th e a u to m o b ile
b o d ie s a f t e r t h e y h a d r e c e iv e d t h e ir fir s t c o a t o f p a in t .
p lo y m e n t b e g a n o n S e p t e m b e r
21, 1923,
His
em
a n d c o n t in u e d u n t il N o
v e m b e r 2 0 , o f th e sa m e y e a r , w h e n h e b e c a m e il l , a n d h is t r o u b le
w a s d ia g n o s e d as le a d p o is o n in g .
He
a t te m p te d t o r e t u r n t o w o r k
a b o u t a w e e k la te r , b u t w a s u n a b le t o c o n t in u e .
Winter brought an action in the common pleas court of Mont
gomery County, Ohio, on July 3, 1924, against the Maxwell Motor
Corporation, alleging that the motor company was a self-insurer
under the workmen’s compensation act and authorized directly to
compensate employees disabled by occupational disease while in its
employ, and he also charged that the company negligently failed
and refused to comply with the requirements of the General Code
of Ohio for the protection of the employees’ health. The common
pleas court returned a judgment in favor of Winter. The company
appealed the decision to the court of appeals of Montgomery County,
Ohio, where the judgment of the lower court was affirmed. The
Maxwell company thereupon carried the case to the Supreme Court
of Ohio, denying all the allegations set forth by the employee.
The supreme court affirmed the judgment of the lower court. In
the opinion by Judge Day, the court said in part :
The claim of Winter is based upon the right to bring suit for
damages due to the alleged violation of a lawful requirement, as
provided for in section 1465-76, General Code. The legislature, by
the act of April 20, 1921 (109 Ohio Laws, 181), section 1465-68a
et seq., General Code, made provision for compensation for injuries
due to occupational diseases. Lead poisoning is one of those ex
pressly named.
103151°—30------15
206
DECISIONS OF T H E COURTS
Section 1465-68b of the act of 1921 provided that the provisions
of the workmen’s compensation act in sections 1465-44, to and includ
ing section 1465-108, General Code (excepting sec. 1465-90), should
apply to cases of occupational diseases. It therefore follows that
the relief provided for in section 1465-76, General Code, includes
cases based upon occupational diseases, where the injury was du^
to the violation of a lawful requirement.
The legislature, by the occupational disease act, intended to create
and to give to an employee suffering from an occupational disease
certain rights not theretofore existing, to wit, all the rights that an
injured employee had under the workmen’s compensation act, exclu
sive of section 1465-90, General Code. Therefore, section 1465-76
should be read in conjunction with section 1465-68a et seq., as though
it provided “ where a personal injury or disability due to occupa
tional disease is suffered by an employee, etc.,” and, if this language.
“ disability due to occupational disease,” is carried through the sec
tion, it creates for such employee, where disability due to an occupa
tional disease is caused by the violation of a lawful requirement,
the right to either be compensated under the act or to institute pro
ceedings in the courts for his damages on account of such disability
due to occupational disease.
This was the creation of a right not theretofore existing, and the
intent of the legislature to create the same is clear and manifest, in
this, that it is not to be presumed that one individual suffering a
disability from an occupational disease, due to the violation of a
lawful requirement, should receive compensation under the work
men’s compensation act, if he so elects, and another employee in the
same situation be denied the right to recover, because he had exer
cised his lawful rights, under section 1465-76, General Code, to
institute a proceeding in court for his damages on account of his
disability due to occupational disease, occasioned by the violation of
a lawful requirement. We think the legislature never intended such
discrimination, and our conclusion is that, by the occupational disease
act (sec. 1465-68a et seq.), a new right to recover was created.
The supreme court in answering the proposition set forth by the
company that Winter had not been within the State 90 days or more
before the disability arose, said that:
The statute (sec. 1465-68a) provides that such disabled em
ployee must have resided within the State “ for 90 days next pre
ceding the filing of a claim.” Section 1465-72b limits the time
within which claims may be filed with the Industrial Commission of
Ohio, or with the employer, in the event such employer has elected to
pay compensation direct, to the period of four months after the dis
ability due to the disease began, except in such cases as are provided
for in section 1465-82.
This record shows that on November 20, 1923, Winter became
disabled. It is true that at that time ha had no right to file a
claim, because he had not resided in the State for 90 days. How
ever, the 4-month limitation period began to run, and on Decem
ber 21, 1923, he completed his 90-day residence period, and, the
WORKMEN’S COMPENSATION
207
limitation of the four months not having yet expired, he had until
March 20, 1924, either to file his claim or to institute proceedings
in the courts for his damage. I f he elected, however, to bring an
action at law, he had been a resident of the State for more than
90 days at the time the present action was brought, and was within
the general statute of limitations for bringing such action.
As to whether Winter had failed to prove the breaeh of a lawful
requirement the court said as follows:
The sections of the General Code which defendant in error claims
were violated by the motor company are sections 871-15 and 871-16.
It was also pleaded that the safeguards for the safety of the em
ployee engaged in such work were generally known, and were in
general industrial use at the time of the grievances complained of,
and could have been used without materially impairing the efficiency
of plaintiff in error’s manufacturing operations.
As heretofore stated, there is testimony in the record tending to
support these allegations, and our conclusion is that the breach of
a lawful requirement was properly pleaded, and evidence in the
record tending to support such allegations sufficient to sustain the
conclusion of the jury was properly submitted to the jury.
The supreme court therefore held that there was no error preju
dicial to the rights of the company justifying a reversal of the judg
ment, and affirmed the decision of the lower court.
W
orkm en’s
C o m p e n s a t io n — A
c c id e n t —
O c c u p a t io n a l D
is e a s e —
—Seattle Can Co. v. Department of Labor and
Industries of Washington et al., Supreme Court of Washington
(April 8, 1928), 265 Pacific Reporter, page 789.—During the early
part of 1924 three women employed by the Seattle C a n Co., of Seat
tle, Wash., became afflicted with what is known as benzol poisoning.
C la im s were p r e s e n te d to th e D e p a r t m e n t of Labor a n d I n d u s t r ie s
of the State of Washington for compensation. The claims were
rejected by the department on the ground that the conditions com
plained of were not due to any fortuitous event but were in the
nature of an occupational disease. The company appealed from the
decision of the department to the superior court of Kang County,
Wash. The superior court reversed the action of the department.
The department thereupon appealed to the Supreme Court of Wash
ington State. From the facts in the case it appeared that the Seat
tle C a n Co. made some alterations in their factory in the spring of
1924, whereby several openings were closed and as a result of which
ventilation was obstructed in the room in which the benzol was being
used; that because of the fact that benzol did escape into the work
room and was not removed by proper ventilation, the women em
B enzol P
o is o n in g
208
DECISIONS OF T H E COURTS
ployees became affected by the fumes. The main question involved
in the case was whether there was a fortuitous event within the mean
ing of the workmen’s compensation act. Section 7675 of Reming
ton’s Compiled Statutes provides that—
The words “ injury ” or “ injured 55 as used in this act refer only
to an injury resulting from some fortuitous event as distinguished
from the contraction of disease.
The department of labor and industries relied on a previously
decided Washington Supreme Court case, that of Depre v. Pacific
Coast Forge Co. (145 Washington 263, 259 Pac. 720). The supreme
court, however, said that the case was different from the one under
consideration. In that case the court said the claimant was suffer
ing not from an occupational disease but from tuberculosis caused by
the gases and vapors inhaled in his place of employment which made
him susceptible to it, and that his natural resistance to that disease
had been lessened by the hazards of his employment. The claimant
therefore had contracted a disease within the meaning of the work
men’s compensation act, and he was properly excluded from the
benefits of the act.
The State supreme court affirmed the judgment of the superior
court and held that the injuries received by the employees resulted
from a fortuitous event and not from an occupational disease.
Judge Tolman concluded his opinion in the following language:
As we understand it, an occupational disease is one which is due
wholly to causes and conditions which are normal and constantly
present and characteristic of the particular occupation; that is, those
things which science and industry have not yet learned how to elimi
nate. Every worker in every plant of the same industry is alike
constantly exposed to the danger of contracting a particular occu
pational disease. No such condition is shown here. No poisoning
took place in this particular plant until the employer ignorantly or
negligently shut off the ventilation. None has occurred in like plants
situated elsewhere, and when the trouble was located and corrected
no more poisoning took place in this plant. Hence we are forced
to hold that the injuries have resulted from a fortuitous event.
No previous case of our own throws any light upon our present
subject, and outside authorities, because of different statutory provi
sions, are not conclusive. But, as we read the cases from other
States, the great weight of authority tends to support our present
views. [Cases cited.] Some of these cases define occupational dis
ease and differentiate it from accident in harmony with what we
have already said, and the Montana case treats squarely of fortui
tous event, the Montana statute being apparently identical with ours.
All in their reasoning lend support to our views.
w o r k m e n ’s
W
o r k m e n ’s
209
c o m p e n s a t io n
C o m p e n s a t io n — A
c c id e n t
—
O c c u p a t io n a l
D
is
Beaty et al. v. Foundation Go. et al., Su
preme Court of Michigan {December
1928), 222 Northwestern
Reporter, page 77.—Frank O. Beaty was employed as a caisson
worker by the Foundation Co. On September 2, 1927, he was en
gaged on construction work on a building in Detroit, Mich. He left
his place of employment at 4 o’clock in the morning on the above
date and went to his home, where he was taken ill and died shortly
after noon. The symptoms were violent vomiting, loss of vision and
use of his legs. The cause of his death was attributed to caisson
disease, which is occasioned usually by too rapid decompression of
air as the worker comes out of the caisson. The air in the caisson is
compressed to the point where it will resist entry of water, and a
workman can not enter the caisson except through a compartment in
which air is gradually compressed to equal that in the caisson. Upon
leaving the caisson the workman enters the compartment and there
the air is gradually decompressed until it is safe for him to encounter
ordinary atmospheric conditions. The widow of Beaty proceeded
under the workmen’s compensation law, claiming that the death of
her husband was due to the condition of the caisson.
The Department of Labor and Industry of Michigan awarded
compensation to the widow. They found that the packing about
the cable passing through the compartment leaked air and accel
erated decompression to the point of causing the disease and the
employee’s death. The Foundation Co. carried the case to the Su
preme Court of Michigan, contending that there was no accident
and nothing to support the finding of the department of labor and
industry.
The supreme court on December 4, 1928, affirmed the award, and
in the opinion written by Judge Wiest, said in part:
ease —
C a is s o n W
orker—
Where the hoisting rope passed through the lock box there was
packing, and it is claimed that the packing had become worn and
let the air escape from the lock box, and this caused too rapid decom
pression. I f such was the case, and that caused the death of Mr.
Beaty, then compensation was properly awarded. Upon this ques
tion we do not weigh the evidence, but only ascertain whether there
was any evidence supporting the finding.
The death of Mr. Beaty was caused by caisson disease, but that
fact alone does not fix liability, for such disease may, under some
circumstances, be no more than an occupational resultant, and it
must be more than that in order to authorize compensation; it must
have been occasioned by an accident, that is, by a fortuitous circum
stance, preventable and not prevented. Caisson sickness may under
some circumstances be classed as an occupational disease, and under
other circumstances be classed as an accident. Caisson workers do
210
DECISIONS OF T H E COURTS
sometimes have the sickness under ordinary conditions and modern
protective methods, and when it so happens it is occupational. But
when it is caused by a fixed and single fortuitous and preventable
circumstance it is not an occupational disease but an accident within
the meaning of the workmen’s compensation law.
The evidence supports the finding of the board that worn pack
ing about the rope let the air escape too rapidly from the lock box,
and the sudden decompression occasioned thereby caused Mr. Beaty
to have an acute attack of caisson sickness, from which he died.
W
o r k m e n ’s
C o m p e n s a t io n — A
c c id e n t —
O c c u p a t io n a l D
is e a s e —
Kosik v. Manchester Const. Co. et al., Supreme
Court of Errors of Connecticut (April 11, 1927), 186 Atlantic Re
porter, page 870.— J o h n K o s ik w a s e m p lo y e d b y th e M a n c h e s t e r C o n
s t r u c t io n C o . o f C o n n e c t ic u t. O n th e m o r n in g o f J u l y 1, 1926, h e
Cement H
a n d l in g —
w a s e n g a g e d in h a n d lin g ce m e n t o n a jo b in M a n c h e s t e r , C o n n .
On
th e a f t e r n o o n o f th a t d a y h e w a s t r a n s fe r r e d t o th e w o r k o f d i g g i n g
a c e lla r a n d c le a r in g la n d at a n o th e r p o in t.
O n th e e v e n in g o f th e s e c
o n d d a y he b e g a n t o fe e l a n it c h on h is h a n d s a n d a r m s a n d a b o u t
h is fa c e , a n d la te r c o n s u lte d a d e r m a t o lo g is t , w h o d ia g n o s e d th e ca se
as p o is o n i v y d e r m a titis .
O n J u l y 12 K o s i k m a d e a c la im f o r c o m
p e n s a tio n f o r d e r m a titis f r o m p o is o n iv y .
o n J u ly
28.
T h is c la im w a s d is m is s e d
S e v e r a l m o n th s la te r , o n O c t o b e r
16, 1926,
K o s ik c o n
s u lt e d a n o th e r d e r m a t o lo g is t w h o e x a m in e d th e e m p lo y e e a n d c o n
c lu d e d th a t it w a s r e a s o n a b ly p r o b a b le th a t th e d e r m a titis w a s d u e to
h a n d lin g c e m e n t a n d n o t to p o is o n iv y .
T h e e m p lo y e e h a d o n t w o
p r e v io u s o c c a s io n s s u ffe r e d f r o m a d e r m a titis , d ia g n o s e d as a c e m e n t
p o is o n in g .
T h e c o m m is s io n e r c o n c lu d e d a n d f o u n d t h a t t h e d e r m a
t it is w a s d u e t o th e e m p lo y e e ’s h a n d lin g o f c e m e n t in th e c o u r s e o f
h is e m p lo y m e n t in M a n c h e s t e r a n d a w a r d e d c o m p e n s a tio n .
A n ap
p e a l w a s ta k e n t o th e s u p e r io r c o u r t b y th e c o m p a n y , a n d th e a w a r d
w as reversed.
T h e e m p lo y e e t h e r e u p o n a p p e a le d t o th e S u p r e m e
C ou rt o f E rrors o f
handed
C o n n e c t ic u t , w h ic h
d o w n an o p in io n
c o u r t set a s id e .
co u rt on
A p r il
o r d e r i n g th e ju d g m e n t o f
th e
11, 1927,
s u p e r io r
T h e cou rt s a id :
Except the history of the claimant as to prior attacks, as to which
there appears to be no dispute, the finding of the material fact, the
cause of the dermatitis, both as made by the commissioner and as
corrected on appeal, depends mainly upon the conflicting evidence
of the two physicians. The credibility and weight of their testimony
was, of course, for the commissioner to determine, and if the evidence
of either medical witness, if accepted, was definite enough to justify
the conclusion by the commissioner as to the cause of the condition,
the superior court may not substitute therefor its differing judgment
of the preponderance of evidence and its consequences.
w o r k m e n ’s
c o m p e n s a t io n
211
When the trier “ has nothing to rely upon but the opinion of a
medical witness who is unable with all of his professional learning
and experience to reach the definite conclusion which the court is
required to reach ” in making an award, such conclusion is open to
successful attack. But our examination of the testimony of the phy
sician called by the claimant convinces us that, while conservatively
expressed, when considered in its entirety, it merits the construction
given it by the commissioner, and amounts to expression of an opin
ion that, at least, it was reasonably probable that the claimant’s
condition was due to contact with cement and therefore occupational
in its cause. This being so, the finding and award must stand, al
though the superior court might reasonably have reached the oppo
site conclusion which it did, upon the same conflicting evidence.
Workmen’s Compensation— Accident— Occupational Disease—
Grinder— Inhaling Foreign Matter— Cishowski v. Clayton Manu
facturing Co. et al., Supreme Court of Errors of Connecticut (March
5 , 1927), 1S6 Atlantic Reporter, page 472.— Stephen Cishowski came
to the United States from Poland in 1913 in good health and entered
the employ of the Clayton Manufacturing Co. as a grinder. His
work consisted of grinding cast-steel scissors, which were held
against a revolving wheel, either of wood or leather with an emery
rim, or of solid carborundum. Cishowski sat near this wheel, which
revolved at high speed and pressed the scissors against it. The re
sult was that particles of emery, carborundum, and steel were thrown
into the air, chiefly in the form of dust. Carborundum and emery
contain silica, which is not soluble in lung moisture. There was a
blower system, but it was inadequate to carry off all the dust and
some was thrown upon Cishowski, entering his eyes, ears, nose, and
mouth, and found lodgment in his lungs. As a consequence of the
employment Cishowski inhaled large quantities of dust. This dust
had an injurious effect on his lungs, as each particle caused a slight
wound which, upon healing, left scarred tissue, causing a contrac
tion, lessening the capacity of the lungs for inhalation and otherwise
interfering with their normal operation and natural capacity to
resist disease. This produced pneumoconiosis, a disease not conta
gious, communicable, or mutual in its nature. The disease thus pro
duced broke down the normal resistance of the lungs and tubercu
losis set in as a direct result of the inability to resist the tubercle
bacilli. By reason of the conditions indicated, Cishowski fell ill
in September, 1925. The compensation commissioner held that
Cishowski was totally disabled for any kind of work since May 15,
1926, and that the disabilities made will continue indefinitely. An
212
DECISIONS OF T H E COURTS
award was made in favor of Cishowski. The case was taken on ap
peal to the supreme court of errors. That court affirmed the award
of the commissioner, saying that the injury occurred when the pneu
moconiosis took place, and that the injury arose in the course of and
out of the employment.
W
o r k m e n ’s
C o m p e n s a t io n — A
c c id e n t —
O c c u p a t io n a l D
is e a s e —
Romaniec v. Collins Co. et oil., Su
preme Court of Errors of Connecticut (December 12, 1927), 139
Atlantic Reporter, page 503.— A n t o n R o m a n ie c w a s e m p lo y e d as a
g r in d e r f o r th e C o l lin s C o .
He e n te r e d t h e e m p lo y o f t h e c o m
p a n y a b o u t 1908 as a w e t g r in d e r a n d c o n t in u e d u n t il 1919, w h e n
G r in d e r — P
n e u m o c o n io s is —
h e b e g a n t o h a v e p a in s in h is c h e s t, a n d th e c a se w a s d ia g n o s e d as
p n e u m o c o n io s is
or
a d isea se c a u s e d
fr o m
th e in h a lin g
m a tt e r , s u c h as p a r t ic le s f r o m a g r in d s t o n e o r ste e l.
v ic e o f h is p h y s ic ia n , R o m a n ie c r e tu r n e d t o P o la n d
in fa r m i n g f o r a b o u t f o u r y e a r s .
In
F ebru ary,
of
g r it ty
U p o n th e a d
1923,
and en gaged
h e r e e n te r e d
th e e m p lo y o f th e C o llin s C o . as a w e t g r in d e r , a n d c o n t in u e d u n t il
J u ly ,
1925,
w h e n h e w a s c o m p le t e ly d is a b le d f r o m
p le u r is y , w h i c h
w^as d u e t o th e p n e u m o c o n io s is .
Romaniec proceeded under the workmen’s compensation act, alleg
ing the disease contracted ayose out of the employment. An award
of compensation was given him by the commissioner of compensa
tion for the first district. This award was later confirmed by the
superior court of Hartford County, Conn.
The company then appealed to the Supreme Court of Errors of
Connecticut, basing their contention on the statute, chapter 306,
section 1, Acts of 1921, which provided in part as follows:
In any case of aggravation of a disease existing prior to such
injury, compensation shall be allowed only for such proportion of
the disability due to the aggravation of such prior disease as may
reasonably be attributed to the injury.
The supreme court of errors held that there was no error in the
opinion of the lower court, and relative to the interpretation of
the statute said in part:
We are of the opinion that this provision of the statute was not
intended to include, and does not include, a case such as that here
presented. Its purpose was to provide for the injury or disease
which was contracted outside the industry or business which subse
quently aggravated the prior injury or disease. It was not intended
to include the injury or disease which was contracted, developed,
and aggravated by one industry or business under employment by
the same employer, in one continuous employment or in successive
employments, as in the case of the claimant. The pneumoconiosis
from which the claimant suffered was contracted in defendant’s
W ORKM EN ’s
213
c o m p e n s a t io n
f a c t o r y ; a n d a f t e r a n a b se n ce f r o m w o r k , u p o n h is p h y s ic ia n ’s
a d v ic e , o f f o u r y e a r s , in a t t e m p t in g t o e ffe c t a c u r e , u p o n h is r e
e n t e r in g d e f e n d a n t ’s e m p lo y m e n t th e d is e a s e p r o g r e s s e d u n t il c la im
a n t s u ffe r e d a c o m p e n s a b le i n j u r y w h ic h la te r d e v e lo p e d in t o an
i n j u r y c a u s in g t o t a l d is a b ilit y .
W o r k m e n ’s C o m p e n s a t io n — A c c i d e n t — O c c u p a t i o n a l D is e a s e —
L e a d P o i s o n i n g —Kostsier v.
igan (January
Cargill Go., Supreme Gourt of Michpage 51.— W i l
3, 1928), 217 Northwestern Reporter,
la r d K o s t s ie r w a s e m p lo y e d b y th e C a r g i l l C o ., o f G r a n d R a p id s ,
M ic h .
The
c o m p a n y w a s e n g a g e d in th e p r in t in g , e n g r a v in g , a n d
b i n d i n g b u sin ess.
Kostier,
w h e n h e e n te r e d th e e m p lo y o f t h e c o m
p a n y , w a s a h e lp e r in th e c o m p o s in g r o o m .
L a t e r , w h e n h e h a d a t
ta in e d h is m a jo r it y , h e d e s ir e d t o le a r n t o o p e r a t e th e m o n o t y p e
ca ste rs a n d w a s g iv e n in s t r u c t io n s .
c a s te rs in a s e p a r a te r o o m .
These
The
co m p a n y h ad tw o m o n o ty p e
c a ste rs c a s t th e t y p e f r o m m o lte n
m e t a l, th e c o m p o s it io n o f w h ic h c o n t a in s a b o u t
75
p e r c e n t le a d .
K o s t s ie r w a s e n g a g e d o n t h is w o r k f o r n e a r ly a y e a r a n d a h a l f , w h e n
h e w a s ta k e n s e r io u s ly i l l a n d w a s f o r c e d t o g iv e u p h is w o r k .
Kostsier brought an action against the Cargill Co. in the Superior
Court of Grand Rapids, alleging that he was suffering with nephri
tis, commonly called Bright’s disease; caused from lead poisoning.
He claimed that inasmuch as an occupational disease does not come
within the purview of the workmen’s compensation act, he may in
stitute an action at common law for negligence of the company re
sulting in his contracting the occupational disease.
The superior court awarded a judgment in favor of Kostsier, and
thereupon the company appealed to the supreme court of the State.
The contention of the company was that (1) a common-law action
for an occupational disease could not be maintained; (2) that no
negligence on the part of the company was shown; and (3) that
Kostsier was guilty of contributory negligence which prohibited his
recovery.
The Supreme Court of Michigan reversed the lower court, the
opinion being written by Judge Fellows, who said in part as follows:
We are not here dealing with the failure to discharge a statutory
duty. Before the master at common law can be called upon to
account to the servant in this class of cases, it must be established that
he has a duty to perform, and that he had failed to discharge that
duty. He is not an insurer, and the right to recover must be predi
cated on his negligence. To say that he is negligent is to say that he
has done that which a reasonably careful man should not have done,
or that he has failed to do that which a reasonably careful man
should have done.
214
DECISIONS OF T H E COURTS
In the instant case, and upon this record, no monotype operator
had ever contracted lead poisoning until the plaintiff did. It was
an exceptional case. Under the circumstances, a reasonably careful
employer, proceeding with reasonable caution, would not ordinarily
have foreseen and anticipated it. Defendant was bound by those
things it knew, or, in the exercise of reasonable care, it should have
foreseen and anticipated, but its duty did not extend beyond that.
It was not bound to construct and operate its plant so as to insure
against dangers of which it had no knowledge, and which a reason
ably careful man exercising reasonable care would not foresee and
anticipate, nor would he be bound to warn employees of such
dangers. We conclude that no negligence of defendant is estab
lished on this record.
W o r k m e n ’ s C o m p e n s a t io n — A c c i d e n t — O c c u p a t i o n a l D i s e a s e —
L e a t h e r P o i s o n i n g . —Dillingham's
Case, Supreme Judicial Court of
Maine (August 20,1928), lJf2 Atlantic Reporter, page 865.—Bernard
H. Dillingham was employed in the shoe factory of Rowan & Moore
(Inc.), of Skowhegan, Me. His duties consisted of pulling tacks
from the soles of shoes. He began work on September 13, 1927, and
continued until the 20th of the same month, when he quit work in
order that he might have medical care for his hands, which had
broken out in blotches and were sore. Dillingham proceeded under
the workmen’s compensation act, alleging that he had been “ poisoned
by leather ” during the course of his employment.
An award was made in favor of Dillingham, and the shoe com
pany appealed to the Supreme Judicial Court of Maine. The com
pany denied the allegations of Dillingham.
The State supreme court sustained the appeal of the company and
ordered a reversal of the decree of the lower court. After citing
section 11 of the compensation act providing, “ I f an employee
* * * receives a personal injury by accident, * * * he shall
be paid compensation,” the court continued as follows:
Accident has been defined, in cases under the act, as an unusual,
undesigned, unexpected, and sudden event resulting in injury.
Disease, to be compensable, must be interpreted both as an “ injury ”
and an “ accident.” An occupational or industrial disease is one nor
mally peculiar to and gradually caused by the occupation in which
the afflicted employee is or was regularly engaged, and to which every
one similarly working in the same industry is alike constantly ex
posed. It is not unlikely that the occupational disease this claimant
had resulted from the continued chemical action of some poison,
which produced the abnormal condition of his hands.
Without examining all the decided cases in States where the
workmen’s compensation enactments are in similarity to our own,
apparently the weight of authority is to the effect that cases of
occupational or industrial poisoning can not be regarded as acci
w o r k m e n ’s
215
COMPENSATION
dents within the meaning of statutes which provide for money
payments to workmen for injuries caused by accident arising out of
and in the course of their employment.
It is the conclusion of this court that, as disability caused by per
sonal injury by accident arising out of and in the course of his em
ployment is a statutory prerequisite for the payment of compensation
to an injured employee, this claimant’s injury, from what in a like
situation some judge phrased the insensible progress of occupational
disease, was not as matter of law received by accident.
The degree of the lower court was therefore reversed.
W
o r k m e n ’s
C o m p e n s a t io n — A
c c id e n t —
O
c c u p a t io n a l
D
is e a s e —
Fish
man Hat Co. (Inc.) v. Rosen et al., Supreme Court of New Jersey
(June 22,1928), 11$ Atlantic Reporter, page 559.—Jacob Rosen was
employed by the A. Fishman Hat Co. (Inc.) He contracted mercury
poisoning during his employment with the hat company. He pro
ceeded under the workmen’s compensation act for compensation for
disability resulting from the poison. The compensation bureau
awarded him compensation. The hat company appealed to the Es
sex common pleas court, where the order of the compensation bureau
was affirmed. The case was thereupon carried to the Supreme Court
of New Jersey. The company assigned six reasons for a reversal
of the order. The supreme court affirmed the lower court, and in
disposing of the objections raised by the appeal the court said in part
as follows:
M
ercu ry
P o i s o n i n g — C o n s t i t u t i o n a l i t y —J u r is d ic t io n —A .
The first reason for reversal is that the supplement to the original
compensation act of 1911 (c. 95, P. L. 1924, c. 124), is unconstitu
tional, because the original act applies to accidents only, and the
supplement of 1924 applies to occupational diseases without change
or amendment of the title of the act.
We find this to be without legal substance or merit.
The original act, by its title, related to “ injuries,” not “ accidents.”
Injuries, we think, is sufficiently broad to cover disability from both
accident as well as occupational disease. The cases cited by prose
cutor are not applicable because either their titles or context limit
the recovery to injury through accident.
The second reason is that the act of 1924, supra, is unconstitu
tional, because it attempts to amend the original act of 1911, supra,
without reciting in full the sections attempted to be amended.
But this is not so. The act of 1924 is not an amendment of any
part of the original act, but by its title and context is in fact a sup
plement thereto, adding a right of recovery for occupational diseases.
The fourth reason is that the petition charges an “ accident,” and
the allowance was for an occupational disease. The answer is that
these proceedings are informal and such misstatement is cured by the
answer filed by the prosecutor and by the fact that the cause was
heard by the deputy commissioner and by the common pleas court
upon the theory of disability caused by occupational disease.
216
DECISIONS OF T H E COURTS
The fifth reason is that there was no evidence upon which to base a
finding that the disease grew out of and arose in the course of em
ployment.
We find, however, that there was such evidence. The prosecutor
argues that it did not use lead or mercury in its factory, but there
was proof that a large percentage of the stock from which it man
ufactured hats required the use of mercury or quicksilver in their
production and preparation.
The proofs show that there was notice from the examining phy
sician which in our judgment was sufficient to satisfy the require
ments of the statute.
W
o r k m e n ’s
C o m p e n s a t io n — A
c c id e n t —
O c c u p a t io n a l D
is e a s e —
—Turner v. Virginia Fireworks Go. et al.,
Supreme Court of Appeals of Virginia {January 19, 1928), 11^1
Southeastern Reporter, page 11$.—Malinda Turner, a girl 18 years
of age, was employed in the plant of the Virginia Fireworks
Co. (Inc.), at Petersburg, Va. It was her duty to handle white
phosphorus used in the manufacture of fireworks, while so employed
she suffered a toothache, and in rubbing the tooth with her finger
conveyed the phosphorus poisoning to her mouth.
She proceeded under the workmen’s compensation act for com
pensation, claiming that the poisoning was the result of her employ
ment in the handling of phosphorus. The Industrial Commission
of Virginia denied her compensation on the ground that although
the condition of the employee was brought about as a direct result
of her employment, it can not be proved that she sustained an acci
dent within the meaning of the Virginia workmen’s compensation
act (Acts of 1918, ch. 400), which explicitly excludes occupational
diseases.
The case was carried to the Supreme Court of Appeals of Virginia
by the employee. The court in its opinion relied on a previously
decided Virginia case, that of Fultz v. Virginia Fireworks Co.
In affirming the judgment of the industrial commission, the court
of appeals in an opinion by Judge West said in part:
P
h osph oru s
P
o is o n in g
It clearly appears from the facts certified by the commission that
the injury to the plaintiff arose out of and in the course of her em
ployment. But this is not alone sufficient to entitle her to compen
sation. The injury must be an injury resulting from an accident.
Section 2 (d) of the act provides:
“ Injury ” and “ personal injury ” shall mean only injury by acci
dent arising out of and in the course of the employment and shall
not include a disease in any form, except where it results naturally
and unavoidably from the accident.
w o r k m e n ’s
217
COM PENSATION
The commission certifies that the facts in the instant case are
identical with the facts in the Roxana Fultz case, supra. In each
case claimant was exposed to white phosphorus fumes and was
suffering from phosphorus poisoning. Except where the poisoning
results naturally and unavoidably from an accident, the disease
should be classed as an occupational disease, found among those
who are required to handle white phosphorus, for which compen
sation can not be allowed.
I f claimant’s injuries were the natural and unavoidable result of
an accident, she should be allowed compensation; but if they resulted
from an occupational disease, without an accident, there can be no
recovery. Since the disease may have resulted from either of the two
causes, for one of which the employer is liable and for the other of
which he is not liable, the burden was on the claimant to show that
the injuries resulted from the former.
Where damages are claimed for injuries which may have resulted
from one of two causes, for one of which the defendant is responsible
and for the other of which he is not responsible, the plaintiff must
fail if his evidence does not show that the damages are produced
by the former cause. And he must also fail if it is just as probable
that the damages were caused by the one as by the other, since the
plaintiff is bound to make out his case by a preponderance of evi
dence. (Honaker v. Whitley, 124 Va. 206, 97 S. E. 811.)
It is not sufficient that the employee contract an occupational dis
ease which arises out of and in the course of his employment, but the
disease must result naturally and unavoidably from an accident;
otherwise the employee can not demand compensation. (Clinchfield
Carbocoal Corp. v. Kiser, 139 Va. 451, 124 S. E. 271.)
There being no proof that the injury to the claimant resulted
naturally and unavoidably from the rubbing of the phosphorus upon
her tooth, the judgment of the commission will be affirmed.
W o r k m e n ’ s C o m p e n s a t i o n — A c c id e n t — O c c u p a t i o n a l D ise a s e —
C o n s u m p t i o n — Ewers v. Buckeye Clay Pot Go., Court of
Appeals of Ohio, Lucas County (March 19, 1928), 163 Northeastern
Reporter, page 577.— C h a u n c e y E w e r s w a s e m p lo y e d b y th e B u c k e y e
C l a y P o t C o . o f O h i o . F o r 13 y e a r s h e w a s e m p lo y e d i n th e m a n u
P
otters’
fa c t u r e o f p o t t e r y , d u r i n g w h ic h tim e h e c o n t r a c t e d n o n t u b e r c u la r
fib r o s is o f th e lu n g s , c a u s e d b y in h a lin g d u s t p r o d u c e d f r o m th e c l a y
a n d o t h e r in g r e d ie n t s u s e d in th e c o m p a n y ’s p r o d u c t .
18, 1925,
O n M arch
E w e r s d ie d a n d h is w id o w file d a c la im f o r c o m p e n s a t io n
w it h th e I n d u s t r ia l C o m m is s io n o f O h i o f o r in ju r i e s r e c e iv e d b y
a c c id e n t i n th e c o u r s e o f h is e m p lo y m e n t , w h ic h c a u s e d h is d e a th .
This
c la im w a s d is a llo w e d b y th e c o m m is s io n , a n d th e w i d o w th e n
file d a c la im
f o r c o m p e n s a t io n o n t h e g r o u n d t h a t th e d e a th o f
E w ers w as cau sed b y
a n o c c u p a t io n a l d isea se c o n t r a c t e d b y
w h ile a n e m p lo y e e o f t h e p o t t e r y c o m p a n y .
h im
T h i s s e c o n d c la im w a s
218
DECISIONS OF T H E COURTS
also rejected by the commission on the ground that the disease con
tracted by the deceased was not among those mentioned in the code
as compensable.
An appeal from the decision of the commission was taken by the
widow to the court of common pleas, where a judgment was given
to the widow. Upon an appeal by the company the judgment of the
lower court was reversed by the court of appeals upon the ground
that death resulted from an occupational disease not compensable. A
final judgment was entered in favor of the industrial commission,
which the supreme court of the State declined to disturb.
The widow now brought an action against the company to recover
damages, alleging negligence on the part of the company. The
court of appeals of Ohio on March 19, 1928, affirmed the judgment
of the court of common pleas and, speaking through Judge Lloyd,
said in part as follows:
That the disease contracted by decedent was an occupational dis
ease and not one included among those enumerated in section
1465-68a, General Code, was finally adjudicated on the appeal from
the finding of the industrial commission herein above referred to,
and also clearly appears in plaintiff’s second amended petition.
That no recovery could be had at common law for an injury to
or death of an employee due to an occupational disease was decided
by the Supreme Court of Ohio in Zajachuck v. Willard Storage Bat
tery Co. (106 Ohio St. 538, 140 N. E. 405), and in Industrial Com
mission of Ohio v . Monroe (111 Ohio St. 812, 146 N. E. 213).
Since section 35, Art. II, of the constitution, and the legislation
enacted conformably thereto, provide, with certain exceptions not
here involved, that employers complying therewith shall not be held
to respond in damages at common law or be sued for injury or death
of any employee, and since the death of Ewers resulted from an
occupational disease, which, although not one compensable under
the workmen’s compensation law, is nevertheless not an injury for
which an action at law can be maintained, it is obvious that the judg
ment of the court of common pleas must be and accordingly is
affirmed.
W
o rkm en ’s
C o m p e n s a t io n — A
c c id e n t —
O c c u p a t io n a l D
is e a s e —
Gilliam v. Mid-Continent Petroleum
Corporation, Supreme Court of Oklahoma (February 7, 1928), 268
Pacific Reporter, page 1085.— H . J. G illi a m w a s e m p lo y e d b y th e
M id - C o n t in e n t P e t r o le u m C o r p o r a t io n . O n J a n u a r y 1, 1927, w h ile
S u l p h u r ic A
c id
P
o is o n in g —
e n g a g e d a t h is e m p lo y m e n t , h e s u s t a in e d a n i n j u r y b y in h a lin g s u l
p h u r ic a c id fu m e s .
The
i n j u r y a r o se o u t o f a n d in t h e c o u r s e o f th e
e m p lo y m e n t w it h in th e m e a n in g o f th e O k la h o m a w o r k m e n ’s c o m
p e n s a tio n la w .
Gilliam filed his notice of injury and claim with the State indus
trial commission. The commission found that he had sustained an
w o r k m e n ’s
c o m p e n s a t io n
219
injury and allowed compensation from January 1, 1927, to Febru
ary 27,1927, only. Gilliam, therefore, appealed the award, contend
ing that the commission was in error by holding that his disability
ceased on February 27, 1927. It was Gilliam’s contention that the
commission should have allowed him in addition partial disability
from February 27, 1927, until the time of the hearing, and for such
additional time as there was evidence of any disability. The Su
preme Court of Oklahoma, however, held that the award and judg
ment of the industrial commission should be affirmed, the court say
ing that—
By expressed statutory law of this State, as confirmed by the
numerous decisions of this court, the rule is well established that we
can not weigh the testimony in this case with a view of determining
what finding and judgment the commission should have made and
entered, but that the award of the industrial commission must be
upheld if there is any evidence reasonably tending to support it.
A careful examination of the testimony in this case leads us to
the conclusion that there is evidence to show that complainant was
able to return to work on February 27,1927. And there is also testi
mony showing that if the complainant was suffering from any con
dition after 1 ebruary 27, which prevented his return to work, that
this condition was not the result of the injury complained of, but
was caused by an earlier tubercular involvement. Under either of
the foregoing conditions the complainant would not be entitled to
further compensation.
The testimony is conflicting, but there is evidence reasonably sup
porting the finding and award of the commission.
W
o r k m e n ’s
C o m p e n s a t io n — A
c c id e n t —
O c c u p a t io n a l D
ise a s e —
Depre v. Pacific Coast
Forge Co., Supreme Court of ’Washington ( October 4, 1927), 259
Pacific Reporter, page 720.—Andrew Depre was employed by the
Pacific Coast Forge Co., for a period of about two years, in a room
where there was a tank into which was poured daily a large quantity
of sulphuric and muriatic acid. He brought an action for damages
claiming that his lungs had become affected by the release of vapors
and gases in the room, as a result of which he contracted tuberculosis,
rendering him permanently incapacitated. He also charged the com
pany with negligence in failing to provide the workroom with
sufficient ventilation, although the company promised to provide it.
The case was dismissed in the superior court of the State, and
Depre then carried the case to the State supreme court.
The company contended that the workmen’s compensation act was
a complete defense to the action and that Depre was entitled to com
S u l p h u r ic A
c id
P o is o n in g — T
u b e r c u l o s is —
220
DECISION’S OF T H E COURTS
pensation from the State. The higher court dismissed this conten
tion, however, saying:
The workmen’s compensation act has been in existence some 16
years, and in all the numerous cases brought to this court this is
the first time it has been contended that a disability such as appellant
suffered came under its provisions. It is also a matter of common
knowledge, of which we will take judicial notice, that the commission
empowered with the duty of administering the act has never recog
nized such cases as within the purview of the legislative enactment.
There has been 110 change in the provisions as to such cases during
that time, and it must therefore be logically assumed that its admin
istration has been in accord with the intent of that body.
These recited facts indicate very strongly that the present action is
not one that comes within the purview’ of the workmen’s compensa
tion act.
In construing the act the court cited the interpretation of the
word “ injury” as follows: 44The words ‘ injury’ or ‘ injured’ as
used in this act refer only to an injury resulting from some for
tuitous event as distinguished from the contraction of disease.” In
the case of Zappala v. Industrial Insurance Commission (82 Wash.
314, 144 Pac. 54), the court had occasion to interpret the phrase
44fortuitous event.”
Continuing the court stated that—
In every case in which it has been necessary for this court to deter
mine if there had been an injury resulting from a fortuitous event
there has been a sudden happening which immediately and directly
caused bodily harm. An investigation of the act discloses that in
most of the sections the injury sought to be compensated for is
referred to as an 44accident.”
The supreme court therefore reversed the judgment of the lower
court, holding that lessened resistance to tuberculosis caused by
working in a room containing gases and vapors from acids was not
within the workmen’s compensation act in view of the statute defini
tion of injury, since 44fortuitous event ” and 44accident ” as used in
the act are synonymous, and that there must be an unexpected or
sudden happening referable to definite time, place, and cause to
justify compensation.
W o r k m e n ’s C o m p e n s a t io n — A c c i d e n t — O c c u p a t i o n a l D is e a s e —
A. D. Thomson &Go. v. Jepson et al.,
Supreme Court of Wisconsin (January 10, 1928), 217 Northwestern
Reporter, page 327.— J o h n J e p s o n e n te r e d th e e m p lo y o f A. D.
T h o m s o n & C o . o n S e p te m b e r 10, 1924. He r e m a in e d in th e e m p lo y
o f th e c o m p a n y u n t il D e c e m b e r 3, 1924. J e p s o n c la im e d t h a t d u r
W h e a t D u s t — T u b e r c u lo s is —
in g s u c h e m p lo y m e n t h e c o n t r a c t e d t u b e r c u lo s is o w in g t o th e g r e a t
w o r k m e n ’s
221
c o m p e n s a t io n
amount of wheat dust he was working in while in the employ of
Thomson & Co. Jepson filed a claim for compensation with the in
dustrial commission. The industrial commission made a finding that
Jepson contracted tuberculosis from hazards growing out of and inci
dental to the employment. The commission also found that although
Jepson had failed to serve written notice on the company relative to
his disability according to the statute, yet the company did not suffer
a prejudice thereby.
The company brought an action in the circuit court of Dane
County, Wis., against Jepson and the industrial commission to test
the correctness of the commission’s findings. The circuit court af
firmed the award of the commission, and an appeal was taken by
the company to the Supreme Court of Wisconsin. The supreme
court affirmed the judgment of the lower court. In the course of the
opinion, the court said in part as follows:
Where, as here, there is a difference of opinion between experts as
to the cause of the sickness, it is for the industrial commission to
make a finding as to such contested matter, and unless such finding
is clearly against all the credible testimony, or so inherently unrea
sonable in itself as not to be entitled to any weight, the conclusion
arrived at by the commission is final. We fail to see that the find
ings made by the commission, sustained as it is by the trial court, is
not conclusive upon us. Where, as here, we have a finding of fact
or conclusion from undisputed testimony not so unreasonable in
itself as to be disregarded, we are concluded by the result arrived
at by the commission. We therefore conclude that the finding that
tuberculosis in this case was caused by the nature of the employment
and during the term of the employment is sustained by sufficient
evidence.
It is conceded that the employee failed to give the statutory no
tice. There is no evidence in the record to show that the employer
was in any way prejudiced thereby. The burden rests upon the
employer, in case there has been a failure to give notice, to show
that he has been prejudiced. In the absence of such proof the failure
to give notice is immaterial.
W
o r k m en ’s
C o m p e n s a t io n — A
c c id e n t —
O c c u p a t io n a l D
ise a se —
Pearson v . Armstrong Cork Co., Su
preme Court of New Jersey (October 25, 1928), 11$ Atlantic Re
porter, page $ .— T h e S u p r e m e C o u r t o f N e w J e r s e y r e fu s e d to
W
ood
A
lcohol
P
o is o n in g —
41
d is t u r b th e c o n c lu s io n r e a c h e d b y th e N e w J e r s e y W o r k m e n ’s C o m
p e n s a t io n B u r e a u a n d t h e c o u r t o f c o m m o n p le a s in a c a se w h e r e
a n e m p lo y e e , W i l l i a m H . P e a r s o n , d ie d as a r e s u lt o f w o o d - a lc o h o l
p o is o n i n g r e c e iv e d in th e c o u r s e o f h is e m p lo y m e n t .
e m p lo y e e w a s e n g a g e d in th e g r i n d i n g o f g u m
103151°—30----- 16
T h e deceased
a n d m ix in g w o o d
222
DECISIONS OF TH E COURTS
alcohol and denatured alcohol with it. The room in which he
worked at times was permeated with alcoholic fumes. The deputy
commisioner of New Jersey, before whom the matter was heard,
found:
That the said William H. Pearson, deceased, did so contract
wood-alcohol poisoning in the course of his employment with the
Armstrong Cork Co., the above-named respondent, and also that
the deceased employee, William H. Pearson, died from endocarditis
caused by wood-alcohol poisoning occupationally contracted.
From this award the case was appealed to the court of common
pleas of Camden County and affirmed. The New Jersey Supreme
Court was then asked to review the judgment of the lower court.
In the court of common pleas several doctors testified that, in their
opinion—
The physical condition preceding his death was caused or con
tributed to by some poisoning, and they concluded that it was wood
alcohol, because the decedent was employed in the use of it, and
they were satisfied that the poison which entered the body came
from external conditions and was not due to any natural causes.
The company called a physician experienced in chemistry, who
held an opposite opinion.
The Supreme Court of New Jersey was of the opinion that the
testimony of the doctors was of such a character as to leave the
question as to the exact cause and origin of death under the circum
stances to the judgment of the workmen’s compensation bureau and
that of the county court. The supreme court in rendering the
opinion said:
We have reviewed the testimony of the witnesses in favor of the
prosecutor and in favor of the defendant, and we are inclined to
agree with the opinion of the court of common pleas that the facts
and circumstances of the case are strongly in support of the con
clusion that the toxemia existing was the result of external woodalcohol poisoning, or the absorption by the deceased of such irritant
poisoning, and that death was caused or accelerated by said poisons
taken into his system during the course of his employment by re
spondent.
Where two independent and distinct tribunals such as these have
examined the facts and heard the testimony, we do not think that
a conclusion so reached should be lightly disturbed by this court
upon a mere inspection of the written word, where there is ample
support in the testimony for the conclusion so reached, and we there
fore are of the opinion that such conclusion should stand un
disturbed.
The judgment of the court of common pleas was therefore affirmed.
w o r k m e n ’s
W
o r k m e n ’s
C o m p e n s a t io n — A
223
c o m p e n s a t io n
c c id e n t —
R
ecu rrence of
I n ju ry—
Industrial Commission of Colorado et al. v. ~Wearner, Supreme Court
of Colorado (March 21,1927), 254 Pacific Reporter, page 444*—J- L.
Weaver was injured on July 31, 1917, while in the employ of the
Western Colorado Power Co. The accident occurred while Weaver
was working as a lineman at the top of an electric-light pole, which
broke at the base, throwing him to the ground. He was seriously
crushed and suffered internal injuries resulting in hemorrhages of
the stomach. An agreement between the insurer and Weaver was
made with the approval of the industrial commission and compen
sation was allowed at $8 per week to continue during disability.
In January, 1919, he had recovered sufficiently to no longer entitle
him to compensation and signed a final receipt with the understand
ing of the insurance carrier that it would not deprive him of any
right to further compensation upon a recurrence of disability.
In October 1924, there was a recurrence of the hemorrhages in
his stomach. A claim for further compensation was made, and a
hearing had before the referee who made a supplemental award
granting compensation; this was denied by the industrial commis
sion, and its order in turn was set aside by the district court. The
commission was therefore ordered to pay compensation in accordance
with the finding of the referee. The contention of the attorney gen
eral in opposing the award was that the statute in question was a bar
to recovery for disability beginning more than five years after the ac
cident. The Supreme Court of Colorado, however, construed it
differently, saying:
But the disability of the plaintiff did not have its “ beginning y
five years after the accident. u Beginning ” signifies commencement;
the entrance into existence; the initial state of anything. The dis
ability here had its commencement and initial existence in July, 1917.
It is a recurring disability of a previous existing disability, estab
lished by agreement between the insurer and claimant and approved
by the commission. The “ beginning ” of the disability of plaintiff
was coexistent with the accident, and the insurer and the commission
so recognized it and awarded the claimant compensation. When the
disability recurred, its cause and beginning had already been estab
lished according to law, to the satisfaction of the insurer, the com
mission, and the claimant. We can not interpret this statute as
though the word “ recurring ” appeared before the word “ disability.”
A recurring disability, such as here, is an entirely different thing
from a “ disability beginning more than five years from the date of
the accident.”
The judgment of the district court was therefore affirmed.
224
DECISIONS OF T H E COURTS
Workmen’s Compensation—Accident—Violation
of
Statute—
Silver's case, Supreme Judicial Court of Massachusetts (June 15,
1927), 157 Northeastern Reporter, page 31^2.— Samuel Silver, an ex
pert roofer, while fastening a section of metal gutter to the edge of
a flat roof 55 feet above the ground, fell and was killed. He had
been directed to put up staging from which to work on this part
of the roof; planks and brackets had been supplied him, and he had
said that he would use them. The rules and regulations for the
prevention of accidents issued by the department of labor and indus
tries forbid any person to engage in the erection, alteration, or repair
of any building more than 20 feet above the ground level until a
suitable staging or scaffold has been put up. Instead of putting
up a staging, which would have taken about an hour, Silver placed
a rope about a penthouse in such a manner that a workman could
hook his leg or arm about it, using it as a safeguard. Silver and
his helper were fastening the “ dogs ” which hold the gutter in place,
working toward each other from opposite sides of the house, rest
ing on their knees, each with a leg around the guard rope, when
their heads came together suddenly. Silver went over the ledge, lost
his contact with the rope, fell to the ground, and was killed. An
award under the compensation act was made. The case was taken
on appeal to the Supreme Judicial Court of Massachusetts, where
the award was reversed. The court pointed out that the State law
provided that “ if the employee is injured by reason of his serious
and willful misconduct he shall not receive compensation.” The
court said that in this case “ there was a deliberate failure to per
form the work in the method prescribed, persisted in after attention
had been called to it, and objections made by the helper, which sub
jected not only Silver but the helper to greater injury or death.
Such misconduct is both serious and willful.” “ It involves con
duct of a quasi criminal nature, the intentional doing of something
either with the knowledge that it is likely to result in serious injury
or with a wanton and reckless disregard of its probable conse
quences.”
W
o r k m e n ’s
C o m p e n s a t io n — A
d d it io n a l
A
w ard—
T
otal
D
is a b il
—Young v. Industrial Commission of Colorado et ah, Supreme
Court of Colorado (February 28, 1927), 253 Pacific Reporter, page
826.—Harry Young was a policeman in Pueblo, Colo., and was in
jured in an accident arising out of and in the course of his employ
ment, and was awarded compensation.
Later he was awarded further compensation. Still later he ap
plied for more on the ground of increased disability, but the indus
trial commission denied it. The district court of Pueblo County
it y
w o r k m e n ’s
c o m p e n s a t io n
225
affirmed the commission’s award, denying further compensation to
Young. He thereupon carried the case to the supreme court of the
State, where the award was affirmed, holding “ that the disability
sustained by the claimant by reason of the accident has not increased
since the last award; that he is now totally disabled, but that is
caused by premature old age and not by the accident.”
W orkmen ’s Compensation—A dmiralty—Jurisdiction— A ward—
Balestrere v. Industrial Accident Commission et al., District Court
of Appeals, First District, Division 1, California (April 18, 1928),
266 Pacific Reporter, page 968.—Antonio Prego was employed as a
seaman and fisherman by Manuel Balestrere, on a vessel in the wa
ters of Monterey Bay, Calif., and those adjacent to it. Prego was
drowned in the bay while he was attempting to moor a lighter in
a heavy sea. On the day of the accident Prego was returning on
the vessel to Monterey Bay with a load of fish. The fish had been
discharged into a lighter, and Prego in a skiff was carrying a line
from the lighter to the end of a cable about 100 feet from the shore
when a heavy sea capsized the skiff and he was drowned.
The Industrial Accident Commission of California awarded com
pensation in the sum of $630 to the father and mother of Prego, as
dependents. Balestrere then proceeded in the District Court of
Appeals, First District, Division 1, of California to have the award
reviewed and annulled. He claimed that on account of Prego’s
employment, any claim arising out of his death came exclusively
within the admiralty jurisdiction of the Federal courts, and hence
an application of the State workmen’s compensation act was in vio
lation of the Federal Constitution.
The appeals court cited two cases recently decided by the Cali
fornia Supreme Court, to which the questions presented in the
instant case were akin. That of the Alaska Packers’ Association
v. Industrial Accident Commission (253 Pac. 926), and London
Guarantee & Accident Co. v. Industrial Accident Commission
(263 Pac. 196). In the latter case a seaman was drowned while
on his way in a small boat from the pier to one of the larger
boats which had gone adrift, for the purpose of returning her to
her anchorage. It was held that inasmuch as the employment had
no such direct relation to interstate or foreign commerce, the com
mission was therefore not deprived of jurisdiction to hear and de
termine the claim. The appeals court therefore affirmed the award,
and in the opinion by Judge Knight he said that—
It will be observed that the facts of the latter case are almost
identical with those of the present one, for here the evidence shows,
226
DECISIONS OF T H E COURTS
in addition to the facts already set forth, that both employer and
employee were residents of Monterey; that Prego’s employment did
not involve interstate or foreign commerce, and that neither the em
ployment nor the vessel on which the decedent was employed had
any connection with the carrier of interstate or foreign commerce;
moreover, as stated, the accident occurred within the waters of this
State and within 100 feet of shore. We are of the opinion, there
fore, that, under the authority of the recently adjudicated cases
above cited, and for the reasons therein given, the claim for com
pensation arising out of Prego’s death came properly within the
scope of the workmen’s compensation act of this State.
As to the question of the dependency of the parents, the court
said that was one of fact to be determined by the industrial accident
commission.
W
orkm en ’s
C o m p e n s a t io n — A
d m ir a l t y —
J u r is d ic t io n — E
xclu
—Baker Towboat Co. v. Langner, Supreme Court
of Alabama (June 21, 1928), 117 Southern Reporter, page 915.—
W . R. Langner was employed as a carpenter by the Baker Towboat
Co., of Mobile, Ala. He was injured on his way to work while being
transported in a motor boat from his home in Mobile to Pinto Island
on the eastern shore of the Mobile River, when the boat struck an
obstruction in the river causing him to be thrown by the impact
into the machinery of the boat.
The Baker Towboat Co., was at the time engaged in repairing cer
tain vessels at the plant of the Henderson Shipbuilding Co. on Pinto
Island, and that Langner was employed to work as a carpenter on
vessels which at the time of his injury were on dry dock. Langner
proceeded under the workmen’s compensation act and brought an
action in the circuit court of Mobile County, Ala., on the grounds
that his injuries were compensable under the Alabama workmen’s
compensation law. The circuit court returned a judgment in favor
o f Langner, and the towboat company appealed the award to the
Court of Appeals of Alabama. The company contended that the
rights and liabilities of the parties were wholly controlled by the
general rules of maritime law, and that Langner when injured was
not in, on, or about the premises in such a sense as to be covered by
the State workmen’s compensation act. The court of appeals af
firmed the judgment of the lower court and the company thereupon
carried the case to the Supreme Court of Alabama. Here the
judgment of the lower court was reversed. The supreme court in
reversing the case said in part:
s iv e n e s s of
R
emedy
The matter of admiralty jurisdiction presents a Federal question,
upon which the decisions of our Federal Supreme Court are binding
And conclusive. It is now definitely settled by these decisions that
w o r k m e n ’s
227
c o m p e n s a t io n
where an injury to an employee presents a case of admiralty juris
diction, such jurisdiction is exclusive, and the workmen’s compensa
tion statute of the States can have no field of operation thereon.
The remedy given to the employee by the compensation statutes
of the several States was sought by amendment to the Federal Stat
ute (October 6, 1917, [28 U. S. C. A., secs. 41 (3), 371 (3 )]) to be
extended to those cases where theretofore the admiralty courts had
exclusive jurisdiction, but the Supreme Court of the united States
held such enactment overstepped the constitutional bounds of Con
gress, as defeating the purpose of the Constitution respecting the
harmony and uniformity of the maritime law, and declared the
statute ineffective.
It is likewise well settled that repair work on vessels that have been
in use on navigable waters constitutes maritime service, as distin
guishable from work in the building or construction of a vessel.
In the instant case the locality of the injury was upon the navi
gable waters, and we have above stated our conclusion that the repair
work of the vessel and barges was of maritime nature. In the instant
case, Langner, the employee, was injured while on the Mobile River,
navigable waters, and rf we have properly interpreted the character
of work in which he was engaged as of a maritime nature (and we
think the decisions herein cited point unerringly to that conclusion),
then the case presents one of exclusive admiralty jurisdiction, and
the application of the State compensation statute would be violative
of section 2, article 3, of the Federal Constitution. We are con
strained to so hold.
It results, as our conclusion, that the holding of the court of
appeals is erroneous. The petition for certiorari will be awarded,
and the judgment of that court reversed and the cause remanded.
The Supreme Court of Washington held in a case where an employee was
injured while repairing a gasoline launch at a dock across the street from
the machine shop where he was employed, was maritime employment and
hence not governed by the State workmen’s compensation act. (McClure v.
Wilson et al. (1928) (265 Pac. 485).)
W
o e k m e n ’s
C o m p e n s a t io n — A d m i r a l t y — J t jr is d ic t io n — F
on gsh orem en ’s a n d
H
a rb o r
W
o r kers’
Act —Perry
ed e ra l
United States
Employees' Compensation Commission et al., District Court, North
ern Division, California, Southern District (June 26, 1928), 27
Federal Reporter {2d), page m .—This case a ro se in th e district
c o u r t o f California to e n jo in th e d e p u t y commissioner o f th e United
States E m p lo y e e s ’ C o m p e n s a t io n C o m m is s io n f r o m denying an
a w a r d o f c o m p e n s a tio n . The w id o w o f o n e P e r r y r e q u e s te d th e
c o u r t f o r an injunction t o restrain Warren H. Pillsbury, d e p u t y
c o m m is s io n e r , f r o m r e f u s in g t o m a k e a n a w a r d in her f a v o r as p r o
v id e d for by th e longshoremen^ a n d harbor workers’ c o m p e n s a t io n
a c t o f March 4, 1927. F r o m th e facts in th e ca se it a p p e a r e d th a t
Perry w a s th e m a s te r o f th e t o w b o a t Dorothy Badger. He was em
L
v.
228
DECISIONS OF TH E COURTS
ployed by L. Lorentzen, who also owned and was the master of the
vessel Ellen. The two boats were anchored in San Francisco Bay.
During one night Perry and Lorentzen slept aboard the vessel Ellen,
and on the following morning Lorentzen stated that he would start
the engine of the Ellen. Perry volunteered to do so, on the ground
that he was the younger man. Lorentzen thereupon left the boat
Ellen and rowed to the Dorothy Badger. Just as he left the Ellen
an explosion occurred which resulted in the death of Perry.
Compensation was denied to the widow of Perry on the ground
that he was not within the provisions of the longshoremen’s and har
bor workers’ compensation act at the time of his death.
The main question in the case was whether Perry was “ a master
or member of a crew of any vessel.”
Section 3 (a) of the compensation act provides that no compensa
tion shall be payable in respect of the disability or death of “ (1) A
master or member of a crew of any vessel, nor any person engaged
by the master to load or unload or repair any small vessel under 18
tons net.”
The widow contended that the fact that Perry met his death on
another vessel than his own removed him from the class not entitled
to compensation. The district court of California, however, did not
agree with this contention and held:
That the vessel upon which he was master belonged to the owner
of the vessel upon which he was killed, and that his acts aboard the
Ellen were connected directly with the navigation of the Ellen.
Perry and Lorentzen had virtually exchanged duties pro tem. Perry
did not thereby lose his status as master of the Dorothy Badger
The decision of the commissioner was therefore correct.
The decision of the deputy commissioner was therefore upheld.
W orkmen’s Compensation—A dmiralty—Jurisdiction—F ederal
L ongshoremen’s and H arbor W orkers’ A ct—Constitutionality—
Joseph Ghemik, Petitioner, v. Glyde Steamship Co., Supreme Cowrt
of the United States (October 22,1928), 49 Supreme Court Reporter,
page 33.— Joseph Chemik was employed as a longshoreman. On
August 15, 1927, he was injured while unloading the steamship
Delaware on navigable waters within the State of New York. He
filed suit in the New York supreme court for Kings County to
recover damages for an injury which he claimed was a direct result
of the negligence of the steamship company. He based his suit on
the Jones Act (41 Stat. 988). The steamship company moved tc
dismiss the complaint on the ground that the court had no jurisdic
W O R K M E N *S COM PENSATION
229
tion of the subject matter by reason of the Federal longshoremen’s
and harbor workers’ compensation act (33 U. S. C. A., secs. 901-950).
Chernik opposed the motion to dismiss, contending that the Federal
act was unconstitutional.
The State supreme court upheld the validity of the Federal act,
and Chernick appealed to the New York Court of Appeals, contend
ing further that the Federal act attempts to deprive the courts of
the admiralty jurisdiction vested in them by article 3 of the Federal
Constitution, takes property rights without due process contrary to
the fifth amendment, denies litigants jury trial contrary to the sev
enth amendment, and deprives longshoremen of rights that other sea
men possess contrary to the fourteenth amendment, longshoremen
having been held to be seamen under the Jones Act. The Clyde
Steamship Co., on the other hand, contended that Congress was
competent to legislate in admiralty, and that the Supreme Court of
the United States had sustained such acts—the Jones Act and oth
ers—modifying the admiralty law; that the longshoremen’s act does
not deprive the courts of jurisdiction but simply takes away a right
of action; that the act does not deny jury trial because there is noth
ing to try; that the act is not class legislation because longshoremen
are not really seamen, and besides the inhibition of the fourteenth
amendment applies to the States and not to the Federal Govern
ment.
The New York Court of Appeals on April 10, 1928, affirmed the
judgment of the lower court and dismissed the suit, upholding the
Federal act as constitutional. No opinion was given in the case.
The case was then carried to the United States Supreme Court by
a writ of certiorari. This court, on October 22, 1928, denied the
petition. No opinion was written by the Supreme Court. This
case was the first attempt to test the constitutionality of the Federal
longshoremen’s and harbor workers’ compensation act.
Ju r i s d i c t i o n — F i s h e r
m a n —Tyler v. Industrial Commission, Court of Appeals of Ohio,
Ottawa County (.April 11, 1927), 158 Northeastern Reporter, page
586.—Ben Johnson was a fisherman in the employ of the United
Fisheries Co. It was his duty to go out upon the waters of Lake
Erie and assist in lifting the fish nets, take the fish from the nets,
and bring them to the fish house on the shore at Sandusky, Ohio.
While not engaged in this work he was employed on the shore mend
ing and tarring the twine and nets and other work assigned to him in
connection with the fishing industry.
W o r k m e n ’s
C o m p e n s a t io n — A d m i r a l t y —
230
DECISIONS OF TH E COURTS
On October 8, 1921, while in the course of his employment, he
went from the fish house to the fishing grounds. While en route
the lake became rough, and finding it too choppy to carry on the
work the boat started to return. While returning to the shore
Johnson fell off the boat into the waters of Lake Erie and was
drowned. The widow of the deceased employee made an application
to the Industrial Commission of Ohio for compensation under the
State workmen’s compensation act.
The industrial commission denied the claim on the ground that
the deceased employee was engaged in a maritime pursuit at the
time of his death. The widow appealed the finding of the com
mission to the court of common pleas of Ottawa County, Ohio. The
court dismissed the widow’s petition and judgment was awarded
in favor of the industrial commission. The case was then appealed
to the Court of Appeals of Ohio in Ottawa County. The main
question involved was whether Johnson at the time of his death was
engaged in a maritime employment under such circumstances that
his death would not be compensable under the State workmen’s
compensation act.
The court said that—
As a general rule, where an employee suffers injury or death in
the course of his employment at work which is purely maritime in
character and has a direct relation to commerce and navigation,
the rights and liabilities of the parties involved are controlled by
the maritime law, and such injury or death is not compensable under
the workmen’s compensation law. [Cases cited.]
It has been held, however, that where the injury or death results
from a maritime tort, to which admiralty jurisdiction would extend,
except for a State compensation law, the injury or death may be
compensable where the matter is one of mere local concern and its
regulation by the State would work no material prejudice to any
characteristic feature of the general maritime law. Under such cir
cumstances the workmen’s compensation law prescribes the only
remedy; its exclusive features abrogate the right to resort to the
admiralty court which otherwise would exist.
The appeals court cited a previously decided case, Southern
Pacific Company v. Jensen (244 U. S. 205, 37 Sup. Ct. 524), as con
trolling in the instant case. In the opinion written by Judge W il
liams in affirming the judgment of the lower court, he said in part:
There is no practical distinction between the work of a stevedore
unloading a boat, who suffers death while actually working upon
the boat m the performance of his duty under the circumstances in
that case, and the decedent in the instant case, who, as a fisherman,
was making a trip in a trap-net boat upon the navigable waters of
Lake Erie for the purpose of lifting nets and loading fish into
the boat from those nets to be transported back to the fish house
W O R K M E N *S COM PENSATION
231
and there unloaded. The trip out to the fishing grounds, where
the fish could be loaded, and back to the fish house, where they
could, if they had been caught, be unloaded, was a part of the
loading and unloading process and was essential to and a part of
the transportation of the cargo of fish caught upon the high seas.
His work therefore related directly to commerce and navigation,
his contract of employment and his work and his injuries were
maritime in character, and the rights and liabilities of the parties
are controlled by the admiralty law. The holdings of the State
courts are uniformly in accord with this conclusion. [Cases cited. ]
The unbroken line of authority is to the effect that the death of
decedent was not compensable under the law of Ohio.
Wo r k m e n ’s
C o m p e n s a t io n — A d m i r a l t y — J u r is d ic t io n — P r o x i
m a t e C a u s e —T.
Smith <&Sons (Inc.) v. Taylor, Supreme Court of
the United States (February 20, 1928), IS Supreme Court Reporter,
page 228.—George Taylor, employed as a longshoreman, was killed
while unloading a vessel at New Orleans on March 12, 1925. The
widow of Taylor brought an action under the Louisiana workmen’s
compensation law. The district court gave judgment to the widow
and children, which was affirmed by the court of appeals. The case
was brought to the United States Supreme Court and judgment
of the State court was affirmed on February 20, 1928.
The stevedoring corporation maintained that the case was one
exclusively within the admiralty and maritime jurisdiction, and that
the application of the State compensation law violated section 2 of
article 3 of the Constitution, which extends the judicial power of
the United States “ to all cases of admiralty and maritime juris
diction.” At the time of the accident Taylor was standing on a
stage when a sling loaded with five sacks of soda weighing about
1,000 pounds struck him as he was trying to catch and steady it.
He was knocked off the stage into the water and was found dead.
The company contended that Taylor was not struck, but accidentally
fell into the river. Mr. Justice Butler delivered the opinion of the
court, holding that if the cause of action arose upon the river
the rights of the parties are controlled by maritime law, but if the
cause of action arose upon the land the State law is applicable.
“ The blow by the sling was what gave rise to the cause of action.
It was given and took effect while deceased was upon the land.
It was the sole, immediate, and proximate cause of his death. The
substance and consummation of the occurrence which gave rise to
the cause of action took place on land.” Therefore the State com
pensation law would apply. The judgment of the State court was
thereby affirmed.
232
d e c is io n s
W orkmen’s
of
the
courts
Compensation — A dmiralty — Jurisdiction — Sea
man— Alaska
Packers' Association v. Industrial Accident Commis
sion of California et ah, Supreme Court of the United States (April
9 , 192S), 48 Supreme Court Reporter, page 846.—John Peterson was
injured while employed as a seaman by the Alaska Packers’ Associa
tion in Alaska. The company was a California corporation, engaged
in the business of taking and canning fish in Alaska. Peterson
resided in California, and while in that State entered into a contract,
agreeing to go to Alaska as a seaman, and after arriving at the
cannery to go ashore and act there as directed. The injury occurred
while Peterson was standing on the land in Alaska, endeavoring
to push into the water a stranded boat belonging to the corporation.
An award was made by the Industrial Accident Commission of Cali
fornia in favor of Peterson, and this was affirmed by the State
supreme court. The contention of the corporation was that when
Peterson was injured he was doing maritime work under a maritime
contract, and that the rights and liabilities of the parties must be
determined by maritime law. The case was carried to the United
States Supreme Court and on April 9, 1928, Mr. Justice McReynolds
delivered the opinion of the court affirming the judgment of the State
court, holding that when Peterson was injured he was not engaged
in any work so directly connected with navigation and commerce
that maritime law would apply. The work was really local in char
acter, said the court, since Peterson was employed to perform serv
ices as directed on land in connection with the canning operations,
and hence was entitled to compensation under the California work
men’s compensation act.
W
o r k m e n ’s
C o m p e n s a t io n — A
d m ir a l t y
— J
u r is d ic t io n
— S teve
—Resigno v. F. Jarka Co. (Inc.) et al., Court of Appeals of New
York (May 29,1928), 162 Northeastern Reporter, page 18.—Anthony
Resigno was employed as a stevedore by F. Jarka Co. (Inc.), a
corporation carrying on the business of master stevedores. Resigno
was injured, from which death resulted, at Hoboken, N. J., while in
the employ of the Jarka Co., working on the steamship Hannover,
owned and operated by the North German Lloyd.
An action was brought by the father of the deceased in the New
York State Supreme Court at special term. The father alleged that
the company was negligent in not providing a safe place for his son
to work, failing to furnish him competent fellow servants, and fail
ing to warn him of hidden dangers. The action was dismissed by
the supreme court, and an appeal was taken by Resigno to the appel
late division of the supreme court. He based his right to recover
upon an act of Congress (41 Stat. ch. 250, pp. 988, 1007, sec. 33)
dore
w o r k m e n ’s
c o m p e n s a t io n
23a
commonly known as the Jones Act. The appellate court affirmed the
lower court and the case was carried by Resigno to the State court
of appeals. This court reversed the lower courts. Chief Justice
Cardozo, in rendering the decision, said in part as follows:
We hold that section 33 of the merchant marine act of 1920, like
its parent, section 20 of the act of 1915, is to be limited to seamen at
work upon domestic vessels. We do not doubt the power of Con
gress to give a broader remedy. Irrespective of the nationality of
the vessel, the remedy may be extended to anyone who is injured
within the territory of our waters. We are unable to convince our
selves that the power has been exercised. The section now before us
is to be read in the setting of other acts and sections. So read, it
is not susceptible of extension to any vessels but our own. As to
these, it applied both at home and on the seas. At home and on the
seas they are subject to the power of our Government. No such
range of power exists in respect of foreign vessels. Power as to
these is territorial and local. Congress did not intend to give a
remedy for injuries suffered on the high seas aboard a vessel of
another flag.
The court is unanimous in its holding that seamen in the strict or
proper sense are without the purview of the act when working upon
foreign vessels. Whatever division there is among us has its origin
m a supposed distinction between the remedy available to such sea
men and that available to stevedores. The suggestion is that, in
cases of the latter order, the nationality of the vessel is to be re
jected as a test. The judgment of the court is that the test does not
vary with the nature of the service. Under the ruling of the Su
preme Court (International Stevedoring Co. v. Haverty, 272 U. S.
50, 47 Sup. Ct. 19) a stevedore is in as good a position as if he were
a seaman proper. We are unable to satisfy ourselves that under
that decision, or by force of any consequences legitimately flowing
from it, his position is even better. The fact is recalled to us in
Atlantic Transport Co. v. Imbrovek (234 U. S. 52, 62, 34 Sup. Ct.
733) that in bygone days the work of loading and unloading was done
by members of the crew. We think the effect of International Steve
doring Co. v. Haverty is merely to put a stevedore on the same foot
ing as the crew for the purpose of applying the statutory remedy.
True, indeed, it is that the remedies available to a stevedore may thus
vary from day to day, and even from hour to hour, with the location
of his labor. Distinctions of that order are not unknown to the law.
They have been made familiar by rulings under the workmen’s com
pensation acts (Consol. Laws, ch. 67) by which a longshoreman is
given a remedy if working on a boat and denied the same remedy
if working on a dock. The appellate division held that the rem
edy under the act had been supplanted by the adoption in New Jer
sey of a workmen’s compensation act, awarding the usual system of
insurance to workmen subject to its provisions. We think the hold
ing is erroneous. Resigno was injured while engaged in maritime
work upon navigable waters. There was no power in the Legislature
of New Jersey to substitute a system of workmen’s compensation for
the right of action for damages that was his under maritime law.
234
DECISIONS OP T H E COURTS
There was a like defect of power to substitute such a system for the
then existing right of action for the use of his survivors. Since the
wrong was done upon the waters, the circumstance is unimportant
that the death which followed was upon the land.
In a separate opinion, Judge Crane concurred in the result.
Workmen’s Compensation—Admiralty— Jurisdiction—W a i v e r —
Fitzgerald v. Harbor Lighterage Co., Court of Appeals of New York
(December 31, 1926), 155 Northeastern Reporter, page 74,—James
Fitzgerald was employed by the Harbor Lighterage Co. as a steve
dore. He was injured on June 29, 1922, while working aboard a
vessel. Fitzgerald immediately gave written notice to the industrial
commission and filed a claim for compensation for the resulting disa
bility. On August 11, 1922, the employer filed notice with the com
mission that advance payments had begun. On December 14, 1922,
the industrial board ordered an award of $360 for disability to that
date with a continuance of the proceedings. Another award was
made on May 22, 1923, of $240, and the proceeding again continued.
Both of the awards were paid by the employer and accepted by
Fitzgerald. Upon the failure of the injured employee to appear on
June 28, 1923, for a final adjustment of the claim, the case was post
poned to a later date and then held in abeyance. There was no final
award for the entire disability. On August 22, 1923, Fitzgerald
brought an action against the Harbor Lighterage Co., alleging that
his injuries were the result of negligence of the company. From a
judgment in favor of the company by the special term court the case
was carried by Fitzgerald to the supreme court, appellate division,
second department, where the lower court was affirmed. An appeal
was then taken to the Court of Appeals of New York. The question
for the court was whether or not the parties in interest by their acts
had waived their rights and obligations under admiralty, so as to
bring the case within the provisions of section 113 of the workmen’s
compensation law, and therefore subject to the jurisdiction of the
State courts by reason of waiver of admiralty rights. The appeals
court held that there had been no waiver of rights as would bring the
case within the provisions of the statute. The court then said in part
as follows:
Construing our own statute, we hold that the waiver which it
contemplates has never been announced. Claimant, employer, and
insurance carrier must unite in foregoing their admiralty remedies
before the statute will be operative, if its validity be assumed.
Nothing of the kind is proved. We put aside the question whether
waiver by the claimant within the meaning of this section is suffi
ciently established by the election to file a claim, unaccompanied by
W O R K M E N *S CO M PENSATION
235
express disclaimer of admiralty remedies. Even if this be assumed,
the defendant is not helped unless employer and insurance carrier
by some definite expression have renounced their remedies as well.
We see no basis for a finding that renunciation was effective when
this action was begun. The employer had paid provisional or inter
locutory awards for temporary disability. It may have been moved
to this course by charity or by indifference or by dislike of litiga
tion. Its acquiescence would not have barred it from appearing at
the final hearing and contesting the claim for any sufficient c.iuse
including lack of jurisdiction.
At the beginning of this action the board was without jurisdiction
to proceed to an award, for the conditions had not been satisfied
upon which jurisdiction was dependent. The legislature did not
mean, even if it could constitutionally enact, that a claimant should
be left with his remedies in indefinite suspense. Waiver here as
often is a term of equivocal significance.
Waiver being excluded, the right established by the maritime law
continues unimpaired. Maritime jurisdiction is established both
by the locus of the accident and by the nature of the work. When
the first of these grounds of jurisdiction is present without the
second there is room for the contention that the workmen’s com
pensation act of the State can be applied without “ material preju
dice to any characteristic feature of the general maritime law.”
When the two grounds concur the law of the State must bend to
the supreme law of the land and the power of the Nation.
The judgment of the lower court was therefore reversed.
Workmen’s Compensation—Agreement To Assign Compensa
tion—Hotel Employee— Dallas Hotel Co. v. Buffington, Court of
Civil Appeals of Texas (March %6,1927), 294 Southwestern Reporter,
page 610.—W. C. Buffington was an employee of the Dallas Hotel
Co. at a wage of $125 per month, and while so employed sustained
an accident on April 12, 1924, by which three fingers were partly
cut off. He was allowed an award under the compensation act of
$16.58 per week for 27 weeks. Soon after the injury, and before
the first check was received and while Buffington was incapacitated
to fully perform the duties of his employment, he made a contract
with the hotel company to turn over to it the compensation checks
to be received by him in consideration that he would be retained
in its employ and perform his duties as best he could and be paid
by the hotel company the full wage of $125 a month. Under this
agreement Buffington received the monthly wage and delivered to
the hotel company 19 of his weekly compensation checks, the last 8
of which were retained by him at the suggestion of the hotel man
ager, that as he had become able to perform his full duties, he could
retain the rest of the checks. Buffington continued in the employ
of the company from the date he was injured, April 12, 1924, to
236
DECISIONS OF T H E COURTS
May, 1925, which was six months after the delivery of the last com
pensation check to the hotel company. Buffington brought suit on
July 22, 1925, to recover from the hotel company the total sum of
the 19 checks delivered to it, on the grounds of misrepresentation
to him whereby he was induced to sign and deliver the checks to it
and that the delivery and assignment was without consideration.
Judgment was rendered in his favor and the case was taken to the
civil court of appeals. This court reversed the judgment of the
trial court, holding that the contract was not procured through fraud
and had been fully performed according to its terms and provisions
without any question by Buffington in reference to the right of the
hotel company to demand and receive v^he payment of the checks.
46Lack of consideration,55the court said, “ became immaterial, as lack
of consideration under such circumstances can afford no grounds* for
rescission.55 Continuing, the court laid that there was no merit to
Buffington5s contention that he was ignorant of the number of com
pensation checks he was to receive or for what purpose they were
issued, or the length of time they would be received, because the law
under which he received the checks imputed to him notice of the
compensation act.
W o r k m e n 5s C o m p e n s a t i o n — A l i e n B e n e f i c i a r i e s — I n s u r a n c e
—Bacchaieff v. Department of Labor ana Industries of
Washington, Supreme Court of Washington (January 25, 1927), 252
Pacific Reporter, page 697.—Gaso Bacchaieff, otherwise known as
George Basiff, was killed in the year 1914 while engaged in extrahazardous work, which brought him within the purview of the industrial
insurance law of Washington. The department of labor and indus
tries made an award of $35 per month to his widow and three minor
children, all of whom resided in Russia. Warrants were issued by the
department for the monthly pension up to February, 1916, but owing
to the World War and the disturbing relations existing between the
Government of Russia and the United States, the warrants were
never delivered to the widow, and were finally returned to the depart
ment and canceled. In April, 1925, the widow, through her attorney
made application to the director of the department of labor and
industry for the issuance and delivery of the warrants covering
the overdue installments. Attached to the application was a power
of attorney appointing Harry Baisoff, a cousin of the widow, as her
attorney in fact, with power, among other things, to receive from
the commission the warrants due, and remit the same to her. On
May 9, 1925, the department refused to recognize these documents
and declined to make payment. The widow then appealed to the
A
s s ig n m e n t
w o r k m e n ’s
c o m p e n s a t io n
237
superior court of Thurston County, Wash., where a judgment of
dismissal was rendered. The widow appealed to the Supreme
Court of Washington for relief, and this court on January 25, 1927,
reversed the judgment of the lower court, and ordered the depart
ment of labor and industries to issue the warrants for the amount
due the widow. The supreme court considered the findings of the
trial court in the order in which they were presented by that court.
(1) That the department had no authority to issue warrants to any
person other than a beneficiary. The court said:
I f the claim may be made by an agent or representative, then also
it would seem that the agent may receive and receipt for the war
rants. It is manifest that there must be many cases, such as where
minors only are entitled to compensation, where the claimant must
be represented by another. I f not so represented, no valid claim
could be made, and, as here, there might be no one who could law
fully receive and receipt for the warrants.
(2) That there is no authority in law for the department to honor
such a power of attorney. The court said:
We think the second subdivision of the finding can also be an
swered by the same argument. No construction of the statute can be
warranted which will defeat its purpose and prevent the beneficiary
from obtaining the benefits of the act, and the law must be construed
to give authority to recognize one properly appointed to act for a
beneficiary who can not act for himself.
(3) The third subdivision of the finding is to the effect that it is
feared the money may not reach the appellant. Such a fear to be
effective must rest on some foundation of fact, and a reading of the
whole testimony convinces us that in this case no foundation for such
a fear was shown or more than hinted at. Several witnesses testified
fully and without contradiction as to the methods employed by them
in sending money monthly to members of their own families to the
very village in Russia where appellant lives, and the only thing to
the contrary is a mere expression of opinion in a letter addressed to
the department by one who signs himself “ Russian Consul General ”
(which manifestly can not be, as we have no official relations with
the present Russian Government), to the effect that the money, if
sent to Russia, may be confiscated by the Russian Government—a
mere opinion at best, without showing that it is based on facts so
as to entitle it to weight as evidence.
(4) Relative to the fourth finding of the lower court that the
money if delivered would be confiscated by the Government of
Russia, the supreme court concluded:
How the Russian Government may operate upon its citizens domi
ciled there is not for the department or the courts of this State to
103151°—80------IT
238
DECISIONS OF T H E COURTS
say. It may have proper and just income tax laws by which it may
enforce a tax against moneys received by its citizens, or those laws
may seem to us extremely unjust. I f so, that would be the misfor
tune of the appellant, but her predicament will not warrant us in
helping her to defeat even the unjust laws of the country where she
is domiciled.
Workmen’s Compensation—Award—Agreement—Vested Rights
—Loss of Eye— Haugse v. Sommers Bros. Manufacturing Go. et al.,
Supreme Court of Idaho (January 20, 1927), 254 Pacific Reporter,
page 212.—Haugse was employed by the Sommers Bros. Manufactur
ing Co. of Idaho. He suffered an injury arising out of and in the
course of his employment, which resulted in the loss of an eye by
enucleation. The insurance carrier in behalf of the employer agreed
to pay Haugse $1,920, at the rate of $16 per week for 120 weeks,
payable monthly. The agreement was approved by the industrial
accident board, and payments were made accordingly until Haugse
died from a cause other than that for which he was being paid.
Upon his death the insurance carrier appeared before the board
and asked that it be relieved from its agreement to further pay the
compensation. Haugse’s widow applied to the board to have the re
maining payments made to her. The board held that it was with
out jurisdiction to hear her application, but considered the applica
tion of the insurance carrier as a modification of an award and
ordered it to stop the payments. An appeal was taken to the dis
trict court of Bonner County, Idaho, by the widow and this court
reversed the order of the board, and directed that payments pro
vided for in the agreement, not already paid to Haugse, be made
to his widow. The insurance carrier appealed from the judgment
of the district court, to the Supreme Court of Idaho. The conten
tion of the insurance carrier was that the workmen’s compensation
law provides that compensation be paid the workman only during
the period of his incapacity for work, and that upon a termination of
incapacity, compensation should cease, and also that the right to
the payment provided for in the agreement did not survive Haugse,
in that the statute prohibited the assignment of claims for com
pensation.
The supreme court on January 20, 1927, affirmed the judgment of
the district court, saying in part:
However, these sections do not cover the injury sustained by the
workman in this case. On the contrary, C. S. section 6234, as
amended (Laws, 1921, c. 217, sec. 5), is applicable to this particular
injury. That section provides:
W O R K M E N *S COM PENSATION
239
“ In the case of the following injuries the compensation shall be
55 per centum of the average weekly wages, but not more than the
weekly compensation provided in section 6231, in addition to all
other compensation, for the periods stated against such injuries”
respectively, to wit: * * * One eye by enucleation, 120 (weeks).
There is nothing in C. S. section 6234, or in the entire act, pro
viding for a cessation of payments, for the loss of an eye by
enucleation, on the death of the injured person. By its approval
of the agreement the board awarded the workman $1,920. The
award was in accordance with the statute, and was unconditional;
it was not made to depend on a continuation of incapacity, or
whether the workman lived throughout the life of the agreement;
and the casualty company was not released from its obligation by
the death of the injured workman.
Ordinarily causes of action which are not assignable do not sur
vive. (1 C. J. 175.). Claims for compensation are based on the
statute, and are made nonassignable for the benefit of those entitled
to compensation. But it does not follow from the fact that such
claims may not be assigned that the rights we are here concerned with
do not survive. Haugse’s right to receive payment for his injury
was dependent wholly on statute until the agreement was made and
approved by the board. Thereafter this right was recognized by
the agreement and the formal order of the board. It was in the
nature of a judgment for liquidated damages for the loss of the
eye, and the right to enforce payment survived.
W orkmen’s Compensation—A ward— Change of Conditions—I n
Lmriber Co. v. Burch, Supreme Court of Geor
gia (February 20, 1928), 1J$ Southeastern Reporter, page 88.—A. B.
Burch was employed by the Savannah Lumber Co. of Savannah, Ga.,
at a salary of $29.25 per week. He was injured while in the course
of his employment and an agreement was made between the em
ployer and the employee for the payment of compensation during
his disability, at the rate of $14.63 per week, to be paid by the In
tegrity Mutual Casualty Ce. In August, 1925, an application for
a hearing before the industrial commission was made, based upon
a change in the condition of the employee. The industrial com
missioner made an award in favor of Burch for compensation for
total permanent disability for a period of 350 weeks from November
13, 1922, at the rate of $14.63 per week. This award was later af
firmed by the full commission. On May 22, 1926, Burch received a
check drawn by the Integrity Mutual Casualty Co. on the Harris
Trust & Savings Bank of Chicago, 111., for $29.26, covering the
one hundred and eighty-second and one hundred and eighty-third
payments of the 350 weeks which had been allowed. The payment
of this check was refused with a notation: “ On account of receiver
surance— Savannah
240
DECISIONS OF T H E COURTS
ship proceedings, the Integrity Mutual Casualty Co. refuses to
accept draft.”
Burch died on September 1, 1926, and his wife brought an action
in the superior court against the Savannah Lumber Co., alleging
that she was dependent solely upon her husband for support and
that she was entitled to receive from the Savannah Lumber Co. the
balance due upon the award, and she asked therefore a judgment for
that amount. A judgment was rendered by the superior court in
favor of the widow and the company carried the case to the court
of appeals, where the judgment of the lower court was affirmed.
There were questions of much gravity and importance affecting
the rights of employers and employees in the case where an insur
ance carrier had become insolvent, which had not been ruled on by
the supreme court before and so the case was taken to the Supreme
Court of Georgia for a final determination.
The State supreme court affirmed the judgment of the lower court
and in an opinion by Chief Justice Russell on February 20, 1928,
said in part as follows:
It is alleged in the petition that the insurance carrier is in the
hands of a receiver and has failed and refused to make payment
since May 22, 1926. Being in the hands of a receiver, it may be
presumed to be insolvent. I f so, the question is raised whether the
defendant is relieved because it complied with the requirement of
the statute by insuring Burch and others of its employees. As to
this there can certainly be but one answer, and that in the negative.
One of the purposes of the workmen’s compensation act was to
provide for the safety and protection of employees and to this end
the act provides methods of insuring the payment of such com
pensation as injured employees may be entitled to for personal in
juries sustained by them in the course of employment; and it was
certainly not intended to exempt a solvent employer upon his tak
ing out the policy of insurance with a company that might or might
not be solvent. The employee has no part in procuring the policy
of insurance. The selection of the company which is to act as in
surance carrier is altogether with the employer, and if such em
ployer selects a company of doubtful solvency, he must be held to
do so at his peril. Section 11 of the act of 1920 provides:
“ That every employer who accepts the compensation provisions
of this act shall insure the payment of compensation to his em
ployees in the manner hereinafter provided, and while such insur
ance remains in force he or those conducting his business shall only
be liable to any employee for personal injury or death by accident
to the extent and in the manner herein specified.”
The words “ while such insurance remains in force,” of themselves
import and imply a negative pregnant that should the insurance
cease to be in force, by reason of the insolvency of the insurance
carrier and the consequent failure of insurance, the employer would
be liable for the payment of compensation.
w o r k m e n ’s c o m p e n s a t i o n
241
Furthermore, subsequent sections of the act, in our opinion, clearly
show the intention 01 the general assembly that the employer is
primarily liable for the payment of compensation in accordance
with the provisions of the act.
We are of the opinion that the provisions of the act show that the
primary obligation is upon the employer, and that the method of
insurance or insurance carrier is merely a provision for security
that the .payment shall be made. The liability of the insurance car
rier is merely cumulative and in addition to the primary liability
of the employer. The requirement to provide insurance, referred to
in section 11, is mandatory. The employer “ shall insure,” but this
is only for additional protection to the employee, and does not re
sult in relieving the employer from his primary obligation to pay
as provided by the express terms of the act, in case the security
whi.ch the law requires him to give should for any reason fail to
perform his obligation.
The Georgia statute, instead of saying that either “ the employer
or the insurer shall pay,” etc., says that the “ employer shall pay,”
and thereafter provision is made against possible insolvency of the
employer by requiring him to provide security for the payment
which the law has imposed on him, by a policy in a solvent casualty
company.
W o r k m e n ’ s C o m p e n s a t io n — A w a r d — D e a t h F o l l o w i n g D i s a b i l
Commercial Casualty Insurance Co. et al., v. Indus
trial Commission of Utah et al., Supreme Court of Utah (April 13,
1928), 266 Pacific Reporter, page 721.—H. F . Savage was employed
as an insurance solicitor by the Ashton-Jenkins Insurance Co. of
Salt Lake City, Utah. On December 31, 1926, Savage, while in the
course of his employment, slipped and fell down a flight of stairs.
He struck his back upon the steps and complained of a severe pain
in the region of his back. He was removed to a hospital and died
about one hour later. The Industrial Commission of Utah awarded
compensation to the widow and two minor children.
The company and its insurer, the Commercial Casualty Insurance
Co., then brought an original action in the Supreme Court of Utah
to annul the award, basing their contention on the ground that the
industrial commission exceeded its authority in rendering an award
in favor of the widow. The company contended first that Savage at
the time of his death was an independent contractor and not an em
ployee; and secondly, that.there were no facts to show that Savage
died as a result of the accident.
The Supreme Court of Utah affirmed the award of the industrial
commission. The court pointed out that there was evidence of an
arrangement whereby the company advanced to the deceased the
i t y — E m p lo y e e —
242
DECISIONS OF T H E COURTS
sum of $200 per month with the understanding that his remunera
tion should depend and be fixed according to the amount of insur
ance business which he secured for the company, but in answer to
this the court said that:
We think it a plain and necessary conclusion from the evidence
that the deceased was an employee 01 the company, and not an inde
pendent contractor. Whatever may have been the original intention
to merely deal with him as an independent insurance broker, the
fact was that that idea was abandoned and he was in fact made an
employee of the company at a fixed salary which was regularly
allowed and paid to him for his services independent of the amount
of business he secured for his employer.
Judge Cherry in deciding whether there was a causal connection
between the accident and the death of Savage cited the contradictory
opinions rendered by the several physicians called as witnesses, and
concluded that:
The fact that one physician based his opinion on symptoms that
he personally observed is no ground for preferring that opinion to
a different one by another physician based upon the same symptoms
included in a hypothetical question. Both opinions, so far as symp
toms observed at the time of the accident were concerned, were based
upon the same hypothesis. The question was one of fact upon which
the evidence was conflicting, and we are clearly of the opinion that
the industrial commission acted within its lawful jurisdiction and
upon sufficient competent evidence when it found as a fact that the
deceased died as the result of the accident.
W
o r k m e n ’s
C o m p e n s a t io n — A
w ard
— D
is a b il it y
— E v id e n c e —
Cameron Coal Co. v. Industrial Commission et al., Supreme Cou/rt of
Illinois ( October 22, 1927), 158 Northeastern Reporter, page 399.—
John M. Jackson was employed as a day laborer by the Cameron
Coal Co. of Illinois. On November 13, 1924, in attempting to lift
a large stone weighing about 400 pounds, he slipped on some loose
rock and received injuries about his right side. He was treated by
physicians furnished by the company.
Jackson claimed that he was totally and permanently disabled
from work. The company refused to pay any compensation, and
upon an application for adjustment of the claim the arbitrator ren
dered a decision in favor of Jackson for the payment of $14 per
week for 267f weeks for permanent disability, and an additional
sum of $154 for unreasonable delay in paying compensation. Upon
a review by the industrial commission a reversal of'the decision of
the arbitrator was made and an award in favor of Jackson was made
for $14 per week for a period of 267f weeks and a pension of $25
w o r k m e n ’s
243
c o m p e n s a t io n
per month for total and permanent disability from work. The
ease was brought to the circuit court of Williamson County, 111., by
the coal company. This court confirmed the award of the industrial
commission, whereupon the case was brought to the Supreme Court
of Illinois for final determination. Two questions presented for the
court were (1) whether Jackson received an accidental injury in the
course of his employment, and (2) was the disability total and perma
nent. As to the first question the court did not express an opinion
but said that:
The consensus of the medical testimony is to the effect that claimant
is suffering from chronic appendicitis. There is no evidence in the
record that appendicitis is an incurable disease, nor is it shown that
with proper treatment the claimant will be totally and permanently
physically incapacitated for the performance of manual labor.
As to the question of disability the court stated that:
To justify an award for permanent total incapacity the claimant
must show, not only that he has been injured and is entitled to com
pensation for such injury, but he must also show, by evidence, that
his injuries will be reasonably certain to leave him permanently
totally incapacitated from pursuing his usual and customary line of
employment. O’Gara Coal Co. v. Industrial Com., 320 111. 191, 150
N. E. 640. There is in the record no basis for an award for perma
nent total disability and a pension for life.
The judgment of the circuit court was therefore reversed, and the
award was ordered set aside and remanded to the industrial commis
sion for a further hearing.
W
orkm en ’s
C o m p e n s a t io n — A
w a r d—
E
l e c t io n —
S ettlem ent—
Beekman v. W. A . Brodie (Inc.) et al., Supreme Court, Appellate
Division, Third Department (March 29, 1928), 228 New York Sup
plement, page 399.—Henry Beekman was employed by W . A. Brodie
(Inc.). On April 20, 1925, he fell and injured his left arm while
trying to eiiter an elevator in the Bush Terminal Building, at Brook
lyn, N. Y. Beekman reported the accident to his employer, Brodie.
The employer advised him to hold the Bush Co. as the responsible
party. The employer reported the accident to its insurance carrier,
and the carrier paid compensation to Beekman at the rate of $20 per
week, commencing April 29, 1925, and continuing until June 30,
1925, when after it had paid $200, it learned about the third party
claim and stopped further payments. Beekman notwithstanding that
he accepted these payments, made claim against the Bush Co., where
upon its adjuster sent him to the third party insurance carrier, which
paid him $255 in settlement. This was done without an election to
244
DECISIONS OF T H E COURTS
sue, without suit, and without the knowledge or consent of the
employer’s carrier.
The State industrial board had made an award to Beekman for
15 per cent loss of use of the left hand. The award was for the
period from April 20, 1925, to March 12, 1926, or 46% weeks at $20
per week. The employer and its insurance carrier appealed the
award to the supreme court, appellate division, third department,
New York, contending that Beekman compromised with a third
party for his injury without the written approval of the carrier,
and that he thereby lost his right to any deficiency. Employer and
carrier also claim they are entitled to a credit of $255, received by
Beekman from a third party. The appellate court on March 29,
1928, reversed the industrial board and dismissed the claim, holding
that where an injured employee without electing to sue and without
suing settled with a third party causing injury without the approval
of the insurer, as required by section 29 of the State workmen’s com
pensation law, he lost his right to deficiency between the amount so
received and the amount of insurance to which he was entitled under
the act. In an opinion written by Judge Whitmyer, he cited the
case of O’Brien v. Lodi, 246 N. Y. 46, 157 N. E. 925, and said in
part:
There the court decided that the limitations of the section are
binding upon the employee, and not upon the third party, liable for
damages, who h$s nothing to do with the law, and that, if the em
ployee settles with the rnird party, without the consent of the
carrier, he loses his right to the deficiency, in which the carrier
is interested, and with which the third party had nothing to do;
further that such a settlement has the effect of releasing the claim
against the third party without affecting the settlement.
The decision seems to apply directly. It is true, notice of election
had been filed there, but that did not affect the situation. The section
does not require notice. Further, the carrier’s rights were not
affected by what the employer may have done, since it is the carrier
only who has the right to approve or disapprove of a settlement.
And, while claimant stated in one place that the carrier made him
go to the third party carrier, the evidence does not support the state
ment. I f such was the fact, the evidence should have been developed.
The record is very unsatisfactory. As it stands, I think that the
O’Brien case is decisive here.
W
o r k m e n ’s
C o m p e n s a t io n — A
w ard
— E
m ploym ent
S tatus —
Kutil v. Floyd Valley Mfg. Co. et al., Supreme Court of Iowa (April
3, 1928), 218 Northwestern Reporter, page 613.—S* F. Kutil was
president of the Floyd Valley Manufacturing Co., a furniture manu
facturing corporation of Sioux City, Iowa. On November 30, 1926,
w o r k m e n ’s c o m p e n s a t io n
245
while traveling in the State of South Dakota, engaged in the sale of
the company’s products, he was killed in an automobile collision.
His widow brought an action under the workmen’s compensation
law of Iowa against the Floyd Valley Manufacturing Co. and its
insurer for compensation on account of the injury and death of her
husband. Before a deputy industrial commissioner a hearing was
held and compensation was denied on the grounds that at the time
of the death of Eutil he was holding an executive position and also
was in a representative capacity of the employer. Upon a review
of the deputy’s finding, the industrial commissioner sustained him.
An appeal was taken by the widow to the district court, where the
ruling of the industrial commissioner was affirmed. The widow then
carried the case to the Supreme Court of Iowa, contending that her
husband was an employee within the definition of the statute even
though an official of the company. The State supreme court held
otherwise and affirmed the lower court The court in its opinion
said in part:
Section 1421, Code, 1924, defines the terms “ employer,” “ em
ployee,” and “ workman.” The definitions are free from ambiguity.
There can be no question that the Floyd Valley Manufacturing Co.
is within the definition of the term “ employer.” Was Kutil an
employee as defined by statute? May it be said that he was not
within the statutory exceptions? Subdivision 3, section 1421, pro
vides that the following persons shall not be deemed or considered
as coming within the scope of the benefits of the workmen’s com
pensation law: (a) Casual employees as defined; (&) persons en
gaged in clerical work as defined; (c) independent contractors; (d)
persons holding official position or standing in the representative
capacity of the employer. The legislature has seen fit to grade em
ployees not only by the work or labor they perform, but also by the
positions they may hold. The legislature has said that employees
engaged in clerical work only are not within the scope of the law,
provided that such clerical work shall not include those who may
Be subject to the hazards of the business. This exclusion is based
upon the work performed. The legislature has further said that a
person holding an official position or standing in a representative
capacity of the employer shall not come within the scope of the law
as respecting the compensation benefits provided therein.
S. F. Kutil was, at the moment of ms death, holding an official
position in the Floyd Valley Manufacturing Co. He was the presi
dent of the corporation. This is not denied by any one. As presi
dent of such corporation and as the employee of such corporation he
was engaged in selling the company’s products. This is not denied.
The duties of a salesman could not in any sense affect his official
position. At most, he was a president acting as a salesman. He
did hold that official position at the time of his death and he was
therefore in the excluded class. It might further be said that he
was a person- at the time in question, who stood in a representative
capacity of the employer. The term “ representative capacity” re
246
DECISIONS OF T H E COURTS
quires no definition, as it means simply a person who stands in the
place of the employer with authority to act for the employer. Such
a person, no matter what his duties may be, is, by the express terms
of the statute, excluded from the benefits created by the statute.
of
Workmen’s Compensation—Award—Lump Sum—Powers, etc.,
Commission— Utah-Idaho Centred R. Co. et al. v. Industried Com
mission of Utah, Supreme Court of Utah (May 10, 1928), 267 Pacific
Reporter, page 785.—The Utah-Idaho Central Railroad Co. brought
this action in the Supreme Court of Utah to review an order of the
Utah Industrial Commission awarding compensation to P. E. Erick
son, who was employed by the railroad company at Ogden, Utah,
as a carpenter. On November 9, 1926, while engaged in making
repairs on a railroad ear, Erickson was severely injured when the
roof of the car fell upon him. Erickson was paid compensation from
the date of the accident until June 2, 1927, on which date the insur
ance carrier refused to make further payments. On November 17,
1927, an application was filed and a hearing held by the industrial
commission, and a finding made that Erickson suffered a temporary
total disability up to October 13,1927, and as a further result of the
injuries he suffered a permanent partial disability which incapaci
tated him 50 per cent as a workman. The commission therefore
ordered the railroad company to pay the injured employee the sum
of $13.85 weekly for 100 weeks on account of permanent partial
disability and that the payment be made in a lump sum.
The railroad company and the insurance carrier contended that
the finding of the commission was not supported by any substantial
facts. The Utah Supreme Court, in an opinion by Judge Gideon,
affirmed the award of the commission and said:
The commission is the fact-finding body. I f there is any substan
tial evidence to support its findings, such findings are conclusive upon
this court. That is true regardless of whether this court, or any
member thereof, might draw different conclusions or make different
findings from the evidence passed on by the commission. The state
ments of the physicians quoted, considered in connection with the
testimony of the applicant and his wife, support a finding that appli
cant has sustained some permanent partial disability. The commis
sion determined that the extent of that disability was 50 per cent
and awarded compensation accordingly. In face of the testimony
appearing in this record, to annul the award would be for this court
to set up its judgment on a question of degree or the extent of the
disability. I f any weight is to be given the testimony of applicant,
then it can not be said that there is no substantial evidence to support
an award of 50 per cent permanent partial disability. In addition,
however, if it be conceded that Doctor Pugh is correct in his conclu
sion that applicant is suffering from an arthritis condition in no way
w o r k m e n ’s
247
c o m p e n s a t io n
attributable originally to the accident, there is still, in our judgment,
substantial evidence in the record sufficient to support the commis
sion’s award.
It thus appears that from whatever angle we view the testimony,
whether the condition of permanent partial disability resulted from
the accident or resulted from an aggravation of a preexisting condi
tion, the applicant is entitled to compensation. A latent disease or
trouble, if accelerated or lighted up by an industrial accident and a
more serious injury results by reason of the fact of the existence of
such latent ailment than otherwise would in a normal recovery from
injuries received from or in an accident, in such case the injured
employee is entitled to additional compensation.
W
o r k m e n ’s
C o m p e n s a t io n — A
w ard—
P
enalty—
N
o n c o m p l ia n c e —
State, for Benefit of Bredwell et ah v. Hershner et dl., Supreme Court
of Ohio (April 18, 1928), 161 Northeastern Reporter, page 334.—
This was an action brought by the State for the benefit of Ida M.
Bredwell and her son against George W. Hershner and others. Ida
M. Bredwell’s husband was employed by George W. Hershner, of
Hamilton, Ohio. In August, 1923, Bredwell was killed while in the
employ of Hershner. Hershner had five or more persons regularly
employed in his business and had failed to comply with the provisions
of the workmen’s compensation act either as a self-insurer or by the
payment of premiums into the insurance fund.
On August 15,1923, the widow filed an application with the indus
trial commission for an award. Between the time of filing the appli
cation and the making of the award Hershner became bankrupt and
Carl F. Antenen was appointed receiver of the business.
On January 4, 1924, a hearing was had upon the application for
an award and on April 12, 1924, the industrial commission made an
award to the dependents, which the receiver refused to pay. An
action was brought in the common pleas court by the State asking
judgment for the amount of the award, plus a penalty of 50 per cent.
The receiver moved the court to dismiss him as a party to the suit.
This was refused by the court and the receiver answered that Hersh
ner did not employ regularly five persons in his business, and denied
that Bredwell was killed in the course of his employment. The jury
returned a verdict for $7,659, which amount included the award made
by the commission and 50 per cent extra. Judgment was accordingly
rendered for this amount. The case was then carried to the court
of appeals by the receiver, where the judgment of the lower court was
reversed. The State then carried the case to the State supreme court,
where the judgment of the court of appeals was reversed.
In the course of his opinion, Judge Jones said in part as follows:
We are of the opinion that, irrespective of section 1465-74, General
Code, the dependents, having obtained an award from the commis-
250
DECISIONS OF T H E COURTS
ing an allowance as for partial and permanent disability under the
terms of the Alaska workmen’s compensation act.
A judgment of $4,852 was given to Walker in the district court.
This sum represented 65 per cent of $7,800, the amount recoverable
by the employee had he suffered total and permanent disability. The
company thereupon carried the case to the circuit court of appeals
for the ninth circuit, disputing the claim of Walker and contending
that the allowance could not be for a greater sum than that fixed for
the loss of a hand in the schedule contained in the compensation act:
For the loss of a hand, * * * (<?). In case the employee was
either married or a widower and had one child, $2,496 and $312 addi
tional for each of said children, not to exceed, however, the total sum
of $3,120.
The appeals court reversed the judgment of the lower court, and in
the opinion written by District Judge James said, in part:
As to whether the compensation is intrinsically adequate, we have
no right to say, for the legislature has determined definitely the com
pensatory damages to be allowed. If any employee is not satisfied to
be bound by the schedule, he has a right to reject the benefits of the
act in advance of an injury and rely upon his general remedy for
damages.
To say in a case of this kind that a partial destruction of a hand is
worse than the amputation of the member at the wrist is as incon
sistent with the provisions of the law as it is to say that it is mathe
matically true that a part is greater than the whole.
Careful examination of the record in this case discloses nothing
which justifies the use of other than the rule of schedule compensation
for the loss of a hand as a measure of recovery. Plaintiff in error
was entitled to have the jury so advised, and it was error to refuse its
request in that behalf.
W
o r k m e n ’s
C o m p e n s a t io n — A
w ard—
P erm anent
P
a r t ia l
D is
AUen v . Kansas City Fiber Box Go., Supreme
Court of Kansas (December 11, 1926), 251 Pacific Reporter, page
191.— O n F e b r u a r y 3* 1923, I s a a c A l l e n w a s in ju r e d in th e f a c t o r y
o f th e K a n s a s C i t y F ib e r Box C o . His fin g e r w a s c a u g h t a n d m a sh e d
a b il it y —
R
elease—
in so m e m a c h in e r y .
A l l e n b r o u g h t a n a c t io n a g a in s t th e c o m p a n y
u n d e r th e w o r k m e n ’ s c o m p e n s a tio n a ct.
h im .
The
A n a w a r d w a s g r a n t e d to
c o m p a n y a p p e a le d th e ju d g m e n t , s e t t in g f o r t h
th a t a
se ttle m e n t a n d r e le a s e h a d b e e n m a d e .
A l le n r e p lie d th a t h e c o u ld
n e it h e r r e a d n o r w r it e , th a t h e w a s o v e r
60
years o f age and h ad n o
e d u c a t io n , a n d th a t officers o f th e c o m p a n y h a d le d h im t o b e lie v e
th a t h e w a s m e r e ly m a k in g h is m a r k o n a v o u c h e r f o r t w o w e e k ’s
w o r k m e n 's
251
c o m p e n s a t io n
compensation. He also stated that he was not advised that he was
signing a release, nor had he any intention to do so, and that any
such release was procured from him by fraud.
The so-called settlement and release was made on February 19,
1923, and shortly thereafter Allen returned to work and continued
in the employ of the company for about a year, at which time he
was discharged. The Supreme Court of Kansas affirmed the lower
court holding that a written instrument, reciting a contract of settle
ment of a workman’s claim against his employer for injury sustained
is void as a defense unless the instrument is verified by the workman
and filed with the clerk of the district court within 60 days in
conformity with the statute.
The court also held that it was not a bar to the workman’s re
covery of compensation under the workmen’s compensation act for
him to return to the service of the employer at the same or better
wages than he was receiving prior to his injury.
W o r k m e n ’s C o m p e n s a tio n — A w a r d — P e r m a n e n t T o t a l D is a b il
i t y — L o s s o f S i g h t — Moore v. Western Goal <&Mining Go., Supreme
Gourt of Kansas (July 9, 1927), 257 Pacific Reporter, page 725.—
D a n ie l M o o re , a co a l m in er, w h ile in the e m p lo y o f th e W este rn C o a l
& M in in g C o., w as in ju r e d on O cto b e r 20,1925, b y b e in g stru ck in th e
le f t eye b y a p ie ce o f slate r o c k o r su lp h u r. A corn ea l u lce r resu lted,
w h ich la ter le f t th e co rn e a l scar ov er th e g rea ter p a rt o f th e eye.
A rb itr a tio n w as a g reed u p on . T h e a rb itra to r h e ld th a t f o r a ll p r a c
tica l p u rp oses M o o r e h a d lo s t th e en tire v is io n o f th e eye an d w as
to ta lly an d p erm a n e n tly disabled . T h e ev id en ce sh ow ed an d th e
a rb itra tor a m o n g o th e r th in g s fo u n d th a t in 1918 M o o re , w h ile w o r k
in g f o r th e C en tra l C o a l & C ok e C o., w as in ju r e d
fe r in g at least p a r tia l p erm a n en t d is a b ility to
p lo y e e r a p p ealed fr o m th e d ecision a llo w in g an
p erm a n en t d isa b ility . T h e qu estion f o r th e
in h is r ig h t eye, s u f
such eye. T h e em a w a rd f o r to ta l an d
c o u r t w a s w h eth er
M o o r e ’s fo r m e r in ju r y sh ou ld be taken in to co n sid e ra tio n at the tim e
o f h is secon d in ju r y in a scerta in in g the a m ou n t o f com p en sa tion f o r
the secon d in ju r y .
T h e a rb itra to r h a d fo u n d th a t i f M o o r e h a d n o t
receiv ed th e fo r m e r in ju r y th e la tter on e w o u ld n o t h a v e d isa b le d
h im to su ch an ex ten t th a t he c o u ld n o t m in e co a l.
th a t th e
Central Coal
& C ok e C o., in
M o o re f o r th e in ju r y t o h is r ig h t eye.
the
a w a rd in
the
1918
It
h a d p a id
w as fo u n d
$1,188 to
T h e e m p lo y e r a rg u e d th a t
secon d case sh o u ld be lim ite d to th e
amount
252
DECISIONS OF T H E COURTS
allowed by the compensation act for the loss of a sing’ e eye. The
Supreme Court of Kansas, however, affirmed the award for total
and permanent disability.
Workmen’s Compensation—Award—Powers, etc., o f Commis
sion— Silvey v. Panhandle Coal Co. No. 5, Appellate Cowrt of Indi
ana (January 12,1927) , 154 Northeastern Reporter, page 778.—Hugh
Silvey, on July 29,1925, while in the employ of the Panhandle Coal
Co. No. 5 as a workman in a coal mine, and while pushing an empty
coal car, slipped and sprained his back. On January 27, 1926, he
filed an application for compensation. On April 19, 1926, an award
was made in his favor of $13.20 a week for 4% weeks, beginning
August 6, 1925, by a member of the industrial board. On a rehear
ing before the full board the award was cut down to 3% weeks May
25, 1926. Silvey appealed from the award. Doctor Funk, appoint
ed by the industrial board, examined Silvey on April 6, 1926, and
reported that the patient complained of pains in his back; that he
was wearing a girdle 6 inches wide around the lower waist line;
that an X ray did not reveal any trouble with the bony contour
whatever. The doctor based his conclusions on subjective symptoms,
and said “ I believe this man should be ordered to work and no
attempt be made at an estimation of permanent partial disability for
at least six months.” The appellate court reversed the award of the
board saying that “ common observation does not prepare men to
believe that a workman who suffered an injury to his spine which
resulted in total disability for 3% weeks would, at the end of that
period, suddenly become able to resume hard labor in a coal mine.
The usual award in such cases is for compensation 4during total
disability not to exceed 500 weeks.’ That plan leaves the way open
for future adjustments in accordance with changed conditions, and
is therefore eminently fair and just. The presumption is that the
injured workman is entitled to full compensation until he is able
to resume work of the same kind or of the same general character
as the work in which he was engaged at the time he received the
injury.” The court pointed out that “ of course, Doctor Funk does
not realize that the industrial board has no power to order men to
work. It is provided by the statute, however, that, if the employer
desires to reduce the amount of compensation for which he is liable,
he must furnish the injured workman employment suitable to his
capacity, and if the workman refuses employment of that kind,
6he shall not be entitled to any compensation at any time during
the continuance of such refusal unless in the opinion of the industrial
board such refusal was justifiable
w o r k m e n ’s
253
c o m p e n s a t io n
W o r k m e n ’ s C o m p e n s a t io n — A w a r d — P r o x im a t e C a u s e — E v i
d e n c e —TJnkovich et al v. Interstale Iron Go., Supreme Court of Min
nesota (January 14, 1927), 211 Northwestern Reporter, page 683.—
Tony Unkovich was employed by the Interstate Iron Co. of Minne
sota. On or about March 20, 1925, while carrying a large wooden
post in the mine of the company, he stepped into a wet spot, slipped,
and fell. The post struck him on the right leg causing a contusion
and discoloration. Septicemia later developed, and he died on
August 23, 1925.
The widow of Unkovich proceeded under the workmen’s compen
sation act for the death of her husband. The referee in compensation
made an award in favor of the widow, which was later adopted by
the industrial commission. The Interstate Iron Co. contended,
among other things, that the blow did not cause an abrasion of the
skin; that infection therefore could not result from the blow; and
that some intervening agency set the poison in motion which steadily
progressed, causing the death. The company carried the case to the
Supreme Court of Minnesota. On January 14, 1927, an opinion
was rendered by Judge Quinn affirming the award of the industrial
commission. After reviewing the statements of several of the wit
nesses the court concluded as follows:
We are satisfied that the testimony of Doctor Smith and Doctor
Reynolds, when considered with the other evidence in the case,
clearly warranted the finding that the injury was the proximate
cause of the final result. There were a great many objections and
exceptions in the record, but we deem it unnecessary to here tra
verse the same. Our conclusion is that the findings of the referee,
as affirmed by the industrial commission, under the rules which
are established by the decisions in this State, a citing of which is here
unnecessary, must stand. The order of the commission, awarding
compensation to the dependents herein, is affirmed. Attorney’s fees
in this court are fixed and allowed at the sum of $200.
W o r k m e n ’s C o m p e n s a tio n — A w a r d — R e v i e w — A t t o r n e y ’s F e e s —
Lindstrom v. Amherst Mining Go. et al., Supreme Court of Minnesota
{January 7, 1927), 211 Northwestern Reporter, page 674-— O sca r
L in d s tro m w as in ju r e d w h ile in th e e m p lo y o f th e A m h e rst M in in g
C o. o f M in n esota.
H e w as p a id
$181.74
in su ran ce ca rrier an d th e e m p lo y e r.
tion aw a rd ed L in d s tr o m
$2,350,
less
as co m p e n sa tio n b y the
L a te r th e re fe re e in com p en sa
$181.74,
f o r p erm a n en t in ju r y .
T h e em p loy ee also a p p lie d f o r reim bursem ent o f a tto rn e y ’s fees.
T h e In d u s tria l C o m m is sio n o f M in n esota a llo w e d a fe e o f
$450.
The
e m p lo y e r a n d th e in su ra n ce ca rrie r o b je c te d o n th e g r o u n d th a t th e
com m ission er h a d n o a u th o r ity to a llo w a tto rn e y ’s fe e s o n a h e a rin g
103151°— 30--------18
254
DECISION'S OF T H E COURTS
before a referee only, and that the fee was not a “ disbursement ”
within the meaning of the statute. The case was carried to the
Minnesota Supreme Court for a determination.
The State supreme court reversed the order of the commission
and on January 7,1927, rendered its opinion in part as follows:
Under our former compensation law costs were allowed as in civil
cases. In ordinary civil actions attorney’s fees are not allowed as a
“ disbursement.” They may be allowed only when authorized by
statute.
Relative to our present compensation act, the legislature has made
three positive declarations: (1) That on the original hearing “ the
prevailing party may be awarded reimbursement for actual and
necessary disbursements.” (2) “ The commission in affirming or
modifying and affirming or reversing a disallowance and allowing
an award may include in such award reasonable attorney’s fees inci
dent to appeal.” (3) “ I f upon * * * review by the supreme
court any award in favor of the injured employee or his dependents
is affirmed or modified and affirmed, or if disallowance is reversed,
the court may allow reasonable attorney’s fees incident to the appeal.”
The last amendment authorizes the commission to allow attorney’s
fees in its award or in a proceeding to tax disbursements.
The legislature having made two express provisions for attorney’s
fees, we can not say that the word “ disbursement,” as used in the
sentence immediately preceding for the benefit of both employee and
employer, was intended to embrace attorney’s fees. The language,
in our opinion, indicates exactly the contrary. It appearing that the
legislature provided for attorney’s fees on appeal to the commission
and when the matter is before this court for review, it necessarily
follows that they did not intend to have attorney’s fees allowed in
the original hearing. I f the legislature intended to include in the
word “ disbursement ” attorney’s fees in the original hearing, they
would not have expressed the meaning in different language in
reference to matters on appeal or review. Indeed, the legislature
has never used the word “ disbursement ” in a way to indicate that
they meant it to include attorney’s fees.
W
o r k m e n ’s
C o m p e n s a t io n — A
w ard—
R e v ie w — C h a n g e
of
C o n d i
t i o n — Gv&zdic v. Inland Steel Co., Appellate Cowrt of Indiana, In
Banc (<January 14, 1927), 154 Northeastern Reporter, page 804-—
Dragic Gvozdic was employed by the Inland Steel Co. of Indi
ana. He sustained an injury on September 4, 1924, which resulted
in a temporary total disability. He filed an application for compen
sation and the industrial board awarded him compensation at the
rate of $13.20 per week during such disability. The award was
affirmed later by the court. The Inland Steel Co. continued to pay
Gvozdic until March 3, 1925, when they refused to pay further com
pensation because the injured employee had become employed by
w o r k m e n ’s c o m p e n s a t i o n
255
another employer at a weekly wage in excess of $24. On November
5, 1925, the company filed an application with the industrial board
for a review of the award on account of change in conditions. The
board, on a hearing, found that there had been a change in Gvozdic’s
condition in that he had been and was doing light work for which
he received weekly wages in excess of $24; that he worked and
received such wages from March 4, 1925, to September 3, 1925, and
from October 13, 1925, to the date of the hearing, February 17,
1926. From September 3 to October 13 he performed no work and
earned no wages. On this finding the board ordered that the com
pany pay to Gvozdic compensation at the rate of $13.86 a week,
that being the amount of the original award, plus 5 per cent increase
provided by law on affirmance of an award by the court.
The allegation set forth by Gvozdic was that the industrial board
should have dismissed the company’s application to review the
original award. In support of this contention Gvozdic stated that
when the application for review was filed the company had defaulted
in payment of compensation. The company denied that they were
in default in the payment of compensation.
The Appellate Court of Indiana affirmed the findings of the board,
saying in part:
The original award of compensation to appellant was in the words
of the statute for an injury “ causing temporary total disability for
work.” Appellant does not claim he was suffering either a total or
a partial disability during the time he was working and earning
wages in excess of $24. He makes no claim that he was not physi
cally able te work during the time he was so working and earning
wages.
The question presented for our determination is, Is an employee
who has been awarded compensation as the result of an injury
resulting in a temporary total disability for work entitled to collect
such compensation for a period of time during which time he
received wages in excess of $24 per week? We think tkis question
must be answered in the negative.
Compensation is not a gratuity. Compensation for disability for
work is intended to make good for a loss. And it has been held that
an award granting compensation during total disability is virtually
a self-annulling award; that is to say, its efficacy ceases when total
disability ends.
Appellant’s contention that the industrial board, as a prerequisite
to the right of appellee to a hearing on its application to review
because of change in conditions, should have required that appellee
pay compensation to the date of the filing of such application, not
withstanding his disability had long prior thereto ceased, can not
be sustained.
Section 45 of the compensation act (sec. 9490, Burns’ 1926) gives
the industrial board continuing power and jurisdiction, “ upon its
256
DECISIONS OF T H E COURTS
own motion or upon the application of either party, on account of a
change in conditions,” to make such modification or change in the
award, ending, lessening, continuing, or extending the payments
previously awarded as it may deem just, subject to the maximum and
minimum amount provided for in the act.
The only other limitations or restrictions placed upon the board
and its right to act on an application for review filed under this
section are that the board “ shall not make any such modification
upon its own motion, nor shall any application therefor be filed by
either party after the expiration of one year from the termination
of the compensation period fixed in the original award.”
In this State a person who is able to and who does receive weekly
wages in excess of $24 is not entitled to an award of compensation on
account of a “ disability for work.” The evidence in the instant case
does not prove a case of temporary partial disability. It is suffi
cient to sustain a finding and award of no disability at time of the
hearing.
W o r k m e n ’ s C ompensation— A w a r d — R e v i e w —Construction o f
Statute— Slatmeyer v. Industrial Commission, Supreme Court of
Ohio (June 8, 1926), 155 Northeastern Reporter, page 4S4-— The
Industrial Commission of Ohio made a finding that one of the em
ployees of Fred H. Slatmeyer met his death because of the viola
tion of a specific requirement for the protection of the lives, health,
or safety of employees, and because of that determination the com
mission granted an additional award of compensation in an amount
equal to 50 per cent of the original compensable award. Slatmeyer
opposed the additional award, alleging that it was in violation of
the due process clause of the Constitution of both the United States
and the State of Ohio for the reason that it failed to provide for a
judicial review. The case was carried to the Supreme Court of
Ohio for a final determination.
The issue involved section 35, article 2, of the Ohio constitution,
as amended in 1923. That part of the amendment pertinent to the
case reads as follows:
Such board shall have full power and authority to hear and deter
mine whether or not an injury, disease, or death resulted because of
the failure of the employer to comply with any specific requirement
for the protection of the lives, health, or safety of employees, enacted
by the general assembly or in the form of an order adopted by such
board, and its decision shall be final.
The question for the court was to what extent the commission’s
decision is final respecting specific requirements, and does that final
ity of decision extend to both questions of fact and questions of law.
O f this the court said in part:
w o r k m e n ’s
c o m p e n s a t io n
257
The language of the amendment is the polestar of this interpreta
tion. Under it the commission has been given full power and
authority “ to hear and determine whether or not the injury, dis
ease, or death resulted because of the failure of the employer to
comply with any specific requirement.” We are of the unanimous
opinion that upon that question of fact the decision of the com
mission is final; but its finality extends only to the determination
whether, in fact, the injury, etc., resulted because of the failure
to comply with such specific requirement. The State having
created under its constitution a board of awards for the determina
tion of that question of fact, there is no violation of the dueprocess clause in failing to provide a judicial review upon that
specific feature. The constitution has committed that question to
the exclusive jurisdiction of the industrial commission sitting as a
board of awards.
Does the finality of the commission’s decisions extend to questions
of law arising in a proceeding where an additional award is imposed
for failure to comply with such specific requirement? In this re
spect this court holds that it does not. The language of the
constitution is plain. The commitment of finality extends only to
the single question of fact to be heard and determined. While the
constitutional amendment may have contemplated that the industrial
tribunal could dispose of a question of fact as well as a court con
stituted for that purpose, it no doubt recognized that, upon legal,
fundamental, or jurisdictional questions, action by a court would be
necessary.
The court, after holding that no legal questions were committed
by the constitution to the final jurisdiction of the commission, said
in part:
I f the original award as well as the added per centum were both
attacked by the employer, there is no doubt that the employer would
have the right to prove that the employee was not an employee,
and that he was not injured at all, or, if injured, that it was" by
self-infliction, or that the injury did not arise within the course of
his employment; and if successful in either, the basis of the em
ployee’s claim having failed, naturally the added per centum could
not be imposed.
I f the added per centum were imposed where no specific require
ment was “ enacted by the general assembly or in the form of an
order adopted by such board,” manifestly the commission’s finding
of failure to comply would be illegal; or if in any manner the
jurisdiction of the commission in respect to a specific requirement
were attacked, that as well as other legal questions would still
remain within the jurisdiction of the courts for the purpose of
review, and a denial of judicial process in those respects would be
a denial of due process.
This court has heretofore held in several cases that an action
brought for the purpose of reviewing awards made under the work
men’s compensation act can not be brought under section 871-38,
General Code. The imposition of the added 50 per cent is an award
just as much as is the original award. The constitution refers to
258
DECISION'S OF T H E COURTS
the added per centum as an “ additional award.” It follows, there
fore, that, both being denominated awards by the constitutional
amendment, the former decisions of this court require that under
the workmen’s compensation act fundamental, legal, or constitutional
features challenging the right to recover the additional award or
per centum can be tried in a suit brought for its recovery, wherein
the question of fact, the finality of which has been committed by
the recent amendment to the commission for determination is
excluded.
The court in conclusion pointed out that Slatmeyer had an adequate
remedy under section 27 of the workmen’s compensation act (sec.
1465-75, General Code) and sustained the industrial commission
on the ground that Slatmeyer could not invoke the court’s juris
diction under section 871-38, General Code, for the purpose of
attacking the additional award.
W
o r k m e n ’s
C o m p e n s a t io n — A
w ard—
R e v ie w — D
is f ig u r e m e n t —
Comar Oil Co. et al. v . Sibley et al., Supreme Court of Oklahoma
(.December 6, 1927), 261 Pacific Reporter, page 926.— T h i s a c tio n
w a s b r o u g h t b y th e C o m a r O i l Co. a n d th e in su r e r , th e A e t n a L i f e
In s u r a n c e
C o ., to
re v ie w
an
a w ard
C o m m is s io n m a d e o n D e c e m b e r
of
10, 1926.
th e
O k la h o m a
I n d u s t r ia l
R o y S i b le y , a n e m p lo y e e
o f th e o il c o m p a n y , h a d b een a w a rd e d th e su m o f $ 2 ,0 0 0 f o r se r io u s,
p e r m a n e n t fa c ia l d isfig u r e m e n t.
The Comar Oil Co. and the insurer contended that the trial com
missioner of the State industrial commission was without authority
to examine Sibley for disfigurement, and that it was a direct viola
tion of the statute to make an award for both a disability and a
disfigurement arising out of the same injury. The Supreme Court
of Oklahoma held that the law controlling this question was settled
by the court in the case of Arrow Gasoline Co. v. Holloway (122
Okla. 257, 254 Pac. 98), in which it was decided that:
The industrial commission may make an award for temporary
total disability, and also an award for loss of hearing and serious
disfigurement; where claimant’s hands were injured, and this con
stituted an element contributing to his disability, and also a portion
of the disfigurement for which the latter award was made, does not
make the award a double compensation.
The court, in concluding the opinion written by Judge Clark, said:
It is well settled in this jurisdiction that the decision of the com
mission as to all matters of fact is final if there is any competent
evidence to support the same.
We have examined the record, briefs of petitioners and respondent,
and find that the judgment and award of the industrial commission
is amply supported by the evidence, and the same is affirmed.
w o r k m e n ’s
c o m p e n s a t io n
259
W o r k m e n ’ s C o m p e n s a t i o n —Award—Review—I n s u r a n c e — Mdry
land, Casualty Co. v. Industrial Commission et al., Supreme Court of
Wisconsin (November 7, 1928), 221 Northwestern Reporter, page
71fl.— T h i s w a s a n a ctio n b y th e M a r y la n d C a s u a lty C o . a g a in s t th e
W is c o n s in I n d u s t r ia l C o m m issio n to re v ie w a n a w a r d o f th e
c o m m issio n .
The Maryland Casualty Co. issued a policy of insurance to George
W. Pollock, covering his liability under the workmen’s compensation
act from June 11, 1925, to June 11, 1926. Pollock alleged that he
entered into a contract with one Kizer, agent of the insurance com
pany, whereby the policy was renewed for a period of one year from
June 11, 1926, to June 11, 1927. On the 28th of June, 1926, Andrew
Hoffman, an employee of Pollock, sustained injuries during the
course of his employment. A report of the accident was made and
application filed for an adjustment of the claim. The insurance com
pany contended that no insurance was in effect at the time of the acci
dent. At a hearing before the industrial commission on November 13,
1926, the insurance company objected to the jurisdiction of the com
mission in determining whether the company was the insurer of Pol
lock on June 28, 1926, the day on which the employee was injured.
The objection was overruled, and the insurance carrier brought an
action in the circuit court of Dane County, Wis., to review the award
made by the industrial commission. The court affirmed the award,
and the insurance company appealed the case to the Supreme Court
of Wisconsin. After reviewing several sections of the Wisconsin
statute relative to provisions of the workmen’s compensation act, the
supreme court on November 7, 1928, in an opinion written by Judge
Rosenberry, reversed the judgment of the lower court, saying in
part:
Subsection 2 of the section provides for the organization of mutual
companies, subsection 3 for the examination of the books of the insur
ance carrier, and subsection 4 for reports. The statute nowhere con
fers upon the industrial commission the authority to hear any dispute
or controversy except those concerning compensation under the act.
A controversy as to whether or not a contract of indemnity exists
between an employer and an insurance carrier can not be said to be
a controversy concerning compensation. A suit upon a policy of fire
insurance does not relate to fire; it relates to the agreement of the
insurance carrier to pay the insured the amount of his loss. The
extent of the fire merely measures the amount of the loss.
So here, as the commission observed, there is no controversy with
regard to compensation. The only controversy in the case relates to
whether or not the plaintiff company entered into a contract with the
employer. In the absence of the workman’s compensation act, there
can be no question but that the plaintiff company would have a right
260
DECISIONS OP T H E COURTS
to have the question of whether or not it was liable and, if it was
liable, the amount of damages determined by a jury trial. The claim
which the employer asserts against the plaintiff company does not
arise out of the workman’s compensation act, but arises, if at all,
out of a contract which the employer entered into with the plaintiff
company. It being once established that an insurance carrier has
entered into a contract with an employer, that contract is then subject
to the terms of the workman’s compensation act because the insur
ance carrier has consented that it shall be so. But to say that the
industrial commission may determine over the objection of the insur
ance carrier that it has made a contract, and that because it has it is
subject to the act, is to beg the entire question. I f the act attempted
to confer in express terms upon the industrial commission power
to determine disputes and controversies arising between employers
and insurance carriers, the act providing for no trial de novo upon
any question, a very serious question as to the constitutionality of
the act would be raised. We do not, however, meet that question in
this case, because the legislature has not attempted to confer such
power or authority upon the commission. By the language of the
statute the industrial commission may determine only those disputes
and controversies concerning compensation under sections 102.03 to
102.34, inclusive.
W
o r k m a n ’s
C o m p e n s a t io n — A
w ard—
R
e v ie w —
I n t e n t io n a l
and
—Western Clay <& Metal Co. et. al. v. Industrial
Commission of Utah et al., Supreme Court of Utah (September 2,
1927), 259 Pacific Reporter, page 927.—On January 10, 1926, Frank
Nelson, while employed by the Western Clay & Metals Co. at Aurora,
Utah, sustained an accidental injury resulting in a total disability
of his right hand. He was injured while greasing an unguarded
gear in the plant. The employer admitted liability, but claimed
that the normal amount of compensation should be reduced 15 per
cent because the employee failed to obey an order or rule of the com
pany that in greasing the gear the employee should not wear gloves.
The employee, on the other hand, made a claim for an increase of
15 per cent of compensation upon the grounds that the injury was
caused by the willful failure of the employer to comply with an
order of the commission that required the gear to be guarded.
A hearing was had before the industrial commission, and the em
ployer’s claim for reduction was denied, and the employee’s claim
for an increase was allowed. The employer and the insurer then
brought the case to the Supreme Court of Utah for a review, con
tending that the commission exceeded its powers in awarding an
increase of 15 per cent in the amount of the normal compensation.
W
il l f u l
A
cts
w o r k m e n ’s
c o m p e n s a t io n
261
The industrial commission made its finding under the authority of
the Utah Compiled Laws of 1917, section 3072, as amended in 1921
by chapter 67, providing that—
Where injury is caused by the willful failure of the employer to
comply with any statute or the State or any lawful order of the
industrial commission, compensation as provided in this act shall be
increased 15 per cent except in case of injury resulting in death.
The industrial commission found that the company had willfully
failed to comply with certain general safety orders previously adopt
ed by the commission. The validity of this finding was challenged
by the company upon the ground that there was no fact to support
it. The State supreme court was of the opinion that there was no
willful noncompliance with the orders of the commission, and di
rected that the order of the commission increasing the award 15 per
cent be annulled. Judge Cherry, in the course of his opinion, said
in part:
We are unable to find any evidence in the record which supports
the finding that the employer willfully failed to comply with the
orders of the commission. In addition to the unsatisfactory evidence
that the employer had knowledge or notice of the safety orders, it
is not entirely clear that the orders required the gear in question to
be guarded. The gear was situated 7 or 8 feet above the floor and
was not exposed to contact except when being greased. There was at
least sufficient uncertainty in this respect to preclude the failure to
guard the gear from being a willful failure within the spirit and
meaning of the law. Besides, the uncontradicted evidence was that
the general manager directed a guard to be constructed, but that the
carpenter delayed doing it for a short time because of lack of suitable
material. This fact negatives any intentional or deliberate purpose
to leave the gear unguarded, and reduced the act of ommission to
mere neglect.
W
o r k m e n ’s
C o m p e n s a t io n — A
w ard
— R e v ie w — J o in t E
mploy
—Hartford Accident c& Indemnity Go. v. Industrial Accident
Commission of California et al., Supreme Court of California (De
cember 19, 1927), 262 Pacific Reporter, page 309.—George Abram, a
minor, was employed by a newspaper proprietor to deliver news
papers to certain subscribers. He was required to commence deliv
eries about 4.30 o’clock in the morning. A driver of a milk truck
traversed in a general way the same territory as that covered by the
newspaper route, and Abram made arrangements to have the driver
pick him up at his home and to carry him and his newspapers over
this general route. In return for the transportation received by
Abram he assisted the driver of the truck in the delivery of milk.
m ent
262
DECISIONS OF T H E COURTS
Abram received no other reward for his services so long as there
were newspapers undelivered. On school days he left the driver
when the delivery of his newspapers was completed. On Saturdays
and Sundays, however, after his newspapers were delivered, instead
of leaving the driver, he continued on with him and assisted him to
the end of the milk route. For this service he was paid 75 cents
and was furnished breakfast by the driver. On the morning of
Saturday, May 15, 1926, Abram at about the hour of 7 o’clock, and
before his newspapers had all been delivered, while reaching for a
bottle of milk in the truck, slipped and fell under one of the wheels
and suffered injuries.
The Industrial Accident Commission of California awarded com
pensation to Abram. The commission found that at the time of the
injury Abram was “ being conveyed in said delivery wagon in the
joint course of both employments.” The ratio of liability of the
respective employers was then computed and the award accordingly
made.
The insurer, Hartford Accident & Indemnity Co., appealed and
requested the State supreme court to review the compensation award.
The insurer contended that the activities of Abram at the time of
the injury had nothing to do with his newspaper employment; that
the injury could not be traced to any risk reasonably incident to the
employment; that the act was for his own personal benefit; that the
commission exceeded its powers, because the injury did not arise out
of and in the course of his employment with the newspaper propri
etor. The insurer also contended that Abram had deviated from his
employment, and at the time of the injury the deviation had not been
completed.
The Supreme Court of California, speaking through Judge Shenk,
did not agree with these contentions, and in the opinion rendered on
December 19, 1927, affirming the award said in part as follows:
It is not essential to the support of an award of compensation that
the injured person must actually have been “ manipulating the tools
of his calling ”—in this case actually in the act of delivering a news
paper. It would have been entirely proper for Abram, under the
evidence, to have employed the truck driver for a cash consideration
to haul him and his newspapers over the newspaper route. The fact
that the consideration was personal service in assisting the driver to
deliver the milk can not affect the principle applicable to the case.
And this assistance was not complete unless it was afforded to the
milk driver at points other than those where newspapers were to be
delivered as well as those where both milk and newspapers were to be
delivered. The newspaper route may well be, as it undoubtedly was
by the commission, considered as a unit. There was no deviation
from the employment so long as the newspaper deliveries were not
completed. Also, the service Abram was performing at the time
w o r k m e n ’s
c o m p e n s a t io n
263
of the injury was in furtherance of the contract made for the benefit
of his newspaper employer and was incidental thereto. A case very
similar to the present one and involving dual employment in the
delivery of milk and newspapers was presented to the court in Press
Publishing Co. v. Industrial Accident Commission (190 Cal. 114, 210
Pac. 820), and the award imposing joint liability on the employers
was affirmed.
It is, of course, well settled that this court will not annul an award
of the commission where there is substantial evidence to support the
commission’s finding and order. And if the findings are supported
by inferences which may fairly be drawn from the evidence even
though the evidence be susceptible of opposing inferences, the re
viewing court will not disturb the award. Such we find the state
of the record in this case to be.
W orkmen’s Compensation — A ward — Review — Jurisdiction —
Weighton et al. v. Austin Co. et alSuprem e Court, Appellate Divi
sion, Third Department, New York (May 2, 1923), 220 New York
Supplement, page 678.—James Weighton was employed by the Aus
tin Co. as a carpenter. While engaged in outside construction work
he fell from a roof and was severely injured. There were conflicting
statements by Weighton, his wife, and the physician, as to the loca
tion and extent of the injury. Upon advice of a physician Weigh
ton was ordered to be sent to a hospital. He was thereupon sent
to a State hospital, having practically lost his mind. The State in
dustrial board made an award in favor of the employee. For a
period of 44 weeks compensation was paid, after which time pay
ments ceased on the ground that Weighton’s condition was not due
to the injury received in the employment, but to paresis. A deputy
commissioner so found and disallowed further compensation. This
finding was subsequently reversed and the industrial board made an
award covering the period from June 7,1918, to May 22, 1922, which
was extended to October 27, 1922, and the case continued for fur
ther hearings. The total award was $3,43$. This amount did not
affect the 44 weeks for which compensation had already been paid.
The employer and the insurance carrier appealed to the appellate
division of the New York State Supreme Court, contending:
(1) That the finding is defective, upon the ground that the State
industrial board did not find that the disability was permanent,
and that such award makes the carrier liable for more and greater
compensation than is provided for temporary disability, which is
fixed under section 15 of the workman’s compensation law (Laws
1914, ch. 41, sec. 15, as amended by Laws 1916, ch. 622) at $3,500;
(2) that the board, having once dismissed the claim, lost jurisdic
tion to reopen it and make an award*
264
DECISIONS OP T H E COURTS
The appellate held against the second objection on the authority
of decided cases (cases cited), and as to the first one the court said
in part:
With the exception found in section 20 of the workmen’s compen
sation law (Laws 1914, ch. 41, sec. 20, as amended by Laws 1915, ch.
167, sec. 1, and Laws 1919, ch. 629), procedure should conform sub
stantially to the rules and provisions of the civil practice act, so
far as applicable. There is a vast difference between “ total per
manent disability ” (sec. 15, subd. 1, of the workmen’s compensation
law as amended by Laws 1917, ch. 705), and “ temporary total dis
ability” (Id. sec. 15, subd. 2 [as amended by Laws 1917, ch. 705]).
This finding is such as should have been based upon permanent total
disability. It is not so found; neither is it found that only tem
porary total disability existed. In the latter compensation termi
nates when $3,500 has been paid; in the former it goes on to the
end of the life of the injured party. The award should be reversed,
and the case remitted to the State industrial board for further action
as indicated above.
Workmen’s Compensation—Award—Review—Powers, etc., op
Commissions—Jurisdiction— Northwestern Casualty & Surety Co.
v. Doud et al., Supreme Court of Wisconsin (November 7 , 1928), 221
Northwestern Reporter, page 766.—The Northwestern Casualty &
Surety Co. issued a policy of insurance to cover compensation of
the employees of Ben C. Gauthier, jr. Gauthier was engaged in
hotel operations and other operations incidental to it. He later en
gaged in logging operations, and while so engaged an employee of
Gauthier was injured. The insurance company raised the objection
before the industrial commission and later before the circuit court of
Dane County, Wis., that the policy issued to Gauthier did not cover
logging operations, and that the industrial commission did not have
jurisdiction to hear and determine the question. The circuit court
sustained the award of the commission against the insurance com
pany and the employer, Gauthier, in favor of Doud, the injured
workman. The insurance company thereupon appealed the case to
the Supreme Court of Wisconsin. This court affirmed the judgment
of the lower court. Judge Crownhart in an opinion said in part
as follows:
The industrial commission is given jurisdiction by section 102.17
to hear all disputes or controversies affecting compensation, and
by section 102.18 to make its finding and award. But appellant
claims that the commission had no jurisdiction to construe the policy
and determine that the company had in law insured the risk. Its
position is erroneous. Every board, commission, or body having
a right to hear and determine a controversy must in the first in
w o r k m e n ’s
265
c o m p e n s a t io n
stance determine its jurisdiction—its ri^ht to proceed. This rule
is elementary. I f it errs in assuming jurisdiction, the aggrieved
party may have a review by certiorari, in the absence of a statute
giving some other due process. (Borgnis v. Falk Co., 147 Wis. 327,
359, 133 N. W. 209.) The commission decided it had jurisdiction
to determine compensation, and necessarily had to determine proper
parties to the award in the first instance. The appellant sought
review pursuant to the compensation act and is bound by the forum
it selected, assuming it had a remedy by certiorari.
Jurisdiction is determined as a matter of law. The statute fur
nishes the same remedy in this respect as certiorari. The circuit
court reviewed the question of jurisdiction of the commission and
sustained it. From that decision the appellant has a right of ap
peal to this court and to be here heard in review of the judgment
of the circuit court. This is due process as to the appellant, which
brought itself under the act by issuing its policy.
After reviewing the statute applicable to the case the court con
cluded that—
The statutes plainly fix the liability of the insurance carrier be
yond a doubt. They were enacted as an amendment to the original
act, obviously pursuant to a sound public policy. It was essential
to prevent just such limitations and uncertainties as here attempted
to be written into the policy. The insurance carriers are amply
protected by their audit of tne pay rolls, the premiums being based
thereon, and rates fixed, based on the various occupations according
to hazard.
W
o r k m e n ’s
C o m p e n s a t io n — A
w ard—
T
emporary
D
is a b il it y —
Eu/reka Cooil Co. et al. v. Melcho, Appellate Court of Indiana, in
Banc (January 12, 1927), 154 Northeastern Reporter, page 774•—Joe
Melcho was employed as a coal miner by the Eureka Coal Co. Melcho,
on September 23, 1924, received an injury by a piece of coal striking
him in the right eye while in the course of his employment. In Janu
ary, 1925, he filed an application for an award of compensation, and
the industrial accident board awarded him compensation for tempo
rary total disability, and on a subsequent application was awarded
compensation fof permanent partial disability. The Eureka Coal
Co. appealed the final award by the board to the Appellate Court of
Indiana, contending that the award could not be sustained because
there had been no change in the condition of Melcho since the first
award was made, and also that since it was shown that prior to the
injury Melcho had suffered from trachoma of the right eye which
had considerably impaired it, the award should therefore be appor
tioned according to the amount of actual loss.
266
d e c is io n s
of
the
courts
The court, in answer to the company’s first contention, said in part:
It will be noted that at the time the first award was made there was
a finding simply of total disability for work during a certain definite
period covered by the board’s finding, and compensation awarded
covering this period; that the said period terminated in February,
prior to the award being made in A pril; that nothing whatever was
said in said finding or award about any “ impairment,” either tem
porary or permanent; and that the compensation awarded appellee
on that hearing was at onee paid, so that appellee was not thereafter
receiving any compensation. While the application upon which the
present award is based may be said, technically, to be an application
tor an award on account of changed conditions, yet actually it sought
an award upon an entirely new matter; viz, permanent partial imairment, a new and distinct matter. As the cause may be said to
ave been “ tried upon this theory,” such theory will be adhered
to on appeal. Upon this theory and under said stipulation said fact
as to a “ change in condition ” was not necessary to sustain the award.
E
In concluding its opinion the court answered the second contention
of the company and said:
As to the reduction of sight to the point of industrial blindness,
the statute, it will be noted, does not start with any definite or fixed
standard as to the sight thereof, and we have no authority to set up
any standard from which to start. In this case the appellee at the
time of the accident had enough vision in that eye to enable him to
work; he was not, as to that eye, industrially blind; now he is so
blind, and this blindness, so one of the physicians who treated him,
an eye specialist, said, was the result of the injury sustained on
September 25, 1924.
The award was therefore affirmed.
W
o r k m e n ’s
C o m p e n s a t io n — A
w ard
— V
ested
R i g h t — P ro ce
—Greenwood et al. v. Luby et al., Supreme Court of Errors of
Connecticut (December 16, 1926), 185 Atlantic Reporter, page
578.—Samuel Greenwood was employed by William J. Luby. On
November 14, 1925, he suffered a total incapacity from pneumo
coniosis and died on April 14, 1926. His incapacity and death arose
out of and in the course of his employment with Luby. On Febru
ary 18, 1926, Greenwood made an application for compensation to
the State compensation commissioner. Before his application was
heard Greenwood died. On April 30,1926, the claim of Mrs. Green
wood as executrix and individually as the dependent widow was
heard by the commission, which awarded her compensation for the
death of her husband and from its date, and in favor of the executrix
of the deceased employee for the period of incapacity from November
14, 1925, to April 14, 1926.
dure
w o r k m e n ’s
c o m p e n s a t io n
267
Luby appealed to the superior court of New Haven County, Conn.
This court affirmed the award to the dependent widow and overruled
the award to the executrix and sustained the appeal.
The widow as executrix carried the case to the supreme court of
errors of Connecticut, appealing from that part of the judgment
of the superior court overruling the award made by the commission
to the executrix. The question raised upon the appeal was as to
the right of the commissioner to award compensation for incapacity
where application is made in the lifetime of the employee, but whose
death follows before the award is made.
The court of errors held that the answer to the question would be
found in ascertaining the relation of the deceased to compensation
for his incapacity in the period prior to his death. The court cited
the case of Jackson v. Berlin Construction Co. (98 Conn. 155, 157,
105 Atl., 362), in which it previously decided the relation of the em
ployee to compensation which is paid to him for his incapacity, or
which has accrued but is unpaid, in these words:
It (the compensation) is paid to him because the statute intends to
provide support for him during his period of incapacity. Whatever
is paid him belongs to him. Whatever of compensation accrues in
his lifetime and is unpaid becomes upon his decease an asset of his
estate.
Other cases in which the Connecticut courts had placed a similar
construction on the statute were cited, after which the court said in
part:
The act thus vests in the employee the right to an award for the
compensation provided by the act for him. The right arises by
operation of law as soon as the incapacity exists, and it continues
during the incapacity of the employee and only ends with his decease.
I f the award has been made, the accrued portion of it remaining
unpaid belongs to his estate in accordance with the decisions quoted.
The trial court based its decision upon the theory that the intent of
the compensation act is to provide compensation to the workman and
upon his decease to his dependents. And that if the estate of the
workman received the compensation for his incapacity which had
accrued before his decease, this would enrich his estate, and perhaps
strangers, instead of benefiting his dependents, and so defeat a pri
mary purpose of the act. This is an erroneous application of the
true theory of our compensation act. The compensation accrued
before the workman deceased, his right to it had vested, hence it
survived to his estate. Had he collected it, it would have been his
in lieu of his wages which, but for his incapacity, he would have
received. It is possible that the accrued compensation constituting
this award may go to the relatives of the deceased workman who
were not his dependents, but it is far more probable that it will help
meet the expenses which his incapacity and his illness preceding hia
decease have entailed.
268
DECISIONS OF T H E COURTS
The appeal from the finding and award of the commissioner was
defective m that it failed to set forth the grounds or reasons of the
appeal. There is error; that part of the judgment overruling the
award of the commissioner to the executrix and sustaining the appeal
therefrom is set aside, and the superior court is directed to enter its
judgment dismissing the appeal from the commissioner in toto.
W orkmen’s Compensation—A ward—V ested R ight—Surviving
Beneficiaries— Bry-Block Mercantile Co. v. Carson, Supreme Court
of Tennessee (December 18, 1926), 288 Southwestern Reporter, page
726.— C. A. Carson was employed as a carpenter by the Bry-Block
Mercantile Co. He received an injury in the course of his employ
ment, as a result of which it was necessary to amputate his leg.
The wound did not heal properly, gangrene set in, and it was nec
essary to perform subsequently four separate operations. About
five or six weeks after the last operation Carson died. The BryBlock Mercantile Co. paid Carson $11 per week from the time he
was hurt until the time of his death. Upon the death of Carson
the company refused to make further payments to the widow. The
widow accordingly brought an action in the circuit court of Shelby
County, Tenn., to recover as widow and dependent of Carson for
his death resulting from an accident sustained in the course of his
employment. In her petition the widow also asked for an alterna
tive relief, if it should be found that her husband’s death did not
result from the accident. For the loss of a leg the husband would
have been entitled to $11 per week for 175 weeks. He had been paid
for 92 weeks and the widow claimed that she was entitled to collect
$11 a week for the 83 remaining weeks.
The judge of the circuit court dismissed the petition, in so far
as it sought recovery as a dependent, but held that the right of the
husband which he would have had if living to collect $11 per week
for 83 weeks survived to the wife. Both of the parties appealed to
the Supreme Court of Tennessee. This court sustained the judg
ment of the lower court in its finding that the employee’s death was
not caused by the accident and that therefore the widow could not
recover as a dependent. The supreme court, however, could not hold
as the court below did that there was a vested right in Carson, and
upon his death the balance due passed to his widow. Relative to
this question the supreme court said in part as follows:
We think this holding can not be sustained. I f Carson had a
vested right at the time of his death to recover compensation for
83 additional weeks, if this was a debt due him, the right to collect
this debt would have passed to his personal representative. The
w o r k m e n ’s
269
c o m p e n s a t io n
proof shows that he left two children. The widow was merely one
of his distributees. There is no showing as to his indebtedness.
Under such circumstances no one of the distributees, nor all of them,
could bring suit upon such a claim. It would have to be brought
by Carson’s administrator.
Beyond this, however, we are of opinion that Carson’s right to
receive compensation for 83 additional weeks died with him and did
not survive to any one. To this effect is the decided weight of
authority. (Cases cited.) Reasons given in the cases are that it is
the purpose of workmen’s compensation acts to make industry take
care of its casualties. To that end compensation is provided for
injured workmen in lieu of wages. Wages cease with death, and
likewise compensation received in lieu of wages must cease with
death. I f the employee die from natural causes, his representatives
have no claim against the employer. I f the death results from in
juries received in the industry, there are special provisions to take
care of the employee’s dependents. It would put an additional
burden on the employer, not contemplated by the statutes, to require
him to pay either wages or compensation to representatives of an
employee who died from natural causes. I f an employee had a
vested right in compensation, he could will it away, and the employer
would be paying this substitute for wages to persons with whom he
had no connection. These and other reasons seem to abundantly
sustain the majority rule.
The judgment was therefore modified and the action was dismissed.
W
o r k m e n ’s
C o m p e n s a t io n — A
ward—
W
ages
F
rom
P r o fit s —
Griglioni v. Hope Goal Go., Supreme Court of Kansas {March 10,
1928), 264 Pacific Reporter, page 1051.—Tony Griglioni was em
ployed as a coal miner by the Hope Coal Co. of Kansas. He was in
jured in an accident which arose out of and in the course of his
employment. An arbitrator found that Griglioni was at the time of
his injury an employee of the coal company and awarded him com
pensation. The coal company appealed the award to the district
court of Cherokee County, Kans., where a judgment was given to
the employee. The coal company upon the court’s refusal to modify
the award made by the arbitrator appealed to the Supreme Court of
Kansas.
From the facts in the case it appeared that Griglioni was a stock
holder in the company. He with other stockholders worked for the
company, mining coal and doing other necessary work about the
coal mine. Griglioni and the other stockholders who were employed
by the company received their share of the profits for their labor
instead of fixed wages. The company contended that this made the
corporation a cooperative coal-mining company in which the owners
worked for themselves and divided the profits of their enterprise*
103151°—30----- 19
270
DECISIONS OF T H E COURTS
The supreme court in answering this contention of the company
said:
I f the defendant had been a partnership or a voluntary association
of individuals and not a corporation there might be some force in
this argument. The defendant was an entity, separate and apart
from the persons who were stockholders in it, and could deal with
them the same as though they were not stockholders. The fact that
the plaintiff was a stockholder did not destroy his right to become an
employee of the corporation and to receive compensation from it if
he sustained such an injury as is covered by the workmen’s compensa
tion law.
As to the company’s contention that the district court erred in
refusing to modify the award of the arbitrator, the supreme court,
speaking through Judge Marshall, said as follows:
The plaintiff had been employed in the mine of the defendant for
less than 12 months preceding his injury; for that reason his compen
sation could not be computed under the provisions of subdivision (a)
of section 44^511 of the revised statutes. No employee of the de
fendant did the same work as the plaintiff for the year next pre
ceding the date of his injury, and, for that reason, plaintiff’s com
pensation could not be computed under the first provision of subdi
vision (b) of section 44r-511.
The amount of compensation to the plaintiff fixed by the arbitrator
was based on the testimony of a coal miner from another mine in
the same district, who testified that his earnings for the year pre
ceding the injury of the plaintiff was $1,774.31. That testimony
was introduced under the last provision of subdivision (b) of section
44r-511 of the revised statutes. That testimony could not be used
as a basis for computing compensation in the present case unless it
was shown that the witness had been doing the same or similar kind
of work as that done by the plaintiff.
In the absence of proof that 60 per cent of the average weekly
earnings of a person in the same grade employed by the same or
other employer in the said district at the same or similar work during
the 12 months immediately preceding the injury to the plaintiff
exceeded the sum of $6 a week, the plaintiff is entitled to the mini
mum only of compensation, or $6 a week.
The case was therefore referred again to the district court with
directions that a judgment be given to Griglioni for compensation
at the rate of $6 per week. The judgment was affirmed in all other
respects.
W
o r k m e n ’s
C o m p e n s a t i o n — B a s is
of
A
w ard—
44 A
verage
W
eekly
—Merrill v. State Military Department, Court of Appeals of
Maryland (March 9, 1927), 136 Atlantic Reporter, page 897.—Cor
bin H. Merrill while attending a camp of instruction in Virginia,
where he had gone under orders of his superior officer, suffered a
temporary total disability from injuries arising out of and in the
W
age”
w o r k m e n ’s
271
c o m p e n s a t io n
course of his employment as a member of the Maryland National
Guard. He filed a claim for compensation and was awarded com
pensation at the rate of $8 per week. The award was reversed on
appeal to the Baltimore City Court and the case was then taken
to the Court of Appeals of Maryland. The only question pre
sented was what was meant by the phrase 46average weekly wage ”
in the law which was to be the basis of the award. The court said
that the legislature intended to afford some reasonably adequate
relief to the members of the National Guard injured in the course
of their service, and since that intention can be effected in no other
way it must have intended to base the compensation payable to them
either upon a theoretical week based upon their daily wage when in
actual service or upon the wages paid them during the only period
in the year when they must serve “ full time ” for 15 days con
tinuously. The Baltimore City Court was reversed and the conten
tion of the State military department that “ average weekly wage ”
was to be ascertained by dividing the total amount actually paid
to the militiamen during the year preceding the encampment by 52
was not upheld, the court saying that it could not suppose that the
legislature meant to do such a thing nor that it meant to hold out
to persons serving the State as members of its National Guard
an illusory promise of relief from the consequences of injuries
received in the course of that service.
W
o r k m e n ’s
C o m p e n s a t io n — B
a s is
of
A
ward—
D
ependency—
R e
Pacific Indemnity Co. v. Industrial Accident Commission et
al., Supreme Cowrt of California (June 26, 1928), 268 Pacific Re
porter, page 633.—This action was brought by the Pacific Indemnity
Co. in the Supreme Court of the State of California to review an
order of the industrial accident commission in favor of Mrs. Minnie
Jaynes for the death of her son John, while in the employ of the
Page Modern Garage of San Francisco. The award was based
upon the finding of the commission that the son left surviving him
his mother who was wholly dependent upon him. The award was
for $4,446, payable at the rate of $18.52, beginning on September
8, 1927, and continuing until paid. It was also provided that all
payments should bear interest from the date of the award until
paid.
The insurance carrier contended that there was nothing to show
dependency of the mother; that the findings of the commission were
insufficient to support the award; and that the commission was with
out authority in allowing interest upon the deferred payments.
In support of its claim, the insurance carrier relied upon facts
which tended to show that the mother was, at the time her son
v ie w —
272
DECISIONS OF T H E COURTS
John was injured, receiving support from another of her sons, who
was residing with her at the time, and also that she was receiving
compensation as manager of the apartment house in which she and
her two sons were residing as tenants.
The Supreme Court of the State of California in rendering its
opinion held that the mother was dependent on the deceased son, that
the other son contributed nothing to her support, and also held
that the commission was justified in disregarding the amount re
ceived by her from the apartment house owner as inconsequential
in determining the question of dependency.
Answering the contention of the insurance carrier that the award
of the commission can not be sustained without a finding as to the
average annual earnings of the deceased employee, the court said:
While the finding is not clear or as explicit as it might be, yet we
think it is sufficient for the purpose intended. Having found the
average weekly earnings of the deceased, it was simply a matter of
computation under the provisions of the “ workmen’s compensation
insurance and safety act ” to ascertain his average annual earnings.
The basic fact, therefore, for determination by the commission, was
the average weekly earnings of the deceased, and, having found that
fact, the commission could and did compute the amount of the award
based upon said average weekly earnings.
Petitioner contends that there was no evidence to support the find
ing of the commission as to the average weekly earnings of the de
ceased. It is true that there is no evidence that deceased worked in
the same employment as that followed by him at the time of his
injury for the period of 260 days, as provided by section 12 (a) (1)
of said act (St. 1913, p. 1012, sec. 12, as amended by St. 1915, p. 1079,
sec. 2), but it was stipulated by the parties to the proceeding before
the commission that the average earnings of the deceased were $5
per day, working six days per week. This stipulation, we think,
was sufficient to support the finding of the commission as to the
average weekly earnings of the deceased.
The supreme court in conclusion held that the award allowing
interest on the unpaid balance of the award was without authority
of the commission, basing its opinion on the case of Pacific Indemnity
Co. v. Industrial Accident Commission (Cal. Sup.), 261 Pac. 987.
The award was therefore affirmed as to the question of dependency
and the average annual earnings of the deceased employee, and
annulled as to the order providing for the payments of interest.
W
o r k m e n ’s
C o m p e n s a t io n — C a s u a l
E
mploym ent—
I
njury
in
—York Junction Transfer & Storage
Co. et al. v. Industrial Accident Commission of California et al., Dis
trict Court of Appeal, Second District, Division 2, California (Feb
ruary 24, 1927), 254 Pacific Reporter, page 279.—Arthur Eckstrom
the
C ourse
of
E
m ploym ent
w o r k m e n ’s c o m p e n s a t io n
273
maintained a furniture repairing shop in the city of Los Angeles,
Calif., known as the Highland Park Enameling Co., wherein he
engaged in cabinetmaking, furniture repairing, polishing, upholster
ing, etc. The York Junction Transfer & Storage Co. conducted a
general trucking and storage business. In moving household effects
the transfer con^pany at times injured or broke pieces of furniture
and it was their custom to engage Eckstrom to repair them, either at
his shop or at the residence of a patron whose articles had been so
damaged. On one occasion the transfer company conveyed Eckstrom
to the home of one of its patrons to refinish certain furniture which
it had removed there, and while he was being returned to his shop
in an automobile belonging to the company was in a collision with
another car and sustained injuries.
In a proceeding under the workmen’s compensation act, the indus
trial commission found that the injury occurred in the course of and
arose out of the employment, and awarded compensation to Eclsstrom. The company thereupon appealed the award to the district
court of appeal, second district, division 2, of California, contending
that he was not an “ employee,” but was acting as an independent
contractor.
It appeared from the facts in the case that the employer had no
preference as to calls for the service of Eckstrom compared with other
people, that no definite price for his services had ever been agreed
upon, although it had paid him 75 cents per hour for ordinary cus
tom work and that during a period of several months it had paid
him an aggregate of only $44.55. It further appeared that the em
ployer exercised no supervision over the manner in which the work
was done.
The court of appeal on February 24, 1927, annulled the award of
the industrial accident commission, and, in an opinion by Judge
Craig, said in part:
Under the facts as above delineated, it is apparent that the par
ticular employment in which Eckstrom was engaged was both casual
and without the “ trade, business, profession, or occupation of his em
ployer.” Under such circumstances the employer is not liable under
the provisions of the workmen’s compensation act. The business of
the employer, York Junction Transfer & Storage Co., was a general
trucking and storage business. This is the only business in which
said employer is shown by the record to have engaged. I f the re
pairing of furniture was also a part of its business, it was incumbent
upon the applicant to have established that fact. On the other hand,
the employment was casual. The term “ casual ” is defined by sub
division (c) section 8 of the act (St. 1917, p. 831), as referring
“ only to employments where the work contemplated is to be comleted in not exceeding 10 working days, without regard to the numer of men employed, and where the total cost of such work is less
E
274
DECISIONS OF TH E COURTS
than $100.” When on the 2d day of October, 1925, Eckstrom was
asked by a representative of the York Junction Transfer & Storage
Co. to go to Rimpau Avenue and repair some furniture, it can not
be doubted that both the employer and the employee realized that
the employment would not involve a compensation amounting to
$100, or that its duration would not be as much as 10 days. It is
immaterial that occasionally, but at no regular intervals prior to this
time, the company had engaged Eckstrom’s services in a like manner.
Each occasion was entirely distinct from the others, each was charged
for separately, and there is nothing to indicate any continuing
contract of employment.
W o r k m e n ’s C o m p e n sa tio n — C o n t r a c t o r — C a s u a l E m p lo y m e n t —
Thompson v. Wagner, Supreme Court of New Jersey (January 25,
1927), 135 Atlantic Reporter, page 800.— L e r o y T h o m p s o n w a s h ire d
as a la b o r e r to c le a r th e r a ilr o a d tra c k s o f sn o w . His e m p lo y e r w a s
C h a r le s W a g n e r , w h o a p p a r e n tly w a s c o n n e cted w ith th e E r i e R a i l
r o a d C o . as a n in d e p e n d e n t c o n tr a c to r , a n d w a s c h a r g e d w it h the
d u t y o f h a v in g th e sn o w c le a re d o ff.
fo r c e a ss ig n e d to su c h d u ty .
T h e r e w a s n o r e g u la r w o r k in g
T h e p ra ctic e w a s to ta k e o n b y th e d a y
o r h o u r a n y a b le -b o d ie d u n e m p lo y e d m en w h o m ig h t p rese n t t h e m
se lv e s, set th e m to w o r k , a n d as so on as th e sn o w w a s c le a r e d , d is
c h a r g e th e m .
T h o m p s o n w a s in ju r e d b y th e sh o v e l o f a n o th e r m a n
s t r ik in g h is fin g e r , g a n g r e n e la te r s e ttin g in , w h ic h cau se d th e lo ss
o f h is fin g er.
He
filed c la im , a n d an a w a r d w a s m a d e b y th e lo w e r
c o u r t in fa v o r o f T h o m p s o n , w h e re u p o n h is e m p lo y e r c a r r ie d th e
case to th e S t a te su p r e m e c o u r t.
The employer contended that the accident was not shown to have
arisen out of and in the course of the employment, and secondly that
the employment was a casual one, hence not within the statute. The
higher court in setting aside the award based its findings on a pre
viously decided case in New Jersey—Laspada v. Public Service Rail
way Co. (38 N. J. Law J. 102), in which it was held that shoveling
snow under circumstances substantially identical with the instant
case was a casual employment. In deciding whether the Laspada
case, in view of the amendment of Public Laws, 1919, page 212, para
graph 9, was a valid precedent the higher court said:
The commissioner who heard the case, giving due weight to the
cited decision, considered that the amendment of 1919 had altered
matters in such wise that the decision was no longer a valid prece
dent. However this may be, we think the Laspada case was well
decided, and are unable to see that the language added to the stat
ute and quoted above operates to make the petitioner’s employment
other than casual. It was of course “ in connection with the em
ployer’s business,” and consequently the question is whether it was
employment “ the occasion for which arose by chance, or was purely
accidental;” if either, it was casual. We think it was plainly the
w o r k m e n ’s
275
c o m p e n s a t io n
first, if not the second. Whether there was occasion for it depended
entirely on whether a snowfall should occur. This was, of course,
likely to occur at some time in the winter season, but not certain, and,
should it occur, the time of concurrence depended wholly on vicissi
tudes of atmospheric conditions.
The court therefore concluded that the employment was clearly
casual, and set aside the award.
W
o r k m e n ’s
C o m p e n s a t io n — C o n tractor— C o n tr a c t
of
E
mploy
Henry v. Mondillo, Supreme Court of Rhode
Island (June <5, 1928), 1J±2 Atlantic Reporter, page 230.— James E .
F. Henry was a physician, and had performed medical treatment for
Christopher Flynn, alleged to have been an employee of Christopher
Mondillo. Flynn was injured on January 26, 1927, while at work
in a sewer catch basin as a bricklayer. In 1926 Mondillo, a sewer
contractor, secured a contract from the city of Providence, R. I.,
to lay sewers in certain streets. He engaged Flynn to build all of
the required manholes and catch basins. Mondillo was prohibited by
his contract with the city from subletting any of the work without the
written consent of the city, and he had no authority to employ an
independent contractor. Flynn furnished his own tools, and the
city furnished materials for the sewers.
On the day on which Flynn received his injuries he was being
drawn up by a rope to the surface of the street by one of Mondillo’s
workmen. In an action before the superior court Mondillo claimed
that Flynn was an independent contractor and not an employee.
The cause was heard by a justice of that court who decided that
Flynn was not an employee.
The case was carried to the Supreme Court of Rhode Island by
the physician to recover from Mondillo for the medical treatment
rendered Flynn. The main question involved is whether Flynn was
an employee within the meaning of that term in the workmen’s
compensation act. The State supreme court reversed the decree of
the superior court and held that Flynn was an employee. The court
in rendering its opinion said in part:
m ent—
E
mployee—
The meaning of the term “ employee ” as it is not defined in the
act is to be deduced from the common law and the provisions of
the act. In 28 R. C. L. (pp. 762, 763), the following statements*
are a fair summary of the law: One who contracts with another
to do a specific piece of work for him, and who furnishes and has
the absolute control of his assistants, and who executes the work
entirely in accord with his own ideas, or with a plan previously
given him by the person for whom the work is done, without being
subject to the latter’s orders in respect to the details of the work,
with absolute control thereof, is not a servant of his employer, but
276
DECISIONS OF T H E COURTS
is an independent contractor. The test is to be found in the fact
that the employer has or has not retained power of control or
superintendence over the contractor or employee.
The trial justice held Flynn was not an employee because he
built the catch basin for a fixed price “ and without any apparent
control upon the part of the contractor.” But those considerations,
although weighty, are not decisive. The final test is not the actual
exercise of the power of control, but the right of the employer to
exercise power of control.
The court after citing several cases involving the principle of
employee and independent contractor continued:
The question in each case is to be decided from the provisions of
the contract of employment, together with the particular circum
stances. In the case at bar Flynn was to give his personal services
in sewer construction work on prescribed plans and under a contract
for which respondent was responsible. He did not furnish his own
helpers, nor were they under his absolute control. He worked with
the servants of respondent in the business of respondent in accord
ance with his directions, upon premises not under his control, and
with appliances such as staging, rope, and building materials, which
he did not select or furnish. In the circumstances, the method of
payment, the option as to time in doing his work, and the fact that
his employer did not give unnecessary instructions did not make
him an independent contractor. We are of the opinion that he was
an employee of the respondent.
W o r k m e n ’ s C o m p e n s a t i o n — C o n t r a c t o r — D a m a g e s — Montgomery
v. Board of Commissioners of Erie County, Court of Appeals of
Ohio, Erie County (April 21, 1927), 158 Northeastern Reporter,
page 278.—Frank R. Montgomery brought an action against the
Board of Commissioners of Erie County, Ohio, to recover damages
for personal injuries suffered by him on July 21, 1923. The Board
of Commissioners of Erie County had for many years maintained in
the courthouse in the city of Sandusky, Ohio, a tower clock located
about 75 feet above the ground. On March 29, 1923, Montgomery
entered into a written contract with the county commissioners to keep
the tower clock in repair for a period of one year commencing April
1,1923, for the sum of $50. In order to reach the clock it was neces
sary for Montgomery to pass over certain floors and while doing
so the floor gave way and he fell a distance of about 35 feet to a
lower floor, thereby sustaining serious injuries.
Montgomery contended that under the provisions of section 146576, general code, he was entitled to recover damages on account of
the failure of the commissioners to maintain a safe place for the
W O R K M E N *S COM PENSATION
277
employees. The commissioners on the other hand contended that the
relation of employer and employee did not exist between the parties
to the action, but that Montgomery was an independent contractor,
for which reason the workmen’s compensation law did not apply.
The Court of Appeals of Erie County, Ohio, found that the lower
court had committed no error and dismissed the petition. In the
opinion written by Judge Richards, affirming the judgment of the
trial court, he said in part:
It is apparent from the averments of the second amended petition
that the defendant did not reserve any control over the plaintiff, or
the work to be performed by him, but only the right to approve the
materials and the result of the work. The means and methods which
the plaintiff should employ in repairing and regulating the clock
and complying with the contract were all left to him. It seems clear
that he might use the appliances already there, or furnish others of
his own, if he saw fit. We are satisfied that the relation of master
and servant did not exist between the parties, but that the plaintiff
by the terms of his contract became an independent contractor, and
nothing more. It is, of course, true that the provisions of the work
men’s compensation act can have no relation to a case wher'e the
plaintiff is not an employee.
By the provisions of section 1465-61, general code, paragraph 3,
a person in the service of an independent contractor may under cer
tain circumstances be treated as the employee of the original con
tractor, but the terms of the statute do not provide a remedy for the
independent contractor himself, and it therefore results that the
plaintiff has no right of action under the terms of the workmen’s
compensation law.
W o r k m e n ’s C o m p e n s a tio n — C o n t r a c t o r — D e a t h — Clark v. Mon
arch Engineering Co., Covtri of Appeals of New York (May 1 ,1928),
161 Northeastern Reporter, page 1$6.— F r e d e r ic k E . C la rk w as k ille d
w h ile an em p loyee o f a su b con tra ctor e n g a g e d in the co n stru ctio n o f
a b u ild in g . T h e M o n a rch E n g in e e rin g C o . w as th e g en era l c o n
tra ctor. A n a ction w as in stitu ted b y L en a C la rk , w ife o f th e d e
ceased em p loy ee, in th e N ew Y o r k S u prem e C ou rt, A p p e lla te D i v i
sion , F o u r th D ep a rtm en t, a g a in st the g en era l co n tra cto r, a lle g in g
n eg lig en ce o n th e p a rt o f th e com p a n y .
A judgment was rendered in favor of the widow. The company
thereupon carried the case to the Court of Appeals of New York,
where the decision of the lower court was affirmed. The company
appealed on the ground that the liability imposed upon a general
contractor under section 56 of the workmen’s compensation law
(Consolidated Laws, ch. 67) is “ exclusive and in place of any other
liability whatsoever.”
278
DECISIONS OF TH E COURTS
In rendering its decision affirming the lower court, the court of
appeals, through Judge Lehman, said in part:
Section 56 of the workmen’s compensation law, enacted in 1922, did
impose a liability theretofore unknown in our law upon, a general
contractor. That section still leaves liability to secure and pay or
provide compensation to an injured employee or his dependents
primarily upon the subcontractor who employed him. It places,
however, a secondary liability to pay compensation upon the gen
eral contractor, unless the subcontractor has fully met his primary
liability. The defendant maintains that this new and secondary
liability of the general contractor is exclusive, and destroys any
common-law right of action for negligence or wrong wliich might
otherwise exist.
If the legislature intended that such secondary liability should
be exclusive, it has not expressed that intent, as it might have done,
in clear terms. We are asked to apply the provisions of section 11
of the workmen’s compensation law to the new liability created by
section 56 of the law, though in terms section 11 applies only to 44the
liability * * * prescribed by the last preceding section.” Ar
guments in favor of such an extension of the provisions of section
11 of the workmen’s compensation law are not without some force.
Other States have enacted workmen’s compensation laws which, like
our own, impose some liability on a general contractor for injuries
to the employees of subcontractors. In some jurisdictions the courts
have held that the liability imposed by statute upon the general
contractor is exclusive and m place of any common-law liability for
wrong or negligence.
The question before us is, indeed, narrower than that which coun
sel in this case have argued. The liability imposed by section 10
upon every 44employer ” is primary and absolute. The liability im
posed upon a general contractor is secondary and contingent. Where
the subcontractor has secured compensation for his employees, a gen
eral contractor is under no statutory liability. Section 56 has no
application in such case. Here there is neither plea nor proof by the
defendant that the subcontractor failed to secure compensation. The
question before us is not whether a general contractor who is under
a liability to pay statutory compensation to an 44employee,” because
the subcontractor primarily liable therefor has failed to secure com
pensation, is also subject to common-law liability for negligence or
wrong. The question is whether the common-law liability no longer
exists, even though it does not appear that the general contractor in
this particular case is under any statutory liability. We consider
at this time no other question.
It is true that the language of section 56 may indicate that when
claim to compensation is asserted by an employee against a general
contractor the burden of showing that the subcontractor primarily
liable had secured compensation is thrown upon the general con
tractor. We do not pass upon such question now. Where, however,
the general contractor asserts that he is .relieved of a common-law
liability because the statute has imposed upon him a new liability
in its place and stead, he should at least plead and prove that he is
in fact under the statutory liability. Caution may dictate to a gen
W O R K M E N *S COM PENSATION
279
eral contractor that he should insure himself against a contingency
that by reason of the failure of the subcontractor to secure compen
sation liability against the general contractor may arise; yet until
that contingency arises the general contractor is under no statutory
liability to an employee of the subcontractor. He must respond only
for damages caused by his own negligence or wrong. It seems to
us quite clear that the legislature did not intend to provide exemption
to the general contractor from common-law liability, at least where
no statutory liability is shown to have arisen. .We do not decide
whether a statutory liability, when it arises, may exist contempo
raneously with a common-law liability.
W o r k m e n ’ s C o m p e n s a t i o n — C o n tr a c t o r — D e a t h — I n j u r y — Purk
able et al v. Greenland Oil Go., Supreme Gourt of Kansas (February
12, 1927), 253 Pacific Reporter, page 219.—The Greenland Oil Co.
was engaged in the business of developing mineral resources of leased
lands in the State of Kansas. In the prosecution of this business
drilling rigs were erected. The work of tearing down and rebuild
ing derricks was let to a derrick builder, F. J. Hedges, who furnished
his own tools, employed his own workmen, and did the work accord
ing to his own plan and method, for a standard price, free from the
control of the company.
The vice president of the company who had charge of development
and production directed Hedges to take the derrick from a lease on
which the company had been operating and build a 74-foot derrick
on another lease referred to as the Shambaugh lease. Hedges em
ployed Harry V. Purkable as a workman, and when the new derrick
was partially completed, Purkable fell from it and received injuries
which resulted in his death.
Margaret A. Purkable proceeded under the Kansas workmen’s
compensation act in the district court of Greenwood County, Kans.,
against the oil company to recover compensation on account of the
death of Harry V. Purkable. In this court a judgment was recov
ered in favor of Margaret A. Purkable. The company thereupon
appealed to the Supreme Court of Kansas, contending that Hedges
was an independent contractor, and because Purkable was employed
by Hedges the company was not liable. The company denied that
the building of derricks was part of its business, and that the most
that could be said of such work was that it was merely ancillary or
incidental to the company’s business.
The liability of the company to pay compensation is predicated
on the subcontracting section of the State workmen’s compensation
act. That section provides that:
When any person, called principal, undertakes to execute any work
u which is a part of his trade or business,” and contracts with another
person, called contractor, for execution of the whole or any part of
280
DECISIONS OF TH E COURTS
the work, the principal shall be liable to pay to a workman employed
in execution of the work any compensation for which the principal
would have been liable if the workman had been employed directly
by the principal.
The supreme court found therefore that a derrick was a part of
necessary equipment for drilling an oil well, that the construction
of such derrick was a part of the business or work of drilling such
well, and that the company was liable to pay compensation under
the provisions of the subcontracting section of the workmen’s com
pensation act.
Wo r k m e n ’s
C o m p e n s a t i o n — C o n t r a c t o r — E m p l o y e e — M edford
Lumber Co. et al. v. Mahner et al., Supreme Court of Wisconsin
(October 9, 1928), 221 Northwestern Reporter, page 390.—Joseph
Mahner entered into a written contract with the Medford Lumber
Co. of Wisconsin, agreeing to cut, log, and deliver certain timber
standing on lands described in the agreement. While prosecuting
the work under the contract Mahner sustained injuries resulting in
his death.
The Industrial Commission of Wisconsin awarded compensation
to the widow of Mahner. The lumber company brought an-action
in the circuit court for Dane County, Wis., to set aside the award of
the industrial commission. The contention of the Medford Lumber
Co. was that Mahner was an independent contractor and hence not
an employee of the company.
The circuit court gave a judgment to the widow affirming the
award of the industrial commission. The company thereupon car
ried the case to the Supreme Court of Wisconsin, for the reason
that by the terms of the contract entered into between, the parties
no right of control as to the details of the work was retained by them
and therefore they could not be considered an employer of Mahner.
The State supreme court held in favor of the company and
reversed the judgment of the lower court and ordered the award of
the industrial commission set aside. The opinion of the court was
written by Judge Owen, who in sustaining the contention of the
lumber company, said in part as follows:
A provision in a contract reserving in the one who is contracting
for the performance of the work the right to supervise and direct
the work is very common in contracts of this character, and especially
in construction contracts. Generally the purpose of such a pro
vision is to see that the work is so executed as to bring about the
result contemplated by the contract. It is the ultimate result, and
not the manner in which it shall be done, with which the owner is
concerned. He has a right to see that proper materials are used,
that the work is done in a workmanlike manner, etc., and where
w o r k m e n ’s
c o m p e n s a t io n
281
he has that right his failure to object seasonably, under some circum
stances, constitutes a waiver of his* right to insist upon a full and
faithful performance of the contract. The object and purpose of
such a reservation, in connection with the work to be performed, must
be kept in mind in determining whether it reserves to the owner
control over the details of the work. We have been cited to no
case in which it has been held that such a provision reserves to the
one contracting for the performance of the work control over the
details of the work. On the contrary, appellants cite many cases
holding that such a provision reserves to the one contracting for
the performance of the work only such supervision as is reasonably
necessary to see that the ultimate result contemplated by the contract
is produced.
We must hold that the contract in terms did not reserve to the
lumber company any right to control the details of the work.
There is no evidence that the company exercised the right to hire
or discharge men, or to exercise any authority over the manner of
performing the work. The contract required the logs to be cut a
certain length. This was the ultimate result sought to be accom
plished by the contract. Logs cut too short might work a serious
loss to the lumber company, and it was its privilege and its duty to
see that they were cut the proper length. Even though this was
spoken of to the men in the woods when logs were seen to be cut
too short, it was no evidence of an attempt on its part to control
the details of the work. We discover no conduct on the part of the
lumber company amounting to a practical construction of the con
tract inconsistent with the natural meaning of the language employed
therein.
It appearing as a matter of law that the status of Mahner was
that of an independent contractor, it follows that the judgment ap
pealed from must be reversed, and the cause remanded, with instruc
tions to enter judgment vacating and setting aside the award of the
industrial commission.
W o r k m a n ’ s C o m p e n s a t i o n — C o n t r a c t o r — E m p l o y e e — Rouse v.
Town of Bird Islmid, Supreme Gourt of Minnesota (December 17,
1926), 211 Northwestern Reporter, page 327.—On or about December
1, 1924, the officers of the town of Bird Island, Minn., entered into
an agreement with the owners of a gravel pit for the purchase of
gravel to be used in surfacing a town road. It passed out word
that anyone could haul the gravel at certain rates per load. For
each load the checker issued a, ticket, which on presentation the town
board paid. H. J. Rouse and others hauled under this agreement
until January 13, 1925, when Rouse was killed when a large block
of the frozen undermined bank caved in. A week before his death
the town board concluded that the town should no longer furnish
the dynamite required to loosen the gravel, but on the haulers agree
ing that the cost should be deducted from the amount of the price
per load hauled, the town board continued to provide it and likewise
282
DECISION’S OF T H E COURTS
to pay the checker and pit boss, but told the men they had to select
the pit boss. The town officers’ also told the men that since it ap
peared dangerous to undermine the frozen ground in loading, they
would have to assume the risks incident to the work.
A proceeding was instituted under the State workman’s compen
sation act for the death of Rouse. The referee held that Rouse
was an employee of the town and awarded compensation to the sur
viving dependent. A majority, however, of the industrial com
mission concluded that Rouse was an independent contractor and
denied compensation. The widow of Rouse then carried the case to
the Supreme Court of Minnesota.
The main question for the court to decide was whether Rouse was
or was not an employee of the town. The high court decided that
Rouse was an employee of the town and reversed the order of the
industrial commission. In an opinion by Judge Holt, he said in
part:
Had the town paid by the day instead of by the load, the relation
indisputably would have been that of employer and employee. The
fact that the men provided their own team, wagon, and shovel is of
no significance. [Cases cited.] Nor should the fact that payment
was by the load instead of by the day or month change the relation.
[Cases cited.]
The town could and did direct where the gravel was to be loaded
and unloaded. It supervised so that only the right quality was
hauled. No particular quantity in loads was to be hauled by anyone,
but each load was to contain 1y2 cubic yards. The town could ter
minate the work at any moment. The method of payment adopted
made it immaterial to the town how fast or slow the employee
worked. The place and manner of unloading were so well understood
by the men that no special supervision was necessary. The work
man’s compensation act is a remedial statute to be liberally construed
so as to cover the men intended to be brought within its protection.
To that end it is provided in section 4290, G. S., 1923, that no one
shall be deemed a contractor or subcontractor—
“ who does what is commonly known as 6piecework ’ or in any
way where the system of employment used merely provides a method
of fixing the workman’s wages.”
And in section 4326, subdivision (d), an employer is defined to
mean:
u Every person not excluded by section 8, who employs another to
perform a service for hire and to whom the 4employer ’ directly
pays wages, and shall include any * * * town,” etc.
Some claim is made that subsequent to January 6, 1925, the men
ceased to have the status occupied prior thereto. We think what
the town board then did worked no change. The dynamite used
merely affected the amount of the wages. That the men were
allowed to select the pit boss is of no significance, for the town still
continued to pay for his services. That the town board told the
w o r k m e n ’s
283
c o m p e n s a t io n
men that they must assume the risk can have no legal consequence;
it still paid them directly the amount earned. An employer may
not, by a declaration of that sort, transfer the risk to the employee.
The statute provides the only way in which it may be done. Sec
tions 4271 and 4272, G. S., 1923.
W
o r k m e n ’s
C o m p e n s a t io n — C on tractor — E
m ployee
— C asual
—Pacific Employers’ Insurance Co. v. Department of
Industrial Relations et cd., District Court of Appeals, Second Dis
trict, Division 1, California (May 3, 1928), 267 Pacific Reporter,
page 880.—Ralph R. Powell was employed by one Isley, who was
engaged in the general trucking and hauling business. According to
the facts in the case it appeared that Delsie L. Isley was the owner
of two trucks engaged in the business, and that her husband, Everett
Isley, managed and conducted the affairs. Everett bought a house
and barn from a contractor for whom he was doing hauling, and
moved the house upon a lot which had been bought for residential
purposes in the name of his wife. Isley proceeded then to tear down
the barn, and while Powell was assisting him he received injuries.
An award of compensation was made to Powell by the industrial
accident commission, which found that he was employed by Isley’s
wife and not by the husband and that the work in which Powell was
engaged at the time of the injury was connected with the regular
business of the employer, and was not casual.
The insurance carrier, the Pacific Employers’ Insurance Co., ap
pealed to the district court of appeals, second district, division 1, of
California, to review the order of the industrial accident commission.
The insurance carrier contended that there was no evidence on which
the commission’s findings as to the nature of the work could be based.
The appeals court annulled the award of the commission and in
an opinion written by Judge Shaw said in part as follows:
E
m ploym ent
The wrecking of the barn was a separate and independent piece
of work which Powell undertook in response to a specific order
from Isley, and it must be considered by itself in determining whether
it was casual.
The question remains whether Powell’s work on the barn was “ not
in the course of the trade, business, profession, or occupation of his
employer.” The employer, it must be remembered, was Delsie L.
Islev. Her business, according to all the evidence, was trucking and
hauling. No other evidence was needed to show that it did not in
clude the wrecking of buildings. While Everett Islev testified that
he had previously wrecked one building, he also said that his wife
had no interest in that job, and, hence, it can not be used to amplify
the scope of her business. Under the peculiar circumstances of the
case, perhaps Powell’s testimony that “ Mr. Isley” had moved
284
DECISIONS OF T H E COURTS
buildings before can be construed to refer to something done by him
in carrying on the business of Delsie L. Isley, but, if so, it covers
merely the moving, not the wrecking, of buildings. There is noth
ing to show that Delsie L. Isley had engaged with some or any
degree of regularity in the wrecking of buildings. Neither was
Powell’s service one tending toward the preservation, maintenance,
or operation of the trucking business, or of the business premises or
business property used in such business.
Workmen’s Compensation—Contractor—Employee—Construe
tion o f Statute—American Radiator Co. et al. v. Framen et al.,
14
Supreme Court of Colorado (March , 1927), 254 Pacific Reporter,
page 160.—Adolph Franzen was employed by the Metropolitan Win
dow Cleaning Co. He was injured while engaged in cleaning the
windows of the American Radiator Co. Franzen proceeded under
the workmen’s compensation act. The industrial commission granted
him an award of compensation against his employer primarily and
secondarily against the American Radiator Co. The Metropolitan
Co. paid the award. The commission later changed its award, and
held that the American Radiator Co. was primarily liable. The
case was appealed to the district court of Denver County, Colo.,
by the radiator company and here the order of the commission was
affirmed. The American Radiator Co. then brought the case to the
Supreme Court of Colorado. The main question in the case was
whether Franzen was an employee of the radiator company. The
claim rested on the compiled laws, section 4423 (sec. 49 of the work
men’s compensation act), which reads as follows:
Any person, * * * operating or engaged in or conducting
any business * * * by * * * contracting out any part or
all of the work thereof to any * * * contractor * * * shall
* * * be an employer * * * and shall be liable * * * to
pay compensation for injury * * * to said * * * C(>n.
tractors * * * and their employees.
Referring to this section of the compensation act the court said:
The business of a person, as the word is here used, is that calling
which he pursues for livelihood or gain. Washing windows is not
a part of the business of manufacturing and selling heating systems.
Franzen, then, was not the employee of the American Radiator Co.
Judgment was therefore reversed with directions to set aside the
award of the industrial commission.
W o r k m e n ’s
C o m p e n s a t io n — C o n t r a c t o r — E m p l o y e e — D e a t h —
Robson v. Martin et al.. Supreme Court of Pennsylvania (January
w o r k m e n ’s
COM PENSATION
285
3, 1928), IJfl Atlantic Reporter, page 339.—W. R. Martin was a sub
contractor under another and engaged in filling and leveling a lot
of ground. For the purpose of hauling cinders used in the grading,
he hired several automobile trucks, including one from a Mr. Martinelli. Martinelli furnished his machine with a driver employed by
him, and received compensation at the rate of $2.50 an hour, which
sum included the pay of the chauffeur, Robson. While Robson was
engaged in transporting the material, his truck was struck at a
railroad crossing and he was killed. A proceeding under the work
men’s compensation act was instituted by the widow of Robson. The
referee in compensation found that Robson was an employee of Mar
tin at the time of the accident, engaged in the furtherance of his
business, and directed that he make payment. The compensation
board later approved the action of the referee. The case was con
tested by W. R. Martin and the insurer in the court of common
pleas, Luzerne County, Pa., on the ground that the master in the
present case was Martinelli, who hired Robson and paid his wages,
and to him alone must the dependents look for compensation. The
court of common pleas affirmed the award, and the case was car
ried to the Supreme Court of Pennsylvania by Martin. The sole
question presented was whether Robson, at the time the injuries
were received, was the servant of Martin or of the owner of the
rented truck.
The high court of the State held that Robson was the servant of
Martin, and affirmed the lower court. In the opinion by Judge
Sadler, the court said in part:
In view of the undisputed testimony of both Martin and Martinelli,
the referee was justified in finding that, at the time of the accident,
the driver was an employee of the defendant and engaged in the
furtherance of his business, though hired and paid by the owner
of the rented truck. Had Martinelli been an independent contrac
tor, then responsibility for injuries to his employee would arise.
In determining whether he bore this relation, it will be noted that
he was not engaged generally in the business of trucking, but rented
his machine to Martin. There was no agreement that he should
accomplish a definite task of moving ashes from one point to another,
with the means and manner of accomplishing the result under his
control.
Though not an independent contractor, yet Martinelli was the
employer of Robson, and let his automobile and the chauffeur to
Martin for use. It is a well-recognized rule that where one may
be in the general employ of another, yet he may, with respect to
particular work, be transferred to the service of a third person, in
103151°—30------20
286
DECISIONS OP T H E COURTS
such a way that he becomes, for the time being, the servant of that
person with all the legal consequences of that relation.
Thus one may loan or hire his servant, generally employed, to
another to perform for him some special labor, and while so en
gaged the latter is obligated as master. And this is likewise true
where the loaning or letting is of a team driven by an employee
selected by the owner.
In such cases consideration must be given to the character of the
service to be rendered in determining whether the one employed
becomes temporarily the servant of another. I f there has been an
engagement to supply some specified work, control in the manner
of performing it being reserved, the hirer merely giving general
directions as to the result to be reached, the original employer still
remains the master of the servant who is under his supervision and
carries out his orders.
Where, however, the letting of the vehicle and driver is intended
not merely to secure the performance of some act of which the
control of performance remains in the bailor, but this power of
supervision and direction has been transferred to the one who hires,
and who thereafter manages it during the period of hiring, the
latter becomes responsible as master. The test is whether the truck
and driver are engaged to work for the hirer on the undertaking
during the course of which the accident occurs, and remains subject
to his direction and control independent of the original employer.
I f so, the temporary hirer becomes the master as to one who is
for the time being his servant, and assumes the attendant responsi
bility. On the other hand, if it appears that the owner of the truck
is engaged to execute certain work, proceeding in his own way,
merely effecting a directed result, the contrary is true. The facts in
this case bring it within the first class mentioned, and Martin is
therefore the one who must respond as the master of Robson.
The Supreme Court of Minnesota decided a somewhat similar case on
December 10, 1926, where a well driller was hired to sink a well for the
owner of a building. On the last day that he worked the driller stepped
on a nail, which passed through his shoe and into his foot, causing an infection
and later amputation of the leg. The employer kept an account of how many
hours the driller worked and paid him on a basis of a 10-hour day. The
driller employed a man to assist him. The court held that the driller was
an employee and not an independent contractor and therefore awarded com
pensation. (Lynch t?. Hutchinson Produce Co. et al. (1926), 211 N. W. 313.)
W
o r k m en ’s
C o m p e n s a t io n — C o n t r a c t o r — E
m ployee—
S co p e
of
& Reilly v. Entwistle, Appellate Court of
Indiana in Banc (June 17, 1927), 157 Northeastern Reporter, page
106.—J. E. Entwistle was a carpenter repairman. Fieber & Reilly
were engaged in a general real estate and rental business. In the
course of such business they keep in repair and in shape for living
the properties of their clients. Entwistle for a period of five or six
E m p l o y m e n t —Fieber
w o r k m e n ’s
c o m p e n s a t io n
287
years had done their repair work for them, and for that purpose had
gone to their office daily for work. He received orders from the
rental manager and the addresses of places where repairs had been
asked, and he then went to the indicated places, inspected them,
obtained the needed material and made the repairs. He was paid
at the rate of 75 cents an hour and was reimbursed for the material
he had paid for. On December 24,1925, he called at the office of the
real estate firm and was given a slip upon which was written an
address for repair work. He drove out to the street upon which the
house was located, and while looking for the house number a man
came out of a double house and asked if he had come to repair weatherboarding. Entwistle replied in the affirmative. He found that
there were several strips of rotted weatherboarding and started to
repair them, when he sustained an injury to his eye. Subsequently it
was learned that Entwistle had worked on the wrong house. Ent
wistle proceeded under the workmen’s compensation act, and an
award was granted. The employer thereupon appealed to the Appel
late Court of Indiana, on the grounds that Entwistle was an inde
pendent contractor. The court held that he was an employee and
affirmed the award, saying:
Under all these facts we hold that appellee was not an independ
ent contractor, but was an employee of appellants, and the accident
resulting in the injury arose out of and in the course of appellee’s
employment with appellants.
W
o r k m e n ’s
C o m p e n s a t io n — C o n t r a c t o r — E m p l o y e e — T e m p o r a r y
Moody v. Industrial Accident Commission et ah
Supreme Court of California (August 4 ,1928), 269 Pacific Reporter,
page 51$.—Fred S. Moody was sent to a hospital in San Francisco,
Calif., suffering from an infection. A professional nurse, Ida M.
Dracket, was called by the hospital management to take charge of
the case. Her hours of employment and wages were covered by an
operating schedule maintained between the hospital and the nurses’
association. After attending the patient for a week, the nurse com
plained of a soreness in her thumb. An infection developed, and she
remained in the hospital as a patient for over two months. She filed
a claim with the industrial accident commission for compensation
for an injury arising out of and in the course of her employment.
An award was granted her for temporary total disability from
November 8, 1926. Moody sought to have the award annulled, con
tending that the relationship of master and servant did not exist,
and that the status of the nurse at the time she became infected was
T
otal
D
is a b il it y —
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DECISIONS OF T H E COURTS
not that of an employee but that of an independent contractor exer
cising an independent calling and retaining the entire control over
the method and manner of doing her work, in accordance with her
skill and training.
The contention of the comtiiission was that since it was found
that the nurse was performing service for Moody at the time that
she became infected it was presumed that her status was that of an
employee. The main question in the case therefore was whether a
graduate nurse attending a patient becomes an employee of the
patient within the meaning of the workmen’s compensation act or
is to be considered an “ independent contractor.”
Section 8 (6) of the compensation act provides that—
Any person rendering service for another, other than as an inde
pendent contractor, or as expressly excluded herein, is presumed to
be an employee within the meaning of this act.
As to the definition of an “ independent contractor ” the supreme
court said that many definitions had been made, and the following
was a correct statement of what the court considered an “ independ
ent contractor ” :
One who renders service in the course of an independent employ
ment or occupation, follov/ing his employer’s desires only in the re
sults of the work, and not the means whereby it is to be accomplished.
The opinion of the court was delivered by Chief Justice Waste,
who said as follows:
We have found but one or two cases in the reports of the various
States involving the status of a graduate nurse. “ Ordinarily a
trained nurse, performing her usual duties with the skill which is the
result of training in that profession, does not come within the defini
tion of a servant, but rather is one who renders personal services to
an employer in pursuit’of an independent calling.” (Parkes v. Seasongood (C. C.), 152 F. 583.) The professions of doctor and nurse
are so closely allied tkat decisions applicable to one would appear to
apply equally well to the other. In the great majority of instances
the inference that it is the implied intention of the parties to con
tracts for the services of a medical practitioner that he is not to be
under the employer’s control with respect to the details of his work
is corroborated by the consideration that the employer is a person
who does not possess the technical skill which would qualify him to
exercise such control, and that it would for that reason be highly
inexpedient for him to attempt to exercise it. (19 A. L. R. 1186.)
“ There is no more distinct calling than that of the doctor, and none
in which the employee is more distinctly free from the control or
direction of his employer.” (Pearl v. West End Street R. Co., 176
Mass. 177, 57 N. E. 339.) It is obvious that the judgment of the
doctor or nurse must frequently be contrary to the wishes of the
W O R K M E N ’ s COM PENSATION
289
patient, and in the exercise of their independent calling it is their
undisputed right to follow their own judgment without interference
on the part of the patient.
The court, in continuing, said in part:
It is admitted here that the respondent nurse would have refused
to obey orders given her by the petitioner with reference to the
methods of treating him even had his condition permitted him to
give such directions. She would take orders from the patient with
respect to minor services looking to his comfort, but that measure of
control falls far short of that complete and authoritative control
which is the decisive test of the relationship of master and servant.
In accordance with that test it would appear that the right to control
and direct the work of the respondent nurse was not reserved to the
petitioner, and that she must be deemed to be an independent con
tractor within the meaning of the workmen’s compensation act.
The judgment of the court therefore was that the award should be
annulled.
The Supreme Court of Errors of Connecticut affirmed the lower courts’ dis
missal of a case where an employee was held not entitled to compensation for
expense of treatment for scarlet fever contracted while in hospital for treatment
of compensable injury. (Mossop v. Mossop et al (1928), 142 Atl. 739.)
W
o r k m e n ’s
C o m p e n s a t io n — C o n t r a c t o r — E
m ploym ent
S tatu s—
Flaharty v. Trout et al, Supreme Court of Pennsylvania (June 25,
1927), 138 Atlantic Reporter, page 863.—Chester Flaharty was a
resident farmer in York County, Pa. C. M. Trout, who operated a
sawmill in the neighborhood, made an oral contract with Flaharty
to draw logs from the woods to the mill at $3 a thousand feet. On
April 29, 1925, Flaharty was accidently killed while working in the
mill yard. From the facts in the case it appeared that the logs were
cut by Trout and left scattered about the woods where they were
gathered up and drawn to the mill by the deceased. Trout at all
times directed the kind of logs to be hauled and when, and often
designated the place where they were to be left in the mill yard. It
was also the understanding that when more logs were needed than
Flaharty himself could draw, Trout was to supply and pay for the
extra help without requiring Flaharty to employ an extra team or
men to assist him.
The widow of Flaharty brought an action under the workmen’s
compensation act for the death of her husband. The referee awarded
compensation, which award was affirmed by the workmen’s compen
sation board, and later by the court of common pleas of York county,
Pa. Trout’s insurance carrier then appealed the case to the State
supreme court. The main question involved in the case was whether
290
DECISIONS OF T H E COURTS
there were facts in support of the referee’s finding that the relation
of employer and employee existed between Trout and Flaharty. The
contention of Trout was that Flaharty was an independent contrac
tor, and hence not covered by the workmen’s compensation act. The
supreme court, in an opinion by Judge Walling, affirmed the judg
ment of the lower court. The court said in part:
It is not always easy to determine whether a party sustains toward
another the relation of a servant or of an independent contractor.
The rule as to the latter is stated by Mr. Justice Schaffer, speaking
for the court, in Simonton v. Morton (275 Pa. 562, 568, 119 Atl. 732,
734):
“ Where a contract is let for work to be done by another in which
the contractee reserves no control over the means of its accomplish
ment, but merely as to the result, the employment is an independent
one establishing the relation of a contractee and contractor and not
that of master and servant.”
An important element in such case is the right to hire and dis
charge help, here retained by the defendant, should it be necessary.
Because of this and the fact that defendant retained the right to
determine when and what kind of logs were to be delivered and
to end the contract at will, we are not prepared to hold the record
devoid of evidence to support the finding of the relation of master
and servant.
Where control is reserved over the means of performing the work,
the relationship is that of employer and employee. The case at bar
is not one where the contractor did the work when and as he pleased
and was responsible to the contractee only for the result, which is
generally regarded as the test of an independent contractor [cases
cited], and it is not clear that this case falls within any of the socalled modifications thereof.
The Court of Appeals of Georgia affirmed a lower court in an action in which
the deceased employee operating a sawmill at a certain price per thousand
feet was held not to be an independent contractor, for the reason that the em
ployer retained the right to direct the time and manner of executing the work.
(Employers’ Liability Assurance Corporation et al. v. Treadwell (1928), 142
S. E. 182.)
W
orkm en ’s
C o m p e n s a t io n — C o n t r a c t o r — E v id e n c e — E
m ployer—
New York Indemnity Co. v. Industrial Accident Commission of Cali
fornia et al., District Court of Appeal, Second District, Division 1,
California {January 19, 1927), 252 Pacific Reporter, page 775.—
Richard B. Lennon was employed as a painter on a building being
constructed by O . W . Dorman. Lennon received injuries while in
the course of his employment and was awarded compensation by the
California Industrial Accident Commission. The New York In
w o r k m e n ’s
c o m p e n s a t io n
291
demnity Co., insurance carrier for Dorman, applied to the District
Court of Appeal, Second District, Division 1, of California, for a
review of the award. The insurance company maintained that the
facts did not justify the commission’s findings that Lennon was in
the employ of Dorman, but that it did show without substantial con
flict that he was at the time he was injured an employee of J. P.
Jessel, whose relation to Dorman was that of an independent
contractor.
The main question for determination by the court was whether
Lennon while employed as a painter on the building was an employee
of Dorman or of Jessel. The court, in an opinion rendered January
19, 1927, held that Dorman was the employer of Lennon and denied
the request of the insurance company. Judge Conrey in the course
of the opinion said in part as follows:
In determining in any given case whether a person was an employee
or an independent contractor there are usually present various cir
cumstances which are persuasive to one conclusion and other circum
stances persuasive to the opposite conclusion. But an analysis of the
cases makes it plain that the determinative factor is usually found in
the solution of the question, Who has the power of control, not as to
the result of the work only, but as to the means and method by which
such result is accomplished ? A workman who is paid wages by the
piece or quantity comes within the provisions of the workmen’s com
pensation act the same as one who is paid by the day. Wages may
be measured by time, by the piece, or by any other standard. One of
the best tests to determine whether the relation is that of an inde
pendent contractor or that of employer and employee is the right of
control. It is not the fact of actual interference with, the control but
the right to interfere that makes the difference between an inde
pendent contractor and servant or agent. It is not a question of
interference or noninterference, not a question of whether there have
been suggestions, or even orders, as to the conduct of the work, but a
question of the right to act, as distinguished from the act itself or the
failure to act. Coincident with the right of control is the right of
either the employer or the employee to terminate the relation without
liability. This is but another way of stating the rule, for the right
to immediately discharge involves the right of control.
An examination of the evidence as contained in the petition
demonstrates that there is evidence sufficient to have warranted the
commission in finding that Jessel was merely the foreman of Dor
man; that both Jessel and Lennon received their compensation as
wages; that the wages of Lennon, although received by him from the
hands of Jessel, were merely advanced by Jessel, and in fact, came
from Dorman, and that Dorman retained the right to discharge
Lennon at any time, and therefore retained the right of control of
the manner in which the work should be done.
292
d e c is io n s
of
the
courts
W orkmen’s Compensation — Contractor — L essor — I njury—
D eath— Wisinger v. White Oil Corporation, Circuit Court of Ap
peals, Fifth Circuit, Texas {February 8, 1928), 24 Federal Reporter
(2d), page 101.—The White Oil Corporation was the owner of cer
tain oil leases on land located in Caddo Parish, La., which obligated
it to drill wells and to develop the property and pay royalties to the
owners of the land.
The oil corporation entered into a written contract with Cockerham and Blackstock to operate the property for 75 per cent of the
residue of the oil produced after paying royalties. All equipment
belonging to the corporation on the property, including a steam boiler,
was turned over to Cockerham and Blackstock.
On July 27, 1923, the boiler exploded, killing one Wisinger, an
employee. The wife of Wisinger brought an action in the District
Court of the United States for the Eastern District of Texas to
recover damages under the general tort statute of Louisiana and in
the alternative for compensation under the workmen’s compensation
law of Louisiana. A jury trial was waived and the case was sub
mitted to the judge, who concluded that the liability was governed
by the compensation law and awarded a judgment of $964.05. The
widow carried the case to the circuit court of appeals, fifth circuit, on
the grounds that the lower court erred in refusing to find that the
case was governed by the general tort statute of the State.
The widow contended that the contract between the oil corporation
and Cockerham and Blackstock was a lease, and not an agreement
constituting them independent contractors, and therefore the deceased
employee was not covered by them.
The circuit court of appeals affirmed the lower court, and after
citing section 6, No. 20, Acts of 1914 (as amended by No. 38, Acts of
1918), of the Louisiana workmen’s compensation law governing the
instant case, Judge Foster concluded in the following words.
Had Wisinger been defendant’s employee, plaintiff’s recovery
would have depended entirely on the compensation law. (Philps v.
Guy Drilling Co., 143 La. 951, 79 So. 549.) It is certain that defend
ant was in the business of drilling and operating oil wells and was
obligated to develop and operate the field turned over to Cockerham
and Blackstock. There is no doubt they were doing for defendant
the work it was obligated to do, and it is therefore immaterial whether
they be classed as sublessees or independent contractors. Under the
above-quoted section of the compensation laws the liability of plain
tiff is the same.
W O R K M E N *S CO M PENSATION
293
Workmen’s Compensation— Contractor—Loss of Eye— Schon
berg v. Zinsmaster Baking Go., Supreme Court of Minnesota (Janu
ary 27, 1928), 217 Northwestern Reporter, page 491.—The Zinsmas
ter Baking Co., located in St. Paul, Minn., was a corporation engaged
in the business of making and selling bread. In May, 1920, the
company employed Alfred W. Schonberg in its sales department at
a salary of $40 per week and expenses. He covered his territory by
automobile until August, 1920, when an airplane was obtained and
used by Schonberg in the work of selling bread and in advertising
and promoting the sales of the company. On October 9, 1920, after
Schonberg had completed several advertising flights for that day,
he ascended with an official flying tester to test the machine to see
whether it was in perfect flying condition. While in the act of
testing the plane it became unmanageable and fell to the ground.
Schonberg received severe injuries, and not until five years later
did he proceed under the workmen’s compensation act for compen
sation. In the district court of Hennepin County, Minn., the district
judge found that Schonberg, on the day of the accident, was en
gaged in the regular course of his employment, that when he was
injured he was an employee of the baking company and was not
engaged in working for them as an independent contractor and that
the action was brought within the period of limitation provided by
law. Accordingly a judgment of $15 per week for a period of 100
weeks from October 16, 1920, was awarded him.
The baking company appealed to the Supreme Court of Minnesota
for a review of the award of compensation granted by the lower
court. The company raised several questions as to the validity of
the award, chief of which was whether the compensation act gov
erned the case; whether the employment was casual; did the accident
arise out of the employment and was the action commenced within
the statutory limitation.
The supreme court affirmed the lower court, and in the opinion said
in part:
We are of the opinion that the findings of the trial court are suffi
ciently supported by the evidence and are therefore not to be
disturbed.
Relator had the right to exercise and did exercise such control
over the acts of respondent as to clearly establish the relationship
of employer and employee, and this relationship existed at the time
the accident occurred.
Respondent reported to the sales manager several times a week by
telephone, mail, or in person.
The control or right of control is an all-important factor to be
c o n s i d e r e d in determining the question as to whether the relationship
294
DECISIONS OF T H E COURTS
is that of an independent contractor or that of employer and
employee.
Relative to whether the action was brought within the period
prescribed by the State statute the court said:
This leaves, then, only the question as to whether or not the action
was commenced within the time limited by the statute. Section 1,
chapter 363, Laws 1919, provides as follows:
“ The time within which the following acts shall be performed
under part 2 of this act shall be limited to the following period,
respectively:
“ 1. Actions or proceedings by an injured employee to determine
or recover compensation, one year after the employer has made
written report of the injury to the commissioner of labor of the
State.”
Were it not for this provision, the 6-year limitation for the com
mencement of actions would control.
The employer (relator) made no report whatever to the commis
sioner of labor. The respondent, however, did go to the office of
the commissioner of labor and reported the accident and made a
statement in regard thereto.
The language of the above-quoted statute is plain and unambigu
ous. It speaks for itself and requires no interpretation. Had the
legislature intended that information as to an accident, if brought
to the commissioner of labor from any source whatever, would be
sufficient to start the running of the statute, it could easily have said
so. Manifestly, the statute was enacted for the benefit of the
employer, and provides a simple manner in which he may avail
himself of it. He can not take a chance by neglecting to do so and
then claim a benefit from it. This is true, even without invoking
the universal holding that the workmen’s compensation act should
be construed liberally in favor of the employee.
W
orkm en ’s
C o m p e n s a t io n — C o n t r a c t o r — R
C i t y —MorgannellVs
e p a ir in g
S id e w a l k
Estate v. Gity of Derby et al., Supreme
Court of Errors of Connecticut (January 28, 1927), 185 Atlantic Re
porter, page 911.—One Morgannelli was employed by the city of
Derby, Conn., to fix up a sidewalk in front of his own premises.
The sidewalk was badly out of repair, and it was agreed that Mor
gannelli was to do the work, send his bill to the city, and to re
ceive payment. It was shown that he had purchased materials to
do the work with, and that he employed two workmen for whose
services he charged the city the exact amount that he paid them.
When Morgannelli had nearly finished his work on the afternoon
of November 11, 1923, he injured his right hand, and as a result
of this injury was unable thereafter tq do anything during his
fo r
lifetime
w o r k m e n ’s
c o m p e n s a t io n
295
Morgannelli claimed compensation, contending that he was an
employee of the city of Derby and sustained an injury arising out
of and in the course of his employment. The city of Derby con
tended that he was an independent contractor, and that as such he
was not entitled to any compensation.
The compensation commissioner found and held that Morgan
nelli was not an independent contractor, but was an employee of
the city as to his own work and the agent of the city in purchasing
the supplies and hiring the assistance. That on the day of the injury
a contract of employment existed and had existed for less than two
weeks between the city of Derby and Morgannelli, and both parties
to the contract were subject to the provisions of the workmen’s
compensation law of Connecticut. The superior court affirmed the
award. The city of Derby appealed the decision, and the supreme
court of errors of the State affirmed the award, holding that Mor
gannelli was an employee rather than an independent contractor
and not excepted from the operation of the State compensation law.
Judge Curtis, in rendering the opinion of the court, said in part:
Morgannelli was a workman not ordinarily engaged in contract
work; where the contract with such a person is to produce a given
result, as in the case of an independent contractor, we would ex
pect the contract to specifically so state. In an informal parol direc
tion to a workman to do a simple piece of work which did not re
quire supervision, it would be a forced construction to hold that
Buch a direction implied that the workman so directed became an
independent contractor and not an employee. The employment in
this case did not involve any profit on the part of Morgannelli on
the work done by others on the job or upon the goods purchased by
him and used on the job. The whole situation, as presented by the
facts found, implies an employment of Morgannelli to do what the
city directed him to do and in the way the city directs it to be done
and not a contract to do a piece of work according to his own meth
ods and without being subject to the control of his employer, ex
cept as to the result of his work.
W orkmen’s Compensation— Convict L abor— California Highway
Commission, Department of Engineering v. Industrial Accident Com
mission et al., Supreme Court of California (December 18, 1926),
251 Pacific Reporter, page 808.—Robert Smith was convicted of
crime in the State of California, and on March 10, 1922, was sen
tenced to the State prison for a term of from 1 to 15 years.
After serving the minimum sentence of one year the prison direc
tors fixed the full sentence at five years, and Smith was granted per
mission to perform work on the public highway. After his assign
ment to road work, the legislature enacted the “ convicts’ road camp
296
DECISIONS OF T H E COURTS
bill,” providing, among other things, for the payment of compensa
tion not exceeding 75 cents net per day for their labor.
While Smith was so employed he was seriously injured by flying
fragments from an accidental explosion. Upon his release from
prison he brought an action for disability benefits and recovered an
award. The highway commission carried the case to the supreme
court of the State, and this court affirmed the award of the accident
commission.
The main question in the case was whether Smith, a convict en
gaged in the performance of labor on a State highway under the
law as enacted, was an employee within the meaning of the consti
tution and the workmen’s compensation act. Did the act granting
power to the commission to employ and compensate convicts restore
all of the civil rights to Smith in respect of that employment ? The
supreme court of the State held that the act did so restore his civil
rights, in the following language:
The word “ employ ” has a definite legal meaning, and legal terms
when used in a statute are to be construed according to the context
and the approved usage of language unless a different sense is obvi
ously intended. * * * There is nothing contained in the statute
which indicates that a different meaning was intended. On the con
trary, its manifest object was to authorize those who were afforded
the privilege to enter into a contract of employment with the State
highway commission to have restored to them the limited civil right
which the reformative measure provides for. * * * It was in
evidence, and it is not disputed, that it was optional with prisoners
as to whether they would accept this labor or not. They were at
liberty to refuse it, and in some instances it had been refused. Hav
ing accepted it, however, the applicant was entitled to all the rights
under the act, one of which must be held to be the benefits enjoyed
by employees under the workmen’s compensation act.
The court concluded by stating that the legislature intended under
the terms of the convicts’ road camp bill to restore to a convict civil
rights, creating thereby the relation of master and servant, and this
being so, the convict must be held to be an employee within the mean
ing of the workmen’s compensation act.
W orkmen’ s Compensation— Convict L abor—Convict not E n
Compensation— La/wson v. Travelers' Insurance Co., Court
titled to
of Appeals of Georgia (July H, 1927), 189 Southeastern Reporter,
page 96.—Brady Lawson, while serving a 12-month sentence on the
chain gang in Muskogee County, Ga., was accidentally injured by cut
ting his foot with an ax. He was confined to bed as a result of the injury
and received hospital service and medical treatment at the expense of
W O R K M E N *S CO M PENSATION
297
the county. After completing his sentence he filed a claim with the
Industrial Commission of Georgia. He contended -that he was
partially though permanently disabled and asked for an award.
The award was denied and the case was taken to the court of appeals.
That court affirmed the decision denying an award and held that the
convict was not an employee of the county within the meaning of the
workmen’s compensation act. The court pointed out that in the
agreed statement of facts the Muskogee County authorities having
charge of its road work had no jurisdiction over the duration of the
sentence of the convict or his conduct as a prisoner'; that though the
convict was engaged at the time of the injury in doing work upon
the public roads of the county under the direction of the warden, as
there was no duty or liability on the county to pay any wages or
compensation to the convict for his labor, and as the county did not
pay any wages to him, he was not an employee within the meaning
of the act.
W orkmen’s Compensation— Coverage—A gricultural W orkers—
Casual E mployment—Hoshiko v. Industrial Commission of Colorado (April 23, 1928), 266 Pacific Reporter, page 1114.— Cervando
Lomeli was employed by Paul Hoshiko, who owned and operated sev
eral threshing machines on various farms in the State of Colorado.
While Lomeli was assisting Hoshiko in the threshing operations he
was kicked by a horse and injured. Lomeli proceeded under the
State workmen’s compensation act, and the industrial commission
awarded him compensation in the sum of $54.18. The commission
later increased the amount 50 per cent because of the failure of
Hoshiko to carry insurance, making the total award $81.27.
Hoshiko appealed the award to the district court of Weld County,
Colo. He contended that Lomeli was a farm laborer and also a
casual employee, and for these reasons was not entitled to the benefit
of the workmen’s compensation act. The district court affirmed the
award. The case was then carried to the Supreme Court of Colo
rado by Hoshiko. The main question to be decided in the case was
whether Lomeli was a farm laborer.
The supreme court, in affirming the judgment of the lower court,
said:
That one who goes from farm to farm operating a thresher is not
a farm laborer, within the exception contained in the workmen’s com
pensation act, is decided in Industrial Commission v. Shadowen (.68
Colo. 69, 187 Pac. 926). In that case the employer was engaged in
the business of threshing grain for others, and the injured employe©
operated the steam engine that supplied the power.
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DECISIONS OF T H E COURTS
When the owner of a threshing machine does threshing for others
for compensation, it is said to be the practice for the customers
to furnish, at their own expense, the men who do the pitching.
Although in the present instance Hoshiko employed and paid Lomeii
to do the pitching for the thresher at the Clark farm, this, it is
explained, was due to the fact that Clark previously had furnished
a man to help Hoshiko do his own threshing; in other words, it
was merely an exchange of labor. But the trouble with that argu
ment is that Lomeii was not a regular farm hand on Hoshiko’s
place. He was employed there only to help with the threshing.
That work was finished, and there was nothing more for him to
do at Hoshiko’s farm. Counsel say that Hoshiko had two separate
and distinct kinds of business—farming for himself and threshing
for others for compensation. That is true. When, therefore, he
finished threshing on his own farm and proceeded with his threshing
outfit to the farms of others to do their threshing for compensation,
he ceased to be Hoshiko, the farmer, and became Hoshiko, the
thresher; and thereupon Lomeii ceased to work for the former, and
entered the employ of the latter.
As to the contention that Lomeii was a casual employee, the court,
speaking through Judge Butler, said it could not be sustained. The
act, the court said—
Excludes every person “ whose employment is but casual and not
in the usual course of trade, business, profession, or occupation
of his employer.” Even if his employment was but casual—a matter
that it is not necessary to decide—it was at the time of the acci
dent in the usual course of the employer’s business; therefore Lomeii
is not excluded from the benefit of the statute.
W orkmen’s Compensation— Coverage— Baseball Player— J u r i s
Casualty Insurance Co. of New York et al.,
diction— Metropolitan
v. Huhn, and Metropolitan Casualty Insurance Co. of New York et
al. v. Reiger, Supreme Court of Georgia (February 16, 1928), 11$
Southeastern Reporter, page 121.—Emil Huhn and Frank Reiger
were baseball players employed by the Augusta Baseball Club of
Georgia. They were killed in an automobile accident on September
5, 1925, while being transported from Charlotte, N. C., to Augusta,
Ga., in an automobile owned and operated by the Augusta Baseball
Club. The employer was the Augusta Baseball Co. (Inc.), a Georgia
corporation engaged in the business of operating the Augusta Base
ball Club as a member of the South Atlantic League of Baseball
Clubs. Huhn was manager of the Augusta Baseball Club while
Reiger was a pitcher of the Augusta team. Huhn at the time of
the accident was driving the car, while Reiger was sitting on the
W O R K M E N *S CO M PEN SATION
299
front seat with him, and the other ball players were sitting on the
rear seat of the touring car.
The widows of the deceased players brought claims for compen
sation under the Georgia Workmen’s Compensation Act. At a hear
ing before the industrial commissioner an award was made for com
pensation in favor of the widows. Upon a subsequent application
for review by the full commission, the industrial commission sus
tained the award made by the single commissioner. The employer
and the insurance carrier appealed the award to the superior court
of Richmond County, Ga., on several grounds. Some of the grounds
of exception were that the Industrial Commission of Georgia had
no jurisdiction to try the case and render an award; that the com
pensation act and its amendments were void and of no force and
effect in that the act interfered with and attempted to regulate
interstate commerce; and that a baseball player was not an “ em
ployee ” within the meaning of the compensation act. The superior
court on August 12, 1926, passed an order denying and dismissing
the appeal and affirmed the award. The case was then carried to
the Supreme Court of Georgia. Judge Beck, in an opinion written
February 16, 1928, answered the jurisdictional question by quoting
section 37 of the Georgia workmen’s compensation act (Ga. Laws,
1920, p. 187) and said:
This section, given a reasonable construction, confers upon the
industrial commission, in the exercise of the powers given to it by
the act referred to, the authority to entertain jurisdiction of a case
like the present, where the claim is made by the proper parties for
compensation for injuries which occurred in another State. The
contract between the baseball company and Huhn and Reiger, its
employees, was not expressly for services “ exclusively outside of the
State” of Georgia. It would seem to be the necessary inference
that, inasmuch as the industrial commission has jurisdiction of all
cases involving claims for compensation under the provisions of this
act, it would have jurisdiction of cases growing out of claims for
compensation for injuries occurring out of the State, as express
provision for such claim is made in the section just quoted.
The Supreme Court of Georgia did not think that the contention
of the employer and the insurance carrier was sound, in that the
compensation act interfered with an attempt to regulate interstate
commerce. In answer to it the court quoted the United States Su
preme Court in the case of Federal Baseball Club v. National League
(259 U. S. 200, 42 Sup. Ct. 465), as follows:
The business is giving exhibitions of baseball, which are purely
State affairs. It is true that, in order to attain for these exhibitions
the great popularity that they have achieved, competitions must be
arranged between clubs from different cities and States* But the
300
DECISIONS OF T H E COURTS
fact that in order to give the exhibitions the leagues must induce
free persons to cross State lines and must arrange and pay for their
doing so is not enough to change the character of the business. Ac
cording to the distinction insisted upon in Hooper v. California (155
U. S. 648, 655), the transport is a mere incident, not the essential
thing. That to which it is incident, the exhibition, although made
for money would not be called trade or commerce in the commonly
accepted use of those words. As it is put by the defendants, personal
effort, not related to production, is not a subject of commerce. That
which in its consummation is not commerce does not become com
merce among the States because the transportation that we have
mentioned takes place.
Whether there should be a recovery in the case because the rela
tion of the deceased baseball players and the club was not that of
employee and employer, as referred to in the Georgia workmen’s
compensation act, the court said:
It is true the baseball player for whose death the claim is made
was not engaged in a “ productive industry ” at the time of the
happening of the occurrence which resulted in his death; but he was
engaged in a “ business operated for gain or profit.” Section 2 (a)
of the compensation act is in part as follows:
“ Employers shall include any * * * individual, firm, associa
tion. or corporation engaged in any business operated for gain or
profit, except as hereinafter excepted.”
And section 2 (b) in part is as follows:
“ Employee shall include every person, including a minor, in the
service of another under any contract of hire or apprenticeship,
written or implied,” etc.
In this case the baseball player who was killed was person “ in
the service of another under any contract of hire,” and therefore was
an “ employee ” under section 2 (b ). The title of the act in part is as
follows:
“An act to prevent industrial accidents; to establish rates of com
pensation for personal injuries or death sustained by employees in
the course of employment; to provide methods of insuring the pay
ment of such compensation; to create an industrial commission for
the administration of this act; and to prescribe the powers of such
commission, and for other purposes.”
I f the title had read, “An act to establish rates of compensation
for injuries or death sustained by employees engaged in industrial
pursuits or in industrial business,” there would nave been more
force in the objection raised to including the baseball player who was
killed among those who are covered by the act. But the words in the
caption, “ to prevent industrial accidents,” cover only in the most
general way the purpose of the act, and other words following in
the caption are broad enough to cover the case of employees engaged
in other businesses. The deceased baseball player was an employee
under the provisions of section 2 (b) of the act.
The judgment of the lower court was therefore affirmed and awards
of compensation were granted.
w o r k m e n ’s
W
o r k m e n ’s
301
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C o m p e n s a t io n — C overage — C a s u a l
E
m ploym ent—
Sink v. Pharaoh,, Supreme Court of Minnesota (February 4, 1927),
212 Northwestern Reporter, page 192.—Peter Sink, a carpenter, was
hired by Walter E . Pharaoh to reshingle a house owned by him in
Minneapolis, Minn. He was to be paid at the rate of 40 cents an
hour. He began work on September 14, 1925, and two days later,
while at work, the scaffold gave way and Sink fell, receiving injuries
which caused his death.
The widow of Sink proceeded under the workmen’s compensation
act. The Industrial Commission of Minnesota made an award in
favor of the widow. Pharaoh thereupon carried the case to the
Minnesota Supreme Court seeking to set aside the award.
The main question presented in the case was whether Sink and
the employer, Pharaoh, were within the workmen’s compensation
act. Section 8 of the act (sec. 4268, G. S., 1923) provides as follows:
This act shall not be construed or held to apply to * * * per
sons whose employment * * * is casual, and not in the usual
course of the trade, business, profession, or occupation of his em
ployer.
The supreme court said that:
The reshingling of a small house was a casual employment, but
that did not exclude the workman from the benefits of the act, pro
vided the employment was in the usual course of the business or
occupation of this employer.
Continuing the court said:
Can it be said that the owning, letting, paying taxes, and keeping
in repair this solitary dwelling constitutes a business or occupation,
within the meaning of the quoted part of the act? We can well con
ceive that a person may embark in the owning and letting of houses
so that it results in a business or occupation. But had this small
dwelling been owned by a merchant, doctor, or lawyer, and Sink
been employed to reshingle the same, could it have been said that
the employment was in the usual course of the business or profession
of the owner? True, a person may engage in more than one busi
ness, or be in a profession and a business at the same time. But if
the exception of the statute is to cover any situation at all or be
given some force or meaning, it should exclude the employer here.
Unless it does, it would follow that if a person owns any property
whatever, personal or real, from which he expects to derive some
profit, and he hires another to do some trifling thing in connection
therewith, and the one so hired is accidentally injured, there is lia
bility under the workmen’s compensation act. We do not think this
was the intention of the legislature.
103151°—30-----21
302
DECISIONS OF T H E COURTS
After citing several other cases taking the same view, of similar
exceptions in the workmen’s compensation acts, the court on February
4j 1927, said that:
Upon the facts, the employment here in question was not covered
by the workmen’s compensation act, and the award must be set aside.
The order of the court was therefore referred to the industrial
commission.
W orkmen’ s Compensation— Coverage — Casual E mployment —
V olunteer— Johnson v. City of Albia, Supreme Court of Iowa
(February 15, 1927), 212 Northwestern Reporter, page 419.—On
November 16, 1923, Johnson was an employee of the City of Albia
in charge of the pumping plant of its waterworks. On the morning
of that day he notified the chairman of the waterworks committee
that he would terminate his services that afternoon. The committee
immediately made arrangements with one Seibert to take the job
thus vacated. Johnson operated the engine and pumps until 7.15
p. m. on the 15th. At that hour he left the plant for home and on
the way met Seibert and advised him where he would find the key.
On the morning of the 16th Johnson returned to the plant for the
purpose of getting his tools. He found Seibert there and found
that he was having trouble with the machinery. Seibert was unable
to start one of the pumps because of a defective valve which re
quired a peculiar manipulation in order to start it. Seibert requested
Johnson to assist him in starting the pump. While so engaged
Johnson was accidentally caught in some gear and lost his left arm,
The industrial commission awarded compensation to Johnson and
this award was confirmed by the district court. The Supreme Court
of Iowa reversed the award, pointing out that Johnson in his attempt
to assist Seibert was doing work which was purely voluntary on
his part, that there was no intimation in the record that any person
was authorized to engage employees by the city or so much as knew
Johnson was on the premises, that Johnson had voluntarily quit
his employment and had accomplished all the work he was required
to do under his employment, that he had no orders whatever that
required him to ever return to the premises, that his employment was
fully terminated, that if it was held that an emergency existed and
that the new employee had implied authority to engage Johnson,
Johnson was a casual employee and therefore not covered by the
act. That as Johnson went to the plant voluntarily for his own
private purpose—to get his tools—he was not covered by the work
men’s compensation law.
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W O R K M E N *S COM PENSATION
W
o r k m en ’s
C o m p e n s a t io n — C overage — C i t y F
ir e m a n
— T
h ir d
Behr v. Soth, Supreme Court of Minnesota
{February 18, 1927), 212 Northwestern Reporter, page lfil.—Henry
Behr, a fireman in the employ of the city of Albert Lea, Minn., was
injured while riding on a fire truck in response to an alarm of fire.
He collided with an automobile of the chief of the fire department,
who was responding to the same alarm.
An award for compensation was made to Behr. On April 4, 1925,
he brought an action against Soth, chief of the fire department. The
district court returned a judgment for Soth, and Behr thereupon
carried the case to the State supreme court for a final determination.
The fire department was manned by volunteers who were local
business men. The chief’s place of business was about 8 blocks
from the station. Owing to the difficulty of reaching the station
before the fire truck left in response to a fire, it was the chief’s prac
tice to drive to a fire in his own car. On May 27, 1924, both of the
parties responded to a fire alarm, and while en route the collision
occurred, resulting in serious injury to Behr.
It was claimed that Soth had no right as chief to use his private
car, that the city council had not officially designated it as fire ap
paratus and therefore he was doing an act wholly personal to himself
outside the scope of his employment. As to this the court said:
P a r t y — E l e c t io n —
We can not give our assent to this assertion. The chief’s con
tract of employment carried with it very definite duties, including
street duties as indicated, and also to go to fires, which exposed him
to dangers not common to the public. He had to travel faster than
the public. This exposure was incident to his employment—was
solely because thereof. Having assumed such risks and burdens,
the moment he responded to the fire alarm the law also clothed him
with the benefits which are also incident to his employment. How
was he to go? No conveyance was provided. Again duty com
manded, as an incident to his employment, to choose a method that
would promptly bring him to a fire. No one can claim that he did
not choose wisely. He did the natural and ordinary thing.
It is also claimed that the chief did not choose the shortest route
to reach the fire, and that, if he had done so, the collision would
not have occurred. This claim is without merit. He was confronted
by an emergency. He doubtless acted according to the dictates of
his best judgment under the circumstances. Whether his conduct
in this respect was such as to constitute negligence we do not con
sider, but do hold that his selection of his course of travel did not
remove him from the scope of employment.
We reach the conclusion that the accident arose out of and in the
course of the employment of plaintiff and defendant. The fact that
the accident was a street risk does not preclude such conclusion.
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DECISIONS OP T H E COURTS
The court concluded that the injured fireman had a right to seek
compensation from his employer, the city, or damages from the
chief , who was a third party engaged in a common enterprise, but
not both,
In the language of the court:
Plaintiff’s conduct indicates that he knew what he was claiming,
and that he was accepting the fruits of the compensation law. He
can not be heard to dispute what he was clearly and consistently
doing with full knowledge. The offer says he did not have a lawyer
at the time of the talk with the insurance agent, but he did have a
lawyer, soon after, who wrote the two letters to the commission
which were impossible upon the theory of the offer of proof He
should have learned his rights long before the compensation was
discontinued. The court was right in excluding the offer, because
the record shows that he was guilty of such conduct that, he was
estopped from saying he did not know the law, and hence he can
not now deny an election to take “ compensation,” and that the con
duct of the employee was such, regardless of his mistake as to his
legal right, as to estop him from being heard to deny the election.
He availed himself of compensation to the extent of his expenses of
$1,136.79, and also the Weekly payments for 60 weeks amounting to
$1,200.
The judgment of the lower court was affirmed.
W
o r k m e n ’s
C o m p e n s a t io n — C ov erage — E
l e c t io n
— L
egal
L
ia
Paradis’ Case, Supreme Judi
cial Court of Maine (August 22, 1928), 11$ Atlantic Reporter, page
863.—Solomon J. Paradis was employed in a general hardware store
at Caribou, Me. The employer of Paradis in assenting to the provi
sions of the workmen’s compensation act specified his business as that
of general hardware, tinsmithing, and plumbing. The duties of
Paradis varied and were divided between the store and the house of
his employer. On the afternoon of January 25, 1927, Paradis was
directed by his employer to go to his home and get his traveling bag.
While waiting for the bag to be packed, the employee began to break
a box for kindlings to be used at the house. A nail flew from the box
into the employee’s right eye and injured it.
He proceeded under the workmen’s compensation act to recover
for the injury to his eye. From a decree in the supreme judicial
court of Aroostook County, in equity, confirming an award of com
pensation, the employer appealed to the Supreme Judicial Court of
Maine.
The main question in the case was whether the employer had as
sented under the compensation act for the work in which the em
ployee received his injury.
b il it y —
U
sual
C o u r se
of
B
u s in e s s —
w o r k m e n ’s
305
c o m p e n s a t io n
The State supreme court held that the employer had not
assented and ordered that the decree which confirmed the award
should be reversed.
The court said in part as follows:
Only an assenting employer, or, virtually the same, the insurance
carrier of such employer, is obligated to pay compensation. “ I f an
employee * * *, received a personal injury by accident arising
out of and in the course of his employment, he shall be paid com
pensation * * * by the employer who shall have elected to be
come subject to the provisions of this act.”
It is settled that, if an employer is carrying on two clearly distinct
kinds of business, and he does not desire to place both under the act,
he can elect which business he desires so to place.
The assent of the employer is not to be extended beyond what in
the usual course of the specified business is necessary, incident, or
appurtenant thereto. In cases of the type under discussion it is
the assent of the employer, accompanied by an insurance policy in
proper form, such as was here filed, which entitled the employer to
a certificate that he has conformed to the provisions of the law. (R.
S. sec. 6, supra.) The assent, as supplemented by the approved in
surance policy and certified by constituted public authority, may be
said to define, with reference to the particular business or industry,
the method of accident compensation on which the minds of employer
and employee met.
In making kindlings of the box, while the traveling bag was being
packed, this employee did nothing that was necessary or incidental
to or had natural connection with getting the bag. He did that
which it might have been for him to do, not then, but at another
time, in laboring at the house. Be this as it may, he was injured
while doing work wholly apart from any that his employer’s hard
ware and connected business called upon the employee to do. In
finding otherwise the associate legal member of the industrial acci
dent commission found fact without any supporting evidence. Such
finding is error in law.
W o r k m e n ’s C o m p e n s a tio n — C o v e r a g e — E m p lo y m e n t S t a t u s —
“ B u i l d i n g W o r k ” — Harrel v. Quiring, Supreme Court of Kansas
(February 11, 1928) , 264 Pacific Reporter, page 46.— W . L . H a r r e l
w as e m p lo y e d b y W illia m Q u irin g , ow n er o f the Q u ir in g M on u m en t
& S ton e C o., in W ic h it a , K a n s.
T h e co m p a n y op era tes a p la n t in
w h ich b lock s and slabs o f stone, m arble, a n d g ra n ite are cu t, sh ap ed ,
d ressed, p o lish e d , lettered , an d p re p a re d f o r se ttin g u p as tom b ston es
a n d g ra v e y a rd m on u m en ts.
T h e stones are p re p a re d at th e p la n t an d
sh ip p e d to th e p la ce w h ere th ey are to be used an d are there set u p
b y th e c o m p a n y ’s w o rk m en .
W h ile H a r r e l w as e n g a g e d in th e w o rk
o f e re ctin g a m on u m en t in th e cem etery at E llin w o o d , K a n s., he
su stained an in ju r y .
H e b r o u g h t an a ction in th e d istrict co u r t o f
S e d g w ic k C o u n ty , K a n s., a ga in st W illia m Q u ir in g f o r co m p e n sa tio n
u n d er th e S tate w o rk m e n ’s com p en sa tion act.
A
ju d g m e n t w as
306
DECISIONS OF T H E COURTS
rendered in favor of the employer. Harrel thereupon appealed the
ruling of the district court to the Supreme Court of Kansas, contend
ing that he was engaged in building work as enumerated in the
workmen’s compensation act. The employer relied upon the statute
which defined building work as follows:
(/) “ Building work” means any work in the erection, construc
tion, extension, decoration, alteration, repair, or demolition of any
building or structural appurtenances. (R. S. 44-508.)
The main question therefore involved in the case was whether the
monument was a building. The State supreme court held that a
monument was not a building and affirmed the district court in the
following language:
Nobody thinks or speaks of such monuments as buildings. Passing
by or through a cemetery, the eye does not note the type of buildings
which mark the graves, and we read the inscriptions on monuments,
not buildings. When we speak of a building, we have in mind the
class of structures represented by house, barn, store, office, church,
school, and similar buildings, and use of the word “ building ” does
not suggest stone, shaft, column, pillar, or other sepulchral
monument.
The supreme court cited a very interesting case involving the dis
tinction between a monument and a building—Society of the Cin
cinnati’s Appeal, 154 Pa. 621, 26 Atl. 647:
The Society of the Cincinnati, organized in 1783, and composed of
descendants of officers who served at least three years in the Con
tinental Army, desired to erect a monument to the memory of George
Washington, in Independence Square, Philadelphia. The statute of
the State of Pennsylvania (act March 11, 1816 (P. L., 109)) forbade
the erection of “ any sort of buildings ” in the square. In the opinion
of Mr. Justice Mitchell it was said:
“ But the proposed monument is not a building within the pro
hibited condition. A monument may take the shape of a memorial
hall or other building, but that is not the general sense of the word
and will not be presumed. A statue upon a pedestal, even though
the latter be large, is not a building in the popular meaning of the
term. * *
(26 Atl. 651.)
Judge Burch concluded his opinion in affirming the judgment of
the lower court as follows:
Keeping in mind the fact that, in the statute, building work is not
any kind of fabrication by way of uniting materials to form a regular
structure, but is work on a special kind of structure designated as a
building, it is clear the work in which plaintiff was engaged when he
was injured was not building work. The locality of the factory may
not be extended across the space which separates Ellinwood from
Wichita, and the work in which plaintiff was engaged when he was
injured was less like engineering work than building work.
W O R K M E N *S COM PENSATION
307
W o r k m e n ’s C o m p e n s a tio n — C o v e r a g e — E x t r a h a z a r d o u s E m
p lo y m e n t — Edwards v. Department of Labor and Industries of
Washington, Supreme Gourt of Washington (January 8, 1928), 262
Pacific Reporter, page 978.—F r e d E. E d w a r d s w as e m p lo y e d as a
tru ck d riv e r b y L. M a rk s & C o. W h ile e n g a g e d in d e liv e r in g m er
ch a n d ise f o r the co m p a n y , he was in ju re d on A p r il 13, 1926. On an
a p p lica tio n f o r in d u stria l in su ran ce h is cla im w as re je cte d o n th e
g ro u n d th at he w as n ot e m p lo y e d in an “ e x tra h a za rd ou s o ccu p a tio n ”
as d efin ed in th e w o rk m e n ’s com p en sa tion act o f the S ta te o f W a s h
in g ton . E d w a rd s to o k the case to the su p e rio r cou rt o f K i n g C o u n ty ,
W a sh ., an d th is co u rt co n clu d e d th at E d w a r d s w as e n g a g e d in an
e x trah azard ou s o ccu p a tio n w ith in the m e a n in g o f the la w an d re
versed the fin d in g o f the State d ep a rtm en t o f la b o r a n d industries.
T h e fa cts u p on w h ich the co u rt based its con clu sion w ere that the
tru ck m ain tain ed b y th e co m p a n y w as o f con sid era b le w e ig h t, such
as is co m m o n ly used f o r h ea v y h a u lin g , f o r d e liv e ry to its cu stom ers
o f m erch a n d ise so ld th em , an d th at such m erch a n d ise u su a lly c o n
ta in ed in ca rton s an d cases w e ig h e d as m u ch as 200 p ou n d s.
The department appealed the decision of the superior court to the
Supreme Court of the State of Washington. The sole question pre
sented for consideration was whether the truck driver was engaged
in an extrahazardous occupation within the meaning of the State
workmen’s compensation act.
Section 7674, Remington’s Compiled Statutes as amended in section
1, chapter 182, Laws of 1921, specified among the occupations declared
to be extrahazardous those of “ transfer, drayage, and hauling.”
The contention of the department of labor and industries was that
the general term “ extrahazardous ” was limited to the kinds of
work particularly enumerated and designated within the act itself.
Reliance is based on a previously decided case by the Washington
Supreme Court, that of Parker v. Pantages Theater Co. (Wash.),
251 Pac. 1083, in which the court said as follows:
Whether an occupation is in law extrahazardous or not depends
upon whether the act has so declared it, or it has been so found by the
industrial insurance department.
Edwards, on the other hand contended that he was engaged in
truck driving, transfer, drayage, and hauling work as defined in
sections 7674 and 7676 of the State workmen’s compensation act.
He argued that the extrahazardous nature of the work in which he
was engaged when injured is the criterion for interpretation, and
not the main business of the employer in determining his right for
compensation. To support his contention he cited numerous cases.
The Supreme Court of Washington, however, in an opinion by
308
DECISIONS OF T H E COURTS
Judge Holcomb, in reversing the judgment of the superior court
said in part as follows:
As a matter of common knowledge, many concerns in the State
are engaged in the regular business of transfer, drayage, and haul
ing for the general public for hire. Those are manifestly the
“ classes of business ” or “ industries 55 which the legislature had in
mind in enacting the statutes before quoted. L. Marks & Co. was
not engaged in any business of transfer, drayage, and hauling for
hire, but was engaged only in hauling its own goods and chattels.
Neither was it engaged in an industry, such as warehousing, an
incidental part of which was transfer, drayage, and hauling or team
and truck driving. The cases cited and relied upon by respondent
do not announce rules contrary to this. As we said in Parker v.
Pantages Theater Co., supra:
u * * * j£
iegisiature or the industrial insurance depart
ment had classified advertising sign washing as an extrahazardous
occupation, although it may have been only a very infinitesimal
part of the activities of the theater company, the respondent, injured
in such work would have been forced to look for his recompense to
the State fund, and could not have prosecuted this action; the test
being whether the occupation has or has not been classified as extrahazardous in law, no matter what it may be in fact.”
So, in this case: Had the legislature classified the driving of
ordinary business delivery wagons or trucks, or transferring or
hauling in the business of any merchandise concern, whether such
business was extrahazardous or not, respondent would have come
under the act.
Regardless of considerations of expediency and policy, until the
legislature has explicitly brought such work under the workmen’s
compensation act, we shall not extend the rules announced in the
cases relied upon by respondent to cover such activities as that
involved here as extrahazardous within the contemplation of the act.
W
o r k m en ’s
C o m p e n s a t io n — C ov erage — E
xtrahazardous
E
m ploy
Murphy et ux . v.
Schwartz et al., Supreme Gourt of Washington, (January 19, 1927),
252 Pacific Reporter, page 152.—Leo Murphy was engaged as a track
oiler in the employ of the city of Seattle on its municipal street-car
system. He was injured by a taxicab while engaged at his work.
He brought an action against the taxicab company, and the suit was
dismissed on the ground that he was on the plant of his employer at
the time he was injured, and therefore had no right of election to
sue the negligent third parties who caused the injuries, but must
seek redress only from the fund created by the workmen’s compensa
tion act. The work in which he was engaged was extrahazardous
within the meaning of the workmen’s compensation act. Murphy
carried the case to the Supreme Court of the State of Washington
m ent—
E
m ployee
O il in g
S tr e e t C a r T
racks—
309
W O R K M E N *S COM PENSATION
and this court affirmed the judgment of the superior court of King
County. This court held that the instant case was controlled by
several previous cases decided by the court. (Zenor v. Spokane &
Inland Empire E. Co., 109 Wash. 471, 186 Pac. 849; and Diblasio v.
Hunter, 124 Wash. 98, 213 Pac. 470.) The court in concluding said:
That case differs from the present one only in detail, not in prin
ciple. There the workman was engaged in repairing the track j here
he was engaged in oiling it. The reason of the rule announced is
the power of the city to control the place where the employee works
so as to protect him from the wrongful or negligent acts of third
persons; the power to close the street to motor vehicles or so con
fine the traffic as to lessen the hazards to the city’s employees. It
is so stated in the opinion. I f the city has the power to do so in
protection of its employees engaged in repairing the tracks, it has to
the same extent the power to do so in protection of its employees
engaged in oiling the tracks. The existence of that power denies
to an injured workman the right of election. He must take under the
act. To the same effect is our more recent case of Schockey v. Royal
Baking Powder Mfg. Co., 138 Wash. 223, 244 Pac. 549.
W o r k m e n ’ s C o m p e n sa tio n — C overage— F arm er — Gabel v. Indus
trial Accident Commission, District Court of Appeal, Third District
of California (May 16, 1927), 256 Pacific Reporter page 56Jf.—
W . B . B a ch an d W illia m G a b e l w ere fa rm ers, fr ie n d s, a n d n e ig h b o rs,
w h o ow n e d an d o p e ra te d a d jo in in g stock ran ches in th e v ic in ity o f
O a k la n d , C a lif. F o r 15 yea rs th ey w ere p a rtn ers in a fa r m in g
en terprise. S om e th ree o r fo u r years p r io r to J u ly 5, 1926, th ey
d issolv ed p a rtn e rsh ip bu t reta in ed a sp ok en agreem en t co n tin u in g
to J u ly 5, to e x ch a n g e fa r m la b o r , se rv in g each oth er in th is ca p a city
u p on request an d w h en ever requ ired . T h e r e w as n o m on eta ry
com p en sa tion f o r services b u t is w as m u tu a lly a g reed th a t th ey w o u ld
equ alize th eir service as n e a rly as p ossib le, th e assistance o f one
b a la n cin g the serv ice o f th e oth er. T h e n atu re o f th is exch a n ge
w o r k in clu d e d e v e r y th in g w h ich arose in th e o p e ra tio n o f th e ir
resp ective fa rm s.
E a ch o f these n e ig h b o rs re lie d a lm ost so le ly u p o n
th e oth er f o r fa r m assistance a n d ra re ly e m p lo y e d a n y oth er h elp.
B o th o f th em b y m u tu a l agreem en t ca rrie d co m p e n sa tio n in su ran ce
la r g e ly f o r th e p ro te c tio n o f each oth er.
O n J u ly
5, 1926,
a fire
a la rm w as h ea rd an d u p o n in q u ir y it w as lea rn ed th a t a d an g erou s
grass fire w as b u r n in g a b ou t a m ile n o r th e rly fr o m th e ir ranches.
B o th B a c h an d G a b e l ro d e ou t to the fire. T h e y fo u n d the fire b u r n
in g fiercely a n d sp re a d in g r a p id ly in th e d ire c tio n o f th e ir ranches.
I n sp ite o f the efforts o f the fire* figh ters, co n s istin g o f h a lf a d ozen
m en , th e fire sp rea d u n til it co v e re d a fr o n t o f a p p ro x im a te ly a m ile
310
DECISIONS OP T H E COURTS
in extent. Becoming alarmed, Gabel told Bach to go to Gabel’s ranch
and try to save the buildings. While there and while so engaged Bach
was burned about the face, hands, neck, head, and feet. He was taken
to a hospital for treatment and was completely incapacitated for
several weeks. A claim was made for an award under the compen
sation act. The award was challenged on the theory that the relation
of employee and employer did not exist between the parties and that
Bach was engaged in the performance of voluntary service at the
time he was burned. An award was made in the favor of Bach and
the case was taken to the district court of appeals. That court af
firmed the award, saying that “a contract of employment, either
express or implied, must exist, that a pecuniary consideration for
services is not necessary but that “ one may compensate for services
by means of any property of value, or even by a return of services
pursuant to agreement.”
W o r k m e n ’s C o m p e n s a tio n — C o v e ra g e — G a m e W a r d e n — C o n
E m p lo y m e n t — State Conservation Department v. Nattkemper, Appellate Court of Indiana, In Bane (April 21, 1927), 156
Northeastern Reporter, page 168.— W illia m N a ttk em p er w as e m
tra ct o f
p lo y e d b y the fish and gam e d iv is io n o f the In d ia n a C o n se rv a tio n
D ep a rtm en t. On A p r i l 27, 1926, at abou t 8.15 a. m ., w h ile w o r k in g
in the lin e o f h is em p lo y m e n t, a b o a t in w h ich h e w as r id in g w as
a ccid e n ta lly ca p sized in the W a b a sh R iv e r n ea r T ecu m seh , I n d ., an d
he w as d row n e d .
H is w id o w cla im ed com p en sa tion .
b o a rd
a w a rd ,
m ad e
an
and
th e
State
T h e in d u stria l
con se rv a tio n
d ep a rtm en t
ap p ea led .
The conservation department contended that Nattkemper was not
an employee of the State, but was an officer, and hence his widow
was not entitled to compensation under the State Workmen’s com
pensation law. The appellate court reversed the order of the indus
trial board and held that:
An office differs from an employment in that the former implies a
delegation of a portion of the sovereign power to and the possession
of it by the person filling the office. In Shelmadine v. City of Elk
hart, 75 Ind. App. 493, 129 N. E. 878, the court said:
“ A public office may be defined as a position to which a portion of
the sovereignty of the State attaches for the time being, and which
is exercised for the benefit of the public. The most important char
acteristic which may be said to distinguish an office from an employ
ment is, that the duties of the incumbent of an office must involve
an exercise of some portion of the sovereign power.”
w o r k m e n ’s
c o m p e n s a t io n
311
See also, 23 Am. & Eng. Ency., 324. Shelmadine was a city police
man, and the court held that he was an officer and not an employee,
as defined by the workmen’s compensation law.
We hold that, under the facts as disclosed by the record in this
case, the appellee’s decedent was not an employee covered by the
workmen’s compensation law, but was a State officer and not entitled
to recover.
W o r k m e n ’s
C o m p e n sa tio n — C overage — H azardous
E m ploy
m e n t —Estes
v. State Industrial Accident Commission, Supreme
Court of Oregon (May 22, 1928), 267 Pacific Reporter, page 518.—
John E . Estes was engaged in decorating a building with flags and
bunting in preparation for a celebration in the city of Pendleton,
Oreg. H e was employed to do this particular work by the owner of
the building, and while so engaged fell from a ladder sustaining
injuries. The State industrial commission rejected Estes’ claim
for compensation. On appeal to the circuit court of Multnomah
County, Oreg., by Estes, the court reversed the order of the industrial
commission. Estes contended that at the time of the accident he
was engaged in an occupation which came within the terms “ con
struction work ” and “ engineering work ” as defined in section
6617 of the Oregon laws.
The Industrial Commission of Oregon carried the case to the
State supreme court. The main question presented to the court
was whether Estes at the time of his injury was engaged in a
hazardous occupation as defined by the workmen’s compensation
act.
Estes relied on an Illinois case, that of Chicago Cleaning Co. v.
Industrial Board of Illinois, 283 111. 177, 118 N. E. 989, where the
claimant was injured while washing windows on the outside of a
large building. The supreme court held that this case was inappli
cable, however, because the Illinois act was broader than the Ore
gon act in that the “ maintenance ” of buildings is enumerated as a
hazardous occupation.
The Supreme Court of Oregon reversed the judgment of the
lower court and Judge Belt in his opinion, said:
This court has always given the workmen’s compensation act a
broad and liberal construction, but to sustain the claim of plaintiff
would require an interpretation beyond the plain intent and purpose
of the act. Considering the words of the statute in their ordinary
acceptation and meaning, we think plaintiff at time of his injury
was not engaged in the construction, improvement, or alteration of
a building. The building itself was not changed by reason of
draping it with flags and minting.
312
DECISIONS OF T H E COURTS
W o r k m e n ’s C o m p e n s a tio n — C o v e r a g e — H a z a r d o u s
E m p lo y
m e n t— F e r r y b o a t C a p t a in — San Francisco <& Sacramento Ry. Co.
et al., v. Industrial Accident Commission of California et al., Supreme*
Court of California (July 15, 1927), 258 Pacific Reporter, page
86.— T h e S a n F ra n c is c o an d S a cra m en to R a ilw a y C o. o w n e d and
op era ted a fe r r y b o a t used f o r the p u rp o se o f tr a n s p o r tin g its electric
tra in s o v e r th e S a n J o a q u in R iv e r in C a lifo r n ia .
Captain Ough was one of three captains working on separate
shifts, and, as such, was in full charge of the ferryboat during his
period of service. The trains are operated by means of an over
head electric trolley terminating at each wharf in a V-shaped con
tact point, so that when the ferryboat is docked the train can readily
take up the electric current and proceed on its way. One of these
contact points had become bent, and Captain Ough left his boat and
went on the wharf to repair it. He failed to turn off the current,
but climbed a ladder to the place where the live wires were attached,
and coming in contact with the current, was thrown to the wharf and
killed.
A claim for compensation was filed by the children of Ough.
The industrial accident commission awarded compensation for the
death and upon appeal the railroad company carried the case to
the State supreme court. The railway company contended that the
captain was acting beyond the scope of his employment. That
because of the technical and hazardous character of the work, the
company had provided a specially trained staff of electric linemen
for that work; that the captain had been given express orders to
call upon these linemen when repairs were needed. The State
supreme court annulled the award of the industrial accident com
mission, saying:
In our opinion, neither the evidence adduced before the respond
ent commission nor any inference that might reasonably be drawn
therefrom, tends to in any manner support a finding that the injury
resulting in the demise oi the deceased was one “ arising out of and
in the course of the employment,” or that the deceased was, at the
time of injury, “ performing service growing out of and incidental
to his employment ” or “ acting within the course of his employ
ment.” As we read the record herein, it was no part of Captain
Ough’s marine duties to repair the bent contact point referred to
above. Such hazardous repair work was unmistakably and unques
tionably within the range of duties of the line crew. The express
instructions of the deceased’s employer required that he communicate
the necessity of such repair work to the line crew.
The appellate division of the Supreme Court of New York affirmed an
award of the State industrial board in favor of the widow of a taxicab driver,
W O R K M E N ’ S CO M PENSATION
313
in a case in which the driver was killed when the taxicab, being driven for
the employer, was commandeered by a police officer to chase thieves, during
which time it collided with a street car. (Babington et al. v. Yellow Taxi
Corporation et al. (1928), 231 N. Y. Supp. 65.)
W orkmen’s
ment—P ublic
Compensation—Coverage—H azardous
E mploy
E mployment—Moore v. Industrial Accident Fund,
Supreme Gourt of Montana (September 26, 1927), 259 Pacific Re
porter, page 825.—William A. Moore was chairman of the board of
county commissioners of Lewis and Clark County, Mont. On July
26, 1926, in company with two other members of the commission he
was returning from a trip of examination and inspection of county
roads when an automobile in which they were riding turned over,
killing Moore.
He left surviving and depending upon him a wife and two minor
children. A claim was filed on their behalf for compensation under
the terms of the Montana workmen’s compensation act. The indus
trial accident board denied the claim. Upon appeal to the district
court of Lewis and Clark County, Mont., by the widow, the action
of the board was affirmed. The contention of the widow was that
the death of the husband arose out of and was in the course of his
employment, and therefore she being a dependent was entitled to
compensation. The industrial accident board took the position that
the State compensation act was intended to apply to all inherently
hazardous occupations, and no reference was made as to the hazard
ous duties or work of a county commissioner and hence they were
not covered by the act.
The supreme court of the State affirmed the judgment of the
lower court, saying in part as follows:
“ I f there be or arise any hazardous occupation or work other
than hereinbefore enumerated, it shall come under this act and its
terms, conditions, and provisions as fully and completely as if
hereinbefore enumerated.”
The mere inspection and examination of county roads does not
appear to be hazardous, although accidents in the pursuit of travel
happen frequently.
The legislature has not pronounced the occupation of county com
missioner to be hazardous, nor has the industrial accident board,
assuming that it has the authority to do so. The board considered
the matter, but did not “ feel justified in attempting to force these
officials to carry compensation upon themselves.
In this situation
the trial court upon the record before it adjudged correctly in
affirming the action of the board.
314
DECISIONS OE TH E COURTS
The plight of the unfortunate widow and children of the late
commissioner is one which calls strongly upon our sympathy, but
we, too, are powerless to do other than enter an order of affirmance.
In view of the reluctance of the board to declare the occupation
hazardous upon a proper showing (conceding that it had authority
to do so), it would seem that if the occupation is to be so declared
resort must be made to the legislature.
An insurance company can not reject an application of an employer within
the terms of the Texas workmen’s compensation act to become a subscriber, on
the ground that the business of the applicant is a very hazardous one. (Texas
Employers’ Insurance Association v. United States Torpedo Co. (1928), 8 South
western Reporter, p. 266.)
W
o r k m e n ’s
C o m p e n s a t i o n — C o v e r ag e — S e a s o n a l
O c c u p a t io n —
Froehly v. T. M. Harton Co. et al., Supreme Court of Pennsylvania.
(November 28, 1927), 139 Atlantic Reporter, page 727.—Mrs. Stella
Froehly was employed by the T. M. Harton Co., an amusement park
organization, as a dishwasher in the kitchen of a restaurant on the
park premises of the company. Her duties required her to wash dishes
three days a week, with the option of working additional time if
she cared to do so. She performed other labor in addition to dish
washing, such as scrubbing floors, and while so engaged at this work
she slipped and fell on the wet and soapy floor, sustaining injuries.
Mrs. Froehly proceeded under the workmen’s compensation act
against the amusement company and the insurance carrier, on the
grounds that she received her injury while in the course of her
employment on the premises of the employers.
The referee of compensation found in favor of the employee, whicn
finding was affirmed by the compensation board. The company
appealed the award to the court of common pleas, contending that
the amusement park was open to the public for only about three
months in the year and therefore the wTork performed by Mrs.
Froehly was “ seasonal.”
The lower court affirmed the award, and the case was appealed to
the Supreme Court of Pennsylvania. This court affirmed the lower
court, and in the opinion of Judge Frazer, said in part:
The essential part of this dispute is whether dishwashing is a
seasonal occupation, and, if it is, then claimant, having hired out as
a dishwasher to defendants, was engaged in a seasonal occupation
at the time she suffered injury, and her compensation should have
been adjusted in accordance with section 309 of the workmen’s com
pensation act of 1915, which provides for awards to claimants en
gaged in such occupations. Is, then, dishwashing a seasonal occu
pation? The court below, having heard the arguments of counsel,
decided it was not, and in that conclusion we agree.
315
W O R K M E N ’ S COM PENSATION
The word “ seasonal ” is a conventional term and is so used in our
workmen’s compensation act. Its meaning and application are so
generally apparent as one of the common words in the English
language that it may properly be inferred the draftsman of the act
did not consider it necessary to include a definition of the word in
the list of words and phrases specifically defined in the statute.
It is in that current and conventional sense that the words “ sea
son ” and “ seasonal ” are in popular use, and it is in that sense that
“ seasonal,” as used in the Pennsylvania workmen’s compensation act
of 1915, is to be taken. The word has a significance and application
far different from the terms “ casual ” and “ intermittent ” ; these
two words, it is true, connote brevity of period of action, but inter
mittent or casual work may be carried on at any period of the year,
irrespective of the season. Seasonal occupations logically are those
vocations which can not, from their very nature, be continuous or
carried on throughout the year, but only during fixed portions of it.
On the other hand, labor or occupation possible of performance and
being carried on at any time of the year, or through the entire 12
months, is certainly not seasonal. The work of dishwashing comes
under this latter classification. It is performed as a matter of uni
versal custom and necessity each day of the entire year, in homes, in
restaurants, or wherever else table service is used, and is a work or
occupation to perform which persons seek paid employment almost
anywhere and at any time, or at all times, of the year. It may be,
as in the present case, carried on at a summer resort for merely
three months in the year—three months of the summer time—but at
innumerable other places dishes are being washed, for wages, every
day in the same year, and the clatter of the dishwasher will continue
every day throughout years to come.
W
o r k m e n ’s
C o m p e n s a t i o n — C o ver age — T
r ac to r
D
r iv e r —
I
nsur
Heal et al. v. Adams et al., Supreme Court of Wis
consin {October 9, 1928), 221 Northwestern Reporter, page 389.—
Lewis Adams was employed by W . E. Heal as a tractor driver. In
the summer time Heal was engaged in road construction, and at
logging operations in the winter.
Adams was directed by his employer, Heal, to drive a tractor and
plow a lot of land belonging to one Long. While engaged in this
work Adams received injuries. Compensation was awarded Adams
by the State Industrial Commission of Wisconsin. Heal appealed
the award to the circuit court for Dane County, contending that
Adams was not covered by the policy of insurance he had subscribed
to. The circuit court gave judgment to Heal, setting aside the order
of the industrial commission. The case was then carried to the Su
preme Court of Wisconsin by Adams. This court reversed the judg
ment of the circuit court, and directed that the award of the indus
ance—
E
l e c t io n —
316
DECISIONS OF T H E COURTS
trial commission be affirmed. The court in affirming the award
through Judge Crownhart said in part:
Whether or not the £>olicy was broad enough to cover farm laborers
under that section is immaterial. Heal was under compensation, and
he employed Adams to drive a tractor, and not as a farm laborer.
Under subdivision (1), section 102.31, Stats. 1925, it is provided:
“ Every contract for the insurance of the compensation herein pro
vided for, or against liability therefor, shall be deemed to be made
subject to the provisions of section 102.03 to 102.34, inclusive, and
provisions thereof inconsistent with sections 102.03 to 102.34, in
clusive, shall be void. Such contract shall be construed to grant
full coverage of all liability of the assured under and according to
the provisions of sections 102.03 to 102.34, inclusive, notwithstanding
any agreement of the parties to the contrary unless the industrial
commission has theretofore by written order specifically consented
to the issuance of a contract of insurance on a part of such
liability. * *
Under this section the insurance policy covered the employment of
Adams. It clearly appears that the employer of Adams was subject
to compensation, and that Adams thereby became subject to com
pensation when employed as a tractor driver. The insurance carrier
became subject to pay the compensation of Adams, as such tractor
driver, unless it secured an order of the industrial commission ex
empting it from such liability, which order it does not appear was
secured.
W o r k m e n ’ s C o m p e n sa tio n — D e pe n d e n c y — Ocean Accident and
Guarantee Corporation v. Industrial Commission of Arizona, Su
preme Cou/rt of Arizona (April 25,1927), 255 Pacific Reporter, page
598.— W illa r d D e w itt R o g e r s w as d iv o r c e d fr o m h is w ife in M a rch ,
1922, in C a lifo rn ia . T h e d iv o r c e d w ife w as g iv e n cu sto d y o f h er
tw o ch ild re n b y R o g e r s. R o g e r s w as o rd e re d to p a y $75 p e r m on th
f o r th eir su p p o rt. W it h th e e x ce p tio n o f a sm all am ou n t in M a rch ,
1922, he p a id n o th in g in fu lfillm e n t o f th is decree, an d in J u ly , 1923,
w as ch a rg e d in a c rim in a l co m p la in t w ith fa ilu re to su p p o rt h is
m in o r ch ild ren .
he p a y
$40
H e w as la ter released on p r o b a tio n on co n d itio n that
p e r m o n th b u t n o th in g Avas ever p a id u n d er th e d iv o rce
decree o r th e subsequent o rd e r o f the cou rt.
R o g e r s m o v e d fr o m the
lo c a lity an d t o o k th e nam e o f W . D . R ic e , th u s h id in g h is id e n tity
an d e lu d in g a ttem p ts to su b ject h im to ord ers o f the cou rt.
S h o rtly
th erea fter he m a rrie d E u tr o p h ia M a rie R o g e r s an d h is fo r m e r w ife ,
D a is y R o g e r s , m a rrie d D . C . C ase, w ith w h o m she a n d th e tw o m in o r
ch ild re n co n tin u e d to reside.
A r iz o n a o n A u g u s t
15, 1926,
R o g e r s w as a ccid e n ta lly k ille d in
w h ile in the d isch a rg e o f h is d u ties as
an e m p loy e e o f th e C en tra l A r iz o n a L ig h t & P o w e r C o.
H e cam e
w o r k m e n ’s
c o m p e n s a t io n
317
within the terms of the workmen’s compensation act. An award was
made in favor of the widow and two children. Proceedings were
brought to set aside the award to the two children on the sole ground
that they were not dependents within the meaning of the compensa
tion act. The Supreme Court of Arizona set aside the award, holding
that they were not dependents within the meaning of the law. The
court pointed out that it was contended that in view of the father’s
moral and legal liability to support his minor children it would be
a liberal and reasonable construction to hold that it entitled all
natural children under 18 years of age to demand benefits irrespective
of actual dependency and “ while the father is legally and morally
bound to support his minor children—in fact it is a criminal offense
in this State for him not to so do without lawful excuse—yet the
plain meaning of the compensation act construed as a whole is that
only his natural children who are living with, him at the time of his
injury and have no surviving mother are entitled as a matter of
law to such benefits.” Quoting from a prior decision the court said:
“ Living with his father at the time of his death either actively or
constructively is just as essential to the establishment of dependency
as is the relationship of parent and child.”
W orkmen’s Compensation—D ependency— Condition at T ime of
D eath—London Guarantee amd Accident Co. v. Industrial Acci
dent Commission of California, District Court of Appeals, Second
District, California (September SO, 1927), 260 Pacific Reporter, page
35Jf..-r-Because of the death of Ralph E. Murray in the course of his
employment an award of compensation was granted in favor of John
Murray, the father. The case was taken to the district court of ap
peals on the question of whether the father was dependent upon the
son. It appeared from the evidence that preceding the death of the
son the father had been totally incapacitated so far as performing
any work was concerned; that the father had an estate of approxi
mately $5,500 consisting of interest-bearing notes and securities; and
that the son sent to his father the sum of $25 per month. The dis
trict court of appeals annulled the award on the basis that the father
was not dependent upon the son, saying:
Even assuming that the interest only on the $5,500 estate of the
father was to be used for his support, at the ordinary interest rate
of 7 per cent per year it would amount to more per month than the
father was receiving from the son. But no reason is apparent why
the principal of the sum should be held intact, or why, if necessary, a
part of it should not be used for the support of the father. True, by
successive demands upon the principal it would eventually become
103151°—30------22
318
DECISIONS OP T H E COURTS
exhausted; but we are not concerned with what might happen in the
future. It thus appears that our only interest with reference to the
dependency of the father is what the conditions were at the time of
the death of the employee. I f the father was not then a dependent
of the son, the fact that within a year, or within any other given
time, the father might become such dependent is not of controlling
force nor material to the inquiry.
W orkmen’s Compen s ation — D e p e n d e n c y — Contributions to
Family Support— Bartkey v. Sanitary Fami Dairies et al., Supreme
Court of Minnesota {February 4, 1927), 212 Northwestern Reporter,
page 175.—Herbert A. Bartkey was employed by the Sanitary Farm
Dairies Co. of Minnesota. He suffered an accidental injury which
arose out of and in the course of his employment, resulting in his
death. Bartkey was a single man 29 years old, and had a father,
mother, and a 16-year-old sister surviving him.
The father filed a claim for compensation as a dependent of the
son. The industrial commission denied him compensation, and he
brought the case to the Supreme Court of Minnesota. From state
ments in the case it appeared that the deceased son had paid to his
parents $40 per month for board. About four years prior to his
death he paid about $95 for medical attention for his father, and at
another time paid $40 for coal for the family. For a long period
the son had made contributions at irregular intervals for the comfort,
pleasure, and necessities of the parents and minor sister.
According to the statute (G. S. 1923, sec. 4275, subd. 4), a partial
dependent is one “ who regularly derived part of his support from
the wages of the deceased workman at the time of his death and for
a reasonable period of time immediately prior thereto.”
Subparagraph of the same law also provides that:
Partial dependents are entitled to receive only that proportion of
the benefits provided for actual dependents which the average amount
of wages regularly contributed by the deceased to such partial de
pendents, at and for a reasonable time immediately prior to the
injury, bears to the total income of the dependents during the same
time.
The supreme court on February 4, 1927, affirmed the order of the
industrial commission denying compensation to the parent. The
court in affirming the order said in part:
The evidence supports the finding that the regular monthly pay
ment was for board and was a business transaction and not a con
tribution within the spirit of the compensation act. There was no
other “ regular” contribution. The test is whether the employee
“ regularly ” turns over to the dependents a part of his wages toward
w o r k m e n ’s
319
c o m p e n s a t io n
their support. The contributions were not made with any sub
stantial regularity nor under circumstances indicating any certainty
that any fairly definite amount could be anticipated by the recipients.
Reliance was not placed thereon. They were more in the nature of
gifts to meet the proprieties or necessities of the instant occasion
than for the purposes contemplated by the law. Contribution was
made to a limited extent, but it has been found as a fact that it was
not made “ regularly.” We can not ignore this finding.
W
o r k m e n ’s
C o m p e n s a t io n — D
ependency—
W
id o w —
A
n t ic ip a t io n
o f D e p e n d e n c y —Hamer-PasJcins Co. v. Industrial Commission et al.,
Supreme Court of Illinois (June 23, 1928), 162 Northeastern Re
porter, page 116.—Lena Siedschlag made a claim for compensation
on account of the death of Fred Bosshart, her illegitimate son, who
was killed on September 10, 1926, while in the employ of HamerPaskins Co.
The Industrial Commission of Illinois made an award in favor of
the mother. The Hamer-Paskins Co. thereupon appealed to the cir
cuit court of Cook County, claiming that the mother of an illegiti
mate son can not be dependent, under the provisions of the workmen’s
compensation act of Illinois, upon her natural son, and secondly
that on the facts of the case there was no partial dependency.
The son at the time of his death was unmarried and had no rela
tives except his natural mother. The son was born in Switzerland
and came to the United States with his mother. She later married
one Siedschlag, her present husband. The mother stated at the
trial that she was not dependent on her son at the time of his death,
but took the position, that if her husband should die, then she would
be and the reason she made the claim was that in the event of her
husband’s decease she would not have anyone to take care of her.
The circuit court affirmed the order of the industrial commission,
and the company thereupon carried the case to the State supreme
court. In reversing the judgment of the lower court, Judge Heard
said in part:
The state of dependency is a present, existing relation between two
persons where the one is sustained by the other or relies on the aid
of the other for his means of living. To entitle a dependent to an
award under the workmen’s compensation act, the evidence must
show that at the time of the injury the claimant was dependent upon
the earnings of the employee. An anticipation of dependency and
a contribution for support, although it may be reasonably expected,
is not within the terms of the statute, which furnishes the rule by
which the right of a claimant shall be determined. In the instant
case the evidence does not show that Mrs. Siedschlag at the time of
her son’s death was sustained by him or relied upon his aid for her
320
DECISIONS
of
the
courts
means of living, but, on the contrary, it shows that while he had
sent her some money during the year prior to his death, she was in
fact supported by her husband, and that she herself did not consider
that she was dependent upon her son at the time of his death, but was
only making the claim by reason of an anticipation that her husband
might die.
W orkmen’s Compensation—Dependency—W ife Separated from
H usband—Thurman v. Union Indemnity Go., Supreme Judicial
Court of Massachusetts, Suffolk (April 7, 1927), 156 Northeastern
Reporter, page 28.—Edward Thurman received a fatal injury arising
out of and in the course of his employment with the Tilo Roofing Co.
His widow and daughter, 9 years of age, survived him. The question
in the case involved the dependency of the daughter. At the time of
Thurman’s death the wife and child were living apart from him for
justifiable cause. The misconduct of the employee consisted chiefly
in his failure to support the wife and child. The husband and wife
separated in November, 1921. In January, 1922, the wife brought
the daughter to the home of Thurman’s parents, and she went to live
with one Weeks, whom she subsequently married. In 1924 Mrs.
Thurman removed the child to Weeks’s home, it having been found
that the home of the employee’s parents was not a suitable place for
the child.
A single member of the industrial accident board found that the
deceased employee was not bound to support her. This finding was
reversed by the industrial accident board. The case was taken to the
superior court and dismissed on the ground that Thurman was not
legally bound to support the minor child. Thereupon Mrs. Thurman
carried the case to the State supreme judicial court. In reversing the
decree this court said in part:
A child under the age of 16 years is conclusively presumed to be
dependent upon a parent who was at the time of his death legally
bound to support her although living apart from the child. (G. L.,
ch. 152, sec. 32 (d).) It was found as a fact that the wife was justi
fied in separating from her husband. This being so, as the wife took
the child with her, the husband was legally bound to support the
child although she was living apart from him.
The finding of the industrial accident board, that the home of the
grandparents was not a fit place for the child, is a finding of fact
which must stand as there was evidence to warrant it. Whatever
wrong the mother may have been guilty of in living with Weeks
during the lifetime of her husband, the child is not to suffer on that
account; especially when the father made no provision for her and at
no time requested her custody. She was under 16 years of age and
the father at the time of his death was legally bound to support her.
w o r k m e n ’s
321
c o m p e n s a t io n
The decree is to be reversed and a decree entered for the claimant
in accordance with the finding of the industrial accident board.
W o r k m e n ’s
C o m p e n s a t io n — D
ependent—
C l a im s — D
eath
Fol
Thorpe v. Department of Labor and Industries
of 'Washington, Supreme Court of Washington (November 10, 1927),
261 Pacific Reporter, page 85.—One Thorpe was injured in March,
1918, while engaged in an extrahazardous occupation. He filed a
claim for compensation, and was paid until the day of his death by
the State after approval by the department of labor and industries.
On May 5, 1926, Thorpe died as a result of the injuries and*a disease
contracted therefrom. The widow filed her claim for compensation
and the department of labor and industries allowed the claim. How
ever, the department gave her the allowance governed by the law that
was in force at the time of the injury. The widow claimed that she
was entitled to compensation according to the schedule in force at the
time of her husband’s death. The latter schedule was a substantial
increase in the amount over the former. Upon appeal to the superior
court the department ruling was upheld and the case dismissed.
The widow argued that the intention of the legislature was to draw
a distinction by the amended act of 1923 between “ injuries” and
“ claims or actions pending or causes of action.” It was said that the
intent of that body was to make the old schedule applicable to all
injuries occurring before the amendment, and to all claims or actions
for death that had accrued or were pending at the time of the amend
ment. It was further agreed that the words “ claims or actions”
meant claims or actions of a dependent because they would add noth
ing to the phrase “ injuries to workmen ” if they referred to the same
thing.
The supreme court, in answer to this, said:
l o w in g
D
is a b il it y —
But a reading of the entire act discloses nowhere an intention to
make a distinction between the rights of the injured workman arising
from an injury and those of his dependents in case of his death, and
we are satisfied that these words have reference to injuries for which
no claim has been made, those for which claims have been made, and
those for which actions are pending.
Again answering the contention of the widow that her right to
compensation did not arise from her husband’s injury but from his
death, the court said:
Her right to recover may arise at his death, but it certainly arises
from his injury. The death of her husband gives her no right what
ever unless it be established that it arose from an injury under the
act. The injury itself is the real basis for allowance of compensation.
322
DECISIONS CF T H E COURTS
Judge Askren continued and said:
The declared object of the law is to provide compensation for in
jury. The compensation is to be paid to the injured workman in
monthly amounts as long as he lives, and then upon his death, to his
dependents. I f he can not receive during his lifetime a greater
amount than the schedule in force at the time of his injury, even
though the schedule be increased by subsequent legislation, how can
the fact of his death give a greater right to his dependents who claim
compensation by virtue of the same injury? His death operates only
as a transfer of the right to receive the compensation because of the
injury.
The court in conclusion considered that a like question presented to
the Connecticut court (Quilty v. Connecticut Co., 96 Conn. 124, 113
Atl. 149) was more nearly in point with the case under consideration,
and continuing the court said:
Under our law all injuries of every kind, whether based on negli
gence or not, are placed in one class, and recovery is had from the
State, and basis oi all such claims is that the injury be received in
extrahazardous employment. This is true, whether the claim be pre
sented by the workman or by his dependents.
The judgment of the superior court was therefore affirmed.
W orkmen’s Compensation— E mployee—Casual E mployment—
I ndependent Contractor—Chamberlain v. Central' Vermont R y. Co.,
Supreme Court of Vermont (May 4, 1927), 187 Atlantic Reporter,
page 326.—The Central Vermont Railway Co., in the summer of
1926, let a job to Cassius Hurlburt to saw 160 cords of 4-foot wood.
The wood was to be cut into 12-inch lengths and loaded on cars.
Fay H. Chamberlain was employed by Hurlburt, and while so
employed was accidentally injured. An award for the injury was
made by the commissioner of industries. The railroad company
brought the case to the State supreme court for a determination, con
tending that Chamberlain’s employment at the time of his injury was
“ purely casual ” and consequently he was not an “ employee ” or
“ workman” within the meaning of the workmen’s compensation
act.
By General Law 5758, subsection 2, “ workman ” and “ employee ”
are defined “ to mean a person who has entered into the employment
of, or works under contract of service or apprenticeship with an
employer, but not to include a person whose employment is purely
casual or not for the purpose of the employer’s trade or business.”
W O R K M E N *S COM PENSATION
323
In determining whether, in the instant case, the employment was
“ purely casual,” the court said that the contract for service was the
thing to be analyzed.
Averting to the evidence and inferences fairly to be drawn there
from, we have seen that there was no controversy as to the facts. It
uncontrovertably appears that the claimant, whose business was that
of a farmer, was, at the time of his injury, under employment by
Hurlburt, an independent contractor, to help him in doing work he
had contracted with defendant company to do, by way of sawing the
wood mentioned and putting the same on board cars at a stipulated
price per cord. How the claimant happened to be working under
such employment is shown by his own testimony, where he says,
“ I went because Mr. Hurlburt came and asked me to help him.”
Compensation for his services was to be a specified sum per day.
On the second day of working there, and in performing the work of
his employment, he received the injury stated. There was nothing
before the commissioner indicating how long the sawing job was
likely to last, nor that claimant was employed to work for any defi
nite time, or until it was finished. There was no evidence tending
to show that he was under obligation to continue such work any
longer than he should choose, which at longest could be only until
the completion of the job. Certainly that one job can not be con
sidered as permanent, nor as something which would recur at the
end of regular periods or ever. And both Hurlburt and the claim
ant must have understood that the latter’s said employment could
not, in the nature of things, be continuous.
The court cited numerous cases involving the same general ques
tion with like holdings, and concluded by stating:
We think it clear that the employment of the claimant was purely
casual at the time of his injury, and that he was not an “ employee ”
within the meaning of the workmen’s compensation act. This being
so, the alternative condition in the exception is immaterial and not
considered. It follows that the commissioner of industries was with
out jurisdiction of the subject matter, and that his award is without
authority in law and void.
W orkmen’s Compensation—E mployee—Casual E mployment—
U sual Course or B usiness—Oilmen's Recipi'ocaZ Association v.
Gilleland, Commission of Appeals of Texas {February 9, 1927), 291
Southioestern Reporter, page 197.—This case is an appeal by the
Oilmen’s Reciprocal Association from a decision of the Court of
Civil Appeals of Texas (see B. L. S. Bulletin No. 444, p. 169), in
which that court affirmed the judgment of the district court allow
ing recovery to T. J. Gilleland, whose son had been killed while con
structing a well at the plant of the City Laundry Co. of Wichita
324
DECISIONS OF TH E COURTS
Falls, Tex. The main question involved in the case was whether the
son, Ed. Gilleland, was an employee within the meaning of the Texas
workmen’s compensation act.
The Texas statute defines an employee in part as follows:
“ Employee ” shall mean every person in the service of another
under any contract of hire, express or implied, oral or written,
* * * except one whose employment is not in the usual course of
trade, business, profession, or occupation of his employer.
The City Laundry Co. on account of an increase in the volume of
business was required to enlarge its water supply. In connection
with this work it had caused an excavation to be made, and to pre
vent the walls of the excavation from caving it was necessary to line
it with brick. Ed. Gilleland was a bricklayer, and the laundry com
pany employed him with other workmen to build the brick wall.
While engaged in lining the excavation with brick one side caved
in and buried the workmen, causing the immediate death of Gille
land. The insurance carrier contended that Gilleland was not an
employee of the laundry company. The Commission of Appeals of
Texas in an opinion by Judge Powell reversed the judgment of the
district court and the court of civil appeals and rendered a judgment
in favor of the insurance carrier. The court in reversing the deci
sion of the lower tribunals, after citing the several cases submitted
by both sides, said in part:
We think the better reasoning is with the authorities cited by
plaintiff in error and that it can not be said that walling up this pit
with brick was in the usual course of the laundry business. It is
necessary, of course, that a laundry continuously and constantly
have water. And a man employed to pump water to the laundry
and thereby furnish this necessity, from day to day, would unques
tionably be within the “ usual course ” of the laundry business. He
would be just as would the machinist who looks after the boiler
and furnishes steam power to the plant from day to day. Or
just as would be girls who actually do the washing or the boys who
gather up the laundry and return it to the customers. But it seems
inconceivable to us that it could reasonably be said that a brick
layer, working in connection with the digging of a new well, an
incident most unusual and rare, was in the usual course of the
laundry’s business. In other words, laundries do not ordinarily
engage in building brick walls in pits. During a great majority
of the days of its operations it engages in no such business. There
fore such an undertaking is not ordinary or customary, but ex
ceedingly unusual and extraordinary.
It is our view that the California court adopted the proper policy
and refused to ignore this word “ usual” or give to it any unusual
meaning. The ordinary meaning of the word “ usual ” is given by
Webster’s New International Dictionary as follows: “ Such as is
in common use; such as occurs in ordinary practice, or in the ordi
nary course of events; customary; ordinary, habitual; common.”
w o r k m e n ’s
c o m p e n s a t io n
325
The same dictionary tells us that the word is synonymous with
“ accustomed, common, wonted, ordinary, regular.” It goes with
out saying that walling up a pit with brick is not in the ordinary
course of the laundry business.
In one word, it is clear that Gilleland was a bricklayer. There
fore he was unquestionably engaged in the usual course of his own
business when killed. But, it is equally clear that he was not, in
any sense, in the usual course of his employer’s business at that
time.
W orkmen’s Compensation— E mployee—I mplied Contract of
H ire—School District No. 4, Town of Sigel, Wood County v. Indus
trial Commission et al., Supreme Court of Wisconsin (December 6,
1927), 216 Northwestern Reporter, page 844-—August Olson was
employed to build fires in the school district school house of Sigel,
Wis. On May 2, 1924, while in the act of lighting a fire his clothing
caught fire and he received severe burns, from which death re
sulted. Olson had no dependents and the Industrial Commission of
Wisconsin, in a proceeding upon its own initiative, made an award
against School District No. 4 of the town of Sigel, Wis., in the
sum of $1,000. The sum awarded was to be paid into the State
treasury, under the provisions of section 102.09, subsection 4m, para
graph (f) of the workmen’s compensation act. The school district
brought an action in the circuit court of Dane County against the
industrial commission to set aside the award. The circuit court
affirmed the award, and the school district appealed to the supreme
court of the State, claiming that Olson was not its employee within
the meaning of the compensation act.
The supreme court reversed the judgment of the lower court, and
in the opinion written by Judge Owen he said in part, relative to
whether Olson was an employee of the school district:
In this case the board never authorized the contract with Olson.
They simply delegated the clerk to employ some one. I f the clerk
may be delegated to employ some one to build fires at 10 cents a day,
he may be delegated to employ a janitor at $100 per month, to employ
a teacher, to purchase necessary charts, blackboards, and other equip
ment. To say that there was an express contract between the school
district and Olson would be to authorize the culmination of any other
contract which a school district board has the power to make in
exactly the same way. This would wipe out the statutory require
ment which has always been rigorously enforced. We must hold
that Olson was not in the employ of the district by virtue of an
express contract.
The only question remaining to be considered is whether Olson
was in the employ of the district by virtue of an implied contract.
The facts from which a contract will be implied against a municipal
326
DECISIONS OF T H E COURTS
corporation are quite different from those which raise an implication
of contract between natural persons. It is a general rule that no
contract will be implied against a municijDality if such implication
would conflict with the statute prescribing a mode of contracting
by which alone the municipality may bind itself.
The statute explicitly provides that a contract with the school
district must be authorized by a vote of the school district board
at a meeting thereof. To say that a contract will be implied in the
absence of such authorization would be to entirely wipe out this
provision of the statute, and it must be held that Olson was not in
the employ of the district by virtue of an implied contract. From
this it results that the relations existing between Olson and the
school district were not such as to bring them under the terms of
the workmen’s compensation act; that the school district is not
subject to the award which the industrial commission made; and
that the award should be set aside.
Two judges (Crownhart and Stevens) dissented from the opinion
and reasoned that the case should be decided according to a former
case (Butler v. Joint School District, 155 Wis. 626, 145 N. W 180)
holding that a valid contract of employment was made between
the deceased and the school district.
W
o r k m e n ’s
C o m p e n s a t io n — E
mployee—
I ndependent
C ontrac
—A w a r d —Dutcher v. Victoria Paper Mills et al., Supreme Court
of New YorJc, Appellate Division, Third Department (March 2,
1927), 220 New York Supplement, page 625.—Fred Dutcher was en
gaged to excavate rock in the tailrace under the mill of the Victoria
Paper Mills at Fulton, N. Y. In the course of the excavation a
rock was loosened and struck Dutcher across the foot, fracturing it.
Dutcher proceeded under the workmen’s compensation act for an
award of compensation. The referee in compensation dismissed
the claim on the grounds that Dutcher was an independent con
tractor. The State industrial board, however, made an award in
favor of Dutcher of $20 per week for four weeks. The Victoria
Paper Mills thereupon appealed to the appellate division, third
department, of the supreme court, contending that Dutcher was an
independent contractor and therefore that they were relieved of
all liability.
According to the statements of Dutcher he was to receive 10 per
cent of the total cost of the job, to be figured on men’s wages, cost
of material, rental of machinery, equipment, etc., and any other ex
penses pertaining to the work; that the work was started on August
3,1923, and finished in 17 or 18 days, and that he received the sum of
$528.12 as his percentage of the entire cost.
tor
w o r k m e n ’s
c o m p e n s a t io n
327
He also averred that no plans or specifications were adopted for
the work; that the president of the company advised him regarding
the work and that he (the president) hired all the men engaged
in the work. There were also statements made that tended to show
that the company exercised a certain control and direction of the
work, such as discharging men, laying off teams, objecting to setting
off a blast, giving instructions with reference to excavations, etc.
The appellate court held that the rule laid down in Beach v. Yelzy
(238 N. Y. 100, 143 N. E. 805) defining an independent contractor
was applicable here. The definition was as follows:
The independent contractor is one who agrees to do a specific piece
of work for another for a lump sum or its equivalent, who has con
trol of himself and his helpers, as to when, within a reasonable time,
he shall begin and finish the work; as to the method, means, or pro
cedure of accomplishing it; and who is not subject to discharge be
cause he does the work as to method and detail in one way rather
than another.
Continuing, the court reversed the award and on March 2, 1927,
dismissed the claim, saying in part:
Applying the above rule to the present case, we find that the two
cases are analogous in many respects; in each case there was » specific
piece of work to be done for a lump sum, or its equivalent (the equi
valent in this case being 10 per cent of the cost price of the w ork);
the contractor had control of himself and of his helpers as to when
and within what time he should begin and finish the work, and as
to the method and means of accomplishing it. The testimony above
referred to as interference by Redhead, in giving orders with refer
ence to the work, shows that there was no conflict between the em
ployer and the claimant. Claimant tolerated the interference, but
that did not change the status of the employer and the claimant.
The claimant was not subject to discharge because he did the work
as to method and detail in one way rather than in another. There
is nothing in the conduct of the employer or of the claimant to show
that the latter released his rights as an independent contractor further
than to please the employer as to the manner of execution of the
work and then only in instances where no specifications had been
provided. In any event, all that the proof shows are isolated in
stances of assumption of authority on the part of Redhead, but not
enough to show any surrender by the claimant of his authority as
contractor.
W orkmen’s Compensation—E mployee—W hen Relationship Be
gins and E nds—Brewer v. Department of Labor and Industries,
Supreme Court of Washington (March 28, 1927), 254 Pacific Re
porter, page 831.—John Brewer on September 11, 1925, visited the
Puzey Employment Agency in Seattle, seeking employment. There
328
d e c is io n s
of
the
courts
he was directed to employment with the Hobi Timber Co. at Pacific
Beach. Wash. He was told to go to the office of the Western Opera
tors Association for his “ clearance.” There his employment agency
slip was stamped “ cleared.” He went to a hotel in Seattle for the
night and on the next day started by boat and rail for the logging
camp. While riding on a “ speeder ” toward the camp there was a
collision with a logging train and Brewer sustained injuries. He
presented a claim for a workmen’s compensation award, but it was
rejected. He appealed but the supreme court ruled against him.
The court pointed out that the question involved was whether Brewer
was an employee of the Hobi Logging Co. This depended on
whether Brewer had a complete and final contract of employment
before he left Seattle. To constitute such a contract it would have
been necessary for the Hobi Logging Co. to have bound itself un
reservedly either by word or act to accept and pay for the services
of Brewer and he must have bound himself unreservedly either by
word or act to perform the labor required. The court pointed out
that the purpose of the Western Operators Association was to permit
the association to inquire into the character, reputation, and fitness
of the applicant for the particular work to be done and to prevent
“ undesirables ” getting employment in the logging camps. Because
of the contingency that Brewer, when he arrived at the scene of
operations, should appear satisfactory to the Hobi Logging Co., and
that the conditions and surroundings under which the labor should
be performed would be satisfactory to him, the court ruled that
Brewer was not an employee when injured and therefore was not
entitled to compensation.
W orkmen’s Compensation — E mployers’ L iability — Contrac
Pacific Co. v. Industrial Commission of
tor—E mployee— Souther
TJtah et al., Supreme Court of TJtah (September 27,1927), 264 Pacific
Reporter, page 965.—Joseph Surrage was employed by the Southern
Pacific Co., a railroad common carrier engaged in interstate com
merce. He was engaged to cut noxious weeds, with his own team and
a mower, on a section of the company’s right of way in Weber
County, Utah. On August 5, 1925, while so engaged, the sickle bar
of his mowing machine struck some object, bending the plate. In
an attempt to repair the machine, a piece of steel broke off striking
him in the left eye and severely injuring him.
Surrage applied to the Utah Industrial Commission for an award
of compensation for the injury sustained in the course of his em
ployment. The railroad company contended that Surrage was not
in its employ, but was an independent contractor. To support this
W O E K M E N *S COM PENSATION
329
belief, the railroad cited the fact that Surrage was not paid until
the work was completed; that he furnished his own team and mower;
was not examined by the railroad medical department; his term of
employment was indefinite, and that no one told him how to operate
his team and mower.
Even if it was held that Surrage was its employee, the company
contended that his injury resulted while he was employed in inter
state commerce, in which the company was engaged, and therefore
was not subject to the State workmen’s compensation act.
The industrial commission, however, awarded compensation to
Surrage. The railroad company then requested the Utah Supreme
Court to review the award granted by the industrial commission.
Accordingly, on September 27, 1927, in an opinion written by
Judge Straup, the court said that as to the first contention raised
by the railroad company, “ we have no difficulty in holding that there
is ample evidence to justify the finding that Surrage was an employee
of the company, and not an independent contractor.”
After both parties had submitted several cases in support of their
contentions, the supreme court continued in part as follows:
It is unnecessary to review all of the cited cases. To harmonize
all of them seems a hopeless task. Suffice it to say that to bring
the employee within the provisions of the employers’ liability act of
Congress the work at which he was engaged at the time of his injury
must have been directly related to interstate commerce in which the
company was engaged, or so closely connected therewith as to be a
part of it. Such is the recognized test of the authorities generally
and the test heretofore approved by this court in a number of in
stances. Suffice it also to say that the rule adopted by Federal and
State courts that an employee making repairs or working upon an
instrumentality, such as a lineman upon wires, or a mechanic on an
engine or car, or a laborer or other employee on railroad tracks,
switches, bridges, freight houses, warehouses, and other instrumental
ities used in interstate commerce, is engaged in such commerce, has
become the weight of authority if not the general doctrine. We ap
prove that rule. The question, nevertheless, is: Does the case fall
within it? Whatever divergent views there may be—and on the
record we see room for them—that cutting weeds on a right of way
to protect the company’s property against fire, such as depots, sec
tion houses, bridges, telegraph, and telephone poles, signal device
systems, etc., was work so closely related to interstate commerce as
to be a part thereof, analogous to repairing or maintaining tracks,
switches, etc., used in carrying on interstate commerce, yet, in view
of the decisions of this court in the cases of Denver & Rio Grande
Western Ry. Co. v. Industrial Commission (60 Utah 95, 206 Pac.
1103), and Perez v. Union Pacific R. Co. (52 Utah 286,173 Pac. 236),
we are of the opinion that, inasmuch as the injury resulted while the
employee was fixing or adjusting the sickle bar of the mower, an in
330
DECISIONS OF T H E COURTS
strumentality in no sense used in commerce, the case does not fall
within the general test or rule heretofore stated, from which it follows
that the employee, at the time of his injury, was not engaged in com
merce.
Workmen’s Compensation—Employers’ Liability—Duty of Em
ployer to Instruct—Bilodeau v. Gale Bros. (Inc.), Supreme Court
of New Hampshire (January 3, 1928), HO Atlantic Reporter, page
172.—Victor Bilodeau was employed by Gale Bros., shoe manufac
turers of New Hampshire. He was a boy 16 years of age and had
been employed at the shoe factory for about two years at various
tasks. He requested to be put on an all-hand lasting machine. The
machine was leased from a machinery company and, in accordance
with the practice of the company, an instructor was sent to the
factory to teach the boy how to operate the machine. The boy
worked under the instructor’s direction for two weeks, and at the
end of that time he was permitted to operate the machine alone.
Shortly afterwards while operating the machine, he caught his finger
between two gears and received the injury complained of. An ac
tion was brought by a relation of Bilodeau against Gale Bros, under
the workmen’s compensation act to recover for personal injuries on
the grounds that the company was negligent in not informing the
boy of the dangerous character of the machine. A jury trial was
held and a judgment was given to the boy in the superior court,
Rockingham County, N. H. The company carried the case to the
supreme court of the State, denying negligence on their part or the
duty to inform the boy of the nature of the machine.
The State supreme court decided in favor of Bilodeau, and denied
the contentions of the company.
The opinion was written by Judge Marble, who said in part as
follows:
It is obvious that the situation presented to a workman of the
plaintiff’s age and limited experience a hazard which might properly
call for warning. The duty to warn was in this case a nondelegable
one and the defendant could not discharge that duty by intrusting
its performance to a third person. The agent sent by the United
Shoe Machinery Co. to instruct the plaintiff was an agent adopted
by the defendant for the execution of an obligation which devolved
upon it as employer.
This agent said nothing whatever to the plaintiff about the gears
or the danger of getting caught in them, and had the erroneous
impression that they were 5 or 6 inches apart. The foreman of the
lasting room was “ positive ” that the gears were where the plaintiff
“ could see them all the time,” and estimated the distance between
them to be 1 Or 2 inches.
W O R K M E N *S COM PENSATION
331
While the plaintiff knew the gears were there and knew he would
get hurt if he put his finger in the tack box gear, he did not realize
that any danger was connected with the small gear nor that it was
close enough to the large one so that his fingers could be crushed
between them. He could not see the small gear while he stood with
his foot at the pedal, and there was nothing about his work which
required him to take note of its position. He knew nothing about
the construction of the machine, and had never examined its parts.
The defendant had the burden of proof on the issue of contrib
utory negligence. The pedal of the machine was rectangular in
form and somewhat larger than the operator’s foot. It was nearly
flush with the platform on which the workman stood.
Under these circumstances it can not be held as a matter of law
that the plaintiff’s failure to remove his foot from the pedal con
stituted contributory negligence.
W orkmen’s Compensation—E mployers’ Liability—I ndependent
Contractor—Reynolds v. Addison Miller Co. et al., Supreme Court
of ’Washington (April 7, 1927), 255 Pacific Reporter, page 110.—
E. C. Reynolds was injured in August, 1925, while at work icing
a refrigerator car belonging to the Northern Pacific Railway Co.
The Addison Miller Co. had made a contract with the railroad
company to take over an ice house and icing platform and to manu
facture, sell, and deliver ice in the bunkers of all refrigerating cars
which the railway company might set out at the platform. Reyn
olds was an employee of the Addison Miller Co., and on the day on
which he received his injury was employed in chopping up and
tamping ice into the ice chambers of a refrigerator car owned by
the railway company and situated upon a track of the railway
company at the icing platform.
An action was begun under the Federal employers’ liability act,
which resulted in favor of the Addison Miller Co. Thereafter the
court granted a new trial, and the Addison Miller Co. carried the
case to the supreme court of the State.
The highest court of the State decided that the lower court was
in error in granting a new trial, and that the trial court was correct
in determining that there was no cause of action proved, and that
Reynolds was not entitled to recover either under the Federal or the
State act. The court said in part:
Viewing the case as one governed by the Federal employers5liabil
ity act, it must be held that the respondent had no cause of action
against the appellants. That act (tJ. S. Comp. St., sec. 8657) pro
vides that “ Every common carrier by railroad,” while engaging in
interstate commerce, shall be liable in damages to any employee
“ while he is employed by such carrier in such commerce,” for any
332
d e c is io n s
of
the
courts
injury resulting from the negligence of any such carrier’s employees;
and further provides that any contract, “ the purpose or intent of
which shall be to enable any common carrier to exempt itself from
any liability created by this act, shall to that extent be void.”
The question, then, first for consideration under this act, is
whether at the time of the respondent’s injury he was an employee
of a common carrier by railroad. To answer this question, it is
necessary to determine the effect of the contract between the Addison
Miller Co. and the Northern Pacific Railway Co. Under the author
ities, that contract was valid and constituted the Addison Miller
Co. an independent contractor, and its employees would not be
employees of the railway company engaged in interstate commerce,
nor would the Addison Miller Co. itself be within the terms of the
Federal employers’ liability act.
Relative to the contention of Reynolds that he could recover even
under the State statute, the court said:
As has already been shown, the evidence clearly shows that the
respondent was not an employee of the railroad company, and that
the Addison Miller Co., of which he was an employee, was not a
common carrier by railroad. Nor can the respondent find any com
fort in Rem. Comp. Stat., section 7695, which makes the workmen’s
compensation act apply to employers and workmen (other than rail
ways and their workmen) engaged in intrastate and also in inter
state or foreign commerce; for there is no evidence in the case show
ing that the Addison Miller Co. was engaged in intrastate and also in
interstate and foreign commerce, or that any rule of liability or
method of compensation had been fixed by the Congress of the United
States for employers and workmen doing business as was the Addi
son Miller Co. and its workmen.
Of course, no common-law liability existed on the part of the
Addison Miller Co., for the reason that it is apparent and undis
puted that the damage to the respondent was the result of the neg
ligence of a fellow servant.
The law seems to be clear that the respondent has no cause of
action and that the trial court was correct in granting the motion
for a directed verdict.
W orkmens’ Compensation—E mployers’ L iability—I njury A ris
ing out of E mployment—Moore v. J. A . McNulty Go. et al., Supreme
Court of Minnesota (April 8, 1927), 218 Northioestern Reporter,
page 546.—William Moore was employed by the J. A. McNulty Co.
The company held contracts with railroad companies in St. Paul
and Minneapolis to remove grain doors from cars unloaded at ele
vators. On October 31, 1925, Moore was ordered by the foreman of
the company to “ beat it up the tracks ” and get the grain doors
w o r k m e n ’s
c o m p e n s a t io n
333
out of cars at an elevator about 214 miles away before the cars were
switched. The order was given about 25 minutes before the work
was to be done. It was impossible to cover the distance on foot
or by street car within that time. The cmploj^ee attempted to board
a freight train moving toward the elevator, but fell and was injured.
It was shown that from time to time Moore and other employees
had boarded moving trains in going from one elevator to another
to do their work and had never been forbidden to do so. The fore
man had even noticed his men “ catch trains,” and the company
knew that in doing their work the men got on and off cars set in
motion on the elevator tracks and did not forbid the practice.
A referee found that the injury did not arise out of the employ
ment. An appeal was made to the industrial commission by Moore,
and the decision of the referee was approved. Moore thereupon
carried the case to the State supreme court. The principal question
in the case is whether the injury did arise out of the employment.
The supreme court of the State held that the accident did arise
out of the employment, saying in part:
The relator was employed to work in and about freight cars.
The evidence shows conclusively that in the course of the performance
of their duties the employer expected its employees to remain in a
car until the grain doors in it could be thrown out, even though
there was not time to finish the work before the car was set in
motion. Rapid shifts of employees from one elevator to another
were necessary and usual. On this particular occasion the employee
was directed to go to a place to which he could not possibly walk
between 12.35 and 1 o’clock.
By boarding a train going in his direction, he could easily reach
his destination before 1 o’clock. The foreman could hardly have
failed to know that the order he gave impliedly authorized relator
to get aboard a train if he had an opportunity to do so, for in no
other way could he reach the elevator at the appointed time.
The case is one where the act which caused the injury was within
the sphere of the employment. It was relator’s duty to comply with
the foreman’s order. He could not do so without finding some means
of transportation which would carry him to the oil company’s ele
vator faster than he could walk. The foreman admitted that he
did not suppose that the relator would run all the way. The relator’s
act was fairly incidental to the employment. It was dangerous,
but not altogether outside any reasonable requirement of the employ
ment. There was a causal connection between the condition under
which the work had to be done and the act of the relator which
resulted in his injury. These are among the tests to be applied
to determine whether an accidental injury arose out of the employ
ment.
103151°—30-----23
334
DECISIONS OF T H E COURTS
Whether a violation of the statute and ordinance by Moore pre
vented a recovery of compensation, the court said:
Apparently the weight of authority sustains the proposition that
a workman does not necessarily put himself outside the sphere of
his employment when he commits an offense for which he may be
prosecuted.
At common law, the fact that the injured person was doing an
illegal act when he was injured did not in and of itself constitute
contributory negligence. (Schaar v. Conforth, 128 Minn. 460, 151
N. W. 275.) Since such negligence does not defeat a recovery of
compensation, there is even more reason for holding that the viola
tion of a statute is merely a circumstance to be considered in deter
mining whether the injury arose out of or was within the sphere of
the employment.
The case was therefore reversed in favor of the injured employee.
W orkmen’s Compensation—E mployers’ Liability—I nterstate
Commerce—Dependency— Mobile & Ohio Railroad Co. v. Industrial
Commission of Illinois et al., District Court, Eastern District of
Illinois (1928), 28 Federal Reporter (2d) page 228.—Bernard
Habermehl was employed as a foreman of the blacksmith shop of
the Mobile & Ohio Railroad Co. at Murphysboro, 111. On March 18,
1925, a severe tornado struck the city of Murphysboro and vicinity.
The locomotive and repair shops of the company were practically
destroyed. When the tornado struck Habermehl ran from the black
smith shop into a small machine shop, and there was killed by the
falling debris.
The widow of Habermehl proceeded, under the Illinois workmen’s
compensation act, for compensation for the death of her husband.
An award was granted her by the Industrial Commission of Illinois.
To review the award the railroad company appealed the case to the
State circuit court, and there procured a removal of the cause to
the Federal court.
The widow contended that there was a causal relation between the
injury and the employment, and as the brick walls of the railroad
shops produced an extra hazard, which was not common to the
public, she was therefore entitled to recovery.
The District Court of the Eastern District of Illinois stated that
they were bound by the construction of the Illinois compensation
act as enunciated by the State supreme court. The facts, however,
the court said, were so at variance with those of any of the previously
decided cases in Illinois that a determination of the question in
volved in the instant case necessitated an examination of the reason
WORKMEN- *S COM PENSATION
335
ing of other courts. Several decisions were therefore reviewed by
the court, especially a Massachusetts case (McNicol’s case, 215 Mass.
497, 102 N. E. 697), in which that court said:
That the injury, in order to warrant the payment of compensation,
“ must both arise out of and also be received in the course of the
employment. Neither alone is enough. * * * An injury is re
ceived 4in the course of ’ the employment when it comes while the
workman is doing the duty which he is employed to perform. It
4arises out of ’ the employment when there is a * * * causal
connection between the conditions under which the work is required
to be performed and the resulting injury. * * * I f the injury
can be seen to have * * * been contemplated by a reasonable
person familiar with the whole situation, * * * then it arises
4out of 5 the employment. * * * The causative danger must be
peculiar to the work and not common to the neighborhood. * * ♦
It need not have been foreseen or expected, but after the event it
must appear to have had its origin in a risk connected with the em
ployment and to have flowed from that source as a rational
consequence.”
After reviewing the facts in the instant case the court continued
in part as follows:
The court is of the opinion that under these facts there is no causal
relation between the employment and the injury; that there is no
evidence in the record that will warrant a finding that the industry
caused this injury, or that it accentuated the risk of the deceased
over that of the public. The slight difference in comparison between
the 20 per cent outside of the shop and the 22 per cent inside of the
shop, the uncertainty of the location of the members of the public
who were killed, and the other facts are so uncertain and speculative
in character as to afford no evidence whatever that the deceased’s
employment in the particular industry had anything to do with the
injury.
There was no peculiar exposure of the deceased in the present case.
He was subject to no increased dangers from the elements. There
was no accentuated risk arising out of the employment. The courts
in such cases have uniformly denied relief.
In concluding his opinion Judge Lindley said:
In the present case there is no evidence that the nature of the em
ployment was one that forced the employee to be specially subject to
the danger of certain acts of God as in the case cited. In the case
of Merrill v. Penasco Lumber Co. et al. (27 N. M. 632, 204 Pac. 72),
relied upon by the respondent, the court found that the employee was
subjected to a special and unusual risk by the very nature of his em
ployment working amidst the trees in the forest, where he was killed
by a falling tree. This reasoning is in line with what we have said.
Bearing in mind that it was the intent of all such legislation as
that under consideration to put the cost of human injuries upon
336
DECISIONS OF TH E COURTS
industry only where a causal relation between the two exists, but not
to provide for pensions, that the public generally was subject to the
risks which caused the deceased’s death, that members of the public
were injured in substantially the same percentage as employees of
the petitioner, and that there is no causal relation between the injury
and the employment, it follows that, under the rules enunciated by
the Supreme Court of Illinois this award can not stand.
W orkmen’s Compensation— E xtraterritoriality—A lien L abor—
Saunders' Case, Supreme Judicial Court of Maine (March SI, 1927),
1S6 Atlantic Reporter, page 722.—This case was a proceeding under
the Maine workmen’s compensation act against the St. Croix Gas
light Co. for the death of one Saunders.
The St. Croix Gaslight Co. was owned by the Maritime Electric
Co. (Ltd.), a Canadian corporation. It supplied the city of St.
Stephens in New Brunswick with electricity, and also the St. Croix
Gaslight Co. for distribution in the city of Calais. The two cor
porations are separate legal entities but are controlled and managed
by the same executives and employ only one crew to do the work of
both companies, and the men are assigned to do work on either side
of the boundary line.
On May 21, 1925, Saunders, a resident of Calais, was employed in
that city by the foreman of the work crew of both corporations and
was at once assigned to work in the city of St. Stephens on the
Canadian side, where on May 27, 1925, he received injuries resulting
in his death.
An associate member of the industrial commission found that
Saunders was in the employ of the St. Croix Gaslight Co. at the
time he was injured, which would entitle his dependents to the bene
fits of the compensation act of Maine.
The St. Croix Gaslight Co. appealed the finding to the Supreme
Judicial Court of Washington County, in equity, of the State of
Maine, contending that there was nothing to show that Saunders at
the time he was injured was in their employ; and even if so, section
25 of the compensation act would not apply, inasmuch as it was
unlawful for the Canadian company to bring alien labor into New
Brunswick under contract.
The supreme court in equity affirmed the finding of the commis
sion, and the company thereupon carried the case to the full bench
of the Supreme Judicial Court of Maine. Chief Justice Wilson de
livered the opinion of the court and said in part:
It is true that even if the employment was by the Maine company
in the first instance in order for his dependents to recover he must
337
W O R K M E N *S COM PENSATION
hare remained in its employ while working on the Canadian side,
and their recovery is by virtue of section 25 of the compensation
act, although there appears to be a tendency in the later decisions,
where the acceptance of the act is contractual and not .compulsory,
to extend its operations extraterritorially without an express provi
sion to that effect.
While the Maine company has no plant on the Canadian side nor
any authority to do business there under its charter, under the
decision of the associate legal member he must have found that the
contract of employment with the Maine company contemplated the
performance of work in connection with the supplying of electric
power on both sides of the river by common understanding between
the two companies according as their needs required. We can not
say there was no evidence to support such a finding. Notwithstand
ing an agreement to furnish labor for such purposes on the Cana
dian side, and the furnishing of such labor may have been ultra
vires as to the Maine company, it was not foreign to its corporate
purposes but in extension thereof. I f its contract with its employee
contemplated it, he would still be entitled to compensation under
the extraterritorial clause of the act unless it appeared that such
employment was not covered by the assent or contract of insurance.
The certificate of assent and insurance policy are not made a
part of the evidence, and no question is raised in the answer that they
were not broad enough to cover any work on the Canadian side if
contemplated by the contract of employment.
There appears to be nothing illegal, in the sense that it was pro
hibited, in a contract between an employee and the Maine company
to do electrical work when required on the Canadian side. The
New Brunswick alien labor act applies only to contracts between
its own corporations or residents and aliens.
Therefore we think the finding of the associate legal member
that the contract of employment was between the St. Croix Gas
light Co. and the deceased, and that it contemplated work on both
sides of the river, has sufficient evidence in the case to sustain it;
and, though ultra vires as to work on the Canadian side, yet, since
such a contract was not prohibited by any Maine statute, and was
merely an extension of the corporate power of the Maine corporation,
the deceased while engaged in work under such contract on either side
of the boundary is entitled to the benefit of the act, and the mandate
must be.
W
o r k m e n ’s
C o m p e n s a t io n — E
x t r a t e r r i t o r ia l i t y —
E
v id e n c e —
Bradtmiller v. Liquid Carbonic Co. et al., Supreme Court of Minne
sota (February 8, 1928), 217 Northv)estern Reporter, page 680.—
Theodore F. Bradtmiller was employed as a salesman by the Liquid
Carbonic Co., the main place of business and office being located at
Chicago. The company maintained an office also at Minneapolis,
Minn. Bradtmiller resided in Minneapolis and his sales territory
338
DECISIONS OF T H E COURTS
covered South Dakota. During the course of his employment in
South Dakota he fell and received an injury to his head and suffered
paralysis as a result. There was a conflict of opinion among the
medical experts as to the cause of the paralysis. The industrial
commission awarded compensation and the company appealed to
the Supreme Court of Minnesota. This court held that:
The facts bring the case within our holding that an employee of
a business conducted in Minnesota is entitled to compensation, though
he works outside, and that the evidence sustains the commission’s
findings that plaintiff’s paralysis was the result of his injury.
The supreme court, however, held that the additional award
asked for by the injured employee based on the Minnesota statute
(G. S. 1923, sec. 4292), which authorizes the court to award an
additional amount up to 25 per cent for a frivolous defense, was
inapplicable to the case.
The award of the industrial commission was therefore affirmed.
W o r k m e n ’s
C o m p e n s a t io n — E x t r a t e r r i t o r i a l i t y — J u r is d ic
for S e r v ic e O u ts id e S t a t e — Watts v. Long, Su
preme Court of Nebraska (March 4, 1928), 218 Northwestern Re
porter, page
.— Ja m es G . L o n g w as e m p lo y e d b y J o h n B . W a tts ,
tio n — C o n tr a c t
1
410
a p a v in g co n tra cto r o f C o n co r d ia , K a n s. W a tts h e ld con tra cts f o r
w o r k in b o th K a n sa s an d N eb ra sk a , a n d c a r r ie d co m p e n sa tio n in s u r
ance f o r b o th States u n d e r on e p o lic y . H e m a in ta in e d n o p la ce o f
business in N ebrask a o th e r th a n te m p o ra ry q u arters req u ire d f o r
th e p ro se cu tio n o f w o r k u p o n N ebrask a co n tra cts.
I n th e ea rly
p a rt o f 1925 W a tts h a d a c o n tra ct f o r p a v in g at W y m o r e , N eb r.
H e m o v e d h is a sp h a lt p la n t to W y m o r e , to g e th e r w ith a re g u la r
cre w f o r th e p ro se cu tio n o f the w o rk . F o r co m m o n la b o r he em
p lo y e d lo c a l m en in a n d a b ou t W y m o r e .
m en e m p lo y e d at th is p la ce.
J u ly
27, 1925,
L o n g w as on e o f th e m a n y
T h e w o r k in N eb ra sk a w as co m p le te d
an d L o n g w as h ire d b y on e R o u s h , fo r e m a n o f the
c o n tra cto r, to g o to H ia w a th a , K a n s., an d th ere p e r fo r m w o r k on
17, 1925,
L o n g was
in ju r e d w h ile assistin g in lo a d in g a ta n k o n to a flat ca r.
H e con
a p a v in g co n tra ct h e ld b y W a tts .
O n D e ce m b e r
tin u e d to w o r k f o r W a tts a fte r re c o v e r y fr o m h is in ju r y and la ter
retu rn ed to W y m o r e , K a n s., w h ere n ew p a v in g co n tra cts w ere b ein g
p e r fo r m e d . D u e to th e in ju r ie s re ce iv e d b y L o n g h e w as fin a lly
c o m p e lle d to cease w o r k , a n d p ro ce e d e d u n d e r th e N eb ra sk a w o r k
m en ’s com p e n sa tio n
receiv ed in K an sas.
act, c la im in g
co m p e n sa tio n
fo r
h is in ju rie s
Long claimed his right to compensation for his injury was gov
erned by the laws of Nebraska, because his contract of employment
w o r k m e n 's
c o m p e n s a t io n
339
was made in Nebraska and because Watts was engaged in carrying
on an industry in the State and had elected to come under the work
men’s compensation law by taking out insurance.
The commissioner awarded compensation to Long, but required
him as a condition to submit to an operation. Both parties appealed
to the district court from the ruling of the commissioner, Watts
from the allowance of any compensation and Long from the order
requiring him to submit to an operation. In the district court the
allowance of full compensation to Long was granted but without
any condition. Watts carried the case to the Supreme Court of
Nebraska. The reasons assigned by Watts were that (1) no binding
contract had been entered into between Long and the foreman;
(2) that he was not conducting any industry in the State of Ne
braska at the time of Long’s injury; and (3) the courts of Nebraska
are without jurisdiction to award compensation to Long.
The State supreme court reversed the lower court, and in the
opinion reversing the case the court said in part:
The defendant at the time had no contracts for and was not en
gaged in any work in the State of Nebraska, and therefore was not
carrying on any industry in this State to which the contract was
referable or to which the work in Kansas was an incident. The
argument of plaintiff that the work in Kansas was incidental to
the industry carried on in Nebraska by reason of the provision that
upon completion of the work in Kansas plaintiff should return to
work for defendant in Nebraska is unsound for the reason that at
that time there was no work in Nebraska to which the provision
might be applied and none might ever be secured. This provision,
therefore, falls for want of a subject, or at least lay dormant until
further contracts were secured.
It is well established that the law of the State in which a contract
is made and is to be performed is considered as written into and
becomes a part of and governs the contract; but where a contract
made in one State is to be performed in another the rule is equally
well established, as hereinbefore noted, that the law of the place
of performance governs the contract. We are, therefore, of opinion
that when tin
J’
'J 1
'
question for the
performance
workmen’s compensation law of Kansas (Laws 1911, ch. 218, as amended) became
a part of the contract so far as that work was involved, and that
plaintiff must seek compensation in that State.
We conclude that the courts of this State are without jurisdiction
in the premises, on the ground that plaintiff’s employment was not
incidental to any industry conducted in this State, and that, in fact,
no such industry was being conducted at the time of plaintiff’s
injury, and that the district court and commissioner erred in hold
ing to the contrary. In view of this conclusion, it will not be neces
sary to discuss the other matters presented by the briefs.
It is therefore ordered that the judgment of the district court be
reversed and the proceedings dismissed.
340
W
DECISIONS OF T H E COURTS
o r k m e n ’s
C o m p e n s a t i o n -— I
njury—
A
g g r a v a t io n —
D
is e a s e —
—Smith v. Mason Bros. Co. et al., Supreme Court of Minne
sota (March 9,1928), 218 Northwestern Reporter, page 21$.—Henry
L. Smith was employed as a truck driver by the Mason Bros. Co.,
wholesale grocers at Wadena, Minn. On April 15, 1926, the truck
which Smith was driving went into a ditch and overturned. He was
severely injured about the abdomen and was forced to relinquish his
duties as a driver. He was later examined by a physician, who
diagnosed his case as acute appendicitis, but w^ould not operate on
account of the condition of his heart and kidneys. Another physi
cian diagnosed the same condition and determined to operate with
local anaesthetic. His condition proved to be more serious and it
was necessary to administer general anaesthetics in the removal of
his appendix. He convalesced slowly, but never worked after the
operation and died on August 18, 1926.
His widow proceeded under the workmen’s compensation act and
was awarded compensation. Mason Bros. Co. appealed the award
to the Supreme Court of Minnesota, where it was affirmed by that
court. The court in its opinion said in part as follows:
D
eath
The attending and operating doctor testified that the blow in the
abdomen caused the condition which necessitated the operation; that
the general anaesthetic, necessarily used in the operation, aggravated
Smith’s heart and kidney ailments and hastened his death. An ag
gravation of an existing infirmity, caused by an accident occurring in
the course of employment, is compensable.
There is but little dispute in the evidence, although the opinions
advanced by the opposing physicians were not in accord. Tne find
ings of the commission must prevail, unless they are clearly and man
ifestly contrary to the evidence. The commission is the trier of fact,
and where there is a choice between conflicting evidence or diverse
inferences may be drawn from the evidence its conclusions should
stand.
W
o r k m e n ’s
C o m p e n s a t io n — I
njury—
I
n c id e n t a l
E
m ploym ent—
—Zurich Accident & Liability Insurance Co. v. Industrial
Commission of Wisconsin et al., Supreme Court of Wisconsin (May
3,1927), 213 Northwestern Reporter, page 630.—Herman Green was
president of the Adolph Green Construction Co., of Green Bay, Wis.
In January, 1925, the company commenced the construction of a
bridge over the Brazos river in Texas. Herman Green took com
plete charge of the Texas job. On April 22, 1925, he was killed
while unloading a boiler from a railroad car. His widow claimed
compensation on the ground that her husband came to his death
while performing services incident to and growing out of his em
ployment. An award was made in her favor. The case was carried
to the State supreme court. The contention of the insurance carrier
E
v id e n c e
W O R K M E N ’ s CO M PENSATION
341
was that Green as president of the company was not an employee
within the meaning of the workmen’s compensation act. They relied
upon a prior case decided by the court, Leigh Aitchison v. Industrial
Commission (188 Wis., 218). The supreme court, however, held
that this case differed from the instant one, saying:
The deceased, Herman Green, entertained no such relation to the
Adolph Green Construction Co. He did not own a majority of the
stock; he could not elect a single director; he was one of three
directors; he could not elect himself president; he could not employ
himself as superintendent of construction; he had no independent
control of the company; he did not occupy his position as president
by virtue of any independent control, but by virtue of the concur
rence of at least a majority of a board consisting of three directors.
The principles underlying the Aitchison case do not control this.
It is conceded that, besides holding the office of president of the
company and discharging the duties pertaining to that office, he also
acted as superintendent of construction upon the works. This con
stituted an employment palpably separate and distinct from the of
ficial duties falling upon him as president of the company. While
performing such duties, he stood in the same relation to the company
that any other superintendent of construction in the employ of the
company would occupy. That such person is under the provisions
of the workmen’s compensation act is not seriously challenged, and
we conclude that, while acting as superintendent of construction, the
deceased was plainly an employee of the company.
Relative to the contention that even if Green was an employee
his employment at the time of the accident was a Texas employment
and injuries sustained by him in such employment were not subject
to compensation under the Wisconsin compensation act, the court
said:
This contention would seem to be answered by our decision in
Anderson v. Miller Scrap Iron Co. (169 Wis. 106, 170 N. W. 275,
171 N. W. 935). It was there held that the relation of employer
and employee was a statutory relation; that the contract is governed
by and subject to the law of the place where it is made; and that, as
to all contracts of employment made in the State of Wisconsin, the
compensation act of this State “ enters into and becomes a part of
every contract, not as a covenant thereof, but to the extent that the
law of the land is a part of every contract.” This great weight of
authority in this country holds that workmen’s compensation acts
apply to employees while rendering services growing out of and
incident to their employment outside the jurisdiction of the State in
which the contract is made. (See note in A. L. R., p. 1351.)
Whether the deceased was under the Wisconsin or Texas compen
sation act depends upon whether his employment was pursuant to a
Wisconsin or Texas contract. Upon this question there can be no
doubt. He went to Texas as a representative of the company by
virtue of his contract of employment made here in Wisconsin. So
far as he was concerned, there was no Texas contract. The fact that
342
DECISIONS OF T H E COURTS
he went to Texas, took charge of the work, hired and discharged men,
and secured workmen’s compensation insurance in Texas, did not
make his employment a Texas employment. His employment still
remained a Wisconsin employment, and he was at all times subject
to the workmen’s compensation act, no matter where he was per
forming services growing out of and incidental to that employment.
The conclusion that at the time of his death he was subject to the
Wisconsin compensation act presents little difficulty.
In upholding the finding of the industrial commission that at the
time of death of Green he was performing services incident to and
growing out of his employment the court said:
However, we find in the record a report which Mr. William Green
testified he made as an officer of the employer to the insurance car
rier, and in which he reports that the accident happened “ in unload
ing 45-horsepower steam boiler from car on sidetrack and skidding
same to the ground. Boiler slipped off roller on one end, causing
boiler to topple over. Mr. Green quickly cautioned the men to get
out of the way, but in doing so himself stumbled over one of the
skids, so the boiler in rolling over pinned his head and shoulders to
the ground for a second or two until it rolled far enough to relieve
him.” This report, having been made by an officer of the construc
tion company having power and authority to speak for the company,
does constitute an admission on the part of the employer that the
accident happened as therein stated. Such admission justifies the
finding that the deceased came to his death by reason of accident
occurring while unloading a 45-horsepower boiler from a car on a
sidetrack. This, however, standing alone, does not justify a finding
that at the time of his death he was performing services incidental
to or growing out of his employment. But William Green testified
that the construction company shipped a 45-horsepower steam boiler
from Green Bay to Texas to be used by the company in prosecuting
the construction of the bridge in Texas. This testimony justifies
the inference that this was the boiler that the deceased was engaged
in unloading at the time of his death. I f so, then it is clear that he
was performing services incidental to and growing out of his em
ployment. These considerations are sufficient support for the finding
of the industrial commission that at the time of his death deceased
was performing services incidental to and growing out of his
employment.
W
o rk m en ’s
C o m p e n s a t io n — I
n ju r y—
I n s a n i t y — S u ic id e — P r o x
—Delinousha et al. v. National Biscuit C o C o u r t of
Appeals of New York (May 1, 1928), 161 Northeastern Reporter,
page IfSl.—This was an action by Demetras Delinousha under the
workmen’s compensation act against the National Biscuit Co. for
injuries received during the course of the employment. An award
was made in favor of Delinousha by the State industrial board,
which was later affirmed by the supreme court, appellate division,
im a t e
R
esu lt
343
W O R K M E N *S CO M PENSATION
third department. The company carried the case to the court of
appeals, where the decision of the lower court was affirmed. The
opinion of the court of appeals is in part as follows:
Concededly, if an injury causes insanity, which in turn causes
suicide, death benefits may be awarded under the provisions
@FedFRASER