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U. S. DEPARTMENT OF LABOR

BUREAU OF LABOR STATISTICS
ROYAL MEEKER, Commissioner

BULLETIN OF THE UNITED STATES )
BUREAU OF LABOR STATISTICS ]
LABOR

LAW S

THE

U N IT E D

. / WHOLE
\NUMBER

STATES

S E R IE S :

N o.

DECISIONS OF COURTS
AFFECTING LABOR

1914

MAY, 1915

WASHINGTON
GOVERNMENT PRINTING OFFICE
1915

169
6

CONTENTS.
Page.
Review of decisions of courts affecting labor, 1914:
Introduction................................................ .............................................. 15,16
Decisions of courts....................................................................................... 16-46
Contract of employment....................................................................... 17,18
Wages................................................................................................... 18-20
Hours of labor....................................................................................... 20-22
Factory regulations...............................................................................
22
Railroads.............................................................................................. 22.23
Mines..................................................................................................
23
Restrictions of employment.................................................................. 23.24
Women and children............................................................................
24
Liability of employers for injuries to employees.................................. 24-32
Workmen’s compensation..................................................................... 32-42
Employers’ liability insurance............................................................
42
Relief associations................................................................................
42
Labor organizations.............................................................................. 42-46
Decisions of courts affecting labor:
Decisions under statute law.......................................................................<17-269
Alien contract labor—importation—construction of statute—“ offer of
employment” (United States v. Dwight Manufacturing Co.)............ 47.48
Alien contract labor—violation of statute—nature of action—penalties
(Grant Bros. Construction Co. v. United States)................................ 48.49
Antitrust law—monopolies—restraint of trade—exemption of labor
organizations—constitutionality of statute (International Harvester
Co. of America v. State of Missouri).................................................. 49,50
Antitrust law—unlawful combinations—monopolies—laundries—con
struction of statute (State ex rel. Moose v. Frank).............................
50
Arbitration of labor disputes—award—exceptions—procedure (In re
Georgia & Florida Railway).............................................................. 50-53
Boycott—blacklisting—conspiracy—combination in restraint of trade—
antitrust law (Eastern States Retail Lumber Dealers’ Association v.
United States)................................................................................... 53-55
Civil-service employees—pension funds—deductions from salaries—
constitutionality of statute (Hughes v. Traeger)............................... 56.57
Contract of employment—breach—suits—limitations (Pennsylvania
Co. v. Good)...................................................................................... 57.58
Convict labor—State employment—constitutionality of statute (Shen
andoah Lime Co. v. Mann)................................................................ 58.59
Convict labor—working out costs—action for excess work (Tennessee
Coal, Iron & Railroad Co. v. Butler).................................................
60
Employers’ liability—abrogation of defenses—classification of em
ployments—constitutionality of statute (Vandalia Railroad Co. v.
Stilwell)............................................................................................ 60,61
Employers’ liability—abrogation of defenses—constitutionality of
workmen’s compensation act (Crooks v. Tazewell Coal Co.)...........
61,62

CONTENTS.

Decisions of courts affecting labor—Continued.
Decisions under statute law—Continued.
Page.
Employers’ liability—abrogation of fellow-servant doctrine—constitu
tionality of statute (Easterling Lumber Co. v. Pierce)...................... 62-64
Employers’ liability—employment of children—age limit—constitu
tionality of statute—misrepresentation of age (Sturges & Burn Mfg.
Co. v. Beauchamp)............................................................................64,65
Employers’ liability—guards for dangerous machinery—laundries—
application of law—assumption of risks (McClary v. Knight).........65,66
Employers’ liability—guards for dangerous machinery—negligence
(Phillips v. Hamilton Brown Shoe Co.)............................................ 66,67
Employers’ liability—guards for dangerous machinery—proximate
cause—damages (Cincinnati, H. & D. Ry. Co. v. Armuth)...............67,68
Employers’ liability—guards for dangerous machinery—safety from
location (Smith v. Mt. Clemens Sugar Co.)....................................... 68,69
Employers’ liability—guards for dangerous machinery—saws (Pulse v.
Spencer)............................................................................................
69
Employers’ liability—mine regulations—certified foreman—trial by
jury (Myers v. Pittsburgh Coal Co.)..................................................
70
Employers’ liability—mine regulations—duty of foreman—assumption
of risks (Humphreys v. Raleigh Coal & Coke Co.)............................ 70,71
Employers’ liability—mine regulations—failure to employ mining boss
(Baisdrenghien v. Missouri, K. & T. Ry. Co.)..................................
71
Employers’ liability—mine regulations—inspection (Piazzi v. KerensDonnewald Coal Co.).........................................................................
72
Employers’ liability—mine regulations—lead and zinc mines—appli
cation of statute (Big Jack Mining Co. v. Parkinson)........................72,73
Employers’ liability—mine regulations—violation of statute—assump
tion of risks—fellow service (Maronen v. Anaconda Copper Mining
Co.)...................................................................................................
73
Employers’ liability—negligence—evidence—guards for dangerous
machinery (Byland v. E. I. du Pont de Nemours Powder Co.)........ 73,74
Employers’ liability—pension funds—election of rights (Longfellow v.
City of Seattle).................................................................................. 74,75
Employers’ liability—railroad companies—blocking frogs—“ yards”
(George v. Quincy, 0. & K . C. Railroad Co.)...................................
75
Employers’ liability—railroad companies—“ cars” (McGrady v. Char
lotte Harbor & Northern Ry. Co.)..................................................... 75,76
Employers’ liability—railroad companies—contributory negligenceproximate cause—violation of ordinance—damages (Wabash Rail
road Co. v. Gretzinger)...................................................................... 76,77
Employers’ liability—railroad companies—electric railroads (Hughes
v. Indiana Union Traction Co.).........................................................
77
Employers’ liability—railroad companies—Federal and State statutes
(Wabash R. Co. v. Hayes)................................................................. 77,78
Employers’ liability—railroad companies—Federal and State stat
utes—death of employee without dependents (Jones v. Charleston
& Western Carolina Ry. Co.)............................................................. 78,79
Employers’ liability—railroad companies—Federal and State stat
utes—persons entitled to benefits (Taylor v. Taylor)........................ 79,80
Employers’ liability—railroad companies—Federal and State stat
utes—safety appliances (Seaboard A. L. Ry. Co. v. Horton)............
80
Employers’ liability—railroad companies—Federal statute—assump
tion of risks—safe place (Farley v. New York, N. H. & H. Railroad
Co.)...................................................................................................
81

CONTENTS.

Decisions of courts affecting labor—Continued.
Decisions under statute law—Continued.
Page.
Employers’ liability—railroad companies—Federal statute—benefici
aries—next of kin—illegitimate children (Kenney v. Seaboard A. L.
R. Co.)....................... ' ............. ....................................................... 81,82
Employers’ liability—railroad companies—Federal statute—contribu
tory negligence (Pennsylvania Co. v. Cole).......................................
82
Employers’ liability—railroad companies—Federal statute—exclusive
application—interstate commerce—jurisdiction of courts—“ on
duty” (North Carolina Railroad Co. v. Zachary).............................. 83,84
Employers’ liability—railroad companies—Federal statute—exemp
tion from liability—relief associations (Hogarty v. Philadelphia &
R. Ry. Co.)....................................................................................... 84,85
Employers’ liability—railroad companies—Federal statute—interstate
commerce—brakeman placing car in train—safety appliances (Thombro v. Kansas City, M. & 0. Ry. Co.)............................................... 85,86
Employers’ liability—railroad companies—Federal statute—interstate
commerce—building addition to freight shed (Eng v. Southern Pa
cific Co.)........................................................................................... 86,87
Employers’ liability—railroad companies—Federal statute—interstate
commerce—construction of bridge on cut-off (Bravis v. Chicago, M.
& St. P. Ry. Co.).............................................................................. 87,88
Employers’ liability—railroad companies—Federal statute—interstate
commerce—construction of tunnel (Jackson v. Chicago, M. & St. P.
Ry. Co.)............................................................................................
88
Employers’ liability—railroad companies—Federal statute—interstate
commerce—employee carrying coal to heat repair shop (Cousins v.
Illinois Central Railroad Co.)............................................................ 88,89
Employers’ liability—railroad companies—Federal statute—interstate
commerce—employee sleeping in shanty car (Sanders v. Charleston
&W. C.Ry. Co.)..............................................................................
89
Employers’ liability—railroad companies—Federal statute—interstate
commerce—engineer in roundhouse to attend to repairs (Padgett v.
Seaboard A. L. R y.).........................................................................90,91
Employers’ liability—railroad companies—Federal statute—interstate
commerce—fireman on switch engine (Illinois Central Railroad Co.
v. Behrens)....................................................................................... 91,92
Employers’ liability—railroad companies—Federal statute—interstate
commerce—installing block-signal system (Saunders v. Southern
Ry. Co.)............................................................................................
92
Employers’ liability—railroad companies—Federal statute—interstate
commerce—installing block-signal system—employee on way from
work (Grow v. Oregon Short Line Railroad Co.)............................... 92,93
Employers’ liability—railroad companies—Federal statute—interstate
commerce—repairing cars—defective grindstone (Opsahl v. Northern
Pacific Ry. Co.)................................................................................
94
Employers’ liability—railroad companies—Federal statute—interstate
commerce—repairing engine (Law v. Illinois Central Railroad Co.). 94,95
Employers’ liability—railroad companies—Federal statute—interstate
commerce—repairing telegraph line (Deal v. Coal & Coke Ry. Co.)..
95
Employers’ liability—railroad companies—Federal statute—interstate
commerce—roundhouse employee (La Casse v. New Orleans, T. &
M. Railroad Co.)................................................................................
96

CONTENTS.

Decisions of courts affecting labor—Continued.
Decisions under statute law—Continued.
Page.
Employers’ liability—railroad companies—Federal statute—interstate
commerce—testing engine after repairs (Lloyd v. Southern Railway
Co.)................................................................................................... 96,97
Employers’ liability—railroad companies—Federal statute—interstate
commerce—transportation of lumber by private railroad (Bay v.
Merrill & Ring Lumber Co.).............................................................
97
Employers’ liability—railroad companies—Federal statute—interstate
commerce—weighing empty cars (Wheeling Terminal Co. v. Russell). 97,98
Employers’ liability—railroad companies—Federal statute—negligence
—contributory negligence (Cincinnati, N. 0. & T. P. Ry. Co. v.
Swann’s Admx.)................................................................................98, 99
Employers’ liability—railroad companies—Federal statute—negli
gence—course of employment (Reeve v. Northern Pacific Ry. Co.)..
99
Employers’ liability—railroad companies—Federal statute—reference
to statute—comparative negligence (Grand Trunk Western Ry. Co. v.
Lindsay).......................................................................................... 99,100
Employers’ liability—railroad companies—Federal statute—relief
associations—release (Wagner v. Chicago & Alton Railroad Co.)... 100-102
Employers’ liability—railroad companies—Federal statute—safety
appliances (Pennell v. Philadelphia & Reading Ry. Co.)..................
102
Employers’ liability—railroad companies—Federal statute—safety
appliances—hauling bad-order car—status of workman riding home
(Dodge v. Chicago G. W. Railroad Co.)........................................ 102,103
Employers’ liability—railroad companies—injuries to employee’s
family riding on pass (Charleston & W. C. Ry. Co. v. Thompson).. 103,104
Employers’ liability—railroad companies—operating railroad (Sartain
v. Jefferson City Transit Co.)............................................................
104
Employers’ liability—railroad companies—orders of superior—injury
to brakeman (Ainsley v. Pittsburgh, C. C. & St. L. Ry. Co..............
105
Employers’ liability—railroad companies—orders of superior—yard
and bridge men (Chicago & Erie Railroad Co. v. Lain)................. 105,106
Employers’ liability—railroad companies—safety appliances—electric
trains (Spokane & I. E. Railroad Co. v. Campbell)........................106,107
Employers’ liability—railroad companies—State statute—extraterri
torial effect—jurisdiction of courts (Tennessee C., I. & R. Co. v.
George).......................................................................................... 107,108
Employers’ liability—regulations concerning electric wires—substi
tute provisions (McClaugherty v. Rogue River Electric Co.)....... 108,109
Employers’ liability—right of action—election—effect of workmen’s
compensation act (Consolidated Arizona Smelting Co. v. Ujack).. 109,110
Employers* liability—safe place (Rosholt v. Worden-Allen Co.)...... 110, 111
Employers’ liability—safe place—scaffolding (Bomhoff v. Fischer).. Ill, 112
Employers’ liability—statutory notice (Meniz v. Quissett Mills).........
112
Employers’ liability—statutory notice (Rodzborski v. American Sugar
Refining Co.)................................................................................. 112,113
Employment of children in mines—age limit—construction of statute—
“ any mine” (Cole v. Sloss-Sheffield Steel & Iron Co.).................. 113,114
Examination and licensing of plumbers—class legislation—constitu
tionality of statute (Davis v. Holland).......................................... 114,115
Factory regulations—wash rooms—constitutionality of statute (People
v. Solomon)................................................................................... 115,116

CONTENTS.

Decisions of courts affecting labor—Continued.
Decisions under statute law—Continued.
Page.
IIours of labor—eight-hour law—employment by State—constitution
ality of statute (Ex parte Steiner)................................................. 116,117
Hours of labor- eight-hour law—policemen and firemen (Albee v.
Weinberger)................................................................................... 117,118
Hours of labor—eight-hour law—public works—constitutionality of
statute (Sweetser v. State)............................................................. 118,119
Hours of labor—eight-hour law—public works—lock and dam furnish
ing power (Chattanooga & Tennessee River Power Co. v. United
119
States)............................................................................................
Hours of labor—public laundries—constitutionality of ordinance (Ex
parte Wong Wing)......................................................................... 119,120
Hours of labor—ten-hour law—constitutionality of statute (State v.
Bunting)........................................ ............................................... 120,121
Hours of labor of women—constitutionality of statute—liberty of con
tract—equal protection of the laws (Riley v. Massachusetts)........ 121,122
Hours of service—railroads—casualty or unavoidable accident (United
States v. Northern Pacific Ry. Co.)............................................... 122,123
Hours of sendee—railroads—constitutionality of statute—interstate
commerce (Erie Railroad Co. v. New York).................................. 123,124
Hours of service—railroads—emergencies—construction of statute
(United States v. Southern Pacific Co.)........................................ 124,125
Hours of service—railroads—emergencies—fireman watching engine
(Northern Pacific Railroad Co. v. United States).............................
125
Hours of service—railroads—employee on duty (Osborne’s Admr. v.
Cincinnati, N. O. & T. P. Ry. Co.)............................................... 125-127
Hours of service—railroads—movement of trains (Great Northern Ry.
Co. v. United States)........................................................................
127
Hours of service—railroads—offices operated night and day (United
States v. Atlantic Coast Line Railroad Co.)......................................
128
Hours of service—railroads—offices operated night and day (United
States v. Missouri, K. & T. Ry. Co.)............. ............................... 128,129
Hours of service—railroads—switch tenders (Missouri Pacific Ry. Co. v.
United States)..................................................................................
129
Hours of service—railroads—telegraph operators—knowledge of supe
riors (United States v. Oregon-Washington R. & N. Co.).............. 129,130
Hours of service—railroads—unavoidable accident—construction of
statute (United States v. Atchison, T. & S. F. Ry. Co.)............... 130,131
Hours of service—railroads—unavoidable accident—construction of
statute (United States v. Chicago, M. & St. P. Ry. C o.).................
131
Hours of service—railroads—unavoidable casualty—construction of
statute (United States v. New York, 0. & W. Ry. Co.)................ 131-133
Hours of service—railroads—waiting time (United States v. Northern
Pacific Railroad Co.)........................................................................
133
Injunction—contempt—limitation of actions (Gompers v. United
States)..........................................................................................133-135
Injunction—contempt—review on habeas corpus proceedings (Ex
parte Heffron)............................................................................... 135-137
Labor organizations—boycotts—antitrust law—knowledge of members
of organization (Lawlor v. Loewe)................................................. 137-140
Labor organizations—boycotts—antitrust law—liability of members
for damages (Lawlor v. Loewe).....................................................140-142

CONTENTS.

Decisions of courts affecting labor—Continued.
Decisions under statute law—Continued.
Page.
Labor organizations -conspiracy—transportation of explosives in pas
senger trains in interstate commerce—evidence (Ryan et al. v. United
States).......................................................................................... 143-147
Labor organizations—protection of employees as members—constitu
tionality of statute (Coppage v. Kansas)........................................ 147-160
Labor organizations—strikes—inciting to injury of persons (State v.
Quinlan)........................................................................................ 160-162
Labor organizations—unlawful combinations—restraint of trade—
injunction—liability of members (Irving v. Neal)......................... 162-164
Labor organizations—unlawful combinations—restraint of trade—
injunction—prevention of competition (Paine Lumber Co. v. Neal). 164r-167
Mechanics’ liens—constitutionality of statute—interference with
right to contract (Rittenhouse & Embree Co. v. Wm. Wrigley, jr., Co.)
167
Mechanics ’ liens—liens of subcontractors—attorneys ’ fees—constitu
tionality of statute (Becker v. Hopper).............................................
168
Mechanics ’ liens—materialmen—effect of stipulation by contractor
(Hume v. Seattle Dock Co.)............................ ............................. 169,170
Mine regulations—constitutionality of statute—status of statutory
commission (Plymouth Coal Co. v. Pennsylvania)........................170,171
Mine regulations—weighing coal—constitutionality of statute (Rail &
River Coal Co. v. Yaple)................................................................ 171,172
Minimum wages—constitutionality of statute (Simpson v. O’Hara).. 172,173
Minimum wages—industrial welfare commission—powers of com
mission—constitutionality of statute (Stettler v. O’Hara).............. 173-177
Mothers’ pensions—construction of statute—widow (Debrot v. Marion
County).......................................................................................... 177,178
Railroads—qualifications of employees—constitutionality of statute—
freight conductors (Smith v. Texas)........................................... .. 178,179
Railroads—safety appliance act—construction—electric railways
179
(Spokane & Inland Empire Railroad Co. v. United States)..............
Railroads—safety appliance act—construction—switching (Chicago,
B. & Q. Railroad Co. v. United States)......................................... 179,180
Railroads—safety appliance act—construction—switching (United
States v. Pere Marquette Railroad Co.)......................................... 180,181
Railroads—safety appliance act—construction trains (La Mere v.
Railway Transfer Co.)................................................................... 181,182
Railroads—safety appliances—constitutionality of statute—electric
headlights (Atlantic Coast Line Railroad Co. v. Georgia).......... .. 182,183
Railroads—safety appliances—repair (United States v. Chesapeake
& Ohio Ry. Co.)................................................................................
183
Seamen—failure to pay wages—construction of statute (The City of
Montgomery)................................................................................. 183,184
Strikes—mention in advertisements for employees—constitutionality
of statute (Commonwealth v. Libbey)........................................... 184-186
Sunday labor—class legislation—constitutionality of city ordinance
(City of Marengo v. Rowland).......................... ................................
186
Union labor—rate of wages—labor on public works—constitutionality
of statute (Wright v. Hoctor).......................................................... 186-188
Wages—assignment—consent of wife—constitutionality of statute
(Cleveland, C., C. & St. L. Ry. Co. v. Marshall)........................... 188,189
Wages—payment—redemption of scrip—constitutionality of statute
(Regan v. Tremont Lumber Co.).......................................................
189

CONTENTS.

Decisions of courts affecting labor—Continued.
Decisions under statute law—Continued.
Pag©.
Wages—payment in scrip—constitutionality of statute (Keokee Con
solidated Coke Co. v. Taylor)............................................................
190
Wages—payment on demand after discharge—construction of statute—
piecework (Kirven v. Wilds)............................................................
190
Wages—payment on termination of employment—railroads—con
stitutionality of statute (Cleveland, C., C. & St. L. Ry. Co. v.
Schuler)........................................................................................ 190,191
Wages—rates on public works—municipal ordinance—constitutionality
—powers of municipal corporations (Malette v. City of Spokane). . . 191-195
Wages—semimonthly pay day—constitutionality of statute (Erie Rail
road Co. v. Williams)..................................................................... 195,196
Wages—semimonthly pay day—constitutionality of statute—imprison
ment for debt (State v. Prudential Coal Co.)................................ 196,197
Workmen’s compensation—abrogation of defenses—compulsion—lim
iting amount of recovery—constitutionality of statute (Kentucky
State Journal Co. v. Workmen’s Compensation Board)................. 197-203
Workmen’s compensation—abrogation of defenses—exclusion of small
employers—constitutionality of statute (Jeffrey Manufacturing Co.
v. Blagg)........................................................................................ 203, 204
Workmen’s compensation—acceptance of act by employer—time of
taking effect of act (Coakley v. Mason Mfg. Co.)........................... 204,205
Workmen’s compensation—“ accident” —definite time as factor (Liondale Bleach, Dye & Paint Works v. Riker).................................. 205,206
Workmen’s compensation—accident arising out of employment (Henry
Steers, Inc., v. Dunnewald).............................................................
206
Workmen’s compensation—actions—default of contributions (Barrett
v. Gray’s Harbor Commercial Co.).................. : ............................ 206,207
Workmen’s compensation—amount of compensation—commutation to
lump sum (Mockett v. Ashton).........................................................
207
Workmen’s compensation—amount of compensation—disability (De
Zeng Standard Co. v. Pressey)...................................................... 207-209
Workmen’s compensation—amount of compensation—loss of motion of
arm—payments by insurance company (Barbour Flax Spinning Co.
v. Hagerty).......................................................................................
209
Workmen’s compensation—amount of compensation—partial disability
(O’Connell v. Simms Magneto Co.)................................................ 209,210
Workmen’s compensation—benefits—impairment of earning capacity
(International Harvester Co. v. Industrial Commission).............. 210,211
Workmen’s compensation—benefits—loss of member (Limron v.
Blair)............................................................................................ 211,212
Workmen’s compensation—benefits—permanent injury and subse
quent death (In re Burns)................................................................
212
Workmen’s compensation—benefits—permanent injury not causing
incapacity (In re Ethier)............................................................... 212,213
Workmen’s compensation—benefits—separate allowances (In re
Nichols)............................................................................................
213
Workmen’s compensation—casual employment (In re Cheevers)........
213
Workmen’s compensation—casual employment (In re Howard)----- 213,214
Workmen’s compensation—casual employment (Sabella v. Brazileiro)..
214
Workmen’s compensation—casual employment—amount of compensa
tion (Schaeffer v. De Grottola)..........................................................
214
Workmen’s compensation—casual employment—waiters (In re
Gaynor)......................................................................................... 214,215

CONTENTS.

Decisions of courts affecting labor—Continued.
Decisions under statute law—Continued.
Page.
Workmen’s compensation—classification of employments—railroad
construction (State v. Chicago, M. & P. S. Ry. Co.).................... 215,216
Workmen’s compensation—constitutionality of statute (Deibeikis v.
Link-Belt Co.)...............................................................................216-218
Workmen’s compensation—constitutionality of statute (Matheson v.
Minneapolis Street Ry. Co.).......................................................... 218-221
Workmen’s compensation—constitutionality of statute—election—pro
ceedings (Young v. Duncan)......................................................... 221-223
Workmen’s compensation—constitutionality of statute—exclusiveness
of remedy—election (Shade v. Ash Grove Lime & Portland Cement
Co.)............................................................................................... 224,225
Workmen’s compensation—constitutionality of statute—title—wages
(Huyett v. Pennsylvania Railroad Co.)......................................... 225,226
Workmen’s compensation—contract of employment made in another
State (American Radiator Co. v. Rogge)...........................................
226
Workmen’s compensation—dependency—finding of board (In re Bent
ley)...................................................................................................
226
Workmen’s compensation—dependency—finding of board (In re Her
rick).............................................................................................. 226,227
Workmen’s compensation—dependency—presumptions—wife living
apart from husband (In re Gallagher)...............................................
227
Workmen’s compensation—dependency—presumptions—wife living
apart from husband (In re Kelson)................................................ 227,228
Workmen’s compensation—dependents of minors (Dazy v. Apponaug
Co.)...................................................................................................
228
Workmen’s compensation—dependents of minors—benefits (In re
Murphy)...........................................................................................
229
Workmen’s compensation—depositions for use of industrial accident
board—letters rogatory—power of courts (In re Martinelli)........... 229,230
Workmen’s compensation—distribution of compensation (In re Janes).. 230
Workmen’s compensation—election—incapacity (Gorrell v. Battelle). 230,231
Workmen’s compensation—election—minors—notice—constitution
ality of statute (Troth v. Millville Bottle Works)......................... 231,232
Workmen’s compensation—election of remedies—exclusiveness (The
Fred E. Sander)...............................................................................
232
Workmen’s compensation—employers’ liability—“ willful act”
(McWeeny v. Standard Boiler & Plate Co.)................................... 232-234
Workmen’s compensation—employment during part of year—compu
tation of weekly payment (Andrejwski v. Wolverine Coal Co.).. 234,235
Workmen’s compensation—evidence necessary to support finding
(Reck v. Whittlesberger)...................................................................
236
Workmen’s compensation—exclusiveness of remedy—proceedings
under common law—nature of award—measure of damages (McRoberts v. National Zinc Co.)....................................................... 236-238
Workmen’s compensation—extrahazardous employment—workman
(Wendt v. Industrial Insurance Commission)................................ 238,239
Workmen’s compensation—farm laborers (In re Keaney)................. 239,240
Workmen’s compensation—“ fortuitous event”—hernia (Zappala v.
Industrial Insurance Commission)................................................. 240,241
Workmen’s compensation—“ incapable of use” (In re Meley)............
241
Workmen’s compensation—incapacity for work (In re Sullivan).........
241

CONTENTS.

Decisions of courts affecting labor—Continued.
Decisions under statute law—Continued.
Pag©.
Workmen’s compensation—injury arising out of and in course of em
ployment (Terlecki v. Strauss)..................................................... 241,242
Workmen’s compensation—injury arising out of and in course of em
ployment—climbing off roof for lunch—intentional and willful
misconduct (Clem v. Chalmers Motor Co.)..................................... 242,243
Workmen’s compensation—injury arising out of and in course of em
ployment—employee going off premises for lunch (Hills v. Blair). 243,244
Workmen’s compensation—injury arising out of and in course of em
ployment—employee going out to lunch (In re Sundine).................
244
Workmen’s compensation—injury arising out of and in course of em
ployment—punching time clock (Rayner v. Sligh Furniture Co.)...
244
Workmen’s compensation—injury arising out of and in course of em
ployment-riding to and from work (In re Donovan).......................
245
Workmen’s compensation—injury arising out of employment (Bayne v.
Riverside Storage & Cartage Co.)................................................... 245,246
Workmen’s compensation—injury arising out of employment—effect
of previous injury (Milliken v. A. Towle & Co.)........................... 246,247
Workmen’s compensation—injury in course of employment—disease—
causation (Newcomb v. Albertson)................................................ 247,248
Workmen’s compensation—injury in course of employment—effect of
preexisting disease (Voorhees v. Smith Schoonmaker Co.)............ 248,249
Workmen’s compensation—injury in course of employment—evidence
249
of cause of death (Muzik v. Erie Railroad Co.)................................
Workmen’s compensation—injury in course of employment—review
b> courts (De Constantin v. Public Service Commission)............ 249,250
Workmen’s compensation—injury in course of employment—use of
forbidden appliance (Reimers v. Proctor Publishing Co.)................
250
Workmen’s compensation—injury of employee by negligence of third
party (Meese v. Northern Pacific Ry. Co.)..................................... 250,251
Workmen’s compensation—injury of employee by negligence of third
party—settlement—separate claim against employer (Newark Pav
ing Co. v. Klotz)............................................................................ 251-253
Workmen’s compensation—medical and hospital services (In re
Panasuk)...........................................................................................
253
Workmen’s compensation—medical and surgical treatment—refusal to
permit operation (Jendrus v. Detroit Steel Products Co.).............. 253-255
Workmen’s compensation—nonresident alien beneficiaries—injuries
causing death (Gregutis v. Waclark Wire Works).......................... 255,256
Workmen’s compensation — permanent injury — aged employee —
amount of compensation (Bateman Manufacturing Co. v. Smith).. 256,257
Workmen’s compensation — permanent injury — death — aged em
ployees (City of Milwaukee v. Ritzow).............................................
257
Workmen’s compensation—permanent total or partial disability—loss
of fingers—amount of benefits (Sinnes v. Daggett)........................ 257,258
Workmen’s compensation—personal injury—occupational disease—
lead poisoning (Adams v. Acme White Lead & Color Works)....... 258,259
Workmen’s compensation—personal injury—occupational disease—
lead poisoning (Johnson v. London Guarantee & Accident Co.).. 259,260
Workmen’8 compensation—personal injury—occupational disease—
optic neuritis (In re Hurle)................. ..........................................260-262

CONTENTS.

Decisions of courts affecting labor—Continued.
Decisions under statute law—Concluded.
page.
Workmen’s compensation—railroad employees—election (Connole v.
Norfolk & Western Railway Co.)......................................................
263
Workmen’s compensation—review of decisions of industrial board—
certiorari (Courter v. Simpson Construction Co.)...............................
264
Workmen’s compensation—review of findings of board of arbitration
(In re Diaz).......................................................................................
264
Workmen’s compensation—right of action by parent for loss of serv
ices of minor child (King v. Viscoloid Co.).................................. 264,265
Workmen’s compensation—seamen—scope of law (TheFred E. Sander) . 265
Workmen’s compensation—serious and willful misconduct (In re
Nickerson)..................................................................................... 265,266
Workmen’s compensation—“ service growing out of and incidental to
employment”—employee on way to work (City of Milwaukee v.
Althoff).............................................................................. *..............
266
Workmen’s compensation—settlement with third parties liable for
injury—release—separate claim for death—deduction for wages (In
266,267
reCripp).................................................................................. .
Workmen’s compensation—subrogation of employer to right of action
against third person—assignment of right (McGarvey v. Independent
Oil & Grease Co.)........................................................................... 267,268
Workmen’s compensation—total and partial disability (Duprey v.
Maryland Casualty Co.)................................................................. 268,269
Workmen’s compensation—workman—child under 14 years employed
by father in mill (Hillestad v. Industrial Commission).....................
269
Decisions under common la w ................................................................. 270-339
Boycott—injunction—right to strike—unfair lists (Burnham v.
Dowd).......................................................................................... 270-272
Contract of employment—employment for life—reformation of written
contract obtained by fraud (Pierson v. Kingman Milling Co.)....... 272-274
Contract of employment—grounds for discharge—disobedience of rules
(Corley v. Rivers).......................................................................... 274,275
Contract of employment—term (Resener v. Watts, Ritter & Co.).........
275
Employer and employee—conditional resignation—discharge—dam
ages (Nesbit v. Giblin).................................................................. 275,276
Employer and employee—liability of employer for wrongful acts—
assault on third party (Matsuda v. Hammond).................................
276
Employer and employee—liability of employer for wrongful acts—
false imprisonment (Birmingham Ledger Co. v. Buchanan).............
277
Employer and employee—liability of employer for wrongful acts—
trespassers—authority of railroad brakeman (Tarnowski v. Lake Shore
&M. S. Ry. Co.)...............................................................................
278
Employers’ associations—violation of resolution to maintain open
shops—recovery of liquidated damages (United Hat Mfrs. v. BairdUnteidtCo.).................................................................................. 278-283
Employers’ liability—assumption of risks—incompetent fellow servant
(Walters v. Durham Lumber Co.).................................................. 283,284
Employers’ liability—duty of employer to instruct—negligence
(McCarty v. R. E. Wood Lumber Co.)..............................................
284
Employers’
liability—municipalities—governmental
functions—
cleaning streets (Mayor, etc., of Savannah v. Jordan)................... 284,285
Employers’ liability—obedience to orders—assumption of risks—
contributory negligence—safe place to work (Magnuson v. MacAdam). 285

CONTENTS.

Decisions of courts affecting labor—Continued.
Decisions under common law—Continued.
Page.
Employers’ liability—railroad companies—contributory negligence
(Stone v. Atlantic Coast Line Railroad Co.)......................................
286
Employers’ liability—railroad companies—minors—assumption of
risks (Adams v. Chesapeake & Ohio Ry. Co.)................................ 286,287
Employers’ liability—safe place to work—approved machines (Ainsley
v. John L. Ro]: Lumber Co.)...................................................... 287,288
Employers’ liability—status of employee riding from work—street
railways—passes (Indianapolis Traction & Terminal Co. v. Isgrig). 288
Employers’ liability—status of employee riding on engine in viola
tion of rules—trespasser (Dixon v. Central of Georgia Ry. Co.)........
289
Employers’ liability—status of employee riding to work (Klinck v.
Chicago Street Ry. Co.)................................................................. 289,290
Employers’ liability—warning of new dangers—strikes—injury to
guards (McCalman v. Illinois Central Railroad Co.)...................... 290,291
Employers’ liability insurance—malpractice of company’s physician
(May Creek Logging Co. v. Pacific Coast Casualty Co.)................. 291,292
Interference with employment—actions—evidence (Johnson v. Aetna
Life Insurance Co.)........................................................................ 292-294
Interference with employment—conspiracy—actions for damages
(Bausbach v. Reiff)................................................. ...................... 294r-296
Interference with employment—procuring discharge—conspiracy
(Heffernan v. Whittlsey)............................................................... 296,297
Labor organizations—collective agreements—effect on individual
contract (Gulla v. Barton)............................................................ 297,298
Labor organizations—inducing breach of contract—injunctions (New
England Cement Gun Co. v. McGivern)........................................ 298-301
Labor organizations—injunction—boycott (Gill Engraving Co. v.
Doerr)...................................................................... , .................... 301-303
Labor organizations—injunction—conspiracy—boycott (Hoban v.
Dempsey)...................................................................................... 303-305
Labor organizations—injunction— contempt — picketing — evidence
(Sona v. Aluminum Castings Co.).................................................. 305,306
Labor organizations—injunction—contempt—violation by inciting
others to violence (United States v. Colo et al.)............................ 306-309
Labor organizations—injunction—right to relief—mandamus directing
issue—peaceable parading (Baltic Mining Co. v. Houghton Circuit
Judge)............................................................................................310-313
Labor organizations—interference with employment—conspiracy—
boycott—injunction (Clarkson v. Laiblan).................................... 313,314
Labor organizations—interference with employment—injunctions—
damages (Fairbanks v. McDonald)................................................ 314,315
Labor organizations—legality—interference with employment—con
spiracy (Mitchell v. Hitchman Coal & Coke Co.).......................... 315-320
Labor organizations—legality—interference with employment—
strikes (Bittner v. West Virginia-Pittsburgh Coal Co.)......................
321
Labor organizations—libel by printing in paper published by associa
tion—damages (United Mine Workers of America v. Cromer)...... 322,323
Labor organizations—powers—fines upon members—investigation
(Monroe v. Colored Screwmen’s Benevolent Association).............. 323,324
Labor organizations—relief funds—disposition—liability for wrongful
use (Atty. Gen. ex rel. Prendergast et al. v. Bedard et a l.).. . . . . . 324,325

CONTENTS.

Decisions of courts affecting labor—Concluded.
Decisions under common law—Concluded.
page.
Labor organizations—right to strike—procuring discharge (Roddy v.
United Mine Workers)................................................................... 325,326
Labor organizations—strikes—conspiracy—incitement to commit
crime—liability as principal (People v. Ford)............................... 326-329
330-332
Labor organizations—strikes—picketing (In re Langell).............
Labor organizations—strikes—picketing—injury to business—dam
ages (Berry Foundry Co. v. International Molders’ Union)........... 332-334
Relief associations—railroads—application for membership—fraudu
lent representations (Daughtridge v. Atlantic Coast Line Railroad
Co.)................................................................................................ 334,335
Strikes—martial law—insurrection—power to hold and to try offenders
(Ex parte McDonald)..................................................................... 335-338
Strikes—use of house as part of employee’s compensation—damages
338
for ejection (Lane v. Au Sable Electric Co.)....................................
Wages—collection—identification card (Roumelitis v. Missouri Pacific
Ry. Co.)......................................................................................... 338,339

BULLETIN OF THE

U. S. BUREAU OF LABOR STATISTICS.
WHOLE NO. 169._________________

WASHINGTON._________________________MAY,

1915.

REVIEW OF DECISIONS OF COURTS AFFECTING LABOR,
1914.
BT LINDLEY D. CLARK, A. M., LL. M.

INTRODUCTION.

This is the third annual bulletin devoted to the subject of the
interpretation of labor laws by the courts, the preceding bulletins in
this series being No. 112 and No. 152. During the publication of the
bimonthly bulletins of this Bureau, ending with No. 100, practically
every bulletin contained some pages of material of this nature. The
present series began with the year 1912. The decisions reproduced
are mainly those rendered by the Federal courts or by the State
courts of last resort, though in a few cases the opinions of subordi
nate courts of appellate jurisdiction have been used. Not all cases of
the classes considered have been noted, the purpose being to show
the construction placed upon labor legislation and the application of
the common law to the labor contract and its incidents by the selec
tion of representative cases. Questions of constitutionality and those
affecting the development of the new forms of legislation, together
with cases affecting the status and powers of organized labor, have
received the fullest attention. Opinions of the Attorney General of
the United States construing Federal labor legislation have appeared
in the two preceding bulletins named, but no opinion of this class
was handed down by this official during the year 1914.
The method of presentation is that which has been systematically
followed in the past—i. e., an abridged statement of facts, followed
in most instances by quotations from the opinions of the court, show
ing the conclusions reached and the grounds therefor. In a number
of cases, however, this procedure has been departed from by a very
brief statement of the conclusions showing the application of the
statute in question to the particular point referred to the court for
decision.
The National Reporter System, published by the West Publishing
Co., has been depended upon for the court decisions reproduced,
except in the matter of reports of cases decided in the courts of the

BULLETIN OF THE BUREAU OF LABOR STATISTICS.

District of Columbia, for which the Washington Law Reporter was
used. The decisions presented are those appearing in the foregoing
publications during the calendar year 1914, with the exception of a
few decisions by the Supreme Court of the United States on cases
argued during the calendar year named, the opinions being rendered
early in 1915. The reporters, etc., covered are as follows:
Supreme Court Reporter, volume 34, page 48, to volume 35, page 25.
Federal Reporter, volume 208, page 497, to volume 217, page 688.
Northeastern Reporter, volume 103, page 401, to volume 106,
page 1087.
Atlantic Reporter, volume 88, page 977, to volume 92, page 512.
Southeastern Reporter, volume 80, page 225, to volume 83, page
672.
Southern Reporter, volume 63, page 505, to volume 66, page 456.
Southwestern Reporter, volume 161, page 1, to volume 170,
page 1199.
Northwestern Reporter, volume 144, page 209, to volume 149,
page 720.
Pacific Reporter, volume 136, page 849, to volume 144, page 576.
Opinions of Attorney General, volume 30, pages 241 to 288.
Washington Law Reporter, volume 4*2.
Perhaps the most interesting class of decisions, as well as one of
the most numerous, is the group relating to the subject of workmen’s
compensation—a type of legislation which was enacted for the pur
pose of doing away with litigation. However, the type of law is new
in the United States, and many expressions are used which seem to
require legal definition, while the construction of the laws must nec
essarily be made authoritative by a process of adjudication. Many
points are of minor importance and doubtless represent chiefly a
desire to secure early definiteness in the construction of the details
of the acts. The Federal employers’ liability act continues to be
the subject of numerous decisions as to its scope, considerable diver
gence as to liberality being noticed. Interesting and important
decisions relative to labor organizations are also presented in this
bulletin, notably the closing up of the long, protracted Danbury Hatters’
Case (p. 140), the dissolution of the injunction in the case Mitchell v.
Hitchman Coal & Coke Co. (p. 315), and the declaration of unconstitu
tionality of the so-called coercion law of Kansas (Coppage v. Kansas,
p. 147).
DECISIONS OF COURTS.

Court decisions are divided into two groups, dependent upon
whether they are based upon statutes or upon the principles of the
common law not enacted into statute form. In this review, however,
this distinction is not observed, but the cases are grouped in a general
way according to the subject matter considered.

REVIEW OF DECISIONS OF COURTS AFFECTING LABOR.

CONTRACT OF EMPLOYMENT.

The question of the labor contract has been the subject of but
few laws, so that the decisions under this head are chiefly those that
apply the principles of the common law.
The reformation of a written contract obtained by fraud was passed
upon in the case Pierson v. Kingman Milling Co. (p. 272), in which an
injured workman signed a release on the presumption that he was
secured in employment for life. The court held that the contract
should be made to conform to the oral representations made at the
time, and that such a contract was enforceable, not being within the
statute of frauds, and not void for indefiniteness. The proper form
of procedure in case of the breach of a contract of this nature was
considered in Pennsylvania Co. v. Good (p. 57), the plaintiff being
held in this instance to be barred by the statute of limitations. That
an employee may properly be discharged before the end of the term for
which he was engaged when he violates the rules of his employer was
held in Corley v. Rivers (p. 274). The effect of the terms used in a
contract for employment was considered in Resener v. Watts, Ritter &
Co. (p. 275), the court holding that, in the absence of other facts, a
hiring on a monthly or yearly salary would be presumed to bo a hiring
at will. It was held in Nesbit v. Giblin (p. 275) that a conditional
resignation must be accepted within a reasonable time if the employer
desires to terminate the contract, and that damages will lie for a dis
charge after conduct which would indicate the purpose of the em
ployer to continue the employment. The liability of an employer
for the wrongful apts of his employees was declared in the case Bir
mingham Ledger Co. v. Buchanan (p. 277), where the agents of a
newspaper company forcibly detained newsboys to prevent their
taking employment with a rival. An unratified assault on a third
party by an employee was held not to make the employer liable in
Matsuda v. Hammond (p. 276); while a judgment declaring the non
liability of the employer for a fatal assault by the employee on a
trespasser was reversed in Tarnowski v. L. S. & M. S. R. Co. (p. 278).
The existence of the relation of employer and employee came up
for consideration in some cases in which workmen were being trans
ported to or from their places of employment. In Indianapolis
T. & T. Co. v. Isgrig (p. 2S8) it was held that a street railway employee
riding home on a pass containing a stipulation exempting the com
pany from liability for death or injury while using the same was a
passenger and entitled to protection as such, the pass being presumed to
be a part of the employee’s wages, and not a gratuity. In Klinck v.
Chicago Street Ry. Co. (p. 289) the same view was taken; while in
Charleston & W. C. R Co. v. Thompson (p. 103), this principle was
held to apply to the members of an employee’s family riding on a pass,
85590°— Bull. 169— 15------ 2

BULLETIN OF THE BUREAU OF LABOR STATISTICS.

such pass being held to be a part of the employee’s compensation,
and permissible as such under the Federal law known as the “ Hep
burn Act.” A fireman riding as a passenger on an engine in violation
of rules was held to be a trespasser, for whose death by accident the
company was not liable (Dixon v. Central of Ga. Ry. Co., p. 289).
The right of an employee to recover damages where a third party
interferes to procure his discharge was considered in Bausbach v.
Reiii (p. 294), in which a verdict in favor of a group of workmen who
were charged with conspiracy to procure the discharge of an em
ployee was reversed, and a new trial ordered. In Johnson v. Aetna
Life Ins. Co. (p. 292) it was held that while a letter demanding the
discharge of an employee was prima facie evidence of interference,
the evidence failed to disclose the causal connection necessary, and
the company was held not to be liable in this case. In another case,
Heffernan v. Whittlsey (p. 296), an employee secured the discharge
of his rival, who thereupon sued the company and the interfering
employee. Conspiracy was not found, nor was there sufficient evi
dence to support the charge of malice against the company, so that it
was discharged from liability, while the worker who instigated the
charges was held liable in damages.
WAGES.

The question of minimum wages received its first notice in the
courts of this country last year in connection with the Oregon statute.
In Stettler v. O’Hara (p. 173) the constitutionality of the statute was
upheld, and the power of the commission to which its enforcement
was committed to make local and specific applications of the act was
affirmed. In Simpson v. O’Hara (p. 172) the act was again held to
be constitutional, as not being inimical to the provisions of the
fourteenth amendment to the Federal Constitution. The rate of
wages was considered in another aspect in Wright v. Hoctor (p. 186),
a statute requiring union labor to be employed and fixing the rate of
wages at $2 per day being held unconstitutional.
The question of rates fixed by ordinance was involved in the case
Malette v. City of Spokane (p. 191). In this case the validity of the
ordinance was sustained, as within the power of the State to deter
mine under what conditions it would make contracts, acting through
its municipalities.
The question of the time of the payment of wages arose in Erie
R. Co. v. Williams (p. 195), the New York law requiring semimonthly
payment of wages by railroads, etc., being held constitutional by the
Supreme Court of the United States. The Supreme Court of Tennes
see (SJate v. Prudential Coal Co., p. 196) held unconstitutional a law
of that State providing for a semimonthly pay day for corporations
running a commissary or supply store, and providing penalties for

REVIEW OF DECISIONS OF COURTS AFFECTING LABOR.

f ailure to comply with the act, the ground being that since an employer
who violated the act might be imprisoned for such violation, the spirit
of the law which forbids imprisonment for debt was contravened, so
that the statute must fall. The requirement of the redemption of
scrip is embodied in a Virginia statute which was before the Supreme
Court of the United States in the case Keokee Consolidated Coke Co.
v. Taylor (p. 190), the constitutionality of a law requiring mining and
manufacturing companies to redeem in cash store orders issued by
them as payable only in merchandise being affirmed. The same view
is taken of a very similar point in Regan v. Tremont Lumber Co.
(p. 189), the Supreme Court of Louisiana upholding the statute of that
State.
Statutes providing penalties for failure of the employer to pay
wages due workmen on their discharge were considered in two cases.
In Kirven v. Wilds (p. 190) the Supreme Court of South Carolina
affirmed a judgment for a penalty awarded a discharged workman by
the court below, while in C. C. C. & St. L. R. Co. v. Schuler (p. 190)
the Supreme Court of Indiana declared unconstitutional a statute
providing a cumulative penalty for the failure of railroad companies
to pay their workmen any wages due on the termination of employ
ment.
A statute of Indiana requiring assignments of wages of a married
man to have the written consent of his wife was considered in C. C.
C. & St. L. R. Co. v. Marshall (p. 188), this provision being sustained
as constitutional and of general application, and not restricted to
wage brokers only.
That an employer should not be held for the mistaken payment of
wages to a person fraudulently holding an identification card, the
employer himself not being negligent, was held in Roumelitis v. M. P.
R. Co. (p. 338). Under this head may be noted the case Hughes v.
Traeger (p. 56), under which a civil-service employee undertook to
prevent the retention of any portion of his salary for the establishment
of a pension fund. The provision of the law authorizing such reten
tion was held to be constitutional.
The constitutionality of the mechanics’ lien law of Illinois was con
sidered in Rittenhouse & Embree Co. v. Wm. Wrigley, jr., Co. (p. 167).
The statute undertook to permit a subcontractor to secure a lien the
same as a contractor, whether or not the contractor could obtain the
lien or was by his contract or conduct divested of a right thereto.
This provision of the act was held to be unconstitutional. The ques
tion of constitutionality with reference to the mechanics' lien law of
Wyoming was raised in the case Becker v. Hopper (p. 168). The
point involved was as to the right of a subcontractor to a mechanic's
lien in the absence of a direct contractual relation with the owner of
the property. The court held that the statute giving a lien under
such circumstances is valid. Another provision of the same statute

BULLETIN OF THE BUREAU OF LABOR STATISTICS,

allowed attorneys’ fees to the plaintiff or complainant in case ho was
successful, no reciprocal benefit being allowed a successful defendant.
This provision was held to be unconstitutional, as not affording the
equal protection of the law to the respective parties. The effect on
a subcontractor’s rights of a stipulation by a contractor that no
mechanics’ liens should be filed was before the Supreme Court of Ore
gon in the case Hume v. Seattle Dock Co. (p. 169), the court holding
that such stipulation could not preclude the subcontractor’s rights.
Questions of the lienability of certain classes of material were also
considered in this case.
HOURS OF LABOR.

Laws limiting the hours of labor on public works were considered
in four cases, the Federal statute of August 1, 1892, being before the
court in Chattanooga & Tennessee River Power Co. v. United States
(p. 119), the defendants claiming that the fact that the lock and dam
on which they were engaged would furnish them water power took
the work out of the statute. This contention was rejected by the
court on the ground that the Government had let the contract for the
purpose of procuring a benefit to navigation, and that the incidental
use of the power developed did not control. The eight-hour law of
Oregon was considered in two cases, in one, Ex parte Steiner (p. 116),
the superintendent of the State hospital was convicted of violation
of the law in requiring a laborer on the asylum farm to work for more
than eight hours; in the other case, Albee v. Weinberger (p. 117), the
mayor of Portland was arrested for a violation of the law in per
mitting and requiring a fireman and a policeman to work for more
than eight hours. The supreme court of the State held that such
employment was not a violation of the law. The question of the
constitutionality of a Maryland statute applicable to contractors with
the city of Baltimore was considered in Sweetser v. State (p. 118).
The statute was upheld against the contention of depriving contractors
of property without due process of law, and of discrimination on
account of being applicable only to the city of Baltimore.
Private employment is regulated by a general statute of Oregon
limiting to 10 per day the hours of labor of employees in mills, fac
tories, etc. This statute was declared to be constitutional in State
v. Bunting (p. 120). An ordinance of the city of San Francisco pro
hibiting work in laundries between the hours of 6 p. m. and 7 a. m.
was held by the Supreme Court of California to be constitutional in
Ex parte Wong Wing (p. 116). The constitutionality of a statute
limited in its application to women and children was contested in
Riley v. Massachusetts (p. 121), the Supreme Court of the United
States sustaining its constitutionality, including the detail requiring
the posting of a schedule of work time and penalizing any departure
therefrom.

REVIEW OF DECISIONS OF COURTS AFFECTING LABOR.

The Federal hours of service act for railway employees gave rise
to a considerable number of decisions. The question of emergency
was considered in United States v. N. P. R. Co. (p. 122), in which a
train wreck delayed the return of the crew so that it had a six and
one-half hours’ rest instead of eight hours as required by the statute,
the company being held excusable. In United States v. A. T. & S.
F. R. Co. (p. 130) it was held that a wreck causing a delay after the
employee had left a terminal was a justifiable cause for overtime
work, even though a lay off might have been made at an intermediate
station other than the starting point of the crew; the attempt to haul
a damaged car by means of a chain in violation of the statute was
held, however, to be such a cause for delay as could have been
avoided, and not an emergency within the meaning of the act.
Where trains were delayed by a heavy snowstorm and the crews laid
off to avoid violation of the 16-hour law, it was held (N. P. R. Co. v.
United States p. 125) that keeping a fireman on duty to watch and
keep up fires was such a violation of the statute as to incur penalties.
The same conclusion was reached in G. N. R. Co. v. United States
(p. 127), where a fireman was required to watch an engine while tied
up at a siding, the court holding that such service was within the law
governing the “ movement” of trains.
A technical violation of the law was admitted by the defendant
in United States v. C. M. & St. P. R. Co. (p. 131), where the water
that had to be used for the engine was warm and impure and the
injectors of the engine, though in good condition, failed to work
properly, but the situation was held to be one of unavoidable acci
dent. The death of a member of the household of a telegraph opera
tor and the sickness of such operator were held to excuse the rail
road company in United States v. N. Y. O. & W. Ry. Co. (p. 131) in
a proceeding to recover penalties under the hours of service act;
so also of the sickness of an operator in the case United States v.
S. P. Co. (p. 124).
The Federal statute in its application to telegraph operators
makes a distinction between offices operated continuously and those
operated only during ,the daytime. It was held in United States v.
A. C. L. R. Co. (p. 128) that an office regularly kept open from 6.30
a. m. to 10.15 p. m. was one continuously operated, so that the 9-hour
limit must control. So in United States v. M. K. & T. R. Co. (p. 128)
the employment of an operator from 8 a. m. to 12 noon and from
1 p. m. to 7 p. m., and another from 7 p. m. to 12 midnight and from
1 a. m. to 6 a, m., was held to be continuous service within the mean
ing of the act. A telegraph operator working overtime, although he
had instructions not to do so, was held to have violated the law so
that his employer was liable in United States v. O.-W. R. & N. Co.
(p. 129), since it is an absolute and positive duty of the carrier to

BULLETIN OF THE BUREAU OF LABOR STATISTICS.

enforce the law, and nonperformance is not excused by the plea of
reasonable diligence.
A switch tender was held in M. P. R. Co. v. United States (p. 129)
not to be classed with “ operators, train dispatchers, etc.,” whose
hours of service are limited to 9 per day.
Employees whose train was delayed by waiting while other trains
were passing, and who were relieved for an hour and a half in the
meantime by a switching crew, were held to be continuously on duty
in United States v. N. P. R. Co. (p. 133), the court saying that if the
rest period could be thus broken up into small fragments there
would be no sufficient opportunity for either sleep or rest. In
Osborne’s Admr. v. C. N. O. & T. P. R. Co. (p. 125) an employee riding
free under orders, or “ deadheading,” was held not to be during such
time on duty so as to come within the provisions of the 16-hour law.
A New York statute regulating the hours of service of railroad em
ployees was held in Erie R. Co. v. New York (p. 123) to be void after the
enactment of the Federal statute on the subject, even though the
latter law was not to go into effect until a subsequent date, the
Supreme Court of the United States holding that when Congress so
acts as to indicate its purpose to take charge of a subject within its
powers, the regulating power of the State ceases to exist.
FACTORY REGULATIONS.

The constitutionality of the Illinois law requiring certain employ
ers to furnish wash rooms was before the court in People v. Solomon
(p. 115), the contention being that it was discriminatory as well as
unreasonable and ambiguous. These contentions were rejected by
the court, and the constitutionality of the law upheld.
RAILROADS.

With a single exception the cases under this head relate to the
Federal safety appliance law, the exception being the case Atlantic
C. L. R. Co. v. Georgia (p. 182), in which the Supreme Court of the
United States upheld as constitutional a statute of Georgia prescrib
ing the headlight equipment for railroad locomotives, with certain
exceptions as to tramroads, mill roads, etc.
In Spokane & Inland Empire R. Co. v. United States (p. 179) the
circuit court of appeals held that the Federal safety appliance law was
applicable to an interurban electric line. The statute was held also to
apply to a terminal or transfer company handling interstate cars (La
Mere v. Ry. Transfer Co., p. 181). In Chicago, B. & Q. R. Co. v. United
States (p. 179) it was held that the prohibition against handling cars
with defective coupling apparatus applied to switching operations
as well as to long hauls, but that the requirement of the coupling of

EEVIEW OF DECISIONS OF COURTS AFFECTING LABOR.

the air brakes on 50 per cent of the cars of a train was not applica
ble in switching movements between yards 2 miles apart. The oppo
site view was taken with reference to air brakes in United States v.
Pere Marquette R. Co. (p. 180). In United States v. C. & O. R. Co.
(p. 183) the repeated handling in switching of a car with a defective
apparatus was held to constitute a violation of the statute.
MINES.

A statute of Pennsylvania authorizes and provides for the consti
tution of a board to decide as to pillars and boundaries between
adjacent mining properties. The constitutionality of this act and
the status of such a commission were considered in Plymouth Coal Co.
v. Pennsylvania (p. 170), the Supreme Court of the United States
upholding the act as valid. The Ohio Legislature in 1914 provided
for the weighing of coal at mines, authorizing the industrial commis
sion of the State to enforce the provisions of the act, and to use its
discretion in fixing a standard to be observed. The contention was
made that such a law is unconstitutional, interfering with the em
ployers’ rights. This contention was rejected in Rail & River Coal
Co. v. Yaple (p. 171), the presumption being that the commission
would proceed in accordance with the terms of the act, while if it
should not, an appeal would lie to the courts of the State. The min
ing law of Alabama, as enacted in 1896-97, prohibited employment of
boys under 12 years of age in coal mines in the State. In the code
revision the age limit was advanced to 14 years, and the expression
“ any mine” incorporated in the act. This was held in Cole v. SlossSheffield Steel & Iron Co. (p. 113) to make the act applicable to ore
mines as well as to coal mines.
RESTRICTIONS OF EMPLOYMENT.

A statute of Texas provided for the establishment of local boards
to examine and certify plumbers as a condition precedent to their
engaging in their occupation. This statute was held in Davis v.
Holland (p. 114) to be unconstitutional because permitting all mem
bers of a partnership to practice if only one has been certified, while
individual plumbers must each secure a license, so that the law was
of unequal application. The Supreme Court of the United States in
Smith v. Texas (p. 178) held unconstitutional a statute of Texas
restricting the employment of railroad conductors to persons who had
had certain specified experience, the court holding that the require
ments were arbitrary and unreasonable, and so in violation of the
fourteenth amendment to the Constitution of the United States.
Under this head may be noticed the restriction on the importation
under contract, etc., of alien laborers. In United States v. Dwight

BULLETIN OF THE BUREAU OF LABOR STATISTICS.

Mfg. Co. (p. 47) the questions of what constitutes “ an offer of employ
ment” within the meaning of the act, and a proper declaration of the
violation of the act were discussed at some length, the conclusion
being reached that the prosecution had been brought in due form.
In Grant Bros. Construction Co. v. United States, (p. 48) the liability
of the company for the acts of its agents and the propriety of assess
ing separate penalties for each laborer brought in in violation of the
law, even though all came at the same time, were upheld by the
Supreme Court of the United States.
Other cases that may be considered here for lack of a better clas
sification relate to the employment of convicts. A Virginia statute,
known as the convict lime grinding act, provides for the manufac
ture and sale of lime, convicts being employed to do the work. In
Shenandoah Lime Co. v. Mann (p. 58) the constitutionality of this
law was upheld as against the contention of the company that the
State was thus engaging in internal improvement and using public
funds for private purposes in violation of the statute. In Tennessee
C. I. & R. Co. v. Butler (p. 60) the plaintiff was permitted to recover
a balance claimed by him on account of being kept at work under a
sentence to work out costs for a longer time than the law permitted.
For the same reason as the above a case involving the constitution
ality of a city ordinance prohibiting the keeping open of barber shops
on Sunday (City of Marengo v. Rowland, p. 186) is noted here, the
ordinance in question being declared unconstitutional as discriminat
ing against a single business.
WOMEN AND CHILDREN.

The status of youthful employees and children employed under
lawful age is considered under the headings “ Liability of employers
for injuries to employees” (Sturges & Burn Mfg. Co. v. Beauchamp,
p. 64; McCarty v. R. E. Wood Lumber Co., p. 284; Adams v. C. & O.
R. Co., p. 286); “ Workmen’s compensation’' (Hillestad v. Industrial
Commission, p. 269); and a case relating to woman labor appears
under “ Hours of labor” (Riley v. Massachusetts, p. 121).
Laws that relate somewhat indirectly to employment, but that
contemplate the care of children until they attain a suitable age to
work, are those known as “ Mothers’ pension laws.” The Iowa stat
ute on this subject providing for the care of the children of widows
was held not to cover the case of the children of a divorced woman
(Debrot v. Marion County, p. 177).
LIABILITY OF EMPLOYERS FOR INJURIES TO EMPLOYEES.

The validity of an Indiana statute was decided in Vandalia R. Co.
v. Stilwell (p. 60), the law distinguishing between the defenses avail
able for employers of five or more persons and those employing a less
number. The court in this case held such a provision constitutional.

REVIEW OF DECISIONS OF COURTS AFFECTING LABOR.

The abrogation of defenses by the statute was also upheld. A like
question arose in Easterling Lumber Co. v. Pierce (p. 62), in which
the company contended that a statute of Mississippi extending to
uother corporations and individuals using engines” the liability fixed
by the constitution for railroad corporations was invalid. This con
tention was rejected by the supreme court of the State, and the abro
gation of the defense of fellow service upheld. The Supreme Court
of Illinois (Crooks v. Tazewell Coal Co., p. 61) had before it the valid
ity of the workmen’s compensation act of that State in its effect on
the defenses of an employer not accepting its provisions, the court
holding that even though the employee had accepted the statute, if
the employer rejected it, it did not apply, and damages at common
law would be recoverable in a proper case.
The incompetence of a fellow servant was held the cause of liability
of the employer in Walters ^.Durham Lumber Co. (p. 283), the court
holding that a workman assumed the risk of negligence of his fellow
servant, but not of the negligence of the employer in selecting incom
petent employees.
The employing company was held liable for injuries to a boy under
16 years of age employed at a punch press in violation of the stat
ute of Illinois which permits the employment of children over 14,
but restricts the employment of those under 16 years of age at desig
nated dangerous employments (Sturges& Burn Mfg. Co.v. Beauchamp
(p. 64). The Supreme Court of the United States held that classifi
cations of this nature were within the power of the State, and did not
violate the rule as to due process of law. The rule as to minority was
before the Supreme Court of West Virginia in Adams v. C. &. O. R. Co.
(p. 286), under the principles of common law. In this case a 17 year
old boy was kept on duty as a section hand for about 20 consecutive
hours, and the court ruled that on account of his youth he could not
be held to be presumed to have fully appreciated the danger of such
extraordinary employment. In another case before the same court,
McCarty v. R. E. Wood Lumber Co. (p. 284), the duty of the employer
to instruct an inexperienced youth was emphasized, and the failure to
do so was held to charge the employer with liability for a resultant
injury.
A number of decisions turned on the failure of the employer to
provide or maintain guards for dangerous machinery. Thus in Pulse
v. Spencer (p. 69) it was held the duty of the employer to see that a
guard was in place when it was feasible, even though there might be
times when under the statute it might be removed for certain opera
tions, and that the employee in removing the guard at such times was
not guilty of negli ;enco as a matter of law. An unguarded wringer or
extractor in a laundry was held to be within the provisions of a West
Virginia statute requiring machinery to be guarded in manufacturing
or mercantile, etc., establishments (McClarv v. Knight, p. 65). In

BULLETIN OF THE BUREAU OF LABOR STATISTICS.

Phillips v. Hamilton Brown Shoe Co. (p. 66) the question was considered
as to whether an injury not due to contact with an unguarded ma
chine, but due to flying objects thrown from the machine, was within
the statute requiring guards for dangerous machinery; the court held
that the law covered such a condition, and in the absence of contribu
tory negligence recovery might be had for the employer's negligence in
failing to provide the necessary protection. A somewhat similar
point was involved in Smith v. Mt. Clemens Sugar Co. (p. 68), in
which it was contended that a gearing did not require a guard because
so far removed from the floor as not to be dangerous. It was held
that since employees were required to approach this gearing several
times daily, that contention could not be maintained. The question
of proximate cause arose in C. H. & D. R. Co. v. Armuth (p. 67), an
employee's hand having been caught in unguarded cogwheels when it
slipped from a lever which he was operating. The failure to guard
the machinery and the slipping of the hand were considered to be
concurring causes, and the former, being in violation of the statute,
was the proximate cause, and entailed liability unless the employee
was negligent in permitting his hand to slip.
Negligence in the discharge of the common-law duty of warning
the employee of new dangers was held to make the employer liable
for injuries to a strike guard sent to a point to which deputy marshals
had also been summoned, neither party being informed of the other's
presence or purpose (McCalman v. I. C. R. Co., p. 290).
Several liability cases involved the construction of statutes regu
lating the operation of mines. Thus the Supreme Court of the
United States (Myers v. Pittsburgh Coal Co., p. 70) reversed the
judgment of the circuit court of appeals and affirmed the judgment
of the trial court in a case involving the liability of the employing
company for the death of a man from electric shock, the court hold
ing that the employment of a certified foreman did not relieve the
company from responsibility where the electrical installation was not
in charge of such foreman. In Humphreys v. Raleigh Coal & Coke
Co. (p. 70) the Supreme Court of West Virginia reached the same
conclusion in a very similar case, the court holding that the employ
ment of a mine foreman was not intended to absolve the employer
from his duty as to equipment and maintenance. Failure to employ
a mining boss to inspect the mine was held to be the proximate
cause of an injury in Baisdrenghien v. M. K. & T. R. Co. (p. 71); so
also in Piazzi v. Kerens-Donnewald Coal Co. (p. 72), where, though an
inspector was employed, he had not marked a dangerous place. The
mine law of Oklahoma was held in Big Jack Mining Co. v. Parkinson
(p. 72) to apply to lead and zinc mines no less than to coal mines.
Violation of the statute as to hoisting was considered by the Supreme
Court of Montana, the court finding that under the rule the deceased

REVIEW OF DECISIONS OF COURTS AFFECTING LABOR.

workman was, in effect, a station tender and that his death was due
to his own negligence, so that no recovery could be had (Maronen v.
Anaconda Copper Mining Co., p. 73).
The regulation of railroad operations by statute afforded the basis
for a number of decisions that have been reproduced, the principal
statute taken account of being the Federal liability act of 1908. The
hours of service law and the safety appliance laws are also involved in
some cases. The liability act referred to abrogates the defense of
assumption of risk where the violation of safety statutes contributes
to the injuries complained of, but the defense was held to be available
in Farley v. N. Y. N. H. & H. R. Co. (p. 81), where a locomotive
engineer was killed by contact with electric wires, he being held to
have assumed the risk. The question of contributory negligence was
considered in Pennsylvania Co. v. Cole (p. 82), in which the rule
for the comparison of the negligence of the employer and the con
tributory negligence of the employee was discussed.
The Supreme Court of the United States (N. C. R. Co. v. Zachary,
p. 83) insisted on the exclusive application of the Federal statute to
cases coming within its scope; an employee absent for a brief time
from his engine on a personal errand was held nevertheless to be on
duty at the time and engaged in interstate commerce. The relation
ship of Federal and State statutes is also considered in Jones v.
C. & W. C. R. Co. (p. 78), the result in the instant case being that no
recovery could be had for the death of a man who left no dependents,
though if the State law had prevailed relatives might have recovered
damages. So in Taylor v. Taylor (p. 79), where the father of a
deceased workman sued to procure the paying over to himself in
accordance with a statute of New York of one-half the damages recov
ered by the widow under the Federal statute, the Supreme Court of
the United States held that the State law could not be effective, the
Federal statute controlling, and reversed a contrary judgment of the
New York Court of Appeals. In Wabash R. Co. v. Hayes (p. 77) an
action brought under the Federal act but shown on trial not to involve
an interstate question, was decided in the same suit under the common
law in force in the State, such proceeding being approved by the
Supreme Court. The relation of State and Federal statutes in their
attempts to secure the use of safety appliances was passed upon by
the Supreme Court of the United States in a case (S. A. L. R. Co. v.
Horton, p. 80) in which a judgment of the Supreme Court of North
Carolina that sought to make operative a State statute was reversed,
the Supreme Court holding that the Federal law must be considered
as excluding supplementary legislation in that field. Negligence of
the employer in his failure to comply with safety appliance laws was
offered as ground for recovery in Pennell v. P. & R. R. Co. (p. 102), the
Supreme Court of the United States holding that the statute requiring

BULLETIN OF THE BUREAU OP LABOR STATISTICS.

automatic couplers did not require such a device between the tender
and engine, so that the company was not liable for a failure to provide
one. In Dodge v. C. G. W. R. Co. (p. 102) a defective coupling at the
rear of the last car of a train, though perhaps indirectly responsible
for a derailment, was held not to be a violation of the safety appliance
act. The status of a workman riding home was also considered in
this case, the court holding that he was in the present instance a mere
licensee, exercising at his own risk the privilege that he was taking.
The provisions of the Federal statute as to accepting benefits from
relief associations were considered in Hogarty v. P. & R. R. Co. (p. 84),
the case having been first tried under the State law, the trial result
ing m a verdict in favor of the defendant company. The Supreme
Court of Pennsylvania held that though the Federal statute was not
brought into the case until the special defense was entered upon, the
plaintiff was entitled to a trial under that statute under the rule of
the Supreme Court of the United States that it must be considered as
enforceable by the State courts the same as State legislation, and
under it the acceptance of relief benefits would not exempt from the
right to further recovery. Failure of the plaintiff to expressly base
his case on the Federal statute was held by the Supreme Court of the
United States (G. T. W. R. Co. v. Lindsay, p. 99) not to prevent a re
covery under the act. Another point considered in this case was as
to the doctrine of comparative negligence laid down by the act in
question, the court holding that contributory negligence on the part
of the employee would in no wise diminish the recovery where the
injury is due to the employer’s failure to conform to the Federal
safety laws. The acceptance of relief benefits from one of two parties
charged with liability for an injury was involved in Wagner v. C. &
A. R. Co. (p. 100). The company sued was not the plaintiff’s em
ployer, but was the owner of the tracks over which his employer’s
train was running at the time of the injury. The Federal statute
therefore did not apply as between the present parties, since the rela
tion of employer and employee did not exist. It did apply, however,
between the plaintiff and his employer company, which had paid
relief benefits and taken a purported release from further liability,
which release the present defendant sought to present as a bar to
further action. Since under the Federal statute such payments of
relief benefits would not bar an action as against an employer, the
court held that it was invalid as against the plaintiff in the present
case.
The absence of the proof of negligence on the part of the company,
as viewed by the Court of Appeals of Kentucky, led to a reversal of a
judgment of the trial court in C. N. O. & T. P. R. Co. v. Swann’s Admx.
(p. 98); while in Reeve v. N. P. R. Co. (p. 99) the term “ negligence” as
used in the act was held to mean negligence in the performance of

REVIEW OF DECISIONS OF COURTS AFFECTING LABOR.

aome duty, so that an injury to a workman caused by horseplay of
fellow employees was held not to give rise to an action.
A point in frequent litigation is as to the scope of the Federal
statute, or the limits set to its application by the term “ interstate
commerce.” Thus a brakeman setting an intrastate car into an inter
state train was held by the Supreme Court of Kansas to be within the
act. The car in question had a defective coupler, and the point was
raised as to the application of the Federal safety appliance law to it;
the court held that the law was intended to embrace all cars used
on railroads which are highways of interstate commerce (Thornbro
v. K. C. M. & O. R. Co., p. 85). Other employees held by the
different courts to be within the act were a blacksmith repairing
cars used in interstate commerce (Opsahl v. N. P. R. Co., p. 94); a
boiler maker repairing an engine used in interstate commerce (Law v.
I. C. R. Co., p. 94); a telegraph linema.n engaged in repairing lines
used in directing the operation of interstate trains (Deal v. Coal &
Coke R. Co., p. 95); an engineer going into a roundhouse to look
after repairs to his engine used on an interstate run (Padgett v. S. A.
L. R. Co., p. 90); an engineer testing his engine after repairs prior
to going on an interstate rim (Lloyd v. S. R. Co., p. 96); a workman
installing a block-signal system (Saunders v. S. R. Co., p. 92); an
employee returning from work on a block-signal system riding on a
motor tricycle to his boarding place in cars furnished by the company
(Grow v. O. S. L. R. Co., p. 92); a workman engaged in building an
addition to a freight shed (Eng v. S. P. Co., p. 86); an employee car
rying coal to heat a repair shop (Cousins v. I. C. R. C., p. 88); a track
worker injured while asleep in his shanty car on a sidetrack (Sanders
v. C. & W. C. R. Co., p. 89); and employees engaged in weighing
empty cars after interstate transportation to determine the net weight
of contents (Wheeling Terminal Co. v. Russell, p. 97). The follow
ing were held to be excluded: A workman engaged on the construc
tion of a new bridge on a cut-off (Bravis v. C. M. & St. P. R. Co.,
p. 87); a tunnel worker on a cut-off not yet in use (Jackson v. C. M.
& St. P. R. Co., p. 88); a fireman on a switch engine handling inter
state and intrastate traffic indiscriminately, at the time of the injury
moving several cars loaded with freight wholly intrastate (I. C. R.
Co. v. Behrens, p. 91); and a hostler in a railroad roundhouse killed
by the explosion of the boiler of a locomotive whose last run was
intrastate (La Casse v. N. O. T. & M. R. Co., p. 96). The Federal
statute was also held not to apply to the operations of a private
road handling logs to be sent to mills within the State of origin
(Bay v. Merrill & Ring Lumber Co., p. 97).
The question of beneficiaries under the act was considered in Ken
ney v. S. A. L. R. Co. (p. 81), the Supreme Court of North Carolina
holding that a statute of that State defining the rights of inheritance

BULLETIN OF THE BUREAU OF LABOR STATISTICS.

from illegitimate children determined who might be beneficiaries
under the Federal act.
State statutes regulating railway service present a few points that
were considered of importance, among these being a case (George v.
Q. O. & K. C. R. Co., p. 75) in which the Missouri statute requiring
frogs, etc., in yards to be blocked as a matter of safety to persons
employed in such yards was construed. Against the company’s con
tention that a sidetrack at a station was not a yard within the mean
ing of the statute, the court held that the portion of the tracks around
every station used for the purpose of switching or placing cars is a
yard. Another definition required was that of the term “ car,” as
used in a Florida statute which makes the company liable for injuries
caused by agents or coemployees in running cars or other machinery;
in McGrady v. C. H. & N. R. Co. (p. 75) a hand car was held to be a
car within the meaning of the act, and the work of placing it on a
track was declared a part of the running of such car. In Hughes v.
I. U. T. Co. (p. 77) the fellow-servant law of Indiana applicable to
railroads was held not to cover electric roads. A somewhat different
view was taken in a case (Spokane & I. E. R. Co. v. Campbell, p. 106)
in which the Federal safety appliance law was held to apply to electric
trains. (See also Spokane & I. E. R. Co. v. United States, p. 179.)
The train in question was in interstate use, and a failure to supply
the equipment of train brakes, etc., was held to fix the employer’s
liability for an injury due to insufficient brakes. That a laborer
unloading ties on the roadbed for an extension of a railroad line in
process of construction was engaged in the operation of the railroad
within the terms of the Missouri statute was held in Sartain v. J. C.
T. Co. (p. 104).
A Pennsylvania statute fixes the liability of the employer where
injury results from negligent orders to which the subordinate was
bound to conform. This statute was held to apply in Ainsley v. P. C.
C. & St. L. R. Co. (p. 105), where a brakeman went down the steps
of a moving car in an effort to locate the defect in a brake that was
not working properly; so also in Chicago & Erie R. Co. v. Lain (p. 105),
where a similar statute of Indiana was held to support recovery in a
case in which the plaintiff was injured while occupying a position of
danger in accordance with his foreman’s orders. The point was also
made that the injured workman, being what is known as a yard and
bridge man, was not engaged in the movement of trains and so was
not within the act. This contention the court rejected, stating that
since his duties exposed him to the dangers of the movement of trains,
he was protected by the statute. At common law also the employee
may depend on the employer’s orders and recover in case injury fol
lows negligence in this respect (Magnuson v. MacAdam, p. 285).

REVIEW OF DECISIONS OF COURTS AFFECTING LABOR.

The United States Supreme Court upheld a judgment affirmed by
the Georgia Court of Appeals rendered under an Alabama statute
which fixed the liability of the employer, but provided that actions
under it must be brought in the courts of the State of Alabama and
not elsewhere. The Georgia courts held that they could take juris
diction under the act regardless of this limitation, which view was
approved by the Supreme Court (Tennessee C. I. & R. Co. v. George,
p. 107).
The violation of a city ordinance limiting the speed of trains through
the municipality was held in Wabash R. Co. v. Gretzinger (p. 76) to
be the proximate cause of the death of a freight conductor whose train
was on a sidetrack, the switch leading to which had been opened by
some unknown person after having been closed and locked.
Negligence in failing to properly and safely guard machinery to
prevent injury to employees was claimed in Byland v. E. I. du Pont
de Nemours Powder Co. (p. 73), the negligence consisting in allowing
metallic nuts to fall into a powder-mixing machine, resulting in an
explosion in which the plaintiff was injured. The connection in this
case was held not to be direct enough to bring it within the act. It
was also held that a prima facie case of negligence could not be made
in a liability suit merely by reliance on the doctrine of res ipsa
loquitur.
The necessity of an adequate compliance with the requirements
prescribed by statute was emphasized in McClaugherty v. Rogue River
Electric Co. (p. 108), the statute in question being one regulating elec
tric installations. In Rosholt v. Worden-Alien Co. (p. 110) the dis
tinction between the common law and the statute applicable to the
case in hand is pointed out, and the liability of the company was then
affirmed because of its failure to make an elevated runway safe within
the meaning of the statute. A similar law of New York was under
consideration in Bornhoff v. Fischer (p. Ill), the duty of the employer
to furnish a proper scaffolding being held to be nondelegable.
If a machine was known to be dangerous, even if of an approved
type and make, the employer may still be held to liability for failure
to make it safe (Ainsley v. John L. Roper Lumber Co., p. 287).
The negligence of a repair man in taking a place of danger without
notice to persons moving trains on the tracks in the vicinity was held
to bar a recovery for his death in Stone v. A. C. L. R. Co. (p. 286).
Somewhat technical features were considered in cases decided by
the highest courts of Massachusetts and New York, the question of
sufficiency of notice being decided in the plaintiff’s favor in the former
court in Meniz v. Quissett Mills (p. 112), the attorneys retained by the
plaintiff to assist him, having written a letter to the defendant, within
the proper period, stating that they had been retained to prosecute
the case, mentioning the circumstances, time, and place of the injury.
In Rodzborski v. American Sugar Refining Co. (p. 112) the New York

BULLETIN OF THE BUREAU OF LABOR STATISTICS.

Court of Appeals held that a letter simply asking that the case of the
injured man be investigated, without statement as to the cause of the
injury, was not sufficient compliance with the terms of the statute.
The right of an injured employee to elect his remedy after the injury
was maintained by the Supreme Court of Arizona in Consolidated
Arizona Smelting Co. v. Ujack (p. 109), that State having a workmen’s
compensation act and a liability statute, while a common-law action
was held also to be possible. The power of a claimant to make a
choice of rights was before the Supreme Court of Washington in Long,
fellow v. City of Seattle (p. 74). In this case the widow of a city
fireman had claimed and procured the allowance of a pension for her
self and minor daughter under a State law and subsequently sued for
damages. This action was held to be barred by the acceptance of
the pension benefits, this ruling applying to the mother; as to the
daughter, who had no rights under the pension fund, it was held that
she might proceed in an action to recover damages.
That the work of keeping clean the streets of a city is a govern
mental function in the exercise of which a municipality will not be
liable for injuries to an employee was held in Mayor and Aldermen of
City of Savannah v. Jordan (p. 284), even though the superiors of the
injured workman knew of the defective condition of the instrumen
tality causing the injury.
WORKMEN'S COMPENSATION.

As indicated in the introduction, the importance of securing
authoritative definitions of the terms used in this new class of laws is
doubtless responsible for the fact that a considerable number of cases
have been brought to the courts of last resort under these acts.
Administration by commissions, and the simplification of legal pro
cesses where actions at law are resorted to, have certainly done much
to relieve the courts of the burden of litigation in damage suits, and
the cases appearing in the Reporter System for the year are practi
cally all presented in this bulletin with greater or less fullness. Ques
tions of constitutionality have been raised in comparatively few
cases, the courts in the larger number of the States in which compen
sation laws have been enacted having already passed upon the general
question. This question was raised, however, in a case under the
Illinois statute (Deibeikis v. Link-Belt Co., p. 216), in which the
plaintiff sought to recover in a suit at law even though both he and his
employer had accepted the terms of the elective compensation act of
the State, and certain payments had been made thereunder. Seven
main contentions were made against the act, all being overruled by
the court, largely on the ground that the act was elective in form and
effect—a fact which even the abrogation of defenses in cases where it
was not accepted did not modify. The Minnesota statute was also

REVIEW OF DECISIONS OP COURTS AFFECTING LABOR.

called in question, a plaintiff employee claiming that it violated the
provisions of the fifth and fourteenth amendments to the Constitution
of the United States as to protection of rights and equality before the
law (Matheson v. Minneapolis Street Railway Co., p. 218). The law
was sustained in the present instance largely on the same grounds as
in the Deibeikis case, the court ruling that the classifications and
exclusions found in the act did not invalidate it. The Kansas statute
also (Shade v. Ash Grove Lime & Portland Cement Co., p. 224) was
upheld against similar contentions, and the remedy under it was
declared exclusive, emphasis being laid, as in the preceding cases, on
the elective nature of the law as relieving it from the charge of depriv
ing persons by statute of their constitutional rights.
The opposite view was reached by the Kentucky Court of Appeals
in Kentucky State Journal Co. v. Workmen's Compensation Board
(p. 197). This court held that the abrogation of defenses made the
act in fact compulsory, even though elective in form, thus in effect
establishing a limitation on recovery for injuries resulting in death or
for injuries to personal property, in violation of the State constitution.
It may be noted that in this position the court formally rejected the
views of the courts of last resort of a number of States, distinguishing
statutory provisions in some cases, and in others pointing out the
absence of constitutional provisions similar to those existing in Ken
tucky. On a petition for rehearing, which was rejected, specific
suggestions were made as to points to be modified in order to make
such a law constitutional.
Single points were raised in Jeffrey Mfg. Co. v. Blagg (p. 203), in
which the constitutionality of the Ohio statute was sustained by the
Supreme Court of the United States on the point of the exclusion of
small employers from the provisions of the act abrogating defenses;
in Young v. Duncan (p. 221), in which the form of election under the
Massachusetts statute was claimed to deprive the employee of a right
to trial by jury and of property rights, the court overriding this con
tention; and in Huyett v. P. R. Co. (p. 225), in which a technical
question as to the title was raised, the act being sustained. In this
last case also it was decided that the term “ wages” as used in the
act meant actual earnings at the time of the injury, and not any
less or greater amount than might have been customary.
Among the specific terms coming up for definition is the word
“ accident,” this expression being held in Liondale Bleach, Dye &
Paint Works v. Riker (p. 205) to imply a degree of definiteness as to
the specific time or occasion of the occurrence. This was a case in
which the compensation was claimed for an eczema possibly due to
working in acids. The Massachusetts statute substitutes for the
word “ accident” the expression “ personal injury,” and this was held
85590®—Bull. 169—15------3

BULLETIN OF THE BUREAU OF LABOR STATISTICS.

in Johnson v. London Guarantee & Accident Co. (p. 259) to cover the
case of a workman who had become affected with lead poisoning
through continuous exposure. Compensation was also allowed
where a workman suffered from optic neuritis induced by poisonous
coal-tar gases to which he was exposed in inspecting processes of
manufacture (In re Hurle, p. 260). The Michigan statute, on the
other hand, was held in Adams v. Acme White Lead & Color Works
(p. 258) not to include a case of lead poisoning, even though the word
“ accident” was not used, the court holding that the term “ personal in
jury” was evidently meant by the legislature to cover only such cases
as could be sued for under previous statutes, which related to acci
dents only. Under the Washington statute it was held (Zappala v.
Industrial Insurance Commission, p. 240) that a hernia claimed to
have been caused by severe strain was the result of a “ fortuitous
event” for which compensation should be paid, the court overruling
in this instance the finding of the commission.
The statutes are not uniform in the form of expression as to whether
the injury or accident shall arise out of and in the course of employ
ment. In Henry Steers, Inc., v. Dunnewald (p. 206) an accident
that might by inference be supposed to have occurred in the course
of employment was held not to arise out of it, so that no recovery
could be had. The employee in this instance was drowned probably
while on his way to work and near the place of his employment.
Under the same (New Jersey) statute it was held that circumstantial
evidence might support the inference of an injury in the course of
employment (Muzik v. Erie R. Co., p. 249). Compensation was al
lowed under the same statute in Terlecki v. Strauss (p. 241), a case
in which the injury occurred while an employee was combing her
hair to remove particles of wool at the conclusion of the day’s work,
the hair being caught in moving machinery. Anchylosis due to an
infection following the improper treatment of a fracture was held
in Newcomb v. Albertson (p. 247) to be a result of the accident so as
to allow compensation under the New Jersey law. Where the injury
occurred as the result of using a forbidden agency, the Supreme Court
of New Jersey (Reimers v. Proctor Pub. Co., p. 250) held that it was
not an injury arising out of and in the course of the employment.
Compensation was permitted under this act in a case in which a work
man had apparently aggravated a preexisting condition of disease by
forcible exertion, death ensuing (Yoorhees v. Smith Schoonmaker
Co., p. 248).
The Wisconsin statute provides compensation where injury occurs
while one is “ performing service growing out of and incidental to
his employment.” This was held (City of Milwaukee v. Althoff,
p. 266) to cover an injury to a workman on the way to the place of
his employment after he had received instructions from his foreman

REVIEW OF DECISIONS OF COURTS AFFECTING LABOB.

where to go. Under the Michigan statute a workman leaving a roof
for lunch at the invitation of his employer, and injured while coming
down in a way of his own choosing, was held to be within the protec
tion of the act, even though the other workmen came safely by another
course (Clem v. Chalmers Motor Co., p. 242). The question of willful
and intentional misconduct was raised in this case, but the court held
that there was no proof of such conduct as to be a bar to the claim.
In another case under this statute (Hills v. Blair, p. 243) a section hand
on his way home from his working place at noon was held not to be
within the protection of the act, as he had, in effect, left the premises
of his employer, though killed in some unexplained manner along
the right of way of the railroad. The Michigan statute was held
(Rayner v. Sligh Furniture Co., p. 244) to cover the case of an employee
injured while running to punch the time clock when the noon whistle
blew, the rules requiring employees to punch the clock before going
out. Another case under this statute was that of Bayne v. River
side Storage & Cartage Co. (p. 245), where the question of causal con
nection between an alleged sprain and death from pneumonia was
decided favorably to the claimant, the court reaching this conclusion
largely on the finding of fact by the State compensation commission.
Under the Massachusetts law the injury must arise out of and in
course of employment. In the case In re Sundine (p. 244) a girl in
jured while going out to lunch by the use of the only means of access
to the workshop was held to come within the act; so also of an em
ployee who was injured while riding from his place of work in a
wagon furnished by the employer (In re Donovan, p. 245). In the
case Milliken v. A. Towle & Co. (p. 246) the Massachusetts law was
held not to cover the case of a teamster who, due to an injury of some
years’ standing, showed evidence of lapse of memory and wandered
aimlessly about, finally falling into a swamp, where he contracted
pneumonia and died. The West Virginia statute was construed in
De Constantin v. Public Service Commission (p. 249) not to cover the
case of a workman employed on construction work of a railway and
killed by a train while on his way to work, the evidence showing that
the route used by him was not the only or even the proper means of
access to his place of employment.
Casual employees are excluded from the benefits in most of the
States, this condition under the Massachusetts law having been
changed by an amendment of 1914. The case In re Cheevers (p. 213)
was decided under the old law, and an independent teamster occa
sionally employed by a coal dealer was held to be engaged in casual
employment when he worked scattered days in February, 1913, his
last previous employment being a few days in February, 1912; so
also in a case under the same act (In re Gaynor, p. 214), the employee
in this case being a waiter whose services were employed for but a

BULLETIN OF THE BUREAU OF LABOR STATISTICS.

single day, he having never worked for the same employer before.
Where, however, a workman was regularly employed to do a certain
class of work and was ordered to do the same kind of work under
slightly different conditions, he was held to be under the protection
of this act (In re Howard, p. 213). A pieceworker in a tannery,
injured on the first day of his employment under an arrangement
as to continuance that was somewhat indefinite, was held by the
Supreme Court of New Jersey not to be a casual employee, since his
work was of the same general kind as the business of the establish
ment (Schaeffer v. De Grottola, p. 214); so also of a longshoreman
who was killed two hours after beginning work under a new employer,
the court holding that the custom of hiring longshoremen, subjecting
them to frequent changes of employers, did not render their employ
ment casual, since it was a particular part of a service recurring with
some regularity and fair prospect of continuance (Sabella v. Brazileiro, p. 214).
Questions of dependency arose in several cases under the Massa
chusetts law. In the case In re Gallagher (p. 227) a woman, living
apart from her husband for justifiable cause and receiving partial
support from him, was held not to be presumptively wholly depend
ent upon him under the earlier form of the law. An amendment of
1914 declares in favor of such presumption, but this amendment did
not affect the present case. So also in the case In re Nelson (p. 227),
where the wife had lived apart from her husband several times for
varying periods, and was so living at the time of the death of her
husband, though there had been no talk of permanent separation or
divorce. A wife living apart from her husband and receiving no
support took nothing in the case In re Bentley (p. 226), while a par
tially dependent child received an award of a limited amount. A
daughter capable of self-support, but living with her father and
caring for him from a sense of duty, receiving most of his wages, was
held entitled to compensation under the Massachusetts act (In re
Herrick, p. 226). Parents and brothers and sisters of a minor whose
earnings were contributed to the support of the family were held to
be the dependents of such minor (In re Murphy, p. 229). The Su
preme Court of Rhode Island affirmed a decree allowing no compen
sation for the death of a minor (Dazy v. ApponaugCo., p. 228), it not
appearing that the contributions of the deceased son were required
to provide the family with the necessaries of life. It was held in
King v. Viscoloid Co. (p. 264) that the mother of a minor son might
sue at common law for the loss of his services even though he had
taken compensation under the Massachusetts statute.
The question of incapacity was passed on by the Supreme Court of
Massachusetts in a case (In re Sullivan, p. 241) in which a workman
who had lost an arm as the result of an injury reported himself unable

REVIEW OF DECISIONS OF COURTS AFFECTING LABOR.

to secure work for some six months after his recovery from the
wound, although he tried to do so. The court held that he was enti
tled to compensation until work was secured, since the inability to
obtain work resulted directly from the injury. The same view was
taken in Duprey v. Maryland Casualty Co. (p. 268), where a workman
who was able to work only while sitting had not been able to secure
such employment, though competent to render it if obtainable—this
in the face of an agreement to accept a lower award. The same court
held that a hand was “ incapable of use” so as to entitle the workman
to compensation as for the loss of a hand, where the injured hand could
be used only as a hook on account of injuries to the flexor tendons
(In re Meley, p. 241). The New Jersey Supreme Court had before it
a question involving an injury to the leg of a plumber which disabled
him from following his occupation. The lower court awarded a ben
efit for total disability, involving the payment of benefits for 400
weeks. This was reversed by the supreme court (Bateman Mfg. Co.
v. Smith, p. 256), the term being reduced to 175 weeks, which is the
period specified for the loss of a leg. The injured man in this case
was 73 years of age, and the fracture refused to knit on account of
his age. The Wisconsin statute takes note of advanced years and
reduces the amount of compensation payable to aged employees in
cases of permanent injury. This was held in City of Milwaukee v.
Eitzow (p. 257) not to call for a reduction of death benefits in a case
where a man 80 years of age was killed in the course of his employment.
The statute of Washington provides for permanent partial disability,
limiting the amount of the benefits payable therefor, and makes a
separate provision for permanent total disability, defining the same.
In Sinnes v. Daggett (p. 257) the supreme court of the State affirmed
an award for permanent partial disability in the case of a man who
had lost several fingers of each hand as against his claim that he was
totally disabled.
Closely related to the foregoing is the determination of the amount
of compensation. A case before the Supreme Court of New Jersey
involved the right of a workman to compensation for the permanent
impairment of function of an arm, without, however, affecting his
earning capacity. The award was made (De Zeng Standard Co. v.
Pressey, p. 207) on the basis of the relation of the degree of disability
to the total loss of function, the court rejecting the contention that
there could be no statutory disability unless the earnings have been
impaired. Another case before this court involved the decision of the
question of relative disability, the injury being to the elbow of the
right arm and causing loss of motion. An award was made (Barbour
Co. v. Hagerty, p. 209) as for the loss of the arm. This was
reversed by the supreme court, with instructions to take note of any
payments that had been made from insurance funds secured by the

BULLETIN OF THE BUREAU OF LABOR STATISTICS.

employer. O’Connell v. Simms Magneto Co. (p. 209) was another case
before the New Jersey court where multiple injuries were allowed for,
the award being the total of the amounts for each injury. This judg
ment was reversed by the supreme court on the ground that the dis
abilities were not such a proportion of a total disability as to justify
the award made. The method of procedure was principally involved
in another case under the New Jersey statute (Mockett v. Ashton,
p. 207), where a lump sum had been awarded without an indication as
to what continuing payments would have been proper, the supreme
court reversing the finding on the ground that there was no sufficient
support for it under the statute. A case involving elements similar
to the Pressey case above arose under the Wisconsin statute (Inter
national Harvester Co. v. Industrial Commission, p. 210), in which there
was permanent impairment of the sight of an eye but no reduction in
earnings. An award had been made by the commission on the ground
of permanent partial disability, based on the likelihood of his diffi
culty in securing employment on account of defective sight. The
supreme court of the State reversed this finding, holding that there
was no material evidence on which to base the ruling of the commis
sion.
The Michigan statute contains a schedule for certain specific
injuries, fixing the term during which disability shall be deemed to
exist, that for the loss of a foot being 125 weeks. In Limron v. Blair
(p. 211) the court reversed an award allowing compensation during the
time of actual total disability plus 125 weeks, to commence at the
conclusion thereof, but deducting 6 weeks for the time when the foot
was amputated, the ground being that the total period could not
exceed 125 weeks unless his total disability lasted longer, since the
statute “ speaks in terms of disability” and does not provide specific
indemnities. The Massachusetts statute provides for specific losses
certain compensation “ in addition to all other compensation.” This
was held (In re Nichols, p. 213) to sustain a finding for separate allow
ances for the loss of a finger and for the death of the workman from
blood poisoning which subsequently developed; so also where there
was permanent total disability for which compensation was recover
able, separate full compensation for the death which ensued being
also due (In re Burns, p. 212). In case of permanent injury of a
phalange of a finger not resulting in permanent incapacity no com
pensation was allowed under the Massachusetts act authorizing com
pensation where injury produces incapacity for use (In re Ethier,
p. 212).
The distribution of the amount of an award for death was before
the Supreme Court of Massachusetts (In re Janes, p. 230). There were
two minor beneficiaries, the deceased father being a widower at the
time of his death. One child also died about a week after the father’s

REVIEW OF DECISION'S OF COURTS AFFECTING LABOR.

death, and the compensation awarded was ordered to be paid one-half
to the guardian of the survivor and one-half to the administrator of
the deceased child, the supreme court holding that the insurer had no
right of appeal in the matter, as its liability was not affected. The
computation of weekly payments in the case of a workman who was
employed only a part of the year was passed upon by the Supreme
Court of Michigan in the case Andrejwski v. Wolverine Coal Co.
(p. 234), the court holding that the average weekly wages must be
arrived at in such a case by dividing the actual average annual earn
ings by 52, the method of computation by multiplying a day's earn
ings by 300, prescribed for certain cases as a method of determining
annual earnings, not being applicable under the circumstahces.
The Massachusetts law requires medical and surgical services to be
furnished injured workmen, and this duty was held (In re Panasuk,
p. 253) to call for an active effort to render the necessary aid, not being
discharged by the mere publishing of lists of doctors. In Jendrus v.
Detroit Steel Products Co. (p. 253) the Supreme Court of Michigan held
that the refusal of an employee to allow an operation when first pro
posed did not necessarily debar a claim for compensation, the injured
man being ignorant and unacquainted with the English language. It
was pointed out, too, that there was no evidence that an immediate
submission to the operation would have secured recovery.
The question of the serious and willful misconduct of a workman
such as would debar recovery was considered by the Supreme Court
of Massachusetts (In re Nickerson, p. 265), the court holding that the
term meant more than negligence or even gross negligence, and that
thoughtless acts, not deliberate, would not constitute such conduct.
The Ohio law as originally enacted permitted an action for damages
independent of the compensation act where the injury was due to
the willful act of the employer. This was held (McWeeny v. Stand
ard Boiler & Plate Co., p. 232) to permit recovery where the foreman
gave negligent orders and insisted on obedience to them in the face
of protest. This subject is now strictly regulated by statute.
The question <rf election was before the Supreme Court of Rhode
Island (Coakley v. Mason Mfg. Co., p. 204), the company having
accepted the provisions of the act on September 26, 1912, the act
coming into effect five days later. Against the plaintiff's contention
that an acceptance would not be valid before the act became effective,
the court ruled that the rights of the parties were determined by this
election. Where acceptance of the compensation law is presumed in
the absence of a contrary election, the employee claiming benefits
under the act is not required to show that no such election has been
made, but the fact must be offered by the employer as an affirmative
defense (Gorrell v. Battelle, p. 230). This case also presented ques
tions of incapacity, the court ruling that the act contemplates com

BULLETIN OF THE BUREAU OF LABOR STATISTICS.

pensation for incapacity due to injury, where the loss manifests itself
in inability to perform obtainable work or inability to secure work.
That special notice of refusal to accept the terms of a compensation
act must be given to the guardian of a minor under the New Jer
sey statute was held in Troth v. Millville Bottle Works (p. 231),
general notice not being sufficient. An earlier opinion was cited in
this case affirming the applicability of the statute to preexisting
contracts. A claimant who had received benefits under the com
pensation law of Washington was held (The Fred E. Sander, p. 232)
not to be entitled to recover in an action in admiralty. In an earlier
proceeding by the same claimant, seeking to recover in admiralty for
injuries (The Fred E. Sander, p. 265), the defense was interposed that
the State compensation act had abolished actions for personal in
juries. The court held that the State could not limit the jurisdiction
of courts of admiralty over maritime torts, and overruled the excep
tions, the acceptance of benefits not having appeared in this proceed
ing. That the compensation law of Kansas provides an exclusive
remedy where it has been accepted was held in McRoberts v. National
Zinc Co. (p. 236), the plaintiff having sought to secure both benefits
under the compensation statute and damages at common law. The
difference between an award of damages and an allowance of com
pensation was also pointed out. The Washington statute permits
damage suits against an employer who is in default in payments to
the State accident fund, but this was held (Barrett v. Gray;s Harbor
Commercial Co., p. 206) not to validate an action for injuries by a
workman in a case where the accident happened during the 30-day
period allowed for the making good of a shortage, the payment hav
ing been made within the allowed time.
Cases involving the negligence of a third party were considered in a
few instances. In Meese v. N. P. R. Co. (p. 250), the death of a brewery
employee was occasioned by the* negligence of a railroad company,
and against the contention that the only recovery open to the wife
and children was under the workmen’s compensation act of Washing
ton, it was held that this act had no relation to cases involving the
liability of persons not in the status of employer and employee, the
“ Lord Campbell’s Act” of the State being unaffected thereby. A dif
ferent situation was presented in a New Jersey case (Newark Paving
Co. v. Klotz, p. 251), where a workman was killed in the course of his
employment by the negligence of a third party, the payment of
damages and the securing of a release by such third party being held
not in any way to affect the statutory right of the claimants to
compensation. A very similar condition was considered by the
Supreme Court of Massachusetts in the case In re Cripp (p. 266),
where a teamster was injured by the negligence of a street railway
company, which immediately settled with him and secured a release.

REVIEW OF DECISIONS OF COURTS AFFECTCNG LABOR.

The injuries resulted subsequently in death, and it was held that the
widow’s rights under the compensation act wero independent of any
thing that the workman might have done with respect to his per
sonal injuries. The Wisconsin statute contains a provision for the
subrogation to the employer of an injured employee’s right of action
against a third party occasioning injury. In McGarvey v. Inde
pendent Oil & Grease Co. (p. 267), the employer, for a consideration,
assigned this right of action to the employee, whom it had already
compensated. The court held in this case that the employee was
entitled to sue alone without the employer as a party plaintiff.
The question of classification was passed upon by the Supreme
Court of Washington in State v. C. M. & P. S. R. Co. (p. 215), the
industrial insurance department of the State having levied a premium
rate for tunnel construction work in the instance in question, and the
company contending that the lower rate governing steam railroad
construction work should apply. The supreme court held that the
employments were clearly separable and the “ enterprise classifica
tion’’ would not govern. The Washington statute applies to “ extrahazardous” occupations, making an enumeration and concluding that
if there should be or arise any other extrahazardous occupation or
work it should come under the act. In Wendt v. Industrial Insurance
Commission (p. 238), a carpenter placing shelving in a store and
attempting to sharpen his chisel in a workshop belonging to the
employer in another line, was held to be engaged in extrahazardous
employment and within the provisions of the act, overruling the
finding of the commission. That a farmer may accept the provisions
of the Massachusetts statute as to certain classes of employees with
out obligating himself as to all was held in the case In re Keaney
(p. 239). A child employed in his father’s mill in violation of the
statute limiting the age at which children may be so employed is not
a workman within the provisions of the Washington compensation
act so as to permit recovery from the State accident fund (Hillestad
v. Industrial Commission, p. 269). In Connole v. N. & W. R. Co.
(p. 263), the Ohio statute was construed as not applicable to railroad
and other employees in the absence of active election in behalf of
workmen working only in the State, approved by the State liability
board of awards; the provision of the statute abrogating defenses was
held not to apply in this instance. The New Jersey compensation law
excepts nonresident alien dependents from its benefits. The court
of errors and appeals of that State held (Gregutis v. Waclark Wire
Works, p. 255) that since the remedy of the employee, if he had
survived, would have been under the compensation act, the case was
governed by that act, and no cause in favor of nonresident alien suit
ors existed under the death act of the State.

BULLETIN OF THE BUREAU OF LABOR STATISTICS.

It was held in American Radiator Co. v. Rogge (p. 226) that the
New Jersey law covered all accidents occurring in that State, regard
less of the place of the contract of employment.
The power of a court to issue letters rogatory to obtain the testimony
of foreign witnesses for hearings before the State industrial board was
denied by the Supreme Court of Massachusetts (In re Martinelli,
p. 229), since the relationship of the court to the industrial board did
not warrant such exercise of power. The relationship of the indus
trial board of Illinois to the courts was considered in Courter v. Simp
son Construction Co. (p. 264), the statute undertaking to provide a
review of the decision of the industrial board by the supreme court
of the State on a writ of certiorari. This detail of the statute was
held to be invalid, since its effect would be to violate a constitutional
provision. It was further held that the lower courts could not be
deprived of their power to review the proceedings of the board, and
that this might be done by writs of certiorari from the circuit courts.
Under the provisions of the Massachusetts statute it was held (In re
Diaz, p. 264) that the findings of the industrial accident board have
the same weight and effect as the verdict of a jury, and will be so
accepted by the reviewing courts. What evidence is necessary to
support a finding of the industrial accident board of the State was
considered by the Supreme Court of Michigan in Reck v. Whittlesberger (p. 236), the court holding that in the absence of direct evidence
hearsay evidence based on fresh and available sources of information
would suffice.
EMPLOYERS’ LIABILITY INSURANCE.

A single case appears under this head, the question involved being
the scope of the policy of insurance. This was held in May Creek
Logging Co. v. Pacific Coast Casualty Co. (p. 291) not to protect the
employer in a case in which damages were recovered against it by
reason of the malpractice of a company surgeon.
RELIEF ASSOCIATIONS.

The only case to be considered under this head in the present
bulletin is that of Daughtridge v. A. C. L. R. Co. (p. 334), in which the
Supreme Court of North Carolina held that a declaration by an
applicant for membership in a railroad relief association that he was
in good health in so far as he was aware was not fraudulent, he
having been examined and passed by the company's physician, every
mark or indication of disease relied upon in the present action being
then existent and observable.
LABOR ORGANIZATIONS.

Under this head will be considered not only cases involving organ
ized labor directly, but injunction and contempt proceedings growing
out of certain acts connected with labor disputes, and the application

REVIEW OP DECISIONS OF COURTS AFFECTING LABOR.

of the antitrust laws, etc., to conditions corresponding in some degree
to those that operate in labor organizations. Perhaps the most
notable case in this field is that involving the liability of the individual
members of the hatters’ union for injuries resulting from a boycott
conducted by the union through its officers (Lawlor v. Loewe,
p. 137). The Supreme Court of the United States held in this case
that the individual members had notice of the acts done and were
liable under the Federal antitrust law for resultant damages, affirm
ing the judgment of the appeals court (same case, p. 140). An
injunction was granted under the same statute to forbid a conspiracy
in restraint of trade, and the maintenance of blacklists and the
establishment of a boycott by retail lumber dealers (Eastern States
Retail Lumber Dealers’ Association v. United States, p. 53).
Two closely related cases involving unlawful combinations in
restraint of trade were considered in the United States District Court
for the Southern District of New York, based on activities of union
carpenters and joiners. In Irving v. Neal (p. 162) a petition for an
injunction under the Federal antitrust law was denied on the ground
that such relief under that act could be had only at the instance of
the Government, though unlawful combination under the act was
found. It was held, however, that the State statutes had been vio
lated and that civil remedies, including injunctive relief, were avail
able to the complainants. In the other case (Paine Lumber Co. v.
Neal, p. 164) the complainants were held not to have proved injurious
acts in pursuance of an unlawful agreement such as would warrant
the issue of an injunction.
The Arkansas antitrust law was held (State ex rel. Moose v. Frank,
p. 50) not to forbid an agreement between proprietors of laundries
to fix prices for their work. The constitutionality of the antitrust
law of Missouri was attacked (International Harvester Co. of America
v. State of Missouri, p. 49) on the ground that the exemption of
labor organizations from its prohibitions was a violation of the
constitutional provision requiring equal protection of the law, this
contention being rejected by the Supreme Court of the United States.
The construction of the Newlands Act, successor to the Erdman
Act, providing for the mediation and conciliation of disputes between
railroad companies and their employees, was before the court on
exceptions to certain definitions and statements used by the arbitra
tors. The court held (In re Ga. & Fla. Ry., p. 50) that the statute
contemplated practically a common-law arbitration, and that so long
as the board kept within the agreed terms as to its jurisdiction and
purposes the courts should not intervene.
The final proceeding growing out of the Buck Stove & Range
case against the American Federation of Labor is the decision by the
Supreme Court of the United States (Gompers v. United States, p. 133),
in which that court held that the penalties for contempt assessed by

BULLETIN OF THE BUREAU OF LABOR STATISTICS.

the courts for the District of Columbia must be set aside on account
of the statute of limitations. The jurisdiction of courts in contempt
proceedings was considered in Ex parte Heffron (p. 135), the appellate
court affirming its right to release on habeas corpus persons impris
oned for contempt for violating an order improperly issued. The
injunction issued by the court below was modified as being in part in
excess of the powers of a court to issue. A judgment for contempt
was affirmed in Sona v. Aluminum Castings Co. (p. 305), where it was
in evidence that serious assaults had been committed by persons hav
ing knowledge of the issue of the injunction.
The power of a court to issue an injunction was considered in Baltic
Mining Co. v. Houghton Circuit Judge (p. 310). The court below had
issued an injunction and then ordered a dissolution on the ground
that it had not had the power to take such a step. The supreme
court directed the reinstatement of the injunction, showing at some
length the grounds for its action.
An injunction was held properly issued in a case (Burnham v.
Dowd, p. 270) in which a mason’s union had procured a boycott against
a materialman who had furnished material for use in work on which
nonunion masons had been employed, damages being also allowed for
unlawful interference with the business of another. Persons inciting
others to violence were held to have violated an injunction in United
States v. Colo et al. (p. 306), and to be guilty of contempt of court, as
well as of the actual commission of acts of violence. Incitement to
the commission of criminal acts during a strike was held to be proved,
and the criminal statutes of New Jersey to have been violated, in State v.
Quinlan (p. 160). In People v. Ford (p. 326) a conviction for man
slaughter was sustained in a case in which incitement to violence was
proved, one of the defendants being possibly an actual participant in
the killing.
Another case involving criminal prosecution was that of Ryan et al.
v. United States (p. 143), in which the defendants had been convicted
of conspiracy to commit crime in the transportation of explosives by
interstate trains. The evidence was held sufficient to affirm the
judgment in the case of 25 of the defendants, a new trial being
granted in the case of 5 others.
The relative status of civil and military authorities was considered
in Ex parte McDonald (p. 335) in a habeas corpus proceeding in which
persons sentenced by a military court during a strike were held to
have been improperly sentenced by this body, but not entitled to
release, since they might properly be detained for a trial before the
civil courts.
The extent to which an injunction may go in restraining the activi
ties of organized labor was given full consideration in Mitchell v.
Hitchman Coal & Coke Co. (p. 315), the circuit court of appeals revers
ing a decree of the district court which practically prevented organized

REVIEW OF DECISIONS OF COURTS AFFECTING LABOR.

activities. The same court had before it a case (Bittner v. West
Virginia-Pittsburgh Coal Co., p. 321) arising out of the same dispute,
the evidence in this case, however, showing that violence and intimi
dation had been resorted to. In this case an injunction forbidding
acts of violence and also the use of persuasion and the payment of
strike benefits was modified so as to allow the use of peaceful methods,
while restraining acts of violence and coercion.
An injunction was allowed by the Supreme Court of Massachusetts,
together with damages for loss of employment, in Fairbanks v.
McDonald (p. 314), in the case of a dispute between labor unions lead
ing to the members of one being discharged by their employers. In
Roddy v. United Mine Workers (p. 325) no recovery was allowed by
the Supreme Court of Oklahoma to a nonunion man who was dis
charged at the instance of the union, there being no contract for his
employment for any definite time. That a labor union might be
restrained from establishing a boycott against a workman of the same
craft so as to cut him off from employment was held by a Missouri
court in Clarkson v. Laiblan (p. 313). The Supreme Court of Massa
chusetts refused to interfere with the carrying out of an agreement
between a union and a group of employers which would largely
exclude from employment the plaintiffs, who were members of another
union (Hoban v. Dempsey, p. 303), the court holding that the contract
was freely made by the parties to it without a motive to injure the
plaintiffs, though it might have the effect of restricting their employ
ment. An injunction was refused a boycotted company in Gill En
graving Co. v. Doerr (p. 301), where a union was enforcing its rule not
to do any work for customers whose work was not done entirely in
union shops. The injury to the plaintiff was not denied, but was
held to be only incidental to the main intent, which under controlling
decisions was held to be lawful. Interference with business was
found to be so direct in New England Cement Gun Co. v. McGivern
(p. 298) that the Massachusetts Supreme Court held the petitioning
company entitled to an injunction against inducing breach of con
tract and other interference with beneficial business intercourse.
A statute intended to protect members of labor unions in their
employment while retaining their membership was held unconstitu
tional in Coppage v. Kansas (p. 147), in which case the Supreme Court
of the United States reversed a judgment of the Supreme Court of
Kansas. There was an extended dissenting opinion by Justice Day,
who pointed out that to hold this act unconstitutional practically
decided the invalidity of similar laws in thirteen other States and
Porto Rico; while the prevailing opinion stated that, with the single
exception of the Supreme Court of Kansas, no court of like rank had
ever upheld such a law, an earlier decision of the Supreme Court and
six State courts of last resort having held such laws unconstitutional.

BULLETIN OF THE BUREAU OF LABOR STATISTICS.

The question of picketing was specifically considered by the Supreme
Court of Michigan (In re Langell, p. 330) on proceedings to review
contempt charges against Langell for the violation of an injunction
prohibiting picketing. The power of the court below to issue such
an injunction was challenged, but was upheld by the supreme court,
as was the conviction for a willful violation of such injunction.
While sustaining the legality of peaceful picketing, the Kansas City
court of appeals (Berry Foundry Co. v. International Molders’ Union,
p. 332) held that in the present instance intimidation and coercive
means had been used, so that an injunction forbidding the same was
held to have been properly issued, and an award of damages for
injury to business was affirmed.
Matters of internal organization were considered in Monroe v. Col
ored Screwmen’s Benevolent Association (p. 323), in which it was
held that the levying of a fine by a union upon certain of its mem
bers for violations of rules did not give the aggrieved members access
to the courts for redress of their alleged grievances. So in an em
ployers’ association, an agreement by its members to pay a stipu
lated sum as liquidated damages for violation of the rules of the
association was held enforceable in United Hat Manufacturers v.
Baird-Unteidt Co. (p. 278).
The effect on individual contracts of a collective agreement made
by a labor union was considered in Gulla v. Barton (p. 297), the
Supreme Court of New York, appellate division, holding that such
collective agreement was of such validity as would support a recovery
of the difference between the amount stipulated therein and the
employee’s wages under a contract made in ignorance thereof.
The liability of a union for libel was affirmed in United Mine Work
ers of America v. Cromer (p. 322), the Court of Appeals of Kentucky
affirming an award of damages for the publication in the union paper
of the name of the plaintiff in a list of persons designated as “ detest
able scabs and blacklegs.”
The liability of union officials for relief funds collected for the bene
fit of strikers and their families was affirmed in Attorney General
ex rel. Prendergast et al. v. Bedard et al. (p. 324).
The statute of Massachusetts which requires employers to insert
in advertisements for employees notice of strikes or other disputes,
if any exist, was held to be constitutional in Commonwealth v. Libbey
(p. 184) and a conviction for its violation affirmed.
A case not directly affecting organized labor, but growing out of a
labor dispute, was Lane v. Au Sable Electric Co. (p. 338), in which no
punitive damages were allowed for the ejection of an employee from
his dwelling, where he had gone on strike and failed to vacate the
house furnished him by the employing company, the court holding
that the relation of landlord and tenant had never existed and that
the relation of employer and employee had terminated when the
workman struck, and he had thereby lost all claim to the occupancy
of the dwelling.

DECISIONS OF COURTS AFFECTING LABOR, 1914.
DECISIONS UNDER STATUTE LAW.
Alien Contract Labor— Importation— Construction o f Stat
ute — “ O ffer o f Employment” — United States v. Dwight Manufac

turing Co., United States District Court, District of Massachusetts
(Nov. 19, 1918), 210 Federal Reporter, page 74.— The Government
brought action to enforce penalties against the company named on 122
counts for the importation of aliens in violation of the immigration
act of February 20,1907, chapter 1134,34 Stat. 900 (U. S. Comp. Stat.
Supp. 1911, p. 503). The company contended that the facts alleged
did not present an offense under the act, and the question before the
court was as to the sufficiency of the charge. The act defines contract
laborers, who are excluded by it, to be persons “ who have been
induced or solicited to migrate to this country by offers or promises
of employment or in consequence of agreements, oral, written, or
printed, express or implied, to perform labor in this country, of any
kind, skilled or unskilled.”
The following extracts from the opinion by Judge Dodge discuss
some of the points of law involved:
Each count describes the alleged offer as follows:
“ That if said alien would migrate from said * * * to [here
naming a place in the United States], said defendant would employ
and pay said alien to perform for said defendant at said [place within
the United States] certain manual labor, that is to say, to operate and
assist in operating divers machines used by the defendant in its mill
at said [place within the United States] in the manufacture of cotton
fabrics.
Having thus described the alleged offer or promise of employment
made to the alien named, each count next alleges that the defendant
unlawfully assisted him to migrate by prepaying his passage to a place
within the United States; follows this by allegations that, induced by
the offer and assisted by the prepayment, he did migrate to the United
States; and concludes with allegations that he was not at the time an
alien entitled to enter the country, that the defendant well knew the
fact to be so, and that it owes the prescribed penalty.
The company objected that the aliens named in the counts were not
sufficiently alleged to have been contract laborers within the definition
given in the act, maintaining that no offer of employment sufficient to
make the alien a “ contract laborer,” even if he was induced or solic
ited by it to migrate to this country, had been set forth.
The court rejected this view, saying:
If, as this declaration alleges, the aliens named were in fact induced
to migrate by offers no more specific as to terms and conditions

BULLETIN OF THE BUREAU OF LABOR STATISTICS.

amount to be paid, the character of the labor, or the terms of the
payment, than the offers described as above, I do not think the court
could properly say that they were not “ contract laborers” within
the act; nor d.o I see how the court can properly say that offers made
in the terms alleged could not have induced any of them to migrate.
This will be a question for the jury, as will also the further question
whether or not, if they were so induced, and were therefore “ contract
laborers/’ the defendant knowingly assisted their migration as charged
after they had thus become “ contract laborers.” I am unable to hold
that the declaration has not sufficiently alleged them to have been
contract laborers.
The court further held that where the declaration alleged that the
corporation made the offers of employment to the aliens and prepaid
their transportation, the fact that it did not specify whether the offers
were made by an officer of the corporation or by some other person,
and did not allege whether they had authority, whether the offers were
oral or in writing, or their terms, did not render it demurrable.

A lien Contract Labor—V iolation of Statute— Nature of
A ction—Penalties— Grant Bros. Construction Co, v. United States,

Supreme Court of the United States (Mar. 16, 1914), %4 Supreme
Court Reporter, page 452.—The company named and certain agents
had been found guilty of a violation of the immigration law of Feb
ruary 20, 1907 (34 Stat. 898), the Supreme Court of Arizona having
assessed penalties of $1,000 each in 45 cases. (114 Pac. 955; see
Bui. No. 95, p. 289.) A number of the errors alleged to have been
committed by the court below related to procedure and need not
be noted here. Mr. Justice Van Devanter, who delivered the opinion
of the court, summarized the evidence, which was to the effect that
the company was engaged in the construction of a railroad in south
ern Arizona and had employed an agent to secure workmen. This
person employed assistants to follow his suggestions and cooperate
with him in the work in which he was engaged. The board of
inquiry of the immigration office decided that 45 men in a group
of workmen crossing the boundary line from Mexico were aliens,
and it was found that their immigration was due to representations
made by the company’s agents.

Among the complaints made against the trial court was one that
the case had been treated as a civil suit rather than a criminal pro
cedure, and that the depositions of absent witnesses had been read
and the jury instructed to return a verdict for the Government if
the evidence reasonably preponderated in its favor. Objections
to this procedure were overruled by the Supreme Court, the court
holding that the action was civil and attended with the incidents of
a civil action.

DECISIONS OF COURTS AFFECTING LABOR.

As to the amount of penalties recoverable Mr. Justice Van Devanter
said:
Still another contention is that, as all the men named in the petition
were brought into the United States at one time, there was but a
single violation of the statute, and only one penalty could be recov
ered. The statute declares that “ separate suits may be brought for
each alien thus promised labor or service,” and this plainly means
that a separate penalty shall be assessed in respect of each alien whose
migration or importation is knowingly assisted, encouraged, or solicited
in contravention of the statute.
The judgment of the court below was therefore affirmed.

Antitrust Law—Monopolies— Restraint o f Trade— E x e m p
tion o f Labor Organizations— Constitutionality o f Statute—

International Harvester Co. of America v. State of Missouri, United
States Supreme Court (June 8, 1914), $4 Supreme Court Re
porter, page 859.—Judgment was secured by the State of Missouri
against the company named in the supreme court of that State,
excluding it from doing business in the State, and this was affirmed
in the United States Supreme Court. The company was charged
with violation of the State antitrust law, and based its defense on
certain objections to the constitutionality of the statute, one of
which was that it denied equal protection of the laws in excluding
combinations of wage earners from the prohibitions against combi
nations to lessen competition and regulate prices. This is the
item of interest from a labor point of view. In dealing with it
Mr. Justice McKenna, who delivered the opinion of the court, spoke
in part as follows:

Plaintiff in error makes three contentions: (1) The statutes
* * * (2) discriminate between the vendors of commodities and
the vendors of labor and services; and (3) between vendors and
purchasers of commodities.
These contentions may be considered together, both involving a
charge of discrimination,—the one because the law does not embrace
vendors of labor; the other because it does not cover purchasers of
commodities as well as vendors of them. Both, therefore, invoke a
consideration of the power of classification which may be exerted
in the legislation of the State. And we shall presently see that
power has very broad range. A classification is not invalid because
of simple inequality. We said in Atchison, T. & S. F. R. Co. v.
Matthews, 174 U. S. 96, 106, 19 Sup. Ct. 609, by Mr. Justice Brewer:
“ The very idea of classification is that of inequality, so that it goes
without saying that the fact of inequality in no manner determmes
the matter of constitutionality.”
We have said that it must be palpably arbitrary to authorize a
judicial review of it, and that it can not be disturbed b^ the courts
85590°—Bull. 169—15------4

BULLETIN OF THE BUREAU OF LABOR STATISTICS.

“ unless they can see clearly that there is no fair reason for the law
that would not require with equal force its extension to others whom
it leaves untouched.” [Cases cited.]
Whether the Missouri statute should have set its condemnation on
restraints generally, prohibiting combined action for any purpose
and to everybody, or confined it as the statute does to manufacturers
and vendors of articles, and permitting it to purchasers of such articles;
prohibiting it to sellers of commodities and permitting it to sellers of
services, was a matter of legislative judgment; and we can not say
that the distinctions made are palpably arbitrary, which we have seen
is the condition of judicial review. It is to be remembered that the
question presented is of the power of the legislature, not the policy
of the exercise of the power. To be able to find fault, therefore,
with such policy, is not to estabUsh the invalidity of the law based
upon it.
Antitrust Law — U nlaw ful Combinations — Monopolies—
Laundries— Construction o f Statute— State ex rel. Moose, Atty.

Gen. v. FranTc et al., Supreme Court of Arkansas (July 13, 1914), 169
Southwestern Reporter, page 333 A complaint was brought by the
.—

State against Aaron Frank and others to recover a penalty for an
unlawful combination in violation of the antitrust law of the State of
Arkansas. Judgment was in favor of the defendants in the circuit
court of Pulaski County on a demurrer to the complaint, which judg
ment was on appeal affirmed. The decision turned on the construc
tion of the statute, the State conceding that an agreement to fix
the price of laundering, as had been undertaken by the proprietors
of the defendant laundries doing business in the city of Little Rock,
was not an agreement to fix the price of any article of manufacture,
mechanism, or merchandise, forbidden by the statute, but holding
that such agreement was an undertaking to fix the price of a com
modity, convenience, or repair, within its prohibitions. This conten
tion the court rejected, discussing the terms used at some length,
and citing cases sustaining its views as to the nonapplicability of the
statute, the opinion of Judge Smith, who spoke for the court, con
cluding as follows:

If the business of laundering is not a commodity, then an agree
ment fixing prices for the performance of that service is not within
the inhibition of the antitrust act. The business of laundering is a
mere service done, whether performed by hand or by machinery, and
an agreement to regulate the price to be charged therefor is in its
last analysis merely an agreement to fix the price of labor, or services,
and the legislature of this State has not made such an agreement
unlawful.
A rbitration of L abor D isputes— A ward— E xceptions— Pro
cedure—In

re Georgia cfe Florida Railway, United States District
Court, Southern District of Georgia (July 30, 1914), 215 Federal Re

DECISIONS OF COURTS AFFECTING LABOR.

porter, page 195.—A board of arbitrators had been appointed under
the provisions of the Newlands Act providing for the mediation and
conciliation of disputes between railroad companies and their em
ployees (38 Stat. 103, ch. 6, Acts of 1913), and exceptions were filed
to its award. The statute provides for a permanent board of media
tion and conciliation, and for the appointment of arbitrators in cases
in which this board does not secure the adjustment of the questions
involved. Before the appointment of the arbitrators, an agreement
in writing must be made by the parties, stipulating that the arbitra
tion is to be made under the provisions of the act, stating specifically
the questions to be submitted to the arbitrators for decision, and
stipulating that a majority of the board of arbitrators shall be com
petent to make a valid and binding award. Awards, papers, pro
ceedings, and testimony, certified under the hands of the arbitrators,
are to be filed with the clerk of the court of the district wherein the
dispute arose, and unless exception is taken thereto within a fixed
period, for error of law apparent on the record, such awards are to
be binding upon the parties for the term agreed upon.
In the case in hand four exceptions were offered to the award of the
arbitrators, one as to the interpretation of the word “ arbitration”
made by the chairman of the board to the effect that “ all matters of
arbitration are matters of compromise,” the contention being that
if this view influenced the award it was error. As to this the court
said that there was nothing on the record to show how this remark of
one member of the board affected the award. Another exception
was as to the correctness of the issue before the board as indicated
by a statement by the arbitrator representing the employees. The
other exceptions relate to the principles used in arriving at the con
clusions reached by the board.
Judge Sheppard, who delivered the opinion of the court dismissing
all the exceptions, recited the foregoing facts and quoted portions of
the statute under which the arbitration was had, and said:
It is observed by the express terms of the statute that the award
shall be final and conclusive upon the parties unless set aside for
error apparent upon the record. Thus, we are met at the threshold
of the inquiry with the query: Do the exceptions stated above present
within the purview of the statute such errors of law as can be reviewed
by the court ? The only precedent that has rewarded the industry of
the court for construction of the act in question is the case which
construed the Erdman Act, In re Southern Pacific (C. C.) 155 Fed.
1001, [Bui. No. 74, p. 206], where the provisions of the statute for
review by the court for errors apparent on the record were pre
sented. There it was held that an arbitration under the former (Erd
man) act, containing essentially the same provisions as section 4 of
the present act, was substantially a common-law arbitration, and the
power and authority of the board rest solely upon the written sub
mission entered into by the parties, which limits and determines not

BULLETIN OF THE BUREAU OF LABOR STATISTICS.

only the rights of the parties, but also the extent of the powers of the
arbitrators, and that the submission is to be construed according to
the rules governing contracts and not those governing pleadings. By
reference to paragraph 5 of section 4, it is required that the agreement
shall state specifically the matters to be submitted to the board for
its decision. Obviously, it was the right of either party under the
statute to have prescribed the scope of the inquiry, and to have defined
the principles of law or conditions of fact upon which the inquisition
was to proceed and the award to be established. Doubtless any
departure from accepted rules, or failure on the part of the board to
follow the adopted criteria, or the nonobservance of the restrictions
imposed by agreement upon the latitude of the board’s investigation,
would have been cause for error apparent upon the record to which
exception would lie as provided in the statute.
There were, however, no limitations by the agreement to arbitrate
ut upon the scope of the inquiry, or any method prescribed as to
ow the board was to ascertain a reasonable wage to be paid the
employees. It appears that the alleged errors presented by the excep
tions raise questions of mixed law and fact put in issue by the submis
sion without limitation, and having been heard and determined by the
court constituted by consent of the parties called to arbitrate, that is
to say, to hear, compare, adjust, and adjudicate the controversies, is
as conclusive of the matters submitted, as well as the process by which
they were reached, as the verdict of a jury. It would seem on the facts
that their judgments are reviewable for only such errors as would
warrant setting aside a common-law arbitration—such error as goes
to jurisdiction, right or authority of the court to determine. The
award has not been assailed, it will be observed, on any ground that
would avoid it for lack of jurisdiction; or any ground that would be
cause for setting aside the award of a common-law arbitration; it is
not pretended that it was not a legally constituted board, or that the
statute under which it was organized was invalid, or that the board
traveled beyond the scope of the matters properly submitted by agree
ment of the parties. By the agreement, the parties accepted the
modus operandi of the statute for a speedy and expeditious adjust
ment of their differences, and thereby voluntarily waived any rights
to have the questions involved determined by the strict and cumber
some rules of the courts of law. Arbitration, it is agreed, generally
is a substitution by consent of the parties of a simple expeditious tri
bunal in lieu of courts whose procedure is circumscribed by definite
rules of law. '
It is plain from the text of the act that Congress, appreciating the
necessity of a forum for the arbitration of distracting controversies
which often arise between employees and employers, established a
tribunal to which the parties at their option might resort for a speedy
determination of such controversies on their merits, without the de
lays incident to trials in courts of law. If the awards of such courts
are to be set aside on technical grounds, or because their proceedings
were not according to the rules of law, it would tend to set at naught
the good offices of Congress as expressed by the act and leave to the
courts at last, in spite of legislation to the contrary, the settlement of
such controversies. It was undoubtedly the intent of the legislature
that such awards should be final except for such error that would
avoid the proceedings ab initio.

DECISIONS OF COURTS AFFECTING LABOR.

The exceptions should be dismissed, and the award affirmed, and
it will be so ordered.
On appeal to the circuit court of appeals (217 Fed. 755, decided
Oct. 30, 1914), that court affirmed the judgment of the district court,
holding that an award is subject to exception only on some ground
which affects the jurisdiction, right, or authority of the arbitrators to
make the same, and that such review can extend only to questions
affecting the legality of the proceedings or the conclusiveness of the
award, and views expressed by the arbitrators or reasons given for
their decision are immaterial.

Boycott— Blacklisting— Conspiracy— Combination in Re
straint of Trade—Antitrust Law— Eastern States Retail Lumber

Dealers’ Association v. United States, United States Supreme Court
(June 22, 1915), 34 Supreme Court Reporter, page 951.— The associa
tion named brought its appeal to the Supreme Court to review a
decree of the District Court of the United States for the Southern
District of New York enjoining it as an unlawful combination under
the Sherman Antitrust Act. The appeal resulted in the decree of the
court below being affirmed. The association was made up of retail
lumber dealers in a number of States, including New York and Massa
chusetts on the north and Maryland on the south, and among its
activities was the distribution of a document known as the “ official
report,” in which, on account of “ an interest in common with your
fellow members in the information contained in this statement,”
certain information was communicated “ in strictest confidence, and
with the understanding that you are to receive it and treat it in the
same way.” Following these statements was a list of wholesale
dealers who had been reported as having solicited or quoted or sold
directly to consumers. Members were also encouraged to report in
detail any instance of such action on the part of wholesalers, the
names being obtained and placed on the list as the result of complaints
made by individual retailers. Counsel for the association stated that
complaints of this nature were investigated and if serious and well
founded were acted upon by the board which, if satisfied that the
wholesaler made a practice of selling to consumers and customers of
the retail trade, directed the name of such wholesaler to be reported
for the official list. The name could be removed on satisfactory
assurance that the wholesaler was no longer selling in competition
with retailers. Having stated these facts Mr. Justice Day, who deliv
ered the opinion, said in part:
The reading of the official report shows that it is intended to give
confidential information to the members of the associations of the
names of wholesalers reported as soliciting or selling directly to con

BULLETIN OF THE BUREAU OF LABOR STATISTICS.

sumers, members upon learning of any such instances being called
upon to promptly report the same, supplying detailed information as
to the particulars of the transaction. These lists were quite com
monly spoken of as blacklists, and when the attention of a retailer
was brought to the name of a wholesaler who had acted in this wise
it was with the evident purpose that he should know of such conduct
and act accordingly. True it is that there is no agreement among
the retailers to refrain from dealing with listed wholesalers, nor is
there any penalty annexed for the failure so to do; but he is blind
indeed who does not see the purpose in the predetermined and period
ical circulation of this report to put the ban upon wholesale dealers
whose names appear in the list of unfair dealers trying by methods
obnoxious to the retail dealers to supply the trade which they regard
as their own.
In other words, the circulation of such information among the
hundreds of retailers as to the alleged delinquency of a wholesaler
with one of their number had and was intended to have the natural
effect of causing such retailers to withhold their patronage from the
concern listed.
The Sherman Act has been so frequently and recently before this
court as to require no extended discussion now. [Cases cited.] It
broadly condemns all combinations and conspiracies which restrain
the free and natural flow of trade in the channels of interstate com
merce.
In Gompers v. Buck's Stove & Range Co., 221 U. S. 418, 31 Sup.
Ct. Rep. 492 [Bui. No. 95, p. 323], after citing Loewe v. Lawlor [208
U. S. 274, 28 Sup. Ct. 301, Bui. No. 75, p. 622], this court said (p. 438):
“ But the principle announced by the court was general. It [the
Sherman Act] covered any illegal means by which interstate com
merce is restrained, whether by unlawful combinations of capital, or
unlawful combinations of labor; and we think also whether the
restraint be occasioned by unlawful contracts, trusts, pooling arrange
ments, blacklists, boycotts, coercion, threats, intimidation, and
whether these be made effective, in whole or in part, by acts, words,
or printed matter.”
These principles are applicable to this situation. Here are whole
sale dealers in large number engaged in interstate trade upon whom
it is proposed to impose as a condition of carrying on that trade that
they shall not sell in such manner that a local retail dealer may regard
such sale as an infringement of his exclusive right to trade, upon pain
of being reported as an unfair dealer to a large number of otner retail
dealers associated with the offended dealer, the purpose being to keep
the wholesaler from dealing not only with the particular dealer who
reports him, but with all others of the class who may be informed of
his delinquency. “ Section 1 of the act * * * is not confined to
voluntary restraints, as where persons engaged in interstate trade or
commerce agree to suppress competition among themselves, but in
cludes as wen involuntary restraints, as where persons not so engaged
conspire to compel action by others, or to create artificial conditions,
whicn necessarily impede or burden the due course of such trade or
commerce, or restrict the common liberty to engage therein.”
United States v. Patten, 226 U. S. 541, 33 Sup. Ct. Rep. 141. This
record abounds in instances where the offending dealer was thus

d e c is io n s o f cotjbts a f f e c t i n g

labor.

reported, the hoped-for effect, unless he discontinued the offending
practice, realized, and his trade directly and appreciably impaired.
But it is said that in order to show a combination or conspiracy
within the Sherman Act some agreement must be shown under which
the concerted action is taken. It is elementary, however, that con
spiracies are seldom Gapable of proof by direct testimony, and may
be inferred from the things actually done; and when, in this case,
by concerted action the names of wholesalers who were reported as
having made sales to consumers were periodically reported to the
other members of the associations, the conspiracy to accomplish that
which was the natural consequence of such action may be readily
inferred.
The circulation of these reports not only tends to directly restrain
the freedom of commerce by preventing the listed dealers from
entering into competition with retailers, as was held by the district
court, but it directly tends to prevent other retailers who have no
>ersonal grievance against him, and with whom he might trade,
rom so doing, they being deterred solely because of the influence of
the report circulated among the members of the associations. In
other words the trade of the wholesaler with strangers was directly
affected, not because of any supposed wrong which he had done to
them, but because of the grievance of a member of one of the asso
ciations, who had reported a wrong to himself, which grievance,
when brought to the attention of others, it was hoped would deter
them from dealing with the offending party. This practice takes
the case out of those normal and usual agreements in aid of trade
and commerce which may be found not to be within the act, and puts
it within the prohibited class of undue and unreasonable restraints,
such as was the particular subject of condemnation in Loewe v.
Lawlor [supra].
The argument that the course pursued is necessary to the protec
tion of the retail trade and promotive of the public welfare m pro
viding retail facilities is answered by the fact that Congress, with the
right to control the field of interstate commerce, has so legislated as
to prevent resort to practices which unduly restrain competition or
unduly obstruct the free flow of such commerce, and private choice of
means must yield to the national authority thus exerted.
A retail dealer has the unquestioned right to stop dealing with a
wholesaler for reasons sufficient to himself, and may do so because he
thinks such dealer is acting unfairly in trying to undermine his trade.
“ But,” as was said by Mr. Justice Lurton, speaking for the court in
Grenada Lumber Co. v. Mississippi, 217 U. S. 433, 30 Sup. Ct. Eep.
535 [Bui. No. 89, p. 414], “ when the plaintiffs in error combine and
agree that no one of them will trade with any producer or wholesaler
who shall sell to a consumer within the trade range of any of them,
quite another case is presented. An act harmless when done by one
may become a public wrong when done by many acting in concert,
for it then takes on the form of a conspiracy, and may be prohibited
or punished, if the result be hurtful to the public or to the individual
against whom the concerted action is directed.”

}

BULLETIN OF THE BUREAU OF LABOR STATISTICS.

ClVILrSERYICE EMPLOYEES— PENSION FUNDS— DEDUCTION FROM
Salaries— Constitutionality o f S tatu te— Hughes v. Traeger et al.,

Supreme Court of Illinois {Oct. 16, 1914), 106 Northeastern Reporter,
page 431.— This was a suit by Edward J. Hughes against John E.
Traeger and others on a bill in chancery to prevent the retention of
any portion of the complainant’s salary under the provisions of the
civil-service pension law of the State (Laws of 1911, p. 158). This
act provides for the establishment of such a fund, chiefly by the
retention from salaries and wages by the comptroller of the munici
palities to which the act applies of the sum of $2 per month for each
employee within its scope. The complaint charged that the statute
in question was unconstitutional, so that from a decree for the
defendant officials the case was taken on a writ of error from the circuit
court of Cook County to the supreme court, this court holding that
the statute was constitutional.

The status of the complainant and the operation of the law are
discussed in the following quotation from the opinion of the court,
which was delivered by Judge Dunn:
By section 1 of the pension fund act its provisions do not apply to
temporary or probationary employees or to laborers, except, in case
of the latter, upon their request. It applies, therefore, only to those
holding permanent positions, and those positions, whether called
offices or places of employment, have substantially the same char
acteristics, without regard to the character of the services rendered.
The bill states that the complainant was employed in the civil
service of the city, but necessarily, under the provisions of section 10
of the civil-service act, he was appointed by some appointing officer
acting under some authority derived from the city council. By
virtue of that appointment, and without legard to any agreement or
contract, the complainant was entitled to hold his position and
receive its emoluments until discharged for cause in the manner
prescribed by the civil-service act; but he was not bound to perform
the duties of his position for any length of time. He would violate
no obligation by leaving the service of the city at any time. There
were no terms of service agreed upon. The respective rights and
obligations of the city and the complainant were not fixed by con
tract, but by law and the action of the council authorizing his ap
pointment. He did not hold his position or perfoim its duties by
virtue of any contract. He had no property right in his position or
the salary attached thereto, and no rignt to compensation growing
out of any contractual relation. His position was subject to the
same legislative control as may be exercised over any public office.
Offices created by statute are wholly within the control of the legis
lature, which may at pleasure create oi abolish them, modify their
duties, shorten or lengthen their terms, increase oi diminish the
salary, or change the mode of compensation; and the power of
municipal corporations, within the limits prescribed by the constitu
tion or by statute, is of the same absolute character.

DECISIONS OF COURTS AFFECTING LABOR.

The effect of the law was to reduce the salary which the complain
ant would receive, $2 a month, but he was not thereby deprived of
his property, for he had no property in his unearned salary. It is
true that the complainant acquires no vested interest in the fund
created by the statute, for there is no contract by the State or the city
that the disposition of the fund may not be changed in the future,
and in such event the complainant’s expectancy might be destroyed.
The $2 a month deducted from the pay of each employee does not
become the property of such employee and can not be controlled or
disposed of by him. The fund created by these deductions remains
subject to the disposition of the legislature, and the employees can
not prevent its appropriation in another way than that designated
by tne statute. It is not their property, and the statute does not
amount to a contract by the State to use it in the manner provided
by the statute. A change in the disposition of the fund would not,
however, violate any right of the complainant, for until the happen
ing of the event designated by the statute for its distribution he has
no vested right in the fund, out only an expectancy created by the
law, which the law may revoke or destroy. Pennie v. Reis, 132 U. S.
464, 10 Sup. Ct. 149; State v. Trustees, 121 Wis. 44, 98 N. W. 954.
It is argued that, if the money retained be regarded as public money,
the act is void as an appropriation of public money for private use and
allowing extra money to public officers for services already performed.
In Firemen’s Benevolent Ass’n v. Lounsbury, 21 111. 511, 74 Am. Dec.
115, it was held that the raising of funds for the relief of the distressed,
sick, injured, or disabled members of the Firemen’s Benevolent Asso
ciation of Chicago and their immediate families was a public charity,
for which the legislature could make provision. Judge Dillon, writ
ing of pensions for municipal services, in his work on Municipal Cor
porations, vol. 1, sec. 430 (5th ed.), says that these annuities—“ are,
m effect, pay withheld to induce long-continued and faithful service,
and the public benefit accrues in two ways: First, by encouraging
competent and faithful employees to remain in the service and re
frain from embarking in other vocations; and, second, by retiring
from the public service those who, by devoting their best energies for
a long period of years to the performance of duties in a public office
or employment, have by reason thereof or of advanced age become
incapacitated from performing the duties as well as they might be
performed by others more youthful or in greater physical or mental
vigor.”
In Commonwealth v. Walton, 182 Pa. 373, 38 Atl. 790, legislation
like that in question was sustained against a similar objection. The
purpose of the legislation is within the constitutional power of the
general assembly.
Contract of E mployment — B reach — Suits — L imitations—

Pennsylvania Co. v. Good. Appellate Court of Indiana {Dec. 19,
1913), 103 Northeastern Reporter, page 672.—This was an action by
John S. Good against the railroad company named for damages for
alleged breach of contract of employment. Judgment was in his favor
in the circuit court of Marion County, and the company appealed.
The employee set forth that, in 1882, following the receipt of an

BULLETIN OF THE BUREAU OF LABOR STATISTICS.

injury, his claim for damages was released in consideration of an
agreement by the company to employ him as watchman, during his
life, at certain wages. He was employed in this capacity for some
time and discharged May 22, 1902, on account of which this action
was brought.
The company in its appeal argued that Good’s right of action
expired by the statute of limitations in May, 1908. He had brought
suit in 1904, but his counsel had voluntarily dismissed it after a
partial trial because of rulings by the court which he believed were
erroneous. As to the remedies which Good originally had and his
election between them, the court, speaking by Judge Lairy, said:
Upon such a breach, appellee had a right to pursue either of two
remedies. He might treat the contract as still subsisting, hold himself in readiness to perform and sue on the contract for the wages due
him thereunder, or he could treat the contract as terminated oy the
breach, and sue at once for the entire damages resulting to him from
such breach. [Cases cited.]
The cause of action for a breach of a contract accrues at the time
the breach occurs, and the statute of limitation begins to run from
that date.
If appellant had elected to treat the contract as still subsisting,
and to sue under it for his wages, his cause of action as to each install
ment of such wages would have accrued at the time when such in
stallment was due and payable by the terms of the contract, and the
statute of limitations as to each installment would run from the time
it became due. In this case appellee elected to treat the contract of
employment as terminated by ms discharge, and to sue for the entire
damage resulting to him. This right of action accrued on the date of
his discharge, and the statute of limitations expired on the 22d day
of May, 1908.
Convict L abor — State E mployment— Constitutionality of
Statute—Shenandoah Lime Co. et al. v. Mann et al.y Supreme Court

of Appeals of Virginia {Jan. 15, 1918), 80 Southeastern Reporter, page
753.—An act of the General Assembly of Virginia, known as the “ Con
vict lime grinding act,” which was approved March 14, 1912 (ch. 295,
Acts of 1912, p. 586), provides for the employment of convicts at
grinding oyster shells and limestone rock, provides for procuring the
material upon which they are to work and the instrumentalities with
which they are to do the work, and provides for the sale of the prod
uct of their labor and for their support from the proceeds. An ap
propriation of $30,000 is made by the act to carry its provision into
effect.
The Shenandoah Lime Co. brought suit against William Mann,
governor of the State, and other State officials, in the circuit court of
the city of Richmond, for an injunction to prevent the enforcement
of the act, on the ground that the law was unconstitutional as it

DECISION'S OF COURTS AFFECTING LABOB.

violates section 185 of the Virginia constitution, which forbids the
State from becoming a party to or interested in any work of internal
improvement, except public roads, or engaged in carrying on such
work. It was also contended that the act is obnoxious to section
188 of the constitution because it appropriates public funds for a
private purpose or business, and because it amounts to the taking
of the property of the lime company without due process of law,
contrary to the fourteenth amendment of the Federal Constitution.
The court held that the law was constitutional and dismissed the
bill of the company, whereupon an appeal was taken to the Supreme
Court of Appeals of Virginia, where the decision of the lower court
was affirmed. Judge Harrison, after reviewing the facts in the case,
spoke in part as follows:
It is apparent from the title, preamble, and the body of this act
that its dominant purpose is to provide suitable employment for
certain long-term or dangerous convicts confined in the penitentiary,
and that the other provisions of the act are merely tributary to that
end.

We are of opinion that the machinery for grinding oyster shells
and limestone rock, and the temporary structures for nousing the
convicts pending the work contemplated by the act in question do
not come within the meaning of the term “ internal improvements,”
as that term is used in section 185 of the constitution. Whatever
interpretation that term may have elsewhere, it has no such meaning
in Virginia, where for nearly, if not quite, 100 years it has acquired
a defimte and well-recognized meaning. Its meaning as thus defined
and understood throughout the legislation of the State, and the deci
sions of her courts has included and had reference to the channels of
trade and commerce, such as turnpikes, canals, railroads, telegraph
lines, including in more recent years telephone lines, and other works
of a like quasi public character.
The manifestly dominant purpose of the act being, as already seen,
to provide employment for convicts who could not be used in the
usual employments under existing statutes, there can be no question
that the State is acting within its police power in providing the
present means for employing such convicts.
We are warranted, upon abundant authority, in holding that the
exercise by the State of its police power, in enacting the “ Convict
lime grinding act” under consideration, can not be defeated because
of any conflict with section 185 of the constitution.
We are further of opinion that the act does not violate section 188
of the Virginia constitution. It does not, as contended, appropriate
public funds for a private purpose; nor does it amount to the taking
of the property of complainants without due process of law, con
trary to the fourteenth amendment of the Federal Constitution. It
being the purpose of the act to furnish employment to convicts, as
appears from the act itself, and that purpose being, as already seen,
a valid exercise by the State of its police power, the appropriation
which the act carries is clearly for a public purpose and not for a
private purpose.

BULLETIN o f t h e b u r e a u o f l a b o r s t a t i s t i c s .

Convict Labor—Working Out Costs—Action fo r Excess
Work— Tennessee Coal, Iron & Railroad Co. v. Butler, Supreme Court
of Alabama (June 4, 1914), 65 Southern Reporter, page 804-—Alex
Butler brought action against the company named in the city court
of Birmingham, where his suit prevailed. Butler had been convicted
of petty larceny. He was hired from Jefferson County to the de
fendant company to work during the term of his sentence. After
serving his sentence of 110 days at hard labor he proceeded to work
out his costs, which amounted to $29.35, at the rate of 40 cents a day
as provided in the sentence. Under the law he was entitled to work
out the costs at the rate of 75 cents a day. He claimed as damages.
the value of the labor which he had performed in excess of the legal
amount, and the court held that his further imprisonment after the
valid part of the contract was illegal, and affirmed the judgment in
his favor.
Employers7 Liability—Abrogation o f Defenses— Classifica
tion o f Employments— Constitutionality o f Statute— Vandalia
Railroad Co. v. StilweTl, Supreme Court of Indiana {Mar. 10, 1914),
104 Northeastern Reporter, page 289.— Charles Stilwell was a freight

brakeman in the employ of the company named, and sued the com
pany for damages for personal injury. The first paragraph of the
complaint charges negligence of the engineer in backing an engine
and cars against a car on which appellee was riding in the course of
his duty, whereby he was thrown from the car and injured, and no
question is raised as to its sufficiency. The second paragraph alleges
the railroad’s liability under the employers’ liability act of March 2,
1911 (Acts of 1911, p. 145). The railroad company demurred to this
paragraph, and assigned the overruling of the demurrer as error in
appealing from the judgment of the circuit court of Morgan County
in favor of the employee. Judge Myers delivered the opinion of the
court, affirming the judgment of the court below. As to the grounds
of defense he said:

The specific grounds of challenge of the constitutionality of this act
is [are] that it makes an employer liable for an injury to an employee
arising out of dangers and hazards inherent in the nature of the
employment, without fault of the employer, and thereby deprives
appellant of its liberty and property without due process of law, in
violation of article 14, in amendment of the Federal Constitution,
and of section 12, art. 1, of the State constitution, and that it makes
employers of five or more persons liable, and leaves employers of
less than five persons free from the obligations, and liabilities imposed
by the act, and thereby denies appellant the equal protection of the
laws in violation of the fourteenth amendment to the Federal Con
stitution, and section 23, art. 1, of the State constitution.
Analyzing the effect of the law, the court concluded that the
statute does not change the law as it formerly existed as to when an

DECISIONS OF COURTS AFFECTING LABOR.

employee assumes the risk, or is negligent, or as to the burden of
proof as to negligence, but does destroy the fellow-servant rule and
changes the rule as to burden of proof as to knowledge or constructive
knowledge of the defect in the place, tool, or appliance; that the
statute creates no liability on the part of the employers where there
is no negligence, and hence does not deprive employers of liberty or
property without due process of law.
Judge Myers discussed at length the question of the classification
making the act applicable only to employers of five or more workmen,
and concluded that it must be considered a reasonable classification
on the ground that unless courts are satisfied that there can be no
reasonable basis for such a classification, they will not overthrow the
statute. The following brief quotations are taken from the discus
sion on this point:
The question resolves into the proposition under the broadest views
of the case, whether the classification made by the statute here
involved rests upon some material or substantial basis, and operates
upon all alike within the class.
This statute * * * operates upon conditions which by reason
of numbers are not and can not be the same, though the relation should
be close, but which will be the same in case the number is reached, in
analogy to classification by population, in addition to the fact that there
is a natural relation of increase of danger from mere numbers, even
though there should seem to be some mequality between so small a
difference as between four and five, but that is an inseparable incident
of the power of classification.
As to the application of the act to railroads, Judge Myers said:
It is next urged that the act does not apply to railroads for the
reason that they are not engaged in “ business, trade or commerce,”
in the language of the act. “ Business” is defined as that which
occupies the time, attention, or labor, of men for the purpose of
profit or improvement, as their principal concern. [Cases cited.]
“ Commerce” is defined as traffic and something more; it is inter
course, transportation; and the latter is commerce itself. It includes
not merely traffic, but the means and vehicles by which it is accom
plished. As used in the Federal Constitution, it, of course, applies to
relations between citizens of different States, foreign nations, and the
Indian tribes, and is broad enough to embrace intrastate traffic, and
transportation, as well. We have no difficulty in determining that
the statute embraces railroads.

Employers' Liability—Abrogation o f Defenses—Constitu
tionality o f Workmen’s Compensation Act— Crooks v. TazeweU
Coal Co., Supreme Court of Illinois (Apr. 28, 1914), 105 Northeastern
Reporter, page 182.—Louis Crooks brought action against the com

pany named for damages for personal injury, alleged to have been
caused by its negligence in failing to construct an entry in its mine

BULLETIN OF THE BUREAU OF LABOR STATISTICS.

of sufficient height and width to permit him safely to drive coal cars
through it, and in allowing coal and refuse to accumulate on the
tracks. The company had elected not to come under the workmen's
compensation act of the State (Acts of 1911, p. 314), and consequently,
in accordance with its provisions, was deprived of the defences of
assumed risk, negligence of fellow servants, and contributory negli
gence. It questioned the constitutionality of the act, but contended
that, since the employee had elected to come within the provisions of
the act, he was limited in the amount of his recovery by the act, and
must bring his proceeding under it. The court affirmed a judgment
of the circuit court of Tazewell County for the plaintiff, and followed
the decision in Deibeikis v. Link-Belt Co., 261 111. 454, 104 N. E. 211
(see p. 216), in holding that the act is constitutional, and also that
where either party elects not to be bound by the act, and so notifies
the proper authorities, there is no contract under the act, and the
employee is not limited in his recovery by its terms.

Employers' Liability—Abrogation o f Fellow -servant Doc
trine—Constitutionality o f Statute— Easterling Lumber Co. v.
Pierce, Supreme Court of Mississippi (Mar- 2, 1914), 64 Southern
Reporter, page 461.— S. W. Pierce, the plaintiff, recovered in the

circuit court of Covington County, the sum of $17,500 as damages
for personal injuries resulting in the loss of a leg, suffered while an
engineer in the employ of the company named. The engine which
he was driving on a logging road, hauling a train carrying employees
to the company's camp, met in head-on collision another engine
pulling cars from the camp. The constitutionality of the statute
(ch. 194, Acts of 1908) abolishing the fellow-servant rule among certain
employees was brought in question, the company advancing two
reasons: (1) It violates section 193 of the Mississippi constitution,
which largely took away the defense of fellow service in personalinjury suits against common-carrier railroads; (2) it violates the
equality clause of the fourteenth amendment to the Constitution of
the United States.

Judge Reed, in delivering the opinion of the court, spoke in part
as follows:
We quote the first section of the chapter:
“ Every employee of a railroad corporation, and all other corpora
tions and individuals, using engines, locomotives or cars of any kind
or description whatsoever, propelled by the dangerous agencies of
steam, electricity, gas, gasoline or lever power, and running on
tracks, shall have the same rights and remedies for an injury suffered
by him from the act or omission of such railroad corporation or
others, or their employees, as are allowed by law to other persons
not employed. * *

DECISIONS OF COURTS AFFECTING LABOR.

It has been held that section 193 applies only to railroad corpora
tions engaged in the business of common carrier, or those denomi
nated “ commercial railroad companies,” and that it does not apply
to railroads owned and operated as an adjunct to the main business
of their owners, such as construction company roads, roads used in
connection with mines and lumber corporations and logging roads.
Construction Co. v. Heflin, 88 Miss. 314, 42 So. 174, [Bui. No. 69,
p. 446]. The railroad in the case at bar is a logging road.
It will be noticed that the final sentence of section 193 provides
for the extension of the remedies therein in the following language:
“ The legislature may extend the remedies herein provided for to any
other class of employees.” It is not argued by counsel for appellant
that the legislature could not extend the remedies to employees of
logging roads. It is conceded that this may be done. It is claimed
that the words were at once a grant and a limitation; that by neces
sary inference the limitation amounted to a denial to the legislature
of a power to grant any remedies curtailing the fellow-servant rule
other than those provided in the section. It is true that by the
statute (ch. 194, Acts 1908) there is a broader and fuller statement of
the abrogation of the fellow-servant rule than that contained in the
section of the constitution. The makers of the constitution, by sec
tion 193, provided for the abrogation of the fellow-servant doctrine
to a certain extent.
It was said by Mr. Chief Justice Whitfield in the case of Ballard v. Oil
Co., 81 Miss. 507, 34 So. 533 [Bui. No. 49, p. 1363], that it was the pur
pose of the framers of the constitution to authorize legislation to
abolish the fellow-servant rule in the case of railroad corporations whose
business was known to be inherently dangerous in so far as such litiation [legislation] would be in accord with the principles announced
y the decisions of the United States Supreme Court. He further
stated in his opinion in that case that “ the purpose of the last clause
of section 193 was to extend the remedies therein provided for to any
other class of employees of corporations or persons whose business
was, like that of railroads, inherently dangerous, or whose business
was so different from the business of other corporations or persons
as to furnish the basis for a classification of the business of such cor
porations, or persons, under which their employees might be per
mitted to sue without reference to the fellow-servant rule, while the
employees of corporations, or persons not having that sort of business,
could not so sue; in other words, to permit a classification based on
‘some difference bearing a reasonable and just relation to the act in
respect to which the classification is proposed/ * * * It is not
therefore to be supposed that the last clause of the section meant any
more than that there might be other classifications of the employees
of corporations or individual persons based also on some distinguish
ing difference in the nature of the businesses.”
We can not believe from an entire consideration of the section, and
in view of its evident purpose, that the final sentence was intended
as a restriction. In truth, we do not see that it is necessary to regard
it as a grant in order that the legislature should be able to enact a
statute to abolish the fellow-servant rule in proper classes of em
ployees. The legislature is intrusted with the general authority to
mate laws at discretion, unless there is a clear constitutional pro
hibition.

BULLETIN OF THE BUREAU OF LABOR STATISTICS.

Now as to the contention that chapter 194 violates the equality
clause of the fourteenth amendment of the Constitution of the
United States: Counsel for appellant contend that this violation is
accomplished by the inclusion of the words “ and running on tracks.”
We can not agree with counsel that this is so. It has been held
that section 193 of the constitution excludes all railroads except com
mercial railroads, or those engaged in the business of common car
rier. We see in the act of the legislature the purpose to extend the
remedy provided by the abrogation of the fellow-servant doctrine to
all employees of all railroad corporations, including the commercial
railroads, and including also all other railroads, such as logging rail
roads and those connected with lumber and other enterprises using
such engines, locomotives, and cars “ running on tracks.” We un
derstand the words “ running on tracks” to define such engines,
locomotives and cars propelled by the several dangerous agencies
named as are used in all of the different kinds of railways. The
statute was meant in its broad expression to exclude no kind of rail
ways in Mississippi. The statute provides that the remedies extend to
all employees using engines, locomotives, or cars owned and operated
by railroad corporations and all other corporations and individuals.
In short, the class made by the statute is all employees using such
engines, locomotives, and cars of all kinds and descriptions propelled
by the dangerous agencies specified and running on tracks, that is, on
a defined way such as used by railroads. We deem this a reasonable
classification which applies equally to all in the same situation.
An attempt was made to carry this case to the Supreme Court of
the United States on a writ of error, which that court dismissed for
want of jurisdiction (35 Sup. Ct. 133). One ground was that the
classification in the statute which has been mentioned was so unequal
as to cause the statute to be in conflict with the fourteenth amend
ment; and the other that chapter 215 of the Mississippi Laws of 1912,
enacted after the happening of the accident, but before the trial,
providing that from the proof of the happening of an accident there
should arise a prima facie presumption of negligence, was wanting in
due process because retroactively applied to the case.
Mr. Chief Justice White, who delivered the opinion, said in con
clusion:
As it results that at the time the writ of error was sued out it had
been conclusively settled by the decisions of this court that both
grounds relied on were devoid of merit, we think the alleged consti
tutional questions were too frivolous to sustain jurisdiction, and we
therefore maintain the motion which has been made to dismiss, and
our judgment will be, dismissed for want of jurisdiction.

Employers’ Liability — Employment o f Children — Age
Limit— Constitutionality of Statute—Misrepresentation of
Age—Sturges & Burn Manufacturing Co. v. Beauchamp, United
States Supreme Court {Dec. 1, 1913), 34 Supreme Court Reporter,
page 60 .—Arthur Beauchamp, the defendant in error, was injured

DECISIONS OF COURTS AFFECTING LABOR.

while employed by the company named as a press hand to operate
a punch press used in stamping sheet metal, being at the time under
16 years of age. He brought an action through his next friend in
the superior court of Cook County, 111., to recover damages for the
injury sustained, relying on a statute of Illinois (Laws of 1903, p. 187,
Hurd’s Stat. 1909, p. 1082), which, by section 11, prohibited the
employment of children under 16 years of age in various hazardous
occupations, including that in which the injury occurred. A ver
dict was rendered for Beauchamp in the trial court, which judgment
was affirmed by the supreme court of the State. (250 111. 303, 95
N. E. 204.) The case was then taken to the Supreme Court of the
United States on error, where the judgment of the State court was
affirmed. Mr. Justice Hughes, who delivered the opinion of the
court, after stating the facts, said:
The Federal question presented is whether the statute, as con
strued by the State court, contravenes the fourteenth amendment.
It can not be doubted that the State was entitled to prohibit the
employment of persons of tender years in dangerous occupations.
[Cases cited.] It is urged that the plaintiff in error was not per
mitted to defend upon the ground that it acted in good faith relying
upon the representation made by Beauchamp that he was over six
teen. It is said that, being over fourteen, he at least had attained
the age at which he should have been treated as responsible for his
statements. But, as it was competent for the State, in securing the
safety of the young, to prohibit such employment altogether, it
could select means appropriate to make its prohibition effective, and
could compel employers, at their peril, to ascertain whether those
they employed were in fact under tne age specified. The imposition
of absolute requirements of this sort is a familiar exercise of the pro
tective power of government. [Cases cited.] And where, as here,
such legislation has reasonable relation to a purpose which the State
was entitled to effect, it is not open to constitutional objection as a
deprivation of liberty or property without due process of law. [Cases
cited.]
It is also contended that the statute denied to the plaintiff in
error the equal protection of the laws; but the classification it estab
lished was clearly within the legislative power.

Employers’ Liability—Guards for Dangerous Machinery—
Laundries—A pplication of L aw —A ssumption of R isks— McOlary

v. Knight, Supreme Court of Appeals of West Virginia (Dec. 9, 1918),
80 Southeastern Reporter, page 866.—T. A. Mcdary was employed in
Knight’s laundry to run the engine and washers. He was directed
to oil one of the washers, and after having done so, was endeavoring
to replace the belts on the pulleys of the line shaft overhead. He
was standing on top of the washing machine, when his sleeve was
85590°— Bun. 169—15------5

BULLETIN OF THE BUREAU OF LABOR STATISTICS.

caught in a belt, throwing him into a running wringer or extractor
near by, which had no covering over it, and injuring him to such an
extent that amputation of his leg was necessary. He sued Knight
and obtained a judgment in the circuit court of Cabell County,
W. Va., which judgment was affirmed by the State supreme court of
appeals.
In considering whether a laundry was an establishment within the
meaning of chapter 19, Acts of 1901, requiring safety guards in
“ manufacturing, mechanical, and other establishments,” Judge
Poffenbarger, for the court, said:
The gravamen of the second count of the amended declaration is
failure to guard the wringer or extractor, or provide a cover of some
sort for it. A steam laundry may not be a manufacturing establish
ment, but it is mechanical in the sense that it is filled with running
machinery. Whether this is the sense in which the word 11mechan
ical” was used or not, such a laundry is an establishment uwhere the
machinery, belting, shaftings, gearings, drums, and elevators” are
so arranged and placed as to be dangerous to persons employed therein.
The judge then considered the question as to whether the machin
ery was of such a nature as to be dangerous to the employee and
impose upon the master the duty to put a cover or guard over it, and
gave his opinion that the evidence submitted was sufficient to carry
the question to the jury. He then took up the contention that
McClary had assumed the danger of injury as a risk of his employment
and said:
If the omitted duty had been one imposed by the common law,
the plaintiff’s right of action would be precluded by his assumption
of the risk of the injury he suffered. He knew as"much about the
plant and machinery as the master himself, having worked there for
nearly four years and in many other similar places. But the duty left
unperformed by the master was a statutory one, and the great weight
of authority is to the effect that a servant working around unguarded
machinery which the statute requires to be guarded does not assume
the risk of such injury as may ensue. The statute does not in terms
eliminate assumption of risk, nor say the omission of duty shall be
negligence on the part of the master. But, to make tfie statute
effective, it is necessary to exclude the assumption of risk and give
a right of action for the omission of duty.

Employers’ Liability— Guards fo r Dangerous Machinery—
Negligence— Phillips v. Hamilton Brown Shoe Co., Kansas City
Court of Appeals {Apr. 6, 1914), 165 Southwestern Reporter, page
1183.—Champ Phillips brought action against the company named

for personal injuries sustained by him by the breaking of the steel
driver of a shoe-tacking machine which was not guarded, and the
consequent flying of particles which caused the loss of an eye. Sec

DECISIONS OF COURTS AFFECTING LABOR.

tion 7828, Revised Statutes of Missouri, 1909, requires the machinery
in all manufacturing, mechanical, and other establishments in the
State, when so placed as to be dangerous to persons employed therein
or thereabouts while engaged in their ordinary duties to be safely
and securely guarded when possible.
Phillips was 18 years of age at the time of the accident. The
machine which he was using breaks off and drives into the shoes as
tacks pieces of wire at the rate of 400 per minute. The driver, which
was necessarily small and of highly tempered steel, frequently broke
and flew with great force, sufficient to pierce the skin of an operator.
The plaintiff had been working at the machine for five weeks before
the injury. He was obliged while at his work to stand facing the
machine and about two feet from it. The result of the trial in the
circuit court of Boone County was a judgment in the plaintiff's favor,
from which the company appealed.
The following extract from the opinion of the court of appeals, as
delivered by Judge Trimble, shows the grounds on which the judg
ment below was affirmed:
The main question to be disposed of is: Does the statute apply to
a case of this kind, where the injury is not caused by the employee
coming into contact with an unguarded machine, but is caused by
the lack of a guard to prevent broken pieces from flying from the
machine when such breakage is of such frequent and ordinary occur
rence as to notify the master that the machine as located and oper
ated is dangerous and likely to injure employees ?
We can see no reason why the statute should be given the narrow
construction contended for by defendant. The object of the statute
is the safety of the employee. It would seem that if that safety
would be imperiled either by the employee's inadvertently coming
in contact with the machine or by the machine's working in such
way as to give notice that it was likely to actively injure the employee
the machine would be “ dangerous to persons employed therein or
thereabouts,” within the meaning of the statute.
In the case before us, the negligence charged against the master is
that it failed to guard when it could have done so. The evidence
tends to show that the failure to guard was the real cause of the
injury, and nothing that the plaintiff did or failed to do had any part
therein. In all of the cases cited as holding the plaintiff guilty of
contributory negligence, such negligence was bottomed on some act,
or omission to act, on the part oi the employee which he should not
or should have performed m the exercise of the prudence of an ordi
nary man.
Employers’ Liability— Guards fo r Dangerous Machinery—
Proximate Cause— Damages— Cincinnati, Hamilton & Dayton
Railway Co. v. Armuth, Supreme Court of Indiana (Dec. 19, 19IS),
10S Northeastern Reporter, page 788.—Henry F. Armuth brought

action against the railway company named for damages for personal

BULLETIN OP THE BUREAU OP LABOR STATISTICS.

injury, because of the failure of the company to conform to the
statute requiring the guarding of dangerous machinery. (Burns, A. S.
1908, secs. 8021-8052.) The employee’s hand slipped from a lever
which he was operating, into unguarded cogwheels a few inches
away, causing the loss of two fingers. He had secured a verdict in
the circuit court of Marion County, and the company appealed.
The court held that the failure to guard the machinery and the slip
ping of the hand were concurring causes of the injury, and that the
former, being in violation of statute, was the proximate cause; so
that the company was liable unless the slipping of the employee’s
hand was due to his fault, which question was for the jury. There
was therefore no ground for reversal of the judgment on this point,
but it was reversed and a new trial granted the defendant because
the trial judge had erred in allowing the jury to consider as elements
of damages the employee’s loss of time and expense for medical and
hospital treatment, although the complaint alleged and the evidence
implied only that there were such loss and such expense, without
showing the amount of same.
Employers’ Liability—Guards fo r Dangerous Machinery—
Safety from Location— Smith v. Mt. Clemens Sugar Co., Supreme
Court of Michigan (Mar. 26, 1914), 146 Northwestern Reporter,
page 268 .— George W. Smith brought action for damages for personal

injuries received while employed by the company named in looking
after the juice pumps at its factory, and from a judgment in his favor
the company appealed. Each of the pumps was connected with
a tank 8 feet high. Above the tanks was a lime conveyor, an iron
trough 2\ feet in diameter, through which ran a spiral attachment,
which pushed the refuse lime along until it was finally discharged
into the sewer. A stream of water ran into the conveyor, and was
controlled by a valve 9 feet from the floor, which plaintiff found it
necessary to operate to increase the flow of water. After turning
on the water, he started to come down the ladder, which had been
broken and mended, and one of its sides gave way. His left hand
went into a gearing 3 feet away, and he received an injury such as
to necessitate the amputation of his arm between the elbow and
wrist. The cog gear was about 9 feet from the floor, and was not
guarded in accordance with the statute requiring the guarding of
gearing and other dangerous machinery. As to the question whether
the statute applied to this gearing the court, speaking by Judge
Brooke, said:

It is urged that defendant’s motion for a directed verdict should
have been granted upon the ground that under the facts in this case

tnCOISIONS OF

co u r ts a f f e c t in g

labor.

the statute relied upon can not apply, and therefore that no iiegligence on the part of the defendant was shown. It is said that the
gears in question, situated as they were some 9 feet from the floor,
were safeguarded by their position. If, as the evidence introduced
by plaintiff seems to show, it became necessary for one or other
of tne employees of defendant many times each day to mount a
ladder and attend to a portion of the work within 3 feet of the exposed
gearing, we think it can scarcely be said, as a matter of law, that
the “ position” was an adequate safeguard. Indeed, it may well
be doubted whether an exposed gearing can be placed in any posi
tion which as a matter of law would be considered as an equivalent
to the statutory safeguard. But at all events the charge upon
the subject was as favorable to defendant as it was entitled to demand.
The judgment was therefore affirmed.

Employers’ Liability— Guards fo r Dangerous Machinery—
Saws—Pulse et al. v. Spencer, Appellate Court of Indiana (May 20,
1914), 105 Northeastern Reporter, page 268 .—Ruben Spencer was
injured, as was alleged, by the failure of his employers properly to
guard a saw. The principal use of the saw which caused the injury
was that of cambering joists. When it was used for that purpose,
it could not be guarded in the rear by a spreader, but for the work
which the employee was doing at the time of the accident the spreader
might have been in place, but was not. The saw was operated
exclusively by this employee, and the defendant contended at the
trial, and asked an instruction to the effect, that his removal of the
guard, if it took place, was negligence per se.
The circuit court of Bartholomew County rendered judgment in
favor of the plaintiff, and the appellate court affirmed this judg
ment, holding, among other things, that the instruction mentioned
was properly refused. On this point Judge Lairy expressed the
opinion of the court as follows:

Under some circumstances a guard required by statute may be
removed without constituting a violation of the statute. The act
itself provides that such a guard may be removed for the purpose of
making repairs, and the courts have held that machinery is not
required to be guarded when the use of guards would materially
interfere with its usefulness. The evidence in this case shows that
the principal purpose for which the saw in question was used was
that of cambering joists, and that, when used for such purpose,
the use of a spreader or guard was impracticable. In view o f this
evidence, the spreader might be properly removed when the saw
was used for cambering joists, and such a removal would not con
stitute a violation of the statute, and would not be negligence per se.

BULLETIN OF THE BUREAU OF LABOR STATISTICS.

Employers’ Liability—Mine Regulations— Certified Fore
man—T rial by Jury— Myers v. Pittsburgh Coal Co., United States
Supreme Court (Apr. 6, 1914), 34 Supreme Court Reporter, page
559.—John Myers was killed while employed by the coal com

pany in the movement of coal cars in the mine. His widow brought
an action in the United States Circuit Court for the Western District
of Pennsylvania to recover for his death, alleged to have been caused
by the negligence of the coal company. A judgment rendered in her
favor was reversed by the circuit court of appeals, without directing
a new trial and without sending the case back to the trial court.
The case was then brought to the United States Supreme Court on
writ of certiorari, where the judgment of the circuit court of appeals
was reversed and the judgment of the trial court against the coal
company was affirmed. The action of the circuit court of appeals
was based largely upon the want of definite proof as to the manner
in which Myers came to his death, but the Supreme Court held that
there was ample testimony to submit to the jury, and that the trial
court properly left the question to the jury upon testimony which,
when fairly considered, might sustain the verdict.
The coal company objected to the charge given to the jury as to its
liability when the mine was in charge of a duly qualified mine fore
man. In disposing of this objection, Mr. Justice Day said:
The record shows that there was testimony tending to show that
the electrical system was in charge of the electrician of the coal com
pany employed as superintendent of electrical equipment, who had
charge of the purchase, installation, care, operation, and maintenance
of the electrical equipment used by the company, and who was not
subject to the mine foreman. The court submitted to the jury the
question whether the coal company had committed to the mine fore
man the electrical system of hauling in the interior of the mine, or
whether such system was in charge of an electrical engineer not
accountable to the mine foreman, distinctly telling the jury that if
the mine foreman was in charge in this respect, the company would
not be responsible, but if they found that the coal company had
excluded from the control of the mine foreman the electric haulage
system, and that the negligence of the coal company was the direct
and proximate cause of the death of the plaintiff’s husband, there
must be a recovery. The charge in this respect was as favorable as
the company was entitled to have given.

Employers’ Liability—Mine Regulations— Duty o f Fore
man— Assumption o f Risks— Humphreys v. Raleigh Coal & Coice
Co., Supreme Court of Appeals of West Virginia (Jan. 14, 1914),
80 Southeastern Reporter, page 803.—Humphreys, an employee of the

coal company, obtained a judgment against the company in the
circuit court of Raleigh County, W. Va., for an injury sustained in

DECISIONS OF COUBTS AFFECTING LABOB.

February, 1911, by coming in contact with an uninsulated wire used
as a feed wire to an electric pump. In affirming the judgment of the
lower court, Judge Poffenbarger, speaking for the supreme court of
appeals, said:
Nothing in the statute imposing upon operators duty to employ
mine foremen, and exonerating them from liability for the conse
quences of the negligence of such employees acting within the scope
of their statutory powers, absolves the employer from duty to equip
the mine or plant with suitable machinery and appliances for the
prosecution 01 the work. To the foreman, the statute commits the
control and supervision of the inside workings or actual operation of
the mine, including the use of machinery and appliances furnished by
his employer.
Both the pump and the wire must necessarily have been furnished
by the defendant, for obviously there was no duty upon any other
person to supply them. If no feed wire was supplied, and, in conse
quence of lack thereof, the foreman had to improvise the one used,
it was none the less furnished by the defendant in the legal sense,
for the mine foreman was his agent, and what a man does through
or by another he does himself. Manifestly the wire was an instru
mentality or appliance for use, or at least used, in the operation of
the pump. Provision of such things, suitable for the purposes for
whicn they are used, and reasonably safe as regards the person of the
servant, is a nondelegable duty of the master imposed by the com
mon law, from which he is not absolved by the terms or general
purpose of the mine-foreman statute.
Employers’ Liability—Mine Regulations— Failure to Em
ploy Mining Boss—Baisdrenghien v Missouri, Kansas & Texas
Railway Co., Supreme Court of Kansas {Mar. 7, 1914), 139 Pacific
Reporter, page 428.—The plaintiff was injured by a falling rock while

employed by the company named as a miner. The trial jury rendered
a verdict in his favor, and this the supreme court upheld There was
evidence that the failure of the company to provide a mining boss to
inspect the mine was the proximate cause of the injury. As to the
effect of this provision of statute and the failure to observe it the
court, speaking by Judge Smith, said:
The statute requires the owner or operator of a mine to “ employ a
competent and practical inside overseer, to be called ‘mining boss/
who shall keep a careful watch over * * * traveling ways,
* * * and shall see that as the miners advance their excavations all
loose cool [coal], slate and rock overhead are carefully secured from
falling in upon the traveling ways.” Any omission of this requirement
which, by diligent compliance therewith, would have obviated an
injury to a miner renders the owner or operator liable in damages.
The law to this extent entirely shifts the risks of the employment from
the laborer to the employer. Care for his own safety may impel a
miner to watch for treacherous mine roofs, but he is not legally
required to do so, but may rely upon the presumption that the mining
boss or overseer has fully performed his duty.

BULLETIN OF THE BUBEAU OF LABOR STATISTICS.

Employers' Liability—Mine Regulations— Inspection— Piazzi
v. Kerens-Donnewald Coal Co., Supreme Court of Illinois (Feb. 21,
1914), 104 Northeastern Reporter, page 200.—Adolph Piazzi recovered

a judgment in the circuit court of Madison County for $1,500 against
the company named, for personal injuries. This was affirmed in the
appellate court, from which the case was taken up on certiorari.
Piazzi with another man was cleaning up a crosscut in a mine which
had been closed for several months. They attempted to remove a
clod in the roof, which had not been marked as dangerous by the mine
inspector, but not succeeding, went to work under it, when it fell,
injuring the plaintiff.
The company contended that, since the men were engaged in mak
ing dangerous places safe, they assumed the risks of their employment;
also that they were guilty of contributory negligence in working under
the clod. As to these matters the court, speaking by Judge Dunn,
said:
All the men in the mine were working under the direction of the
mine manager, and according to the testimony of the assistant mine
manager all were under general directions to make dangerous places
safe. But these instructions did not relieve the owner from the duty
of having the mine examined, the mine examiner from the duty of
marking dangerous places, or the mine manager from the duty of
having danger signals placed.
Whether the failure of the mine examiner to mark the place was the
proximate cause of the injury was a question of fact for the jury.
The plaintiff had a right to rely upon the performance of the mine
examiner's duty, and the absence of a mark indicated the opinion of
the mine examiner that the clod was not dangerous. The plaintiff
can not be held guilty of contributory negligence in working under the
clod. If it had l)een marked dangerous, he would probably not have
given up the effort to get it down, and gone under it to work, and
would not have been hurt.
The judgment of the appellate court is affirmed.

Employers' Liability—Mine Regulations— Lead and Zinc
Mines—Application o f Statute —Big Jack Mining Co. v. Parkinson, Supreme Court of Oklahoma (Dec. 20, 1918), 137 Pacific Reporter,
page 678.—Parkinson was employed as a miner in a lead and zinc

mine of the company named. He was killed on July 6, 1910, by a
fall of rock from the roof of the drift in which he was working. His
widow obtained a judgment in the district court of Ottawa County,
Okla., against the company, and the case was then taken to the State
supreme court on error, where the judgment was affirmed.
A point of considerable interest was as to the application of the
mining law of the State to the case in hand, the company claiming
that it was not applicable to mines of the class in which the deceased
workman was employed.

d e c is io n s

of c o u r t s a f f e c t i n g

labor.

This contention was rejected by the court, Judge Galbraith, who
delivered the opinion, saying in part:
We do not believe that the legislature intended to provide with
such minute care for the protection of workers in coal mines, and to
leave similar workers in lead and zinc mines without any protection
whatever, particularly when these statutes bear such conclusive evi
dence that they were mtended by the legislature to protect the laborer
not only in coal mines but in every other mine that may be operated
within the State. We are constrained to hold that the trial court
correctly interpreted the meaning, purpose, and intent of the legis
lature in enactmg these statutes, and in holding that the duty imposed
on the operator of a mine thereby was a duty that the plaintiff in
error owed to the deceased in this instance.
Employers’ Liability—Mine Regulations— Violation o f Stat
ute— Assumption o f Risks— Fellow Service— Maronen et al. v.
Anaconda Copper Mining Co., Supreme Court of Montana (Nov. 24,
1918), 1S6 Pacific Reporter, page 968.— August Maronen was employed

in the company’s mine and was killed in September, 1911, while being
hoisted through a shaft, by falling from the cage, the fall being due
to the fact that the cage doors were not closed. Section 8536, Revised
Codes, Montana, provides that cages must be equipped with steel
doors and that such doors “ must be closed when lowering or hoisting
the men.” Maronen’s widow and children brought suit against the
company in the district court, Silver Bow County, where judgment
was for the company. This judgment was affirmed by the Supreme
Court of Montana.

The evidence submitted showed that no station tenders were em
ployed to close the cage doors, but a rule adopted required the first
man who entered a cage to close the doors before the cage was hoisted.
It appeared that Maronen had entered the cage first and had not
closed the doors before the signal was given to hoist the cage. After
reviewing the law and evidence, Judge Holloway, for the court, con
cluded:
Our conclusion is that the trial court was justified in finding that
Maronen was to all intents and purposes a station tender in the sense
that it was his duty to close the door when he entered the cage to be
hoisted, and that his death resulted from his failure to discharge a
duty which could be and was rightfully imposed upon him; and,
because he could not have succeeded upon these facts in an action if
he had been injured only, neither his heirs nor personal representa
tives can succeed in this one.
Employers’ Liability— Negligence—Evidence— Guards fo r
Dangerous Machinery— Byland v. E. I. du Pont de Nemours Powder
Co., Supreme Court of Kansas (Nov. 14, 1914)} 144

Pacific Reporter,

b u l l e t in

the

bureau

of labo r s t a t is t ic s .

page 251.—Tobias Byland was an employee of the company named,

and was injured and sued the company. Judgment was for the
defendant in the district court of Cherokee County, and this was
affirmed on appeal. The questions decided are sufficiently shown
in the syllabus prepared by the court, which is as follows:
In an action to recover for injuries caused by the explosion of
defendant’s powder mill, there was no substantial evidence, direct or
circumstantial, fairly tending to prove what actually caused the
explosion. Held, following Brown v. Railroad Co., 81 Kans. 701,
106 Pac. 1001, “ it is not sufficient to show circumstances which
would indicate that the other party might have been guilty of negli
gence, especially when the evidence furnished suggests, with equal
force, that the injury might have resulted without fault on the part
of the other party” ; and that the court rightly sustained a demurrer
to the evidence.
Where, in an action founded upon negligence, the plaintiff alleges
specifically the negligent acts of the defendant upon which he relies
to recover, he must prove the negligence alleged, and will not be
allowed to make a pnma facie case relying upon the doctrine of res
ipsa loquitur.
Plaintiff was injured by the explosion of defendant’s powder mill,
and alleged, among other acts of negligence, failure of the defendant
to provide some appliance to prevent metallic thumb nuts from falling
through a defective screen, and alleged that, by reason of the absence
of such an appliance, metallic thumb nuts found their way into the
inflammable mixture and caused the explosion. At the time the
explosion occurred, the plaintiff was not at work near the machine,
but stood outside the building, where it was located, and 50 feet
therefrom. He was not injured by the thumb nuts falling upon him
nor by coming in contact with the machine. Held, that the pro
visions of the factory act (section 4679, Gen. Stat. 1909), requiring
machinery to be properly and safely guarded for the purpose of pre
venting or avoiding injury to employees in factories, has no applica
tion, and that plaintiff could not maintain an action under the statute.

Employers’ Liability—Pension Funds— Election o f Rights—
Longfellow et al. v. City of Seattle, Supreme Court of Washington (Dec. 4,
1918), 136 Pacific Reporter, page 855.—A statute of the State of

Washington empowers incorporated cities and towns having a paid
fire department to compensate the widows and dependents under 16
years of age of firemen killed while on duty, by granting a pension
equal to one-half the salary being received by the fireman at the time
of his death. The city of Seattle made the statute operative within
that city. James Longfellow was thrown from a fire wagon in Novem
ber, 1910, and killed. The widow filed a claim for a pension for her
self and minor children, one of whom was a daughter between 16 and
17 years of age. The claim of the widow was allowed and payments
were made to her, beginning in January, 1911. In December, 1910,

*75

DECISIONS OF COURTS AFFECTING LABOR.

the widow also filed a claim for damages for $10,000 for the death
of her husband, due to the wrongful and negligent act of the city.
The claim was rejected and in September, 1911, she brought suit in
the superior court of King County for the sum of $8,500 in her own
right and for $1,500 as guardian of her daughter Myrtle, who was over
16 years of age. The city contended that the acceptance of benefits
from the pension fund barred a right of action for damages and judg
ment was entered for the city. An appeal was taken to the supreme
court of the State where it was decided that by accepting benefits
from the pension fund the widow had barred her right to recover
damages.
It was held, however, that as the daughter had no rights under the
pension law she had a right of action in the courts.
Employers* Liabilty—Railroad Companies— Blocking Frogs
— “ Yards” — George v. Quincy, Omaha & Kansas City Railroad Co.,
Kansas City Court of Appeals (May 4, 1914), 16? Southwestern
Reporter, page 15S.—Andrew P. George, a brakeman on the road of

the company named, was killed on November 7, 1907, and his
administrator brought action for his death. After switching out a
car to the sidetrack at the station at Kirksville, the brakeman was
recoupling the two separated portions of the train, when his foot
became caught in an unblocked frog, and as a result he was rim
down and instantly killed.
Section 3163, Revised Statutes, Missouri, 1909, required the com
pany, on or before September 1,1907, “ to adopt, put in use, and main
tain the best known appliances or inventions to fill or block all
switches, frogs, and guardrails on their road, in all yards, divisional
and terminal stations, and where trains are made up, to prevent, as
far as possible, the feet of employees or other persons from being
caught therein.”
The company made claim that the location of the frog was not in a
“ yard” under the meaning of the statute. The court held, on the
contrary, that the portion of the tracks around every station, used
for the purpose of switching or standing cars, is a yard.
On rehearing, the court also decided that the statute was not invalid
for uncertainty or impossibility of performance in requiring “ the
best known appliances or inventions” to be used.

Employers’

Liability — Railroad

Companies —

“

Cars ” —

McGrady v. Charlotte Harbor & Northern Railway Co., Supreme Court
of Florida (Jan. 9, 1914), 63 Southern Reporter, page 921.—Will

McGrady brought suit against the railway company named for per

BULLETIN OF THE BUREAU OF LABOR STATISTICS,

sonai injuries suffered by the negligence of another employee while
they were placing a hand car upon the track. The action was brought
under the provisions of section 3150 of the General Statutes of 1906,
which makes the company liable for injuries “ caused by negligence
of another employee by the running of the locomotives or cars, or
other machinery of such company.” A demurrer to the declaration
was sustained in the circuit court of De Soto County, and judgment
rendered for the company; on appeal, however, this judgment was
reversed, the supreme court deciding that a hand car is a “ car”
within the meaning of the act, citing Ryland v. Atlantic C. L. R. Co., 57
Fla. 143, 49 So. 745; Thomas v. Georgia R. & B. Co., 38 Ga. 222, etc.;
and that the placing of the hand car upon the track was a part of the
running of such car, so that the accident came within the scope of the
statute.
Employers' Liability—Railroad Companies— Contributory
Negligence— Proximate Cause— Violation o f Ordinance—
Damages— Wabash Railroad Co. v. Gretzinger, Supreme Court of
Indiana (Feb. 19, 1914), 104 Northeastern Reporter, page 69.— This
action was brought by the administratrix of one Beedle, for the benefit
of herself as widow and of her infant child, to obtain damages for
the death of Beedle in a railroad collision. Beedle was conductor of
a freight train, which ran upon a siding in the city of Delphi, so that
the rear end was 250 feet from the switch target, upon which the
switch leading to the siding was closed and locked. Beedle attended
to various duties, secured his orders, and went into the caboose to
begin making up a report. In the meantime the switch had evi
dently been opened by some unknown person. A passenger train
then approached at a rate of about 20 miles an hour, and when about
300 feet from the target the engineer saw that it indicated an open
switch, and applied the air brakes, but was unable to prevent the
collision in which Beedle was killed. A city ordinance required that
trains should slow up to 6 miles an hour while passing through the
city. If the train had been running at the required rate, it could
have been easily stopped in time. Judgment was in the plaintiff's
favor in the circuit court of Howard County, and was on appeal
affirmed on grounds which appear in the following quotation from the
opinion of the court, which was delivered by Judge Morris:

Appellant claims that, because Beedle knew that the passenger
train was in the habit of exceeding the ordinance speed limit at this
place, he thereby assumed the risk of danger. Such doctrine can not
be recognized. Violations of ordinances, however often repeated, do
not render them obsolete.
The engineer of the passenger train, in exceeding the lawful speed
limit, was thereby guilty of negligence per se. Appellee's decedent
assumed no risk of danger from such negligence. [Cases cited.]

DECISIONS OF COURTS AFFECTING LABOR.

While it is true that the accident would not have happened in the
absence of the open condition of the switch, it is also true that it
would not have happened had the speed of the passenger train not
exceeded 6 miles per hour. Where two causes result in an accident,
the question of the dominant or proximate one is ordinarily for the
!u? i . evidence here warranted the jury in finding that the unlawful
speed was the proximate cause of the injury, as alleged in the com
plaint.
Beedle was 26 years old, healthy, temperate, and industrious, and
had already risen to be conductor, his salary being $100 per month, of
which amount he turned over $70 to his wife and child. Under these
circumstances the court decided that the verdict of $10,000, the
statutory limit, rendered by the jury in th$ circuit court of Howard
County was not excessive; also that the fact that the widow had
remarried should not be considered in awarding damages. The judg
ment of the court below was consequently affirmed.

E mployers’ L iability— R ailroad Companies— E lectric R ail
v. Indiana Union Traction Co., Appellate Court of
Indiana (June 3, 1914), 105 Northeastern Reporter, page 537.—Earl

roads— Hughes

Hughes, a motorman on an interurban electric railroad of the com
pany named, was injured on August 13, 1908, by the alleged negli
gence of his fellow employees on the car. This was a repair car, and
the other employees had entire charge of the loading with materials.
A pike pole fell off and struck and injured the motorman while he
was operating the car. The coemployees’ liability act of Indiana,
Bums’ A. S. 1908, section 8017, provides that railroads shall be liable
for injuries to employees resulting from the negligence of other
employees in certain cases. The court affirmed a judgment of the
circuit court of Tipton County in favor of the defendant company,
Judge Shea, in delivering the opinion, reviewing the history of legisla
tion and decisions creating a distinction between steam and electri
cally operated railroads, and holding that the act did not apply to the
latter.
Employers’ Liability—Railroad Companies— Federal and
State Statutes— Wabash Railroad Co. v. Hayes, United States Supreme
Court ( May 25, 1914), 34 Supreme Court Reporter, page 729.—This
case was before the Supreme Court on a writ of error to the appellate
court of Illinois to review a judgment in favor of John R. Hayes, who
was injured while in the employment of the appellant company. The
point of interest is the ruling of the Supreme Court as to the applica
tion of the Federal statute of 1908. In the original action the plaintiff
Hayes had set forth a good cause of action under the Federal statute,

BULLETIN OF THE BUREAU OF LABOR STATISTICS.

and alleged that the injuries complained of were received while he
was engaged by the company in interstate commerce. On the trial
it appeared that the injury was not received in such commerce, and
it was ruled that the Federal act had no application to the case. The
court then ruled that the case might be heard on the declaration and
determined according to the principles of common law prevailing in
the State, the company contending that “ even though the allegation
that the injury occurred in interstate commerce proved unwarranted,
the declaration could not be treated, consistently with the Federal
act, as containing any basis for a recovery under the law of the State,
common or statutory.” This contention was rejected by the appel
late court of Illinois, and the Supreme Court, in its opinion which was
delivered by Mr. Justice Van Devanter, sustained its position, as
appears from the following quotations:
Had the injury occurred in interstate commerce, as was alleged,
the Federal act undoubtedly would have been controlling, and a
recovery could not have been had under the common or statute law
of the State; in other words, the Federal act would have been exclu
sive in its operation, not merely cumulative.
On the other hand, if the injury occurred outside of interstate
commerce, the Federal act was without application, and the law of
the State was controlling.
The plaintiff asserted only one right to recover for the injury,
and in the nature of things he could have but one. Whether it
arose under the Federal act or under the State law, it was equally
cognizable in the State court; and had it been presented in an alter
native way in separate counts, one containing and another omitting
the allegation that the injury occurred in interstate commerce, the
propriety of proceeding to a judgment under the latter count, after
it appeared that the first could not be sustained, doubtless would
have been freely conceded. Certainly, nothing in the Federal act
would have been in the way.
Employers’ Liability— Railroad Companies—Federal and
State Statutes—Death o f Employee without Dependents—
Jones v. Charleston cfe Western Carolina Railway Co., Supreme Court
of South Carolina {July 16, 1914), 82 Southeastern Reporter, page
415 .— This action was brought by the administrator to recover

damages for the death of E. D. Clary, for the benefit of his brother
and sister. The deceased had not married, and his father and mother
were dead. The circuit court of Abbeville County directed a verdict
for the defendant on the ground that the Federal employers’ lia
bility act superseded the State statute on the same subject, under
which this action was brought. As the Federal act allows no com
pensation in case of death except to dependents, and there was
no direct evidence that the brother and sister were dependent, it
was held that no action would lie. The supreme court affirmed the

DECISIONS OF COURTS AFFECTING LABOR.

judgment in favor of the railway company, Judge Hydrick, who
delivered the opinion, discussing the question at issue as to the
statute governing the case as follows:
Appellant contends that, as the act of Congress gives a right of
action in favor of dependent relatives, while the State statute gives
the right in favor of relatives, whether dependent or not, the two
statutes do not cover precisely the same field, and therefore the
State statute was not superseded, in so far as it gives a right of
action in favor of relatives who are not dependent. This is a miscon
ception of'the scope of the legislation of Congress. It deals with
the liability of interstate carriers by railroad for injuries to their
employees while both are engaged in interstate commerce. It
creates and determines that liability. It is paramount and exclu
sive, and necessarily supersedes the State law upon that subject.
Therefore the liability of such carriers for such injuries must be
tested solely by the act of Congress, which can not be pieced out by
the State law on the same subject. [Cases cited.]

Employers’ Liability— Railroad Companies— Federal and
State Statutes—Persons Entitled to Benefits— Taylor v.
Taylor, United States Supreme Court (Feb. 24,1914), 34 Supreme Court
Reporter, page 350.—The plaintiff is the widow and the defendant the

father of one Howard Taylor, who was killed through the negligence
of an interstate railroad company, by whom he was employed. The
widow, as administratrix, brought suit against the railroad com
pany for damages, under the act of Congress of April 22, 1908,
known as the employers’ liability law, and recovered a judgment in
her favor. The father of the decedent then filed a petition in the
supreme court of Orange County, N. Y., for an order directing the
widow to pay over to him one-half the net proceeds of the judg
ment in accordance with the statute of distribution of the State.
The motion was denied and an order entered that the widow was
entitled to receive and retain for her own use all the net proceeds
of the judgment. This order was reversed by the appellate division
of the supreme court and the judgment of reversal was affirmed by
the Court of Appeals of New York. The case was then brought to
the United States Supreme Court on error, the widow contending
that the Federal statute should govern the distribution of the pro
ceeds of the judgment, instead of the State law. The United States
Supreme Court upheld the contention of the widow and reversed
the New York State Court of Appeals, which had held that the State
law applied.

Mr. Justice McKenna, who delivered the opinion of the court,
after reviewing a number of cases, said in part:
It is clear from these decisions that the source of the right of
plaintiff in error was the Federal statute. As said in one of the cited

BULLETIN OF THE BUBEAU OF LABOR STATISTICS.

cases, her cause of action was “ one beyond that which the decedent
had,—one proceeding upon altogether different principles.” It came
to her, it is true, on account of his death, but because of her pecuniary
interest in his life and the damage she suffered by his death. It was
her loss, not that which his father may have suffered. The judgment
she recovered was for herself alone. He had no interest in it. Any
loss he may have suffered was not and could not have been any part
of it, as we have seen.
Employers’ Liability— Railroad Companies— Federal and
State Statutes— Safety Appliances— Seaboard Air Line Rail
way Co. v. Horton, Supreme Court of the United States (Apr. 27 ,
1914), 34 Supreme Court Reporter, page 6S5.— James T. Horton

brought action against the railway company named for damages for
personal injuries under the Federal employers’ liability act, in the
superior court of Wake County, N. C. His injuries were caused by
the bursting of an engine water glass which was not protected by a
guard glass. Judgment was in his favor, and this was affirmed by
the Supreme Court of North Carolina, but was reversed by the
LTnited States Supreme Court. In the trial court the judge had
appeared to consider the State laws on the subject as in force as well
as the Federal statute, as far as not inconsistent with the latter; but
Mr. Justice Pitney, in delivering the opinion of the Supreme Court
of the United States, said:

It is settled that since Congress, by the act of 1908, took possession
of the field of the employer’s liability to employees in interstate
transportation by rail, all State laws upon the subject are super
seded. Second Employers’ Liability Cases (Mondou v. New York,
N. H. & H. R. Co.), 223 U. S. 1, 55.
The Federal statute bars the defenses of contributory negligence
and assumption of risk in any case where the violation by the com
mon carrier of any statute enacted for the safety of employees con
tributed to the injury or death of the employee.
As to the application of these provisions the court said:
By the phrase “ any statute enacted for the safety of employees,”
Congress evidently intended Federal statutes, such as the safety
appEance acts and the hours of service act. For it is not to be con
ceived that, in enacting a general law for establishing and enforcing
the responsibility of common carriers by railroad to their employees
in interstate commerce, Congress intended to permit the legislatures
of the several States to determine the effect of contributory negli
gence and assumption of risk, by enacting statutes for the safety of
employees, since this would in enect relegate to State control two of
the essential factors that determine the responsibility of the employer.

DECISIONS OF COURTS AFFECTING LABOR.

Employers’ Liability— Railroad Companies— Federal Stat
ute— Assumption o f Risks— Safe Place— Farley v. New York,
New Haven cfe Hartford Railroad Co., Supreme Court of Errors of Con
necticut (July IS, 1914) i 91 Atlantic Reporter, page 650.— Action was
brought by the administrator of the estate of John H. Bottomley for
the death of the latter while employed as engineer on the road of the
company named. He was in charge of a locomotive hauling an
interstate freight train, and was killed by contact with or proximity
to an electric wire over the center of the track, when going back over
the tender to ascertain the height of the water. The wires were used
for electrical operation of the passenger trains over a section of the
road. They were, where no bridge made it necessary to lower them,
22J feet above the level of the top of the rails. Under the bridge
wherq, the accident occurred they were brought down to a height of
15 feet 4J inches. The locomotive was of medium size and of a type
in long and common use on the road, the tenders varying in height
from 10J to 13 feet. Bridges were numerous on the part of the road
where the accident happened, and the wires under them came down
to varying heights, from the height of the one in question to about 18
feet. The engineer had been over the electrified section frequently,
more often in the daytime; the electrification had taken place more
than three years before the occurrence of the accident on September
28, 1911, and he had been employed during all that time. The time
tables furnished him contained a notice that there was danger within
14 inches of the wires, and he had signed a receipt for a special notice
to that effect.

Judgment in the superior court of New Haven County was for the
defendant company, on the ground that the employee had assumed
the risks of his situation, and the plaintiff appealed. The judgment
was affirmed, however, the court saying that the Federal employers'
liability act abolished the defense of assumption of risk only in cases
where the violation of safety statutes contributes to the injury or
death.
Employers' Liability—Railroad Companies— Federal Stat
ute— Beneficiaries— Next o f Kin— Illegitim ate Children—
Kenney v. Seaboard Air Line Railway Co., Supreme Court of North
Carolina (Sept. SO, 1914), 82 Southeastern Reporter, page 968.— This

was an administrator's action to recover damages for the death of
one born out of wedlock. The mother of the deceased employee was
not living, but left two sons and a dependent daughter who were
born in wedlock. The only question considered by the court was
as to the right of action of the claimants under the Federal statute,
which authorizes recovery for the benefit, among others, of the next
85590°— Bull. 169— 15------ 6

BULLETIN OF THE BUREAU OF LABOR STATISTICS.

of kin dependent upon a deceased employee. The North Carolina Revisal, section 137, authorizes the distribution of the estate of a deceased
illegitimate child dying without issue among his mother and “ such
persons as would be his next of kin if all such children had been bom
in lawful wedlock.” The superior court of Bertie County rendered
judgment in the plaintiff’s favor, which was on appeal affirmed, two
judges dissenting. Chief Justice Clark, who delivered the opinion
of the court, cited Cutting v. Cutting, 6 Fed. 268, and McCool v.
Smith, 66 U. S. 459, and said in part:
The object of the act of Congress was to permit a recovery for
wrongful death or injuries on interstate railroads, and that the recov
ery should go to the next of kin in the cases specified; the next of kin
being determined by the law of the State in which the action is
brought, for the status of the citizen, and the statute regulating
descent and distribution is purely a State matter with which Congress
has no concern. By the reasoning in the case above cited the words
“ next of kin” are taken, like the word “ heirs,” as meaning those to
whom the property would go, but who are the heirs and who are the
next of kin is a matter purely of State regulation.

E mployers’ L iability — R ailroad Companies— F ederal Stat
N egligence— Pennsylvania Co. v. Cole, United

ute — Contributory

States Circuit Court of Appeals, Sixth Circuit (June 15, 1914),
Federal Reporter, page 948.—Cole was rear brakeman and flagman on
a freight train of the company named. He was injured by a collision
when another train proceeding slowly on account of cautionary sig
nals ran into the rear of his standing train while he was asleep in the
caboose. It was urged that he was so negligent in not flagging the
other train that all right of recovery was barred. In denying this
contention and affirming a judgment of the trial court in the plain
tiff’s favor, Judge Knappen, who delivered the opinion of the court,
said in part:
Under this act, no degree of negligence on the part of the plaintiff,
however gross or proximate, can, as a matter of law, bar recovery;
for, as said in Norfolk & W. Ry Co. v. Earnest, 229 U. S. 114, 122,
33 Sup. Ct. 654 [see Bui. No. 152, p. 92], the direction that the diminu
tion shall be “ in proportion to the amount of negligence attributable
to such employee” means that:
“ Where the causal negligence is partly attributable to him and
partly to the carrier, he shall not recover full damages, but only a
proportional amount bearing the same relation to the full amount as
the negligence attributable to the carrier bears to the entire negligence
attributable to both.”
To say that plaintiff’s negligence equals the combined negligence of
plaintiff and defendant is impossible.

DECISIONS OF COURTS AFFECTING LABOR.

Employers' Liability— Railroad Companies— Federal Stat
ute— Exclusive Application— Interstate Commerce—Jurisdic
tion o f Courts— “ On D u ty "— North Carolina Railroad Co. v.
Zachary, United States Supreme Court (Feb. 2, 1914),
Supreme
Court Reporter, page S05.—James A. Zachary brought suit in the

superior court of Guilford County, N. C., to recover damages for the
negligent killing of one Burgess, an employee of the Southern Rail
way Co., which occurred in April, 1909. Under the State law the
lessor is responsible for all acts of negligence of its lessee occurring in
the conduct of business upon the lessor's road (Logan v. North Caro
lina R. Co., 116 N. C. 940, 21 S. E. 959), upon the ground that a
railroad corporation can not evade its public duty and responsibility
by leasing its road to another corporation, in the absence of a statute
expressly exempting it. The responsibility is held to extend to
employees of the lessee injured through the negligence of the latter.

The Southern Railway Co. was the lessee of the North Carolina
Railroad Co., and action was brought against the latter company
under the State law. Judgment was rendered against the company in
the lower court and affirmed by the Supreme Court of North Carolina.
The case was then taken to the United States Supreme Court on error,
where the judgment was reversed and the cause remanded for further
proceedings, the contention of the railroad company that suit should
have been brought under the Federal employers' liability act of April
22, 1908, instead of under the State law, being upheld.
The following language, taken from the opinion delivered by Mr.
Justice Pitney, sets forth the grounds on which the conclusion of the
court was reached:
In order to bring the case within the terms of the Federal act
defendant must have been, at the time of the occurrence in question
engaged as a common carrier in interstate commerce, and plaintiff's
intestate must have been employed by said carrier in such commerce.
If these facts appeared, the Federal act governed, to the exclusion of
the statutes of the State. [Cases cited.]
Having found that the employer was an interstate carrier, Justice
Pitney took up the point of Burgess's employment, as follows:
It was, however, further held by the Supreme Court of North
Carolina that deceased, at the time he was Killed, was not in fact
employed by the Southern Railway, the lessee, in interstate commerce.
It is argued that because, so far as appears, deceased had not pre
viously participated in any movement of interstate freight, and the
through cars had not as yet been attached to his engine, his employ
ment in interstate commerce was still in futuro. It seems to us,
however, that his acts in inspecting, oiling, firing, and preparing his
engine for the trip to Selma were acts performed as a part of inter
state commerce and the circumstance that the interstate freight cars
had not as yet been coupled up is legally insignificant. [Cases cited.]

BULLETIN OF THE BUREAU OF LABOR STATISTICS.

Again, it is said that because deceased had left his engine and was
going to his boarding house, he was engaged upon a personal errand,
and not upon the carrier’s business. Assuming (what is not clear)
that the evidence fairly tended to indicate the boarding house as his
destination, it nevertheless also appears that deceasea was shortly
to depart upon his run, having just prepared his engine for the pur
pose, and that he had not gone beyond the limits of the railroad
yard when he was struck. There is nothing to indicate that this
brief visit to the boarding house was at all out of the ordinary, or
was inconsistent with his duty to his employer. It seems to us clear
that the man was still “ on duty,” and employed in commerce, not
withstanding his temporary absence from the locomotive engine.
[Cases cited.]
We conclude that, with respect to the facts necessary to bring the
case within the Federal act, there was evidence that at least was
sufficient to go to the jury. It is doubtful whether there was sub
stantial contradiction respecting any of these facts; but this we need
not consider.
Employers’ Liability— Railroad Companies—Federal Stat
ute—Exemption from Liability—R elief Associations— Hogarty
v . Philadelphia <& Reading Railway Co., Supreme Court of Pennsyl
vania (May 22, 1914), 91 Atlantic Reporter, page 854•—William J.

Hogarty, an employee of the company named, lost his right arm on
February 1, 1910. It was alleged in the declaration that the injury
was due to the negligent construction and maintenance of the defend
ant’s road. The court of common pleas of Philadelphia County first
gave binding instructions for the defendant, and then entered judg
ment in its favor, and the plaintiff appealed. The defense set up
was that the plaintiff had accepted benefits as a member of its relief
association. The plaintiff rejoining that the Federal employers’ lia
bility act forbids this defense, the defendant claimed that the Federal
act did not apply, as the plaintiff had pleaded at common law, or if
it did, that there was a variance between the pleading and the proof.
The plaintiff finally contended that, if he should formally have
pleaded the Federal statute, he was entitled to amend accordingly.
The court held that the plaintiff was entitled to a trial of the case
■under the Federal act. Judge Moschzisker delivered the opinion,
from which the following is an extract relating to the point mentioned:
The Federal statute was not brought into the case at bar until a
special defense was entered upon, and then the plaintiff promptly
drew attention to its express prohibition of all defenses of the char
acter of the one offered; just as in the ordinary industrial accident
case, although not formally pleaded, a plaintiff may claim the benefit
of any particular provision m our fellow-servant act, or our factory
act, ii the circumstances call for it. True, the law depended upon
at bar happened to be a Federal statute; but, since the Supreme
Court of the United States has decided that this statute must be
treated by State courts, in each instance, as though an act of their

DECISIONS OF COURTS AFFECTING LABOR.

own legislature, for all practical purposes it is a Pennsylvania statute,
in the same category as the two acts to which we refer; and its pro
vision that “ any contract, rule, regulation, or device whatsoever,”
the purpose of which is to enable a common carrier to exempt itself
from liability for negligence to its employees, “ shall to that extent
be void,” is the announcement of a broad rule of public policy appli
cable to all cases within the scope of the statute, with like effect as
though promulgated by one of our acts.
Employers’ Liability—Railroad Companies— Federal Stat
ute—Interstate Commerce— Brakeman Placing Car in Train—
Safety Appliances— TJwmbro v. Kansas City, Mexico & Orient
Railway Co., Supreme Court of Kansas {Mar. 7 , 1914), 189 Pacific
Reporter, page
.—Action was brought in the district court of

410

Sumner County for the death of J. N. Thornbro from an injury
received while in the employ of the company named. The judgment
was in favor of the plaintiff, and this was affirmed on appeal. The
action was based upon the Federal employers’ liability act of 1908,
and alleged also violation of the safety appliance act as taking away
the defenses of assumption of risk and contributory negligence in
accordance with the terms of the first-mentioned act.

The company was conceded to be engaged in interstate commerce,
and the question was whether the employee at the time of the injury
was also so engaged. A freight car, from a point in the State of
Oklahoma and destined for another point in the same State, was to
be taken up by the interstate train of which the decedent was a
brakeman at Custer City. It had another car, which was not to be
taken, in front of it on the siding. The engine hauled these cars to
the main track, and the brakeman received his injuries in uncoupling
the cars, by reason of having to go between the cars, because the car
which was to be taken had a coupler which was not automatic, and
was defective and unsafe.
As to the question of his inclusion under the terms of the em
ployers’ liability act the court, speaking by Judge Benson, said:
In order to recover under the act referred to, both the company
and the employee must be engaged in interstate commerce at the time
of the injury. Second Employers’ Liability Cases, 223 U. S. 1, 32
Sup. Ct. 169. The precise contention of the defendant is that the car
in question, starting from one point, to be transported to another
point in the same State, was an instrument of intrastate commerce;
and that it had not become a part of an interstate train, and so the
brakeman was not engaged in interstate commerce. On the other
hand, the plaintiff contends that the duties of the engineer and brake
man in picking up this car and putting it into the train, consisting
largely of interstate cars, carrying interstate freight, had such con
nection with interstate commerce as to bring their work within the
purview of the act.

b u lle t in

o f t h e b u r e a u o f la b o r s t a t is t ic s

No decision of the Federal Supreme Court has been cited upon the
precise point in controversy, and the circuit courts appear to be at
variance.
Several cases bearing upon the question were reviewed and dis
cussed quite fully at this point in the opinion, and the court con
tinued:
Referring to the test applied in the Lamphere case [196 Fed. 336;
see Bui. No. 112, p. 86]—“ Was the relation of the employment of the
deceased in interstate commerce such that the personal injury to him
tended to delay or hinder the movement of a train engaged in inter
state commerce” —an affirmative answer is as obvious here as there.
It can not be doubted that the work of the deceased had a real and
substantial relation to interstate commerce.
Taking up the contention that the coupler was defective and did
not meet the requirements of the Federal safety appliance acts, the
court briefly reviewed the acts in question, and said in part:
Construing these acts, the Federal Supreme Court, in Southern Ry.
Co. v. United States, 222 U. S. 20, 32 Sup. Ct. 2, held that they were
intended “ to embrace all locomotives, cars, and similar vehicles used
on any railroad which is a highway of interstate commerce.” It must
be regarded as settled that the car in question should have been
equipped with a coupler as specified in the statute.
Employers’ Liability— Railroad Companies— Federal Stat
ute— Interstate Commerce— Building Addition to Freight
Shed— Eng v. Southern Pacific Co., United States District Court, Dis
trict of Oregon (Dec. 22, 1913), 210 Federal Reporter, page 92.—The

court, speaking by Judge Bean, in holding that the plaintiff’s employ
ment at the time of his injury was in interstate commerce, used the
following language:
When a carrier is engaged in both intrastate and interstate com
merce, using the same instrumentalities, appliances, and employees in
both classes of commerce, it is difficult to draw the line of demarcation
between the two classes of employment; but the result of the deci
sions up to this time seems to be that, when 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. Now, freight sheds, depots, and warehouses or other facili
ties provided and used by a carrier for receiving, handling, and dis
charging interstate freight are, I take it, instrumentalities used in
interstate commerce under the doctrine of the cases, and are so closely
connected therewith as to be a part thereof for the purposes of the
Federal employers’ liability act.
Claim is made that, since plaintiff at the time of his injury was at
work framing a new office in the freight shed, he is in the position of
one employed to construct buildings, tracks, engines, or cars, which
have not yet become instrumentalities of commerce. But the freight

DECISIONS OP COURTS AFFECTING LABOR,

shed in question was being so used by the defendant in its interstate
business. The work in wnich the plaintiff was engaged, as appears
from the complaint, was in the nature of the repair 01 an instrumen
tality so used, and not in the construction of new work.

Employers’ Liability—Railroad Companies— Federal Stat
ute— Interstate Commerce—Construction o f Bridge on Cut
o ff— Bravis v. Chicago, Milwaukee & St. Paul Railway Co., United

States Circuit Court of Appeals, Eighth Circuit (Oct. 12, 1914), 21?
Federal Reporter, page 284•— Nick Bravis sued the company named
in the District Court of the United States for the District of Minne
sota. Judgment was for the defendant on a directed verdict, and the
plaintiff brought error. In his complaint the plaintiff pleaded negli
gence of the company, but did not allege that he or the company was
engaged in interstate commerce. At the close of his evidence he
made an amendment changing the single count of the complaint so as
to bring the action under the Federal employers’ liability act. The
company admitted that it was engaged in interstate commerce, but
denied that it employed the plaintiff in such commerce, and the court
upheld its contention. The company was engaged in straightening
curves in its road, and the plaintiff was employed in building a bridge
on a cut-off to avoid a curve about 3 miles in length. The employee
went from the nearest point on the railroad to the camp where he
boarded, at Chanhassen, on a hand car furnished by the company.
The gang in which he was employed consisted of about 15 men, and
they used two hand cars to transport themselves from and to Chan
hassen. As they were returning to camp one evening the plaintiff,
who, with his companions, was engaged in pumping the forward hand
car, fell off the rear of it, and the rear hand car ran over him and in
jured his right hand before the men upon it could stop it after they
saw him.

In delivering the opinion of the court, affirming the judgment of the
court below, Judge Sanborn said:
The chief contention of counsel for plaintiff in support of their speci
fication of error in this case is that the facts established by the evi
dence sustain the conclusion that the plaintiff was employed in inter
state commerce while constructing the bridge on the cut-on. But there
were no rails on the roadbed on this cut-off. It never had been used,
it was not then used, and until it should be ironed it could not be
used, by the defendant in interstate commerce.
The Federal employers' liability act protects only those employed
in interstate commerce. Those employed in the preparation or con
struction of roadbeds, rails, ties, cars, engines, and other instrumen
talities which are intended for use in interstate commerce, but have
never been and are not in use therein, are not employed in interstate
commerce, and are not protected by that act. There was no error in

BULLETIN OF THE BUREAU OF LABOB STATISTICS.

the ruling of the trial court that an employee engaged in the construc
tion of a bridge, 600 feet distant from a railroad, on a cut-off more than
a mile in length, which had never been provided with rails or used as a
railroad, was not employed in interstate commerce, although his
employer was engaged, and when the cut-off should be completed
intended to use it, in interstate commerce. [Cases cited.]
Employers’ Liability— Railroad Companies—Federal Stat
ute— Interstate Commerce—Construction o f Tunnel— Jack

son v. Chicago, Milwaukee cfc St. Paul Railway Co., United States
District Court, Western District of Washington (Feb. 2, 1914), 210
Federal Reporter, page 495.—This action was brought under the Fed
eral employers’ liability act of 1908, and the defendant company
demurred to the complaint, which demurrer was sustained by the
court, holding that there was no case presented under the act. The
question raised is as to whether the employment was in interstate
commerce, the fact being that the employee was at work in the con
struction of a tunnel which would be used in interstate commerce
when completed. The court, speaking by Judge Neterer, said in
part:
The plaintiff was not himself engaged upon any interstate com
merce, nor was he injured by anyone connected with the operation
of any of the agencies which actually transported interstate com
merce. The building of this cut-off is a facihty which is to be used
by the defendant, when completed, as an engine or cars, or any other
appliance under construction might be considered for use when com
pleted. The act deals only with the liability of a carrier engaged in
mterstate commerce for injuries sustained by its employees while
engaged in such commerce.
E mployers’ Liability— R ailroad Companies— Federal Stat
Commerce—Employee Carrying Coal to
H eat R epair Shop—Cousins v. Illinois Central Railroad Co.,

ute— I nterstate

Supreme Court of Minnesota (June 26, 1914), 14$ Northwestern
Reporter, page 58.—Charles W. Cousins brought action against the
railroad company named, under the Federal employers’ liability act,
for damages for injuries received while he was wheeling a barrow full
of coal to one of the car repair shops. The only question was whether
this employment brought him within the provisions of the act.
Judge Bunn, in delivering the court’s opinion affirming a judgment
of the district court of Ramsey County in the plaintiff’s favor, said
in part:

The men in the shop were engaged in repairing cars that had been
and were to be used in interstate commerce. Plaintiff, when he was
injured, was wheeling coal to be used in heating the shop so that
these men could do their work.

DECISIONS OF COURTS AFFECTING LABOR.

In Pederson v. Delaware, Lackawanna & Western R. Co., 229 U. S.
146, 33 Sup. Ct. 648 [Bui. No. 152, p. 85], the court said:
“ The true test always is: Is the work in question a part of the
interstate commerce in which the carrier is engaged?”
It was held that a man carrying bolts to be used in repairing a rail
road bridge over which interstate commerce moved was employed in
interstate commerce. The court found no merit in the point that
plaintiff was not actually repairing the bridge when injured, but was
merely carrying to the place where the work was to be done some of
the materials to be used therein, saying:
“ It was necessary to the repair of the bridge that the materials be
at hand, and the act of bringing them there was a part of the work.
In other words, it was a minor task which was essentially a part of
the larger one, as is the case where an engineer takes his engine from
the roadhouse to the track on which are the cars he is to haul in inter
state commerce.”
That the men engaged in repairing the cars were employed in inter
state commerce is well settled. That an employee carrying materials
to the shop to be used in repairing the cars would be employed in
interstate commerce the Pederson case decides. It seems no exten
sion of the construction thus given to the statute to hold that an
employee carrying coal for use in heating the shop where the repairs
were made is employed in interstate commerce. The repairs could
not be made unless tne shop were heated. We think the Pederson case
controls the case at bar.

Employers’ Liability— Railroad Companies— Federal Stat
ute— Interstate Commerce— Employee Sleeping in Shanty
Car— Sanders v. Charleston & W. C. R y . Co., Supreme Court of
South Carolina (Apr. 2, 1914), 81 Southeastern Reporter, page 283.—

Sanders was employed by the railway company with an iron gang
relaying rails. He was injured while asleep in his shanty car, on a
train which stood on a sidetrack, which was struck by an incoming
train. He brought suit in the common pleas circuit court of Edge
field County, under the Federal employers’ liability act and obtained
a judgment against the company. The company appealed the case
to the State supreme court on the ground that at the time of the
injury Sanders was not employed in interstate commerce. This
court, however, decided that the employee was engaged in interstate
commerce when injured, following the opinion in Pederson v. Del. &
L. W. Ry. Co., 229 U. S. 146, 33 Sup. Ct. 648. Judge Gage, who
gave the opinion of the court, said:
When the plaintiff [Sanders] was in the bunk of his shanty car, in
the “ sleep that knits up the ravelTd sleeve of care,” and getting
strength to lay rails next day, the law imputed to him actual service
on the track, and extended to him the rights of such a worker; “ for
the letter (of the law) killeth, but the spirit giveth life.”

BULLETIN OF THE BUREAU OF LABOR STATISTICS.

Employers' Liability—Railroad Companies— Federal Stat
ute— Interstate Commerce— Engineer in Roundhouse to A t
tend to Repairs— Padgett v. Seaboard Air Line Railway, Supreme
C<mrt of South Carolina (Nov. 18, 1914), 83 Southeastern Reporter,
page 633.— This action was brought by Clara V. Padgett as adminis-

trix of the estate of Lewis H. Padgett, for the death of the latter, an
engineer in the employ of the company named, which occurred on
the morning of January 12, 1913. Padgett had recently been
promoted from freight engineer to a passenger run between Columbia,
S. C., to Savannah, Ga., so that he was engaged in interstate com
merce. Further facts are stated in the opinion delivered by Judge
Fraser, as follows:

When the train reached Columbia, the engine was detached and
carried to the yard at Cayce, a station near Columbia. The engineer
ran his engine into the yard near the roundhouse, and left it upon a
siding in the yard. He left his engine about 10.30 on the 11th day
of January, 1913. Mr. Padgett's regular run would have required
him to leave Columbia at 6.10 a. m. on the morning of the 12th. He
was detained in the yard for a while so that he might take out
another train, if necessary. It was not necessary, and he was noti
fied that he would make his regular rim. The company had built a
small boarding house at Cayce for the convenience of its trainmen,
but let out the management of the house to a private party. When
Mr. Padgett was notified that he would be required to make his regu
lar run, he went to the boarding house and iound it full. He then
went back on the yard, into the roundhouse, and into an engine, and
went to sleep. At about 4.30 o'clock on the morning of the 12th,
the engine in which Mr. Padgett was asleep was run out of the round
house down to the coal chute, to be supplied with coal, water, etc.,
for its trip. At the coal chute Mr. Padgett waked and got off the
engine. He inquired where his engine was and was tola it was in
the roundhouse on track No. 3. The last seen of Mr. Padgett alive,
he was going in the direction of the roundhouse. When it came time
to call him he could not be found, and the engine went off without
him. A little later he was found in an open, uncovered pit in the
roundhouse dead. His engine had been standing with the step over
the pit. The pit was a little over 8 feet deep. There were no lights
in the roundhouse.
Suit was brought in behalf of his widow and dependent children
for negligence under the Federal employers' liability act. The de
fendant answered, denying negligence. It denied that the deceased
was engaged in interstate commerce at the time of his death. It
pleaded mat the deceased was a trespasser in the roundhouse, con
tributory negligence, and assumption of risk. The judgment was for
the plaintiff, and the defendant appealed.
The court denied the contention of the company that a verdict
should have been directed for it on the ground that there was no
evidence that the employee came to his death while engaged in
interstate commerce. It held that the evidence, though circum
stantial, pointed to the conclusion that Padgett's purpose in going

DECISIONS OF COURTS AFFECTING LABOR.

to the roundhouse was not to further any end of his own, but to
make sure that repairs which had been found the night before to be
needed were properly and promptly made. It was also held that
the question as to negligence of the company and assumption of risk
on the part of the engineer had been properly submitted to the
jury, and affirmed the judgment of the court below.

Employers’ Liability—R ailroad Companies— Federal Stat
Commerce— Fireman on Switch E ngine—

ute—I nterstate

Illinois Central Railroad Co. v. Behrens, Administrator, Supreme
Court of the United States (Apr. 27,1914), 34 Supreme Court Reporter,
page 646.—Joseph Behrens brought action for the death of his
intestate, under the Federal employers’ liability act, against the
company named, in the Circuit Court for the Eastern District of
Louisiana. Judgment being for the plaintiff, the company took the
case to the circuit court of appeals on a writ of error, and that court
certified a question of law to the Supreme Court. The decedent was
a fireman and came to his death through a head-on collision. The
nature of his work in general and at the time of the injury and the
reasoning of the court in arriving at the conclusion that as he was
not engaged in interstate commerce at that time his case was not
within the provisions of the statute, are shown in the following
extract from the opinion as delivered by Mr. Justice Van Devanter:

The crew handled interstate and intrastate traffic indiscrimi
nately, frequently moving both at once and at times turning directly
from one to the other. At the time of the collision the crew was
moving several cars loaded with freight which was wholly intrastate,
and upon completing that movement was to have gathered up and
taken to other points several other cars as a step or link in their
transportation to various destinations within and without the State.
The question of law upon which the circuit court desires instruction
is whether, upon these facts, it can be said that the intestate, at the
time of his fatal injury, was employed in interstate commerce within
the meaning of the employers’ liability act.
The court considered briefly the status of the railroad as a highway
for both interstate and intrastate commerce, the interdependence of
the two classes of traffic in point of movement and safety, the practi
cal difficulty in separating or dividing the general work of the switch
ing crew, and the nature and extent of the power confided to Congress
by the commerce clause of the Constitution, and concluded:
Here, at the time of the fatal injury the intestate was engaged in
moving several cars, all loaded with intrastate freight, from one
part of the city to another. That was not a service in interstate
commerce, and so the injury and resulting death were not within
the statute. That he was expected, upon the completion of that

BULLETIN OF THE BUREAU OF LABOR STATISTICS.

task, to engage in another which would have been a part of inter
state commerce, is immaterial under the statute, for by its terms
the true test is the nature of the work being done at the time of the
injury.
The question is accordingly answered in the negative.

Employers' Liability—Railroad Companies— Federal Stat
ute— Interstate Commerce— Installing Block-signal System—
Saunders v. Southern Railway Co., Supreme Court of North Carolina
(Nov. 25, 1914), 88 Southeastern Reporter, page 57S.—B. B. Saunders,

administrator of the estate of his deceased son, Kemp Saunders,
brought action against the company named under the Federal
employers’ liability act for the death of the latter while in the employ
of said company. The employee was engaged in installing a blocksignal system between two points in the State of North Carolina, in
place of one already in use, along a portion of the railway used in
interstate commerce. He was killed by a train while crossing the
tracks to reach his work train. Referring to the decisions in a num
ber of cases, the court held that the employee was engaged in inter
state commerce, saying:
We think it clear that one engaged in installing and equipping the
road with the block signals was engaged in doing something which
was a part of the interstate commerce in which the defendant was
engaged, to the same extent as one engaged in repairing a bridge or a
track in such commerce.
Employers’ Liability—Railroad Companies— Federal Stat
ute— Interstate Commerce Installing Block-signal System—
Employee on Way from W ork— Grow v. Oregon Short Line Rail
road Co., Supreme Court of Utah (Feb. 5,1914), 18$ Pacific Reporter,
page 398.—Action was brought by Cecilia Grow as administratrix of

Cyrus L. Grow, for the death of Grow by accident, against the com
pany named. Grow was in the employ of the company, engaged in in
stalling a block-signal system. At the time of the injury he was riding
on the track on a motor tricycle to the place where the outfit of the
crew was located, and where the men boarded and lodged in cars
furnished by the company. A train, late and going with great speed,
approached the tricycle without signals or warning and without a
headlight, the engineer not keeping a lookout nor seeing the tricycle
until within a car length of it. The foreman of the block-signal sys
tem installing crew, who was with Grow on the tricycle, saw the train
and jumped in time to save himself, but Grow was struck and killed.
At the completion of the evidence in the district court of Weber
County, the court directed a verdict for the defendant. The plaintiff

DECISIONS OF COURTS AFFECTING LABOR.

appealed, and the judgment was reversed and the case remanded.
The defendant applied for a rehearing, but this was denied. Several
questions were argued, but the most important was whether the
employee was engaged in interstate commerce under the provisions
of the Federal employers’ liability act. This question was answered
in the affirmative, as is shown by the appended quotation from the
opinion by Judge Straup:
Counsel for both parties have largely argued the case upon the
proposition or theory of whether the case is within or without the
provisions of the act of Congress relating to the liability of interstate
common carriers by rail to their employees.
We think the rule announced in the Pederson case [229 U. S. 146,
33 Sup. Ct. 648, Bui. No. 152, p. 85], is decisive of the question here.
If, as there announced, an employee engaged in repairing a car,
engine, or track, or constructing or repairing a switch or bridge along
a track used in interstate commerce, is, within the meaning of the act,
employed in such commerce, then, do we think, was the deceased
here also employed in such commerce.
The evidence, without dispute, shows, and the defendant, on the
record, unqualifiedly admitted, that the signals were installed to
carry on, and were in furtherance of, the interstate commerce in
which the defendant was engaged. On the record it is clear that
they were put in for no other purpose.
The further point is made that the deceased, at the time of the
injury, was not engaged in any work, but was on way to his
abode; hence the relation of master and servant did not tnen exist
between him and the defendant, and for that reason he was not then
“ employed in such commerce.” We think that also is answered
against the respondent by the Pederson case. But the observations
of the court in the case oi Phila., B. & W. R. Co. v. Tucker, 35 App.
D. C., 123, affirmed by the Supreme Court, 220 U. S. 608, 31 Sup. Ct.
725, are here pertinent: * * *
4‘ We think the better rule, the one founded in reason and supported
by authority, is that the relation of master and servant, in so far as
the obligation of the master to protect his servant is concerned, com
mences when the servant, in pursuance of his contract with the
master, is rightfully and necessarily upon the premises of the master.
The servant in such a situation is not a mere trespasser nor a mere
licensee. He is there because of his employment, and we see no
reason why the master does not then owe him as much protection as
he does the moment he enters upon the actual performance of his
task.”
We think the relation of master and servant between the deceased
and the defendant with respect to the latter’s liability for the charged
negligence as clearly existed at the time of the injury as though the
deceased then had been actually engaged in his work along the track.
From these considerations it follows that the case falls within the
provisions of the congressional act in question.

BULLETIN OF THE BUREAU OF LABOR STATISTICS.

Employers’ Liability—Railroad Companies—Federal Stat
Commerce— Repairing Cars—D efective Grind
stone— OpsaM v. Northern Pacific Railway Co., Supreme Court of
Washington (Feb. 16, 1914), 1S8 Pacific Reporter, page 681.—The
plaintiff, a blacksmith in the employment of the company named,
received injuries to the fingers while using a power grindstone which
was in a very defective condition, its use in such condition being a
violation of the State factory law. As he was repairing cars used in
interstate commerce, he brought the action under the Federal em
ployers’ liability act of 1908. The defense of assumption of risk was
pleaded by the defendant company, but was not allowed, and judg
ment was rendered in the plaintiff’s favor in the superior court of
Pierce County. On appeal the supreme court affirmed this judgment,
holding that as the action was brought under the Federal statute,
which abrogates the defense of assumed risks in any case where the
common carrier violates “ any statute enacted for the safety of
employees,” such violation contributing to the injury complained of,
that statute governed in this case.1
ute—I nterstate

Employers’ Liability—Railroad Companies—Federal Stat
ute—Interstate Commerce—Repairing Engine— Law v. Illinois

Central Railroad Co. et al., United States Circuit Court of Appeals,
Sixth Circuit (Nov. 4, 1918), 208 Federal Reporter, page 869.— John
Law was injured while employed in the repair shop of the railroad com
pany named, and while engaged in repairing a part of an engine used
in interstate commerce. He was helping a boiler maker, when on
account of the latter striking a glancing blow, a nut flew and hit Law
in the eye. He brought suit, making claim for damages both at
common law and under the employers’ liability act. Judgment was
for the defendants on a directed verdict in the District Court for the
Western District of Tennessee, and the plaintiff appealed. The
circuit court of appeals held that no recovery could be had at common
law because the injury was caused by the negligence of the boiler
maker, who was a fellow servant of the plaintiff. It held, however,
that the plaintiff had been engaged in interstate commerce, and that
a recovery was possible under the employers’ liability act; the judg
ment was therefore reversed and a new trial ordered. Judge Knappen, speaking for the court, discussed the question of interstate
commerce, using in part the following language:

Was the plaintiff engaged in interstate commerce ?
In the instant case the engine was in the shop for what is called
“ roundhouse overhauling.” It had been dismantled at least 21 days
i Attention may be called in this connection to the case Seaboard A. L. Ry. Co. ». Horton (p. 80), in which
the Supreme Court of the United States held that such a binding together of State and Federal laws was
not possible.

DECISIONS OF COURTS AFFECTING LABOR.

before the accident. Up to the time it was taken to the shop it was
actually in use in interstate commerce. It was destined for return
thereto upon completion of repairs. It actually was so returned the
day following the accident.
We have not here a case of original construction of an engine not
yet become an instrumentality of interstate commerce. It had
already been impressed with such use and with such character.
Under the existing facts, can the length of time required for the
repairs change the legal situation? If so, where is the line to be
drawn? How many days temporary withdrawal would suffice to
take it out of the purview of the act? And is it material whether
the repairs take place in a roundhouse or in general shops ? Is not
the test whether the withdrawal is merely temporary in character?
In Northern Pacific Ry. Co. v. Maerkl, 198 Fed. 1, 117 C. C. A. 237
[Bui. No. 112, p. 84], the Circuit Court of Appeals of the Ninth Circuit
held that an employee engaged at the railway shops in making repairs
upon a refrigerator car theretofore used in interstate commerce, and
intended to be again so used when repaired, was within the protec
tion of the employers’ liability act. The repairs there in question
were substantial m their nature, requiring at least a partial dis
mantling of the car, which had been m the shop two days when the
accident occurred. The rule announced by this decision commends
itself to our judgment.
Employers’ Liability— Railroad Companies—Federal Stat
ute— Interstate Commerce—Repairing Telegraph Line— Deal
v. Coal & Coke Railway Co., United States District Court, Northern
District of West Virginia (July 2, 1914) f 215 Federal Reporter, page

285.—David F. Deal was injured while employed in repairing a tele
graph line belonging to the company named, and used in directing
the operation of interstate trains. As the only reason for a Federal
court to have jurisdiction was that the employee was under the Fed
eral employers’ liability^act, the company demurred to the complaint
on the ground that the employment was not included within the pro
visions of this act, but the court decided against this contention.
Judge Dayton, in delivering the opinion, said:
The Supreme Court, in Pederson v. Delaware, L. & W. R. Co., 229
U. S. 146, 33 Sup. Ct. 648 [Bui. No. 152, p. 85], has certainly held
that an iron worker engaged in carrying bolts to repair a bridge upon
an interstate carrier’s roadbed is entitled to the benefit of the act. It
says:
“ That the work of keeping such instrumentalities in a proper state
of repair while thus used (in interstate transportation) is so closely
related to such commerce as to be in practice and in legal contempla
tion a part of it.”
I am able to see little difference between the necessity for the proper
repair of the bridge over which the interstate commerce passes and
the necessity of repairing the telegraph line owned by the company
and by the operation of which the movement of such commerce over
the bridge is controlled and directed.

b u l l e t in

the

bureau

labo r st a t is t ic s .

Employers’ Liability— Railroad Companies— Federal Stat
ute— Interstate Commerce—Roundhouse Employee— La Casse
v. New Orleans, Texas <& Mexico Railroad Co., Supreme Court of
Louisiana (Mar. 30, 1914), @4 Southern Reporter, page 1012.—Evelina

La Casse brought suit for the death of her husband caused by the
explosion of a locomotive boiler while in the employ of the defendant
railroad company. The question whether the employment came
under the provisions of the employers’ liability act arose in a somewhat
unusual way, since in this case it was the defense which contended
that it was so included. If it were, suit would have to be brought by
the personal representative, and the action by the widow would fail.
The court’s decision, however, was that the employment was not
within the scope of the act. The Statement in the opinion, delivered
by Judge Provosty, as to the work which the employee was doing,
and the discussion of his status with respect to the liability act, are
in part as follows:
His functions consisted in receiving the locomotives that came to
the roundhouse, taking care of them, and having them filled with water
and steamed up, ready for use, when called for.
We do not agree with defendant that this case does come under the
Federal statute.
If the fact that a locomotive or a car might be used the next day,
or whenever next needed, in interstate commerce, were equivalent
to being actually at the time in use in that commerce, the effect
would be that whenever a railroad did not confine itself to intrastate
commerce, but engaged also in interstate commerce, every one of its
employees would at all times be engaged in interstate commerce when
at their work. Two decisions of the Supreme Court of the United
States, Pederson v. Delaware, L. & W. R. R. Co., 229 U. S. 146,33 Sup.
Ct. 648 [see Bui. No. 152, p. 85]; St. L., S. F. & T. R. R. Co. v. Seale,
229 U. S. 156, 33 Sup. Ct. 651 [see Bui. No. 152, p. 87], are relied upon
by defendant’s learned counsel; but these decisions, as we understand
them, are very far from having that broad scope. In those cases,
although the connection was but slight, there was a direct engage
ment in interstate commerce, whereas a locomotive or an empty car,
which has completed an intrastate run and may on its next run be
used in like manner interstate, can not be said to be actually engaged
in interstate commerce.
Employers’ Liability— Railroad Companies— Federal Stat
ute— Interstate Commerce—Testing Engine a fter Repairs—
Lloyd v. Southern Railway Co., Supreme Court of North Carolina (May
26,1914), 81 Southeastern Reporter, page 1003.—W. L. Lloyd brought

action under the Federal employers’ liability act against the company
named for personal injuries resulting from a defective ash-pan
mechanism on an engine which had just come from the repair shop,
and which he was to take as engineer on a regular interstate run
after a trial trip to ascertain whether it was in proper order. The

DECISIONS OP COTJBTS AFFECTING LABOR.

court affirmed a judgment of the superior court of Guilford County in
favor of the plaintiff, deciding that the employment was in interstate
commerce, and in its opinion by Judge Walker, said as to this point:
He was put in charge of this engine, and his duty, as engineer,
required him to inspect it for the purpose of ascertaining whether it
was in proper condition for its run from Spencer, N. C., to Monroe,
Ya. It was in commission for the purpose of moving interstate
traffic between these two points. It was not necessary to constitute
it an instrument of interstate commerce that it should have started
on its journey. This engine was to be employed wholly in interstate
commerce, and has been so used since the day of the injury. The
work of reparation had been finished in the shops, and the engine was
run out on the track, preparatory to her next interstate run. She
had been thus used before, and her runs were merely suspended
temporarily for the purpose of repairing her, after which the inter
state runs would be resumed. Plaintiff was overlooking his engine,
expecting to take it out that day or the next to Monroe, Va. His
work was done only in a preparatory stage of interstate commerce,
but was a part of it.
Employers7 Liability— Railroad Companies— Federal Stat
ute— Interstate Commerce—Transportation o f Lumber by
Private Railroad— Bay v. Merrill & Ring Lumber Co., United

States District Court, Western District of Washington (Feb. 20 , 1914),
211 Federal Reporter, page 717 .— August Bay was injured while
employed by the company named, and brought suit. At the trial a
nonsuit was granted, and the plaintiff moved for a new trial, which
was denied. The company was engaged in logging operations, and
had a logging railroad of standard gauge connecting with the Great
Northern Railway. The products were carried to Puget Sound in
Washington, in which State the logs were cut, and there sold to
various mills, which sawed them into lumber, about 80 per cent of
which went into other States and countries. The company’s charter
gave it the power to act as a common carrier, but it had never carried
or offered to carry anything but its own products. Accordingly the
court held that it was not engaged in interstate commerce, and that
the plaintiff was not within the provisions of the Federal employers’
liability act.

Employers’ L iability—R ailroad Companies— Federal Stat
Commerce— W eighing Empty Cars— Wheeling

ute— I nterstate

Terminal Co. v. Russell, United States Circuit Court of Appeals, Fourth
Circuit (Dec. 8, 1913), 209 Federal Reporter, page 795.— Russell, the
original plaintiff in this case, had Recovered a judgment in the District
Court of the United States for the District of West Virginia, where85590°—Bull. 169—15— -7

BULLETIN OF THE BUREAU OF LABOR STATISTICS.

upon the defendant appealed. The employee when injured was at
work as one of a crew engaged in weighing empty cars which had been
used in interstate transportation and weighed while full, the object
being to ascertain the net weight of contents. The judgment was
affirmed on appeal, the court determining among other points that
Russell was engaged in interstate commerce at the time of the in
jury. The following is an extract from the opinion, delivered by
Judge Rose, with regard to this point:
The cars were being weighed to determine the net weight of the
interstate load carried by them to £he West Virginia consignee.
Those who were engaged in ascertaining such weignts were them
selves employed in that commerce. St. Louis & San Francisco Ry.
Co. v. Seale, 229 U. S. 156, 33 Sup. Ct. 651 [Bui. No. 152, p. 87].
The cars had been employed in interstate commerce. It was not
shown that they had been withdrawn from its service. The reason
able presumption, therefore, is that they remained in it. In practice
such presumption will not work injustice. The defendant carrier
will usually have little difficulty in showing, when it wishes to do so,
where the cars were to be taken and for what purpose. For the
plaintiff to trace them may be difficult and expensive.

Employers’ Liability— Railroad Companies— Federal Stat
ute— Negligence— Contributory Negligence— Cincinnati, New
Orleans <fc Texas Pacific Railway Co. v. Swann’s Administratrix, Court
of Appeals of Kentucky (Oct. 22, 1914), 169 Southwestern Reporter,
page 886.—M. B. Swann, an employee of the company named, was

killed by a train, and his administratrix brought action for damages.

In the first suit, brought under the State law, the court of appeals
reversed a judgment of the trial court against the railroad company,
with instructions to direct a verdict in its favor, on the ground of
contributory negligence. As this defense would only reduce the
damages under the Federal employers’ liability act, the former suit
was dismissed, and the present one brought under the act mentioned.
A judgment was again entered in favor of the plaintiff in the trial
court, the circuit court of Boyle County.

There was no dispute as to the employee being engaged in interstate
commerce. He was acting as foreman of a crew engaged in putting
in water columns near the tracks at Williamstown Station. While
standing on the end of the ties looking into a pit excavated for a water
column, he was struck by the engine of an express train running 30
or 40 miles an hour and killed. He was not seen by the engineer until
too late to take any steps to save him, on account of a sharp curve
which the train had just rounded.
The court held that the employers’ liability act requires a showing
of negligence on the part of the railroad company in order that

DECISIONS OF COURTS AFFECTING LABOR.

recovery may be had for injury or death of any employee, and that
this negligence must consist of failure to discharge some duty owed
to the employee; and that, unless the negligence charged involves
defects in cars, equipment, etc., the State law must be looked to in
determining whether the acts or omissions complained of amount to
negligence.
It appeared that it was the duty of Swann to know, and he did know,
the schedule time of the train in question, which on this occasion was
only two minutes late; also that it was not necessary for him to occupy
the place of danger in which he stood.
It was held that the employees in charge of the train owed no duty
to him to slow down or give him warning of its approach, and that the
fact that there were rules requiring slower speed and warnings in
approaching such places as the one where the injury occurred did not
entitle him to rely on the observation of those rules, as they were not
enacted for the benefit of the class of employees to which he belonged.
The judgment of the trial court was therefore again'reversed and a
new trial granted, with directions, if the facts should prove substan
tially the same as on the previous trial, to direct a verdict for the
defendant company.
Employers’ Liability— Railroad Companies— Federal Stat
ute—Negligence— Course o f Employment— Reeve v. Northern
Pacific Railway Co., Supreme Court of Washington (Nov. 16, 1914),
144 Pacific Reporter, page 63.—Mike Reeve was a laborer for the com

pany named, whose duty it was to assist in supplying the company’s
baggage, mail, and other cars with water and fuel, and to aid other
wise in fitting them for service. On the evening of June 23, 1911,
while sitting on the floor in the door of a baggage car with his feet out
side, he was pushed out by one of two other employees who were
wrestling inside the car, and sustained severe injuries. The Federal
employers’ liability act provides that any common carrier by railroad
engaged in interstate commerce shall be liable in damages to any
person suffering injury while he is employed by such carrier in such
commerce, resulting in whole or in part from negligence of any of
its officers, agents, or employees. The court held that the word
“ negligence” was limited to negligence of officers, agents, or coem
ployees while in the performance of the duties of their employment,
and hence the company was not liable under the circumstances of
this case.
Employers’ Liability— RailroaI) Companies— Federal Stat
ute— Reference to Statute—Comparative Negligence— Grand
Trunk Western Ry. Co. v. Lindsay, United States Supreme Court
(Apr. 6 , 1914), 34 Supreme Court Reporter, page 581.—George Lindsay

100

BULLETIN OF THE BUREAU OF LABOR STATISTICS.

brought suit against the railway company named, in the United States
Circuit Court for the Northern District of Illinois, to recover damages
for a personal injury sustained while he was employed by the com
pany, alleging that the injury was caused by its negligence in failing
to comply with the provisions of the Federal safety appliance act.
Judgment was given in his favor, which judgment was affirmed by the
United States Circuit Court of Appeals for the Seventh Circuit. The
case then went to the United States Supreme Court, where the judg
ment of the lower court was again affirmed. The points of interest
and the conclusion of the court are indicated below in the language of
Mr. Chief Justice White, who spoke for the court:
In the trial court it is insisted the operation and effect of the
employers’ liability act upon the rights of the parties was not involved
because that act was not in express terms referred to in the pleadings
or pressed at the trial. But the want of foundation for this conten
tion becomes apparent when it is considered that in the complaint
it was expressly alleged and in the proof it was clearly established
that the injury complained of was suffered in the course of the opera
tion of interstate commerce, thus bringing the case within the em
ployers' liability act. Aside from its manifest unsoundness, con
sidered as an original proposition, the contention is not open, as it was
expressly foreclosed in Seaboard Air Line R. Co. v. Duvall, 225 U. S.
477, 482, 32 Sup. Ct. Rep. 790.
Employers’ Liability— Railroad Companies— Federal Stat
ute—R elief Associations— Release— Wagner v. Chicago & Alton
Railroad Co., Supreme Court of Illinois (Dec. 2, 1914), 106 North
eastern Reporter, page 809.— Joseph M. Wagner recovered a judgment

amounting to $15,000 against the company named in the superior
court of Cook County, for personal injuries. This was affirmed by the
appellate court, which, however, required a remittitur of $387.09, the
portion contributed by the Chicago, Burlington & Quincy Railroad Co.,
Wagner's employer, to the benefits he had received from the relief
fund. The Alton company then brought a writ of certiorari to the
supreme court, and is therefore designated as the plaintiff in error
in the opinion.

The employee, conductor in charge of a switching crew, was knocked
from a position on a car step by a semaphore post alleged to be too near
the track of the Alton company, over which trains of the Burlington
company were operated under a license. It was held that if the post
was in fact located too near the track, such location constituted negli
gence on the part of both railroad companies, and that the fact was
properly for the determination of the jury, which had found in favor
of the employee. The remaining question related to the release of the
company by acceptance of benefits from the relief fund, and involved

DECISIONS OF COURTS AFFECTING LABOR.

101

the application of the Federal and State laws to the case, especially
in view of an agreement at the trial that the question of interstate
commerce was eliminated, the company sued not being the employing
company. Two of the judges presented a dissenting opinion on this
point. Judge Cooke, who delivered the opinion of the majority of the
court, affirming the judgment below, discussed the question mentioned
as follows:
Defendant in error had no cause of action against plaintiff in error
under the Federal employers’ liability act, as .that act applies only
where the relation of master and servant exists. To meet the case
of defendant in error, the plaintiff in error proved that he was, and
had been since 1902, a member of the relief department of the Burling
ton company; that the employees of that company made monthly
contributions to the relief fund; that the company maintained the
department and bore the operating expenses; that he had accepted
from the relief fund, as benefits, the sum of $1,231; and that $1,349.59
had been paid in his behalf for hospital bills, physicians’ services, and
the like. In rebuttal defendant in error was permitted to prove that
at the time he was injured the engine and cars were engaged in inter
state commerce. The admission of this evidence m rebuttal is
assigned as error.
There can be but one satisfaction for an injury, and, if defendant
in error made a settlement with the Burlington company and released
it from further liability, it was a release, also, of plaintiff in error
from all liability, as the Burlington company was a joint tort-feasor.
The contract oi defendant in error with the relief department pro
vided that the voluntary acceptance by him of benefits after receiving
an injury should operate as a satisfaction of further claims against the
employer on account of such injury, and it is the law of this State
that such an acceptance, with the Knowledge that the contract con
tained such a provision, operates as a satisfaction and bar to a sub
sequent suit for damages. Eckman v. Chicago, Burlington & Quincy
Railroad Co., 169 111. 312, 48 N. E. 496 [Bui No. 15, p. 245]. The
State law in this regard has been modified, however, by the Federal
employers’ liability act as to cases where injuries are received by
certain employees of an employer engaged in interstate commerce.
The Federal act provides that any contract, rule, regulation, or device
whatsoever, the purpose or intent of which shall be to enable any
common carrier to exempt itself from any liability created by the act,
shall to that extent be void, provided that in any action brought
against any such common carrier under the act such common carrier
may set off any sum it has contributed or paid to any insurance,
relief, benefit, or indemnity that may have been paid to the injured
employee or the person entitled thereto, on account of the injury or
death for which the action is brought.
When plaintiff in error attempted to prove a satisfaction by the
payment of benefits by its joint tort-feasor, the Burlington company,
to defendant in error, it was proper for defendant in error, in rebuttal,
to show that no valid release had been given the Burlington company
by him. As between defendant in error and the Burlington company
the Federal employers’ liability act clearly applied, and if, as the
United States Supreme Court has repeatedly neld, that law super

102

BULLETIN OF THE BUREAU OF LABOR STATISTICS.

sedes all State laws on the subject, then the release given by defendant
in error to the Burlington company was not valid and would not have
precluded recovery by him from that company. If it was not valid
so far as the Burlington company was concerned, it was clearly invalid
as to plaintiff in error and constituted no defense to this action.

Employers’ Liability— Railroad Companies— Federal Stat
ute— Safety Appliances— Pennell v. Philadelphia & Reading Rail
way Co., United States Supreme Court (Jan. 5, 1914), $4 Supreme
Court Reporter, page 220.— The plaintiff, as administratrix of the

estate of J. A. Pennell, deceased, brought an action for damages for
death by wrongful act in the District Court of the United States, for
the Eastern District of Pennsylvania. Pennell was employed by the
defendant company in the capacity of fireman on one of its locomo
tives, and, it was alleged, came to his death by the failure of defendant
to comply with the requirements of the safety appliance acts of Con
gress and the rules and directions of the Interstate Commerce Com
mission in that defendant failed to affix between the locomotive and
its tender an automatic coupling device. The action was prosecuted
under the act of Congress relating to the liability of common carriers
by railroad engaged in interstate commerce to their employees while
so engaged. The trial court directed the jury to render a verdict for
the defendant, upon which judgment was entered, and it was affirmed
by the circuit court of appeals. (122 C. C. A. 77, 203 Fed. 681.)
The case was then brought to the United States Supreme Court on
error, where the judgment of the lower court was affirmed, the court
holding that the safety appliance law is entirely satisfied by providing
the automatic coupler between the tender and the cars constituting
the train— that is, on the rear end of the tender— and not necessarily
between the engine and the tender.
E mployers’ L iability — R ailroad Companies— Federal Stat
A ppliances— H auling B ad- order Car— Status
of W orkman R iding H ome— Bodge v. Chicago Great Western Rail
road Co., Supreme Court of Iowa (Mar. 24, 1914), 146 North
western Reporter, page 14>—This action was brought for the death of a
ute— Safety

conductor in the employ of the company named, from an accident
which occurred November 22, 1911. A verdict was directed for the
defendant, and the plaintiff appealed. The interstate train of which
he was conductor picked up a car which had a defective coupling and
hauled it on the rear of the train, the bad coupling being, however, on
the rear end. This car had been fastened to another car by a chain,
and as a convenient way of carrying the chain along it was attached
to the brake rod with a wire, the decedent Dodge taking part in doing

DECISIONS OF COURTS AFFECTING LABOR.

103

this. After arriving at Des Moines at the completion of the trip,
Dodge got upon an engine ©f a freight train going out over the track
on which he had just come in, in order to ride to his home. This
engine was derailed, and the engine in leaving the track turned,
crushing him to death between the engine proper and the tender. A
piece of chain, which was probably part of the one in question, was
found, and it was claimed that this was the cause of the derailment.
Counts of the declaration were based upon both the Federal employ
ers' liability act and the safety appliance act. The court in affirming
the judgment for the defendant decided that Dodge was not at the
time of the accident engaged in interstate commerce; that the con
dition of the car had nothing to do with the accident or injury; and
that Dodge was not at the time either an employee or a passenger,
but a licensee, to whom the company owed only the duty of ordinary
care. The following quotation is from the opinion by Judge Withrow:
The accident did not result from any causal connection with the
defective condition of the car, but from a cause which was unrelated
to it, excepting that the chain had previously been used to couple
that car to another one, but which at the time of the movement of the
car was not so used. Under these facts, which are not in dispute,
we think the provisions of the safety appliance act are without
application.
As to the status of the decedent at the time of the accident Judge
Withrow said in part:
We conclude that the decedent, at the time of the accident which
resulted in his death, was neither an employee nor a passenger, as
such terms are used in fixing liability. Assuming that he, with others,
had by permission enjoyed the privilege of riding upon the engine
towards his home, after his own service had ended, he was but a
licensee. Being such, and giving to the evidence all the weight and
force that can be properly claimed for it, the standard of duty
towards him for his protection would be that the defendant, thus
permitting the decedent to ride, would be held only to the exercise
of ordinary care, and that the licensee exercises the privilege at his
own risk of obvious or patent dangers, and under such conditions the
defendant owed him no active duty excepting upon the discovery of
his danger.
E mployers' L iability — R ailroad Companies— I njuries to
E mployee' s F amily R iding on P ass—Charleston & W. C. Ry. Co.

v. Thompson, Court of Appeals of Georgia (Aug. 30, 1913), 80 South
eastern Reporter, page 1097.—A judgment was obtained against the
railway company, by Lizzie Thompson, for injuries sustained by
her through the negligence of the company, while riding on one of
its trains on a pass issued to her as the wife of a railway laborer.
This judgment was affirmed by the Court of Appeals of Georgia.

104

BULLETIN OF THE BUREAU OF LABOR STATISTICS.

The following language from the syllabus by the court gives the
conclusions reached:
As a general rule, a stipulation in a free pass given by a carrier, to
the effect that the person who accepts it assumes all risks of injury
in transportation is enforceable; and as to a passenger who has
accepted transportation under such a pass a carrier is liable only for
injuries resulting from wantonness or willful negligence; but an excep
tion to this rule is presented in the provision of the “ Hepburn Act”
(Act June 29, 1906, ch. 3591, 34 Stat. 584 [U. S. Comp. Stat. Supp.
1911, p. 1286]), which permits a railroad company to issue free trans
portation to its employees and members of their families. As between
such employees and the railroad company which employs them,
the privilege and benefit of being afforded transportation without
cost may be regarded as a part of the consideration paid for the
services of the employee and may be treated as an element of value
within the contemplation of both parties at the time of entering into
the contract of employment. Consequently the court did not err
in refusing to charge the jury that, if the plaintiff (the wife of an
employee) was traveling on a free pass, she would not be entitled to
recover.
Employers’ Liability— Railroad Companies— Operating R ail
v. Jefferson City Transit Co., Kansas City Court of
Appeals (Nov. 2, 19.14), 170 Southwestern Reporter, page 411.— Henry
W. Sartain sued the railroad company named for damages for personal
injuries. Judgment was in the plaintiff’s favor in the circuit court
of Cole County, and the defendant appealed. The decision involved
the construction of the Missouri statute, Revised Statutes of 1909, sec
tion 5434, under which the action was brought, and which provides
that railroad companies shall be liable for damages sustained by any
agent or servant thereof while engaged in the work of operating such
railroad by reason of the negligence of any other agent or servant
thereof. The work which the plaintiff was doing at the time of the
injury consisted of unloading tie3 from a wagon onto the roadbed
of an extension of the railroad line, which extension was in process
of construction. The company contended that he was not engaged
in operating a railroad, but the court, after citing and discussing the
cases in point, held that the law of the State is that such employees—
those who, though not employed in actually moving a train, are doing
work which is directly essential to enable the trains to move— are
within the statute. As negligence on the part of a fellow employee
in dropping a tie and mashing the plaintiff’s foot was alleged, and
the jury by its favorable verdict had found this to be the fact, the
court affirmed the judgment below.
road— Sartain

DECISIONS OF COURTS AFFECTING LABOR.

105

E mployers’ L iability— R ailroad Companies— Orders of Su
B rakeman— Ainsley v. Pittsburgh, Cincinnati,

perior— I njury to

Chicago & St. Louis Railway Co., Supreme Court of Pennsylvania
(Jan. 5,1914), 90 Atlantic Reporter, page 129.—The employee Ainsley
secured judgment in the court of common pleas of Allegheny County
for personal injuries, which judgment was affirmed on appeal.
At the time the plaintiff below was injured he was in the employ
of the defendant company as a brakeman on a passenger train. He
was on duty on a train which left the city of Pittsburgh between 2
and 3 o’clock on the morning of October 31, 1909, bound for Colum
bus, Ohio. Shortly after it had started it was discovered that the
air brake on one of the cars was not working properly, and the plain
tiff got on the lower step of a Pullman car in an effort to locate the
brake which needed attention. While leaning out from that step
while the train was still in motion, he was brushed from the car by
coming in contact with a fence which the defendant company had
constructed between its passenger tracks to prevent persons from
crossing over them at grade. He was severely injured, and, from the
judgment which he recovered in the court below, the defendant
company appealed.
It was held that the evidence justified findings by the jury that
the brakeman’s act was in obedience to peremptory orders by the
conductor, and that the latter was a person to whose orders the
brakeman was “ bound to conform” under the State statute; also
that the question of assumed risks had been properly submitted to
the jury, and on their finding that the apparent hazard was not so
excessive as to make obedience to the orders an act of negligence, the
liability of the company was sustained.
Employers’
Liability— Railroad
Companies— Orders
of
Superior— Yard and Bridge Men— Chicago & Erie Railroad Co.

v. Lain, Supreme Court of Indiana (Jan. IS, 1914), 103 Northeastern
Reporter, page 847.— Henry Leroy Lain sued the company named for
damages for personal injury and secured a favorable verdict in the
circuit court of Fulton County. This was set aside for defect in the
complaint, and this being amended, a verdict for the plaintiff was
again rendered on the second trial, from which the company again
appealed, the supreme court on this occasion sustaining the judg
ment of the court below. The suit was brought under Burns’ A. S.
1908, section 8017, which provides that every railroad corporation
in the State shall be liable for damages for personal injury suffered
by any employee while in its service; the employee so injured being
in the exercise of due care and diligence, “ where such injury resulted
from the negligence of any person in the service of such corporation,
to whose order or direction the injured employee at the time of his
injury was bound to conform, and did conform.”

106

BULLETIN OF THE BUREAU OF LABOR STATISTICS.

Lain was directed by a foreman to move a car which was standing
on a switch track, and in order to carry out this order placed himself
upon the track behind the car, with his back to other cars standing
on the same track. While in this position, under further orders of
the foreman, an engine and cars ran at high speed against the cars
standing on the track behind Lain, and he was crushed and sustained
serious injuries.
Among other contentions of the company, it was claimed that the
employee was guilty of contributory negligence, and that on account
of the nature of his employment he was not covered by the statute.
With regard to these matters, Judge Cox, who delivered the opinion
of the court, said in part:
Under the allegations of the complaint, the position taken by
appellee was not of itself dangerous and could only become so by
the violation of duty on the part of the foreman, and he was not
bound, in the exercise of due care, to anticipate that the foreman
who was, under the averments of the complaint, present and acting
for the master would violate the duty to exercise ordinary care to
prevent his position from becoming a dangerous one. [Cases cited.]
Finally it is claimed by counsel that tne complaint affirmatively
shows that appellee was a carpenter and not an employee engaged
in the operation of trains, and that for that reason he can not come
within the provisions of the statute which is invoked to establish
his cause of action. It is not averred in the complaint that appellee
was employed and working as a carpenter, but, on the contrary, it
is averred that he was one of the appellant's “ yard and bridge men” ;
that as such he was ordered to move a car on one of the tracks of
appellant’s switch yard; and that, while doing this, he was injured
by the movement of other cars and an engine in the yard and on
that track. This obviously brings appellee within the application
of the statute within the rule laid down in Indianapolis, etc., Co. v.
Kinney (1908) 171 Ind. 612, on page 617, 85 N. E, 954, on page 957,
where it was said: “ We do not mean that it is essential to the bring
ing of an employee within the statute that he should be connected in
some way with the movement of trains, but it seems sufficient if the
performance of his duties brings him into a situation where he is,
without fault, exposed to the dangers and perils flowing from such
operation and movement, and is by reason thereof injured by the
negligence of a fellow servant described in the act.”

E mployers’ L iability— R ailroad Companies— Safety A ppli
E lectric Trains— Spokane & Inland Empire Railroad

ances —

Co. v. Campbell, United States Circuit Court of Appeals, Ninth Cir
cuit (Oct. 19, 1914), 217 Federal Reporter, page 518.—Edgar E. Camp
bell brought action against the company named for personal injuries
suffered while running as motorman an interstate electric train of the
company

DECISIONS OF COURTS AFFECTING LABOR.

107

That the provisions of the safety appliance act as amended now
apply to interstate electric trains was held by the court, Judge Wolverton, who delivered the opinion, speaking in part as follows on
this point:
There can be no doubt that when the primary act was passed,
electrically propelled trains were not within the legislative mind, and
where “ locomotive engine" occurs reference was had to a steampropelled engine. And likewise when “ engineer" is spoken of, it
had relation to a person in charge of a steam-propelled locomotive.
The electric railroad has since come into very general use, with
its driving engines called motors, and its employees in charge of the
engines are called motormen or enginemen.
In a narrower sense, a locomotive engine is spoken of as an engine
propelled by steam; but when the statute, as the amendment does,
extends the provisions of the act to apply to all trains, locomotives,
tenders, cars, and similar vehicles used on any railroad engaged in
interstate commerce, and to all other locomotives, tenders, cars, and
similar vehicles, it broadens the significance so as, without question,
to include motors electrically propelled, used upon railroads engaged
in interstate commerce. So, also, the original act, with its amend
ment, includes the operators of such engines, whether called engi
neers or motormen. We think the statute is broad enough to require
that electrically propelled engines and trains engaged m interstate
commerce, as well as steam-propelled engines and trains, shall be
equipped with air brakes for their efficient operation and control.

Employers' Liability— R ailroad Companies— State Stat
Extraterritorial Effect — Jurisdiction of Courts—

ute —

Tennessee Coal, Iron & R. Co. v. George, United States Supreme Court
(Apr. 13, 1914), 84 Supreme Court Reporter, page 587.— Wiley George
was injured while employed by the defendant company in Alabama,
the injury being due to a defect in the locomotive on which he was
employed. He brought suit for damages in the city court of At
lanta, Ga., basing his right to recover on section 3910 of the Alabama
Code which makes the master liable when an injury is caused by the
defective condition of machinery, etc. The company defended upon
the ground that the courts of Georgia did not have jurisdiction, as
section 6115 of the Alabama Code provided that “ all actions under
section 3910 must be brought in a court of competent jurisdiction
within the State of Alabama, and not elsewhere." The company
contended that inasmuch as the law provided that action under it
should be brought in the Alabama courts only, it would be a denial
of full faith and credit to the acts of Alabama, by the State of Georgia,
contrary to the provisions of article 4, section 1 of the Constitution
of the United States, if the Georgia court took jurisdiction. The
contention of the company was overruled and George obtained judg
ment in his favor, which judgment was affirmed by the Georgia Court

108

BULLETIN OF THE BUREAU OF LABOR STATISTICS.

of Appeals. (11 Ga. App. 221, 75 S. E. 567.) In the United States
Supreme Court the judgment of the State court was affirmed, Mr.
Justice Lamar delivering the opinion of the court, from which the
following is taken:
There are many cases where right and remedy are so united that
the right can not be enforced except in the manner and before the
tribunal designated bv the act. For .the rule is well settled that
“ where the provision for the liability is coupled with a provision for
the special remedy, that remedy, that alone, must be employed.”
[Cases cited.]
But that rule has no application to a case arising under the Ala
bama Code relating to suits for injuries caused by defective machinery.
For, whether the statute be treated as prohibiting certain defenses, as
removing common-law restrictions, or as imposing upon the master
a new and larger liability, it is in either event evident tiiat the place of
bringing the suit is not part of the cause of action—the right and the
remedy are not so inseparably united as to make the right dependent
upon its being enforced in a particular tribunal. The cause of action
is transitory, and like any other transitory action can be enforced
“ in any court of competent jurisdiction within the State of Alabama.”
The courts of the sister State, trying the case, would be bound to
give full faith and credit to all those substantial provisions of the
statute which inhered in the cause of action, or which name condi
tions on which the right to sue depend. But venue is no part of the
right, and a State can not create a transitory cause of action and at
the same time destroy the right to sue on that transitory cause of
action in any court having jurisdiction.

E mployers’ L iability— R egulations Concerning E lectric
W ires— Substitute Provisions— McClaugJierty v. Rogue River

Electric Co., Supreme Court of Oregon (Apr. 7, 1914), 140 Pacific
Reporter, <page 64-—James McClaugherty, a minor a little less than 21
years of age, met his death May 27, 1911, from an electric shock
while installing an electric motor, for this purpose running wires on a
certain pole, which carried among others some 2,300-volt wires. He
was not instructed whether or not to cut off the current from these
wires while doing the work, and did not do so. The company had
provided means of interrupting the current, instead of conforming to
the statutory regulations as to electric wires included in the employers’
liability act, Laws of 1911, page 16. As to the necessity of strict com
pliance by employers with those regulations, the court, in its opinion
delivered by Judge Bean, said:
The contention of the defendant assumes that under the employers’
liability act the company was at liberty to furnish substitutes for those
things required by the terms of the act; that is, instead of “ full and
complete insulation” being provided at all points where employees
are liable to come in contact with tha wires carrying electricity of a

DECISIONS OF COURTS AFFECTING LABOR.

109

dangerous voltage, instead of dead wires not being mingled with
live wires, nor strung upon the same support, and the arms or sup
ports bearing live wires being “ especially designated by a color or
other designation which is instantly apparent,” and instead of such
live wires being strung far enough from the poles or supports to permit
the repairmen to engage in their work without danger of shock, all
as required by the act, the defendant could furnish cut-off switches
so that the current of electricity could be shut off, and then the com
pany would not be negligent, notwithstanding the fact that the pro
visions of the statute were not complied with. Such, however, is
not the law. The requirements of the statute as to the safeguards
enumerated are positive and mandatory. There are no alternatives.
The judgment of the court below in the plaintiff's favor was there
fore affirmed.
E mployers' L iability— R ight of A ction— E lection— E ffect
W orkmen' s Compensation A ct— Consolidated Arizona Smelting

Co. v. TJjack, Supreme Court of Arizona {Mar. 17, 1914), 189 Pacific
Reporter, page 465.—The employee Ujack was injured, and brought
action against the company employing him. Judgment was for plain
tiff in the superior court of Yavapai County, and the supreme court
affirmed this judgment. The defense relied upon was that the plain
tiff's only remedy was a proceeding under the workmen's com
pensation act, since he did not previous to the injury elect to reject
the provisions of that act. The court decided that an employee
has the option to elect any one of three forms of procedure after the
injury, and that the adoption of one becomes exclusive only on com
mencing a suit in accordance with his election. Quotations are made
in the opinion from various sections of the constitution and the work
men's compensation act. Among other things, speaking by Judge
Ross, the court says:

The appellee [Ujack] contends that he was entitled, under the
facts of tne case, to maintain his suit for personal injury under the
employers' liability law, while the appellant insists that his exclusive
remedy was to be found in the compulsory compensation law. The
controverted question may be disposed of by a correct answer to
this question: Does the compulsory compensation act, when not dis
affirmed prior to injury, limit the remedy of the injured employee to
the compensation provided in that act, or may he after the injury
elect between his remedy under the act and the other remedies of
the common-law liability or employers' liability ? The appellee was
in the employment of appellant at the time the workmen's compen
sation law took effect, and had been in such employment for more
than 10 days thereafter when he was injured. Neither the employer
nor the employee had taken any affirmative action in recognition of
the law, either to approve or repudiate it.
The constitution says: “ The legislature shall enact a workmen's
compulsory compensation law * * * by which compulsory com
pensation shall be required to be paid to any such workman by his

110

BULLETIN OF THE BUREAU OF LABOR STATISTICS.

employer. * * * Provided, that it shall be optional with said
employee to settle for such compensation, or retain the right to sue
said employer as provided by this constitution.” This mandate to
the legislature was carried out in the enacting of the workmen’s
compulsory compensation law, and, in doing so, there was created a
new civil action heretofore unknown to our laws, available to the
employee injured in the circumstances provided by law. It is
optional with the injured employee as to whether he will accept the
compensation. The employee’s right to exercise this option being a
constitutional right, legislation is impotent to deprive him of it. If
the employee is never injured, he can make no claim for “ such com
pensation,” nor exercise his option. After the cause of action has
accrued to the employee, he may choose to accept the compensation
allowed under this act, and the legislature is competent to prescribe
the steps he shall take in its enforcement, but it can not require him
to elect, in advance of any injury, or the accrual of any right, which
remedy he will pursue for redress.
Therefore any expressions in the workmen’s compulsory compensa
tion act that seemingly require that the employee shall eleot, in
advance of injury, his remedy for redress should be read and con
strued in view of the constitutional provision permitting him to
exercise his option, after the injury, either to claim compensation or
sue for damages.
The last sentence of section 14 reads: “ Any suit brought by the
workman for a recovery shall be held as an election to pursue such
remedy exclusively.” This seems to us a plain declaration by the
legislature that the employee is at liberty to pursue any of the rem
edies provided by law until he adopts one by instituting a suit for
redress, when the one adopted becomes exclusive.
E mployers’ L iability — Safe Place— RosJiolt v. Worden-Allen
Co., Supreme Court oj Wisconsin (Dec. 9, 1918), 144 Northwestern
Reporter, page 650.—John Rosholt was injured by falling from a
runway on a building the roof of which, as a carpenter, he was en
gaged in constructing. While carrying planks from a pile to the
place where they were to be nailed on the roof, he stepped on the
end of a loose plank composing the runway and fell through to the
basement of the building, a distance of about 30 feet. The principal
contention of the defendant in appealing from a judgment rendered
for the plaintiff in the circuit court of Milwaukee County was that
there was no negligence on its part. On this point the court, speaking
by Judge Barnes, said:

Section 2394-48 requires every employer, among other things, to
furnish a place of employment11which shall be safe for employees.”
Section 2394-49 provides that no employer “ shall require, permit or
suffer any employee to go or be in any employment or place of em
ployment which is not safe.” Section 2394-41, subdivision 11, pro
vides that “ the terms *safe* and1safety’ as applied to an employment
or a place of employment shall mean such freedom from danger to the
life, health or safety of employees * * * as the nature of the
employment will reasonably permit.”

DECISIONS OF COURTS AFFECTING LABOR.

I ll

It is obvious that these provisions make some radical changes in
the common law as it existed when the act was passed. * * * It
is also apparent that the employer no longer fulfills his duty by
furnishing a “ reasonably” safe place. Instead, he must furnish one
which is as free from danger as “ the nature of the employment will
reasonably permit.”
We think it must be said in the instant case that the jury might
well find that the place of employment was not as free from danger
as the nature of the employment would reasonably permit. The lay
ing of two or three tiers of planks instead of one would in all proba
bility have prevented the accident. It is almost a certainty that the
nailing down of the tier that was laid would have prevented it. So
would the erection of a substantial guardrail immediately outside of
the joists or purlines on which the planks rested. It may well be that
there were other things which might have been done to make the
place safe which the nature of the work would reasonably permit, but
the enumeration given is sufficient. A jury would be well within its
rights in saying that the nature of the work would reasonably permit
either of the first two things mentioned to be done, and probably the
third. The jury has found that the place was not “ safe” within the
meaning of the statutory definition of the word, and we think the
evidence was ample to warrant such a finding.

As to the questions of assumption of risk and contributory negli
gence, the court said:
The defense of assumption of hazard was abolished by subdivision
1 of section 2394-1 as to all employees. Were it still a defense, it
might and probably would defeat recovery on the part of the plain
tiff. But leaving out of consideration assumption of hazard, we think
there is little evidence in the record which would warrant the jury in
finding that the plaintiff was guilty of contributory negligence. Cer
tainly the jury might find on the evidence, as it aid, that there was
no contributory negligence on his part.

E mployers’ L iability— Safe Place— Scaffolding— Bornhof v.
Fischer et al., Court of Appeals of New York (Feb. 8, 1914), 104
Northeastern Reporter, page 180.—This case was appealed from the
decision of the appellate division of the supreme court, which had
reversed a judgment in the plaintiff’s favor in the trial court. The
court of appeals affirmed the judgment of the trial court, reversing
the appellate division. The facts and the legal point involved are
included in the court’s opinion, delivered by Judge Miller:

This plaintiff, an employee of the defendant Fischer, was injured
by the fall of a scaffold or runway, and the important question now
to be decided is whether section 18 of the labor law (Consol. Laws,
ch. 31) makes said defendant responsible for the accident, although the
scaffold or runway was actually constructed by the defendant Ken
nedy. Both defendants were engaged in the construction of a build
ing. Kennedy was the general contractor, and was doing the mason

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BULLETIN OF THE BUREAU OF LABOR STATISTICS.

work. Fischer was a subcontractor, doing the iron work. At the
time of the accident employees of both were working on a structure
12 feet high, called a penthouse, on the roof of the building. The
plaintiff was sent from the roof of the penthouse by his foreman to
fetch a tool, and on his return the planks leading to the penthouse
slipped off and fell with him.
It is now settled law that the said statute is to be liberally con
strued to accomplish its beneficent purpose, that is, the better pro
tection of workmen engaged in certain dangerous employments, and
that the duty imposed upon the employer to furnish safe scaffolding,
etc., can not be delegated. Scaffolding is thus made by statute a
place to work which it is the duty of the employer to furnish. He
can no more delegate that duty to some other contractor engaged in
the work than to an independent contractor of his own, or one of his
own employees, and it can be of no consequence whether he directly
employs, or tacitly suffers, another to perform that duty for him.
In this case some means of access to the roof of the penthouse was
necessary. The appellant furnished none whatever. His employees
were thus left to choose between the runway or the less convenient
ladder, both furnished by another. Having furnished none of his
own, he must be held to have adopted the means at hand, or the
statute loses its efficacy.
E mployers’ L iability— Statutory N otice— Meniz v. Quissett
Mills, Supreme Judicial Court of Massachusetts (Feb. 25, 1914), 104
Northeastern Reporter, page 2S6.—This was an action under the
employers’ liability act, Stat. 1902, ch. 106, sec. 71 et seq., and the only
question raised was as to the sufficiency of a notice given, under the
requirements of Stat. 1909, ch. 514, sec. 132. The attorneys retained
by the plaintiff to assist him wrote a letter to the defendant, within
the time limit, stating that they had been so retained, mentioning the
circumstances, time, and place of the injury. This was held by the
court to be a sufficient notice, although it did not state in terms that
it was intended to be such notice, nor that it was signed on behalf
of the injured employee.
E mployers’ L iability— Statutory N otice—RodzborsJci v. Ameri
can Sugar Refining Co., Court of Appeals of New YorTc (Feb. 24,1914),
104 Northeastern Reporter, page 616.—John Rodzborski was injured
February 5, 1907, as his complaint alleged, by the starting of a con
veyor, used to convey coal on a large belt, while the employee was
removing snow from the belt. The employee was unable to speak or
write English. The trial court rendered judgment in his favor, and
the appellate division of the supreme court affirmed this judgment.
The court of appeals decided that the plaintiff’s evidence, though
meager and in conflict with that of the defense, was sufficient to sus
tain the verdict of the jury. The judgment was reversed and a new

DECISIONS OF COURTS AFFECTING LABOR.

113

trial ordered, however, on other grounds, the principal point of interest
being as to the notice required under the employers’ liability act
(Consol. Laws, ch. 31, sec. 201). This section provides:
No action for recovery of compensation for injury or death under
this article [employers7 liability] shall be maintained unless notice
of the time, place and cause of the injury is given to the employer.
* * * The notice required by this section shall be in writing and
signed by the person injured or by some one in his behalf, * * *
One Laboda sent to the company a letter, of which no copy was
retained, but which he testified read as follows:
To the American Sugar Refining Co., Brooklyn. Gentlemen:
Kindly investigate the case of John Rodzborski that has been injured
on the 5th day of February, 1907, while cleaning a belt in the boiler
room, between South Third and South Fourth Streets; John Rodz
borski has been made a cripple and not able to do any work, and
won’t be for some time to come.
As to the sufficiency of this notice with respect to the cause of
injury Judge Werner, in delivering the opinion of the court, said:
It will be seen that the form of the paper which is here claimed to
be a notice in compliance with the above-quoted section resembles a
letter asking for charitable aid more than it does a notice; but, if we
make a due allowance for the ignorance of the plaintiff and assume
that the service of this paper was intended to be a compliance with
the statute, it is impossible to say that it states any “ cause” of the
injury. It refers to an injury sustained “ while cleaning a belt.” No
defect in the belt or machinery is claimed, and the defendant might
have searched in vain for the cause of the injury. This lack of detail
in the notice is not a mere inaccuracy in stating the cause, but an
utter absence of the statement of any cause whatever.
The record was not clear as to whether or not there was any signa
ture on the letter which was claimed to be a notice. The court said
in part on this point:
We simply say that the language of the statute seems to be plain
and unequivocal. It must be “ signed by the person injured or by
some one in his behalf.” That direction is at once so plain and so
thoroughly within the understanding of the average layman that it
would be doing violence to the intent of the legi lature to say that a
notice with no signature has been “ signed by the person injured or
by some one in his behalf.” ^ Such a notice may therefore be signed by
a plaintiff himself, or by his mark when he is illiterate, or by some one
on his behalf, but it must be signed.

E mployment of Children in Mines— A ge L imit— Construction
Statute— “A ny Min e ”— Cole v. Sbss-Sheffield Steel & Iron Co.,

Supreme Court of Alabama (May 14,1914), 65 Southern Reporter, page
85590°—Bull. 169—15------8

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BULLETIN OF THE BUREAU OF LABOR STATISTICS.

177.—Willie Cole, a minor under the age of 14 years, employed by
the company named, was killed in its ore mine near Bessemer, Ala.,
June 17, 1911. This action was brought by his administrator, and
the complaint alleged that the death was proximately caused by the
defendant's violation of Code 1907, section 1034. The original act
of 1896-97 prohibited employment of boys under 12 years of age in
the mines of the State, and its title showed that it applied to coal
mines only. In the revision 12 was changed to 14, and “ the mines"
to “ any mine." The supreme court held that this change manifested
a legislative intent to make the provision applicable to mines of all
other kinds as well as to coal mines. It therefore reversed the judg
ment for the defendant company entered in the city court of Besse
mer, and remanded the case for a new trial.

Examination and Licensing o f Plumbers— Class Legisla
tio n —Constitutionality o f Statute— Davis v. Holland, Court oj

Civil Appeals of Texas (May SO, 1914), 168 Southwestern Reporter,
page 11.— The Revised Statutes of Texas, articles 986-998, provide for
the establishment of plumbing boards in cities of the State coming
within certain descriptions, and for the examination and certification
of plumbers, together with other provisions. E. S. Davis and others
brought a suit in the district court of Dallas County to require W. M.
Holland and others, mayor and commissioners of the city of Dallas,
to carry out the provisions of the statute in question. Judgment in
this court was for the defendants, whereupon Davis and his asso
ciates appealed, the appeal resulting in the judgment of the court
below being affirmed.

There were several questions as to the application of the law to the
city of Dallas, but they are noc of general interest. The court
decided, however, that the city was within the description of those
municipalities contemplated by the legislature in the enactment of
the statute. Another contention was as to the constitutionality of
the statute, and on this point the court held that it was unconstitu
tional, on grounds that appear in the following quotation from the
opinion of the court, which was delivered by Judge Rasbury:
It is further urged, however, by counsel for appellees, that, even
though the general laws under discussion are applicable, they are
nevertheless without force or validity, because unconstitutional as
being in contravention of article 1, section 3, * * * [of the consti
tution of the State] which provides that:
“ All freemen, when they form a social compact, have equal rights,
and no men, or set of men, is entitled to exclusive separate public
emoluments, or privileges, but in consideration of public service."
With such contention we agree. The rule is that all laws affecting
a particular class of business or vocation in order to meet the require

DECISIONS OF COURTS AFFECTING LABOR.

115

ments of the section of the constitution cited must affect all of the
specified class uniformly and alike. [Cases cited.] The two con
cluding articles of the act under discussion do not comply with that
rule, since their effect is to permit a firm or partnership of plumbers
to practice their trade in the event only one member thereof has suc
cessfully passed the examination before the board, while every plumber
not a member of such a firm or partnership must in any event submit
to the examination and be licensed by the board before he may do so.
Thus, by acquiring membership in a firm, one who has failed to
pass the examination required by law and which should be the test
alike for all would be permitted to practice his trade in competition
with one who had passed the examination, and by which method a
privilege would accrue to one of the specified class not conferred upon
all others in the same class.
Factory R egulations— W ash R ooms— Constitutionality of
Statute— People v. Solomon, Supreme Court of Illinois (Oct. 16,
1914) j 106 Northeastern Reporter, page 458.—George W. Solomon was
convicted in the Sangamon County court of failing to provide wash
rooms for employees, as required by an act of the Illinois General
Assembly, Laws of 1913, page 359, entitled: “ An act to provide for
wash rooms in certain employments to protect the health of employees
and secure public comfort.”

The first section of the act is as follows:
Section 1. Every owner or operator of a coal mine, steel mill, foundry,
machine shop, or other like business in which employees become covered
with grease, smoke, dust, grime and perspiration to such extent that
to remain in such condition after leaving their work without washing
and cleansing their bodies and changing their clothing, will endanger
their health or make their condition offensive to the public, shall
provide and maintain a suitable and sanitary wash room at a con
venient place in or adjacent to such mine, mill, foundry, shop or
other place of employment for the use of such employees.
The remaining sections relate to equipment, enforcement, and
penalties. In the Sangamon County court a motion was made to
quash the information on the ground of unconstitutionality, also
unreasonableness and uncertainty. This motion was denied, and on
trial the defendant was convicted, whereupon he sued out a writ of
error to the supreme court. Judge Craig delivered the opinion of
the latter court, sustaining the act against the charges named, using
in part the following language:
Any act of this kind, to be valid, must apply to all employers of
labor similarly situated or to all employers of labor where conditions
obtain that would require wash rooms. The question remains: Has
this object been accomplished by naming, specifically, certain em
ployments to which the act applies in the first section of the act,
followed by the words, “ or other like business in which employees
become covered with grease, smoke, dust, grime and perspiration to
such extent that to remain in such condition after leaving their work

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BULLETIN OF THE .BUREAU OF LABOR STATISTICS.

without washing and cleansing their bodies and changing their cloth
ing, will endanger their health or make their condition offensive to
the public” ?
By a fair construction of the law it applies not only to the employ
ments named, but to all other like business of an established or
permanent character in which the “ employees become covered with
grease, smoke, dust, grime and perspiration to such extent that to
remain in such condition after leaving their work without washing
and cleansing their bodies and changing their clothing, will endanger
their health or make their condition offensive to the public.” Under
such construction the law will apply to all employments in which the
conditions exist that make such a law necessary, and it would not be
special or class legislation.
Nor, as we construe this law, is it ambiguous and uncertain. It
applies to the employments specifically mentioned in the act and to
au other like business of permanent character where the same con
ditions prevail and where there would be the same reasons for the
law to apply.
For the above reasons we are constrained to hold the law valid
and constitutional, and accordingly the judgment of the county court
of Sangamon County will be affirmed.

Hours of L abor— E ight- hour Law — Employment by State—
Constitutionality of Statute—Ex parte Steiner, Supreme Court oi
Oregon (Dec. 28, 1913), 137 Pacific Reporter, page 201^.— Steiner, who
was the superintendent of the Oregon State Hospital, was arrested
on a criminal complaint charging him with the violation of the pro
visions of chapter 61 of the General Laws of Oregon, 1913. This law
provides that eight hours shall constitute a day’s labor in all cases
where the State is the employer, either directly or indirectly, and
makes its violation by a contractor, subcontractor, or agent a misde
meanor punishable by fine or imprisonment. The acts complained
of were that Steiner required an employee to perform labor as a farm,
hand at the asylum farm for more than eight hours in one day; also,
that at the same time and place an engineer was required to labor in
excess of eight hours. Steiner applied for a writ of habeas corpus
after he was arrested on the ground that the statute was in violation
of the fourteenth amendment of the Federal Constitution and in
contravention of section 20, article 1, of the State constitution, which
provides “ No law shall be passed granting to any citizen or class of
citizens, privileges * * * which, upon the same terms, shall not
equally belong to all citizens.”
The writ of habeas corpus was denied, Judge Burnett dissenting.
Judge McNary, in giving the opinion of the court, said in part:
The State has undoubted power to prescribe for itself such rules of
conduct as it deems best suited for the particular work in which it is
engaged. By the legislative act in question the State simply declares
that no person shall oe permitted or required to perform labor for it,

117

DECISIONS OF COURTS AFFECTING LABOR.

or for any of its administrative agencies, more than eight hours in a
calendar day, and that none need apply who desire longer hours of
employment. To the contractor of State work, it says no one can
work for you in excess of eight hours in a day. No barrier is placed
about a laborer preventing him from seeking employment elsewhere.
His liberty of selection is not interfered witn, nor his right to labor
frustrated. Any individual may, with propriety, declare a policy not
to employ within the line of his undertaking any person for a longer
period of time than eight hours in a day, or any other unit of time
that might appeal to his altruism, and direct his agent to observe that
regulation. And by parity of reason, the State, speaking through
the legislature, may, with equal fitness, inaugurate a rule of conduct
not to work its employees more than eight hours a day, and legally
direct its instrumentalities of government faithfully to observe such
mandate. The terms of the employment are by this statute publicly
reclaimed, and if a person insists upon working more than the hours
mited by the act, he must seek elsewhere the engagement of his labor.

H ours of L abor— E ight- hour L aw — Policemen
men—Albee

and

F ire

v. Weinberger, Supreme Court of Oregon (Feb. 17, 1914),
138 Pacific Reporter, page 859.—H. R. Albee, mayor of Portland,
Oreg., applied for a writ of habeas corpus to Andy Weinberger,
constable. This was granted by the court. Albee had been arrested
on complaint that he had violated the provisions of chapter 61,
General Laws of Oregon, 1913, in permitting and requiring, as mayor,
a designated fireman and a specified policeman to labor at their
several duties more than eight hours in one day, when there was no
emergency demanding the performance of such extra service. The
supreme court held that the statute was not violated, not being ap
plicable to the designated employments.
The statute in question (chapter 61, General Laws of 1913) fixes an
eight-hour day in all cases where labor is employed by the State,
county, school district, municipality, or municipal corporation or
subdivision, either directly or through another, except in cases of
necessity, emergency, or where public policy absolutely requires it.
Judge Moore first quoted the section in question, and, holding that
policemen and firemen are not laborers within the meaning of this
act, used in part the following language:
Giving to the term “ laborer,” as used in the enactment quoted, the
most extensive definition applicable, it is not believed that a fireman
or a policeman, employed by the city of Portland, or the services which
he is ordinarily required to perform for it, makes either a laborer
within the meaning of that word. It will be remembered that by law
of that municipality all officers and members of the fire and police
departments are required to take and subscribe their names to an
oath of office.
The firemen and policemen of the city of Portland, when once
selected, are not subject to dismissal upon the whim of the appointing

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BULLETIN OP THE BUREAU OP LABOR STATISTICS.

power, or at the command of some political boss. Governed by the
civil-service rules, a member of the fire or police department can
hold his public position as long as he pleases, provided his physical
ability continues, and he remains faithful to the trust. The ap
pointing power being thus unable permanently to discharge a fire
man or a policeman, he is neither a servant nor an employee, but,
having taken an oath faithfully to perform the duties devolving upon
him, he is an officer, and therefore not a laborer within the meaning of
chapter 61, Gen. Laws Oreg. 1913.
It was also held that in any case the statute had not been violated,
Judge Moore saying on this point:
The services required to be performed by the firemen, though
arduous and dangerous at times, requiring vigor and courage, the
work so demanded is not constant; and, while the members of the
fire department must at all times be ready to respond to alarms
whenever given, they are not subjected to active toil 8 hours in any
24, except in cases of emergency which the statute recognizes as a
deviation from the prescribed rule.
Policemen, however, must, during the time limited for a per
formance of their duties, persistently and constantly patrol tneir
beats, except when entering a building in the interest of the service,
or answering an inquiry or protecting, delivering, or committing a
person when arrested. While on duty they are not permitted a
moment’s rest but are actively engaged in the execution of their
work as guardians of the peace ana safety of the community. In
the case at bar, as the members of the police department are divided
into three shifts of eight hours each, the changes of the watch relieve
those who have been on duty from performing more than the pre
scribed number of hours of service, except in cases of emergency.
Therefore, on both grounds referred to here, there has been no
violation of the provisions of the statute. It follows from these con
siderations that the petitioner should be discharged; and it is so
ordered.
Hours of Labor—Eight-hour Law— Public Works—Con
stitutionality of Statute— Sweetser v. State, Court of Appeals

of Maryland (Mar. 18, 1914), 90 Atlantic Reporter, page 180.—
Frank B. Sweetser was convicted in the criminal court of Baltimore
City of violating the hours of labor law, Acts of 1910, ch. 94, secs. 2
and 3, which provides that in the case of contractors with the city
of Baltimore (as well as the city itself) 8 hours shall constitute a
day’s labor, that employment shall not be for longer except in cases
of emergency, that additional pay shall be given in case of longer
hours, and that the pay shall be the current rate of per diem wages
in the locality where the labor is performed. On appeal the judg
ment of conviction was affirmed. The contractor in question had
employed men at an hourly wage of 19 cents, the usual wage for
similar labor being $1.90 per day of 10 hours. While not required
to do so, the men worked 10 hours in order to receive the full daily
wage.

DECISIONS OF COURTS AFFECTING LABOR.

119

The defense was largely on the ground of the unconstitutionality
of the law. The first point was that the contractors were deprived
of property without due process of law, in violation of the fourteenth
amendment of the Federal Constitution. While stating that sev
eral similar laws had been declared unconstitutional in other States,
the court followed, among other cases, the decision of the United
States Supreme Court in Atkin v. Kansas, 191 U. S. 207, 24 Sup.
Ct. 124 (Bui. No. 50, p. 177), and quoted extensively from the opinion
of Mr. Justice Harlan therein, sustaining the law. Other objections,
that the law places an unauthorized restraint upon a municipal
corporation, and that it denies the equal protection of the laws
because of the fact that it is applicable to contractors with Balti
more only, were also determined to be invalid.

H ours of L abor— E ight- hour L aw — Public W orks— L ock
D am F urnishing Power — Chattanooga cfc Tennessee River

and

Power Co. v. United States, United States Circuit Court of Appeals,
Sixth Circuit (Dec. 2, 1913), 209 Federal Reporter, page 28.—The
company named was convicted in the district court of violation of
the eight-hour law of August 1, 1892, ch. 352, 27 Stat. 340 (U. S.
Comp. Stat. 1901, p. 2521). This statute forbids the employment
of laborers and mechanics by a contractor on a public work of the
United States more than eight hours within a calendar day, except
in cases of emergency. The company contended that the building
of the lock and dam on which it was engaged was not a “ public
work.”
The facts, as admitted by the demurrer of the company to the
complaint, which the lower court overruled, were that the company
contracted to build the dam, furnishing the materials, except a
specified portion which was furnished by the United States, and to
vest title in the United States; and it does this work in considera
tion of a grant of right to use the water power produced by the dam.
The court of appeals affirmed the decision and judgment of the
lower court, on the ground that the principal object of the building
of the dam by the Government was the benefit to navigation, and
that it was a public work within the act.

Hours o f Labor— Public Laundries— Constitutionality o f
Ordinance— Ex parte Wong Wing, Supreme Court of California (Jan.

16, 1914), 138 Pacific Reporter, page 695.—Wong Wing was convicted
of violation of the provisions of an ordinance of the city of San Francisco, requiring cessation of work in laundries between the hours of 6
o’clock p. m. and 7 o'clock a. m. He applied for a writ of habeas

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BULLETIN OF THE BUREAU OF LABOR STATISTICS.

corpus, and contested the constitutionality of the law. The court
discharged the writ, a part of the opinion of the court being as follows:
This court and the Supreme Court of the United States have
declared constitutional an ordinance very similar to the one before
us, where the restriction upon the hours of labor required the cessa
tion of work in public laundries between the hours of 10 o’clock p. m.
and 6 o’clock a. m.
It is settled law that such ordinances operate alike upon all persons
and property s milarly situated, and that the motives impelling the
legislators who adopt such regulations are immaterial, unless it appear
that the laws operate inequitably. We are therefore to determine
whether the limitation of the time of labor in public laundries to 11
hours each day is a restriction so unreasonable that it invades the
constitutional, rights of persons engaged in the laundry business. We
can not say that it does. Very many, perhaps a majority of, occupa
tions, employments, and forms of business in San Francisco are
conducted during less than 11 working hours a day. The authority of
the municipal legislature to prescribe hours of cessation from labor in
laundries must Be conceded, under the authorities cited above, and
we think the fair measure of the extent of that power s the usual
period of business activity in similar sorts of employment. We can
not say, therefore, that the restriction of the hours of activity pro
vided m the ordinance here attacked is an unconstitutional exercise
of the legislative will of the board of supervisors of the city and county
of San Francisco.
Hours o f Labor— Ten-hour Law— Constitutionality o f
Statu te— State v. Bunting, Supreme Court of Oregon (Mar. 17,
1914)) 139 Pacific Reporter, page 731.—F. O. Bunting was convicted
in the circuit court of Lake County of employing a man to labor in his
manufacturing establishment for more than ten hours in one day, in
violation of the act, chapter 102, Acts of 1913. This conviction was
affirmed on appeal over the defendant’s contention that the act in
question is unconstitutional.

In setting aside the arguments made against the act, Judge Bean,
who delivered the opinion of the court, used in part the following
language:
By the adoption of the fourteenth amendment it was not designed
nor intended to curtail or limit the right of the State under its police
power to prescribe such reasonable regulations as might be essential
to the promotion of the peace, welfare, morals, education, or good
order of the people.
In order to warrant declaring the act violative of the fundamental
law, it should be shown that in the light of the world’s experience and
common knowledge the act under consideration is palpably and
beyond reasonable doubt one that will not tend to protect or conserve
the public peace, health, or welfare in its enforcement. It is by lie
means clear beyond a reasonable doubt that the law will not promote
the peace, health, and general welfare of citizens of the State, or that
longer hours of labor in factories would not be injurious to the health

DECISIONS OF COURTS AFFECTING LABOR.

121

as declared by the act, or that the act is repugnant to the Constitution.
The presumption, therefore, is in favor of the wisdom and the cor
rectness of tne legislative finding and determination that the law is a
necessity for the protection 01 the health, well-being, and general
welfare of the public; that the regulation prescribed by the enact
ment will tend to correct the evil at which it is aimed. The courts
can not set aside the legislative decree without intrenching upon the
prerogatives of a coordinate branch of the State government, and
usurping the powers of the legislature.
The law does not prevent the laborer from working as many hours
er day as he sees fit, and does not violate his right to labor as long as
e may desire, but only prohibits his being employed in any mill,
factory, or manufacturing establishment more than a certain number
of hours in any one day.
The act applies to all the people in the State who employ labor in
mills, factories, or npLanufacturing establishments. In the very nature
of things the occupations affected by the law furnish a reasonable
basis for the statutory regulation. In the light of the former decisions
of this court the classification is not unreasonable. [Cases cited.]
It is contended by counsel for defendant that the provision for
employees to work overtime not to exceed three hours in any one day,
‘conditioned that payment be made for said overtime at the rate of
time and one-hali the regular wage, renders the whole act void. It
is clear that the intent of the law is to make 10 hours a regular day’s
labor in the occupations to which reference is made. Apparently
the provisions permitting labor for the overtime on express condi
tions were made in order to facilitate the enforcement of the law,
and in the nature of a mild penalty for employing one not more than
three hours’ overtime. It might be regarded as more difficult to
detect violations of the law by an employment for a shorter time
than for a longer time. This penalty also goes to the employee in case
the employer avails himself of the overtime clause. Reasonable
modes of enforcing a statute should be upheld.
Legislative provisions are frequently made that a portion of a fine
for the infraction of a statute shall be paid to the informer. The
aim of the statute is to fix the maximum hours of service in certain
industries. The act makes no attempt to fix the standard of wages.
No maximum or minimum wage is named. That is left wholly to
the contracting parties.
The statute under which the complaint is made in this case is not
violative of the Constitution of the United States or of this State.
As a consequence, the judgment of the lower court is affirmed.

H ours of L abor of W omen— Constitutionality of Statute—
L iberty of Contract— E qual Protection of the L aws — Riley v.

Massachusetts, United States Supreme Court (Mar. 23, 1914)> 34 Su
preme Court Reporter, page 469.—Richard G. Riley was convicted in
the superior court for the county of Bristol upon a criminal complaint
brought against him charging him with the violation of a statute
of the State which limits the hours of labor of women and children,
and requires a schedule of work and meal hours to be posted, with
penalties for departure therefrom.

122

BULLETIN OF THE BUREAU OF LABOR STATISTICS.

The specific charge upon which the conviction was based was the
employment of a woman at a time other than set forth in the sched
ule posted in her workroom in a cotton mill. The conviction was
affirmed by the supreme judicial court of the State, 210 Mass. 387,
97 N. E. 367 (Bui. No. 99, p. 715); and the case then went to the
United States Supreme Court on error, where the decision of the State
court was affirmed, Mr. Justice McKenna delivering the opinion,
which is in part as follows:
Section 48, it is urged, not only prohibits the employment of wo
men more than 10 hours a day, but that (quoting the section) “ the
employment of such person [woman] at a time other than as stated in
said printed notice, shall be deemed a violation of the provisions of
this section. ”
The provision is arbitrary and unreasonable, it is insisted, in that
it requires the employer to post a notice in a ronom in which women
and minors are permanently employed in laboring only six hours a
day, and makes it a crime if such person is allowed to work for five
minutes at a time other than as stated in the notice. But if we might
imagine that an employer would so enlarge the restrictions of the
statute, or be charged. with violating it if he did, we yet must remem
ber that, as it was competent for the State to restrict the hours of
employment, it is also competent for the State to provide administra
tive means against evasion of the restriction. [Cases cited.] Neither
the wisdom nor the legality of such means can be judged by extreme
instances of their operation. The provision of section 48 can not be
pronounced arbitrary. As said by the supreme judicial court, the
statute “ requires the hours of labor to be stipulated in advance, and
then to be followed until a change is ijiade. It does not by its terms
establish a schedule of hours. This is left to the free action of the
parties. Nor does it in the sections now under consideration restrict
the right to labor to any particular hours. It simply makes impera
tive strict observance of any one table of hours of labor while it
remains posted.
In other words, the purpose of the posting of the hours of labor is
to secure certainty in the observance of the law, and to prevent the
defeat or circumvention of its purpose by artful practices.

H ours of Service— R ailroads— Casualty or U navoidable
A ccident— United States v. Northern Pacific Railway Co., United States

Circuit Court of Appeals, Ninth Circuit (Aug. S, 1914), 215 Federal Re
porter, page 64.—The company named was prosecuted for alleged viola
tion of the hours of service act in keeping a conductor and two brakemen
on duty more than 16 hours without 8 consecutive hours off duty.
The crew which operated train No. 303 usually left Tacoma at 1.40
p. m., arriving at Portland at 6.45 p. m., making, with the 30 minutes
they were required to report before starting, 5 hours and 35 minutes.
Returning they left Portland at 7.25 a. m. and reached Tacoma at
12.35 p. m., being on duty 5 hours and 40 minutes. Between Tacoma

DECISIONS OF COURTS AFFECTING LABOR.

123

and Lake View is a single track over which 28 trains of three different
railroad companies are operated daily. On the date in question,
May 12, 1913, train No. 303 left Tacoma at 1.40 p. m., as usual, but
another train was derailed on the track in front of it about 10 minutes
later and 6 minutes before the two trains would have met. It was
a serious wreck with loss of life and much damage to the train and
track. The crew of train No. 303 were delayed until 6 p. m., when
they were transferred to train No. 314, which had come from Portland,
and took that train back into Portland, arriving at 12.30 p. m. on
the next day. After being off duty 6J hours at Portland they made
their regular run the next morning and in so doing were on duty a
total of about 17 hours without having had 8 consecutive hours
off duty. The court decided that these conditions constituted a
case of unavoidable accident, and that the company was not liable,
affirming a judgment of the district court to this effect.
H ours
of
Service— R ailroads— Constitutionality
of
Statute— I nterstate Commerce— Erie Railroad Co. v. People of

the State of New Yorlc, Supreme Court of the United States (May
25, 1914), 84 Supreme Court Reporter, page 756.— The State of New
York brought action against the railroad company named to recover
a penalty for violation of the labor law as amended by chapter 627
of the Laws of 1907. The latter act made it unlawful for any operator
of a railroad to require or permit any telephone or telegraph operator
who spaces trains under the block system to be on duty for more
than 8 hours in a day of 24 hours, except in cases of emergency.
The trial term of the New York Supreme Court found the company
guilty and liable to a fine of $100. The appellate division reversed
this judgment and their judgment was in turn reversed by the court
of appeals. The United States Supreme Court finally reversed this
last judgment, finding the statute unconstitutional because Con
gress, by enacting the Federal hours of service act applying to inter
state railroads, had removed the subject from the field of State control.
The complaint charged the company with requiring and permitting
one David Henion, a telegraph operator, to be on duty more than
8 hours on the first day of November, 1907. The Federal act did
not go into effect until March 4, 1908, so that the alleged offense
occurred between the enactment and the taking effect of that act.
Mr. Justice McKenna, in delivering the opinion of the United States
Supreme Court, spoke in part as follows:

The relative supremacy of the State and national power over
interstate commerce need not be commented upon, Where there
is conflict, the State legislation must give way. Indeed, when
Congress acts in such a way as to manifest its purpose to exercise its
constitutional authority, the regulating power of the State ceases to
exist. [Cases cited.]

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BULLETIN OF THE BUREAU OF LABOR STATISTICS.

This is the general principle. It was given application to an
instance like that in the case at bar in Northern P. R. Co. v. Wash
ington, 222 U. S. 370, 32 Sup. Ct. Rep. 160. [See Bui. No. 99, p. 718.]
The [State supreme] court held that the act of Congress did not apply
because of its provision that it should not take effect until one year
after its passage, and until such time it should be treated as not
existing.
We reversed the judgment on the ground that the view expressed
was not “ compatible with the paramount power of Congress over
interstate commerce,” and we considered it elementary that the
police power of the State could only exist from the silence of Congress
upon the subject, and ceased when Congress acted or manifested its
purpose to call into play its exclusive power.
The reasoning of the opinion and the decision oppose the conten
tion of defendant in error and of. the court of appeals, that the State
law and the Federal law can stand together, because, as expressed
by the court of appeals, “ the State has simply supplemented the
action of the Federal authorities,” and, on account of special con
ditions prevailing within its limits, has raised the limit of safety;
and the form of the Federal statute, although “ not expressly legal
izing employment up to that limit, fairly seems to have invited and
to have left the subject open for supplemental State legislation if
necessary.”
We realize the strength of these observations, but they put out of
view, we think, the ground of decision of the cases, and, indeed, the
necessary condition of the supremacy of the congressional power.
It is not that there may be division of the field of regulation, but an
exclusive occupation of it when Congress manifests a purpose to
enter it.
Regulation is not intended to be a mere wanton exercise of power.
It is a restriction upon the management of the railroads. It is
induced by the public interest or safety, and the “ hours of service”
law of March 4, 1907, is the judgment of Congress of the extent of
the restriction necessary. It admits of no supplement; it is the pre
scribed measure of what is necessary and sufficient for the public
safety, and of the cost and burden which the railroad must endure
to secure it.
H ours of Service— R ailroads— E mergencies— Construction
Statute— United States v. Southern Pacific Co., United States

Circuit Court of Appeals, Eighth Circuit (Nov. 13, 1913), 209 Federal
Reporter, page 562.—The United States brought action against the
railroad company named to recover penalties for alleged violation
of the hours of service act of 1907. The company maintains at
Ogden, Utah, a train dispatcher’s office operated continuously day
and night. There was employed there a chief dispatcher, who had
charge of the office and supervision of the six operators. These men
worked ordinarily in eight-hour “ tricks,” two working together. Op
erator Johnson was taken ill on August 27, 1912, and did not report
for duty until September 2. The company being unable to find a
properly qualified substitute, other operators were kept at work 12

DECISIONS OF COURTS AFFECTING LABOR.

125

hours per day, as follows: Hoover on August 27, 28, and 29; Sewall
on August 29, 30, and 31; Small on August 30 and 31 and September
1; and Miller on September 1, 2, and 3. The complaint demanded
a $500 penalty on each of the 12 counts arising from these facts.
The chief train dispatcher did not ordinarily have anything to do
personally with the operation, but could operate the telegraph. The
hours of service act allowed operators to exceed the eight-hour limit
in cases of emergency, for not more than three days in one week.
The district court rendered judgment for the defendant. On
appeal, the circuit court also held the sickness of the operator and
the impossibility of getting another to constitute an emergency
within the meaning of the law, overruling the contention that the
railroad company was obliged to keep extra operators under pay for
use in such cases.
H ours of Service—R ailroads—E mergencies—F ireman W atch
E ngine—Northern Pacific Railroad Go. v. United States,

ing

United States Circuit Court of Appeals, Ninth Circuit (May 4, 1914),
218 Federal Reporter, page 577.—The company named was charged with
violation of the hours of service act in two instances. In each the
train was held up by an unusually heavy storm and snowfall, and the
crew, with the exception of the fireman, relieved from duty in connec
tion with the movement of the train. The fireman in each case was
required to continue watching his engine. The court held that the
law was violated by this action, since, though the firemen were not
actually engaged in the movement of the train while thus employed
in watching and keeping up the fires, they were not enjoying the
period of rest that the law contemplated and was intended to secure
for all members of a train crew after the designated term of service.
The case was held not to come within the provisions of the act as to
emergencies, “ if for no other reason, because the uncontradicted
evidence, as well as the answer of the defendant company itself,
shows that each of the trains in question was stopped by direction of
the railroad company, sidetracked, and their respective crews laid
off for rest within 16 hours from the time they left Missoula, for the
very purpose of complying with the said statute, excepting only the
two named firemen.”
H ours of Service— R ailroads— E mployee on D uty —Oslome's
Administrator v. Cincinnati, New Orleans & Texas Pacific Railway
Co., Court of Appeals of Kentucky (Mar. 24, 1914), 164 Southwestern
Reporter, page 818.—F. H. Osborne was killed while employed
by the company named, as a brakeman, in interstate commerce, on
January 17, 1912. His administrator brought suit under the Federal

126

BULLETIN OF THE BUREAU OF LABOR STATISTICS.

employers' liability act, alleging violation of the hours of service act,
as well as negligence of the engineer and conductor of the train.
Judgment was for the defendant company on both points in the
circuit court of Pulaski County, and on appeal, the court of appeals
found no proof of negligence, either in the matter of overemployment
or otherwise, and affirmed the judgment of the court below.
An unusual point was raised in connection with the contention as
to the hours of service, Osborne having ridden on January 16 under
orders from a point some miles distant from his place of duty, on the
day of the fatal injury, as a “ deadhead." As to this, Judge Carroll,
who delivered the opinion of the court, said in part:
Without going into detail as to the time Osborne was engaged on
duty in the 24 hours preceding 6.15 a. m. on the morning of the 17th,
it is sufficient for the purposes of this case to say that, if the time
during which Osborne was “ deadheading" on the 16th between
Somerset and Oakdale is to be counted as hours of service, he had
been on duty 16 hours in the aggregate in a 24-hour period without
having had 8 consecutive hours off duty before he left Oakdale on
the morning of the 17th at 6.15 a. m. So that the question arising is:
Was Osborne engaged in service, within the meaning of the act,
while “ deadheading" during the five hours that it took the passenger
train on which he was riding to run from Somerset to Oakdale ?
He had been ordered by the train dispatcher to “ deadhead" from
Somerset to Oakdale so that he might be in Oakdale on the morning
of the 17th in time to leave with his train at 6.15 a. m., and it is shown
that he received compensation for the time it took the train on which
he was “ deadheading " to run from Somerset to Oakdale. The record
further shows that, when a railroad employee is “ deadheading," as
Osborne was in going from Somerset to Oakdale on the 16th, he does
not have any duties whatever to perform in connection with the
movement of the train on which he is “ deadheading"; that he really
occupies the attitude of a passenger free from any care or responsi
bility relating to the operation or management of the train.
Although we have made a very thorough examination of the cases
involving the construction of tms act, we have not found one pre
senting or deciding the question whether an employee who is “ dead
heading" is engaged in service connected with the movement of any
train within the meaning of the act.
The Interstate Commission, however, has promulgated rule No. 74,
providing that “ employees 'deadheading* on passenger trains or on
freight trains and not required to perform, and not held responsible
for the performance of, any service or duty in connection with the
movement of the train upon which they are ‘ deadheading/ are not
while so ‘ deadheading’ ‘ on duty’ as that phrase is used in the act regu
lating the hours of labor." This construction, although it does not
have the binding force of a court decision, is yet entitled to great
weight on account of the important duties this high commission
exercises in administering these remedial Federal statutes, and we
concur in its soundness when applied to the facts of this case. Oppos
ing this interpretation, the argument is made for the plaintiff that

DECISIONS OF COURTS AFFECTING LABOR.

127

this act should be so construed as to secure for employees relief from
cares or responsibilities or orders or authority of any kind connected
with their employment during the hours of rest specified in the act.
But the act is not fairly susceptible of this construction. In care
fully chosen words it describes an employee a8 a person who is
“ actually engaged in or connected with the movement of any train,” and
the hours of service feature of the act only applies to such a described
person. The plain reading of the act forbids its application to an
employee who is not actually engaged in or connected with the move
ment of any train, and the railroad company does not violate the
act, nor does the employee come within its protecting provisions,
unless it be shown that he was actually engaged in or connected with
the movement of the train in the manner we have described for a
longer period than the act allows without having the rest allowed by
the act. This being our construction of the act, Osborne, at the
time of his death, had not been engaged in service for a longer period
than 16 consecutive hours, nor had he been on duty 16 hours m the
aggregate in 24 without having had at least 8 consecutive hours off
duty before he again went on duty, as, when there is added to the
5 hours’ rest he had at Oakdale between 12.45 and 5.45, the time he
was “ deadheading,” he was off duty considerably more than 8 hours.
H ours of Service— R ailroads— Movement of T rains— Great
Northern Railway Co. v. United States, United States Circuit Court of
Appeals, Ninth Circuit (Feb. 24,1914), 211 Federal Reporter, page 809.—
This action was brought by the Government against the railway com
pany named for violation of the hours of service act. One Ed. Bergen,
a fireman, after having been employed for 16 hours, was kept at work
for 8 additional hours as an engine watchman while the train and
locomotive were tied up at a siding. The lower court had rendered
judgment for the United States, and on the defendant’s appeal this
judgment was affirmed. Judge Morrow, speaking for the court,
said:

We can not believe that it was the intention of Congress that the
word “ movement” should be restricted to the actual revolution of
the wheels of a train or locomotive engaged in interstate commerce,
for, if that interpretation were the correct one, obviously the very
object of the act, the promotion of the safety of employees and
travelers upon railroads, would be frustrated. The sidings of a rail
road are a part of its system and are indispensable to the proper
operation and movement of its trains. Tying up on a siding for any
purpose, whether to await orders, or for the passing of other trains,
or for any other purpose connected with the transportation of freight
or passengers, is as much a part of the general movement of a train
as the actual running thereof on the main line and at scheduled
periods. The fact that during the 24-hour period he was employed
for 16 hours as fireman and for 8 hours as engine watchman does not
lessen the offense*

128

BULLETIN OF THE BUREAU OF LABOR STATISTICS.

H ours of Service— R ailroads— Offices Operated N ight and
D ay— United States v. Atlantic Coast Line Railroad Co., United States

Circuit Court of Appeals, Fourth Circuit (Feb. 8, 1914), 211 Federal
Reporter, page 897.—In this case the trial court had rendered a judg
ment for the defendant, who was charged with violation of the hours
of service act in employing certain telephone and telegraph operators
for about 11 hours daily. This decision was reversed on appeal. The
question of construction hinged on the interpretation of the clauses
“ continuously operated day and night” and “ operated only during
the daytime.” If the office, which was regularly kept open from 6.30
a. m. to 10.15 p. m., should be adjudged to belong to the former class,
the operators could be legally employed only 9 hours, and the law had
been violated; if to the latter, they might be employed up to 13 hours.
The court decided that since this office must be classified under one
or the other of the two designations, it must be the former. Judge
Knapp, who delivered the opinion of the court, discussed this matter
fully, concluding his remarks as follows:
If this conclusion gives greater effect to the words “ operated only
during the daytime” than to the words “ continuously operated night
and day,” we think the objects of the law require that preference be
accorded to a construction which recognizes the legislative intent to
ermit 13 hours of service in offices kept open only such number of
ours in the aggregate as do not materially or substantially exceed
the length of an ordinary day, and to prohibit more than 9 hours’ serv
ice in offices kept open such number of hours in the aggregate as nec
essarily include a material or substantial portion of the night.

H ours of Service— R ailroads— Offices Operated Night and

Day— United States v. Missouri, Kansas & Texas Railway Co., United

States District Court, District of Kansas (Jan. 13, 1913), 208 Federal
Reporter, page 957.—This was an action by the Government to recover
a penalty for violation of the hours of service act (U. S. Comp. Stat.
Supp. 1911, p. 1321). This provides that operators, train dispatchers,
etc., in offices and stations operated continuously night and day shall
not be permitted to remain on duty more than 9 hours out of 24, while
in those operated only during the daytime a longer period is allowed.
A statement of facts was agreed upon, and the case referred directly
to the court without trial by jury. The alleged offense consisted in
employing one operator daily from 8 a. m. to 12 noon and from 1 p. m.
to 7 p. m., and another operator from 7 p. m. to 12 midnight, and
from 1 a. m. to 6 a. m., in the office at Coffeyville, Kans. Since
neither operator was employed continuously, and the office was closed
entirely between 6 a. m. and 8 a.m., the company contended that the
9-hour limit of service did not apply to this situation. The court
decided against this contention and found the company guilty of vio

DECISIONS OF COURTS AFFECTING LABOR.

129

lation of the law, Judge Pollock, who spoke for the court, saying that
from the facts as stipulated he was of the opinion, on both authority
and the very reason of the matter, that defendant had violated the
act as charged.
Hours o f Service— Railroads— Switch Tenders— Missouri
Pacific Railway Co.v. United States, United States Circuit Court of Ap
peals, Eighth Circuit (Feb. 16,1914), 211 Federal Reporter, page 893.—
The district court, on the trial of the railway company for alleged vio
lation of the hours of service act, had rendered a judgment in favor of
the United States. On appeal, this was reversed. The question was
as to whether R. Connell and J. W. King, switch tenders in Kansas
City, were included among the “ operators, train dispatchers/’ etc.,
who the act provides shall not be employed more than 9 hours
during any 24, or whether they might be employed up to 16 hours.
Judge Carland, in delivering the opinion of the court, said:

When all is said about the duties of these men, it comes to this:
Their primary duty was to throw these switches whenever necessary,
and the telephones were used to inform them from time to time what
was wanted in regard to the switching and in reporting to those who
intended to use the switches, the preparation that had been made
for such use. It did not differ except in complexity of operation
from the service performed by a brakeman who runs ahead of his
train, turns a switch, and swings his hand by day, or lantern by
night to signal the engineer. If one is within the proviso of section
2, so is the other, unless it be held that the mere use of the telephone
brings one switchman within the 9-hour provision and leaves another
who does not use it under the 16-hour clause, although the service
performed is the same. But we apprehend that there will be no
contention that Congress fixed the period of 9 hours for certain
employees because ot the use of the telephone. The difference in
the hours of labor fixed by section 2 was based upon the character
of the service rendered by the employee, not upon the use of the
telephone. R. Connell and J. W. King, beyond question, were not
operators or dispatchers.

Hours o f Service — Railroads — Telegraph Operators —
Knowledge o f Superiors— United States v. Oregon-Washington

Railroad & Navigation Co., United States District Court, Eastern
District of Washington (April 23, 1914), 213 Federal Reporter, page
688.— The United States brought action against the railroad company
named for violation of the hours of service act in permitting one
Longabaugh, a telegraph operator at a station operated day and
night, to work more than the 9 hours limited by the act, on April
21, 1913, and the 9 succeeding days. The stipulated facts showed
85590°—Bull. 169—15------9

130

BULLETIN OF THE BUREAU OF LABOR STATISTICS.

that the employee was agent at Wallula, and after acting as agent
from 7 a. m. to 7 p. m. remained on duty as telegraph operator
until 12 midnight; also that before the employee performed any
excessive hours of service he was instructed by his superior officer
not to work in excess of 9 hours in any 24-hour period. The sole
question for decision was whether these instructions constituted a
defense on the part of the company. This question was decided in
the negative, Judge Rudkin, who delivered the opinion, saying:
It is now well settled that the safety appliance act and kindred
statutes impose positive and absolute duties on carriers, the nonerformance of which is not excused by the exercise of reasonable
iligence or due care on their part, and the hours of service act admits
of no other rational construction.
It is urged that the words “ require or permit” imply consent or
knowledge on the part of the employer, and this is perhaps their
common significance; but the word “ permit” also means a failure
to prohibit by one who has the power and authority to do so, and in
my opinion the term is here used in the latter sense.
I am of opinion that the knowledge of the agent, Longabaugh,
was the knowledge of the company, and that the instructions given
by his superior officer not to work excessive hours, or want of knowl
edge on the part of his superior officers that he did in fact work
excessive hours, is no defense.

Hours

Service— Railroads—U navoidable A ccident— Con
Statute— United States v. Atchison, Topeka cfc Santa.

struction of

Fe Railway Co., United States District Court, District of Arizona (Apr.
10,1914), 212 Federal Reporter, page 1000.— The United States brought
action against the railway company named for violation of the hours
of service act. Two distinct violations were alleged. In the first
case the delay which made the overtime employment necessary was
brought about by the derailment of a freight train ahead of the passen
ger train concerned. The statute provides that the act shall not
apply “ where the delay was the result of a cause not known to the
carrier or its officer or agent in charge of such employee at the time
said employee left a terminal and which could not have been fore
seen.”

After a full discussion of the point the court decided that the word
“ terminal” in this case would be construed to mean the point where
the crew began its run, and not the intermediate station where the
train might have been tied up and the crew eventually replaced by
another. Judgment was given for the defendant, therefore, on the
counts involving this alleged violation.
In the second instance the train hauled, by means of a chain, a
freight car with a broken drawhead, which car did not contain live
stock or perishable freight. This in itself was unlawful, and it ap
peared that it contributed to the delay. On this part of the complaint

DECISIONS OF COURTS AFFECTING LABOR.

131

the company was adjudged guilty. Judge Sawtelle, who delivered
the opinion of the court, spoke as follows:
The proviso in the statute allows the carrier credit for all lawful
delays caused to a train crew on its run by casualty, unavoidable acci
dent, or act of God, or by any cause not known to, or which could
not have been foreseen, by the officers or agents of the carrier at the
time the crew started from its terminal on its run, but allows no credit
for delays not covered by the proviso; and, consequently, if the train
is delayed by casualty, accident, or act of God, or other lawful cause,
for one hour at one place and another hour at another place, and then
is delayed another hour at another place by a cause which was known
to or could have been foreseen by the officers and agents of the carrier
at the time the crew left the terminal or started on its run, and the
regular schedule time of the train was 16 hours, and in consequence
of the delays mentioned, the time taken for the run is 19 hours, the
carrier is liable, because it was entitled to have spent 18 hours only on
the run, and not 19 hours. It being thus unlawful to haul this car
with chains, and the evidence without dispute showing that delays
to the train between Cliffs and Winslow were caused by this car, it
follows that such delays were not the result of casualty or unavoid
able accident, and not within the proviso.
H ours of Service— R ailroads— U navoidable A ccident— Con
Statute— United States v. Chicago, Milwaukee cfe St.

struction of

Paul Railway Co., United States District Court, Western District of Wis
consin (Apr.16,1914),212 FederalReporter, page 574-—Suit was brought
against the railroad company named for violation of the Federal hours
of service act by keeping four employees on duty for 18J hours
on July 18, 1912. A plea to guilty of technical violation of the law
was filed. The delay in reaching the destination and relieving the
men from duty was caused by the use of warm and impure water from
a creek, this being made necessary by heavy switching on a temporary
logging road. The injectors of the engine were in good condition, but
failed to work properly with the water thus supplied, so that finally the
engine had to run alone to the end of the line and secure water and go
back and haul the train to the terminus. These circumstances, the
court decided, constituted a case of unavoidable accident, so that the
company would not be compelled to pay a penalty, but only the costs
of the proceedings.
H ours of Service— R ailroads— U navoidable Casualty— Con
Statute— United States v. New York, Ontario <&

struction of

Western Railway Co., United States District Court, Northern District
of New York (Sept. 11, 1914), 216 Federal Reporter, page 702.—The
railroad company named, operating a railroad with termini in New
Jersey and New York, employs at its division headquarters in Nor
wich, N. Y., train dispatchers and also so-called “ copy operators,”

132

BULLETIN OF THE BUREAU OF LABOR STATISTICS.

who act as assistants to the dispatchers in a clerical capacity, two ol
whom, however, are competent to act as dispatchers in emergencies.
Violations of the Federal hours of service act were charged against
this company, occurring on November 14, 1912, and July 22, 1913.
On the former date the mother of a dispatcher, who was a member of
his household, died suddenly, and a copy operator, who had had 8
hours’ rest since performing his regular duties, was called upon
to serve as dispatcher after the previous dispatcher had worked his
regular “ trick” of 8 hours and 1 hour additional; the substitute
worked as dispatcher from midnight until 7 a. m. On the latter
date the dispatcher was taken severely ill, and the same copy operator
served during the same hours.
The judgment was in favor of the defendant, the court holding
that the company was exempted from responsibility for the over
time work of the employee by the terms of the act. The grounds
upon which this decision are based are shown by the following
extracts from the opinion as delivered by Judge Ray:
After providing for the time beyond which in any 24 hours the
operator can not be employed without incurring the prescribed
penalty, the act provides as follows:
“ Provided that the provisions of this act shall not apply in case
of casualty, or unavoidable accident, or the act of God.”
As to the transaction of July 22, 1913, the sudden and unexpected
sickness of Brookins absolutely disabled him. It was not an accident,
within the commonly accepted definition of the word. Was it a
casualty ? Brookins was a part of the railroad itself, in that he was
one of its employees engaged in the running and operation of its
trains. Without Brookins and others like him the road could not
operate, and hence, when he broke down suddenly and unexpectedly,
the railroad itself, through its operating forces, was acted upon.
If Brookins, on his way to take the trick, had been run over by an
automobile and killed or seriously injured, without fault on his part,
so as to disable him, there would have occurred, not only an acci
dent (unavoidable so far as he and the defendant railroad were
concerned) but a casualty. In my judgment in such a case the
provisions of the act would not apply.
After showing that the death of the dispatcher’s mother in the even
ing a short time before the time for him to commence duty was
“ either a casualty, an unavoidable accident, or the act of God,”
the opinion continues:
If, then, a casualty, or an unavoidable accident, or an act of God,
occur and intervene, making it necessary to work an employee over
time, assuming the railroad company has done its duty in having in its
employ a reasonable number of employees to take care of ordinary
conditions, including mishaps and occurrences reasonably to be appre
hended and liable to occur, and the employee is worked overtime,
the act does not apply.

DECISIONS OT (XHfKTS -AFFECTING LABOK.

The other contention of the defendant, that the law did not in
any case apply to the employee Towner, a “ copy operator," since in
the previous employment during the 24 hours he had not been an
operator or train dispatcher, was held to be untenable, Judge Ray
saying in part:
I think Towner was within the reason and the spirit of the act. He
could not within a given 24-hour period work 8 or 9 hours as copy
operator, and later and within the same 24-hour period work 8 or 9
hours more as train dispatcher. The very object or purpose of the
law would forbid this.
For the reasons previously given, however, the railroad was held
within the proviso of the act, and not guilty of the offense alleged.
H ours of Service— R ailroads— W aiting T ime— United States v.
Northern Pacific Railroad CoUnited States District Court, Eastern
District of Washington (Apr. 21 , 1914), 213 Federal Reporter, page
■539.—In this case employees were engaged in running a train during
a period covering altogether 17\ hours in one day, but during that
time, for 1J hours while the train was waiting for other trains to pass,
their train was placed in the hands of a switching crew and the regular
crew relieved from duty. The court held that there was nevertheless
a violation of the law, saying that if the necessarily brief period which
trainmen have for rest and recreation can be broken into small frag
ments, they will be wholly deprived of any substantial period for
either sleep or rest. The decision in M., K. & T. Ry. Co. v. U. S.,
34 Sup. Ct. 26 (see Bui. No. 152, p. 128), was considered as governing
this case.
I njunction— Contempt— L imitation of A ctions— Gompers et ad.
v. United States, Supreme Court of the United States (May 11, 1914),
34 Supreme Court Reporter, page 693.— The proceedings against
Samuel Gompers, John Mitchell, and Frank Morrison for contempt in
violating the injunction issued against them and others for continuing
a boycott against the Buck Stove & Range Co. were noted in Bulletin
No. 152, page 218, and in previous bulletins there mentioned. The
matter was brought from the Court of Appeals of the District of
Columbia on a writ of certiorari, the.principal defense of the petition
ers being that of the statute of limitations, Rev. Stat., sec. 1044, U. S.
Comp. Stat. 1901, p. 725. Their contention that this statute was
applicable and barred the carrying out of the penalty was sustained
by the court in its opinion delivered by Mr. Justice Holmes, from
which the following is quoted:

It may be assumed for the purpose of our decision that the evidence
not only warranted but required a finding that the defendants were

134

b u l l e t in

the

bureau

labo r

s t a t is t ic s .

guilty of some, at least, of the violations of this decree that were
charged against them, and so we come at once to consider the statute
of limitations, which is their only real defense.
The statute provides that “ no person shall be prosecuted, tried, or
punished for any offense not capital, except * * * unless the
indictment is found or the information is instituted within three years
next after such offense shall have been committed.”
The opinion then recited various speeches and writings of the
defendant Gompers, giving the dates of the same, extending up to
November, 1908.
Continuing, Mr. Justice Holmes said:
The charges against Mitchell and Morrison are mainly for having
taken part in some of the above-mentioned publications, but need
not be stated particularly, as all the acts of any substance in Mitchell’s
case and all in that of Morrison were more than three years old when
these proceedings began.
The boycott against the company was not called off until July 19 to
29, 1910, and it is argued that, even if the statute applies, the con
spiracy was continuing until that date (United States v. Kissel,
218 U. S. 601, 607, 31 Sup. Ct. Rep. 124), and therefore that the
statute did not begin to run until then. But this is not an indictment
for conspiracy, it is a charge of specific acts in disobedience of an
injunction.
It is urged in the first place that contempts can not be crimes,
because, although punishable by imprisonment, and therefore, if
crimes, infamous, they are not within the protection of the Constitu
tion. and the amendments giving a right of trial by jury, etc., to
persons charged with such crimes. It does not follow that contempts
of the class under consideration are not crimes, or rather, in the
language of the statute, offenses, because trial by jury as it has been
gradually worked out and fought out has been thought not to extend
to them as a matter of constitutional right. These contempts are
infractions of the law, visited with punishment as such. If such acts
are not criminal, we are in error as to the most fundamental charac
teristic of crimes as that word has been understood in English speech.
So truly are they crimes that it seems to be proved that in the early
law they were punished only by the usual criminal procedure, 3
Transactions of the Royal Historical Society, N. S. p. 147 (1885), and
that, at least in England, it seems that they still may be and prefer
ably are tried in that way. [English statute and English and Ameri
can cases cited.]
No reason has been suggested to us for not giving to the statute its
natural scope. The English courts seem to think it wise, even when
there is seeming reason for the exercise of a summary power, to leave
the punishment of this class of contempts to the regular and formal
criminal process. Re Macleod, 6 Jur. 461. Maintenance of their
authority does not often make it really necessary for courts to exert
their own power to punish, as is shown by the English practice in
more violent days than these, and there is no more reason for pro
longing the period of liability when they see fit to do so than in the
case where the same offense is proceeded against in the common way.
Indeed, the punishment of these offenses peculiarly needs to be

DECISIONS OF COURTS AFFECTING LABOR.

135

speedy if it is to occur. The argument loses little of its force if it
should be determined hereafter, a matter on which we express no
opinion, that in the present state of the law an indictment would not
lie for a contempt of a court of the United States.
Even if the statute does not cover the case by its express words,
as we think it does, still, in dealing with the punishment of crime
a rule should be laid down, if not by Congress, by this court. The
power to punish for contempt must have some limit in time, and in
defining that limit we should have regard to what has been the policy
of the law from the foundation of the Government. By analogy, if
not by enactment, the limit is three years.

Injunction— Contempt— R e v i e w on Habeas Corpus Proceed
ings— Ex parte Heffron et a l S t . Louis Court of Appeals (Dec. 81,
1913), 162 Southwestern Reporter, page 652.— William H. Heffron,
George Ringler, and Oscar Close had been imprisoned for failure to
pay a fine levied against them in contempt proceedings in the circuit
court of the city of St. Louis. The present case was an original
proceeding instituted in the St. Louis court of appeals through a
suing out by the parties named of a writ of habeas corpus, the claim
being set up that they were improperly restrained of their liberty.
The result of the hearing was that the writ was granted and the men
released. The petitioners were members of a waiters’ union, and
with others had been enjoined, among other things, from either
singly or in numbers stationing themselves or congregating upon the
sidewalk adjoining and in front of plaintiff’s p'ace of business, for the
purpose of distributing cards or circulars containing statements
concerning plaintiff or its business or of addressing remarks concern
ing plaintiff or its business to persons passing along the sidewalk;
from either singly or in numbers patrolling the sidewalks adjoining
such place of business, and from preventing or attempting to prevent
by the use of force, violence, threats, menaces, or intimidation any
person from patronizing the plaintiff’s place of business or any of its
employees from performing their duties. The petitioner Close was
charged with having committed an assault on one Primm within a
short time after he had left the plaintiff’s establishment, while the
other parties were charged with violations of the picketing provisions
without violence or intimidation so far as appeared on the record.

Judge Nortoni, who delivered the opinion of the court, stated first
that there could be no doubt that a court of equity would restrain
persons confederated through a conspiracy to entail substantial
injury upon the business of another, as by persuasion of his patrons
against their will or interfering with his business through violence or
threats, and stated that in the present instance “ The judgment of
conviction and the commitment issued thereon are wholly insuffi

136

BULLETIN OF THE BUREAU OF LABOR STATISTICS.

cient to justify the punishment as for contempt o the three peti
tioners for the reasons: First, that the court was without power to
make the broad and sweeping order for a violation of which peti
tioners Heffron and Ringler are convicted; and, second, because it
does not appear from the finding of facts that petitioner Close vio
lated the terms of the order on which he was convicted.” Cases
were cited to support the proposition that one imprisoned as for con
tempt for violating an order which the court was without authority
to make may be released on habeas corpus, of which proposition the
court said, “ There can be no doubt.”
Of the injunction itself Judge Nortoni said in part:
Obviously so much of this injunction as merely restrains defendants
singly or in numbers from stationing themselves or congregating upon
the sidewalk adjoining and in front of plaintiff’s business for the
purpose of distributing cards or circulars concerning plaintiff or its
business or of addressing remarks concerning plaintiff or its business
to persons along the sidewalk avails nothing.
While it was competent for the court to enjoin the defendants from
congregating and stationing themselves upon the sidewalk in front
of the premises of the catering company so as to interfere with the free
ingress and egress from its place of business, no such inhibition is to
be found in the order, but instead, it proceeds in broad and sweeping
language as though any congregation or standing upon the sidewalk
by them was unlawful. In this the injunction exceeded the power of
the court in that behalf, unless such conduct is to be prohibited on
other grounds.
So much of the injunction as purports to enjoin the petitioners
“ either singly or in numbers” from patrolling the sidewalk adjoining
plaintiff’s business avails nothing, for it does not appear what the
court intended thereby. This is vague and indefinite. The word
“ patrolling” involves the idea of one walking to and fro as a guard,
but in and of itself implies nothing unlawful. It was certainly com
petent for the court to enjoin patrolling against patrons or prospective
patrons of plaintiff’s business from entering there or for the purpose
of interfering with its employees. It was competent, too, for the
court to enjoin such patrolling as might interfere with the free use of
the sidewalk to afford ingress and egress to plaintiff’s premises, or such
as would be accompanied with threats, intimidation, violence, or con
duct that should annoy and deter plaintiff’s patrons or employees,
but nothing of this kind is enjoined. So much of the injunction as
inhibits the defendants from preventing or attempting by the use of
force, violence, threats, menaces, or intimidation to prevent any
person from patronizing plaintiff’s place of business is certainly valid
and within the power of the court. So, too, is that portion of the
order which forbids petitioners from compelling or attempting to
compel by threats, intimidation, or acts of force or violence any of the
employees of plaintiff to fail to perform their duties as such employees.
The court then reviewed the evidence on which Heffron and Ringler
were convicted, and concluded:
So it appears that, though these petitioners were found to have
been engaged in patrolling and picketing, these words in and of them

1>K01 SIGNS OF COURTS AFFECTING LABOR.

137

selves imply nothing unlawful, and there is no finding that in pursuing
the patrolling and picketing they interfered with the free access as by
ingress and egress to the premises of the catering company or threat
ened, intimidated, or coerced either plaintiff, any of its officers,
employees, patrons, or in any wise conducted themselves in a manner
obnoxious to the law.
As to the assault on Primm by petitioner Close it was said:
The injunction forbids the petitioners from exercising violence or
assaulting any person patronizing plaintiff's said place of business or
any of plaintiffs employees. If rrimm, whom the court finds was
assaulted by the petitioner Close, was either a patron of the catering
company or one of its employees, the facts should have been so found
by the court and stated in the judgment convicting him, for no
intendments or implications may be invoked in aid of it. It may be
that Close committed an unprovoked assault upon Primm on the
sidewalk near plaintiff's place of business, for which Close would be
answerable under the criminal laws of the State or under the ordi
nance of the city, but this alone is not sufficient to render him subject
to imprisonment as for contempt for violating the order of the court,
which restrains such conduct only when directed against a patron or
an employee of the catering company. The mere fact that Primm
had recently come out of the catering company's place of business is
not sufficient under the strict rule which obtains to sustain the con
viction for contempt because of an assault*upo.i him, for we can not
infer, and it is not implied, that Primm was either a patron or an
employee of the catering company.
It is clear that both the judgment of contempt and the commitment
thereon are insufficient to justify the conviction and imprisonment of
the petitioners, and they should therefore be discharged.

L abor
edge of

Organizations— B oycotts— A ntitrust L aw — K nowl
M embers of Organization— Lawlor et al. v. Loewe et al.,

United States Circuit Court of Appeals, Second Circuit (Dec. 18,1913), 209
Federal Reporter, page 721.— This case was before the circuit court of
appeals on a writ of error to the District Court of the United States for
the District of Connecticut, to review a judgment entered November 15,
1912, in favorof the plaintiffs for the sum of $252,130, being the amount
of a trebled verdict for damages, with interest, costs, and counsel fees.
The case is known as the Danbury Hatters' Case, and has been before
the courts for nearly a decade. Loewe & Co. were makers of hats in
Danbury, Conn., and their products were boycotted by the hatters’
union because of a refusal of the employers to unionize their shops.
Action for damages was brought i nder the Sherman Antitrust Act,
and the Supreme Court held the act applicable to the case (Bui. No.
75, p. 622). The question under consideration in the present in
stance was as to the liability of the individual members for the
damages found to have been suffered by the company, the circuit

138

BULLETIN OF THE BUREAU OF LABOR STATISTICS.

court of appeals affirming the finding of the court below to this
effect. On further appeal, this was affirmed by the Supreme Court
(p. 140, post). The facts are set forth with sufficient fullness in the
portion of the opinion of the court quoted below, which was delivered
by Judge Coxe.
When this cause came on for the second trial all of the fundamental
questions of law had been disposed of. That the antitrust act is ap
plicable to such combinations as are alleged in the complaint is no
longer debatable. It makes no distinction between classes, employ
ers and employees, corporations and individuals, rich and poor, are
alike included in its terms. The Supreme Court [208 U. S. 274, 28
Sup. Ct. 301, Bui. No. 75, p. 622], particularly points out that al
though Congress was frequently importuned to exempt farmers'
organizations and labor unions from its provisions, these efforts all
faued and the act still remains, after nearly a quarter of a century of
trial, unmarred by amendment, in the language originally adopted.
In short, the court held that if the plaintiffs proved the conspiracy
or combination as alleged in the complaint, they were within the anti
trust act and entitled to the damages sustained by them.
The plaintiffs proved, either without contradiction or by testimony
which the jury was justified in accepting as true, the following propo
sitions:

First. That they were engaged in making hats at Danbury, Conn.,
and had a large interstate business, employing union and nonunion
labor.
Second. That the individual defendants are members of a tradeunion known as the United Hatters of North America, which was
organized in 1896 and, with a few exceptions unnecessary to con
sider, paid dues to the local unions at Danbury, Bethel or Norwalk,
Conn. These dues, after deducting a certain percentage for the ex
penses of the local unions, were sent to the treasurer of the United
Hatters.
Third. That the United Hatters were affiliated with the American
Federation of Labor, one of the objects of the latter organization be
ing to assist its members in any “ justifiable boycott” and with finan
cial help in the event of a strike or lockout.
Fourth. That the United Hatters, through their connection with
the Federation of Labor and affiliated associations, exercised a vast
influence throughout the country and, by the use of the boycott and
secondary boycott, had it in their power to cripple, if not destroy,
any manufacturer who refused to discharge a competent servant be
cause he was not a member of the union.
Fifth. That in March, 1901, the United Hatters had resolved to
unionize the plaintiff's factory and informed Mr. Loewe to that
effect, their president stating that they hoped to accomplish this in a
peaceful manner, but if not, they would resort to their “ usual meth
ods.”
Sixth. That on the morning of July 25, 1902, the plaintiffs' employ
ees were directed to strike and the union men left the factory on that
day, the nonunion men the day after.
Seventh. That this strike temporarily paralyzed the plaintiffs’
business, and they were not able to reorganize until January, 1903,
and then with a force many of whom were unskilled.

DECISIONS OF COURTS AFFECTING LABOR.

189

Eighth. That almost immediately after the strike a boycott was
established and agents of the hatters were sent out to induce the
plaintiffs’ customers not to buy any more hats of them. This boycott
was successful, and converted a profit of $27,000 made in 1901 into
losses ranging from $17,000 in 1902 to $8,000 in 1904, destroying or
curtailing a large part of the plaintiffs’ business carried on between
Danbury, Conn., and several other States.
It appears, then, that a combination or conspiracy in restraint of
interstate trade was entered into to the great damage of the plaintiffs
and that all of the defendants who participated therein or aided and
abetted the active workers in the conspiracy or contributed to its
support are liable if they knew of its existence.
The principal question of fact, therefore, is, did the defendants
know ot the conspiracy or is the evidence of such a character that the
jury were justified in finding that they must have known of its
existence ? And here it is important to remember that the law does
not require the proof of conspiracy by direct and positive proof.
This is true even in criminal cases and the reason therefor is plain.
Conspirators do not put their agreements in writing; they do not
disclose their identity or publish their plans. They work in the dark,
they* may never be seen together, their acts may have no apparent
relation to each other, but if it appears that they are all working to
accomplish an unlawful purpose which is for their common benefit
and in the gains of which all are to share, a jury is justified in finding
the existence of a conspiracy.
It is not necessary that there be a formal agreement between the
conspirators. If the evidence satisfies the jury that they acted in
concert, understanding^ and with the design to consummate an
unlawful purpose, it is sufficient. It is not necessary that each
conspirator shall know of all of the means employed to carry out
the purposes of the conspiracy.
As to the defendants who were in the employ of the plaintiffs at the
time of the strike and participated therein, we understand that it is
not pretended that they were ignorant of the general purpose of the
United Hatters. As to the remainder, estimated by the defendants’
counsel to be about 90 per cent, it is contended that they knew nothing
of the purpose of the strike except that it was “ to establish union
conditions in that particular (Loewe’s) factory.”
The defendants reside in Bethel, Norwalk or Danbury, all in the
same general locality and so near that it is highly improbable that
an event of vital importance to one union would not be known to the
other two. But in order to show that the dispute between Loewe
and the union excited general interest in the community, newspaper
articles published in these towns were introduced in evidence, not as
proof of the circumstances therein narrated but to show the improba
bility of the defendants being ignorant of matters which were con
stantly being made public and were of vital significance to them,
relating as they did, to a controversy which might impair or destroy
their own means of livelihood. As to 115 of these defendants it
was stipulated that if called as witnesses they would testify “ that
they read with more or less regularity some local newspapers in their
respective towns, but not completely or invariably.” As to the
Journal of the United Hatters, it was stipulated that the secretaries

140

BU I. L FITIN OF TH E

Bl JKEAU OF LABOR STATISTICS.

of the local unions in question received copies which were distributed
in the various factories without charge, so that the workmen there
could read them if they desired to do so. The plaintiffs introduced
the minutes of the meetings of the local unions of which the defend
ants were members; also extracts from the Federationist, a monthly
journal of the Federation of Labor and a notice, warning all members
of labor unions that they would be held responsible for unlawful acts
of such unions, their officers and agents. A copy of this notice was
sent to all hatters whose names appeared in the Danbury Directory.
It can not be denied that all this evidence was competent as to those
who actually received it or had knowledge of it and we think it was
for the jury to say whether it was sufficient to put the alleged con
spirators upon notice of the illegal measures by which it was proposed
to enforce the demands of the defendants.
Without attempting to review the testimony in detail, it suffices to
say that the jury were fully justified in finding that the measures
adopted by the defendants prevented the free flow of commerce
between the States. The great bulk of the plaintiffs’ business was in
States other than Connecticut, to which States the product of their
factory was shipped and the proof shows that they suffered great
pecuniary loss, equal at least to the amount found by the jury,
because of their inability to sell to their interstate customers.
After discussing the question of the admission of certain testimony,
the court decided that while only acts taking place before the com
mencement of the suit were or could be considered, damages subse
quently resulting from such acts had been properly shown in testimony
and considered by the jury in arriving at the total damages. The
opinion concludes as follows:
No one can examine this voluminous record without being impressed
with the fact that the trial was conducted with perfect impartiality
and with a determination on the part of the judge that both parties
should have an absolutely fair trial. We are convinced that the
defendants have had such a trial and that no error was committed
which would justify us in imposing upon the parties the expense and
delay of a third trial.
The judgment is affirmed with costs.

L abor Organizations— B oycotts— A ntitrust Law— L iability
Members for D amages—Lawlor v. Loewe, Supreme Court of the

United States (Jan. 5, 1915), 85 Supreme Court Reporter, page 170.—
This case was before the Supreme Court on a writ of error to the
United States Circuit Court of Appeals; see Lawlor v. Loewe, above.
For other proceedings growing out of this controversy see 139 Fed.
71 (Bui. No. 61, p. 1067); 148 Fed. 924 (Bui. No. 70, p. 710); 208
U. S. 274, 28 Sup. Ct. 301 (Bui. No. 75, p. 622); 187 Fed. 522 (Bui.
No. 96, p. 780); see also 130 Fed. 633; 142 Fed. 216.
The facts briefly stated in the present opinion, which was delivered
by Mr. Justice Holmes and sustained the judgment of the court of

DECISIONS OF COURTS AFFECTING LABOR.

141

appeals, appear in greater fullness in the opinion of the court of
appeals, given above. The opinion in the present instance is brief,
and is reproduced practically in full:
This is an action under the act of July 2, 1890, ch. 647, sec. 7, 26
Stat. 209, 210, for a combination and conspiracy in restraint of
commerce among the States, specifically directed against the plain
tiffs, (defendants in error,) among others, and effectively carried
out with the infliction of great damage. The declaration was held
good on demurrer in 208 U. S. 274 [Bui. No. 75, p. 622], where it will
be found set forth at length. The case now has been tried, the
laintiffs have got a verdict, and the judgment of the district court
as been affirmed by the circuit court of appeals. 209 Fed. Rep. 721;
126 C. C. A. 445 [p. 137, ante].
The grounds for discussion under the statute that were not cut
away by the decision upon the demurrer have been narrowed still
further since the trial by the case of Eastern States Retail Lumber
Dealers’ Association v. United States, 234 U. S. 600 [p. 53, ante].
Whatever may be the law otherwise, that case establishes that,
irrespective of compulsion or even agreement to observe its intima
tion, the circulation of a list of “ unfair dealers,” manifestly intended
to put the ban upon those whose names appear therein, among an
important body of possible customers combined with a view to joint
action and in anticipation of such reports, is within the prohibitions
of the Sherman Act if it is intended to restrain and restrains commerce
among the States.
It requires more than the blindness of justice not to see that many
branches of the United Hatters and the Federation of Labor, to both
of which the defendants belonged, in pursuance of a plan emanating
from headquarters made use of such lists, and of the primary ana
secondary boycott in their effort to subdue the plaintiffs to their
demands. The union label was used and a strike of the plaintiffs’
employees was ordered and carried out to the same end, and the
purpose to break up the plaintiffs’ commerce affected the quality of
the acts. (Loewe v. Lawlor, 208 U. S. 274, 299 [28 Sup. Ct. 301,
Bui. No. 75, p. 622].) We agree with the circuit court of appeals
that a combination and conspiracy forbidden by the statute were
proved, and that the question is narrowed to the responsibility of
the defendants for what was done by the sanction and procurement
of the societies above named.
The court in substance instructed the jury that if these members
paid their dues and continued to delegate authority to their officers
unlawfully to interfere with the plaintiffs’ interstate commerce in
such circumstances that they knew or ought to have known, and
such officers were warranted in the belief that they were acting in
the matters within their delegated authority, then such members
were jointly liable, and no others. It seems to us that this instruc
tion sufficiently guarded the defendants’ rights, and that the defend
ants got all that they were entitled to ask in not being held chargeable
with knowledge as matter of law. It is a tax on credulity to ask
anyone to believe that members of labor unions at that time did not
know that the primary and secondary boycott and the use of the
“ We don’t patronize” or “ Unfair” list were means expected to be
employed in the effort to unionize shops Very possibly they were

142

BULLETIN OF THE BUREAU OF LABOR STATISTICS.

thought to be lawful. See Gompers v. United States, 233 U. S. 604
[34 Sup. Ct. 693, p. 133, ante]. By the constitution of the United Hat
ters the directors are to use “ all the means in their power" to bring
shops “ not under our jurisdiction" “ into the trade.
The by-laws
provide a separate fund to be kept for strikes, lockouts, and agitation
for the union label. Members are forbidden to sell nonunion hats.
The Federation of Labor with which the Hatters were affiliated had
organization of labor for one of its objects, helped affiliated unions
in trade disputes, and to that end, before the present trouble, had
provided in its constitution for prosecuting and had prosecuted
many what it called legal boycotts. Their conduct in this and
former cases was made public especially among the members in every
possible way. If the words of the documents on their face and with
out explanation did not authorize what was done, the evidence of
what was done publicly and habitually showed their meaning and
how they were interpreted. The jury could not but find that by
the usage of the unions the acts complained of were authorized, and
authorized without regard to their interference with commerce among
the States. We think it unnecessary to repeat the evidence of the
publicity of this particular struggle m the common newspapers and
union prints, evidence that made it almost inconceivable that the
defendants, all living in the neighborhood of the plaintiffs, did not
know what was done in the specific case. If they did not know that,
they were bound to know the constitution of their societies, and at
least well might be found to have known how the words of those
constitutions nad been construed in act.
It is suggested that injustice was done by the judge speaking of
“ proof" that in carrying out the object of the associations unlawful
means had been used with their approval. The judge cautioned
the jury with special care not to take their view of what had been
proved from him, going even farther than he need have gone.
(Graham v. United States, 231 U. S. 474, 480.) But the context
showed plainly that proof was used here in a popular way for evidence
and must have been understood in that sense.
Damages accruing since the action began were allowed, but
only such as were the consequence of acts done before and con
stituting part of the cause of action declared on. This was correct.
(New York, Lake Erie & Western R. R. Co. y. Estill, 147 U. S.
591, 615, 616.) We shall not discuss the objections to evidence
separately and in detail as we find no error requiring it. The in
troduction of newspapers, etc., was proper in large part to show
publicity in places and directions where the facts were likely to be
brought home to the defendants, and also to prove an intended and
detrimental consequence of the principal acts, not to speak of other
grounds. The reason given by customers for ceasing to deal with
sellers of the Loewe hats, including letters from dealers to Loewe
& Co., were admissible. 3 Wigmore, Evidence, sec. 1729 (2). We
need not repeat or add to what was said by the circuit court of
appeals with regard to evidence of the payment of dues after this
suit was begun. And in short neither the argument nor the perusal
of the voluminous brief for the plaintiffs in error shows that they
suffered any injustice or that there was any error requiring the judg
ment to be reversed. Judgment affirmed.

DECISIONS OF COURTS AFFECTING LABOR.

143

L abor Organizations— Conspiracy— T ransportation of E x
Passenger T rains in I nterstate Commerce— E vi

plosives in

dence—Ryan

et al. v. United States, United States Circuit Court of
Appeals, Seventh Circuit (June 3, 1914), 216 Federal Reporter, page
13.— Frank M. Ryan and 29 others were convicted, in the District
Court of the United States for the District of Indiana, of conspiracy
to commit a crime against the United States, and of transporting,
aiding and abetting the transportation of dynamite and nitroglycerin
in passenger trains and cars in commerce between the several States
of the United States, and brought a writ of error.

From 1905 until 1911 a strike was in force by the International
Association of Bridge & Structural Iron Workers against the Amer
ican Bridge Co. and all concerns affiliated with it. From 1906 on
explosives were used to blow up buildings and bridges under con
struction by the National Erectors’ Association and others where
the open-shop plan was followed. The number, distribution, and
destructiveness of these explosions, and the connection with them
of the labor unions mentioned, of which nearly all the plaintiffs in
error were officers or members, will be shown in quotations given from
the opinion of the circuit court of appeals, which was delivered by
Judge Seaman. After stating the substance of the various counts of
the indictment, which charge an unlawful transportation of explo
sives, prohibited by sections 37, 232, et seq., of the Criminal Code, he
said:
The charges are, not only necessary but in truth, limited to offenses
against the United States, which are alone within Federal cognizance,
and if the primary contentions on behalf of all the plaintiffs in error
are tenable, as stated by counsel at the outset of their argument for
reversal, it is plain that none of the convictions can be upheld.
Under our system of criminal jurisdiction the requirement is ele
mentary that Federal cognizance is strictly limited to violation of
the Federal criminal statutes; and offenses against the State, either
statutory or common-law, are within the exclusive jurisdiction of
the State courts respectively.
After further discussion of the indictment and the objections to
it on the part of the plaintiffs in error, Judge Seaman continued:
The authorities concur, as we understand their import, in these
definitions of the conspiracy denounced by section 5440, R. S. (as
preserved in section 37 of the Criminal Code), namely: That it is
distinguishable from the common-law offense of conspiracy, in that
it requires for completion and conviction that “ one or more of such
parties do any act to effect the object of the conspiracy” ; that,
when so carried forward by any overt act, it constitutes an offense
entirely irrespective, either of its success or of the ultimate objects
sought to be accomplished by conspiring “ to commit any offense
against the United States” ; that “ liability for conspiracy is not
taken away by its success, that is, by the accomplishment of the
substantive otfense at which the conspiracy aims” ; and that the

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BULLETIN OF THE BUREAU OF LABOR STATISTICS.

conspiracy so denounced may either intend and be accomplished by
one or several acts which complete the offense, or it may be made
by the parties a continuing conspiracy for a course of conduct in
violation of law to effect its purposes.
Considerable space is then given to a discussion of the nature of
the evidence and to the facts presented therein, involving numerous
cases of the destruction of property, life also being destroyed, under
circumstances showing a fixed plan and the purpose to achieve an
apparent end, the whole extending over a series of years, from 1906
to 1911. Following is a summary:
The premises of fact which are settled by the above recitals:—lay
ing out of view the far more serious course of crimes which appear in
evidence as committed pursuant to the primary conspiracy—may
be recapitulated as follows: Executive officers, members, and agents
of the International Association of Bridge and Structural Iron
Workers, were engaged in a joint undertaking—rightly charged as a
conspiracy—to use dynamite, nitroglycerin, and so-called “ infernal
machines,” in required quantities, at many places in various States,
either in succession or simultaneously as planned, through agents
not residing in such places. For such use these explosives were pro
vided and stored at various storage places, arranged for the purpose
in various States, to be carried by the agents for use as required, in
special carrying cases provided for the purpose, to distant places
with needful dispatch and secrecy, so tnat interstate carriage on
passenger cars as averred in the counts, was made necessary for use
thereof in other places and States as constantly ordered by the con
spirators; and all expenses for such explosives and for their storage
and carriage as described “ were paid out of the funds of the Inter
national Association,” and “ drawn upon checks signed by the sec
retary-treasurer, John J. McNamara, and by the president, Frank M.
Ryan” (plaintiff in error). In 25 instances proven such interstate
carriages were performed by an agent, as averred in the counts
respectively, for designated use of the explosives. Furthermore,
the twofold fact of conspiracy for use of the explosives, and that the
defendants McManigal, both McNamaras and Hockin were con
spirators therein is, in substance, conceded in the argument to be
established by the evidence; and it is undisputed that the evidence
proves the defendant Edwin Clark to be another member of such
conspiracy.
These basic facts directly bearing upon the issues are followed up
with connecting evidence of the following nature: Written corre
spondence on the part of many of the plaintiffs in error, both between
one and another thereof and with other defendants, inclusive of the
above-mentioned conspirators, together with letters from one and
another of such conceded conspirators to one of the plaintiffs in
error and to other defendants, properly identified, constitute one
volume of printed record; and these letters furnish manifold evidence,
not only of understanding between the correspondents of the pur
poses of the primary conspiracy, but many thereof convey informa
tion or directions for use of the explosives, while others advise of
destruction which has occurred, and each points unerringly not only
to the understanding that the agency therein was that of the con

DECISIONS OF COURTS AFFECTING LABOR.

145

spirators, but as well to the necessary step in its performance of trans
porting the explosives held for such use. This line of evidence clearly
tends to prove and may well be deemed convincing of the fact of
conspiracy on the part of many, if not all, of the correspondents; and
many, if not all, of the uses of explosives therein referred to are
established by other evidence to have occurred, together with direct
evidence of carriage of explosives for suph use, as cnarged.
The president of the association was the plaintiff in error Ryan,
and John J. McNamara was its secretary and treasurer, up to his
conviction and sentence (for crimes committed in California) in 1911,
thus covering the entire period embraced in the present charges.
Under its organization provision was made for monthly reports to
show all expenditures of association funds and publication thereof
in the official journal. On December 13, 1905, Ryan wrote to Mc
Namara, that it was best to discontinue such publication “ while this
trouble is on,” and in February ensuing the official magazine published
a notice by the1‘ executive board ’ ' of the association that publication of
such reports would cease “ during our strike” and until further instruc
tions. The last letter in evidence, written by John J. McNamara, April
13,1911—the day after his arrest and the concurrent arrest of McManial—may well be mentioned in this connection both for its general
earing and for its statements that “ some organization matters must
be surrounded with the utmost secrecy,” and that, “ even after some
thing has been accomplished, experience has proven the least said
about it the better” ; also a circular, entitled “ Important Warning,”
dated June 16, 1911, signed jointly by plaintiff m error Ryan and
by Hockin (who was one of the original plaintiffs in error and the
undisputed director of the explosions), and sent to the officers and
members of the association, in effect cautioning all members to keep
silent on all actions of the officers thereof of which they may have
information, in the view that “ traitors will be more active than ever
at this particular time.” The executive board of the association
constituted the fnanaging directors of its policy and affairs, and one
of their duties was examination and audit of all expenditures for
payment out of its funds. President Ryan and several other plain
tiffs in error constituted this board ana held frequent meetings at
the headquarters in Indianapolis (aside from their respective visits to
“ fields of operation” ), throughout the period during which explosives
were purchased, stored, and transported as proven, in performance
of their various duties and purposes. We do not understand that
minutes of their meetings are in evidence showing their action upon
any expenditures during this period, nor does it appear whether
record of the fact or items was preserved in any form other than the
checks therefor; but the fact of payments from such funds of the
association (with many of the checKs in evidence) for all expenditures
involved herein, is established, as recited in the bill of exceptions,
together with the fact that checks therefor were signed by Ryan and
McNamara. While it is true that Ryan testifies for the defense, in
substance, that he signed such checks in blank, leaving them with
McNamara for use in payments, and was unacquainted with the items
or purpose entering therein when completed, his credibility in such
version was for determination by the jury. So the question was
plainly presented for their determination, whether Ryan and other

85590°—Bull. 169—15------ 10

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BULLETIN OF THE BUREAU OF LABOR STATISTICS.

members of the executive board performed their duties in respect
of such expenditures and were advised of their purpose, as a just
deduction from all circumstances in evidence pertinent to that
inquiry. Plainly the absence of direct proof of affirmative action
by the board can not foreclose an inference of such action, in the
light of the above-mentioned order in reference to expenditures made
during the “ trouble,” together with another official statement of
proceedings of the board (produced from a publication in its recog
nized official organ, “ Bridgemen’s Magazine” of April, 1910), em
bracing various matters ruled upon, wherein the published minutes,
signed by the secretary-treasurer, conclude as follows:
“ The items set forth above do not include all the matters considered
by the executive board. It goes without saying that many questions
were presented and acted upon that are not deemed of sufficient
importance to be recorded in these columns. Such items, however,
were of vital interest to the persons directly interested and were of
necessity presented to and considered by the executive board.”
Many witnesses, who appear to be disinterested, testify to facts and
circumstances which tend strongly in support of one and the other
class of charges under the indictment, but specific mention of their
testimony is not deemed needful. One feature of circumstantial
evidence is brought out by the testimony and justly pressed for con
sideration, as tending to prove the conspiracy in all its phases, namely:
That the use of explosives for destruction of property as described
embraced exclusively “ open-shop concerns” and was continuous and
systematic from the commencement of such course up to the time of
the above-mentioned arrest of the McNamaras and McManigal, and
then ceased throughout the country.
The chief direct testimony in the record, however, is that of the
defendant Ortie E. McManigal, which is plainly subject to the chal
lenge of its independent force, by way of proving the charges, under
his relations of record and confessed course of criminality, and thus
requires special mention and reference, as well, to the extraordinary
array of corroborating evidence furnished in support thereof, as an
indispensable requisite for its consideration as proof against the
plaintiffs in error. His testimony is remarkable, both for its story
of wicked conduct in a systematic course of crimes committed by
himself, from the time of his alleged employment in 1907 by Herbert
S. Hockin (one of the plaintiffs in error, who has withdrawn his writ)
to carry out the objects of the conspiracy, down to the time of his
arrest at Detroit, April 12, 1911, and for its directness and complete
ness upon both classes of issue, inclusive of identification of several
of the plaintiffs in error as actors in the conspiracy. In each of the
25 transactions of unlawful carriage of explosives charged in these
counts, he testified that the explosives were taken by himself from
the storage places, and were personally carried on passenger cars in
trains as described, for use in destroying property, and were so used
by him. In each instance the transactions are set forth with abun
dant details of date, places and incidents (on direct and cross examina
tion), which afford the utmost of reasonable opportunity to test their
verity; and the extent and comprehensiveness of the evidence intro
duced in corroboration of this testimony impress us to be not only
extraordinary, but thorough for all requirements to authorize its
submission to the jury, under proper instructions for testing its force

DECISIONS OF COURTS AFFECTING LABOR.

147

and credibility, upon which no error is assigned. The elements of
corroborative evidence are numerous, including records of telegraph,
telephone, railroad, and express companies, hotel registers in many
places, testimony of trainmen and many other witnesses for identifi
cation of the various trips and carriages, letters and many exhibits of
explosives and “ infernal machines,” identified as taken from various
storage places disclosed by McManigai and other witnesses.
We are of opinion, therefore, that the general challenge for insuffi
ciency of evidence must be overruled; that support for the charge of
conspiracy, to say the least, by no means rests on the testimony of
McManigai; and that no error appears in submission of his testimony
for consideration by the jury.
The sufficiency of the evidence to charge each individual plaintiff in
error with participation in the crime was discussed, and in the case of
25, conviction by the lower court was affirmed, while in the case of 5 a
new trial was granted.
Labor Organizations— Protection of Employees as Mem
bers— Constitutionality of Statute— Coppage v. Kansas, Supreme

Court of the United States (Jan. 25, 1915), 35 Supreme Court Reporter,
page 240.—The Supreme Court had before it for the determination of
constitutionality chapter 222 of the acts of the Kansas Legislature of
1903, secs. 4674, 4675, G. S. 1909. As enacted, the statute was en
titled “ An act to provide a penalty for coercing or influencing or
making demands upon or requirements of employees, servants,
laborers, and persons seeking employment.” It was declared un
lawful for any employer or agent of an employer to require an agree
ment, either written or verbal, from employees or prospective em
ployees not to join or continue to be members of a labor organization.
Violations were declared misdemeanors punishable by fine or im
prisonment. T. B. Coppage was a superintendent employed by the
St. Louis & San Francisco Railway Co. at Fort Scott, Kans., and
about July 1, 1911, requested one Hedges, a switchman who was a
member of a labor organization, to sign an agreement to withdraw
from the union. Hedges refused to sign the agreement and also to
withdraw from the organization, whereupon he was discharged.
From a conviction in the trial court Coppage appealed, claiming that
the statute in question was unconstitutional. The Supreme Court of
Kansas, however, upheld the statute and affirmed the penalty (State
v. Coppage, 87 Kans. 752, 125 Pac. 8; Bui. No. 112, p. 119). Further
appeal was taken to the Supreme Court of the United States, where
the judgment of the court below was reversed by a divided court,
and the statute declared unconstitutional. A brief dissenting opin
ion was written by Mr. Justice Holmes, and a more extended one
by Mr. Justice Day, Mr. Justice Hughes concurring therein. The
prevailing opinion, concurred in by five others, was written by Mr.

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BULLETIN OF THE BUREAU OF LABOR STATISTICS.

Justice Pitney. On account of the great interest of this case, both
the prevailing opinion and those written in dissent are here repro
duced in practical completeness. Mr. Justice Pitney having cited
the law and stated the facts on which the action was based, said:
At the outset, a few words should be said respecting the construc
tion of the act. It uses the term “ coerce,” and some stress is laid
upon this in the opinion of the Kansas Supreme Court. But, on this
record, we have nothing to do with any question of actual or implied
coercion or duress, such as might overcome the will of the employee
by means unlawful without the act. In the case before us, the State
court treated the term “ coerce" as applying to the mere insistence by
the employer, or its agent, upon its right to prescribe terms upon
which alone it would consent to a continuance of the relationship of
employer and employee. In this sense we must understand the statute
to nave been construed by the court, for in this sense it was enforced
in the present case; there being no finding, nor any evidence to sup
port a finding, that plaintiff in error was guilty in any other sense.
There is neither finding nor evidence that the contract of employment
was other than a general or indefinite hiring, such as is presumed to be
terminable at the will of either party. The evidence shows that it
would have been to the advantage of Hedges, from a pecuniary point
of view and otherwise, to have been permitted to retain his member
ship in the union, and at the same time to remain in the employ of the
railway company. In particular, it shows (although no reference is
made to this m tne opinion of the court) that as a member of the union
he was entitled to benefits in the nature of insurance to the amount of
fifteen hundred dollars, which he would have been obliged to forego
if he had ceased to be a member. But, aside from this matter of pe
cuniary interest, there is nothing to show that Hedges was subjected
to the least pressure or influence, or that he was not a free agent, in all
respects competent, and at liberty to choose what was best from the
standpoint of his own interests. Of course, if plaintiff in error, acting
as the representative of the railway company, was otherwise within
his legal rights in insisting that Hedges should elect whether to
remain in the employ of the company or to retain his membership
in the union, that msistence is not rendered unlawful by the fact that
the choice involved a pecuniary sacrifice to Hedges. [Cases cited.]
And if the right that plaintiff in error exercised is founded upon a
constitutional basis it can not be impaired by merely applying to its
exercise the term “ coercion." We have to deal, therefore, with a
statute that, as construed and applied, makes it a criminal offense
punishable with fine or imprisonment for an employer or his agent to
merely prescribe, as a condition upon which one may secure certain
employment or remain in such employment (the employment being
terminable at will), that the employee shall enter into an agreement
not to become or remain a member of any labor organization while so
employed; the employee being subject to no incapacity or disability,
but on the contrary free to exercise a voluntary choice.
In Adair v. United States, 208 U. S. 161, [28 Sup. Ct. 277, Bui. No.
75, p. 634], this court had to deal with a question not distinguishable
in principle from the one now presented.

DECISIONS OF COURTS AFFECTING LABOR.

149

Mr. Justice Pitney then stated with some fullness the provisions of
the Federal statute that was under consideration in the Adair case
(30 Stat. 424, 428; sec. 10, act of June 1, 1898). This case involved
the discharge of a man on account of his membership, though the
statute also included a prohibition similar to the Kansas statute as to
agreements not to join a labor union. Continuing, Mr. Justice Pitney
said:
Unless it is to be overruled, this decision is controlling upon the
present controversy; for if Congress is prevented from arbitrary inter
ference with the liberty of contract because of the “ due process”
provision of the fifth amendment, it is too clear for argument that
the States are prevented from the like interference by virtue of the
corresponding clause of the fourteenth amendment; and hence if it
be unconstitutional for Congress to deprive an employer of liberty or
property for threatening an employee with loss of employment or dis
criminating against him because of his membership in a labor organi
zation, it is unconstitutional for a State to similarly punish an em
ployer for requiring his employee, as a condition of securing or retain
ing employment, to agree not to become or remain a member of such
an organization while so employed.
It is true that, while the statute that was dealt with in the Adair
case contained a clause substantially identical with the Kansas act
now under consideration—a clause making it a misdemeanor for an
employer to require an employee or applicant for employment, as a
condition of such employment, to agree not to become or remain a
member of a labor organization—the conviction was based upon
another clause, which related to discharging an employee because of
his membership in such an organization; and the decision, naturally,
was confined to the case actually presented for decision. In the pres
ent case the Kansas Supreme Court sought to distinguish the Adair
decision upon this ground. The distinction, if any there be, has not
previously been recognized as substantial, so far as we have been able
to find. The opinion in the Adair case, while carefully restricting the
decision to the precise matter involved, cited (208 U. S. on p. 175),
as the first in order of a number of decisions supporting the conclusion
of the court, a case (People v. Marcus, 185 N. Y. 257 [77 N. E. 1073,
Bui. No. 67, p. 888]), in which the statute denounced as unconstitu
tional was in substance the counterpart of the one with which we are
now dealing.
But, irrespective of whether it has received judicial recognition, is
there any real distinction ? The constitutional right of the employer
to discharge an employee because of his membership in a labor umon
being granted, can the employer be compelled to resort to this extreme
measure ? May he not oner to the employee an option, such as was
offered in the instant case, to remain m the employment if he will
retire from the union; to sever the former relationship only if he pre
fers the latter? Granted the equal freedom of both parties to the
contract of employment, has not each party the right to stipulate
upon what terms only he will consent to the inception, or to the con
tinuance, of that relationship? And may he not insist upon an
express agreement, instead oi leaving the terms of the employment
to be implied? Approaching the matter from a somewhat different

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BULLETIN OF THE BUREAU OF LABOR STATISTICS.

standpoint, is the employee’s right to be free to join a labor union
any more sacred, or more securely founded upon the Constitution,
than his right to work for whom he will, or to be idle if he will ? And
does not the ordinary contract of employment include an insistence
by the employer that the employee shall agree, as a condition of the
employment, that he will not be idle and will not work for whom he
pleases, but will serve his present employer, and him only, so long as
the relation between them shall continue ? Can the right of making
contracts be enjoyed at all, except by parties coming together in an
agreement that requires each party to forego, during the time and for
the purpose covered by the agreement, any inconsistent exercise of
his constitutional rights ?
These queries answer themselves. The answers, as we think, lead
to a single conclusion: Under constitutional freedom of contract,
whatever either party has the right to treat as sufficient ground for
terminating the employment, where there is no stipulation on the
subject, he has the right to provide against by insisting that a stipu
lation respecting it shall be a sine qua non of the inception of the
employment, or of its continuance if it be terminable at will. It
follows that this case can not be distinguished from Adair v. United
States.
The decision in that case was reached as the result of elaborate
argument and full consideration. We are now asked, in effect, to
overrule it; and in view of the importance of the issue we have
reexamined the question from the standpoint of both reason and
authority. As a result, we are constrained to reaffirm the doctrine
there applied. Neither the doctrine nor this application of it is
novel; we will endeavor to restate some of the grounds upon which
it rests. The principle is fundamental and vital. Included in the
right of personal liberty and the right of private property—partaking
of the nature of each—is the right to make contracts for the
acquisition of property. Chief among such contracts is that of
personal employment, by which labor and other services are ex
changed for money or other forms of property. If this right be
struct: down or arbitrarily interfered with, there is a substantial
impairment of liberty in the long-established constitutional sense.
The right is as essential to the laborer as to the capitalist, to the
poor as to the rich; for the vast majority of persons have no other
honest way to begin to acquire property, save by working for money.
To avoid possible misunderstanding, we should here emphasize,
what has been said before, that so far as its title or enacting clause
expresses a purpose to deal with coercion, compulsion, duress, or
other undue influence, we have no present concern with it, because
nothing of that sort is involved in this case. We do not mean to
say, therefore, that a State may not properly exert its police power
to prevent coercion on the part of employers towards employees,
or vice versa. But, in this case, the Kansas court of last resort
has held that Coppage, the plaintiff in error, is a criminal punishable
with fine or imprisonment under this statute simply and merely
because, while acting as the representative of the railroad company
and dealing with Hedges, an employee at will and a man of full
age and understanding, subject to no restraint or disability, Coppage
insisted that Hedges should freely choose whether he would leave
the employ of the company or would agree to refrain from associa

DECISIONS OF COURTS AFFECTING LABOR.

151

tion with the union while so employed. This construction is, for
all purposes of our jurisdiction, conclusive evidence that the State
of Kansas intends by this legislation to punish conduct such as
that of Coppage, although entirely devoid of any element of coercion,
compulsion, duress, or undue influence, just as certainly as it intends
to punish coercion and the like. Now, it seems to us clear that a
statutory provision which is not a legitimate police regulation can
not be made such by being placed in the same act with a police
regulation, or by being enacted under a title that declares a purpose
which would be a proper object for the exercise of that power.
Nor can a State, by designating as “ coercion” conduct which is
not such in truth, render criminal any normal and essentially innocent
exercise of personal liberty or of property rights; for to permit this
would deprive the fourteenth amendment of its effective force in
this regard. We of course do not intend to attribute to the legis
lature or the courts of Kansas any improper purpose or any want
of candor; but only to emphasize the distinction between the form
of the statute and its effect as applied to the present case.
Laying aside, therefore, as immaterial for present purposes, so
much of the statute as indicates a purpose to repress coercive prac
tices, what possible relation has the residue of the act to the public
health, safety, morals or general welfare? None is suggested, and
we are unable to conceive of any. The act, as the construction given
to it by the State court shows, is intended to deprive employers of
a part of their liberty of contract, to the corresponding advantage
of the employed and the upbuilding of the labor organizations. But
no attempt is made, or could reasonably be made, to sustain the
purpose to strengthen these voluntary organizations, any more
than other voluntary associations of persons, as a legitimate object
for the exercise of the police power. They are not public institu
tions, charged by law with public or governmental cluties, such as
would render the maintenance of their membership a matter of
direct concern to the general welfare. If they were, a different
question would be presented.
As to the interest of the employed, it is said by the Kansas Supreme
Court to be a matter of common knowledge that “ employees, as a
rule, are not financially able to be as independent in making contracts
for the sale of their labor as are employers in making a contract of
purchase thereof. ” No doubt, wherever the right of private property
exists, there must and will be inequalities of fortune; ana thus it
naturally happens that parties negotiating about a contract are
not equally unhampered by circumstances. This applies to all
contracts, and not merely to that between employer and employee.
But the fourteenth amendment, in declaring that a State shall not
“ deprive any person of life, liberty or property without due process
of law,” gives to each of these an equal sanction; it recognizes
“ liberty” and “ property” as coexistent human rights, and debars
the States from any unwarranted interference with either.
And since a State may not strike them down directly it is clear
that it may not do so indirectly, as by declaring in effect that the
public good requires the removal of those inequalities that are but
the normal and inevitable result of their exercise, and then invoking
the police power in order to remove the inequalities, without other
object in view. The police power is broad, and not easily defined,

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BULLETIN OF THE BUREAU OF LABOR STATISTICS.

but it can not be given the wide scope that is here asserted for it,
without in effect nullifying the constitutional guaranty.
In our opinion, the fourteenth amendment debars the States from
striking down personal liberty or property rights, or materially re
stricting their normal exercise, excepting so far as may be incidentally
necessary for the accomplishment of some other and paramount
object, and one that concerns the public welfare. The mere restric
tion of liberty or of property rights can not of itself be denominated
“ public welfare,” and treated as a legitimate object of the police
power; for such restriction is the very thing that is inhibited by the
amendment.
It is said in the opinion of the State court that membership in a
labor organization does not necessarily affect a man's duty to his
employer; that the employer has no right, by virtue of the relation,
“ to dominate the life nor to interfere with the liberty of the employee
in matters that do not lessen or deteriorate the service” ; and that
“ the statute implies that labor unions are lawful and not inimical to
the rights of employers.” The same view is presented in the brief of
counsel for the State, where it is said that membership in a labor
organization is the “ personal and private affair” of the employee.
To this line of argument it is sufficient to say that it can not be
judicially declared that membership in such an organization has no
relation to a member's duty to his employer ; and therefore, if freedom
of contract is to be preserved, the employer must be ieft at liberty to
decide for himself whether such membership by his employee is con
sistent with the satisfactory performance of the duties of the em
ployment.
Of course we do not intend to say, nor to intimate, anything incon
sistent with the right of individuals to join labor iimbns, nor do we
question the legitimacy of such organizations so long as they conform
to the laws of the land as others are required to do. Conceding the
full right of the individual to join the union, he has no inherent right
to do this and still remain in the employ of one who is unwilling to
employ a union man, any more than the same individual has a right
to join the union without the consent of that organization. Can it
be doubted that a labor organization—a voluntary association of
workingmen—has the inherent and constitutional right to deny mem
bership to any man who will not agree that during such membership
he will not accept or retain employment in company with nonunion
men? Or that a union man has the constitutional right to decline
proffered employment unless the employer will agree not to employ
any nonunion man ? (In all cases we refer, of course, to agreements
made voluntarily, and without coercion or duress as between the
parties. And we have no reference to questions of monopoly, or
interference with the rights of third parties or the general public.
These involve other considerations, respecting which we intend to
intimate no opinion. See Curran v. Galen, 152 N. Y. 33; 46 N. E.
297 [Bui. No. 11, p. 529]; Jacobs v. Cohen, 183 N. Y. 207, 213, 214;
76 N. E. 5 [Bui. No. 64, p. 896]; Plant v. Woods, 176 Mass. 492; 57
N. E. 1011 [Bui. No. 31, p< 1294]; Berry v. Donovan, 188 Mass. 353;
74 N. E. 603 [Bui. No. 60, p. 702]; Brennan v. United Hatters, 73
N. J. Law 729, 738; 65 Atl. 165,169 [Bui. No. 70, p. 746].) And can

DECISIONS OF COURTS AFFECTING LABOR.

158

there be one rule of liberty for the labor organization and its mem
bers, and a different and more restrictive rule for employers? We
think not; and since the relation of employer and employee is a
voluntary relation, as clearly as is that between the members of a
labor organization, the employer has the same inherent right to pre
scribe the terms upon which ne will consent to the relationship, and
to have them fairly understood and expressed in advance.
When a man is called upon to agree not to become or remain a
member of the union while working for a particular employer, he is
in effect only asked to deal openly and frankly with his employer, so
as not to retain the employment upon terms to which the latter is
not willing to agree. And the liberty of making contracts does not
include a liberty to procure employment from an unwilling employer,
or without a fair understanding. Nor may the employer be foreclosed
by legislation from exercising the same freedom of choice that is the
right of the employee.
To ask a man to agree, in advance, to refrain from affiliation with
the union while retaining a certain position of employment, is not to
ask him to give up any part of his constitutional freedom. He is free
to decline the employment on those terms, just as the employer may
decline to offer employment on any other; for “ It takes two to make a
bargain.” Having accepted employment on those terms, the man is
still free to join the union when the period of employment expires;
or, if employed at will, then at any time upon simpiy quitting the
employment. And, if bound by his own agreement to refrain from
joining during a stated period of employment, he is in no different
situation from that which is necessarily incident to term contracts in
general. For constitutional freedom of contract does not mean that
a party is to be as free after making a contract as before; he is not
free to break it without accountability. Freedom of contract, from
the very nature of the thing, can be enjoyed only by being exercised;
and each particular exercise of it involves making an engagement
which, if fulfilled, prevents for the time any inconsistent course of
conduct.
So much for the reason of the matter; let us turn again to the adju
dicated cases.
The decision in the Adair case is in accord with the almost unbroken
current of authorities in the State courts. In many States enact
ments not distinguishable in principle from the one now in question
have been passed, but, except m two instances (one, the decision of an
inferior court in Ohio, since repudiated; the other, the decision now
under review), we are unable to find that they have been judicially
enforced. It is not too much to say that such laws have by common
consent been treated as unconstitutional, for while many State courts
of last resort have adjudged them void, we have found no decision by
such a court sustaining legislation of this character, excepting that
which is now under review. The single previous instance in which
any court has upheld such a statute is Davis v. State of Ohio (1893),
30 Cine. Law Bull. 342; 11 Ohio Dec. Reprint, 894; where the court of
common pleas of Hamilton County sustamed an act of April 14,1892,
(89 Ohio Laws 269) which declared that any person who coerced or
attempted to coerce employees by discharging or threatening to dis
charge them because of their connection with any lawful labor organi

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BULLETIN OF THE BUBEAU OF LABOR STATISTICS.

zation should be guilty of a misdemeanor and upon conviction fined
or imprisoned. We are unable to find that this decision was ever
directly reviewed; but in State of Ohio v. Bateman (1900), 10 Ohio
Dec. 68; 7 Ohio N. P. 487, its authority was repudiated upon the
ground that it had been in effect overruled by subsequent decisions
of the State supreme court, and the same statute was held unconsti
tutional.
The right that plaintiff in error is now seeking to maintain was held
by the Supreme Court of Kansas, in an earlier case, to be within the
>rotection of the fourteenth amendment and therefore beyond legisative interference. In Brick Co. v. Perry, 69 Kan. 297; 26 Pac. 848
[Bui. No. 56, p. 311]; the court had under consideration chapter 120
of the Laws of 1897 (Gen. Stat. 1901, secs. 2425, 2426), which declared
it unlawful for any person, company, or corporation, or agent, officer,
etc., to prevent employees from joining and belonging to any labor
organization, and enacted that any such person, company, or corpora
tion, etc., that coerced or attempted to coerce employees by discharg
ing or threatening to discharge them because of their connection with
such labor organization should be deemed guilty of a misdemeanor,
and upon conviction subjected to a fine, ana should also be liable to
the person injured in punitive damages. It was attacked as violative
of the fourteenth amendment, and also of the bill of rights of the
State constitution. The court held it unconstitutional, saying: “ The
right to follow any lawful vocation and to make contracts is as com
pletely within the protection of the constitution as the right to hold
property free from unwarranted seizure, or the liberty to go when and
where one will. * * * Every citizen is protected in his right to
work where and for whom he will. He may select not only his
employer but also his associates. He is at liberty to refuse to con
tinue to serve one who has in his employ a person, or an association of
persons, objectionable to him. In this respect the rights of the em
ployer and employee are equal. Any act o f the legislature that would
undertake to impose on an employer the obligation of keeping in his
service one whom, for any reason, he should not desire would be a
denial of his constitutional right to make and terminate contracts and
to acquire and hold property.”
In five other States the courts of last resort have had similar acts
under consideration, and in each instance have held them unconsti
tutional. In State v. Julow (1895), 129 Mo. 163; 31 S. W. 781 [Bui.
No. 2, p. 206]; the Supreme Court of Missouri dealt with an act
(Missouri Laws 1893, p. 187), that forbade employers, on pain of fine
or imprisonment, to enter into any agreement with an employee
requiring him to withdraw from a labor union or other lawful organ
ization, or to refrain from joining such an organization, or to “ by
any means attempt to compel or coerce any employee into withdrawal
from any lawful organization or society.” In Gillespie v. The People
(1900), 188 Iff. 176; 58 N. E. 1007 [Bui. No. 35, p. 797]; the Supreme
Court of Illinois held unconstitutional an act (Hurd's Stat. 1899, p.
844) declaring it criminal for any individual or member of any firm,
etc., to prevent or attempt to prevent employees from forming,
joining, and belonging to any lawful labor organization, and that
any such person “ that coerces or attempts to coerce employees by
discharging or threatening to discharge them because of their con
nection with such awful labor organization” should be guilty of a

{

DECISIONS OF COURTS AFFECTING LABOR.

155

misdemeanor. In State, ex rei. Zillmer v. Kreutzberg (1902), 114
Wis. 530; 90 N. W. 1098 [Bui. No. 47, p. 938]; the court had under
consideration a statute (Wisconsin Laws 1899, ch. 332), which, like
the Kansas act now in question, prohibited the employer or his agent
from coercing the employee to enter into an agreement not to become
a member of a labor organization, as a condition of securing employ
ment or continuing in the employment, and also rendered it unlawful
to discharge an employee because of his being a member of any labor
organization. The decision related to the latter prohibition, but
this was denounced upon, able and learned reasoning that has a much
wider reach. In People v. Marcus [supra] the statute dealt with
(N. Y. Laws, 1887, ch. 688), as we have already said, was in substance
identical with the Kansas act. These decisions antedated Adair v.
United States. They proceed upon broad and fundamental reason
ing, the same in substance that was adopted by this court in the
Adair case, and they are cited with approval in the opinion (208
U. S. 175). A like result was reached in State, ex rel. Smith v.
Daniels (1912), 118 Minn. 155; 136 N. W. 584 [Bui. No. 112, p. 122];
with respect to an act that, like the Kansas statute, forbade an
employer to require an employee or person seeking employment, as a
condition of such employment, to make an agreement that the em
ployee would not become or remain a member of a labor organization.
This was held invalid upon the authority of the Adair case. And
see Goldfield Consol. Mines Co. v. Goldfield Miners* Union, 159 Fed.
500, 513 [Bui. No. 78, p. 586].
Upon both principle and authority, therefore, we are constrained
to hold that the Kansas act of March 13, 1903, as construed and
applied so as to punish with fine or imprisonment an employer or
his agent for merely prescribing, as a condition upon which one may
secure employment under or remain in the service of such employer,
that the employee shall enter into an agreement not to become or
remain a member of any labor organization while so employed, is
repugnant to the “ due process" clause of the fourteenth amendment,
and therefore void.
The dissenting opinion of Mr. Justice Holmes was brief, dependence
being had upon earlier expressions of his views rather than upon a
present restatement. It is as follows:
I think the judgment should be affirmed. In present conditions a
workman not unnaturally may believe that only by belonging to a
union can he secure a contract that shall be fair to him. Holden v.
Hardy, 169 U. S. 366, 397 [18 Sup. Ct. 383, Bui. No. 17, p. 625].
Chicago, Burlington & Quincy R. R. Co. v. McGuire, 219 U. S. 549,
570 [31 Sup. Ct. 259, Bui. No. 93, p. 644]. If that belief, whether
right or wrong, may be held by a reasonable man, it seems to me
that it may be enforced by law in order to establish the equality of
position between the parties in which liberty of contract begins.
Whether in the long run it is wise for the workingmen to enact legis
lation of this sort is not my concern, but I am strongly of opinion
that there is nothing in the Constitution of the United States to pre
vent it, and that Adair v. United States [supra], and Lochner v. New
York, 198 U. S. 45 [25 Sup. Ct. 539, Bui. No. 59, p. 340], should be
overruled. I have stated my grounds in those cases and think it
unnecessary to add others that I think exist. See further Vegelahan

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BULLETIN OF THE BUREAU OF LABOR STATISTICS.

v. Guntner, 167 Mass. 92, 104, 108 [44 N. E. 1077, Bui. No. 9, p. 197];
Plant v. Woods, 176 Mass. 492, 505 [57 N. E. 1011, Bui. No. 31, p.
1294]. I still entertain the opinions expressed by me in Massachusetts.
In the dissenting opinion of Mr. Justice Day, Mr. Justice Hughes
concurring, attention was called to the fact that similar legislation
in fourteen other jurisdictions would be invalidated by the decision
in the present case. Cases were then cited to support the statement
that the right of contract as a part of individual freedom was never"
theless subject to regulation in the interest of the public welfare, the
local legislature being the judge of the necessity of such legislation,
its enactments “ only to be set aside when they involve such palpable
abuse of power and lack of reasonableness to accomplish a lawful end
that they may be said to be merely arbitrary and capricious, and
hence out of place in a Government of laws and not of men, and
irreconcilable with the conception of due process of law.”
Mr. Justice Day distinguished between the portions of the Federal
act under consideration in the Adair case, pointing out that the ques
tion at that time was declared to be the making it a criminal offense
for an employer to discharge an employee from service because of his
membership in a labor organization. He was therefore “ unable to
agree that that case involved or decided the one now at bar.” Con
tinuing, Mr. Justice Day said:
There is nothing in the statute now under consideration which
prevents an employer from discharging one in his service at his will.
The question now presented is, May an employer, as a condition of
present or future employment, require an employee to agree that
he will not exercise the privilege of becoming a member of a labor
union, should he see fit to do so? In my opinion, the cases are
entirely different, and the decision of the questions controlled by
different principles. The right to join labor unions is undisputed,
and has been the subject of frequent affirmation in judicial opinions.
Acting within their legal rights, such associations are as legitimate
as any organization of citizens formed to promote their common in
terest. They are organized under the laws of many States, by virtue
of express statutes passed for that purpose, and, being legal, and
acting within their constitutional rights, the right to join them, as
against coercive action to the contrary may be the legitimate subject
oi protection in the exercise of the police authority of the States.
This statute, passed in the exercise of that particular authority called
the police power, the limitations of which no court has yet undertaken
precisely to define, has for its avowed purpose the protection of the
exercise of a legal right, by preventing an employer from depriving
the employee of it as a condition of obtaining employment. 1 see no
reason why a State may not, if it chooses, protect this right, as well
as other legal rights.
The act under consideration is said to have the effect to deprive
employel's of a part of their liberty of contract, for the benefit of
labor organizations. It is urged that the statute has no object or
purpose, express or implied, that has reference to health, safety,

DECISIONS OF COURTS AFFECTING LABOR.

157

morals, or public welfare, beyond the supposed desirability of leveling
inequalities of fortune by depriving him who has property of some
part of his “ financial independence.”
But this argument admits that financial independence is not
independence of law or of the authority of the legislature to declare
the policy of the State as to matters which have a reasonable relation
to the welfare, peace and security of the community.
This court has many times decided that the motives of legislators
in the enactment of laws are not the subject of judicial inquiry.
Legislators, State and Federal, are entitled to the presumption that
their action has been in good faith and because of conditions which
they deem proper and sufficient to warrant the action taken.
The act must be taken as an attempt of the legislature to enact a
statute which it deemed necessary to the good order and security of
society. It imposes a penalty for “ coercing or influencing or making
demands upon or requirements of employees, servants, laborers,
and persons seeking employment.” It was in the light of this avowed
purpose that the act was interpreted by the Supreme Court of Kansas,
the ultimate authority upon the meaning of the terms of the law.
Of course, if the act is necessarily arbitrary and therefore unconsti
tutional, mere declarations of good intent can not save it, but it
must be presumed to have been passed by the legislative branch of
the State government in good faith, and for the purpose of reaching
the desired end. The legislature may have believed, acting upon
conditions known to it, that the public welfare would be promoted
by the enactment of a statute which should prevent the compulsory
exaction of written agreements to forego the acknowledged legal
right here involved, as a condition of employment in one's trade or
occupation.
It would be impossible to maintain that because one is free to
accept or refuse a given employment, or because one may at will
employ or refuse to employ another, it follows that the parties have
a constitutional right to insert in an agreement of employment any
stipulation they choose. They can not put in terms that are against
public policy either as it is deemed by the courts to exist at com
mon law or as it may be declared by the legislature as the arbiter
within the limits of reason of the public policy of the State. It
is no answer to say that the greater includes the less and that because
the employer is free to employ, or the employee to refuse employment,
they may agree as they please. This matter is easily tested by
assuming a contract of employment for a year and the insertion of a
condition upon which the right of employment should continue.
The choice of such conditions is not to be regarded as wholly unre
stricted because the parties may agree or not as they choose. And
if the State may prohibit a particular stipulation in an agreement
because it is deemed to be opposed in its operation to the security
and well-being of the community, it may prohibit it in any agreement
whether the employment is for a term or at will. It may prohibit the
attempt in any way to bind one to the objectionable undertaking.
Would anyone contend that the State might not prohibit the im
position of conditions which should require an agreement to forego
the right on the part of the employee to resort to the courts of the
country for redress in the case of disagreement with his employer?
While the employee might be discharged in case he brought suit

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BULLETIN OF THE BUREAU OF LABOR STATISTICS.

against an employer if the latter so willed, it by no means follows that
he could be required, as a condition of employment, to forego a right
so obviously fundamental as the one supposed. It is therefore mis
leading to say that the right of discharge necessarily embraces the
right to impose conditions of employment which shall include the
surrender of rights which it is the policy of the State to maintain.
It may be that an employer may be of the opinion that member
ship of his employees in the National Guard, by enlistment in the
militia of the State, may be detrimental to his business. Can it be
successfully contended that the State may not, in the public interest,
prohibit an agreement to forego such enlistment as against public
policy ? Would it be beyond a legitimate exercise of the police power
to provide that an employee should not be required to agree, as a
condition of employment, to forego affiliation with a particular polit
ical party, or the support of a particular candidate for office? It
seems to me that these questions answer themselves. There is a real
and not a fanciful distinction between the exercise of the right to dis
charge at will and the imposition of a requirement that the employee,
as a condition of employment, shall make a particular agreement to
forego a legal right. The agreement may be, or may be declared to be,
against public policy, although the right of discharge remains. When
a man is discharged, the employer exercises his right to declare
such action necessary because of the exigenci.es of his business, or as
the result of his judgment for other reasons sufficient to himself.
When he makes a stipulation of the character here involved essential
to future employment, he is not exercising a right to discharge, and
may not wish to discharge the employee mien, at a subsequent time,
the prohibited act is done. What is in fact accomplished, is that the
one engaging to work, who may wish to preserve an independent
right of action, as a condition of employment, is coerced to the signing
of such an agreement against his will, perhaps impelled by the neces
sities of his situation. The State, within constitutional limitations,
is the judge of its own policy and may execute it in the exercise
of the legislative authority. This statute reaches not only the em
ployed but as well one seeking employment. The latter may never
wish to join a labor union. By signing such agreements as are here
involved he is deprived of the right of free choice as to his future
conduct, and must choose between employment and the right to act
in the future as the exigencies of his situation may demand. It is
such contracts, having such effect, that this statute and similar ones
seek to prohibit and punish as against the policy of the State.
It is constantly emphasized that the case presented is not one of
coercion. But in view of the relative positions of employer and
employed, who is to deny that the stipulation here insisted upon
ana forbidden by the law is essentially coercive. No form of words
can strip it of its true character. Whatever our individual opinions
may be as to the wisdom of such legislation, we can not put our
judgment in place of that of the legislature and refuse to acknowl
edge the existence of the conditions with which it was dealing.
Opinions may differ as to the remedy, but we can not understand
upon what ground it can be said that a subject so intimately re
lated to the welfare of society is removed from the legislative power.
Wherein is the right of the employer to insert this stipulation in
the agreement any more sacred than his right to agree with another

DECISIONS OF COURTS AFFECTING LABOR.

159

employer in the same trade to keep up prices. He may think it
C[uite as essential to his “ financial independence” and so in truth
it may be if he alone is to be considered. But it is too late to deny
that the legislative power reaches such a case. It would be difficult
to select any subject more intimately related to good order and
the security of the community than that under consideration—
whether one takes the view that labor organizations are advan
tageous or the reverse. It is certainly as much a matter for legis
lative consideration and action as contracts in restraint of trade.
It is urged that a labor organization—a voluntary association
of workingmen—has the constitutional right to deny membership
to any man who will not agree that during such membership he
will not accept or retain employment in company with nonunion
men. And it is asserted that there can not be one rule of liberty
for the labor organization and its members and a different and
more restrictive rule for employers.
It of course is true, for example, that a church may deny member
ship to those who unite with otner denominations, but it by no means
follows that the State may not constitutionally prohibit a railroad
company from compelling a workingman to agree that he will, or
will not, join a particular church. An analogous case,—viewed from
the employer’s standpoint, would be: Can the State, in the exercise
of its legislative power, reach concerted effort of employees intended
to coerce the employer as a condition of hiring labor that he shall
engage in writing to give up his privilege of association with other
employers in legal organizations, corporate or otherwise, having for
their object a united effort to promote by legal means that which
employers believe to be for the best interest of their business ?
I entirely agree that there should be the same rule for employers
and employed, and the same liberty of action for each. In my
judgment, the law may prohibit coercive attempts, such as are here
involved, to deprive either of the free right of exercising privileges
which are theirs within the law. So far as I know, no law has
undertaken to abridge the right of employers of labor in the exercise
of free choice as to what organizations they will form for the promo
tion of their common interests, or denying to them free right of
action in such matters.
But [it] is said that in this case all that was done in effect was to
discharge an employee for a cause deemed sufficient to the employer
—a right inherent m the personal liberty of the employer protected
by the Constitution. This argument loses sight of the real purpose
and effect of this and kindred statutes. The penalty imposed is not
for the discharge but for the attempt to coerce an unwilling em
ployee to agree to forego the exercise of the legal right involved as
a condition of employment. It is the requirement of such agree
ments which the State declares to be against public policy.
I think that the act now under consideration, and kindred ones,
are intended to promote the same liberty of action for the employee
as the employer confessedly enjoys. The law should be as zealous
to protect the constitutional liberty of the employee as it is to guard
that of the employer. A principal object of this statute is to pro
tect the liberty of the citizen to make such lawful affiliations as he
may desire with organizations of his choice. It should not be neces
sary to the protection of the liberty of one citizen that the same
right in another citizen be abridged or destroyed.

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BULLETIN OF THE BUREAU OF LABOR STATISTICS.

If one prohibitive condition of the sort here involved may be at
tached, so may others, until employment can only be had as the
result of written stipulations, which shall deprive the employee of the
exercise of legal rights which are within the authority of the State
to protect. While this court should, within the limitations of the
constitutional guaranty, protect the free right of contract, it is not
less important that the State be given the right to exert its legislative
authority, if it deems best to do so, for the protection of rights which
inhere in the privileges of the citizen of every free country.
The Supreme Court of Kansas in sustaining this statute, said
that “ employees as a rule are not financially able to be as independent
in making contracts for the sale of their labor as are employers in
making a contract of purchase thereof,” and in reply to this it is
suggested that the law can not remedy inequalities of fortune, and
that so long as the right of property exists, it may happen that
parties negotiating may not be equally unhampered by circum
stances.
This view of the Kansas court, as to the legitimacy of such
considerations, is in entire harmony, as I understand it, with the
former decisions of this court in considering the right of State legisla
tures to enact laws which shall prevent the undue or oppressive
exercise of authority in making contracts with employees. Certainly
it can be no substantial objection to the exercise of the police power
that the legislature has taken into consideration the necessities, the
comparative ability, and the relative situation of the contracting
parties. While all stand equal before the law, and are alike entitled
to its protection, it ought not to be a reasonable objection that one
motive which impelled an enactment was to protect those who might
otherwise be unable to protect themselves.
I therefore think that the statute of Kansas, sustained by the
supreme court of the State, did not go beyond a legitimate exercise
of the police power, when it sought, not to require one man to employ
another against his will, but to put limitations upon the sacrifice of
rights which one man may exact from another as a condition of
employment.
Labor Organizations— Strikes—I nciting
sons—State

I njury

Per

v. Quinlan, Supreme Court of New Jersey {June 5, 1914),
91 Atlantic Reporter, page 111.—Patrick Quinlan was convicted in
the court of quarter sessions of Passaic County of advocating, encour
aging, or inciting the killing or injuring of a class of persons, it being
alleged that, at the time of a strike, he uttered in a public meeting
the following words: “ I make a motion that we go to the silk mills,
parade through the streets, and club them out of the mills; no mat
ter how we get them out, we got to get them out.” Quinlan took
exceptions to the refusal of the trial judge to quash the indictment,
one point being as to the sufficiency of the statute under which con
viction was had. The statute in question declares guilty of high
misdemeanor any person who, in public or private, by speech, writ
ing, or otherwise, advocates, encourages, incites, etc., * * *

DECISIONS OF COURTS AFFECTING LABOR.

161

the killing or injuring of any class or body of persons, or of any
individual.
In its opinion, delivered by Judge Kalisch, the supreme court held
that the statute is not in violation of the constitution as being
uncertain in describing the offense, saying, “ There is no organic law
or rule of sound public policy that requires the legislature to define
the meaning of English words in common and daily use.”
Another contention was that the indictment, in order to charge
the offense, must set out that as the result of the utterance of the
words alleged there was a killing or injury of a class or body of
persons or of an individual. Authorities are quoted to show that
this contention is unsound, and the court said in part:
It is germane to the matter under discussion to observe here that
the section of the crimes act on which the indictment in the case
sub judice is founded is not an innovation upon, but declaratory of,
the common law.
Stephen, in his Digest of Criminal Law (Ed. 1877) p. 33, says:
“ Every one who incites any person to commit any crime commits
a misdemeanor, whether the crime is or is not* committed.”
The framers of the act had evidently in mind the prevention of
breaches of the public peace and the protection of human life and
limb, and deemed that these could be best effected by making it a
high misdemeanor for any one who shall, in public or private, by
speech, etc., or by any other mode and means, advocate, encourage,
or incite to such breaches of the law, irrespective of the fact whether
such breaches of the law actually took place or not. The gravamen
of the statutory offense lies in the incitement or encouragement to
the commission of the offenses denounced, and not in the actual
commission of them.
As to the admission of remarks made by a speaker just before
Quinlan made the motion alleged, the court said:
A reference to Mrs. Jones's remarks shows them to have been of
an inflammatory character, but the argument made is that they were
irrelevant, incompetent, and immaterial, because the issue before the
court and jury was whether the defendant at that time and place
uttered the language charged on the indictment. It is further argued
that her remarks were not part of the res gestae, since it was not
shown that they were made in furtherance of a common design, or
that the defendant was in any way concerned in their making. But
this objection is fully answered by the language used by the defend
ant when he rounded out the peroration of Mrs* Jones, as described
by the State's witness Tracey. Mrs. Jones said:
“ I want you people to go to the mills and I want you people to
advise the people to join you in this strike. If they refuse, I want
you to go into the mills and I want you to drive them out of the
mills. I want you to knock them out of the mills, even if it takes
your extreme force.”
It was following this that the defendant made the motion in which
he used the language set out in the indictment. We think the tes85590°—Bull. 169—15------11

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BULLETIN OF THE BUREAU OF LABOR STATISTICS.

timony was properly admitted as a part of the res gestae. It was
clearly within the issue, for the defendant was charged with advo
cating, encouraging, and inciting the injuring of a class of persons,
and the testimony tended to show that he was participating with
Mrs. Jones in a common design to that end.
The conviction was therefore affirmed.
Labor Organizations—U nlawful Combinations—R estraint
Trade— I njunction— L iability of Members— Irving et al. v.

Neal et al., United States District Court, Southern District of New York
(Nov. 6, 1913), 209 Federal Reporter, page 471.—This case arose from
a bill in equity brought by Charles R. Irving and Robert Casson,
copartners and citizens of Massachusetts, seeking an injunction
against Edward H. Neal, individually and as secretary of the joint
district council of New York and vicinity of the United Brotherhood
of Carpenters and Joiners of America and Amalgamated Society of
Carpenters and Joiners of America, and others. The complainant firm
had been put on an “ unfair list” maintained by the labor organiza
tion, and its name was also omitted from the “fair” list distributed
to builders, architects, and owners of property using or likely to use
woodwork or trim for interior finish of buildings, the complainant
company being manufacturers of such material. Strikes were also
threatened if the notices in such circulars and letters as were sent
were not complied with.

Judge Ward stated the foregoing facts and continued with the
opinion of the court in part as follows:
The particular case of a sympathetic strike threatened by the
defendant Blumenberg, a business agent of the joint district council
at the Cathedral of St. John the Divine in this city, resulted in the
issuance of a restraining order and preliminary injunction prohibiting
the individual defendants, both individually and officially, from inter
fering with the complainant’s business. The case now comes up on
final nearing.
I find that the allegations of the bill as to particular instances in
which the purpose of the combination was earned out or sought to be
carried out against the complainants are true as matter of fact. The
defendants contend that, even if this be so, the bill should be dismissed
as without equity against them because they have not individually
published “ unfair” lists or called or threatened sympathetic strikes,
and further because no “ unfair” lists have been published or sym
pathetic strikes called for the past two years. Tney are, however,
members of the United Brotherhood and of the local unions repre
sented by the joint district council and are officers either of the brother
hood or council. Several of them did actually take part in some of the
particular instances stated in the bill. At all events, if the thing
principally complained of, viz., an agreement not to work on non
union trim enforceable by fine is unlawful, they are liable for anything
done to carry it out, even though they did not individually participate.

DECISIONS OF COURTS AFFECTING LABOR.

163

The agreement is a part of the organic law of the associations of
which they are members and officers, and, of course, they can not
say they are ignorant of it or do not participate. The admissions of
their answer are to the contrary. I think this proposition consistent
with the opinion of the circuit court of appeals for this circuit in
Lawlor v. Loewe, 187 Fed. 522, 109 C. C. A. 288 [Bui. No. 96, p. 780].
So also, assuming that the acts complained of in the bill or some of
them have been discontinued, further commission of them may be
properly enjoined if they are unlawful.
There can be no question: First, that a combination does exist
between the various local unions which constitute the United Brother
hood; second, that one of the purposes of the combination is to
compel the unionization of all manufacturing carpenter shops; third,
that the object is to restrain competition between open shops and
union shops; and, fourth, that this object is to be accomplished
principally by an agreement to refuse to work on any job where non
union trim is used. It further appears that an agreement exists
between the Master Carpenters* Association, composed of the principal
employers of carpenters in Greater New York, and the joint district
council, whereby the builders agree to use only union trim, which I
think the builders were coerced into making by the unions. The
effect of it is that nonunion trim, except of negligible sizes, can not be
sold throughout almost the whole of tnat territory.
It is said that workmen have a right to refuse to work for any reason
they choose, good or bad, which is satisfactory to themselves. This
is true, but it does not follow that they have a right to combine to do
so some 200,000 strong over the whole country. Doubtless the pur
pose of the combination is to advance their own interests without
actual malice against manufacturers who do not wish to operate their
mills in accordance with the requirements of the unions. This, how
ever, is true of almost every combination in restraint of trade. The
combination in this case results all the same in directly restraining
competition between manufacturers.
The precise question of law to be determined is whether this fea
ture o f the combination, there being no right of action at common
law, is made unlawful by, and may be enjoined under, any statute.
I think it is shown to be unlawful under the Sherman law by the
decision of the Supreme Court in Loewe v. Lawlor, 208 U. S. 274, 28
Sup. Ct. 301 [Bui. No. 75, p. 622].
But because the Sherman law prescribes the remedies, both criminal
and civil, at law and in equity, it is held in this circuit that only the
prescribed remedies can be pursued. From this it follows that the
injunctive relief can only be had at the instance of the Government,
and therefore that the complainants can not recover. National Fireproofing Co. v. Mason Builders’ Ass’n, 169 Fed. 259, 94 C. C. A. 535
[Bui. No. 84, p. 427].
Section 340 of the general business law of this State (Consol. Laws
1909, c. 20) makes any combination, whereby competition in the
supply or the price of any article in common use in the State is
restrained, a misdemeanor. Interior trim such as the complainants
manufacture is such an article; but, as the law confers the remedy by
injunction on the State and elaborately prescribes the procedure, I
am bound to follow the suggestion made in the National Fireproofing

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BULLETIN OF THE BUREAU OF LABOR STATISTICS.

case, supra, that under this act also injunctive relief can be had only
at the suit of the State.
Section 580 of the penal law of this State, subd. 6, makes it a mis
demeanor for two or more persons to conspire to commit any act
“ injurious to trade or commerce.” Without discussing the multitude
of decisions cited by counsel, the reasoning in the case of Loewe v.
Lawlor, supra, seems to me enough to show that the combination in
this case is such an act. See, also, People v. McFarlin, 43 Misc. Rep.
591, 89 N. Y. Supp. 527. As the act says nothing whatever about
civil remedies, I think any appropriate remedy is available to one
especially injured by violation of it.
While there is no evidence of a special hostility to the complainants
in particular, as maintaining an open shop, the proofs show a per
sistent campaign has been made by the combination to compel them
to unionize their shop. They suffer in a way different from the com
munity at large. This entitles them to ail available civil remedies,
among others to injunctive relief. A decree will be entered granting
a permanent injunction in accordance with this opinion.

Labor Organizations— U nlaw ful Combinations— Restraint
o f Trade— Injunction— Prevention o f Competition— Paine Lum

ber Co. (Ltd.), v. Neal et al., United States District Court, Southern
District of New York (Nov., 1913), 212 Federal Reporter, page 259.—
This case is closely connected with that of Irving et al. v. Neal et al., 209
Fed. 471 [see p. 162], as it arose out of the same labor conditions.
This bill in equity was brought by 8 complainants, residents of States
other than New York, and manufacturers of wood trim, sash, and
similar wood products. As to differences between the two suits, the
opinion, delivered by Judge Mayer, said:
Here both the complaint and the relief sought are more compre
hensive. There is no question involving an existing strike. The
record is barren of any proof of acts of violence, nor is there satisfac
tory proof that the agreements and acts complained of were, at the
time of the commencement of the suit, directed against these par
ticular complainants. Plainly and briefly stated, the suit is brought
on behalf of nonunion manufacturers to settle in a private litigation
an economic question of ceaseless importance in respect of which in
the particular trade here involved there has been a long and bitterly
(though peacefully) fought struggle; each side contending for what
it believed to be its rights and welfare.
The defendants named in this bill consist of officers of the United
Brotherhood of Carpenters and Joiners of America, who were also
officers or agents of the joint district council; union manufacturers of
floor, sash, and trim in New York; and master carpenters whose
business it is to install trim, doors, sash, and other woodwork in
buildings. Agreements between the master carpenters and the
joint district council, and between the Manufacturing Woodworkers’

DECISIONS OF COURTS AFFECTING LABOR,

165

Association and the joint district council are set forth in the bill, an
injunction being sought to prevent these agreements from being
carried into effect.
After stating the allegations as to acts alleged to have been done
in pursuance of the conspiracy the opinion continues:
The testimony is voluminous, but I think the essential facts may
be summarized as follows: (1) The journeymen carpenters in the
Borough of Manhattan and in parts of the Borough of Brooklyn very
generally belong to the Brotherhood of Carpenters. (2) Owing to
the fact that members of the brotherhood refuse to work with non
union members and to the further fact that employers in the building
trades deem it wise to employ brotherhood men, it is difficult and
under ordinary circumstances impracticable to erect carpenter work
in the Borough of Manhattan and m parts of the Borough of Brooklyn
except with union labor. (3) That the Brotherhood of Carpenters
has a by-law that its members will not erect material made by non
union mechanics. (4) The Brotherhood of Carpenters has given
notice that its men will abide by this by-law. (5) The by-law is
enforceable by fine. (6) On several occasions in the past few years
the members of the brotherhood have quit work where complainants'
products were being used and where the products of other so-called
nonunion mills were being used. (7) The enforcement of the by-law
in question by the Brotherhood of Carpenters and the provision in
the agreement with the master carpenters relative to the use of non
union trim have lessened the sale of complainants’ products in the
Borough of Manhattan and in some parts of the Borough of Brooklyn.
(8) The workmen have adopted and pursued the policy complained
of to better their condition in a continuing economic struggle with no
malice to the particular complainants herein, but as part of a plan
to accomplish a nation-wide unionization of their trade. (9) The
contractors or master carpenters have entered into their trade agree
ments after elaborate negotiation and for the purpose of establishing
and maintaining peaceful relation which shall obviate strikes ana
other disturbing labor troubles.
For the complainants to succeed they must establish: (1) An agree
ment offensive to the common law or a State or Federal statute; (2)
or any acts done in pursuance thereof; and (3) such injury as will
warrant injunctive relief in a litigation between private parties.
Assuming the agreement and its operation to be a combination in
restraint of trade, the common law gives no right of action to a third
person.
The remedy, if any, must therefore be found in statutes which, as I
understand the trend of modern decisions, are said to be declaratory
of the common law but afford new or additional remedies. This
brings us to a consideration of the Federal so-called Sherman anti
trust law and the New York State antitrust law (General Business
Law, sec. 340). I agree with Judge Ward in his opinion filed con
temporaneously herewith [Irving v. Neal, supra] that:
“ There can be no question, first, that a combination does exist
between the various local unions which constitute the United Brother
hood; second, that one of the purposes of the combination is to com
pel the unionization of all manufacturing carpenter shops; third, that

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BULLETIN OF THE BUREAU OF LABOR STATISTICS.

the object is to restrain competition between open shops and union
shops; and, fourth, that this object is to be accomplished principally
by an agreement to refuse to work on any job where nonunion trim
is used.”
I further agree that the combination in the case before him results
in directly restraining competition between manufacturers and oper
ates to restrain interstate commerce in violation of the above-referredto Federal and State statutes.
As the agreement between the joint district council and the master
carpenters and the agreement between the Manufacturing Wood
workers’ Association and the United Brotherhood and the joint dis
trict council are but steps in the course of the combination and
effective extensions of its purpose and results, I am of the opinion that
these agreements are also condemned by the two statutes referred to—
and this irrespective of the motives which actuated any of the de
fendants, masters, or workmen.
But injunctive relief may be had under either statute only at the
instance of the United States or the State of New York, as the case
may be, and therefore complainants can not recover in this suit.
Nat. Fireproofmg Co. v. Mason Builders’ Ass’n [169 Fed. 259; Bui. No.
84, p. 427].
As I can not agree with the contention of the counsel for complain
ants that either subdivision 5 of section 580 or section 530 of the Penal
Law is applicable to the case at bar, there thus remains for consid
eration only subdivision 6 of section 580 of the Penal Law of New
York. Subdivision 6 of section 580 of article 54 of the Penal Law (for
merly section 168, subd. 6, of Penal Code) has long been on the stat
ute book. It provides:
“ If two or more persons conspire to commit any act inju
rious * * * to trade or commerce * * * each of them is
guilty of misdemeanor” (formerly part of section 168 of the Penal
Code).
The prevention of competition in business has been held to be an
act iiyurious to trade in contemplation of law. Kellogg v. Sowerby,
190 N. Y. 370, 83 N. E. 47; People, etc., v. Sheldon, 139 N. Y. 251,
34 N. E. 785.
It is further held by the New York Court of Appeals:

“A civil action is maintainable by one who suffers injury as the
result of a conspiracy forbidden by the criminal law to recover the
damages which he has sustained at the hands of the parties to the
combination.”
See, also, In re Debs, 158 U. S. at page 593,15 Sup. Ct. 900.
Under this statute the motive of the parties is immaterial. The
gist of the offense is the agreement to prevent competition.
But before a private litigant may recover he must show either that
he has suffered special injury as the proximate result of the wrong or
that the conspiracy was directed against him. Cranford v. Tyrrell,
128 N. Y. 341, 28 N. E. 514.
So, here, it is true that the complainants may be injured by the
general situation; but theirs is not a special injury in the sense of
Cranford v. Tyrrell, supra, nor of the Irving case. Assuming, for
the purpose of illustration, the agreement complained of to be un
lawful, it was impersonal and intended to accomplish a general result

DECISIONS

c o u r ts a f f e c t i n g la b o r .

167

as distinguished from selecting these particular complainants as the
object of its operation. National Fireproofing Co. v. Mason Builders'
Ass’n, supra.
In such circumstances the policy of the lawmaking power (here,
Congress and the New York Legislature) seems to be to remit these
problems to the responsible and duly selected public officials. A
decree in a litigation at the instance of the Government or the State
is binding universally to all practical intents and purposes. It is
presumably in the public interest as distinguished from any individual
interest and operates for the benefit of all (as distinguished from
meeting a particular instance of wrong or injury) on a method or
manner of conducting business whether the complaint be against
employer 'or employee.
Of the many cases cited I find none authoritative where a general
business situation in the case of employers or a general trade situation
in the case of employees was corrected by injunction at the instance
of private suitors. Ample remedy is provided at common law or by
statute for recovery of money damage in actions by private litigants.
The courts have time and again extended the equity arm to prevent
the commission or continuance of injury directed against particular
persons and have protected employers against violence and sympa
thetic strikes; but where the purpose of an injunction is, as m the
case at bar, to attempt to control a large body of men generally to
work or not to work on a class of goods or in a kind of manufacture
(as distinguished from a specific instance or instances as above dis
cussed), tne remedy of injunction is not to be granted in a litigation
between private parties.
Finally, it may be remarked that, in any event, on this branch of
the case, the complaint does not seek an injunction against the master
carpenters nor does the proof justify the granting thereof.

Mechanics’ Liens—Constitutionalty of Statute— I nterfer
E ight to Contract—Rittenhouse cfc Embree Co. v. William

ence with

Wrigley, jr., Co., Supreme Court of Illinois (<June 16,1914), 105 Northeastern Reporter, page 748.—This case involved the constitutionality of
the Illinois statute, Laws of 1903, page 238, section 21, providing that
every mechanic or other person who shall furnish any labor or material
for any contractor shall be known as a subcontractor and have a hen
the same as a contractor^ whether or not the contractor could have
obtained a Hen or was by contract or conduct divested of the right
to a hen. The court held that this statute is unconstitutional as de
priving the owner of the right to contract, in a manner not within the
police power of the State, in so far as it gives a right to a hen where
the original contractor has waived his right to lien before any labor
was performed or materials furnished, following its previous opinion
in the case of Kelly v. Johnson, 251 111. 135, 95 N. E. 1068 (Bui.
No. 98, p. 484).

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BULLETIN OF THE BUREAU OF LABOR STATISTICS.

Mechanics' L iens— Liens of Subcontractors— Attorneys’
Fees—Constitutionality of Statute— Becker v. Hopper, Supreme

Court of Wyoming (Jan. 27, 1914), 138 Pacific Reporter, page 179.—
This was an action to recover the value of materials furnished in the
construction of a building, the contract not having been made with
the owner of the building but with his contractor. The statute of
Wyoming, section 3799, Compiled Statutes of 1910, gives the sub
contractor a right to a mechanic’s lien, though there is no direct con
tractual relation with the owner of the property. It was contended
that this was unconstitutional, which contention was rejected by the
court, Judge Beard, who delivered the opinion, saying:

We are content to follow the decisions of the courts of last resort
in a large majority of the States where the question has been decided,
holding that such statutes, giving subcontractors a lien for labor and
materials actually entering mto the structure, do not violate consti
tutional provisions, and are valid. The question was fully and care
fully considered by the circuit court of appeals, sixth circuit, in Jones
v. Ureat Southern Fireproof Hotel Co., 86 Fed. 370, 30 C. C. A. 108,
in an elaborate opinion by Judge Lurton, in which many cases are
reviewed, and that decision was affirmed by the Supreme Court of the
United States. Great Southern Hotel Co. v. Jones, 193 U. S. 532, 24
Sup. Ct. 576, 48 L. Ed. 778, in the footnote to which case many addi
tional cases are cited.
Another question of constitutionality was raised with reference to
a provision of the statute awarding attorneys’ fees to the plaintiff or
complainant if he shall obtain a judgment or decree, no reciprocal
benefit being allowed a successful defendant. As to this the court
said in part:
The decisions are not uniform on this question. In some of the
States similar statutes have been held valid, and in other invalid, as
violative of the Constitution of the United States, which guarantees
to every person “ the equal protection of the law” ; and the provisions
of State constitutions that all laws of a general nature shall have a
uniform operation, and that no special law shall be enacted when a
general law can be made applicable. The decision most frequently
referred to and cited in support of the decisions holding such statutes
unconstitutional is Gulf, etc., Co. v. Ellis, 165 U. S. 150, 17 Sup. Ct.
255 [Bui. No. 11, p. 504], holding invalid a statute of Texas allowing
attorney’s fees to any person having a bona fide claim against a rail
road company for services, or for damages for stock killed.
The opinion then cited Davidson v. Jennings, 27 Colo. 187, 60 Pac.
354, and Mills v. Olsen, 43 Mont. 129, 115 Pac. 33, in which similar
provisions were held unconstitutional, and said:
The reasoning in those cases, supported as it is by the authorities
therein cited, appears to us to be sound, and not shaken by the de
cisions holding the contrary. We are impelled to the conclusion that
the statute awarding attorney’s fees in this class of cases is unconsti
tutional and void.
The judgment in the plaintiff’s favor was therefore modified and
affirmed.

DECISIONS OF COURTS AFFECTING LABOR.

169

Mechanics’ Liens—Materialmen—E ffect o f Stipulation by
Contractor— Hume v. Seattle Dock Co. et al., Supreme Court of
Oregon (Jan. 6, 1914), 137 Pacific Reporter, page 752.— R. A. Hume
filed a lien on the Chamber of Commerce Building owned by the dock
company, for the amount due him on material he had furnished a
contractor for making cement blocks and tile for use in fireproofing
the building. The company contended that Hume had no right of
hen, as its contract with the principal contractor contained a stipu
lation that no mechanics’ Hens should be filed. Hume obtained a
judgment in the circuit court of Multnomah County, Oreg., and this
judgment was affirmed by the supreme court of the State, on appeal.
Judge Eakin, in referring to the contention of the dock company,
said:
There is a great conflict in the cases, accounted for in most instances
by the difference in the relative statutes. Where there is a covenant
in the contract against liens or an express stipulation that hens shall
not be filed, the courts of a great many of the States hold that such
stipulation will not bind the laborer, materialman, or subcontractor
unless he has assented to it. [Cases cited.]

But, on the other hand, a few States follow the holding in Pennsyl
vania, as stated in Schroeder v. Galland et al., 134 Pa. 277, 19 Atl.
632 [since modified by statute], it being held that a mechanic’s hen
can not be filed by a subcontractor for work or material furnished by
him toward the erection of the building, and that the only connection
between the owner and the subcontractor is through and by means
of the contract between the owner and the contractor, so that the
subcontractor is chargeable with notice of all its terms and stipula
tions and is bound thereby. By this rule the laborer is not con
sulted, and he must accept the work under the conditions of the
original contract, in the making of which he had no voice. It was
to protect the workman against such conditions that our hen law
was enacted. A lien is not given through the contractor by subro
gation but is a direct and independent hen to each claimant against
the property. Therefore we conclude that the materialman or
laborer, to be bound by the stipulation in the original contract
against hens, must have assented thereto, or at least notice of that
condition must be brought home to him, which was not done in this
case.
The dock company also took the position that the sand and cement
furnished by Hume, from which the cement blocks and tile were con
structed, were not lienable. In disposing of this contention, Judge
Eakin said:
The question is whether material furnished to the Maclte FireProofing Company at its factory for the purpose of manufacturing
blocks and tile for use in the construction of the Chamber of Com
merce Building was lienable. The appealing defendant contends
that raw material used to manufacture a commercial article is not
lienable, and also that the identity of the material i3 lost. We under
stand the rule to be that the henability of the material does not

170

BULLETIN OF THE BUREAU OF LABOR STATISTICS.

depend on its suitableness in its crude condition for use in construc
tion of the building or on its identity being maintained, but whether
it was furnished especially for the manufacture of something to be
used in such structure. Of course crude material for the manufacture
of an article for the market generally without reference to any par
ticular structure would not be lienable against the building in which
it was used. We think that the material furnished by the plaintiff
in this case was lienable.
Mine Regulations— Constitutionality o f Statute— Status
o f Statutory Commission— Plymouth Coal Co. v. Pennsylvania,

Supreme Court of the United States (Feb. 24, 1914), 84 Supreme Court
Reporter, page 859.—An act of the State of Pennsylvania, section 10 of
article 3, act of June 2, 1891, requires owners of adjoining coal prop
erties to leave a pillar or boundary of coal between their properties
of a sufficient thickness to secure the safety of the employees of one
party in case the other abandons his workings. The necessity for
such a barrier and its dimensions are to be determined by a commis
sion or board consisting of the engineers of the adjoining property
owners and the mine inspector of the district. The inspector of
mines in Luzerne County requested by letter that the Plymouth Coal
Co. have its engineer meet the engineer of a company owning adja
cent property in his office at a time set, to decide as to the thickness
of the barrier pillar to be left between the properties of the two
companies. This the Plymouth company declined to do, whereupon
proceedings were had and an injunction issued requiring a barrier
pillar at least 70 feet wide to be left, subject, however, to subsequent
proceedings as to the necessity for such a pillar on findings by the
engineers of the respective companies and the inspector of the dis
trict. The company's contentions were that the law violated the
“ due process" clause of the fourteenth amendment to the Federal
Constitution, the provision of the statute being “ so crude, uncertain,
and unjust as to constitute a taking of property without due process
of law."
Mr. Justice Pitney, who delivered the opinion of the court, first
declared that the police power of the State reached to the dangerous
business of mining coal, citing a number of cases. The opinion of
the court below was quoted from at some length, showing the con
struction put upon the law in question by the State courts, the con
clusion being that such a pillar must be left unless the persons au
thorized to decide the question as a tribunal of experts should deter
mine that none is needed. The case of Kern v. Delano, 235 Pa. 478,
84 Atl. 452, was also cited as presenting the view of the supreme
court of the State as to the exclusive nature of the jurisdiction of
this board, the court saying that even the action of one property

DECISIONS OF COURTS AFFECTING LABOR.

171

owner in removing the coal from its mine up to the boundary line
could not deprive the statutory tribunal of its authority, or confer
jurisdiction upon a court of equity to determine the width of the
boundary barrier. Proceeding, Mr. Justice Pitney said:
The legislature has not defined with precision the width of the
pillar, and it is very properly admitted that, in the nature of things,
this would have been impossible, because the width necessary in
each case must be determined with reference to the situation of the
particular property. From this it necessarily results that it was
competent for the legislature to lay down a general rule, and then
establish an administrative tribunal with authority to fix the precise
width or thickness of pillar that will suit the necessities of the par
ticular situation, and constitute a compliance with the general rule.
Administrative bodies with authority not essentially different are a
recognized governmental institution. Commissions for the regula
tion of pubhc service corporations are a familiar instance.
It is to be presumed, until the contrary appears, that the adminis
trative body would have acted with reasonable regard to the property
rights of plaintiff in error; and certainly if there had been any arbi
trary exercise of its powers its determination would have been sub
ject to judicial review.
It is further objected that the statute provides for no appeal from
the determination of the tribunal. But in such cases the right of
appeal on other than constitutional grounds may be conferred or
withheld, at the discretion of the legislature. As already pointed
out, an appeal on fundamental grounds in this instance seems to
inhere in the very practice prescribed by the statute for the enforce
ment of the determination of the statutory tribunal. Were this not
expressed in the act, it would none the less be implied, at least so far
as pertains to any violation of rights guaranteed by the fourteenth
amendment.
M in e

R e g u l a t io n s— W

e ig h in g

C o a l — C o n s t it u t io n a l it y

S t a t u t e —Rail cfe

River Coal Co. v. Yaple et al., United States Dis
trict Court, Northern District of Ohio ( May 20, 1914),
Federal
Reporter, page 273.—The coal company named brought action against
the defendants, constituting the Industrial Commission of Ohio, for
an injunction to restrain them from enforcing the provisions of the
Ohio law of February 5, 1914 (104 Ohio Laws, p. 181), entitled “ An
act to regulate the weighing of coal at the mines.” The act provides
that the miners shall be paid for the total weight contained in the
cars sent out by them, but that the amount of impurities shall not
exceed a percentage to be determined by the industrial commission.
The court denied the injunction and sustained the constitutionality
of the law in an opinion from which the following is quoted:
The State constitution was amended by adding to article 2 the fol
lowing sections:
“ Sec. 34. Laws may be passed fixing and regulating hours of

labor, establishing a

m in im u m

wage, and providing for the comfort,

172

BULLETIN OF THE BUREAU OF LABOR STATISTICS.

health, safety and general welfare of all employees; and no other
provision of the constitution shall impair or limit this power.
“ Sec. 36. Laws may be passed * * * to provide for the regu
lation of methods of mining, weighing, measuring and marketing
coal, oil, gas and other minerals.”
Without determining the soundness of the argument that the act,
indirectly at least, establishes a minimum wage, in that it insures the
miner full pay for all coal mined in accordance with the prescribed
regulation, it may not be said that, in supplying an incentive for more
effectually securing the removal of fine coal and coal dust to the sur
face, and thereby minimizing or dissipating the danger arising from
their continued presence in the mines, the act does not provide for
the health, safety, and general welfare of employees.
The Ohio act does not restrict the right of contracting for the
labor of miners by the day, week, month, or year, or in any other
manner (except as to quantity) that the operator may deem proper.
If the miner or loader by the terms of his employment is to be paid
by the ton or other weight, the right of contract is then curtailed to
the extent that he shall be paid according to the total weight of the
coal contained in the mine car, such contents to include, however,
no greater percentage of slate, sulphur, rock, dirt, or other impurities
than is unavoidable, as determined by the industrial commission. It
must be presumed that the industrial commission will perform its
official duty and fix a standard which will exclude all slate, sulphur,
rock, dirt, or other impurities, except such as is unavoidable. The
operator, if given the unrestricted right of contract, could do no more.
If dissatisfied with the commission’s order, which by statute is made
rima facie reasonable and lawful, he may petition for and obtain a
earing before the commission as to those features, and may there
after have a speedy review of its action by the supreme court of the
State.

Minimum Wages—Constitutionality o f Statute— Simpson v.
O’Hara et al., Supreme Court of Oregon (April 28, 1914), 141 Pacific
Reporter, page 158.— This action was brought to test the constitu
tionality of the Oregon minimum wage law. As to the one question
presented in addition to those in the case of Stettler v. O’Hara et al. [see
p. 173], Judge McBride, who delivered the opinion of the court, said:
It is suggested on this appeal that in the case of Stettler v. O’Hara
this court did not pass upon the contention raised in the pleadings,
and upon the argument, that the minimum wage act is inimical to
that portion of section 1 of the fourteenth amendment to the Consti
tution of the United States which provides:
“ No State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States.”
Having determined in the preceding case that the police power of
the State legitimately extended to the right to prevent the employ
ment of women and children for unreasonably long hours or at unrea
sonably small wages, and that the State had the right to use the
machinery of a commission to determine to the extent stated in the
opinion the length of time and at what wages such persons might be

DECISIONS OF COURTS AFFECTING LABOR.

173

employed, it would seem to follow as a natural corollary that the
right to labor for such hours and at such wages as would reasonably
seem to be detrimental to the health or welfare of the community is
not a privilege or immunity of any citizen. Local self-government
lies at the very foundation of freedom, and the private and local
affairs of a community are sacred from the interference of the central
power, unless oppressive and unreasonable encroachment on the lib
erties of the citizen renders such interference imperatively necessary,
and such is not the case here.

Minimum W ages— I ndustrial W elfare Commission—Powers
Commission— Constitutionality of Statute— Stettler v. O'Hara

et al., Industrial Welfare Commission, Supreme Court of Oregon ( Mar.
17, 1914), 139 Pacific Reporter, page 743.— Frank O. Stettler brought
suit against the members of the Industrial Welfare Commission of
Oregon to vacate and annul an order of the commission and enjoin
its enforcement. The constitutionality of Laws of 1913, page 92 (ch.
62), was brought in question by this action. The provisions of the
act and the facts in the case are stated by the court as follows:

On February 17, 1913, the legislative assembly passed an act en
titled “ To protect the lives and health and morals of women and
minor workers, and to establish an industrial welfare commission and
define its powers and duties, and to provide for the fixing of minimum
wages and maximum hours and standard conditions of labor for such
workers, and to provide penalties for violation of this act.” The
title is followed by a declaration of the evils that it is desired to rem
edy, as follows: “ Whereas, the welfare of the State of Oregon requires
that women and minors should be protected from conditions of labor
which have a pernicious effect on their health and morals; and inade
quate wages and unduly long hours and unsanitary conditions of labor
have such a pernicious effect; therefore, be it enacted by the people of
the State of Oregon.” The first section provides: “ It shall be unlaw
ful to employ women or minors in any occupation within the State
of Oregon for unreasonably long hours; and it shall be unlawful to
employ women or minors in any occupation within the State of Ore
gon under any such surroundings or conditions—sanitary or other
wise—as may be detrimental to their health or morals; and it shall
be unlawful to employ women in any occupation within the State of
Oregon for wages which are inadequate to supply the necessary cost
of living and to maintain them in health; ana it shall be unlawful
to employ minors in any occupation within the State of Oregon for
unreasonably low wages.” Then follows the creation of the commis
sion under the name of “ Industrial Welfare Commission,” to be
appointed by the governor, and provisions defining its duties.
Among its duties are those of ascertaining and declaring, in a man
ner prescribed by the statute, standards of employment for women and
children, including rates of wages, hours of labor, and sanitary and
other conditions such as may affect health or morals. From the mat
ters so determined by the commission, there may be no appeal on

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BULLETIN OF THE BUREAU OF LABOR STATISTICS.

any question of fact, but there is a right of appeal from the commis
sion to the circuit court from any ruling or holding on a question of
law included or embodied in any decision or order by the commission,
and from the circuit court to the supreme court.
In due course, the commission made the following order:

The Industrial Welfare Commission of the State of Oregon hereby
orders that no person, firm, corporation, or association owning or
operating any manufacturing establishment in the city of Portland,
Oregon, shall employ any woman in said establishment for more than
nine hours a day, or fifty hours a week; or fix, allow, or permit for
any woman employee in said establishment a noon lunch period of
less than forty-five minutes in length; or employ any experienced
adult woman worker, paid by time rates of payment, in said estab
lishment at a weekly wage of less than $8.64, any lesser amount being
hereby declared inadequate to supply the necessary cost of living to
such woman factory workers, and to maintain them in health.
The amended complaint sets out all these matters in greater detail,
to which the commission replied by way of demurrer on various
grounds, the first of which raises the questions here discussed, namely:
That “ it does not state facts showing that the act or order complained
of is an unreasonable exercise of the police power of the State.” The
demurrer was sustained, and the plaintiff elected to stand on the
amended complaint without other facts being adduced. Judgment
was rendered dismissing the suit, and the plaintiff appealed.

In its opinion, written by Judge Eakin, and upholding the consti
tutionality of the law, the court states that the purpose of the suit is
to have determined judicially whether the regulation by the legisla
ture of the hours of labor during which women may be employed in
any mechanical or manufacturing establishment, mercantile occupa
tion, or other employment requiring continuous physical labor, or
the establishment of a minimum wage to be paid therefor is in viola
tion of the State or Federal Constitution, some of the features of these
questions being practically new to the courts of this country. Cases
on both sides were considered at length, and it was conceded that the
fourteenth amendment to the Federal Constitution is a bar to
such legislation if it can not be justified as a police measure; and it
was assumed that provisions enacted by the State under its police
power that have for their purpose the protection or betterment of
the public health, morals, peace, and welfare, and reasonably tend
to that end, are within the power of the State, notwithstanding they
may apparently conflict with the fourteenth amendment to the Fed
eral Constitution. The principal question for decision therefore was
whether the provisions of the act are within the police power of the
State.
It appeared from the cases cited that statutes having for their
purpose provision for maximum hours of labor for employees upon

DECISIONS OF COURTS AFFECTING LABOR.

175

public works, maximum hours for women and children employed in
mechanical, mercantile, or manufacturing establishments, maximum
hours for laborers in mines or smelters, and the fixing of minimum
wages for laborers upon public works were constitutional, the court
saying that the last is so held in Malette v. Spokane, 137 Pac. 500 (see
p. 191), even where the expense is borne by private individuals, so
that the only question for decision here is as to the power of the legis
lature to fix the minimum wage in such a case. Continuing the court
said:
In speaking of the Oregon 10-hour law, Chief Justice Bean, in the
case of State v. Muller [48 Oreg. 252, 85 Pac. 855, see Bui. No. 67, p.
877], says: “ Such legislation must be taken as expressing the belief
of the legislature, and through it of the people, that the labor of
females in such establishments in excess oi 10 hours in any. one day
is detrimental to health, and injuriously affects the public welfare.
The only question for the court is whether such a regulation or limita
tion has any real or substantial relation to the object sought to be
accomplished, or whether it is ‘ so utterly unreasonable and extrava
gant7as to amount to a mere arbitrary interference with the right to
contract. On this question we are not without authority.”
These are some of the grounds upon which maximum 10-hour laws
are sustained, and we have cited them here as applying with equal
force to sustain the women’s minimum wage law, and as bringing it
within the police power of the legislature. The State should be as
zealous of the morals of its citizens as of their health. The “ whereas
clause” quoted above is a statement of the facts or conclusions con
stituting the necessity for the enactment, and the act proceeds to make
provision to remedy these causes. “ Common belief” and “ common
knowledge” are sufficient to make it palpable and beyond doubt that
the employment of female labor as it has been conducted is highly
detrimental to public morals, and has a strong tendency to corrupt
them. The Legislature of the State of Massachusetts appointed a
commission known as the commission of minimum wage boards to
investigate conditions. In the report of that commission in January,
1912, it is said: “ Women in general are working because of dire neces
sity, and in most cases the combined income of the family is not more
than adequate to meet the family’s cost of living. In these cases it is
not optional with^ the woman to decline low-paid employment.
Every dollar added* to the family income is needed to lighten the bur
den which the rest are carrying. * * * Wherever the wages of
such a woman are less than the cost of living and the reasonable pro
vision for maintaining the worker in health, the industry employing
her is in receipt of the working energy of a human being at less than
its cost, and to that extent is parasitic. The balance must be made
up in some way. It is generally paid by the industry employing the
father. It is sometimes paid in part by future inefficiency on the part
of the worker herself, and by her children, and perhaps in part ulti
mately by charity and the State. * * * If an industry is per
manently dependent for its existence on underpaid labor, its value to
the Commonwealth is questionable.” With this common belief, of
which Mr. Justice Harlan says “ we take judicial notice,” the court can
not say, beyond all question, that the act is a plain, palpable invasion
of rights secured by the fundamental law, and has no real or substan

176

b u lle tin

o f t h e b u rea u o f la b o r s t a t is t ic s .

tial relation to the protection of public health, the public morals, or
public welfare. Every argument put forward to sustain the maxi
mum hours law, or upon which it was established, applies equally in
favor of the constitutionality of the minimum wage law as also
within the police power of the State and as a regulation tending to
guard the public morals, and the public health.
Plaintiff, by his complaint, questions the law also as a.violation of
section 20 of article 1 of the constitution of Oregon. As we under
stand this contention, it is that the order applies to manufacturing
establishments in Portland alone, that other persons in the same
business in other localities are unaffected by it, and that it is dis
criminatory. The law by which plaintiff is bound is contained in
section 1 of the act quoted above. If he will, he can comply with
this provision without any action by the commission, and it applies
to all the State alike. The other provisions of the act are for the
purpose .of ascertaining for those who are not complying with it what
are reasonable hours of labor, and what is a reasonable wage, in the
various occupations and localities in the State to govern in the
application of section 1 of the act, and for the purpose of fixing
penalties for violations thereof. Counsel seems to consider the order
of the commission as a law which the commission has been authorized
to promulgate; but we do not understand this to be its province.
Section 4 provides: “ Said commission is hereby authorized and
empowered to ascertain and declare * * * (a) standards of
hours,” etc. By section 8 it is only after investigation by the com
mission, and when it is of opinion therefrom that any substantial
number of women in any occupation are working unreasonably long
hours or for inadequate wages, that it shall, by means of a conference,
ascertain what is a reasonable number of hours for work and a
minimum rate of wages, when it may make such an order as may be
necessary to adopt such regulation as to hours of work and minimum
wages; and section 1 of the act shall be enforced on that basis.
There is nothing in the record suggesting that there is a substantial
number of woman workers in the same occupation as those included
in the order complained of here working unreasonably long hours or
for an inadequate wage in any other locality than Portland. Other
cases as they are discovered are to be remedied as provided therefor,
but the law is State-wide, and it does not give the plaintiff unequal
protection of the law, nor grant to others privileges denied to him;
neither does it delegate legislative power to the commission. It is
authorized only to ascertain facts that will determine the localities,
businesses, hours, and wages to which the law shall apply. Counsel
urges that the law upon this question interferes with plaintiff’s free
dom of contract, and refers to the language used In re Jacobs, 98
N. Y. 98, to wit: “ Liberty, in its broad sense as understood in this
country, means the right, not only of freedom from actual servitude,
imprisonment, or restraint, but the right of one to use his faculties in
all lawful ways, to live and work where he will,” etc., as a change
brought about by the larger freedom enjoyed in this country, and
guaranteed by the Federal Constitution and the constitution of the
various States in comparison with conditions in the earlier days of
the common law, when it was found necessary to prevent extortion
and oppression by royal proclamation or otherwise, and to establish
reasonable compensation for labor; but he fails to take note that by

DECISIONS OF COURTS AFFECTING LABOR.

177

reason of this larger freedom the tendency is to return to the earlier
conditions of long hours and low wages, so that some classes in some
employments seem to need protection from the same conditions for
which royal proclamation was found necessary. The legislature has
evidently concluded that in certain localities these conditions prevail
even in Oregon; that there are many women employed at inadequate
wages—employment not secured by the agreement of the worker at
satisfactory compensation, but at a wage dictated by the employer.
The worker in such a case has no voice in fixing the hours or wages,
or choice to refuse it, but must accept it or fare worse.
Plaintiff further contends that the statute is void for the reason
that it makes the findings of the commission on all questions of fact
conclusive, and therefore takes his property without due process of
law. Due process of law merely requires such tribunals as are proper
to deal with the subject in hand. Reasonable notice and a fair
opportunity to be heard before some tribunal before it decides the
issues are the essentials of due process of law. It is sufficient for the
protection of his constitutional rights if he has notice and is given
an opportunity at some state of the proceeding to be heard.
We think we should be bound by the judgment of the legislature
that there is a necessity for this act, that it is within the police power
of the State to provide for the protection of the health, morals, and
welfare of women and children, and that the law should be upheld as
constitutional.
Mothers’ Pensions— Construction o f Statu te— W idow— Debrot v. Marion County, Supreme Court of Iowa (Feb. 19, 1914), 145
Northwestern Reporter, page 467.—The district court of Marion County
denied an application of Olive Debrot, a divorced woman, for the sup
port of her three minor children under the mothers' pension act, and
this decision was affirmed by the supreme court. The language of the
act permits payments to the mother of dependent children only when
she is a widow. The court, speaking by Judge Deemer, said in part:

It will be observed that section 2 of the act undertakes to define
the word “ widow," or to extend its ordinary meaning, by providing,
in substance, that a mother whose husband is an inmate of any of the
State institutions shall, for the purposes of the act, be considered a
widow so long as the husband is confined therein. The effect of this
section in broadening the term is, according to all the canons of con
struction, to exclude all other persons who might, by interpretation or
construction, be thought to be within the terms or spirit of the original
act, although not within its letter. The old maxim, “ Expressio unius
est exclusio alterius," is especially applicable to statutes, and of special
•
^ attempt is made to specifically broaden the scope
[Cases cited.]
Aside from this, however, it appears from a reading of all the stat
utes quoted that the common-law liability of both husband and wife
for the support of their children is recognized, and provisions are
made to enforce this liability by appropriate proceedings. This lia
bility of either or both parents to support their minor children is not,
of course, affected by a divorce obtained by one from the other, It
85590°—Bull. 169—15----- 12

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BULLETIN OF THE BUREAU OF LABOR STATISTICS.

continues in spite of tha divorce until the children reach their ma
jority, or until the death of the parents. [Cases cited.]
There is no allegation in the application that the father of the
children is unable to support them; and the only showing with refer
ence to Debrot is that he is living in the State of Connecticut, and
there procured a decree of divorce from his wife on service by publica
tion. This divorce did not sever the relation of parent and child,
although it may have dissolved the marital relations theretofore
existing. We must construe the act in question without reference to
the present residence of one of the parents, for, if the mother is a
widow within the meaning of the statute under which relief is sought,
it is entirely immaterial where her divorced husband lives, or what
his financial ability.
R ailroads— Qualifications of E mployees— Constitutional
Statute— Freight Conductors—Smith v. State of Texas,

ity of

Supreme Court of the United States ( May 11, 1914), 84 Supreme Court
Reporter, page 681.—W. W. Smith was arrested and convicted for
violating chapter 46, Texas Laws of 1909, section 2 of which reads
as follows:
If any person shall act or engage to act as a conductor on a railroad
train in this State without having for two (2) years prior thereto
served or worked in the capacity of a brakeman or conductor on a
freight train on a line of railroad, he shall be deemed guilty of a mis
demeanor, and shall be punished by a fine of not less than $25 nor
more than $500, and each day he so engages shall constitute a separate
offense.
Smith was 47 years of age, and had been in the railroad business for
21 years as fireman and as engineer on freight, mixed and passenger
trains. On July 22, 1910, he acted as conductor of a freight train
between two Texas towns, and this constituted the offense with which
he was charged. He contended that the statute was unconstitutional
as violating the provisions of the fourteenth amendment to the Con
stitution of the United States, and this contention the Supreme Court
upheld, reversing the decision of the court below. Mr. Justice Lamar,
in delivering the court's opinion, cited cases and discussed the general
power of regulation of such employment in the interest of the public,
and continued as follows:
This and the other cases establish, beyond controversy, that, in the
exercise of the police power, the State may prescribe tests and require
a license from those who wish to engage m or remain in a private
calling affecting the public safety. The liberty of contract is, of
course, not unumited; but there is no reason or authority for the
proposition that conditions may be imposed by statute which will
admit some who are competent and arbitrarily exclude others who
are equally competent to labor on terms mutually satisfactory to em
ployer and employee. None of the cases sustains the proposition
that, under the power to secure the public safety, a privileged class

DECISIONS OF COURTS AFFECTING LABOR.

179

can be created and be then given a monopoly of the right to work in
a special or favored position.
The statute here under consideration permits those who had been
freight conductors for two years before the law was passed, and those
who for two years have been freight conductors in other States, to
act in the same capacity in the State of Texas. But barring these
exceptional cases, the act permits brakemen on freight trains to be
promoted to the position of conductor on a freight train, but excludes
all other citizens of the United States from the right to engage in such
service. The statute does not require the brakeman to prove his
fitness, though it does prevent all others from showing that they are
competent. The act prescribes no other qualification for appoint
ment as conductor than that for two years the applicant should have
been a brakeman on a freight train, but affords no opportunity to any
others to show their fitness. It thus absolutely excludes the whole
body of the public, including many railroad men, from the right to
secure employment as conductor on a freight train.

R ailroads— Safety A ppliance A ct— Construction— E lectric
R ailways—Spokane & Inland Empire Railroad Co. v. United States,

United States Circuit Court of Appeals, Ninth Circuit (Jan. 5, 1914),
210 Federal Reporter, page 248.—This was an action against the com
pany named for violation of the safety appliance act of March 2, 1903,
on the ground of failure to provide certain cars with grabirons or
handholds, and of use of certain others without automatic couplers.
The interurban line of the company extends from Spokane, Wash.,
to Coeur d’Alene, Idaho, and is 40 miles in length. The cars enter
and leave Spokane over tracks of the street-railway system of that
city, which is owned by the same company, for a distance of about 1
mile, but do not do a strictly street-railway business over this route.
In affirming the judgment of the court below in favor of the United
States the court of appeals decided that these facts did not bring the
cars within the exception of those “ used on street railways.” It also
overruled the company’s exceptions to the exclusion of expert testi
mony as to whether the kind of handholds which were provided, con
sisting of an opening in the sills or buffers on the ends of the cars,
were safe and suitable appliances. This was held to be a question for
the jury to decide upon the evidence rather than the subject of expert
testimony.
R ailroads— Safety A ppliance A ct— Construction— Switch
ing—Chicago,

Burlington & Quincy Railroad Co. v. United States,
United States Circuit Court of Appeals, Eighth Circuit (Nov. 28,1913),
211 Federal Reporter, page 12.—This was an appeal by the railroad
company from a judgment for the Government in an action for
violation of the safety appliance act. The violations were alleged

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BULLETIN OF THE BUREAU OF LABOR STATISTICS.

in four counts, the first charging the use of a car haying the coupling
apparatus out of repair and inoperative, and the second, third, and
fourth the running of three trains, consisting respectively of 42,
36, and 39 cars, with only 9, 10, and 9 cars having air brakes coupled.
The act fixes a minimum of 50 per cent of the cars of a train, empow
ering the Interstate Commerce Commission to increase this percent
age, and the commission had fixed on 75 per cent.
As to the first count the court of appeals affirmed the judgment
of guilty, holding that section 2 of the act (requiring automatic
couplers) applies to switching operations as well as main-line oper
ations; that a defect at one end of a car is a violation of the statute,
although the coupling apparatus on the next car is in perfect con
dition; and that the movement from one yard to another for the
purpose of repair was not necessary as claimed by the company.
As to the movement of trains without the coupling of the air
brakes on the required number of cars the judgment was reversed.
This movement was between two yards of the railroad at Kansas
City, Mo., on opposite sides of the Missouri River and 2 miles apart.
The words “ on its line,” “ in moving interstate traffic,” “ to run
any such train in such traffic,” were held to be properly applicable
to trains moving from point to point rather than to switching oper
ations, and the great inconvenience, and delay and congestion of
traffic that would result from a compulsory observance of the pro
vision of the section in such cases were pointed out. Two of the
three judges sitting on the case concurred in this opinion. Judge
Amidon delivered the opinion, and after a full discussion of the matter,
which is too long for quotation here, said:
The identical question which is here presented was before the
circuit court for the third circuit in Erie Railroad Co. v. United
States, 197 Fed. 287 [see Bui. No. 112, p. 128], and, we think, was
there properly decided, notwithstanding its criticism in United
States v. Pere Marquette R. R. Co., 211 Fed. 220 [see this page below].
Judge Hook rendered a dissenting opinion, in which he argued
that since these trains moved over the main line of the railroad, the
danger from lack of control, and also from the necessity of brakemen
standing on the tops of the cars, would be as great as in the case of
a through train over the same route and distance.

R ailroads— Safety A ppliance A ct— Construction— Switch
ing—

United States v. Pere Marquette Railroad Co., United States District
Court, Western District of Michigan (Sept. 5,1913) ,211 Federal Reporter,
page 220.—This was an action by the United States against the com
pany named for violation of the safety appliance act. The charges
resulted from the movement of a train with certain cars whose coup

DECISIONS OF COURTS AFFECTING LABOR.

181

ling apparatus was defective, which train also did not have the air
coupled up so that the brakes could be operated from the engine, for
a distance of 2 miles over the main track of the railroad between two
yards at Grand Rapids. The railroad company was adjudged guilty
of these charges. As to the matter of the air brakes, Judge Sessions,
in delivering the opinion, said in part:
Counsel for defendant rely upon the case of Erie R. Co. v. United
States, 197 Fed. 287 [see Bin. No. 112, p. 128], decided by the circuit
court of appeals in the third circuit. That case differs from the pres
ent one in some material respects, but in the main it supports defend
ant’s contention. I have the profoundest respect for that court and
its decisions, and it is with much diffidence and hesitation that I feel
compelled to reach a different conclusion. In the Erie case, however,
the court seems to have entirely overlooked, ignored, and disregarded
the controlling effect of the modifying and explanatory act of 1903.
After careful and patient study, I am also convinced that the decision
in the Erie case is in conflict with both the spirit and the letter of the
utterances of the Supreme Court.

R ailroads— Safety A ppliance A ct— Construction T rains—

La Mere v. Railway Transfer Co., Supreme Court of Minnesota, H5
Northwestern Reporter, page 1068.—The plaintiff, Joseph La Mere,
a switchman, was injured by being thrown from a car being hauled
with several others by the defendant company, by an emergency
stop which it was claimed was unnecessarily and negligently made
by the engineer. The air brakes were connected on the string of
cars. The most interesting point involved is as to whether this
was a train in the meaning of the Federal safety appliance act.
The conditions are shown in the following quotation from the opinion
written by Judge Dibell, holding that the law does apply, and affirm
ing a verdict of the district court of Hennepin County in favor of
the plaintiff:
The defendant is a transfer company. It is conceded that the
operation in which it and the plaintiff were engaged at the time of
his injury was an interstate operation. It was taking some 15
cars, all or all except one loaded, sometimes called a “ drag,” from
its yards to the Chicago, Milwaukee & St. Paul yards, referred to
sometimes as the Milwaukee Transfer. An important question is
whether these cars with the locomotive hauling them constituted a
train within the meaning of the safety appliance act. The cars
had been loaded at the mills and switched onto track numbered 7
which was set apart for the use of the Milwaukee road.
The defendant hauled the transfers for four roads. It connected
the air on all trains except those of the Milwaukee. The Milwaukee
was the shorter haul. The danger from not using air in the Milwaukee
haul may have been different in degree from the danger in other
hauls, and sometimes it may have been different in kind, and it may
have differed at times in degree and in kind from a main-line haul,

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BULLETIN OF THE BUREAU OF LABOR STATISTICS.

at times being greater and at times less. In general the dangers were
similar. They came from the fact that the engineer, without the air
connected, was not in control of his train, ana what the particular
result might be on a long haul or a short haul, or on a main-track
line, or on a haul through the transfer yards, either to the trainmen
or to the public, no one could foretell.
It is not important that no caboose was attached. It is not impor
tant that when the train got to the Milwaukee yards the cars might
be rearranged and go to different destinations as parts of different
trains. It is not important that the engine was in a backward instead
of a forward movement. The cars were on an interstate journey
when they left track 7 and they made up a train. The trainmen
were subject to the dangers against which the safety appliance act
sought to guard them by requiring the air to be connected. The
cars and engine come within the ordinary definition of a train.

Railroads— Safety Appliances— Constitutionality o f Stat
ute— E lectric H eadlights— Atlantic Coast Line Railroad Co. v.

Georgia., United States Supreme Court (June 8, 1914), $4 Supreme
Court Reporter, page 829.— The Court of Appeals of the State of
Georgia affirmed the judgment of the city court of Richmond Countyy
which had convicted the railroad company named of violation of
the provisions of the Civil Code of Georgia, sections 2697 and 2698,
which statute requires railroad companies to equip each locomotive
running on their main line after dark with a headlight which shall
consume not less than 300 watts at the arc, and with a reflector not
less than 23 inches in diameter, and to keep the same in good condi
tion. The statute excepts tramroads, mill roads, and roads engaged
principally in lumber or logging transportation in connection with
mills. The Supreme Court also affirmed the judgment of con
viction.

The railroad company contended that the statute was unconstitu
tional in depriving it of liberty of contract, and of property without
due process of law, and of the equal protection of the laws; and also
that the restriction was an interference with interstate commerce.
The court decided that, although a portion of the equipment of
the company must go into disuse on account of the law, the provi
sions were justified under the police power, because they relate to
safety in operation. It also decided that equal protection of the
laws was not refused, even if receivers should be held to be without
its provisions, in view of the temporary and special character of
their management; and with regard to the matter of the exemption
of tramroads, etc., speaking by Mr. Justice Hughes, said:
As to the exceptions made by the statute of tramroads, mill roads,
etc., it is impossible to say that the differences with respect to opera
tion and traffic conditions did not present a reasonable basis for
classification.

DECISIONS OF COURTS AFFECTING LABOR.

183

The question of interference with interstate commerce was also
raised, the locomotive in the case having been used at the time of
the violation complained of in interstate traffic. It was held that
the States were not denied their right to regulate the operation of
railroad trains within their limits, even though such trains were used
in interstate commerce, in the absence of Federal legislation in the
special field of the statute.
“ The requirements of a State, of course, must not be arbitrary, or
pass beyond the limits of a fair judgment as to what the exigency
demands, but they are not invalid because another State, in the
exercise of a similar power, may not impose the same regulation,”
the remedy for conflict being in the enactment of a paramount reg
ulation by congressional action.
R ailroads— Safety A ppliances— R epair— United States v. Chesa
peake & O.Ry.Co., United States Circuit Court of Appeals, Fourth Circuit
(Feb. 27,1914), 813 Federal Reporter, page 748.— Action was brought
against the company named for violation of the safety appliance act in
hauling a car with its coupling apparatus defective because of a broken
chain. The company set up as a defense the provision which permits
a car which becomes defective in service to be carried to the nearest
available point for the purpose of making repairs. The car in ques
tion was discovered to be out of repair on arriving at the Seventeenth
Street yard of the company in Richmond, Ya., on February 29, 1912.
After being switched about several times it wa3 hauled to the Broad
Street yard, three-fourths of a mile away, and placed on a sidetrack for
12 days, where it had to be moved a number of times. It was then
taken back to the Seventeenth Street yard and repaired. The
repairs took about 10 minutes, and it appeared that they could as
well have been made in the first place, that there was no necessity
for the car to be taken to a shop, and that the Seventeenth Street
yard had better facilities for making the repairs than the other yard.
The court held that the danger from a car with a defective coupling
is as great in movements about the yards as on the main line, and that
the company was guilty of the offense charged.

Seamen— F ailure to P ay W ages— Construction of Statute—

The 11City of Montgomery,” United States District Court, Southern Dis
trict of New York (Dec. 15, 1913), 210 Federal Reporter, page 673.—
This was a suit by a seaman to recover the penalty prescribed by U. S.
Comp. Stat. 1901, page 3077, for nonpayment of wages within two
days after the termination of his employment, as required by the
statute. The articles under which the seaman shipped contained a

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BULLETIN OP THE BUREAU OF LABOR STATISTICS.

provision that wages should be payable after one month from the be
ginning of the voyage, even though it may have terminated sooner.
The court decided that such an agreement was not valid in view of
the statute. Judge Mayer, speaking for the court, quoted the statute
in question and said in part:
It is true that the statute does not in terms declare void an agree
ment in contravention thereof, but, in speaking of the termination
of “ the agreement,” it is clear that Congress had in mind that, no
matter what “ the agreement” was, the seamen's wages must be
paid within two days after the man had duly performed the service
required by “ the agreement.” Holding this view, I am of opinion
that the statute is controlling, and that the provision in the articles
here discussed was void and of no effect.

Strikes— Mention in A dvertisements for E mployees— Consti
Statute— Commonwealth v. Libbey, Supreme Judi

tutionality of

cial Court of Massachusetts (Jan. 9,1914), 103 Northeastern Reporter,
page 923.—Walter M. Libbey and J. F. Crane were separately con
victed in the superior court of Essex County of advertising for
employees without stating that a strike existed, and carried their
cases to the supreme judicial court on exceptions. The latter court
upheld the decision of the court below.

The statute involved is chapter 445 of the Acts of 1910, which
requires that every employer who, during a strike or labor disturbance
among his employees, publicly advertises in newspapers for persons
to work in place of the strikers “ shall plainly and explicitly mention
in such advertisements * * * that a strike, lockout, or other labor
disturbance exists.” The chief question was as to the constitutionality
of this statute. In delivering the opinion of the court Judge Rugg
said:
The legislature may “ make, ordain and establish all manner of
wholesome orders, laws, statutes and ordinances” not repugnant to
the constitution. Part 2, ch. 1, sec. 1, art. 4, of the constitution.
This is strong language, and it always has been interpreted broadly
in its application to statutes enacted from time to time by the legis
lature to satisfy the changing needs of society. But the constitution
also guarantees to all citizens the blessings of liberty and the right
to happiness and safety, and the right to acquire and possess property.
In general terms also the Federal Constitution gives substantially
the same assurances. The liberty which thus has such ample con
stitutional security does not signify absolute and unrestrained license
to follow the dictates of an unbridled will. Constitutional freedom
means a liberty regulated by law.
This statute is not open to the objection that it is class legislation.
It applies to all employers similarly circumstanced. It is not arbitrary,
and has a reasonable relation to the public interests. It does not
destroy equality before the law, nor create special privileges. [Cases
cited.]"

DECISIONS OF COURTS AFFECTING LABOR.

185

It is urged that it hampers the right to conduct business beyond
what is reasonable, and thus violates the right to acquire and possess
property and to make contracts to that end. The situation in an
industrial enterprise, when a strike, lockout or other labor disturbance
is in progress, manifestly may be c^uite different from the standpoint of
prospective workmen from what it is when peaceful conditions obtain.
The social and economic surroundings of an employment might be
attractive in the absence of labor troubles, and repulsive when they
exist, to considerable numbers of men. Possibly the opposite may be
true as to others in society. The disinclination on the part of some to
seek employment in the place of strikers may arise from various
causes. In view of these considerations it may have been thought
that laborers ought to be given a true statement of the condition of
labor in this regard, and that any advertisement should give this fact
if it exists, as a protection to those who might answer either from a dis
tance or from the neighborhood. It can not be pronounced unreason
able on the part of the legislature to take measures to shield those who
labor from being induced in ignorance to seek employment in a place
where are the features prevailing in a strike. The statute seems to
have a reasonable relation to the accomplishment of the end, and the
end itself is one within the scope of legislation.
It has been argued that the purpose of the statute is to harass the
employer. But this can not be presumed unless no other rational
interpretation is possible. Every assumption is made in favor of the
constitutionality of an enactment of the legislature. This statute
has a legitimate purpose and effect in protecting innocent searchers
after work from being invited to seek employment where a strike is in
progress in ignorance of the true state of affairs. It must be pre
sumed that this was the real purpose of the legislative department.
The statute is not unreasonable in its terms. It requires no more
than the statement of a fact, a representation of the truth, in the adver
tisement or solicitation for employees. It does not undertake to con
fine the statement to any form of words. It may include such amplifi
cation in respect to the details of the truth as the employer desires.
If he is suffering from an oppressive or unlawful strike, that fact may
be stated. The statute being enacted for the protection of innocent
third persons, it is of no consequence whether the strike is justifiable
or wrongful. The protection of the public is as important in the one
case as in the other. This being the purpose of the act, it can not be
said that it is invalid because it requires the announcement of the
illegal act of others as a condition precedent to the effort to employ
labor. If sometimes this may happen, it is incidental and not the
necessary aim of the statute.
The statute does not undertake to deny to an employer whose men
are on a strike freedom of action in employing others to take their
places provided he tells the facts, and hence Mathews v. People,
202 111. 389, 67 N. E. 28, 63 L. R. A. 73, 95 Am. St. Rep. 241 [Bui.
No. 50, p. 188], is not applicable.
An attack also is made on thp constitutionality of St. 1912, ch. 545,
whichprovides that Stat. 1910,ch. 445, “ shallceaseto be operativewhen
the State board of conciliation and arbitration shall determine that the
business of the employer, in respect to which the strike or other labor
trouble occurred, is being carried on * * * to the normal and
usual extent. Said board shall determine this question as soon as may

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BULLETIN OF THE BUREAU OF LABOR STATISTICS.

be, upon the application of the employer.” The argument in support
of this contention is founded on the assumption that the only way in
which the termination of the labor trouble can be proved is by a
finding of the board as pointed out in the statute. It is true that this
statute relates to evidence of the cessation of the strike. But it does
not undertake to provide the exclusive method of determining when
a strike is at an ena. That may be proved by any competent evidence.
If a finding is made by the board that the strike is at an end, then there
is no limitation upon the right of the employer to advertise for help.
If no finding is made or even if a finding adverse to the employer is
made, it is not binding upon an employer. The fact of the cessation
of the strike may be proved in any legal way. In any prosecution it
is necessary for the Commonwealth to establish that a labor disturb
ance existed at the time of the advertisement by competent evidence
outside the statute. It follows that thus interpreted there is no
vesting of judicial functions in a commission by the statute and that
this part of it is not open to objection on constitutional grounds.
The statute is not confined in its operation to cases where the
advertisement is printed in more than one newspaper. The plural
word “ newspapers” is used in a generic sense ana applies to a publi
cation in one or more papers.

Sunday L abor— Class L egislation— Constitutionality of City
O rdinance— City of Marengo v. Rowland, Supreme Court of Illinois
(June 4, 1914), 105 Northeastern Reporter, page 285.—The city of
Marengo, III., brought action against John Rowland for violation of
an ordinance prohibiting the keeping open of barber shops on Sunday.
The court affirmed a judgment for the defendant, and declared the
ordinance unconstitutional as prohibiting a single business but
permitting all others to be carried on. The case of City of Springfield
v. Richter, 257 III. 580, 101 N. E. 192 (see Bui. No. 152, p. 169), was
distinguished because the ordinance passed upon in that case forbade
any usual business or labor, with certain exceptions held to be
necessary; and similar ordinances held valid in other States were held
not in point, because the statutes of those States forbid all work on
the Sabbath, while that of Illinois only forbids the disturbance of the
peace and good order of society by labor or amusement.

U nion L abor— R ate of W ages— L abor on Public W orks—
Constitutionality of Statute— Wright v. Hoctor et al., Supreme

Court of Nebraska (Feb. IS, 1914), 145 Northwestern Reporter, page
704.—In this case the district court of Douglas County, at the instance
of one Alonzo A. Wright, had enjoined the mayor, the members of
the city council, and the city clerk of South Omaha, their successors
in office, and certain other defendants from carrying out certain con
tracts relating to labor to be performed on the streets, sewers, etc., of

DECISIONS OF COURTS AFFECTING LABOR.

187

the city. A statute of the State undertook to provide that work done
on streets, sewers, parks, etc., in cities of the class governed by the act
(of which South Omaha was one), should be done by union labor and
paid for at the rate of two dollars per day, eight hours to constitute a
day’s labor. (Laws of 1909, ch. 17, sec. 123.) It was claimed that,
because of this statute and the insertion of a reference to it in the
advertisement for bids (as the statute provides), competition in respect
to the proposed improvements was restricted to such contractors as
were able to employ union labor, and that fair and free competition was
destroyed; that the union labor provision was unconstitutional, and
that the rate of wages prescribed and required to be paid was excessive
and unreasonable, increasing the cost of improvements to the plaintiff
and other taxpayers of the city; for all which reasons the contracts
were null and void. The provision as to an eight-hour day was also
attacked, but was not ruled upon by the court.
The court below had held the union labor provision unconstitu
tional, which finding the supreme court affirmed, Judge Hamer,
speaking for the court, saying in part:
It is now argued that the provision in the law concerning union
labor will make no difference in the cost of improvements. While
this may be true, the method proposed is undemocratic. The
tendency to exclude bidders by providing that laborers shall belong
to a certain restricted class is to prevent competition and increase the
probable cost of improvements.
It is argued that the law.can not be unconstitutional for the
reason alleged that no man may put his finger upon that section of
the constitution which forbids this manner of lettmg the contract.
The trial judge gave great care and study to the preparation of his
opinion, and it is deserving of careful consideration.
Judge Hamer then reviewed a number of decisions involving like
principles to the case in hand which had been considered below,
among them being Adams v. Brenan, 177 III. 194, 52 N. E. 314
(seeBui. No.22, p.478), Atlantan. Stein, 111Ga.789, 36 S. E. 932,and
cases showing the attitude of the courts of last resort in Iowa, Montana,
New Jersey, Tennessee, etc., in all of which such provisions were
held objectionable as tending to create monopoly and restrict com
petition. Continuing, the court said:
It is maintained in the brief of defendants that the digging in
the streets contemplated by the contracts is common labor. If
that be true, that is an additional reason why the contract should
not exclude it in favor of union labor. The common people would
be given an opportunity to perform common labor. They are
interested in the question as wage earners. They need the labor
for the support of themselves and their families. If they are denied
a chance to support themselves, they suffer directly, and the State
is injured by their loss, the taxpayer is liable to be compelled to pay
more taxes than he otherwise would, and he therefore sustains an

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BULLETIN OF THE BUREAU OF LABOR STATISTICS.

injury, and lack of prosperity to both wage earner and taxpayer
brings loss and lack of prosperity to the State. The thing done is
contrary to the spirit of our Government, which contemplates the
best that may be honestly and fairly done for all its citizens. A
favor to one citizen ought not to be sustained by the burden placed
upon the shoulders of another. Therefore in this case the unskilled
laborer who can dig in the streets ought not to be cut off from that
work by a provision which calls for union labor; neither should the
taxpayer be compelled to pay a higher rate because only union
labor can be employed by the contractor. And there should be no
fixed rate of wages provided by the legislature without reference
to the going wages for that kind of work at the time and place where
it is to be performed. The contracts were not let so as to admit of
competition. Section 128, ch. 17, Laws of 1909, contains a provision
that contracts of this character shall be awarded “ to the lowest respon
sible bidder of the class [of material] so designated.” The manner
of letting these contracts would take the private property of the
taxpayer without due process of law and is in violation of section
3, article 1, of the Bill of Rights.
We are of the opinion that the evidence fully sustains the findings
and judgment of the district court on behalf of the plaintiff; that the
so-called union labor provision found in the law governing cities
of the South Omaha class is unconstitutional and void; that the
tendency of such provision and its insertion in the advertisements
calling for bids is to limit and restrict the sources of labor and to
limit and restrict competitive bidding; that the contracts are void
so far as they have been so declared by the judgment of the district
court; and that the plaintiff is entitled to the relief given him.
Motions for rehearing were later overruled by the court; the
opinion on rehearing, also written by Judge Hamer, is found in 146
Northwestern Reporter, page 997.
Wages— Assignment— Consent o f W ife — Constitutionality
o f Statu te— Cleveland, Cincinnati, Chicago & St. Louis Railway

Co. et al. v. Marshall, Supreme Court of Indiana (June 9, 1914), 105
Northeastern Reporter, page 570.—H. B. Marshall, an employee of
the railway company named, made an assignment of his wages in
favor of the two defendants named Scanlan, to pay for a watch.
The assignment provided that the total amount should be due on
discharge, and when he was discharged on October 16, 1912, nearly
the whole of his wages for the portion of a month were held on the
assignment. He brought action against the company for the wages,
and, having offered to return the watch and pay a certain amount in
settlement, against the other defendants for cancellation of the
assignment. Marshall was a married man, living with his wife, and
Acts of 1909, ch. 34, sec. 4, prohibits the assignment of wages by a mar
ried man without his wife’s consent in writing and acknowledged.
It was contended by the defense that this section applied only to

DECISIONS OF COURTS AFFECTING LABOR.

189

wage brokers, to whom sections 2 and 3 of the same act were limited;
also, that the provision was unconstitutional. The court denied
both of these contentions, and affirmed a judgment of the superior
court of Marion County in favor of the plaintiff. The following
quotation is from the opinion as delivered by Judge Morris:
Improvident debts of the head of the family constitute an im
portant factor, not only in the destitution and illiteracy of the State’s
youth, but hinders the normal development of their physical,
mental, and moral powers. By restricting the power of the house
holder to pledge his future earnings and those which he has not yet
received, the tendency to heedless extravagance is measurably cur
tailed, and we are of the opinion that the legislation here in contro
versy is well within the limits of the State’s police power, and offends
no provision of either State or Federal constitution.

W ages— Payment—R edemption of Scrip— Constitutionality
Statute—Regan v. Tremont Lumber Co., Supreme Court of

Louisiana (Dec. 15, 1918), 63 Southern Reporter, page 874.—The
plaintiff Regan recovered judgment from the company named, bas
ing the demand on the ownership of a large number of coupon books
issued by the company to laborers and employees in lieu of money
due them for labor and services performed. Act No. 228 of 1908
provides that such checks, etc., shall be payable in money and to the
bearer, on demand, and that on failure so to pay recovery may be
had with legal interest and 10 per cent attorney’s fees. The consti
tutionality of the statute was attacked by the company on the
grounds that it impairs the obligation of contracts, deprives of prop
erty without due process of law, and denies equal protection of the
laws. In affirming the judgment of the court below, the court,
speaking by Judge Land, said:
As the questions raised are Federal, it is proper to consider the
adjudications of the Supreme Court of the United States on the sub
ject matter.
In Knoxville Iron Co. v. Harbison, 183 U. S. 13, 22 Sup. Ct. 1 [Bui.
No. 40, p. 619], the syllabus reads as follows:
“ The act of the Legislature of the State of Tennessee * * * of
1899 (ch. 11, p. 17), requiring the redemption in cash of store
orders or other evidences of indebtedness issued by employers, * * *
does not conflict with any provisions of the Constitution of the United
States relating to contracts.”
The provisions of the Tennessee statute are, in substance, similar
to the provisions of act No. 228 of 1908. The constitutionality of
this statute was affirmed both by the court of last resort of the State
of Tennessee, and also by the Supreme Court of the United States.
We are constrained to follow that decision as the law of the land
until it is reversed by the high court by which it was rendered.

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BULLETIN OF THE BUREAU OF LABOR STATISTICS.

W ages— Payment in Scrip— Constitutionality of Statute—

Eeokee Consolidated Colce Co. v. Taylor et al., United States Supreme
Court (June 8, 1914), 84 Supreme Court Reporter, page 856.— Taylor
and others brought action to recover in cash on store orders payable
only in merchandise, issued in payment for labor. A Virginia
statute forbids the issuance by mining and manufacturing com
panies of orders not purporting to be redeemable for their face value
in money. The objection was urged that the statute is class legisla
tion, and inconsistent with the fourteenth amendment. The Court
of Appeals of Virginia affirmed a judgment in favor of the plaintiffs,
and the Supreme Court also affirmed these judgments in an opinion
by Mr. Justice Holmes from which the following is quoted:

While there are differences of opinion as to the degree and kind
of discrimination permitted by the fourteenth amendment, it is
established by repeated decisions that a statute aimed at what is
deemed an evil, and hitting it presumably where experience shows it
to be most felt, is not to be upset by thinking up and enumerating
other instances to which it might have been applied equally well, so
far as the court can see. That is for the legislature to judge unless
the case is very clear. [Cases cited.] The suggestion that others
besides mining and manufacturing companies may keep shops and
pay their workmen with orders on themselves for merchandise is not
enough to overthrow a law that must be presumed to be deemed by
the legislature coextensive with the practical need.

W ages— Payment on D emand A fter D ischarge— Construction
Statute— Piecework— Kirven v. Wilds et al., Supreme Court of

South Carolina (Aug. 24, 1914), &2 Southeastern Reporter, page 672.—
John K. Kirven, who had been a pieceworker, recovered judgment
against his employers in the circuit court of Kershaw County for
$100, the accumulated penalty provided by Civ. Code S. C. 1912,
sec. 3812, for failure to pay wages due him on demand after his dis
charge. This judgment was affirmed, the court, after showing that
there was ample evidence that the plaintiff was discharged, saying:
The only other question is whether plaintiff was a laboier for
wages, so as to bring him within the provisions of the statute. He
testified that he was paid according to the number of “ hanks” he
made. Wages may be measured by the piece as well as by the time
employed. (40 Cyc. 240.)
W ages— Payment on

T ermination of E mployment— R ail
Statute — Cleveland, Cincinnati, Chi

roads— Constitutionality of

cago & St. Louis Railway Co. v. Schuler, Supreme Court of Indiana
(June 12,1914), 105 Northeastern Reporter, page 567.—Section 2683c,
Bums’ Ann. Stat. 1914, reads as follows:

DECISIONS OF COURTS AFFECTING LABOR.

191

Any railroad company employing men shall within seventy-two
hours after any employee voluntarily quits such service or is dis
charged, pay to such employee in full the wages due to the time of
quitting of such service: Provided, demand is made therefor and
upon failure so to do, such railroad company shall be liable to such
employee for each day until such payment is made in a sum equal
to the daily wage of the employee.
George E. Schuler brought action under this provision, and judg
ment was in his favoi in the superior court of Madison County. On
appeal this judgment was reversed and the statute declared uncon
stitutional. Judge Spencer, in delivering the opinion of the court,
said:
There is nothing in the act under consideration which suggests a
valid basis for the classification which it makes. It is not designed
to regulate the business of common carriers, nor has it any reference
to the hazards peculiar to the operation of railroads. In brief, no
good reason appears for requiring railroads to pay in accordance
with the provisions of this act those who leave their service, while
manufacturing corporations and other employers of labor are excepted
from its operation.
It will be noted that the act applies to any employee who volun
tarily auits the service of a railroad, as well as the one who is dis
charged. It must therefore apply as well to one who voluntarily
quits the service without just cause of complaint as to one who is
discharged by the corporation without any reason therefor. If the
act applied only to discharged employees a different question would
be presented. When the act was passed there was no statute relating
to the time of payment of wages of railroad employees, but in 1913
(Acts 1913, p. 47; section 7989a, Bums 1914) a statute was passed
requiring all employers of labor to pay their employees semimonthly.
If the act in controversy can be held valid, we would have a present
situation where the faithful employee who is working regularly can
only demand payment of his wages semimonthly, while one who
voluntarily quits the service of a railroad company without cause
must be paid in 72 hours. There is no just reason for such discrim
ination. The classification made in the act before us is arbitrary
and without any valid reason for its basis.

W ages— R ates on Public W orks— Municipal Ordinance—
Constitutionality— P owers of Municipal Corporations— Ma-

lette v. City of Spokane, Supreme Court of Washington (Dec. 81,1918),
1S7 Pacific Reporter, page. 496.—This case was before the full court
on a rehearing following a decision by the first division, which was
at this time reversed. The earlier opinion was reported in Bulletin
No. 112, on page 132, the statement of facts being as follows:
C. E. Malette was a property holder in the city of Spokane, against
whose property an assessment was made to pay the cost of the laying
of a sewer in a street on which his property abutted. An ordinance

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BULLETIN OF THE BUREAU OF LABOR STATISTICS.

of the city, following the State law, had declared eight hours to be
a day's work on any work done for the city, and further fixed a wage
rate of not less than $2.75 per day for all laborers employed by the
day either directly or indirectly by the city: this rate was subse
quently raised to a minimum of $3 per day of eight hours. Current
rates of wages for labor of the class employed ranged at the time
from $1.85 to $2.25 for a 10-hour day, and Malette objected to the
assessment for the cost of the sewer construction on account of the
excess of the wages named in the ordinance over the current rates
of wages, 59 per cent of the cost of the work being paid out to common
labor. The contentions of Malette were that the ordinance was unrea
sonable, contrary to public policy, and oppressive; and secondly,
that the assessment was in contravention of the constitution of the
State and of the United States in taking property without compensa
tion and without due process of law.
The trial court, the superior court of Spokane County, had given
judgment in favor of the city, sustaining the ordinance, which judg
ment had been reversed by the first division of the supreme court.
In taking this position, the supreme court stated that it did not pass
upon the constitutional questions involved, but held that an object
ing property owner could avail himself of the privilege of insisting
that the assessment upon him should be based upon the legitimate
cost of the work, regarding the city as the agent given for a season
“ the privilege of disbursing the taxpayers' money, money that is not
city nor public money, but money of the individual."
The present hearing was before the full court, the case being much
more thoroughly argued than on the first presentation. Two of the
judges concurring in the earlier opinion concurred at the present
time in overruling the earlier decision, while three of the nine judges
constituting the full bench dissented from the present opinion. The
opinion in this case was delivered by Judge Ellis, and discusses exten
sively the points involved and the related cases. Dependence is
largely placed in the cases State v. Atkin, 64 Kan. 174, 67 Pac. 519
(Bui. No. 40, p. 604); Atkin v. Kansas, 191 U. S. 207, 24 Sup. Ct. 124
(Bui. No. 50, p. 177); and Byars v. State, 2 Okl. Cr. 481, 102 Pac. 804
(Bui. No. 86, p. 332). These were cases in which eight-hour legisla
tion was considered, which, as is pointed out in the present opinion,
is in itself legislation tending to fix a minimum daily wage above the
current rate for the same class of work, inasmuch as the law con
templates no reduction in the per diem wages currently paid in the
locality where the work is performed, but does reduce the customary
working time. It was held that this point was still further empha
sized by the provisions of the Kansas statute that overtime work
should be paid for at a rate one and one-half times that allowed
for regular service. In this connection Judge Ellis said:

DECISIONS OF COURTS AFFECTING LABOR.

193

Assuming, as seems to be assumed both in argument and in the
original opinion in the case before us, that any minimum of wages
fixed above the current rate necessarily increases the cost of the work
(a thing by no means certain), then it can not be denied that a pro
vision such as above quoted from the Kansas law would have pre- cisely the same effect. It is too plain for argument that every maxi
mum hours law prescribing less than the number of hours usually
constituting a day’s labor, when coupled with a provision for mini
mum pay not less than the current rate for a day’s labor, is a mini
mum wage law pure and simple, prescribing a wage above the current
rate for the same class of labor. Every objection, therefore, which
can be logically or legally raised against an undisguised m in im u m
wage law, can be advanced, just as logically and just , as legally,
against the usual eight-hour law.
A considerable quotation was made from the opinion in the case
Atkin v. Kansas, in which it was said by Mr. Justice Harlan, who deliv
ered the opinion, that “ It belongs to the State, as the guardian and
trustee for its people, and having control of its affairs, to prescribe
the conditions upon which it will permit public work to be done on
its behalf, or on behalf of its municipalities. ’K Following this Judge
ElKs said:
While the Supreme Court did not deem it necessary to place the
decision on any other ground than the power of the State to prescribe
the terms upon which contracts with it or its agent, the municipality,
might be made, it is significant that it also suggests another ground,
namely, the promotion of the general welfare of employees, mechan
ics, and workmen, upon whom rests a portion of the burdens of gov
ernment, ” and as tending to the production of better citizenship,
thus unmistakably intimating that the act might also be soundly
sustained as an exercise of the police power
It was contended on behalf of the plaintiff, Malette, that the fact
that the present case arose at the instance of a protesting taxpayer
or property holder took it out of the class of cases cited and that the
nature of the payment by assessments removed it from the effect of
the decisions referred to. Cases were cited showing the views of
various courts on the point involved, the doctrine being laid down
that “ the manner of payment can not change the character of the
work.” Judge Ellis then said:
The foregoing authorities make it clear that, if street-improvement
work paid for by special assessments is public work performed under
authority conferred by the sovereign power of the State, no consti
tutional guaranty is impaired by the ordinance in question. That
such work is public work can not be questioned. The power of the
city to levy special assessments to pay for public work is referable
solely to the sovereign power of taxation delegated to it by the State
under direction of the constitution. We must not confuse the mode
of payment for public work with the character of the work. We
must not confound the mode of payment with an ownership or prop
erty interest in the subject matter to which the work is applied.
85590°— Bull. 169— 15------ 13

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BULLETIN OP THE BUREAU OF LABOR STATISTICS.

We must not confound the mode of taxation with the purpose of
taxation. The work of improving a public street is public work and
the street is a public street. The special tax is to pay for public
work. The right to levy a special tax to pay for public work rests not
in the citizen’s property interest in the work itself, but only in the
special benefit of the work to his property. The work is none the
less public work done by the city as an agency of the State, though
done also in a quasi corporate or administrative capacity, as dis
tinguished from its purely governmental functions.
A further contention was that, even if the State had power to enact
a law fixing minimum wages on public works, a city had no such
power. “ It is argued that the ordinance is void because it seeks to
declare a matter of public policy, and it is asserted that neither this
court nor the city council has any power to define the question of
policy.” As to this Judge Ellis said:
As far as this court is concerned, the truth of the claim is so ele
mentary that it may be passed with a simple admission. As to the
power of the council, the question can hardly be so summarily dis
missed. It is the clear intention of the constitution to give to cities
of the first class, of which the city of Spokane is one, the largest
measure of local self-government compatible with the general au
thority of the State. Constitution, art. 11, sec. 10. It can “ make
and enforce within its limits all such local, police, sanitary and other
regulations as are not in conflict with general laws.” Constitution,
art. 11, sec. 11. It can make “ all regulations necessary for the
preservation of public morality, health, peace and good order within
its limits.” Rem. & Bal. Code, sec. 7507, subd. 36. As to matters
of local concern, wider powers than those conferred upon cities of the
first class by the constitution and laws of this State can hardly be
conceived. It seems plain, therefore that, unless the ordinance in
question is contrary to some public policy of the State either ex
pressed by statute or implied therefrom, it must be held valid.
As we have seen, the State eight-hour law contains in itself a m inimum-wage provision as to emergency overtime, which is in excess
of the prevailing wage. The eight-hour law manifests a public
policy on the part of the State to better the condition of laborers
employed upon public work. The purpose of the minimum-wage
ordinance is precisely the same, ana the policy which sustains the
one warrants the other. We fail to find wherein the ordinance in
uestion is contrary to any public policy of the State, either as
eclared or implied in any statutory enactment. On the contrary,
it is in accord with the policy which underlies the eight-hour law.
Other objections of a somewhat technical nature were urged,
which the court overruled.
The last objection considered was as to the reasonableness of the
statute, Judge Ellis saying that, in its last analysis, the opinion on
the first hearing rested on the assumption that any minimum of
wages materially above the prevailing rate is unreasonable per se.
The duty of the courts in the consideration of the reasonableness of
statutes was discussed, with reference to authorities, and a report

DECISIONS OF COURTS AFFECTING LABOR.

195

of the State commissioner of labor on the increase in the cost of
living was quoted from, following which Judge Ellis said:
In view of these conditions, can anyone say that a wage of $2.75
a day is, as a matter of law, more than a reasonable living wage?
The unit, as applied to the problem of living, is the family, not the
individual, and $2.75, or even $3, a day can hardly be complacently
ronounced as an unreasonable sum for supporting such a unit. To
old that the payment of any sum which we can not say is above a
reasonable living wage, though it may be above the prevailing rate
of wages, is a mere gratuity, would be to sacrifice the fact to a mere
term. Such a holding would be an indictment of our civilization.
The judgment of the court below was therefore affirmed, the
statute being held to be constitutional and controlling in the matter.

W ages— Semimonthly Pay D ay — Constitutionality of Stat
Railroad Co. v. Williams, Supreme Court of the United
States (May 25, 1914), 34 Supreme Court Reporter, page 761. - The
railroad company named brought suit against John Williams as com
missioner of labor to restrain him from instituting actions to recover
penalties for noncompliance with the provisions of the labor law of
the State of New York, which require plaintiff to pay its employees
semimonthly and in cash; the object being to test the constitution
ality of the law. The complaint was dismissed by the special term
of the supreme court, and this decision was successively affirmed by
the appellate division and by the New York Supreme Court, from
which appeal was taken to th6 Supreme Court of the United States.
In again affirming the judgment, and sustaining the constitutionality
of the law, the court, speaking by Mr. Justice McKenna, said in part:
ute— Erie

The contention of plaintiff is that the labor law is repugnant to the
fourteenth amendment, “ in that it deprives the company of property,
and specifically deprives the company, and those of its employees to
whom it applies, of liberty, without due process of law.” The con
tention may be limited at the outset to the rights of the company.
Plaintiff now pays monthly. The extent of its grievance, therefore,
is two payments a month instead of one, with the consequence of
expense and inconvenience. It is hardly necessary to say that cost
and inconvenience (different words, probably, for the same thing)
would have to be very great before they could become an element m
the consideration of the right of a State to exert its reserved power
or its police power. [Cases cited.]
It would seem to be the contention of plaintiff that it acquired
by its charter a vested right to deal with its employees accordmg to
its own judgment, and, as alleged in its answer, that it was vested
with its powers as a railroad and to contract and be contracted with,
for the employment of persons to conduct its operations and enter
prises at and for such wages and upon such terms of payment as
might or should be agreed on. We may, in answering the conten
tion, put aside the rights of natural persons and the rights which

196

BULLETIN OF THE BUREAU OP LABOR STATISTICS.

might exist under a constitution which did not reserve control in the
State. The effect of the control reserved was to make plaintiff, from
the moment of creation, subject to the legislative power of alteration,
and, if deemed expedient, 01 absolute extinguishment as a corporate
body. And whether expedient or not is a question for the legisla
ture, not for the courts. In other cases the effect of the reserved
power of amendment is said to be to make any alteration or amend
ment of a charter subject to it which will not defeat or substantially
impair the object of the grant or any right vested under the grant.
[Cases cited.] Surely the manner or time of paying employees does
not come within such hmitation. It is a matter of pure administra
tion, not comparable in its burden to those sustained in the cases
which we have already cited.
The next contention of plaintiff is that the cost of paying twice a
month is a direct burden on interstate commerce. It is not nec
essary to review and compare the cases in which this court has
pointed out the difference between a direct and indirect burden of
State legislation upon interstate commerce, or the power of the States
in the absence of regulation by Congress. It is enough to say in the
present case that Congress has not acted, and there is not, therefore,
that impediment to the law of the State; nor is there prohibition in
the character of the burden. The effect of the provision is merely
administrative, and so far as it affects interstate commerce, it does
so indirectly. The court of appeals, as we have seen, considered that
the law relates to the wages of railway servants employed wholly
within the State, and to those whose duties take them from the State
into other States. In other words, did not make it applicable to
those employed in other States, and it therefore does not embrace
all of the employees of plaintiff, and the contention based upon its
application to all is without foundation.
The last contention of plaintiff is that the statute violates the
fourteenth amendment, “ in that it denies to. the employees of the
Erie Railroad Company the equal protection of the laws. ” Consid
erable argument is made to support the contention, in which a com>arison is made between the employees—mechanics, workmen, and
aborers—to whom the law applies, and the other employees of the
company, and it is declared that all, if any, suffer from monthly pay
ments, and all are entitled, therefore, to receive the benefit of semi
monthly payments. But, as we have said, employees are not com
plaining, and whatever rights those excluded may have, plaintiff
can not invoke.

W ages— Semimonthly Pay D ay — Constitutionality of Stat
D ebt — State v. Prudential Coal Co., Su

ute— I mprisonment for

preme Court of Tennessee (Oct. 31, 1914), 170 Southwestern Reporter,
page 56.—The company named was indicted for violation of chapter
29, Acts of 1913 (1st ex. sess.), the act being a penal provision requiring
the payment of wages in cash when due. The company filed a de
murrer to the indictment, which was sustained by the criminal and
law court of Morgan County, and this action was affirmed by the
supreme court. The exact nature of the statute, and the authority

DECISIONS OF COURTS AFFECTING LABOR.

197

of the court for holding it unconstitutional, are given in the following
extract from the opinion delivered by Judge Williams:
The statute under test provides that all corporations doing busi
ness within this State which shall employ any salesmen, mechanics,
laborers, and which operate a commissary or supply store in connec
tion with their business, shall pay the wages, balance then due such
employee, in lawful money semimonthly on the 15th and 30th of each
month, after deductions for advancements have been made.
It is provided in the second section of the statute that a violation
of the first section, above outlined, shall be a misdemeanor punishable
by fine therein set forth. Imprisonment is not in terms provided to
be imposed.
The question thus raised is ruled, in principle, by the case of State
v, Paint Rock Coal Co., 93 Tenn. 81, 20 S. W. 499, in which a statute
was held unconstitutional which provided that it should be a misde
meanor for any person, firm or corporation to refuse to cash or re
deem in lawful currency, any check or scrip within 30 days of issuance,
and that, upon conviction, a prescribed fine should be imposed.
The court, after remarking upon the fact that it was not for any
fraudulent intent of the person or corporation issuing the check or
scrip that he or it was sought to be thus punished, said:
“ The act of the legislature in question; while not directly author
izing imprisonment for debt, does attempt to create a crime for the
nonpayment of debts evidenced by check, scrip, or order, and for
such crime provides a penalty, which may or may not be followed by
imprisonment. In that way and for that reason the act is violative
of the spirit, if not the letter, of the constitutional provision above
cited. It is an indirect imposition of imprisonment for the nonpay
ment of debt, and is therefore clearly within the constitutional inhi
bition/'
On failure to pay any fine adjudged, by operation of law imprison
ment would be imposed on the violator of tne statute, if valia.
Obviously the purpose of the statute in question was to enforce the
payment of contract wages, and at stated periods, under the penalty
prescribed, and it must fall as unconstitutional.
W orkmen's Compensation—A brogation of Defenses— Com
A mount of Recovery— Constitutionality of

pulsion—Limiting

Statute— Kentucky State Journal Co, v. Workmen's Compensation
Board, Kentucky Court of Appeals (Dec, 11, 1914), 170 Southwestern
Reporter, page 1166,— This case was before the court of appeals on
questions of the constitutionality of the workmen's compensation
act of the State, chapter 73, Acts of 1914. The law provided, among
other things, that all persons, firms, and corporations regularly
employing six or more persons for profit for the purpose of carrying
on any class of business designated in the act should report to the
compensation board created by the statute, giving the place of their
business, the number of their employees, the amount of their pay roll,
and such other information as the board might request, by filling out

198

BULLETIN OF THE BUREAU OF LABOR STATISTICS.

blanks furnished by it and returning them to the board. The
Kentucky State Journal Co. refused to fill out the blanks submitted
to it, and action was brought in the circuit court of Franklin County
to compel it to do so. Judgment was against the company in this
court, but the case was appealed, the court of appeals reversing the
judgment on the ground that the law in question was unconstitu
tional.
The provisions of the act which were designated by the judge
who delivered the opinion as “ the storm center of the fight” were
those permitting an employee to accept the benefits of the compensa
tion act and waive all causes of action conferred by the constitution
or statutes of the State or by the common law, such waiver to be
binding upon himself and all persons claiming under or through him;
providing that such a contract of waiver shall be conclusively pre
sumed where the employer had elected to make payments into
the compensation fund of the State if the employee continues to
work without filing a notice of rejection before receiving an injury,
provided that the employer has given notice of his coming under the
act by posting printed or typewritten notices in conspicuous places
about his establishment; providing that the employer of a workman
who rejects the provisions of the compensation act after the employer
has elected to accept them shall have all the defenses of contribu
tory negligence and assumed risks in their full extent, no other
defense being withdrawn from the employer; and providing that
where the employer elects not to come under the act he shall be
deprived of the defenses of fellow service, assumed risks, and con
tributory negligence. These provisions were held to be compulsory
in effect and to establish limits on the amounts recoverable in
violation of the constitution of the State, so that the entire statute
must fall.
The opinion of the court was delivered by J. L. Dorsey, one of
two special judges appointed on account of the interest of some of
the judges in the result of this trial. The decision was rendered by
a divided court, three of the seven favoring the upholding of the
statute on the ground that it was in effect, as in form, elective, and
citing the series of decisions by the courts of last resort of Washington,
Wisconsin, Ohio, and other States in which statutes of this same
general nature have been declared constitutional.
Judge Dorsey, having stated the facts and quoted the provisions
of law particularly in question, spoke for the most part as follows:
Appellant’s contention is that this act is invalid, and while counsel
for appellant base their reasons for reversal on many grounds, this
court will content itself with an examination and inquiry into the
following four grounds:
(1)
It is claimed that the act is violative of section 54 of the con
stitution, which provides, “ The general assembly shall have no power

DECISIONS OF COURTS AFFECTING LABOR.

199

to limit the amount to be recovered for injuries resulting in death,
or for injuries to person or property.”
(2) The act is compulsory m that both the employers and em
ployees are compelled to accept its provisions, ana, being compul
sory, it deprives appellant of its property without due process of
law, and violates section 54 of the constitution.
(3) The act confers upon the workmen’s compensation board
judicial powers contrary to sections 109 and 135 of the constitution.
(4) The act is in contravention of section 241 of the constitution,
which reads as follows: “ Whenever the death of a person shall
result from an injury inflicted by negligence or wrongful act, then, in
every such case, damages may be recovered for such death, from the
corporation and persons so causing the same,” etc.
Referring to the provisions of the act (sec. 29) as to agreements to
accept benefits under the act, and waive all other rights of action, the
court said:
Under this section the compensation of the injured man is limited
to the amount specified in the schedule of the act. This constitutes
a limitation upon the amount of his recovery under section 54 of the
constitution providing that the legislature “ Shall have no power to
limit the amount to be recovered for injuries resulting in death, or
for injuries to persons or property.” But we think it is within the
power and right of an employee to waive this limit of recovery for
injury, by contract, if such contract is freely and voluntarily made.
There may never have been a word or a syllable between the
employer and the employee in regard to a contract for employment to
labor, yet the act provides that such contract shall be conclusively
presumed to have been made between the employer and employee,
if the employee continues to work for the employer after the employer
has posted notices in some conspicuous places about his place oi busi
ness, to the effect that he has paid his premiums into the fund and
accepted the provisions of the act.
We will go a little further and examine the provisions of section 32
of this act. Suppose the employee, desiring to rely upon the causes
of action given him by the constitution and laws of this State, does
not accept the so-called benefits of this act, then in that event, under
section 32 of this act, the employee, prior to receiving an injury, is
compelled to give notice to his employer and to the board that he
will not accept the provisions of this act. This notice must be served
as provided by the Civil Code for serving notices. So if, after this
notice has been served, the employee should be injured or killed
while in the service of the employer, he or his personal represent
ative may sue his employer to recover damages; then his right to
recover is barred by the provisions of this act, if his injury was
caused or contributed to by the negligence of any other employee
of said employer, or if the injury was due to any of the ordinary
hazards or risks of the employment, or if due to any defect in the
tools, machinery, appliances, instrumentality, or place of work, if
the defect was known or could have been discovered by the injured
employee by the exercise of ordinary care on his part, or was not
known or could not have been discovered by the employer by the
exercise of ordinary care in time to have prevented the mjury, nor

200

BULLETIN OF THE BUREAU OF LABOR STATISTICS.

in any event if the negligence of the injured employee contributed to
such injuries. Now when his right to recover is restricted by such
qualifications and conditions a3 these, we think these qualifications
and conditions constitute, within the meaning of section 54 of the
constitution, not only a limitation upon the amount to be recovered,
but practically destroy hi3 right to recovery.
When the employer accepts the provisions of this act, the employee
is automatically drawn into this so-called contract and made subject
to its provisions upon pain of being deprived of all his causes of
action. It can not then be said that he has voluntarily elected to
accept the provisions of the contract because he is told that unless
he accepts the provisions of this act he will be deprived of all these
causes of action.
In the light of section 54 of the constitution, we must treat the
contract made by the employee under the provision of this act as
compulsory and therefore void.
If any employer should determine that he wanted to carry his own
risk ana make his own contracts, instead of having the law to make a
contract for him, he can do so. He can operate his industries and
pursue his business, however hazardous, and ignore this act entirely.
But what is the result? The law says to this employer:
“ You may go on with your business industries, Dut if one of your
employees is injured or killed, you shall not avail yourself oi the
following defenses: The defense of the fellow servant; the defense of
the assumption of risk; or the defense of contributory negligence.”
These are practically all the defenses the employer has, and they
are taken from him unless he accepts the provisions of this act. Efe
can not, under these conditions, successfully defend any suit for per
sonal injury. If he is sued by an injured employee, about the only
question a jury will have to determine will be tne amount of recovery.
Under these conditions an employer has practically no choice, no
volition. If he continues to operate his business, he is compelled to
pay his premiums into the fund and accept the provisions o f the act.
We can not subscribe to the proposition, that this is a voluntary
contract, even on the part of the employer.
The act under consideration is further vigorously assailed because,
as contended by appellant's counsel, it contravenes section 241 of the
constitution of the State of Kentucky [providing for recovery for
injuries causing death].
If an injury to an employee should result in his death, his personal
representative is authorized to recover damages from the negligent
person or corporation causing his death. This is an absolute right
given by this section of the constitution to his personal representative
to recover damages for such negligence as has resulted in his death.
And it is immaterial, under this section of the constitution, whether
the money recovered goes to the children or parents, or becomes a
art of his personal estate. The disposition of the money after his
eath can not affect the right of the personal representative to recover.
It may go to his heirs, or it may become a part of his personal estate
and go to his creditors.

The provisions of the act defining beneficiaries were then cited, as
well as that giving the compensation board the right to collect benefits

DECISIONS OF COURTS AFFECTING LABOR.

for its own use where no beneficiary under the act is found.
this the court said:

201

As to

It seems clear to us that such parts of this act as take from the per
sonal representative or estate of a deceased employee, who left no
dependents surviving him, any part of the compensation due such
representative or his estate, ana directs its payment into this fund for
the benefit of other people, is a violation of the above section 241 of
the constitution. The legislature has no right to limit the damages
recovered, for the death of an employee negligently killed, to his
dependents.
Nor do we think the legislature has the right to take what is due
the estate of one man and give it to another. While the legislature
may say how the recovery may go and to whom it shall belong, it
can not say this recovery may be had from the employer; then in the
next breatn give it to this fund. It then necessarily follows that such
parts of this act under consideration as give to this board of com
pensation without the voluntary contract of the employee the right
to recover from the employer for the death of the employee leaving no
dependents, and such other parts of the act as coerce the employee
to consent or to make a contract that such compensation shall be
paid into this compensation fund, are unauthorized and void.
Reference was then made to the compensation acts of the various
States having laws of the same or a similar nature, following which
the opinion continues:
It will be observed here that there was no constitutional provision
in the constitution of Washington, Ohio, Wisconsin, or New York
similar to section 54 of the Kentucky constitution, which denied to
the Legislature of the State of Kentucky, “ the power to limit the
amount to be recovered for injuries resulting in death, or for injuries
to person or property. ” The workmen’s compensation act in all of
the States above named, as well as in New Jersey, Massachusetts, and
California, differ from the Kentucky act in that there is an appeal
granted to the State courts, or a jury is permitted to fix the amount
of compensation.
This is the first workmen’s compensation act ever passed by our
legislature, consequently we have no decisions in this State to guide
us, nor do the compensation acts of the other States furnish us very
much light, because the constitutions of these States materially differ
from the constitution of Kentucky. The Kentucky constitution has
limitations and restrictions above referred to that are not found in
any of these States which have adopted compensation statutes. And
for this reason a lengthy discussion of other compensation acts would
be superfluous. This court is bound by the limitations contained in
the Kentucky constitution.
Referring to objections made to the adequacy of the provisions ot
the statute, and the policy therein adopted, the court said:
A sufficient answer to all this is that these are matters addresaed
entirely to the wisdom of the legislature and can be regulated as
necessities may require.

202

BULLETIN OP THE BUREAU OF LABOR STATISTICS.

The opinion concludes as follows:
The right of the State to regulate the management of industries
arises from the fact that their operation may affect injuriously the
health, safety, morals, or welfare of persons engaged in such em
ployments. And these come within the police power of the State, a
power sometimes difficult to understand and usually more difficult
to define. It is contended for appellee that the act in question grows
out of the pursuit and control of industries, by reason of which its
operations come within the police power of the State. This is perhaps
true, and the legislature has the right to create a compensation board
and put it into operation free from the objectionable features of the
present act.
This court looks with great favor upon a workman’s compensation
act that would deal justly with the employer and employee, one that
would permit both to voluntarily take shelter under its provisions.
And it is not the purpose of the court or the intention of this opinion
to lay down any rule that will preclude the legislature from enacting
a compensation act that will conform to the constitution, as we are
clearly of the opinion that the legislature may in conformity to the
constitution adopt an effective compensation law. But tms court
can not consent that the legislature has the power to put this com
pensation act in operation by means of compulsory contracts.
Whether the constitutional restrictions herein above discussed are
wise or unwise, this court is bound to obey them. It has been well
said by an eminent judge that: “ The constitution is the paramount
law; the judge, legislature, and every citizen are bound by it. The
powers of legislation are limited by it, the rights of the citizen are
guaranteed and protected by it, and the courts are bound by their
oaths to enforce it.”
On a petition for rehearing, which was overruled (Jan. 27, 1915)>
Judge Dorsey said:
In the petition for a rehearing we are requested to modify and
extend the opinion. While in no particular receding from the posi
tion taken in the opinion herein, we have thought proper to make
certain statements therein more explicit:
First. The provisions of the present compensation act, as far as
they affect the employer, are unobjectionable, as they do not conflict
with any provisions of the constitution.
Second. Any employee coming within the provisions of the act may
voluntarily agree to accept its provisions fixing and limiting his recov
ery in case of injuiy.
Third. He may likewise voluntarily accept the provisions of the act
fixing the amount that shall be recovered in the event of his death,
and said sum shall be paid to his dependents, if he leaves any, and if
not, to his personal representative. The legislature has no power to
direct that this sum shall in any event be paid into the compensation
fund.
Fourth. Some provision should be made in the act whereby the
employee signifies his acceptance of the provisions of the act by some
affirmative act on his part. Silence on this subject should not be
construed into acceptance.
Fifth. Provision should be made in the act for appeal to a court of
competent jurisdiction for review in all cases where compensation is

DECISIONS OF COURTS AFFECTING LABOR.

203

denied or where a less sum is allowed by the board than that claimed
by the injured employee.
For the reasons indicated in the opinion, the act in its entirety is
void.
W orkmen’ s Compensation— A brogation of D efenses— E xclu
of Small E mployers— Constitutionality of Statute—

sion

Jeffrey Manufacturing Co. v. Blagg, Supreme Court of the United
States (Jan. 5, 1915), 85 Supreme Court Reporter, page 167.— This
action was based on provisions of the workmen’s compensation act of
Ohio, the question being raised as to the constitutionality of a provision
abrogating the defenses of certain employers. This act (sections 146537 to 1465-108, G. C.), in its original form, established an elective
compensation system with an insurance fund to be maintained by
premium payments by employers accepting its provisions. Employ
ers of five or more persons faihng to accept the provisions of the act
were deprived of the defenses of fellow service, contributory negli
gence and assumption of risks. Under an amended constitution the
law in its present form is compulsory, but the case in hand arose under
the elective act. The defendant company, plaintiff in error in the
present instance, was sued by Harry O. Blagg to recover damages
for injuries received by him while in its employment, and, not having
accepted the provisions of the act, it was deprived of the defenses
named. Blagg recovered a judgment in the court of common pleas
of Franklin County, Ohio, which judgment was affirmed in the court
of appeals and the supreme court of the State. The case was then
brought on a writ of error to the Supreme Court of the United States
on the question of constitutionality, and specifically as to the validity
of the provision distinguishing between employers of five or more
workmen and those employing less than five persons. The Supreme
Court, speaking by Mr. Justice Day, sustained the law as constitu
tional in an opinion which, following the statement of facts, reads
mainly as follows:

The fact that the negligence of a fellow servant is more likely to
be a cause of injury in the large establishments, employing many in
their service, and that assumed risk may be different in such estab
lishments than in smaller ones, is conceded in argument, and, is, we
think, so obvious, that the State legislature can not be deemed guilty
of arbitrary classification in making one rule for large and another
for small estabhshments as to these defenses.
The stress of the present argument, in the brief and at the bar, is
upon the feature oi the law which takes away the defense of con
tributory negligence from estabhshments employing five or more and
still permits it to those concerns which employ less than five. Much
of the argument is based upon the supposed wrongs to the employee,
and the alleged injustice and arbitrary character of the legislation
here involved as it concerns him alone, contrasting an employee in

204

BULLETIN OF THE BUREAU OF LABOR STATISTICS.

a shop with five employees with those having less. No employee is
complaining of this act in this case. The argument based upon such
discrimination, so far as it affects employees by themselves con
sidered, can not be decisive; for it is the well-settled rule of this court
that it only hears objections to the constitutionality of laws from
those who are themselves affected by its alleged unconstitutionality
in the feature complained of. [Cases cited.]
This court has many times affirmed the general proposition that
it is not the purpose of the fourteenth amendment in the equal pro
tection clause to take from the States the right and power to classify
the subjects of legislation. It is only when such attempted classifi
cation is arbitrary and unreasonable that the court can declare it
beyond the legislative authority.
Certainly in the present case there has been no attempt at unjust
and discriminatory regulations. The legislature was formulating
a plan which should provide more adequate compensation to the
beneficiaries of those killed and to the injured in sucn establishments,
by regulating concerns having five or more employees. It included,
as we have said, all of that class of institutions in the State.
This is not a statute which simply declares that the defense of
contributory negligence shall be available to employers having less
than five workmen, and unavailable to employers with five and more
in their service. This provision is part of a general plan to raise
funds to pay death and injury losses by assessing those establish
ments which employ five and more persons and which voluntarily
take advantage of the law. Those remaining out and who might
come in because of the number employed are deprived of certain
defenses which the law might abolish as to all if it was seen fit to do
so. If a line is to be drawn in making such laws by the number
employed, it may be that those very near the dividing fine will be
acting under practically the same conditions as those on the other
side of it, but if the State has the right to pass police regulations
based upon such differences,—and this court has held that it has,—•
we must look to general results and practical divisions between those
so large as to need regulation and those so small as not to require it in
the legislative judgment. It is that judgment which, fairly and
reasonably exercised, makes the law; not ours.
We are not prepared to say that this act of the legislature, in
bringing within its terms all establishments having five or more
employees, including the deprivation of the defense of contributory
negligence where such establishments neglect to take the benefit
of the law, and leaving the employers of less than five out of the
act was classification of that arbitrary and unreasonable nature
which justifies a court in declaring this legislation unconstitutional.
It follows that the judgment of the Supreme Court of the State
of Ohio is affirmed.
W orkmen’ s Compensation— A cceptance of A ct by E mployer—
T ime of T aking E ffect of A ct— OoaTcley v. Mason Manufacturing

Co., Supreme Court of Rhode Island (July 10, 1914), 90 Atlantic
Reporter, page 107S.—Marian Coakley brought an action in the
superior court of Providence and Bristol counties against the com

DECISIONS OF COURTS AFFECTING LABOR.

205

pany named to recover damages for personal injuries received May
19, 1913. The company’s defense was based on the fact that on the
26th day of September, 1912, it had filed its acceptance of the com
pensation act, so that it was liable only under the terms of this act,
.which had been passed by the legislature in the previous April, to
take effect October 1. It was contended by Coakley that this
acceptance was not valid, and that the act was not in effect for any
purpose previous to October 1; but the court held that the acceptance
was valid, and any proceedings must be brought under the act, which
view the supreme court affirmed.

W orkmen' s Compensation— “ A ccident” — D efinite T ime as
F actor— Liondale Bleach, Bye & Paint Works v. Riker, Supreme

Court of New Jersey (Feb. 25, 1914), 89 Atlantic Reporter, page 929.—
Judgment was rendered for the employee, Riker, in the court of com
mon pleas of Morris County, under the workmen's compensation act.
This was reversed on appeal, and a new trial granted by the supreme
court. Riker had worked in the bleachery of the defendant company
10 days when he was affected with a rash, pronounced to be a condi
tion of eczema, which might have resulted from the acids used in the
bleachery.

In rendering the decision, Judge Swayze, who delivered the opinion,
reviewed the most important English cases bearing on the point as to
whether this state of facts constituted an “ accident” under the
statute, and concluded as follows:
We need not, of course, consider cases where there has been an
accident and disease has followed. We have considered that question
in Newcomb v. Albertson, 89 Ati. 928 [see p. 247].
The English courts seem at last to have settled that, where no
specific time or occasion can be fixed upon as the time when the
alleged accident happened, there is no “ miury b^ accident” within
the meaning of the act. This seems a sensible working rule, especially
in view of the provisions of the statute requiring notice in certain
cases within 14 days of the occurrence of the injury—a provision
which must point to a specific time.
We need not consider in this case the question of the effect of a
finding by the trial judge as in Brintons, Limited, v. Turvey [an Eng
lish case in which a wool comber was infected by anthrax]. Not
only is there no such finding of fact, but the learned trial judge rested
upon a construction of the statute which makes the word “ accident”
include “ those events which were not only the result of violence and
casualty, but also those resulting conditions, which were attributable
to and caused by events that take place without one's foresight or
expectation.” This, however, is to make the employer's liability
turn on resulting conditions rather than on the fact of injury by
accident. There may indeed be compensation awarded for resulting
conditions where you can put your finger on the accident from which

206

BULLETIN OF THE BUREAU OF LABOR STATISTICS.

they result; but the ground of the action fixed by the statute is the
injury by accident, not the results of an indefinite something which
may not be an accident.
W orkmen’ s Compensation— A ccident A rising Out of E mploy
ment— Henry

Steers, Inc., v. Dunnewald, Supreme Court of New
Jersey (Feb. 25, 1914), 89 Atlantic Reporter, page 1007.— The plaintiff,

Lena Dunnewald, recovered judgment for compensation in the court
of common pleas of Hudson County for the death of her intestate,
which judgment was reversed by the supreme court. Dunnewald was
employed in building a bridge over a river near its outlet in a bay.
He was to be at work at 11 o’clock on the evening of April 13, 1912,
to assist in placing the new drawbridge construction in place of the
old. He left his house to go to work at 9 o’clock, having some miles
to go, the last part of which was across a trestle, etc., and was difficult
and dangerous. His body was found several days later in the bay.
The supreme court held that the facts would not authorize an infer
ence that the death was caused by accident arising out of the employ
ment, although the inference might be drawn that it was caused by
accident in the course of the employment. As both elements were
necessary to support a recovery under the act, no recovery could
be had, and the judgment of the court below was reversed. The
English cases similar to this one were discussed as supporting this
decision.

W orkmen’ s Compensation—A ctions— Default
tions—Barrett

Contribu

v. Gray’s Harbor Commercial Co., United States Dis
trict Court, Western District of Washington (Dec. 8, 1918), 209 Federal
Reporter, page 95.—The Washington workmen’s compensation act,
Laws of 1911, chapter 74, section 4, requires employers to pay to the
State, to create an accident fund, a percentage of wages paid, such
payments to be made in advance, based on past pay rolls, and to be
adjusted at the end of each year on the basis of the actual pay roll
for that year. It further provides that any shortage on such an
adjustment shall be made good before February 1, following; and by
section 8, that if any workman be injured while the employer
is in default for any payment and after demand for the same, the
employer shall not be entitled to the benefits of the act, but the
workman shall have a right of action. The commission created is
empowered to make regulations for the administration of the act.
The company named was notified on February 28 of a shortage due
on its adjustment, with a demand for payment within 30 days. The
plaintiff was injured during that time, and before the payment had
been made, but it was afterward made during the time limited. He
brought suit, and the company demurred to the complaint. This

DECISIONS OF COURTS AFFECTING LABOR.

207

demurrer was sustained, and the plaintiff held to have no right of
action, on the ground that the demand was presumably in accordance
with the regulations of the commission, and did not become effective
until the expiration of the 30 days, and that on payment within that
time the company was entitled to the benefit of the act.

W orkmen' s Compensation— A mount of Compensation— Com
L ump Sum— Mockett v. Ashton, Supreme Court of
New Jersey (June 7, 1913), 90 Atlantic Reporter, page 127.— Mockett
was injured while in the employ of one Ashton, and compensation in
a lump sum was awarded by the court of common pleas of Camden
County. In granting the defendant a new trial, Judge Swayze, who
delivered the opinion of the supreme court, said:

mutation to

The judge found that the petitioner's eyesight was affected about
one-third; that he had distressing pains in his head, and his nervous
system ’was much below pai; that his disability was partial in
character and permanent in quality. He therefore decided to* com
mute petitioner's compensation to $1,000. Since the petitioner claims
the benefit of the statute, the statute must be our guide. The
schedule contained in the statute does not provide specifically for the
injuries involved in this case. The compensation, therefore, must
bear such relation to the amounts stated m the schedule as the dis
abilities bear to those produced by the injuries named in the schedule.
We are not informed what sum per week the trial judge thought
justified under this statute, nor how he reached his result. The
statute provides that the amounts payable periodically as compen
sation may be commuted to a lump sum provided the same be in the
interest of justice. We can not pass upon the justice of the result
reached by the trial judge unless we know the sum payable periodi
cally, the method by which he reached his result, and the reasons
that induced him to commute the periodical payments into a lump
sum. Long v. Bergen Common Pleas, 84 N. J. Law, 117, 86 Atl. 529.
The case does not even show that he ever determined, as the statute
requires, the relation borne by the petitioner's disabilities to those
produced by the injuries named in the schedule, nor that he even
determined the amount of the periodical payments before commuting
them. It seems that he treated the case as if it arose under the
common law, and awarded, as a jury might have done in an ordinary
action, such sum as seemed to him just.

W orkmen' s Compensation— A mount of Compensation— D is
ability— De

Zeng Standard Co. v. Pressey, Supreme Court of New
Jersey (Nov. 6, 1914), 92 Atlantic Reporter, page 278.— This was a
proceeding under the workmen's compensation act. The court, in
an opinion by Judge Parker, affirmed the judgment of the court of
common pleas of Camden County, deciding some questions of interest
in interpreting provisions of the act as to amount of compensation

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BULLETIN OF THE BUREAU OF LABOR STATISTICS.

and nature of disability necessary to entitle a claimant to com
pensation. The opinion is quoted for the most part, as follows:
This case arises under the workmen's compensation act, and the
principal question argued is whether the petitioner should receive
an award for the permanent impairment of the function of his right
arm, when it is shown that he has been earning the same pay as he
earned before the accident.
The petitioner as a carpenter in the employ of the prosecutor
earned $20 a week. He sustained an accident arising out of and in
the course of his employment which caused a fracture of the bone of
the forearm known as the “ radius" at or near the elbow, and which
is admitted to have caused the permanent loss of 30 per cent of the
use of his arm. After two weeks he went back to work under the
same employer, at the same wages, and after a time entered the
employ oi his son at the same wages. Later on when work became
slack ne worked independently, receiving the same pay for the time
he was actually employed.
In this proceeding the court awarded him 30 per cent of $10 for
the period of 200 weeks, under the provision of the act:
“ Where the usefulness of a member or any physical function is
permanently impaired, the compensation shall bear such relation to
the amount stated in the schedule as the disabilities bear to those
produced by the injuries named in the schedule.”
The 30 per cent, however, was awarded upon the number of weeks
as a base, and consequently the award was the sum of $10 per week
for a period of 60 weeks. This is not the method sanctioned in
James A. Banister Co. v. Kriger, 84 N. J. Law, 30, 85 Atl. 1027 [see
Bui. No. 152, p. 178], where this court sustained an award for the
full period with relation to the percentage of the weekly wage on
application of the minimum clause.
Applying that rule to the present case, the award would have been
for 200 weeks at a minimum of $5 per week; but the petitioner does
not question the form of the award, and plainly the prosecutor is
not injured by it.
The prosecutor's principal claim is that there can not be a statutory
“ disability" when it appears that the earnings of the petitioner had
not been impaired. With this we can not agree. It may well be that
for a time an injured employee might be able to earn the same wages
as before the accident; but, as we read the act, the disability intended
thereby is a disability due to the loss of a member, or part of a mem
ber, or of a function, rather than to mere loss of earning power. Even
if this were not so, it does not follow that the injured employee had
not sustained a distinct loss of earning power in the near or not
remote future and for which the award is intended to compensate.
If it were a question of damages at common law, the elements of
damage would consist of present loss of wages, probably future loss
of wages, pain and suffering, and temporary or permanent disability,
which loss the jury would be at liberty to assess quite independently
of the fact that the plaintiff was earning the same wages, except so
far as that fact might be evidential with regard to the extent of the
disability.
Next it is argued that, because the petitioner worked for the
prosecutor for 55 weeks at full wages, these 55 weeks should be

DECISIONS OF COURTS AFFECTING LABOR.

209

deducted from the 60 weeks for which the award was made. The
answer is that the prosecutor was under no obligation to employ the
petitioner at $20 a week or any other sum, and that inasmuch as he
chose to do so without any understanding, express or implied, that
petitioner was not worth those wages, or that part of them should be
treated as moneys paid under the compensation act, he must be pre
sumed to have paid the money as wages and because he thought the
petitioner was worth that amount.

W orkmen’ s Compensation— A mount of Compensation— Loss
Motion of A rm— Payments by I nsurance Company— Barbour

Flax Spinning Co. v. Hagerty, Supreme Court of New Jersey (Feb. 25,
1914), 89 Atlantic Reporter, page 919.—Judgment was rendered in
favor of the petitioner, Hagerty, in the court of common pleas of
Hudson County, for $5 per week for 200 weeks, for the loss of motion
of his right arm at the elbow, consisting of permanent inability to
bend it more than 90 degrees. The amount of compensation awarded
was the same as the law provides for the loss of an arm. The law
provides that compensation for injuries not specified shall bear such
relation to the amounts stated in the schedule of the act as the
disabilities bear to those produced by the injuries named in the
schedule. On appeal the supreme court held that the award could
not be justified under the provision just mentioned, and therefore
reversed the decision and remanded the case for a new trial.
It was in evidence that the petitioner Hagerty had received the
statutory weekly compensation for his injury for a period of 52 weeks,
for which no credit had been given. As to this the court said:
The petition avers that it was received from the insurance com
pany oi the defendant. The admission at the trial was that it was
paid by the defendant. If that is true, or if the premium for the
insurance had been paid by the defendant, credit should have been
given. If, however, the payment was by virtue of insurance paid
for by the petitioner, the defendant is entitled to no credit therefor.

W orkmen’ s Compensation— A mount of Compensation— Par
D isability— O’ Connell v. Simms Magneto Co., Supreme Court of

tial

New Jersey (Nov. 25,1913), 89 Atlantic Reporter, page 922.—The only
question in this case was as to the amount of compensation. The
injuries consisted of fractured skull, broken collar bone and ribs,
injury to eye, paralysis of right side of mouth, injury to right nostril
and impairment of use of right ear and right arm. Making an allow
ance for each of these, and totaling them, the judge of the lower
court arrived at a total of 340 weeks, and judgment was rendered
awarding compensation to the petitioner for that length of time.
85500°—Bull. 169—15------14

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BULLETIN OF THE BUREAU OF LABOR STATISTICS.

On appeal, the judgment was reversed and the case remanded for
revision of the compensation, Judge Swayze, who delivered the
opinion, saying:
The evidence of the petitioner shows conclusively that the dis
ability of the petitioner is far from total. Under the statute only
400 weeks’ pay could have been allowed for total permanent dis
ability, such as loss of both hands, arms, feet, or eyes. None of the
injuries suffered by the petitioner are specifically provided for in the
schedules contained in the act, and allowance tnerefor must have
been made under the provision that the compensation in other cases
shall bear such relation to the amounts stated in the schedule as the
disabilities bear to those produced by the injuries named in the
schedule.
There is no evidence that the disabilities of the petitioner stand
to total disability in the proportion of 340 to 400. On the contrary,
the evidence makes it clear that the proportionate extent of the dis
ability is very much less. The difficulty arose probably from the
desire of the trial judge to award what he thought was fair compensa
tion. This was, however, disregarding the statute, not following it
except in form.
W orkmen’ s Compensation— B enefits— I mpairment of E arn
Capacity—International Harvester Co. v. Industrial Commission

ing

of Wisconsin, Supreme Court of Wisconsin ( May 1, 1914), H ? North
western Reporter, page 58.—Ernest Koenig, an employee of the com
pany named, was injured March 5, 1912, by a particle of steel entering
one of his eyes. The piece of steel was removed by a magnet, but the
employee was incapacitated for work for 10 weeks and 4 days, and
there was permanent impairment of the sight of the eye. He was
paid for his loss of time and doctor’s bills as provided by the act. He
resumed work for the company at his former employment, operating
a drill press, and up to the time of the hearing for compensation had
earned apparently a little more per day at piecework after the resump
tion of work than before the accident. The industrial commission in
its decision said that it was “ satisfied from its investigation of injuries
of this character and from the testimony that a man injured as appli
cant was injured can perform the labor that applicant was doing prior
to the injury without difficulty.” It further said: “ The commission
is also convinced that in most employments a one-eyed man is physi
cally able to earn substantially the same wage as a man with two eyes.”
The commission also found that the applicant’s loss of wage because
of permanent partial disability was $2.16 per week, and ordered the
company to pay him $1.41 per week for 15 years. This finding was
based on the likelihood that it would be less easy for the employee to
secure work on account of his defective sight. The statute provides
that the loss in wages for which compensation may be made shall con
sist of such percentage of the average weekly earnings of the injured

DECISIONS

of co u r ts a f f e c t in g

labor.

211

employee as shall fairly represent “ the proportionate extent of the
impairment of his earning capacity in the employment in which he
was working at the time of the accident.”
The court discussed the grounds on which the award of the com
mission can be set aside, which are stated in the statute as fol
lows: (1) That the commission acted in excess of its powers; (2)
that the award was procured by fraud; and (3) that the findings
of fact do not support the award. It held that the first ground would
cover cases where the commission made a finding of fact without any
thing upon which to base it, and after full consideration of the sup
posed basis of the finding that the employee’s deficiency in earning
power amounted to 15 per cent of his former wages, which basis con
sisted largely of the results of investigations made by the commission
itself, and consideration of the statutes of other States, etc., the court
decided that there was no material evidence, also that the loss of earn
ing power of a man with one eye was not the subject of judicial notice;
and that the judgment should be reversed and the cause remanded to
the commission for further hearing, or judgment entered for the Har
vester company, as the circuit court should determine.
Three judges dissented, holding that “ it was in evidence that the^
claimant lost an eye, and, in the exercise of common knowledge and
observation, the commission was authorized to infer from this that
his capacity to obtain employment was impaired.”
Workmen’s Compensation— Benefits —Loss o f Member—
Limron v. Blair et al., Supreme Court of Michigan (June 1, 1914), 147
Northwestern Reporter, page 546.—Phillip Limron made application
to the receivers of the Pere Marquette Railroad Co. for an award
of compensation for injuries sustained. These consisted of the loss of
a foot, and other injuries, which were still producing total disability
at the time of the hearing, the disability apparently being largely due
to injuries to the shoulder. The law provides for payment of one-half
wages for the period of total disability not exceeding 500 weeks, and
that in case of injury consisting of loss of certain members the disa
bility shall be deemed to exist for certain periods, that for loss of a
foot being 125 weeks. The industrial accident board awarded the
payment to the injured employee in this case for the time of his
actual total disability, and for 125 weeks to commence at the conclu
sion of such disability, less 6 weeks’ disability incident to the ampu
tation of the foot, the total period not to exceed 500 weeks. The court
reversed this award, holding that he should be paid compensation for
not less than 125 weeks in any case, but for only that length of time
unless his total disability lasted longer than that period, in which
case compensation would be paid for the period of disability only.

212

BULLETIN OF THE BUREAU OF LABOR STATISTICS.

The court expressed the view that the statute “ does not provide a
specific indemnity for the loss of a member in addition to compensa
tion for disability,” since it “ speaks in terms of disability,” and
“ when the period of disability ends compensation ceases.”

Workmen’s Compensation— B enefits— Permanent Injury and
Subsequent Death— In re Burns, Supreme Judicial Court of Massa
chusetts (May 21,1914), 105 Northeastern Reporter, page 601. Bridget
Burns filed a petition under the workmen’s compensation act for the
injury and death of her husband, John J. Burns. A decree was
entered in her favor in the superior court of Suffolk County in accord
ance with a decision of the industrial accident board, and the insurer
appealed. The decree was affirmed. Burns received a fracture of
the spine, with severance of the spinal cord, which caused paralysis
of the legs and all portions of the body below the fracture. He was
taken to a hospital and given medical care, but an extensive bedsore
formed because of the necessity of his remaining motionless, which
finally resulted in blood poisoning and death. The court decided that
the decision of the industrial accident board must be sustained on
matters of fact where there was evidence to support them; and this
principle was applied to the finding that the death was proximately
caused by the injury and to the finding that the injury was not caused
by the serious and willful misconduct of the employer. The court
remarked that this latter phrase involves conduct 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 consequences.
The court also held that compensation was rightly given for the
death of the husband as resulting proximately from the injury and for
the permanent incapacity of both legs. Although there was no direct
physical or external injury to the legs, it was held that their useless
ness resulting from the broken spinal cord was an injury to them. It
was held, however, that this compensation for permanent incapacity
ceased after the death of the injured person, at least in the present
case, where no award was made for a definite time on account of it.

W orkmen’ s Compensation— B enefits— Permanent I njury not
Causing I ncapacity— In re Ethier, Supreme Judicial Court of Massa

chusetts (May 20,1914), 105 Northeastern Reporter, page 376.—In this
case it was held that the Massachusetts workmen’s compensation
act and its amendment, which provides that the same amount as
for loss of the member shall be paid “ in case an injury is such that
the hand, foot, thumb, finger, or toe is not lost, but is so injured as

DECISIONS OF COURTS AFFECTING LABOR.

213

to be permanently incapable of use,” does not provide for damages
for permanent injury for the injury of a phalange not resulting in the
permanent incapacity of the entire finger.

Workmen's Compensation— Benefits— Separate Allowances—
In re Nichols, Supreme Judicial Court of Massachusetts (Feb. 27,1914),
104 Northeastern Reporter, page 566.— The administratrix of a deceased
employee began a proceeding for compensation, and the decree of the
superior court of Suffolk County awarded her the damages specified
by the act for the death of an employee. The employee himself had
received 12 weeks' compensation for the loss of “ at least one phalange
of a finger” in addition to the amount for disability. Afterwards
blood poisoning developed and he died. The insurer contended that
the payment for loss of the finger should be deducted from the
compensation awarded to the widow. The court, however, disallowed
this deduction, since the payment for 12 weeks for the loss of a part
of a finger is expressly stated to be “ in addition to all other com
pensation.”
Workmen's Compensation— Casual Employment— In re Cheevers,
Supreme Judicial Court of Massachusetts (Nov. 24, 1914), 106 North
eastern Reporter, page 861.—The compensation act of Massachusetts

excepted from its provisions cases where “ employment is but casual,”
until an amendment in 1914 removed this exception. Cheevers was
engaged in the teaming business on his own account, employing men
and having three or four teams, but was occasionally employed by a
coal dealer, who engaged him personally with his team, to handle coal.
The last period of employment included February 7, 8, 10, 11, 12, 13,
15, and 25, 1913, the last-named date being that of the injury. The
last previous period had been February 1, 2, 5, 6, and 7, 1912. Under
these circumstances the court held that the employment was casual,
and affirmed a decision of the industrial accident board denying
compensation.
Workmen's Compensation— Casual Employment— In re How
ard, Supreme Judicial Court of Massachusetts (June 17, 1914), 105
Northeastern Reporter, page 636.—Arthur Howard was injured in the

employ of the Edison Electric Illuminating Co., and the insurer
claimed that the employment was casual. This contention was
based upon the fact that, Howard's employment being to trim trees
to keep the wires of the company clear, he was at the particular time
of the accident trimming a tree through which none of its wires ran.
He was acting, according to the statement of agreed facts, under the

214

BULLETIN OF THE BUREAU OF LABOR STATISTICS.

orders of his foreman, who in turn was acting under the orders of the
superintendent of the company. The court upheld a decree granting
compensation, saying:
In the present case Howard was employed to trim trees, and was
to receive his orders from the company through Kennedy. It was
no part of his business to inquire into the right of the company to
trim any particular tree. He was to receive his orders from Kennedy
and to obey them. At the time he was hurt he was doing what he
had been hired to do. The work was not casual.

—

Workmen’s Compensation Casual Employment— SabeUa el al.
v. Brazileiro Supreme Court of New Jersey (Oct. 1 1914), 91 Atlantic
Reporter, page 1082.—This case arose from the death of a long

shoreman, which resulted from injury occurring two hours after he
began work at a ship. The principal question was whether the em
ployment was casual; and it was held that the work of a class of
longshoremen who are ready to work when called upon and are not
at work for any one employer constantly, because the latter has a
ship in port only a part of the time, is not casual, the court saying
that “ an employment is not casual—that is, arising through accident
or chance—where one is employed to do a particular part of a service
recurring somewhat regularly with the fair expectation of its con
tinuance for a reasonable period.”
Workmen’s Compensation— Casual Employment—Amount o f
Compensation Schaeffer v. Be Grottola Supreme Court of New

—
,

Jersey (Feb. 25 1914), 89 Atlantic Reporter page 921.—George De

Grottola petitioned the court of common pleas of Essex County,
which awarded him compensation of $10 per week, the maximum
compensation, against his employer Schaeffer. On appeal, this
award was affirmed. The employee began work on Monday morn
ing for this employer, shaving skins of a kind not usually handled in
his establishment, and was injured about 11 o’clock. He was work
ing by the piece, and the arrangements as to continuance were some
what indefinite, but the court decided that the employment was not
“ casual,” but work in the regular business without limit as to time.
As to the amount of compensat on, which would be one-half his
weekly earnings, it was held that, as he had earned $1.60 up to 11
a. m., he might properly be found to be earning at the rate of $4
per day and therefore entitled to the maximum limit of $10 per
week.
Workmen’s Compensation—Casual Employment—W aiters—
In re Gaynor, Supreme Judicial Court o f Massachusetts (Feb, 27,
1914), 104 Northeastern Reporter, page 889.—The decision in this case

DECISIONS OF COURTS AFFECTING LABOR,

215

turned upon the question as to whether the employment of one
Gaynor was covered by the terms of the workmen's compensation
act. The industrial accident board had made an award in his favor,
and the superior court of Suffolk County issued a decree affirming
this decision. This was reversed by the supreme judicial court on
the ground that the employment came within the exception of the
statute of “ one whose employment is but casual.” The employee
had been hired to act as a waiter at a banquet on a certain day,
receiving stipulated wages and his transportation to and from the
point of service, and was injured while preparing to serve the ban
quet. He had never worked for the same employer before, and the
employment was to terminate on that day. This was customary
in the business of catering, the employers not usually employing
any waiters regularly. Under these circumstances the court deter
mined that the employment was “ casual,” so that no compensation
could be received for the injury.

Workmen's Compensation— Classification o f Employments—
Railroad Construction—State v. Chicago, Milwaukee & Puget
Sound Railway Co., Supreme Court of Washington (July 15, 1914),
141 Pacific Reporter, page 897.—This was an action by the State to

recover a premium payment from the company named under the
State insurance law. The industrial insurance department of the
State had classified certain work done by the railroad company as
tunnel construction, requiring under the law a premium rate of 6£
per cent. The company insisted that the work should be classified
as steam railroad construction work, upon which a contribution at
the rate of 5 per cent is required. The view contended for by the
company was accepted by the superior court of King County, where
upon the State appealed and secured a reversal of the judgment
of the court below, with a direction to enter judgment in accordance
with the views maintained by the State.
The compensation act of the State, chapter 74, Acts of 1911, pro
vides for a number of classes of hazardous and extrahazardous
employments, fixing the premium rates for each class, rates for
tunnels and for railroad construction being as above indicated. It
is further provided (sec. 4, subd. 3) that if in a single establishment
several occupations are carried on which are in different risk classes
the premium shrll be computed according to the fay roll of each
occupation if clearly separable, otherwise an average rate shall be
charged for the entire establishment. The supreme court held
that this provision controlled the case, since the pay roll for the
tunnel construction was separable. The opinion was delivered by
Judge Main, Judge Chadwick dissenting and holding that the enter

216

BULLETIN OF THE BUREAU OF LABOR STATISTICS.

prise rate should be a single one, covering all classes of occupations
thereon. From the opinion of Judge Main the following is quoted:
The trial court found, not only the actual pay roll for workmen
employed in the tunnel, but that the railroad other than the tunnel
had been previously constructed and was in operation. If the
operations mvolved in the construction are so interrelated as not to
be clearly separable, then the enterprise classification would prevail.
In other words, when the various occupations are separable, each
occupation takes the rate of its particular class. But where they
are not separable the equalized classification for the enterprise
fixed by the statute controls.

Workmen's Compensation— Constitutionality of Statute—
Deibeikis v. Linlc-Belt Co., Supreme Court of Illinois (Feb. 21, 1914),
104 Northeastern Reporter, page 211.—Joseph Deibeikis brought action

against the company named for injuries alleged to have been sustained
while employed in its machine shop. The company pleaded in
defense that before the injury both parties had elected to be governed
by the terms of the workmen's compensation act (Laws of 1911, p.
315, which was in force at the time of the happening of the injury,
but has been superseded by Laws of 1913, p. 335); that the company
had posted the required notices, and had done all that the act required
of it; that the employee had accepted certain sums of money under
the act, and that the company was ready to pay any further sums
due; that the employee was governed by the terms of that act, and
should adjust his grievances thereunder instead of bringing an action
on the case. The plaintiff demurred on the ground of the unconstitu
tionality of the act. The demurrer being overruled, judgment was
entered against him, upon which he appealed. The supreme court
upheld the constitutionality of the act. Judge Cooke in delivering
its opinion took up the provisions of the act in detail, as follows:
As we understand the points made, the grounds relied upon are
that the act is unconstitutional for the following reasons: (1) It is not
a proper exercise of the police power; (2) it is class legislation; (3) it
delegates judicial powers; (4) it vests the judiciary with executive
powers; (5) it deprives appellant of the right of trial by jury; (6) it
subjects appellant to unreasonable search; (7) it deprives appellant
of his right to contract and of his natural right of waiver. Statutes
similar to the one here under discussion have been passed in various
States of the Union, and in a number of those States the courts have
decided some of the questions here raised by appellant contrary to
his contentions. [Cases cited.]
Taking up the points raised by appellant in the order in which they
have been set out above, we are unable to see where it can be con
tended that this act is an attempt to exercise the police power. It
will be observed that the act is elective, and that no employer or
employee is compelled to accept or come within its provisions unless

DECISIONS OF COURTS AFFECTING LABOR.

217

he chooses to do so. Therefore, unless the employer or the employee
elects to come within the provisions of the act, he is not affected by
any of the provisions thereof. This is subject, however, to one
exception. Under the conditions specified in section 1, an employer
is deprived of the common-law defenses of assumed risk, contributory
negligence, and that the injury or death was caused, in whole or in
part, by the negligence of a fellow servant. To deprive an employer,
under such circumstances, of the right to assert those defenses is not
an exercise of the police power, but is merely a declaration by the
legislature of the public policy of the State in that regard. The right
of the legislature to abolisn these defenses can not be seriously
questioned.
The rules of law relating to the defenses of contributory negligence,
assumption of risk, and the effect of negligence of a fellow servant
were established by the courts, and not by our constitution, and the
legislature may modify them or abolish them entirely, if it sees fit to
do so. [Cases cited.]
The classification made by section 2 of the act [which names the
occupations to which the act applies] is not questioned or attacked in
any way, but appellant seems to rely upon sections 21 and 22 as con
stituting class legislation. The classification in section 2 seems to be
a perfectly valid and reasonable one. If it is valid and reasonable,
there appears no ground upon which to challenge the validity of
sections 21 and 22. These sections merely limit an “ employee,” as
the term is used in that act, to include only such as may be exposed to
the necessary hazards of carrying on any employment or enterprise
enumerated in section 2. These sections are meant to exclude any
one who may be occupying a mere clerical position, and whose work
is such that he is not subject to any of the hazards of the general
business in which the employer is engaged. This is a proper and
reasonable classification, and does not violate any inhibition of our
constitution.
It is contended that section 3 makes an improper classification, in
that it deprives the employee of his common-law remedies, while the
employer is permitted to retain them. This is clearly a misappre
hension, as the proviso in that section enlarges the remedy of the
employee, and correspondingly restricts that of the employer. By
this proviso, in case an employee receives an injury as the result of
the intentional omission of the employer to comply with statutory
safety requirements, the employer, although having elected to come
within the provisions of this act, can not avail himself of anything
in the act to affect his liability under such circumstances.
The other objections urged may all be answered by the statement
that the act is elective and not compulsory. Being elective, the act
does not become effective as to any employer or employee, unless
such employer or employee chooses to come within its provisions.
Having once elected to come within the provisions of the act, as
long as such election remains in force the act is effective as to the
party or parties making the election, and, in case an employer and
an employee both elect to come within the provisions of the act,
the act itself then becomes a part of the contract of employment,
and can be enforced as between the parties as such. Under this
view, it can not be said that by this act judicial power is delegated
to boards of arbitrators, contrary to the provisions of our constitu

218

BULLETIN OF THE BUREAU OF LABOR STATISTICS.

tion. Parties to a contract may make valid and binding agreements
to submit questions in dispute or any disagreement that may arise
to a board of arbitrators composed of persons or tribunals other than
the regularly organized courts, and such agreements will be en
forced. Eitner party feeling aggrieved at the award has the right
[under provisions of the act] to appeal to a court of record, where
the matter is heard de novo, and where either party has the right
to demand a trial by jury. It will thus be seen that, even though
the employee should elect to come within the provisions of the act,
he is not wholly deprived of a trial by jury.
It is contended that section 9 also deprives the employee of his
liberty and property, that section 10 violates the inhibition against
unreasonable search and seizures, and that sections 11 and 13 de
prive the employee of his right to contract and of his natural right
of waiver. Ihese contentions are all fully answered by the state
ment that the employee is not compelled to submit to the provisions
of the act, but has the power to elect whether or not he will come
within its terms and be bound by them. If any of the provisions
of the act are objectionable to him, he is not required to subject
himself to the act. If he does elect to do so, he can not be heard
to complain that the contract he has voluntarily entered into is an
unsatisfactory one.
The act is not subject to the objections urged, and the judgment
of the circuit court is accordingly affirmed.
W orkmen’s Compensation—Constitutionality

Statute—

Matheson v. Minneapolis Street Railway Co., Supreme Court of Min
nesota (July 8, 1914), 148 Northwestern Reporter, page 71.—Ole
Matheson brought action against the street railway company named
for personal injuries. He was an employee of the city of Minneapolis,
and while engaged in laying paving along and near the railway track
of defendant, in one of the streets of that city, was struck by one of
the defendant’s street cars and received injuries which necessitated the
amputation of his leg. He alleged in his complaint that the injury
was caused by the negligence of the defendant. Defendant, in its
answer, among other things, alleged that plaintiff, the city, and
defendant had all accepted, were acting under, and were governed
by the provisions of part 2 of chapter 467, Laws of 1913 (secs.
8195-8230, G. S. 1913), commonly known as the workmen’s compen
sation act; and that plaintiff’s rights were limited and confined to and
were measured and determined by the relief provided for in part 2
of that act. Plaintiff demurred to this portion of the answer,, con
tending that the statute relied on was unconstitutional, and appealed
from an order overruling the demurrer. On this appeal the court
sustained the constitutionality of the workmen’s compensation act
and affirmed the judgment of the court below.
The act comprises part 1 and part 2, the latter being an elective
compensation law, while the former provides that employers electing

DECISIONS OF COURTS AFFECTING LABOR.

219

not to become subject to the provisions of part 2 shall be deprived
of the defenses of the employee’s negligence (unless willful), assump
tion of risks, and fellow service.
Judge Taylor, who delivered the opinion of the court, having stated
the foregoing facts, said, in part:
It is claimed that the act violates the equality provisions of the
State and Federal constitutions for the reason that it abrogates these
three defenses, in actions under part 1, brought against employers
who elect not to accept the provisions of part 2, but permits such
defenses to be interposed, in actions under part 1, brought against
other employers, and also for the reason that the act excludes from
its provisions domestic servants, farm laborers, casual employees,
and such railroads and railroad employees as are within tne legis
lative domain of the United States. That the defenses mentioned
may be entirely abolished, or abolished as to certain classes of employ
ments only, is too well settled to require argument. [Cases cited.]
The power to abolish such defenses rests upon the principle that no
person has any property right or vested interest m a rule of law,
and that the legislature may change such rules at its pleasure.
[Cases cited.]
Plaintiff contends, however, that the classifications made by the
act are unwarranted, and that the constitutional requirement that
all persons shall receive the equal protection of the laws is infringed
unless such defenses are abrogated as to all employers, or remain
available to all employers, and unless the act applies to the classes
excepted from its operation as well as to those included therein.
We think it is within the discretion of the legislature to place in a
class by themselves those employers and those employees who, for
the reason that they are engaged in interstate commerce, are subject
to the laws which have been, or may be, passed by Congress. Within
the domain of interstate and foreign commerce, the power of Congress
is supreme; and the legislature may well refrain from including,
within the operation of the State laws, those persons as to whom
such laws are, or may be, rendered nugatory by the laws of the
United States. Deibeikis v. Link-Belt Co., 261 111. 454, 104 N. E. 211
[p. 216]. The suggestion that the present law does not exclude from
its operation all who are engaged in interstate commerce, but only
those who are engaged in such commerce by railroad, is sufficiently
answered by the decisions affirming the validity of laws which apply
only to those engaged in interstate commerce by railroad.
Other courts have held, and we think for sufficient reasons, that
the exclusion of domestic servants, farm laborers, and persons whose
employment is casual only, from the operation of laws providing
compensation for injured workmen is within the proper discretion of
the legislature. [Cases cited.]
We also think that the legislature is well within its prerogative when
it places in one class employers who become subject to the provisions
of part 2 of the act, and m another class employers who do not become
subject to such provisions; also when it places in one class employees
who become subject to such provisions, and in another class employees
who do not become subject thereto. Employers who become subject
to part 2 thereby tender to their employees, as a consideration for
exemption from common-law liabilities, rights and privileges which

220

b u l l e t in

of t h e

bureau

of l a b o r s t a t i s t i c s .

did not previously exist, and offer to assume the burden of duties and
obligations which were not previously imposed upon them. Em
ployees who become subject to part 2 thereby tender to their
employers immunity from common-law actions as a consideration for
the rights and remedies provided for by part 2. These propositions
become binding contracts in respect to all who accept them, and
remain as continuing offers to tnose who have not accepted them.
An employer or employee, who, at his option, may secure all the
advantages possessed by any other, is hardly in a position to claim
that he is discriminated against. The defenses of contributory negli
gence, assumption of risk, and negligence of a fellow servant were
doubtless abrogated in the cases specified, and not abrogated in other
cases, to induce an acceptance of the provisions of part 2 of the act.
But notwithstanding this purpose, the act permits any employer to
place himself within either class of employers at his election, and to
change from one to the other if he so desires; it also permits any
employee to place himself within either class of employees at his
election, and to change from one to the other if he so desires. Such
legislation is not discriminatory and is not inhibited by the consti
tution. Furthermore, if its validity rested upon the distinction
between the two classes of employers and the distinction between
the two classes of employees, we could not say that such distinction
is so fanciful and arbitrary, or so wanting in substance, that the legis
lature is prohibited from applying rules to one class which it does not
apply to the other. This is in harmony with the holding of other
courts.
The act provides that every employer and every employee shall be
presumed to have accepted and become subject to part 2 of the act,
“ unless otherwise expressly stated in the contract, in writing, or
unless written or printed notice has been given,” in the manner pre
scribed in the act, that he has elected not to become subject thereto.
It is beyond question that the legislature has power to create this
presumption and to require those who elect not to come under the
provisions of part 2, to give notice thereof in the manner prescribed.
The act also provides the manner in which one who is subject to the
provisions of part 2 may thereafter change and become not subject
thereto, and the manner in which one who is not subject to such
provisions may thereafter change and accept them. The choice is
no less voluntary and optional because a party is deemed to have
accepted these provisions, unless he give notice to the contrary, than
it would be if he were deemed not to have accepted them until he
gave notice to that effect.
The section of the act most vigorously assailed is section 33 (sec.
8229, G. S. 1913), which provides for cases in which the employee
is entitled to compensation from his employer under part 2, for in
juries which occurred under circumstances also creating a liability
against a third party. In case such third party is also subject to the
provisions of part 2, the employee may either recover from his em
ployer the relief prescribed by the act, or may bring an action against
such third party, but can not proceed against both. If he proceed
against the third party, his recovery is limited to the relief prescribed
by the act. If he takes compensation from his employer under the
act, the employer becomes subrogated to his right of action against
the third party and may recover the aggregate amount payable to the

DECISIONS OF COURTS AFFECTING LABOR.

221

employee with costs, disbursements, and reasonable attorneys' fees.
In case such third party is not subject to the provisions of part 2, the
employee may maintain an action against him without waiving any
rights against the employer and the damages recoverable are not
limited to the relief prescribed by the act; but, if the employee recover
from such third party, the employer is entitled to deduct, from the
compensation payable by him under the act, whatever amount is
actually received by the employee from the third party. In other
words, if a sum equal to, or exceeding, the compensation payable
under the act is actually collected from the third party, the employer
is relieved from liability, but, if the sum actually collected be less
than the amount payable under the act, he must make good the defi
ciency. If, instead of prosecuting an action against such third party,
the employee collects compensation from his employer, the employer
becomes subrogated to the rights of the employee against the tmrd
party and may maintain an action against him for the recovery of the
damages sustained by the employee, but, after reimbursing himself
for the compensation payable to the employee, and for the costs,
attorneys' fees, and expenses of collecting the damages, the employer
must pay over to the employee any surplus remaining of the amount
collected. We find nothing in these provisions contravening any
of the provisions of the constitution. They apply to and bind only
those who have voluntarily accepted and agreed to them.
A careful examination of the entire act satisfies us that it contains
nothing prohibited by either the State or Federal constitution. The
fifth amendment to the Federal Constitution applies only to proceed
ings under the Federal laws, and has no bearing upon the instant case.
Section 4 of article 1 of the State constitution, securing the right of
trial by jury in all cases at law, expressly provides that such right
maybe waived. Where employer and employee both become subject
to the provisions of part 2 of the act, they thereby waive a jury trial
as to matters governed by such provisions. Such right remains
unchanged, however, as to all other matters and all other persons.
The rights set forth and declared in section 8 of article 1 of the consti
tution do not appear to have been infringed. The prohibition con
tained in section 13 of article 1 has no bearing upon the case whatever.
The fact that the provisions of part 2 of the act apply to those only
who elect to be governed thereby, obviates the objections to the act,
not hereinbefore considered, which are based upon the provisions
contained in the fourteenth amendment to the Federal Constitution
and section 2 of article 1 of the State constitution.

Workmen's Compensation— Constitutionality o f Statute—
Election—Proceedings— Young v. Duncan, Supreme Judicial
Court of Massachusetts (June 17, 1914), 106 Northeastern Reporter,
page 1.—Hazel Young was injured while in the employ of Jefferson E.

Duncan. She brought a common-law action, and a plea in abatement
made by the defendant was sustained on the ground that the em
ployer was a subscriber under the workmen's compensation act, and
the case was decided in favor of the defendant on this point.

222

BULLETIN OF THE BUREAU OF LABOR STATISTICS.

Part I, section 5, of the act provides that: “ An employee * * *
shall be held to have waived his right of action at common law to
recover damages for personal injuries if he shall not have given his
employer, at the time of his contract of hire, notice in writing that he
claimed such right, or, if the contract of hire was made before the
employer became a subscriber, if the employee shall not have given
the said notice within 30 days of such subscription.” The plain
tiff claimed that this rule did not apply, since the employer had not
given to her the notice required by part 4, section 21, as amended by
Statutes of 1912, chapter 571, section 16, whichrequires every subscriber
to “ give notice in writing or print, to every person with whom he is
about to enter into a contract of hire, that he has provided for pay
ment to injured employees by the association.” This section provides
no penalty for its nonobservance, nor does it in terms affect the
status of the employee in any respect. The court held that the re
quirement for notice by employees in section 5, in the case of em
ployers who were under the act, was in no wise modified by or
dependent upon the provisions of section 21; and that the employee's
failure to give notice was a waiver of the right to sue. Judge Rugg,
who delivered the opinion, said in part on this point:
If the employee’s right to avail himself of the act depended upon
actual notice to him of the fact of insurance by the employer, hardship
to the employee often might result. There would be strong ground
for the argument that the only right of an employee would be at
common law unless the employer gave the required notice; a conse
quence manifestly at variance with the general purpose of the act
and one which in many instances would work great hardship. There
is no indication in the act itself that part 1, section 5, and part 4, sec
tion 22 [21], were intended to be correlative or interdependent. Each
stands alone with distinct uses and purposes. As thus interpreted
the act is plain and easy of comprehension. If an employee desires to
avoid the act, and preserve his common-law rights, he must give
notice to that effect in the absence of fraud when he enters the em
ployment rather than when he is notified of insurance by tne em
ployer, or he is held to have availed himself of the act. This construc
tion in the vast majority of cases will forward the beneficent aims of
the act better than any other.
It was also urged that as so interpreted, part 1, section 5, was un
constitutional as depriving the employee of a right of trial by jury,
and of property rights. As to this contention Judge Rugg said:
It is urged that it deprives the plaintiff of her constitutional right
to a trial by jury. If that auestion properly is presented and insisted
upon, undoubtedly an employee has a right to trial by jury on the
point whether the employer was in truth a subscriber under the act
and whether notice had been given by the employee at the time of
the contract of hire of an election to rely upon his common-law rights
in cases where claim is asserted that such notice had been given.

DECISIONS OF COURTS AFFECTING LABOR.

223

The issue of fact whether the parties have come under the operation
of the act may be tried to a jury. It may be assumed that a right
of action for personal injuries at common law is a property right. But
the right of trial by jury respecting it goes no further m a case like
the present than the right to have the question whether she had
retained such a common-law right under the act determined by a
jury. But, so far as that right existed in the case at bar, it was
waived.
The section in question affects no existing property right. It
deals with no property right after it has come into being. It affects
a situation which antedates any property right arising out of tort.
It simply establishes a status between subscribers under the act and
their employees in the absence of express action by the latter mani
festing a desire to elect a different status. No complaint justly can
be made that the section compels the employee to elect without suffi
cient knowledge. Ignorance of the law commonly is no excuse for
conduct of failure to act. The employee is not required to act with
out inquiry as to the fact of insurance by the employer. He has only
to ask for information. That is nothing more than is required in
most of the affairs of life in order that one may act intelligently.
The requirement that the election be made at the time of the con
tract for hire is reasonable. Difficulties of a serious nature might be
presented if the right of election were allowed to be exercised after
the happening of the accident.
The possibility that the employee in a given instance may not know
all his rights does not affect the constitutional aspects of the law.
The employee is not compelled to give up any common-law or con
stitutional right. It is a matter of choice whether he avails himself
of the one or the other. Reasonable provisions are made for the exer
cise of his election.
The section is not opsn to objection as class legislation, or as
denying equal protection of the laws. It applies to all employees
alike. In this respect it is no more vulnerable than the employers'
liability act, which establishes remedies for the benefit of employees,
the weekly payment law or many other acts of like nature. The act
is constitutional and is not op?n to criticism in the respects urged by
the plaintiff. It follows that judgment rightly was ordered for the
defendant in the action at law.
The employee had made no claim under the compensation act. The
insurer, following the law, had notified the industrial accident board
of the accident, and a commission of arbitration was formed, which
made an award in favor of the plaintiff. A claim for review by the
industrial accident board, filed by her, was withdrawn, and the
superior court entered a decree in accordance with the findings of the
arbitration committee. The act as amended provides that when a
decree of the superior court has been entered “ there shall be no appeal
therefrom * * * where the decree is based upon a decision of an
arbitration committee.” The court held that this was a reasonable
provision, and that there was no ground of appeal from the decree of
the superior court.

224

BULLETIN OF THE BUREAU OF LABOR STATISTICS.

Workmen’s Compensation— Constitutionality o f Statute—
Exclusiveness o f Remedy— Election—Shade v. Ash Grove Lime
& Portland Cement Co., Supreme Court of Kansas (Apr. 11, 1914),
139 Pacific Reporter, page 1193, 144 Pacific Reporter, page 249.— Frank

D. Shade brought action against the company named for damages for
personal injury. The action was dismissed on the ground that the
employee’s remedy under the compensation law of the State was
exclusive. Shade thereupon appealed. The supreme court held that
while the action should have been brought under the compensation
act, it should not have been dismissed, but an award made under the
proper act. Judge Benson, who delivered the opinion of the court,
in discussing this point, spoke in part as follows:
The petition contained averments sufficient for a cause of action
under the factory act (Gen. Stat. 1909, secs. 4676-4683), under which
it was obviously drawn; but it also contained charges of negligence
sufficient to sustain a cause of action independent of the act.
The first [compensation] act applied to employers within its pur
view, who elected to come under its provisions, and to accept there
under, but by the later statute, which took effect March 12, 1913, it is
declared that the employer shall be deemed entitled to come within
its provisions unless he shall file with the secretary of state a notice
of his election not to accept thereunder, and the employee is put in
the same situation. The plaintiff was injured March 13, 1913. The
defendant filed a statement of its election not to come under the act
on March 17. . The plaintiff never filed a like declaration. It will
therefore be seen that on March 13, the date of the injury, both parties
were under the provisions of the act; neither having elected to the
contrary, although the defendant did so a few days afterward.
It follows that the plaintiff could not recover otherwise than under
the workmen’s compensation act, but it is not perceived how this de
prived the court of jurisdiction of the person and subject matter, or
afforded grounds for a dismissal of the action. The district court
clearly had jurisdiction. The action should be reinstated for the pur
suit of any appropriate remedy that the present petition or any
reasonable amendment may warrant.
The judgment is reversed, and the cause remanded for further
proceedings.
This case again came before the court on a rehearing on November
14, 1914. The court in its opinion, delivered also by Judge Benson,
affirmed the former opinion as to the exclusiveness of the remedy, and
in addition upheld the constitutionality of the act, the ollowing
quotations giving the line of reasoning pursued:
It was held in the former opinion that, where the employer and
employee are both under the compensation act, the remedy afforded
by that statute is exclusive. It is argued that this conclusion is un
sound, and that it should be held that the employee may still resort
to the factory act for relief. Upon a reexamination of the question,
the court remains satisfied with the views stated in the former deci
sion for the reasons stated in that opinion, and in the opinion in
McRoberts v. Zinc Co., 144 Pac. 247 [see p. 236].

DECISIONS OF COURTS AFFECTING LABOR.

225

It should also be observed that an employee is not deprived of the
right to the benefit of the factory act nor of common-law remedies
without his consent. They remain open to his election, if made before
the injury, by filing a declaration “ that he elects not to accept there
under” ; that is, under the provisions of the compensation act. Laws
1913, ch. 216, sec. 8.
The provisions of the Federal and State constitutions, guaranteeing
due process and equal protection of law invoked by the plaintiff are
not violated by this statute, as decided in many jurisdictions. The
act classifies occupations with reference to the nature of the busi
ness and number of employees. This feature is strenuously objected
to as a violation of the constitutional safeguards referred to. Similar
provisions are found in like statutes of other States, and have gener
ally been sustained.
After discussing some of the decisions referred to, the opinion takes
up other objections as follows:
The objection based upon the supposed deprivation of a right of
trial by jury is equally untenable, as determined in many adjudicated
cases. The same is true of the arbitration feature and the rules for
determining compensation. Without reviewing seriatim all the
specific objections made to this statute under the general charge
that it violates constitutional safeguards, it is sufficient to say that
they have all been met in judicial decisions in other jurisdictions
after the most thorough and patient examination. It seems unneces
sary, now that the validity of such laws has been so generally main
tained, to review the many adjudicated cases, and restate in detail
the well-settled principles upon which they are based. Briefly it
may be said that the operation of the system of compensation pro
vided by the statute rests upon the free consent of employer and
employee, given in the manner provided by the act. Without such
consent on his part, the employee retains all his remedies under com
mon and statutory law. It is a matter of election.

Workmen's Compensation— Constitutionality o f Statute—
T itle— Wages— Huyett v. Pennsylvania Railroad Co., Court of Errors
and Appeals of New Jersey (Oct. 16, 1914), 92 Atlantic Reporter, page
58.—This was a case arising from death by injury in the course of

employment, the plaintiff being administratrix of the deceased em
ployee. The judgment in the supreme court was in favor of the
plaintiff, and the company appealed. The court of appeals quoted
the opinion and affirmed the judgment of the supreme court in favor
of the plaintiff, deciding two points raised.
The first was as to the constitutionality of the act, the contention
of the defense being that as the title of the act mentioned only
“ injuries received by an employee,” provision for payments of com
pensation for death was not properly included. The court said:
“ Whether the injuries result in death or not, they are naturally and
properly spoken.of as injuries received by an employee.”
85590°~Bull. 169-^-15^— -15

226

BULLETIN OF THE BUREAU OF LABOR STATISTICS.

The second question related to the definition of “ wages,” the
amount of compensation being based on “ wages received at the time
of injury” in certain cases, on “ daily wages” in others, and on
“ wages” in a third case. The deceased employee was earning, at the
time of his fatal injury, a somewhat larger amount than he previously
had been earning. The court held that all the provisions referred to
wages at the time of injury, and that any injustice caused by these
provisions must be corrected by the legislature rather than by the
courts.
Workmen’s Compensation—Contract o f Employment Made in
Another State—American Radiator Co. v. Rogge, Supreme Court of
New Jersey (Nov. 5 , 1914), 92 Atlantic Reporter, page 85.—This was a

proceeding by John F. Rogge as administrator against the company
named for compensation for the death of a workman in the course of
employment with the company. The employee died in New Jersey
from an injury received in that State, but the contract of employment
was made in New York. The supreme court affirmed the j udgment ren
dered for the plaintiff under the New Jersey compensation act in the
court of common pleas of Union County, holding that the act covers all
accidents occurring in the State, and that the only method by which
an employer desiring to avoid coming under the provisions of section
2 regarding compensation can do so is by giving notice of rejection as
provided in the act.
Workmen's Compensation—Dependency— Finding o f Board—
In re Bentley, Supreme Judicial Court of Massachusetts (Feb. 27,1914),
104 Northeastern Reporter, page 432.—The industrial accident board

found from the evidence that the wife of the decedent Bentley was
not dependent upon him at the time of the injury and that his child
was partially so, neither having been living with him at the time,
and awarded $1 per week for 300 weeks to the child alone. The
claimants appealed, but the findings of fact not being subject to
review, and the evidence not having been reported, it could not be
contended that they were not warranted as matter of law. The order
was therefore sustained as correct.

Workmen’s Compensation—Dependency— Finding o f Board—
In re Herrick, Supreme Judicial Court of Massachusetts (Feb. 27,1914),
104 Northeastern Reporter, page 432.—The superior court of Suffolk

County issued a decree awarding compensation to the daughter of
George Herrick, and the insurer of his employer appealed. All the
evidence having been reported, the supreme judicial court held that
it was a question of law whether there was some evidence on which

DECISIONS OF COURTS AFFECTING LABOR.

227

to base the finding that the daughter was dependent on her father.
It decided that there was such evidence and therefore affirmed the
decree of the court below.
Judge Sheldon, speaking for the court, said in part:
She [the daughter] received practically all of his wages; she testi
fied that all of her support came from him. That but for her sense
of duty, because she thought that her father needed her care, she
might have continued to earn enough for her own support, and to
be independent of him, can not be decisive as matter oi law against
her claim. The board well might base its conclusions upon the
'facts as they were and not upon what might have been the case if
her sense of filial duty had been weaker.

Workmen’s Compensation — Dependency — Presumptions —
W ife Living Apart from Husband—In re Gallagher, Supreme
Judicial Court of Massachusetts (Oct. 24, 1914), 106 Northeastern
Reporter, page 558.—Mary E. Gallagher was the widow of an em

ployee who received an injury on December 17, 1912, and died
from its effects on January 15, 1913. She had been living apart
from him for justifiable cause for about four years, and he had con
tributed to her support by order of court. She had been obliged,
however, to labor and earn a large part of the needful amount.
The industrial accident board held that under these circumstances
she would be conclusively presumed to be wholly dependent upon
her husband, as a wife living with her husband is presumed to be by
a provision of the act. On appeal by the insurer this decision was
reversed. The court called attention to the fact that since the
death of Gallagher the legislature, at the session of 1914, had amended
the act by providing that if, at the time of the husband’s death, the
industrial accident board shall find the wife was living apart for
justifiable cause or because he had deserted her, she is conclusively
presumed to be wholly dependent upon her husband, but held that
the industrial accident board should determine the question of depend
ence in the present instance under another clause of the statute,
which provides that the award shall be made in accordance with
the facts as they existed at the time of the injury.

Workmen’s Compensation — Dependency — Presumptions —
W ife Living Apart from Husband— In re Nelson, Supreme Judi
cial Court of Massachusetts (May 19, 1914), 105 Northeastern Re
porter, page 357.— Alice E. Nelson instituted proceedings under the
workmen’s compensation act for the death of her husband, Alvin
R. Nelson. The superior court of Suffolk County decreed compensa
tion to her and the employer appealed.

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BULLETIN o f t h e b u r e a u o f l a b o r s t a t i s t i c s .

The act provides that a wife living with her husband shall be con
clusively presumed to be dependent on him. In the present case the
wife and husband had lived apart several times for periods of a few
months, and at the time of his death had not lived together in the
sense of occupying the same house for nearly a year, she being in
Nova Scotia dining the last six months while he was at work in
Boston. There had been no talk of permanent separation or divorce,
but she appears to have been largely supporting herself and their
child for the year mentioned. Under these circumstances the court
held that they were not “ living together” in the sense meant by.
the language of the statute, and that the industrial accident board
should ascertain the extent of dependency as a matter of fact.

Workmen's Compensation—Dependents o f Minors— Dazy v.
Apponaug Co., Supreme Court of Rhode Island (Jan. 2, 1914), 89
Atlantic Reporter, page 160.—This was a petition by the father of a
minor who had been killed as the result of an accident while in the
employ of the company named. The superior court of Kent County
had rendered a decree granting compensation only to the extent of
the $200, which is, under the provisions of the act, to be paid as
expenses of last sickness and burial where there are no dependents;
and this was affirmed by the supreme court, on the ground that after
the death of the son the family was still able to save some money
weekly. Judge Vincent, speaking for the court, said in part:

The superior court found that the father was not wholly or partly
dependent for support upon the earnings of his son at the time of the
injury and therefore was not entitled to receive compensation under
the terms of the workmen's compensation act. The superior court,
however, ordered the respondent to pay to the petitioner the sum of
$200 for the expenses of the last sickness and burial of the son.
We think that the decision of the superior court was correct. The
test of dependency is not whether the petitioner, by reducing his
expenses below a standard suitable to nis condition in life, could
secure a subsistence for his family without the contributions of the
deceased son, but whether such contributions were needed to provide
the family with the ordinary necessaries of life suitable for persons in
their class and position. Boyd Workmen's Compensation, sec. 234.
The petitioner is not bound to deprive himself of the ordinary neces
saries of life to which he has been accustomed in order to absolve the
respondent from the payment of damages, nor can he on the other
hand demand money from the employer for the purpose of adding
to his savings or investments. The expression “ dependent” must be
held to mean dependent for the ordinary necessaries of life for a person
of his class and position and does not cover the reception of benefits
which might be devoted to the establishment or increase of some fund
which he might desire to lay aside.

DECISIONS OF COURTS AFFECTING LABOR.

W orkmen' s Compensation— Dependents

229

Minors— Benefits

—In re Murphy, Supreme Judicial Court of Massachusetts (June 17,
1914), 105 Northeastern Reporter, page 635.— Daniel Murphy insti
tuted proceedings against the Bigelow Carpet Co. and its insurer for
compensation for the death of his minor son, Walter Murphy. The
boy had earned $5.67 per week, and contributed all of this to his
father for the support of his family, which consisted of the father,
mother, and nine children, including Walter. The act provides that
in the case of partial dependents “ there shall be paid such dependents
a weekly compensation equal to the same proportion of the weekly
payments for the benefit of persons wholly dependent as the amount
contributed by the employee to such partial dependents bears to the
earnings of the deceased at the time of his injury." The industrial
accident board found that, although the father was a partial depen
dent in the sense that he had other income, the earnings of himself
and other children, the rule quoted obviously did not apply in such a
case, and the amount of compensation should be the same as for a
total dependent, in this case the minimum amount permitted by the
statute, or $4 a week, for the 300 weeks specified in the act. The
court adopted this view, saying in its opinion delivered by Judge
Hammond:
In the present case the father had a large family which he was
legally bound to support, and this he was bound to do, whether the
children could help or not. The amount contributed by Walter went
to help the father in the support of the whole family. Whether it is
wise to distinguish as to the support of the individual members of the
family in a case like this, as the msurer suggests, is for the legislature.
Workmen's Compensation— Depositions fo r Use o f Indus
t r ia l Accident Board— L etters Rogatory— Power o f Courts—

In re Martinelli, Supreme Judicial Court of Massachusetts (Oct. 23,
1914)) 106 Northeastern Reporter, page 557.— Sylvio Martinelli as
administrator petitioned the superior court of Hampden County to
issue letters rogatory to obtain the testimony of witnesses in the
Kingdom of Italy to be used in hearings before the industrial accident
board for the recovery of payments under the workmen's compensa
tion act for the death of two persons for whose estates he was admin
istrator. The petition was granted in the trial court, and the insur
ing company concerned took exceptions thereto and appealed the
case, the appeal resulting in the action of the court below being
reversed.

Speaking of the uses of letters rogatory, and the power of a court to
issue the same, Judge Rugg, who delivered the opinion of the court,
used in part the following language:
Letters rogatory as a means of procuring the evidence of witnesses
in foreign States are not much in use in this Commonwealth. The

230

BULLETIN OF THE BUBEAU OF LABOR STATISTICS.

statutes make ample provision to this end by means of depositions.
The power to issue a commission rogatory in order to prevent a failure
of justice is inherent in a court. But it always has been recognized
that such power can be put forth only in aid of a cause actually
pending in the court, which issues the letters.
It is not averred in the application nor contended in argument that
the proceedings before the mdustrial accident board are pending in
the superior court. Manifestly they are not so pending. The ma
chinery of the workmen’s compensation act does not contemplate the
ascertainment of facts in that court.
It is not within the power of a court, even of general jurisdiction,
to issue letters rogatory to obtain testimony to be used before a tri
bunal over whose procedure and trials it is given no authority until
the case itself may be brought before it for review. Therefore, it is
not within the authority of the superior court to procure evidence for
use before a tribunal over whose proceedings it has no more inti
mate supervisory power than it has over the industrial accident board.

Workmen’s Compensation— Distribution o f Compensation—

In re Janes, Supreme Judicial Court of Massachusetts (Feb. 28,1914),
104 Northeastern Reporter, page 556.— John C. Janes, the employee,

died as a result of injuries which arose out of and in the course of his
employment. Janes was a widower. The industrial accident board
found that his two minor children were living with him at the time
of the injury and were wholly dependent. One child died about a
week after the father’s death. The decree of the superior court was
to the effect that the sum payable as compensation should be divided
between the guardian of the surviving child and the administrator
of the deceased child. The guardian of the living child did not appeal
from this decision, but the insurer did. The court decided that the
insurer had no right of appeal in the matter of the distribution of the
compensation, the amount being the same in any case. This ruling
was said not to intimate an opinion as to the soundness in law of the
decree sought to be called in question.
Workmen’s Compensation— E lection— Incapacity— OorreTl v.
Battelle, Supreme Courtof Kansas (Nov. 14, 1914), 144 Pacific Reporter,
page 244•—James H. Gorrell brought action under the workmen’s com

pensation act against A. C. Battelle. Compensation was awarded in
the district court of Franklin County for partial incapacity for the
maximum period and in a lump sum, whereupon the defendant ap
pealed. The petition alleged that the defendant had not filed with
the secretary of state an election not to accept the terms of the act.
This allegation was denied, and on appeal it was contended that tho
plaintiff should have proved that no such election had been made.

DECISIONS OF COURTS AFFECTING LABOR.

231

This was, however, overruled by the court, as is shown by the fol
lowing paragraphs from the syllabus prepared by the court:
The statutory presumption that all employers affected by the work
men’s compensation act (Laws 1911, ch. 218, amended by Laws 1913,
ch. 216) are within its provisions obtains until the contrary appears,
and nonliability to an action for compensation because of an election
to stand outside the provisions of the act is an affirmative defense.
An employer, who in good faith denies liability on the ground of
such an election, should ask the court to investigate that subject first,
and thereby save the time and expense of a further trial. In all but
the most exceptional cases, the certificate of the secretary of state will
settle the dispute, and the court may require the production of such
certificate at any time. Unless the record on appeal clearly discloses
that the defense was specifically and unequivocally brought to the
attention of the trial court while it had possession of the case, this
court will consider the defense as abandoned.
Plaintiff was a carpenter and a brick mason by trade and, in a period
of dullness in those trades, was employed by the defendant as a car
repairer. His right eye was struck by a piece of steel and destroyed
and the sight of the left eye greatly injured, so that he had been able
to get only laborer’s work and had not been able to do even that
satisfactorily. Compensation was awarded on a weekly basis and
commuted to a lump sum. The court affirmed the judgment below
as to this also, as is shown by the following paragraph of the syllabus:
The workmen’s compensation act awards compensation for inca
pacity to work as a result of injury. This means compensation for
loss of earning power as a workman as a result of injury, whether the
loss manifest itself in inability to perform obtainable work or inability
to secure work to do.
Workmen’s Compensation— E lection— Minors— Notice— Con
stitu tio n a lity o f Statute — Troth v. Millville Bottle Works, Su

preme Court of New Jersey (Oct. 9, 1914), 91 Atlantic Reporter, page
1081.—Troth, an employee of the bottle works, filed a petition against
it for compensation for injury to an eye, and an order that the defend
ant pay the petitioner $5 per week for 100 weeks was entered by the
Cumberland court of common pleas. Troth was a minor and an ap
prentice, his contract dating from September 25, 1909, and expiring
on the same date in 1913. The injury occurred December 22, 1911,
and the compensation act took effect earlier in 1911, but, as is appar
ent, after the contract of employment was made.
A notice that the employer would not be bound by the terms of
section 2 of the act, which provides for workmen’s compensation, had
been posted and also given by means of the pay envelopes. The
court held that this was not, in the case of a minor, a sufficient com
pliance with the statute, which provides that the section shall apply
unless notice is given to the parent or guardian of the minor.

232

BULLETIN OF THE BUREAU OF LABOR STATISTICS.

As to the constitutionality of the law as applied to preexisting
contracts, the court quoted and followed the Wisconsin decision in
Borgnis v. Falk, 133 N. W. 209 (see Bui. No. 96, p. 799), and held the
provision valid.
The judgment of the court below was accordingly affirmed.

Workmen’s Compensation— Election o f Remedies—Exclu
siveness— The “ Fred E. Sander” United States District Court, Western
District of Washington (Mar. 6, 1914), 212 Federal Reporter, page
545.—James A. Thompson brought action in admiralty against the
vessel named for damages for personal injuries received by him. In
his libel the employee admitted the receipt of $360 from the Industrial
Insurance Commission of the State of Washington, but averred that
the same was a gratuitous payment out of a fund provided by the
State, that the defendant had never contributed anything to said
fund, and that the amount was in no manner accepted as payment for the
injuries. In taking exceptions to the libel, the defendant contended
that the receipt of this money under the compensation act consti
tuted an election which barred the bringing of an action, and the
court upheld this contention. Judge Neterer, who delivered the opin
ion, said:

The common-law right of action being withdrawn, it is immaterial
whether payment has been made by the employer to the u accident
fund” or not. The fact that the defaulting employer is not protected
against actions for injury in case of default of payment after demand
will not defeat the injured workman’s right to take under the act,
should he so elect.
But for the enactment of the workmen’s compensation act of the
State of Washington, libelant would have two remedies; one his
common-law action for damages against the owners, and the other a
proceeding in admiralty. The selection of the one remedy would bar
a proceeding in the otner. A party can not enforce both remedies,
and will be required to elect whether to p ursue his common-law remedy
or proceed in admiralty. The workmen’s compensation act, while
it took away the common-law action, provided in its stead another
remedy. If the libelant determined to obtain relief from the sub
stitute which is provided for his common-law remedy, and received
compensation under such act, then he can not proceed in admiralty
and thus obtain double compensation for the injury of which he
complains.
Workmen’s Compensation— Employers’ Liability— “ W illfu l
A c t”— McWeeny v. Standard Boiler & Plate Co., United States Dis
trict Court, Northern District of Ohio (Jan. 15, 1914), 810 Federal
Reporter, page 507.—John J. McWeeny was very seriously injured

while in the employ of the defendant company. He sued the com
pany, in spite of the fact that the company had complied with the

DECISIONS OF COURTS AFFECTING LABOR.

2 S3

provisions of the workmen’s compensation act of Ohio, relying on the
provision of section 21-2 of that act that nothing in the act shall
affect the civil liability of the employer when the injury has arisen
from the willful act of the employer or any of his agents or servants,
or from the failure of any of them to comply with any statute for the
protection of the life or safety of employees. He recovered a verdict
of $14,000, and the company moved for a new trial, which was denied.
The nature of the willful act claimed by the plaintiff, and the view
taken by the trial court as to what constitutes such an act, is shown
in the following extracts from the opinion of the court as delivered
by Judge Day:
The plaintiff and other employees of the defendant company to
gether with a man named Fisher, the foreman, having charge of the
work, were engaged in erecting a large sheet-iron tank to be used for
the storage of chemicals. This tank was composed of large iron plates
which were lifted in position by means of a derrick and boom erected
upon a scaffolding placed within this large metal tank. Shortly before
the accident occurred, the attention of Fisher, the foreman, was sev
eral times directed to the fact that the mast of the derrick was leaning
2 feet, that one of the guy lines was weak, and several of the men
said to him that the mast should be straightened and the guy lines
should be tightened and replaced. Fisher refused to do this, and,
notwithstanding the fact that his attention was called to the defects
in this derrick several times and that a strain of a ton load was being
placed upon the guy lines and the derrick, the foreman with an oath
directed McWeeny and the other men to proceed with the lifting of
the heavy iron plate. They did so, and while engaged in this work
the scaffolding and derrick collapsed, injuring McWeeny and several
other of the men.
The evidence tends to show that the foreman at the time of this
unfortunate occurrence was himself in a place which was of no danger
to him.
From an examination of these sections [20-1 and 21-2] it is appar
ent that, where an employer has complied with the provisions of this
act in paying the premiums into the funds and in posting the neces
sary notices, the employee in case of injury, or his representative in
case of death, can not recover for negligence or the want of ordinary
care; but if the injury results from a willful act, or from the violation
of a statute or ordinance or order of any duly authorized officer,
which statute, ordinance, or order was enacted ior the protection of
the life or safety of the employee, then in such event the employee
can either take the benefits provided under this act or sue in court
to recover.
The defendant contends that the willful act in contemplation of
this statute must have been an act done intentionally with a purpose
to inflict injury. The court charged at the trial, in part:
4 “ To constitute a willful act in this case, you must find that the
action of Fisher was such an action as to evince an utter disregard of
consequences so as to inflict the injuries complained of. In other
words, the negligent action was such recklessness reaching in degree
to utter disregard of consequences which might probably follow. If

234

b u lle tin

o f t h e b u re a u o f la b o r s t a t is t ic s .

the action of Fisher in ordering McWeeny to work on this scaffold and
in connection with this derrick was done under such circumstances
as to evince an utter disregard for the safety of McWeeny and the
other employees working there in connection with him, then that
action was a willful act.”
• If the contention urged by defendant that a willful act had to be
an act coupled with an intention to injure the employee were the
correct construction of those terms of the statute, then the employers
of laborers, so long as they themselves or their employees did not
criminally injure their employees, could incur no liability no matter
how recklessly or carelessly they conducted their business without
any regard to the safety of those employed.
Extreme cases of this sort will seldom arise. I can not believe that
the legislature intended that the term “ willful act” should be nar
rowed down to mean a deliberate intent to do bodily injury and
nothing else.1 This compensation act was passed for a purpose; its
primary purpose was to protect the men engaged in the various occu
pations in Onio.
In my opinion, the case was fairly tried, and the issues fairly sub
mitted, and the motion for a new trial will be overruled.

Workmen's Compensation—Employment During Part of
Year— Computation of W eekly Payment— AndrejwsTci v. Wol
verine Coal Co., Supreme Court of Michigan (Oct. 2, 1914), 148 North
western Reporter, page 684 •—Anne Andrejwski brought proceedings

under the compensation act for the death of her husband, which
occurred on November 18, 1912, as the result of an accident in the
course of his employment in a mine of the company named. The
employer and employee had elected to come under the compensation
act, and the plaintiff was the sole dependent and entitled to compen
sation. The only question was as to the amount of the weekly pay
ment to be made to her. The mine in which the deceased worked
was not operated during the whole of any year. For the year imme
diately preceding it had been operated 148 days, and coal had been
sent up and paid for “ on his number" on 131 days, the pay for it
amounting to $507.45. It was customary, however, for two or three
of the miners to work together, and send the coal up on the number
of one of them, so that this did not indicate correctly the amount
earned by him. During the remainder of the year he had worked as a
cement-block layer and earned $487.14. The section relating to
amount of compensation, on the construction of which the award in
this case depended, is as follows:
Sec. 11. The term “ average weekly wages" as used in this act is
defined to be one fifty-second part of the average annual earnings of
the employee. If the injured employee has not worked in the employ
i It may be noted that the legislature of Ohio, in February, 1914, amended the law so as to define the term
"willful act” to mean “an act done knowingly and purposely with the direct object of injuring another.”

d e c is io n s

of c o u r t s a f f e c t i n g

labor.

235

ment in which he was working at the time of the accident, whether
for the employer or not, during substantially the whole of the year
immediately preceding his injury, his average annual earnings shall
consist of three hundred times the average daily wage or salary which
he has earned in such employment during the days when so employed.
If the injured employee has not workea in such employment during
substantially the whole of such immediately preceding year, his aver
age annual earnings shall consist of three hundred times the average
daily wage or salary which an employee of the same class working
substantially the whole of such immediately preceding year in the
same or a similar employment in the same or a neighboring place,
shall have earned in such employment during the days when so em
ployed. In cases where the foregoing methods of arriving at the aver
age annual earnings of the injured employee can not reasonably and
fairly be applied, such annual earnings shall be taken at such sum as,
having regard to the previous earnings of the injured employee, and
of other employees of the same or most similar class, working in
the same or most similar employment, in the same or neighboring
locality, shall reasonably represent the annual earning capacity of the
injured employee at the time of the accident in the employment in
wnich he was working at such time.
The court held that the methods of determining the weekly wages
provided by the first, second, and third sentences of the section quoted
were applicable only to employments which continue during substan
tially the entire calendar year, and that these methods could not
reasonably and fairly be applied to the present case. The method
which the court concluded should be used in computing the compen
sation in this case is shown by the following quotation from the
opinion as delivered by Judge McAlvay:
To charge this employment with compensation for injuries to its
employees on the same basis as employments which operate during
substantially 300 days in the year would be an apparent injustice,
as such compensation would be based on the theory of impossible
earnings by the employee in that employment which operated upon
the average a trifle over two-thirds of a working year. This was
recognized and provided for by the legislature by omitting from the
fourth classification any requirement relative to the average daily
wage or salary of an injured employee. This construction, in prin
ciple, appears to be supported by the English cases involving ques
tions of like character. [Cases cited.]
In the record is an exhibit showing the annual earnings paid by
appellant to the deceased from 1904 to 1912, inclusive, amounting to
$5,175.21. From this table we find that the average annual earnings
paid to him during that period were $575.02, which we will take as a
basis for the computation of the compensation to which the claimant
is entitled. Having determined his average annual earnings there
remains nothing further to do, except to determine the average
weekly wages, by dividing this sum by 52, the result of which is
$11.06, as such average weekly wages. One-half of this amount,
being $5.53, would be the amount to be paid weekly to the claimant
for a term not exceeding 300 weeks.

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BULLETIN OF THE BUREAU OF LABOR STATISTICS.

Workmen's Compensation— Evidence Necessary to Support
Finding— Reck v. Whittlesberger, Supreme Court of Michigan (July
24, 1914), 148 Northwestern Reporter, page 247 .— Rudolph Reck, a
baker, died January 12, 1913, of septic pneumonia, resulting, as his
physician testified, from an infected wound in his hand. This was
claimed to have been caused on December 26, 1912, from a nail in
some fuel with which he was firing an oven in the defendant’s bakery.
No one in the shop knew of the accident at the time. He finished
his work that day and worked nearly two days thereafter, and did not
call a physician until January 2. The physician who attended him
testified that death resulted from the wound, and the industrial acci
dent board based its award on the determination of the arbitration
committee that the applicant for compensation, Reek's widow, was
entitled to $2,250. The board, finding no direct evidence, admitted
hearsay evidence, consisting of what Reck told his family and fellow
employees as to the cause of the injury. In accordance with the law,
the employer notified the board of the accident before Reek's death
and made a second report after it, both reports stating that a nail
was run into or scratched Reek's left hand while he was throwing
wood into the furnace. The court held that, while the “ elementary
and fundamental principles of judicial inquiry should be observed,”
so that hearsay evidence should not be admitted, yet the decisions
of the accident board should not necessarily be reversed under the
rule that error is always presumed to be prejudicial. Since the
reports of the employer, made while the sources of information as to
the cause of the accident were fresh and available, were sufficient
evidence on which to base the finding of the board, the court affirmed
its order.
Workmen's Compensation— Exclusiveness of Remedy—Pro
ceedings Under Common Law— Nature of Award—Measure of
Damages— McRoberts v. National Zinc Co., Supreme Court of K a n
sas (Nov. 14, 1914), 144 Pacific Reporter, page 247 .— E. F. McRoberts
was injured while in the employment of the company named and
sought to recover in an action, claiming both benefits under the com
pensation act and damages at common law. Under the compen
sation act of the State election to accept its provisions is pre
sumed in the absence of an affirmative rejection, which action had
not been taken, so that both parties were within its provisions. The
company demurred to the declaration, contending that McRoberts
was not entitled to claim on both bases but must elect the ground of
his procedure. The district court of Wyandotte County overruled
the objections of the company, and the case proceeded to trial on the
question of damages at common law, the court saying that the claim
under the compensation law would be taken under advisement for

DECISIONS OF COURTS AFFECTING LABOR.

237

future action. The result of the trial was a verdict for the plaintiff
in the full amount claimed, whereupon the company appealed, insist
ing that the remedy provided by the compensation law is exclusive
where it applies. This contention was sustained by the supreme
court, citing its decision in Shade v. Cement Co., 92 Kan. 146, 139
Pac. 1193 (see p. 224), The decision in the case cited had not been
announced when the present case was tried nor when the appeal was
taken, but it was conceded at the present time that the case should
be settled under the compensation law in accordance with the ruling
in the Shade case. The question was therefore submitted as to
whether, under the record as presented, the judgment of the court
below might be treated as an award of compensation. The court
held that this was impossible, since to do so would be for it to try
and determine an issue that was not considered nor decided by the
trial court. Judge Johnston, speaking for the court, said in part:
The elements which enter into a recovery of compensation differ
radically from those which warrant a recovery of damages, and the
evidence which would support the issue in one is inappropriate to
offer in support of the other. Compensation for partial or total
disability depends mainly on the average earnings of the injured
employee for certain periods preceding the injury, while the damages
awarded were not measured by earnings, but were based on the
loss which resulted from pain and suffering endured by appellee and
to be endured in the future, as well as the loss sustained by the dis
figurement of his hand. The extent of the incapacity resulting from
the injury is an important question for determination. Is the disa
bility total or partial, and, if partial, is it of a permanent nature?
The age of the employee is a consideration, as well as the grade of
employment in which he had been engaged for the year preced
ing the accident; and, in determining what is a just average of the
earnings of the employee, it is important to know whether his employ
ment had been casual or continuous, and whether he had been engaged
by more than one employer. No issue was formed on the matter of
earnings, and the attention of the jury was not called to the evidence
relating to wages and the award which the jury made was not based
on an average of earnings. On the contrary, as we have seen, the
jury were instructed to measure the recovery by the pain and suffer
ing which appellee had endured before the trial and would probably
undergo in the future—a measure wholly inconsistent with that pre
scribed in the compensation statute. Maximum and minimum limi
tations are placed on the average of the earnings of an employee, and
there is also a provision that payments for total and partial disability
shall in no case extend over a period of eight years. Here, as we
have seen, no consideration was given to any limitation, and the jury
were authorized to award damages that appellee might sustain
throughout his life by reason of the injury. If compensation is to
be contested, an issue should be framed between the parties as to the
right to compensation, each having an opportunity to offer testi
mony in support of the issue, and the compensation should be meas
ured as the statute provides. There is no basis on which this court

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can treat the verdict as an award of compensation, nor is it warranted
in directing a judgment for any amount on the record, as it stands.
The judgment was therefore reversed and the case remanded for a
new trial under the compensation act.

Workmen’s Compensation— Extrahazardous Employment—
Workman— Wendt v. Industrial Insurance Commission, Supreme
Court of Washington (June 23,1914), 141 Pacific Reporter, page 311.—
Clara Wendt made application to the industrial insurance commis
sion of Washington for an allowance under the compensation act for
the death of her husband, George Wendt. The commission rejected
the claim but the superior court of Pierce County overruled this
decision and allowed the claim. On appeal by the commission, this
judgment was affirmed, the employment being declared extrahaz
ardous within the meaning of the act. Wendt’s employer, the StoneFisher Co., conducted a department store, and in connection there
with had a repair shop for their delivery wagons and automobiles,
separate from the store, and equipped with power machinery of
various kinds run by an electric motor. The company employed
from one to three carpenters in putting up shelving in the store and
other work, and Wendt was the head carpenter previous to his death
on March 20,1912. On that day he attempted to turn on the current
so as to use a grindstone to sharpen his chisel. In doing so his hand
came in contact with the copper contacts of the switch. The wire
which carried the current to the repair shop had become crossed with
a high-tension wire, and he was instantly killed by a current of 2,700
volts which passed through his body.
Judge Morris, who delivered the opinion of the court, having stated
certain provisions of the act, said:
Section 4, in referring to the particular classes of industry covered
by the act, includes m class 5 of construction work “ carpenter
work not otherwise specified” ; in class 29, under the heading “ Fac
tories (using power-driven machinery),” “ working in wood not other
wise specified” ; in class 34, under the same heading, “ machine shops
not otherwise specified.” The same section provides that, if an
employer, besides employing workmen in extrahazardous employ
ment, shall also employ workmen in employments not extrahazard
ous, the provisions of the act shall apply only to the extrahazardous
departments and employments and the workmen employed therein.
It being shown that the deceased at the time of his injury was em
ployed in a “ workshop where machinery is used,” that the workshop
was a place “ wherein power-driven machinery is employed and man
ual labor is exercised, * * * over which place the employer of
the person working therein has the right of access or control,” and
that he was injured “ upon the premises,” it seems to us there is no
escape from the conclusion that his injury is within the purview of
the act.

DECISIONS OF COURTS AFFECTING LABOR.

239

As to the contention that the employer must also be engaged in
an extrahazardous business, the court said:

The act recognizes in section 4 that the same employer may at
the same time be engaged in employments both within and without
the purview of the act, so far as the hazardous character of the
employment is concerned; in which case the act shall apply only
to the extrahazardous departments, and to the workmen employed
therein. And in this connection it matters not which is the prin
cipal business, and which is the incidental business. If the employer
conducts any department of his business, whether large or small,
as an extrahazardous business within the meaning and defined
terms of this act, his workmen would come within the class desig
nated by the act, and be entitled to the protection of the act. Such
interpretation we believe falls within the letter as well as the spirit
of an act that, because of its humaneness and declaration of a new
public policy, should be interpreted liberally and broadly in harmony
with its purpose to protect injured workmen and their dependents
independent of any question of fault.

Workmen’s Compensation— Farm Laborers— In re Eeaney,
Supreme Judicial Court of Massachusetts (Feb. 27 , 1914), 104 Northeastern Reporter, page $?<?.— Patrick Keaney instituted a proceeding
under the workmen’s compensation act to secure compensation for
an injury suffered while employed at farm labor by a market gardener.
The industrial accident board and the superior court of Suffolk
County decided against his claim, and he appealed, but the decree
of the court below was affirmed. The employer hired four drivers
and four helpers, who were largely engaged in delivering his products
in the city of Boston. These men worked on the farm when not
employed in delivery, while others, including Keaney, were con
stantly employed in farm labor. The employer had adopted the
act as to the drivers and helpers by securing insurance intended to
cover them only, and the contention on behalf of the injured employee
was that in so doing he had placed himself under its provisions as
to all his employees. The court held that this would probably be
true in cases other than those of the excepted classes of employers
and employees, but that if a farmer desired to come under the act
in part he might do so. Judge Rugg, who delivered the opinion,
said further:
The act is a practical measure designed for use among a practical
people. There appears to be no reason for saying that a farmer
may not adopt it if he desires. Any contract of insurance made
by him under its terms is valid and enforceable. On the other hand,
if he does not desire to make it available for all of his employees,
there is no insuperable objection to his undertaking an insurance
for a limited portion of them. If there are those, separable from
others by classification and definition, whose labor is more exposed

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or dangerous or whom he may desire to protect for any other
reason, there is nothing in the act reasonably interpreted to show
why he may not do so. If construed to compel farmers to insure
for all their laborers if they undertake to insure any of them, the
inevitable tendency would be to discourage resort to the act in any
respect.
Workmen’s Compensation— “ Fortuitous Event”— Hernia—
Zappala v. Industrial Insurance Commission, Supreme Court of
Washington (Nov. 17, 1914), 144 Pacific Reporter, page 54 .— The

industrial insurance commission rejected the claim of John Zappala
for compensation for an alleged injury causing hernia. On appeal
to the superior court of Chehalis County the claimant secured a jury
verdict in his favor, and the case came before the supreme court on
the appeal of the commission. The opinion of the latter court
sustained the judgment of the court below, being delivered by
Judge Morris. Speaking of the main question of the interpretation
of the language of the act, and quoting the testimony of the injured
man as to the circumstances of the injury, he said:
The determinative question arises under section 3 of the act, pro
viding that:
“ The words ‘injury’ or ‘injured,’ as used in this act, refer only to
an injury resulting from some fortuitous event as distinguished from
the contraction of disease.”
The respondent was in the employ of a cooperage company, and
on the day of the alleged injury was pushing a neavily loaded truck.
The language of the respondent in describing the circumstances under
which the injury was received was:
“ That the car ran harder than usual, and he tried three or four
times to start it but could not move it. Then he put all his strength
into it, gave a jerk and hurt himself; felt a sudden pain; could not
move for a little while; put his hands where he felt the hurt and called
for help; looked at himself and saw a swelling, a small lump where he
was hurt; that he had never had any pain there before or any previous
rupture.”
After discussing the definition of the word “ fortuitous,” and the
principles of interpretation involved, the opinion continues:
The sustaining of an injury while using extreme muscular effort in
pushing a heavily loaded truck is as much within the meaning of a
fortuitous event as though the injury were the result of a fall or the
breaking of the truck. To hold with the commission that if a machine
breaks, any resulting injury to a workman is within the act, but if
the man breaks, any resulting injury is not within the act, is too
refined to come witnin the policy oi the act as announced by the
legislature in its adoption and the language of the court in its inter
pretation. When the appellant admits that the breaking of the truck
because of the application of unusual force with resultant injury to
the workman is covered by the act, then it must admit that the
tearing of muscles or the rupture of fibers, or whatever it is that causes

DECISIONS OF COURTS AFFECTING LABOR.

241

hernia, while exercising unusual effort, is likewise covered by the act;
for there can be no sound distinction between external and internal
causes arising from the same act and producing the same result.
Following the above, both the British and American cases are
discussed and quoted as upholding the conclusion that a hernia
occurring under such conditions should be regarded as a fortuitous
event.
Workmen’s Compensation— “ Incapable of Use” — In re Meley,
Supreme Judicial Court of Massachusetts (Oct. 28, 1914), 106 North
eastern Reporter, page 559.— Thomas H. Meley brought a proceeding
against his employer and the latter’s insurer under the compensation
act for injuries to his hands. The insurer appealed from the award of
the industrial accident board. A provision of the amendment to
the act was in controversy which is to the effect that the additional
amounts to be paid “ in case of the loss of a hand, foot, thumb, finger,
or toe,” shall also be paid “ in case the injury is such that the hand,
foot, thumb, finger, or toe is not lost but is so injured as to be incapa
ble of use; provided, that when the incapacity ceases the additional
payment shall also cease.” The industrial accident board had held
that the right hand was incapable of use, and the court held that
there was evidence to support this finding, since it showed that the
flexor tendons of nearly all the fingers and of the thumb were cut, and
that the hand could be used only as a hook. The court also held that
the statute warranted giving additional compensation for an injury
to one finger of the left hand.

Workmen's Compensation— Incapacity for Work — In re Sulli
van, Supreme Judicial Court of Massachusetts (May 23, 1914), 105
Northeastern Reporter, page 463.—William T. Sullivan suffered on

February 7, 1913, an injury which resulted in the amputation of an
arm. He was able to work on May 31, but on account of the loss of
his arm did not secure work until October 25, although he tried dili
gently to do so during the meantime. The court held that the phrase
“ incapacity to work” in the compensation act covers not only physi
cal incapacity, but inability to obtain work resulting directly from a
personal injury, and that the petitioner was entitled to compensation
for the entire time until he began work.

Workmen's Compensation— Injury Arising Out of and in
Course of Employment— Terlecki v. Strauss et al., Supreme
Court of New Jersey (Feb. 25,1914), 89 Atlantic Reporter, page 1028.—

The petitioner in this case was injured while engaged in combing
85590°— Bull. 169— 15------ 16

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particles of wool out of her hair at the completion of her day’s work,
her hair being caught in moving machinery. A judgment of the
court of common pleas of Mercer County awarding her compensation
was affirmed, the court holding that this injury was received in the
course of and arose out of the employment.

Workmen’s Compensation— Injury Arising Out of and in
Course of Employment— Climbing o ff Roof for Lunch— Inten
tional and W illfu l Misconduct— Clem v. Chalmers Motor Co.,
Supreme Court of Michigan (Jan. 5 , 1914), H4 Northwestern Reporter,
page 848.—Charles S. Clem was killed while in the employ of the de

fendant company, and the State industrial accident board allowed a
claim of $3,000 for his death which award was on certiorari proceed
ings affirmed, one judge dissenting on the ground that the injury was
due to intentional, willful misconduct. The nature of the accident
and the contentions of the defendant are sufficiently shown in the
following extracts from the opinion as delivered by Judge Moore.
Having quoted some of the provisions of the compensation act (No.
10, Acts of 1912), Judge Moore said:
We have quoted sufficiently from the act to show that it is a very
marked departure from the old rule of liability on the part of the
employer to the employee. It is clear that as to the employer, who
has accepted the provisions of the act, the risks of the employee,
arising out of and in the course of his employment, are not assumed
as heretofore by the employee but must be compensated for accord
ing to the provisions of the act, unless the employee is injured by
reason of his intentional and willful misconduct.
The first question, then, is: Did Mr. Clem receive a personal injury
arising out oi and in the course of his employment ? And the second
question is: Was he injured by reason of his intentional and willful
misconduct? The questions are so interwoven that they may well
be* discussed together. Mr. Clem, with others, was employed on a
December day constructing a flat roof on a large building only 19 or
20 feet high. It would add not only to the coimort of these men but
to their efficiency as workers to have them about 9 or 10 o'clock par
take of a luncheon, which from the fact that hot coffee was served was
called a coffee lunch. The luncheon was ordered by the foreman of
the company. It was prepared on the premises, and when it was
ready the men were directed by the subforeman to go and partake of
it. All of them started to do so. They did not in doing so leave the
)remises of the appellant. All of them but three went down the
adder. Mr. Clem went down the rope which projected over the eaves
7 feet. If he had kept hold of the rope until he reached the end of it,
if he was a man of ordinary height and his arms were of the ordinary
reach, his feet would be within 5 or 7 feet of the ground. If, when
the call to come to lunch was made, Mr. Clem, in responding to the call,
had inadvertently stepped into "an opening in the uncompleted roof
or in company with the others had, in the attempt to reach the ladder,

{

DECISIONS OF COURTS AFFECTING LABOR.

243

got too near the edge of the roof and fallen and been hurt, would it
be claimed that the injury did not arise out of and in the course of
his employment? The getting his luncheon under the conditions
shown was just as much a part of his duty as the laying of a board or
the spreading of the roofing material. The injury, then, having
arisen out of and in the course of his employment, can it be said that
compensation shall be defeated because of nis intentional and willful
misconduct? His primary object was like that of all the other men
to get to and partake of his luncheon. There is nothing to indicate
that he intended or expected to be hurt. Nearly all the other men
went down by the ladder. He went down by a rope where, if his
>lans had carried, he would have had to make a, drop of only 5 to 7
eet. Is that such intentional and willful misconduct as to defeat
compensation under the act? There is scarcely a healthy, wide
awake 10-year old boy who does not frequently take a greater
chance and without harm. For a man accustomed to physical toil,
judged by what is occurring daily, it can not be said that such an act
should be characterized as intentional and willful misconduct within
the meaning of the statute.

{

Workmen's Compensation—Injury Arising Out of and in
Course of Employment—Employee Going o ff Premises for
Lunch— Hills v. Blair et at, Supreme Court of Michigan (July 24,
1914), 148 Northwestern Reporter, page 243.—Leone H. Hills made
application for an award of compensation before the industrial acci
dent board against the receivers of the Pere Marquette Railroad Co.
on account of the death of her husband, who had been a section
hand on the railroad. The board awarded compensation to the appli
cant, and the receivers appealed. Hills on the day of the accident,
November 16, 1912, had failed to take his dinner as was usual, it being
customary for the crew to eat their lunch at a car house. At noon
he started to hurry to his home along the tracks, a distance of about
2,000 feet. As he went along a footpath between the tracks, a freight
train was approaching from his rear. A little later his body was
found about half the distance from the car house to where he would
have left the track near his home, having evidently been thrown
against a switch standard, which was bent. It was in dispute whether
he probably, in walking or running alongside the train, went too near
it and was thrown by it, or whether he attempted to board it to ride,
or after having so boarded it attempted to get off when he found that
the speed was increasing and the train was not to stop at that station.
The board having taken the former view in accordance with the theory
of the plaintiff, the court held that it should adopt the same view,
there being no direct evidence as to how the accident occurred. It
held, however, that the injury did not arise out of and in course of the
employment, and the order granting the award was reversed, the
employee having left the place of his employment during the inter

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mission allowed for the eating of lunch, and not remaining on the
premises, in which case the relation of employer and employee would
not have been broken.
Workmen’s Compensation—Injury Arising Out of and in
Course of Employment—Employee Going Out to Lunch— In re
Sundine, Supreme Judicial Court of Massachusetts (May 21 , 1914),
105 Northeastern Reporter, page 433.—F. L. Dunne & Co. were mer

chant tailors; Edward Olsen made clothing for the company in its
workshop, and Emily Sundine was employed by Olsen. The nsurance company holding Dunne & Co.’s risks admitted that under the
Massachusetts compensation act it was liable for injuries to the
employees of the independent contractor, but contended that the
injury did not arise out of and in the course of employment. The
injury was sustained while the employee was out of the workshop
for the purpose of getting lunch, and upon a flight of stairs which was
not under the control of either the company or Olsen, but which fur
nished the only access to the shop. Judge Sheldon, in expressing
the decision of the court that the compensation must be paid, said:
Her employment was by the week. It would be too narrow a con
struction of the contract to say that it was suspended when she went
out for this merely temporary purpose, and was revived only upon
her return to the workroom. It was an incident of her employment
to go out for this purpose.
Nor do we regard it as decisive against the petitioner that she was
injured while upon stairs of which neither Olsen nor Dunne & Co.,
had control, though they and their employees had the right to use
them. These stairs were the only means available for going to and
from the premises, where she was employed, the means which she
practically was invited by Olsen and by Dunne & Co. to use.
It was a necessary incident of the petitioner’s employment to use
these stairs. We are of opinion that according to the plain and natural
meaning of the words an injury that occurred to her while she was so
using them arose “ out of and in the course of” her employment.

Workmen’s Compensation—Injury Arising Out of and in
Course o f Employment—Punching Time Clock— Rayner v. Sligh
Furniture Co., Supreme Court oj Michigan (Apr. 7, 1914), 146 North
western Reporter, page 665.—The employee, Rayner, was running to

punch the time clock, which he was required to do when the noon
whistle blew. He ran into another employee, whom he could not see
on account of obstructions on the floor, and received injuries which
eventually resulted in his death. The court held that going to punch
the clock was a part of his employment, and affirmed the award made
by the industrial accident board granting compensation to his widow.

d e c is io n s

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245

Workmen’s Compensation— Injury Arising Out of and in
Course o f Employment— Riding to and from Work— In re D o n
ovan, Supreme Judicial Court of Massachusetts (Feb. 27, 1914) 104
Northeastern Reporter, page 431.—The employee Donovan secured a

decree in his favor in the superior court of Suffolk County. From
this the insurer of his employer appealed, and the point of interest was
as to whether the injury, which occurred while the employee was
riding from his place of work in a wagon furnished by the employer,
was within the scope of the act. The court decided that it was, affirm
ing the decree of the court below. In the opinion delivered by Judge
Sheldon, the discussion of the English cases on the point by Prof.
Bohlen in 25 Harvard Law Review, 401 et seq., was referred to, and
the court said:

From his discussion and the cases referred to by him, and from the
later decisions of the English courts, the rule has been established,
as we consider in accordance with sound reason, that the employer’s
liability in such cases depends upon whether the conveyance has
been provided by him, after the real beginning of the employment,
in compliance with one of the implied or express terms of the con
tract of employment, for the mere use of the employees, and is one
which the employees are required, or as a matter of right are per
mitted, to use by virtue of that contract. [Cases cited.]
The finding of the industrial accident board that Donovan’s trans
portation was “ incidental to his employment” fairly means, in the
connection in which it was used, that it was one of the incidents of
his employment, that it was an accessory, collateral or subsidiary
part of his contract of employment, something added to the princi
pal part of that contract as a minor, but none the less a real, feature
or detail of the contract.
Workmen’s Compensation— Injury Arising Out op Employ
ment— Bayne v. Riverside Storage <& Cartage Co., Supreme Court of
Michigan (July 24, 1914), 14$ Northwestern Reporter, page 412.—Lil
lian Bayne instituted proceedings for compensation for the death of
her husband because of an accident alleged to have arisen out of his
employment with the company named. The employee, a strong,
well man, employed in moving furniture, quit work August 27, 1913,
after lifting at apparent disadvantage a heavy article, complaining
that in lifting it he had hurt his back. He took to his bed and next day
a physician was called. He became much worse and another physi
cian, called September 6, found him suffering from pneumonia of two
or three days’ duration, and in serious condition. This physician
had him removed to a hospital, where he died.
It appeared that on August 24 Bayne had danced on a boat, had
become heated, and complained of being chilled; that on the after
noon of the 26th he had carried a heavy object, and in setting it
down thought he “ must have kinked his back” ; and on the morning

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of the 27th said the jar of his wagon going over the car track hurt his
back. Physicians were heard, other than the one who originally at
tended him, and some were of opinion that there was no connection
between the alleged injury and the pneumonia, while others asserted
that the disease was directly caused by the injury. The court there
fore upheld the determination of the board awarding compensation,
concluding its opinion as follows:
Assuming that the court would have the right to brush aside
wholly improbable expert testimony or correct the commission for
not doing so, we do not feel warranted in saying that the opinion
evidence favorable to claimant is wholly improbable. There is there
fore a dispute of fact, which the commission has determined.

Workmen’s Compensation—Injury Arising Out op Employ
ment— E ffect of Previous Injury— MilliTcen v. A . Towle cfe Co.,
Supreme Judicial Court of Massachusetts (Jan. 8, 1914), 103 North
eastern Reporter, page 898.—The industrial accident board rendered

a decision awarding damages in the amount of $1,950 to Caroline
Milliken as dependent of Frank T. Milliken, deceased, and the superior
court of Suffolk County issued a decree in accordance with this
decision. The insurance company holding the employer’s risk ap
pealed, and the decree was reversed by the supreme judicial court, on
the ground that the injuries received did not fall within the classifica
tion of the statute.
Four or five years before the death of Milliken, and while employed
by the same company as teamster, he had suffered a fall from his
wagon, striking on his head. Three months before October 8, 1912,
and also on that day, he showed evidence of lapse of memory. At
5 o’clock on the date given above he was directed to drive his wagon to
the stable to be put up for the night. He wandered about, and finally
left his horse, wandered into a swamp, and remained there until
morning buried, except for his head, in the cold mud and water, from
which experience he contracted pneumonia and died. Judge Loring,
in delivering the opinion of the court to the effect that these facts did
not constitute an “ injury arising out of his employment/’ said:
The industrial accident board found: “ That the loss of memory
with which the employee, Milliken, was seized was not in itself a fatal
disorder, and that ne would not have met his death as he did but for
the horse and wagon and his effort to get them to the stable.”
The dependent’s [claimant’s] contention is that Milliken’s death
was caused by pneumonia brought on by his falling into the swamp
and lying there all night; that, under these circumstances, falling into
the swamp and lying there all night was a personal injury which caused
his death.
The fact that Milliken “ would not have met his death as he did
but for the horse and wagon and his effort to get them to the stable”

DECISIONS OF COURTS AFFECTING LABOR.

247

goes no farther than to show that the personal injury suffered by
Milliken was a personal injury “ in the course of his employment.”
The difficulty in the case arises from the provision that the personal
injury must be one “ arising out of” as well as one “ in the course of
his employment.”
There is nothing in the employment of driving a wagon which
makes it likely that the employee will alight from his wagon, wander
to and fall into a swamp, and lie there all night. The distinction
between the case at bar and a case within this clause of the act is well
brought out by what is suggested by a remark of the majority of the
industrial accident board. If the horse driven by Milliken had run
away and Milliken had been thereby thrown out and killed, the
personal injury in fact suffered in that case would have been one
which from the nature of his employment would be likely to arise, and
so would be one “ arising out of his [the employee’s] employment.”
It seems plain that it Milliken’s death was caused by a personal
injury, it was the one which happened some four or five years before
the occurrence here complained of and before the workmen’s com
pensation act was passed.
Workmen’s Compensation— Injury in .Course of Employment—
Disease— Causation— Newcomb v. Albertson, Supreme Court of New
Jersey (Feb. 25, 1914), 89 Atlantic Reporter, page 928.— William E.
Albertson entered a petition against Leverett Newcomb under the
workmen’s compensation act. Judgment was rendered for the peti
tioner in the court of common pleas of Cumberland County, and the
case was taken up on certiorari, when the judgment .of the lower
court was affirmed.

Albertson was employed as a chauffeur and sustained a fracture of
the arm because of the crank of the automobile “ back-firing.” While
under treatment in the hospital, where he went with the privity and
acquiescence of the employer, an abscess of the thumb developed,
caused by an unpadded splint. Ankylosis of the thumb followed,
and this in turn caused injury to the first two fingers. In deciding
that these injuries arose in the course of the employment, Judge
Swayze, who delivered the opinion of the court, said:
Section 11 of the workmen’s compensation act (P. L., p. 136) pro
vides for compensation for personal injuries to an employee by acci
dent arising out of and in the course of his employment. The defend
ant expressly confines his argument to the award of compensation for
the injury to the thumb and two fingers. The only question for us
is whether those injuries were due to the accident. The question is
not, strictly speaking, whether the accident was the proximate cause
of the ankylosis of the thumb, or whether the infection was the nat
ural result of the accident.
An English case was then quoted, in which it was said:
It seems to me enough if it appears that the employment is one of
the contributing causes without which the accident which actually

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happened would not have happened, and if the accident is one of the
contributing causes without which the injury which actually followed
would not have followed.
Continuing, the court said:
In the present case it is said that the chain of causation is broken
because the infection was due to the failure of the physician to take
proper precautions. There is no finding to that effect, and the evidence
is not before us. We can not assume that the infection could be caused
only by the negligence of the physician, and it is therefore unneces
sary to decide whether such negligence would amount to such a break
in the chain of causation that the employer would not be liable. We
think that the trial judge was right in finding that the injury in fact
resulted from the accident and in holding the employer liable.

Workmen’s Compensation— Injury in Course of Employ
ment— E ffect of Preexisting Disease— Voorhees v. Smith Schoonmaker Co., Supreme Court of New Jersey (Nov. 6 , 1914), 92 Atlantic
Reporter, page 280.— The facts of this case, in which the court affirmed

a judgment of the court of common pleas of Somerset County in favor
of the widow of a deceased employee, are given in the portion of the
opinion of Judge Parker, who spoke for the court, quoted below:

The principal question raised is whether the court of common
pleas was justified in finding that the death of Ira Voorhees, the
employee, resulted from an accident arising out of and in the course
of his employment. The deceased, a man of middle age or over,
worked in a woodworking shop of prosecutor, and at the time of the
seizure just preceding his death was working at a task of furrowing
16 posts, each six inches square and weighing about 100 pounds
apiece. To do this he had to get each post up on the table of the
furrowing machine and push it forward against the knives by body
pressure, which was exerted by pushing his abdomen forcibly against
the end of the post. Each post had to be run through twice. After
Voorhees had finished 13 of the posts he sat down, evidently in great
pain, and shortly afterward sent for a doctor, who had him taken
home, where he died 3 days later. He vomited blood and passed
bloody stools, and the doctor pronounced the trouble internal hemor
rhage. After death the undertaker, as he testified, found the body
in such condition that he had it buried a day earlier than originally
intended. It was in evidence that there was a large bruise on the
abdomen where the pressure had been exerted on the ends of the
posts.
The effort of the defense was to show that death was produced by
a rupture resulting from cancer. The family refused to consent to
an autopsy, but mat was their right. It must be conceded that
much of the evidence points to cancer and an internal rupture of
some kind. But it was quite plain, and the trial court was fully
justified in finding, that the rupture occurred while the deceased
was in the very act of doing some unusually heavy work. So that,
even if deceased was suffering from internal cancer, it was quite

DECISIONS OF COURTS AFFECTING LABOR.

249

within the province of the court to find that the proximate cause of
death was the unusual and forcible pressure on parts weakened by
disease, which but for the unusual strain would have held out for a
considerable period.
Workmen’s Compensation— Injury in Course of Employment—
Evidence of Cause of Death— Muzik v. Erie Railroad Co., Supreme
Court of New Jersey (Jan. 9, 1914), 89 Atlantic Reporter, page 248 .—

This case under the workmen's compensation act rested on the
question as to whether the fact that the death of the employee arose
in the course of his employment must be proved by direct evidence,
or would be inferred from the circumstances which existed in the case.
The decree of the lower court was reversed for correction in minor
particulars, but the effect of the decision was to uphold the finding
in favor of the plaintiff. Judge Voorhees, who spoke for the court,
said:

The first point made by the defendant is that there is no evidence
that Muzik's death was caused by an accident in the course of his
employment. It is true that no direct evidence of these facts was
produced. The man was found after the train had gone out, some
3 or 4 feet from the railroad, lying with his feet toward the track,
with an injury in his head, and died shortly; the case being one of a
broken neck.
The Bergen County court of common pleas found that the deceased
came to his death by accident, while in the railroad's employ, and in
the course of it. I do not think that we can question this finding.
The facts shown clearly indicate that the deceased was struck by the
train after he had given the waybills, in pursuance of his duty as such
employee, to the train agent, and this, of course, would be while in the
course of his employment.

Workmen's Compensation— Injury in Course of Employment—
by Courts— De Constantin v. Public Service Commission,

e v ie w

Supreme Court of Appeals of West Virginia (Sept. 29,1914), 83 South
eastern Reporter, page 88.— The plaintiff, De Constantin, was the acting

royal consul of Italy, and made application to the court for an order
requiring the public service commission to allow a rejected claim for
compensation on behalf of the dependents of Giuseppe Zippi.
Zippi was killed by a train on the main line of the Baltimore & Ohio
Railroad. He was in the employ of a firm engaged in construction
work on a portion of the road. While his death occurred a few min
utes before the time for him to begin work in the morning, the evidence
did not show that the main fine where it happened was the only or
even the proper route for access to his place of work, and the com
mission rejected the claim on the ground that the injury was not in
the course of employment. The court sustained this view and

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BULLETIN OF THE BUREAU OF LABOR STATISTICS.

refused the order applied for. Its conclusions as to the two questions
involved are shown in the following syllabus prepared by the court:

The jurisdiction to review acts of the public service commission,
respecting the administration of the workmen’s compensation fund,
conferred upon the supreme court of appeals by section 43 of chapter
10 of the Acts of 1913, is original, not appellate.
An injury incurred by a workman in the course of his travel to his
place of work, and not on the premises of the employer, does not give
right to participation in such fund, unless the place of injury was
brought within the scope of employment by an express or implied
requirement in the contract of employment of its use by the servant
in going to and returning from his work.

Workmen’s Compensation— Injury in Course of Employ
ment— Use of Forbidden Appliance— Reimers v. Proctor Publish
ing Co., Supreme Court of New Jersey (Feb. 25, 1914), ^ Atlantic
Reporter, page 981.—The father of Gustave A. Reimers entered a

petition under the compensation act and secured a judgment in his
favor in the court of common pleas of Hudson County. This was
reversed by the supreme court. The son had been injured while
using an automobile in distributing newspapers, the testimony show
ing that he had been expressly forbidden to use the same. As to
this Judge Swayze in delivering the opinion said:
The principal question in the case for us is whether there was
evidence justifying an inference that the death was by accident
arising out of ana in the course of the employment. There was
evidence justifying an inference that the decedent was employed by
the defendant as a general utility man, and that among his duties
was the distribution of newspapers. He had at one time used an
automobile of the defendant, and had met with an accident which
damaged the machine. The defendant then borrowed an automo
bile, and its president and one of his sons, who was in its employ,
both forbade decedent to use the car. Nevertheless he used it fre
quently to distribute the newspapers. There is no evidence that
anyone except the president had authority to authorize its use; but
the use was so frequent and so public that, if there was nothing
more in the case, the trial judge would have been justified in finding
that the decedent was authorized to use it notwithstanding the pro
hibition. The difficulty is that both the president and his son testi
fied that the decedent had been told not to use the car on the day the
resent accident happened. The son in particular told him, just
efore he went out, to let the car alone. There is no conflicting
evidence on this point, and, if these witnesses are to be believed, the
decedent took the car on the occasion when the accident happened
in disobedience of express orders just received. If there was author
ity to use it before, there was a revocation.

Workmen’s Compensation— Injury of Employee by Negli
gence o f Third Party— Meese etal. v. Northern Pacific Railway Co.,

DECISIONS OF COURTS AFFECTING LABOR.

251

United States Circuit Court of Appeals, Ninth Circuit (Feb. 16, 1914),
211 Federal Reporter, page 25 4.—This was an action to recover

damages for the death of Benjamin Meese. Meese was an employee
of a brewing company, and was engaged at the time of the accident
which caused his death in placing Government stamps upon barrels
which were being rolled down skids and placed on cars on a siding
of the railway alongside his employer's plant. The railway com
pany caused a train to be run upon the siding against the car on
which he was standing, causing several barrels to roll upon him. It
was not contended that the agents of the railway company were not
negligent, but the contention was that the wife and children must
recover, if at all, under the workmen's compensation act of Wash
ington. The court decided that the statute providing for recovery
for death caused by negligence was not repealed by the compensation
act, as far as third persons are concerned in such cases, as appears
from the following extracts from the opinion, which was delivered by
Judge Morrow:
With respect to the declaration of policy contained in the first
section of tne act, it is to be noticed tnat it is specifically directed
against “ the common-law system governing the remedy of workmen
against employers for injuries in hazardous work." The present
action is not one arising under the common-law system, and it is not
against the employer 01 the decedent. The plaintiffs in error, as the
wife and children of the decedent, had no right of action against the
defendant at common law, whether the defendant was an employer
or a third person not an employer. Their right of action was purely
statutory, and is based upon sections 183 and 194 of the [Rem. &
Bal.] Codes and Statutes of Washington.
The question here is: Have the plaintiffs in error a remedy under
the prior statute ? They have if tnat statute has not been repealed
by the compensation act. It is not claimed that it has been repealed
by that act in express terms. Can it be said that it has been
repealed by implication? It is plain that it has not, when we con
sider that by the compensation act it is provided that if a workman
is injured away from the plant of his employer by the negligence or
wrong of another not in the same employ, and the injury results in
the death of the workman, his widow, children, or dependents may
elect whether to take under the compensation act or seek a remedy
against such other. What that remedy against the other is is clearly
indicated by the remainder of the section pointing to a right of action
under the prior statute.
Workmen’s Compensation—Injury of Employee by Negli
gence of Third Party—Settlem ent- Separate Claim Against
Employer— Newark Paving Co. v. Klotz, Supreme Court of N e w Jer
sey (Feb. 24, 1914), 91 Atlantic Reporter, page 91.—Hattie Klotz, pe

titioner in this proceeding for compensation, was administratrix of
a workman who had been employed by the defendant company.

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BULLETIN OF THE BUREAU OF LABOR STATISTICS.

Klotz was employed by the company to wheel stone and cement to
a concrete mixer at work on the repavement of a street. He went
to this work at 7 o’clock in the morning, but, when he arrived
there, it was found that, owing to the pipes of the concrete mixer
having been frozen, no work could be done until this had been re
paired. Before the mixer was fixed so as to permit the resumption
of work, Mr. Klotz, while fixing up his wheelbarrow, was struck by
a street railway car and killed.
Prior to the trial in this case, the petitioner received $800 from the
street railway company, and released, by a release under seal, that
corporation from liability.
Having held that the evidence justified a finding that Klotz’s
death was due to an accident arising out of and in the course of his
employment, the court further held that the settlement with the
corporation whose wrong caused death did not bar the recovery of
compensation, and that the employer had not a right by way of sub
rogation to the claim of the employee against that corporation. The
judgment of the court of common pleas of Essex County in favor of
the petitioner was affirmed.
The reasons for this conclusion are set forth in the following quo
tation from the opinion of the court, which was delivered by Judge
Swayze:
If the statutory compensations were subject to deductions by
reason of payments made by a third person, the tort-feasor, to the
>erson injured or to his dependents, in satisfaction of the liability
or the tort, this object of the statute [of a fixed amount of compen
sation for a definite period] would be thwarted, and in effect the
commutation to a lump sum would take place without any order of
the court and at the will of the injured party or his representatives.
If, on the other hand, the employer were allowed to recover of the
tort-feasor by action in the name of the employee or his representa
tive, he would be able to recover in advance of payments by him and
at a time when the extent of his own liability could not be ascertained.
These considerations suffice to show that the right to compensation
under the statute and the right to recover damages of the tort-feasor
are of so different a character that the rule of law appealed to by the
prosecutor is inapplicable. The release, therefore, of the claim
against the street railway could not be a bar to the right to compen
sation under the statute.

It was conceded that this conclusion made it possible for an injured
workman to secure double compensation—a difficulty that was
sought to be met by a subsequent amendment. There is also an
amendment to the original act which subrogates the employer to the
rights of the injured workman to an action against the negligent
third person, or releases the employer from liability if an adequate
compensation has been recovered by the injured man from such third

DECISIONS OF COURTS AFFECTING LABOR.

253

person. This amendment, however, was not in effect at the time of
the injury, and was held by the court not to furnish a guide for its
rulings in the present case.
Workmen’s Compensation—Medical and Hospital Services—
In re Panasuk, Supreme Judicial Court of Massachusetts (May 21,
1914), 105 Northeastern Reporter, page 368.— From a decree in the

superior court of Suffolk County in favor of the employee, Theodore
John Panasuk, in a proceeding under the workmen’s compensation
act, the insurer, the American Mutual Liability Insurance Co.,
appealed, the decree of the lower court being affirmed.
The Massachusetts compensation act provides for the furnishing
by the insuring association, during the first two weeks after injury,
of medical and hospital services and medicines. The employee
concerned was at work for the Taunton Wool Stock Co., and a
splinter became embedded in his hand, causing an abscess and
necessitating a surgical operation and several dressings thereafter.
The industrial accident board found that the employee was an
illiterate foreigner, unable to read, write, speak, or understand
the English language. A notice, signed by the Taunton Dye Works
& Bleachery Co., a separate corporation from that for which the
employee worked, was posted near his working place, giving the name
of the insurance association and the names of “ Doctors to whom
to go in case of accident and receive free medical attendance.”
The employee reported his injury to the foreman, who did not
advise him regarding his right to medical attendance, and he went
to a physician, who found need of an immediate operation. The
physician wrote to the superintendent of the employer, which did
not then furnish any attendance. It was held that the industrial
accident board had jurisdiction to consider the question of the
right of the employee to compensation for the amount paid by him
for medical attendance; and that the duty of the association to
“ furnish” medical treatment means something more than a mere
passive readiness to provide it if called for; rather, an active effort
to render the necessary aid.

Workmen’s Compensation—Medical and Surgical Treat
ment—Refusal to Permit Operation— Jendrus v. Detroit Steel

Products Co. et al., Supreme Court of Michigan (Dec. 20, 1913), I
Northwestern Reporter, page 563.— Helen Jendrus brought suit

against the company named and the insurance company which
carried its compensation risks for the death of her husband, Joseph
Jendrus. A finding for the claimant for the amount of compensation
provided for death by injury, made by the arbitration committee,

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BULLETIN OP THE BUREAU OF LABOR STATISTICS.

was affirmed by the industrial accident board, and on certiorari it
was again affirmed by the supreme court. The defendants’ claim
was that death was caused not by the accident, but by the refusal
of the employee to allow an operation to be performed when first
proposed, and that the refusal of medical and surgical treatment
offered by the employer barred him from compensation.
The opinion of the supreme court, delivered by Judge Stone,
quotes the opinion and finding of facts by the industrial ac’cident
board as follows:
In this case the deceased, Joseph Jendrus, was injured by a severe
blow on the abdomen. The doctors attending the injured man
diagnosed the injury as a probable rupture of the intestine, and
advised an operation. The accident occurred about 1 o’clock in
the afternoon of February 14. At about 8 or 8.30 in the evening
the doctors sought to operate on the injured man. It appears that
he could not talk Enghsh, and communication was had with him
through an interpreter. The injured man shook his head, indicating
a refusal to be operated on. The matter of an operation was again
brought up by the doctors on the following morning, February 15.
Jendrus, at that time, refused to submit to the operation, but con
sented at about 11.30 a. m. The operation was performed about
1.30 p. m. on February 15. It seems that during the operation the
patient vomited, and the vomit was drawn into the lungs, causing
pneumonia, and resulting in his death a few days later. The oper
ation disclosed a rupture of the intestines which was not sutured,
and the post-mortem examination showed the same to be in process
of healing at the time of death. All communication with the
deceased after the injury was through an interpreter. The board
is of the opinion that the refusal to be operated on when first
requested and the further action of deceased in delaying consent
to the operation until nearly noon on the day following the accident
was not so unreasonable and persistent as to defeat the claim for
compensation in this case. He did submit to the operation after
being convinced that it was absolutely necessary.
The opinion of Judge Stone concludes:
In none of the cases cited by appellants’ counsel was the operation
anything more than a minor operation for a trifling injury. We
think the cases clearly distinguishable from the instant case, which
involved a major operation of a serious nature. None of the testi
mony in the case goes to the length of showing that Jendrus’ life
would have been saved had the operation been submitted to at 8
o’clock on the evening of February 14, which was the first time that
Dr. Hutchings had reached the conclusion that an operation was
necessary. Peritonitis had already set in, and the vomiting had
commenced, and vomitus of a fecal nature was then being expelled.
That it was the injury which caused the peritonitis is not questioned;
that it was the peritonitis which caused the vomiting of fecal matter
is not questioned; that it was the taking of fecal matter into the lungs
which caused the pneumonia is claimed by all of the surgeons who
testified. There is testimony that he might have recovered without
any operation, although that result could not have been reasonably

DECISIONS OF COURTS AFFECTING LABOR.

255

expected. Under all the circumstances of the case, including the
fact that Jendrus was a foreigner, unable to speak or understand the
English language, that he was suffering great pain on the evening of
the 14th, that he was unacquainted with his surroundings, and that
he did consent to, and did submit to, an operation within 15 or 16
hours after it was first found necessary, in the judgment of the sur
geons, we can not hold, as matter of law, that the conduct of Jendrus
was so unreasonable and persistent as to defeat the claim for com
pensation by his widow. Neither can we hold that Jendrus by his
conduct in the premises in causing a delay in the operation was guilty
of intentional and willful misconduct. We can not say, as matter of
law, that the industrial accident board erred in its conclusions of law
in affirming the action of the committee on arbitration. No other
questions of law are presented by the record.

Workmen’s Compensation— Nonresident Alien Beneficia
ries— Injuries Causing Death— Gregutis v. Waclark Wire Works,
Supreme Court of New Jersey (Apr. 14, 1914), 91 Atlantic Reporter,
page 98.— This was an action by Eva Gregutis as administratrix to

recover damages for the death of a workman who left dependents
resident in Russia, but none in the United States. It was conceded
that there was no right of recovery under the State compensation act,
since nonresident beneficiaries are excluded therefrom. The question
was raised whether or not the act of 1848 allowing recovery for
injuries causing death was applicable in the present instance, the
court (a single judge sitting) ruling that it was not. The opinion of
Judge Bergen is in part as follows:

That such nonresident aliens have a right of action under certain
conditions is settled in this State (Cetofonte v. Camden Coke Co., 78
.N. J. Law, 662, 75 Atl. 913, [Bui. No. 90, p. 833]), but such right
depends upon the condition that a party, injured through the negli
gence of the defendant, would, if death had not ensued, be entitled to
maintain an action in respect thereof (P. L. 1848, p. 151; 2 Comp.
Stat. 1910, p. 1907, sec. 7).
I think it must be conceded that, if the deceased had suffered an
injury, not resulting in death, he would have been bound by the
compensation provided for in the act of 1911 (P. L., p. 134), and
could not have brought suit for his injuries in disregard of that act,
and, if he could not, then it would follow that the condition upon
which a right of action is given to the personal representative of a
deceased person is not present. In addition to this, the act of 1911
covers all cases of death, and compensation therefor, where the con
tract of the employee is subject to section 2 of the act, and to that
extent the act of 1848 is inconsistent with it, as the later act provided
a different procedure and rule of damages, and, being inconsistent,
it can not be applied to the class of cases enumerated in the statute
of 1911, for that act repeals all inconsistent legislation.
The conclusion I have reached is that, where an employee contracts
to work under section 2 of the employers’ liability act, the damages
to be paid by the employer in case of death are limited by that act,

256

BULLETIN OF THE BUREAU OF LABOR STATISTICS.

and that an action by next of kin can not, in such case, be main
tained in disregard of the act. Compensation is given, in lieu of
damages, to dependents, and not to next of kin as such. The power
of the legislature to give or withhold a right of action in such case,
and to declare to whom, and in what amount, compensation shall
be made, can not be doubted.
This complaint admits an employment governed by the second
section of the statute of 1911, but avers that because, under that
act, nonresident dependents are excluded from compensation, it
does not apply to them, although it would apply to the compensa
tion of the employee if he were seeking compensation for injuries
on his own behalf. This does not state a cause of action in the present
state of the law on this subject.
The case was subsequently taken to the court of errors and appeals
(92 Atlantic Reporter, p. 354), in which the judgment of the supreme
court was affirmed, the court stating that the “ death act” (2 Comp.
St. 1910, p. 1907) limited recovery to cases where the decedent
would, if death had not ensued, have been entitled to maintain an
action. It cited paragraph 7 (sec. 2) of the workmen's compensa
tion act of 1911, which provides that when an employer and an
employee shall by agreement, either express or implied, accept the
provisions of the act, compensation for personal injuries or death
shall be made in accordance with the provisions of the act; the next
paragraph provides that this agreement shall be a surrender of all
rights to any other method of settlement, and shall bind personal
representatives, widow, and next of kin. Continuing, Judge Trenchard, who delivered the opinion of this court, said:
By force of these provisions, therefore, the decedent, if he had
suffered an injury not resulting in death, would have been limited
to the recovery of the compensation provided for in section 2 and by
the procedure and in the forum provided in the workmen's comensation act, and he could not have brought suit for his injury in
isregard of that act. It follows, therefore, that the condition upon
which a right of action is given to the personal representatives of a
deceased person by the death act is not present in the case at bar.
Whether, in a proceeding begun under the workmen's compensa
tion act in the common pleas court, the administratrix could recover
under paragraph 12 (2), “ expenses of last sickness and burial not
exceeding two hundred dollars," upon the theory that there were
“ no dependents," is a question we have not considered, since it is
not before us.
The judgment below will be affirmed, with costs.

Workmen's Compensation—Permanent Injury—Aged Em
ployee—Amount of Compensation— Bateman Manufacturing Co.
v. Smith,, Supreme Court of N e w Jersey (Feb. 25 , 1914), 89 Atlantic
Reporter, page 979.—James E. Smith was injured, while employed by

the company named, by a radiator falling and crushing his right

DECISIONS OF COURTS AFFECTING LABOR.

257

leg. He was 73 years old and, on account of his age and the inabil
ity of the bones to knit, this accident caused permanent disability
in his occupation as plumber, which requires standing.
The judge of the court of common pleas of Camden County awarded
compensation for total disability or for 400 weeks. This award was
reversed by tho supreme court and compensation awarded for 175
weeks, the compensation specified for loss of a leg. In rendering
this decision the court said that the award must be limited by the
schedule contained in paragraph 11 of section 2 of the act and that
the age or health of the employee, although causing an accident to
have a different effect, does not affect the amount of compensation.
Workmen’s
Compensation— Permanent
Injury— Death—
Aged Employees— City of Milwaukee v. Ritzow et al., Supreme
Court of Wisconsin (Oct. 6 , 1914), 106 Northwestern Reporter, page
480.— The Wisconsin workmen’s compensation act provides that
in case of the permanent injury of an employee who is over 55 years
of age the compensation shall be reduced by 5 per cent, if over 60
years of age by 10 per cent, and if over 65 years of age by 15 per cent.
Other subdivisions provide that, in case of the death of an injured
employee, a sum equal to the compensation for permanent injury or
disability shall be paid as benefits to the surviving dependents of the
employee. In the present case the employee, a man 80 years of age,
was killed in the course of his employment, and the industrial com
mission awarded his widow an amount equal to four times his last
average annual earnings, which is the amount provided for permanent
disability, without making any 15 per cent reduction. The circuit
court of Dane County affirmed this award, and the city appealed to
the supreme court. The latter court held that the term “ permanent
injury” was used in the ordinary sense, and did not include injury
resulting in death, in spite of the fact that the reason for the reduc
tion in such cases might be stronger than in cases where the employee
survives with permanent disability. The full award was therefore
affirmed, two judges dissenting, the court saying that it was so easy
for the legislature to specify if it had desired to reduce death bene
fits as well as those for permanent disability that its failure to do so
inclined the court to the view that such was not its intention even
though the “ reason of the statute as to reduction of compensation
applies stronger to the condition not included in its strict letter than
to that which is.”
Workmen’s Compensation— Permanent Total or Partial Dis
ability—Loss of Fingers—Amount of Benefits— Sinnes v. D a g
gett et al.. Supreme Court of Washington (July 30 , 1914), 142 Pacific
85590°—Bull. 169—15------17

258

BULLETIN OF THE BUREAU OF LABOR STATISTICS.

Reporter, page 5 .—The industrial insurance commission awarded

compensation for partial disability in the amount of $1,200, in addi
tion to $45 for loss of time, to Thomas Sinnes, for the loss of several
fingers on each hand. He appealed, the superior court of King
County affirmed the award, and he again appealed, contending that
his disability was total and permanent.
The accident occurred while he was in the employ of the Moore
Logging Co. The compensation act provides that permanent
total disability means the loss of both legs or both arms, or one leg
and one arm, total loss of eyesight, paralysis, or other condition
permanently incapacitating the workman from performing any work
at any gainful occupation. It also states that permanent partial
disability means the loss of either one foot, one leg, one hand, one arm,
one eye, one or more fingers, etc.; and that for permanent partial dis
ability the workman shall receive compensation in a lump sum in an
amount equal to the extent of the injury, to be decided in the first
instance by the department, and not in any case to exceed the sum
of $1,500.
The supreme court held that the questions involved were ques
tions of law; that the injury was within the definition of permanent
partial disability, and there was no reason for the granting of a jury
trial; and that the amount of compensation was within the discre
tion of the commissioners, limited only by the prescribed maximum
of $1,500. The action of the court below in dismissing the appeal
was therefore affirmed, and the award of $1,200 allowed to stand
as originally made.
Workmen’s Compensation—Personal Injury— Occupational
Disease—Lead Poisoning— A d a m s v . A c m e White Lead & Color
Works, Supreme Court of Michigan (July 25, 1914), 148 Northwestern
Reporter, page 485.—Sarah E. Adams made claim against the defend

ant named for compensation. The industrial accident board en
tered an award in her favor, and the defendant brought certiorari,
when the decision was reversed. The husband of the claimant,
Augustus Adams, left work in the defendant’s plant at the closing
hour May 29, 1913, and was unable to resume work, dying on June
27, 1913. He had been employed since the previous December at
work which brought him in contact with red lead.
The industrial accident board held that the language of the Michi
gan act, which specifies, “ a personal injury arising out of and in the
course of his employment,” omitting the words “ by accident”
originally found in the English statute, was broad enough to include
occupational diseases. It also found that it would not be justified
in holding the part of the act referred to invalid on constitutional
grounds. In discussing the question whether the act includes and

DECISIONS OF COURTS AFFECTING LABOR.

259

covers occupational diseases, the supreme court held that an occu
pational disease is not an accident, since it is expected that, in spite
of the greatest precaution, a certain percentage of employees will
contract such diseases; that the occurrence of such a disease therefore
lacks the element of being unforeseen and unexpected, which is
characteristic of an accident. The purpose of the act is taken up,
and it is shown that it is intended to provide compensation for
injuries, either directly or by suit against employers not accepting
the act, whether or not the injury resulted from an employee's negli
gence or the negligence of a fellow servant, and without regard to
any assumption of risks. Since no action at all was allowed at com
mon law for occupational diseases, this was taken as an indication
that the words “ personal injury" were intended to mean injury by
accident. The requirement that the employer shall make a report
within 10 days of the happening of the accident resulting in a per
sonal injury was shown to tend in the same direction, since it may
be in many cases impossible for the employer to know that disability
is the result of an occupational disease resulting from the employ
ment within that length of time.
The Massachusetts decisions (In re Hurle, 217 Mass. 223, 104 N. E.
336, [p. 260]; Johnson v. London Accident & Guarantee Co., 104 N.E.
735, [p. 259]), which hold occupational diseases to be included under
the law of that State were distinguished, on the ground that the
word “ injury" is used throughout the act, in the place of “ accident"
in the Michigan act; and a decision in New Jersey (Hichens v. Magnus
Metal Co., N. J. Law Journal (Com. PI. June 25, 1912), p. 327), is
cited as upholding the present decision not to consider such diseases
as included.
The court further held that if the legislature intended to include
occupational diseases, that part would be unconstitutional, as violat
ing the provision of the constitution that “ No law shall embrace
more than one object, which shall be expressed in its title." The
controlling words in the title of the workmen's compensation act are
said to be “ providing compensation for accidental injury to or death
of employees," which language it was held would not allow to be
included in the body of the act provisions for compensation for occu
pational disease.
Workmen’s Compensation— Personal Injury—Occupational
Disease—Lead Poisoning— Johnson v. London Guarantee & Acci
dent Co. (.Ltd.), Supreme Judicial Court of Massachusetts (Apr. 4,1914) >

104 Northeastern Reporter, page 735 .—The industrial accident board
found that the employee, who was 72 years of age, and had been
employed at lead grinding for 20 years, had been incapacitated by
lead poisoning since March 13, 1913, and the superior court of Suf

260

b u lle tin

op t h e b u r e a u op l a b o r s t a t i s t i c s .

folk County issued a decree awarding him damages. The company
appealed. Judge Crosby, in delivering the opinion of the court
affirming the decree of the court below, said:
The main inquiries raised by the appeal are: (1) Has the employee
suffered a personal injury within the meaning of the act ? (2) If so,
what was the date of the injury ? (3) If the date of the injury was
subsequent to July 1, 1912 [the date of taking effect of the amended
act], aid it arise out of and in the course of his employment ?

Under the act, “ personal injury” is not limited to injuries caused
by external violence, physical force, or as the result of accident in
the sense in which that word is commonly used and understood, but
under the statute is to be given a much broader and more liberal
meaning, and includes any bodily injury.
Aside from the decisions under the English act which provides for
compensation for “ personal injuries by accident,” it is clear that
“ personal injury” under our act includes any injury or disease which
arises out oi and in the course of the employment, which causes
incapacity for work and thereby impairs the ability of the employee
for earning wages. The case oi Hood & Sons v. Maryland Casualty
Co., 206 Mass. 223, 92 N. E. 329, is decisive of the case at bar. In
that case it was held that for a person to become infected with
glanders was to suffer a bodily injury by accident.
This question recently has been considered fully in Hurle’s Case, 104
N.E. 336 [see p. 260],which decided that an employee having suffered
an injury which resulted in total blindness caused by absorbing poison
in the course of his employment, which incapacitated him from labor,
had suffered a “ personal injury” within the meaning of the act.
In view of the finding of the board that Johnson had suffered
from lead poisoning fourteen years before and had had no recurrence
of the disease until he became incapacitated for work on or about
March 13, 1913, and the further finding that there had been “ an
absorption of lead poisoning since July 1, 1912, and that the date
when the accumulated effect of this poisoning manifested itself, and
Johnson became sick and unable to work, was the date of the in
jury,” we are of opinion that the board was warranted in finding
that the injury was received when he became sick and unable to
perform labor. Until then he had received no “ personal injury,”
although doubtless the previous absorption of lead into his system
since July 1, 1912, finally produced the condition which terminated
in the injury. [Citing a number of British cases.]
As the physical incapacity of the employee for work has been
found by tne board to nave been caused by the gradual absorption
of poison into his system subsequent to July 1, 1912, resulting in
personal injury on or about March 13, 1913, there seems to be no
reasonable conclusion other than that such injury arose out of and
in the course of his employment. (Hurle’s Case, and cases cited.)

Workmen’s Compensation—Personal Injury— Occupational
Disease— Optic Neuritis— In re Hurle, Supreme Judicial Court of
Massachusetts (Feb. 28, 1914), 104 Northeastern Reporter, page 886.—

William Hurle made claim against the Plymouth Cordage Co., em

DECISIONS OF COURTS AFFECTING LABOR.

261

ployer, and the American Mutual Liability Insurance Co., insurer.
The insurer appealed from a decree of the superior court of Suffolk
County, made on the findings and decision of the industrial accident
board ordering the insurer to pay certain amounts to the employee,
and the supreme judicial court affirmed this decree. Judge Rugg in
delivering the opinion of the court states the facts of the case and dis
cusses the point on which the decision hinges, in part, as follows:
This is a case under the workmen’s compensation act. The facts
as found by the industrial accident board are that the employee is
totally incapacitated for work by personal injury which arose out of
and in course of his employment, and which caused total loss of
vision in both eyes, and which resulted from an acute attack of optic
neuritis induced by poisonous coal tar gases. His work was about
furnaces for producing gas by the burning of coal, in the top of which
were several holes through which after opening a cover he could
watch the fire. It was his duty to see that the furnaces were supplied
with coal and burning evenly and to prevent incandescent spots
caused by the burning by forced draft. It was necessary for him to
open one or another of these holes about 70 times a day, and when
ever these holes were opened poisonous gases were given forth. The
inhalation of these caused his blindness.
The question to be decided is whether this was a “ personal injury
arising out of and in the course of his employment” within the mean
ing of those words in Stat. 1911, ch. 751, p. 2, sec. 1. Unquestionably
it arose out of and in the course of his employment. The only point
of difficulty is whether it is a “ personal injury.”
The words “ personal injury” have been given in many connections
a comprehensive definition. They are broad enough to include the
husband’s right to recover for damage sustained by bodily harm to
his wife, the alienation of a husband’s affections, the seduction of one’s
daughter and other kindred tortious acts.

At common law the incurring of a disease or harm to health is such
a personal wrong as to warrant a recovery if the other elements of
liability for tort are present. Hunt v. Lowell Gas Light Co., 8 Allen
169, 85 Am. Dec. 697; Allen v. Boston, 159 Mass. 324, 34 N. E. 519;
Deisenreiter v. Malting Co., 92 Wis. 164, 66 N. W. 112; Wagner v.
Chemical Co., 147 Pa. 475, 23 Atl. 772 [and other cases cited].
The English workmen’s compensation act affords compensation
only where the workman receives “ personal injury by accident.” It
adds to the personal injury alone required by our act the element of
accident. Yet it has been held frequently that disease induced by
accidental means was ground for recovery.

The opinion then refers to the case of Hood & Sons v. Maryland
Casualty Co., 206 Mass. 223, 92 N. E. 329, in which it was decided
that infection from glanders while cleaning a stable was included in
the phrase “ bodily injuries accidentally suffered,” and concludes as
follows:
There is nothing in the act which leads to the conclusion that
“ personal injuries” was there used in a narrow or restricted sense.

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BULLETIN OF THE BUREAU OF LABOR STATISTICS.

The provisions as to notice of the injury (part 2, secs. 15 to 18, both
inclusive, as amended by Stat. 1912, ch. 172, and ch. 571, sec. 3) indi
cate a purpose that information shall be given as to the time, place,
and cause of the injury as soon as practicable after it is sufitfred.
But this requirement can be complied with in the case of an injury
caused by the inhalation of a poisonous gas producing such results as
here are disclosed, as well as in the case of a blow upon the body.
An argument may be drawn from the provisions of part 3, sec. 18, as
amended by Stat. 1913, ch. 746, sec. 1, in favor of a hberal interpreta
tion of “ personal injuries." By the section as originally enacted the
duty was imposed upon every employer to keep a record of all injuries,
but he was required to make return to the industrial accident board
only of “ an accident resulting in a personal injury." By the amend
ment, which of course has no effect upon the legal rights of the parties
in the present action, but which may be resorted to for discovery of
legislative intention, the employer is required to make return of the
occurrence of an injury" and to state “ the day and hour of any acci
dent causing the injury." If these words are accurately used, a dis
tinction is drawn between the injury and the accident causing the
injury. The authority conferred upon the board of directors of the
Massachusetts Employees' Insurance Association by part 4, sec. 18,
is to “ make and enforce reasonable rules and regulations for the pre
vention of injuries" and not for the prevention of accidents. See
also Stat. 1913, ch. 813. The name “ industrial accident board,"
which is the administrative body created by part 3, is a mere title
and can not fairly be treated as restrictive of its duties.
The difference between the English and Massachusetts acts in the
omission of the words “ by accident" from our act, which occur in the
English act as characterizing personal injuries, is significant that the
element of accident was not intended to be imported into our act.
The noxious vapors which caused the bodily harm in this case were
the direct production of the employer. The nature of the work
man's labor was such that they were bound to be thrust in his face.
The resulting injury is direct. If the gas had exploded within the
furnace and thrown pieces of cherry hot coal through the holes into
the workman's eyes, without question he would have been entitled
to compensation. Indeed there probably would have been commonlaw liability in such case. Dulligan v. Barber Asphalt Co., 201
Mass. 227, 87 N. E. 567. There appears to be no sound distinction
in principle between such case ana gas escaping through the holes
and striking him in the face whereby through inhalation the vision
is destroyed. The learned counsel for the insurer in his brief has
made an exhaustive and ingenious analysis of the entire act touching
the words “ injury" or “ injuries," and has sought to demonstrate
that it can not apply to an injury such as that sustained in the case
at bar. But the argument is not convincing. It might be decisive
if accident had been the statutory word. It is true that in inter
preting a statute words should be construed in their ordinary sense.
Injury, however, is usually employed as an inclusive word. The fact
remains that the word “ injury" and not “ accident" was employed
by the legislature throughout this act. It would not be accurate
but lax to treat the act as if it referred merely to accidents. Warner
v. Couchman, [1912] A. C. 35, at page 38.

d e c is io n s

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labor.

263

Workmen’s Compensation— Railroad Employees— Election—
Connole v. Norfolk & Western Railway Co., United States District
Court, Southern District of Ohio (Sept. 2, 1914), 216 Federal Reporter>
page 828 .—T. J. Connole brought action against the railway com*

pany named. The defendant company moved to strike out a para*
graph of the petition in which the allegation was made that the com
pany was his employer as defined in the Ohio workmen’s compensa
tion or State insurance act, and had not complied with the provisions
of the act. The compensation act gives a right of action to the
employee in cases where an employer under the act is in default on
premiums to the State insurance fund, the employer being in such
action deprived of the defenses of fellow-service, contributory negli
gence, and assumed risk.
The defendant’s claim is stated as follows in the opinion delivered
by Judge Sater:
The defendant’s position is that, even if both were engaged in
purely intrastate business at the time plaintiff was injured, the
defendant, being also an interstate carrier engaged in interstate com
merce, is not amenable to the provisions of the Ohio act unless it and
some, at least, of its workmen working only in this State, with the
approval of the State liability board of awards, had voluntarily
accepted the provisions of such act by filing their written acceptances
thereof with such board, and unless such acceptances had also been
approved by such board; and that in that event the defendant would
be subject to the provisions of the act for the period only for which
the premiums called for by the act had been paid.
The earlier portions of section 51 make the act applicable to
employers and employees engaged in interstate or foreign commerce
(notwithstanding any Federal act affecting them) to the extent only
that both are engaged in intrastate work alone at the time of the
happening of an injury to an employee; that is to say, the work must
be clearly separable and distinguishable from interstate or foreign
commerce to oring the employer and its injured employee within the
terms of the statute. After thus making the act applicable to such
persons, the section further provides:
“ And then only [shall the provisions of the act apply to them]
when such employer and any of his workmen working only in this
State, with the approval of the State liability board of awards, and
so far as not forbidden by the act of Congress, voluntarily accept the
provisions of this act by filing written acceptances, which, when filed
with and approved by the board shall subject the acceptors irrevo
cably to the provisions of this act to all intents and purposes as if
they had been originally included within its terms, during the period
or periods for which the premiums herein provided have been paid.”
The court sustained the defendant’s contention, interpreting sec
tion 51 of the act as excluding railroad companies and their employees
who are engaged in both intrastate and interstate commerce except
when they have made active election to come within the provisions of
the act, and ordering the paragraph of the petition under consider
ation to be stricken out.

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BULLETIN OF THE BUREAU OF LABOR STATISTICS.

Workmen’s Compensation—Review of Decisions of Indus
tria l Board— Certiorari— Courter v. Simpson Construction Co.,
Supreme Court of Illinois (Oct. 6, 1914), 106 Northeastern Reporter,
page 350.—Mrs. Amanda E. Courter instituted a proceeding before

the industrial board, as guardian of a minor son, for compensation
for the death of her divorced husband, George B. Courter, who
stepped upon a rusty nail while in the employment of the defendant
company and died a few days later as a result of the injury. The
industrial commission awarded a weekly sum of $8.41, one-half the
wages of the deceased, for 416 weeks, to be paid to the guardian
until the son became of age, and afterwards to himself. The de
fendant brought certiorari for a review of the decision. The act
attempted to make the decisions of the board reviewable by the
supreme court on certiorari, but the court held that it could not
assume this jurisdiction, the provision of the act being invalid as
violating the clause of the constitution limiting the original jurisdic
tion of the supreme court to certain classes of writs, of which cer
tiorari is not one. It held, however, that the legislature had no
constitutional authority to take away the right of review by the
courts, since such action would be violative of the “ due process of
law” provision of the constitution. It held, further, that the ques
tion whether the board acted illegally or without jurisdiction might
be reviewed by writ of certiorari, and that this writ should issue from
the circuit courts, they being the only ones having original jurisdic
tion over that writ.
Workmen’s Compensation—Review of Findings of Board o f
Arbitration—In re Diaz , Supreme Judicial Court of Massachusetts
(Feb. 28, 1914), 104 Northeastern Reporter, page 884.—The industrial

accident board awarded compensation to Diaz, who had been injured
in an elevator accident, and the superior court of Suffolk County
issued a decree in accordance with their finding. Section 11 of the
workmen’s compensation act of 1911, as amended by Stat. 1912, ch.
571, sec. 14, provides that a decree of the committee of arbitration
awarding compensation to an injured employee shall have the same
effect as though rendered in an action heard by a court, except that
there shall be no appeal therefrom on questions of fact. There being
no question of law raised in this case, the court determined that the
finding had the same weight and effect as the verdict of a jury, and
would be upheld as there was some evidence to sustain it.

Workmen’s Compensation— Right of Action by Parent for

Loss of Services of Minor Child— King v. Viscoloid Co., Supreme
Judicial Court of Massachusetts (Dec. 1, 1914), 106 Northeastern

DECISIONS OF COURTS AFFECTING LABOR.

265

Reporter, page 988.—The mother of a minor son injured in the employ

of the company named brought action under the common law for the
loss of his services. It was agreed that, even though the son had
received full compensation under the law, she was entitled to recover
unless this right of action was barred by the provisions of the work
men’s compensation act. The court held that the minor did not and
could not waive this independent right of the parent, nor had the act,
either expressly or by implication, taken away this common-law
right, and ordered a judgment in her favor for the sum previously
agreed upon as the proper one i the plaintiff was entitled to recover.

Workmen’s Compensation— Seamen— Scope o f Law— The “ Fred
E. Sander,” United States District Court, Western District of Wash
ington (Oct. 20, 1918), 208 Federal Reporter, page 724.—John A.
Thompson brought an action in rem in admiralty to secure damages
for personal injuries alleged to have been suffered by reason of the
negligence of the owners and those in charge of the schooner named,
which sailed between San Francisco and Puget Sound points in
Washington. He had been injured while loading and storing piling
in the schooner’s hold. The agent of the owners intervened as claimant
for the vessel, and filed exceptions to the libel, on the ground that
the workmen’s compensation act of Washington abolished actions for
personal injuries. Judge Neterer decided, however, that a State has
no power to abolish or limit jurisdiction of courts of admiralty for
maritime torts conferred by the Constitution, and consequently
overruled the exceptions.

Workmen’s Compensation— Serious and W illfu l Miscon
duct— In re Nickerson, Supreme Judicial Court of Massachusetts
( M a y 28, 1914), 105 Northeastern Reporter, page 604.—Lester Nick

erson received fatal injuries while in the employ of the Boston Woven
Hose & Rubber Co., and his widow brought proceedings under the
compensation act. The insurer claimed that he was guilty of serious
and willful misconduct, which would bar the receipt of benefits by
his dependent. Nickerson was employed to do general cleaning,
painting, and whitewashing, and some of his work had to be done
near machinery and shafting, which portion he had been instructed
to do during the noon hour, when the machinery was shut down.
About half past 11 on the day of the injury he had a conversation
with the superintendent about work on a wall near shafting, and was
told that that work should be done at noon, that it was about half
past 11, and that the superintendent would ascertain the exact time
and tell him. A few minutes later he went to work, and was caught,

266

BULLETIN OF THE BUREAU OF LABOR STATISTICS.

his body drawn into the shafting, and injuries inflicted which caused
death. The court affirmed a decree of the superior court of Suffolk
County granting compensation, holding that the term “ serious and
willful misconduct" means something more than negligence or even
gross negligence, and that disobedience to orders, to constitute such
misconduct, must be deliberate, not merely a thoughtless act on the
spur of the moment.
Workmen’s Compensation— “ Service Growing out of and
Incidental to Employment"— Employee on Way to Work—
City of Milwaukee v. Althoff et ail., Supreme Court of Wisconsin (Feb.

8, 1914), 145 Northwestern Reporter, page 238 .—The circuit court of
Dane County entered a judgment affirming an award of $2,138.11 as
compensation made in favor of Minnie Althoff, on account of the death
of her father, William A. Althoff. The deceased, in accordance with
a city ordinance fixing the hours of labor at eight, began work at 8
a. m. and finished at 5 p. m. He was required to report to his foreman
at 7.30 each morning to receive instructions as to where he was to work.
On the morning of May 3, 1912, he reported thus, and on receiving his
instructions proceeded toward the place where he was to work. While
on the way he fell on a sidewalk and injured his knee. He died on
September 21, 1912, and it was found on sufficient evidence that his
death was due to the injury which he received when he fell. On
appeal the supreme court affirmed the judgment, holding that the
accident was within the terms of the statute, which provides that
compensation shall be paid where the employee at the time of the
accident is “ performing service growing out of and incidental to his
employment." The following is quoted from the remarks of Judge
Barnes, who delivered the opinion of the court:
In the instant case, when the servant reported to his foreman and
received his instructions for the day and proceeded to carry out these
instructions by starting for the place where he was to work, we think
the relation 01 master and servant commenced, and that in walking
to the place of work the servant was performing a service growing
out of and incidental to his employment.

Workmen’s Compensation—Settlement with Third Parties
Liable for Injury—Release—Separate Claim for Death—
Deduction for Wages— In re Cripp, Supreme Judicial Court of
Massachusetts (Feb. 27, 1914), 104 Northeastern Reporter, page 565 .—

Julia Cripp, as widow of a deceased emploj^ee, secured a decree
awarding compensation in the superior court of Suffolk County.
Cripp was injured by coming in collision with a street railway car
while driving a truck. He settled with the railway company on the

DECISIONS OF COURTS AFFECTING LABOR.

267

day of the injury, and gave a release. He was able to work for a
time, but the injuries ultimately caused his death. The statute pro
vides that “ where the injury for which compensation is payable under
this act was caused under circumstances creating a legal liability in
some person other than the subscriber to pay damages in respect
thereof, the employee may at his option proceed either at law against
the person to recover damages, or against the association for com
pensation under this act, but not against both, and if compensation
be paid under this act the association may enforce in the name of the
employee, or in its own name and for its own benefit, the liability of
such other person.” It was held that the employee made an election
in settling with the company, the same as though he had brought
suit, but that the widow’s rights upon his death were distinct. As
to this Judge Braley, who delivered the opinion of the court, said:
Stat. 1911, ch. 751, is not penal, but is based on the theory of comensation. Primarily its object is to provide, in place of wages which
e can no longer earn, the means oi subsistence for the employee
injured without “ serious and willful misconduct” on his part, if he
survives, or for the widow, and other dependents, if death ensues
either with, or without, conscious suffering. The insurer under
section 6, where death results, is to pay the dependents wholly relying
upon the employee’s earnings for support, compensation, and by
section 7, a wife living with her husband at the time of death is con
clusively presumed to be such dependent. The right of recovery
expressly given to the widow can not accrue until his death. Having
been created for her benefit it is independent of his control, and under
section 22 can be discharged only by herself where she is the sole
dependent, or by those authorized to act in her behalf.
The law provided that in case of death, payments should be
made to a dependent widow for a period of 300 weeks from the date
of the injury. In refusing to allow a deduction for the time the em
ployee worked after the injury and before death, the court said:
It is also urged, that the board erred in not deducting, from the
period computed, the time during which the employee resumed
work. The decision was right. The statute says that compensation
shall accrue from the date of the injury. (Stat. 1911. ch. 751, pt. 2, sec. 6.)
The only exception is that, where before death weekly payments have
been made to the employee, the amount payable to dependents begins
from the date of the last of such payments. We see no sufficient reason
for enlarging the exception. A practical working rule easily applied
has been provided, which should not be set aside even if in some cases
its apphcation may seem somewhat inequitable. If a change is
deemed advisable it should come through legislative enactment.

Workmen’s Compensation— Subrogation of Employer to
Right of Action against Third Person—Assignment of Right—
McGarvey v. Independent Oil <& Grease Co., Supreme Court of Wis

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BULLETIN OF THE BUREAU OF LABOR STATISTICS.

consin (Apr. 9, 1914), lift Northwestern Reporter, page 895.—The
plaintiff, an employee of the Harley-Davidson Motor Co., while in
the course of his employment, was injured by actionable negligence
of the Oil & Grease Co., the defendant. Plaintiff made claim against
his employer, the motor company, for compensation, and the claim
was settled. Under the workmen’s compensation act this operated
to transfer the employee’s right of action against the Oil & Grease
Co. to the motor company. The latter company for a sufficient con
sideration and in due form assigned this right to the employee, and
he commenced action in the circuit court for Milwaukee County.
The defendant demurred because the motor company was not joined
as a party plaintiff. The demurrer was overruled and the defendant
appealed. The supreme court affirmed the judgment of the court
below, holding that such a right of action, existing in favor of the
employer by subrogation, could be assigned as any other cause of
action.
W orkmen’ s Compensation— Total

and

Partial Disability—

Duprey v. Maryland Casualty Co., Supreme Judicial Court of Massa
chusetts (Nov. 4, 1914)i 106 Northeastern Reporter, page 686.—Joseph
T. Duprey brought proceedings against the casualty company as
insurer of his employer, and the insurer appealed from a decree in
his favor in the superior court of Suffolk County on findings of the
industrial accident board. This decree was affirmed.

It was admitted that the injuries, which occurred October 12, 1912,
were received in the course of employment. The employee had been
paid as compensation the sum of $7.50 per week, an amount equal to
one-half his wages, during the period from the injury until June 12,
1913. The committee of arbitration decided that total disability
ceased at that date and stated that Duprey agreed that payment for
partial disability for two years, based on one-half the weekly wages,
would be just, and it made an award accordingly. The industrial
accident board found that the employee was incapacitated for all
work except what he could do while seated, and that he had en
deavored to find such work and was not able to do so. It therefore
awarded him a weekly compensation of $7.50, based upon total
disability, from June 12, 1913.
The court held that the employee did not waive his rights by his
agreement before the committee to a settlement on the basis of partial
disability, and that the insurer could not now object to the admission
of the evidence of a physician before the board in addition to the
evidence taken by the committee, since it did not make objection
before the board. It also held that the fact that the employee was a
man of failing physical powers and would be incapacitated for work

DECISIONS OF COURTS AFFECTING LABOR.

269

in a few years did not bar him from compensation if his incapacity
to work was the result of his injuries. It held finally that he was
totally incapacitated for work by being unable to do any work which
he could obtain, although he had a limited physical capacity for some
work.
Workmen's Compensation— Workman— Child under 14 Years
Employed by Father in M ill— Hillestad et ux. v. Industrial Commis

sion of Washington, Supreme Court of Washington (July 14,1914), HI
Pacific Reporter, page 913.— Isaac A. Hillestad and wife brought pro
ceedings before the industrial commission for compensation for the
death of their son, 13 years of age. The complainants owned and
operated a shingle mill. The son was anxious to work, and his father
at length promised him a packer's job when it should be vacant. In
the meantime the boy went to work collecting bolts, which were scat
tered about up the creek 80 rods from the mill, and floating them
down, and while thus employed was drowned. The industrial com
mission rejected the claim, but in the superior court of Whatcom
County there was a verdict for the claimant, from which the com
mission appealed. The supreme court decided that, there being no
agreement for wages or earnings, the boy was not a workman under
sections 3 and 4 of the act, the former of which defines a workman as
any person in the employment of an employer carrying on any of the
industries scheduled in section 4, and the latter providing that in
computing the pay roll the entire compensation received by every
workman engaged in extrahazardous employment shall be included,
whether in the form of salary, wage, piecework, profit sharing, pre
mium, or otherwise. The court held that these provisions contem
plate that there must be an actual contractual relation between the
parties to work for pay of some sort. In the absence of proof of
such relation, it was held that the father assumed the risk in allowing
his son to work at a hazardous employment.

It was further held that a child under 14 employed in any factory,
mill, etc., in violation of section 6570 of Rem. & Bal. Code is entitled
to no compensation, and that this rule applies even though there is
no positive connection between the violation of the law and the death
of the child; and that the employment in driving bolts down the
stream was employment in such a mill. It therefore reversed the de
cision of the court below and sustained that of the industrial commis
sion, and ordered the claim to be dismissed.

DECISIONS UNDER COMMON LAW.
B o y c o t t — I n j u n c t i o n — R i g h t t o S t r i k e — U n f a i r L i s t s — Burn
ham v. Dowd, Supreme Judicial Court of Massachusetts (March 31,
1914), 104 Northeastern Reporter, page 84I •—Fred G. Burnham and
others were engaged in a wholesale and retail business, part of their
trade being in masons’ supplies. Edward F. Dowd and his associates
were members of a voluntary unincorporated labor union in Holyoke,
Mass., this union being connected with the building trades council of
the city, representing some 14 unions. These unions cooperated in
the customary agreements as to working with persons not members
of the unions, or doing work for “ unfair” employers, or handling
“ unfair” material. In July, 1911, one Gauthier employed nonunion
masons in some construction work in Holyoke, for which Burnham
furnished materials. In August the union voted to refuse to handle
any building material of any firm that furnished stock to Gauthier
or to any “ unfair” contractor. Notice of this action was sent to the
building trades council, which in turn notified Burnham that Gauthier
was “ doing work contrary to laws of building trades council,” and
was “ therefore recognized by us as being unfair,” and expressed the
hope that Burnham would cooperate in the matter. Burnham con
tinued to supply material to Gauthier, and was subsequently declared
unfair, notice of this declaration being sent to various owners and
contractors in the city,- in substance threatening to strike if they
should purchase masons’ supplies from the plaintiff.
This action was brought for the purpose of securing an injunction
against the union and council to prevent their carrying out the
threatened action, which would tend to result in the loss of their
business; damages were also sought. In the superior court of Hamp
den County the matter was referred to a master, whose report was
before the supreme judicial court for consideration. This report dis
closed the facts set forth as constituting an injury to the plaintiffs’
business, against which an injunction should be allowed as well as
damages for injuries already caused. In sustaining these findings
Judge Sheldon stated the facts as given above, and continued, saying
in part:
These contractors and owners feared, and it was intended that they
should fear and they were justified in fearing, that these threats
would be carried out; and in consequence thereof they ceased or
refrained from buying supplies of the plaintiffs, as otherwise they
would have done, ana the plaintiffs’ sales of masons’ supplies were
considerably diminished ana their profits lessened in consequence of
these facts. This state of affairs will continue, to the serious loss and

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271

damage of the plaintiffs, unless they shall promise not to sell to any one
considered unfair by the union.
The defendants did not act from actual personal malice toward the
plaintiffs; but their acts were done in pursuance of their union prin
ciples and purposes, as above stated, and without caring for the
injurious consequences to the plaintiffs. Indeed these injurious
consequences were anticipated and contemplated by the defendants.
They did not attempt to declare or enforce any boycott against the
plaintiffs, except as this is included in the acts that have been men
tioned.
The defendants have no real trade dispute with the plaintiffs. No
one of the members of the union is, or so far as appears ever has been,
employed by the plaintiffs. The plaintiffs have not interfered or
sought to interfere with the employment of any of those members, or
with the rates of pay, the periods of labor, or any of the conditions of
such employment. The matter that lies at the foundation of these
proceedings is a dispute between the union and Gauthier. He em
ploys or has employed nonunion labor; the defendants (including
under this term all the members of the union) object to this. They
have a right to say that they will do no work for him unless he will give
to them all the work of their trade, that they will do all or none of his
work. That was settled by our decision in Pickett v. Walsh, 192
Mass. 572, 78 N. E. 753 [Bui. No. 70, p. 747]. But the second point
decided in Pickett v. Walsh, supra, is in our opinion decisive of the
principal question raised in this case. It was there held that the
members of a labor union who are employed by a contractor to do
work upon a building, a^d who have no dispute with that contractor
as to work which they or their fellows are doing for him, can not law
fully strike against him for the mere reason that he is doing work and
employing some of their fellows upon another building upon which
nonunion men are employed to do like work, not by him, but by the
owner, of that building. The language and reasoning of that decision
are applicable here. The reason of the decision was that, as the court
said, such a strike “ has an element in it like that in a sympathetic
strike, in a boycott and in a blacklisting, namely: It is a refusal to
work for A., with whom the strikers have no dispute, because A. works
for B., with whom the strikers have a dispute, for the purposo of
forcing A. to force B. to yield to the strikers’ demands.” So in the
case at bar, the threat of the defendants was to strike against owners
and contractors, with whom the defendants had no dispute, for the
purpose of forcing those owners and contractors to refuse to buy
masons’ supplies from the plaintiffs, and thus by the loss of business
and the profits to be derived therefrom, force the plaintiffs to refuse to
sell to Gauthier or others whom the defendants might call unfair, and
thus put a pressure upon those persons which should force them to
cease employing nonunion masons and to give all their mason work
to the defendants. This was a step further than what was held in
Pickett v. Walsh to be an unlawful combination for an unjustifiable inte ference with another’s business. It was in intention and effect a
boycott; and it was none the less so because it was aimed at only one
branch of the plaintiffs’ business. There is no more right to interfere
with one branch of a merchant’s business, to obstruct it and lessen
its profits, and so far as may be done to destroy it entirely, than there

272

BULLETIN OF THE BUREAU OF LABOR STATISTICS.

is to interfere with, obstruct and destroy th >whole of that business.
The difference is merely one of degree, not of kind.
The defendants contend earnestly that each one of them has a per
fect right to refrain from dealing himself, and to advise his friends
and associates to refrain from dealing, with the plaintiffs, and that
they have a right to do together and in concert what each one of them
lawiully may do by himself. But that is not always so. It is
especially true in dealing with such questions as these that the mere
force of numbers may create a difference not only of degree, but also
of kind. Gompers v. Buck’s Stove & Range Co., 221 U. S. 418, 31
Sup. Ct. 492 [Bui. No. 95, p. 323]. So in Pickett v. Walsh, it was held
among other things that “ what is lawful if done by an individual may
become unlawful if done by a combination of individuals.” This
principle is peculiarly applicable to cases like the one at bar. There
is no such thing in our modern civilization as an independent man.
No single individual could continue to exist, much less to enjoy any
of the comforts and satisfactions of life, without the society, sym
pathy and support of at least some of those among whom his lot is
cast. Every individual has the right to enjoy these, and is bound
not to interfere with the enjoyment of them by others. That right
indeed is usually one of merely moral obligation, incapable of en
forcement by the courts, but it is none the less an actual wrong for
any body of men actively to cause the infringement of that right in
definite particulars; and especially where such an infringement is
made possible only by the concerted action of many in combination
against one and results in direct injury to his business or property,
the courts should interfere for the protection of that persoiv
The question of damages remains to be dealt with. Upon that
we find no error in the master’s report. That the plaintiffs have sus
tained substantial damages is manifest; and the mere facts that it
may be impossible to determine the total amount of their loss, and
that it may be difficult to ascertain with absolute certainty the money
value of even the damages that can be proved, is no reason for refus
ing to allow to the plaintiff what has been found to be capable of sub
stantial proof. Doubtless merely speculative damages or any dam
ages that have not been proved can not be recovered; but this does
not require absolute mathematical demonstration or prevent the
drawing of reasonable inferences from the facts and circumstances in
evidence.
The result is that the plaintiffs are entitled to a decree enjoining the
defendants from keeping the names of the plaintiffs upon their unfair
list, from threatening to strike or to leave the work of any owner,
builder or contractor by reason of such persons having purchased
masons’ supplies from the plaintiffs or having dealt otherwise with
the plaintiffs, and from ordering or inducing a strike against an owner,
builder or contractor for such reason, and that the plaintiffs shall re
cover from the defendants the sum of $500 with interest from the
date of the filing of the master’s report, and their costs of suit, and
have execution thereof.
C o n t r a c t o f E m p lo y m e n t — E m p lo y m e n t f o r L i f e — R e f o r m a

v.
Kingman Milling CoSupreme Court of Kansas (Mar. 7, 1914), 139

tio n

W r itte n

C o n tra c t

O b t a in e d

F r a u d —Pierson

DECISIONS OF COURTS AFFECTING LABOR.

273

Pacific Reporter, page 394.—Frank Pierson brought action against
the company named for reformation of a contract. Pierson had
been injured while in the employ of the company in 1906, one leg
being broken and the other so badly hurt that it was amputated.
The next day he signed a release in consideration of medical services,
etc., which paper was read to him, as he claimed, in such a way as
to include a provision that he should, in pursuance with an agree
ment already reached orally between him and the secretary and
treasurer of the company, be employed by it for life. This pro
vision, as a matter of fact, was not written into the document. He
was personally unable to read the paper at that time on account of
his weakness, the anaesthetic, etc. As soon as he was able to go
to work he was employed by the company, and continued to work
for it until May, 1911, when he was discharged. On the trial of the
case in the district court of Kingman County the judgment was for
the defendant. On appeal, this was reversed and the case remanded.
The court decided first that the statute of frauds did not prevent
the enforcement of the contract because it was not signed by the
company; for it was possible for it to have been performed within
one year, because the employee might have died within that time.
The plaintiff's wife was present at the time the paper was read
and signed, and it was argued that the opportunity which she had,
but of which she did not avail herself, to read the document consti
tuted constructive notice to Pierson of its contents, and that he
could not bring the action for fraud after two years because of the
statute of limitations on that kind of actions. The court, however,
adopted the rule that if one of the parties assumes to read the con
tract to the other, and purposely misreads it, he can not take advan
tage of the other’s want of care in relying upon his reading of it.
It was also held that if the agreement to furnish employment was
actually a part of the contract, the paper was not a unilateral con
tract, but should be reformed to show the actual contract.
As to the contentions of the defense as to the indefiniteness of the
contract, and the matter of the ratification by the company of the
contract made by the secretary and treasurer, the court, speaking
by Judge Mason, said:
This court is of the opinion that the contract relied upon by the
plaintiff is not too indefinite to admit of enforcement; that it rests
with the employer to select the character of work to be done, so long
as it is suitable to the employee's capacity; and that the compensa
tion, unless fixed by agreement, is to be such as is ordinarily paid for
similar services. The contract is also objected to on the ground
that the duration of the employment is too indefinite. We think
this objection unsound, and tnis view is supported by the authorities.
[Cases cited.]
85590°—Bull. 169—15------18

274

BULLETIN OF THE BUREAU OF LABOR STATISTICS.

The most difficult question presented is whether there was any
evidence of original authority on the part of the secretary ana
treasurer of the company to make the contract for life employment,
or of subsequent ratification of his action. We shall assume that
there was no showing sufficient to support a finding of original au
thority on the part of Jay Holdridge to bind the company by a con
tract with the plaintiff to give him employment during his life, but
we think there was sufficient evidence of ratification to take that
question to the jury.
Giving to the evidence the liberal interpretation to which it is
entitled when attacked by demurrer, we think the inference might
reasonably be drawn that the plaintiff was given employment in
pursuance of the agreement to provide him with permanent work;
that both the president and vice president, as well as the secretary
and treasurer, Knew of his belief that the writing contained a pro
vision on the subject; and that a ratification of the promise thereby
resulted.
C o n tra c t

E m p lo y m e n t— G r o u n d s

b e d ie n c e o f R u l e s —

(Apr. 27, 1914),

fo r

D i s c h a r g e — D is o

Corley v. Rivers, Supreme Court of Mississippi
Southern Reporter, page 964•— T h e em ployee

C orley brough t suit for the balance of w ages as m anager of the defend
a n t’s plan tation , after his discharge from his em ploym en t, the con
tract h aving been for one year, and he h aving served som ew hat over
tw o m on ths, and received tw o m o n th s’ p a y.

T h e ju ry in the circuit

court of Tallahatchee C ou n ty returned a verdict in fa v or of the plain
tiff for the full am oun t, and a rem ittitu r w as entered b y the court,
w hich deducted the am oun t w hich he received during the y ear from
other em ploym en t after his discharge.

On appeal

the suprem e court

reversed the ju d gm en t, Judge R ee d sayin g in delivering the opin ion :

Appellant had rules for the government of his plantation. Under
these, the manager was enjoined not to abuse or whip tenants, and
he was not permitted to carry a pistol.
The evidence shows that appellee had trouble with the tenants.
He whipped two of them on different occasions. Thereupon appel
lant informed appellee that he did not want his tenants abused and
whipped, and that appellee ought not to carry a pistol. Appellant
further said that appellee must get rid of the one he was carrying or
he would be discharged. Appellee refused to give up his pistol and
left the employment.
The rules shown in this case are reasonable. We commend them.
To us they seem consistent with justice and the fair administration
of the law in the land. The owner must have found them advisable
for the successful management of his business.
When appellee entered the service of appellant, it became his duty
to observe these rules. His failure to comply with them was sufficient
to render his services as manager unsatisfactory, and to justify
appellant in discharging him.
Appellant should only be held liable to pay for the balance owing
for services up to the time when appellee left the plantation. Upon

DECISIONS OF COURTS AFFECTING LABOR.

275

the trial, appellant tendered this amount. Judgment should have
been for the same, with such costs as may have accrued in the case
till the tender was made.
C o n t r a c t o f E m p lo y m e n t— T e r m — Resener v. Watts, Ritter & Co.,
Supreme Court of Appeals of West Virginia (Dec. 9, 1918), 80 South
eastern Reporter, page 839.—H. A. Resener who was employed as a
traveling salesman by the company named quit its service and
brought suit in May, 1910, to recover commissions alleged to be due
him under the terms of his contract of employment. Verdict was in
his favor in the circuit court of Cabell County, W. Va., but the com
pany secured an award of a new trial, whereupon Resener took the
case to the State supreme court of appeals. The award of a new
trial by the lower court was here reversed, and judgment was entered
on the verdict. The right to recover depended upon whether the
employment was for a year or at will, and it was decided that the
employment was for the latter.
The following syllabus by the court states the conclusions reached:
An employment upon a monthly or annual salary, if no definite
period is otherwise stated or proved for its continuance is presumed
to be a hiring at will, which either party may at any time determine
at his pleasure without liability for oreach oi contract.
The burden of proving that such hiring was obligatory for a year
rests on the party who seeks to establish that the contract covered
that period.
Unless the understanding was mutual that the service was to
extend for a certain fixed and definite period, it is an indefinite hiring,
and is determinable at the will of either party.

E m p lo y e r

and

E m p lo y e e — C o n d i t i o n a l

c h a r g e — D a m a g e s —Nesiit

R e s i g n a t i o n — D is

v. Giblin et al., Supreme Court of Ne
braska (June 28, 1914), 148 Northwestern Reporter, page 188.—Fred L.
Nesbit was employed by Giblin & Co. as a traveling salesman, and
was under contract for one year from December 21, 1909, at a salary
of $2,100. In May, 1910, the firm wrote to the salesman criticising
him for selling certain furnaces at a lower price than they thought
proper. He replied on May 20, stating that he would be glad to have
his resignation accepted, and that he would remain in Milwaukee,
where he then was, until he heard from them. They did not answer,
and in a few days he went on to Minneapolis, his next field of work,
and continued to take orders. June 6 the firm wrote him in regard
to certain advertising matter, stating that they would continue to
issue it until November, and would forward copies to him as issued,
thus showing the expectation that he was to continue in their employ.
June 20, the firm wrote him that they accepted his resignation of

276

BULLETIN OF THE BUREAU OF LABOR STATISTICS.

May 20. He replied that conditions as to opportunities to secure
other employment had changed, and as they had not accepted his
resignation at the time, he considered himself still in their employ.
They then took steps to terminate his employment, and he was unable
to obtain employment until the latter part of December, 1910. The
judgment in the. district court of Douglas County was in his favor
for $1,054.13, and the defendant appealed. The supreme court
affirmed the judgment, stating that the following instruction of the
trial judge, the giving of which was one of the grounds of appeal,
was correct:
You are instructed the letter written by the plaintiff on the 20th
or 21st day of May, 1910, was not of itself a letter of resignation, but
was what might be termed in law a conditional resignation, and by
the terms and conditions of said letter the defendants had the right
to accept or reject the said resignation on or before the time fixed, by
the said letter of said date. And in this connection you are further
instructed the defendants did not comply with the terms and con
ditions of said letter on that date, and as a matter of law, had no
right to accept said resignation at a later time than that fixed by the
terms and conditions of said letter, unless you find from a preponder
ance of the evidence that the plaintiff was guilty of misconduct
toward the defendants subsequent to the time he left Milwaukee for
Minneapolis, or unless you further find that the defendants had dis
covered other misconduct of the plaintiff that occurred prior to the
time they answered the letter written by the plaintiff at Milwaukee,
Wis., dated on the 20th or 21st day of May, 1910.

E m p lo y e r a n d E m p lo y e e — L i a b i l i t y o f E m p lo y e r f o r W r o n g

Matsuda v. Hammond et at,
Supreme Court of Washington (Dec. 27, 1913), 137 Pacific Reporter,
page 328. — M rs. H a m m o n d w as the owner of a m arket stan d, the
business of w hich was conducted b y John Bell. Bell w ent to M a tf u l A c t s — A s s a u lt o n T h ird P a r t y —

su da’s place of business to collect a bill and during an argum ent th at
ensued,

assaulted M atsu da,

against b o th

Bell

and

Mrs.

w ho brought

an action for dam ages

H a m m o n d , his em ployer.

obtained

a ju d gm en t in the superior court, Pierce C ou n ty, W a s h ., which on
appeal was set aside b y the suprem e court of the State, as to its effect
on

Mrs.

H a m m o n d , on the ground th a t the act of

Bell

w as one n ot

authorized b y his em ployer so as to m ake her liable.

Judge Fullerton, for the court, said in part:
An employer is liable for the unlawful and criminal acts of his
employee only when he directly authorizes them, or ratifies them
when committed, or, perhaps>continues an employee in his employ
ment after he has knowledge that the employee has committed, or is
liable to commit, unlawful acts while in the pursuit of his employer’s
business. The liability does not arise from a mere contract o f em
ployment to do a legitimate and lawful act,

DECISIONS OP COURTS AFFECTING LABOR.

277

E m p lo y e r a n d E m p lo y e e — L i a b i l i t y o f E m p lo y e r f o r W r o n g
A c ts — F a ls e
Im p r iso n m e n t —Birmingham Ledger Co. v.
Buchanan, Court of Appeals of Alabama (June 11, 1914), 65 Southern
Reporter, page 667.—Alfred Buchanan brought action against the
newspaper company named for unlawful imprisonment. Judgment
was in his favor in the circuit court of Jefferson County, and on appeal
this was affirmed.
The plaintiff was one of a number of newsboys who were detained
by agents of the defendant company until an extra should be gotten
out, one of the objects of the detention being to prevent the boys from
selling the papers of other publishers. The court held that lack of
evidence that the door was locked or other steps taken by any agent
of the company whose name could be given by witnesses was not
important, since the circumstances and conditions furnished sufficient
proof that an agent or agents of the company caused the imprison
ment. That the evidence was adequate as to the acts being in the
course of employment was held by the court, as shown by the follow
ing quotation from the opinion, which was delivered by Judge Walker:
Nor was proof lacking that each of such representatives of the
defendant who participated in the wrong complained of was acting
within the “ course of his employment” in the sense in which that ana
similar expressions are commonly used in statements of the doctrine
of respondent superior as a part of the law of principal and agent.
For the conduct of its agent to impose liability upon the defendant
it was not necessary for the latter to have authorized anybody
forcibly to detain a newsboy in order to secure his services when
desired. If the wrong was committed by the agent while he was
executing his agency on the defendant’s premises, not for a purpose
of his own having no relation to the business of the defendant, but as
an incident to the carrying on of that business, in the transaction of
which he was engaged at the time, the defendant is liable though it
did not authorize the agent to resort to such means in rendering the
service for which he was employed. [Cases cited.] There was evi
dence tending to prove that tne participation of each of the agents of
the defendant who were referred to in the several counts of the com
plaint in the wrong to the plaintiff for which the defendant is sought
to be charged with liability was an incident to the making of prepara
tions for the circulation and sale of an issue of the defendant’s paper,
which obviously was one of the main objects of the business in which
the defendant was engaged, the furtherance of which was not foreign
to the business the agent was employed to transact.
As to the allowance of punitive damages the court said:
The court properly refused the written charge requested by the
defendant, to the effect that the plaintiff could not recover punitive
damages. Such damages may be awarded for an unlawful detention
of one’s person committed with actual malice or its legal equivalent.
The mahce required as an element for the recovery of such damages
exists if there is a wanton disregard of the rights of the injured
party.
fu l

278

BULLETIN OF THE BUREAU OF LABOR STATISTICS.

E m ployer
ful

and

E m p l o y e e — L ia b il it y

A c t s — T r e s p a s s e r s — A u t h o r it y

E m ployer
R a il r o a d

for

rong

B rakeman—

Tarnowski v. Lake Shore & Michigan Southern Railway Co., Supreme
Court of Indiana (Feb. 5, 1914), 104 Northeastern Reporter, page 16.—
This was an action by a father for the death of his minor son, who was
alleged to have been killed by being kicked and pushed from a moving
freight train on which he was a trespasser, by a brakeman named
Hunt employed by the railroad company named. A verdict had
been directed for the defendant in the circuit court of St. Joseph
County, and the plaintiff appealed. The question involved related
to the company’s authorization of the brakeman to eject trespassers.
Judge Morris, speaking for the court, said:
Appellee concedes that the conductor was authorized to eject
trespassers and tramps from the train, and that it was competent for
him to delegate such authority to Hunt, but that no such delegation
was proven. That defendant was liable for an injury wantonly
inflicted on a trespasser by an employee in ejecting him from the train,
while the employee was acting within the scope of his authority, is
not denied. If the evidence was such as to warrant a finding that the
conductor authorized the brakeman to keep tramps or trespassers off
the train, this judgment must be reversed.
The court determined that the evidence was sufficient to warrant
such a finding and should have been submitted to the jury, and the
judgment was therefore reversed and the case remanded for a new
trial.
E m p lo y e r s ’ A s s o c i a t i o n s — V i o l a t i o n

R e s o l u t i o n t o M a in

United Hat
Manufacturers v. Baird- Unteidt Co., Supreme Court of Errors of Con
necticut (July 13, 1914), 91 Atlantic Reporter, page 373.— This case

t a i n O p en S h op s— R e c o v e r y

L iq u id a t e d D a m a g e s—

was b y stipulation of the parties taken from the superior court of
Fairfield C ou n ty to the Suprem e Court of Errors of Connecticut for its
advice upon a finding of facts.

T h e plaintiff is a nonstock corporation

of the State of N ew Y o r k , com posed of

com panies, corporations,

and individuals engaged in the m anufacture of fur felt h ats, w ith
places of business in the States of Connecticut, N e w Y o r k , N ew
Jersey, M assachusetts,

and P en nsylvan ia.

corporation located at B eth el, C on n .,

The

defendant was

and was a m em ber of the

association.
T h e purposes

and objects

of the association,

as recited in its

certificate of incorporation, were to im prove business conditions of
its m em bers, to m aintain harm onious relations betw een th em , and to
prom ote, subserve, and encourage social intercourse betw een th em .
I ts b y -law s provide th at the decisions, prohibitions, orders, and
regulations of the

association

and its board of directors shall be

obligatory u pon all m em bers of the association, who agree to p a y to

DECISIONS

COUKTS AtftfECTlNG LABOR.

270

the association the sum of $5,000 as liquidated damages for the
violation or failure to comply with any such decision, etc. This sum
is not to be considered as a penalty, but as damages, and it is stipu
lated that it shall not be necessary to prove any special damages.
No member may resign until after 90 days' notice in writing, nor until
all dues, fines, etc., are discharged. The board of directors has
authority to settle all disputes between members of the association
and their employees except as to cessation and resumption of work,
the use of the union label, and the forfeiture of bonds, penalties, etc.
The United Hatters of North America is an unincorporated asso
ciation of journeymen hatters having over 9,000 members, and owning
a union label, which it permits to be placed in hats manufactured in
factories employing its members solely and commonly called “ union
or closed shops."
From July 1,1907, to January 14,1909, the members of the plaintiff
and its predecessor (the Wholesale Fur Felt Hat Manufacturers'
Association) employed exclusively in their factories members of the
United Hatters' association.
The plaintiff's predecessor entered into an agreement, to which the
plaintiff succeeded, with the United Hatters that any disagreement
between employer and employee should be submitted to arbitration.
The United Hatters continued to act under this agreement until a
difficulty arose which led to a resolution by the United Hat Manufac
turers (plaintiff herein) to discontinue the use of the union label in all
shops unless the United Hatters would put their men back at work in
the establishment in which the difficulty occurred. All union em
ployees thereupon went out on strike, and the plaintiff association,
after about 10 days, undertook to open by employing workmen indi
vidually instead of through stewards, i. e., on an open-shop basis,
under a resolution passed at a meeting at which the defendant com
pany was represented. Some employers were able to resume work in
this way, but the Baird-Unteidt Co., being in a strongly unionized dis
trict (the Danbury district), was unable to get workmen, and, together
with other manufacturers similarly situated, undertook to get the
plaintiff association to rescind its open-shop resolution, which failing,
they tendered their resignation from the association, the defendant
not being indebted at the time to the association unless for the $5,000
claimed as damages for its violation of the resolution in hiring union
workmen, which action was taken less than 90 days from the first
notice of intention to withdraw from the association. The board of
directors thereupon authorized the president of the plaintiff asso
ciation to proceed against the withdrawing members for a recovery of
the damages provided for in the by-laws, which action was afterwards
ratified by the association, though not by the three-fourths vote
required for the levy of a fine or assessment. No evidence of special

280

BULLETIN OF THE BUREAU OF LABOR STATISTICS.

damage was offered, but the sum of $5,000 was claimed as damages for
the breach of the resolution.
The opinion of the court was delivered by Judge Wheeler. As to
certain claims made by the defendant with regard to the illegality
of the association and of its by-laws, he said:
The defendant claims this action must fail, since the plaintiff asso
ciation is, because of its organization and its by-laws, illegal, and
therefore its resolution, whose violation is the basis of the action, was
invalid. The foundation of this claim is threefold, because: (1) The real
purpose and object of the association was to permit it to order a sus
pension of work by its members; (2) to make agreements relative to
the use of the union label; and (3) because the members of the plaintiff
were engaged in interstate commerce, the association was a violation
of the Sherman Act (act July 2,1890, ch. 647, 26 Stat. 209 [U. S. Comp.
Stat. 1901, p. 3200]), as its purposes were in restraint of trade.
Employers, as well as employees, may form associations for mutual
rotection and benefit. Each member of such an association submits
is freedom to contract, to a greater or less extent, to the will of the
association. The consideration of submission is the benefit presumed
to flow from the action of members bound together for common ends.
Unity of action of the members gives strength to the association,
without which it can not serve its purposes or accomplish its ends.
By-laws and regulations are a part of the machinery by which the
association operates. Members must therefore submit, while mem
bership continues, to all lawful by-laws and regulations enacted by the
association for its government.
The objects of this association, as stated in the articles of associa
tion and by-laws, are most worthy. Neither they nor the finding show
that the purpose of the association was to permit it to order a suspen
sion of work and to agree in reference to the use of the union label.
It is too late to question the right of a labor union to make by-laws
providing for strikes and to issue its order for a strike in an effort to
secure lawful objects by lawful means. Reynolds et al. v. Davis et al.,
198 Mass. 294, 84 N. E. 457 [Bui. No. 77, p. 393]. And it may prose
cute the strike by any means neither illegal nor in violation of the
equal or superior rights of others.
So, too, the association of employers may enact a by-law giving it
the right to order a shutdown of the factories of its members, provided
the objects sought be within its lawful purposes and the means used be
lawful. And the employer has the rignt freely to hire his labor in the
market without denial or unfair restriction of this right. The order
of the association to stop work may curtail this right, but it is not, for
this reason, illegal.
A by-law providing for a fine upon the members of either an em
ployers’ or alaborers’ association for disobedience of its lawful orders
is not unlawful. Each may involve coercion of its members; it may
temporarily take away the livelihood of the employee, and it may
injure, and, if continued, ruin, the business of the employer. Each
member has agreed to this species of coercion in the belief that the
common interest of all will best be served by the united action of
many. Obedience to the lawful orders of the association is the condi
tion of membership voluntarily encountered by previous assent to the

DECISIONS OF COURTS AFFECTING LABOR.

281

by-laws. If the defendant intended to claim that this part of the
by-laws was illegal, we have already answered that a by-law of this
character was not illegal.
The argument of the defendant rests upon the premise that this
resolution “ that each member offer situations to operatives as indi
viduals ” amounted to an order for a cessation of work. If the em
ployees accepted employment as individuals, it is said they would
forfeit their membership in the union. If they maintained their
membership, the employers could not run their factories.
As the hatters7union dominated this industry in the Danbury dis
trict, enforcement of the vote would mean, it is said, a lockout and
suspension of work. Therefore it is argued the vote was equivalent
to a lockout. The argument assumes these consequences. The facts
of record show that consequences of this character were not intended.
The vote is not to be read in the light of possible consequences. Its
meaning is undoubted. A vote that each member offer situations to
operatives as individuals is a declaration for the open shop. Its pur
pose was to preserve to employers the right to contract for their labor
regardless of its membership m the union. The right to so contract
is one of the inalienable rights of every employer of labor. Every
employer and employee has, under the law, such freedom of contract.
The law will not take it from him, much less declare illegal his effort
to establish his right to it.
We see nothing in the record upon which to found the argument
that the use of the union label was the object of the plaintiff. So far
as appears, the label had nothing whatever to do with the resolution
in question.
We do not think it is necessary to discuss the proposition that a vote
by employers to conduct their factories as open shops and to exercise
their right to hire their labor as individuals, and not as members of a
labor union, is a restraint of trade within the Sherman Act. Nor do
we think the proposition tenable that the object of the association was
the making of the arbitration agreement which the plaintiff had with
the United Hatters, and that it was void because it involved the
exclusive employment by the members of the plaintiff of union labor.
The arbitration agreement does not bear this construction, and its
making was a mere incident of the business of the plaintiff. More
over, it did not relate to, or enter into, the vote for the open shop.
The recovery is sought for the violation of a resolution of the plain
tiff, under section 2 of Article VIII of the by-laws that:
“ All members agree to pay to the association the sum of $5,000 as
liquidated damages for the violation of, or failure to comply with, any
of the decisions, orders, prohibitions, and regulations, passed or made
by the association, in accordance with these by-laws.”
The opinion then takes up the provision of the by-laws just quoted,
and shows that it is properly construed not as a penalty, but as
liquidated damages.
It also takes up the matter of the resignation, and shows that it
became effective upon its receipt by the association on September 9,
so that the running of defendant's shop after September 20 as a union
shop was not a violation of the by-laws of the association of which it
had ceased to be a member.

282

b u lle tin

o f t h e b u rea u o f la b o r s ta tis tic s .

Taking up the question of the agreement entered into at the time
the shop was opened, the court concludes its opinion as follows:
The only other violation of which the plaintiff complains is the
entering into the so-called Father Kennedy agreement and the open
ing of its factory in pursuance thereof.
The open-shop resolution of January 28, if enforced, would deprive
the United Hatters of the jurisdiction and control of all employees of
the members, and would prohibit the employment of exclusively
union labor. That it would precipitate a contest with a powerful
labor organization was self-evident. The first resolution, that of
January 14, voting to discontinue the use of the union label, was
voted for by the defendant. The finding does not show whether the
resolution of January 28 was, in fact, voted for by the defendant or
not. It matters not; it was duly adopted, and bound all members,
the nonacquiescent as well as the acquiescent.
All of the factories of the Danbury district, except the two openshop factories, remained closed after the United Hatters withdrew
their men on the day following the January 28 resolution. Many
efforts were made to settle the strike. Finally two of the clergy,
acting as self-appointed mediators, brought about an agreement
signed by all the members of the plaintiff in the Danbury district and
by the officers of the United Hatters. This was an agreement in
which each of the contracting parties agreed, in consideration of the
promises of the other, to do certain things. It was an evident
attempt to devise a plan under which work could be resumed pending
the 90 days’ notice of intent to resign of the members of the plaintin
and upon the resignations becoming effective, securing the return of
these members to the closed shop, and to the complete resumption
of the jurisdiction of the United Hatters over the employees of each
member. The plan was designed to avoid the liability which this
action seeks to enforce. The very fact that these members entered
into an agreement with the United Hatters concerning the opening
of their shops and the conditions under which the members of the
hatters’ association should resume work was a breach by these
members of the open-shop resolution.
The agreement was a cover, so manifest that it needs no argument
to demonstrate it, for the purpose of having the factories of the mem
bers ostensibly run as open shops, but in reality run as closed shops
under the jurisdiction of the United Hatters.
The open-shop resolution meant that the employers should be free
to hire where they pleased and at such wage as the market for labor
fixed, and that the employee should be free to choose his employer
and to make his own conditions of employment. The agreement
took from each the right to freedom of contract. These employers
knew what they were engaged upon, for, simultaneously with this
agreement, they agreed with each other to idemnify against any
liability which might arise to the plaintiff. Had they in good faith
intended to run an open shop, would they have felt it essential to
make provision for the contingency of their agreement being held to
be a violation of their obligation to the plaintiff ? In fact, the agree
ment was to hire exclusively union labor. The contracting employers
included all the manufacturers with two exceptions in the chief
industry of the Danbury district.

DECISIONS OP COURTS AFFECTING LABOR.

283

We held in Conners v. Connolly et al., 86 Conn. 641, 86 Atl. 600
[see Bui. No. 152, p. 289], such an agreement against public policy
and void. Meritorious as the effort of these mediators to settle a
strike of fatal consequence to large communities was, we can not let
our sympathy for the peacemaker cause us to forget that the security
of society depends in great measure upon the preservation, inviolable,
of the obligations of men.
We think this agreement a plain violation of the resolution of
January 28.
Finally the defendant claims the plaintiff had no authority to insti
tute this action, since it was not authorized by a three-fourths vote
of all the members of the plaintiff, as is required bv Article IX, sec
tion 1, of the by-laws in proceedings relative to any fine or assessment.
We have expressed the opinion that the recovery of the $5,000
under section 2 of Article VIII is not an action brought to recover a
fine or assessment, but a sum determined as liquidated damages for
a breach of any of the lawful decisions, orders, prohibitions, and
regulations of the plaintiff, and hence section 1 of Article IX has no
relation to an action to prosecute the collection of this sum. Such
an action is an incident of the business of the plaintiff, and committed,
as are the ordinary business affairs of every corporation, to its
directors, whose authority is complete, except as curtailed by charter,
by-laws, or the law. In this case there was no such curtailment.
The plaintiff ratified the action of the directors, but we think this did
not add to the powers already vested in them by virtue of their
office.
The superior court is advised to render its judgment in favor of the
plaintiff for $5,000, with interest from June 14, 1909.

E m p lo y e r s '

L i a b i l i t y — A s s u m p tio n

S erv a n t—

R isk s — In c o m p e te n t

Walters v. Durham Lumber Go., Supreme Court
of North Carolina (Apr. 22,1914), 81 Southeastern Reporter, page 453.—
S. A. Walters obtained a judgment against the lumber company in
the superior court of Durham County, N. C., for injuries sustained
while employed by it. This judgment was affirmed by the supreme
court of the State, on appeal. Several points were before the court,
but those of particular interest relate to the liability of the master
when injury is due to the incompetency of a fellow employee, and
the risk assumed by an employee from the negligence of such fellow
servant. These points were disposed of by Judge Walker, delivering
the opinion of the court, in effect as follows:
“ If the master becomes aware that the servant has become, for
any reason, unfit for the service in which he has employed him, in such
a sense as to endanger the safety of his other servants, it will become
his duty to discharge the unfit servant; and if, failing in this duty, one
of his other servants is injured by the negligence of the unfit servant,
he will have an action for damages against the master." Thompson
on Negligence, sec. 4050.
The charge as to the assumption of risk was correct and in accord
ance with the law as we have often declared it, and also substantially
F e llo w

284

BULLETIN OF THE BUREAU OF LABOR STATISTICS.

in response to defendant’s own prayer. Plaintiff assumed the risk
involved in the negligence of his fellow servant, but not that arising
out of the negligence of the master in selecting him, if he knew that
he was incompetent, as the risk in that event would be caused by
the master’s own negligence.

E m p lo y e r s ’

L ia b ility — D u ty

E m p lo y e r

In stru ct—

N e g l i g e n c e — McCarty

v. R. E. Wood Lumber Co., Supreme Court
of Appeals oj West Virginia (Nov. 4, 1918), 80 Southeastern Reporter,
page 810.—Lee McCarty was a boy 17 years of age, employed by the
company named at taking lumber from a conveying table in its
mill and loading it on a truck. While stooping to block the truck,
his clothing was caught by a set screw in a revolving shaft and he
was drawn to the shaft and severely injured. Judgment was given
in his favor against the company in the circuit court of McDowell
County, W. Va., in the sum of $15,000, which judgment was affirmed
by the supreme court of appeals of the State. The following quo
tation from the opinion of Judge Robinson explains the position
taken by the court:
At the time of the injury plaintiff had worked only five days.
When he was put to work at the end of the table no instructions as to
lurking dangers were given him, nor was he at any time warned.
Defendant claims that there was no duty on it to instruct or warn
plaintiff as to dangers from the revolving shaft, that the shaft was
plainly visible to plaintiff, and that he was of sufficient age and dis
cretion to know that it was dangerous. But a careful consideration
of the evidence leads us to the conclusion that the danger of the set
screw in the revolving shaft was not so patent as of itself to warn
plaintiff. It was so situated as not to be patent to him while engaged
in his duty. He was not required to make close inspection of the
shaft. It was the master’s duty to have it reasonably safe. Under
all the circumstances shown it can not be said to have been so. One
might avoid the shaft and the sprocket wheels, as it seems plaintiff
did, and still be caught by the long projecting set screw not so patent
as were the major parts oi the machinery. It was clearly defendant’s
duty to instruct plaintiff of the presence of the set screw. Situated
as it was, a little thing hidden generally by the presence of the table
and the truck, a prudent man might not observe it for many days of
service in proximity to it. Moreover, plaintiff was young and inex
perienced m working about machinery. This fact made it even more
incumbent on defendant to instruct him as to the danger of the sur
roundings in which he was placed to work.

E m p lo y e r s ’ L i a b i l i t y — M u n i c i p a l i t i e s — G o v e r n m e n t a l F u n c
t i o n s — C le a n i n g S t r e e t s — Mayor and Aldermen

of City of Savannah
v. Jordan, Supreme Court of Georgia (Sept. 19, 1914), 83 Southeastern
Reporter, page 109.—T. B. Jordan was injured by the breaking of the

DECISIONS OF COURTS AFFECTING LABOR.

285

axle of a cart in which he was hauling street garbage for the street and
lane department of the city named. It appeared that his superiors
had had notice of the defective condition, and had ordered him to
continue the use of the cart; but the city claimed exemption from
liability on the ground that it was exercising a governmental function
delegated to it by the State, and the court took this view and sustained
the city's demurrer to the complaint, reversing the action of the supe
rior court of Chatham County. The following is an extract from the
syllabus prepared by the court:
The duty of keeping the streets of a municipality free from matter
which, if allowed to remain, would affect the health of the public is a
governmental function, the exercise of which would exempt the
municipality from liability to a suit for damages to an employee
without fault, who is injured by reason of a defective cart in wmch
he is hauling “ the sweepings of the streets" of such municipality, and
which has been furnished him for that purpose by the agents of the
municipality.
E m p lo y e r s ' L i a b i l i t y — O b e d ie n c e t o O r d e r s — A s s u m p tio n o f
R isk s— C o n t r ib u t o r y

N e g lig e n c e — S a fe

P la c e

W ork—

Magnuson v. MacAdam et al.y Supreme Court of Washington (Jan. 7,
1914), I®? Pacific Reporter, page 485-— M agnuson was em ployed b y
M a c A d a m as a com m on laborer pavin g streets.

W h ile an a ttem p t

was being m ade to m o v e a concrete m ixer b y its own power, M agnuson
was ordered b y the forem an to take hold of a tongue attach ed to the
fron t axle of the m achine, to guide the m achine.

obeyed the

order and was injured b y the tongue swerving and striking him as one of
the fron t wheels struck a stone on the street.

A ju d g m en t was given

in his fa v or in the superior court, K in g C ou n ty, from which M a c A d a m
appealed
affirmed.

the S tate suprem e

court,

where

the ju d g m en t was

T h e point of interest and the basis of the conclusions of the

court are stated below in the language of Chief Justice C row :

Respondent (Magnuson) insists that appellant (MacAdam) was
negligent in failing to provide him with safe appliances and a safe
place in which to work, while appellants, in support of their motions,
contend that all dangers incident to respondent's employment were
open and obvious, or by the exercise of ordinary care and prudence
could have been known to him, and that he assumed the risk of such
dangers.
Respondent had a right to rely upon the orders and superior
knowledge of the foreman, who represented appellants.
The evidence shows that the attempt to move the machine by its
own motive power was under the immediate supervision of appellants'
foreman, ana that respondent acted in obedience to his specific orders.
It was the foreman's duty to look after respondent's safety. This
being true, respondent did not assume the risk, nor can he be held
guilty of contributory negligence as a matter of law. [Cases cited.]

286

BULLETIN OF THE BUREAU OF LABOR STATISTICS.

E m p lo y e r s ’

L ia b ility — R a ilr o a d

C om p an ies— C o n t r i b u t o r y

Stone v. Atlantic Coast Line R. Co. et al., Supreme
Court of South Carolina (Dec. 15,1913), 80 Southeastern Reporter, page
433.—T h e w idow of Sam uel B. Stone brough t suit to recover dam ages
N e g lig e n c e —

for the death of her husband, alleged to h ave been caused b y the negli
gence of the railroad co m p an y and a conductor and an engineer in its
em ploy.

Stone was a car repairer, w orking in the y ard and under the

rules of the com p an y.

O ne rule of the com p an y required th at a blue

flag or light be displayed b y m en w orking under or around cars, and
other em ployees were forbidden to m o v e or couple another car to a
car on which the blue signal was displayed.

Stone h ad a blue flag

protecting the car on which he was at work, b u t rem oved it at the
request of the yard conductor in order th at a train m ight com e in on
the track to get som e cars.

then crossed over to another track

and sa t dow n under the end of a b o x car.

T h e car was struck b y a

train, injuring Stone and causing his death.

T h e co m p an y contended

that death was due to the negligent violation of its rules b y the dece
dent, and th a t there was no liability on its part.

T h e w idow obtained

a ju d gm en t, how ever, in the com m on pleas circuit court of R ich lan d
C ou n ty,
court.

S. C., and

this ju d gm en t was reversed b y the S ta te suprem e

T h e follow ing language, taken fro m the opinion of the court,

shows the grounds for reversal:

In this case, there is no testimony tending to excuse the violation
of the rule. There is not a particle of testimony that the conductor
or engineer or any one else knew that Stone had gone under the car.
It is argued that he did it to get out of the rain in order that he might
read over his list of “ bad orders,” or cars to be repaired, or make en
tries in his books of repairs that he had already made. It would be a
mockery of justice to say that the master must make, promulgate,
and enforce rules for the safety of his servant, and allow the servants
to set them at naught upon such a flimsy pretext, and hold the master
liable for injuries resulting therefrom.

E m p lo y e r s '

L ia b ility — R a ilr o a d

su m p tio n o f R i s k s —Adams

C om p an ies— M i n o r s — A s

v. Chesapeake & 0. Ry. Co., Supreme
Court of Appeals of West Virginia (Feb. 13, 1914), 80 Southeastern
Reporter, page 1115.—One Adams, a boy 17 years of ag3, was employed
as a section hand by the railway company. After having worked for
seven or eight hours on the tracks, he was stationed at a dangerous
cut to keep the track free from obstruction during the night and was
struck by a train and killed at 4 o'clock on the morning of March 1,
1910, after having been on duty for about 20 consecutive hours.
Fannie Adams, administratrix, obtained a judgment of $2,000
against the company in the circuit court of Cabell County, W. Va.,
and this judgment was affirmed by the supreme court of appeals of

DECISIONS

of c o u r t s a f f e c t i n g

labor.

287

the State. The company contended that no liability attached to it,
as the decedent had assumed the ordinary risks of the employment,
but the court rejected this contention. The duty of an employer
toward a minor employed in a hazardous place is made clear by the
language below, taken from the opinion of Judg3 Poffenbarger:
The law imposes a peculiar duty upon masters in favor of minor
servants, on account of their inexperience and inability to appreciate
danger. One who employs a minor and places him at work m a dan
gerous place is undsr a duty to apprise him of the danger and show
him how to avoid it, except in very plain cases of obvious danger,
and the younger the servant the higher the duty of the master. As
shown by the dec aration and proof, the plaintiff’s decedent was
only 17 years old, wherefore it was the duty of his employer to
apprise him of all dangers connected with his work, or incident to
his service, of which he did not have knowlcdg3. No ground upon
which to distinguish the danger from overwork and loss of sleep of
the servant from other dangers attendant upon it is perceived.
Where minors are concerned, ordinary risks are, for evidential pur
poses, always treated at the outset of the inquiry as extraordinary,
and the buiden of establishment of the servant’s comprehension of
the particular risk rests upon the employer.

E m p lo y e r s ’ L i a b i l i t y — S a f e P l a c e t o W o r k — A p p r o v e d
c h in e s —Ainsley

v. John L. Roper Lumber Co., Supreme Court of
North Carolina (Mar. 11, 1914), 81 Southeastern Reporter, page 4•—
A judgment was given against the lumber company named in the
superior court of Beaufort County for the negligent killing in August,
1912, of one of its employees—a boy 14 years of age. The boy was
operating a lathing machine when he was struck by a piece of wood
thrown back by the saw, and killed. One contention of the com
pany was that as the lathing machine used was one “ known, ap
proved, and in general use,” no legal liability attached to it by
failure of the machine to work properly. It was proved, as evidence
of the unsafe condition, that not infrequently pieces of timber were
hurled back from the machine, threatening the safety of the employee,
and that these pieces of timber made dents and marks on the wall
20 feet back.
In affirming the opinion of the lower court, Judge Hoke, who
spoke for the State supreme court, said:
It is the accepted rule in this State, applied in numerous decisions
of the court, that “ an employer of labor, in the exercise of ordinary
care, that care that a prudent man should use under like circum
stances and charged with a like duty, must provide for his employees
a reasonably safe place to do their work and supply them with ma
chinery, implements, and appliances reasonably safe and suitable
for the work in which they are engaged, and such as are known,
approved, and in general use.” [Cases cited.

288

BULLETIN OF THE BUREAU OF LABOR STATISTICS.

Judge Hoke then quoted from the opinion in the case, Marks v.
Cotton Mills, 135 N. C. 136, 47 S. E. 432, after which he said:
From this we think it follows that an employer is not protected,
as a conclusion of law, because he is operating a machine which is
“ known, approved, and in general use,” but, although such a ma
chine or appliance may have been procured, if its practical operation
should disclose that employees are thereby subjected not to the
ordinary risks and dangers incident to their employment but to
obvious and unnecessary dangers which could be readily removed
without destroying or seriously injuring the efficiency of the im
plement, such conditions, if known or if allowed to continue, might
permit the inference of culpable negligence against the employer;
that he had not, in the particular instance, measured up to the
standard of care imposed upon him by the law, a position upheld
by many authoritative cases and by text writers of approved
excellence.
E m p lo y e r s '

L ia b ility — S ta tu s

E m p lo y e e

R id in g

fr o m

Indianapolis Traction cfc Ter
minal Co. v. Isgrig, Supreme Court of Indiana (Feb. 5, 1914), 104
Northeastern Reporter, page 60.—This action was brought against the
street railway company named for negligence in causing the death of
the decedent, who had been its employee, and a judgment for plain
tiff for $5,000 was given in the Hamilton circuit court. He was riding
to his home after completing his work, and had been given a pass,
which contained a stipulation exempting the company from liability
for death or injury while using the same.
One question arising was as to whether the decedent was a passen
ger or a fellow servant with the operators of the car. The court
followed its former decisions in deciding that he was a passenger.
This left only the controversy as to whether the terms of the pass
were binding upon him and upon his widow and child. As to this
Judge Erwin spoke as follows in delivering the opinion of the court,
which sustained the decision of the court below:
If that question must be answered in the affirmative, then the
cause must be reversed. If it is answered in the negative, then the
other alleged errors are not available. The answer to this question
seems to depend upon the fact as to whether the appellee was a pas
senger for hire, or whether the pass given was a gratuity bestowed
upon the servant. It seems to be settled in many of the otates that,
where a pass is issued as a gratuity, the clause providing that the
holder assumes all risks of accident is binding. It is equally well
settled that, where there was a consideration for the transportation
that a stipulation on the ticket or pass that the carrier should be
exempt from liability for injuries resulting from the negligence of its
servants, such stipulation is contrary to public policy and void.
[Cases cited.] The evidence in this case established the fact, without
any dispute, that the appellant gave to all its employees tickets such
as the one shown to have been given decedent, and it is fair to pre
sume that this one was given as a part of the wages of decedent.
W o r k — S t r e e t R a ilw a y s — P a sse s—

DECISIONS OF COURTS AFFECTING LABOR.

289

E m p l o y e r s ’ L i a b i l i t y — S t a t u s o f E m p lo y e e R i d in g o n E n g i n e

Dixon v. Central of Georgia
Ry. Co., Court of Appeals of Georgia (Jan. 20, 1914),80Southeastern
Reporter, page 512.—Dixon was employed as a fireman by the railroad
company and was killed while riding on one of its engines as a passen
ger, haying left the passenger coach in which he was riding and got
upon the engine, contrary to the rules of the company. His widow
brought suit for damages in the city court of Americus, Ga., where
judgment was given in favor of the company, this judgment being
affirmed by the court of appeals. The following syllabus by the
court explains the grounds upon which its action was based:
Where a locomotive fireman in the employment of a railway com
pany was riding upon a train as a passenger, and voluntarily left the
coach in which he was riding and got upon the engine, either by the
express permission or without the disapproval of the engineer, it not
appearing that there was any rule or custom of the railway company
permitting the employee to ride upon the engine, but it being on the
contrary a violation of the rules of the company for him so to do, he
was a trespasser, and his widow had no cause of action against the
railway company for his homicide, resulting from the derailment of
the train, caused by a switch which was defective, or which had been
negligently left open.
in V i o l a t i o n o f R u l e s — T r e s p a s s e r —

E m p l o y e r s ’ L i a b i l i t y — S t a t u s o f E m p lo y e e R id in g t o W o r k —

KlincTc v. Chicago Street Railway Co., Supreme Court of Illinois (Feb. 21,
1914), 104 Northeastern Reporter, page 669.—Charles A. Klinck, an
employee of the company named, while attempting to board one of
its cars, was thrown to the ground and seriously injured, the injury
being due, as was alleged, to the negligence of the employees in
charge of the car. He secured a verdict of $6,500 in the superior
court of Cook County, which judgment was affirmed by the appellate
court, whereupon the railway company appealed to the supreme
court, which affirmed the decisions below. The circumstances
were determined to be such as to warrant the jury in finding in the
plaintiff’s favor on the questions of negligence and due care, and
this left remaining the questions whether the plaintiff was a passenger
or an employee in his relation at the time he was injured, and, if a
passenger, whether the condition indorsed on his employee’s ticket,
purporting to release the company from liability for personal injuries,
was a bar to his recovery in the action.
Judge Cooke, speaking for the court, said in part:
The great weight of authority, however, is to the effect that when
the employee, either by virtue of his contract of employment or
under a rule or custom of his employer, is accorded the same means
and privileges of transportation over the lines of his employer as
an ordinary passenger for hire, then, while riding upon his employer’s
85590°—Bull. 169—15------19

290

BULLETIN OF THE BUREAU OF LABOR STATISTICS.

cars at a time when, under his contract of employment, he is neither
under the control of his employer nor obliged to perform any service
for him, he is to be regarded as a passenger, and that, under such
circumstances, it is immaterial that the employee be either going to
or coming from his place of work.
The opinion then discusses the cases setting forth this rule, and
distinguishes those cited by the company as upholding their view
that the injured man stood in the relation of an employee, and
continues as follows:
The ticket on which Klinck was intending to ride having been
given to him, under his contract of employment, as part of the
consideration for his services, he was a passenger for hire, and the
stipulation on the back of the ticket releasing plaintiff in error from
liability for personal injuries was therefore void. In Dugan v. Blue
Hill Street Kailway Co., 193 Mass. 431, 79 N. E. 748, it was said:
“ Where a pass is issued as a gratuity the clause providing that the
holder assumes all risks of accidents is binding out where such a
pass is issued to an employee as one of the terms of his employment
the clause is not binding." [Cases cited.]

E m p lo y e r s ' L i a b i l i t y — W a r n i n g

N e w D a n g e r s — S tr ik e s —

McOdlman v. Illinois Central Railroad Co. et al.,
United States Circuit Court of Appeals, Sixth Circuit (June 30, 1914),
215 Federal Reporter, page 465.— Charles E . M cC alm an bro u g h t suit
In ju r y t o G u ard s—

fo r dam ages for personal injuries against the co m p an y n am ed and
another railroad co m p an y , and ju d gm en t w as fo r the defendants on a
directed verdict in the U n ite d States D istrict C ourt for the W e ste r n
D istrict of Tennessee.

D u rin g a strike M cC alm an h ad been em ployed

as a guard, and w ith others w as located at a certain crossing.

D e p u ty

m arshals were sent to th a t crossing in response to a telephone m essage
th a t there w as trouble there, w ith ou t w arning to either group of the
presence of the other.

T h e m arshals m istoo k the guards for strikers,

a ttack in g th em w ith ou t w arning or provocation , and in the clash
th a t resulted the plaintiff was sh ot and p erm an en tly and seriously
injured.

O n appeal b y the plaintiff the ju d g m en t w as reversed and

the cause rem anded for ju r y trial.

Judge Warrington, who delivered the opinion of the court, said in
part:
It must be conceded that the plaintiff was engaged in a hazardous
employment during the conditions usually attending such a strike as
the one then prevailing at the Nonconnah yards; and yet it is now
plain enough that a new and distinct peril was added to that employ
ment, though whether this was due to any breach of duty on the part
of the defendants is the problem. Three engines had been torn up,
and for quite a while “ a state somewhat of riot and insurrection"
had prevailed there.

DECISIONS OF COURTS AFFECTING LABOR.

291

It is a general rule as respects any hazardous occupation that the
master shall inform his servants of all perils to which they will be
exposed, which are or should reasonably be known to him, except
such as are obvious to the servants or through the exercise of ordinary
care on their part may be foreseen and in either event injury therefrom
may reasonably be avoided. This duty of the master so to inform his
servants extends to any change made by him which introduces into
their service a new element of danger. And the duty so imposed upon
the master is of a primary character and is therefore nondelegable.
The defendants bore a contractual relation to McCalman and so
owed him the duty not to enhance the peril of his service without
notice. Plainly it would not have been sufficient merely to notify
him of the coming of the deputies, though even this, as we have seen,,
was not done. The chief danger rationally to be apprehended lurked
in the telephone message, “ There was trouble at Isonconnah’’ ; and
the deputies approached the crossing with that belief. The nature
of the danger, it under all the circumstances it was one reasonably to
be anticipated, did not lessen defendants’ duty to McCalman; for the
knowledge of these new conditions would have enabled him to decide
whether to remain at the crossing or discontinue his service.
The judgment is reversed, with costs, and the cause remanded.

Employers’ Liability Insurance—Malpractice o f Company’s
Physician— May Greek Logging Co. v. Pacific Coast Casualty Co.,

Supreme Court of Washington (Nov. 17, 1914), 144 Pacific Reporter,
page 67.— This was an action by the logging company named to re
cover on its policy of insurance written by the casualty company,
which policy undertook to indemnify the insured company against
specified kinds of losses. The logging company had been compelled
in an action at law to pay damages to one of its employees, Klodek, for
the malpractice of a surgeon employed by it; see 129 Pacific Reporter,
page 99, Bulletin No. 152, page 241. Medical and surgical treatment
were furnished Klodek under an arrangement by which the company
collected a monthly fee from its employees, in consideration of which
it undertook to furnish and provide suitable medical care and treat
ment for its injured employees. In its complaint the company
alleged that this custom of providing medical and surgical treatment
was known to the insurance company, and contended that the liability
of the latter company covered such a condition as arose in the present
case. The logging company had tendered to the casualty company
the defense of the action when Klodek had sued for the malpractice
of the logging company’s physician, but the casualty company de
clined. Judgment was against the logging company in the sum of
$4,500, which judgment was on appeal affirmed, requiring at the set
tlement the sum of $4,856.85, and this action was brought to recover
this sum, together with the fees and expenses amounting to $1,000,
with interest on the total. In the superior court of King County

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BULLETIN OF THE BUREAU OF LABOR STATISTICS.

judgment had been rendered for the casualty company on its demur
rer to the complaint of the logging company, whereupon this appeal
was taken, the appeal resulting in the judgment of the court below
being affirmed. Judge Fullerton delivered the opinion of the court,
first stating the facts as above, after which he said:
The trial court sustained the demurrer on the ground that the loss
suffered by the appellant was not a loss covered by the conditions of
the policy. This conclusion we think is the only conclusion that can
be properly drawn from the facts shown by the record. The respond
ent’s liability of course depends upon the conditions of its policy.
If it has thereby undertaken to answer for losses arising from claims
of damages on account of the negligent failure of the appellant to
perform a special contract wherein it undertook to furnish an em
ployee with hospital, medical, and surgical services, then it is liable
to answer to the suit of the appellant, otherwise not. We can not
think the policy bears this interpretation. It purports to cover only
losses arising from claims of damages by the appellant’s employees on
account of accidental injuries suffered by the employees while in the
prosecution of the appellant’s logging business, and the departments
dependent upon ana the operations connected therewith. Hospital,
medical, and surgical services are no part of the logging operations,
and the injured employee while in the hospital was performing no
service connected with the appellant’s logging business. And while the
appellant alleges that it is the custom of logging companies to deduct
a hospital fee from the wages of each of its several employees, and use
the fee in the payment of services to be rendered such employees as
become sick or injured and that the respondent knew of this custom,
we can not think the facts in any way alter or modify the terms of the
insurance. Aside from the fact that the recovery was had upon a
specific contract, and not upon the custom, the insurance is only
against losses arising from negligence in the logging operations, not
from losses arising from negligence in the maintenance of the hospital.
Interference w i t h Employment—Actions— Evidence— John
son v. Aetna Life Insurance Co., Supreme Court of Wisconsin (May 1,
1914), 147 Northwestern Reporter, page 32.— Frank E. Johnson
brought action against the Aetna Life Insurance Co. for procuring
his discharge from his employment with the Simmons Manufac
turing Co. The jury in the circuit court of Milwaukee County
rendered a verdict in his favor, and assessed actual damages at $294
and punitory damages at $5,000. In lieu of the granting of a new trial
the plaintiff was permitted to remit $4,000 punitory damages, and
judgment was entered on the verdict as amended, whereupon the
company appealed, securing a reversal of the judgment of the court
below. Johnson had been injured in the employ of the manufac
turing company, had resumed work after recovery, and had brought
suit for the injury. His case in the suit against the insurance com
pany rested on the fact that it had written to Vincent, the superin-

DECISIONS OF COURTS AFFECTING LABOR.

293

ter.dent of the manufacturing company, advising him to discharge the
employee, on the ground that it was not for the interest of the manu
facturing company to retain employees who had brought suit against
it for damages. The testimony of Vincent and of Mr. Simmons (pre
sumably the president and chief owner of the manufacturing com
pany) was to the effect that Vincent disregarded this communication,
and did not bring it to Simmons’ attention; that Simmons noticed
that Johnson was still working, and on his own initiative ordered
Vincent to discharge him.
Judge Barnes, who delivered the opinion of the court, stated the
questions to be decided, and discussed the law applicable to the first,
showing that such an interference with employment, if proved, would
create a right of action, as follows:
This appeal presents two questions: (1) On the facts found by the
jury, was the plaintiff entitled to judgment? (2) Has the finding of
causal connection between the acts complained of by the plaintiff
and his discharge sufficient support in the evidence ?
The first question must be resolved in favor of the plaintiff. We
agree with defendant's counsel that if their client was justified in
doing what it did in the way of procuring Johnson's discharge, the
fact that it acted from malicious motives would not give a right of
action. The presence of malice would permit the recovery of punitory
damages, if defendant acted without justification, but would not in
itself create a cause of action where none existed without it. Malice
makes a bad case worse, but does not make wrong that which is
lawful. [Cases cited.]
But the plaintiff had the right to dispose of his labor wherever he
could to the best advantage. This is a legal right entitled to legal
protection. Such right could be interfered with by one acting in the
exercise of an equal or superior right. As against all others, the
plaintiff was entitled to go nis way without molestation; and, if any
one assumed to meddle m his affairs, he did so at his peril. [Cases
cited.]
Undoubtedly cases might arise where an insurer such as the
defendant might be justified in saying to the insured that it would
cancel its policy unless a certain employee was discharged. Such
employee might be so careless of his own safety or the safety of his
fellow servants that the insurer might not care to assume the added
hazard that would be liable to follow from such conduct. We have
no such case before us, however. The jury might well find in the
present case that the purpose which the defendant had in mind was
to deprive the plaintiff of his earning power so that he could not
successfully carry on his suit to recover damages for the injuries
which he had received. This savors too strongly of oppression to be
considered a legitimate reason for a third party interfering with the
relations between employer and employee.
On the question of evidence, however, the court held that while the
writing of the letter was enough to make out a prima facie case, and to
entitle the plaintiff to a judgment if no other testimony was offered,
yet, since there was no evidence showing caucal connection between

294

b u lle tin

o f t h e b u re a u o f la b o r s ta tis tic s .

the letter and the discharge, and there was positive uncontradicted
evidence that the discharge resulted from other causes, there was no
conflict of evidence to go to the jury, but the judgment, as a matter
of law, should be for the defendant. Two judges dissented from this
view of the case.
Interference w i t h Employment— Conspiracy—Actions for
Damages— Bausbach v. Reiff et al., Supreme Court of Pennsylvania
( March SO, 1914), 91 Atlantic Reporter, page 224.—A previous report
of this case (85 Atl., p. 762) was noted in Bulletin No. 152, page 271.
There the Supreme Court of Pennsylvania reversed the action of the
court of common pleas of Schuylkill County in granting a nonsuit,
and remanded the suit to that court for trial. The result was a ver
dict in favor of the defendants, and the plaintiff alleged exceptions,
the result being a second reversal with orders for a new trial.

Bausbach brought action against Reiff and a number of others for
the loss of his employment with a brewery company, where he had
been chief engineer for five years. He had reported the theft of mer
chandise from the company by an employee, who had been discharged
as a result of this disclosure as to his conduct. On July 18, 1910, a
committee of employees presented to the manager of the brewery a
paper, signed by the defendants, reading as follows: “ We, the under
signed, do hereby declare that we refuse to work after twenty-four
hours’ notice to the employers of the Rettig Brewing Co. as long as
George Bausbach is employed at same plant.” As a result Bausbach
was immediately discharged.
In the opinion delivered by Judge Potter, the court states that the
third assignment of error is as follows:
If you find, of course, that these men were justified in requesting
the dismissal of this man Bausbach, the plaintiff, on account of his
making it so unpleasant for them that they did not care to work with
him, that is the end of this case; your verdict should be in favor of
the defendants.
The opinion continues:
The first, second, twelfth, and thirteenth assignments are to lan
guage used in the charge and in answering points with respect to
which substantially the same question is raised, and that is whether
employees, to whom a fellow workman is for any reason disagreeable,
may lawfully combine for the purpose of procuring his discharge by
notifying the employer that they will refuse to work if the workman
to whom they object is retained.
Several quotations are made from the authorities as to conspiracy
for this purpose, the following being from the opinion in De Minico v.
Craig, 207 Mass. 593, 94 N. E. 317 (Bui. No. 95, p. 349):
The plaintiff had a right to work, and that right of his could not be
taken away from him or interfered with by the defendants, unless it

DECISIONS OF COURTS AFFECTING LABOR.

295

came into conflict with an equal or superior right of theirs. The
defendants' right to better their condition is such an equal right.
But to humor their personal objections, their likes and dislikes, or to
escape from what “ is distasteful” to some of them, is not in our opin
ion a superior or an equal right. * * * One who betters his con
dition only by escaping from what he merely dislikes, and by securing
what he likes, does not better his condition within the meaning of
those words in the rule that employees can strike to better their
condition.
The opinion then applies this principle to the facts of this case as
follows:
In the light of these authorities, which point out a sound distinction
between what a single individual may lawfully do and that which a
combination of individuals may do, the instructions of the trial judge
which are the subject of the first three assignments of error were
inadequate and erroneous. The united action of the defendants was
put upon the same basis as that of any single one of them; the trial
judge using by way of illustration a supposed act by Reiff, the first
defendant named. It does not appear that the jury were instructed
that an act which might be lawful if done by one person might become
unlawful if a number of persons combined to do it. The only fair
interpretation which could be placed upon the instructions given was
that, “ if Frank G. Reiff or any other one of these defendants” had
the right to threaten to stop work if plaintiff was not discharged, the
entire 28 men who signed the paper might lawfully combine to do the
same thing. This was not a sound statement of the law. Again, it
appears that the jury were instructed that, if plaintiff “ worked on
the nerves” of his coemployees, if he made himself “ objectionable,”
“ obnoxious,” “ unpleasant,” or “ distasteful” to them, they had the
right to unite to procure his discharge by threatening to strike. This
was going too far. The jury might very well have been instructed
that, if plaintiff’s habits, or his character, or his conduct while at
work towards his fellow workmen was such as to render him an unfit
associate for ordinary workmen of good character, it would have been
sufficient reason for interference by his fellow workmen with his em
ployment. They had the right to combine to advance their own
interests in any proper way, but not for the purpose merely of inflict
ing injury upon another. It appears from the evidence that some
of the defendants had disagreements with plaintiff, and gave some
reasons for disliking him. But none of them testified that these dif
ficulties caused them to sign the paper. Eighteen of the defendants
gave no testimony whatever, and there was nothing to show that
plaintiff had in any way made himself obnoxious or distasteful to
them, nor was there anything in the evidence to show that they
signed the paper for any other reason than that alleged by plaintiff,
which was that he had reported to the company a theft by the night
watchman. The first, second, third, twelfth, and thirteenth assign
ments are sustained.
The trial court had struck out from the testimony a paper given
Bausbach by the company's manager at the time of his discharge,
stating in effect that he had been discharged through no fault of his

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BULLETIN OF THE BUREAU OF LABOR STATISTICS.

own, but at the demand of employees, because he had reported the
dishonesty of one of them. The opinion cites and quotes authorities
on the subject of res gestae, and concludes that as a verbal statement
to the same effect made by the manager to the employee at the time
of discharge would have been admissible as a part of the res gestae,
there was no good reason for excluding the written statement.
The court held that it was unnecessary to consider the remaining
assignments of error, as those considered were sufficient to warrant
the granting of a new trial. The judgment was therefore reversed.

Interference with Employment— Procuring Discharge—
Conspiracy— Heffernan v. WTiittlsey et al., Supreme Court of Minne
sota (June 26, 191 148 Northwestern Reporter, page 63.— E. W . Hef
fernan brought action against F. C. Whittlsey and the railroad com
pany by which he had been employed for damages for procuring his
discharge. The plaintiff, who was a telegraph operator, had been in
the employ of the company as ticket seller. Whittlsey was station
agent in charge of the same station. They had had trouble over the
commissions on telegrams, and Heffernan being sustained, Whittlsey
retired as agent. Plaintiff continued as operator and ticket seller until
he was discharged. The ground for the discharge was that he had
sold several tickets to a certain point over a certain route at the higher
rate of fare which would be charged over another route and failed
to credit the company with the excess received. The railroad com
pany in its answer alleged that it had reasonable grounds to believe,
and did believe, that the charges were true. Whittlsey admitted
that he caused the charges against plaintiff to be investigated,
alleged the truth of the charges and his belief and good faith in the
matter. Both denied conspiracy and the other allegations. The jury
in the district court of Waseca County gave a verdict for damages
against both defendants, and, on motions for judgment or a new
trial being denied, the defendants separately appealed, with the
result that the judgment as to the company was reversed, while
that as to Whittlsey was affirmed.

If),

The court held that the view of the trial court was correct, that
the railroad company had a right to discharge plaintiff without
cause, and that some other act must, therefore, be proved against
it, and the only claim was that it conspired with Whittlsey falsely to
charge plaintiff with dishonesty in his position. The only basis for
this, since Whittlsey had no connection with the company, was the
claim that one Phillips, the detective who procured the evidence
which caused the investigation, was in its employ. The jury had
returned a special finding that Phillips was so employed, and the
court held that the verdict could not stand unless there was suffi

DECISIONS OF COURTS AFFECTING LABOR.

297

cient competent evidence to support this finding. The burden of
proof of this was on the plaintiff. Whittlsey testified that he em
ployed Phillips on his own account and paid for his services. The
officers of the railroad testified that Phillips was not employed by
them; that they had no suspicion of plaintiff and knew nothing
about any charges or investigation until the evidence gathered by
Phillips was presented to them. The defense attempted to get
Phillips as a witness, but did not succeed. The admissions of Phil
lips of employment by the company, which were admitted on the
trial, were ruled inadmissible and the other evidence insufficient.
Continuing, the court, speaking by Judge Bunn, said:
The admission of these declarations was prejudicial error, as with
out them the evidence is too slight to enable us to say that it is
sufficient to justify the verdict; much less is it sufficient to warrant
holding that the error did not affect the result.
We will not discuss the question whether in any event the com
pany can be held liable for doing a lawful act with a bad motive
and with malice. If the evidence sustained the charge of a conspiracy
between the company and Whittlsey to make false charges against
plaintiff's integrity in order to procure his discharge, resulting in
his being “ blacklisted," it is probable that there would be a liability.
Joyce y. Great Northern, 100 Minn. 225, 110 N. W. 975. But that
there is no liability in the absence of malice can not be doubted. In
the present case we find the evidence of a malicious conspiracy
entered into between Whittlsey and the company, or joined in
afterwards by the company, insufficient to make applicable as against
the company the doctrine contended for by plaintiff.
As to defendant Whittlsey, the evidence is sufficient to justify a
finding that the charges made against plaintiff were false, and that
he acted out of motives of ill will, and with a desire to injure plaintiff.
The verdict as against him was justified by the evidence, and we
think it should stand, notwithstanding that, as against the company,
it must be set aside.

L abor

O r g a n iz a t io n s — C o l l e c t i v e

I n d i v i d u a l C o n t r a c t —Gulla

A g r eem en ts— E ffect

v. Barton, Supreme Court of New
York, Appellate Division, Third Department (Nov. 11, 1914), 149
New York Supplement, page 952.—Joseph Gulla sued Lizzie Barton,
as surviving partner of a brewery firm, for wages alleged to be due
him. On trial of the case at the trial term for Madison County the
plaintiff put in his evidence, and at that point a nonsuit was granted
on motion of the defendant. The plaintiff appealed, with the result
that a new trial was granted.
The plaintiff had worked in the brewery of the defendant for 69
weeks, for which service he had been paid $9 per week. During this
time an agreement was in force between the defendant and the Malt
sters' Union, of which plaintiff was a member. This union was a

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BULLETIN OF THE BUREAU OF LABOR STATISTICS.

local body incorporated in New York, and a branch of an interna
tional union. Under this agreement the union was to prevent
strikes and allow the use of the union label, while the employer was
to conduct the business as a union brewery, and to pay all employ
ees $18 per week. Upon learning of this agreement, the employee
asserted that he would bring action for the additional $9 per week
to which he believed himself entitled, and from that time he was
paid $18 per week for his labor. Judge Kellogg, who delivered the
opinion of the court, after stating the facts substantially as above,
said:
The agreement referred to was a valid contract, which may be
enforced in any proper manner. The renewal of the agreement [for
a second year] indicates that it was beneficial to the defendant’s
firm. The union entered into the contract for the benefit of the plain
tiff and the other employees in the defendant’s brewery, and for the
benefit of all union workmen.
It is urged, however, that the plaintiff can not maintain an action
upon the agreement, and that he has waived the benefits of it by
contracting for himself. Apparently he did not know of the agree
ment between defendant and the union until a dispute arose between
the plaintiff, the defendant, and other employees. The evidence
does not show any act of the plaintiff, made with a knowledge of the
facts, which would waive the benefits of the contract with the union
in his behalf. We have, therefore, a situation where the plaintiff
received from week to week the wages contemplated by the contract
of employment between himself and the defendant, and his union
unbeknown to him had made a contract for his benefit, based upon a
separate consideration passing from the union, that he as a member
thereof should receive a greater compensation. In payment for the
labels and the use of the union name in marketing the brewery prod
uct, the defendant had agreed to pay a stated wage to the plaintiff
and to the other men working with him as members of the union. The
union label had force and value, and the union had strength by reason
of the moneys which it received as fees and dues from the plaintiff
and other members. The plaintiff is therefore connected with the
consideration and was a party intended to be benefited by the agree
ment. Smith v. State of New York, 203 N. Y. 106, 96 N. E. 409.
The judgment appealed from should therefore be reversed, and a new
trial granted.
Labor Organizations— Inducing Breach
junctions—New

Contract— I n

England Cement Gun Co. v. McGivern et al., Supreme
Judicial Court of Massachusetts ( May 26, 1914), 105 Northeastern
Reporter, page 885.—The company named brought action against
several officers and members of the Journeymen Plasterers’ Benevo
lent Union of Boston, No. 10, to secure an injunction. A master was
appointed in the proceeding, who heard the testimony, and the case
was reported for decision by the full court on the pleadings and his
report. It is stated in the opinion that no exceptions were taken to

DECISIONS OF COURTS AFFECTING LABOR.

299

the report of the master. He found that the plaintiff company was
engaged in the work of mixing and applying to the surfaces of build
ings a kind of plaster called gunite by means of a so-called cement
gun, which mixes sand, cement, and water, and is operated by two
men, one operating the gun or mixing machinery, and the other the
nozzle through which the gunite is applied by means of compressed
air. Since the work of the nozzle man is very hard, it was customary
to have the gun man and nozzle man exchange places every half day,
or, if the nozzle man was a plasterer, and the skilled plasterer who
usually followed to smooth up the work had learned the nozzle man’s
duties, for them to exchange. Further facts are given as follows:
The object of the local union, as defined in its constitution, is:
“ To unite together all the practical journeymen plasterers working
within the jurisdiction of this union for the purpose of securing united
action in whatever may be regarded as beneficial to their united
interest.”
And the master specifically finds that:
“ One of the main objects of the International Association and of
Union No. 10 is to exercise a control by concerted action over the
relations of practical plasterers and those who may, from time to
time, require their services.”
In the fall of 1912 McGivern, on behalf of the union, told the com
pany’s superintendent, referring to a certain building, that the latter
would have to employ union plasterers to operate the nozzle, or he
would call a strike, and for a time union plasterers were so employed.
On February 28, 1913, the gun company entered into a contract with
the Old Colony Real Estate Trust to coat with gunite the walls of a
building which the trust was erecting. The officers of the union,
learning that the gun company did not intend to employ union men,
informed Farley, an acting trustee of the trust, that there would be
trouble. After part of the interior plastering had been done the
plasterers, and also the lathers and metal workers, left and refused
to return to work until a contract was made for the outside work to
be done by the contractor who was doing the inside plastering, and
who would use union men. The gun company wrote a letter to the
trust releasing it from its contract. The records of the union showed
the receipt of a report from Taylor, one of the defendants and the
union’s business agent, on the matter of this job, and a vote to take
action in the way of striking on the inside work, as was actually
done.
It appeared that the gun company had no objection to employing
union men, but that the plasterers’ union did not recognize the
regular workmen using the machinery as plasterers, unless of course
they were first ordinary plasterers, and there appeared to be no union
to which they were eligible.

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The opinion, delivered by Judge De Courcey, further states:
The master made certain specific findings and conclusions, among
which are these:
“ 4. That there is a division of sentiment among members of the
unions as to the use of the cement gun and process, the defendant
McGivern and others being in favor of its use, and others in the
majority being hostile to its use, based upon the fear that it will
reduce the work of practical plasterers; that the present attitude of
the local union officials is that the union should control the operation
of the nozzle of the gun, and not the rest of the machinery; that the
demand of the defendants is that the plaintiff employ skilled plas
terers- only, who are members of the union, to operate the nozzle,
as well as to follow after the nozzle in smoothing the surface covered;
that the object of the defendants is to compel the plaintiff to unionize
its business and to run a closed shop so far as the work of plastering
goes, in order to secure all of that work for the members of their
union under union conditions; and that it was to accomplish this
object that the strikes were called on the job upon the Howard Street
building.
“ 5. That the defendants have conspired together for the purpose
of creating and enforcing a boycott against the plaintiff and of hinder
ing and interfering with the prosecution of its business and of injuring
the same unless it accedes to their demand.
“ 6. That the defendants, in pursuance of said conspiracy, are
engaged in watching and seeking out work proposed to be given to
the plaintiff and in coercing those in control thereof not to make
with the plaintiff any contract for such work, and in causing the
rescission of such contracts as they discover to have been made with
the plaintiff."
“ 8. That the strikes were strikes against a subcontractor for the
purpose of forcing him to coerce the main contractor to coerce the
owner of the building to coerce the plaintiff to yield to the demands
of the union.
“ 9. That the defendants have instituted a boycott against the
plaintiff and intend to continue enforcing the same, unless prevented
from so doing."
The court discussed the law applicable to the case, and expressed
its decision that an injunction should be granted, as follows:
Without further recital of the details, it is apparent that the record
discloses a combination on the part of the defendants to do acts
which the law does not justify, notwithstanding that the ultimate
motive by which they were inspired was to advance their own inter
ests. The plaintiff had a written agreement with the owners of the
building to apply the coating of gunite. Under our decisions it was
unlawful for the defendants, by means of strikes and otherwise, to
intentionally induce the owners to take away from the plaintiff its
rights under that agreement. Such conduct is not legally allowable
as so-called trade competition or defense of self-interest.
A combination to procure a breach of contract is an unlawful con
spiracy at common law. [Cases cited.] Further, if Monahan, who
had the subcontract to do the interior plastering, also had the con
tract for this exterior work, his union workmen, unless prevented by
their contract of employment, might have gone out on a strike unless

DECISIONS OF COURTS AFFECTING LABOR.

301

he agreed to give all of the plastering work to them or their associates,
because we assume that the application of stucco or cement to the
exterior of a building may be found to be work such as practical
plasterers have a right to compete for.
But it was not lawful for them to strike to compel Monahan, with
whom they had no trade dispute, to compel the general contractor
to compel the owner to compel the plaintiff to give to the defendants
the work they demanded. In other words, it was an unjustifiable
interference with the plaintiff’s business to injure others in order to
compel them to coerce the plaintiff. Martin, Modern Law of Labor
Unions, sec. 77, and cases cited. The acts of coercion and procuring
breaches of contract mentioned in the sixth finding plainly are not
justified by the law of this Commonwealth. It is unnecessary to con
sider further the unlawfulness of such a secondary or compound boy
cott in view of the full discussion of the subject in the recent opinions
of this court in Pickett v. Walsh, 192 Mass. 572, 78 N. E. 753 [Bui. No.
70, p. 347], and Burnham v. Dowd, 104 N. E. 841 [page 270], in which
cases are collected the authorities in this and other jurisdictions.
The plaintiff is entitled to a decree enjoining the defendants from
causing or taking part in any boycott against the plaintiff’s business,
by coercing others, through intimidation or threats, to withdraw
from the plaintiff their beneficial business intercourse, and from
causing or inciting any sympathetic strike against the plaintiff or its
customers for the purpose of preventing the use by the plaintiff of its
machinery or process for applying gunite, or for the purpose of com
pelling it to discharge any of its nonunion workmen.
Labor Organizations—I njunction—Boycott—Gill Engraving
Co. v. Doerr, United States District Court, Southern District of New
York ( May 19, 1914), 214 Federal Reporter, page 111.—The Gill
Engraving Co. brought action against William Doerr, individually
and as business agent for the New York Photo-Engravers’ Union
No. 1, and others. The decision disposes of a motion for an injunc
tion against the defendants pendente lite, by dismissing said motion.
The controversy had been going on for a number of years between the
company and the union, which included most of the photo-engravers
in New York. The company at first conducted an open shop, but
finally employed only nonunion workmen. In March, 1914, the
union took action by which the members refused to do any work for
customers of their employers who did not agree to have all their work
done in union shops. The Gill company appeared to be the only
concern of importance affected by this action. The result was that
the larger part of the customers of the company left it, so that it
lost most of its business and the rest was threatened. In expressing
the decision of the court that these facts did not warrant the issuance
of an injunction, Judge Hough spoke as follows:
As to the purpose with which defendants have acted, I am of
opinion that hostility to the Gill company is subordinate and incidental.

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BULLETIN OF THE BUREAU OF LABOR STATISTICS.

All nonunion businesses are treated alike; naturally the greater tne
business the greater the aggregate dislike, but the quality of hatred
is the same, irrespective of size. That Gill company is hurt is grati
fying but incidental; the procedure would be the same were com
plainant nonexistent. Doerr told nearly the whole truth when he
wrote, “ We will do all of (your customers') work or none.” If he
had added “ and if they can get it done otherwise after this we will
think up something else,” he would have told the whole truth, be
cause the great and all-absorbing object of defendants' endeavors
was and is to get all the work in the trade, or at any rate all the work
worth having, for their own members.
Before applying the law to the findings of fact, much that was men
tioned in argument may be laid aside. It is not shown that any
national statute has been violated; nor that any principle peculiar
to national law (e. g., interstate commerce) is concerned; nor that the
question presented is complicated by disturbance of the peace, phys
ical trespass, or violence; nor that any Government function (e. g.,
mail transportation) has been interfered with. These exclusions
make the case purely local. The jurisdiction of this court is an inci
dent, depending on the New Jersey incorporation of a business wholly
conducted in New York City. Therefore I think it desirable that the
law of New York should be applied so far as I am capable of discov
ering it, unless the decisions of Federal courts superior to this compel
different treatment.
It is asserted that the defendant's acts constitute a crime under
New York Penal Code, section 580. I decline to consider such viola
tion as ground for injunctive relief pendente lite. I am sure that
penal statutes are meant to be enforced in criminal courts; their use
as bases for injunction is usually illegitimate and always illogical;
even the not infrequent fact that prosecuting officers do not enforce the
statute against some citizens and rigidly enforce it against others does
not justify an attempted administration of criminal law by courts
of equity.
It is further urged that the defendants have engaged in a conspiracy
or combination in violation of sections 340, 341, General Business Law
of New York (the Donnelly Act). It seems plain enough that this is
true, but it is settled that for such cause a private party on his own
suit is not entitled to injunctive relief. Irvmg v. Neal, 209 Fed. 471
[see p. 1621; Paine Lumber Co. v. Neal, 212 Fed. 259 [see p. 164];
affirmed in 213 Fed. (C. C. A., April 7,1914). Therefore this motion
is to be decided by what is usually called common law; i. e., the law
of New York as evidenced by the decisions of its courts, supplemented
only by the inquiry as to whether any controlling divergence of opinion
is found in the appellate tribunals to which this court is more directly
responsible. The leading cases in New York [cases cited] all show that
the court sits primarily to decide a question of fact, viz: What is the
object of the combination?
Applying this rule to this case, it is held that the object of defend
ant's combination is not to injure Gill company, though such injury
has occurred and, was foreseen. The object is to increase the power
of the union, so as to get more, better, easier, and better-paid work
for its members; this is now regarded as laudable.
As to the means employed, everything lately done and alleged as
ground for present action consists in threatening strikes. This is the

DECISIONS OF COURTS AFFECTING LABOR.

303

exercise of a legal right. If defendants have sought to attain a legal
end by legal means, that a motive, or part of a motive, was hate of
Gill company is immaterial.
That wrong and injury are being done in this matter is plain
enough. Why does the law refuse or neglect to correct it? An
drews, J., has, I think, given the best answer in Foster v. Retail
Clerk’s Assn., 78 N. Y. Supp. 860:
“ Injury * * * is never good, but to suffer it may entail less
evil than to attempt to check it by legal means. * * * * In the last
analysis this freedom to commit injury, and the bounds imposed upon
it are regulated by what has been thought to be public policy.”
The cases cited could be used to show that no bounds have been
imposed in New York on wrongs quite as great as that wrought upon
complainant.
Defendants have called attention to one fact not found in any case
known or shown to me. The Gill company has declared war on the
union by discharging all members found in its shop. It is said this
should deprive complainant of the aid of equity, and Sinsheimer v.
United Garment Workers, 77 Hun, 215, 28 N. Y. Supp. 321, is relied
on. It is not seen why a person otherwise entitled to protection for
his business is deprived of it because he will not employ a certain class
of workmen; the nonpreferred workmen are not, tnerefore, given any
right to injure the man who does not prefer them.
In the United States courts for this circuit, National Fireproofing
Co. v. Mason Builders’ Assn., 169 Fed. 259 [Bui. No. 84, p. 427], is
controlling. It accepts the New York cases fully, piously regrets
the injuries committed, and writes the epitaph of litigation such as
this by declaring that, when equal legal rights clash, equity is helpless.
This is true; it would have been just as true to point out that the
result of legalizing strikes, lockouts and boycotts under any circum
stances must be that those who understand the use of such legal tools
can always keep within the law and accomplish their main purpose
while infncting all necessary “ incidental” injury.
Considering that the rules as laid down in New York have not been
shown to be transgressed, motion denied.

L a b o r O r g a n iz a t io n s — I n j u n c t io n — Co n s p ir a c y — B o y c o t t —

Hoban v. Dempsey, Supreme Judicial Court of Massachusetts (Feb.
28,1914), 104 Northeastern Reporter, page 717.—The opinion in this
case, delivered by Judge Rugg for the court, in affirming the decree
of a single justice dismissing a bill praying for an injunction against
the carrying out of a contract between the agents of steamship com
panies and an organization of longshoremen, states the facts and
fully discusses the law applicable thereto:
The plaintiffs are members of a labor union of longshoremen.
There are two groups of defendants, the one members of a different
labor union of longshoremen, and the other representatives of certain
trans-Atlantic steamship companies. The plaintiffs seek to enjoin the
defendants from proceeding with an agreement which consists of 30
articles covering most, if not all, of the conditions of labor likely to

304

BULLETIN OF THE BUREAU OF LABOR STATISTICS.

arise in the course of such employment. One paragraph provides in
substance that all longshoremen employed by the contracting transAtlantic steamship lines shall be members of the defendant union
whenever such men are available, and whenever such men are not
available, then other men may be employed until the defendant
union can supply men, but in any event men not members of the de
fendant union may be employed until the end of the day. It is con
tended that this clause is so illegal that performance of the contract
ought to be enjoined at the instance of third parties. A trial was had
before a single justice who, at its conclusion, found that the “ con
tract was freely and fairly entered into between the contracting par
ties without any purpose or motive on the part of the representatives
of the International Longshoremen’s Association [the defendant
union] to injure the plaintiffs or to coerce them into joining the union
or unions, although 1 am satisfied that the legal effect of the contract
may deprive the plaintiffs of employment by the trans-Atlantic steam
ship lines,” and ruled as matter of law that the bill could not be main
tained and entered a decree dismissing it. The plaintiff’s appeal
brings the case here.
It is familiar law that the findings of fact made by a single justice
are not to be set aside unless plainly wrong. There was testimony
from witnesses from both groups of defendants that their purpose in
entering into the contract was not to harm the plaintiffs, but pri
marily to secure the welfare of each party to it. The steamship
agents testified that they had previously dealt with several different
organizations or local unions; that the committees representing these
bodies were cumbersome in numbers, not small enough to make an
effective body, and in consequence, in case of disagreement as to
working conditions, there was difficulty in getting an adjustment;
and that work was not done expeditiously and well, and it was felt
that if an agreement was made with one strong union, under good
control and management, it would be easier to get an adequate supply
of labor and to settle troubles that might arise; and that no coercion
or intimidation was exercised over them by the defendant union, and
that they acted voluntarily with a view single to their own interests
in signing the contract. The advantage to the defendant union lay
in securing a permanent arrangement covering all labor conditions,
with preference in employment for their own members. The uncon
tradicted direct testimony was to the effect that the dominant motive
on the part of both parties was to gain benefits for themselves and in
no sense to harm the plaintiffs. Of course the defendants must be
presumed to have intended the natural results of their acts, whatever
may have been their oral statement respecting it. But it is plain
from this summary of testimony that the finding that there was no
purpose to injure the plaintiffs or to compel them to join the de
fendant union was supported by evidence. The tortious acts and
motives which frequently have been found to exist in cases involving
industrial disputes are absent in the case at bar. There have been no
violence, threats, or intimidation.
The question remains whether upon the facts found the plaintiffs
are entitled to relief. This is a simple case where employers and a
union of employees have made an agreement freely and without any
kind of constraint, the terms of which do not require the breaking of

DECISIONS OF COURTS AFFECTING LABOR.

305

contractual relations with anyone, to the end that all the work of a
specified kind be given to the members of a union so far as they are
able to do it, for a limited period of time. There was nothing of the
boycott about the contract, for an essential element of the boycott is
intentional injury to somebody. An agreement of this sort under
the circumstances disclosed is within the protection of Pickett v.
Walsh, 192 Mass. 572, 584, 78 N. E. 753, 6 L. R. A. (N. S.) 1067,
116 Am. St. Rep. 272, 7 Ann. Cas. 638 [Bui. No. 70, p. 747]. It is
within the lawful principles as to the conduct of business expounded
at length and with great clearness in Martell v. White, 185 Mass. 255,
69 N. E. 1085, 64 L. R. A. 260,102 Am. St. Rep. 341 [Bui. No. 53,
p. 958]. See, also, Mogul Steamship Co. v. McGregor, 23 Q. B. D.
598; s. c. on appeal [1892], A. C. 25. Those principles are the law
of this Commonwealth. It is not necessary to repeat or restate them.
They are decisive against the contentions of the plaintiffs.
Although there is evidence which would warrant a finding that the
defendant union represents “ practically the whole of the longshore
men of the port of Boston/7 this has not been found as a fact. It is
apparent both from the frame of the bill, the trend of the trial as
disclosed on the record, and the findings of the single justice, that the
hearing did not proceed upon the theory of an unlawful monopoly
or a violation of the Sherman Antitrust Act. Those issues were not
tried out. Such questions can not be raised at this stage of the case
and they are not passed upon.

Labor Organizations— Injunction— Contempt— Picketing—
Evidence— Sona et al. v. Aluminum Castings Co., United States

Circuit Court of Appeals, Sixth Circuit (June IS, 19IS), 214 Federal
Reporter, page 9S6.—This case was before the court of appeals on
a writ of error to the District Court of the United States for the
Eastern District of Michigan, to review a judgment by that court
sentencing to imprisonment George Sona and one Sudsinski for con
tempt of court. The persons named were pickets in a strike by a
local of the International Molders’ Union against the company named.
The company had secured a restraining order and preliminary
injunction, of which the persons named had notice. It was in
evidence that Sona had assaulted an employee of the company,
doing him “ serious bodily harm," and that Sudsinski, though com
mitting no assault, had been guilty of picketing, impeding, and
obstructing the streets, alleys, and approaches to the premises of
the company in a threatening and intimidating manner. These acts
were regarded as contempt of court, and a sentence of imprison
ment was assessed on each party. A number of technical questions
were involved as to the sufficiency of the petitions and affidavits
which led to the arrest, and while certain defects were apparent, the
court held that these had been waived by the subsequent proceed85590°—Bull. 169—15------20

306

BULLETIN OF THE BUREAU OF LABOR STATISTICS.

ings and the acts of the defendants, and the judgment was affirmed.
On the question of evidence the court said in part:
As to the sufficiency of the proof to sustain conviction: As to the
assault charged against Sona, no question of the sufficiency of the
proof could well be made; there was direct testimony thereof.
As to Sudsinski, the question, of course, relates only to the charge
of obstructing and intimidating. Complainant concedes that the
injunction was not intended to restrain peaceable picketing, and the
district judge rightly, as we think, so interpreted the order.
There was express testimony that it was the regular practice for
picketers to march back and forth in front of the plant for about
an hour each morning and evening, including the time when employees
were entering and leaving the plant; that Sudsinski was one of the
regular and prominent picketers, usually walking with two or three
and sometimes about a dozen picketers in a “ bunch” ; that the
picketers marched either in single file or by twos; and that, during
this picketing, there were in the immediate vicinity of the plant
from 20 to 50 and sometimes 100 people, apparently largely strikers,
walking back and forth. The controlling question was one of fact
whether this picketing was peaceable or whether, on the other hand,
it was calculated to intimidate and obstruct employees. There was
testimony tending to show a purpose to intimidate and obstruct.
One of the witnesses testified that he had heard some of those so walk
ing around or standing “ hollering different things” ; that he at one
time heard them “ call the other men cattle” ; and that Sudsinski
was in the crowd that particular evening. Respondent Sona, as a
witness, admitted that he knew that “ there had been a lot of trouble
around there” ; that he had heard that men had been assaulted
on the street cars on their way to work and been pulled off street
cars; that he had heard that the company had to protect its men
by cooking and serving meals inside the works. (There was express
testimony that the employees were boarded by the company after
the strike was declared.) Sudsinski would not unnaturally be as
familiar with those general conditions as was Sona. The latter and
his associates in the alleged assault followed the employees alleged
to have been assaulted from the works to the place where the collision
occurred. Judge Angell, who presided at the hearing below and who
saw and heard all the witnesses, was convinced, as shown by his find
ing, that the picketing in question was done in such a manner as to
intimidate, threaten, and obstruct the employees of the company,
and all persons seeking employment from it. In view of the testi
mony referred to, we can not say, as matter of law, that the court
was not justified in reaching the conclusion arrived at notwithstanding
the absence of testimony of actual violence or disorderly conduct on
Sudsinski’s part.
Labor Organizations—I njunction— Contempt— V iolation by
I nciting Others to V iolence— United States v. Colo et al., United

States District Court, Western District of Arkansas (Sept. 1,1914), 216
Federal Reporter, page 654•—On May 9, 1914, the United States Dis
trict Court for the Western District of Arkansas, in the case of

DECISIONS OF COURTS AFFECTING LABOR.

307

Mammoth Vein Coal Mining Co. v. Hunter et al., rendered a decree en
joining the defendants in that case, and all other persons, from in
terfering with the property of the company or with its nonunion
miners. On the 13th of June the company filed a motion for an at
tachment against several striking union men for violation of the
decree, and on the 20th filed a similar motion against still others.
The cases against all the defendants who had been arrested were
tried together. On July 27, after the evidence on the original
cases had been taken and the cases submitted, a motion was
made to reopen them to allow additional testimony to be intro
duced, growing out of an alleged attack on mine No. 4 by an armed
mob, the killing of two of the company’s employees, and the burning
and blowing up of its property. The motion was sustained as to
P. R. Stewart, but was denied as to all others. Motions were then
filed for attachments for contempt against John Manick, Frank
Gripando, Loyd Claborn, Pink Dunn and George Burnett, charging
them with having been members of the mob. Testimony was then
introduced as to the occurrences of July 17.
Three of the defendants were charged with intimidation of certain
miners on a train going to mine No. 4 on June 15. After some review
of the testimony in regard to this, Judge Youmans, who delivered the
opinion of the court, said:
After a consideration of all of the testimony, I am convinced that
Burris, Robinson, and Manick did use threats on that occasion against
the employees of the company and endeavored to intimidate them,
and that in so doing they knowingly violated the court’s orders. In
my opinion the presence of armed guards and a deputy United States
marshal, who met the train at the stopping point, alone prevented an
attack on the employees.
As to a charge against Robinson the court said:
Sandy Robinson is separately charged with having cut some sacks
of feed belonging to the Mammoth Vein Coal Mining Co. on the plat
form at Prairie Creek. This was on May 18. The feed was being
unloaded from a Midland Valley car for the purpose of being taken to
mine No. 4. The testimony is that Robinson was there and engaged
in an altercation with a mine guard, and that he took out his pocketknife and cut five sacks. I am convinced that this is true, notwith
standing his denial, and the testimony of witnesses tending to show
that he was not there.
With regard to the nature of the charges against Stewart, Judge
Youmans said:
The defendant P. R. Stewart, at the time of the occurrences herein
mentioned, was president of District No. 21 of the United Mine
Workers of America. He was present during the trial of the case of
Mammoth Vein Coal Mining Co. v. Hunter et al. He heard all the
testimony, sat with counsel for the defendants during the trial, and
heard the opinion of the court when it was handed down. He there
fore had full knowledge of the issuance of the injunction and its

308

BULLETIN OF THE BUREAU OF LABOR STATISTICS,

terms. The charge against him consisted of certain statements made
by him. On May 25 Stewart went from Fort Smith to Midland in an
automobile in company with Paul Little, State prosecuting attorney.
While at Midland, Stewart made some statements in front of "McGee’s
drug store.
After quoting from the testimony of Little and other witnesses and
of Stewart himself as to this occurrence, which testimony showed that
Stewart suggested that the strikers should be armed and that he would
assist them in procuring arms, Judge Youmans said:
It will be seen that Mr. Stewart did not deny any of the testimony
given by the witnesses as to what he said in front of McGee’s store
at Midland. He explains it by saying that he “ had information that
a guard named Bailey, and some other guards, had insulted some
gins,” and that that made him pretty mad. He said:
“ It was my idea to arm the men in the Hartford Valley so that they
could protect their own homes, and so that they could protect the
women and children.”
There was nothing, so far as the attitude of the State and county
officers towards offenses committed by employees of the Mammoth
Vein Coal Mining Co. was concerned, to warrant him in assuming
authority to supplant the legal methods for the enforcement of the
law. He made a speech at Hartford the next night at a gathering at
which Mr. Little was present.
After quoting the testimony of Little to the effect that the remarks
of Stewart on this occasion were similar to those on the previous day,
the opinion continues:
Stewart made this statement at Hartford more than 24 hours after
he had made the statement in front of McGee’s store at Midland.
If the first statement was made in anger, the second was made after
his temper had had ample time to cool. It was made after the prose
cuting attorney had, in response to inquiries, stated the information
he had gathered. There was no reason to presume that the officers
and the courts were not able to cope with all violations of the law.
Notwithstanding this, Mr. Stewart saw fit to repeat his threat, and
that, too, in the presence of the prosecuting attorney, who permitted
it to pass unrebuked.
The conviction can not be avoided that the real object of Stewart
was to prevent the operation of the mine as an “ open shop.”
The coal company had determined to run its mine as an “ open
shop.” The union was opposed to such operation. If the coal comany had no legal right to run its mine as an “ open shop,” there must
ave been some way, by orderly procedure in the courts, to prevent it.
The union was endeavoring to prevent such operation, but not by
T,*’ J
11
1# 1 *J3purpose by legal means,
effort was not by legal
_____
A
and sympathizers assem
bled on the company’s property, assaulted its employees, and com
pelled them to stop work. That method was unlawful. At the
mstance of the coal company, all persons engaged in that attempt,
and all others, were enjoinea from in any manner interfering with
the company’s property or employees. Notwithstanding the injunc
tion, assaults were threatened. Shots were fired into the mine

DECISIONS OF COURTS AFFECTING LABOR.

309

inclosure. It was necessary to keep armed men about the mine.
From some time in June to the 15th of July deputy United Stales
marshals weie stationed at the mine. Even when men went to Mid
land for supplies, it was necessaiy foi them to go armed.
Certain evidence was then reviewed, after which the court said:
The conclusion is unavoidable that if the membeis of the union
had obeyed the orders of the couit, oi if the officers of the county had
shown the same disposition to prosecute violations of the law when
committed by union men as when committed by employees of the
company, it would not have been necessaiy for the laltei to carry
arms.
It was the policy of Stewaii, accoiding to the argument of counsel,
to have the union maintain such an attitude as would make the
employment of armed guards, if not actually necessary, at least
apparently so from the viewpoint of the coal company, and thus
cause to be added, to the usual cost of the production of coal, such
sum, by the expense of maintaining guards, as would result in loss
to the company, and bring about the suspension of operation as an
“ open shop.” According to that plan, the company was to be kept
in a constant state of apprehension of an al tack to the extent that it
would continue to maintain guards, but it was in fact the intention
of Stewart that the attack should never be made. Such an experi
ment in tight-rope walking could not result otherwise than in failure.
Putting on Stewart's acts and speeches the construction most favor
able to him, he incited to action forces which he could not control.
Occupying a position in which his influence could have operated
powerfully for the maintenance of law and order, he saw fit to so
deport himself as to incite to and encourage mob violence. He
knowingly played with fire with a reckless disregard for consequences.
His conduct was at variance with his declaration made on the witness
stand, of respect for the court's order and his intention to be governed
thereby.
Language or conduct intended to incite others to a violation of the
court's order is a contempt of court. U. S. v. Debs, 64 Fed. 724;
In re Debs, 158 U. S. 564, 15 Sup. Ct. 900; U. S. v. Haggarty, 116
Fed. 510 [Bui. No. 43, p. 1291]; U. S. v. Gehr, 116 Fed. 520. The
effect of Stewart's policy, speeches, and conduct is seen in the events
of the 17th of July.
The occurrences of the date just mentioned, when the attack by
the union men on mine No. 4 took place, were reviewed, and the evi
dence of participation by the various defendants taken up. The
conclusion reached is shown by the following quotation from the
opinion:
The testimony on behalf of Clabom is sufficient to raise a reasonable
doubt in his favor, and he will be discharged. Burris, Robinson,
Stewart, Manick, Giipando, Dunn, and Burnett will be adjudged
guilty of contempt.
The term and place of imprisonment of each is designated at this
point and the opinion concludes as follows:
It is proper to say, in this connection, that a conviction upon a
charge of contempt for an offense which is also a crime does not bar
a prosecution for the crime.

310

BULLETIN OF THE BUREAU OF LABOR STATISTICS.

Labor Organizations— Injunction—Right to R elief— M a n
Directing Issue—Peaceable Parading—Baltic Mining

dam us

Co. v. Houghton Circuit Judge, Supreme Court of Michigan (Dec. 10,
1918), 144 Northwestern Reporter, page 209.—The Baltic Mining
Co. and others had procured from the circuit judge of Houghton
County a preliminary writ of injunction restraining certain acts of
violence and intimidation charged in their original bill of complaint.
A few weeks later the judge issued an order dissolving the writ pre
viously granted by him, on the ground that it had been unadvisedly
issued, since he did not have the power to take such a step. The
present proceeding was to procure from the State supreme court a
writ of mandamus directing the circuit judge to set aside and vacate
this order of dissolution, thus leaving the preliminary injunction in
force. This writ was issued on hearing before the court, some expla
nation also being made as to the effect of the original injunction so
reinstated.
The original bill of complaint on which the injunction was issued was
directed against the Western Federation of Miners, its district and
local unions and their officers and members. This complaint stated
that when a general strike was inaugurated in July, 1913, upward of
4,000 miners employed by the complaining company, not allied with
the union, refused to participate in the strike and sought to continue
labor, but were interfered with by threats and violence until work
was suspended in many places. Allegations were made of assaults,
picketing, threatening parades, riotous and threatening gatherings
in large numbers, and “ in instances too numerous to mention or
specifically set forth” of assaults and beatings of employees of the
petitioners. The defendants filed no answer to this complaint, but
moved a dissolution of the temporary injunction granted, on the
ground that the allegations in the complainants’ bill were too general
in their nature, not properly verified, and not supported by any
showing on which a temporary injunction should or could have been
granted. The court adopted this view and dissolved the injunction,
but reserved the right to issue a restraining order without notice,
upon showing made by affidavits by the complainants. About a
week afterwards affidavits were submitted setting forth the conditions
that had developed immediately after the dissolution of the injunc
tion. The following is quoted from the opinion of the court in this
connection:
The affidavits, 84 in number, are freighted with narratives of riot
ing, acts of violence, threats, insults, and intimidation of men, women,
and children too numerous to attempt to repeat here, fully sub
stantiating and showing continuation of the unlawful conduct by
defendants alleged in complainants’ bill. The affiants testify posi
tively from personal experience and observation. The affidavits
are not only made by employees of complainants and their families,

DECISIONS OF COURTS AFFECTING LABOR.

311

but by others, officials and private citizens, in many walks of life.
They tell of the strikers, members of the defendant federation, and
their sympathizers parading with noise and insults and threats,
attacking, assaulting, and driving back peaceable workmen going to
their employment, of men irregularly grouped together in bands of
from ten to a dozen to mobs of six and seven hundred at various times
both daj and night, with threatening demonstrations and words, of
their laying in wait for and attacking employees of complainants as
they went to and from their work, assaulting them with clubs and
rocks, snatching from them their dinner pails and trampling them
upon the streets, applying to them vile and vulgar epithets, threaten
ing violence not only to themselves, but to their families, to kill, to
dynamite, and to blow up their houses. They tell of peaceable citi
zens of long residence in those communities, with their established
homes and families there and whose only offense was an attempt to
continue work where and as they had been employed for many years,
being assaulted on the highways, mobbed, their clothing torn from
them, spit upon, coal ashes and slops thrown on them, bottles and
rocks hurled at them often inflicting serious injuries, even in sight of
their wives watching from their homes, of boarding houses and
homes of nonunion men being surrounded and stoned, with taunts
and insulting threats, of women and girls struck with missiles and
injured on such occasions, of mobbmg trains, defying the civil
authorities, resisting and assaulting officers, of resort to firearms in
which employees of complainants and others were wounded, and other
overt acts of lawlessness, disorder, and violence clearly substantiating
the allegations in complainants’ bill, and fairly indicating concertea
action on the part of defendants to promote the strike by an aggressive
policy of force and intimidation. Upon such showing the trial court
again refused to grant any relief, and this application for a mandamus
followed.
The court then took up the grounds on which its conclusion was
reached that the injunction should not have been dissolved, using in
part the following language:
Briefly stated, respondent’s answer is that, though disposed to
grant a restraining order, he had no power to do so because of the
insufficiency of the bill.
The question before us, therefore, is, primarily, one of law. The
return shows respondent exercised no discretion as to the injunction,
holding, as a matter of law, that he had no power to do so.
The bill is certainly not demurrable. It states a case with sufficient
averments and general allegations of facts which, if sustained by
proof 011 final hearing, would entitle complainants to the relief asked.
The contention that the bill of complaint is not properly verified is
untenable. As before stated, it is sworn to positively by seven
affiants of their own knowledge, with the usual reservation found in
the form of such jurats, “ except as to matters therein stated upon
information and belief,” and the material allegations in the bill
essential to entitle complainants to relief if proven are stated without
qualification.
The chief charge of insufficiency against the bill is that its aver
ments are too general, more in the nature of conclusions than dis
tinct statements of facts, and state no specific acts of particulai

312

BULLETIN OF THE BUREAU OF LABOR STATISTICS.

individuals, with time, place, and attending circumstances such as
good pleading demands. While it is permissible, and sometimes
requisite, to set forth the facts and acts relied on fully and with par
ticularity in a bill, as a rule general certainty is sufficient in a pleading
in equity. It is not required to relate the details. “ It is not neces
sary to charge minutely all the circumstances which may prove a
general charge; for those circumstances are properly matters of
evidence which need not be charged to let in proof." Story, Eq.
Pleading, section 28. As a pleading this bill contains a sufficient,
though general, statement of the essential ultimate facts involved in
the controversy, which, taken as true, confer on the court authority
to grant permanent relief by injunction, and if necessity is shown,
temporary relief until final hearing. We are impelled to hold that
the respondent misconstrued the law and his official duty, under the
showing made.
When such an application is made for preliminary protection, the
questions to be passed upon and determined from the showing are
only the necessary factors in granting or denying a temporary
restraining order. “ It is not necessary that the complainant's
rights be clearly established, or that the court find complainant is
entitled to prevail on the final hearing. It is sufficient if it appears
that there is a real and substantial question between the parties, to
be investigated in a court of equity, and, in order to prevent irremedial injury to the complainant before his claims can be investigated,
it is necessary to prohibit any change in the conditions and relations
of the property and of the parties during the litigation." Goldfield
Consol. Mines Co. v. Goldfield M. U. No. 220 (C. C.), 159 Fed. 513
[Bui. No. 78, p. 586]. And this is especially true when not only the
safety of property but the peace of a community and the choice of
action and even the fives of peaceable citizens and their families,
when in the pursuit of their lawful avocations, are menaced by dis
order, threats, and violence.
The power and duty of courts of equity to restrain, on proper
application, conspiring labor organizations and their members, as
well as others in the conspiracy, from molesting by violence, threats,
and intimidation, or any other unlawful interference with, those
engaged in any lawful employment and those employing them, is
too well established and too thoroughly reviewed by our own authori
ties to call for citations from other States or discussion here.
We are constrained to hold that the writ prayed for must issue
herein, directing respondent to vacate his order setting aside and
dissolving the temporary injunction theretofore granted by him and
continue the same as indicated in the order to show cause issued by
this court, until final hearing of said injunction suit, or until changed
conditions shown to the court render the same no longer necessary.
This court, as such, is not concerned with strikes or their continu
ance, as such. Courts do not grant injunctions to restrain strikes
lawfully conducted. They are only concerned with them when
lawlessness and acts of violence and intimidation develop from
them.
To avoid any misapprehension, let it be understood, and, if neces
sary, further provided, that parades directed to and loitering at and
around the premises of complainants or the homes of their employees,
and so timed and conducted as to meet and obstruct such employees

DECISIONS

of co u r ts a f f e c t in g

labor.

313

going to and from their work during morning and evening changes
of shift, and any and all meeting ana parading accompanied by acts
of violence, threats, insults, or hostile demonstrations toward com
plainants or their employees either by act or word are in no sense
“ peaceable meeting and parading,” but directly to the contrary,
and all such conduct must be regarded as strictly within that provi
sion of the injunction prohibiting defendants “ from impeding, ob
structing, molesting, or disturbing the employees of the said com
plainants or any of them by threats, violence, insults, gatherings,
parades, or any form of intimidation whatsoever or by any acts of
any kind calculated or intended as or for intimidation of the said
employees or any of them.”
Let a writ of mandamus be issued as above indicated.

Labor Organizations— I nterference with E mployment—
Conspiracy— Boycott— Injunction— Clarkson v. Laiblan et al.,

St. Louis Court of Appeals (Dec. 2, 1913), 161 Southwestern Re
porter, page 660.— James L. Clarkson brought action in equity for
an injunction against Frederick Laiblan and others, officers of
Local Union No. 1 of the International Brotherhood of Composition
Roofers, Damp and Water Proof Workers of St. Louis, Mo., which
is affiliated with the Building Trades Council of St. Louis. Clarkson
had been a member of the local union from 1903 to 1906, at which
time he went into the roofing business on his own account and
became an employer, which fact terminated his membership in the
union. In January, 1909, he sold out his business to the St. Louis
Roofing Co., and the company attempted to employ him as a fore
man. Patrick F. Garvey, the business agent of the local union, was
present at the shop on the morning of February 21, 1909, when
Clarkson was handed a slip of paper assigning him to the position as
foreman of a gang of roofers. After ascertaining that not all the
union men present were to be put at work, Garvey protested against
work being given to Clarkson, with the result that the order to the
latter was recalled. On March 16, 1909, Claikson entered into a
contract with the St. Louis Roofing Co. to roof a number of buildings
as a subcontractor. Thereupon Garvey threatened a strike, and
this contract was as a result canceled by the St. Louis Roofing Co.
Further facts, and the grounds for the decision affirming the decree
of the St. Louis circuit court for the plaintiff, are stated as follows
in the opinion written by Judge Nortoni:
It appears that there are about 225 roofers in all in St. Louis and

all but about 20 of them belong to the union. Nearly, or about,
one-half of this number were in the employ of the St. Louis Roofing
Company at the time. Moreover, it appears that 90 per cent of all
the men engaged in the various building trades, save bricklayers, are
members of the various building trades local unions, which are affiliated

314

BULLETIN OF THE BUREAU OF LABOR STATISTICS.

together. It does not appear that any of the defendants personally,
save Garvey, interfered with the plaintiff, or that they personally
threatened his employer, the St. Louis Roofing Company, but the
case concedes that Garvey was the business agent of the union of
which the other defendants were officers. Among other things, it
was the duty of Garvey to see that none but union men were per
mitted to work, without special permission from himself or the union.
Among other things, plaintiff testifies that Garvey infQrmed him
that he “ could stay at nis own little business,"—that is the business
that he had theretofore sold out. And it appears clear enough that
Garvey’s threats communicated first to the foreman and then to the
manager of plaintiff’s employer caused him to lose his position as a
foreman of the gang, and afterwards occasioned the cancellation of
his several contracts. None of the defendants took the stand, and
the case rests alone upon the evidence of plaintiff and his several
witnesses, who fully corroborate him throughout. Obviously the
court did not err in decreeing a perpetual injunction against all of
the defendants on this evidence. It is certain that a man’s occupa
tion, whether it be that of a roofer, laborer, or what not, partakes
of the character of property, and he is entitled to have it protected
by the process of injunction, when other persons confederate and
conspire to and actually interfere with its prosecution in such a
manner as to work substantial injury upon him. The evidence is
abundant that Garvey was acting within the scope of his authority
as business agent of the union, and carrying out both the letter and
the spirit of its rules and regulations in so doing. It is certain that
neither one man nor a multitude organized together have the right
to coerce an employer, through threats to impair his business or
cause a loss to him, to discharge another person from his services.
See Swaine v. Blackmore, 75 Mo. App. 74. Here, through the organi
zation of the union and the membership therein were entirely proper
and lawful, the end sought to be achieved in coercing plaintiff’s
employer to discharge him and to terminate and refuse further bene
ficial business intercourse with him was unlawful. Therefore, the
confederation being present, a conspiracy against the rights of
plaintiff appears well established.

Labor Organizations— I nterference
junctions—Damages—Fairbanks

with

E mployment—I n

et al. v. McDonald et al., Supreme
Judicial Court of Massachusetts (Nov. 24, 1914), 106 Northeastern
Reporter, page 1000.—The plaintiffs in this case claimed membership
in a voluntary unincorporated local trade-union, while defendants
were members and officers of another local trade-union. The purpose
of the suit was to restrain defendants from interfering with the em
ployment of plaintiffs and other members of their local union and
for damages for unlawful interference with their employment resulting
in their discharge by their employer. A decree was rendered in
favor of the plaintiffs in the superior court of Essex County, and the
defendants appealed. The decree was affirmed, the reasons given

DECISIONS OF COURTS AFFECTING LABOR.

315

being shown in the opinion delivered by Judge Sheldon, which is
largely quoted herewith:
In addition to the facts found by the master, we are clearly of
opinion that it must be inferred from the facts reported by him that
Atwill and Gage, acting for the members of their union, intended
to compel the plaintiffs’ employers to discharge the plaintiffs and to
refuse to give to the plaintiffs any further employment, and that
this was done, not for the purpose of securing for the members of the
defendants’ union all the work that was to be had from these em
ployers, but to deprive the plaintiffs of employment and make it
impossible for them to obtain their livelihood by their labor, unless
they should become members of the defendants’ union upon whatever
onerous terms the latter should choose to impose.
The defendants did not say to their employers, “ You must give us
all your work or none of it,” as they might have done without ex
ceeding the limits of allowable competition. They required their em
ployers to refuse absolutely to employ the plaintiffs, for the purpose
of putting upon the latter an unfair pressure. In contemplation of
law, they acted from malice toward the plaintiffs, and did to them
an unlawful injury, by causing their exclusion from the labor market.
This case resembles in principle Burnham v. Dowd, 217 Mass. 351,
104 N. E. 841 [see p. 270], and much of the reasoning of that decision
is applicable here.
The main object of the bill is to protect the plaintiffs from the
irreparable injury to which they are exposed by the unlawful acts of
the defendants. It is only incidentally that the plaintiffs seek to
recover damages for the losses already caused to them.
Substantial damages have been given only to the plaintiff Fairbanks.
Upon the findings of the master we can not say that he was not entitled
to the sum allowed him. Burnham v. Dowd, and cases cited. He
has not however been given damages for the permanent loss of access
to the labor market, and is not barred from having further relief
by way of injunction.
It is too plain for discussion that neither one of the plaintiffs was
required, before bringing this bill, to seek relief within the defendants’
union or to exhaust any remedy that might there have been available.
The decree appealed from contains however some minor errors,
which ought to be corrected. So modified, the final decree appealed
from must be affirmed.
Labor Organizations—Legality— Interference with E m
ployment—Conspiracy— Mitchell et al. v. Hitchman Coal & Coke

Co., United States Circuit Court of Appeals, Fourth Circuit (May 28,
1914), 214 Federal Reporter, page 685.—The company mentioned
brought suit against John Mitchell and others to restrain them from
attempting to organize the company’s mine workers and to induce
them to join the union known as the United Mine Workers of America.
The United States District Court for the Northern District of West
Virginia issued a decree granting a permanent injunction. This de
cision is found in 202 Fed. 512, and noted in Bulletin No. 152, pages

316

BULLETIN OF THE BUREAU OF LABOR STATISTICS.

137-151, where the history of the controversy between the company
and the United Mine Workers is quite fully detailed. In the present
decision the decree was reversed, with instructions to dismiss the suit.
After reviewing the facts, Judge Pritchard, who delivered the opinion,
expressed the court's idea of the importance of the matter as follows:
That it is advisable to secure a just and fair solution of the labor
problem by which equal protection to capital and labor may be
secured is undoubtedly the wish of every patriotic citizen regardless
of his station in life. That one who toils for his living is justified in
employing all lawful methods for the preservation of his right as an
American citizen to secure fair remuneration for his services is estab
lished by the Federal and State courts. That such a person also has
the right to join with others similarly situated, in order to promote
their welfare as a class, is also established as the law of the country.
But while this is so, it is equally well settled that the mine owner is
entitled to the full protection of the law in the conduct of his business
and the enjoyment of his property.
After quoting from the opinion of Judge Dayton in the district
court, the court says as to the lawfulness of labor organizations:
The learned judge insists that the common law under which labor
organizations have been declared unlawful in England is still in force
in West Virginia, and that therefore this organization is unlawful,
unless by statutory enactment the common law has been modified or
abrogated to such an extent as to allow an organization of this kind
to exist in that State.
We do not deem it profitable to enter into an extended discussion
of this phase of the question, believing as we do that, while there are
decisions at common law by the courts of England in support of the
contention that labor unions are unlawful, yet such rule has not pre
vailed in this country, except in a few of the earlier decisions of our
courts. Even in England combinations of this character were only
proceeded against, as a general rule, when they were criminal or pro
hibited by statutory law.
Next the purposes of the union are discussed, and the decision
made that they are lawful. The following are extracts bearing upon
this point:
The court below in its opinion referred to a number of provisions
contained in the constitution and rules of this organization which in
its judgment rendered the same unlawful; the first being that a
member is required to promise that he will cease to work whenever
called upon to do so by the organization.
A careful examination of this provision fails to show on its face
anything unlawful, while on the other hand common experience
teaches us that a rule of this character is essential for the preservation
of labor organizations. Without a provision of this kind, there
would be no power of securing concert of action; no means by which
united effort could be secured for the accomplishment of tne aims
and purposes of the organization.
It is also insisted by the court below that under these rules the
operator has no right to employ nonunion men even if he should
desire to do so.

DECISIONS OF COURTS AFFECTING LABOR.

317

If the United Mine Workers of America in pursuance of this rule
should resort to coercion, threats, intimidation, or violence for the
purpose of preventing the mine owner from employing nonunion men,
such conduct would be unlawful, and the courts would promptly
restrain anyone who might be a party to such transaction. Indeed,
it would be unlawful for an individual to undertake, by coercion,
intimidation, or threats to prevent a mine owner from exercising his
own free will as to the employment of nonunion laborers, or as to any
other thing which he might deem necessary to be done in order to
protect his property rights.
However, in this instance, the plaintiff has adopted a policy by
which only nonunion men may be employed. If the plaintiff may
for the purpose of protecting its interests adopt a policy by which
only nonunion men can secure employment at its mines, and such
conduct be sanctioned by the law, by what process of reasoning
can it be held that the defendants may not adopt the same method
in order to protect their interests ? If the plaintiff is to be protected
in the use of such methods, and the defendants are to be restrained
from using lawful methods for the purpose of successfully meeting
the issue thus raised by the plaintiff, then indeed it may be truth
fully said that capital receives greater protection at the hands of
the courts than those through whose efforts capital in the first
instance was created. But such is not the law, and when we con
sider the testimony as respects the conduct of the defendants, at and
before the institution of this suit, we are of the opinion that the
plaintiff has not by a preponderance of the evidence shown that these
defendants employed unlawful methods as alleged in the bill.
It further appears that the plaintiff is paying the nonunion men the
same wages that are being paid union men. Therefore, under these
circumstances, is it not as reasonable to infer that the plaintiff is
endeavoring to place the laborers of that section in a position where it
would be master of the situation, as it is to infer that the defendants
are seeking to destroy the business of the plaintiff ? While it is true
that the plaintiff has a perfect right to refuse to employ union labor,
is it not equally true that union labor, as we have stated, may by the
employment 01 legitimate means do that which is necessary to keep its
forces together ?
Shutting down a mine by calling out men in obedience to their
obligation is what is known as a “ strike.” Rule No. 10, which relates
to strikes, is in the following language:
“ No strike shall take place at any time under the jurisdiction of
subdistrict 5 of district 6, except for specific violation of agreement.
That is, screens irregular; failure to pay on pay day without explana
tion; violation of mining laws by operators, or reductions oi scale
wages until the grievance of the mine affected has been thoroughly
investigated by the officers of district 6, U. M. W. A. and operators
interested. Aiiy man or men that cause a stoppage of work at any
mine in violation of this rule, shall be subject to dismissal at the will
of the company.”
This very clearly sets forth the causes wherein strikes are justifiable.
The evidence in this case fails to show that these defendants have
at any time tried by violence, intimidation, or fraud to induce the
union men to quit working for the plaintiff.

318

BULLETIN OF THE BUREAU OF LABOR STATISTICS.

A consideration of the purposes of this organization as set forth in
its constitution impels us to* the conclusion that there is nothing con
tained therein to justify the contention that its purposes are unlawful.
At the final hearing the plaintiff [company] introduced certain
documentary evidence bearing upon the question as to whether the
defendants [Mitchell and his associates] had entered into a combina
tion with operators and coal producers in Ohio, western Pennsyl
vania, Illinois, and Indiana, competitive fields, to compel the plain
tiff to submit to contractual relations with the United Mine Workers
of America relating to the employment of labor and production,
contrary to the wishes of plaintiff.
The documentary evidence consisted of the declarations of a small
percentage of the miners and operators who were present at these
conferences. It was not shown that either before or after these
declarations were made that those participating in the conference had
entered into a conspiracy for an unlawful purpose. Indeed, these
declarations were brought out in response to a proposition on the part
of the miners for an increase of wages. A fair interpretation of the
evidence shows that it was the purpose of the defendants to induce the
miners of West Virginia to become members of the organization, and
thereby secure as high wages as possible, compatible with the suc
cessful operation of the mines of that State by the respective owners.
They had a perfect right to form a combination to accomplish such
mrposes by peaceable and lawful methods, and so long as they re
rained from resorting to unlawful measures to effectuate the same
they could not be said to be engaged in a conspiracy to unionize
plaintiff’s mine.
As we have already stated, the evidence fails to show that any
unlawful methods were resorted to by these defendants in this in
stance. Therefore the court erred in holding the organization to be
unlawful upon the theory that it was guilty of a conspiracy.
The opinion of the court below is based upon the ground that the
defendants, and those associated with them prior to and at the time
of the institution of this suit, had formed themselves into a con
spiracy for the purpose of unionizing the plaintiff’s mines without
its consent, and for violation of the constitution, common and statu
tory law of West Virginia.
Chief Justice Fuller, in Pettibone v. United States, 148 U. S. 197,
13 Sup. Ct. 542, defined “ conspiracy” as follows:
“ A 1conspiracy’ is * * * a combination of two or more per
sons, by concerted action, to accomplish a criminal or unlawful pur
pose, or some purpose not in itself criminal or unlawful, by criminal
or unlawful means.”
Being of opinion that this is a lawful organization, it necessarily
follows that, in order to entitle the plaintiff to the relief which it
seeks, it must be made to appear that at, and before the institution
of, this suit, the United Mine Workers of America were attempting
to carry out the purposes of their organization by the use of unlawful
means.
Considerable evidence was introduced by the plaintiff as to what
occurred in the vicinity of the plaintiff’s mine. [Quotations are here
made from the evidence.]
While it is not denied by the defendants that they sought by
peaceable methods to induce those employed by the plaintiff to join

DECISIONS OF COURTS AFFECTING LABOR.

319

the union, yet they stoutly contend that at no time since the mine
has been operated as a nonunion mine have they employed unlawful
methods.
While Hughes was a representative of the organization, his author
ity only permitted him to use argument and persuasion to induce the
employees to become members of the organization.
Even though it appears by the evidence in question that the con
duct of the defendants [United Mine Workers] was reprehensible in
the highest degree at the time that the mine was being run on a
union basis, we conceive of no possible theory upon which su.ch evi
dence would be competent as affecting the conduct of the defendants
in this instance, inasmuch as the evidence fails to show that after
the mine began to be operated on a nonunion basis that they united
and conspired to use violence, intimidation, and coercion to prevent
the plaintiff from operating its mine. In other words, this record
clearly shows that the plaintiff for the avowed purpose of protecting
its interests adopted a policy by which its mines were to be operated
on a nonunion basis. At the time of the adoption of this policy by
the plaintiff, the negotiations between plaintiff and defendants
ceased, therefore the question now presented is: Have not the defend
ants the right as an organization to use all means within their power
to organize miners into unions, provided that in so doing no unlawful
methods are employed ?
As to the view of the court below that the Sherman antitrust law
had been violated by the United Mine Workers, the opinion reads:
The court below, among other things, expressed the view that the
United Mine Workers of America constituted a combination or con
spiracy in restraint of trade or commerce among the several States,
or with foreign nations, under what is known as the Sherman anti
trust law.
We do not deem it necessary to discuss this proposition at any great
length. In the first place, there is nothing in the pleadings to raise
the question as to whether the United Mine Workers of America are
liable under the statute in question, and any evidence that may have
been introduced bearing upon this point was therefore immaterial
and should have been rejected. There is another reason why we
think that this question can not under any view of the case arise in
this controversy, to wit, we do not understand that a private person
can question the validity of a combination or conspiracy under the
Sherman antitrust law for the purpose of having the same declared
to be unlawful.
The court below also reached the conclusion that the defendants
have caused and are attempting to cause the nonunion members
employed by the plaintiff to break a contract which it has with the
nonunion operators. The contract in question is in the following
language:
“ I am employed by and work for the Hitchman Coal & Coke Com
pany with the express understanding that I am not a member of the
United Mine Workers of America, and will not become so while an
employee of the Hitchman Coal & Coke Company; that the Hitchman
Coal & Coke Company is run nonunion while I am in its employ. If
at any time while I am employed by the Hitchman Coal & Coke Com

320

BULLETIN OF THE BUREAU OF LABOR STATISTICS.

pany I want to become connected with the United Mine Workers of
America, or any affiliated organization, I agree to withdraw from
the employment of said company, and agree that while I am in the
employ of that company, that I will not make any efforts amongst
its employees to bring about the unionizing of that mine against the
company's wish. I have either read the above or heard the same
read."
It will be observed that by the terms of the contract that either of
the parties thereto may at will terminate the same, and while it is pro
vided that so long as the employee continues to work for the plaintiff
he shall not join this organization, nevertheless there is nothing in
the contract which requires such employees to work for any fixed
or definite period. If at any time after employment any of them
should decide to join the defendant organization, the plaintiff could
not under the contract recover damages for a breach of the same.
In other words, the employees under this contract, if they deem
proper may, at any moment join a labor union, and the only penalty
provided therefor is that they can not secure further employment
from the plaintiff. Therefore, under this contract, if the nonunion
men, or any of them, should see fit to join the United Mine Workers
of America on account of lawful and persuasive methods on the part
of the defendants, and as a result of such action on their part were
to be discharged by the plaintiff, it could not maintain an action
against them on account of such conduct on their part. Such being
the case, it would be unreasonable to hold that the action of the
defendants would render the United Mine Workers of America
liable in damages to the plaintiff because they had employed lawful
methods to induce the nonunion miners to become members of their
organization.
Under these circumstances, we fail to see how this contract can be
taken as a basis for restraining the defendants from using lawful
methods for the purpose of inducing the parties to the contract to
join the organization.
In concluding the opinion, Judge Pritchard said in part:
It should be understood once and for all that, so long as capital
employs legitimate means for the protection of property rights, it is
to be accorded the protection of the law; but this does not mean that
capital may, by improper methods, form combinations for the purose of preventing labor from organizing for mutual protection,
likewise, it should be definitely understood that the laboring men
have the right to use peaceable and lawful methods to unite their
forces in order to improve their condition as respects their ability to
earn a decent living; give their children moral and intellectual train
ing; and secure the enactment of legislation requiring mine owners
to adopt such methods as may be necessary to keep their mines in a
sanitary condition, and, above all, to adopt methods to minimize, as
much as possible, the occurrence of the awful catastrophes by which
so many human lives have been lost.
For the reasons stated the decree of the court below is reversed
and the cause remanded, with instructions to dismiss the bill.

321

DECISIONS OF COURTS AFFECTING LABOR.
L abor

O r g a n iz a t io n s — L e g a l i t y — I n t e r f e r e n c e

w it h

E m

Bittner et al. v. West Virginia-Pittsburgh Coal
Co., United States Circuit Court of Appeals, Fourth Circuit ( May 28,
1914), 214 Federal Reporter, page 716.—The questions involved in this
action were the same as those in Mitchell et al. v. Hitchman Coal &
Coke Co., 214 Fed. 685 [see p. 315]. In this case, however, the evi
dence showed that violence, intimidation, and coercion were resorted
to by the defendants in the case. The district court had granted a
preliminary injunction restraining them from the acts of violence,
etc., and also from the use of persuasion and other peaceable methods,
and from aiding the striking miners by furnishing them money from
what was known as a relief fund, etc. The defendants made a motion
to modify the decree so far as it restrained them from the peaceable
methods, and, this motion being disallowed, appealed. Judge Pritch
ard, in expressing the court’s decision that the decree should be thus
modified, said:
We think the decree of the lower court in so far as it restrains the
defendants from any acts of violence, intimidation, and coercion is
proper in view of the evidence. While this is true, nevertheless we
are of opinion, for the reasons stated in the case of Mitchell v.
Hitchman Coal & Coke Co., that the court below erred in entering that
ortion of the decree whereby it is provided that these defendants shall
e restrained from resorting to peaceable and lawful methods for the
purpose of organizing the miners of that section.
It follows that the decree of the lower court should be modified by
adding thereto the following proviso:
Provided, however, that this restraining order is not intended to
prevent any of said employees of the plaintiff company from quitting
work for said plaintiff and from severing the relations of master and
servant existing between the plaintiff and said employees at the time
this order is entered, or from striking or persuading his fellow employ
ees to quit work and strike for their mutual protection and benefit.
Provided, further, that this injunction is not intended to prevent
any employee of the plaintiff who had ceased to work for said plaintiff
to use persuasion, but not violence, to prevent other men from accepting^employment with the plaintiff in his place.
Provided, further, that this injunction is not intended to prevent
the employees of plaintiff from joining any lawful labor union and
from receiving the nonemployment benefits paid by such union.
Provided, further, that this injunction is not intended to prevent
the defendants, their associates, agents, and fellow members of the
United Mine Workers from supporting any of plaintiff’s former em
ployees who have ceased to work for said plaintiff, nor is this injunc
tion intended to prevent any member of the labor union to which such
employees ceasing to work for the plaintiff belong from legally assist
ing said employee in securing better terms of employment and in
endeavoring to persuade, without violence, any other laborer from
taking the place of said striking employee.
The decree of the lower court as thus modified is affirmed.

ploym ent—

St r ik e s —

85590°—Bull. 169—15------21

322

BULLETIN OF THE BUREAU OF LABOR STATISTICS.

Labor Organizations—Libel b y Printing in Paper Pub
lished b y Association—Damages— United Mine Workers of Amer

ica et al. v. Cromer, Court of Appeals of Kentucky (June 19, 1914), 167
Southwestern Reporter, page 891.— Reid Cromer brought action against
the United Mine Workers of America and G. B. Reed, to recover
damages for libel. Judgment in the circuit court for Laurel County
was in favor of the plaintiff in the sum of $500, and the defendants
appealed, the appeal resulting in the judgment of the court below
being affirmed.

The first ground assigned for. reversal was that the United Mine
Workers of America is not a corporation, but a voluntary association,
and is not therefore suable in the name of the association. It was
held, however, that this defense was waived by not being raised in
the proper manner, the association having answered to the merits of
Cromer’s pleas.
As to the case itself, Judge Clay, in delivering the opinion of the
court, spoke as follows:
The libel complained of was printed in the United Mine Workers’
Journal, a newspaper published at Indianapolis, Ind., under the
auspices of the United Mine Worker^ of America, and is as follows:
“ The strike breakers in our little strike here are not practical men.
They are here to defeat our purpose. They will not be desirable when
we return to work, and will be ordered peremptorily by their employer
to move on, go elsewhere over to Indiana, Illinois, etc., to again ille
gitimately enjoy benefits and conditions established by union, good
and honest men. Believing that it behooves us to keep you readers
informed as to who these men are, we are concluding with a list of
the names of the detestable scabs and blacklegs whom we want you
to be continually on the lookout for.”
In the list of names printed in thepaper is the name of Reid Cromer.
It appears from the petition that Reid Cromer was a miner. There
was a strike in the vicinity in which he was employed. He and his
associates did not participate in this strike, but continued to work.
It is further charged in trie petition that the defendants falsely and
maliciously, and with the intent and purpose of injuring plaintiff in
his calling and occupation as a coal miner, made the publication
complained of. After setting out the publication, it was alleged that
defendants, by the use of the words “ detestable scabs and blacklegs,”
meant that plaintiff and his associates were detestable cheats and
gamblers, and these words were so understood by their acquaintances
and the public generally; that the effect of such publication was to
bring them into the contempt, hatred, ridicule, disgrace, and odium
of their acquaintances and the public. It was further charged that
the publication was intended to and did prevent plaintiff from obtain
ing employment in his occupation as a coal miner, and that he had
been damaged in the sum of $3,000. In addition to a general denial
of the allegations of the petition, defendants pleaded that the words
“ scabs and blacklegs,” as used in the article complained of, are uni
versally accepted among miners, and especially among the miners of
Laurel County, and by all the persons who knew the plaintiff, as

DECISIONS OF COURTS AFFECTING LABOR.

323

meaning that the plaintiff was a person who assisted in breaking strikes,
and who accepted lower wages for his work than those who were
known as “ the United Mine Workers.” The ordinary meaning of
the word “ blackleg” is a swindler; a dishonest gambler. It also
means a strike breaker. Webster’s International Dictionary. In
the latter sense it is used as a term of opprobrium by workingmen.
It is well settled that all written words, which hold the plaintiff up to
contempt, hatred, scorn, and ridicule, and which, by thus engender
ing an evil opinion of him in the minds of right thinking men, tend to
deprive him of friendly intercourse in society, are libelous per se.
[Cases cited.] The rule that words are to be understood in mitiore
censu [in the less objectionable sense] has been superseded. Words
are now construed by the courts in their plain and popular sense.
Under this rule, the words “ detestable blackleg” are, we think,
libelous per se.
Labor Organizations— Powers— Fines u p o n Members— In
vestigation— Monroe et al. v. Colored Screwmen’s Benevolent Asso

ciation No. 1 of Louisiana, Supreme Court of Louisiana (Oct 21,
1914), 66 Southern Reporter, page 260.—John M. Monroe and others
brought petition for mandamus against the labor union named,
which is Local No. 237 of the International Longshoremen’s Asso
ciation. In February, 1912, a strike was declared by the two locals
of the association in Gulfport, Miss., and the defendant association
passed a resolution assessing a fine of from $5 to $25 against any of
its members who should go to Gulfport and work while the contro
versy was on. In May the twenty-two plaintiffs in this case went
to Gulfport and engaged in work for the employers concerned in the
strike. On the next day the defendant association was notified,
and it assessed fines of from $5 to $25 on the several plaintiffs. Later
plaintiff Monroe was before the association at meetings, and asked
an investigation, and one was made by a special committee, which
went to Gulfport, and reported that the work was not done by the
plaintiffs with the consent of the Gulfport locals, as the plaintiffs
claimed, but against their wishes. On their failure to pay the fines
the plaintiffs were expelled from the association, and their working
cards withdrawn, without which it was impossible to secure employ
ment in their line in New Orleans; and the mandamus was sought
to compel the association to furnish the cards.

Judge Provosty delivered the opinion of the court, affirming a
judgment for the respondent association in the civil district court
of the parish of Orleans. After stating the facts and the contentions
of the parties, he spoke as follows:
In support of their contention of their having been condemned
without a hearing, they show that under section 4 of article 30 of the
by-laws and article 24 of the constitution of the defendant associa
tion they are entitled to a trial before the grievance committee of
the association*

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BULLETIN OF THE BUBEAU OF LABOR STATISTICS.

It is true that there is such a committee, and that it is “ the duty
of said committee to investigate all grievances and report the result
of their investigation to the association, at the next regular meeting
for final disposition,” but we think that the plaintiffs nave had the
full benefit of a hearing before a committee of their own choice, and
that, under all the circumstances of the case, they had had all the
hearing they can possibly be entitled to.
And, besides, there can be and is no denial of the fact that the
work they did in Gulfport was without the consent of the locals of
that city; and hence that the said section 3 of the rules of the inter
national association was violated, the penalty of which is expulsion.
Of what possible use, then, could any further hearing be to them?
Their only contention in that connection is that the strike in Gulf
port was ended; and that therefore they violated no rule of the asso
ciation. But the said section 3 of the rule of the international asso
ciation is not confined to strikes, but reads:
“ Any member who may allow himself to be employed at any work
coming under the jurisdiction of another local without the consent
of the local having jurisdiction of the work, shall,” etc.
So that the plaintiffs violated this rule even if the strike was
ended.
On the question of whether the Gulfport locals had already ad
justed their differences with the ship agents and stevedores or were
still “ asking for recognition and regulation in handling cotton,” the
judgment of the said investigating committee, rendered as it was
after hearing and approved by the association, is conclusive upon
the courts. 6 Cyc. 827.
As to the said section 3 of the rules of the international associa
tion being in violation of the Sherman Antitrust Act, the learned
counsel of plaintiffs has not pointed out in what respect it is. The
contention, if well founded, would render unlawful such associations
as the defendant, the lawfulness of which is well recognized. Cyc.,
Labor Unions; Longshore-Printing Co. v. Howell, 26 Or. 527, 38
Pac. 547.
L abor

O r g a n iz a t io n s — R e l ie f

F u n d s— D

i s p o s it io n —

L ia b il

Use—Attorney General ex rel. Prendergast et al. v.
Bedard et al., Supreme Judicial Court of Massachusetts (June 17, 1914),
105 Northeastern Reporter, page 993»—Joseph Bedard and others ap
pealed from a decree in equity issued from the supreme judicial court,
Suffolk County, requiring them to pay into court certain amounts
of money alleged to have been in their hands as a trust fund, and to
have been wrongfully appropriated or expended. The information,
after alleging the raising of a fund by subscription for the relief of the
strikers, alleged on information and belief that the personal defend
ants, conspiring and agreeing together, had used substantial portions
of the fund for purposes entirely different from those for which it was
donated by the contributors and for purposes other than the proper
promotion of the objects of the trust; that it had in part been im
properly used for the private and personal uses of the defendants and
their associates; that they or some of them had drawn sums there
it y for

rongful

DECISIONS OF COURTS AFFECTING LABOR.

325

from as salaries; that substantial amounts had been contributed for
the board and private expenses of one of the defendants, who was
confined in jail; that large amounts had been paid for the transporta
tion to other cities of children for uses in connection with appeals for
further contributions; that sums had been paid to counsel and others
engaged in defending one of the defendants and others against crimi
nal charges; and that large sums had been turned over to the Indus
trial Workers of the World.
The decree of the lower court was affirmed with modifications
necessary to make plain the exact liability of the several defendants.
Judge Sheldon said in part, in delivering the court’s opinion:
According to the averments of the bill, the fund in question was
raised by subscriptions as a relief fund, to relieve the necessities of
a very great number of men who had engaged in a strike, and who
thus had been left without any means of maintaining themselves and
their families. The fund was raised and should be applied for the
purposes of a public charitable trust. [Cases cited.]
'Ine evidence heard by the master is not reported, and we can not
say that his findings were wrong. The defendants received the
money in question as a trust fund. They must account for it, and
can be credited only with disbursements which actually were made
for proper purposes. They must be charged with everything for
which they nave not properly accounted. This is a sound principle,
and is abundantly supported by authority. [Cases cited.] It was
for the defendants to keep the trust fund distinguished from other
moneys in their hands; and the consequences of any failure on their
part to comply with this duty must fall upon themselves. [Cases
cited.]
We can not doubt that the defendants, the custodians and managers
of this fund, are under the same obligations as if they expressly had
been made the trustees thereof. [Cases cited.]

L abor

O r g a n iz a t io n s — R ig h t

S t r i k e — P r o c u r in g

D is

—Roddy v. United Mine WorTcers of America et al., Supreme
Court of Oklahoma (Mar. 10, 1914), 189 Pacific Reporter, page
126.—J. H. Roddy brought action against the United Mine Workers
of America and against the district and local organizations affiliated
with the same and their individual members, for damages suffered
by him by reason of loss of his employment. It was alleged that
the defendants had procured his discharge by threats to strike if
the plaintiff, a nonunion man, was retained. Judgment in the
district court of Coal County was for the defendants, and on appeal
this was affirmed. Judge Brewer in delivering the opinion dis
cussed the question involved, cited the authorities, and set forth the
views of the court as follows:
We take it as fundamental that any man, in the absence of a
contract to work a definite time, has a right to quit whenever he
chooses, for any reason satisfactory to him, or without any reason.

charge

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BULLETIN OF THE BUREAU OF LABOR STATISTICS.

We think under the better authority that what an individual may
do, a number of his colaborers may join him in doing, provided the
thing to be done is lawful. We quote the words of Chief Justice
Alton B. Parker, in Natl Protective Assn. v. Cumming, 170 N. Y.
320, 63 N. E. 369 [Bui. No. 42, p. 1118]:
<< * * * Whatever one man may do alone, he may do in
combination with others, provided they have no unlawful object in
view. Mere numbers do not ordinarily affect the quality of the act.
Workingmen have the right to organize for the purpose of securing
higher wages, shorter hours of labor, or improving their relations
with their employers. They have the right to strike, that is, to
cease working in" a body by prearrangement until a grievance is
redressed, provided the object is not to gratify malice or inflict
injury upon others, but to secure better terms of employment for
themselves. A peaceable and orderly strike, not to harm others,
but to improve their own condition, is not in violation of law."
In Clemmitt v. Watson, 14 Ind. App. 38, 42 N. E. 367, it is said:
“ So far as appears by these instructions none of the appellants
were under any continuing contract to labor for their employer.
Each one could have quit without incurring any civil liability to
him. What each one could rightfully do, certainly all could do if
they so desired, especially when their concerted action was taken
peaceably, without any threats, violence, or attempts at intimi
dation."
And in Raycroft v. Tayntor, 68 Vt. 219, 35 Atl. 53, it is said:
“ One who procures the discharge of an employee not engaged for
any definite time, by threatening to terminate a contract between
himself and the employer, which he had a right to terminate at any
time, is not subject to an action by the employee for damages, what
ever may have been his motive in procuring the discharge.
Quotations were made from Cook's Trade and Labor Combina
tions on the question of the right to strike, expressing views similar to
those set forth above, and the opinion concludes:
A petition based on the charge that the plaintiff, a nonmember
of a labor union, was discharged from his employment because of
the demands therefor made by the authorized agents and committees
of a labor organization, who informed the common employer that
if such nonunion man was not discharged the union men would strike
does not state a cause of action for damages against either the labor
organization or the individual members thereof, and a demurrer to
such petition was properly sustained.

Labor Organizations— Strikes—Conspiracy— Incitement to
Commit Crime—Liability as Principal— People v. Ford, District

Court oj Appeals, Third District of California (Sept. 10, 1914), 14®
Pacific Reporter, page 1075,— Richard Ford and H. D. Suhr were
indicted separately for the murder of one E. T. Manwell on the 3d of
August, 1913, in Yuba County, Cal. Conviction was had in the
superior court of Yuba County in a joint trial, the verdict being for
murder in the second degree, with a sentence of life imprisonment.

DECISIONS OF COURTS AFFECTING LABOR.

82?

Both defendants appealed, and by stipulation the appeal of defendant
Suhr was to be heard upon the same transcript of record as that of
Ford. The judgment of the court below was affirmed by the court of
appeal as to both defendants, and a rehearing was denied by the
supreme court on November 9, 1914.
The circumstances leading up to the killing of Manwell were briefly
that the defendants were officers and active workers of the Industrial
Workers of the World, referred to in the opinion as the I. W. W. The
disturbance resulting in the crime under consideration arose out of
conditions in the hop fields of Yuba County, the conditions of employ
ment being complained of and a strike organized with the attempt
to enforce certain demands as to conditions of employment. It
appears from the evidence that on the day of the killing of Manwell
there were at a large ranch owned by one Durst some 2,000 or 2,500
people of different nationalities, men, women, and children, gathered
to pick hops, the picking having begun about the middle of the pre
ceding week. Insanitary lodging conditions and unnecessary hard
ships in the performance of work aroused dissatisfaction, which found
expression on Saturday, August 2. Suhr and Ford sent telegrams to
different points, informing their associates in the I. W. W. of a strike
on the Durst ranch, and asking for speakers and money to support the
strikers. The opinion states that:
Much testimony was admitted describing in detail the conditions
existing at the Durst hop fields. We do not think it necessary to
set out this testimony, it showed a situation calling for some radical
reform measures in order to make it a desirable place for such num
bers of people to work, both in respect of their moral and physical
well-being. Bad as these conditions were, however, they furnished
no justification for the tragic events of that Sunday and need not be
dwelt upon. Ford was the leader and spokesman of these hop pickers.
He conducted their meetings, of which there were several, during
Sunday before the 5 o’clock meeting at which Manwell was killed.
These meetings were in the main orderly, but plainly disclosed Ford’s
mastery and power to lead and control the more or less excited and
turbulent body of persons comprising a considerable part of the
assembled masses of striking and disappointed people, looking to their
leader for guidance and relief. Suhr’s telegrams show that it was an
I. W. W. movement. In the earlier part of the day Constable Ander
son made an effort to arrest Ford, but being challenged to produce a
warrant, and not then being able to do so, and after some ratner rough
handling by persons around Ford, he desisted, but later a complaint
was sworn to before a justice of the peace at Wheatland, and a war
rant was duly issued thereon and placed in Anderson’s hands.
Manwell was killed at a meeting of the hop pickers at about 5
o’clock, and a deputy sheriff died of gunshot wounds received at that
time. Two hop pickers were killed, and other serious injuries
inflicted on parties on both sides. There was no claim that Ford

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BULLETIN OF THE BUREAU OF LABOR STATISTICS.

fired the shot which resulted in Manwell’s death, though confessions
made by Suhr were such as to give rise to the inference that he may
have done so. As to the contention of the defendants, appellants in
the present instance, the opinion reads:
As we understand defendant’s position, it is that defendant was
at most engaged in conducting a strike, which was not an unlaw
ful act, or that, if he was committing a trespass, it was but a misde
meanor; that, whatever his acts or his words spoken which may have
led to the killing, they should have been alleged, and as his acts and
words concernea only an undertaking not unlawful, or, if unlawful,
was but a misdemeanor, the killing as matter of law, must be held
not to have been murder in either degree; that, unless the defend
ant’s acts and words constituted a felony, he could not be held for
murder because they resulted in the death of some one, and at most
his offense would be manslaughter because lacking the essential
elements of murder. It is hence contended: First, that evidence of
a conspiracy was not admissible and can not be considered because
the conspiracy was not pleaded; and, second, that evidence which
fell short of showing a conspiracy to commit a felony would not
support the verdict. We confess to some difficulty in discovering
precisely defendant’s contention, but have given it as we understand
it. The indictment was for murder and was charged in the language
of the statute. We entertain no doubt as to the admissibility of
evidence of a conspiracy under such an indictment, where the murder
was committed while the conspirators were engaged in the consum
mation of some other unlawful act.
Upon the question of the responsibility for the acts of the conspira
tors, we conceive the law to be that where one person unites with one
or more other persons in an enterprise to commit an unlawful act,
whether a felony or misdemeanor, with the intention to withstand
all opposition by force, and is present aiding and abetting the deed,
and murder is committed by some one of the party in pursuance of
the original design, or the unlawful act results in death, he is guilty
as the principal or immediate offender.
It was not the theory of the prosecution, as claimed by defendant,
“ that every labor leader is responsible for all the acts of striking work
men, and that each labor leader can be tried under an indictment
baldly stating that the said labor leader has personally done a specific
thing, in this case murder, whereas, in fact, it is sought to hold him
responsible for the act of another.” The theory of the prosecution
was that Ford, as the leader in this instance, was engaged in the
unlawful act of resisting arrest by a peace officer armed with a lawful
warrant, and that by his words and acts he incited the persons then
under his leadership to aid and assist him in such unlawful act, and
that Manwell met his death through the act of one or more of these
conspirators thereunto induced by Ford.
Another complaint was that the trial judge had refused to give
charges as to the !awfulness of a strike and a boycott, and that men
have a right to quit work for any reason or no reason singly or in a
body, and peaceably to picket or request others to cease work. As
to this the court said:

DECISIONS OF COURTS AFFECTING LABOR.

329

It is urged that, under the instructions given, the jury might have
assumed that striking or picketing or boycotting was an unlawful
act, and, to prevent such assumption by the jury, defendant was
entitled to have the instructions given. There was no evidence that
the killing occurred while the conspirators were in the act of striking,
picketing, or boycotting. There was evidence that many of the hop
pickers quit work Sunday morning on their part a strike; that a
boycott was declared and was in operation early in the day against
certain businesses being carried on in the camp—a store, a restau
rant, a near-beer booth, and a shooting gallery.
Manwell was killed at a meeting of hop pickers held at about 5
o’clock of that day under circumstances which will hereinafter be
more fully set forth. Suffice it at this point to say that, while :t
may be assumed that the hop pickers were assembled at this meeting
originally to consider or talk over their grievances, it soon, under the
leadership of Ford, took on altogether a different complexion. He
made it known to the people that the officers of the law were approach
ing with an intention to arrest him, and he called upon his followers
to stand by him and prevent his being taken. This they did promptly
upon the coming of the officers into their midst, and there quickly
followed, not only ManwelPs death, but other tragic and fatal hap
penings which showed that the sole purpose of the actors was to
prevent Ford’s arrest at all hazards. The tragedy may be said to
have remotely had its

Full text of Decisions of Courts and Opinions Affecting Labor : Decisions of Courts Affecting Labor, 1914 : Bulletin of the United States Bureau of Labor Statistics, No. 169

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