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U. S. DEPARTMENT OF LABOR
BUREAU OF LABOR STATISTICS
ROYAL MEEKER, Commissioner
BULLETIN OF THE UNITED STATES ) . . . J WHOLE
\ NUMBER
BUREAU OF LABOR STATISTICS \
LABOR
LAWS
OF
THE
UNITED
STATES
SE RIE S:
No. 8
DECISIONS OF COURTS
AFFECTING LABOR : 1915
MAY, 1916
WASHINGTON
GOVERNMENT PRINTING OFFICE
1916
189
CONTENTS.
Decisions of courts affecting labor, 1915:
Page.
Introduction........................................................................................... 17,18
Minimum wage.......................................................................................
18
Review of decisions.................................................................................19-49
Contract of employment....................................................................19-21
Enforcement..............................................................................
19
Breach....................................................................................... 19,20
Restrictions on discharge............................................................
20
Employment status.................................................................... 20,21
Interference with employment—blacklists..................................
21
Wages...............................................................................................21,22
Mode and time of payment.........................................................21,22
Preference..................................................................................
22
Basis..........................................................................................
22
Hours of labor...................................................................................22-25
General laws........................................ .................................. . 22,23
Railroads....................................................................................23,24
Women...................................................................................... 24,25
Sunday labor....................................................................................
25
Factory regulations........................................................................... 25,26
Eire escapes...............................................................................
25
Guards........................................ ............... - .............................25,26
26
Inspection—suitable equipment................................................
Railroads.......................................................................................... 26,27
Safety appliances....................................................................... 26,27
Full crews..................................................................................
27
Mines: Wash rooms...........................................................................
27
Restriction of employment................................................................
27
Examination and licensing.........................................................
27
Aliens........................................................................................
27
Liability of employers for injuries to employees.................................27-34
Waivers......................................................................................
28
Contracts of settlement, etc........................................................
28
Federal statute...........................................................................28-33
General scope and construction............................................ 28-30
Interstate commerce............................................................ 30-33
Effect of compensation laws........................................................
33
Miscellaneous............................................................................. 33,34
Workmen’s compensation...... .......................................................... 34-45
Constitutionality of statute........................................................ 34,35
Applicability of statute..............................................................35,36
Relation of State to Federal laws................................................36* 37
Extraterritoriality of statute...................................................... 37,38
4
CONTENTS.
Decisions of courts affecting labor, 1915—Continued.
Review of decisions—Concluded.
Workmen’s compensation—Concluded.
Page.
Hazardous employments............................................................ 38,39
Proximate cause.........................................................................
39
Evidence................................................................................... 39,40
Course of employment................................................................ 40-42
Benefits......................................................................................42,43
Disability...................................................................................43,44
Dependency..............................................................................
44
Willful misconduct.....................................................................44,45
Procedure..................................................................................
45
Employers’ liability insurance..........................................................
45
Relief associations......................................................................... . 45,46
Employment offices..........................................................................
46
Labor organizations...........................................................................46-49
Membership............................................................................... 46,47
Liability of members, etc...........................................................
47
Collective and closed-shop agreements........................................ 47,48
Strikes and picketing.................................................................
48
Injunctions................................................................................
48
Contempts..................................................................................
49
Text, etc., of decisions of courts affecting labor:
Decisions under statute law................................................................... 50-293
Aliens—prohibition of employment on public works—constitutionality
of statute (Heim v. McCall)............................................................50-52
Aliens—prohibition of employment on public works—constitutionality
of statute (People v. Crane)............................................................52,53
Aliens—restrictions on employment—constitutionality of statute
(Truax v. Raich)........................................................................... 53-55
Antitrust act—monopolies—restraint of trade—blacklist—theatrical
performers (Marinelli v. United Booking Offices of America)...........56,57
Armed guards—status—liability of employer for acts (Ruffner v.
Jamison Coal & Coke Co.)..............................................................57,58
Contract of employment—fraudulent breach—constitutionality of stat
ute (Thomas v. State)........................ ........................................... 58,59
Contract of employment—fraudulent breach.—defenses—evidence
(Paschal v. State)..........................................................................
59
Employer and employee—right to discharge without hearing—consti
tutionality of statute (In re Opinion of Justices)............................. 60,61
Employer and employee—statement of cause of discharge-blacklist
ing—constitutionality of statute (St. Louis Southwestern Ry. Co. v,
Griffin)......................................................................................... 61-64
Employer and employee—statement of cause of discharge—blacklist—
libel (Dick v. Northern Pacific Ry. C o.)....................................... 64-67
Employers’ liability—contract waiving liability (Illinois Central R. R.
Co. v. Harris)................... *...........................................................
67
Employers’ liability—defect in plant—failure to supply suitable tools
(Wiley v. Solway Process Co.)........................................................ 67,68
Employers’ liability—effect of workmen’s compensation act—election
by employer and failure to elect by employee (Kamy v. Northwest
ern Malleable Iron Co.)..................................................................
68
Employers’ liability—effect of workmen’s compensation act—injury
not causing disability (Shinnick v. Clover Farms Co.).....................
69
CONTENTS.
5
Text, etc., of decisions of courts affecting labor—Continued.
Decisions under statute law—Continued.
Page.
Employers’ liability—employees (Lehigh Valley Coal Co. v. Yensavage)...............................................................................................69,70
Employers’ liability—evidence—inspection by State factory inspector
(Burk v. Hobart Mill & Elevator Co.)........................................... 70,71
Employers’ liability—excessive speed of train in violation of statute
71
(Illinois Central R. R. Co. v. Ford)................................................
Employers’ liability—fire escapes—obstruction of access—liability of
owner, lessee, and subleasing employer (Goetz v. Duffy).................71-73
Employers’ liability—fire escapes—violation of statute (Amberg v.
Kinley).......................................... ............. . .............................. 73,74
Employers’ liability—guards for dangerous machinery—practicability
of guarding—order of industrial commission (Puls v. Chicago, B. &
Q. R. R. Co.).................................................................................74,75
Employers’ liability—guards for dangerous machinery—steam mangle
(Ronca v. Wendall & Evans Co.)................................................... 75,76
Employers’ liability—mine foremen—electrical appliances (Crockett
v. Black Wolf Coal & Coke Co.).....................................................76,77
Employers’, liability—railroad companies—Federal and State statutesr-trial—election o f remedies (Corbett v. Boston & Maine R. R .). 77,78
Employers’ liability—railroad companies—Federal statute—actions—
damages for conscious suffering (St. Louis, Iron Mountain & South
ern Ry. Co. v. Craft)............................................................. .......78-80
Employers’ liability—railroad companies—Federal statute—acts in
course of employment (Cincinnati, New Orleans & Texas Pacific Ry.
Co. v. Wilson’s Administrator)....................................................... 80,81
Employers’ liability—railroad companies—Federal statute—amend
ment of petition—limitation (St. Louis, San Francisco & Texas Ry.
Co. v. Smith).................................................................................
81
Employers’ liability—railroad companies—Federal statute—appli
ances and equipment—simple tools (Gekas v. Oregon-Washington
R. R. & Navigation Co.)................................................................ 81,82
Employers’ liability—railroad companies—Federal statute—appoint
ment of administrator (Howard v. Nashville, Chattanooga & St. Louis
Ry. Co.)................................. , .................................................... 82,83
Employers’ liability—railroad companies—Federal statute—approval
by inspector—high car in train (Portland Terminal Co. v. Jarvis)... 83,84
Employers’ liability—railroad companies—Federal statute—assump
tion of risks (Fish v. Chicago, R. I. <fc P. Ry. Co.)..........................84,85
Employers’ liability—railroad companies—Federal statute—assump
tion of risks—burden of proof (Central Vermont Ry. Co. v. White).. 85,86
Employers’ liability—railroad companies—Federal statute—assump
tion of risks—defective appliances (Davis v. Chesapeake & Ohio
Ry. Co.)........................................................................................
86
Employers’ liability—railroad companies—Federal statute—contracts
of exemption from liability—‘Pullman porters (Robinson v. Balti
more & Ohio R. R. Co.).................................................................
87
Employers’ liability—railroad companies—Federal statute—damages—
life insurance paid to dependent (Brabham v. Baltimore & Ohio
R.R. C o .)...................................................................................
88
Employers’ liability—railroad companies—Federal statute—depend
ents—measure of damages (Norfolk & Western Ry. Co. v. Holbrook). 88-90
6
CONTENTS.
Text, etc., of decisions of courts affecting labor—Continued.
Decisions under statute law—Continued.
Page.
Employers’ liability—railroad companies—Federal statute—interstate
commerce—adjusting machinery in locomotive repair shop (Shanks
91
v. Delaware, L. & W. R. R. Co.)...................................................
Employers’ liability—railroad companies—Federal statute—interstate
commerce—brakeman getting cup for train (Baltimore & Ohio R. R.
Co. v. Whitacre)............................................................................. 91,92
Employers’ liability—railroad companies—Federal statute—interstate
commerce—brakeman uncoupling cars (New York C. & H. R. R. R.
Co. v. Carr).................................................................................... 92,93
Employers’ liability—railroad companies—Federal statute—interstate
commerce—building addition to repair shop (Thompson v. Cincin
nati, New Orleans & Texas P. Ry. Co.).......................................... 93,94
Employers’ liability—railroad companies—Federal statute—interstate
94
commerce—cleaning ash pit (Grybowski v. Erie R. R. Co.)............
Employers’ liability—railroad companies—Federal statute—interstate
commerce—cleaning stencils (Illinois C. R. R. Co. v. Rogers)........
95
Employers’ liability—railroad companies—Federal statute—interstate
commerce—clearing wreck (Southern Ry. Co. v. Puckett).............. 95,96
Employers’ liability—railroad companies—Federal statute—interstate
commerce—construction of temporary bridge (Columbia & Puget
Sound R. R. v. Sauter).................................................................... 96,97
Employers’ liability—railroad companies—Federal statute—interstate
commerce—coupling engine tender and baggage car (Atchison, T. &
S. F. Ry. Co. v. Pitts)...................................................................
97
Employers’ liability—railroad companies—Federal statute—interstate
commerce—driving trespassers from interstate train—attempt to se
cure compensation (Smith v. Industrial Accident Commission).......
98
Employers* liability—railroad companies—Federal statute—interstate
commerce—firing locomotive—rights of parent of minor (Tonsellito v.
New York C. & H. R. R. R. Co.)................................................ .. 98,99
Employers’ liability—railroad companies—Federal statute—interstate
commerce—hauling empty cars—brakeman (Pennsylvania R. R. Co.
v. Knox).......................................................................................
99
Employers’ liability—railroad companies—Federal statute—interstate
commerce—hauling empty cars—fireman (Thompson v. Wabash Ry.
Co.)...............................................................................................
100
Employers’ liability—railroad companies—Federal statute—interstate
commerce—incidental absence from work (Graber v. Duluth, S. S. &
A. Ry. Co.)................................................................................ 100-102
Employers’ liability—railroad companies—Federal statute—interstate
commerce—mining coal—evidence (Delaware, L. & W. R. R. Co. v.
Yurkonis)...................................................................................102,103
Employers’ liability—railroad companies—Federal statute—interstate
commerce—removing burned portion of roundhouse (Thomas v. Bos
ton & Maine R. R .).................................................................... 103-105
Employers’ liability—railroad companies—Federal statute—interstate
commerce—removing cars from switch track (Pennsylvania Co. v.
Donat)..........................................................................................
105
Employers’ liability—railroad companies—Federal statute—interstate
commerce—repairing sidetrack (Clark v. Chicago Great Western
R. R. Co.)................................................................................ . 105,106
CONTENTS.
7
Text, etc., of decisions of courts affecting labor—Continued.
Decisions under statute law—Continued.
Page.
Employers’ liability—railroad companies—Federal statute—interstate
commerce—repairing switch engine temporarily withdrawn from
service (Southern Pacific Co. v. Pillsbury)....................................
106
Employers’ liability—railroad companies—Federal statute—interstate
commerce—section foreman—assumption of risks (Texas & Pacific
Ry. Co. v. White)....................................................................... 106,107
Employers’ liability—railroad companies—Federal statute—interstate
commerce—shifting car remaining in yards between interstate trips
(Moyer v. Pennsylvania R. R. Co.)............................................. 107,108
Employers’ liability—railroad companies—Federal statute—interstate
commerce—shifting cars of coal for indiscriminate railroad use (Har
rington v. Chicago, B. & Q. R. R. Co.)........................................108,109
Employers’ liability—railroad companies—Federal statute—interstate
commerce—shoveling coal into pockets for trains (Kamboris v.
Oregon-Washington R. R. & Navigation Co.)...............................109,110
Employers’ liability—railroad companies—Federal statute—interstate
commerce—switching cars with coal for engines (Barlow v. Lehigh
Valley R. R. Co.)..........................................................................
110
Employers’ liability—railroad companies—Federal statute—interstate
commerce—switchman—burden of proof (Pittsburgh, Cincinnati,
Chicago & St. Louis Ry. Co. v. Glinn)......................................... 110, 111
Employers’ liability—railroad companies—Federal statute—interstate
commerce—taking “ dead engine” from one State to another—bur
den of proof (McAuliffe v. New York C. & H. R. R. R. Co.)........Ill, 112
Employers’ liability—railroad companies—Federal statute—interstate
commerce—taking out old rails and loading on cars—status of medi
cal examiners for employees (Cherpeski v. Great Northern Ry. Co.). 112,113
Employers’ liability—railroad companies—Federal statute—interstate
commerce—watchman at crossing—presumptions (Louisville &
Nashville R. R. Co. v. Barrett)................................................... 113,114
Employers’ liability—railroad companies—Federal statute—interstate
commerce—yard clerk—evidence (Pecos & Northern Texas Ry. Co.
v. Rosenbloom).................... ..................................................... 114,115
Employers’ liability—railroad companies—Federal statute—interstate
commerce—yard clerk—evidence (Pittsburgh, Cincinnati, Chicago &
St.Louis Ry. Co. v. Farmers’ Trust & Savings Co.).............. ........... 115
Employers’ liability—railroad companies—Federal statute—non
resident alien beneficiaries (McGovern v. Philadelphia & Reading
Ry. Co.)..................................................................................... 115-117
Employers’ liability—railroad companies—Federal statute—safety
appliances—drawbars and couplers (St. Louis & S. F. R. R. Co. v.
Conarty)..................................................................................... 117,118
Employers’ liability—railroad companies—Federal statute—special
contracts—notice (Chicago, R. I. & P. Ry. Co. v. Pearce)............118,119
Employers’ liability—railroad companies—violation of safety appli
ance act—intrastate movement of defective car (Texas & Pacific
Ry. Co. v. Rigsby).........................................................................
119
Employers’ liability—seamen—medical treatment (North Alaska Sal
mon Co. v. Larsen)......................................................................119,120
Employers’ liability and workmen’s compensation—election by in
jured employee and by personal representative (Behringer v. In
spiration Copper Co.)..................................................................120,121
8
CONTENTS.
Text, etc., of decisions of courts affecting labor—Continued.
Decisions under statute law—Continued.
Page.
Employers’ liability insurance—employment of minor contrary to
law—“ railroads” (Oxford Coal Co. v. Fidelity & Casualty Co. of
New York)................................................................................. 121,122
Employers’ liability insurance—employment of minor—dangerous
machinery (Great Lakes Laundry Co. v. Aetna Life Ins. Co.)...... 122,123
Employment offices—construction of statute—teachers’ agency (Huntworth v. Tanner)...........................................................................
123
Employment offices—licensing and regulation—powers of commis
sioner of labor—constitutionality of statute (People v. Brazee)... 123-125
Employment offices—prohibition of receipt of fees from persons seek
ing employment—constitutionality of statute (Wiseman v. Tanner). 125,126
Examination and licensing of plumbers—recovery for services by un
licensed workmen (Gottesman v. Barer)....... ..............................126,127
Exemption of wages from attachment—debts for necessaries—consti
tutionality of statute (Bofferding v. Mangelkoch)....................... 127,128
Hours of labor—closing hours of mercantile establishments—consti
tutionality of statute (Saville v. Corless)..................................... 128-130
Hours of labor—eight-hour day—stationary firemen—constitution
ality of statute (State v. Legendre)............................................. 130,131
Hours of labor—necessary repairs—construction of statute (State v.
Young)...................................................................................... 131,132
Hours of labor of women—eight-hour day—apportionment of time—
constitutionality of statute (State v. Dominion Hotel, Inc.)......... 132,133
Hours of labor of women—eight-hour day—constitutionality of stat
ute—classification (Miller v. Wilson)...........................................133,136
Hours of labor of women—eight-hour day—constitutionality of stat
ute—classification—hospitals (Bosley v. McLaughlin).................. 136-138
Hours of labor of women—eight-hour day—constitutionality of stat
ute—limitation to six days per week (Eamshaw v. Newman).......138,139
Hours of labor of women—eight-hour day—“ employed in laboring”
(Commonwealth v. John T. Connor Co.).........................................
140
Hours of labor of women—eight-hour day—manufacturing establish
ment—dressmaker (Hotchkiss v. District of Columbia)................. 140,141
Hours of labor of womens—nightwork—constitutionality of statute
(People v. Charles Schweinler Press)...........................................141-144
Hours of service—railroads—casualties (United States v. Great North
ern Ry. Co.)...............................................................................144-146
Hours of service—railroads—emergency—dismissal of employee for
insubordination (United States v. Denver & R. G. R. R. Co.)___146,147
Hours of service—railroads—emergency—unavoidable accident (San
Pedro, Los Angeles & Salt Lake R. R. Co. v. United States).......147,148
Hours of service—railroads—“ employees” (United States v. Chicago,
M. & P. S. Ry. Co.).......................................................................
148
Hours of service—railroads—knowledge of officers and agents (United
States v. Oregon-Washington R. R. & Navigation Co.).................148,149
Hours of service—railroads—nine-hour day—station employees—con
stitutionality of statute (Commonwealth v. Boston & Maine R. R .). 149,150
Hours of service—railroads—offices operated continuously night and
day (United States v. Grand Rapids & Indiana Ry. Co.)............150,151
Hours of service—railroads—“ on duty”—“ emergency” (United
States v. Chicago & Northwestern Ry. Co.)..................................151,152
CONTENTS.
9
Text, etc., of decisions of courts affecting labor—Continued.
Decisions under statute law—Continued.
Pago.
Hours of service—railroads—operators, etc.—conductors using tele
phone (United States v. Florida East Coast By. Co.)......................
152
Hours of service—railroads—operators, etc.—switch tenders using
telephones—orders (Chicago, R. I. & P. Ry. Co. v. United States).. 153
Hours of service—railroads—operators—train dispatcher employed also
as ticket seller (Delano v. United States)................................... 153,154
Hours of service—railroads—reports of overtime work (United States v.
B. & 0. R. R. Co.)......................................................................... 154
Hours of service—railroads—reports of overtime work—inadvertent
omissions (Oregon-Washington R. R. & Navigation Co. v. United
States..................................................................... ................... 154,155
Interference with employment—hiring employee under written con
tract with another (Lambert v. State).......................................... 155,156
Labor organizations—collective agreements—“ monopoly” —validity
(Underwood v. Texas & Pacific Ry. Co.)..................................... 156-158
Labor organizations— conspiracy—injunctions— strikes— picketing
(Hardie-Tynes Mfg. Co. v. Cruse)............................................... 158-161
Labor organizations—injunctions—interference with trade—peaceful
boycotts (Auburn Draying Co. v. Wardell)..................................161-166
Labor organizations—injunctions—strikes—coercion (Garside v. Holly
wood).........................................................................................166,167
Labor organizations—liability of members for damages—collection of
judgment— garnishment—scire facias (Loewe v. Union Savings
Bank of Danbury)...................................................................... 167,168
Labor organizations—protection of employees as members—constitu
tionality of statute (Bemis v. State)............................................ 168,169
Labor organizations—protection of employees as members—constitu
tionality of statute (Jackson v. Berger)...........................................
169
Labor organizations—unlawful expulsion of member—mandamus
(People ex rel. Solomon v. Brotherhood of Painters)................... 169,170
Mechanics’ liens—lighting fixtures—filing of excessive claim (Lyons v.
Jamberg)....................................................................................170,171
Mine regulations—wash rooms—constitutionality of statute (Booth v.
Indiana).....................................................................................171-173
Mine regulations—wash rooms—constitutionality of statute (State v.
Reaser)...................................................................................... 173,174
Payment of wages—constitutionality of statute—imprisonment for debt
(Ex parte Crane)................................................................... . 174,175
Payment of wages—failure to pay on discharge—construction of statute
(Trammell v. Victor Mfg. Co.).................................................... 175,176
Payment of wages in scrip—redemption in cash—constitutionality
of statute (Atkins v. Grey Eagle Coal Co.)...................................176,177
Peonage—involuntary servitude—working out fine and costs for
surety—constitutionality of statute (United States v. Reynolds)... 177-180
Railroads—full-crew law—construction and constitutionality (Kansas
City Southern Ry. Co. v. State).................................................. 180,181
Railroads—relief departments—contracts invalidated by Employers’
Liability Act (Baltimore & Ohio R. R. Co. v. Miller)................ 181,182
Railroads—relief departments—waivers of right to damages—recovery
of deductions from wages—constitutionality of statute (Baltimore
& Ohio Southwestern R. R. Co. v. Hagan).................................. 182,183
Railroads—safety appliances—air brakes—transfer trains (United
States v. Chicago, B. & Q. R. R. Co.).........................................183,184
10
CONTENTS.
Text, etc., of decisions of courts affecting labor—Continued.
Decisions under statute law—Continued.
Page.
Railroads—safety appliances—hand and power brakes (Virginian Ry.
Co. v. United States).................................................................. 184,185
Railroads—safety appliances—hauling defective car for repairs—
“ necessary” (United States v. Atchison, T. & S. F. Ry. Co.) .. 185,186
Railroads—safety appliances—State and Federal statutes (Southern
Ry. Co. v. Railroad Commission of Indiana).................................
186
Railroads—safety appliances—switching operations—yards (United
States v. Erie R. R. Co.)..............................................................187,188
Strikes—kidnaping of member of strikers’ committee—evidence
(State v. Payne)......................................................................... 188,189
Sunday labor—“ common labor ” — “ avocation ”—necessity—assessment of property (Stellhom v. Board of Commissioners)............. 189,190
Sunday labor—constitutionality of statute (State v. Nicholls)........ 190,191
Wage debts—liability of stockholder of corporation—bookkeeper as
employee (Famum v. Harrison)...................................................... 191
Wages as preferred claims in bankruptcy—constitutionality of stat
ute (Central Trust Co. v. George Lueders & Co.)......................... 191-193
Wages as preferred claims in bankruptcy—“ wage earner”—“ serv
ant” (Blessing v. Blanchard).........................................................
193
Wages—mines—weighing coal before screening—constitutionality of
statute (Rail & River Coal Co. v. Yaple)......................................194-196
Wages—weekly payment—employees (People v. Interborough Rapid
Transit Co.)................................................................................196,197
Weekly day of rest—constitutionality of statute (People v. C. Klinck
Packing Co.).............................................................................. 197-200
Workmen’s compensation—abrogation of common-law defenses—
status of employee—constitutionality of statute (Wheeler v. Contoocook Mills Corporation)......................................................... 200,201
Workmen’s compensation—accident as cause of death—insanity
resulting from injury, and causing suicide (In re Sponatski)......... 201,202
Workmen’s compensation—accident—effect of release on claim of
dependent (Milwaukee Coke & Gas Co. v. Industrial Commission).. 202
Workmen’s compensation—accident—hernia—finding of commission
(Poccardi v. Public Service Commission)......................................
203
Workmen’s compensation—accident—ivy poisoning (Plass v. Central
New England Ry. Co.).............................................................. 203,204
Workmen’s compensation—accident—typhoid fever from impure
water furnished by employer (Vennen v. New Dells Lumber Co.).. 204,205
Workmen’s compensation—application of statute—employers of less
than five—failure to insure (Bayon v. Buckley)........................... 205,206
Workmen’s compensation—application to municipalities—constitu
tionality of statute (Porter v. Hopkins)...................................... 206-208
Workmen’s compensation—award of lump sum (McCracken v. Mis
souri Valley Bridge & Iron Co.)................................................. 208,209
Workmen’s compensation—benefits—concurrent awards (Fredenburg v. Empire United Rys. Co.)..................................................
210
Workmen’s compensation—benefits—effect of possible operation
(Feldman v. Braunstein)............................................................210,211
Workmen’scompensation—benefits—impairment of use of arm (North
western Fuel Co. v. Leipus).........................................................
211
Workmen’s compensation—benefits—injury to hand and to upper
arm (State ex rel. Kennedy v. District Court)..................................
212
CONTENTS.
11
Text, etc., of decisions of courts affecting labor—Continued.
Decisions under statute law—Continued.
Page.
Workmen’s compensation—benefits—loss of finger (Fineman v. Albert
Mfg. Co.)................................................................................... 212,213
Workmen’s compensation—benefits—loss of hand (Rockwell v.
Lewis)............ ..............................................................................
213
Workmen’s compensation—benefits—medical treatment (Massachu
setts Bonding & Ins. Co. v. Pillsbury)....................................... 213,214
Workmen’s compensation—benefits—partial disability (Hirschkom v.
Fiege Desk Co.).............................................................................
214
Workmen’s compensation—benefits— “ permanently incapable of
use” (Floccher v. Fidelity & Deposit Co.)................ ................. 214,215
Workmen’s compensation—benefits—temporary and permanent disa
bility (Maziarski v. George A. Ohl & Co.).......................................
215
Workmen’s compensation—benefits—temporary and permanent disa
bility (Vishney v. Empire Steel & Iron Co.)................................215,216
Workmen’s compensation—benefits—“ wages” (Smolenski v. Eastern
Coal Dock Co.)............... ............................................... .............
217
Workmen’s compensation—constitutionality of statute (Memphis Cot
ton Oil Co. v. Tolbert)............................................................... 217-219
Workmen’s compensation—constitutionality of statute (Middleton v.
Texas Power & Light Co.).......................................................... 219-221
Workmen’s compensation—constitutionality of statute—construction—
steamship lines operated in interstate commerce (Jensen v. Southern
Pacific Co.)................................................................................ 221-224
Workmen’s compensation—constitutionality of statute—defenses
(Hunter v. Colfax Consolidated Coal Co.).................•.................. 225-229
Workmen’s compensation—constitutionality of statute—injury aris
ing out of and in the course of employment—foreman injured by
assault of workman (Western Indemnity Co. v. Pillsbury)............ 229-232
Workmen’s compensation—constitutionality of statute—presumption
as to election by employee (Mackin v. Detroit-Timkin Axle Co.).. 233-235
Workmen’s compensation—dependency (Petrozino v. American
Mutual Liability Co.)............... ....................................................
235
Workmen’s compensation—dependency (Pinel v. Rapid Ry. System). 235,236
Workmen’s compensation—election—contract of employment (John
son v. Nelson)................................................................................
236
Workmen’s compensation—election—damages for death—recovery by
insurer from third persons—subrogation (Tumquist v. Hannon)... 236,237
Workmen’s compensation—employee—construction of statute (In re
Rheinwald)................................................................................ 237,238
Workmen’s compensation—employee—independent contractor (In re
Powley)..................................................................................... 238,239
Workmen’s compensation—employee—minor employed in prohibited
hazardous occupation (Foth v. Macomber & Whyte Rope Co.)........
239
Workmen’s compensation—“ employee” —pieceworker (State ex rel.
Virginia & Rainy Lake Co. v. District Court)............................. 239,240
Workmen’s compensation— employees included—police officers
(Blynn v. City of Pontiac)................ ......................................... 240,241
Workmen’s compensation—employer (Rongo v. R. Waddington &
Sons, Inc.)....................................................................................
241
Workmen’s compensation—employment obtained under false pre
tenses—relationship—causation (Kenny v. Union Ry. Co.).......... 241,243
12
CONTENTS.
Text, etc., of decisions of courts affecting labor—Continued.
Decisions under statute law—Continued.
Page.
Workmen’s compensation—employments included—elevators—con
struction of statute (Guerrieri v. Industrial Insurance Commis
sion) ......................................................................................... 242,243
Workmen’s compensation—evidence—presumption as to cause—
(Englebretson v. Industrial Accident Commission).........................
243
Workmen’s compensation—evidence—presumption of accidental
death (Milwaukee Western Fuel Co. v. Industrial Commission)........
244
Workmen’s compensation—evidence—procedure (Carroll v. Knicker
bocker Ice Co.).......................................................................... 244-246
Workmen’s compensation—exclusiveness of remedy—third parties—
constitutionality of statute (Northern Pacific Ry. Co. v. Meese).. 246,247
Workmen’s compensation—extraterritorial effect of statute (Post v.
Burger & Gohlke)....................................................................... 247-249
Workmen’s compensation—Federal and State jurisdiction—admi
ralty—election of remedies (In re Walker)................................... 249,250
Workmen’s compensation—Federal and State jurisdiction—admi
ralty—sole remedy (State ex rel. Jarvis v. Daggett)........................
250
Workmen’s compensation—Federal and State statutes—interstate
commerce by water—extraterritorial effect of statute—admiralty
(Kennerson v. Thames Towboat Co.)........................................... 251,252
Workmen’s compensation—Federal and State statutes—interstate
employee injured without negligence of employer (Staley v. Illinois
C. R. R. Co.)............................................................................. 253-256
Workmen’s compensation—Federal and State statutes—interstate
employee injured without negligence of employer (Winfield v. New
York C. & H. R. R. R. Co.)........................................................ 256-258
Workmen’s compensation—Federal and State statutes—interstate em
ployee injured without negligence of employer—extraterritorial
effect of statute (Rounsaville v. Central R. R. Co.).................. .. 258,259
Workmen’s compensation—Federal and State statutes—interstate
railroad operating canal—dependents (Hammill v. Pennsylvania
R. R. Co.).................................................................................. 260,261
Workmen’s compensation—hazardous employment—druggist’s em
ployee (Larsen v. Paine Drug C o.)................................................
261
Workmen’s compensation—hazardous employment—harvesting ice for
company preparing foodstuffs (Aylesworth v. Phoenix Cheese Co.) 261,262
Workmen’s compensation—hazardous employment—janitor—putting
out flag (Gleisner v. Gross & Herbener)....................................... .. 262
Workmen’s compensation—hazardous employment—preparation of
meats (Kohler v. Frohmann)....................................................... 262,263
Workmen’s compensation—hazardous employment—preparation of
meats—hotel employee (De la Gardelle v. Hampton Co.)............. 263,264
Workmen’s compensation—hazardous employment—presumption of
inclusion of employee (McQueeney v. Sutphen & Hyer).............. 264,265
Workmen’s compensation—hazardous employment—“ vehicle” (Wil
son v. C. Dorflinger & Sons)........................................... ................
265
Workmen’s compensation— hazardous employment— warehousing
(Mihm v. Hussey)....................................................................... 265,266
Workmen’s compensation—injury—proximate cause (Great Western
Power Co. v. Pillsbury)..................................................................
266
Workmen’s compensation—injury—proximate cause (Kill v. Indus
trial Commission)........................................................................ 266,267
CONTENTS.
13
Text, etc., of decisions of courts affecting labor—Continued.
Decisions under statute law—Continued.
Face.
Workmen’s compensation—injury arising out of and in course of em
ployment—attempted rescue (Dragovich v. Iroquois Iron C o.)... 267,268
Workmen’s compensation—injury arising out of and in course of em
ployment—boarding car after work time (De Voe v. New York
State R ys.)............................................................................... 268,269
Workmen’s compensation—injury arising out of and in course of em
ployment—burden of proof (In re Savage).....................................
269
Workmen’s compensation—injury arising out of and in course of em
ployment-cleaning motorcycle used in business (Kingsley v.
Donovan)................................................................................... 269,270
Workmen’s compensation—injury arising out of and in course of
employment—death by lightning (Klawinski v. Lake Shore &
M. S. Ry. Co.)..............................................................................
270
Workmen’s compensation—injury arising out of and in course of em
ployment—death by lightning (State ex rel. People’s Coal & Ice Co.
v. District Court)........................................................................ 270,271
Workmen’s compensation—injury arising out of and in course of em
ployment-doing forbidden act (Smith v. Corson)........................... 271
Workmen’s compensation—injury arising out of and in course of em
ployment—failure of heart while lifting (In re Fisher)............... 271,272
Workmen’s compensation—injury arising out of and in course of em
ployment-implied authority to do certain work (State ex rel.
Duluth Brewing & Malting Co. v. District Court)........................ 272,273
Workmen’s compensation—injury arising out of and in course of em
ployment—operation of truck (Hendricks v. Seeman Bros.)..........
273
Workmen’s compensation—injury arising out of and in course of em
ployment—saving effects from sinking lighter (In re Brightman).. 274
Workmen’s compensation—injury arising out of and in course of em
ployment—superintendent murdered by trespasser (Inre Reithel). 274,275
Workmen’s compensation—injury arising out of and in course of em
ployment—volunteer (Spooner v. Detroit Saturday Night Co.).. * 275,276
Workmen’s compensation—injury arising out of employment—death
by lightning (Hoenig v. Industrial Commission).......................... 276,277
Workmen’s compensation—injury arising out of employment—em
ployee warming himself between cars (Northwestern Iron Co. v.
Industrial Commission)............................................................... 277,278
Workmen’s compensation—injury arising out of employment—haz
ardous employment (Newman <v. Newman).................................. 278
Workmen’s compensation—injury arising out of employment—playful
assault by fellow servant (De fHlippis v. Falkenburg).................. 278,279
Workmen’s compensation—injury arising out of employment—playful
assault of fellow workman (Hulley v. Moosbrugger)...................... 279,280
Workmen’s compensation—injury arising out of employment—proxi
mate cause—^notice (City of Milwaukee v. Industrial Commission). 280,281
Workmen’s compensation—injury in course of employment—acting as
fireman (In re McPhee).................................................................
281
Workmen’s compensation—injury in course of employment—putting
up horse (Smith v. Price)...............................................................
282
Workmen’s compensation—injury in course of employment—workman
seeking shelter from storm (Moore v, Lehigh Valley R. R. Co.)... 282,283
Workmen’s compensation—liability of receiver for payment of benefits
(Wood v. Camden Iron Works).......................................................
284
14
CONTENTS.
Text, etc., of decisions of courts affecting labor—Continued.
Decisions under statute law—Concluded.
Page.
Workmen’s compensation—railroads—interstate commerce—car repair
shop (Okrzsezs v. Lehigh Valley E. R. Co.)....................................
284
Workmen’s compensation—railroads—interstate commerce—switching
on intrastate railroad (Fairchild v. Pennsylvania R. R. Co.)....... 284,285
Workmen’s compensation—railway relief association—release (West
Jersey Trust Co. v. Philadelphia & Reading R. R. Co.)............... 285,286
Workmen’s compensation—right to appeal (Crockett v. State Insurance
Fund)............................................................................................ 286
Workmen’s compensation—termination of benefits—findings of board—
evidence (Spooner v. Estate of P. D. Beckwith, Inc.)................. 286,287
Workmen’s compensation—total and partial disability—findings of
board (In re Stickley)................................................................. 287,288
Workmen’s compensation—total and partial disability—loss of remain
ing hand (Schwab v. Emporium Forestry Co.)............................ 288,289
Workmen’s compensation—total and partial disability—loss of second
289
eye (State ex rel. Garwin v. District Court)..................................
Workmen’s compensation—total and partial disability—loss of second
eye (Weaver v. Maxwell Motor Co.)............................................ 289,290
Workmen’s compensation—total disability—inability to find work—
findings of board (In re Septimo)................................................. 290,291
Workmen’s compensation—willful misconduct (Gignac v. Studebaker
Corporation)............................................................................... 291,292
Workmen’s compensation—willful misconduct—powers and findings
of board (Great Western Power Co. v. Pillsbury)............................
292
Workmen’s compensation—willful negligence (Taylor v. Seabrook). 292,293
Decisions under common law............................................................... 293-339
Armed guards—status—liability of employer for assault (Pennsylvania
Mining Co. v. Jamigan)............................................................... 293,294
Blacklist—railway benefit associations—directing employees not to
call designated physician—damage (Peek v. Northern Pacific Ry.
Co.)............................................................................................294-296
Contract of employment—abandonment—recovery of wages and de
posit (Koch v. Siff)........................................................................
296
Contract of employment—breach by employee—damages—deposit
(Silbert v. Katz)......................................................................... 296,297
Contract of employment—discharge—remedies (Continental Aid Assn.
v. L ee).........................................................................................
297
Contract of employment—implied renewal—grounds for discharge (Ak
ron Milling Co. v. Leiter)............................................................ 297,298
Contract of employment—life employment—consideration for release
of claim for damages—ratification (Swanson v. Union Pacific R. R.
Co.)............................................................................................ 298,299
Contract of employment—term—breach (Gabriel v. Opoznauer)___ 299,300
Contract of employment—term—breach—damages (Halpem v. Langrock Bros. Co.)........................................................................... 300-303
Contract of employment—termination—recovery of wages—“ seamen”
(The / . P. Schuh)..........................................................................
303
Employer and employee—liability of railroad to man boarding work
men’s train to secure employment (Schifalaqua v. Atlantic City R. R.
Co.)..................................................................... ..................... 303,304
Employers’ associations—expulsion—charges—trial—restoration to
membership (Grassi Bros. Inc., v. O’Rourke)............................... 304-306
CONTENTS.
15
Text, etc., of decisions of courts affecting labor—Concluded.
Decisions under common law—Concluded.
Page.
Employers’ liability—assumption of risks—fellow-servant doctrine
(Kligo v. Rome Soil Pipe Mfg. Co.)............................................. 306,307
Employers’ liability—contract for payments to wife to avoid suit
(Kelly v. Burnham, Williams & Co.)........................................... 307,308
Employers’ liability—contract to furnish medical services (Idliopoulos
v. Oregon-Washington R. R. & Navigation Co.)........................... 308-310
Employers’ liability—refusal of opportunity for sick employee to leave
310
store (Keefe v. Straus)...............................*...................................
Employers’ liability—release—agreement to pay salary while unable
to work after injury (Tylee v. Illinois C. R. R. Co.)
311
Employers’ liability—relief fund—contract for half pay during dis
ability—judgment for damages as bar to award (McAdow v. Kansas
City Western Ry. Co.)................................................... ............311,312
Employers’ liability insurance—amount of premiums—inspection of
books (Frankfort Marine, etc., Ins. Co. v. California Artistic Metal &
Wire Co.)....................................................................................312,313
Employers’ liability insurance—construction of contract—expenses
(Little Cahaba Coal Co. v. Aetna Life Ins. Co.)............................313,314
Injunction—contempt—evidence (Oates v. United States).............. 314,315
Injunction—contempt—power of court (Schwartz v. United States). 315-317
Interference with employment—blacklist (McCarter v. Baltimore
Chamber of Commerce)............................................................... 317,318
Interference with employment—blacklist—strikes—injunction (Cornellier v. Haverhill Shoe Mfrs. Assn.).......................................... 318-322
Interference with employment—causing discharge—false statements
(Scott v. Prudential Outfitting Co., Inc.)...................................... 322,323
Interference with employment—causing discharge—filing unauthor
ized assignment (Kennedy v. Hub Mfg. Co.)................................... 323
Labor organizations—by-laws—expulsion of member (Schouten v.
Alpine)....................................................................................... 323-325
Labor organizations—collective agreements—liability to contractor
not notified, for reduction of wages (Powers v. Journeymen Brick
layers’ Union)............................................................................. 325-327
Labor organizations—injunctions—by-laws—intimidation (Rhodes
Bros. Co. v. Musicians’ Protective Union).................................... 328-331
Labor organizations—injunctions—picketing (Stoner v. Robert)___ 331,332
Labor organizations—injunctions—strikes (Commercial Binding &
Printing Co. v. Tacoma Typographical Union)............................. 332,333
Labor organizations—interference with employment—closed - shop
agreement—procuring discharge (Cusumano v. Schlessinger)....... 333,334
Labor organizations—liability of members for torts of other members—
injunctions (Hill v. Eagle Glass & Mfg. Co.)................................ 334,335
Labor organizations—liability of treasurer for funds (Tinkler v. Powell). 336
Labor organizations—strikes—boycotts—injunction (A. Fink & Son v.
Butchers’ Union)........................................................................ 336,337
Labor organizations—strikes—discrimination against single concern
(Bossert v. Dhuy)...................................................................... 337-339
BULLETIN OF THE
U. S. BUREAU OF LABOR STATISTICS.
WHOLE NO. 189.
WASHINGTON.
MAY, 1916.
DECISIONS OF COURTS AFFECTING LABOR, 1915.
INTRODUCTION.
This is the fourth bulletin in the series presenting court decisions,
the preceding numbers being 112, 152, and 169. Prior to the year
1912 decisions were noted in practically every issue of the bimonthly
bulletins, ending with No. 100, since which date the publications of
decisions have been annual. The decisions reproduced are mainly
those rendered by the Federal courts or by the State courts of last
resort, though in some States the opinions of subordinate courts of
appellate jurisdiction have been used, notably for the State of New
York; the opinions reported in the New York Supplement of the
National Reporter System are this year, for the first time, made use
of. No effort has been made to reproduce all cases appearing in the
sources used, representative types being usually sought after, though
a more general inclusiveness was practiced in connection with cases
affecting the constitutionality and construction of workmen’s com
pensation laws and those affecting the status and activities of labor
organizations; considerable attention has also been paid to the de
cisions construing the Federal Employers’ Liability Act. As was the
case last year, no opinion of the Attorney General of the United
States construing Federal labor legislation has appeared.
As heretofore, the opinions have been abridged, the facts usually
being stated in brief, and quotations made setting forth the conclu
sions reached and the grounds therefor, though in a number of cases
findings of the court have been stated in the editor’s own words with
out direct quotation. The same sources have been used as in the past,
i. e., the National Reporter System, published by the West Publish
ing Co., and the Washington Law Reporter for the District of
Columbia. With one or two exceptions the cases appearing are
those which were published during the calendar year 1915, the
volumes covered being as follows:
Supreme Court Reporter, volume 35, page 26, to volume 36,
page 93.
26071®—Bull. 189—16----- 2
17
18
BU LLETIN OF TH E BTTBEATT OP LABOR STATISTICS.
Federal Reporter, volume 217, page 689, to volume 227, page 336.
Northeastern Reporter, volume 106, page 1088, to volume 110,
page 544.
Atlantic Reporter, volume 92, page 513, to volume 95, page 920.
Southeastern Reporter, volume 83, page 673, to volume 87, page 96.
Southern Reporter, volume 66, page 457, to volume 70, page 112.
Southwestern Reporter, volume 171, page 1, to volume 180, page
464.
Northwestern Reporter, volume 149, page 721, to volume 155, page
144.
Pacific Reporter, volume 144, page 577, to volume 153, page 96.
New York Supplement, volume 150, page 433, to volume 155,
page 1151.
Opinions of Attorney General, volume 30, pages 289 to 336.
Washington Law Reporter, volume 43.
As already indicated, the largest single group of cases is that
relating to the subject of workmen’s compensation, since, though
simple and summary methods of procedure are contemplated by the
acts establishing this system, many questions remain unsolved as yet,
for the determination of which reference must be had to the courts.
Other decisions of interest relate to the employment of aliens, a
restrictive statute of Arizona on this subject having been held un
constitutional by the Supreme Court. A contract-labor law of
Alabama was likewise declared unconstitutional; while interesting
decisions as to the rights of members of labor organizations and em
ployers’ associations and as to the effect of collective agreements
appear. Of special interest among the workmen’s compensation
decisions are those discussing the extraterritorial effect of the stat
utes and their relation to the Federal law relative to interstate
commerce.
MINIMUM WAGE.
The constitutionality of the Oregon minimum-wage law was
argued before the Supreme Court of the United States, but the
opinion had not been rendered at the time of the publication of this
bulletin.
REVIEW OP DECISIONS.
The court decisions are divided into two groups, statutory and
common law, though in the following review cases are grouped ac
cording to the subject matter considered without making this dis
tinction.
CONTRACT OF EMPLOYMENT.
ENFORCEMENT.
Cases coming up under statutes are two, under the laws of Ala
bama and Georgia, respectively, in which workmen were convicted of
fraudulent contracts, procuring advances and failing to carry out the
terms of the contract. In Thomas v. State (p. 58) the constitu
tionality of a penal statute on the subject of fraudulent contract was
upheld by the Court of Appeals of Alabama, and it was declared
applicable to the case of a minor, who though not capable of making
a binding contract was nevertheless declared possessed of the requisite
guilty knowledge of wrong to authorize his conviction of crime. In
Paschal v. State (p. 59), a conviction was reversed on the ground that
a general tender of the amount advanced had been made, though
another defense, i. e., that there was a conflicting existing contract,
was held not to be valid. A statute of Alabama authorizing the pay
ment of fines of misdemeanants by one subsequently accepting the
service of the convicted person under contract to work out fines and
costs was held in United States v. Keynolds (p. 177) to be uncon
stitutional, the Supreme Court of the United States finding that in
practical effect, if not in original intent, it was in conflict with the
Federal statutes abolishing peonage.
BREACH.
Questions of breach of contract were passed upon in several cases.
In Koch v. Siff (p. 296), the plaintiff endeavored to recover unearned
wages after leaving service by mutual consent on account of his fear
of injury from strikers; the court disallowed recovery, but it also
rejected the employer’s contention that he should be allowed to
retain a deposit for faithful performance. In Silbert v. Katz (p.
296) an employee was held not to be entitled to a return of his deposit
on a showing that he had refused to render the services contracted
for, to the employer’s injury.
19
20
BU LLETIN OP TH E BUREAU OP LABOR STATISTICS.
Breach by the employer was held to afford ground for a recovery
in Gabriel v. Opoznauer (p. 299), under a written contract, further
supported by remarks of the employer; much the same conditions
and results appear in Halpem v. Langrcck Bros. (p. 300). Where
hiring was for an indefinite term, and workmen refused to continue
labor after having worked continuously for a day and part of the
night and were discharged, it was held (The J. P. Schuh, p. 303) that
the men were entitled to all wages earned. The general principles
on which recovery may be had for discharge and the remedies avail
able are announced in Continental Aid Association v. Lee (p. 297
Where there is an implied renewal of contract after the expiration
of a fixed term, discharge may not be justified on grounds known to
the employer at the time of the implied renewal (Akron Milling
Co. v. Leiter, p. 297). In case of a contract for life employment given
in consideration of a release of a claim for damages, it was held a
written contract could be added to by oral agreement made at the
same time (Swanson v. Union Pacific Railroad Co., p. 298).
RESTRICTIONS ON DISCHARGE.
A statute requiring statement of cause of discharge had been in
effect in Texas for some years, but was declared unconstitutional in
St. Louis Southwestern Railway Co. v. Griffin (p. 61), as violating
the right of silence, the correlative of the liberty of speech. Where
a certificate of discharge has been given which is injurious and de
famatory, proof must be complete as to damages resulting from the
unlawful act interfering with employment; this rule, however, does
not make it impossible that a suit for libel can be maintained (Dick
v. Northern Pacific Railway Co., p. 64). The question of the right
of an employee to demand a hearing where he is threatened with
discharge by reason of information given concerning him was before
the Massachusetts Legislature, which requested an opinion of the
supreme judicial court as to the constitutionality of the proposed
measure, the decision of the court being adverse thereto (In re
Opinions of the Justices, p. 60).
EMPLOYMENT STATUS.
The status of a man boarding a train used exclusively to carry
workmen, himself not an employee but seeking employment, was
held in Schifalaqua v. Atlantic City Railroad Co. (p. 303) to be that
of neither employee nor passenger, so that no damages could be re
covered for injuries incurred in the act.
Another case involving the status of employer and employee,
though of a very different nature, is that of Pennsylvania Mining
Co. v. Jamigan (p. 293), in which it was held that the company was
DECISIONS OF COURTS AFFECTING LABOR.
21
liable for the acts of armed guards hired by it, the superintendent of
the company having ratified and apparently instigated assaults by
the guards employed. A similar question arose as to the status of
armed guards appointed under a statute of Pennsylvania (Ruffner
v. Jamison Coal & Coke Co., p. 57). No public funds were available
for the wages of these appointees, and they were paid by the com
pany; they were held, however, not to be employees of the company,
but to act in a public capacity, so that the company was not liable for
injurious acts done beyond the proper scope of their authority.
INTERFERENCE WITH EMPLOYMENT—BLACKLISTS.
A statute of Alabama penalizes interference with employment by
hiring away the workman of another under contract with him for
service. The conditions under which the law applies are set forth
in Lambert v. State (p. 155). In Scott v. Prudential Outfitting Co.
(p. 322) and Kennedy v. Hub Manufacturing Co. (p. 323) courts of
New York and Massachusetts respectively sustained judgment in
favor of employees whose discharge was procured by false or unau
thorized statements as to assignments of wages by them. A party
placed on a blacklist by associated business men on the ground that
his dealings are inconsistent with just and equitable principles of
trade can not claim damages as for wrongful or malicious inter
ference where nothing more is done than to give information in
accordance with a mutual agreement without coercion (McCarter
v. Baltimore Chamber of Commerce, p. 317). In a Massachusetts
case also, Comellier v. Haverhill Shoe Manufacturers Association
(p. 318), a striker who had indulged in unlawful acts was held not to
have “ clean hands ” so as to secure redress in a court of equity, where
employment had been lost because of his being placed on a blacklist.
A third case that may be considered in this group is that of a
physician against whom notice had been given that he should not
be called “ in any case” of accident to railroad employees in the
locality; it was decided in this case (Peek v. Northern Pacific Rail
way Co., p. 294), that there was a technical liability for damages
against some of the parties defendant by reason of their action.
WAGES.
MODE AND TIME OF PAYMENT.
A law of California fixing periods of wage payment was declared
unconstitutional (Ex parte Crane, p. 174), on the ground that its
enforcement might lead to imprisonment for debt, this being a pos
sibility under the penal procedure of the State. In People v. Inter
borough Rapid Transit Co. (p. 196) a New York statute prescribing
22
BU LLETIN OF TH E BUREAU OF LABOR STATISTICS.
the weekly payment of wages was construed, the question involved
being as to whether various employees of the company were within
the definition fixing the application of the act. A law penalizing
the nonpayment of wages due on the discharge of a workman was
considered in Trammell v. Victor Manufacturing Co. (p. 175), and
was held to apply to a case where a company has fixed regular pay
days. Another phase of the wages question was involved in Atkins
v. Grey Eagle Co. (p. 176), in which a law of West Virginia requir
ing redemption in cash at full value of scrip or money orders was
affirmed, the orders in this case being payable in merchandise.
PREFERENCE.
The preference of wage debts was discussed in two cases, in one
of which, Central Trust Co. v. George Lueders & Co. (p. 191), the
Kentucky insolvency law was attacked as unconstitutional and in
conflict with the Federal statute; this and other questions were de
cided adversely to the contestant, and the law upheld. In the second
case, Blessing v. Blanchard (p. 193), the Federal statute was con
strued, and distinctions made as to the persons included thereunder
as “ wage earners.” Appropriate for mention here, though resting
on a different basis, is the case of Faraum v. Harrison (p. 191), in
which a bookkeeper was held to be within the preferred classes of em
ployees for the wage debts of whom stockholders of insolvent corpo
rations are liable.
The mechanic’s lien law of Minnesota was construed in Lyons v.
Jarnberg (p. 170), the superiority of liens over a mortgage being
affirmed, ordinary lighting fixtures being held not to give a lien, not
being part of the structure, and the padding of one item being held
to invalidate the whole of the party’s claim.
A statute of the same State providing for the exemption of wages
from execution was passed upon in Bofferding v. Mengelkoch (p. 127),
and a section making certain exceptions declared unconstitutional.
BASIS.
The Ohio statute prohibiting the screening of coal before weighing
where wages are paid according to the weight of coal mined was de
clared constitutional in the case of Rail & River Coal Co. v. Yaple
(p. 194), the decision being by the Supreme Court of the United
States.
HOURS OF LABOR.
GENERAL LAWS.
The decisions under this head are unusually numerous this year,
as well as of unusual importance, involving both general employ
ment and special classes of employees. In the first group is the case,
DECISIONS OP COURTS AFFECTING LABOR.
23
Saville v. Corless (p. 128), in which a novel statute of Utah fixing a
6 o’clock closing hoar for mercantile establishments with certain
exceptions was held unconstitutional. A similar fate befell a Louisi
ana statute fixing at eight per day, in cities having a population of
50,000 or more, the hours of labor of stationary firemen (State
Legendre, p. 130). The Oregon statute prescribing a general 10-hour
day in factories, etc., was considered in State v. Young (p. 131), ordi
nary repair work not being classed as of the type of “ necessary re
pairs ” which are made an exception under the act.
RAILROADS.
A number of cases construe the Federal statute fixing the hours of
service of railroad employees. In United States v. Great Northern
Railway Co. (p. 144) carefully drawn definitions are given of certain
terms used in the proviso as to exceptions, and a judgment relieving
the company from liability was reversed. In United States v. Den
ver & Bio Grande Railroad Co. (p. 146), the discharge of an insub
ordinate and defiant employee, whose place could not be filled immedi
ately, was held to constitute an emergency justifying overtime work.
A similar conclusion was reached in case of the illness of an operator
in San Pedro, etc., Railroad Co. v. United States (p. 147), as was true
of an operator detained by the wreck of a train; another violation
charged in the same case was held culpable, where a change of crew
might have been made during a run prolonged by heavy rains, but
was not.
The engineer of a work train operating entirely intrastate was held
not to be one of the employees engaged in the transportation of
passengers or property by railroad from one State to another within
the scope of the Hours-of-Service Act (United States v. Chicago, Mil
waukee & Puget Sound Railway Co., p. 148). Questions of classifica
tion also arose in United States v. Florida East Coast Railway Co.
(p. 152), in which it was held that a train conductor who at certain
stations used the telephone to receive orders relative to the movement
of trains was not an “ operator” limited to 13 hours’ employment;
and in Chicago, Rock Island & Pacific Railway Co. v. United States
(p. 153), in which it was held that switchmen who were regularly re
quired to telephone to a towerman as to the arrival or position of
certain trains were sufficiently identified with the group of employees
classed as operators, etc., to require the limitation of their service to
nine hours as a maximum at a point where service was continuous.
In Delano v. United States (p. 153), the question arose as to whether
a train dispatcher having completed his term of service might subse
quently serve as ticket seller or in other capacities for which the hours
of service are not restricted; the determination of the court was ad
verse to such supplementary employment.
24
BU LLETIN OP TH E BTTBEATX OP LABOR STATISTICS.
That the enforcement of the observance of the Hours-of-Service
Act is an absolute duty is held in United States v. Oregon-Washing
ton Railroad &. Navigation Co. (p. 148), where a penalty was enforced
against the company in a case where the operator remained on duty
in violation of instructions and without the knowledge of any officer
or agent of the company other than himself. The question of whether
certain offices were operated continuously night and day arose in the
case, United States v. Grand Rapids & Indiana Railway Co. (p. 150),
the office being closed at intervals in addition to longer periods of
seven and seven and one-half hours respectively late at night. In
another case, United States v. Chicago & Northwestern Railway Co.
(p. 151), it was the practice to allow regular hours off for dinner and
for supper, though it appeared that the operators were on call during
such times; overtime was found to be worked tinder such circum
stances, and the offered defense of emergency in a specific instance
was rejected as being nothing more than an ordinary accident.
The question of reporting overtime work was considered in United
States v. Baltimore & Ohio Railroad Co. (p. 154), in which the court
insisted that all overtime should be reported, even though worked
under emergency conditions which would justify the act. The inad
vertent omission of reports of overtime work, however, was held in
Oregon-Washington Eailroad & Navigation Co. v. United States
(p. 154) not to subject the company to penalties.
A State statute which undertook to regulate the hours of service
of certain employees of railroads to nine per day was held in Com
monwealth v. Boston & Maine Railroad (p. 149) to be unconstitu
tional; it applied to baggagemen, laborers, crossing tenders, and
the like, the court regarding these classes of workmen as not engaged
in an occupation calling for special legislative protection.
WOMEN.
The remainder of the cases to be considered under this head relate
to the hours of labor of women. In Miller v. Wilson (p. 133), the
Supreme Court of the United States sustained as constitutional the
eight-hour law of California for women, the case in hand being that
of a chambermaid employed in a hotel. In Bosley v. McLaughlin
(p. 136), the same court upheld the same law as amended to extend
to hospitals. A very similar statute affecting the District of Columbia} but limiting labor to six days in the week, was sustained as con
stitutional in Eamshaw v. Newman (p. 138); while in Hotchkiss v.
District of Columbia (p. 140), this law was held to include a dress
making establishment, against the defendant’s'claim that she was
rot conducting a manufacturing establishment. The Massachusetts
law fixing an eight-hour day for women “ employed in labor” was
held to apply to a cashier in a grocery store, who also gave out trad
DECISIONS OF COURTS AFFECTING LABOB
25
ing stamps and did a little bookkeeping (Commonwealth v. J. T.
Connor Co. [p. 140]). The question of the constitutionality of a
New York Statute forbidding nightwork for women was before
the court in People v. Charles Schweinler Press (p. 141), the law
being upheld. An Arizona statute prescribing an eight-hour day
for women, and making certain apportionments of time, different
for different classes of employment, was upheld as constitutional in
State v. Dominion Hotel (p. 1S2).
SUNDAY LABOR.
The constitutionality of a statute of Oregon restricting Sunday
labor was passed upon in State v. Nicholls (p. 190), the contention
being that the law was unconstitutional as discriminatory between
classes of business permitted and those forbidden; the classification
was held to be reasonable, however, and the law sustained. Similar
contentions were involved in the case People v. C. Klinck Packing
Co. (p. 197), in which the weekly day of rest law of New York
was sustained as constitutional in its general scope, the classifications
contained therein being held reasonable; a delegation of authority
to the commissioner of labor to make certain exemptions in his
discretion was held not to be valid, but this fact did not affect the
validity of the remainder of the law. The construction of the
Indiana statute was passed upon in Stellhom v. Board of Com
missioners (p. 189), the work of an assessor of property in checking
up lists, etc., on Sunday being held not to be a labor of necessity,
so that no payment could be collected for services rendered on
Sunday.
FACTORY REGULATIONS.
The cases noted under this head all involve the question of the
employer’s liability for injuries alleged to be due to his negligence
in failing to comply with the requirements of the law as to safety.
FK E ESCAPES.
In Goetz v. Duffy (p. 71), the court determined the liability of
owner, lessee, and sublessee for failure to maintain suitable fire
escapes in an unobstructed condition as required by the laws of New
York. This statute was also considered in Amberg v. Kinley
(p. 73), where the employer’s liability for death by burning was
affirmed on the ground that the employer’s negligence in failing to
provide fire escapes constituted liability per se.
GUARDS.
The guarding of dangerous machinery and its practicability were
before the Minnesota court in Puls v. Chicago, Burlington & Quincy
26
BU LLETIN OF TH E BUREAU OF LABOR STATISTICS.
Railroad Co. (p. 74), construing a Wisconsin statute and orders of
the industrial commission of that State, and a judgment based on
violations was affirmed; so also in the case, Ronca v. Wendall &
Evans Co. (p. 75), involving the guarding of a steam mangle.
INSPECTION—SUITABLE EQUIPMENT.
In Burk v. Hobart Mill & Elevator Co. (p. 70), the Supreme Court
of Oklahoma held that it was proper to admit evidence, as a de
fense for the company, that its mill had been inspected by a State
factory inspector as relieving the company from the charge of negli
gence in the matter of equipment. Under this head may be noted
the case Wiley v. Solway Process Co. (p. 67), in which the failure of
the employer to furnish a punch for punching holes in barrel hoops
before driving nails was made a basis of liability on the ground that
it was a defect in the ways, works, machinery, and plant of the
employer.
RAILROADS.
SAFETY APPLIANCES.
Under the safety appliance acts of the United States a case of
considerable interest was passed upon by the Supreme Court of the
United States (United States v. Erie Railroad Co., p. 187), in which
a protracted dispute as to the definition of a railroad yard was
decided adversely to the company, and a new trial ordered in accord
ance with the ruling that a single yard could not be construed to
extend over a territory 2 or 3 miles in length, embracing separate
important points and covering a part of the through trackage of the
company. Quite a similar question was passed upon by the same
court in United States v. Chicago, Burlington & Quincy Railroad
Co. (p. 183), in which it was held that transfer trains crossing the
Missouri River at Kansas City must be equipped under the safety
law as trains in commerce. The law in question requires a suffi
cient supply of automatic brakes to control the train without the use
of hand brakes; in Virginian Railway Co. v. United States (p. 184)
the inability of the company to control certain heavy trains without
the use of hand brakes was held not to excuse infractions of the law,
the conditions being those of the company’s own making, and capable
of such modification as to permit compliance with the law. Neces
sary movements for repairs are permitted by the law, and the de
cision in United States v. Atchison, Topeka & Santa Fe Railway Co.
(p. 185), turned upon the interpretation of the word “ necessary” as
used in the statute, the court holding that it could not be held to be
the mere equivalent of “ convenient ” or other qualifying expression.
In Southern Railway Co. v. Railroad Commission of Indiana (p. 186),
DECISIONS OP COTJBTS AFFECTING LABOR.
27
the Supreme Court of the United States held invalid State safety
regulations supplementing the Federal statute, holding that there
could be neither added requirements as to equipment nor modifica
tions of penalties.
FULL CREWS.
Another statute affecting railroads is one of Arkansas prescribing
“ full crews,” making exceptions for railroads of a length of less
than 50 miles. In Kansas City Southern Railway Co. v. State
(p. 180), the contention of the railroad that since, though it was more
than 50 miles in length, it had less than 50 miles within the State,
it was exempt, was rejected by the court.
MINES.
WASH BOOHS.
Statutes of Indiana and Kansas requiring the establishment of
wash rooms for the use of mine employees under certain conditions
were passed upon in Booth v. Indiana (p. 171) and State v. Reaser
(p. 173). In both cases the constitutionality of the act in question
was challenged, and in both cases it was upheld; in one instance by
the Supreme Court of the United States, and in tie other by the
Supreme Court of the State of Kansas.
RESTRICTION OF EMPLOYMENT.
EXAMINATION AND LICENSING.
Provisions of the charter of New York require persons engaged in
the business of plumbing to be licensed, and in Gottesman v. Barer
(p. 126) it was held that a person not so licensed could not recover
for services rendered.
ALIENS.
Other cases that may be mentioned here involve attempts of State
legislatures to limit the employment of aliens. A statute of New
York forbade the employment of aliens on public works, and this
was upheld as constitutional by the court of appeals of that State in
People v. Crane (p. 52), and on appeal, by the Supreme Court of
the United States (Heim v. McCall, p. 50). A statute of Arizona
extending to private employment, and tending to debar from means
of livelihood persons legally within the United States, was held
unconstitutional by the Supreme Court of the United States in
Truax v. Raich (p. 53).
LIABILITY OF EMPLOYERS FOR INJURIES TO EMPLOYEES.
As indicated in the introduction, the most important cases to be
considered here are those involving the application of the Federal
liability law. Other cases of interest, however, have been selected,
28
BU LLETIN OF TH E BUREAU OF LABOR STATISTICS.
both, under common and statute law, in order to present briefly the
scope and effect of the other statutes and of the unmodified common
law.
WAIVERS.
Contracts procured by employers to prevent the operation of
liability statutes are forbidden by the Federal statute and by a
number of State laws (see Relief associations). That Pullman em
ployees may make valid contracts under the Federal law was held
in Robinson v. Baltimore & Ohio Railroad Co. (p. 87), on the ground
that they are not employees of railroads engaged in interstate com
merce within the scope of the Federal statute. A contract of waiver
was held void, however, in Chicago, Rock Island & Pacific Railway
Co. v. Pearce (p. 118), where the plaintiff, defendant on appeal, had
signed a contract which he alleged in this action to be invalid as in
conflict with the Federal law. In Illinois Central Railroad Co. v.
Harris (p. 67), the contract of waiver was held invalid, not as being
forbidden by the State law, but because if valid and binding, it
would “ have the effect of repealing some of the statutes of the State,”
which could not be permitted.
CONTRACTS OF SETTLEMENT, ETC.
Of a different purpose are contracts remaining to be noted, arising
under the common law. Thus in Kelly v. Burnham, Williams & Co.
(p. 307), the wife of an injured workman was held to have a good
cause of action on a contract made by her with the employing com
pany to receive payments on account of her forbearance to sue for
injuries which resulted in the insanity of her husband. In Tylee v.
Illinois Central Railroad Co. (p. 311), a contract by the employer
to pay the regular salary during the time of the injured workman’s
disability was enforced, the evidence being held sufficient to support
an oral promise not embodied in the written release. A contract
of insurance entered into by a railway company with its employees
was held to obligate the company itself, and not an insurance com
pany with which it appeared to have had a general contract; the
suggestion that the claim was barred on account of a recovery in
damages was not accepted by the court (McAdow v. Kansas City
Western Railroad Co., p. 311). Quite similar was the conclusion
reached in Liliopoulos v. Oregon-Washington Railroad & Naviga
tion Co. (p. 308), in which it was held that a company deducting
for a hospital fund could not claim restricted uses for that fund as
against a general arrangement understood by the workman. Lia
bility for failure to render service was affirmed.
FEDERAL STATUTE.
General scope and construction.—Besides the extended discussion
as to what is interstate commerce to which the Federal statute is
DECISIONS OP COURTS AFFECTING LABOR.
29
applicable, various other points arose for discussion under the Fed
eral law governing railroad service, while the liability due to viola
tions of safety appliance laws was considered in several cases. In
McGovern v. Philadelphia & Beading Railway Co. (p. 115), the
Supreme Court of the United States held the Federal statute avail
able for the benefit of nonresident alien beneficiaries of fatally
injured workmen. The same .court in St. Louis, Iron Mountain &
Southern Railway Co. v. Craft (p. 78) affirmed a judgment under
this statute in which recovery was awarded for the pain and suffer
ing of a deceased employee, the right of action therefor being held
to survive under the amendment of 1910. The Supreme Court of
Tennessee sustained the right of appointment of an administratrix,
if for no other purpose than to maintain an action under the Fed
eral statute (Howard v. Nashville, Chattanooga & St. Louis Rail
way Co. (p. 82). In Fish v. Chicago, Rock Island & Pacific Rail
way Co. (p. 84), the question of assumption of risks was considered,
the Supreme Court of Missouri holding that the common-law rule
valid in that State was applicable in the trial of local cases in spite
of its being different from the one adopted by the Federal courts.
In Central Vermont Railway Co. v. White (p. 85), however, the
Supreme Court of the United States insisted upon the application
of the Federal rule as to the burden of proof of contributory negli
gence, as against the enforcement of the rule of the State of Ver
mont, in one of whose courts the case was tried. The question of
assumption of risks arose also in Davis v. Chesapeake & Ohio Rail
way Co. (p. 86), the injury arising from a defect not covered by the
Federal law. The court held that the employee, knowing the condi
tions, assumed the risks, and recovery was barred.
The measure of damages as interpreted by a trial court was made
the ground for a reversal of a judgment in Norfolk & Western
Railway Co. v. Holbrook (p. 88), the Supreme Court of the United
States ruling that it was improper to introduce indefinitely specula
tive elements. In Brabham v. Baltimore & Ohio Railroad Co.
(p. 88), evidence as to the payment of life insurance to a dependent
claimant was held improperly admitted, and the judgment reversed
on an appeal based on the alleged inadequacy of the amount of the
damages awarded. The fact that a public authority has approved
the height and condition of an equipment was held not to be in
itself a full defense against charges of negligence in Portland Ter
minal Co. v. Jarvis (p. 83), where, a workman was injured by rea
son of the use, without notice, of an unusually high car. A question
as to appliances and equipment was passed upon also in Gekas v.
Oregon-Washington Railroad & Navigation Co. (p. 81), in which
the Federal statute was held to apply to any part of the equipment,
whether simple or complex, so that a defective adz was held to be
within the act.
30
BU LLETIN OF TH E BUREAU OF LABOR STATISTICS.
Where a suit should have been, brought under the Federal statute,
but was tried under a State law and judgment reversed because of
improper choice of remedies, it was held in St. Louis, San Fran
cisco & Texas Railway Co. v. Smith (p. 81) that the statute of
limitations would not operate to bar an action brought by a petition
amended to conform with the rulings of the higher courts. In Cor
bett v. Boston & Maine Railroad (p. 77), the question of election
of remedies, i. e., whether under Federal or State statutes, was up
for consideration. It was held that the plaintiff was not called upon
to determine under which law the action should be brought, since
the facts and not the pleadings determine how recovery may be had.
In Cincinnati, New Orleans & Texas Pacific Railway Co. v. Wilson’s
Administrator (p. 80), the company was held liable for the negli
gent act of a subforeman, held under the circumstances to be in
course of employment.
Incidental absence from work for personal reasons, not going
beyond reasonable bounds, was held not to take the plaintiff out from
under the act in Graber v. Duluth, South Shore & Atlantic Railway
Co. (p. 100). A section foreman was held in Texas & Pacific Ry.
Co. v. White (p. 106) to assume the risks from an insufficient crew
and a hand car too heavy to handle, though the work in which he
was engaged was within the scope of the act. The effect of the
Federal safety appliance act was involved in the case St. Louis &
San Francisco Railroad Co. v. Conarty (p. 117), in which the Su
preme Court of the United States held that an injury resulting
from the absence of prescribed'equipment was not chargeable to
the negligence of the company failing to supply the same where
the employee was not of the class or was not engaged in the work
for the benefit of which the safety appliance act was enacted. In
Texas & Pacific Railway Co. v. Rigsby (p. 119) it was held that the
interstate use of a defective car was not necessary to bring it within
the prohibition of the safety appliance act in so far as civil liability
was concerned, and that even though no criminal liability attached,
its use to the injury of an employee constituted actionable negligence.
Interstate commerce.—The decisions as to what constitute inter
state commerce continue to be in a measure conflicting, though cer
tain decisions of the Supreme Court have gone far to clarify the
situation. Building an addition to a repair shop, the original build
ing being an instrumentality used in interstate commerce, was held
to be within the act in Thompson v. Cincinnati, New Orleans & Texas
Pacific Railway Co. (p. 93); it may be noted also that in this case
the appellate court held that it was proper to require the plaintiff
to choose whether he would proceed under a State or Federal law, in
contrast with the Corbett case above. In Thomas v. Boston & Maine
Railroad (p. 103) also, an employee injured while removing a burned
DECISIONS OP COURTS AFFECTING LABOR.
31
portion of a roundhouse was held to be within the act; while in
Shanks v. Delaware, Lackawanna & Western Railroad Co. (p. 91),
a workman adjusting machinery in a locomotive repair shop was
held not to have any right to action. A brakeman injured while get
ting a tin cup for the use of the train crew was held within the pro
tection of the act (Baltimore & Ohio Bailroad Co. v. Whitacre,
p. 91), as was a laborer cleaning an ash pit in which ashes were
dumped by engines engaged both in interstate and intrastate com
merce (Grybowski v. Erie Bailroad Co., p. 94); while a workman
injured in cleaning stencils used to mark cars used in interstate com
merce was held not to be within the act (Illinois Central Bailroad
Co. v. Rogers, p. 95). A workman injured while clearing a wreck
(Southern Bailway Co. v. Puckett, p. 95), one engaged in the con
struction of a temporary bridge following a freshet (Columbia &
Puget Sound Bailroad Co. v. Sauter, p. 96), a trainmaster hauling
gravel for ballasting a new sidetrack which had been used in inter
state commerce (Clark v. Chicago Great Western Bailroad Co.,
p. 105), and a yard clerk engaged in general duties which took him
about the yards (Pittsburgh, Cincinnati, Chicago & St. Louis Bail
way Co. v. Farmers’ Trust & Savings Co., p. 115), were held to be
within the act. In the last-named case it was said that evidence that
duties of the injured man related daily to interstate cars was a suf
ficient basis for the conclusion without the necessity of proving what
he was doing at the particular moment. In Pecos & Northern Texas
Railway Co. v. Rosenbloom (p. 114), on the other hand, it was held
that in the absence of evidence as to what a yard clerk was doing at
the particular time when he was injured while walking through the
yards, the Federal statute would not be held to apply. A watchman
at a crossing whose duties related more to the public than to any
control of the movements of trains or other connection with their
operation, was held not to be within the act in Louisville & Nash
ville Railroad Co. v. Barrett (p. 113).
A brakeman uncoupling cars on a “ pick-up” freight train run
ning locally, but handling in part interstate freight, was held by
the Supreme Court of the United States to be within the act in
New York Central & Hudson River Railroad Co. v. Carr (p. 92);
while in Atchison, Topeka & Santa Fe Railway Co. v. Pitts (p. 97),
tho Supreme Court of Oklahoma ruled outside of the act a workman
injured while coupling an engine tender and a baggage car intended
to be connected with a train carrying in part interstate commerce.
A New Jersey court affirmed a judgment in favor of a fireman of a
locomotive which he was preparing to attach to an interstate train
(Tonsellito v. New York Central & Hudson River Railroad Co.,
p. 98).
32
BU LLETIN OP TH E BUREAU OP LABOR STATISTICS.
A watchman injured while pursuing trespassers on an interstate
train was held to be governed solely by the Federal statutes, as an
employee in interstate commerce, in Smith v. Industrial Accident
Commission of California (p. 98). Whether the shifting of cars
and engines not in immediate use constituted interstate commerce
was passed upon in Pennsylvania Railroad Co. v. Knox (p. 99),
a workman fatally injured while assisting in the moving of trains
being moved intrastate without evidence of destination being held
to be outside the act. An opposite conclusion was reached in the
case of a fireman on an engine drawing only empty cars in Thomp
son v. Wabash Railroad Co. (p. 100); in this case, however, the
cars were moving interstate. In Moyer v. Pennsylvania Railroad
Co. (p. 107), it was held that the nonuse of a car for two or
three days for any form of transportation did not destroy its inter
state character when its last use was in interstate traffic and the
next subsequent use was of the same nature. Hardly reconcilable
with this were the conclusions in McAuliffe v. New York Central
& Hudson River Railroad Co. (p. I ll), in which a freight con
ductor whose train consisted at the time of an engine and caboose
only was injured by collision with an interstate train; his movement
was interstate, and he had just previously been engaged in interstate
transportation, but it was held that he was not at this time engaged
in commerce, and was therefore not protected by the act. A mem
ber of a switching crew injured while the switch engine was haul
ing no cars but was passing to another track in order to continue
switching in which both interstate and intrastate cars were being
handled was held to be within the act in Pittsburgh, Cincinnati,
Chicago & St. Louis Railway Co. v. Glinn (p. 110).
A yard conductor moving cars of coal from without the State to a
dealer’s private track was held to be within the act in Pennsylvania
Co. v. Donat (p. 105). In Harrington v. Chicago, Burlington &
Quincy Railroad Co. (p. 108) a switchman was injured while running
cars of coal to a storage track for the use of railroad locomotives en
gaged in both interstate and intrastate commerce. The Federal act
was held not to apply on the ground that the coal had not yet taken
on any definite interstate character. An opposite conclusion was
reached in circumstances quite similar in Barlow v. Lehigh Valley
Railroad Co. (p. 110), though in the latter case it was set forth that
the coal had some days previously come from outside the State in
which the injury occurred. This accords also with the decision in
Kamboris v. Oregon-Washington Railroad & Navigation Co. (p. 109),
in which a workman engaged in shoveling coal into pockets or chutes
from which tenders of engines engaged in both interstate and intra
state traffic would be supplied was injured. A judgment in favor of
a miner mining coal for the use of a railroad company’s engines was
DECISIONS OP COURTS AFFECTING LABOR.
33
reversed by the United States Circuit Court of Appeals in Delaware,
Lackawanna & Western Railroad Co. v. Yurkonis (p. 102), on the
ground that merely mining coal is not interstate commerce, regard
less of the fact that the company on whose engines it would be used
was itself engaged in interstate commerce.
A mechanic repairing in a roundhouse an engine used largely in
switching interstate cars was held to be within the Federal statute in
Southern Pacific Co. v. Pillsbury (p. 106). A similar conclusion was
reached as to a section foreman engaged in loading old rails on a flat
car, where such rails had been replaced by new ones on a track used
in interstate commerce (Cherpeski v. Great Northern Railway Co.,
p. 112). An incidental feature of interest that came up in this case
was as to the question of the privilege of physicians who have ex
amined employees in connection with a system of medical inspection
adopted by their employers; it was held that they might be examined
as to the facts discovered by them, since there was no intention that
the persons examined by them should be regarded as patients.
EFFECT OF COMPENSATION LAWS.
A few cases decided under the liability laws were found to be closely
related to cases under the compensation statutes of the States. In
Behringer v. Inspiration Copper Co. (p. 120), the court below had
regarded the complaint as insufficient because it did not state that
the employer and employee had disaffirmed the provisions of the
compensation act of Arizona. The supreme court of the State, how
ever, held that this was matter of defense only, and pointed out that
the constitution required the retention of the privilege of choice with
the injured employee to settle under the compensation law or by lia
bility proceedings, so that any attempt of the legislature to limit
recovery to compensation would be ineffective. In Kamy v. North
western Malleable Iron Co. (p. 68), it was pointed out that the
failure of an employee to accept the compensation act which his
employer had elected to adopt as provided under the Wisconsin
statute left the employer with the common-law defenses available,
and a judgment below in the plaintiff’s favor was reversed. In
Shinnick v. Clover Farms Co. (p. 69), it was held that since the
New York statute made no provision for disfiguring injuries not
producing disability, an action for damages would lie in such a case.
MISCELLANEOUS.
The rights of a seaman to suitable medical treatment were con
sidered in North Alaska Salmon Co. v. Larsen (p. 119), in which
recovery was allowed for the failure of the company either to prop
erly treat the injury by its own physician or to send the seaman ashore
for the treatment. The status of an employee of an alleged con260710—Bull. 189—16----- 8
34
BU LLETIN OF TH E BUREAU OF LABOR STATISTICS.
tractor was passed upon in Lehigh Valley Coal Co. v. Yensavage
(p. 69), the court holding that where miners were employed by the
piece and hired their assistants, all were employees, and the rule of
independent contractors did not apply. Violation of a statute in
running a train above a prescribed speed through towns was held to
be negligence in Illinois Central Railroad Co. v. Ford (p. 71), the
court holding that the statute was available for the benefit of em
ployees of railroad companies as well as for the public under the
liability statute of Mississippi.
The liability of the mine foreman appointed tinder the statutes of
West Virginia for defective electrical appliances was passed upon
in Crockett v. Black Wolf Coal & Coke Co. (p. 76); the court held
the employer liable, stating certain limitations as to the exclusive
liability of the foreman for defective conditions.
As setting forth in brief a statement of the common-law defenses
of fellow service and assumed risks, a statement of a Georgia court
is reproduced in Kligo v. Rome Soil Pipe Manufacturing Co.
(p. 306). Refusal to permit a sick employee to leave the store till
the close of the day, thus aggravating her illness, was held to con
stitute actionable negligence in Keefe v. Straus (p. 310).
WORKMEN’S COMPENSATION.
CONSTITUTIONALITY OF STATUTE.
The question of constitutionality arose in a number of cases, in
some as the main issue, and in others in a more incidental form.
In Wheeler v. Contoocook Mills Corporation (p. 200) objections were
raised to the law of New Hampshire on the ground that the taking
away of the common-law defenses and the methods of classification
used in the act were violations of constitutional principles, so that
the act was void; these objections were overruled, and the statute
distinguished from that of the State of New York declared unconsti
tutional in the Ives case; incidentally the court passed upon the
question of continuity of employment, holding that it was continu
ous during the interval between the completion of one task and the
entering upon another to which the employee was assigned. The
constitutionality of the Texas statute was considered in two cases
before the court of civil appeals of that State, the court in Memphis
Cotton Oil Co. v. Tolbert (p. 217) upholding the law as to all points
raised in the case; in Middleton v. Texas Power & Light Co. (p. 219),
however, that provision of the act which bars employees from any
right of action for damages when the employer has accepted the
law was held to be void. Much the same question as that considered
in the latter instance arose in a Michigan case, Mackin v. DetroitTimkin Axle Co. (p. 233), in which the employee claimed damages
DECISIONS OP COTJBTS AFFECTING LABOB.
35
from an employer who had accepted the act, but had given no notice
of the fact to the employee; various points of unconstitutionality
were charged, among others the abolition of the common-law de
fenses; this was held to be within the power of the legislature, and
the fact that the employee was presumed to know the law and to
have constructive notice of the conditions of his employment, and
had not given notice of his rejection of the act, was held to create
a situation in which the law could apply without conflict with the
principles of the constitution. More specific was the objection
raised against the Ohio statute in Porter v. Hopkins (p. 206), the
question involving the power of the legislature to make the law
applicable to municipalities and to divert taxes to new purposes in
calling for the payment of premiums therefrom; the contention that
this could not be done was, however, overruled.
The constitutionality of the New York law was before the court
of appeals of that State in Jensen v. Southern Pacific Co. (p. 221),
the particular contention being that it takes property without due
process of law, relying largely on the Ives case, in which an earlier
statute was declared unconstitutional; reference was made to the
fact that the constitution of the State had been amended (Nov. 4,
1913) since that decision was rendered, and that as to questions affect
ing the Federal Constitution the decision of the Supreme Court of
the United States would control, in the light of which the act was
upheld. The Iowa statute was sustained in Hunter v. Colfax Con
solidated Coal Co. (p. 225), against contentions that it interfered
with the right of contract generally, and denied due process of law,
etc. The present law of California is quite different from the origi
nal act, and its constitutionality was challenged in Western In
demnity Co. v. Pillsbury (p. 229); in this State also a constitutional
amendment had been adopted (Oct. 10, 1911), and the court upheld
the statute on much the same grounds taken in the New York case,
though indicating some additional grounds.
APPLICABILITY OF STATUTE.
The status of an employee unacquainted with the fact that his
employer had elected to accept the compensation act of another State
into which the workman had gone to perform service was consid
ered in Johnson v. Nelson (p. 236), the Supreme Court of Minnesota
holding that the Wisconsin statute declaring a presumption of
acceptance in the absence of notice governed the case, precluding an
action for damages. Under the Massachusetts statute an employee
injured by the negligence of a third person has an option to proceed
in damages against the negligent party or to claim compensation
from the employer, with the right of recovery remaining against
the third person for the benefit of the insurer; these provisions were
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BU LLETIN OP THE BUREAU OP LABOR STATISTICS.
construed in Turnquist v. Hannon (p. 236), and the status of the
parties defined.
The question of the exclusiveness of the compensation law of
Washington as a remedy for injury to an employee, even where that
injury is due to the negligence of third parties, is affirmed by the
Supreme Court of the United States in Northern Pacific Railway Co.
v. Meese (p. 246), the court also ruling that such a construction of
the act did not bring it in conflict with the provisions of the Federal
Constitution.
The question of the application of the act of Connecticut to em
ployers of less than five persons was discussed in Bayon <o. Buckley
(p. 205), and it was held that they were not excluded, even if put on
a somewhat different footing from other employers; the failure of
the employer to comply with the provisions as to security of payment
was held not to relieve him from responsibility. The New York
statute was held to apply to a workman doing a specified piece of
work for a lump sum, the court refusing to hold him as an inde
pendent contractor (In re Rheinwald, p. 287). The same conclusion
was reached in another case (In re Powley, p. 238), the workman in
this case being the owner of a dredge which was operating under con
tract, but the injury being received while in service for the employer
otherwise. Under the Minnesota law also a workman getting out ties,
poles, and posts at piece rates was held to be under such supervision
as to prevent his being classed as an independent contractor (State
ex rel. Virginia & Rainy Lake Co. v. District Court, p. 239). The
fact of the unlawful employment in a hazardous occupation of a
minor of lawful working age was held not to take him out from un
der the compensation act of Wisconsin in Foth v. Macomber &
Whyte Rope Co. (p. 239). Under the Michigan statute it was held
that police officers are not employees, but officers of the city in which
they serve, and therefore not included under the law (Blynn v.
City of Pontiac, p. 240). In Rongo v. R. Waddington & Sons
(p. 241), the status of a teamster driving a team hired by his em
ployer to another person was considered, and the original employer
held responsible for compensation under the act. The fact that an
employee had made false statements as to his marital condition and
previous employment was held not to bar the right of his widow to
recover compensation under the New York statute in Kenny v. Union
Railway Co. (p. 241), the false representations having in no way
been related to the cause of death.
RELATION OF STATE TO FEDERAL LAWS.
In a number of cases the question arose as to the relation between
the State compensation laws and Federal statutes, some of them in
volving questions of admiralty, while in others the relation to the
Federal Interstate Commerce Act was considered. In a New York
DECISIONS OP COURTS AFFECTING LABOR.
37
case (In re Walker, p. 249), it was held that an injured person for
merly entitled to proceed at his option either in admiralty or tinder
the common law might make a claim nnder the compensation law,
which was a substitute for the common-law remedy. In Washington,
however, the supreme court of that State held in State ex rel.
Jarvis v. Daggett (p. 250), that since the State has no power to
modify the admiralty law or the rights of workmen under it, it
would not be presumed that the legislature had intended to grant
compensation in cases involving questions of admiralty, under the
law enacted by it. A decision by the Supreme Court of Errors of
Connecticut (Kennerson v. Thames Towboat Co., p. 251) accords
with the decision in the New York case noted above.
On the question of interstate employees injured without negli
gence of the employer, and therefore not entitled to sue under the
Federal railroad law, diverse decisions appear. Thus in Staley v.
Illinois Central Railroad Co. (p. 253), the Supreme Court of Illi
nois held the Federal statute exclusive as to the entire field of the
employees’ recovery; while the Supreme Court of New Jersey
(Rounsaville v. Central Railroad Co., p. 258) and the Supreme
Court of New York, Appellate Division (Winfield v. New York Cen
tral & Hudson River Railroad Co., p. 256), took the opposite posi
tion, ruling that as the Federal statute was restricted to cases of neg
ligence of the employer, injuries not due to such negligence were left
free for State action. The Federal statute was held not to apply to
the operation of a canal in the hands of an interstate railroad, and an
award was made of benefits under the compensation act of New
Jersey, in Hammill v. Pennsylvania Railroad Co. (p. 260). Another
decision in which the Federal statute was held not to apply was that
‘ of the New York Court of Appeals in Jensen v. Southern Pacific Co.
(p. 221), in which a longshoreman unloading a steamship was held to
be within the benefit of the act of the State, though the vessel was
owned by a railroad company. In Okrzsezs v. Lehigh Valley Rail
road Co. (p. 284), a provision of the New York statute that an em
ployee will be presumed to be within its provisions, in the absence of
substantial evidence to the contrary, was held to sustain an award in
favor of an employee injured while repairing a car that had been
used in both interstate and intrastate commerce. Another case under
this act (Fairchild v. Pennsylvania Railroad Co., p. 284) was affirmed
under circumstances where an intrastate train had just been relieved
of interstate baggage and a workman was killed while uncoupling the
empty cars.
EXTRATERRITORIALITY OF STATUTE.
The question of the relation of the laws of various States to each
other arises when workmen in the performance of their duties go
outside the State in which the contract of hiring was made.
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BU LLETIN OF TH E BUREAU OF LABOB STATISTICS.
This was one of a number of points involved in the case, West
Jersey Trust Co. v. Philadelphia & Beading Railway Co. (p. 285),
in which the Supreme Court of New Jersey made an award in behalf
of a claimant killed while engaged in interstate commerce, perhaps
himself willfully negligent, the injury occurring in another jurisdic
tion than that of the place of contract. An additional factor in
this case was a release by the injured workman prior to his death
and a further release by his widow on the receipt of a death benefit
from a relief association. The employee’s release had no effect on
her claims, and it was held that her own release was made as widow
and not as personal representative, in which status she sued in the
present instance. The most recent case in this group is that of Post
v. Burger & Gohlke (p. 247), in which it was held by the Court of
Appeals of New York that the law of that State governed in a case in
which the injury occurred in the State of New Jersey. A similar
conclusion was reached by the Supreme Court of Errors of Connecti
cut in Kennerson v. Thames Towboat Co. (p. 251), and by the Su
preme Court of New Jersey in Rounsaville v. Central Railroad Co.
(p. 258). It may be noted in passing that a contrary opinion was
rendered on this point by the Supreme Judicial Court of Massachu
setts in a case, In re American Mutual Liability Insurance Co.,
presented in Bulletin No. 152, p. 209.
HAZARDOUS EMPLOYMENTS.
Under specific phrases or provisions of the act it may be observed
that the New York law is by its terms restricted to “ hazardous em
ployments”—a term which involves necessarily, when considering
occupations other than those specifically named in the act, the de
termination of the question of hazard. The following were held to
be included in hazardous employments: The work of an employee
in an establishment in which plate glass was cut and beveled (McQueeney v. Sutphen & Hyer, p. 264); the operation of an elevator
(Wilson v. C. Dorflinger & Sons, p. 265), the elevator car being con
strued as a vehicle otherwise than on tracks; the duties of an em
ployee working as general utility man in a wholesale drug estab
lishment, where drugs were manufactured and medicines prepared
(Larsen v. Paine Drug Co., p. 261); and those of an employee of a
retail butcher, who was injured while grinding meat in an electric
meat chopper (Kohler v. Frohmann, p. 262). The following cases
were held to be excluded: A laborer harvesting ice for an employer
whose business was the preparation of foods (Aylesworth v. Phoenix
Cheese Co., p. 261); a janitor putting out a flag on top of a building
(Gleisener v. Gross & Herbener, p. 262); an assistant in a hotel in
jured while boning a leg of mutton (De la Gardelle v. Hampton Co.,
p. 263); and a shipper in a wholesale produce establishment injured
DECISIONS OF COURTS AFFECTING LABOR.
39
in the warehouse of his employer (Mihm v. Hussey, p. 265). In con
nection with the decision in the Wilson case, above, may be noted
that of the Supreme Court of Washington construing a law of that
State as not applicable to an elevator in a mercantile establishment,
the word “ elevator ” as used in the law being construed to relate only
to grain elevators or warehouses (Guerrieri v. Industrial Insurance
Commission, p. 242).
PROXIMATE CAUSE.
The connection between the accident and the alleged result was
considered in a Massachusetts case, In re Sponatski (p. 201), connec
tion being affirmed where a man injured by a splash of molten lead
into his eye became insane and threw himself from a window, with
fatal results, about one month later. In Poccardi v. Public Service
Commission (p. 203), the West Virginia court approved a claim for
the death of a man whose injury was a hernia requiring operation,
the immediate cause of death being heart trouble. Death from
typhoid fever resulting from the use of impure water furnished by
the employer was held to be a death by accident within the law of
Wisconsin (Yennen v. New Dells Lumber Co., p. 204). Ivy poisoning
of a railway section man, followed by blood poisoning, bronchitis,
congestion of the lungs, and death was held to warrant compensa
tion under the New York law in Plass v. Central New England Bail
way Co. (p. 203). In Milwaukee Coke & Gas Co. v. Industrial Com
mission (p. 202), the Supreme Court of Wisconsin affirmed an award
for the death of a man occurring some nine months after an injury
causing brief temporary disability, the court holding that there was
evidence to sustain the theory of a connection between the accident
and the death; another point involved in this case was the effect of
a release made by the injured workman on the claim of his widow
for benefits, the court holding that the two rights were independent
and that the employee was not able to affect the status of his wife’s
claim, which would arise in the event of his death. In Great Western
Power Co. v. Pillsbury et al. (p. 266), a slight abrasion was held to
be the cause of conditions resulting in blood-poisoning, entitling
to benefit payments for a period of several months; while in Kill v.
Industrial Commission (p. 266), the Wisconsin court disallowed a
claim where a workman lost bones of the hand and wrist from bloodpoisoning, the immediate exciting cause being the workman’s en
gaging in a boxing bout before complete recovery from an industrial
accident.
EVIDENCE.
The evidence required to sustain an award was considered in
Englebretson v. Industrial Accident Commission (p. 243), in which
the Supreme Court of California disallowed a claim where there
40
BU LLETIN OP TH E BUREAU OP LABOR STATISTICS.
was no competent evidence to support it, hearsay evidence being
rejected as inadmissible. Contrasted with this finding is that of the
Appellate Division of the Supreme Court of New York in Carroll v.
Knickerbocker Ice Co. (p. 244), in which “ slight evidence” and
“ slender items of evidence ” involving “ hearsay upon hearsay ” were
held to warrant a finding in favor of the claimant. The Supreme
Court of Wisconsin in Milwaukee Western Fuel Co. v. Industrial
Commission (p. 244) held that the presumption was against suicide
and in favor of accidental death, so that evidence to overcome that
presumption must be supplied by any person contesting it. The
Supreme Judicial Court of Massachusetts held that it was not enough
“ to show a state of facts which is equally consistent with no right of
compensation as it is with such right,” the burden of proof being on
the claimant to show facts definitely sustaining the claim (In re
Savage, p. 269).
COURSE OF EMPLOYMENT.
No question involves more constant consideration than that of
whether the injury arose out of and in the course of employment.
The affirmative was held in Dragovich v. Iroquois Iron Co. (p. 267),
where a workman suffered fatal injuries in an attempt at rescue; in
Kingsley v. Donovan (p. 269), in which a workman was allowed com
pensation for injuries received while cleaning, during work time,
his motorcycle used more or less in the business of the employer;
in State ex rel. People’s Coal & Ice Co. v. District Court (p. 270), in
which the driver of an ice wagon was killed by lightning striking a
tree under which he took shelter from a storm; in a case of death
from valvular heart trouble following unusual exertion! (In re
Fisher, p. 271); in a case of injury due to an attempt to make a key
from an unexploded dynamite cap, under an implied authority to
do certain work in which the key would be of service (State ex rel.
Duluth Brewing & Malting Co. v. District Court, p. 272); in the case
of a workman falling with fatal results in an effort to compel boys to
get off a wagon on which the workman was helping in the hauling
of goods (Hendricks v. Seeman Bros., p. 273); in a case of death from
heart failure where a cook on a lighter overexerted himself in an
attempt to rescue personal possessions from a sinking vessel (In re
Brightman, p. 274); in a case of death from shooting by an intruder
whom a superintendent had ordered from the premises of his em
ployer (In re Beithel, p. 274); and in the case of a foreman injured
by the assault of a workman whom he was attempting to compel to
obey orders (Western Indemnity Co. v. Pillsbury, p. 229).
Rulings adverse to claimants were made in De Yoe v. New York
State Railways (p. 268), where a motorman was killed by an auto
mobile after working time while going from the car barn to take a
DECISIONS OP COtTBTS AFFECTING LABOR.
41
car to go and have his watch tested, in accordance with a requirement
of the company that the watch should be regularly tested; in Smith
v. Corson (p. 271), in which a workman of limited physical capacity
undertook work that he had been forbidden to do, with fatal injury
resulting; and in Spooner v. Detroit Saturday Night Co. (p. 275),
where an engineer of a company from whom power was being ob
tained under contract volunteered to operate an elevator as an ac
commodation to employees of the leasing company.
In contrast with the opinion in the case, People’s Coal & Ice Co. v.
District Court, noted above, and decided by the Supreme Court of
Minnesota, is that of Klawinski v. Lake Shore & Michigan Southern
Railway C. (p. 270), in which the Supreme Court of Michigan held
that a railroad section man killed by lightning in a barn in which
he had taken refuge from a storm was not exposed to injuries arising
out of and in course of employment, so that no claim could be
allowed. Similar to the latter ruling is the position taken by the
Supreme Court of Wisconsin in Hoenig v. Industrial Commission
(p. 276), work on a dam being held not to constitute an exposure
substantially different from that of ordinary outdoor work. The
same court ruled in Northwestern Iron Co. v. Industrial Commis
sion (p. 277) that a workman warming himself between cars of
heated briquettes and suffering injuries from being run into might
claim compensation as for an injury arising out of employment.
An award as for an injury arising out of employment was made
in a case, City of Milwaukee v. Industrial Commission (p. 280), in
which the principal of a school was struck in the head by a basketball
which ruptured a blood vessel with fatal results; death occurred some
seven months after the injury, and the injured man was suffering
from arteriosclerosis, but the injury was held to be the proximate
cause of the death. That the course of employment continued dur
ing an interval in work due to a violent rainstorm was held in Moore
v. Lehigh Valley Railroad Co. (p. 282), in which a telegraph lineman
of the company who had sought refuge under a train of cars stand
ing near was injured by the unexpected movement of the cars. A
wagon driver and general assistant in a packing house making a
retail delivery on foot at the expiration of his day’s work, and falling
over an obstruction in the building in which he was making the de
livery, was held not to have suffered an injury arising out of his
employment, as anyone walking in the same way would have been
similarly exposed; it was also held that he was not at the time
engaged in a hazardous employment such as his regular duties might
have been considered (Newman v. Newman, p. 278). A teamster
putting up his horse at the close of his day’s work was held to be
within the act of the same State (New York) in Smith v. Price
(p. 282); so also was the superintendent of an amusement resort who
42
BU LLETIN OP TH E BUREAU OP LABOR STATISTICS.
assisted in an attempt to extinguish a fire a short distance from the
buildings of his employer, the exposure resulting in pneumonia and
death (In re McPhee, p. 281).
Playful assaults or “ horseplay ” were passed upon in two
cases. In De Filippis v. Falkenburg (p. 278) the Appellate Division
of the Supreme Court of New York held that the loss of an eye
from contact with a pair of scissors thrust through a crack in the
partition between toilet rooms was not an injury reasonably inci
dental to the service; while the Supreme Court of New Jersey
affirmed an award in favor of a claimant where a workman slipped
and fell while dodging a playful attempt to knock off his hat, the
fall resulting fatally, but this was reversed on appeal (Hulley v.
Moosbrugger, p. 279), the court of errors and appeals ruling that
the employer was not responsible in such cases.
BENEFITS.
The question of benefits was considered in cases involving both
amounts and methods of payment. In McCracken v. Missouri Valley
Bridge & Iron Co. (p. 208), a lump-sum award to the mother of a
deceased employee was contested unsuccessfully before the Supreme
Court of Kansas, the court stating vigorously its ground for affirming
such an award in the instant case; the method of computing an
amount due, and the construction ‘of the act on this point were also
discussed. Another case involving the determination of a wage
basis is that of Smolenski v. Eastern Coal Dock Co. (p. 217), where
a man irregularly employed at various rates of wages was held
entitled to compensation at the rate at which he was employed at
the time of the injury. In Fredenburg v. Empire United Railways
Co. (p. 210), concurrent awards for multiple injuries were reversed,
and the proper method of disposing of such a case indicated. In
State ex rel. Kennedy v. District Court (p. 212), the Supreme Court
of Minnesota reversed an award for separate injuries which made
in the aggregate an amount nearly equal to the amount for the total
loss of the injured member. An award for impairment of function
not measured by impairment of earning capacity was reversed by
the Supreme Court of Wisconsin in Northwestern Fuel Co. v. Leipus
(p. 211). The Supreme Court of Michigan restricted to the period
of total disability an award for injury of an eye which diminished
the vision between one-third and one-half, there being no loss in
wages after return to work following nine weeks’ disability (Hirschkom v. Fiege Desk Co., p. 214). Where an injury amounts to the
loss of a finger, it should be so compensated, and not disposed of
under a general clause permitting a larger award than for the com
plete loss by amputation, was the finding of the Supreme Court of
New York, Appellate Division, in Fineman v. Albert Manufacturing
DECISIONS OP COURTS AFFECTING LABOR.
43
Co. (p. 212). The Supreme Court of New Jersey held in Feldman
v. Br&unstein (p. 210) that an award must be made on the basis of
apparent existing conditions without presuming as to the possible
effects of an operation, though if the operation should take place and
the condition of the injured person changed, the decree might be
modified. In the case Floccher v. Fidelity & Deposit Co. of Mary
land (p. 214), paralysis resulting from injury so as to render the
hand practically useless was held to sustain an award for the loss
of a hand, evidence that an operation might improve conditions being
so slight as not to make it obligatory on the workman to undergo it.
The claim that an award should be limited to the aggregate of in
dividual awards for injuries to fingers was rejected in Rockwell v.
Lewis (p. 213), where it appeared that the sum of the injuries
amounted practically to the loss of the use of the hand, so that the
award should be for that loss rather than the smaller total of minor
disabilities. The minimum award permissible under the California
statute was considered in Massachusetts Bonding & Insurance Co. v.
Pillsbury (p. 213), the lowest rate mentioned in the statute being 10
per cent, but allowances “ intermediate to those fixed ” being author
ized; an award for 2f per cent of total disability was approved in
this case; another point involved was the right of the employee to
go to his family physician when he objected to the company physician
and found another, to whom he was sent, out of town.
In Wood v. Camden Iron Works (p. 284), a receiver was held
authorized to continue to make payments from the funds for opera
tive and administrative expenses to discharge a claim for compensa
tion existing against the corporation.
DISABIUTT.
The New Jersey Court of Errors and Appeals affirmed an award in
Maziarski v. George A. Ohl & Co. (p. 215), allowing benefits for tem
porary and permanent disability, computing items of injury to the
fingers separately, and increasing the actual amount reached by
computation, $1,875, to $5 a week for 30 weeks by reason of a pro
vision of the act fixing the latter sum as a minimum compensation.
The distinction between temporary and permanent disability was
discussed by the supreme court of the same State in Vishny v. Empire
Steel & Iron Co. (p. 215), and the proper method of computing bene
fits for serious injuries to both eyes was indicated. That the findings
of a board as to the continuance of disability will not be disturbed
even though there was evidence supporting different conclusions as
to the termination of disability was held in Spooner v. Estate of
P. D. Beckwith (p. 286).
Questions of total and partial disability were considered by the
Supreme Judicial Court of Massachusetts in a case in which a man
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BU LLETIN OP TH E BUREAU OP LABOR STATISTICS.
had returned to work after a period of total disability from injury
for which compensation was awarded, and had also received an
award for a period of partial incapacity; he was subsequently unable
to obtain work on account of his maimed condition, and was held
to be entitled to benefits for an indefinite period as for total in
capacity, subject to a subsequent right of review (In re Stickley,
p. 287). Inability to find work was a factor in another case before
the same court (In re Septimo, p. 290), in which, as above, the work
man had been employed for a time after his injury; the court ruled
that such employment was evidence that the employee was not wholly
incapacitated, but was not conclusive, and as he was not able to
secure employment, compensation was allowed as for total disability.
An injury destroying the hand of a man who had previously lost
one hand was held by the Supreme Court of New York, Appellate
Division, to entitle the injured man to an award for permanent total
disability in Schwab v. Emporium Forestry Co. (p. 288). In State
ex rel. Garwin v. District Court (p. 289), the Supreme Court of
Minnesota held that under the law in that State the loss of the
second eye, while producing permanent total disability, should be
compensated only as for partial disability; the Michigan law was
construed in the same way by the supreme court of that State in
Weaver v. Maxwell Motor Co. (p. 289).
DEPENDENCY.
The question of dependency was considered in Petrozino v. Amer
ican Mutual Liability Co. (p. 235), the nonresident alien beneficiaries
of a workman being held wholly dependent where they were unable
to earn their own livelihood, and contributions from other sources
were slight and uncertain. In Pinel v. Rapid Railway System (p.
235), it was held that a mother to whom no contributions had been
made by the deceased employee, and whom he was under no obli
gation to support until proceedings were brought, was not a dependent
under the Michigan statute. In Hammill v. Pennsylvania Railroad
Co. (p. 260) the sister of a deceased workman was held to be a de
pendent on a showing that it was his custom to spend from Saturday
night until Monday morning at her home, paying her $5 per week.
WILLFUL MISCONDUCT.
Willful misconduct was passed upon by the courts of three States
under the laws of which such conduct is a bar to compensation. In
Gignac v. Studebaker Corporation (p. 291), carelessness in crossing
a railway track resulting in injury was characterized as gross neg
ligence, but not constituting willful misconduct under the laws of
that State. A similar conclusion was reached in a New Jersey case,
Taylor v. Seabrook (p. 292), where an employee digging in a cellar
DECISIONS OP COURTS AFFECTING LABOR.
45
was injured by falling material. A California court held in Great
Western Power Co. v. Pillsbury (p. 292) that failure to wear rubber
gloves, in disobedience of personal directions repeatedly given, was
such “ serious and willful misconduct” as to bar a claim for com
pensation.
PROCEDURE.
In the last-named case above it was held also that the court had
power to set aside awards which had been made without warrant
in the evidence. Ah employer was denied the right to appeal in
Crockett v. State Insurance Fund (p. 286), since the New York law
gives the employer no right to appeal when insurance is placed with
the State fund, thus furnishing him absolute protection.
EMPLOYERS’ LIABILITY INSURANCE.
In Frankfort Marine Accident & Plate Glass Insurance Co. v.
California Artistic Metal & Wire Co. (p. 812), the right of the
insurance company to inspect the books of the metal company in
order to ascertain the amount of a sum claimed to be due for addi
tional premiums was upheld on the ground of the existence of a
fiduciary relation between the parties, giving grounds for an action
in equity. It was held in Little Cahaba Coal Co. v. Aetna Life In
surance Co. (p. 313) that an insurance company whose contract lim
ited recovery on a single judgment to $5,000 could not be made to
pay additional costs in excess of that sum occasioned by an appeal
for which the action of the insurance company was responsible.
The insurance contract usually excludes liabilities for employees
employed unlawfully. The statute of Michigan forbids the em
ployment of a female under the age of 21 in an occupation dangerous
to life or limb. It was held in Great Lakes Laundry Co. v. Aetna
Life Insurance Co. (p*. 122) that a machine in the use of which no
accident had occurred for 10 years was not a dangerous machine
within the meaning of the act, so that the insurance company was
liable for the loss. In Oxford Coal Co. v. Fidelity & Casualty Co. of
New York (p. 121), the insuring company was successful in resisting
a demand for payment on a policy where the insured person was a
minor under 18 years employed as engineer on a private coal road,
the court holding that this was a railroad within the meaning of
the act forbidding employment of persons under 18 in such work.
RELIEF ASSOCIATIONS.
Two cases were passed upon by the Supreme Court of Indiana in
which the status of railway relief departments was considered. In
Baltimore & Ohio Railroad Co. v. Miller (p. 181), payments to a
member of a relief department were refused because he had recovered
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in a suit for damages, whereupon he sued for further benefits in ac
cordance with the contract with the department; it was held that the
Federal liability statute had invalidated the contract, so that it was
void in all respects. In the other case a contributor to a relief f imd
which had been maintained in violation of a State statute was per
mitted to recover from that fund the amounts of his contributions
thereto, he having left the employment of the company (Baltimore &
Ohio Southwestern Railroad Co. v. Hagan, p. 182).
EMPLOYMENT OFFICES.
An unusual provision is contained in an initiative measure adopted
by the voters of the State of Washington in November, 1914, in that
the taking of fees by employment agencies from persons seeking em
ployment is forbidden; this act was held constitutional as a matter
of public policy in Wiseman v. Tanner (p. 125). The Supreme
Court of Michigan upheld the law of that State providing graduated
license fees according to the population of the cities, and authorizing
the commissioner of labor to revoke licenses for violations of law
(People v. Brazee, p. 123). The Washington statute above noted
was held in Huntworth v. Tanner (p. 123) not to apply to teachers’
agencies.
LABOR ORGANIZATIONS.
MEMBERSHIP.
Associations of employers and of employees are on the same footing
as voluntary associations seeking to secure by cooperation such condi
tions as the members may agree upon. That membership in such an
employers’ association is of value was held in Grassi Bros. v. O’Rourke
(p. 304). This value the courts will recognize, and in the case in hand
it was held that the expulsion was illegal, and restoration to mem
bership was directed, damages to be determined by an agreed method.
In Schouten v. Alpine (p. 323), the Court of Appeals of New York
recognized the principle indicated above, but reversed a verdict and
judgment awarding restoration of membership and damages on ac
count of errors in the procedure, and lack of evidence to sustain the
liability of certain of the parties charged. In People ex rel. Solomon
v. Brotherhood of Painters, etc. (p. 169), restitution of membership
was granted and damages allowed for the illegal expulsion of a work
man from an association incorporated outside the State, the court
holding that this fact did not place it outside the powers of the State
courts.
Efforts of State legislatures to secure employees in their rights
to membership in labor organizations by forbidding their discharge
for being or becoming members were declared unavailing as uncon
DECISIONS OP COURTS AFFECTING LABOR.
47
stitutional in Jackson v. Berger (p. 169) and Bemis v. State (p. 168),
in which the courts of Ohio and Oklahoma, respectively, accepted
the decision of the Supreme Court of the United States in the Coppage case as controlling.
LIABILITY OF MEMBERS, ETC
An echo of the noted Danbury Hatters’ case is found in Loewe v.
Union Savings Bank of Danbury (p. 16T), in which proceedings for
the recovery of judgment against members of labor organizations
were being considered, the present case involving the protection
of the rights of the banks in which members of unions had made
deposits. The liability of members for torts of other members was
passed upon in Hill v. Eagle Glass & Manufacturing Co. (p. 334),
the court holding that in the instant case there was no such authori
zation to commit the alleged illegal acts as would create any common
liability* In Tinkler v. Powell (p. 336), the liability of the treasurer
of a union was discussed, and the evidence in the case found not suf
ficient to support an action against him.
COLLECTIVE AND CLOSED-SHOP AGREEMENTS.
The matter of collective agreements was under consideration in
two cases. In Powers v. Journeymen Bricklayers’ Union (p. 325),
the Supreme Court of Tennessee affirmed the validity of such an
agreement and held a union obligated to reimburse an employer
with whom it had entered into such an agreement and had failed to
notify him of a reduction in the union rate of wages that he must
pay. In Underwood v. Texas & Pacific Ry. Co. (p. 156) , a rival union
unsuccessfully attacked an agreement between the company named
and another union, the contract being upheld as not a monopoly and
not otherwise against public policy. In this connection may be
noted the case Marinelli v. United Booking Offices of America (p.
56), in which the plaintiff, who conducted an employment office for
theatrical performers, alleged an unlawful combination under the
Sherman Antitrust Act by a number of theater owners; a blacklist
of performers and of theaters that did not conform to certain pre
scribed regulations of the combination was a part of the scheme,
the facts being found to bring the situation within the scope of the
Sherman Act. That a closed-shop agreement leading to the discharge
of a workman not a member of the union did not make the union
liable in damages to a discharged workman was held in Cusumano
v. Schlessinger (p. 333). The situation in which an employer found
himself as party to a closed-shop agreement after having canceled a
contract with certain members of a union is discussed in Rhodes
Bros. Co. v. Musicians’ Protective Union (p. 328) ; other members of
48
BU LLETIN OP TH E BUREAU OP LABOR STATISTICS.
the union were forbidden to serve, and the employer sought an in
junction to prevent interference with efforts to secure other mem
bers, the injunctive order granted by a lower court being reversed
by the Supreme Court of Rhode Island.
STRIKES AND PICKETING.
The legality of strikes and the bounds of union activities in con
nection therewith are discussed in Hardie-Tynes Manufacturing Co.
v. Cruse (p. 158), in which the Supreme Court of Alabama construed
and applied a State law forbidding picketing, and sustained an order
enjoining against interference with the company’s business by strik
ing employees. The question of picketing was also involved in the
case of Stoner v. Robert (p. 331), in which the Supreme Court of
the District of Columbia refused to grant an injunction against
peaceful picketing of saloons which continued to sell beer manufac
tured by breweries against which a strike and boycott had been de
clared.
Growing out of a strike, and involving an offense by persons not
immediately engaged therein, was the situation in State v. Payne
(p. 188), in which a miner from another State who had engaged in
strike activities was kidnaped and deported without legal authority,
the Supreme Court of Minnesota affirming a judgment of conviction
against the guilty parties.
INJUNCTIONS.
The cessation of objectionable acts was held in Commercial Bind
ing & Printing Co. v. Tacoma Typographical Union (p. 332) to be
sufficient reason for declining to issue an injunction against strikers
who had previously been guilty of threats and assaults.
The Court of Chancery of New Jersey granted an injunction to
prevent the consummation of a boycott against a company whose em
ployees had struck, their places however having been filled and the
business continued, the view being taken that there was a malicious
conspiracy to do injury, and not for the benefit of the unions or their
policies (A. Fink & Son v. Butchers’ Union, p. 336). In Auburn
Draying Co. v. Wardell (p. 161), the Supreme Court of New York
took similar fiction in a case in which secondary boycotts were at
tempted, in an undertaking to compel an employer to coerce his
workmen into joining a union. A similar conclusion is reached in
Garside v. Hollywood (p. 166), the statutes of New York on the sub
ject being referred to in this case as in the last preceding case. A
temporary injunction was continued by final judgment in Bossert v.
Dhuy (p. 337), where a union strike against a certain class of prod
ucts was directed against an individual firm with the idea of a
piecemeal achievement of the purpose of the strike.
DECISIONS OF COURTS AFFECTING LABOR.
49
CONTEMPTS.
The United States Circuit Court of Appeals had before it two
cases of contempt arising out of conflicts between labor and the mine
operators of West Virginia. In Oates v. United States (p. 314) the
judgment of contempt was reversed, and a new trial ordered on ac
count of errors in procedure and in the admission of certain evi
dence in the court below; while in Schwartz v. United States (p.
315), the judgment was affirmed, though it was admitted that the
injunctive order would have been modified if it had been properly
before the court for that purpose.
26071°—Bull. 189—16----- 4
TEXT, ETC., OF DECISIONS OF COURTS AFFECTING LABOR.
DECISIONS UNDER STATUTE LAW.
A
l ie n s —
P
r o h ib it io n
of
E
m plo ym en t
S t a t u t e —Heim
on
P
u b l ic
W
o r k s—
C on
et al. v. McCall et al., Supreme
Court of the United States (Nov. £9,1916), 86 Supreme Court Re
porter, page 78.—A bill in equity was brought to secure an injunc
tion restraining the Public Service Commission of the State of New
York from declaring certain contracts for the construction of por
tions of the subway system of New York City void and forfeited for
violation of provisions inserted in the contracts in pursuance of
chapter 31, section 14 of the Consolidated Laws of the State, which
has since been amended so as to make the employment of citizens
only a preference, and to allow the employment of aliens when
citizens are not available. The law as involved in the present case
was prohibitory as to the employment of aliens. The injunction
was sought on the ground that the statute was unconstitutional,
but the law was held to be constitutional by the trial court; its judg
ment was reversed by the appellate division of the Supreme Court
of New York, and the latter decision reversed by the court of ap
peals. The result of the last decision was to sustain the constitu
tionality of the law, and the judgment was affirmed by the Supreme
Court of the United States. Mr. Justice McKenna delivered the
opinion of this court, and said in part:
The basic principle of the decision of the court of appeals was that
the State is a recognized unit, and those who are not citizens of it
are not members of it. Thus recognized it is a body corporate, and,
“ like any other body corporate, it may enter into contracts and
hold and dispose of property. In doing this, it acts through the
agencies of government. These agencies, when contracting for the
State, or expending the State’s moneys, are trustees for the people of
the State. (Illinois v. Illinois Central Railroad Co., 146 U. S. 387,13
Sup. Ct. 110.) It is the people, i. e., the members of the State, who
are contracting or expending their own moneys through agencies of
their own creation.” (People v. Crane, 214 N. Y. 160, 108 N. E.
427.) [See p. 52.] And it was hence decided that in the control
of such agencies and the expenditure of such moneys it could prefer
its own citizens to aliens without incurring the condemnation of the
National or the State Constitution. “ The statute is nothing more,”
said Chief Judge Bartlett, concurring with the judgment of the
court, “ in effect than a resolve by an employer as to the character of
his employees.”
50
s t it u t io n a l it y o f
DECISIONS 0 7 COURTS AFFECTING LABOR.
51
Notwithstanding the simplicity of the determining principle pro
nounced by the court of appeals, its decision is attacked in many
and voluminous briefs.
The fundamental proposition of plaintiff in error Heim is that,
assuming that section 14 applies to the subway construction con
tracts in question, it (the law) contravenes the provisions of the
Constitution of the United States (a) in that it violates the cor
porate rights of the city and the rights of its residents and tax
payers, (o) the rights of the various subway contractors with the
city, (c) the rights of aliens and citizens of other States resident in
New York, and (d) it is in violation of treaty rights.
Plaintiffs in error Cranford Co. and Flinn-O’Rourke Co. urged the
single ground of the unconstitutionality of the law and its violation
of treaties.
To sustain the charge of unconstitutionality the fourteenth amend
ment is adduced and the specification is that the law abridges the
privileges and immunities of the contractors and those of their
alien employees in depriving them of the right of contracting for
labor, and that the State of New York, by enacting and enforcing
the law, deprives employers and employees of liberty and property
without due process of law, and denies to both the equal protection
of the law.
The treaty that it is urged to be violated is that with Italy, which,
it is contended, “ put aliens within the State of New York upon an
equality with the citizens of the State with respect to the right to
labor upon public works ” ; and that Congress has fortified the treaty
by section 1977 of the Revised Statutes (Comp. Stat. 1913, sec.
3925)—a part of the civil-rights legislation.
The contentions of plaintiffs in error under the Constitution of
the United States and the arguments advanced to support them were
at one time formidable in discussion and decision. We can now
answer them by authority. They were considered in Atkin v. Kansas
(191 U. S. 207, 24 Sup. Ct. 124 [Bui. No. 50, p. 177]). It was there
declared, and it was the principle of decision, 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 munici
palities.” And it was said: “ No court has authority to review its
action in this respect. Regulations on this subject suggest only con
siderations of public policy. And with such considerations the
courts have no concern.
This was the principle declared and applied by the court of appeals
in the decision of the present case. Does the instance of the case
justify the application of the principle? In all particulars except
one the case was the prototype of this. There the hours of labor were
prescribed; here the kind of laborers to be employed. The one is
as much of the essence of the right regulated as the other, that is,
the same elements are in both cases—the right of the individual em
ployer and employee to contract as they shall see fit; the relation of
the State to tne matter regulated; that is, the public character of
the work.
The power of regulation was decided to exist whether a State
undertook a public work itself or whether it “ invested one of its
52
BU LLETIN OP TH E BUREAU OP LABOR STATISTICS.
governmental agencies with power to care ” for the work, which, it
was saidj “ whether done by the State directly or by one of its instru
mentalities,” was “ of a public, not private, character.” (See also
Ellis v. United States, 206 U. S. 246, 27 Sup. Ct. 600 [Bui. No. 71,
p. 361].) The contentions of plaintiffs in error, therefore, which are
based on the fourteenth amendment, can not be sustained.
Are plaintiffs in error any better off under the treaty provision
which they invoke in their bill? The treaty with Italy is the one
especially applicable, for the aliens employed are subjects of the
King of Italy. By that treaty (1871) it is provided:
“ The citizens of each of the high contracting parties shall have
liberty to travel in the States and Territories of the other, to carry
on trade, wholesale and retail, to hire and occupy houses and ware
houses, to employ agents of their choice, and generally to do any
thing incident to, or necessary for trade, upon the same terms as the
natives of the country, submitting themselves to the laws there estab
lished. The citizens of each of the high contracting parties shall
receive, in the States and Territories of the other, the most constant
protection and security for their persons and property, and shall en
joy in this respect the same rights and privileges as are, or shall be,
granted to the natives, on their submitting themselves to the condi
tions imposed upon the natives.”
Construing the provision of 1871, the court of appeals decided
that it “ does not limit the power of the State, as a proprietor, to
control the construction of its own works and the distribution of
its own moneys.” The conclusion is inevitable, we think, from the
principles we have announced.
From these premises we conclude that the labor law of New
York and its threatened enforcement do not violate the fourteenth
amendment or the rights of the plaintiffs in error thereunder, nor
under the provisions of the treaty with Italy.
A l ie n s — P r o h ib it io n o p E m p l o y m e n t o n P u b l ic W o rk s — C o n s t iT u n o N A L irr o p S t a t u t e —People
v. Crane, Court of Appeals of New
York (Feb. 25, 1915), 108 Northeastern Reporter, page 1$7.—This
case involves the validity of the same statute discussed in the fore
going case. Crane had been convicted of employing aliens in work
on a catch basin connected with the sewer system of the Borough of
Manhattan, which conviction had been reversed by the appellate di
vision of the supreme court on the ground that the law in question
was unconstitutional, but the court of appeals reversed this decision,
which view was also taken by the Supreme Court of the United
States. (This case, 36 Sup. Ct. 85, and Heim v. McCall, above.)
The principal arguments in favor of the law are stated in the
opinion of the Supreme Court, but incidental ones, noted by the
New York Court of Appeals, speaking by Judge Cardozo, may be
briefly quoted from:
The power of a State to discriminate between citizens and aliens
in the distribution of its own resources is sanctioned alike by deci
sions of the courts and by long-continued practice. Neither aliens
DECISIONS OF COURTS AFFECTING LABOR.
53
nor the citizens of other States are invested by the constitution with
any interest in the common property of the people of this State. It
has been held, therefore, that a State may deny to aliens, and even
to citizens of another State, the right to plant oysters or to fish in
public waters. [Cases cited.] It may restrict to its own citizens
the enjoyment or" its game. [Cases cited.] It may discriminate be
tween citizens and aliens in its charitable institutions, or in other
measures for the relief of paupers. It may make the same discrim
ination in the distribution of its public lands; its mines; its forests;
or other natural resources. It may deny to aliens the right to hold
or inherit real estate, except where the right has been secured by
treaty. The principle that justifies these discriminations is that the
common property of the State belongs to the people of the State,
and hence that, in any distribution of that property, the citizen may
bepreferred.
To defeat this law it must, therefore, be held that the constitution
gives to the State a narrower liberty of choice in the expenditure of
its own moneys than in the use or distribution of its other resources.
I can find no justification for the supposed distinction. The con
struction of public works involves the expenditure of public moneys.
To better the condition of its own citizens, and, it may be, to pre
vent pauperism among them, the legislature has declared that the
moneys of the State shall go to the people of the State. The equal
protection of the laws is due to aliens as to citizens. [Cases cited.]
But equal protection does not mean that those who have no interest
in the common property of the State must share in that property
on the same terms as those who have an interest.
The legislature is now empowered by the constitution to fix the
wages and salaries of all employees upon the public works. The
authority embraces the direct increase of expense by increasing
salaries beyond the minimum fixed by competition. It must also
embrace the indirect increase of expense by regulations of employ
ment tending to diminish competition.
This statute must be obeyed unless it is in conflict with some com
mand of the Constitution, either of the State or of the Nation. It is
not enough that it may seem to us to be impolitic or even oppressive.
It is not enough that in its making great and historic traditions of
generosity have been ignored. We do not assume to pass judgment
upon the wisdom of the legislature. Our duty is done when we
ascertain that it has kept within its power.
I f doubt exists whether there is a conflict between the statute and
the constitution, the statute must prevail. Mischief and hardship,
it is said, will follow the enforcement of this law. I f that is so, we
can not help it. To correct these evils, if they shall develop, will be
the province of legislation. The statute does not withhold from the
alien the rights secured to him by the constitution; and we must
enforce it as the law.
The judgment of the appellate division should be reversed, and
the judgment of conviction affirmed.
A lien s — R e s t r ic t io n s
S t a t u t e —Truax
on
E
m plo ym en t—
C o n s t it u t io n a l it y
of
v. Raich, Supreme Court of the United States
(Nov. 1, 1915), 36 Supreme Court Reporter, page 7.—Mike Raich
54
BU LLETIN OP TH E BUBEAU OF LABOR STATISTICS.
had procured in the District Court of the United States for the Dis
trict of Arizona an injunction to prevent the enforcement of the anti
alien law of Arizona. This was an initiated act, forbidding any
employer of more than five workers to employ less than 80 per cent
qualified electors or native-born citizens of the United States. From
the order of the court below (219 Fed. 273), this appeal was taken,
with the result that the act was held unconstitutional, and the order
affirmed.
Raich was an unnaturalized alien, employed by Truax with eight
others, seven of whom were, neither native bom nor naturalized.
Threatened with loss of employment if the law in question was en
forced, and averring that there was no adequate remedy at law,
Raich began equity proceedings, with the results indicated.
The allegations of the bill were not controverted. The defendants
joined in a motion to dismiss upon the grounds (1) that the suit was
against the State of Arizona without its consent; (2) that it was
sought to enjoin the enforcement of a criminal statute; (3) that the
bill did not state facts sufficient to constitute a cause of action in
equity; and (4) that there was an improper joinder of parties, and
the plaintiff was not entitled to sue for the relief asked.
The opinion of the Supreme Court first removed the first objection
to the bill, citing numerous cases. It is also held that a court of
equity may restrain criminal prosecutions under unconstitutional
enactments, when the prevention of such prosecutions is necessary to
safeguard rights of property; that the right of employment is such
a right; and that neither the fact that the employment is at will, nor
that the employee rather than the employer is the complainant, is
material. Coming to the question of the constitutionality of the act,
and affirming the order granting an injunction, Mr. Justice Hughes,
who delivered the opinion of the court, said:
The question, then, is whether the act assailed is repugnant to the
fourteenth amendment. Upon the allegations of the bill, it must be
assumed that the complainant, a native of Austria, has been admitted
to the United States under the Federal law. He was thus admitted
with the privilege of entering and abiding in the United States, and
hence of entering and abiding in any State in the Union. Being law
fully an inhabitant of Arizona, the complainant is entitled under the
fourteenth amendment to the equal protection of its laws. The de
scription, “ any person within its jurisdiction,” as it has frequently
been held, includes aliens. “ These provisions,” said the court in Yick
Wo v. Hopkins, 118 U. S. 356, 6 Sup. Ct. 1064 (referring to the due
process and equal protection clauses of the amendment), “ are univer
sal in their application, to all persons within the territorial jurisdic
tion, without regard to any differences of race, of color, or of nation
ality; and the equal protection of the laws is a pledge of the protec
tion of equal laws.” [Other cases cited.] The discrimination defined
by the act does not pertain to the regulation or distribution of the
DECISIONS OP COUBTS AFFECTING LABOR.
55
public domain, or of the common property or resources of the people
of the State, the enjoyment of which may be limited to its citizens as
against both aliens and the citizens of other States. The discrimina
tion here involved is imposed upon the conduct of ordinary private
enterprise.
The purpose of an act must be found in its natural operation and
effect, and the purpose of this act is not only plainly shown by its
provisions, but it is frankly revealed in its title. It is there described
as “ an act to protect the citizens of the United States in their em
ployment against noncitizens of the United States, in Arizona.”
It is sought to justify this act as an exercise of the power of the
State to make reasonable classifications in legislating to promote
the health, safety, morals, and welfare of those within its jurisdic
tion. But this admitted authority, with the broad range of legis
lative discretion that it implies, does not go so far as to make it
.possible for the State to deny to lawful inhabitants, because of their
race or nationality, the ordinary means of earning a livelihood. It
requires no argument to show that the right to work for a living in
the common occupations of the community is of the very essence of
the personal freedom and opportunity that it was the purpose of
the amendment to secure. [Cases cited.] I f this could be refused
solely upon the ground of race or nationality, the prohibition of the
denial to any person of the equal protection of the laws would be a
barren form of words. The assertion of an authority to deny to
aliens the opportunity of earning a livelihood when lawfully ad
mitted to the State would be tantamount to the assertion of the right
to deny them entrance and abode, for in ordinary cases they can not
live where they can not work. And, if such a policy were permis
sible, the practical result would be that those lawfully admitted to
the country under the authority of the acts of Congress, instead of
enjoying in a substantial sense and in their full scope the privileges
conferred by the admission, would be segregated in such of the States
as chose to offer hospitality.
It is insisted that the act should be supported because it is not
“ a total deprivation of the right of the alien to labor; ” that is, the
restriction is limited to those businesses in which more than five
workers are employed, and to the ratio fixed. It is emphasized that
the employer in any line of business who employs more than five
workers may employ aliens to the extent of 20 per cent of his em
ployees. But the fallacy of this argument at once appears. If the
State is at liberty to treat the employment of aliens as in itself a
peril, requiring restraint regardless o f kind or class of work, it can
not be denied that the authority exists to make its measures to that
end effective. [Cases cited.] The restriction now sought to be sus
tained is such as to suggest no limit to the State’s power of excluding
aliens from employment if the principle underlying the prohibition
of the act is conceded. No special public interest with respect to any
particular business is shown that could possibly be deemed to support
the enactment, for, as we have said, it relates to every sort. The
discrimination is against aliens as such in competition with citizens
in the described range of enterprises, and in our opinion it clearly
falls under the condemnation of the fundamental law.
56
BU LLETIN OP TH E BUREAU OP LABOR STATISTICS.
A n t it r u s t
A c t — M o n o p o l ie s — R e s t r a i n t
l i s t — T h e a t r i c a l P e r f o r m e r s —Marinelli
of
T ra d e — B la c k
v. United Booking Offices
of America et al., United States District Court, Southern District,
New York {July 31, 1914) ,
Federal Reporter, page 165.— H . B .
Marinelli (Ltd.) brought action at law for damages against the
company named and a number of other defendants. The latter
were alleged to have destroyed the plaintiff’s business by illegal
combination in violation of the Sherman Antitrust Act. The indi
vidual defendants were owners of many vaudeville theaters in the
United States, roughly arranged in two circuits, an eastern circuit,
which, together with other theaters, is known as the Keith circuit;
and a western circuit, which together with theaters owned by other
parties comprises what is known as the Orpheum circuit. The per
formers in these theaters remain in a theater not more than one
week, and are usually booked under a contract which requires them
to pass from one theater and from one State to another, taking with
them paraphernalia and stage properties. The two corporations
named as defendants were booking agents for the two circuits,
securing performers to travel about the whole or part of each circuit,
and, in general, acting as agents for the managers or owners.
The plaintiff, which maintained offices in London, Paris, and
Berlin, as well as in New York, acted as a sort of clearing house
between performers and managers and as agents for the former in
securing contracts and in arranging for their entrance into the
country, the transportation of their apparatus, etc.
It was alleged that the defendants entered into a combination
or conspiracy in restraint of their own business. The eastern thea
ter owners were not to employ anyone not booked through the
eastern booking corporation, which was not to act for any theater
which employed another booking agent. They were to procure the
assent of the other theaters in the Keith circuit to the plan. All
were to blacklist performers who played outside the two circuits,
and also blacklist theaters that disregarded the blacklist of play
ers. No one was to be employed who had as a representative any
person who obtained employment for a performer outside the cir
cuits, and theaters who employed such performers were put under
the ban. Such representatives also were blacklisted. Similar alle
gations were made as to the western circuit, and it was further
alleged that the defendants blacklisted the plaintiff, sent out notices
to that effect, and destroyed his business.
The court went at length into the question whether the interstate
commerce features of the defendants’ business were sufficiently
prominent, and the results of their acts affected that commerce to
such a degree as to bring the matter within the scope of the Sherman
Act; the decision was that the act applied.
DECISIONS OP COUBTS AFFECTING LABOR.
57
The court also held that the combination was one in restraint of
trade, overruled a demurrer to the complaint, and required that an
answer be filed.
Ruffner v. Jamison Coal <6 Coke Co., Supreme Court of Pennsylvania
(Jan. 2,1915), Atlantic Reporter, page 1075.—The plaintiff in this
case alleged that assault and battery had been committed upon him
on-May 9, 1911, by certain policemen or peace officers employed by
the company named. These officers were appointed by the court of
quarter sessions on petition of 25 citizens, under chapter 156 of the
Public Laws of 1889, but, there being no provision for their pay in
the act, they were paid by the coal company. The plaintiff therefore
claimed that the wrongful acts of which he complained were done
by the policemen not in their public capacity, but as employees of
the company, and that it was liable for such acts. Judge Moschzisker, in delivering the opinion of the supreme court, adopted the
views of the court of common pleas of Westmoreland County, re
jecting the contentions of the plaintiff, and quoted largely from the
opinion of Judge McConnell of that court. The following is a part
of this quotation:
The testimony of G. U. Shaw, relied on to show that the deputies
were not such officers, but were the mere servants of the defendant,
does not sustain that contention; but is to the effect that what was
done was done in their capacity as officers, and not otherwise.
* * * Of course, the defendant company would be interested in
the movements of the officers, and the superintendent of the com
pany would frequently talk to Shaw and to the other officers, about
conditions in the trouble zone; but, according to Shaw, no attempt
was made by the superintendent to control the officers in the dis
charge of what they conceived to be official duties. * * * The
“ deputies” * * * were not performing services or supposed
services on the private property of the defendant, but on the public
highway, where the authority of policemen is usually exercised, and
wnere private interests yield the fullest submission to public control.
It may be that they mistakenly believed they as policemen were re
quired to prevent marches of a kind forbidden by some injunction
(not put in evidence), or it may be that they thought (mistakenly,
also) that, in the interest of peace and good order, they as policemen
should warn persons about to conduct marches * * * and ap
prise them of the terms of the injunction, in order that it be not vio
lated. Their mistaken ideas about what they should do in further
ance of supposed official obligations would not make their acts to be
acts of (private) servants. * * * Their acts are not to be con
sidered the acts of officers as long as they keep within the law, and
become the acts of (private) servants whenever they transcend those
limits. The acts done are referable to one of these relations—and
not to the other—and undoubtedly, taking all the evidence just as it
A
rm ed
G u ards— S ta t u s — L
ia b il it y o f
E
m p l o y e e s fo r
A
cts—
58
BU LLETIN OP TH E BUBEAU OF LABOR STATISTICS.
was given, they supposed (in apprising marchers of the injunction)
they were at the time exercising official functions. That being the
case, their conduct (in that respect) is to be measured by the stand
ards of official duty. * * * There exists no occasion or warrant
for deducing from the facts the implication of a contract (of private
employment), especially when to do so is to negative the official
capacity so clearly and circumstantially proven. * * *
Judge Moschzisker then concludes:
In substance, the foregoing presents a correct view of all the ma
terial matters before us for consideration; and we are not con
vinced of reversible error in the. disposition made of the case by the
learned court below. Of course, one in the -position of a public
police officer might at the same time act as a private servant, and,
if a wrong be committed while acting in the latter capacity, the
principle of respondeat superior applies; further, when there is a
lair dispute on the facts, the question of the exact capacity occupied
by the offender, at the time of the injury, is for the jury. But,
after going over the proofs and considering all the authorities cited,
we can not say the trial judge erred in holding the evidence at bar
insufficient in law to sustain a finding that the deputy constables
in the present case were acting as the private servants of the de
fendant company at the time of the alleged torts here complained of.
C o n tra ct
of
E m p lo y m e n t — F r a u d u l e n t
t i o n a l i t y o f S t a t u t e —Thomas
B r e a c h — C o n s t it u
v. State, Court, of Appeals of Ala
bama (Oct. 4> 1915), 69 Southern Reporter, page 908.—James
Thomas was convicted of entering, with intent to defraud his em
ployer, into a written contract for the performance of services, in
violation of an Alabama statute of 1911. It was alleged that he
obtained $60 from the employer in money, and failed to perform
his part of the agreement. As to the constitutionality of the act,
which was brought in question, Judge Pelham, who delivered the
opinion, said:
The object and purpose of the act, and the essence of its provi
sions, is to punish those who obtain money, or property^ by fraud
ulent misrepresentation or false, pretense, and is not simil&r, and
has not the corresponding vice of section 6846 of the Code of 1907,
of permitting involuntary servitude in violation of the Federal
Constitution and statutes prohibiting peonage, held to be invalid
by the United States Supreme Court. (U. S. v. Reynolds, 235 U. S.
133, 35 Sup. Ct. 86 [see p. 177].)
It was held that although the respondent was a minor, and not
capable of making a binding contract, he was nevertheless guilty
of the crime charged, and the judgment was affirmed, the following
being a quotation from the opinion on this point:
The question is not one of being of the legal age to enter into a
contract, but of possessing the requisite guilty knowledge of the
wrongfulness of the act charged to authorize a conviction of crime,
DECISIONS OF COURTS AFFECTING LABOR,
59
and every person over 14 years of age charged with crime in this
State is presumed to be responsible for his acts.
C o n t r a c t of E m p l o y m e n t — F r a u d u l e n t B r e a c h — D efen se s —
E vid e n ce —Paschal v. State, Court of Appeals of Georgia (May 17,
1915), 85 Southeastern Reporter, page 358.—Harvey Paschal was
convicted in the superior court of Lincoln County of violation of
the Georgia labor contract act, in receiving an advance from one
Walton on account of labor to be performed, and failing to perform
the services contracted for. It was shown that at the time of the
advance from Walton, Harvey was under contract to one Butler to
labor for the same period for which he made the new contract, and
the trial judge was requested, and refused, to instruct that this was
an excuse for the failure to perform the contract with Walton. The
court of appeals held that such instruction had been properly re
fused, Judge Bussell, who delivered the opinion, saying on this
point:
The fact that one is already under contract to perform services
for another will not negative the presumption of fraudulent intent
in case he obtains advances from a third person upon a promise to
perform services for the latter for a period of time wholly or par
tially concurrent with that embraced in the contract previously
entered into by him, nor afford such an excuse, within the contem
plation of section 716 of the Penal Code, as would relieve one accused
of a violation of section 715 from performing the second contract.
So far from excusing one who is already under contract to perform
services for another from the imputation of a criminal fraudulent
intent, the making of a second contract would tend to magnify and
impress the presumption that he intended to defraud; and the gist of
the offense penalized by the labor contract act is the intent to defraud.
The judgment of conviction was reversed, however, because of two
other matters. The statute provides that a return of the money ad
vanced, with interest, at the time the labor is to be performed, is an
excuse. The court held that this special provision is not subject to
the general rule of law as to tenders, which requires an offer of the
exact amount due; and as it was in evidence that the accused had
made a tender of a general amount, “ what he owed him,” to Walton,
there was a ground for reversal. The other had to do with an in
struction to the jury in the trial court, which was calculated to give
the impression that “ satisfactory proof of the contract made by the
accused, the procuring thereon of money or other thing of value, the
failure to perform the services agreed to be performed, or failure to
return the money with interest, without good and sufficient cause,
resulting in loss and damage to the hirer,” made it absolutely neces
sary to convict the accused; whereas the statute provides only that
such proof “ constitutes presumptive evidence” of the intent to
defraud which is essential to conviction.
60
BULLETIN OF TH E BUBEAU OP LABOR STATISTICS.
E mployer
a n d E m p lo y e e — R i g h t t o D i s c h a r g e W i t h o u t H e a r
in g —C o n s t i t u t i o n a l i t y o f S t a t u t e —In
re Opinion of the Justices,
Supreme Judicial Court of Massachusetts (May 8,1915), 108 North
eastern Reporter, page 807.—The Senate of Massachusetts requested
the opinion of the justices of the supreme judicial court of that
Commonwealth as to the constitutionality of a proposed law pro
viding that no railroad employee should be disciplined or discharged
without opportunity for a hearing in the presence of the person
giving information concerning the conduct of such employee.
An answer signed by five justices holding the proposed statute
unconstitutional, is, omitting their statement of the substance of the
proposed statute, as follows:
As a corporation can have no first-hand observation and can ac
quire information as to incompetency, inefficiency or wrongful con
duct of its employees only through some person, the proposed stat
ute means that such a corporation never can discipline or discharge
any of its employees for misconduct, no matter how flagrant, except
on his own confession, without giving him a hearing in the presence
of the person affording the information, regardless of the fact
whether that person be an employee or an entire stranger. Although
the title of the bill refers to the “ use of detectives,” there is no such
limitation in the body of the bill. It applies broadly to all persons
who may furnish information, whether pure volunteers or others,
even though it be wholly beyond the power of the railroad to produce
the person furnishing the information, and even though that person
may be a stranger to the railroad and decline for any reason, or be
unable to confront the employee. The questions have been consid
ered, however, upon the broad principles involved in the proposed
bill, and not upon its details.
The fourteenth amendment to the Federal Constitution prohibits
the several States from depriving “ any person of life, liberty or
property, without due process of law.” The Supreme Court of the
United States is the final authority upon the scope and meaning of
these words. That court has said that:
“ The general right to make a contract in relation to his business
is part of the liberty of the individual protected by the fourteenth
amendment of the Federal Constitution. * * * The right to
purchase or to sell labor is part of the liberty protected by this
amendment, unless there are circumstances which exclude the right.”
(Lochner v. New York, 198 U. S. 45, 53,25 Sup. Ct. 539 [Bui. No. 59,
p. 340].)
Citations were also made from Adair v. United States, 208 U. S.
161, 28 Sup. Ct. 277 (Bui. No. 75, p. 634) and Coppage v. Kansas,
236 U. S. 1, 35 Sup. Ct. 240 (Bui. No. 169, p. 147) to the effect that
the liberty of making and terminating contracts by either party
thereto can not be interfered with.
Continuing, the court said:
It seems to us impossible to say that the right of an employer to
discharge an employee because of information affecting his conduct
DECISIONS OF COURTS AFFECTING LABOR.
61
in respect of efficiency, honesty, capacity, or in any other particular
touching his general usefulness, without first providing a hearing,
stands on a different footing or is less under the shield of the Con
stitution than the right held to be secured in the Adair and Coppage
cases. Our own constitution contains in several clauses similar guar
anties of the right to acquire, possess and protect property, which
doubtless have substantially the same meaning in this respect as has
the fourteenth amendment to the Federal Constitution. It has been
held that the right to acquire, possess and protect property secured
by our constitution “ includes the right to make reasonable contracts,
which shall be under the protection of the law. (Commonwealth v.
Perry, 155 Mass. 117, 28 N. E. 1126.) In the absence of a contract,
conspiracy, or other unlawful act, the right of the individual em
ployee to leave the service of a railroad without cause, or for any
cause, is absolute. The railroad has the correlative right under like
circumstances to discharge an employee for any cause or without
cause. It is an unreasonable interference with this liberty of con
tract to require a statement by the employer of the motive for his
action in desiring to discharge an employee, as this statute in sub
stance does, and to require him also as a prerequisite to the exercise
of his right, to enable the employee to make a statement in the pres
ence of someone else—a thing which may be beyond the power of
the employer. His freedom of contract would be impaired to an un
warrantable degree by the enactment of the proposed statute.
The proposed bill has no reference to the safety of the traveling
public. It applies only to one kind of common carrier and not to
others. It imposes a burden upon railroads from which all other
common carriers and employers of labor are free. It singles out
employees of railroads and confers upon them immunities and ad
vantages enjoyed by no others who work for individuals and corpo
rations, in a particular which has no relation to the kind of em
ployment engaged in by them. In both respects it tends to destroy
equality. It creates of railroad employees a specially privileged
class, and subjects railroads, as to a matter having no special rela
tion to their business as distinguished from other kinds of business,
to obstacles and burdens from which other employers are free. There
is strong ground for the conclusion that the selection of railroads as
the sole object of severely criminal legislation as to a matter of hav
ing no particular relation to the management of railroads would be
arbitrary and hence unwarrantable under the Constitution.
The proposed enactment was therefore held unconstitutional—a
conclusion in which the two remaining justices concurred, without
expressing an opinion on other portions of the argument, which
they held to be not necessary to consider in arriving at the conclu
sions reached.
E m p l o y e r a n d E m p l o y e e — S t a t e m e n t of C a u s e o f D is c h a r g e —
B l a c k l is t in g — C o n s t t t u t io n a l it t of S t a t u t e — St.
Louis South
western Railway Co. v. Griffin, Supreme Court of Texas {Dee. 16,
1914) , 171 Southwestern Reporter, page 70S.—Action was brought
62
BULLETIN OP TH E BUREAU OF LABOR STATISTICS.
by Thomas A. Griffin against the company named for refusal to fur
nish a true statement of the cause of his discharge from its employ
ment, as required by chapter 89, Acts of 1909. Griffin was success
ful in the district court of Dallas County, and the judgment was
affirmed in the court of civil appeals (154 S. W. 583, see Bui. No.
152, p. 37). On the present appeal by the company, the judgment of
the courts below was reversed, the statute being declared unconsti
tutional.
Judge Brown, who delivered the opinion of the court, after stating
the facts, said:
There is no conflict in the evidence to the fact of the employ
ment and discharge of Griffin. The question presented to this court
is the validity of a statute enacted by the legislature, as stated above.
Judge Brown then quoted from the act, and continuing said:
The act gives no right of action to the employee for failure to fur
nish “ the true statement,” but provides that the State may sue for
and recover a penalty of $1,000 for each failure to comply with the
law.
The citizen has the liberty of contract as a natural right which is
beyond the power of the Government to take from him. The liberty
to make contracts includes the corresponding right to refuse to ac
cept a contract or to assume such liability as may be proposed.
When Griffin entered the service of the railroad company tor an
indefinite time, the law reserved to him the right to quit the service
at any time without cause or notice to the employer. The railroad
company had the corresponding right to discharge him at any time
without cause or notice. The rights of the parties were mutual.
If the servant could quit without notice and the master could dis
charge him at will without notice, the effect of the statute in question
would be to preserve the servant’s unqualified right to leave the serv
ice without cause or notice, but to deny to the corporation the corre
sponding right to discharge without cause or notice.
The requirement that the corporation give to the discharged em
ployee, on his demand, a statement of the “ true cause” for his dis
charge, necessarily implies that there must have been a cause to
justify the dismissal, else, how could the “ true cause ” be given. The
value of the contract to each party consisted largely in the mutual
right to dissolve the relation or master and servant at will. The de
struction of that right in the corporation was a violation of its lib
erty of contract and a denial of the equal protection of the law, in
violation of the provision of the fourteenth amendment to the Con
stitution of the United States:
“ Nor shall the State deprive any person of life, liberty or prop
erty, without due process of law, nor deny to any person within its
jurisdiction the equal protection of the laws.”
But the statute did not stop at the destruction of the corporation’s
right to discharge the employee without cause, but provided that in
case the statement of cause should be refused, or if the cause stated
was not the “ true cause,” the State might recover from the corpora
tion a penalty of $1,000.
DECISIONS OP COtTBTS AFFECTING LABOB.
63
But the legislature did not stop with that provision, for under the
construction placed on the law by the court of civil appeals the dis
charged employee could recover damages by proving that the cause
stated was not true. The proof in this case was that the person who
discharged Griffin acted upon the report of another who had over
sight o f Griffin’s work, and there was no controversy that he acted
upon that report, but Griffin was permitted to prove that he was
capable and did good work, which denied to the employer the right
to determine the efficiency of the servant.
In St. Louis Southwestern Kailway Co. of Texas v. Hixon (104
Tex. 267,137 S. W. 343 [Bui. No. 96, p. 779]) this court held that the
law required a true statement of the fact which operated upon the
mind of the officer or agent who discharged the employee, but did
not require that the fact stated must have been true. Under this
most favorable construction, the law is no less in violation of the
constitutional right of equal protection of the law as secured by the
fourteenth amendment to the Constitution of the United States.
The eighth section of article 1 of the constitution of this State is
in this comprehensive and clear language:
“ Every person shall be at liberty to speak, write or publish his
opinions on any subject, being responsible for the abuse of that
privilege; and no law shall ever be passed curtailing the liberty of
speech or of the press. In prosecutions for the publication of papers
investigating the conduct of officers, or men in public capacity, or
when the matter published is proper for public information, the
truth thereof may be given in evidence. And in all indictments for
libels, the jury shall nave the right to determine the law and the
facts, under the direction of the court, as in other cases.”
The liberty to write or speak includes the corresponding right to
be silent, and also the liberty to decline to write. (Railway Co. v.
Brown, 80 Kans. 312,102 Pac. 459 [Bui. No. 84, p. 416]; Wallace v.
Bailway Co., 94 Ga. 732, 22 S. E. 579 [Bui. No. 2, p. 201]). To say
that one can be compelled at the instance of another party to do what
he has the constitutional liberty to do or not is a contradiction that is
not susceptible of reconciliation. In Wallace v. Railway Co., cited
above, the Georgia court tersely and clearly covers the entire ground
thus:
“A statute which undertakes to make it the duty of incorporated
railroad, express, and telegraph companies to engage in correspon
dence ox this sort with their discharged agents ana employees, and
which subjects them in each case to a heavy forfeiture, under the
name of damages, for failing or refusing to do so, is violative of the
general private right of silence enjoyed in this State by all persons,
natural or artificial, from time immemorial, and is utterly void and
of no effect. Liberty of speech and of writing is secured by the Con
stitution, and incident thereto is the correlative liberty of silence, not
less important or less sacred.”
We find no authority to the contrary, and argument could not add
force to the reasoning of those courts. The cases cited are sufficient
to require this court to declare the law in question void, but we
believe that we should point out other grounds which demand the
judgment of this court in support of our conclusion.
64
BU LLETIN 0 1 TH E BUBEAU OP LABOR STATISTICS.
Various points of objection were then enumerated, and were dis
posed of as follows:
The second, third, fourth, and fifth grounds of liability under the
statute, each is in violation of the natural right to speak or be silent,
or the liberty of contract secured by the constitution of this State
and of the United States. Of the great number of cases which have
settled these questions adversely to the provisions of the act of the
Texas Legislature, we have cited sufficiently, because there is no con
flict on the question.
The second and fourth grounds, as above stated, are most remark
able, for they invest the discharged employee with inquisitorial
authority as has not been intrusted to any officer, and would not
be enforced if granted to any officer, except it be in a legal proceed
ing.
There being no suit pending in court, a private person in his own
interest is empowered to demand, of a corporation which has dis
charged him, to disclose to him that corporation’s private corre
spondence, even the conversation which may have occurred between
its agents and officers and other people. Originality in devising
these provisions surely .must be accorded to the Legislature of Texas.
We have found nothing like them elsewhere. In the conflict be
tween labor and capital, the legislature has the limitation of its
authority in the Constitution of the United States and of the State,
and the courts have no authority, save to keep both parties within
the limits of their constitutional rights.
Beyond controversy, the act of the legislature is void, unless it
can be sustained as an exercise of the police power.
This phase of the question is then discussed, and the opinion con
cludes:
There can be no pretense that the act under examination deals
with “ the real needs of the people in their health, safety, comfort, or
convenience.”
To add cases as authority would be useless, for this is a funda
mental principle of free government and gains no force by the rep
etition of it by different courts. The subject of legislation in this
statute and its various provisions, as stated above, are purely per
sonal as between the employee arid the corporation, and do not di
rectly affect the public, in health, safety, comfort, convenience, or
otherwise.
The act is in violation of the constitution of this State and of the
United States, and is void.
It is ordered that the judgment of the district court and of the
court of civil appeals be, and the same are, reversed; and it is ordered
that judgment oe entered for the plaintiff in error.
E m p l o y e r a n d E m p l o y e e — S t a t e m e n t o p C a u se o p D isc h a r g e —
B l a c k l is t — L ib el —Dick
v. Northern Pacific Railway Co., Supreme
Court of Washington (Jime SO, 1915), 150 Pacific Reporter, page 8.—
J. R. Dick brought action against the company named for damages
by reason of alleged unlawful publication by the company of an
DECISIONS OF COURTS AFFECTING LABOR.
65
untruthful statement of the cause of the plaintiff’s discharge from
employment as engineer which prevented the plaintiff from pur
suing his chosen occupation. The first and second paragraphs of
the complaint, after amendment, allege the corporate capacity of
the defendant and the fact that the plaintiff was, on October 10,
1907, a capable locomotive engineer of good standing and repu
tation in the defendant’s employ. The third paragraph alleges
that on the said day the defendant railway company, through its
officers and agents, with intent to injure the plaintiff and for the
purpose of preventing him from seeking or securing other employ
ment and of ruining him in his profession as locomotive engineer,
caused to be printed and published the following, which they are
continuing to publish and circulate, and which is false, fraudulent,
and defamatory:
L iv in g s t o n , M o n t ., October10,1907.
Discharged Engineer Dick, Mr. J. It. Dick, Eng’r, Livingston.
D e a r S ir : This is to advise you that you are hereby discharged
from company’s service for intimidating company’s employees at
Whitehall on the 8th instant while in the performance of their
duties.
Yours truly,
[Signed]
-------- N e l so n ,
Master Mechamc.
The fourth paragraph refers to the custom of railroad companies
in the United States and Canada to require references from former
employees before giving exployment, and states that for that reason
a person once discharged, for no matter what reason, from the em
ployment of one company can not secure work with any other. The
fifth and last paragraph states that the plaintiff has continuously
since his discharge attempted unsuccessfully to procure employment
as an engineer, and that consequently he has been obliged to give
up his chosen occupation; and alleges damages in the sum of $50,000.
A demurrer to this complaint on the grounds that it failed to state
sufficient facts, and that the action was not commenced within the
time limited by law, was sustained, and the action dismissed, where
upon the plaintiff appealed. The supreme court reversed the decision,
and remanded the case for further proceedings. Judge Ellis wrote
the opinion, which declared that if the complaint could be sustained
as stating any cause of action it must be either “ (1) An action on
the case for a wrongful interference with the plaintiff’s pursuit of
an occupation or vocation, in which case specific damages as result
ing from the defendant’s conduct must be alleged; or (2) an action
for libel in which it must appear that the letter which it is alleged
was published by the defendant contained language actionable per se,
in which case no special damages as resulting therefrom need be
alleged.”
26071°—Bull. 189—16-----5
66
BULLETIN OF TH E BUBEAU 0 7 LABOR STATISTICS.
Under (1) the court held that no facts were stated in the third and
fourth paragraphs sufficient to show special damages resulting from
any unlawful act of the defendant. Quotations from the opinion
relating to the fifth paragraph are given to show the reasoning of
the court in regard to it:
Passing to the fifth paragraph, we find the allegations that the
plaintiff ever since his discharge has been seeking but has been unable
to secure employment, and that the defendant has and is continuing
to “ blacklist” and “ boycott” the plaintiff with all railroad com
panies in the United States and Canada, and “ has at times and still
does refuse to furnish the plaintiff with such a clearance as will en
able him to secure other employment,” and by reason thereof the
plaintiff has been compelled to abandon his chosen profession, etc.
This is the only allegation in the w'
’ *' ’
‘
fendant with any conduct which
plaintiff. This charge makes no reference to any of the acts set
forth in the two preceding paragraphs as a ground of damage. The
only direct charge of conduct on the defendant’s part resulting in
damage is found in the averment that the defendant refuses to
furnish the plaintiff with such a clearance as will enable him to
secure other employment.
In the absence of a statute imposing it, there is no legal duty on
the part of an employer to furnish a servant discharged or leaving
his service with any certificate of character. At common law what
ever moral obligation rests on a master to give to a servant a char
acter belongs to the imperfect class not enforceable by law. In the
absence of contract, or of custom implying a contract, or a statute
so requiring, the same rule prevails m the United States. In this
State there is no such statute. It may be assumed that if there were
any specific contract to that effect, or if there existed a uniform cus
tom on the part of all railroad companies to give a character to their
servants on the termination of the service, or, as it is termed in the
complaint, a “ clearance,” the custom would enter into every contract
of employment, and the refusal to give some form of clearance would
constitute an actionable breach of duty, but even in such a case the
custom must be uniform and must be alleged and proved. In the
complaint before us no such custom is alleged; no such contract is
set out. There being no statement of any fact raising the legal
duty to furnish such a clearance as that described, it follows that the
defendant has committed no actionable wrong in failing to furnish it.
Under this first phase of the case it only remains to inquire whether
the use of the words “ blacklist” and “ boycott,” in the fifth para
graph of the complaint, are sufficient, in the connection in which
they are used, to charge any definite actionable wrong.
The court then considered definitions of these terms, and concluded
that there were no allegations bringing the case within these defini
tions, the charges being mere conclusions and not issuable facts, and
continued:
We are constrained to hold that the complaint states no cause of
action on the case for damages for interference with or preventing
the plaintiff from pursuing his occupation or vocation.
DECISIONS OF COURTS AFFECTING LABOR.
67
Looking at the matter from the standpoint of libel, however, the
court found that a cause of action was stated sufficient to require an
answer, also that it appeared from the allegations that the statute
of limitations was not operative, and the judgment of the court
below in favor of the defendant company was reversed and the case
remanded for further proceedings.
E m p l o y e r s ’ L i a b i l i t y — C o n t r a c t W a iv in g L i a b i l i t y — Illinois
Central Railroad Co. et oil. v. Harris, Supreme Court of Mississippi
(Dec. 14, 1915), 67 Southern Reporter, page 54~—G . L . Harris
brought action against the railroad company named for damages for
personal injuries alleged to have been caused by the negligence of
his fellow servants. His foot was crushed, and a verdict was given
him in the sum of $5,000 in the circuit court of Madison County.
The statute law of the State provides that the company shall be liable
for negligence of its employees, and that contributory negligence
on the part of the injured person shall be a defense only in dimi
nution of the damages. One defense set up by the company was
an agreement to assume all risks of the service, which the plaintiff,
in common with all other employees, had signed as a condition of
obtaining employment. This was held invalid, as appears from the
following portion of the opinion, delivered by Judge Cook, dealing
with this phase of the case:
»
I f this contract is valid and binding on the employees of railroads,
it will have the effect of repealing some of the statutes of this State.
It will nullify the so-called comparative negligence section of our
code, so far as railroad employees are concerned. The contract in
voked in this case, if valid, releases the company from every con
ceivable act of negligence of any employee of the company no matter
how gross. We believe the policy of the State, reflected in its laws,
can not be bargained away in this manner. There has been a practi
cal abolishment of the common-law fellow-servant doctrine in this
State, so far as it may affect the servants of a railroad company of
the class to which plaintiff belonged. This was done for broad rea
sons of public policy, and we do not believe that the policy can be
nullified by contracts like the one here discussed.
E m p l o y e r s ’ L i a b il i t y — D e f e c t i n
S u it a b l e T ools—Wiley
P l a n t — F a il u r e to S u p p l y
v. Sol/way Process Co., Court of Appeals of
New York (July 13,1915), 109 Northeastern Reporter, page 606.—
Bert Wiley brought action against the company named for damages
for personal injury resulting in the loss of sight of an eyo. He was
employed in heading up barrels after they had been filled with bak
ing soda, and had to drive nails through the iron hoops and into
the staves. In doing this the nails would sometimes bend and fly
with considerable force, and the employee had asked the foreman
68
BU LLETIN OF THE BUBEAU OF LABOR STATISTICS.
to provide him with a punch, so that he could make the holes in the
hoops before driving the nails. This request was refused. Suit was
brought under the employers? liability act of the State of New York,
it being alleged that a punch as described is a part of the ways, works,
machinery and plant of the employer, and the failure to furnish it is
a defect in the same. The judgment of the lower court in favor of the
plaintiff was affirmed, the following being a brief quotation from the
opinion of Judge Chase on the point referred to:
I f the punch which the plaintiff wanted and solicited from the
foreman was a tool proper and requisite and reasonably necessary
for his use under all the circumstances, it was not the duty of the
plaintiff to furnish it, but the failure to provide it was the mult and
neglect of the defendant. A plant without tools and appliances
would be useless as such. A plant is defective when any part of it
is not in a proper condition for the purpose for which it was intended,
and it is also defective when it is so incomplete that the use of the
plant is dangerous by reason of the failure to furnish reasonably
necessary parts for the purpose for which it is used.
E m p l o y e r s ’ L i a b i l i t y — E ffe c t or W o r k m e n ’ s C o m p e n s a t io n
Act— E l e c t io n b t E m p l o y e r a n d F a il u r e to E l e c t b y E m p l o y e e —
Kamy v. Northwestern Malleable Iron Go., Supreme Cowrt of Wis
consin (Mar. 23,1915), 151 Northwestern Reporter, page 786.—The
employee Kamy was injured on June 5,1913, while in the employ of
the company named. This company had more than, five employees,
and less than 30 days before the accident had accepted the provisions
of the compensation act. The employee had failed to indicate
whether he elected to be subject thereto. After the injury he applied
for compensation, but the employer objected, and the commission de
cided in its favor. The liability action was then commenced, and at
the close of the trial the defendant requested a directed verdict on the
grounds of failure to show actionable negligence, and of assumed risk.
This motion was denied, the case submitted to the jury and a ver
dict of $3,000 rendered. On appeal, this judgment was reversed.
The court stated that, the employer having elected to accept the
compensation act and the employee having failed to do so, by the
plain terms of the act the employer was entitled to the benefit of the
defenses of assumption of risk, fellow service and contributory neg
ligence.
Referring to the circumstances of the injury, which was the result
of the plaintiff’s fellow employees letting go prematurely while they,
seven in all, were lifting a heavy piece of machinery into place in
an excavation, the court held that no negligence on the part of the
employer was shown, and that the plaintiff assumed the risk of such
an occurrence.
DECISIONS OP COURTS AFFECTING LABOB.
E m ployers’
L i a b il i t y — E f f e c t
of
W o rk m e n ’s
69
C o m p e n s a t io n
Act—I n j u r y n o t C a u s in g D is a b il it y —SMmdck v. Clover Farms
Co., Supreme Court of New York, Appellate Division, First Depart
ment {July 9,1915), 164 New York Supplement, page 423.—Thomas
Shinnick, while in the employ of the company named, lost a part of
an ear by a bite of a horse owned by it which was alleged to be
vicious, and brought action against the company under the em
ployers’ liability act. The company demurred to the complaint on
the ground that his remedy, if any, was under the workmen’s com
pensation act. It was not alleged that the employer had not pro
vided compensation “ according to the provisions of this article.”
Where that has not been done the compensation act allows an election
between procedure for compensation and a suit for damages. The
demurrer was overruled by the trial court, and this decision was
affirmed, the court holding that such cases, not being within the scope
of the compensation schedules, permit action as if the compensation
act were not in existence. Judge Scott, who delivered the opinion,
said in part:
If the schedules do not cover the injury suffered by an employee,
he does not fall within the purview of the act and can not claim com
pensation under it, for the act provides no scale or gauge by which
to determine what compensation should be provided. As to such an
injury, therefore, the right to recover remains as it was before the
act was passed.
We do not consider that such an injury to the ear as the plaintiff
complains of is of the same class of disability as those specified in
the schedules. The latter are all disabilities tending to impair the
efficiency of the injured person in the occupation in which he was
engaged, such as the loss of a hand or a finger, a foot or a toe. A
bitten or even a partially amputated ear would not have such a
tendency. Furthermore, the plaintiff’s right to recover upon the
facts stated in his complaint will not depend upon his employment
by defendant, for anyone not so employed, if injured by a vicious
animal, known to its owner to be vicious, would have an action for
damages. Our conclusion, therefore, is that the injury for which
plaintiff seeks to recover is not covered by the workmen’s compensa
tion act, and that the complaint states a good cause of action.
E m p l o y e r s ’ L i a b i l i t y — E m pl o y e e s —Lehigh Tattey Coal Co. v.
Yemamage, United States Circuit Court of Appeals, Second Circuit
{Nov. 30,1914), %18 Federal Reporter, page 547.—The employee in
this case sued the company named for damages for personal injuries
suffered in its coal mine, for which he secured a verdict of $25,000
in the District Court of the United States for the Eastern District
of New York. Yensavage was a miner’s helper. The company con
tended that under the system of work by which a miner is paid by
the piece and hires one or more assistants, the miner is an inde
70
BU LLETIN OF THE BUREAU OF LABOR STATISTICS.
pendent contractor, and the assistants are not employees of the
company. This contention was rejected, and the court affirmed the
judgment of the court below in favor of the plaintiff. Judge Hand,
who delivered the opinion of the majority of the court, said in part
as to this point:
In the case at bar the necessary conclusion of the defendant’s
theory, is that Terowsby, as well as the plaintiff, was not an em
ployee of the company, and that they owed him none of the duties
of a master to the servant. The company is therefore not in the
business of coal mining at all, in so far as it uses such miners, but
is only engaged in letting out contracts to independent contractors,
to whom they owe as little duty as to those firms which set up the
pumps in their mines. Thus what is confessedly only a means of
speeding up the miners and their helpers becomes conveniently an
incidental means of stripping from them the protection of the statute.
The laborers, under this contention are to have recourse as an em
ployer only to one of their own, without financial responsibility or
control of any capital; the miner is to take his chances in the mine
without the right to a safe place to work, or any other protection
except as an invited person. This misses the whole purpose of such
statutes, which are meant to protect those who are at economic dis
advantage.
E m p l o y e e s ’ L ia b i l i t y — E vid e n ce — I n s p e c t io n b t S t a t e F a c t o r y
I n spe cto r —Burk
v. Hobart Mid & Elevator Co., Supreme Ocncrt of
Oklahoma {June %9, 1915), 160 Pacific Reporter, page lfi8.—J. L.
Burk was injured by machinery while attempting to clean an oil cup
and put oil into it, and sued the company named, his employer, for
damages for the injuries sustained. Judgment in the district court
of Kiowa County was for the company, and the employee brought
error. The principal questions at issue on the appeal related to
the admission of certain evidence. The court held that, the machinery
about which the employee was working being complicated and not
easily understood, the testimony of an expert explaining the opera
tion of the machinery and how the same could have been safely oiled
had been properly admitted. It also held that evidence to the effect
that tho State factory inspector had inspected the mill was properly
admitted, and finding no error in the record, affirmed the judgment
for the defendant company. On the question of the admission of
testimony as to inspection Judge Brewer, who delivered the opinion,
said:
This mill, it seems, is such a manufacturing establishment as is
contemplated by and comes under the provisions of what is generally
known, in popular parlance, as the factory act, as found in article
4, chapter 42, Revised Laws 1910. The particular evidence objected
to was that the defendant was permitted to ask a witness whether
or not the State factory inspector had inspected the mill; such wit
ness answering that it had been inspected at different times, previous
DECISION’S OP COURTS AFFECTING LABOR.
71
to the accident, and while the witness was the head man employed
there. We think this evidence was admissible. It was not hearsay.
It was the mere statement of a fact that an officer of this State,
charged with the official duty of inspecting mills of this character,
had been at the place and had inspected the same. We think that
evidence of such an official inspection of the appliance causing the
injury is competent as showing an exercise of some degree of care
by the employer. The fact of inspection would not, of itself, have
absolved defendant from liability, or the duty of furnishing his
servant with reasonably safe machinery, appliances, etc., with which
and about which to work; but, as has been said, we think the fact
of an official inspection was a circumstance to go, with the other cir
cumstances and evidence in the case, to the jury for whatever it
might be thought to be worth.
In the case of Pardridge v. Gilbride (98 HI. App. 184), which was
a suit brought against an employer by a servant tor injury sustained
while operating an elevator^ it was held that evidence offered by de
fendant to show an inspection of the elevator by an official city in
spector was competent to show the exercise of some degree of care
on the part of defendant, but that proof of such inspection was not
conclusive evidence that ordinary care had been exercised.
E m p l o y e r s ’ L i a b i l it y — E xcessive S peed o f T r a i n i n V io l a t io n
S t a t u t e — Illinois Central Railroad Co. v. Ford et <d., Supreme
Court of Mississippi (Feb. 1, 1915), 67 Southern Reporter, page
lJfi.—Dave Ford, one of a section crew of the company named, was
killed in the town of Batesville, when a locomotive collided with a
hand car which he was assisting to remove from the track. The
engine was running at a speed, far in excess of 6 miles an hour, which
the engineer testified was 45 miles an hour. The plaintiffs, suing
for Ford’s death, received, judgment for $3,000 in the circuit court
of Panola County, and this was affirmed on-appeal. The defense
was that the statute forbidding the running of trains through cities,
towns and villages at a rate of more than 6 miles per hour was not
applicable to a case where the party injured was an employee. The
court pointed out that by chapter 194 of the Laws of 1908, every
employee of railroad corporations was given the same rights and
remedies for an injury suffered by him from the act or omission of
such railroad corporation or of its employees, as are allowed by law
to other persons not employed. It held that the intention of the
legislature to make a change in the fellow-servant rule is very clear
in this statute, and that the 6-mile statute was applicable in the case.
of
E m p l o y e r s ’ L ia b il it y — F ir e E scapes — O b s t r u c t io n o f A ccess —
Goetz v.
Duffy et al., Court of Appeals of New York (May 26, 1915), 109
L i a b i l i t y of O w n e r , L essee , a n d S u b l e a s in g E m p l o y e r —
72
BULLETIN OF THE BUREAU OF LABOR STATISTICS.
Northeastern Reporter, page 113.—This was an action by the ad
ministratrix of one Goetz who met his death by fire in a tenant
factory, the liability being due to the alleged negligence of the owner
and others in failing to provide fire escapes and keep them in avail
able condition. The trial court, in a decision affirmed by the ap
pellate division, dismissed the complaint as to both the owner, Duffy,
and her lessee, the Keep Shirt Co. This the court of appeals reversed
in part, and held that the responsibility of the owner, as well as that
of the sublessee, the Hetzel Co., who was the employer of the de
ceased workman, should be submitted to the jury. The Keep con
cern was lessee of an entire floor, the sixth and topmost of the build
ing, and subleased a comer of the floor to the Hetzel Co. In the
front corner of the Hetzel factory next to the hall was an office
separated from the workroom by a partition, and the only way out
of the workroom into the hall was through a door leading from the
workroom into the office and another leading from the office into
the hall. At the rear of the hall was a fire escape, while at the rear
of the workroom was a little window through the partition separat
ing the Hetzel and Keep premises.
On the 11th day of November, 1909, a fire suddenly broke out in the
Hetzel factory, in which celluloid combs were made, and of the seven
persons in the workroom at the time but two escaped death. Goetz
attempted to pass through the door leading into the office, but it was
a self-locking door, shut at the time, and he was unable to open it,
and he was burned' to death.
Having stated the foregoing facts, Judge Bartlett, who delivered
the opinion of the court, said in part:
I think the case presented a question for the jury, certainly as
against the owner. The question as to the liability of the tenants of
tne H. V. Keep Co. is more doubtful. The liability of the owner is
predicated upon sections 82 and 94 of the Labor Law (Cons. Laws,
ch. 31) as in force at the time of the fire. By chapter 461 of the Laws
of 1913 the labor law was extensively amended in relation to fire
escapes and exits in existing factories, the future construction of
factory buildings, and the limitation of the number of occupants in
factories.
The building in which the fire occurred was a tenant factory
within the meaning of the statute. Construed together, the effect
of sections 82 and 94 of the labor law was to require the maintenance
of a fire escape on the floor on which the Hetzel establishment was
located “ connected with the interior by easily accessible and unob
structed openings” ; and this irrespective of any demand by the com
missioner of labor or the superintendent of buildings, performing
like functions in the city of New York. [Cases cited.]
The obligation thus to maintain an accessible and unobstructed
fire escape was imposed upon the owner, and he could not avoid
liability by delegating the performance of the duty to others. A
fire escape was in fact provided; but there was evidence which should
DECISIONS OF COURTS AFFECTING LABOR.
73
have taken the case to the jury to the effect that access thereto was so
obstructed as to render it of little or no avail in such an emergent
as arose when the fire suddenly broke out in the Hetzel factory. It
needs no argument to show that a fire escape is useless if the way to
it is impassable.
It would seem that the immediate tenant who cooperated with the
sublessee to obstruct free access to the fire escape ought to be as
responsible as the owner of the building; but the language of the
statute appears to have been designed to relieve him from liability,
when it says that the owner “ instead of the respective lessees or
tenants” shall be responsible. Unlike the defendant Hetzel Co.
the defendant H. V. Keep Co. owed no common-law duty to the
plaintiff’s intestate. If liable at all it must be by virtue of some
statute; and the statutory provision relied upon to charge the owner
of the building imports in pretty clear language an intent to absolve
the tenant as such. The word “ instead as used in the sentence
quoted conveys the idea that while the owner is to be held respon
sible, the tenant is not.
For these reasons, I favor a reversal of the judgment as to the
owner but an affirmance as to the respondents Keep.
E m p l o y e r s ’ L ia b il it y — F ir e E scapes — V io l a t io n of S t a t u t e —
Amberg v. KirAey, Court of Appeals of New York (Apr. 13,1915),
108 Northeastern Reporter, page 880.—Anna L . Amberg, as admin
istratrix of W. Amberg, deceased, brought action against Charles
H. Kinley for damages for the death of Amberg through the
employer’s alleged negligence. The deceased was in the defendant’s
employ in a tannery, one of the buildings of which was a drying
loft. This was a wooden building 123 by 43 feet, and 3 stories high,
this last fact, however, being questioned by the defense. The ground
formed the floor of the first story, while the others had board floors.
It was about 16 feet from tan bark banked around the building
to the top story. On the second and third floors there were ventila
tors in each of the seven bents of the building, the ventilator open
ings being 8 feet wide and 3 feet high, on the level of the floor,
and each covered by a pair of shutters, which were fastened at the
top, and could be easily swung outward at the bottom.
On the day Amberg lost his life he and one Mott were at work
in the loft, taking from the first floor hides soaked with oil, loading
them on a truck, and conveying them to the third floor, where they
hung them on sticks over the beams of the ceiling to dry. At about
3 o’clock they took a truck loaded with hides and placed it in the
elevator. Then Mott went out into the yard for some purpose and
did not return for about 10 minutes, when he found the loft in flames.
It burned very rapidly, and was entirely consumed, Amberg’s body
being afterwards found on the ground under the place where they
had been hanging the hides, with the truck not far from it.
74
BULLETIN OF TH E BUREAU OF LABOB STATISTICS.
The principal ground on which the claim as to the employer’s
negligence was based was the failure to equip this building with
fire escapes, and questions arose as to whether these were required
by law on a building of this kind, and as to whether the failure
to provide them was the cause of the employee’s death. The appel
late division affirmed a judgment for the plaintiff.
At the time of the death of this employee, the provision of sec
tion 82 of the labor laws with regard to fire escapes on factories was
as follows:
Such fire escapes as may be deemed necessary by the commissioner
of labor shall be provided on the outside of every factory in this
State consisting of three or more stories in height.
Judge Cuddeback, who delivered the opinion of the court, stated
that it had been held in the case of Arnold v. National Starch Co.,
194 N. Y. 42, 86 N. E. 815, that the statute is mandatory, and that
the owner may not delay action until the directions of the commis
sioner of labor are given; also that there were no fire escapes on the
building in which the employee was burned. It was further held
that an instruction in the trial court was correct to the effect that
the building was in law a factory, that there was an absolute duty
to provide it with a fire escape, and that the only questions for the
jury were whether the failure was the cause of the accident, and
that of contributory negligence, citing Willy v. Mulledy, 78 N. Y.
310; also that the plaintiff need not prove negligence, because the
failure to observe the statute constituted a liability per se, this being
considered as an action to recover damages for the breach of a
statutory duty, and not one based solely on negligence, where the
violation of a statute or ordinance is simply evidence of negligence.
This last point Judge Cuddeback discussed at some length, and cited
many authorities.
The court finally held that there was sufficient evidence to warrant
a finding by the jury that the failure to provide fire escapes was the
cause of the death, and ruled in the plaintiff’s favor on a technical
point as to notice. The judgment in favor of the plaintiff was ac
cordingly again affirmed, five judges concurring in this decision,
while two dissented, one expressing his views in a dissenting opinion.
E m ployers’
L i a b i l i t y — G u a rd s
fo r
D an g e ro u s
M a c h in e r y —
P r a c t ic a b il it y o f G u a r d in g — O rder of I n d u s t r ia l C o m m is s io n —
Puls v. Chicago, Burlington & Quincy Railroad Co., Supreme Court
of Minnesota (Dec. 18, 1914), 150 Northwestern Reporter, page
175.—W. W. Puls brought action for personal injury received while
working for the company on a hand jointer. The negligence al
DECISIONS OF COURTS AFFECTING LABOR.
75
leged consisted in the knives of the jointer being dull and nicked,
and in a failure to guard the knives. Judge Dibell, who delivered
the opinion, said in part:
There is evidence that the knives were dull and nicked and that
their condition in this respect tended to throw or kick back the
boards. I f they were kicked back there was a likelihood that the
operator’s hands would come in contact with the knives. The evi
dence was such as to make a question for the jury upon the negli
gence charged.
Under authority of the statutes of Wisconsin the industrial com
mission made the following order assumed to be of statutory effect:
“All hand jointers must be equipped with safety cylinder heads
and a guard must be placed over the knives to protect the hands
of the operator.”
It defined “ guarded” as follows:
“ The term ^guarded ’ when used in these orders shall mean so
covered, fenced or inclosed that a person in the course of his em
ployment is not liable to come in contact with the point of danger
and be injured.”
The defendant complied so far as to use safety cylinder heads.
It did not place a guard over the knives. There is evidence that
it is practicable to do so. There is evidence that a guard of some
kind had at one time been over the knives. There was evidence that
it was impracticable. There was testimony on the part of the de
fendant tnat guards could not be placed over the Knives without
destroying the character of the machine as a jointer. The court
submitted the case to the jury substantially upon the theory that
the defendant was liable only in the event that it was practicable
to place a guard over the knives; and that it negligently failed so
to place guards. Upon the theory upon which the case was sub
mitted the questions of practicability and negligence were for the
jury.
It was also held that a certain witness testifying as an expert was
competent to so testify, and that the question of assumption of risk
had been settled by the verdict of the jury in favor of the plaintiff.
It was also held that a verdict for $2,000 was not excessive in the
case of a left-handed carpenter who lost a part of the little and third
finger of his left hand. The judgment was therefore affirmed.
E m ployers’
L i a b il i t y — G uard s
fo r
D an g e r o u s
M a c h in e r y —
S t e a m M a n g l e —Ronca v. Wendatt db Evans Co., Supreme Court
of New York, Appellate Division, Second Department (Jan. 15,
1915), 151 Neio York Supplement, page 257.—Fannie Ronca brought
action against the company named for damages for the loss of her left
hand through an injury received while in the employ of the company.
She was placing a napkin in a steam mangle, the article being first
placed upon a convex brass table and pushed under a felt-covered
roller 2 inches in diameter, whence it emerged to be taken up by
*76
BU LLETIN OF TH E BUREAU OF LABOR STATISTICS.
the ironing rollers. The felt roller revolved in a suitable direction
to carry the napkin forward between the ironing rollers. There was
evidence that the small roller would give a warning pinch to fingers
which got under it and be thrown out of gear. The general man
ager and the foreman of the company testified that the purpose of
the small roller was that of a guard, to prevent the operator’s hands
becoming caught and injured, but one of the company’s witnesses
referred to it as a “ guide roller.” On this point the court held
that the jury in the trial term in Kings County, which had rendered
a verdict for the plaintiff, was justified in believing that the roller
was only incidentally, if at all, intended as a guard, and that it was
not a proper guard under the statute.
There was testimony that a guard directly in front of the rollers
was not practicable, but none that no other kind of a guard, nor any
additional guard, was possible. The court affirmed the judgment
of the court below, but reduced the verdict. The girl was shown
to be 15 years of age and earning $4.50 per week. The court de
cided that $12,000 was an excessive amount of damages, and reduced
it to $9,000, ordering a new trial if this reduction was not accepted.
E mployers’ L iability—Mine F oremen—E lectrical A ppliances—
Crockett v. Black Wolf Coal db Coke Co., Supreme Court of Appeals
of West Virginia (Dec. 15, 1914), SS Southeastern Reporter, page
987.—J. M. Crockett, administrator of a deceased workman, brought
suit against the company named for his death by its alleged negli
gence. Judgment was in his favor in the circuit court of McDowell
County. The workman while operating an electrically driven coal
car reached a point where the trolley wire had become detached and
had been improperly attached by a fellow servant. This condition
had existed for 16 or 18 hours without attention from the mine fore
man. The wire fell and struck the motor operator, and death resulted
from the ensuing shock. The principal question was whether the
mine foreman alone was liable under the State statute exempting
owners and operators in certain cases. The court held that the com
pany was liable, Judge Poffenbarger, who delivered the opinion,
saying on this point:
In Humphreys v. Raleigh C. & C. Co. (80 S. E. 803, [Bui. No. 169,
p. 70]) the following proposition was declared as the limitation upon
the statutory duties and responsibilities of the mine foreman:
“ The mine foreman statute of the State does not absolve the mine
owner or operator from his common-law duty to exercise reasonable
care to provide reasonably safe machinery, tools, and appliances for
use in tne mine, and make the mine a reasonably safe place for work,
except in so far as the duty is devolved upon the mine foreman, nor
from liability for injury resulting to a servant in the mine from his
DECISIONS OP COURTS AFFECTING LABOR.
77
failure to make such provision, or his provision of defective or unsafe
appliances, or his failure of duty as to the safety of the mine as a
place of work in those instances in which such duly is not cast upon
the mine foreman.”
This view of the statute harmonizes with observations found in all
the leading cases in which the master has been accorded immunity by
virtue of the statute. Nearly all of them contain expressions of limi
tation of the mine foreman’s duties to those things in respect of which
he is charged with duty by some terms found in the statute. [Cases
cited.] A consideration almost conclusively establishing the sound
ness of this construction is this: The statute transfers liability which
the common law would impose upon the master to the shoulders of
the mine foreman and abrogates the common-law right of action of
the injured servant against the master. The imposition of liability
upon the mine foreman is in derogation of the common-law right of
service without it, and the abrogation of the injured servant’s right
of action against the master is in derogation of his common-law right
as a citizen and employee. Hence the statute ought not to, and can
not, consistently with the rules of construction, liave effect beyond
that clearly indicated by its terms.
The declaration had failed to allege the appointment and qualifi
cation of the plaintiff as administrator, so that the judgment could
not be affirmed without an amendment. The case was remanded to
the lower court, however, with instructions to allow amendment
and render judgment for the plaintiff if the necessary allegation and
proof of these facts should be made.
E m p lo y e r s ’ L i a b i l i t y — R a i l r o a d C o m p a n ie s — F e d e r a l a n d S t a t e
S t a t u t e s —T rial— E l e c t i o n
o f R e m e d ie s —Corbett v. Boston <fk
Maine Railroad, Supreme Judicial Cowrt of Massachusetts (Nov.
1914), 107 Northeastern, Reporter, page 60.—The husband of
Mary E. Corbett, the plaintiff, died on July 8, 1912, from injuries
received while working for the railroad named. She first brought
action in her own'name to recover damages under the Massachusetts
employers’ liability act, which gives a right of action to the widow.
Later she brought action as administratrix under the Federal Em
ployers’ Liability Act, alleging that the deceased was engaged in
interstate commerce at the time of his death. When the two actions
came on for trial in the superior court of Essex County the judge
ruled that the bringing of the action under the Federal act had the
effect of superseding the other action, and of depriving the court of
jurisdiction to hear that action during the pendency of the other. In
the action under the State statute he ordered judgment for the
defendant, and reported this action to the supreme judicial court for
determination as to its correctness. The several points involved,
while largely on matters of procedure, are important, and the opinion
delivered by Judge Rugg, holding that the judgment in the action
78
BU LLETIN OF TH E BUBEAU OF LABOR STATISTICS.
under the State statute adverse to the plaintiff should be set aside
and both, cases remanded to the superior court for trial, is quoted
from as follows:
Even if the presiding judge was right in his ruling, judgment
ought not to have been rendered in favor of the defendant in the
action under the State statute. A court without jurisdiction over a
cause can not enter judgment in favor of either party. It can orily
order that the cause be dismissed for want of jurisdiction.
But we are of the opinion that the ruling was wrong. The Fed
eral act in the field covered by it supersedes all State statutes. As to
matters within the scope of the Federal power, legislation by Con
gress is supreme. [Cases cited.]
The State law is as supreme and exclusive in its application to
intrastate commerce as is the Federal law to interstate commerce.
I f the employee of a railroad engaged in both interstate and intra
state commerce is injured or killed while in the former service, the
carrier’s liability is controlled and must be determined solely by the
Federal law; if in the latter service, such liability rests wholly upon
the State law. (Wabash Railroad v. Hayes, 234 U. S. 86,34 Sup. Ct.,
729 [Bui. No. 169, p. 77].) The facts and not the pleadings deter
mine whether the wrong done in any given case gives a right to
recover under the Federal or the State statute.
The defendant has contended that the plaintiff at least ought now
to be compelled to elect which action she will rely upon. But the
argument is not convincing. The plaintiff in each of the present
cases happens to be the same individual. But that is an accident.
Under the State statute she is given a right of action because she is
the widow. She prosecutes that action in her own name and in her
own interest. The action under the Federal statute can be prosecuted
only by the personal representative of the deceased for the benefit
of the persons therein named, among whom may be included others
than the widow. [Cases cited.] The plaintiffs in two such cases as
these well might be different persons. In any event, they sue in
different capacities. Under these circumstances it would be difficult
to require an election. The reasoning upon the main point of this
opinion leads to the conclusion that election ought not to be required
at this stage. It is not necessary to decide whether an instance might
arise where a plaintiff could be compelled to elect before the evi
dence is closed, nor whether at the close of the evidence an election
could or ought to be required by the trial court.
In accordance with the terms of the report, the judgment for the
defendant in the action of Corbett v. Boston & Maine Railroad is set
aside, and both actions are remanded to the superior court for fur
ther proceedings there.
E m p lo y e r s ’
L ia b ilit y — R a ilr o a d
C o m p a n ie s — F e d e r a l
u t e — A c t i o n s — D a m a g e s f o r C o n s c io u s S u f f e r i n g — St.
S ta t
Louis, Iron
Mountain & Southern Railway Go. v. Craft, TJnibed States Supreme
Court (June 1,1915), 85 Supreme Court Reporter, page 70£.—This
case was an appeal by the railroad company named from a judgment
of the Supreme Court of the State of Arkansas in favor of the
DECISIONS OF COURTS AFFECTING LABOR.
79
administrator of a deceased employee. The verdict and judgment
of the circuit court of Jackson County was for $1,000 for the
pecuniary loss of the father of the employee, and $11,000 for the
pain and suffering of the employee. The State supreme court re
duced the latter sum to $5,000 and then affirmed the judgment, which
proceeding the Supreme Court also affirmed.
The company made two objections to the judgment, first, that
there was not evidence of conscious suffering, and, second, that the
statute requires that the recovery be limited to either the loss of the
surviving relative, or the pain and suffering of the employee. The
court reviewed the evidence, which showed that the employee sur
vived for 30 minutes after a car ran partly over his body, and
showed consciousness by groans and movements, and held that this
was sufficient to sustain the verdict.
Taking up the original employers’ liability act, the court showed
that it gave a right of action to the injured person for damages for
his personal loss and suffering where the injuries were not imme
diately fatal, and that, where the injuries proved fatal at any time,
it gave a right of action to the personal representative for damages,
for the benefit of designated relatives, for the pecuniary loss incurred
by such relatives. The right of the injured person, however, died
with him, there being no provision for its survival.
By the amendment of 1910 section 9 was added, providing that
any right of action given to a person suffering injury should sur
vive. The section concludes, “ but in such cases there shall be only
one recovery for the same injury.” In holding that both causes of
action are maintainable, Mr. Justice Van Devanter, who delivered
the opinion, said in part:
No change was made in section 1. (Taylor 'o. Taylor, 232 U. S.
3^3, 34 Sup. Ct. 350 [Bui. No. 169, p. 79].) It continues, as before,
to provide for two distinct rights or action—one in the injured per
son for his personal loss and suffering where the injuries are not
immediately fatal, and the other in his personal representative for
the pecuniary loss sustained by designated relatives where the in
juries immediately or ultimately result in death. Without abrogat
ing or curtailing either right, the new section provides in exact words
that the right given to the injured person “ shall survive” to his
personal representatives “ for the benefit of ” the same relatives in
whose behalf the other right is given. Brought into the act by way
of amendment, this provision expresses the deliberate will of Con
gress. Its terms are direct, evidently carefully chosen, and should be
given effect accordingly. And when this provision and section 1
are read together the conclusion is unavoidable that the personal
representative is to recover on behalf of the designated beneficiaries,
not only such damages as will compensate them for their own pe
cuniary loss, but also such damages as will be reasonably compensa
tory for the loss and suffering of the injured person while he lived.
80
BULLETIN OP THE BUREAU OP LABOB STATISTICS.
Although originating in the same wrongful act or neglect, the two
claims are quite distinct, no part of either being embraced in the
other.
E m p l o y e r s ’ L ia b il it y — R a ilro ad C o m p a n ie s — F ed e r a l S t a t u t e —
A cts i n C ourse op E m p l o y m e n t —Cincinnati,
New Orleans <&Texas
Pacific Railway Co. v. WUson's Administrator, Court of Ap
peals of Kentucky {Dec. 15, 1914), 171 Southwestern Reporter,
page 480.—This action was brought against the railway company
named by the administrator of John Wilson, who had been a sec
tion hand of the railway company, and was killed on April 25, 1911.
The foreman of the section crew to which he belonged was Gran
Ramsey. Ramsey and his crew, also Nate Sumner and Joe Spradlin,
two other section foremen, with their crews, were ordered to board
a work train loaded at Oakdale, Tenn., with ballast material, to pro
ceed to Flat Rock, Ky. They reached Flat Rock and backed onto a
“ passing track ” to allow a regular train behind it to pass on the
north main track, and an extra freight train to pass on the south
main track.
When the extra south-bound train was found to be approaching,
Foreman Sumner, under the mistaken impression that the switch
was open onto the passing track and that the approaching train
would go upon it and strike their train, shouted to his men and
others who were sitting on a car of ballast material to get off. Fore
men Sumner and Ramsey and others of the crews jumped, and ran
across the south track. Wilson attempted to do so and while cross
ing the track was struck and killed by the engine.
In the McCreary County circuit court judgment was rendered in
favor of the plaintiff for $6,000, and the company appealed. The
question of law involved was whether the negligent act of Sumner
which caused the injury was in the course of employment. The
court of appeals held that it was, and affirmed the judgment for the
plaintiff. Judge Hannah, who delivered the opinion, said in part:
In this case Nate Sumner was a section foreman there in charge of
his crew. True, Ramsey was the senior or superior foreman in
charge of the work, and Wilson was one of Ramsey’s men; but Sum
ner was nevertheless a foreman, and section hands had a right to
believe that there was imposed upon him, by virtue of his position,
at least a secondary responsibility—a greater responsibility than a
mere section hand—for their safety, and some measure of duty in
their behalf. He was discharging that obligation when he shouted.
Had he been acting for Nate Sumner alone, he would have jumped
and ran, but remained silent; but, in his mistaken belief as to the
position of peril in which the section hands on the work train were
placed, he undertook to do that which every master expects those ser
vants to do whom he places in authority over other servants—that is,
to prevent injury to all persons, be they servants of the master or
DECISIONS OP COURTS AFFECTING LABOR.
81
strangers. His act was such an act as a personal master there pres
ent, and laboring under the same mistaken belief as Nate Sumner,
would have performed. And, because of that quality, his act was
fairly imputable to the master, imposing legal liability therefor.
E m p lo y e r s ’
L ia b ilit y — E a ilr o a d
C o m p a n ie s — F e d e r a l
S ta t
u t e — A m e n d m e n t o f P e t i t i o n — L i m i t a t i o n — St.
Louis, San Fran
cisco <& Texas Railway Co. v. Smith, Court of Civil Appeals of
Texas (Dec. 19,1914), 171 Southwestern Reporter, page 512.—The
decision of the Supreme Court of the United States, that the facts
of this case prevented recovery by the widow under the State statute,
is reported under the title St. Louis, San Francisco & Texas E a ilway Co. v. Seale, in 229 U. S. 156, 33 Sup. Ct. 651, and noted in Bui.
No. 152, page 87. The court there reversed and remanded the case
without prejudice to the rights of the personal representative.
The company made a motion in the court of civil appeals to order
judgment in its behalf on the ground that the two years’ limitation
fixed by the statute for bringing the suit had expired, but this was
refused (160 S. W. 317); The widow in the meantime had been ap
pointed administratrix, and had also married one Smith. She
filed a motion in the district court of Grayson County for permission
to amend her petition, and this having been granted filed an amended
petition prosecuting her suit as personal representative. On trial of
the suit she recovered a verdict for $7,500, and the company carried
the case up for review. The judgment was affirmed, the court holding
that the limitation fixed by the act did not prevent the amendment of
the petition after its expiration, saying, on this point, through
Judge Eainey:
The substitution of the personal representative of a deceased party
is not the beginning of a new cause of action, but it relates back to
the filing of the original petition. We think the case of Eailway
Co. v. Wulf (226 U. S. 570, 33 Sup. a . 135 [Bui. No. 152, p. 93]), is
decisive of this proposition. The holding of our supreme court is
to the same effect. [Cases cited.]
The amendment setting up no new cause of action, the statute of
limitation did not apply, and there was no error in the overruling of
the exception.
E m p lo y e r s ’ L i a b i l i t y — E a i l r o a d C o m p a n ie s— F e d e r a l S t a t u t e —
a n d E q u ip m e n t — S im p le T o o l s — Gekas v. OregonWashington Railroad <&Navigation Co., Supreme Court of Oregon
(Mar. 9,1916), lift Pacific Reporter, page 970.—Thomas K. Gekas
brought action under the Federal Employers’ Liability Act for negli
gence of the company pamed causing personal injury. In the circuit
court of Multnomah County a judgment was rendered in his favor
A p p l ia n c e s
26071®—Bull. 189—16----- 6
82
BULLETIN OF THE BUBEAU OF LABOR STATISTICS.
for $2,500. The injury was the loss of sight of one eye, caused by
a flying piece from an adz with which the employee was cutting a
bush along the right of way. At the trial the defendant made a
motion for a nonsuit, and later for a directed verdict, both of which
were refused, and the refusals were assigned as error on appeal. The
adz showed that there had been a flaw at the place of the break.
The company contended, however, that there was not sufficient evi
dence to be submitted to the jury that this tool had been repaired or
reconstructed at its shops as claimed, or that the defect should have
been discovered by the repairer when this was done, but the court
decided these questions adversely to it.
The principal question was whether the Employers’ Liability Act,
giving a right of action for injury or death resulting, among other
things, from any defect or insufficiency, due to the carriers’ negli
gence, in its appliances, machinery, or other equipment, makes the
company liable for defects in simple tools. The company argued
that no care was required of it in this respect. The court, however,
speaking by Judge Bean, after discussing the general law as to
simple and complex tools, said in part as to the Employers’ Liability
Act:
The defects and insufficiencies due to the negligence of the common
carrier referred to in the act are not confined to complex appliances.
The terms of the act in this respect are broad, and appear to apply
to any part of the equipment, whether simple or complex.
Employers’ L i a b i l i t y — R ailro ad C o m p a n ie s — Federal S t a t u t e —
o f A d m in is t r a t o r —Howard v. Nashville, Chatta
nooga <fk St. Louis Railway Co., Supreme Court of Tennessee (Oct.
19, 1915), 179 Southwestern Reporter, page 380.—The husband of
Mrs. Mollie Howard was killed in the early part of 1915, while in the
service of the railway company named. The injury was received on its
line in Alabama, through which State the line runs for a short
distance, and the man was at once removed to Chattanooga, Tenn.,
where he died eight hours later. The main part of the line, and the
company’s offices, are in Tennessee. Shortly after her husband’s
death the widow secured letters of administration in Hamilton
County, Tenn., and brought action against the company, declaring
under both the Federal Employers’ Liability Act and the Alabama
statute. The company made a motion to compel election, but be
fore this was acted upon filed a petition in the county court, praying
that the letters of administration be recalled, on the ground that the
decedent left no property or estate in Tennessee that could furnish
a basis for the appointment. There was a question as to the existence
of certain small items of property, which the court decided was im
A p p o in t m e n t
DECISIONS OP COURTS AFFECTING LABOR.
83
material. The county court decided that if there were no assets
liable for the payment of debts there was no basis for administra
tion, and entered judgment recalling the administration granted.
This was affirmed by the circuit court, but reversed by the court of
civil appeals. The supreme court affirmed the last judgment, thus
leaving the administratrix qualified as such. It calls attention to
the case of Sharp v. Railway Co., 179 S. W. 375, just described by it,
in which it was held that an administrator could be appointed for a
nonresident killed in the State, who left no property therein except
the right of action for his death.
E m p l o y e r s ’ L ia b i l i t y — R ailro ad C o m p a n ie s — F ed eral S t a t u t e —
A ppr o v a l b y I n spe ctor — H ig h C ar i n T r a in — Portland
Terminal
Co. v. Jarvis, United States Circuit Court of Appeals, First Circuit
(Sept. 29, 1915), 227 Federal Reporter, page 8.—Frank R . Jarvis
brought action under the Federal Employers’ Liability Act against
the Terminal Co. for personal injuries sustained on April 13, 1913,
and recovered judgment in the district court. He was in the employ
of the company as yard conductor, and was engaged in moving a train
of freight cars from one point to another in the yard, during a foggy,
rainy evening. He was sitting on the top of the last car when he
felt a “ telltale” strike him, and threw himself flat on his back, but
even then the bridge struck him and threw him to the ground. The
bridge had been approved as to height above the track, etc., by the
State railroad commission. As to the effect of this Judge Dodge,
who delivered the opinion, said:
We are unable to hold, as the defendant contends, that because the
height and condition of the bridge had been thus established, inde
pendently of it, by a public authority in 1909, no fault can thereafter
be attributed to it for want of sufficient height above the tracks, or
for anything else appertaining to said bridge. I f passage beneath
the bridge was not reasonably safe, under all the circumstances, for
employees engaged in moving such a train or such a car as here in
question, the defendant might still be negligent in permitting such
passage. (Boston & Maine Railroad v. Brown, 218 Fed. 625.)
The rear car on which Jarvis was stationed was 2 feet higher than
the average freight car, and 2§ feet higher than the car next ahead
of it in the train. Its height was such that under a rule of the com
pany inspectors should have reported it, that it might be set aside
and not permitted to attempt to run under the bridges. Considering
all the circumstances, including the fact that the position on the
rear car was one which the conductor would most naturally occupy,
and that on account of the darkness he did not have a good oppor
tunity to observe the height of this car, the court held that it could
84
BULLETIN OP THE BUBEAU OF LABOR STATISTICS.
not say that the evidence did not disclose negligence on the part of
the company, nor that the employee assumed the risk as a matter of
law. The judgment in his favor was therefore affirmed.
E m p lo y e e s ’ L i a b i l i t y — R a i l r o a d C o m p a n ie s — F e d e r a l S t a t u t e —
A s s u m p t io n o f R is k s — Fish
v. Chicago, Rock Island & Pacific Rail
way Co., Supreme Court of Missouri (Dec. 31,1914) >178 Southwest
ern Reporter, page Slfi.— N o r m a n G. F is h w a s a h e a d b ra k e m a n em
p lo y e d b y th e c o m p a n y n a m e d , w h o w a s k ille d o n J a n u a r y 1 5 ,1 9 0 9 .
H e w a s o n th e s id e o f a c a r in th e p e r fo r m a n c e o f h is d u tie s a t n ig h t,
a n d w a s k n o c k e d o f f a n d u n d e r th e w h e e ls o f th e tr a in b y c o n ta ct
w ith a w a te r c ra n e o r sta n d p ip e . H i s w id o w a n d a d m in is tr a tr ix ,
M illie F is h , b r o u g h t a c tio n a g a in st th e c o m p a n y , c h a r g in g n e g lig e n c e
o n its p a r t in lo c a t in g th e s ta n d p ip e s o n e a r th e tra ck s .
I t w as
sh o w n th a t o n e o f th e ru le s o f th e c o m p a n y c o n ta in e d a c a u tio n in
r e g a r d t o th e d a n g e r o f r id i n g o n th e s id e o f c a r s b eca u se o f th e
p o s s ib le p r o x im it y o f su ch stru ctu res, a n d th a t th e c o n tr a c t o f em
p lo y m e n t w h ic h th e p la in t iff h a d s ig n e d a lit t le m o r e th a n a y e a r
b e fo r e co n ta in e d a n a g re e m e n t th a t h e w o u ld assum e su ch risk s. T h e
c o m p a n y cla im e d th a t th e t r ia l c o u r t sh o u ld , o n th is g r o u n d , h a v e
ta k e n th e case f r o m th e ju r y a n d d e c id e d i t in its fa v o r , w h ile th e
a c tu a l resu lt w a s a v e r d ic t in fa v o r o f th e p la in tiff. T h e c o u r t h o w
e v e r h e ld oth e rw ise , a n d affirm ed th e ju d g m e n t b e lo w . T h e M is s o u r i
c o m m o n -la w ru le w a s h e ld a p p lic a b le in cases tr ie d b y th e c o u r ts o f
th a t S ta te , in s p ite o f its b e in g d iffe r e n t f r o m th e o n e a d o p te d b y
th e F e d e r a l co u rts. A p a r t o f th e d iscu ssion o n t h is p o in t b y J u d g e
B o n d in th e o p in io n w r itte n b y h im is q u o t e d :
The only question presenting any difficulty in this case is the
question of the defense arising upon the theory that the deceased
assumed the risk of being struck by this water crane when he entered
into the service of the defendant. In this connection it must be
borne in mind that section 4 of the Federal Employers’ Liability Act
provides in terms that the doctrine of assumption of risk shall not
be available in any case where the master or employer has violated
any Federal statute in reference to providing safety appliances or
proper equipments on its trains. The thought in the mind of Congress
evidently was that the doctrine of assumption of risk should not
obtain where the negligence of the master had supervened, and that
provision of the act is in strict consonance with the law as established
m this State.
This exclusion of the defense of the assumption of risk in cases
of Federal statutory negligence on the part of the master leaves that
defense available in other cases. And in applying it in accordance
with that limitation it has been recently held by the Supreme Court
of the United States, in a case appealed from the Supreme Court of
North Carolina, and which involved the construction of the Federal
Employers’ Liability Act on the point under review, that in other than
DECISIONS OP COURTS AFFECTING LABOR.
85
the instances excepted in the statutes the test would be whether or
not there was an assumption of risk on the part of the plaintiff or his
representative according to the common-law rule. In that case the
question was whether failure of the master to comply with a State
statute excluded the defense of assumption of risk. The court held
that it did not. (Seaboard v. Horton, 233 U. S. loc. cit. 507, 34
Sup. Ct. 635 [Bui. No. 169, p. 80].)
The effect of that decision and of the act construed therein, and
of the previous decision of the Supreme Court devolving concurrent
jurisdiction upon the courts of the several States to enforce the pro
visions of said act, is to require them, in passing on the defense of
assumption of risk, to apply as a standard the common-law rule on
that subject. This points a plain pathway—that of the common law
as adopted, interpreted, expounded, and enforced in the respective
States.
E m p l o y e r s ’ L ia b i l i t y — R ailro ad C o m p a n ie s — F ed eral S t a t u t e —
Central Vermont Rail
way Co. v. White, Supreme Court of the United States (June 21,
1915), 35 Supreme Court Reporter, page 866.— M a r y T h e re s a W h it e
A s s u m p t io n op R is k s — B u r d e n o p P roof —
b r o u g h t a c tio n as a d m in is tr a tr ix , f o r th e b e n e fit o f h e r s e lf a n d m in o r
c h ild r e n , f o r th e d e a th o f h e r h u s b a n d , E n o c h L . W h it e , w h o w a s
k ille d , w h ile e m p lo y e d as a b ra k e m a n b y th e c o m p a n y n a m e d , in a
re a r-e n d c o llis io n . J u d g m e n t o n a v e r d ic t in h e r f a v o r f o r $7,168
w a s affirm ed b y th e su p re m e c o u r t o f V e r m o n t. T h e case b e in g ta k en
t o th e U n ite d S ta te s S u p re m e C o u r t o n a w r it o f e r r o r , th e ju d g m e n t
w a s affirm ed, M r . J u s tic e L a m a r d e liv e r in g th e o p in io n . T h e c o n
te n tio n th a t th e e v id e n ce fa ile d t o s h o w fa c t s c o n s tit u t in g a ctio n a b le
n e g lig e n c e U nder th e F e d e r a l E m p lo y e r s ’ L ia b ilit y A c t , u n d e r w h ic h
th e su it w a s t r ie d , w a s h e ld u n te n a b le b y th e c o u r t, w h ic h states th e
su b sta n ce o f th e e v id e n c e a n d it s d e cis io n o n th is p o in t as f o l l o w s :
The evidence showed that on the night of January 1,1912, Enoch
L. White was employed by the Central Vermont Railway Co. as
brakeman on extra freight train No. 401. It had passed several
miles north of Bethel, Vt., and was proceeding upgrade at a low rate
of speed. White and the other employees thereon had no notice
that it was followed by a faster freight train (No. 708), which, at
Bethel, had received a “ clearance card” indicating that the track
ahead was clear and that it might proceed. The engine, pulling train
No. 708, had a leaking cylinder from which steam escaped in such
quantities as to make it impossible for the engineer to see the tail
lights of the train on which White was employed. The result was
that the faster train (708) ran into the slower train (401) and in the
collision White was killed. The evidence was amply sufficient to
sustain a finding that the death of White was due to the fault of the
agents of the railway company.
It was held that the trial court did not err in failing to instruct the
jury as to assumption of risks, since there was no evidence that
White knew of the negligence of the company’s agents.
86
BULLETIN OP THE BUREAU OF LABOB STATISTICS.
The company further contended that the burden of proving that
the deceased was not guilty of contributory negligence should have
been placed upon the plaintiff, his representative, since that is the
rule in the State of Vermont, in one of whose courts the case was
tried. As to this Justice Lamar said in part:
It is a misnomer to say that the question as to the burden of proof
as to contributory negligence is a mere matter of State procedure.
For, in Vermont, and in a few other States, proof of plaintiff’s
freedom from fault is a part of the very substance of his case. He
must not only satisfy the jury (1) that he was injured by the negli
gence of the defendant, but he must go further, and, as a condition
of his right to recover, must also show (2) that he was not guilty of
contributory negligence. In those States the plaintiff is as much
under the necessity of proving one of these facts as the other; and as
to neither can it be said that the burden is imposed by a rule of
procedure, since it arises out of the general obligation imposed upon
every plaintiff, to establish all of the facts necessary to make out
his cause of action. But the United States courts have uniformly
held that, as a matter of general law, the burden of proving con
tributory negligence is on the defendant. The Federal courts have
enforced that principle even in trials in States which hold that the
burden is on the plaintiff. [Cases cited.] _Congress, in passing the
Federal Employers’ Liability Act, evidently intended that the Federal
statute should be construed in the light of these and other decisions
of the Federal courts. Such construction of the statute was, in
effect, approved in Seaboard Air Line Railway Co. v. Moore (228
U. S. 484,33 Sup. Ct. 580). There was, therefore, no error in failing
to enforce what the defendant calls the Vermont rule of procedure as
to the burden of proof.
E m p l o y e r s ’ L i a b il it y — R ailro ad C o m p a n ie s — F ed er al S t a t u t e —
A s s u m p t io n op R is k s — D e f ec tiv e A p p l ia n c e s — Davis v. Chesapeake
<&Ohio Railway Co., Court of Appeals of Kentucky (Oct. 89,1915),
179 Southwestern Reporter, page
—J. F. D a v is , w h ile r e p a ir in g
a w a t e r c o lu m n b e lo n g in g t o th e c o m p a n y n a m e d a t S o u th P o r t s
m o u th , K y . , f e l l f r o m i t a n d s u ffe re d in ju r y .
T h e w o rk w a s d on e at
n ig h t , a n d w h ile e n g a g e d in it , o r w h ile d e s c e n d in g a ft e r it s c o m
p le t io n , h e s lip p e d u p o n a p ip e w h ic h w a s c o v e r e d w it h w a te r f r o m
a le a k y v a lv e , a n d fe ll.
H e a lle g e d fa ilu r e t o fu r n is h a la d d e r a n d
a llo w in g th e w e t a n d s lip p e r y c o n d itio n t o e x ist, a s n e g lig e n c e o n
th e p a r t o f th e c o m p a n y .
T h e c ir c u it c o u r t o f G r e e n u p C o u n ty
d ir e c te d a v e r d ic t in fa v o r o f th e c o m p a n y , a n d th e ju d g m e n t e n tered
th e re o n w a s affirm ed , th e c o u r t h o ld in g t h a t 't h e d e fe c t c a u s in g th e
c o n d itio n c o m p la in e d o f w a s a te m p o r a r y o n e a n d w a s n o t o f th e
n a tu re o f a d e fe c t iv e a p p lia n c e a s c o n te m p la te d by th e E m p lo y e r s ’
L ia b il it y
Act,
w h ic h p r o v id e s th a t w h e r e su ch d e fe c ts c o n tr ib u te t o
th e in ju r y th e d e fe n s e o f a ssu m p tio n o f r isk s is a b r o g a te d .
It
w as
co n s id e r e d th a t in th e p re se n t ca se th e e m p lo y e e , b e in g f u l l y a c
q u a in te d w it h th e w o r k a n d its c o n d itio n s , a ssu m ed th e risk .
DECISIONS OF COUBTS AFFECTING LABOB.
87
E m p lo y e e s ’ L i a b i l i t y — R a i l r o a d C o m p a n ie s — F e d e r a l S t a t u t e —
C o n tra cts
of
E x e m p t io n
fb o m
L i a b i l i t y — P ullman P o r t e r s —
Robinson v. Baltimore <& Ohio Railroad Co., Supreme Court of the
United States (April 5, 1915), 35 Supreme Court Reporter, page
49%.— T h e p la in t iff w a s p o r t e r o n a P ullman c a r , a n d w a s in ju r e d ,
w h ile th e c a r o n w h ic h h e w a s e m p lo y e d w a s b e in g c o n v e y e d o v e r th e
d e fe n d a n t c o m p a n y ’s r o a d , b y a c o llis io n a lle g e d t o h a v e been ca u sed
b y th e c o m p a n y ’s n e g lig e n c e .
T h e c o m p a n y in tr o d u c e d in e v id e n ce
th e p la in t iff’s c o n tr a c t o f e m p lo y m e n t w ith th e P u llm a n C o ., b y
w h ic h h e relea sed a ll r a ilr o a d c o r p o r a tio n s o v e r w h o s e lin e s th e ca rs
o f th a t c o m p a n y m ig h t b e o p e ra te d w h ile h e w a s t r a v e lin g in its
s e rv ice “ f r o m a ll c la im s f o r lia b ilit y o f a n y n a tu re o r ch a r a c te r
w h a ts o e v e r o n a c co u n t o f a n y p e r s o n a l in ju r y o r d e a th .”
T h e tr ia l
c o u r t d ire cte d a v e r d ic t in f a v o r o f th e c o m p a n y , a n d ju d g m e n t w a s
r e n d e r e d in it s fa v o r , w h ic h w a s affirm ed b y th e C o u r t o f A p p e a ls
o f th e D is t r ic t o f C o lu m b ia (40 A p p . D. C. 169, 41 W. L. R. 194,
Bui. N o . 152, p . 95), a n d a g a in b y th e S u p r e m e C o u rt. T h e o p in io n
w a s d e liv e re d b y Mr. J u s tice H u g h e s , w h o a ft e r s ta tin g th e fa c t s
sa id in p a r t :
The substantial question is whether the contract of release was in
valid under section 5 of the Employers’ Liability Act, which provides
that “ any contract * * * the purpose or intent of which shall
be to enable any common carrier to exempt itself from any liability
created by this act, shall to that extent be void.” The application of
this provision depends upon the plaintiff’s employment. For the
“ liability created ” by the act is a liability to the “ employees ” of the
carrier, and not to others; and the plaintiff was not entitled to the
benefit of the provision unless he was “ employed” by the railroad
company within the meaning of the act.
We think it to be clear that in employing its servants the Pullman
Co. did not act as the agent of the railroad company. The service
provided by the Pullman Co. was, it is true, subject to the exigencies of
railroad transportation, and the railroad company had the control
essential to the performance of its functions as a common carrier.
To this end the employees of the Pullman Co. were bound by the
rules and regulations of the railroad company. This authority of
the latter was commensurate with its duty, and existed only that it
might perform its paramount obligation.
With this limitation, the Pullman Co. supplied its own facilities,
and for this purpose organized and controlled its own service, in
cluding the service of porters; it selected its servants, defined their
duties, fixed and paid their wages, directed arid supervised the per
formance of their tasks, and placed and removed them at its pleasure.
[Cases cited.]
We conclude that the plaintiff in error was not an employee of the
defendant company within the meaning of the Employers’ Liability
Act, and that the judgment must be affirmed.
88
BULLETIN OP TH E BUREAU OP LABOR STATISTICS.
E m ployers’
L i a b il it y — R ailro ad
C o m p a n ie s — F ed er al
S tat
v.
Baltimore c& Ohio Railway Co., United States Circuit Court of Ap
peals, Fourth Circuit (Nov. 5, 1914), 220 Federal Reporter, page
85.—Raymond H. Brabham, an unmarried man not quite 22 years
old, a fireman, was killed in a collision December 27, 1910. His
father sued as administrator, under the Federal Employers’ Liability
Act, for damages for the benefit of the father and mother, and on
the trial in the Circuit Court of the United States for the Northern
District of West Virginia it was stipulated that the Federal law ap
plied, the parties being engaged in interstate commerce at the time
of the injury; and that the fireman met instant death in a collision
due to the negligence of other employees, and while himself in the
exercise of due care. A verdict was rendered for $2,500, the jury
computing the damages at $500 to the father and $2,000 to the
mother. From this judgment the plaintiff appealed on the ground
that the damages were inadequate.
The proofs showed that the young man was large, strong and
healthy; that the father was a laborer, who did not earn enough to
support the family; and that the young man had earned nearly $100
a month, and turned the greater part of this over to his mother for
the family use. In the trial court evidence was admitted that the
mother had drawn $2,500 as the proceeds of an insurance policy on
the life of her son. The circuit court of appeals held that this testi
mony should not have been admitted, and that it was harmful to the
plaintiff as naturally tending to cause the jury to reduce the amount
assessed as damages. Because of the erroneous admission of this
evidence, the court reversed the judgment and granted the plaintiff
a new trial.
ute—
D a m a g e s — L if e I n s u r a n c e P a id to D e p e n d e n t — Brabham
E m p l o y e r s ’ L i a b il i t y — R ailro ad C o m p a n ie s — F ed er al S t a t u t e —
D e p e n d e n t s — M ea su re o p D a m a g e s —Norfolk
& Western Railway
Co. v. Holbrook, Supreme Court of the United States (Jan. 5, 1915),
85 Supreme Court Reporter, page 148.—W. T. Holbrook, a bridge
carpenter employed by the company named at $2.75 per day, was
killed by a passing train while at work on January 4,1913. He left
a widow, 32 years old, and five children of 1, 4, 7, 11 and 14 years.
The widow brought action as administratrix, under the Employers’
Liability Act, in behalf of herself and children, in the United States
District Court, Western District of West Virginia. She charged
that the accident resulted from negligence of employees of the rail
way company, and introduced evidence tending to establish this.
The verdict was in her favor in the sum of $25,000, and judgment
thereon was affirmed by the circuit court of appeals (215 Fed. 687).
DECISIONS OP COUBTS AFFECTING LABOR.
89
The case was taken to the Supreme Court on a writ of error. The
majority of that court held that the judgment should be reversed
on account of a part of the instructions of the trial judge relative
to the amount of damages, Mr. Justice McReynolds, who delivered
the opinion, speaking as follows:
The only assignment of error now relied upon goes to a single
sentence in instruction No. 5, wherein comparison is made between
the pecuniary injuries of a widow and infant children and those of
adults or mere next of kin. At the instance of the administratrix,
the court told the jury (instruction No. 4) that if Holbrook’s own
negligence contributed proximately to his death, only proportionate
damages could be recovered, and then gave instruction No. 5, in the
following words:
“ The court further instructs the jury that if they believe from
the evidence that plaintiff is entitled to recover, then the amount
of her damages is, subject to diminution, if any, as set out in in
struction No. 4, to be measured by the pecuniary injury suffered by
the widow and infant children as the direct result of the death of
the husband and father, it not being permissible for the jury to go
beyond the pecuniary loss and give damages for the loss of the love
of the husband or father by wire or children, or to compensate them
for their grief or sorrow or mental anguish for his death, or other
purely sentimental injury or loss.
“ However, the court instructs you that where the persons suffer
ing injury are the dependent widow and infant children of a de
ceased husband and father, the pecuniary injury suffered would be
much greater than where the beneficiaries were all adults or depend
ents who were mere next of kin, so that the relation existing be
tween deceased and the infant beneficiaries prior to his death is a
factor in fixing the amount of the merely pecuniary damages. Bear
ing the above principles in mind the jury should assess such damages,
not exceeding $40,000, the amount claimed in the declaration, as shall
fully compensate the widow and children for all pecuniary loss, as
hereinafter explained, suffered by them as the direct result of the
death of the husband and father, and in doing so the jury should
consider:
“ (1) What the earning capacity of deceased has been prior to
and was at the time of his death, and what it probably might have
been in the future had he hot been killed, at the same wages he was
receiving at the time of his death, as shown by the evidence; and, in
estimating the probable earnings of decedent, and what his family
might have realized from them during his future life had he not been
killed, and, in estimating the length of his probable life had he not
been killed, it will be the duty of the jury to consider his age, health,
habits, industry, intelligence, character, and expectancy of life, as
shown by the evidence introduced before you.
“ (2) The jury will also take into consideration the care, attention,
instruction, training, advice, and guidance which one of decedent’s
disposition, character, habits, intelligence, and devotion to his pa
rental duties, or indifference thereto, as shown by the evidence, would
reasonably be expected to give to his infant children during their
90
BULLETIN OF THE BUREAU OF LABOR STATISTICS.
minority, and the pecuniary benefit therefrom to said children, and
include the pecuniary value of the same in the damages assessed.”
The railway company duly excepted because “ the court tells the
jury that the widow and infant children of decedent are entitled to
larger damages than would be the case of persons suing who were
more distantly related.” The exception was overruled, and this
action is now relied on as material error requiring a reversal.
Under the Employers’ Liability Act, where death is instantaneous,
the beneficiaries can recover th< *
*
loss and nothing more;
deceased is a proper
but the relationship between
circumstance for consideration in computing the same. The ele
ments which make up the total damage resulting to a minor child
from a parent’s death may be materially different from those de
manding examination where the beneficiary is a spouse or collateral
dependent relative; but in every instance the award must be based
upon money values, the amount of which can be ascertained only
upon a view of the peculiar facts presented. [Cases cited.]
In the present case there was testimony concerning the personal
ualities of the deceased and the interest which he took in his family,
t was proper, therefore, to charge that the jury might take into con
sideration the care, attention, instruction, training, advice, and guid
ance which the evidence showed he reasonably might have been
expected to give his children during their minority, and to include
the pecuniary value thereof in the damages assessed. But there was
nothing—indeed there could be nothing—to show the hypothetic
injury which might have befallen some unidentified adult beneficiary
or dependent next of kin. The ascertained circumstances must gov
ern in every case. There was no occasion to compare the rights of
the actual beneficiaries with those of supposed dependents; and we
think the trial court plainly erred when it declared that where
the persons suffering injury are the dependent widow and infant
children of a deceased husband and father the pecuniary injury
suffered would be much greater than where the beneficiaries were
adults or dependents who were mere next of kin. This gave the jury
occasion for indefinite speculation and rather invited a consideration
of elements wholly irrelevant to the true problem presented—to
indulge in conjecture instead of weighing established facts.
Considering the whole record we feel obliged to conclude that the
probable result of the indicated language in instruction No. 5 was
materially to prejudice the rights of the railway company. The
judgment of the circuit court ox appeals is accordingly reversed and
the cause remanded to the District Court for the Western District of
West Virginia for further proceedings in conformity with this
opinion.
Mr. Justice McKenna delivered a dissenting opinion, which was
concurred in by Justices Day and Hughes. They expressed the
opinion that the instructions, taken as a whole, gave the jury the
proper basis upon which to assess damages.
D
DECISIONS OP COURTS AFFECTING LABOR.
91
E m p lo y e e s ’ L i a b i l i t y — R a i l r o a d
C o m p a n ie s — F e d e r a l
S ta t
u t e — I n t e r s t a t e C o m m e r c e — A d j u s t i n g M a c h i n e r y i n L o c o m o t iv e
R epair S h op —Shanks v. Delaware, Lackawanna <&Western Railroad
Co., Court of Appeals of New York (Mar. 26,1915), 108 Northeast
ern Reporter, page 644•—Bruce Shanks brought action under the
Federal Employers’ Liability Act for damages for personal injuries.
Judgment was in his favor in the trial court, but the appellate divi
sion reversed this and directed judgment dismissing his complaint, on
the ground that the employment was not within the scope of the Em
ployers’ Liability Act. The decision was affirmed by the court of
appeals, two judges dissenting.
The railroad company is engaged in both interstate and intrastate
commerce. The plaintiff was employed in its locomotive repair shop
at Hoboken, N. J., and his principal employment was running a
shaping machine, in which parts of locomotives, usually those en
gaged in interstate commerce, were repaired. At the time of the
accident he was, on a Sunday morning, engaged with a helper in
moving a countershaft and pulley through which the power for the
shaping machine was secured, and while making new holes in a
girder from which the countershaft was suspended, his hands were
cut off by the movement of a traveling crane which ran upon the
top of the girder.
Judge Chase, in delivering the majority opinion, said in part:
The defendant is not liable under the act unless the plaintiff
suffered injury while he was employed by the defendant as a com
mon carrier in interstate commerce. (Illinois Central Railroad Co. v.
Behrens, 233 U. S. 473, 34 Sup. Ct. 646 [Bui. No. 169, p. 911.)
The plaintiff, in moving the countershaft, was doing millwright
work that in itself had no immediate or direct connection with com
merce. He was not engaged in repairing or moving the shaping ma
chine. If the plaintiff, while engaged in millwright work, as appears
in this case, can be said to have been engaged in interstate commerce,
all work in the repair of the shop and shop machinery where inter
state locomotives are repaired may in some remote degree be said to
constitute commerce. It was, of course, necessary in running the
shaping machine to obtain power, and to obtain power it was neces
sary to burn coal and to obtain coal it was necessary to perform other
acts far removed from the purposes of the statute in question, but
these several steps surely do not constitute interstate commerce by a
carrier, or commerce of any kind.
The remedy of the unfortunate plaintiff is by the compensation act
of the State of New Jersey, in which State the accident occurred.
E m p l o y e r s ’ L i a b i l i t y — R a ilro ad C o m p a n ie s — F ed eral S t a t u t e —
Balti
more & Ohio Railroad Co. v. Whitacre, Court of Appeals of Mary
land (Jan. 6,1915), 92 Atlantic Reporter, page 1060.—Harvey W. C .
I n t e r st a t e C o m m e r c e — B r a k e m a n G e t t in g C u p fo r T r a in —
92
BULLETIN OF TH E BUREAU OP LABOR STATISTICS.
Whitacre brought action against the company named under the
Federal Employers’ liability Act for damages for personal injuries
suffered in its employ as a brakeman. His run was from Cumber
land, Md., into West Virginia. At 1 o’clock in the morning of June
23, 1913, he was called for his train, which was due to leave at 2
o’clock. He went to the engine, and was told by the fireman that it
would not go at once to be coupled to the train, and was requested to
hunt up the tool boy, who had failed to provide as usual a tin cup
for the use of the train crew, and get such a cup from him. In
following a moving light which he supposed to be a lantern in the
hands of the boy, he stepped around an obstruction and fell into a
cinder pit, receiving injuries which resulted in rupture, spinal
trouble, etc.
The circuit court of Washington County rendered a judgment for
the plaintiff, and this was affirmed by the court of appeals. Judge
Stockbridge delivered the opinion, and in determining that the em
ployment of the plaintiff at the time of the injury was an essential
part of interstate commerce, he said in part:
That the plaintiff must be regarded as being engaged in interstate
commerce at the time of the happening of the accident seems con
clusively settled by two cases. In JP. W. & B. R. R. Co. v. Tucker (35
App. D. C. 123), subsequently affirmed per curiam by the Supreme
Court, Tucker was killed by being struck by an engine when he
was on the premises of the defendant, in response to its call to assume
the duties he had been engaged by the defendant to assume for their
mutual interest and advantage; and it was there laid down that the
obligation of the master commences when the servant, in pursuance
of his contract with the master, is rightfully and necessarily upon the
premises of the master. In North Carolina Railroad v. Zachary (232
U. S. 248, 34 Sup. Ct. 305 [Bui. No. 169, p. 83]), it was held that the
acts of an employee in preparing an engine for a trip to move freight
in interstate commerce, although done prior to the actual coupling
up of the interstate cars, are acts done while engaged in interstate
commerce.
E m ployers’
ute—
L i a b i l i t y — R ailro ad
C o m p a n ie s — F ed er al
I n t e r st a t e C o m m e r c e — B r a k e m a n
S tat
U n c o u p l in g C ars — New
York Centred, <&Hudson River Railroad Co. v. Carr, Supreme Court
of the XJnited States (June 14,1915), 35 Supreme Court Reporter,
page 780.—Bernard J. Carr recovered a judgment for damages for
personal injury against his employer, the company named, which
was affirmed by the Supreme Court of New York. The company
appealed on the ground that the employment was not in interstate
commerce, and that the suit should therefore be governed by the
State law, under which, since Carr was injured by the negligence of
a fellow servant, he could not recover. Both the facts and the rea
DECISIONS OF COUBTS AFFECTING LABOB.
93
sons for affirming the judgment are given in the opinion, which was
delivered by Mr. Justice Lamar, and which is as follows:
Carr was a brakeman on a “ pick-up ” freight train running from
Rochester to Lockport over the lines of the New York Central. On
November 18,1910, some of the cars in this train contained interstate
freight. Among those engaged in purely intrastate business were the
two cars, at the head of the train and next to the engine, which were
to be left at North Tonawanda, N. Y. On arriving at that point
they were uncoupled from the train, pulled by the engine down
the track, and then backed into a siding. It was the duty of one
brakeman (O’Brien} to uncouple the air hose from the engine, and
for the other (Carr) to set the hand brakes in order to prevent the
two cars from rolling down upon the main track. O’Brien, having
failed to open the gauge to the stopcock, suddenly and negligently
“ broke ” the air hose. The result was that the sudden escape of air—
applied only in cases of emergency—violently turned the wheel han
dle attached to the brake which Carr at the time was attempting to
set. The wrench threw Carr to the ground, and for the injuries thus
suffered he brought suit in a State court.
The railroad company insists that when the two cars were cut out
of the train and backed into a siding, they lost their interstate char
acter, so that Carr while working thereon was engaged in intrastate
commerce and not entitled to recover under the Federal Employers’
Liability Act.
The plaintiff was a brakeman on an interstate train. As such, it
was a part of his duty to assist in the switching, backing, and un
coupling of the two cars so that they might be left on a siding in
order that the interstate train might proceed on its journey. In
performing this duty it was necessary to set the brake of the car
still attached to the interstate engine, so that, when uncoupled, the
latter might return to the interstate train and proceed with it, with
Carr and the other interstate employees, on its interstate journey.
Each case must be decided in the light of the particular facts with
a view of determining whether, at the time of the injury, the em
ployee is engaged in interstate business, or in an act which is so
directly and immediately connected with such business as substan
tially to form a part Or a necessary incident thereof. Under these
principles the plaintiff is to be treated as having been employed in
interstate commerce at the time of his injury, and the judgment in
his favor must be affirmed.
E m pl o y e e s ’
u te —
L ia b i l it y — R a ilro ad
C o m p a n ie s — F ed er al
S tat
I n t e r st a te C o m m e r c e — B u il d in g A d d it io n to R e p a ir S h o p —
Thompson v. Cincinnati, New Orleans <&Texas Pacific Railway Co.
et al., Court of Appeals of Kentucky (June 4, 1915), 176 South
western Reporter, page 1006.—James Thompson brought action
against the company named for damages for serious injuries re
ceived by him while working as a carpenter in the erection of an
extension to the company’s engine repair shop at Ferguson, Ky., on
94
BU LLETIN OP TH E BUREAU OF LABOB STATISTICS.
May 7, 1914. He was crushed by a section of the gable end of the
extension, which was being hoisted and pried into place. He sued
both the company and two fellow employees whose negligence he
claimed caused the injury, and declared under both the State and
the Federal act; but on being required to make election, he elected
to proceed under the Federal Employers’ Liability Act and against
the company. The trial court directed a verdict for the company,
and the employee appealed, securing a reversal of judgment, and
directions for a new trial. The grounds for the appeal are stated as
follows in the opinion by Judge Turner:
Three grounds for reversal are urged: (1) That the court erred
in requiring appellant to elect whether he would prosecute his action
under the State law or the Federal act; (2) that the court erred in
dismissing the plaintiff’s petition as against the individual appellees;
(3) that the court erred in directing a verdict for the defendant
company.
The court held that the trial court acted properly in the matters
mentioned under (1) and (2). Judgment had been directed for the
defendant company because it was not considered that the employ
ment at the time of the injury was in interstate commerce. The
court of appeals, however, held to the contrary, as appears from the
following paragraph quoted from the opinion:
We can not escape the conclusion that appellant was at the time
of his injury engaged in aid of interstate commerce; (1) because the
extension was already in use as a storehouse in connection with the
original building which was confessedly being used as an instru
mentality of interstate commerce, and (2) because the extension
from the very beginning of its erection must be deemed and treated
as a part of the original shops.
E m p lo y e r s ’ L i a b i l i t y — R a i l r o a d C o m p a n ie s — F e d e r a l S t a t u t e —
C o m m e r c e — C l e a n i n g A s h Pit — Grybowski v. Erie
Bailroad Co., Supreme Court of New Jersey (Nov. 6, 1915), 95 Atlan
tic Reporter, page 764.—Constantine Grybowski sued as administra
tor for damages for the death of an employee of the railroad com
pany named. The latter was run over and killed by a locomotive as
he was leaving an ash pit in the yard of the company in Jersey City.
Engines engaged in interstate and intrastate commerce dumped ashes
into this pit, and the employee had been cleaning it out. The court
held that the same principle would apply as in the repairing of
tracks, bridges, etc., used indiscriminately in both kinds of com
merce, and that the case was covered by the Employers’ Liability Act.
Other points being also decided in the plaintiff’s favor, a judgment
for him rendered in the circuit court of Hudson County was affirmed.
In te rsta te
DECISIONS OP COURTS AFFECTING LABOR.
95
E m pl o y e r s ’ L i a b il it y — R a ilro ad C o m p a n ie s — F ed eral S t a t u t e —
I n t e r st a t e C o m m e r c e — C l e a n in g S t e n c il s —Illinois
Central Rail
road Co. v. Rogers, United States Circuit Court of Appeals, Fifth
Circuit (Apr. 5, 1915), 221 Federal Reporter, page 52.—Wallace
Rogers brought action under the Employers’ Liability Act for dam
ages for personal injuries. Judgment was in his favor in the trial
court, but on the company’s appeal the judgment was reversed, the
court holding the act not applicable to the facts proved. The em
ployee had been struck and injured while cleaning stencils used to
mark cars in interstate commerce. After considering the principles
set forth by the Supreme Court of the United States, as to the condi
tions which must exist in order to make the liability act applicable,
in the Pedersen case (33 Sup. Ct. 649, Bui. No. 152, p. 85) and the
Behrens case (34 Sup. Ct. 646, Bui. No. 169, p. 91) Judge Maxey,
who delivered the opinion, said in part:
Was such cleaning of stencils a part of interstate commerce? It
seems to us that to so hold would be an unwarranted expansion of
the doctrine announced by the Supreme Court, and we do not think
that the principle is susceptible of such indefinite extension.
Nor do we think the mere allegation that the railroad company
was engaged in interstate commerce is sufficient to authorize the
holding that, at the time the defendant in error was injured, the
offending engine was engaged in such commerce. To justify the
application of the act, the pleadings should affirmatively show, as we
have intimated, that both the defendant in error and the engine were
so engaged when the injury was inflicted.
E m p l o y e r s ’ L ia b i l it y — R ailro ad C o m p a n ie s — F ed eral S t a t u t e —
I n t e r st a t e C o m m e r c e — C l e a r in g W r e c k — Southern
Railway Co. v.
Puckett, Court of Appeals of Georgia (July 8,1915), 85 Southeastern
Reporter, page 809.—H . E . Puckett brought action against the com
pany named for damages for injuries suffered in its employ, and one
of the important questions was whether he was engaged in inter
state commerce at the time of the injury, it being admitted that the
campany was so engaged. The accident occurred at night in August,
1911. Puckett was a car inspector, and had been engaged in inspect
ing cars in an interstate train which was being made up. He had
inspected 23 or 25 cars in this train, and was waiting for 12 or 14
more to be brought up and placed in it, in the meantime making
entries in his inspection book, when a collision between other cars
occurred in the yard near by. In accordance with a rule of the
company he went to give what assistance he could, and was directed
by a superior to get material to jack up the car to release an employee,
O’Berry, who was pinned beneath the car and engine, which action
would serve also to begin the clearing of the tracks. The track from
96
BULLETIN OP TH E BUREAU OP LABOR STATISTICS.
which the cars to be placed in the train which Puckett was checking
were to be taken was one of those blocked. He was carrying blocks
to be used in jacking up the wrecked car and replacing it on the
track, when hestumbled over three large clinkers. This started him
falling and about 5 feet farther on he struck his foot against two
old ties overgrown with grass, completing the fall, ,’n which be re
ceived permanent injuries. The court, considering the evidence, de
cided that there was sufficient to warrant its going to the jury on the
question of the company’s negligence, and also decided that the em
ployee was engaged in interstate commerce. It affirmed the judg
ment which had been rendered for the plaintiff in the city court of
Atlanta. Judge Broyles, who delivered the opinion, said in part on
the question of interstate commerce:
It is insisted that the intention of the plaintiff, at the time of his
injury, in “ jacking up ” the wrecked car, was to release O’Berry from
his perilous position, and not to free the tracks from the obstruction
so that the remaining cars to be placed in train No. 75 could be trans
ported over the obstructed tracks. We think it immaterial that the
primary object of the plaintiff may have been the rescue of his fellow
employee, O’Berry. If the plaintiff helped to “ jack up ” the wrecked
car and engine, though primarily done for the purpose of releasing
O’Berry, it was nevertheless the first step to be taken in clearing the
obstruction from the tracks so that over these tracks could be trans
ported the remaining cars to be placed in train No. 75. In our opin
ion, his work facilitated the interstate commerce of the railroad, and,
consequently, he was engaged in interstate commerce when injured.
In railroad yards both “ lead ” and “ switch ” tracks are indispen
sable to interstate commerce. Such tracks are just as important to
carry on the business of the railroad as are the main tracks, or tracks
outside of the yard. These yard tracks are necessary in making up
trains and in switching, and in classifying and distributing the dif
ferent cars that make up the completed interstate or intrastate train.
E m p l o y e r s ’ L i a b il it y — R ailro ad C o m p a n ie s — F ed eral S t a t u t e —
Co
lumbia <&Puget Sound Railroad Co. v. Sauter, United States Circuit
Court of Appeals, Ninth Circuit (May 26, 1915), 22$ Federal Re
porter, page 604.—Walter G. Thompson was killed while in the
employ of the company named, and his representative brought ac
tion under the Employers’ Liability Act. A bridge of the company
had been undermined by a freshet, and had partly toppled over,
while logs and rubbish had accumulated against the piers. In order
to build a structure which would serve as a temporary bridge over
which interstate trains could pass, and also as false work for the
permanent structure, it was necessary to remove the material from
about the piers, and the employee was attaching cables to the logs
I n t e r s t a t e C o m m e r c e — C o n s t r u c t io n , o p T e m p o r a r y B ridge —
DECISIONS OP COURTS AFFECTING LABOB.
97
so that they might be pulled out into the stream, when the bridge
fell and caused his death. Judgment was for the plaintiff, and on
appeal the company contended that the employment was not in in
terstate commerce, a contention which the court of appeals rejected.
In discusing the facts Judge Wolverton, who delivered the opinion,
said:
While it is denied that the defendant company was at the time
engaged in any way in constructing the new bridge, it clearly ap
pears from the testimony that it had the new bridge in view at the
time, and that the trestle was to serve, not only for a temporary
structure for passing engines and trains over in interstate traffic, but
also as false works for rebuilding the old bridge.
On this basis the court held that the employee was engaged in in
terstate commerce, within the decision in the Pedersen case (33 Sup.
Ct. 649 [Bui. No. 152, p. 85]).
E m p l o y e r s ’ L i a b il it y — R a ilr o a d C o m p a n ie s — F ed er al S t a t u t e —
I n t e r st a te C o m m e r c e — C o u p l in g E n g in e T e n d e r a n d B aggage
Car—Atchison, Topeka & Santa Fe Railway Co. v. Pitts, Supreme
Court of Oklahoma (Jan. 19, 1915), 145 Pacific Reporter, page
1148.—W. N. Pitts brought action against the railway company
named for damages for personal injuries suffered by being crushed
while coupling an engine tender and a baggage car. In the district
court of Kay County he recovered a verdict for $5,000. On appeal,
the question of the interstate commerce character of the business in
which the employee was engaged was decided adversely to him, as
is shown in the following paragraph of the syllabus prepared by
the court:
A common carrier by railroad engaged in interstate commerce is
only liable to its employees for damages for negligence resulting in
personal injuries suffered while both such carrier and such employee
are engaged in that particular service under the [Federal Employers’
Liability Act], and such carrier, when engaged in both interstate and
intrastate commerce, is not liable under this act for injuries suffered
by one of its employees while effecting a coupling betwen its engine
tender and its baggage car (not appearing to be then in the service
of other than intrastate commerce) in making up a train, notwith
standing it was the defendant’s intent to immediately thereupon in
corporate in said train a number of freight cars, including three
then in the service of interstate commerce.
The court further held that, the evidence being undisputed, the
court should not have left to the jury the question as to whether the
Federal or the State law applied. The judgment of the court below
was reversed, and the case remanded for a new trial.
26071®—Bull. 189—16----- 7
98
BULLETIN OF THE BUREAU OF LABOR STATISTICS.
Employers5L iability—Railroad Companies—Federal Statute—
Interstate Commerce—Driving Trespassers from Interstate
Train—Attem pt to Secure Compensation—Smith v. Industrial
Accident Commission of California, District Court of Appeals of
California {Feb. 16, 1915), lift Pacific Reporter, page 600.—George
W. Smith applied for compensation under the act of California,
and the commission entered an order dismissing the application,
for the reason that the employee at the time of the injury was
engaged in interstate commerce, and therefore the workmen’s com
pensation act had no application to his case. The injury took
place in the railroad yards at Colton, Cal., on the night of Jan
uary 13, 1914. The employee, who was a special officer or watch
man, boarded the tender of a locomotive attached to a through pas
senger train from New Orleans to San Francisco as it got under
way to leave the yards, for the purpose of preventing trespassers
from getting on the cars. Three men attempted to get on the car
next the engine, but jumped off when he shouted to them. He also
left the engine and started to pursue the men to drive them from
the company’s property. His revolver fell from its holster and a
cartridge exploded, the bullet entering his thigh and inflicting a
wound, which was the injury for which he sought compensation.
The court affirmed the order of the commission, holding that the
employment was in interstate commerce, and therefore the Federal
Employers’ Liability Act was exclusively applicable. It held that
the contention that the interstate character of the employment ceased
when the officer stepped off the train and began pursuing the men
could not be supported, the line of distinction being too fine to be
seriously considered, and that the act of the watchman should be
looked upon as a continuous one without a break or stop.
E m p lo y e r s ’
L ia b ilit y — R a ilr o a d
C o m p a n ie s— F e d e r a l
S ta t
ute— I nterstate C o m m e r ce — F i r i n g L o c o m o t iv e — R i g h t s of P a r
Tonsellito v. New York Central & Hudson River
Railroad Co., Court of Errors and Appeals of New Jersey (June H,
1915), 9h Atlantic Reporter, page 804—M ich a e l T o n s e llito , a m in o r ,
ent of M i n o r —
b r o u g h t a ctio n u n d e r th e F e d e r a l E m p lo y e r s ’ L ia b ilit y A c t a g a in st th e
c o m p a n y n a m e d f o r in ju r ie s su sta in e d in its e m p lo y , a n d h is fa th e r ,
J a m e s T o n s e llito , a lso b r o u g h t a n a c tio n u n d e r th e c o m m o n la w .
T h e e m p lo y e e w a s e n g a g e d o n th e d a y o f th e a c c id e n t in fir in g lo c o
m otiv es.
T h e o n e o n w h ic h h e w a s w o r k in g w a s a b o u t t o b e a tta ch e d
t o an in tersta te tra in .
It
b eca m e n ecessa ry t o ta k e o n b o a r d a b a r re l
o f o il f r o m a n e a r -b y storeh ou se, a n d as th e e n g in e e r h a d n o t a r r iv e d ,
th e e m p lo y e e sta r te d t o d r iv e th e e n g in e t o th e storeh ou se.
He
le f t
DECISIONS OF COURTS AFFECTING LABOR.
99
it to adjust a switch and while attempting to board it again the
engine was started and he was thrown under the wheels, receiving the
injuries complained of.
The court affirmed the judgment of the Supreme Court in favor of
the employee, holding, under the authority of the Pedersen case,
that he was engaged in interstate commerce, and that the Federal
act was applicable. A judgment in his father’s favor was also
affirmed, Judge Minturn for the court saying with reference to the
relation of the act to this action:
We do not construe the Federal act as repealing either expressly or
impliedly the father’s right of action as it existed at common law.
It purports to deal only with cases involving the death of the employee, and, in the absence of an intent clearly expressed or neces
sarily implied that Congress intended to take away bv this corrective
or remedial act the legal status of third parties as fixed by the im
memorial rules of the common law, we must assume that such legal
rights still subsist unimpaired.
E m p lo y e r s ’ L i a b i l i t y — R a i l r o a d C o m p a n ie s— F e d e r a l S t a t u t e —
I n t e r s t a t e C o m m e r c e — H a u l i n g E m p t y C a r s — B r a k e m a n — Penn
sylvania Railroad Co. v. Knox, United States Circuit Court of Ap
peals, Third Circuit {Jan. h 1915), 218 Federal Reporter, page
74S.— T h is s u it w a s b r o u g h t b y th e a d m in is tr a to r o f th e estate o f
J a m e s C a m p b e ll w h o w a s k ille d w h ile in th e e m p lo y o f th e c o m
p a n y n a m e d as a fr e ig h t b ra k e m a n . H i s d ea th w a s ca u se d b y th e
tw is tin g o f f o f a b ra k e r o d . T h e r e w a s n o e v id e n c e o f th e in tersta te
ch a ra cte r o f th e ca rs c o m p o s in g th e tr a in , e x ce p t th a t r e la t in g to
e ig h t e m p ty ca rs, th e r e la tio n o f w h ic h t o su ch c o m m e rce c o n
stitu te d on e o f th e im p o r ta n t q u estion s in th e case. T h e y h a d been
d e liv e r e d to th e P e n n s y lv a n ia sy stem in N e w Y o r k , a n d h a d b een
tr a n s fe r r e d t o th e n ea rest d is t r ib u tin g p o in t f o r fr e ig h t ca rs in
P e n n s y lv a n ia , w ith o u t a n y b il li n g o r o th e r e v id e n c e o f d e stin a tio n .
T h e r e b e in g n o use f o r th e m th ere, th e y w e re p la c e d in a n o th e r tr a in
a n d c a r r ie d t o a n o th e r p o in t in th e sam e w a y , a n d th is o c c u r r e d
th ree o r fo u r tim es u p t o th e tim e o f th e in ju r y t o th e e m p lo y e e .
T h e c o u r t h e ld th a t th e in tersta te m o v e m e n t cea sed w h e n th e y
re a ch e d th e first d is tr ib u tin g p o in t in th e S ta te.
The other question in the case, whether there was evidence of the
company’s negligence in failing to make suitable inspection of the
brake rod which broke, the court also decided adversely to the
plaintiff, and the judgment of the district court, which was in his
favor, was reversed.
100
BULLETIN OF THE BUREAU OF LABOR STATISTICS.
E m p lo y e r s ’
L ia b il it y — E a ilr o a d
ute— I n t e r s t a t e
C o m p a n ie s — F e d e r a l
C o m m e rc e — H a u l i n g
E m p ty
S ta t
C a r s — F ir e m a n —
Thompson v. 1Vabash Railway Co., Supreme Court of Missouri {Dee.
2, 1914), 171 Southwestern Reporter, page 364.—R . W . T h o m p s o n
w a s k ille d i n a c o llis io n w h ile e m p lo y e d as firem an o n an e n g in e o n h is
r e g u la r ro u te fr o m M o b e r ly , M o ., t o M o u lto n , I o w a . A t th e p a r tic u
la r tim e, th e e n g in e w a s d r a w in g o n ly e m p ty cars.
S u it w a s b r o u g h t
a g a in st th e e m p lo y e r , th e c o m p a n y n a m e d , b y E th e l T h o m p s o n ,
w id o w o f th e d ecea sed e m p lo y e e , u n d e r a M is s o u r i sta tu te, a n d she
r e co v e re d a ju d g m e n t f o r $10,000 in th e c ir c u it c o u r t o f R a n d o lp h
C o u n ty .
T h e su p rem e c o u r t re v e rse d th is ju d g m e n t, h o ld in g th a t th e
e m p lo y e e w a s e n g a g e d in in tersta te co m m e rce , a n d th a t th e case w a s
th e r e fo r e g o v e r n e d b y th e F e d e r a l E m p lo y e r s ’ L ia b ilit y A c t , so th a t
su it c o u ld p r o p e r ly b e b r o u g h t o n ly u n d e r th a t act. T h e case o f Nor
f o l k , etc., R a ilw a y C o .
v.
C o m m o n w e a lth o f V ir g in ia ,
93 Y a . 749, 24
S.
E . 837, c ite d b y M rs. T h o m p s o n 's co u n se l w a s r e c o g n iz e d as o p
p o s e d t o th is v ie w , b u t th e c o u rt h e ld th a t it c o u ld n o t f o llo w th a t case
o n a cco u n t o f th e la te r d e cisio n s o f th e S u p re m e C o u r t o f th e U n ite d
S ta tes t o th e c o n tr a r y , in c lu d in g M ic h ig a n C e n tra l R a ilr o a d C o . v.
Y r e e la n d ,
227 U .
S.
59, 33 S u p .
C t.
192, Bui. No. 152, p . 88),
a n d th e
S e c o n d E m p lo y e r s ’ L ia b ilit y C ases, 223 U. S. 1, Bui. No. 98, p . 470).
Q u ite e x ten siv e q u o ta tio n s w ere g iv e n f r o m th ese cases a n d f r o m cases
in v a rio u s S ta tes as s u p p o r tin g th e c o u r t’s v ie w th a t th e w o r k w h ic h
th e firem a n w a s d o in g , as d e scrib e d , w a s in te rsta te co m m e rce . T h e
ju d g m e n t w a s th e r e fo r e re v e rse d a n d th e case r e m a n d e d t o th e c ir c u it
c o u r t w ith in str u c tio n s t o d ism iss th e p la in t iff’s p e titio n .
E m p l o y e r s ’ L ia b i l i t y — R ailro ad C o m p a n ie s — F e d er al S t a t u t e —
Graber
v. Duluth, South Shore & Atlantic Railway Co., Supreme Court of
Wisconsin {Jan. 12, 1915), 150 Northwestern Reporter, page 489.—
I n t e r st a t e C o m m e rc e — I n c id e n t a l A bse n ce fr o m W o r k —
T h e p la in t iff, G ra b e r , a b ra k e m a n in th e e m p lo y m e n t o f th e c o m p a n y
n a m e d , w a s in ju r e d in th e e a r ly p a r t o f th e e v e n in g o f J a n u a r y
24, 1912,
h is in ju r y c o n s is tin g o f th e c r u s h in g o f on e f o o t so th a t
i t w a s n ecessa ry t o a m p u ta te th e le g b e tw e e n th e a n k le a n d knee.
He
re co v e re d in a n a ctio n
f o r d a m a g e s in th e c ir c u it c o u r t o f
D o u g la s C o u n ty , a n d th e c o m p a n y a p p e a le d . T h e p r in c ip a l p a r t
o f th e e m p lo y e e ’s d u tie s w a s t o ru n as b ra k e m a n b e tw e e n S o o J u n c
tio n a n d M a rq u e tte , b o th in th e S ta te o f M ic h ig a n .
S o o J u n c tio n
w a s a te rm in a l tr a n s fe r p o in t w h e re ca rs w e re b r o u g h t fr o m w ith in
a n d w ith o u t th e S ta te a n d m a d e u p in t o tr a in s f o r c o m p le tio n o f
tra n sit.
On
th e d a y o f th e a cc id e n t G ra b e r h a d m a d e a t r ip o u t
fr o m S o o J u n c tio n , a n d re tu rn e d w ith sev era l in tersta te cars.
DECISIONS OF COURTS AFFECTING LABOR.
101
The remaining duty for the day was to sidetrack the cars, put
away the engine in the roundhouse, locate and properly close the
caboose and do work in the yard, if time should permit, and such
were the orders from the conductor. After doing such work, Graber
proceeded to a near-by saloon, off the right of way, to get a drink.
The saloon was so located that a through train which was standing
on the track obstructed the way therefrom to the depot. After
getting the drink Graber started for the depot, for the purpose of
obtaining final instruction from his superior and then going to
supper at a place on the right of way, on the depot side of the
standing train. As Graber reached the train and was in the act of
climbing through between two gondola cars, without any signal being
given, it was suddenly started. There was evidence to prove that
trains often stood as in the particular case for as long as half an
hour to an hour and a half, leaving no way of getting from the
side of the track where Graber was before endeavoring to pass be
tween the cars, other than by executing some such movement as he
attempted or going around the end of the train, and that trainmen
commonly took the short cut and depended for warning of danger
upon a signal by ringing of the engine bell, which commonly
occurred before moving a train.
The complaint of the company on appeal was to the submission of
the case to the jury on the question of whether respondent, at the
time he was injured, was engaged in interstate commerce, and within
the scope of the Federal Employers’ Liability Act. Judge Marshall,
who delivered the opinion of the court affirming the judgment of the
court below in Graber’s favor, stated the respective functions of the
court and jury, cited a number of cases defining the application of the
law in question, and continued:
In the cases cited, the Federal Supreme Court explained that the
law does not permit of splitting up a service, which is in its nature an
entirety, into its various steps or elements. All work, so closely re
lated to interstate commerce business as to be practically inseparable
from it, though it promotes, at the same time, intrastate business, is
in reality and legal effect a part of the former.
A further detail of the Federal act, as it has been authoritatively
construed, is important in this case. Any brief incidental absence
from the scene 01 work or instrumentality used therein, which is not
inconsistent with the employee’s duty to his employer, does not,
necessarily, preclude his efficiently claiming to be still on duty and
engaged in interstate commerce. (North Carolina Railroad Co. v.
Zachary, 232 U. S. 248, 34 Sup. Ct. 305 [Bui. No. 169, p. 83].) Neither
the period or nature of continuity of service is changed by such a brief
stepping aside from or cessation of activity as that 'of customarily
visiting a wayside place for a lunch or other legitimate and common
means of refreshment, or waiting after one task shall have been done
for orders as to the next movement, the employee all the time being
102
BULLETIN" OF THE BUREAU OF LABOR STATISTICS.
within customary reach for continuance of the day’s service and
holding himself in readiness to immediately respond. (Missouri,
Kansas & Texas Kailway Co. v. United States, 231 U. S. 112; United
States v. Chicago, etc., Railroad Co., 197 Fed. 624; United States v.
Denver & Rio Grande Railroad Co., Id. 629.)
Applying the foregoing to the undisputed facts detailed in this
case, it is considered that, if the trial court committed any error in
leaving the question of whether respondent was engaged in inter
state business at the time he was injured, to the jury, it was not in
his favor; but rather was in favor or appellant. Work in the trans
fer yard was indispensable to thie interstate business. Respondent
had not been relieved for the day. His service from the time he
started out in the morning until the instant of his injury and the
work he then thought might be required of him, were inseparably
connected with interstate business and, so, were a part thereof. The
court under the circumstances, would not have made any mistake by
so deciding, as matter of law.
E m p lo y e r s ’ L i a b i l i t y — R a i l r o a d C o m p a n ie s— F e d e r a l S t a t u t e —
I n t e r s t a t e C o m m e rc e — M i n i n g C o a l — E v id e n c e — Delaware, Lacka
wanna &' Western Railroad Co. v. Turkonis, United States Circuit
Court of Appeals, Second Circuit (Jan. 12, 1915), 220 Federal
Reporter, page 429. — T h e e m p lo y e e , Y u r k o n is , b r o u g h t a ctio n
a g a in st th e r a ilr o a d c o m p a n y n a m e d f o r d a m a g e s f o r p e r so n a l in
ju r ie s su ffere d b y h im o n J u ly 6, 1911, w h ile e m p lo y e d in a c o a l
m in e o f th e co m p a n y . I n th e D is t r ic t C o u r t o f th e U n ite d S ta tes
f o r th e E a ste rn D is tr ic t o f N e w Y o r k h e r e co v e r e d a v e r d ic t o f
$50,000, a n d th is b e in g re d u c e d b y th e p la in t iff’s c o n se n t t o $36,000,
ju d g m e n t w a s e n tered f o r th is a m ou n t. T h e p la in t iff cla im e d , as
th e n e g lig e n c e o f th e c o m p a n y , fa ilu r e p r o p e r ly t o v e n tila te th e
w o r k in g p la c e in a cc o rd a n ce w ith th e P e n n s y lv a n ia m in in g la w .
T h e o r ig in a l c o m p la in t se t fo r t h th e p r o v is io n s o f th is la w a n d a lso
o f th e P e n n s y lv a n ia E m p lo y e r s ’ L ia b ilit y A c t , a n d la te r a n a m en d
m en t w a s m a d e a lle g in g th a t th e c o m p a n y w a s e n g a g e d in in tersta te
com m erce.
T h is w a s a d m itte d b y th e d e fen se.
A t th e c lo s e o f th e
e v id e n ce th e d e fe n d a n t m a d e a m o tio n th a t a v e r d ic t b e d ir e c te d
f o r it, becau se th e F e d e r a l a c t w a s e x clu s iv e , a n d th e ca u se o f a ctio n
w a s a t th is tim e b a r r e d u n d e r it.
T h e c o u r t d e n ie d th is m o tio n o n
th e g r o u n d th a t th e p la in t iff c o u ld r e c o v e r e ith e r a t co m m o n la w ,
u n d e r th e S ta te lia b ilit y a ct o r th e F e d e r a l statute.
T h e c ir c u it
c o u r t o f a p p e a ls h e ld th a t th is w a s a r ig h t d e cisio n b a se d o n a w r o n g
r e a s o n ; th a t i f th e F e d e r a l la w e v e r a p p lie d i t w a s e x c lu s iv e , b u t
i t n e v e r a p p lie d in th is case, beca u se m e re ly m in in g c o a l is n o t in te r
state com m erce .
C o m in g t o th e m e rits o f th e e v id e n ce as p r o p e r to
co m e b e fo r e th e ju r y a n d sufficient t o su sta in its v e r d ic t, J u d g e
W a r d , w h o sp o k e f o r th e c o u r t, s a i d :
103
DECISIONS OF COURTS AFFECTING LABOR.
The plaintiff was the only witness as to the circumstances imme
diately preceding the accident, and he testified that he was allowed
to go into the chamber with an open lamp; that, haring examined
for gas with, his safety lamp, he discovered none; that he thereupon
lighted the squib placed to fire the blast, picked up his hat, in which
was an open mining lamp, and started to walk out. As he raised
his head he was knocked down by an explosion of gas, got up and
was knocked down again, and before he could get away the blast
was exploded by the gas. He also testified that he had informed
the mining foreman on the morning of the day of the accident that
the brattice was not long enough to properly ventilate his working
place, and that the foreman promised to have it corrected, which
he did not do. The defendant sought to prove that this account of
the explosion was impossible, and that the blast must have gone
off through the plaintiff’s own negligence. These were questions
which we think were properly submitted to the jury. The plaintiff’s
account does not appear to us so incredible, or the cause of the
explosion so disconnected with failure to furnish the ventilation
required by the Pennsylvania mining law, as to justify the direction
of a verdict for the defendant.
This case later came before the Supreme Court of the United
States on a writ of error, and was dismissed for want of jurisdiction
(35 Sup. Ct. 902), the court holding that the employment was not
in interstate commerce, and that the jurisdiction of the circuit court
of appeals, having been based wholly on diversity of citizenship,
was final. The following is a quotation from the opinion delivered
by Mr. Justice Day:
In the course of the trial, during examination of a witness, while
evidence was being offered to show the disposition of the coal mined,
counsel for defendant stated that it used the coal mined in its loco
motives in interstate commerce. He said that as a matter of fact and
as a matter of law coal which plaintiff mined was used in that way,
and that “ we are engaged in interstate commerce.”
The averments of the complaint as to the manner of the receiving
of the injury by plaintiff showed conclusively that it did not occur
in interstate commerce. The mere fact that the coal might be or
was intended to be used in the conduct of interstate commerce after
the same was mined and transported did not make the injury one re
ceived by the plaintiff while he was engaged in interstate commerce.
The injury happening when plaintiff was preparing to mine the coal
was not an injury happening in interstate commerce, and the defend
ant was not then carrying on interstate commerce—facts essential to
recovery undec the Employers’ Liability Act.
E m p lo y e r s ’ L i a b i l i t y — R a i l r o a d C o m p a n ie s— F ederal S t a t u t e —
In tersta te
C o m m e ro e — R e m o v in g
B u rn ed
P o r tio n
of
R ound
Thomas v. Boston <6 Maine Railroad, Umted States Circuit
Court of Appeals, First Circuit (Jan. 15, 1915), £19 Federal Re
porter, page 180.—Gordon Thomas brought action against the rail
house—
104
BULLETIN OF THE BUBEATJ OF LABOB STATISTICS.
road company named, under the Federal Employers’ Liability Act,
for damages for personal injuries, and in the District Court for the
District of New Hampshire an objection to the plaintiff’s declara
tion was sustained and judgment given for the defendant, that court
holding that the employee was not engaged in interstate commerce
at the time of the injury. The court of appeals reversed this decision
and remanded the case for a new trial, holding that the declaration
sufficiently alleged employment in interstate commerce, as is shown
by the following quotation from the opinion of Judge Dodge:
The district court understood the declaration as follows:
“According to the declaration, the plaintiff was engaged in tearing
down a roundhouse, or that part of it, which had been rendered use
less by the fire, and was injured, not by an instrumentality being
actively used in interstate commerce, but by a falling timber.
“ The active function of the roundhouse as an instrumentality in
interstate business had ceased to exist, and the employment, there
fore, was in connection with the removal of a useless structure, to
the end that a new one might be created for railroad purposes, and
very likely for uses in connection with interstate commerce.”
The plaintiff denies that his allegations warrant the statement
that the roundhouse had ceased to exist as an instrumentality in in
terstate business, or the statement that his employment was in re
moving a useless structure to the end that it might be replaced by
a new one.
The allegations here in question are as follows:
“ That [on the alleged day of the injury] said roundhouse was par'tially damaged by fire, in consequence whereof it became necessary
for said defendant for the conduct of its interstate commerce to tear
down so much thereof as was damaged by fire and to rebuild the
same, and that said defendant * * * was undertaking to tear
down and rebuild said roundhouse, with the intent and for the pur
pose of again using the same in such interstate commerce; that said
plaintiff was then and there employed * * * on said work.”
While this is not wholly consistent, we do not think it must neces
sarily be understood in the sense attributed to it by the district court.
We think it may fairly be taken as alleging that the damage which
the plaintiff was repairing was partial damage to the structure, tem
porarily suspending its former regular use, instead of damage re
quiring its complete removal, in order to permit the construction
of a wholly new structure to begin.
So construed, we think tlie declaration states a case within the
act. One engaged in repairing an instrumentality of interstate com
merce may be engaged in such commerce. (Pedersen t\ Delaware,
etc., Co., 229 U. S. 146, 33 Sup. Ct. 648 [Bui. No. 152, p. 85].) In
Law v. Illinois Central, etc., Co. (208 Fed. 869 [Bui. No. 169, p. 94]),
the plaintiff was repairing an engine, regularly used for interstate
transportation, but at the time, and for 21 days before his injury,
dismantled and in the repair shop where his injury was sustained.
Two days later, its former use was resumed. The Court of Appeals
for the Sixth Circuit held that the suit was maintainable under the
act.
DECISIONS OP COURTS AFFECTING LABOR.
105
The judgment of the district court is therefore reversed, and the
case remanded to that court for further proceedings not inconsistent
with this opinion.
E m pl o y e r s ’ L ia b i l i t y — R ailro ad C o m p a n ie s — F ed er al S t a t u t e —
I n t e r st a t e C o m m e r c e — R e m o v in g C ars f r o m S w it c h T r a c k — Penn
sylvania Co. 'v. Donat, Supreme Court of the United States (Nov. 1,
1915), 36 Supreme Court Reporter, page 1^.—In affirming a judgment
in favor of the plaintiff in this case Mr. Justice McReynolds said:
Basing his claim upon the Employers’ Liability Act of 1908, Marion
Donat began the original action in the United States District Court
for Indiana against the Pennsylvania Co., a carrier by railroad, to
recover damages for personal injuries alleged to have been suffered
by him while employed as a yard conductor. The trial court refused
a request to charge that he was not engaged in interstate commerce
when the accident occurred, and therefore could not recover. This
refusal is the sole ground upon which error is now asserted.
Two loaded coal cars coming from without the State were received
in the carrier’s yard at Fort Wayne, Ind. They were destined to
Olds’ private switch track connecting with the yard; and, acting un
der instructions, Donat commenced the switching movement requisite
to place them thereon. There was evidence tending to show that, in
order to complete this movement, it became necessary to uncouple
the engine from the loaded cars and with it to remove two empty
ones from the private track. While engaged about the removal, de
fendant in error was injured. The trial court submitted to the jury
for determination whether he was engaged in interstate commerce
at the time of the injury, and in approving such action (224 Fed.
1021) the circuit court of appeals was clearly right. (New York
Central & Hudson River Railroad Co. v>. Carr, 238 U. S. 260, 35
Sup. Ct. 78 [see p. 92].)
E m p l o y e r s ’ L i a b il it y — R ailro ad C o m p a n ie s — F ed er al S t a t u t e I n t e r st a te C o m m e r c e — R e p a ir in g S id e t r a c k — Clark v. Chicago
Great Western Railroad Co., Supreme Court of Iowa (May 18,
1915), 158 Northwestern Reporter, page 635.—Clark, the plaintiff,
recovered a verdict in the district court of Dubuque County for
injuries received by him while in the employ of the company named.
The employee was a trainmaster, and was injured by being thrown
from and struck by a gravel train on which he had been standing, by
the sudden stopping of the train. The gravel was being placed upon
a new sidetrack, which had not been opened for traffic generally, but
which had on two occasions been used by interstate trains, they
having tied up on it to afford the rest legally required for the crews.
The court decided that under the circumstances the work being done
would be of the nature of repair of a track used in interstate com
merce rather than of new construction, so that the plaintiff had
106
BULLETIN OP THE BUBEAU OF LABOR STATISTICS.
properly proceeded under the Federal Employers’ Liability Act. The
judgment was reversed, however, on the ground of the signing of a
release by the plaintiff.
E m p l o y e r s ’ L i a b il it y — R ailro ad C o m p a n ie s — F ed eral S t a t u t e —
I n t e r st a t e C o m m e r c e — R e p a ir in g S w it c h E n g in e T e m p o r a r il y
W it h d r a w n f r o m S ervice — Southern Pacific Co. v. Pillsbury et al.,
Supreme Court of California (Aug. 7, 1915), 151 Pacific Reporter,
page 277.— T h e In d u s tr ia l A c c id e n t C o m m is sio n o f C a lifo r n ia
a w a rd e d co m p e n s a tio n f o r th e d e a th o f an e m p lo y e e o f th e c o m p a n y
n a m ed , th e fa t a l in ju r y h a v in g b een re ce iv e d w h ile th e e m p lo y e e
w a s r e p a ir in g in a ro u n d h o u s e a n e n g in e u sed la r g e ly in s w itc h in g
in tersta te ca rs.
The c o m p a n y
m a d e a p p lic a tio n f o r a w r it t o re v ie w
th e a ctio n o f th e m e m b e rs o f th e co m m iss io n , o n th e g r o u n d th a t
th e e m p lo y e e w a s e n g a g e d in in te rsta te co m m e rce , a n d th e r e fo r e h is
re m e d y w a s u n d e r th e F e d e r a l E m p lo y e r s ’ L ia b ilit y A c t . The c o u r t
u p h e ld th e c o m p a n y ’s c o n te n tio n as t o th is , a n d a n n u lle d th e a w a rd
o f th e com m issio n .
E m p l o y e r s ’ L ia b i l it y — R ailro ad C o m p a n ie s — F ed eral S t a t u t e —
I n t e r st a t e C o m m e r c e — S e c t io n F o r e m a n — A s s u m p t io n o p R is e s —
Texas <&Pacific Ry. Co. v. White, Court of Civil Appeals of Texas
(June 19,1915), 177 Southwestern Reporter, page 1185.—J. P. White
brought action for damages for injuries sustained by him while in
the employ of the railroad company named as section foreman. He,
with a crew of five men, went out to repair a broken rail joint, riding
upon a hand car. The work was finished and the return trip begun,
when a freight train was seen approaching, and they proceeded to
lift the car from the track. One of the men in doing this staggered
and let go his hold because of the weight of the car, throwing an
extra burden upon White, who severely wrenched his back in the
effort resulting. Negligence of the company was charged in furnish
ing a car too heavy for use by the number of men available, and in
refusing the foreman’s previous requests for a lighter car or a larger
number of hands, and on these grounds he brought suit, and secured
a verdict amounting to $1,000 in the district court of Taylor County.
As to the question whether he was engaged in interstate commerce
the court relied upon the Pedersen case, holding that, the work of
repairing the interstate track being such, the return trip was equally
so. Judge Dunklin concludes the portion of the opinion dealing
with this subject as follows:
We are of the opinion, further, that the act of removing the hand
car from the track out of the way of the coming train, being in the
DECISIONS OF COURTS AFFECTING LABOR.
107
aid of the movement of interstate traffic, was sufficient of itself to bring
the accident within the operation of the Federal Employers’ Liability
Act; in other words, that White, in removing the hand car for the
purpose of giving a clear track to the train loaded in part with inter
state freight, was engaged in interstate commerce within the meaning
of the act.
The case was reversed on the ground of assumption of risks, the
court holding, on a point on which there is not entire agreement
among the different courts, that the State rule has no bearing on the
question, the opinion saying:
The evidence shows without controversy that, if the car was too
heavy to be handled by White and the men working under him,
White knew of that fact and of the risk incident to handling the
same before he undertook the performance of his service by using
said hand car; in fact, counsel for appellee admit that, if the doc
trine of assumed risk is applicable, then that defense was sustained
by proof. Under the statutes of the State of Texas the defense of
assumed risk in a suit by an employee of a railway company against
such company does not obtain; the statutes making the facts which
would otherwise sustain such a defense admissible upon the issue of
whether or not the employee was guilty of contributory negligence.
But under the Federal statute, the Employers’ Liability Act, the de
fense of assumed risk is available between such parties.
E m p lo y e r s ’ L i a b i l i t y — R ailroad C o m p a n ie s — F e d e r a l S t a t u t e —
I n t e r s t a t e C o m m e r ce — S hifting C a r R emaining in Y a r d s B e
t w e e n I n t e r s t a t e T rips—Moyer v. Pennsylvania Railroad, Co.,
Supreme Court of Pennsylvania. (Jan. 8,1915), 93 Atlantic Reporter,
page 888.— O s c a r G. M o y e r b r o u g h t a c tio n a g a in s t th e c o m p a n y
n a m e d f o r d a m a g e s f o r p e rs o n a l in ju r ie s , w h ic h w e r e fo u n d b y th e
ju r y t o h a v e been th e re su lt o f th e c a r w h ic h h e w a s e n g a g e d in
s h ift in g n o t b e in g e q u ip p e d w ith a c o u p le r c o u p lin g a u to m a tic a lly
b y im p a c t, as re q u ire d b y th e s a fe t y a p p lia n c e a c t f o r c a r s in in te r
state traffic. The fa c ts as t o the u se o f the c a r , w h ic h b e lo n g e d to
a n o th e r c o m p a n y , p r e v io u s t o a n d f o l lo w in g th e a c c id e n t w e re n o t
in d isp u te, it b e in g s h o w n th a t i t ca m e lo a d e d f r o m L o g a n s p o r t , I n d .,
Pa., a r r iv in g o n D e c e m b e r 18, a n d b e in g
was sen t t o o n e y a r d o f th e c o m p a n y in P itt s b u r g h
th e n e x t d a y s h ift e d t o th e T h ir t ie t h Street y a r d .
to D on ora ,
u n lo a d e d th ere.
It
o n th e 21st, a n d
W it h i n a s h o r t
tim e i t w e n t t o L o u is v ille , K y ., lo a d e d w ith g la s s, a n d th e r e w a s
n o th in g t o sh o w th a t i t w a s e m p lo y e d in a n y w a y in th e m ea n tim e.
The p la in t iff w a s in ju r e d w h ile i t w a s b e in g s h ift e d t o th e T h ir t ie t h
Street y a r d . The c o u r t h e ld that the b r i e f p e r io d o f n o n u se d id n o t
in te r r u p t it s status
as e m p lo y e d
in in tersta te co m m e rce , a n d affirm ed
108
BULLETIN OF THE BUBEAU OF LABOR STATISTICS.
a judgment rendered for the plaintiff under the Federal Employers’
Liability Act. Judge Stuart, who delivered the opinion, said in part:
Can it be said that, because it had discharged its freight and was
not actually employed in transportation for two or three days follow
ing, it had ceased to be a car “ used in moving interstate traffic” ?
The last actual use it had been put to was that of moving interstate
commerce. The next use it was put to was the same. It had not been
employed while remaining in charge of the defendant company in
any other. It was detained in the defendant company’s yards, so
far as appears, only to await the company’s convenience in returning
it to where it belonged. With these facts established, the question,
we think, admits of but one answer—the car at the time of the acci
dent was a car used in moving interstate traffic. The facts being as
stated above, the learned trial judge committed no error in ruling as
he did.
E m p l o y e r s ’ L ia b il it y — R a ilro ad C o m p a n ie s — F ed er al S t a t u t e —
I n t e r st a te C o m m e r c e — S h i f t i n g C ars of C o a l fo r I n d is c r im in a t e
Use—Harrington v. Chicago, Burlington <6 Quincy Rail
road Co., Kansas City Court of Appeals, Missouri {Nov. 22, 1915),
180 Southwestern Reporter, page 443.— M a r g a r e t H a r r in g t o n b r o u g h t
R ailro ad
a ctio n u n d e r th e statute o f th e S ta te o f M is s o u r i f o r d a m a g e s f o r th e
d ea th o f h e r h u s b a n d , w h ic h o c c u r r e d w h ile h e w a s e m p lo y e d as a
s w itch m a n in th e y a r d s o f th e c o m p a n y n a m e d in K a n sa s C ity . H e
w a s r u n n in g ca rs o f c o a l o n to a s to r a g e tr a c k , w h e r e th e c o a l w o u ld
b e placejd in b in s a n d u sed o n lo c o m o tiv e s in b o th in te rsta te a n d
in tra sta te com m e rce .
T h e c o m p a n y d e fe n d e d o n th e g r o u n d th a t
th e e m p lo y m e n t w a s in in tersta te co m m e rce , a n d th a t th e r e fo r e th e
su it u n d e r th e S ta te la w c o u ld n o t b e m a in ta in e d . J u d g m e n t w a s
in th e p la in t iff’s fa v o r in th e c ir c u it c o u r t o f J a c k s o n C o u n ty , a n d
th is w as affirm ed b y th e c o u r t o f a p p ea ls. J u d g e J o h n s o n , w h o d e liv
e re d th e o p in io n , d iscu sse d th e P e d e rse n a n d B e h re n s cases as au
th o ritie s , a n d h e ld th a t th e F e d e r a l la w d id n o t a p p ly , s a y in g in
p a rt:
The most difficult task confronting us is the solution of the question
whether or not the coal being transported had become impressed with
the character of an instrumentality of interstate commerce, for the
reason that an indefinite and indistinguished part of it certainly
would be used as fuel for locomotives engaged in interstate traffic,
though the remainder just as certainly would be supplied to locomo
tives engaged only in intrastate traffic. There would be no separa
tion of the fuel, and no application of any portion to the use of
either class of traffic, before such portion passed from the bin or
chute at which the engine happened to stop into the tender of the
engine, and it is manifest that the act of filling the tender of an intra
state engine could not be classified as an act of interstate transporta
tion ; nor could the coal thus used, which, as stated, would be drawn
from the carrier’s general store, be regarded as ever having been an
109
DECISIONS OP COURTS AFFECTING LABOR.
instrumentality of interstate commerce. And if it had not been thus
characterized, how may it be said that the general supply, of which
it had been a component, but indistinguished part, had taken on the
character of an instrumentality of interstate commerce?
E m p lo y e r s ’ L i a b i l i t y — R a i l r o a d
u te — In te r s ta te
C o m p a n ie s — F e d e r a l
C om m erce— S h o v e lin g
C o a l in to
S ta t
P o ck e ts
fo r
T r a i n s — Kamboris
v. Oregon-WasMngton Railroad & Navigation
Co., Supreme Court of Oregon (Mar. 23,1915), llfi Pacific Reporter,
page 1097.— T h is a c tio n w a s b r o u g h t b y P e te K a m b o r is , a d m in is
tr a t o r o f S a ra n ti T s e p e lia , u n d e r se ctio n 380, L o r d ’s O r e g o n L a w s ,
to r e c o v e r d a m a g e s f o r th e d e a th o f T se p e lia . T h e la tte r w a s an
e m p lo y e e o f th e c o m p a n y n a m e d , a n d w a s e n g a g e d in s h o v e lin g c o a l
in t o its p o c k e ts a t U m a tilla , O r e g . T h e c a r s w e re r u n in t o th e ch u te
b y a n in c lin e d tre stle , a n d th e e m p lo y e e w a s s ta n d in g a t th e to p o f
th e in c lin e , w a it in g f o r c a r s t o b e s w itch e d in , a n d w it h in s tru c tio n s
t o b lo c k th e ir w h eels, w h e n h e w a s s tr u c k a n d k ille d b y a d e ra ile d
c o a l ca r , w h o s e d e ra ilm e n t w a s d u e t o a b r o k e n a n d d e fe c tiv e r a il,
w h ich th e e v id e n c e te n d e d t o sh o w w a s d u e t o th e n e g lig e n c e o f th e
co m p a n y . W h ile a ju d g m e n t in f a v o r o f th e p la in t iff w a s re n d e re d
in th e c ir c u it c o u r t o f M u ltn o m a h C o u n ty , th e c o m p a n y o b je c t e d to
th is r e c o v e r y u n d e r th e S ta te la w o n th e g r o u n d th a t th e e m p lo y m e n t
was in te rsta te c o m m e rce , a n d th e Federal Employers’ Liability Act
co n tr o lle d . T h i s c o n te n tio n w a s su sta in ed b y th e c o u r t, a n d th e
ju d g m e n t rev erse d a n d th e ca se re m a n d e d f o r fu r t h e r tr ia l. J u d g e
B e a n , in d e liv e r in g th e o p in io n , s p o k e in p a r t a s f o l l o w s :
In the case at bar we can not see why the act of furnishing the coal
for fuel, and placing the same in the pockets of the chute to be used
partly in the engines engaged in interstate traffic? was not just as
essential in the matter of running interstate trains as the act of
taking the same out of said chute or pockets and placing it upon the
tenders of the engines, or any other act of the employees in running
the engines and trains^transporting such commodities. I f it were im
possible to fill the position of the deceased, and the coal was not fur
nished, interstate commerce would stop or be retarded to that extent,
and it clearly seems to us that the general duties of the decedent,
as well as the act he was performing at the particular time of the
injury, had a very substantial bearing upon and relation to inter
state commerce. It can not be said consistently that the decedent was
not engaged in his duty because he was waiting for the cars to ap
proach tne proper place in order to block the wheels. It might as
well be said that a switchman was not engaged in his duty while
waiting for a train to pass a switch in order to turn the same. The
act of placing the cars of coal in the chute was similar to decedent’s
general duties of shoveling coal, and was a necessary service in pre
paring the fuel for the engines hauling the interstate trains. From
the practically admitted facts in the case at bar we conclude the de
110
BULLETIN OF TH E BUBEAU OF LABOB STATISTICS.
fendant was engaged in interstate commerce at the time of the
injury, and that the decedent was employed by the defendant in such
commerce, and was within the protection of the act in question.
E mployers’ L iability—R ailroad Companies—F ederal Statute—
I nterstate Commerce—Switching Cars with Coal for E ngines—
Barlow v. Lehigh Valley Railroad Co., Court of Appeals of New
York (Feb. 5,1915), 107 Northeastern Reporter, page 814.—James
H. Barlow brought action against the company named for damages
for personal injuries, and recovered a judgment, which was affirmed
by the appellate division. The only question on appeal was as to the
propriety of the submission of the case to the jury under the Federal
Employers’ Liability-Act, as was done in the trial court.
Barlow was employed by the company named as an engineer on a
switching engine in the yards at Cortland, N. Y. His crew was
engaged in placing three cars of coal upon a trestle, to be dumped
into pockets, thence to be used upon engines for interstate and intra
state commerce. The cars had come from another State, and had
been on the siding in the yard’ for a few days. While Barlow was
reaching under the engine to make an examination, the fireman
backed it up, either for the purpose of uncoupling from the cars or
of backing down the incline just after uncoupling, and caused the
injury. The following is quoted from the opinion of the court,
speaking by Judge Miller, and affirming the judgment below:
The plaintiff’s right to recover under the Federal act is maintained
on two grounds: (1) That the transportation of the coal from Sayre,
Pa., though for the defendant’s own. use, was interstate commerce,
and was not completed until the cars were actually placed on the
trestle to be unloaded; (2) that the act of placing the cars on the
trestle, so that the coal could be dumped into pockets from which it
could be transferred to the tenders ox engines engaged in interstate
commerce was so closely connected with and related to interstate
commerce as to be a part of it. We think the action may be sus
tained upon both theories.
E mployers’ L iability—R ailroad Companies—F ederal Statute—
I nterstate Commerce—Switchman—B urden of P roof—Pitts
burgh, Cmdnnati, Chicago & St. Louis Railway Co. v. Olinn, United
States Circuit Court of Appeals, Sixth Circuit (Jan. 5, 1915), 219
Federal Reporter, page 148.—This action was brought by Annie B.
Glinn, administratrix of the estate of her son, Hugh A. Morford,
who had been killed while employed as a brakeman of the company
named, in switching operations. The crew to which Morford belonged
had been switching both interstate and intrastate cars during the
night in which the accident occurred, and at the time the engine was
DECISIONS OP COURTS AFFECTING LABOR.
Ill
not hauling any cars, but was passing onto another track in order
to conduct more switching. The court held that under these circum
stances the judgment which the district court had rendered in favor
of the plaintiff was justified, Judge Denison, who delivered the
opinion, saying, in part:
The circumstances here are not, in all respects, the same as those
found controlling in the Pedersen case (229 U. S. 146,33 Sup. Ct. 648
[Bui. No. 152, p. 85]), or the Seale case (229 U. S. 156, 33 Sup. Ct.
651 [Bui. No. 152, p. 87]). They may also be distinguished, though
we think not effectively, from the facts in the Zachary case (232
U. S. 248, 34 Sup. Ct. 305 [Bui. No. 169, p. 83]); because, in
the latter case, it definitely appeared that the engine was about
to be used, or was being prepared for use, in distinctively inter
state commerce. The same difference and possible distinction exists
with reference to Law v. Illinois Central (208 Fed. 869 [Bui.
No. 169, p. 84]). However, we can draw no inference from these
and other familiar decisions of the Supreme Court (including the
Behrens case, 233 U.S. 473,477,34 Sup. Ct. 646 [Bui. No. 169, p. 91]),
and the way in which they have interpreted the statute, save that
liability is created where the service being rendered is of a general,
indiscriminate character, not segregated and tied to shipments within
the State (as in the Behrens case, supra) but applicable at least as
well to the interstate commerce which the carrier is conducting.
While it may not be easy in some cases to draw the line between the
results of this view and a breadth of construction which would make
the statute invalid under the [first] Employers’ Liability Cases (207
TJ. S. 463, 28 Sup. Ct. 141 [Bui. No. 74, p. 216]), yet cases like the
present are fairly within the line of validity. They hardly go be
yond fixing the burden of proof and declaring that, where the facts
show the case may well have been within the statute, the initial burden
is satisfied, and it is for the defendant to show the contrary.
It follows that the jury in this case had a right to find, as it did,
that at the time of his death Morford was employed in interstate
commerce.
E m p lo y e r s ’ L i a b i l i t y — R ailroad C o m p a n ie s — F e d e r a l Statute—
I nterstate Commerce—T aking “ D e a d E n g i n e ” from O n e State
to A nother—B urden of P roof—McAuliffe v. New York Central di
Hudson River Railroad Co., Supreme Court of New York, Appel
late Division, Second Department (Dec. 11, 1914), 150 New York
Supplement, page 512.— T im o t h y M c A u liffe w a s in ju r e d w h ile in
th e e m p lo y m e n t o f th e c o m p a n y n a m e d , a n d b r o u g h t s u it a g a in st
it f o r d a m a g es u n d e r t h e F e d e r a l E m p lo y e r s ’ L ia b il it y A c t . He w a s
a fr e ig h t c o n d u c to r , a n d w a s in ju r e d b y c o llis io n o f h is t r a in , w h ic h
at th e tim e co n siste d o f a n e n g in e a n d a c a b o o s e o n ly , w it h a n in te r
state tra in .
T h e e m p lo y e e h a d ta k e n a tr a in f r o m N e w J e r s e y in to
N e w Y o r k th e s e co n d d a y b e fo r e th e a c cid e n t, a n d th e n e x t d a y w a s
e m p lo y e d in c a r r y in g f r e ig h t b etw een p o in ts in N e w Y o r k . On th e
d a y o f th e a c c id e n t h e w a s re tu r n in g f r o m N e w Y o r k t o th e sou th ern
112
BULLETIN OF THE BUBEAU OF LABOB STATISTICS.
terminal of the roatl in New Jersey with a “ dead engine.” On
reaching the terminal he would have laid off for eight hours, and it
was not shown in what kind of transportation he would be next
engaged. The court decided that under the facts stated the em
ployee was not engaged in interstate commerce. Judge Thomas,
who delivered the opinion, said:
In North Carolina Railroad Co. v. Zachary (232 TJ. S. 248,259, 34
Sup Ct. 305,309 [Bui. No. 109, p. 83]), it was said that:
“ The hauling of empty cars from one State to another is. in our
opinion, interstate commerce within the meaning of the act.
The defendant says that this utterance was dictum. However, I
accept it as authority; but it does not apply to the present case. The
locomotive and caboose and crew were not hauling empty care from
one State to another, nor were they returning from a trip after
hauling empty or loaded cars between States, because after the
outward trip was ended they were diverted to intrastate operation,
and after such intervention were going back without transporting
any objects of commerce from one State to another. They were
carrying instrumentalities which had been and probably would be
used in the future for interstate and intrastate transportation com
bined, or only for intrastate purposes, or perchance for interstate
commerce only. I can not find that it has been decided that such
act constitutes interstate commerce, but it has been decided in prin
ciple that it does not.
The opinion then quotes from the case of Illinois Central Railroad
Co. v. Behrens, 233 TJ. S. 473, 34 Sup. Ct. 646 (Bui. No. 169, p. 91),
in which it was decided that a member of a switching crew which
handled interstate and intrastate cars indiscriminately, who was at
the time of injury hauling only intrastate cars, was not within the
provisions of the act. Continuing Judge Thomas said:
The language is explicit; it isolates completely the service at the
time of the injury, and ascertains whether then and there the plain
tiff was employed in interstate commerce; it ignores past service; it
puts from view further service, and asks what was the nature of
the carrier service at the period of accident. What was done in that
case is not what was done in this instance; but the rule for testing
the application of the statute is made very clear.
The opinion then takes up the limitations of State and Federal
powers, and holds that the burden is upon a person asserting that
the Federal act applies, and that the plaintiff has failed to sustain
this burden. The judgment in favor of the plaintiff was reversed
and a new trial granted. Two of the judges dissented from the
decision.
E mployers’
L iability—R ailroad Companies—F ederal Stat
Commerce—T aking Out Old R ails and L oading
Cars—Status of Medical E xaminers for E mployees—Cher-
ute—I nterstate
on
peski v. Great Northern Railway Co., Supreme Court of Minnesota
DECISIONS OP COURTS AFFECTING LABOR.
113
(Feb. 5, 1915), 150 Northwestern Reporter, page 1091.—Anton
Cherpeski brought action under the Federal Employers’ Liability
Act for damages for personal injuries alleged to have been suffered
by him because of the negligence of his fellow servants in the em
ployment of the company named. He was a section foreman, and
with his crew was engaged in taking up old rails from the main line
of track and replacing them, the old rails being loaded on a flat car,
and presumably hauled away. He was engaged in so loading a car
when injured. The main track and the track on which the flat car
was standing were used both in interstate and intrastate commerce.
The verdict in the district court of Lyon County was for the plaintiff.
On the authority of the Pedersen case (229 U. S. 146,33 Sup. Ct. 648,
Bui. No. 152, p. 85), and other cases, the court held that it was at
least a question for the jury whether the work was in interstate
commerce, and that the trial court properly submitted this question,
as it did also the question of the negligence of a fellow servant in
throwing one end of a rail into the car without the usual warning.
The judgment was reversed, however, because the trial court ex
cluded as privileged the testimony of physicians as to examinations
of the plaintiff, one for the purpose of determining whether he was
in suitable physical condition to become an employee of the railway,
and the other to determine his fitness to continue such employment.
The court held that since there was no intention that these physi
cians should apply curative treatment, the testimony was not privi
leged, and was improperly excluded.
E m p lo y e r s ’
L ia b ilit y — R a ilr o a d
u te — In te r s ta te
C o m p a n ie s — F e d e r a l
C om m erce— W a tc h m a n
S ta t- .
a t C r o s s in g — P r e s u m p
t i o n s — Louisville
<6 Nashville Railroad Co. et al. v. Barrett, Supreme
Court of Georgia (July 21, 1915), 85 Southeastern Reporter, page
923.— M a tt ie L o u B a r r e tt b r o u g h t a ctio n a s a d m in is tr a tr ix a g a in s t
th e c o m p a n y n a m e d , u n d e r th e S ta te la w , f o r d a m a g e s o n a cc o u n t o f
th e d ea th o f h e r h u s b a n d w h ile in th e c o m p a n y ’s e m p lo y .
H e w as a
w a tch m a n a t th e cro ss in g , w h o se d u ty i t w a s t o w a r n tr a v e le r s o n th e
h ig h w a y o f a p p r o a c h in g tra in s.
W h e n a fr e ig h t tr a in w a s a p p r o a c h
in g th e c r o s s in g h e w a s e n g a g e d in so w a r n in g c e r ta in tra v e le rs, a n d
w a s s tru ck b y a p a sse n g e r tr a in o n a n o th e r t r a c k a n d k ille d .
Judg
m en t w a s in th e p la n tifF s f a v o r i n th e s u p e r io r c o u r t o f C o b b C o u n ty .
T h e co m p a n y cla im e d o n a p p e a l th a t th e e m p lo y e e w a s e n g a g e d in
in tersta te com m erce .
It
a p p e a r e d th a t b o th te r m in i o f th e r o u te o f
th e p a ssen g er tr a in w e r e w ith in th e
fr e ig h t tr a in w e n t fr o m
Atlanta
State
o f G e o r g ia , w h ile th e
t o a p o in t in
Tennessee,
b u t th e re
w a s n o e v id e n ce th a t th a t p a r tic u la r tr a in h a d fr e ig h t f o r p o in ts
260710—Bull. 189—16----- 8
out-
114
BULLETIN OF THE BUBEAU OF LABOB STATISTICS.
side the State of Georgia. The court held that he was not within
the scope of the Employers’ Liability Act, Judge Atkinson, who de
livered the opinion, saying in part on this point, after a discussion
of the precedents:
To make a similar ruling in the case now under consideration
would require an extension of the rulings in the cases cited. In the
first place the duties of the watchman, under his employment, were
primarily for the safety of the public, and do not appear to have ex
tended to any control of the movements of the train, or to have ex
tended to repairs or physical maintenance of any of the defendant’s
indispensable instrumentalities of commerce, such as a railroad
bridge, tracks, or the like. In the second place it does not appear
that the freight train, on account of the approach of which the
watchman was warning pedestrians not to come upon the tracks, was
engaged in carrying freight to points beyond the limits of this State,
or that the passenger train which inflicted the injury was engaged in
interstate commerce. On these .facts the case is not controlled by the
ruling in the cases cited, and the doctrine of those cases will not be
extended.
The judgment was reversed, and a new trial granted to the com
pany, however, on the ground of an erroneous instruction to the jury.
This was to the effect that a statute creating a presumption, in cases
of damage to persons and property by the running of trains, that the
company is negligent applied to the case. This act was held by the
court not to apply in cases of actions for injury to or death of em
ployees of railroad companies.
E m p lo y e e s ’ L ia b il it y — R a ilr o a d
ute— I n t e r s t a t e C o m m e rce— Y a r d
C o m p a n ie s— F e d e r a l S t a t
C le r k — E vidence— Pecos &
Northern Texas Railway Co. v. Roseribloom., Supreme Court of
Texas (June 86,1915), 177 Southwestern Reporter, page 952.—Ac
tion was b r o u g h t in th is case b y th e w id o w o f a deceased e m p lo y e e
and o th e rs under the State la w s and the successive judgments w ere
in th e ir fa v o r . On a p e titio n f o r re h e a rin g the co m p a n y in siste d
th a t suit c o u ld not be m a in ta in ed b y the p la in tiffs in the character
in which th e y su ed , b eca u se the e m p lo y e e was e n g a g e d in in tersta te
com m e rce, a n d r e co v e ry sh o u ld be h a d , i f at all, u n d e r the F e d e ra l
E m p lo y e rs ’ L ia b ilit y Act.
Rosenbloom was a yard clerk whose duty it was to check up cars
and trains, take their numbers, and report in regard to them. Just
before his death he was walking between two tracks, on one of which
was a moving train which was leaving the yard and which contained
cars which had come in from New Mexico, and most of which were
destined for points outside of Texas. There was no evidence as to
the purpose of the employee in walking through the yards at that
time. The coiirt held that he was not engaged in interstate com
DECISIONS OF COURTS AFFECTING LABOB.
1 15
merce, Judge Phillips, who delivered the opinion refusing the com
pany’s motion for a rehearing, saying in part:
It was not shown here that Rosenbloom had been engaged in any
service connected with the interstate freight train, and in the state
of the evidence his walking through the yard can not be said to have
had any association with a duty in respect to it. The finding of the
court of civil appeals is definite to the effect that the evidence did
not disclose for what purpose he was walking through the yard,
or what character of work he had been engaged in just before his
injury.
E m pl o y e e s ’
L i a b il i t y — R ailro ad
C o m p a n ie s — F e d e r a l
S tat
I n t e r st a te C o m m e r c e — Y ard C l e r k — E vid e n ce — Pittsburgh,
Cincinnati, Chicago <& St. Louis Railway Co. v. Farmers' Trust <&
Savings Co., Supreme Court of Indiana (Mar. 10,1915), 108 North
eastern Reporter, page 108.— T h e tr u s t c o m p a n y n a m e d b r o u g h t
ute—
a c tio n as a d m in is tr a to r a g a in s t th e r a ilw a y c o m p a n y n a m e d f o r th e
d ea th o f W illia m M o r r o w o n D e c e m b e r 1 4 ,1 9 1 0 .
M orrow w as a y a rd
c le r k o f th e c o m p a n y , a n d it w a s h is d u ty t o d ir e c t th e s e tt in g a n d
m o v e m e n t o f f r e ig h t tr a in s in th e y a r d , a n d m a k e a r e c o r d o f a ll c a r s
p a s s in g in a n d o u t.
H e w a s k ille d b y an e n g in e w h ic h ca m e u p o n
h im w h ile in th e p e r fo r m a n c e o f th ese d u ties, w h ic h n e ce ssa rily t o o k
h im a b o u t th e y a rd s.
T h e c o u r t h e ld , f o l lo w in g th e S e a le ca se (3 3
S u p . C t. 651, B u i. N o . 152, p . 8 7 ) , th a t e v id e n c e th a t th ese d u tie s
re la te d d a ily t o in tersta te c a r s as w e ll as o th e r s w a s su fficien t, w ith
o u t th e n ecessity o f p r o o f th a t th e p a r tic u la r w o r k w h ic h h e w a s
d o in g a t th e m o m e n t o f th e in ju r y h a d t o d o w it h in te rsta te c o m
m erce, a n d re g a rd le s s o f th e sta tu s o f th e e n g in e w h ic h r a n h im
d o w n as e n g a g e d in in te rsta te o r in tra sta te traffic. T h e c ir c u it c o u r t
o f H o w a r d C o u n ty h a d r e n d e r e d a ju d g m e n t in fa v o r o f th e p la in t iff
f o r $5,000, a n d th is w a s affirm ed b y th e su p re m e c o u r t.
E m p lo y e r s ’ L i a b i l i t y — R a ilr o a d C om pan ies — F e d e r a l S t a t
u t e — N o n r e s id e n t A l i e n B e n e fic ia r ie s — McGovern v. Philadelphia
*&Reading Railway Co., Supreme Court of the United States (Dec.
14, 1914), 85 Supreme Court Reporter, page lffl.— T h is action was
b ro u g h t against the ra ilw a y com p a n y nam ed f o r dam ages f o r its
alleged negligence in causing the death o f P e te r M cG overn , an em
p loyee, b y his adm inistratrix on b e h a lf o f h is su rv iv in g parents, citi
zens o f G reat B rita in and Irela n d. T h e action w as b rou gh t under
the F ed eral E m p loyers’ L ia b ility A c t o f 1908. Mr. J ustice M c
K en n a delivered th e op in ion o f the cou rt, and the fo llo w in g is the
greater p art o f h is op in ion , statin g the h isto ry o f the case and the
116
BULLETIN OP THE BUREAU OF LABOR STATISTICS.
reasoning of the Supreme Court, which reversed the previous judg
ment in favor of the company:
There were two trials of the action. At the first trial the plaintiff
obtained a verdict. On motion of the railway company, the court,
being of opinion that the action could not be maintained for the
benefit of nonresident aliens, granted a new trial. (209 Fed. 975.)
On the second trial the railway company submitted to the court for
its affirmance the following propositions, among others: (1) The
parents of McGovern, being nonresident aliens, have no right under
the act of Congress for which the action might be maintained, and
therefore a verdict should be directed in favor of the company. (2)
Under all of the evidence in the case a verdict should be for the com
pany. The court affirmed the propositions and directed a verdict
for the company. The jury returned a verdict accordingly, and
judgment was duly entered" for the railway company. This writ
of error was then sued out.
In ruling upon the statute the district court considered that the
reasoning in Deni v. Pennsylvania Railroad Co., 181 Pa. 525, 37 Atl.
558; and m Maiorano v. Baltimore & Ohio Railroad Co., 213 U. S. 268,
29 Sup. Ct. 424, applied. In the Deni case the Supreme Court of
Pennsylvania, passing upon a statute of the State which permitted
certain named relatives to recover damages for death occurring
through negligence, held that the statute had no extraterritorial
force, and that the plaintiff in the action was not within its purview,
though its language possibly admitted of the inclusion of nonresi
dent aliens. The Maiorano case came to this court on writ of error
to the Supreme Court of Pennsylvania, where the doctrine of the
Deni case was repeated and applied. This ruling was simply accepted
by this court as the construction of the State statute by the highest
court of the State.
We concede some strength of persuasion to the Pennsylvania deci
sion, but to it may be opposed the ruling in other jurisdictions.
(Mulhall v. Fallon, 176 Mass. 266, 57 N. E. 386 [Bui. No. 32, p. 153];
Kellyville Coal Co. v. Petraytis, 195 111. 217, 63 N. E. 94; Atchison,
Topeka & Santa Fe Railroad Co. v. Fajardo, 74 Kans. 314, 86 Pac.
301.) In the latter case and in Mulhall v. Fallon many other cases
are reviewed, including English and Canadian cases, and it was con
cluded that the weight of authority in this country and in England
was that alienage is not a condition affecting a recovery under acts
such as that involved in the case at bar.
We may refer to these cases for their reasoning without reproduc
ing it, and need not do much more than add that the policy of the
Employers’ Liability Act accords with and finds expression in the uni
versality of its language. Its purpose is something more than to give
compensation for the negligence of railroad companies. Even if
that were its only object, we might accept the distinction expressed
in Mulhall v. Fallon, supra, between the duties imposed by a statute
upon persons in another State and benefits conferred upon them.
Extraterritorial application would naturally not be given to the first,
“ but rights can be offered to such persons, and if, as is usually the
case, the power that governs them makes no objection, there is noth
ing to hinder their accepting what is offered.”
The rights and remedies of the statute are the means of executing
its policy. If this “ puts burdens on our own citizens for the benefit
DECISIONS OF COURTS AFFECTING LABOR.
1 17
of nonresident aliens,” as said by the district court, quoting the Deni
case, supra, it is a burden imposed for wrongdoing that has caused
the destruction of life. It is to the prevention of this that the
statute is directed. It is for the protection of that life that compen
sation for its destruction is given and to those who have relation to it.
These may be wife, children, or parents. The statute, indeed, dis
tinguishes between them, but what difference can it make where they
may reside ? It is the fact of their relation to the life destroyed that
is the circumstance to be considered, whether we consider the injury
received by them or the influence of that relation upon the life de
stroyed.
E mployers ’ L ia b il it y — B ailroad C om panies — F e d e r a l S tat
S a f e t y A ppliances — D rawbars a n d C ouplers— St. Louis <&
ute —
San Francisco Railroad Co. v. Conarty, Supreme Court of the United
States (June 14, 1915), 35 Supreme Court Reporter, page 785.—
F an n ie M. C on a rty b rou gh t action as adm in istratrix against th e rail
road com pan y nam ed f o r dam ages f o r personal in ju ries resulting
in death. T h e in ju ries w ere received in a collision betw een a sw itch
engine on w h ich the em ployee was rid in g and a load ed fre ig h t car.
T h e ca r w as about to be p la ced on an isolated tra ck f o r repair, and
was le ft near the sw itch lea d in g to th at tra ck w h ile oth er cars w ere
bein g m oved ou t o f th e w a y, a m atter o f abou t five m inutes. D u rin g
that tim e the sw itch en gin e cam e d ow n th e track and the collision
occurred. Darkness and a h ead ligh t on another lo com otiv e tended
to obscure the car. T h e deceased and tw o others w ere stan d in g on
the foo tb o a rd at th e fr o n t o f the sw itch engine. T h e others stepped
off, w h ile h e rem ained on th e foo tb o a rd and w as cau gh t betw een
the engine and the b o d y o f th e car. T h e d ra w ba r and cou p ler w ere
m issing fr o m that end o f the car, and the n egligence o f the com pan y
in v iola tin g the F ed eral safety applian ce act b y u sin g a ca r thus
d efective was the fa u lt com plain ed o f as the basis o f the action.
There w as evidence th at i f the m issing p arts h a d been present th ey
w ould have k ept the engine and ca r a sufficient distance apart so
that the em ployee w ou ld n ot h ave been crushed. T h e three men
were on th eir w a y to a p oin t farth er on, and d id n o t intend to p er
fo rm any d u ty reg a rd in g th is p articu la r car b y co u p lin g it o r other
wise. T h e ca r w as load ed w ith interstate fre ig h t, and the em ployee
was engaged in interstate com m erce. He died fro m the in ju ries six
days later, leavin g a w id ow and three m in or children. Ju d gm en t f o r
$10,000 in fa v o r o f the adm inistratrix w as affirmed b y the Suprem e
C ou rt o f A rkansas. T h e United States Suprem e C ou rt reversed
this decision, as w ill app ear fro m the fo llo w in g quotation fr o m the
op in ion delivered b y Mr. Justice Van D ev an ter:
The principal question in the case is whether, at the time he was
injured, the deceased was in the class of persons for whose benefit
the safety appliance acts required that the car be equipped with
118
BULLETIN OF TH E BUBEAU OF LABOR STATISTICS.
automatic couplers and drawbars of standard height; or, putting? it
in another way, whether his injury was within the evil against which
the provisions for such appliances are directed.
The safety appliance acts make it unlawful to use or haul upon a
railroad which is a highway for interstate commerce any car that
is not equipped with automatic couplers whereby the car can be
coupled or uncoupled “ without the necessity of men going between
the ends of the cars,” or that is not equipped with drawbars of
standard height, the height of the drawbar having, as explained in
Southern Railroad Co. v. Crockett, 234 U. S. 725, 34 Sup. Ct. 897,
an important bearing on the safety of the processes of coupling and
uncoupling and on the security of the coupling when made. It is
very plain that the evils against which these provisions are directed
are those which attended the old-fashioned link and pin couplings
where it was necessary for men to go between the ends of the cars to
couple and uncouple them, and where the cars, when coupled into a
train, sometimes separated by reason of the insecurity of the coup
ling. Nothing in either provision gives any warrant for saying that
they are intended to provide a place of safety between colliding cars.
On the contrary, they affirmatively show that a principal purpose
in their enactment was to obviate “ the necessity for men going be
tween the ends of the cars.”
We are of opinion that the deceased, who was not endeavoring
to couple or uncouple the car or to handle it in any way, but was
riding on the colliding engine, was not in a situation where the ab
sence of the prescribed coupler and drawbar operated as a breach
of a duty imposed for his benefit, and that the supreme court of the
State erred in concluding that the safety appliance acts required it
to hold otherwise.
E m p lo y e r s ’ L i a b i l i t y — R a ilr o a d C om panies— F e d e r a l S t a t u t e —
S p e c ia l C o n t r a c t s — N o tic e — Chicago, Rock Island <&Pacific Rail
way Co. v. Pearce, Supreme Court of Arkansas (Mar. 29,1915), 175
South/western Reporter, page 1160.— R . E d g a r P earce b ro u g h t action
against the com pan y nam ed f o r dam ages fo r . personal in ju ries su f
fered w h ile in its em ploym en t in interstate com m erce, and recovered
a sm all verd ict in the circu it cou rt o f P e rry C ounty. T h e com pa n y
appealed fro m the ju d gm en t in h is fa v o r , cla im in g th at h e w as n ot
entitled to recover, un der the term s o f a con tract entered in to a t the
b egin n in g o f the em ploym ent. I n this he agreed to g iv e n otice
w ithin 30 d ays o f an in ju ry , statin g the tim e, place, m anner and cir
cum stances o f the in ju ry , and attem pted t o w aive, on b e h a lf o f h im
s e lf and h is representatives, a ll claim f o r dam ages in case o f fa ilu re
to g iv e such notice. O n this appeal he contended that the contract
w as in con flict w ith the F ed eral E m p loyers’ L ia b ility A c t under w h ich
he sought dam ages, and the cou rt u p h e ld this view and affirmed the
ju d gm en t below . I t cited th e case o f E l P a so & N ortheastern R a il
w a y v. G utierrez, 215 U. S. 87, 30 Su p. Ct. 21 (B u i. N o. 86, p . 316).
I n that case a statute o f N ew M ex ico, then a T e rrito ry , req u irin g n o
DECISIONS OP COURTS AFFECTING LABOR.
119
tice, was held unconstitutional. Judge McCulloch, who delivered the
opinion, spoke in part as follows:
Now, the point of that decision, so far as it applies here, is that,
if the first employers’ liability act superseded Territorial statutes on
this subject, the last employers’ liability act, which applies to all
persons working in the service of railroads in interstate commerce,
•likewise supersedes any State legislation on the subject, and it neces
sarily follows that if other legislation is thus superseded and set at
naught, contracts between the parties are also without force. We
think that conclusion is correct upon principle.
E m p lo y e r s ’
L ia b il it y — R a ilr o a d
C om panies— V i o l a t i o n
of
S afe ty A p p lia n c e A c t — I n t r a s t a t e M ov em e n t o f D e f e c t i v e C a r—
Tessas <&Pacific Railway Co. v. Rigsby, United States Circuit Court
of Appeals, Fifth Circuit (Apr. 29, 1915), 222 Federal Reporter,
page 221.— T h is w as an action f o r in ju ries received b y one R ig sb y ,
the com pa n y b ein g charged w ith negligence in m o v in g a ca r w h ich
was d efective, in viola tion o f th e safety applian ce acts o f the U n ited
States. Ju d gm en t h ad been in R ig sb y ’s fa v o r in th e tria l cou rt, and
was affirmed on appeal, the cou rt ru lin g that civ il lia b ility attaches
even w here crim in al lia b ility does n ot, and th at interstate use is n ot
necessary to b rin g the m ovem ent o f such a car w ith in th e p ro h ib itio n
o f the act, say in g that “ I n th is respect there is a m arked difference
between the safety applian ce acts and the E m p loyers’ L ia b ility A c t.”
T h e op in ion w as delivered b y J u d g e W a lk er, the co n clu d in g p o r
tion b ein g as fo llo w s :
The evidence in this case was without conflict to the effect that the
injury to the defendant in error, a switchman employed by the
laintiff in error, a common carrier engaged in interstate commerce
y railroad, was due to the defective condition of. one of the rungs
or grab irons constituting the ladder to the top of a box car which
at the time was standing on the plaintiff in error’s main line at
Marshall, Tex., while switching was going on which was required
to complete a movement previously started of that with other cars
from another track in the yard to the plaintiff in error’s repair shop
at that place. There was an absence of evidence tending to prove
that the defect which caused the injury could not as well have been
repaired or removed without making the movement of the car which
had been partially executed when the injury occurred. We are of
opinion that the evidence showed a right of recovery in the defend
ant in error.
E
E m p lo y e r s ’ L i a b i l i t y — Seam en — M e d ic a l T r e a t m e n t —North
Alaska Salmon Co. v. Larsen, United States Circuit Court of Ap
peals, Ninth Circuit (Feb. 1,1915), 220 Federal Reporter, page 93.—
Peder Larsen shipped on the Olympic for a voyage from San Fran
120
BULLETIN OF THE BUREAU OF LABOR STATISTICS.
cisco to the salmon cannery of the company named at Locanock,
Alaska, and return. On July 12, 1912, while loading fish into a
bucket to be hoisted to the wharf, he sustained an injury to his knee.
He alleged that the company failed to provide him with proper
medical care after this injury, and compelled him to work, and that
he should have been sent to a point on shore where he could have
received proper medical attention. The jury in the trial court
awarded him a verdict of $506, and the company appealed.
The company’s first contention was that the case was not within
the admiralty jurisdiction of the court. Larsen’s contract was for
service as a seaman, fisherman, beachman, trapman, “ and such other
services as might be required.” The court held that this was a mari
time contract, citing cases in support of this view.
The next contention for the defense was that the finding that the
company did not furnish the employee with proper care and attend
ance was not supported by the evidence, and the company showed
that it had in its employment at Locanock a regularly licensed phy
sician. There was, however, evidence that the physician persistently
minimized the injury and refused to treat it, and that the superin
tendent refused to send the employee ashore to other physicians.
The last point of interest was whether recovery could be had for
loss of time after the conclusion of the contract of employment with
the company. The court held that such recovery could be had, at
least in a case like this where there was negligence on the part of
the employer, citing cases to that effect. The judgment for the
plaintiff was affirmed.
E m p lo y e e s ’ L i a b i l i t y a n d W o r k m e n ’s C om p en sa tion — E l e c t i o n
b y I n ju r e d E m p lo y e e a n d b y P e r s o n a l R e p r e s e n t a tiv e — Behrin
ger v. Inspiration Copper Co., Supreme Court of Arizona (July 7,
1915), 1^9 Pacific Reporter, page 1065.—Belle Behringer, adminis
tratrix of Fred A. Behringer, deceased, brought action against the
company named for the death of Behringer, who was its employee.
Her suit was brought under the statute providing for the survival
of actions in cases of fatal injury, and the question arose whether
she could sue in this manner, or should proceed under the compen
sation act. An objection to the complaint as insufficient had been
sustained in the superior court of Gila County, and judgment en
tered dismissing the complaint. The complaint did not state that
the employer and employee had disaffirmed the provisions of the
compensation act. The court held, however, that this was matter of
defense, and had been waived by the defendant in setting up a
demurrer.
DECISIONS OP COURTS AFFECTING LABOB.
121
Taking up the question of the power of the administratrix to em
ploy the different methods for recovery, Judge Boss, who delivered
the opinion, called attention to the provision of the constitution
giving the legislature power to pass the compulsory compensation
act, and quotes that amendment, which concludes as follows:
Provided, That it shall be optional with said employee to settle for
such compensation, or retain the right to sue said employer as pro
vided by this constitution.
The court held that this limited the legislature, that the option
provided for was personal to the employee, that the attempt of
the legislature in the law as passed to give an election to the personal
representative, in case the employee did not make such election be
tween the accident and his death, was void, and that in such case of
failure on the part of the employee to elect, the representative’s
rights were limited to a suit under the act governing fatal injuries
or under the employers’ liability act of the State. The following
quotation is from the concluding portion of the opinion:
The attempt of the legislature to enlarge the scope of the consti
tutional mandate so as to afford the remedy therein mentioned to the
personal representative or heirs or dependents of the deceased work
man in the absence of an election by the workman to accept com
pensation, is beyond the power and authority of the legislature, and
of no avail.
We conclude that the workmen’s compulsory compensation act has
no application to the state of facts before us as presented by the com
plaint and demurrer; that if, as a matter of fact, the deceased after
the injury, and before his death, elected to accept compensation un
der that act, it is matter of defense to be raised by plea or answer,
and that the remedy is personal to the workman, he only having the
right to elect so as to make such election binding on him and his
personal representative.
E m p lo y e r s ’ L i a b i l i t y I n s u r a n c e — E m p lo y m e n t o f M in o r C o n
t r a r y t o L a w — “ R a i lr o a d s ” — Oxford Coal Co. v. Fidelity <& Casu
alty Co. of New York, Supreme Court of Pennsylvania (Mar. 1,
1915), 93 Atlantic Reporter, page 1078.—The coal company named
brought action against the insurance company for the amount paid by
the former as damages to an injured employee. The insurer made
answer that the injury was caused by a minor under 18, employed
contrary to the statute which forbids the employment of such minors
at switch tending, etc., and as brakemen, firemen, engineers, motormen, conductors upon railroads, and the liability was therefore
not covered by the policy. The minor, Conway, had been employed as
a switch tender, but at the time of the accident in question was acting
as engineer, upon a private narrow-gauge railroad three-fourths of a
122
BULLETIN" OF TH E BUREAU OF LABOB STATISTICS.
mile long, operated by the coal company in its coal washerv. The
coal company contended that the term “ railroads” as used in the
statute referred only to railroads which were common carriers. The
court, however, after a discussion of the rules for interpretation
of statutes, held that the word here should be understood1 in its
broadest sense, Judge Mestrezat, who delivered the opinion, using the
language here quoted, and upholding the decision of the court of
common pleas in favor of the insuring company.
The mischief intended to be remedied and the undoubted purpose of
the act clearly indicate that the word “ railroads ” was used in its
broadest sense' and applies wherever the road or way may be so desig
nated. It was not for the protection of the public, but specifically to
provide for the health and safety of minors within the designated age,
and the danger to them is as great on a private railroad at an industrial
plant as on a commercial railroad or one used as a common carrier.
In fact, there are reasons which suggest themselves why switch tend
ing and running an engine over a short industrial road would be
more dangerous than on a railroad used as a common carrier. A
private railroad at an industrial plant is used for the transportation
of freight. It is not built for passenger traffic, and is therefore not
constructed with a view to the safety of such traffic. The legislative
thought was to protect minors, under 18 years of age, against dangers
incident to switch tending and operating locomotive engines on rail
roads, and it being apparent that the danger is as great on a private
as a public railroad, on a railroad at an industrial plant as on a
railroad operated as a common carrier, it is manifest that the word as
used in the statute applies to the plaintiff’s railroad.
E m p lo y e r s ’ L i a b i li t y I n s u r a n c e — E m p lo y m e n t o f M in o r — D a n
g erou s M a c h in e r y —Great Lakes Laundry Co. v. Aetna Life Insur
ance Co., Supreme Court of Michigan (Mar. 17,1916), 151 North
western Reporter, page 744.—The laundry company named employed
Bertha Roddy, a girl 16J years of age, and in July, 1911, her hand was
injured by being burned by contact with the hot roller of a mangle
into which she was feeding goods. As the company was indemnified
by the insurance company against liability losses, it notified the lat
ter company, but the insurance company denied liability, on the
ground that the laundry company had unlawfully employed a female
under the age of 21 years in an occupation dangerous to life and
limb. A settlement having been made with the employee for the sum
of $1,623, the laundry company sued the insurance company for this
amount.
On the trial in the circuit court of Chippewa County it was shown
that the machinery had been in use for 10 years and no accident had
previously occurred, and that it was equipped with an automatic
feeder, and with a guard roll to warn the operator if the hand was
DECISION'S OF COURTS AFFECTING LABOR.
123
allowed to follow the goods too near the hot roll. Witnesses testified
that they did not consider the machinery dangerous, and the court
held that the question was one for the jury. The verdict and judg
ment were for the plaintiff for the amount claimed. The supreme
court affirmed this judgment, saying, “ We are not of the opinion
that this machinery was so obviously dangerous to life and limb that
we should declare it so, as a matter of law.” It also held that the
reports of the inspections of the laundry made by the insurance com
pany after it assumed the risk, stating that there was no specially
dangerous work connected with the business nor dangerous points
about the machinery unprotected, and evidence that the laws re
specting the employment of minors were observed, had been properly
admitted by the trial court.
E m p lo y m e n t O f f i c e s — C o n s t r u c t io n o f S t a t u t e — T e a c h e r s ’
A g e n c y — Huntworth v. Tanner, Attorney General, et al., Supreme
Court of 'Washington, (Nov. 6, 1915), 15% Pacific Reporter, page
523.—F. W. Huntworth, doing business as the Pacific Teachers’
Agency, brought suit against the attorney general of the State to
restrain a threatened arrest and prosecution for violation of the law
relating to employment agencies.
The court held that the plaintiff could properly sue for an injunc
tion where it appeared that an arrest would greatly injure his busi
ness, and was not bound to wait until the prosecution had been
actually commenced against him.
The definition of the words “ worker ” and “ workman ” were care
fully considered, and it was held that school-teachers do not come
within their meaning. It was also remarked that the purpose of the
act is to protect workmen, while teachers are usually in a position to
guard their own interests, and receive a contract for a definite term,
usually one year, before paying any fee except a small preliminary
fee. A judgment in favor of the defendants was therefore reversed,
with instructions to enter a perpetual injunction against the defend
ants, to prevent their enforcement of the law in the case of the
proprietor of the teachers’ agency.
E m p lo y m e n t O f f i c e s — L ic e n s in g a n d R e g u la t io n — P o w e rs o f
C om m issioner o f L a b o r— C o n s t i t u t i o n a l it y o f S t a t u t e —People
v. Brazee, Supreme Court of Michigan (Dec. 18,1914), 149 North
western Reporter, page 1058.—Le Roy Brazee was convicted of a
violation of Public Acts, 1913, No. 301, providing for the licensing
and regulation of private employment agencies, and attacked the
124
BULLETIN OF TH E BUREAU OF LABOR STATISTICS.
constitutionality of the act. The act provides a different fee for the
license of agencies in cities of 200,000 and over from that for smaller
cities, and that licenses may be revoked by the commissioner of labor
for violations of the law.
Judge Brooke, who delivered the opinion of the court, first sum
marized the provisions of the act, and continuing said:
Respondent avers that said act is unconstitutional and void, for
many reasons which we find it unnecessary to enumerate at large in
this opinion. It may be said, generally, that the claim of the re
spondent is: (1) That the title of the act is insufficient. (2) That
the fee charged is a tax and as such lacks the equality or uniformity
demanded by the constitution. (3) That it is unreasonable, op
pressive, prohibitory, and not regulative. (4) That it vests arbi
trary, executive, legislative, and judicial power in the State labor
commissioner to say whether any man may engage in this lawful
business. (5) That it is discriminatory class legislation. Other
reasons are urged, which we believe may fairly be considered as
covered by those above set forth.
With reference to the first contention, we think it is sufficient to
say that in our opinion the title is sufficient and does not offend
section 21 of article 5 of the constitution.
The opinion cites and examines a number of decisions of the Michi
gan court and those of other States defining the police power and
upholding it in similar cases, among others Williams v. Fears, 179
U. S. 270, 21 Sup. Ct. 128 (Bui. No. 36, p. 976), an extract being
given from the opinion of Chief Justice Fuller. The concluding
paragraph of this part of Judge Brooke’s opinion reads:
From a careful consideration of all the authorities, we have reached
the conclusion that the business is one properly subject to police
regulation and control. The character of those with whom the busi
ness is likely to be conducted, in point of capacity for self-protec
tion from fraudulent practices, is such that the legislature might very
properly determine that a license system should be adopted, to the
end that dishonest and disreputable persons might, in a measure,
be excluded from a right to engage in the business and means
afforded for the detection of fraud and the redress of wrongs. It
seems clear that the character of the business is such as to facilitate
the practice of fraud upon the ignorant and credulous.
The court also held that the license fee is not excessive, and that
the requirement of a larger fee in cities of over 200,000, of which
there is but one at the present time, did not invalidate the act as
being local legislation in the guise of general. As to the powers of
the commissioner of labor Judge Brooke said:
There remains for consideration only the question whether the act
confers upon the commissioner of labor arbitrary powers j*udicial in
their character.
The legislature frequently delegates to boards or commissions the
right and power to determine certain facts upon which action is
DECISIONS OP COTJBTS AFFECTING LABOR.
125
based, and this power has frequently been challenged in our own and
'other courts.
At this point cases are considered upholding the delegation of
such duties to saloon licensing boards and to the State board of
registration with reference to revocation of the certificates of physi
cians. A case involving the railroad commission is referred to as
follows:
In the late case of Michigan Central Bailroad Co. v. Michigan
Railroad Commission, 160 Mich. 355, 125 N. W. 549, the legislation
was attacked upon the ground that legislative pOwer was conferred
upon the commission. We there said, speaking through Justice
Stone:
“ It is held that the functions and duties of such commissions are
administrative or ministerial, and neither legislative, executive, or
judicial.”
The opinion concludes as follows:
We are of opinion that the act in question is a valid exercise of the
police power of the State, and that the judgment must be affirmed.
E m p l o y m e n t O ffice s — P r o h ib it io n o f R e c e ip t of F ees f r o m
P ersons S e e k in g E m p l o y m e n t — C o n s t it u t io n a l it y o f S t a t u t e —
Wiseman et al. v. Tanner et al., United States District Court, West
ern District of Washington, Northern Division (Dee. 24,191%), SHI
Federal Reporter, page 694.— R . B . W is e m a n a n d o th e rs file d a b ill
in e q u ity a g a in s t th e a tto r n e y g e n e r a l o f th e S ta te o f W a s h in g to n
a n d th e p r o s e c u tin g a tto r n e y o f K i n g C o u n ty , f o r a n in ju n c tio n
a g a in st th e e n fo rc e m e n t o f th e p r o v is io n s o f in itia tiv e m ea su re N o .
8, a d o p te d b y th e v o te r s o f th e S ta te in N o v e m b e r , 1914. T h is
m easu re p r o h ib it s th e t a k in g o f fe e s b y e m p lo y m e n t a g e n ts fr o m
p erson s s e e k in g e m p lo y m e n t. T h e co m p la in a n ts a lle g e d th a t th e ir
m a n n er o f c o n d u c t in g th e b u sin ess w a s h o n e s t a n d th a t th e ir ch a rg e s
f o r se c u r in g p o s itio n s , r a n g in g fr o m 75 ce n ts t o $9, w e re rea son a b le,
a n d th a t th e e n fo r c e m e n t o f th e a c t w o u ld d e s tr o y th e ir business,
w h ich w as o f v a lu e.
o f th e
State, a n d
A ffid a v its f r o m officials o f a la b o r o r g a n iz a tio n ,
o f th e c it y o f
Seattle w e re filed by th e defense, t o
th e
effect th a t th ere h a d b een co n sta n t c o m p la in ts o f fr a u d a n d e x to r tio n
been c a r r ie d on .
The court, in an opinion by Judge Neterer, from which Judge
Cushman dissented, denied the injunction and dismissed the bill. It
pointed out that the police power may be exercised by a State when
ever necessary to protect its citizens from fraud or extortion, and
that the necessity is a matter for legislative determination, and not
subject to review by the courts. Numerous decisions, including some
in th e e m p lo y m e n t a g e n c y system as it h a d
126
BULLETIN OP TH E BUREAU OF LABOR STATISTICS.
of the United States Supreme Court, are cited and quoted in support
of this view.
In the concluding portion of the opinion Judge Neterer said:
It is clearly apparent that what the regulation shall be and how
to be administered are matters for the State, and a strong preponder
ant opinion being prevalent among the electors of the State, they
having expressed at a general election that the public welfare re
quired regulation as set forth in the act, and having declared that the
evil existed and shall be met by prohibiting the collection of fees
from a class of persons, the court can not interfere, unless it appears
that the act has no real or substantial relation to the evil sought to
be remedied, which does not appear in this case. The court can not
say that the electors of the State, in adopting the act which declared
that .the welfare of the State required the prohibition of the collec
tion of fees from the sources designated, did not exercise a reason
able discretion in declaring a public policy as in the act set forth.
The large number of decisions cited by complainants do not mili
tate against or take from the quotations of the cases herein referred
to. The public welfare is the determining factor, and the expressed
conclusion of the electors of the State is that the interest of the
public generally requires the regulation provided by the act, and this
is conclusive upon the court.
The fact that complainants may have conducted their business
honestly, and in such a way that no complaint could be rightfully
lodged against them, would not prevent the State from adopting the
measure, if necessary to reach persons who have not so conducted
their business, but, as stated before the bar, in such a way as to have
three men for one job—one upon the job, one going to the job, and
one coming from the job—and receiving compensation from all. The
honest must suffer with the others in regulating the business of the
general class. The act is within the police power of the State and
does not infringe complainant’s rights.
E x a m in a tio n a n d L ic e n s in g o f P lu m b e r s — R e c o v e r y f o r S e r v
ic e s b y U n lic e n s e d W o rk m e n — Gottesman v. Barer et al., Supreme
Court of New York, Appellate Term, First Department (Mar. 18,
1915), 15% New York Supplement, page 1-88.—Morris Gottesman
brought action for his services as a master plumber, and secured
judgment in the municipal court of the Borough of Manhattan. The
defendants appealed on the ground that, not having been licensed in
accordance with the provisions of sections 415 and 416 of the Greater
New York charter, added by chapter 754 of the Laws of 1913, he
could not legally recover for such services. This view the supreme
court adopted, reversing the judgment and dismissing the complaint,
citing Milton Schnaier & Co. v. Grigsby, 199 N. Y. 577, 93 N. E .
1125.
Judge Guy, who delivered the opinion, said in part:
When the plaintiff’s evidence showed that he had made a contract
as a master plumber, and that the work under such contract, for
DECISION’S OF COURTS AFFECTING LABOR.
127
which he sought a recovery, was performed by him in the Borough
of Brooklyn, it was incumbent upon him to go further and prove
registration in pursuance of the statute.
By reason of the plaintiff’s failure to make such proof, no cause of
action was established, and the complaint should have been dismissed.
The plaintiff’s testimony shows, however, that in June, 1912, he re
ceived a license from the examining board of plumbers; that on May
9, 1913, the board revoked his license for fraud in passing the ex
amination upon which the certificate was issued and for making false
statements in his application; that in July, 1913, upon the plaintiff’s
application, the board declined to issue a certificate to him because
of his fraud in the examination, but that on April 22, 1914, several
months after the performance of the work in question, the board, as
shown by the minutes of its meeting on that day, took the following
action:
“ The following-named persons having submitted to a new ex
amination in March, and the board having gone over their examina
tion papers and having found them to be qualified to engage in busi
ness as master plumbers, it hereby authorizes the issuance of their
certificates and rescinds its prior action in refusing to issue the same:
Morris Gottesman, 117 Columbia Street, Manhattan,” etc.
Not only, therefore, did the plaintiff fail to prove the essential ele
ment of registration in his effort to establish a cause of action, but
his own testimony showed affirmatively that between May 13, 1913,
and April, 1914, he had no plumber’s license, so that he had no license
at the time he made the contract and did the work in question.
It is clear that the so-called rescission of the action of the board,
mentioned in the minutes of its meeting of April 22,1914, when read
in connection with the context, was really no rescission; it was merely
a change of action by the board, based on the fact that since the prior
refusal in July, 1913, to reissue a certificate, the plaintiff had passed a
new examination.
E x e m p tio n o f W a g es fr o m A t t a c h m e n t — D e b ts f o r N e ce s
saries— C o n s t i t u t i o n a l it y o f S t a t u t e — Bofferding v. Mengelkoch
et <d., Supreme Court of Mirmesota (Mar. 19, 1915), 152 North
western Reporter, page 135.—William Bofferding brought action
against Alex Mengelkoch and others, on a judgment obtained by the
plaintiff against the defendant, and garnisheed the wages of the
defendant. On disclosure it appeared that $25 was due the defend
ant from the garnishee for wages earned during the previous 30
days, and that the garnishee had paid defendant $35 for wages
earned during that period. The trial court therefore gave judgment
for the plaintiff against the garnishee for the sum of $25, giving
effect to Laws, 1913, chapter 375, subdivision 16, which exempts from
seizure and sale:
The wages of any person, not exceeding thirty-five dollars, due for
any services rendered by him for another during thirty days preced
ing any attachment, garnishment or the levy of any execution against
him: Provided, however, That if the action, in which such attach
128
b u lle tin
o f t h e b u b ea u o f la b o r s t a tis tic s .
ment, garnishment, or levy of execution is made, is brought to re
cover the purchase price of necessaries for the use of the debtor or
his family dependent upon him, and any such debtor shall have been
paid wages amounting to thirty-five dollars or more earned during
such thirty-day period, then in any such case, such debtor shall not
be entitled to any exemption under this subdivision in wages earned
during said thirty-day period, except the thirty-five dollars thereto
fore paid.
Judge Schaller, who delivered the opinion of the court, quoted the
amendment made to the constitution in 1888, providing that all
property, even though otherwise exempted, should be liable to seizure
for debts for work and material furnished in the construction, repair
and improvement of the same; and real property, for debts for labor
and service performed. It was stated that prior to this amendment
decisions were rendered to the effect that the legislature had no
power to discriminate in favor of a certain class of debts by making
the legal exemptions inapplicable to them, and that the exceptions
contained in the amendment were made soon after the announce
ment of these decisions. Continuing, the opinion reads, in part:
The settled law of this State from the very beginning, under con
stitution, article 1, section 12, has been that, unless specifically au
thorized by the constitution, there can be no discrimination in favor
of any debt or class of debts, excepting, of course, such as the prop
erty is specifically subject to when acquired by the debtor.
[Cases
cited.] W e are therefore constrained to hold that the proviso to
Laws, 1913, chapter 375, above quoted, is imconstitutional and void.
It does not follow, however, that the main portion of this act is
invalid. The act in question is certainly not fatally emasculated by
cutting out the proviso, nor are we convinced that the latter was an
indispensable inducement to the amendment of Revised Laws, 1905,
section 4317, subdivision 16, by increasing the amount of the wage
exemption from $25 to $35, which, with the exception of the proviso,
was the only change made by the act of 1913 here involved. While
it may serve no purpose to inquire into the motives which actuated
the legislature in making this increase, one reason which readily sug
gests itself is the gradual and universal rise in the prices of nearly all
the necessaries of life during the last few years.
We hold that so much of Laws, 1913, chapter 375 (G. S. 1913,
sec. 7951), subdivision 16, as is contained in the proviso thereto, is
obnoxious to article 1, section 12, of our constitution, but that the
remainder of the act is not thereby invalidated.
H o u r s o f L a b o r— C lo s in g H o u r s o f M e r c a n t il e E s t a b lis h
m en ts— C o n s t i t u t i o n a l it y o f S t a t u t e — SavUle v. Corless, Supreme
Court of Utah (July 20,1915), 151 Pacific Reporter, page 51.— C h ap
ter 23 o f the L aw s o f U tah, 1915, requires m ercantile establishments,
w ith certain exceptions, in cities o f 10,000 o r m ore p op u lation in the
State, to close at 6 o ’clock p. m. every business d ay in the year, except
DECISIONS OF COURTS AFFECTING LABOR,
129
the six days immediately preceding Christmas. The plaintiffs were
arrested and confined for violation of this act, and sued out a writ
of habeas corpus against the sheriff in whose custody they were,
contesting the validity of the law as in conflict with the Federal and
State statutes. The court held the act invalid, and ordered the
plaintiffs released. The facts involved, and the reasons for declaring
the act unconstitutional, were shown in the opinion by Judge Straup
as follows:
The constitution provides that the subject of acts shall be clearly
expressed in the title. There is a subject expressed in this title. It
is 66An act to regulate the working hours of all employees of mercan
tile establishments.” The act itself provides, section 1:
“ That all mercantile and commercial houses, either wholesale or
retail, or both, in the cities of ten thousand population and over, shall
close at six o’clock in the evening of every business day of the year,
except for the period of six business days immediately preceding
December 25 of each year.”
Section 2:
“ This act exempts all commercial and mercantile houses that deal
exclusively in, or whose major portion of stock consists of foodstuffs,
meats, and other provisions of a perishable nature; which are re
garded as, and are, public necessities.”
Section 3:
“ That this act also exempts drug stores, which are regarded as,
and are public necessities.”
It is thus seen that the title of the act is to regulate the working
hours of employees of mercantile establishments; but when we look
to the body of the act, we find nothing concerning such a subject, but
find one wholly different, a subject fixing a closing hour for mercan
tile and commercial houses. The act itself forbids them to be open
after 6 o’clock, regardless of the subject of employees or of their
working hours. It just as much forbids one who has no employees
from conducting his business, or keeping it open, after 6 o’clock, as
one who has or conducts his business with employees. It makes the
business itself unlawful after 6 o’clock. No such subject is expressed
in the title.
The act is defended on the ground that it is a police measure, and
that as such it was competent for the legislature to fix and regulate
working hours of employees of mercantile and commercial houses and
establishments. As has been seen, the act itself in no manner relates
to such a subject. If, however, that be the intent, then does the act
contravene the fourteenth amendment to the Constitution of the
United States. That very clearly is shown by the case of Lochner v.
New York, 198 U. S. 45,25 Sup. Ct. 539 [Bui. No. 59, p. 340]. There,
the State of New York iorbade the employment of bakers longer than
10 hours per day. The Supreme Court or the United States held the
act bad, because it abridged the right to contract. The act there, as
here, was defended as a police measure; but the court held that it in
no manner related to public health, morals, safety, or general welfare,
nor to the health, morals, or safety of those engaged in the business.
One of the plaintiffs is a merchant engaged in selling men’s clothing,
26071°—Bull. 189—16-----9
130
BULLETIN OF THE BUBEAU OF LABOB STATISTICS.
furnishing goods, boots, shoes, jewelry, etc., in Salt Lake City. He
conducted his business without help. The other plaintiff is engaged
in selling cigars at retail in Salt Lake City. Both of them sold
goods after 6 o’clock p. m. That, and that only, constitutes the al
leged violation. It also is averred and admitted that commercial
houses, or establishments in Salt Lake City, and other cities of
10,000 or more population, and exempt under the act, deal in and sell,
after 6 o’clock, the same kind of goods dealt in and sold by the plain
tiffs after that hour. Whether tne act be viewed as expressed in the
title, or as indicated in the body of the act, we do not see how it can
be defended as a police measure. The business conducted bv the
plaintiffs does not affect the health or safety of those engaged'in it.
Nor is the act directed to enterprises affecting health, morals, safety,
or general welfare. It strikes at all commercial houses and estab
lishments, not within the exemptions, and forbids them to be open
after 6 o’clock, regardless of the character of the business carried on,
and regardless of whether it does, or does not, affect health, or morals,
or safety. It, therefore, can not be upheld as a police measure.
The act was also found unconstitutional as special legislation, both
on account of itai applying only to cities of 10,000 population or
over, and because it exempted drug stores, and commercial houses
.dealing exclusively or mainly in foodstuffs, meats, and provisions of
a perishable nature, such places being permitted by the act to remain
open and sell anything after 6 o’clock.
H o u r s o f L a b o r— E ig h t -h o u r Dat— S t a t io n a r y F ire m e n —
CoNSTrrunoNAiiiTY o f S t a t u t e —State v. Legendre, Supreme Court
of Louisiana (Nov. 2,1915), 70 Southern Reporter, page 70.—James
Legendre was indicted for violation of a Louisiana statute, Act No.
201 of 1914, making it a misdemeanor to compel a stationary fireman
to work longer than eight consecutive hours in one day, in a city
having a population of 50,000 or more. He filed a demurrer to the
indictment, which was sustained by the trial court, whereupon the
State appealed. The allegations of the demurrer were as follows:
(1) That the statute violates the Constitution of the United States,
especially the fourteenth amendment, and violates articles 1 and 2
of the constitution of Louisiana, in that it seeks to deprive the de
fendant of his liberty and property without due process of law, and
to deny him the equal protection of the laws; (2) that the statute
also violates both constitutions by attempting to make arbitrary,
unequal, and discriminating classifications, and by attempting to
discriminate improperly as to the persons on whom the penalty is
sought to be imposed; (3) that the statute, if enforced, would de
stroy the right of freedom of contract; and (4) that there is a con
fusion as to the penalty sought to be imposed by the statute.
In affirming the judgment below, and holding the act unconsti
tutional, Judge O’Niell, who delivered the opinion, said in part:
DECISIONS OF COURTS AFFECTING LABOR.
131
A statute very similar to the one under consideration was enacted
in 1912 (Act No. 245 of 1912) and was pronounced unconstitutional
and invalid. (See State v. Barba, 132 La. 768, 61 South. 784 [Bui.
No. 152, p. 124].)
It is obvious, from the restriction of this statute to the very limited
class of “ persons engaged in the generation of steam in stationary
boilers in which coal is used as fuel ” in a city having 50,000 in
habitants or more, that this legislation has no relation to the health
or morals or safety of the public, or to the health, morals or safety
of the class of persons to whom the statute is confined in its op
eration.
A fireman employed at a stationary boiler in which coal is used as
fuel, in a city having a population of 50,000 or more, is not a ward
of the State. He does not need the protecting arm of the legislature,
nor deserve its interference with his freedom of contract or inde
pendence of judgment, any more than a fireman employed at a port
able boiler, or firing wood or coke or fuel oil, or firing coal under
a stationary boiler in a city of less than 50,000 inhabitants.
The freedom of the right of citizens to make contracts is subject to
such restrictions as the legislature may impose, in good faith and with
a reasonable and appropriate regard for the welfare of the citizens,
in the exercise of tne police power of the State. (Holden v. Hardy,
169 U. S. 366,18 Sup. Ct. 383 [Bui. No. 17, p. 625].) But a statute
containing a mere pretense of promoting or protecting public health
or public safety, and having no real or reasonable relation to its pre
tended object, is an abuse or the police power of the State, and, in so
far as it invades the fundamental rights of her citizens, it is the prov
ince and duty of the courts to adjudge such a subterfuge invalid, and
to uphold the constitution. [Cases cited.]
Our conclusion is that Act No. 201 of 1914 is an arbitrary and un
reasonable discrimination against the employers and employees em
braced within its provisions; that it invades the fundamental right
of freedom of contract; that it has no real or reasonable relation to
public health, public morals, or public safety, and is therefore beyond
the police power of the State.
H o u r s o f L a b o r— N e ce s sa ry R ep a irs— C o n s t r u c t io n o f S t a t
u t e —State v. Young, Supreme Court of Oregon (Jan. 19, 1915),
lift Pacific Reporter, page 61fl.—James Young was convicted in the
circuit court of Lake County of violation of the provisions of chapter
102, General Laws of Oregon, 1913, by employing William Harvey
for more than 10 hours in one day, and appealed. Section 2 of the
chapter mentioned provides:
No person shall be employed in any mill, factory or manufacturing
establishment in this State more than ten hours in any one day, except
watchmen and employees when engaged in making necessary repairs,
or in case of emergency, where life or property is in imminent danger:
Provided, however, Employees may 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-half the regular wage.
132
BULLETIN OP TH E BUREAU OF LABOR STATISTICS.
The lower court found as facts that Harvey had been employed for
11 hours on the day in question and had not been paid time and a half
for the excess; that the repairs on which he was engaged were those
ordinarily, regularly, and continuously required in all mills and fac
tories, and were in that sense necessary repairs, but were not necessary
in the sense that a failure to make them involved immediate or immi
nent danger to life or property, and that there was no emergency
under the statute. It found the defendant guilty and imposed a fine
of $50. The supreme court reversed the judgment. Discussing the
respective effect of the exception and the proviso, it held that, while
the interpretation that all employees, including the excepted classes
of watchmen and repairers, were to be paid at the higher rate for
their overtime would entirely destroy any effect of the exception, both
would be given effect by holding that the watchmen and repairers
need be paid only at the regular rate. An important point was the
interpretation of the word 44necessary ” in the statute, and as to this
Judge Bean, who delivered the opinion, said in part:
Needful repairs are indispensable to the proper operation of the
manufacturing establishment. They are also indispensable to the
immediate and continued successful operation of such industrial
plant, and urgent in order to lessen the danger of accident to life
and limb, and as we view it, in order to carry out one of the impor
tant purposes of the act. To encourage the delay of making repairs
until44they were necessary in the sense that a failure to make them
would involve immediate or imminent danger to life or property”
would be an effort to adopt the rule of 44locking the stable after the
horse is stolen,” and we do not think that such was the intention
of the lawmakers, as disclosed by the plain provisions of the statute.
To require a mill or factory to shut down and the majority of the
force o f operatives to remain idle while the ordinary and usual
repairs are being made by those upon whom that duty devolves
would tend to work a hardship upon all concerned. Such is not in
accordance with the plain requirements of the statute, which appears
to contemplate, to express it in common parlance, the running of
such manufacturing establishment for 10 hours per day without
penalty or extra compensation, at such remuneration to those em
ployed as may be agreed upon by the parties. The position that one
in making necessary repairs would be excluded from the provisions
of the act only in case of emergency, is no more tenable than that
a watchman would be excluded from such provisions only under the
same circumstances.
H o u r s o f L a b o r o f W om en — E ig h t -h o u r D a y — A p p o r t io n m e n t
o f T im e— C o n s t i t u t i o n a l i t y o f S t a t u t e — State v. Dominion Hotel
{Inc.), Supreme Court of Arizona {Sept. 18,1915), 151 Pacific Re
porter•,page 958.—The hotel company named was charged with vio
lation of the eight-hour law, and demurred on the ground that the
statute was unconstitutional. In the superior court of Gila County
DECISIONS OF COTJBTS AFFECTING LABOR,
133
its demurrer to the complaint was sustained, and the State appealed.
In the supreme court, however, the decision was unfavorable to the
company, and the judgment was reversed and the case remanded.
The statute provides that women in occupations named shall not
be employed more than eight hours daily; that at least one hour
shall be allowed for meals during the working periods; that the
working period shall be included within a total period of 12 hours,
except in the case of railroad restaurants; that each establishment
employing women shall post the working hours; and that the per
mitting of a woman to work at any time not included in the hours
posted shall be a violation of the act, for which a penalty is pro
vided. '
It appeared that Ada Tessner, with whose employment at a time
not within the posted hours the hotel was charged, worked in the
dining room. The point on which the case turned was the alleged
unconstitutionality of the act in discriminating in favor of railroad
restaurants. The court held that this did not bring the act. in
conflict with constitutional provisions, as claimed. Judge Cunning
ham, who delivered the opinion, called attention to the fact that the
amount of actual working time allowed was the same in all cases,
and continuing said:
The offense created by the statute is permitting the female em
ployee to work at times not designated as a part of the working
period. The fact that respondent and employers of like occupations
are not permitted to apportion more than 12 hours of the day to the
performance by female employees of 8 hours’ work deprives them
of no right of contract protected by the fourteenth amendment to
the Constitution of the united States and section 4 of article 2 of
the State constitution. The statute in the particular mentioned is a
reasonable regulation restricting the employer in apportioning the
hours of rest, and not of labor. He has no property right in the
hours of rest of his said employees, and to grant to one employer the
right to apportion the hours of labor during the 24 hours of the day
so that, in effect, the employer is able to apportion the hours of rest
as well as the hours of labor, is the grant ox no privilege or immunity
to one employer that, withheld from another, deprives the other
employer of equal protection when such other is permitted to ap
portion only 12 hours of the day for his employee. In either case
no more than 8 daily working hours may be apportioned of one day,
and the employers, without exception, have equal rights in making
the apportionment. The contention made is without merit.
H o u r s o f L a b o r o f W om en — E ig h t -h o u r D a y — C o n s t i t u t i o n a l S t a t u t e —C la s s ific a t io n —Miller v. Wilson, Supreme Court
it y of
of the United States (Feb. 23, 1915), 35 Supreme Cowrt Reporter,
page 342.—F. A. M iller, the p rop rietor o f the G len w ood H o te l in
R iversid e, C al., w as arrested by F. P. W ilso n , sheriff o f R iversid e
134
BULLETIN OF TH E BUBEAU OF LABOR STATISTICS.
County, upon the charge of employing and requiring a woman to
work as a chambermaid in the hotel for the period of nine hours in a
day, contrary to the California statute (Acts of 1911, p. 437) which
forbade such employment for more than 8 hours a day or 48 hours
a week. Miller obtained a writ of habeas corpus from the supreme
court of the State, urging that the act was in violation of the State
constitution and also that it was repugnant to the fourteenth amend
ment, as an arbitrary invasion of liberty of contract, and as discrimi
natory. That court, characterizing the statute as one “ intended for a
police regulation to preserve, protect, or promote the general health
and welfare,” upheld its validity and remanded Miller to custody.
(162 Cal. 687, 124 Pac. 427, BuL No. 112, p. 108.) The case was
taken to the United States Supreme Court on a writ of error. Mr.
Justice Hughes, who delivered the opinion affirming the judgment of
the State court, said in part:
As the liberty of contract guaranteed by the Constitution is free
dom from arbitrary restraint—not immunity from reasonable regu
lation to safeguard the public interest—the question is whether the
restrictions of the statute have reasonable relation to a proper pur
pose. [Cases cited.] Upon this point, the recent decisions of this
court upholding other statutes.limiting the hours of labor of women
must be regarded as decisive. In Muller v. Oregon, 208 U. S. 412,
28 Sup. Ct. 324 [Bui. No. 75, p. 631], the statute of that State, pro
viding that “ no female shall be employed in any mechanical estab
lishment or factory or laundry” for ‘‘ more than 10 hours during
any one day” was sustained as applied to the work of an adult
woman in a laundry. The decision was based upon considerations
relating to woman’s physical structure, her maternal functions, and
the vital importance of her protection in order to preserve the
strength and vigor of the race.
The opinion was then quoted from, and reference was made to the
cases of Riley v. Massachusetts, 232 U. S. 671, 34 Sup. Ct. 469 (Bui.
No. 169, p. 121), and Hawley v. Walker, 232 U. S. 718, 34 Sup. Ct.
479, in which the constitutionality of statutes of Massachusetts and
Ohio, respectively, of similar nature, was upheld by the Supreme
Court.
Continuing, the court said:
It is manifestly impossible to say that the mere fact that the
statute of California provides for an 8-hour day, or a maximum of
48 hours a week, instead of 10 hours a day, or 54 hours a week, takes
the case out of the domain of legislative discretion. This is not to
imply that a limitation of the hours of labor of women might not
be pushed to a wholly indefensible extreme, but there is no ground
for the conclusion here that the limit of the reasonable exertion of
protective authority has been overstepped. Nor, with respect.to
liberty of contract, are we able to perceive any reason upon which
the State’s power thus to limit hours may be upheld with respect to
women in a millinery establishment, and denied as to a chambermaid
in a hotel.
DECISIONS OF COURTS AFFECTING LABOR.
135
We are thus brought to the objections to the act which are urged
upon the ground of unreasonable discrimination. These are (1)
the exception of women employed in “ harvesting, curing, canning,
or drying of any variety of perishable fruit or vegetable” ; (2) the
omission of those employed in boarding houses, lodging houses,
etc.'; (3) the omission of several classes of women employees, as, for
example, stenographers, clerks, and assistants employed by the pro
fessional classes, and domestic servants; and (4) that the classifica
tion is based on the nature of the employer’s business, and not upon
the character of the employee’s work.
With respect to the last of these objections, it is sufficient to say
that the character of the work may largely depend upon the nature
and incidents of the business in connection with which the work is
done. The legislature is not debarred from classifying according to
general considerations and with regard to prevailing conditions;
otherwise, there could be no legislative power to classify. For it is
always possible by analysis to discover inequalities as to some persons
or things embraced within any specified class. A classification based
simply on a general description of work would almost certainly
bring within the class a host of individual instances exhibiting very
wide differences; it is impossible to deny to the legislature the au
thority to take account of these differences, and to do this according
to practical groupings in which, while certain individual distinctions
may still exist, the group selected will? as a whole, fairly represent a
class in itself. Frequently such groupings may be made with respect
to the general nature of the business in which the work is performed;
and, where a distinction based upon the nature of the business is not
an unreasonable one, considered in its general application, the classi
fication is not to be condemned. (See Louisville & Nashville Rail
road Co. v. Melton, 218 U. S. 36, 30 Sup. Ct. 676 [Bui. No. 90, p.
848].) Hotels, as a class, are distinct establishments not only in their
relative size, but in the fact that they maintain a special organization
to supply a distinct and exacting service. They are adapted to the
needs of strangers and travelers who are served indiscriminately. As
the State court pointed out, the women employees in hotels are, for the
most part, chambermaids and waitresses; and it can not be said that
the conditions of work are identical with those which obtain in estab
lishments of a different character, or that it was beyond the legisla
tive power to recognize the differences that exist.
If the conclusion be reached, as we think it must be, that the legis
lature could properly include hotels in its classification, the question
whether the act must be deemed to be invalid because of its omission
of women employed in certain other lines of business is substantially
the same as that presented in Hawley v. Walker, supra. There the
statute excepted “ canneries or establishments engaged in preparing
for use perishable goods” ; and it was asked in that case, on behalf
of the owner of a millinery establishment, why the act snould omit
mercantile establishments and hotels. The contention as to various
omissions which are noted in the objections here urged ignores the
well-established principle that the legislature is not bound, in order
to support the constitutional validity of its regulations, to extend it
to all cases which it might possibly reach. Dealing with practical
exigencies, the legislature may be guided by experience. It is free
to recognize degrees of harm, and it may confine its restrictions to
1-36
BULLETIN OP TH E BUBEAU OF LABOR STATISTICS.
those classes of cases where the need is deemed to be clearest. As
has been said, it may “ proceed cautiously, step by step,” and “ if
an evil is specially experienced in a particular branch of business”
it is not necessary that the prohibition “ should be couched in allembracing terms.” If the law presumably hits the evil where it is
most felt, it is not to be overthrown because there are other instances
to which it might have been applied. (Keokee Consol. Coke Co. v.
Taylor, 234 U. S. 224, 34 Sup. Ct. 856 [Bui. No. 169, p. 1901.)
Upon this principle, which has had abundant illustration in the de
cisions cited below, it can not be concluded that the failure to extend
the act to other and distinct lines of business having their own cir
cumstances and conditions, or to domestic service, created an arbi
trary discrimination as against the proprietors o'f hotels. [Cases
cited.]
For these reasons the judgment must be affirmed.
H o u r s o f L a b o r o f W o m e n — E i g h t - h o u r Day— C o n s t i t u t i o n a l
ity o f Statute—C l a s s i f i c a t i o n —Hospitals—Bosley et al. v. Mc
Laughlin et al., Supreme Court of the United States (Feb. %3, 1915),
85 Supreme Court Reporter, page 845.—William B. Bosley and the
two other trustees of the Samuel Merritt Hospital in Alameda, Cal.,
and one of their employees, Ethel E. Nelson, brought suit in the
District Court of the United States for the Northern District of
California to secure an injunction restraining John P. McLaughlin,
labor commissioner of California, and others from enforcing the
eight-hour law for women of that State. The act is the same as is
upheld in Miller v. Wilson, 35 Sup. Ct. 324 (see p. 133). The act,
however prior to the institution of the present action, had been
amended by Acts of 1913, page 713, which amendment had extended
the statute to public lodging houses, apartment houses, hospitals, and
places of amusement. The proviso was also amended so as to make
the statute inapplicable to “ graduate nurses in hospitals.” Mr.
Justice Hughes, who delivered the opinion of the Supreme Court
affirming the decree of the district court refusing to grant the injunc
tion, states the nature of the pleadings thus:
Their bill set forth that there were employed in this hospital
approximately 80 women and 18 men; that of these women 10 were
what is known as “ graduate nurses.” By reason of their qualifica
tions they were paid “ a compensation greatly in excess of that paid
to female pupils engaged in nursing in hospitals while students of
the training school.”
It was further averred that, in addition to these 10 graduate nurses
certain other women were employed in the hospital, one as book
keeper, two as office assistants, one as seamstress, one as matron or
housekeeper, five who were engaged in ordinary household duties,
and one—the complainant, Ethel E. Nelson—as pharmacist. It was
stated that this complainant was a graduate pharmacist, licensed by
the State board; that she also acted as storekeeper, but that her chief
137
DECISIONS OF COUBTS AFFECTING LABOB.
duty was to mix and compound drugs for use in the treatment of the
hospital patients. The general allegation was made that these lastmentioned 11 employees performed work that was in no manner
different from that done by “ persons engaged in similar employments
or occupations and not employed in hospitals.” The apprehended
injury to the complainant Nelson by reason of the interference of the
statute with her freedom to contract was specially alleged.
The enforcement of the act with respect to these student nurses,
it was stated, would require the hospital either to cease the operation
of the school, or largely to increase the number in attendance in order
that an equal return in service could be obtained; and such increase
would involve a greatly enlarged expense.
The complainants attacked the act on the grounds that it inter
fered with their liberty of contract, and denied to them the equal
protection of the laws, contrary to the fourteenth amendment. And
1"
' 1
'^stance, that labor in hospitals did
classification; that there was no
difference between such labor and the “ same kind of labor” per
formed elsewhere; that a hospital is not an unhealthful or unsanitary
place; and, generally, that the statute and its distinctions were
arbitrary.
Upon the bill, an application was made for an injunction pending
the suit. It was heard by three judges and was denied. The appeal
in No. 362 [two appeals were decided together] is from the order
thereupon entered.
Coming to the decision of the legal questions involved Justice
Hughes said:
As to liberty of contract—the gravamen of the bill is with respect
to the complainant Nelson, a graduate pharmacist, and the student
nurses. As to the former—it appears that a statute of California
limits the hours of labor of pharmacists to 10 hours a day and 60
hours a week. (Stat. 1905, p. 28.) In view of the nature of their
work, and the extreme importance to the public that it should not
be performed by those who are suffering from overfatigue, there can
be no doubt as to the legislative power reasonably to limit the hours
of labor in that occupation. This, the appellants expressly concede.
But this being admitted to be obviously within the authority of the
legislature, there is no ground for asserting that the right to con
tractual freedom precludes the legislature from prohibiting women
pharmacists from working for more than 8 hours a day in hospitals.
The mere question whether in such case a practical exigency exists,
that is, whether such a requirement is expedient, must be regarded as
a matter for legislative, not judicial, consideration.
The appellants, in argument, suggest a doubt whether the statute
is applicable to the student nurses., but the bill clearly raises the
question of its validity as thus applied, and urges the serious injnrv
which its enforcement would entail upon the hospital. Assuming
that these nurses are included, the case presented would seem to be
decisive in favor of the law. For it appears that these persons,
upon whom rests the burden of immediate attendance upon, and nurs
ing of, the patients in the hospital, are also pupils engaged in a
course of study, and the propriety of legislative protection of women
I
fliQ
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o o r m a
lr in /1
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-P
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t -v/ i t
*
138
BULLETIN OF TH E BUREAU OF LABOB STATISTICS.
undergoing such a discipline is not open to question. Considerations
which, it may be assumed, moved the legislature to action, have been
the subject of general discussion, as is shown by the bulletin issued
by the United States Bureau of Education on the “ Educational
Status of Nursing” (Bulletin, 1912, No. 7). With respect to the
“ hours of duty ” for student nurses, it is there said: [The quotation
calls attention to the fact that such students are often engaged in
exacting and responsible work for 10 or more hours a day in addi
tion to their studies, classes, etc.; advocates an 8-hour working-day,
and shows that a majority of hospital superintendents appealed to
favor such limitation.]
Whatever contest there may be as to any of the points of view
thus suggested, there is plainly no ground for saying that a restric
tion of the hours of labor of student nurses is palpably arbitrary.
As to certain other women (10 in number) employed in the hospi
tal, such as the matron, seamstress, bookkeeper, 2 office assistants,
and 5 persons engaged in so-called household work, the bill contains
merely this general description, without further specifications; and
from any point of Anew it is clear, that, with respect to the question
of freedom of contract, no facts are alleged which are sufficient to
take the case out of the rulings in Muller v. Oregon, 208 U. S. 412,
28 Sup. Ct. 324 [Bui. No. 75, p. 631]; Riley v. Massachusetts, 232
U. S. 671, 34 Sup. Ct. 469 [Bui. No. 169, p. 121]; Hawley v. Walker,
232 U. S. 718, 34 Sup. Ct. 479; and Miller v. Wilson, 35 Sup. Ct. 342
[see p. 133].
The distinction between graduate nurses and the other professional
employees is discussed and held to be a valid one, and the opinion
concludes:
As to the 10 other women employees, the validity of the distinc
tion made in the case of graduate nurses is obvious. It should fur
ther be saidj aside from the propriety of classification of women in
hospitals with respect to the general conditions there obtaining
(Louisville & Nashville Railroad Co. v. Melton, 218 U. S. 36, 30
Sup. Ct. 676 [Bui. No. 90, p. 848]), that the bill wholly fails to show
as to the employment or any of these persons any such injuryactual or threatened—as would warrant resort to a court of equity
to enjoin the enforcement of the law.
And the objection based upon the failure of the legislature to ex
tend the prohibition of the statute to persons employed in other es
tablishments is not to be distinguished in principle from that which
was considered in Miller v. Wilson, supra, and cases there cited.
H o u r s o f L a b o r o f W om en — E io h t -h o u ij D a t — C o n s t it t jt io n o f S t a t u t e — L im ita tio n t o S ix D ays P e r W e e k —Earnshaw
a t.tt v
v. Newman et al., Supreme Court of the District of Columbia (Mar.
12,1915), 4$ Washington Law Reporter, page 198.—The plaintiff, a
stockholder in a corporation, brought suit in equity for an injunction
to restrain the corporation from compliance with the act regulating
the hours of employment of females in the District of Columbia,
DECISIONS OF COURTS AFFECTING LABOR.
139
and the Commissioners of the District from enforcing the provisions
of the act. Judge McCoy, in delivering the opinion of the court,
said:
The first section of the act reads:
“ That no female shall be employed in any manufacturing, me
chanical, or mercantile establishment, laundry, hotel, or restaurant,
or telegraph or telephone establishment or office, or by any express
or transportation company in the District of Columbia more than
eight hours in any one day or more than six days or more than fortyeight hours in any one week.”
Were it not for the words “ or more than six days in any one week,”
this act would be identical with the statute of California, the consti
tutionality of which was upheld by the Supreme Court of the United
States in a recent decision.
Therefore, if it is to be held unconstitutional it will be on the
ground that it may be interpreted as limiting the number of days to
In Miller v. Wilson, 35 Sup. Ct. 342 [see p. 133], the Supreme
Court upheld the California statute above referred to, both as to its
classification of employment, which is identical with that in the act
here in question, and as to the right to legislate especially for women.
Mr. Justice Hughes, writing for a unanimous court, says:
“ It is manifestly impossible to say that the mere fact that the
statute of California provides for an 8-hour day, or a maximum of
48 hours a week, instead of 10 hours a day or 54 hours a week, takes
the case out of the domain of legislative discretion. This is not to
imply that a limitation of the hours of labor of women might not be
pushed to a wholly indefensible extreme, but there is no ground for
the conclusion here that the limit of the reasonable exertion of pro
tective authority has been overstepped. Nor, with respect to liberty
of contract, are we able to perceive any reason upon which the State’s
power thus to limit hours may be upheld with respect to women in
a millinery establishment and denied as to a chambermaid in a
hotel.”
So it can not be said that an act of Congress is taken “ out of the
domain of legislative discretion ” because it limits to six the number
of days in a week during which women may be employed in the occu
pations mentioned, as “ there is no ground for the conclusion here
that the limit of the reasonable exertion of protective authority has
been overstepped.” The Court of Appeals of the State of New York,
in a recent decision (People v. Klinck Packing Co., 108 N. E. 278
[see p. 197]) sustained the “ one day of rest in seven ” law, requiring
that every person^ with a few exceptions, employed in any factory or
mercantile establishment shall be allowed “ at least 24 consecutive
hours of rest in every 7 consecutive days.”
Judge McCoy then quoted from the opinion referred to certain ex
tracts from opinions of the Supreme Court in Gundling v. Chicago,
177 U. S. 183, 188, and Hennington v. Georgia, 163 U. S. 299, 16
Sup. Ct. 1086, and concluded:
The act of Congress must be upheld, even though it does limit em
ployment to six days in the week.
140
BULLETIN OP THE BUREAU OF LABOR STATISTICS.
H o u r s o f L a b o r o f W o m e n — E ig h t -h o u r D a y — “ E m p lo y e d i n
L a b o r in g ” —Commonwealth >\ John T. Cormor Co., Supreme Ju
dicial Court of Massachusetts (Nov. SO, 1915), 110 Northeastern Re
porter, page SOI.—The company named was convicted of violating
the Statutes of 1913, chapter 758, which provides as follows:
No woman shall be employed in laboring in any factory or work
shop, or in any manufacturing, mercantile, mechanical establishment,
telegraph office or telephone exchange, or by any express or trans
portation company, more than ten hours in any one day; and in no
case shall the hours of labor exceed fifty-four in a week.
It was shown by evidence that Elsie Finn was employed by the
company in a grocery store, admittedly a mercantile establishment,
for more than 10 hours in one day. Her duties were those of a
cashier, and she also gave out trading stamps to customers and
did a little bookkeeping. The question arose whether she was “ en
gaged in laboring ” under the act. Judge Rugg delivered the opinion
of the court, and sustained the conviction. He reviewed the reasons
for the enactment of laws limiting the hours of labor of women, and
said that the earlier history of the law would seem to give strength
to the contention of the company. He then called attention to the
changes by which the statute was extended to include women em
ployed in telegraph and telephone offices and by express and trans
portation companies, and pointed out that the duties of the woman
whose employment was involved in the present case could as well be
characterized as “ laboring ” as those of telephone and telegraph op
erators. In conclusion Judge Rugg said:
We reach this conclusion for the reasons stated, notwithstanding
the numerous statutes of other States, where generally the prohibition
is against the employment of women under the forbidden conditions
without limiting words resembling “ in laboring” found in our
statute.
It is not necessary to define explicitly the words of our statute or to
determine whether they can be stretched to include bookkeepers,
stenographers and those engaged in kindred service, or to say that
the statute means the same as if the words “ in laboring ” had been
omitted. As to those engaged in these and similar pursuits, the stat
ute is not plain and difficulties may arise in its further application.
But we are of opinion that the case at bar rightly was submitted to
the jury.
H o u r s o f L a b o r o f W om en — E ig h t -h o u r D a y — M a n u fa c t u r in g
E s t a b lis h m e n t — D ressm a k er —Hotchkiss v. District of Columbia,
Court of Appeals of the District of Columbia (Nov. 1, 1915), 41
Washington Law Reporter, page 706.—Susan H. Hotchkiss was con
victed of a violation of the eight-hour law for- females in the District
of Columbia, by employing women more than eight hours daily, and
DECISIONS OF COURTS AFFECTING LABOR.
141
by failure to post notices and comply with other requirements of the
law. On appeal she claimed that she was not engaged in conducting
a manufacturing establishment. It was shown that her business was
conducted on the second floor of her residence, where she had five
sewing machines and employed from 5 to 10 girls, and that she kept
on hand goods and materials to be made into dresses for customers,
though the customers sometimes supplied their own materials.
There was no dispute that the hours worked were more than eight
per day. In affirming the conviction, Justice Yan Orsdel spoke for
the court, saying in part:
The only error assigned worthy of consideration relates to the ques
tion whether or not the place thus conducted by plaintiff in error
was a mercantile or manufacturing establishment. We think the
evidence shows that she conducted a manufacturing establishment.
It is not easy to define just what constitutes manufacture. It may,
however, be defined to consist, not alone of converting raw material
into the manufactured article, but of converting a manufactured
article into a different product.
In the present case, in order to constitute plaintiff in error a man
ufacturer of dresses, it is not necessary that she should weave the
cloth that enters into the finished article. The material entering
into the finished product may pass through many stages of manu
facture before the completed article is produced. These various
steps employed in making the cloth and other articles entering into
a dress constitute manufacture, just as the conversion of the cloth
and trimmings into a dress likewise constitutes manufacture.
But it is not to be understood that everyone who may be employed
to make a dress within the District of Columbia comes within the
limitations of the statute. The act applies only to manufacturing
establishments. The word “ establishment ” in this connection has
a well-defined meaning. It is a place devoted, as in the present case,
to dressmaking—a place where the public is invited to come and
have its work done-^-a fixed place where plaintiff in error conducted
her business—as distinguished from a mere itinerant dressmaker
who maintains no fixed place in which to conduct her business.
H o u r s o f L a b o r o f W om en — N ig h t w o r k — C o n s t i t u t i o n a l i t y
o f S t a t u t e *— People v. Charles Schweinler Press, Court of Appeals
of New York {Mar. 26,1915), 108 Northeastern Reporter, page 639.—
The concern named, a corporation, was convicted of violating section
93b of the labor law, as added by Laws of 1913, chapter 83. There
were appeals and motions, the final result being that the court of
appeals in effect affirmed the judgment of the court below, and up
held the constitutionality of the statute, which was contested. The
following is the text of the statute in question:
Sec. 93b. In order to protect the health and morals of females em
ployed in factories by providing an adequate period of rest at night
142
BULLETIN OP THE BUREAU OF LABOR STATISTICS.
no woman shall be employed or permitted to work in any factory in
this State before six o’clock in the morning or after ten o clock in the
evening of any day.
Judge Hiscock, in delivering the opinion of the court, said in part:
It is undisputed that the appellant caused or permitted a married
woman to work in a factory operated by it between the hours of 10
o’clock in the evening and 6 o’clock in the morning, and thereby
violated the provisions of the act above quoted, and became subject
to the punishment duly prescribed for such violation. It challenges,
however, the legality of its conviction for the reason, as claimed, that
said act unduly and unjustifiably interferes with the right of an
adult woman to contract for her own labor, and thus violates various
provisions of the constitution both of the State and of the United
States which in effect provide that no one shall be deprived of life,
liberty, or property, except by due process of law, and that no unjust
discrimination shall be made between different classes of citizens by
denial of the equal protection of law.
The answer to this challenge is that nightwork in factories, as con
trasted with day labor, substantially affects and impairs the physical
condition of women and prevents them from discharging in a health
ful and satisfactory manner the peculiar functions which have been
imposed upon them by nature, and that therefore it was within the
power of the legislature to enact the statute as a police regulation
tending to protect the well-being of a large class of citizens and
promote the public welfare.
We are therefore presented with the issue whether it can be said
that nightwork by women in factories is so generally and substan
tially injurious to their health that the legislature was justified by
pubuc considerations in preventing the evil by forbidding the cause.
Protection of the health of women is a subject of special concern
to the State. However confident a great number of people may be
that in many spheres of activity, including that of the administration
of government, woman is the full equal of man, no one doubts that,
as regards bodily strength and endurance, she is inferior, and that
her health in the field of physical labor must be specially guarded by
the State if it is to be preserved, and if she is to continue successfully
and healthfully to discharge those peculiar duties which nature has
imposed upon her. This proposition is fully recognized and stated
in Muller v. Oregon, 208 U. S. 412, 421, 28 Sup. Ct. 324, 326 [Bui.
No. 75, p. 631].
Evidence of the truth of the proposition would be found in many
statutes which have been adopted in this State without question of
their constitutionality particularly designed to protect and preserve
the health of women when engaged in various kinds of physical labor.
Moved in part it may be by such general and underlying consider
ations as these, under and in accordance with two statutes adopted
by our legislature in 1911 and 1912, there was appointed in the latter
year a factory investigating commission. This commission consid
ered this subject of nightwork by women in factories and in 1913
made a report to the legislature, recommending that there be passed
the law now before us prohibiting it. It reported that such pro
hibition was essential to protect and preserve the.health and to some
extent the morals of women.
DECISIONS OF COURTS AFFECTING LABOR.
143
Thus, at the time when this statute was adopted, there was before
the legislature the report of a commission created by it to consider
and report on this subject, based on natural laws and on actual inves
tigation, a large volume of expert and medical opinion, and a large
number of statutes adopted m various jurisdictions, all of which
tended to show a careful and long-continued study and examination
of the subject of nightwork by women, and as a result of such study
and examination a widespread belief that such work was so injurious
to their health that it ought to be prohibited both for their own sakes
and for the sake of the offspring whom they might bear.
We then come to the query whether such facts, evidence, and infor
mation furnished a sufficient reason for action by the legislature and
justified the statute which was adopted; and I think the answer must
be in the affirmative.
The legislature was justified in preventing any such evils as those
which were outlined, both real and fairly to be anticipated, by any
legislation which reasonably tended to prevent them, and it had a
wide discretion in formulating the means which it would adopt to
this end. [Cases cited.] It was a sufficient basis in that respect for
action if only there were reasonable grounds for belief that such
labor was thus injurious, even though there was an “ earnest conflict
of serious opinion ” on the subject. [Cases cited.]
The only question then left is the one whether the legislature was
justified in going so far as to prohibit night labor in factories be
tween the hours named by it as a means of promoting the public wel
fare by averting the actual or apprehended misfortune of broken
health of working women.
It is not a basis for a constitutional objection to a statute like this,
generally prohibiting the labor of women between certain hours,
that in exceptional cases it may prevent employment of some women
for a short time between those hours under such conditions as would
be productive of no substantial harm. A legislature must legislate
in general terms, and its mandates are not constitutionally vulner
able because, having power to act concerning a certain subject and
to legislate in terms reasonably calculated to accomplish the general
purpose within the scope of its authority, it covers and prohibits some
isolated transaction which by itself would be harmless and unobjec
tionable. [Cases cited.]
Neither is it an effective objection to a statute if some of those who
will be protected by its provisions oppose such protection, for the
State has such an interest in the welfare of its citizens that it may,
if necessary, protect them against even their own indifference, error,
or recklessness. [Cases cited.] Nor if some cases which might have
been included are omitted, for police legislation may rest on narrow
distinctions. [Cases cited.]
Tested and fortified by these rules, we cannot and ought not to say
that the legislature did not act within the wide powers of discretion
and judgment possessed by it in adopting the prohibition which it
did as a means of preventing the evils with which it was justified in
believing the State to be threatened as the result of such nightwork
by women.
Lastly, it is urged that whatever might be our original views con
cerning this statute, our decision in People v. Williams, 189 N. Y.
131, 81 N. E. 778 [Bui. No. 72, p. 611], is an adjudication which
144
BULLETIN OF TH E BTJBEAU OP LABOB STATISTICS*
ought to bind us to the conclusion that it is unconstitutional. While
it may be that this argument is not without an apparent and super
ficial "foundation and ought to be fairly met, I think that a full con
sideration of the Williams case and of the present one will show that
they may be really and substantially differentiated, and that we
should not be and are not committed by what was said and decided
in the former to the view that the legislature had no power to adopt
the present statute.
That statute [considered in the Williams case] bore on its face no
clear evidence that it was passed for the purpose of protecting the
health and welfare of women working in factories; and while, of
course, the presence or absence of such a label would not be con
trolling in determining the purposes and validity of the statute it
still was in that case an incident of some importance as leading to
the conclusions finally expressed by Judge Gray and adopted by the
court.
Especially and necessarily was there lacking evidence of the ex
tent to which, during the intervening years, the opinion and belief
have spread and strengthened that such nightwork is injurious to
women; of the laws, as indicating such belief, since adopted by sev
eral of our own States and by large European countries, and the re
port made to the legislature by its own agency, the factory investi
gating commission, based on investigation of actual conditions and
study of scientific and medical opinion that nightwork by women in
factories is generally injurious and ought to be prohibited.
So, as it seems to me, in view of the incomplete manner in which
the important question underlying this statute—the danger to women
of nightwork in factories—was presented to us in the Williams case,
we ought not to regard its decision as any bar to a consideration of
the present statute in the light of all the facts and arguments now
presented to us and many of which are in addition to those formerly
presented, not only as a matter of mere presentation, but because
they have been developed by study and investigation during the
years which have intervened since the Williams decision was made.
There is no reason why we should be reluctant to give effect to new
and additional knowledge upon such a subject as this, even if it did
lead us to take a different view of such a vastly important question
as that of public health or disease than formerly prevailed. Par
ticularly do I feel that we should give serious consideration and
great weight to the fact that the present legislation is based upon and
sustained by an investigation by the legislature deliberately and care
fully made through an agency of its own creation, the present fac
tory investigating commission.
H o u r s o f . S e r v ic e —R a ilr o a d s —C a s u a ltie s —United States v.
Great Northern Railway Co., TJmted States Circuit Court of Appeals,
Seventh* Circuit (Jan. 5, 1915), %20 Federal Reporter, page 630.—
The Government prosecuted the railway company named for alleged
violation of the Hours of Service Act, involving two train crews.
The company has a line from iron ore mines near Kelly Lake, Minn.,
to docks near Superior, Wis., a distance of 100 miles. The equipment
DECISIONS OF COURTS AFFECTING LABOR.
145
is all of the heaviest type, and the grade from the mines to docks
slightly downhill. One hundred and twenty to one hundred and
twenty-five loads are brought down in a single train, on one track,
and the empties returned over the other, trains following each other
less than an hour apart, day and night, making an average speed of
a little more than 6 miles an hour, and usually consuming nearly the
whole of the 16 hours permitted by the act in making the run. On
June 18,1912, the crew of train 1981 continued on duty for more than
20 consecutive hours, beginning at 7.45 a. m. The delay was caused
by the pulling out of drawbars and breaking into five pieces of the
seventh train ahead, and there being insufficient sidings or other op
portunity for all the trains to be set off and the crews relieved. In
the case of the other violation charged the delay was due to the
bursting of air hose.
The lower court had found in favor of the defendant company,
which judgment was reversed by the circuit court of appeals. Cer
tain instructions given to the jury in the court below, and others re
quested but refused, involving the meaning of the terms used in the
statute, were excepted to by the prosecution; and in delivering the
opinion of the court of appeals, Judge Baker took the ground that the
trial court had erred in the matter of these instructions, speaking in
part as follows:
If the view that was acted upon by the court throughout the trial
is correct, namely, that “ casualty ” means any occurrence or hap
pening, whether unavoidable or avoidable by the exercise of due care
on the part of the railroad, and therefore excuses all delays except
those knowingly and willfully caused by the railroad, then it seems
clear to us that Congress stands convicted of having followed up
“ casualty ” with a series of meaningless and purposeless expressions.
But, if the result can fairly be reached, courts must ascribe a meaning
and a purpose to every part of a statute. Looking at the proviso as a
whole, and with the intent of leaving, if possible, vitality in all its
parts, we conceive that Congress said to the railroads: You need not
pay penalties for violations in the following instances: Act of God.
You are excusable for delay caused by violence of nature in which
no human agency participates by act or omission. For example, a
washdut due to an unprecedented flood that was not and could not
reasonably have been anticipated. Unavoidable accident. You are
excusable if, at the time and place of the accident that caused the
delay, you, through your employees, were in the exercise of due care.
For example, a switch tender falls dead at an open switch and a col
lision immediately follows without anyone’s fault. Last clause of
the proviso, explanatory of unavoidable accident. But you are not
excusable if, at the time a train leaves a terminal, you, through your
inspectors, either knew or by the exercise of due care might have
foreseen a cause that would be likely to produce an accident and con
sequent delay. For example, incompetent trainmen or defective or
inefficient drawbars or air hose, particularly if you had notice of a
succession of accidents due to those causes. Casualty (which must
26071°—Bull. 189—16----- 10
146
BULLETIN OF THE BUREAU OF LABOR STATISTICS.
differ from the other defenses and must not be so broad as to de
prive them of meaning and use). You are excusable for delay
from an occurrence or happening due entirely to an outside human
agency. For example, your train is overturned by a train of another
railroad at a crossing by reason of the other road’s trainmen’s dis
obedience of the interlock signals. And finally, if you can not es
tablish erne of these defenses by a fair preponderance of the evidence,
you must pay the penalty for keeping your employees on duty an
excessive time.
H o u r s o f S e r v ic e — R a ilr o a d s — E m e rg e n cy — D ism is s a l o f E m
p lo y e e f o r I n s u b o r d in a tio n — United Stakes v. Denver <& Bio Grande
Railroad Co., United States Circuit Court of Appeals, Eighth Cir
cuit (Jan. 4, 1915), 220 Federal Reporter, page 893.—A ctio n was
b rou g h t against the com pan y nam ed to recover penalties f o r cer
tain alleged violations o f the F ed eral H ou rs o f Service A c t b y a llow
in g certain em ployees in a n ig h t-a n d -d ay office, concerned in d is
p atch in g ord ers f o r the m ovem ent o f trains, to w ork m ore than nine
hours in one day. T h e com pan y m ade answer to th e effect th at an
em ergency h ad arisen because an em ployee, w hen questioned w ith
regard to his m anner o f p e rfo rm in g certain w ork , h ad exhibited a
violen t tem per, and becom e abusive, insubordinate and defiant on
the 8th d a y o f Septem ber and h ad been dism issed, and it h a d been
im possible to secure one to fill h is p la ce u n til the 10th d a y o f S ep
tem b er; and that in th is em ergency the com pan y had caused other
em ployees to w ork f o r m ore than nine hours on the days intervening.
T h e G overnm ent dem urred to the answer, and th e tria l cou rt over
ru lin g the dem urrer, ju d gm en t w as entered f o r the defendant. T h is
was affirmed b y the circu it cou rt o f appeals, w h ich h eld that the
circum stances constituted an em ergency, J u d g e Munger, w h o d e
livered the op in ion , sayin g in p a r t :
It is urged that no emergency is shown, because insubordination
by an employee is but a violation of the rules of employment, and
a railroad company may not create an emergency at will by dis
charging an employee for infraction of rules, and thus require re
maining employees to render extra labor. But in the situation
alleged in the answer the railroad company did not create the emer
gency, but merely acted in one. Under the allegations of the answer
that the employee became of violent temper, abusive, insubordinate,
and defiant, the defendant could have shown that the employee had
the power, disposition, and purpose to endanger the safety of those
who traveled subject to his care by acts of omission or commission.
The primary purpose of the act of Congress was to provide for the
safety of those intrusted to the supervision of the employees, from
the dangers arising from their lack of attention and misjudgment,
owing to fatigue; but the danger from such a source is not greater
than arises from the disobedience, willfulness, or malice of employees.
DECISIONS OF COURTS AFFECTING LABOR.
147
The' facts stated in the answer allege an emergency within the defi
nition declared by this court in United States v. Southern Pacific
Co., 209 Fed. 562 [Bid. No. 169, p. 124], and the judgment of the
lower court is affirmed.
H o u r s o f Service— R a ilr o a d s — E m e rg e n cy — U n a v o id a b le Acci
d e n t —San Pedro, Los Angeles <&Salt Lake Bait/road Co. v. United
States, United States Circuit Court of Appeals, Ninth Circuit (Mar.
8, 1916), WHO Federal Reporter, page 737.—Judgment was rendered
for the United States against the company named in two cases under
the Hours of Service Act. This was reversed as to the first case, and
affirmed as to the second. The first related to the employment of
telegraph operators engaged in dispatching trains, etc., at Kelso.
This is a night-and-day office, where three operators have shifts of
eight hours each. On the 16th day of January, 1911, one of these
men, Starkey, was taken suddenly ill, and, no operator being avail
able to take his place, the two others, Grandee and Dugan, were
kept at work for 12 hours each, on the 17th, 18th, 19th, 20th, and
21st. On the morning of the 17th the chief dispatcher at Las Vegas,
under whose supervision the Kelso office was, requested that an op
erator be sent from Los Angeles, which was done, and he would
ordinarily have reached Kelso in time to relieve the operators there
before the expiration of the three days during which operators are
permitted by the act to work for not more than four additional
hours daily. However, the train on which the relief operator was
traveling to Kelso was wrecked, and he was ordered to establish an
office at the wreck in order to facilitate the clearing away of the
wreck and the running of trains around it. This necessitated a con
tinuation of the overtime work by the two operators at Kelso. The
court held that the sickness of the operator Starkey constituted an
emergency justifying the additional work for the first three days,
under the provisions of section 2 of the act, and that the wreck of the
relief operator’s train was a casualty or unavoidable accident under
section 3, so that the company was not liable for penalties for this
alleged violation of law.
The second case charged violation of the act in the employment of
a train crew on October 3, 1912, in excess of 16 consecutive hours.
The schedule time of the run from Las Yegas to Los Angeles is 13|
hours; but on the occasion in question a landslide occurred of such
character and magnitude as to stop traffic over the line, and to
oblige the train to make a detour over the lines of connecting com
panies. The rails on one road were light, requiring slow running,
especially in view of the same heavy rains which caused the land
slide. Owing to all these causes, 27 hours were required to complete
the run. The engine crew was changed en route, D’lt the conductor
148
BULLETIN OP THE BUBEAU OP LABOR STATISTICS.
and brakeman continued to perform their duties until the end of
the run, a period of 27 hours in all. It appeared that a change
might have been made at two points, and the decisive question was
whether the law required this to be done. The court held that this
is the requirement, and affirmed the judgment for penalties, Judge
Ross saying as to this:
As under the evidence there can be no doubt that the landslide
was the direct and necessary cause of the detour of the train in
question and of its numerous delays, and that therefore the defend
ant company was entirely justified in continuing in service its train
crew up to the time it could, with the exercise of proper diligence
have relieved it, it is plain that the action of the court below in
directing a verdict for the plaintiff on counts 3, 4, and 5 must have
been based on the view that the defendant company had the oppor
tunity to relieve the crew either at San Bernardino, or Daggett, or
both, and was by the statute, properly construed, required to avail
itself of it, in which view we think, for the reasons already stated,
the court was right—being unable to agree with the learned counsel
for the defendant company that by the adoption of the first proviso
to the third section of the act “ it was the intention of Congress to
permit a crew starting from a terminal to remain with the train
overtaken by delay, casualty, or unavoidable accident, until the end
of the run.”
H o u r s op S e r v ic e — R a ilr o a d s — “ E m p lo y e e s ”—United States v.
Chicago, Milwaukee dk Puget Sound Railway Co., United States
District Court, District of Idaho (June 16, 1914), 818 Federal Re
porter, page 701.—The railroad company named was prosecuted
for alleged violations of the Hours of Service Act. The law provides
that it shall apply to any common carrier or carriers, their officers,
agents and employees, engaged in the transportation of passengers
or property by railroad from one State to another, and that “ em
ployees” means persons actually engaged in or connected with the
movement of any train. The employee concerned was the engineer
of a work train, running between points in the same State over an
interstate track, and carrying materials for the repair of that track.
The court held that this employee was not within the provisions of
the law, and sustained a demurrer to the Government’s complaint.
H o u r s o f S e r v ic e — R a ilr o a d s — K n o w le d g e o f O f f i c e r s a n d
A g e n ts —United States v. Oregon- IFashington Railroad <&Naviga
tion Co., United States District Court, District of Oregon (Dec. 14,
1914)) 818 Federal Reporter, page 985.—The United States brought
action against the company named for permitting E. H . Heintze, a
telegraph operator engaged in handling orders affecting the move
ment of trains, to remain on duty over 9 hours during the 24-hour
DECISIONS OF COURTS AFFECTING LABOR.
149
period beginning at 9 a. m. on January 24, 1914, namely, from the
hour mentioned until 1 a. m. on January 25th. The office was one
operated continuously day and night. It was stipulated that the
operator did this in violation of instructions and without the knowl
edge of any officer or agent of the company other than himself.
The court decided that the duty of the company is absolute;
that the employee who works overtime is himself an agent of the
company; and cited the analogy of decisions under the safety appli
ance act making it also an absolute duty to see that no defective
apparatus is used on trains.
This decision cites and agrees with that of the judge of the Dis
trict Court for the Eastern District of Washington, in another case
having the same title as the present one, reported in 213 Fed. 688
and noted in Bulletin No. 169, page 129.
A verdict for the Government had been directed, and the motion
of the company for a new trial was denied.
Em
Bos
ton & Maine Railroad, Supreme Judicial Court of Massachusetts
(Nov. 83, 1915), 110 Northeastern Reporter, page 264.—The com
pany named was charged with violation of chapter 746 of the Acts
of 1914, which provides that baggagemen, laborers, crossing tenders
and the like in and about railroad stations shall not be employed
more than 9 working hours in 10 hours’ time. It appeared from
the agreed statement of facts submitted to the court that Victor
Richards was employed as a general baggageman, at Worcester, and
that the baggage handled by him was largely transported into other
States. Richards worked from 6 a. m. to 7 p. m. with the exception
of two lay offs of one hour and one-half hour respectively; about
half his work was out of doors, and the work was not arduous, as
he was assisted by the man on the baggage car, and when heavy
pieces of baggage were received, by a helper at the station.
The court held that the company’s construction of the law, that
it simply forbids employment for more than 9 hours out of any 10,
but does not limit the total hours per day to 9, was not tenable,
Judge Rugg, who delivered the opinion, saying:
While the act is not phrased with clearness, its meaning seems to
be that the maximum number of hours permitted to the designated
employees is 9 for a day. To adopt the interpretation put forward
by the defendant would render the statute inoperative. It can not
be presumed in the absence of unequivocal words that the legisla
ture intended a statute to be devoid of substantial force. In effect,
the statute prohibits labor by the designated employees more than 9
hours in each day.
H ours, o f S e r v ic e — R a ilr o a d s — N in e -h o u r D a y — S t a t io n
p lo y e e s — C o n s t i t u t i o n a l it y o f S t a t u t e —Commonwealth v.
150
BU LLETIN OP TH E BUBEAU OP LABOR STATISTICS.
On the other hand, the court held that the instructions asked for
by the defendant company, among others that the act was invalid,
should have been given, and the exceptions of the company were
therefore sustained. In declaring the act unconstitutional Judge
Eugg said:
The main contention of the defendant is that the statute as thus
construed is unconstitutional. The agreed facts show that there is
nothing inherently unhealthy about the work which the employee
did. It was half performed in the open air. It was not arduous.
Under these circumstances, the case at bar is indistinguishable from
and is governed by Lochner v. N. Y., 198 U. S. 45, 25 Sup. Ct. 539
Bul. No. 59, p. 340]. It was there held that a statute which proibited labor for more than 10 hours per day in an ordinarily
healthy occupation was “ an illegal interference with the rights of
individuals, both employers and employees, to make contracts re
garding labor upon such terms as they think best, or which they may
agree upon with other parties to such contracts,” and that “ under
such circumstances the freedom of master and employee to contract
with each other in relation to their employment, * * * can not
be prohibited or interfered with, without violating the Federal
Constitution.” That decision is binding upon the legislature and
courts of this Commonwealth. (See, also, Opinion of Justices, 208
Mass. 619, 94 N. E. 1044 [Bui. No. 96, p. 856].) The instant statute
is indistinguishable in principle from the one there stricken down.
That it relates in part to certain employees of railroads constitutes
no ground for differentiation, for the class with which it deals,
namely, “ baggagemen, laborers” and “ the like,” groups together
those whose work does not have relation to the operation of trains
and the safety of passengers. It refers to those employed in different
capacities in and about railroad stations, whose work does not con
cern the safety of the traveling public.
Statutes limiting the hours of labor of employees of the Com
monwealth, counties, cities, and towns [cases cited], are upheld for
quite different reasons, and without conflicting with the Lochner
case.
It was held that the statute could not be sustained as an amend
ment to the charter of the company. The question whether it is also
unconstitutional as a regulation of interstate commerce in contraven
tion of the powers of Congress exercised in that field, was not de
cided, as it was deemed unnecessary.
i
H o u r s o p S e r v ic e — R a ilr o a d s — O f f i c e s O p e ra te d C o n t in u o u s ly
N ig h t a n d D ay —United States v. Grand Rapids & Indiana Rail
way Co., United States Circuit Court of Appeals, Sixth Circuit
(June 30,1915), 224 Federal Reporter, page 667.—Penalties amount
ing to $60,000 were sought to be enforced against the company
named for violation of the Hours of Service Act. Judgment in the
district court was for the company, and the Government appealed.
DECISIONS OF COURTS AFFECTING LABOR.
151
There were two operators at each of two stations involved. At
Traverse City one operator was on duty a total of 10£ hours and
another 9§; at Pellston, one for 10J and the other for 10. The
former office was closed from 6 a. m. to 7 a. m. and from 11 a. m. to
12 noon; with these exceptions it was open from 4.30 a. m. to 9.30
p. m., having one operator on duty a part of this time, and both at
other hours. The latter office was open all the time from 6.30 a. m.
to 11 p. m.; so that the length of the closing period at night was 7
hours in the former case, and 7£ in the latter.
The single question was whether these should be considered as
“ offices operated only during the daytime” or “ offices operated con
tinuously night and day.” In the former employees are allowed by
the statute to be employed 13 hours; in the latter only 9. The court
discussed the subject fully, with an examination of the cases already
decided, and reached the conclusion that they were to be regarded as
operated continuously, so that the judgment in favor of the company
was reversed, and the case remanded for further proceedings.
H ours o f
S e r v ic e — R a ilr o a d s — “ O n
D u t y ” —“ E m ergen cy” —
United States v. Chicago <& Northwestern Railway Co., United
States District Court, Western District of Michigan, Northern
Division (Oct. 30, 1914), 219 Federal Reporter, page 342.—Action
was brought against the company named for the enforcement of
penalties under the Federal Hours of Service Act, and the court gave
judgment for the prosecution. Twenty-four different counts alleged
the keeping of telegraph operators on duty for more than 13 hours
during periods of 24 hours. A part of the stipulated facts as to
eight of the counts was as follows:
It is agreed that the testimony shows that the employee always has
a full hour off duty for dinner and also for supper as a uniform and
regular practice; that they have no definite recollection as to the par
ticular days in Question; that if during a meal hour an unexpected
train should arrive at their station they would give it the necessary
attention and complete their meal hour after doing so as a common
practice; that they were paid for the full amount of overtime charged;
and also for their regular service.
Discussing this point, Judge Sessions, who delivered the opinion,
said:
From these facts, it is apparent that the operator was always
subject to call whenever his services were required, both during meal
hours and at other times. It is well settled that, within the meaning
of the Hours of Service Act, brief periods allowed for meals and other
purposes do not interrupt the continuity of service. Under the cir
cumstances here shown, it must be held that the operator was on duty
during the time he was taking his meals. (United States v. Chicago,
152
BULLETIN OP TH E BUBEAU OP LABOB STATISTICS.
Milwaukee & Puget Sound Railway Co., 197 Fed. 624-627 [Bui. No.
112, p. 124]; Missouri, Kansas & Texas Railway Co. v. United States,
231 U. S. 112-119, 34 Sup. Ct. 26 [Bui. No. 152, p. 1281; United
States v. Northern Pacific Railway Co., 213 Fed. 539 [Bui. No. 169,
p. 133].)
The defense of emergency was made to certain counts, but the court
held that neither the lateness of other trains on connecting lines or
the delay of the departure of a circus train due to the act of the
circus company’s intoxicated employees in running a wagon off a
flat car, was an emergency, but that both were, on the contrary, ordi
nary accidents, which “ furnish neither justification nor excuse for a
violation of a remedial statute like the one under consideration.”
H ours op S ervice — R ailroads — O perators , etc . — C onductor
U sing T elephone —United States v. Florida East Coast Railway
Co., United States Circuit Court of Appeals, Fifth Circuit (Apr. 5,
1915), 222 Federal Reporter, page 38.—The company named was
prosecuted for alleged violation of the Hours of Service Act, by the
employment for more than 13 hours out of 24 of a conductor who, at
certain stations, used the telephone to receive orders relating to the
movement of trains. The question involved was whether such an em
ployee was included, by reason of his use of the telephone, in the term
“ other employees ” in the proviso of section 2 of the act, relating to
operators, train dispatchers, and the like.
The court held that the act was not intended to cover such em
ployees under the proviso, and that the company was not guilty of
its violation. Judge Maxey, in delivering the opinion, considered
that the purpose of the proviso was to provide shorter hours for tele
graph and telephone operators and other employees whose primary
and principal duty requires them to operate telegraph instruments
and telephones for transmitting, etc., orders affecting train movements
generally. He also called attention to the fact that the language of
the statute contemplates that the duties of employees mentioned in the
proviso should be performed in a fixed place. He stated that an addi
tional reason for such construction of the law is that when general
terms are used in a statute, their meaning will be restricted to things
of a like nature and description with the particulars among which
they are found, and quoted as follows from the case of Missouri
Pacific Railway Co. v. U. S., 211 Fed. 893 (Bui. No. 169, p. 129):
As the word “ employee” in the proviso of section 2 includes
“ operator ” and “ train dispatcher,” for the latter are both employees,
the conclusion here is irresistible that Congress intended by the use
of the words “ other employee ” to mean an employee engaged pri
marily in the same class of service as would be performed by an
operator or train dispatcher.
DECISIONS OP COURTS AFFECTING LABOR.
153
H ours o f S ervice — R ailroads — O perators, e t c .— S w it c h T end
U sing T elephones — O rders— Chicago, Rock Island <& Pacific
ers
Railway Co. v. United States, United States Circuit Court of Ap
peals, Seventh Circuit (Aug. 6, 1916), 226 Federal Reporter, page
27.— T h e ra ilw a y com pan y nam ed was con victed in a d istrict cou rt
f o r viola tion o f the H ou rs o f S ervice A ct. T h e questions in v o lv e d
were w hether the em ployees concerned were w ith in th e classes re
stricted in the p rov iso o f the act to a n in e-h ou r w o rk in g d a y, and
w hether the telephone com m unications m ade b y them w ere orders
w ith in the m eaning o f the act. I t appeared that the em ployees were
switchm en, and it was th eir d u ty to th row certain sw itches, near
C h icago, ov er w h ich trains en terin g the city fr o m the south o r
leavin g it in that d irection passed. F o u r m iles d istant there was a
crossin g w ith th e tracks o f the B altim ore & O h io R a ilroa d . A t th at
p o in t there w as an in terlock in g arrangem ent b y w h ich it w as im
possible f o r trains to proceed ov e r b oth tracks at the same tim e, so
that th ey cou ld n ot collide. T h e passenger trains on the R o c k Isla n d
roa d m igh t, how ever, be con siderably delayed in w a itin g f o r fre ig h t
train s to pass on th e B altim ore & O h io ; and t o obviate th is diffi
cu lty it w as m ade the d uty o f the sw itchm en in question, w hen a
passenger train passed them , to telephone to the tow erm an at the
crossing, so th at he w ou ld h o ld fre ig h t trains u n til th e passenger
train h ad passed. T h e cou rt affirmed the con v iction in an op in ion b y
J u d g e M ack. T h e com pan y conceded th at ,any d irection w h ich must
be obeyed w ou ld b e an o r d e r ; b u t contended th at o n ly such orders as
m igh t result in some accident cam e w ith in the purpose, and th erefore
w ith in the scope, o f the act. T h e cou rt held that those a ccom plish in g
greater regu la rity in passenger service, as in th is case, w ou ld also be
included, and p oin ted ou t that delay m igh t result in accident. I t
also held that the statute is n ot intended to a p p ly o n ly to those w hose
p rim a ry and p rin cip a l d u ty it is to transm it orders, b u t to those as
w ell w h o o rd in a rily and habitually d o so, alth ou gh oth er duties fo r m
the p rin cip a l p a rt o f th eir em ploym ent.
H ours o f S ervice — R a ilr o a d s — O perators— T ratn D ispatcher
E m p loy ed A lso as T ic ke t S eller — Delano et oil. v. United States,
United Stales Circuit Court of Appeals, Seventh Circuit (Jan. 6,
1915), 220 Federal Reporter, page 635.— T h is case involves the ques
tion w hether a ra ilroad violates the H ou rs o f Service A c t b y th e em
p loym ent o f a person f o r a length o f tim e less than nine h ou rs as a
train dispatcher, and f o r a fu rth er p eriod, com p letin g a total o f m ore
than nine hours, as a tick et seller, inspector o f telegrap h lines and
apparatus, o r the lik e, these latter occu pations b ein g am on g those
154
BULLETIN OF TH E BUBEAU OF LABOB STATISTICS.
not limited to nine hours of service by the statute. The court re
viewed the purpose of the act, held that Congress expressed no in
tention to permit such employment of a train dispatcher, and affirmed
the judgment of the court below for the United States against the
defendants (appellants in the present proceedings), receivers for a
railroad company.
H ours
of
S ervice — R ailroads — R eports
of
O vertime W ork —
United States v. Baltimore <6 Ohio Railroad Co., United States Dis
trict Cowrt, Northern District of West Virginia (Sept. 13,1915), 226
Federal Reporter, page 220.—Action was brought against the rail
road company named for penalties for alleged violation of the
Hours of Service Act. Certain employees included in the nine-hour
provisions of the act had been required, under emergency conditions,
to work for periods not in excess of four hours additional per day for
three days in one week, as permitted by the act under such condi
tions. The company contended that in these cases it was not
required to report the occurrence of the overtime work, but the court
held that a report should have been made. Judge Waddill, who
delivered the opinion, said as to this:
The purpose of the act in question was to limit the time of service
of employees, and at the same time, in cases of emergency, to give
some latitude in the enforcing of the act, looking to the practical
working of the same; and the purpose, therefore, was to place some
limit on the time in which additional service could be rendered in
case of emergency.
It was the plain purpose of the order to secure information respect
ing these very matters; otherwise, without just reason or cause, all
employees could have been required to labor four additional hours
for three days in each week, and the commission would not be
advised thereof. It was not intended that this additional service
should be required, save in an emergency, and it was certainly not
within the spirit of the act that the employees [employers?] should
be the sole judges of when the emergency existed, to warrant the extra
service.
The court held on the other hand that a report was not required
when an operator was employed for extra hours because at work at
the place of a wreck.
H oubs of S ervice — R ailroads — R eports of O vertime W ork —
I nadvertent O missions —Oregon-Washington Railroad <£• Naviga
tion Co. v. United States, United States Circuit Court of Appeals,
Ninth Circuit (May 3,1915), 222 Federal Reporter, page 887.—The
Government brought action to recover 30 penalties, of $100 each, for
violation by the company named of an order of the Interstate
Commerce Commission, requiring that within 30 days after the
DECISIONS OF COURTS AFFECTING LABOR.
155
end of each month all carriers shall report instances where, during
the month, employees have worked for a period longer than that
provided in the Hours of Service Act. It was conceded by the Gov
ernment that the omissions had been inadvertently made, and the
question was whether, that being true, the company was liable for
penalties. The District Court for the District of Oregon held that it
was so liable, but its judgment of conviction was reversed on appeal,
Judge Ross, who delivered the opinion, saying in part:
In the recent case of San Pedro, Los Angeles & Salt Lake Railroad
Co. v. United States, 220 Fed. 737 [see p. 147], in considering the
Hours of Service Act, we held that the whole of it “ must be taken
together, and be so construed as to give effect to its humane pur
pose, and at the same time to give the railroad companies the benefit
of the exceptions and provisos in all cases fairly brought within
their terms and true intent” ; that the paramount purpose of the
act was to prevent the overworking of the employees, to the end that
their efficiency be not impaired; and that the obligation was thereby
imposed upon the carriers to comply with that requirement, unless
prevented therefrom because of a valid excuse.
We think the same common sense and just construction should be
placed upon the order of the Interstate Commerce Commission
adopted for the purpose of giving effect to that act, and that an omis
sion honestly and inadvertently made from a report of a carrier,
filed pursuant to the order, should not be held to subject the carrier
to the penalty prescribed by the act of Congress. Undoubtedly the
courts should, and no doubt always will, scrutinize any and all such
omissions with care (and in jury cases, as was the present, so instruct
the jury), to the end that there be no evasion of the requirements;
but we can not think that an honest mistake or omission fairly comes
within the provision of either the statute or the order of the com
mission. The only reported case cited by counsel directly upon this
oint is that of Northern Pacific Railroad Co. v. United States, 213
'ed. 162, which is in accordance with these views.
J
I nterference w it h E m plo ym e n t — H ir in g
W ritten C ontract w it h A nother — Lambert
E mployee
U nder
v. State, Court of
Appeals of Alabama (June 80, 1915), 69 Southern Reporter, page
£61.—Robert Lambert was convicted in the circuit court of Elmore
County of knowingly and willfully interfering with, hiring, or en
ticing Henry Jones, a laborer or servant, who had contracted in writ
ing to serve one W . R. McCarter.
In rendering an opinion affirming the conviction, Judge Thomas
spoke for the court of appeals in part as follows:
Under the statute inhibiting any person from knowingly interfer
ing with, hiring, or employing, etc., any laborer or servant who has
in writing contracted to serve another, a conviction may be had on
proof that such contract exists, and that such laborer or servant was'
round in the employ of the defendant before the expiration of the
156
BULLETIN OP THE BUREAU OP LABOR STATISTICS.
contract with prosecutor, and that defendant refused to release him
on demand ana on being given notice of such contract. Such being
the tendencies of the evidence for the State in this case, the court
did not err in refusing the affirmative charge requested by the de
fendant
L a b o r O r g a n iz a tio n s — C o l l e c t iv e A g r e e m e n ts — “ M o n o p o ly ” —
V a l i d i t y —Underwood et al. v. Texas & Pacific Railway Co. et al.,
Court of Civil Appeals of Texas (July 3, 1915), 178 Southwestern
Reporter, page 38.—J. A . Underwood and others sued for a writ of
injunction against the defendants to obtain relief from the continued
carrying out of a contract of agreement between the railway com
panies and the Brotherhood of Railway Trainmen, and for a decree
declaring the agreement to be void. The plaintiffs declared that they
were proficient railway switchmen, and were industrious, etc., and
had been unable to secure work when they had applied because they
were not members of the brotherhood. As to the reasons assigned
for illegality of the contract the court’s opinion, by Judge Rainey,
says:
Complainants further charge that said purported contract between
the Brotherhood of Railway Trainmen and the defendant railroads
is illegal and void, as being without consideration, against public
policy, discriminatory, preventive of competition and of the freedom
of contract, creative ox a monopoly of labor, destructive of the liberty
and property of the complainants, and creative of a combination in
the interest of monopoly to prevent the employment, as well as to com
pel the discharge of competent men who were willing to work, but
who were not members of the Brotherhood of Railway Trainmen,
that its continued enforcement by the railroads and the Brotherhood
of Railway Trainmen will work irreparable injury to complainants,
and that they have no adequate remedy at law.
The railway companies admitted an agreement by them with the
brotherhood, which provided that they would give preference to
members of the brotherhood to the extent of 85 per cent in the case
of one company and 75 per cent in the other case, making no change
in the men employed at the time of the contract, but accomplishing
the result in the hiring of men as vacancies occurred. They denied
any agreement or understanding between themselves with reference
to the matter.
A part of the answer of the brotherhood giving additional allega
tions of fact is quoted in the opinion as follows:
It shows to the court that its membership is composed of 135,000
or more men, and that the Switchmen’s Union of which it verily
believes and charges is the real plaintiff herein, and encouraging
and instigating the bringing of this suit by the several plaintiffs
who joined in the same, is an order composed, as it is informed and
believes, of some nine or ten thousand members. It verily believes,
and charges the fact to be, and so states, on information and belief,
DECISIONS OF COURTS AFFECTING LABOR.
157
that it, the Brotherhood of Railway Trainmen, has an excess of mem
bership in the ratio of more than 10 to 1 over and above that of the
aforesaid Switchmen’s Union, and that, among those within tliis
State who by occupation pursue the business of switchmen, ninetenths or more are members of its (defendant’s) order, and that its
contracts with the several defendants herein, wherein it has sought
to provide for a percentage employment basis of its members, is not
only not discriminatory as to nonmembers of its order, but, on the
other hand, is exceedingly fair and just, and, if there be discrimina
tion in said percentage, it is against the defendant rather than
those who are not its members.
The trial court refused to issue the injunction. The court of
appeals affirmed the judgment in favor of the defendants, Judge
Rainey stating the findings of fact and conclusions of law. After
stating the terms of the contract, he said:
After these contracts were entered into, the railway companies re
quired all applicants to state whether or not they were members of
the Brotherhood of Railway Trainmen. The appellants each made
application for employment as switchmen to one of the said com
panies, but, not being members of Brotherhood of Railway Train
men, were turned down, and the reason given was that they were
not members of said brotherhood, although at that time money
matters were stringent, many men were out of employment, and the
railroads had reduced their force and were working just as few men
as practicable.
Judge Rainey then reproduced certain statements in evidence as
to the number of members of the respective organizations, and the
numbers employed at various points, and said:
In proportion to the membership of the appellee the Brotherhood
of Railroad Trainmen, if there is any discrimination in the employ
ment of men, it is against it. While the appellee, the Brotherhood
of Railroad Trainmen has not got the percentage of men as per their
agreement with the other appellees, still nothing has been done by it,
or any of its members, to coerce or try and force them to give more
Brotherhood of Railway Trainmen men employment even though a
big percentage of its membership is out of employment and have
been refused places just as Switchmen’s Union men have.
The appellants present, first, that “ the contract is unilateral in
character, wanting in mutuality, and unenforceable at law.” They
are met by appellees with the counter proposition that they are
strangers to the contract, and there is nothing in the pleadings nor
by the evidence in the record to show that there is any privity of
contract between the parties. The appellants not being privies to
the contract between the railway companies and the Brotherhood of
Railway Trainmen, they are in no position to complain. But they
say “ the contract is void, as against public policy, as preventive of
competition, and creative of a monopoly of labor. We do not agree
with this proposition. There is nothing to show that there was any
conspiracy and combination between the appellees which contravenes
any law of this State or of the United States. There is nothing in
the contract which interferes with the interests of society nor in
158
BULLETIN OF THE BUREAU OF LABOR STATISTICS.
terferes unlawfully with the liberty of appellants to pursue their
chosen avocations consistent with the rights of others. The law
gives to the railroad companies the right of contract and the
same right to all other legal organizations so long as such con
tracts they make are not violative of law. Our statutes authorize
laborers to associate themselves together, form trade-unions, etc.,
for their protection, in their respective callings. (Penal Code,
art. 1477.) Article 1479 provides that the antitrust law shall not
interfere with the terms and conditions of contracts relating to pri
vate contracts as to service of employment between employer and
employee. The contract between the railway companies and the
Brotherhood of Railway Trainmen was legal, it being for the benefit
of the individual members of that order in securing work, and for
the railways in securing skilled and efficient workmen to protect their
interest.
The evidence does not show that they would have been employed
by the railroads had there been no contract with the Brotherhood of
Railroad Trainmen. Appellants merely show that the railways gave
as an excuse for not giving them employment that they were not
members of the Brotherhood of Railway Trainmen. This the rail
ways had the right to do. They were free to employ whom they
pleased, and this right can not be questioned, not being connected
with any conspiracy or combination against any individual or organ
ization to prevent employment.
The decisions of this State and the United States, we think, make
clear the distinction between the two classes of contracts in regard
to labor, where such are legal and those affected by conspiracy, etc.
There is reason in contracting with the Brotherhood of Railway
Trainmen, for its membership greatly exceeded the membership of
any other particular union, which was a guaranty of keeping a full
working force. But the contract is not exclusive, and provides for
only a certain per cent of Brotherhood of Railway Trainmen, and
the evidence shows appellees have a larger per cent of other classes
employed than of the Brotherhood of Railway Trainmen in propor
tion to membership.
Where Congress and several of the States have enacted laws at
tempting to limit the power of corporations and individuals in regard
to making contracts for labor as they see fit such laws have been held
unconstitutional by the appellate courts. (Coppage v. Kansas, 236
U. S. 1, 35 Sup. Ct. 240 [Bui. No. 169, p. 147; other cases cited].)
A quotation of some length is made from the Coppage case, and
the opinion concludes:
The contract here is not against public policy, as it in no way
affects the real needs of the people in their health, safety, comfort,
or convenience.
L abor O rganizations — C o n sp ir a c y — I n ju n c tio n s — S trikes —
P ic ke tin g —Hardie-Tynes Manufacturing Co. v. Cruse et al., Su
preme Court of Alabama (Nov. 7, 1914), 66 Southern Reporter, page
657.—The company named brought a bill to secure an injunction
against W. D. Cruse and others. The bill of complaint sought re
DECISIONS OP COURTS AFFECTING LABOB.
159
lief against certain of the complainant’s former employees, members
of the Molders’ Union, who in cooperation with the union had en
gaged in a general strike against their employers, including this
company. It charged concerted action to coerce the employers to
::gree to their terms, and to prevent the employers from employing
other members of the union in their places. An elaborate system
of picketing and patrolling, and intimidation, threats, insults, and
in some cases violence were charged. Large pecuniary damages and
a probability of the continuance of the acts were alleged, and the
bill prayed for an injunction covering all the practices complained of.
The respondents objected to the bill on the ground that it was with
out equity and was multifarious. They contended further that the
separate paragraphs of the bill set forth no sufficient bads of com
plaint. On submission for rulings on these objections it was decreed
that the demurrers be separately and severally sustained. From
this decree the complainant company appealed. The preliminary
injunction prayed for was, however, issued by a justice of the supreme
court upon application.
In delivering the opinion of the supreme court, which reversed the
chancellor’s decree in favor of the respondent members of the union,
and overruled their objections to the bill of complaint, Judge Somer
ville said in part:
The English and American courts have, we believe, without excep
tion, held that the right to conduct one’s business, without the
wrongful and injurious interference of others, is a valuable property
right which will be protected, if necessary, by the injunctive processes
of equity. (Gray v. Building Trades Council, 91 Minn. 171,97 N. W.
663 [Bui. No. 53, p. 955]; Vegelahn v. Guntner, 167 Mass. 92, 44
N. E. 1077 [Bui. No. 9, p. 197]; Beck v. R. T. P. Union, 118 Mich.
497,77 N. W. 13 [Bui. No. 22, p. 457].)
They seem to be unanimous, also, in holding that employees may
rightfully organize themselves into associations for mutual pro
tection and betterment; and that, having thus organized, they may
by confederated action withdraw from, or decline to enter, the serv
ice of any particular employer. And it may be further said that
there is practically no judicial dissent from the proposition that in
the accomplishment of their purposes of self-protection and self
betterment employees or nonemployees have no right to use threats,
intimidation, or violence against or upon employers, or upon their
employees or strangers to induce them to leave or not to enter the
service of the former. (24 Cyc. 830, 831.)
With respect to the “ peaceful persuasion ” of others not to enter
an employer’s service, it may, perhaps, be said that such a right is
generally recognized by the courts, and injunctive relief against it is
denied, though it is to be noted that interference with existing
contracts of service by inducing those so contracting to violate their
agreements is such a wrong as may be enjoined in equity. (24 Cyc.
838, and cases cited.)
160
BULLETIN OP THE BIJBEATX OP LABOB STATISTICS.
In regard to the practice of “ picketing,” as that term is com
monly understood, the courts are not in harmony. The consensus of
judicial opinion is admirably stated in the following excerpt from
the case note to Jensen v. C. & W. Union, 89 Wash. 531, 81 Pac. 1069,
4 L. R. A. (N. S.) 302 [Bui. No. 62, p. 323]:
“ The lawfulness or unlawfulness of ‘ picketing’ in the United
States—as subsequently shown, it is otherwise in England in conse
quence of statutory provisions—must be determined in view of the
fundamental principle upon which all the courts are agreed, that
the boundary between lawful and unlawful conduct in the effort to
induce persons, not under contract, to leave another’s employment,
or not to enter such employment, is the line between peaceable per
suasion and intimidation. As a practical matter, however^ it is not
always easy to determine exactly when peaceable persuasion ceases
and intimidation commences, or so to frame an injunction that it will,
in its practical operation, prevent intimidation without infringing
the right of peaceable persuasion. Open threats, much less actual
violence, are not an indispensable accompaniment or condition of
intimidation. That which in appearance and outward form is but
peaceable persuasion may, by virtue of the intent which lies behind
it or the circumstances which surround it, carry a menace the prac
tical effect of which is intimidation. Indeed, it is quite conceivable
that, under the circumstances generally surrounding a strike or other
labor difficulty, that which was in good faith intended as peaceable
persuasion, and designed merely to influence the voluntary action
of employees or persons seeking employment, may, by reason of the
timidity or unprotected condition of persons upon whom it is exerted,
operate practically as intimidation or coercion. #Picketing a place
of business where a strike is in progress, though in intent as well as
in outward appearance maintained for the lawful purpose of per
suading the classes of persons mentioned, has almost inevitably some
tendency to intimidate individuals belonging to those classes. This
tendency has induced a few courts, though they are in decided minor
ity, to condemn picketing per se and under all circumstances as un
lawful, or at least to enjoin picketing without qualification or ex
ception by reference to intimidation, though even in cases of this
kind the showing upon which injunctions have been granted has
included facts indicating that the picketing had been accompanied
by threats or other conduct amounting to actual intimidation.”
It is obvious that upon the established principles of the common
law, and without the aid of statutory provision, the bill of complaint
in this case contains equity; and, indeed, this does not seem to be
seriously controverted.
It is, however, urged on behalf of the respondents that the bill is
demurrable in so far as it seeks tp prevent peaceful picketing and
the peaceful persuasion of complainant’s workmen to leave their
employment. Conceding, without deciding, that the demurrers raise
this point, and that the weight of authority in other States sustains
it, the statutes of this State do not permit us to so hold. We notice
briefly these provisions:
“Any person who entices, decoys, or persuades any apprentice or
servant to leave the service or employment of his master” is guilty
of a misdemeanor. (Sec. 6849, Code of 1907.)
DECISIONS OP COUBTS AFFECTING LABOR.
16}
This section was construed in Abingdon Mills v. Grogan, 167 Ala.
146, 52 South. 596, as being applicable not only to menial servants,
but also to the employees of a mill; and in Tarpley v. State, 79 Ala.
271, it was held tnat a similar statute was not obnoxious to the con
stitution of the State.
The court then quoted sections of the Code of 1907, section 6394,
forbidding conspiracy to interfere with the conduct of business,
section 6395, forbidding picketing, and section 6856, forbidding
threats and violence; and continuing said:
The meaning and purpose of these provisions are, we think, too
plain for serious discussion. Sections 6394 and 6856 are broad
enough to include even the peaceful persuasion of would-be em
ployees not to serve an employer, if its intention and effect is to
revent the operation of a lawful business. And while the courts
o not undertake to enjoin the conspiracy itself, the execution of the
conspiracy would be a criminal tort against the employer’s property
rights which may be prevented by injunction. Section 6395 is more
specific in its inhibition of such forms of “ peaceful interference,”
and expressly forbids picketing when it is done “ for the purpose of
interfering with or injuring any lawful business or enterprise.”
Perhaps our legislature has taken the view, adopted by some of the
courts, that in actual practice there is and can Tbe no such thing as
peaceful picketing or peaceful persuasion. Certainly this is the
effect of our statutes.
It is suggested by counsel for respondents that our construction of
section 6395, as being an inhibition of picketing even where threats or
violence are not used, renders it unconstitutional. No intimation is
offered as to what provision of the constitution is thereby offended,
and we can think or none. Certain it is that a right to actively and
directly interfere with and prevent the operation of the lawful busi
ness or another is not included among the inalienable rights of “ life,
liberty, and the pursuit of happiness.” The “ liberty ” guaranteed
by the constitution (art. 1, sec. 1) is liberty regulated by law and the
social compact; and in order that all men may enjoy liberty it is
but the tritest truism to say that every man must renounce unbridled
license. So, wherever the natural rights of citizens would, if exer
cised without restraint, deprive other citizens of rights which are
' also and equally natural, such assumed rights must yield to the regu
lations of municipal law. If one man asserts the constitutional right
of preventing another from the pursuit of a lawful business, what
is to become of the undoubted constitutional right of that other to
pursue his business unmolested? It is clear that this notion of
liberty utterly ignores “ the other fellow,” and denies to him the
very freedom it is claiming for itself.
S
L abor
O r g a n iz a tio n s — I n j u n c t i o n s — I n t e r f e r e n c e
w ith
T r a d e — P e a c e f u l B o y c o t t s — Auburn Draying Co. v. Warded et al.,
Supreme Court of New York, Equity Term, Cayuga, County {Mar. SO,
1915), 152 New York Supplement, page 475.—This was an action
26071°—Bull. 189—16----- 11
162
BULLETIN OF THE BUREAU OF LABOR STATISTICS.
for an injunction and damages by the company named against cer
tain persons in their individual capacity and as officers of labor
unions, to restrain them from the prosecution of a boycott against
the company’s business. A permanent injunction was granted by
the court, which held the acts of the defendants to be violations of
the Penal Law, section 580, which forbids interfering with trade by
threats, etc. In the opinion delivered by Judge Sutherland the facts
of the controversy-between the company and the unions are given at
some length. It appears that the company, at the time the trouble
arose, was the leading concern engaged in the trucking business in
the city of Auburn, and had a large number of well-satisfied patrons.
The relations between the company and its 30 to 45 employees had
been harmonious, and the employees were free to join a union or not,
as they desired. Representatives of the Teamsters’ Union and the
Central Labor Union, outside the company’s force, endeavored to
persuade the employees to join the Teamsters’ Union, organized in
November, 1912. The men did not join voluntarily, and the union
workers took offense because the company would not advise or compel
the men to join, and organized the boycott complained of.
Both the unions named, as well as the meat cutters’, bakers’ and
other local organizations took up the attempt to compel the com
pany’s customers to leave it by threatening to call strikes among
their men if they did not. The organization of the unions and their
connection with the Central Labor Union are shown to have been
complete, the latter being nominally an advisory body, but in fact
having the power to work great harm, as in this case. A contractor
to build a theater was compelled to abandon a contract with the draying company for hauling materials from the station, and even to have
that part already hauled carted back to the station and again to the
location of its job in order to retain its employees. Other building
contractors, also butchers, bakers and merchants were in like manner
obliged to choose between ceasing to patronize the company and fac
ing a strike.
No force or violence was used during the trouble, nor were mis
statements of facts made unless the use of the word “ unfair ” was
such. At the trial, it was shown that there was not in the constitu
tion or laws of the organizations any authoritative definition of this
word, and the well-informed members of the union defined it as in
cluding refusal to treat with representatives of the organizations, and
to give employees the working conditions asked for by labor organiza
tions. Continuing, Judge Sutherland said:
The plaintiff did not refuse to treat with union labor leaders, nor
did it discriminate against those of its employees who did belong to
that organization. Some effort was made at the trial to show that
union men were discriminated against; but that claim is not justified
DECISIONS OF COURTS AFFECTING LABOR.
168
by the facts. It is true Mr. Wilson, the manager of the plaintiff,
stated to the union leaders who called upon him that, if his men asked
his advice as to joining the union, he would tell them that he thought
it would not tend to preserve the spirit of harmony which had existed
between the men and their employers, but might introduce an ele
ment of discord. He stated that he would not volunteer this in
formation, and would put no obstacle in the way of any of his men
joining who desired; but it is not unlikely that his unsympathetic
attitude toward the union idea was understood by his employees.
Mr. Wilson testifies that Mr. Dennis, who was the official organizer
of the American Federation of Labor, business agent of the Central
Labor Union at Auburn, and ex officio agent of each affiliated local
union, told him, if the men would not join, he (Wilson) must dis
charge them. This Dennis denies. But the efforts of Dennis with
the men had proved unavailing, and he undoubtedly tried to get
Wilson to bring pressure upon the men to join; and because Wilson
did not do as he requested, and because the men continued to re
main out of the union, the plaintiff was declared unfair. Some of the
plaintiff’s employees offered to join, but after the declaration of un
fairness the union would not receive a portion of the men and permit
them to work with others who did not Delong to the union; the posi
tion of the union being that they would then take all of the plaintiff’s
men into their organization or none.
It is plain enough that, whether the words used in notifying
plaintiff’s customers that labor troubles would come to them if they
continued to patronize plaintiff were that the union men would quit,
or would be ordered to quit, the intention was disclosed to use the
power of the labor organization, if necessary, to compel the members
to quit; and what was feared by the customers was, not any volun
tary, self-initiated movement of their own employees to quit, but
that they would quit because ordered to do so by the organizations
to which they belonged, which possessed disciplinary powers to en
force obedience. The temporary injunction continued until the case
was tried upon the merits; and it must now be determined whether
a cause of action in equity exists, and, if a permanent injunction
is to issue, toward what acts it should rightfully be directed.
The law on the subject of the peaceful boycott does not seem to
have been so clearly settled in this State by its court of last resort
as to leave no ground for uncertainty. The familiar and frequently
cited cases of Curran v. Galen, 152 N. Y. 33, 46 N. E. 297 [Bui. No.
11, p. 5291, Nat. Protective Assn. v. Cumming, 170 N. Y. 315, 63
N. E. 369 [Bui. No. 42, p. 1118], and Jacobs v. Cohen, 183 N. Y. 207,
76 N. E. 5 [Bui. No. 64, p. 896], if they are entirely reconcilable, do
not apply so closely to the question at issue here as to dispose of
it, and I think it may be regarded as still an open question as far
as the court of appeals is concerned; and the reported opinions
of judges of other courts of this State are not in entire harmony
in all their expressions as to the legal effect of a combination or
agreement of maily to do that which each individual of his own
accord might lawfully do as to the withholding of patronage, where
no physical interference is used or threatened, and no misstatement
of fact employed to arouse hostility. It has sometimes been said
that if the purpose of the confederated movement is to benefit the
members of the organization, and the consequent injury to a third
164
BULLETIN OP THE BUBEAU OP LABOR STATISTICS.
party only an incident, the injury is without redress in the civil
courts. (See review of New York cases in Gill Engraving Co. v.
Doerr et al., 214 Fed. I ll [Bui. No. 169, p. 301].) Whether that be
the true test is, to say the least, open to great doubt; and I venture
to suggest that it will be hard to find a case in the books where a
combination has been held to be illegal, and has been restrained from
operating, in which the purpose of the combination was not to
benefit its -members. The acts done to accomplish the purposes of
the organization may bring it under condemnation, and render it
liable in damages to the party injured by said acts, even if the pur
pose for which the organization was formed is most praiseworthy.
The distinction between motive and intent, between ultimate pur
pose and immediate purpose, must not be forgotten.
In so far as it may be thought to be material to inquire whether the
movement against the plaintiff was merely incidental to a general
policy adopted by the unions, irrespective of the individuals outside
their organization who might happen to gain or lose by it, it is clear
that the declaration of unfairness against the plaintiff was not so
made. The resolution of unfairness and the propaganda which fol
lowed were rather in the nature of special legislation and special
action directed particularly against the plaintiff, for the immediate
purpose of destroying its business unless it would yield to the de
mands imposed upon it and take the necessary steps to bring its un
willing employees into the union.
The immediate purpose or intent, and not the ultimate purpose or
hope, of the defendants in instituting the boycott should be con
sidered, if the purpose of those who inaugurate a boycott bears upon
its legality. While the ultimate hope of the defendants no doubt
was to better the condition of the members of the union by bringing
into it all the craftsmen and laborers in Auburn, so that their united
efforts for higher wages, shorter hours, and better working conditions
might be more persuasive and effectual, and assuming, as we readily
may, that without such motive or ultimate purpose the boycott would
not have been inaugurated, nevertheless the immediate business in
hand, the specific and direct thing which the defendants were then
and there devoting their energies to and focusing all of the dis
ciplined power of their organization upon, by which their intent in
the true legal sense is to be ascertained, was the destruction of the
plaintiff’s business, in order that the plaintiff, through its sufferings,
might be forced to yield to the demands of the union; and by this
immediate purpose and intent the legality of the boycott movement
in this case should be determined^ What was threatened, intended,
and in part accomplished, was injury to the business and property
of the plaintiff; the acts performed and results accomplished being
also necessarily injurious to trade and commerce. Whether we call
those acts means or ends, they are forbidden under the statutes of
this State. (Penal Law, sec. 580, subds. 5, 6 [cases cited].)
The sections of the Penal Law relating to conspiracy have received
much attention in the arguments and briefs of the learned counsel
who have presented the case and the defense with very great ability.
Section 580, as far as it relates to the subject under discussion, pro
vides that: “ I f two or more persons conspire: * * *
“ 5. To prevent another from exercising a lawful trade or calling,
or doing any other lawful act, by force, threats, intimidation, or by in
DECISIONS OF COURTS AFFECTING LABOR.
165
terfering or threatening to interfere with tools, implements, or prop
erty belonging to or used by another, or with the use or employment
thereof; or
“ 6. To commit any act injurious to the public health, to public
morals, or to trade or commerce, or for the perversion or obstruction
of justice, or of the due administration of the laws,
“ Each of them is guilty of a misdemeanor.”
Section 582 reads as follows:
“ No conspiracy is punishable criminally unless it is one of those
enumerated in the last two sections, and the orderly and peaceable
assembling for cooperation of persons employed in any calling, trade
or handicraft for the purpose of obtaining an advance in the rate of
wages or compensation, or of maintaining such rate, is not a con
spiracy.”
Speaking first as to the declaration in section 582 that cooperation
to obtain an advance of wages, or to maintain the rate, is not a con
spiracy, it is clear that that proviso is not applicable to this case, be
cause the bone of contention here was not wages, but the open shop.
The facts here are not unlike those discussed by Justice Barrett in
People ex rel. Gill v. Smith, 5 N. Y. Cr. R. 509; and the reasoning
in that case is equally persuasive to show that section 582 does not
furnish immunity to these defendants for the acts complained of.
It seems to be necessary under the evidence to hold that the con
federated acts of the defendants violate section 580, above quoted, as
being injurious to trade and commerce, and also that the threats to
call strikes on plaintiff’s patrons to prevent the plaintiff from exer
cising its lawful trade or calling were illegal under the penal statute
above quoted. As to the threats, it is argued that each member of
the union has the unchallenged legal right to quit his job, and that a
threat to do that which the persons making it have a perfect right
to do is not the kind of a threat referred to in subdivision 5 of sec
tion 580; and I accept that contention as sound. But it seems to me
clear that what one may do as an individual, and may therefore
threaten to do, lawfully, with respect to withdrawal of his own
patronage, can not always be done nor threatened to be done lawfully
by a combination of individuals held together in a compact to act
together in that respect. I f the making and observance of the com
pact by many confederates is calculated to injure trade and commerce,
it is obnoxious to the common law, and a threat to do that is a threat
to do an unlawful act.
The plaintiff is entitled upon the facts established to damages and
an injunction against the continuation of the injurious acts. By
stipulation, the assessment of damages, if the right to damages is
upheld, is to be taken up on a supplemental hearing. The form of
the final injunction to be granted should not be so broad as to with
hold from any individual member of any of the unions the right to
quit his job at any time according to his own pleasure, and to consult
with his fellow members in that regard. _ And when we speak of an
agreement to quit work, or not to patronize, as being under some cir
cumstances unlawful, it should be understood that by agreement we
mean a compact or mutual understanding which imposes something
in the nature of an obligation on the parties thereto, and not to an
agreement in the sense in which that word is used to denote mere
similarity or harmony of opinion or belief which may be entertained
166
BULLETIN OP TH E BUREAU OP LABOR STATISTICS.
by a number of individuals who, as the natural result of the holding
or such similar views, may find themselves moving in the same direc
tion at the same time; each individual doing of his own volition just
what others around him are doing for the same reason, without any
understanding or promise that they shall act together, which state of
mind and consequent simultaneous action is surely not subject to
control by law, nor justly called a conspiracy. There is a very per
ceptible and practical difference between the latter supposititious con
dition and tne one presented in this case; and I venture the opinion
that the full liberty of every individual to act according to his own
will with regard to withholding his own labor or patronage will be
preserved, and the plaintiff will be also protected from unjust and
unlawful injury, if what may be compulsory action on the part of
the members oi the union, because of the disciplinary powers pos
sessed by the organization over its members, or because of the obliga
tory nature of the compact entered into by the group, is enjoined.
The injunction, broadly speaking, should prohibit the enforcement
of resolutions, rules, or orders of the defendant unions requiring their
members to quit the sendee of employers who patronize the plaintiff,
and the giving of notices by or on behalf of said organizations or the
officers thereof to such employers, or the public, of an intention to quit
provided said employers continue to patronize the plaintiff, and any
other attempt or threat to use the powers or authority of the defend
ant unions over their own members, for the purpose of inducing or
compelling patrons of the plaintiff, or the public generally, against
their will, to refrain from dealing with the plaintiff
L a b o r O r g a n iz a tio n s —I n ju n c t i o n s —S t r ik e s —C o e r c io n —Garside v. Hollywood et al., Supreme Court of New York, Special Term,
Kings Cou/rvty (Dec. 7 1914) , ISO New York Supplement, page 647.—
This was an action by John R. Garside, as president of the Shoe Man
ufacturers’ Association of New York, against Michael J. Hollywood,
as president of the United Shoe Workers of America, Cutters’ Local
No. 72, and others. The application for an injunction pendente lite
was granted. The facts and the court’s ruling thereon are shown in
the opinion delivered by Judge Benedict as follows:
This is an application for an injunction during the pendency of a
suit brought by the plaintiff, a voluntary unincorporated association
composed of 17 firms and corporations engaged in the manufacture
and sale of shoes in the city of New York, boroughs of Brooklyn and
Manhattan, and employing about 5,000 employees. The defendants
are voluntary associations of the operators in the factories of the
plaintiff’s constituents comprising local unions, and certain indi
vidual defendants are also impleaded The relief sought in the action
is the perpetual restraint of the defendants from unlawful inter
ference with the business of the plaintiff’s constituents by means of
acts of physical violence, intimidations, threats, and abuse directed
against them and their employees by the defendants and their mem
bers, whereby the defendants have coerced other employees of the
plaintiff’s constituents, who were unwilling to join a strike called
,
DECISIONS OP COURTS AFFECTING LABOR.
167
by the defendants, into leaving their employment, and by preventing
other persons from accepting employment by the plaintiff’s con
stituents to fill the vacancies thus created.
The plaintiff claims that the defendants have formed a combina
tion, conspiracy, or federation, with an unlawful purpose, and are
utilizing unlawrul means to accomplish that purpose. The question
presented to this court is whether the plaintiff association is entitled
to an injunction pendente lite under the law as it is applicable and
upon the facts as they are shown by the affidavits submitted.
The subject matter of equitable jurisdiction is civil property and
the maintenance of civil rights. Injunctions do not issue to prevent
acts merely because they are immoral, or illegal, or criminal, but only
in case the complainant’s civil rights are invaded. (22 Cyc. 757.)
I think it may fairly be stated that the plaintiff is entitled to main
tain an action tor the restraint of an unlawful interference with, or
an attempted invasion of, the rights of its several constituent mem
bers, when the acts involved would affect the civil rights or property
of all the members, whatever might be the rule if the alleged unlaw
ful acts affected only one or a few of such members (see sec. 1919,
Civil Code); and I think, too, that the plaintiff’s papers show that
this action does affect the civil rights and interests of all the mem
bers of the plaintiff’s association.
The acts complained of, if they were committed, would clearly be
invasions of the rights of the plaintiff’s constituents under* the
authorities cited upon the brief of the learned counsel for the plain
tiff, and even under those cited in behalf of the defendant. Admit
ting all the defendants’ contentions as to the defendants’ legal rights,
the plaintiff would be entitled to an injunction restraining the un
lawful acts on the part of the defendants, provided such acts are
admitted or found to exist, because such acts are far in excess of the
defendants’ rights of striking or of peaceful picketing, or the other
classes of lawful acts permitted by law, as laid down in the numer
ous decisions which have been made by the courts in this and other
States. (See People v. Davis, 159 App. Div. 464, 144 N. Y. Supp.
284.) The defendants, by their answering affidavits and their veri
fied answers, have raised an issue as to the commission of many, but
not all, of the alleged unlawful acts. In my opinion, however, the
papers submitted sufficiently establish, for the purpose of the present
application and until the issues can be determined with more accu
racy and deliberation upon the trial, the existence of an unlawful
conspiracy on the part of the defendants, by proof of the adoption
or ratification by them of the unlawful acts of the members of the
unions.
L a b o r O r g a n iz a tio n s — L i a b i l i t y o f M em bers f o r D am ages—
C o l l e c t i o n o f J u d gm en t— G a r n is h m e n t— S c ir e F a c ia s —Loewe
et til. v. Union Savings Bank of Danbury, United States District
Court, District of Connecticut (Aug. 12,1915), 226 Federal Reporter,
page 29^.—Decisions were noted in Bulletin No. 169, pages 137 and
140, affirming the liability of members of the United Hatters of
North America for damages resulting from a conspiracy to injure
the business of Loewe & Co. The present cases, proceedings by
168
BULLETIN OP TH E BUREAU OP LABOR STATISTICS.
Loewe and others against two Danbury savings banks, were actions
of scire facias in consummation of garnishments made in the origi
nal actions, in which judgment was given for the plaintiffs against
the banks. The banks had defaulted, and at the next term their
motions to reopen the cases were overruled, as the rule on this point
in the Federal courts is strict.
The banks moved in the present, or scire facias, actions, for a
hearing in damages, and also that the United Hatters, which claim
to hold by assignments from the employees the moneys in the hands
of the banks, be given notice of the pendency of these actions, and
be required to give security to the banks to indemnify them for costs.
Loewe & Co. resisted these motions on the ground that the court
did not have jurisdiction to reopen the case, but the court held that
judgment could not be rendered for the full amount of the judg
ments in the previous action regardless of the sufficiency of the funds
in the hands of the garnishee, and that the only circumstances under
which such a judgment can be entered are (1) a finding that the
garnishee has sufficient funds in his hands; (2) a default of appear
ance ; or (3) a refusal to disclose under oath. The court stated, and
supported by citations of Connecticut statutes and decisions, three
propositions upon which it based its decision that the banks were
entitled to a hearing in damages and the granting of their other
motions: First, a scire facias to enforce a judgment in an action
begun by foreign attachment is, in the State of Connecticut, a civil
action for all purposes; second, a judgment by default has no con
clusive effect upon the final judgment to be rendered; third, the
assessment of damages after a default is a judicial and not a minis
terial act. Since this default had been entered by the clerk in a
purely ministerial capacity, it was held that the amount of liability
should be judicially determined, and the motions of the banks for
hearing, notice, and the giving of security were allowed.
L a b o r O r g a n iz a tio n s — P r o t e c t io n op E m p lo y e e s as M f^ r b b s —
C o n s t i t u t i o n a l i t y o f S t a t u t e — Berms v. State, Criminal Court of
Appeals of Oklahoma (Oct. 9, 1915), 158 Pacific Reporter, page
456.—A. J. Bemis was convicted of unlawfully coercing laborers, and
sentenced to pay a fine of $200. He appealed, contending that the
law was unconstitutional. The statute under which conviction was
had (sec. 4041, Compiled Laws of 1909) is as follows:
Any. person or corporation within the State, or agent, or officer on
behalf of such person or corporation, who shall hereafter cause or
compel any person to enter into an agreement either written or
verbal, not to join or be a member of any labor organization as a
DECISIONS OP COUBTS AFFECTING LABOB.
169
condition of such person securing employment or continuing in the
employment of any such person or corporation, shall be guilty of a
misdemeanor. * * *
The court quoted at length from the decision of the Supreme Court
of the United States upon a similar statute in Coppage v. Kansas,
236 U. S. 1, 35 Sup. Ct. 240 (Bui. No. 169, p. 147), and concluded
as follow s:'
The foregoing discussion and the conclusion therein reached by
the highest of courts leaves little to be said by us. It is our plain
duty—in fact, we have no alternative, except—to follow the doctrine
declared therein. It follows, therefore, that the statute in question
is repugnant to the “due process ” clause of the fourteenth amend
ment to the Constitution of the United States, and is therefore void.
L a b o r O r g a n iz a tio n s — P r o t e c t io n o f E m p lo y e e s as M em bers—
C o n s t i t u t i o n a l i t y o f S t a t u t e —Jackson, Chief of Police, et od., v.
Berger, Supreme Court of Ohio (May 4i 1915), 110 Northeastern
Reporter, page 738.—In this case the court passed upon the consti
tutionality of an Ohio statute whose purpose was to make it a crimi
nal offense for an employer to discharge or threaten to discharge an
employee because of his connection with a labor organization. The
statute was similar to that of Kansas held by the Supreme Court of
the United States to be violative of the Federal Constitution in Cop
page v. Kansas, 236 U. S. 1, 35 Sup. Ct. 240 (Bui. No. 169, p. 147);
and following the decision in that case, the Ohio court held the
statute void, two of the judges expressing dissent in separate opinions.
L a b o r O r g a n iz a tio n s — U n l a w f u l E x p u ls io n o f M em ber— M a n
damus— People ex rel. Solomon v. Brotherhood of Painters, Decora
tors, and Paperhangers of America et at., Supreme Court of New
York, Appellate Division, First Department (Nov. 5, 1915), 155
New York Supplement, page 438.—This was an action of mandamus
by the people, on the relation of Meyer Solomon, to compel his
restoration to membership in the local union of the labor organiza
tion named. A peremptory writ in Solomon’s favor was granted
at the trial term, and the unions appealed. The judgment was
affirmed, as is shown in the opinion by Judge Scott as follows:
The relator seeks restitution to membership in a trade organiza
tion known as the Brotherhood of Painters, Decorators, and Paperhangers of America. This is a foreign corporation operating ex
tensively throughout the United States, acting in each State through
local unions, which, in this State, are unincorporated organizations.
That the relator was improperly expelled from the brotherhood,
and that he has unsuccessfully pursued all the means of redress
170
BULLETIN' OF TH E BUREAU OF LABOR STATISTICS.
afforded him within the organization, is not to be questioned, and
the verdict to that effect was amply warranted. The appellants,
however, insist that the mandamus will not lie against the brother
hood, because it is a foreign corporation, and will not lie against the
local unions, who are also made defendants, because they are unin
corporated.
Neither objection is well taken. The brotherhood has assumed
to come into this State to pursue the objects of its incorporation,
and can not deny the jurisdiction of our courts to scrutinize its
action, and to afford redress for a wrong done to a resident within
the State. The fact that the brotherhood has failed to file the neces
sary certificate to do business within the State can not be interposed
by it as a shield against proper supervision.
*As for the local district unions, while mandamus might not lie
against them alone, they act in this State as the agents of the brother
hood, and for that reason are properly joined as defendants in this
proceeding, because it is they who will be compelled to act in order
to make tne writ against the* brotherhood effective.
The defendant has recovered what the jury deemed to be fair
damages for the injury done him by his illegal expulsion. The
recovery of such damages is authorized by Code Civ. Proc., sec. 2088,
and the amount does not appear to be excessive.
The proceedings leading up to the judgment appealed from were
irregular, in that the justice who presided at the trial of the issues
of ract himself issued the mandamus, instead of certifying the
verdict of the jury back to the special term, as is the proper practice.
Furthermore, no final order was made directing the issue of the
writ of peremptory mandamus.
For these purely technical errors we might remit the cause for
more formal proceedings, and in the past should have felt bound to
do so. The power and duty of this court to disregard technical
errors and defects has been much extended recently (Code Civ.
Proc., sec. 1317, as amended by Laws of 1912, ch. 380), and this ap
pears to be a proper case to exercise the power. _ The relator has a
mandamus and a judgment, to both of which he is entitled. Thus a
correct result has been obtained, and it is of no consequence that
informalities can be found in the steps leading up to a proper result.
M e c h a n ic s ’ L ie n s — L i g h t i n g F ix t u r e s — F i l i n g o f E x ce ssiv e
C la im —Lyons v. Jamberg et al., Supreme Court of Minnesota (Jan.
29, 1915), 150 Northwestern Reporter, page 1088.—This was an
action by Peter Lyons against Joel Jarnberg and others to foreclose
mechanics’ liens against a house and lot. The trial court having
rendered judgment establishing the liens, one of the defendants, to
whose mortgage the liens were adjudged superior, appealed.
The court held that the liens, as far as valid, were paramount to
the mortgage, and that the verification of the bills was sufficient. It
held, however, that a claim for the installation of certain lighting
fixtures was not properly allowed, Judge Taylor, who delivered the
opinion, saying:
DECISIONS OF COURTS AFFECTING LABOR.
171
The claim of the Ireland-Simmons Co. includes the sum of $120
for electric lighting fixtures. These fixtures appear to be such as are
ordinarily kept in stock for sale by dealers in such articles; it does
not appear that they were designed, constructed, or prepared for this
particular building. Neither is there any evidence tending to show
the intent with which the parties caused them to be placed in the
building. The naked fact appears that they were installed therein;
nothing more. It was decided in Capehart v. Foster, 61 Minn. 132,
63 N. W. 257, that gas-lighting fixtures did not become a part of
the realty under such circumstances, and the same rule must be
applied to electric-lighting fixtures. It follows that the company
are not entitled to a lien upon the realty for the value of such
fixtures.
One company had refused to complete its contract when work
remained undone which was admitted to be of the value of $150 or
more. The company, however, filed claim for the whole amount.
That this invalidated the entire claim was held by the court, as the
following quotation from the opinion shows:
The statute provides:
“ In no case shall a lien exist for a greater amount than the sum
claimed in the lien statement, nor for any amount whatever, if it be
made to appear that the claimant has knowingly demanded in such
statement more than is justly due.” (Sec. 7085, G. S. 1913.)
The legislature intended to prevent the padding of such claims,
and this statute must be given effect according to its terms. It pro
vides that a lien claimant, who, in his lien statement, knowingly de
mands more than is justly due, shall have no lien whatever. In the
present case the lien statement demanded fully 20 per cent more
than was justly due. The heating company knew that they were
making a claim for all the material and all the labor that would be
required to complete the contract in full. They also knew that
they had not completed the contract, and necessarily knew that they
were attempting to acquire a lien for material not furnished and for
labor not performed. The admitted facts are such that the statute
divests them of the right to a lien and the judgment must be modified
accordingly.
Other courts apply the same rule under statutes less drastic than
our own and to facts more excusable than those here presented.
[Cases cited.]
In conclusion the court said:
The cause is remanded, with directions to modify the judgment to
conform to the views hereinbefore expressed.
M in e R e g u la t io n s — W a s h R oo m s— C oN S T m m oN A L m r o f S t a t
v. Indiana, United States Supreme Court (May 3,1915),
§5 Supreme Court Reporter, page 618.—Harry C. Booth was con
victed of violation of a statute of the State of Indiana requiring the
owner, operator, lessee, superintendent, or person in charge of every
coal mine, colliery, etc., at the written request of 20 or more em
u t e —Booth
172
BULLETIN OP TH E BUBEAU OP LABOR STATISTICS.
ployees, or of one-third of the number of employees if there are less
than 20, to provide a wash room or washhouse for the use of the em
ployees, and prescribing what the facilities must be in such wash
rooms. From the conviction Booth appealed to the supreme court
of the State and finally to that of the United States, on the ground
of the unconstitutionality of the statute. The decision of the Indiana
Supreme Court is found in 179 Ind. 405, 100 N. E. 563. Before the
United States Supreme Court, his contentions were based on the
fourteenth amendment to the Constitution of the United States,
the claim being that he was deprived by statute of his property with
out due process of law, and denied the equal protection of the law.
Mr. Justice McKenna, in delivering the opinion of the court affirm
ing the judgment of conviction, said in part:
The Supreme Court [of Indiana] rejected both contentions, de
ciding that the statute was a legal exercise of the police power of
the State, and the specific objection that the statute was invalid be
cause it only applies to coal mines, and not to other classes of busi
ness, the court said was disposed of by Barbier v. Connolly, 113 U. S.
27, 5 Sup. Ct. 357, and Soon Hing v. Crowley, 113 U. S. 703, 709,
5 Sup. Ct. 730. The court quoted from the latter case as follows:
“ The specific regulation of one kind of business, which may be neces
sary for the protection of the public, can never be the just ground of
complaint because like restrictions are not imposed upon other busi
ness of a different kind.”
This position was approved, and, continuing, Mr. Justice McKenna
said:
But a distinction is sought to be made between what a legislature
may require for the safety and protection of a miner while actually
in service below ground, and that which may be required when he has
ceased or has not commenced his labors. Cases are cited which, upon
that distinction, have decided that when a miner has ceased his work
and reached the surface of the earth his situation is not different from
that of many other workmen, and that, therefore, his rights are not
greater than theirs, and will not justify a separate classification.
We are unable to concur in this reasoning, or to limit the power of
the legislature by the distinctions expressed. Having the power in
the interest of the public health, to regulate the conditions upon
which coal mining may be conducted, it can not be limited by mo
ments of time and differences of situation. The legislative judgment
may be determined by all of the conditions and their influence. The
conditions to which a miner passes or returns from are very different
from those which an employee in work aboveground passes to or
returns from, and the conditions of actual service in the cases are
very different, and it can not be judicially said that a judgment which
makes such differences a basis of classification is arbitrarily exercised;
certainly not in view of the wide discretion this court has recognized,
and necessarily has recognized, in legislation to classify its objects.
It is further said that the act “ is inoperative in itself for the
reason that it can only be put into operation by the will and election
of a specific number of the ‘ class’ to which it applies, and conse
DECISIONS OF COURTS AFFECTING LABOR.
173
quently it fastens a burden upon the owners and operators of coal
mines, which is ‘ a manifest injustice by positive law.’ ” The pur
pose of the comment, other than to give accent to the contention that
the act has special operation, is part of the view elsewhere urged that
the provision is a delegation of legislative power. But with this
objection we are not concerned. The supreme court of the State
decided that the law could be called into operation by petition, and
in the decision no Federal question is involved.
It is, however, further objected that the law discriminates because
it may be applied to one mine, and not to another, all other condi
tions being the same but the desire of the miners—indeed, discrimi
nates upon a distinction more arbitrary than thatj upon the desire
of 20 in one mine as against a lesser number, 19, it may be, in an
other. The objection is a familiar one and has an instance and
answer in McLean v. Arkansas [211 TJ. S. 539, 29 Sup. Ct. 206, Bui.
No. 81, p. 419]. It is the usual ground of attack upon a distinction
based on degree, and seems to have a special force when the distinc
tion depends upon a difference in numbers.
But there are many practical analogies. The jurisdiction of a
court is often made to depend upon amounts arbitrarily fixed.
Would not an objection have the same legal strength if the law had
been made to depend upon anything less than unanimity of desire?
To require that, it might well have been thought by the legislature,
would render the legislation nugatory, and that a lesser number
would call it into exercise and attain its object. The choice of man
ner was, under the circumstances, for the legislature, and its choice
was legal if it had the power to enact the law at all.
There remains to be considered only the contention that the law
“ is, within itself, a dead letter.” A id it is said that “ it would
forever lie dormant if not called into exercise and activity by the
request of private persons.” Or, as plaintiff in error otherwise exresses what he thinks to be the evil of the law, “ it is not enforceable
y any power which the State government possesses, under its con
stitution, or its laws enacted thereunder, but it is enforceable only
upon the demand, the whim, or the election of a limited number of
employees in the coal mining business.” And it is declared that
“ this is the exercise of an arbitrary power, for an arbitrary private
right, and against a private business.
We have quoted counsel’s language in order to give them the
strength of tneir own expressions of what they consider the vice of
the law; but manifestly it is but a generalization from the particular
objections which we have considered, and these objections we have
sufficiently discussed.
E
M in e R e g u la t io n s — W a s h R oom s— C o n s t i t u t i o n a l i t y o f S t a t
u t e —/State v. Beaser, Supreme Court of Kansas (Jan. 9, 1915), 145
Pacific Beporter, page 888.—Phil Reaser was convicted of a misde
meanor in failing to comply with the provisions of chapter 222 of the
Laws of 1911 of Kansas (later superseded by chapter 226, Laws of
1913), providing for the establishment of wash rooms near the en
trance of coal mines, and for a penalty in case of failure to comply
with the requirements. On appeal, the supreme court affirmed the
174
BULLETIN OP THE BUBEAU OP LABOR STATISTICS.
conviction and sustained the law, the constitutionality of which was
attacked. It ruled that it could not be held as a matter of law that
the fact that the statute applied only to coal mines constituted an
unreasonable discrimination. The concluding portion of that part
of the opinion delivered by Judge Smith which deals with the ques
tion of constitutionality, is as follows:
It is a matter of common knowledge in Kansas that many of the
coal mines therein are worked at considerable depths, and that the
temperature in such mines is considerably higher tnan at the surface;
that the atmosphere therein is damp, and that the laborers therein
perspire freely; and that on coming to the surface it is a great protec
tion to their health and well-being that a washhouse should be located
as required by the act in question, in order that their bodies may be
cleansed and dry clothing substituted for their laboring clothes be
fore walking any considerable distance from the mine, especially in
cool or cold weather. The health of the employee is a matter of con
cern not only to himself but to the employer and the public as well.
The framers of the law will be presumed to have been possessed of
such general knowledge and to have made such special investigations
of the conditions at coal mines as to them was deemed necessary.
P a y m e n t op W a g es— C o n s t i t u t i o n a l it y o f S t a t u t e — I m p r i s o n
f o r D e b t— Ex parte Creme, District Cowrt of Appeals, First
m ent
District, California (Nov. 83, 1914), 146 Pacific Reporter, page
733.—Arthur Crane was arrested on a charge of violating “An act
providing for the time of payment of wages” (Stats. 1911, pp.
1268 and 1269), which fixes the times at which payment shall be made
in case of terminated or continuous employment, and provides penal
ties, consisting of fines, for violation. Crane petitioned for a writ
of habeas corpus, and the court ordered his discharge, holding the
statute unconstitutional. After stating the facts and quoting the
statute, the opinion reads as follows:
It is the contention of the petitioner that the act above quoted is
unconstitutional in this, that it, in effect, permits an imprisonment
on mesne process for debt, and that therefore his arrest and detention
by the respondent pending a hearing of the charge in the police court
is illegal.
In our opinion, this contention is sound, and must be sustained.
Section 15 of article 1 of our State constitution provides in part
that:
“ No person shall be imprisoned for debt in any civil action, on
mesne or final process, unless in cases of fraud * *
By this constitutional provision the right of a creditor to control
and confine the person of his debtor by the process of arrest, which
the law at one time gave the creditor for the enforcement of his
debt, has been abolished, and, happily, is prohibited in this State,
save and except that the body of a debtor may be seized and con
fined in cases where it is made to appear that the indebtedness was
DECISION'S OF COURTS AFFECTING LABOR.
175
fraudulently contracted, or that there has been an attempted fraudu
lent disposition of the property of the debtor with the intent to delay
or defeat the payment of the debt.
In the exceptional cases noted it will be observed that fraud must
exist before a debtor may be subjected to arrest and imprisonment,
and that in such cases the arrest and imprisonment permitted by
various statutes do not fall within the inhibition of the constitution,
for the obvious reason, that the penalty prescribed is not for or on
account of the failure to pay the creditor’s demand, but solely be
cause of the fraud alleged to"have been committed in the creation of
the debt or in a subsequent attempt to delay or defeat its satisfac
tion, by a transfer, removal, or concealment of the property of the
debtor.
It will be noted that the statute in controversy does not involve the
element of fraud as an essential of the offense defined therein. True,
the statute does not provide imprisonment as the penalty for the failure
of an employer to pay a debt due to his employee. The statute, how
ever, is silent as to the process by which the magistrate before whom
complaint is made of an alleged violation of the statute may obtain
jurisdiction of the person of the offender. In the case at bar juris
diction was attempted to be obtained by a resort to the provisions
of sections 812 and 813 of the Penal Code, which authorize the issu
ance of a warrant of arrest when the magistrate is satisfied from the
deposition presented to him that the offense complained of has been
committed, and that there is reasonable ground to believe that the
party charged has committed it. By this process and under our sys
tem of procedure a defendant unable to give bail is jailed and re
strained of his liberty until such time as a hearing can be conven
iently had of the charge made against him. It will thus be seen that
the statute in controversy was attempted to be enforced by the issuance
and execution of a mesne process which, in the case at bar, resulted
in the temporary imprisonment of the petitioner, and the cause of
his imprisonment is to be found primarily in the fact that he is un
willing or, perchance, unable to discharge a debt which was not con
ceived or contracted in fraud of his creditor. To this extent the
arrest of the petitioner necessarily is in conflict with the fundamental
law of the State, and therefore illegal.
P a y m e n t of W ages — F a i l u r e to P a y o n D isch a r g e — C o n s t r u c
S t a t u t e —Trammell v. Victor Manufacturing Co., Supreme
Court of South Carolina (Nov. 18,1915), 86 Southeastern Reporter,
page 1057.—F. A. Trammell brought action for a balance of wages
due him, and also for a penalty for noncompliance with section 3812
of the Code of 1912, which provides penalties for failure to pay the
wages of laborers whose wages are paid monthly or weekly on a fixed
date, beyond the end of the month or week in which the labor is
performed. The company contended that this statute did not apply
in the present case, where the customary dates of payment were the
1st and 15th of each month; but the court quoted a mention of a twoweek period in the opinion of Wynne v. Railway Co., 96 S . C. 1, 79
t io n o f
176
BULLETIN OP THE BUBEAU OP LABOB STATISTICS.
S. E., 521 (Bxil. No. 152, p. 170), which upheld the constitutionality
of the law, and held that its terms apply to intermediate periods.
Judge Hydrick, who delivered the opinion, said in conclusion:
No reason has been suggested why the legislature would have pen
alized the failure to pay discharged laborers whose wages are paid
weekly and monthly, and not penalize the failure to pay those whose
wages are paid at intermediate periods of time, while every reason
which calls for the remedy in the former cases applies with equal
force to the latter. Therefore the words “ weekly and monthly”
must be taken as used to denote the extremes—the shortest and the
longest periods of time—and as standing in apposition to and modi
fied by the words “ on fixed days,” etc., which immediately follow
them, and therefore to include intermediate fixed days. Any other
construction would be strained and unnatural, and lead to absurd con
sequences.
P a y m e n t o f W ages i n S c r ip — R e d e m p t io n i n C a s h — C o n s t it u
S t a t u t e —Atkins v. Grey Eagle Coal Co., Supreme
Court of Appeals of West Virginia (Mar. 16, 1915), 84 Southeastern
Reporter, page 906.—J. D e n n is A t k in s b r o u g h t a c tio n a g a in st th e
t i o n a l it y o f
c o m p a n y n a m e d b e fo r e a ju stice o f th e p e a ce f o r th e fa c e v a lu e o f
c e rta in s c r ip , p a y a b le in m e rch a n d ise , issu ed b y it t o it s em p loyees.
H e r e c o v e r e d th e f u l l a m o u n t, $72, a n d ju d g m e n t w a s a g a in re n
d e r e d f o r h im f o r th e sam e a m o u n t w h e n th e c o m p a n y a p p e a le d to
th e c ir c u it c o u r t o f M in g o C o u n ty . T h e c o m p a n y th e n b r o u g h t w r it
o f e r r o r t o th e su p rem e c o u r t o f a p p e a ls, th e sole q u e stio n b e fo r e it
b e in g as t o th e v a lid it y o f th e S ta te la w p r o v id in g th a t a ll sc r ip
o r e v id e n ce o f in d e b te d n e ss sh a ll b e p a y a b le a t its fa c e v a lu e in cash .
T h e c o u r t u p h e ld th e c o n s titu tio n a lity o f th e sta tu te a n d affirm ed th e
ju d g m e n t b e lo w , Judge L y n c h , w h o d e liv e r e d th e o p in io n , s a y in g :
The objection urged to the act in question is that ordinarily interosed as to legislative enactments of a similar character; the charge
eing that the act is in violation of the Federal Constitution, imposes
undue restrictions upon the liberty of contract, and is not a legiti
mate exercise of the police power of the State.
While the present statute differs in material respects from the act
construed and held invalid in State v. Goodwill, 33 W. Ya. 179, 10
S. E. 285, it is the same act construed and held valid in State v.
Peel Splint Coal Co., 36 W. Ya. 802, 15 S. E. 1000, though by an
equally divided court. The former act (ch. 63, Acts 1887; Code 1913,
cn. 15H, secs. 75-79 [secs. 534-538]) embraced within its inhibition
only persons engaged in certain specifically designated business
activities; while the latter in express terms embraces all persons,
firms, companies, and corporations engaged in any trade, calling, or
business. The discrimination manifestly appearing from the act of
1887, though not generally recognized in criticisms directed against
the decision in the Goodwill case, was the real basis of such decision,
as readily appears from the first point of the syllabus. The act im
E
DECISIONS OF COURTS AFFECTING LABOR.
177
posed no restrictions upon employers of labor engaged in other trades
or callings where the propriety or necessity therefor was equally ap
parent. That feature, however, was eliminated by the subsequent
act, the one upheld in the Peel Splint case, and the one involved here
(ch. 76, Acts 1891).
In tne opinion in the last case Judge Lucas cites many instances
of similar regulations by Parliament, generally known as “ truck
acts,’’ and by acts of the several States, and reaches the conclusion
epitomized in the syllabus prepared and adopted by the court. The
argument so well sustained by him need not now #be restated or
amplified. The trend of it is that the freedom of individual contract
must yield to due legislative restraint whenever necessary to con
serve the public health, safety, and morals and to promote the gen
eral welfare and peace of the community £ and ordinarily such is the
basis of the decisions in other jurisdictions upon similar statutes.
The court then cited numerous decisions upholding statutes in
volving the same or similar principles, and concluded:
We do not think the statute challenged by defendant violates any
constitutional provision, or unduly curtails the right of contract,
or is an illegitimate exercise of the State’s police power.
P eonage — I n vo lu n tary S ervitude — W ork in g O u t F in e an d
C osts for S u r e ty — C o n st it u t io n a l it y of S tatu te — United States
v. Reynolds, Supreme Cov/rt of the United States (Nov. 30,1914),
36 Supreme Court Reporter, page 86.— T h e Suprem e C ou rt h ad b e
fo r e it tw o cases in v o lv in g th e con stitu tion a lity o f an A labam a
statute, U n ited S tates v. R ey n old s and U n ited S tates v. B rou gh ton ,
th e d efen d an ts h a v in g been in d icted fo r h o ld in g person s in peon age
u n der U n ited States C om p iled Statutes, 1901, p a ge 1266. T h e o p in
ion s o f th e U n ited S tates D istrict C ou rt fo r th e S ou th ern D istrict
o f A labam a, w h ich cam e to th e con clu sion th a t th e resp ective in d ict
m ents d id n o t set fo r th an offen se again st th e U n ited States, are
rep orted in 213 F ed era l R e p o rte r, p ages 352 and 345, resp ectively.
T h e statute in question , section 6846 o f th e A la ba m a C od e o f 1907,
p rov id es f o r th e m a k in g in op en co u rt b y a p erson con v icted and
fin ed, o f a con tra ct fo r la b o r in con sid eration o f a p erson b ecom in g
su rety fo r h im , and fo r pun ishm ent fo r v io la tio n o f a con tra ct thus
m ade. The fa cts in th e R ey n old s case are g iv en in th e Suprem e
C ou rt’s op in io n as fo llo w s , those in th e B rou gh ton case b ein g sim ila r
e xcep t th a t n o secon d co n tra ct w as m a d e:
One Ed Rivers, having been convicted in a court of Alabama of
the offense of petit larceny, was fined $15, and costs, $43.75. The
defendant Reynolds appeared as surety for Rivers, and a judgment
by confession was entered up against him for the amount of the fine
and costs, which Reynolds afterwards paid to the State. On May 4,
1910, Rivers, the convict, entered into a written contract with Rey
nolds to work for him as a farm hand for the term of 9 months and
26071°—Bull. 189—16----- 12
178
BULLETIN OF THE BUBEAU OF LABOB STATISTICS.
24 days, at the rate of $6 per month (besides board, lodging, and
clothing), to pay the amount of fine and costs. The indictment
charges that he entered into the service of Reynolds, and under
threats of arrest and imprisonment if he ceased to perform such
work and labor, he worked until the 6th day of June, when he re
fused to labor. Thereupon he was arrested upon a warrant issued at
the instance of Reynolds from the county court of Alabama, on the
charge of violating the contract of service. He was convicted and
fined the sum of 1 cent for violating the contract, and additional
costs in the amount of $87.05, for which he again confessed judg
ment with G. W. Broughton as surety, and entered into a similar con
tract with Broughton to work for him as a farm hand at the same
rate, for a term of 14 months and 15 days.
After stating the facts and giving the Alabama statute under con
sideration and those relating to confession of judgment, working
out fines and costs directly for the State, etc., Mr. Justice Day, who
delivered the opinion of the court, spoke for the most part as follows:
The thirteenth amendment to the Constitution of the United
States provides:
“ S ection 1. Neither slavery nor involuntary servitude, except as
a punishment for crime whereof the party shall have been duly con
victed, shall exist within the United States, or any place subject to
their jurisdiction.
“ S e c t io n 2. Congress shall have power to enforce this article b y
appropriate legislation.”
It was under the authority herein conferred, to enforce the pro
visions of this amendment by appropriate legislation, that Congress
passed the sections of the Revised Statutes here under consideration.
(Clyatt v. United States, 197 U. S. 207, 25 Sup. Ct. 429 [Bui. No.
60, p. 69]; Bailey v. Alabama, 219 U. S. 219, 31 Sup. Ct. 145 [Bui.
No. 93, p. 634].)
By these enactments Congress undertook to strike down all laws,
regulations, and usages in the States and Territories which at
tempted to maintain and enforce, directly or indirectly, the voluntary
or involuntary service or labor of any persons as peons, in the liqui
dation of any debt or obligation. To determine whether the conduct
of the defendants charged in the indictments amounted to holding
the persons named in a state of peonage, it is essential to understand
what Congress meant in the use of that term prohibiting and punish
ing those guilty of maintaining it. Extended discussion of this
subject is rendered unnecessary in view of the full consideration
thereof in the prior adjudications of this court. (Clyatt v. United
States and Bailey v. Alabama, supra.)
The actual situation is this: The convict, instead of being com
mitted to work and labor as the statute provides for the State, when
his fine and costs are unpaid, comes into court with a surety, and
confesses judgment in the amount of the fine and costs, and agrees
with the surety, in consideration of the payment of that fine and
costs, to perform service for the surety after he is released because
of the confession of judgment.
DECISIONS OP COUBTS AFFECTING LABOR.
179
When thus at labor, the convict is working under a contract
which he has made with his surety. He is to work until the amount
which the surety has paid for him—the sum of the fine and costs—
is paid. The surety has paid the State and the service is rendered to
reimburse him. This is the real substance of the transaction. The
terms of that contract are agreed upon by the contracting parties,
as the result of their own negotiations. The statute of the State does
not prescribe them. It leaves the making of contract to the parties
concerned, and this fact is not changed because of the requirement
that the judge shall approve of the contract. When the convict goes
to work under this agreement, he is under the direction and control
of the surety, and is in fact working for him. If he keeps his agree*
ment with the surety, he is discharged from its obligations without
any further action by the State. This labor is performed under the
constant coercion ana threat of another possible arrest and prosecu
tion in case he violates the labor contract which he has made with the
surety, and this form of coercion is as potent as it would have been
had the law provided for the seizure and compulsory service of the
convict. Compulsion of such service by the constant fear of im
prisonment under the criminal laws renders the work compulsory,
as much so as authority to arrest and hold his person would be if
the law authorized that to be done. (Bailey v. Alabama, 219 U. S.
244, 31 Sup. Ct. 145; Ex parte Hollman, 60 S. E. 24.)
Under this statute, the surety may cause the arrest of the convict
for violation of his labor contract. He may be sentenced and pun
ished for this new offense, and undertake to liquidate the penalty by
a new contract of a similar nature, and, if again broken, may be again
prosecuted, and the convict is thus kept chained to an ever-turning
wheel of servitude to discharge the obligation which he has incurred
to his surety, who had entered into an undertaking with the State,
or paid money in his behalf. The rearrest of which we have spoken
is not because of his failure to pay his fine and costs originally as
sessed against him by the State. He is arrested at the instance of the
surety, and because the law punishes the violation of the contract
which the convict has made with him.
Nor is the labor for the surety by any means tantamount to that
which the State imposes if no such contract has been entered into,
as these cases afford adequate illustration. In the case against Rey
nolds, Rivers was sentenced to pay $15 fine and $43.75 costs. Under
the Alabama Code, he might have been sentenced to hard labor for
the county for 10 days for the nonpayment of the fine, and assuming
that he could be sentenced for nonpayment of costs under section
7635 of the Alabama Code, he could have worked it out at the rate of
75 cents per day, an additional 58 days might have been added, mak
ing 68 days as his maximum sentence at hard labor. Under the con
tract now before us, he was required to labor for 9 months and 24
days, thus being required to perform a much more onerous^ service
than if he had been sentenced under the statute, and committed to
hard labor. Failing to perform the service, he may be again rear
rested, as he was in fact in this case, and another judgment confessed
to pay a fine of 1 cent and $87.05 costs, for which the convict was
bound to work for another surety for the term of 14 months and
17 days.
180
BULLETIN OP THE BUREAU OP LABOR STATISTICS.
We are cited to a series of Alabama cases, in which it is held that
the confessed judgment and the contract do not satisfy the law nor
pay the penalty imposed, but the hirer becomes the transferee of the
right of the State to compel the payment of the fine and costs, and
by this exaction of involuntary servitude the convict has only changed
masters, and that under the Alabama constitution the law is consti
tutional, and that the convict is not being imprisoned for indebted
ness.
In such cases this court must determine for itself whether a given
enactment violates the Constitution of the United States or the stat
utes passed in pursuance thereof. The validity of this system of
State law must be judged by its operation and effect upon rights
secured by the Constitution of the United States and offenses pun
ished by the Federal statutes. If such State statutes, upon their
face, or in the manner of their administration, have the effect to deny
rights secured by the Federal Constitution, or to nullify statutes
passed in pursuance thereto, they must fail. (Bailey v. Alabama,
supra; Henderson v. New York (Henderson v. Wickham) 92 U.
S. 268.)
There can be no doubt that the State has authority to impose in
voluntary servitude as a punishment for crime. This fact is recog
nized in the thirteenth amendment, and such punishment expressly
excepted from its terms. Of course, the State may impose fines and
penalties which must be worked out for the benefit of the State, and
in such manner as the State may legitimately prescribe. (See Clyatt
v. United States, 197 U. S. 207, 25 Sup. Ct. 429* and Bailey v. Ala
bama, 219 U. S. 219, 31 Sup. Ct. 145.) But here the State has taken
the obligation of another for the fine and costs, imposed upon one
convicted for the violation of the laws of the State. It has accepted
the obligation of the surety, and, in the present case, it is recited in
the record that the money has been in fact paid by the surety. The
surety and convict have made a new contract for service, in regard
to the terms of which the State has not been consulted. The convict
must work it out to satisfy the surety for whom he has contracted to
work. This contract must be kept, under pain of rearrest, and an
other similar proceeding for its violation, and perhaps another and
another. Thus, under pain of recurring prosecutions, the convict
may be kept at labor, to satisfy the demands of his employer.
In our opinion, this system is in violation of rights intended to be
secured by the thirteenth amendment, as well as in violation of the
statutes to which we have referred, which the Congress has enacted
for the purpose of making that amendment effective.
It follows that the judgment of the district court must be re
versed. Judgment accordingly.
Law— C o n s t r u c t io n a n d C o n s t it u t io n
—Kansas City Southern Railway Co. v. State, Supreme Court
of Arkansas (Jan. 25,1915), 174 Southwestern Reporter, page M3.—
The company named was convicted of violation of the “ full-crew
law” of Arkansas, and appealed. Railroads whose lines are less
than 50 miles in length are exempted from the operation of the law.
R ailro ad s — F u l l - cr e w
a l it y .
DECISIONS OF COTJKTS AFFECTING LABOR.
181
It was alleged that a freight train of more than 25 cars was operated
with less than three brakemen. The company admitted the facts
as to the operation of the train, and that its total mileage was much
more than 50, but contended that since the number of miles operated
within the State was less-than 50, the act did not apply to it; but
if held to be applicable, it claimed that the act was in conflict with
the commerce clause of the Constitution of the United States, and
deprived the company of its property without due process of law
and denied it the equal protection of the law as guaranteed by the
fourteenth amendment. These contentions were disallowed and the
conviction affirmed, in an opinion delivered by Judge Kirby, who
said in part:
The evident purpose of the act is to require all railroads over 50
miles in length, engaged in the operation of trains and the hauling
of freight, to equip the freight trains of the designated length with
the full crew, including three brakemen, and this relates to all rail
roads operating in this State whose line or lines of road are more
than 50 miles in length, whether they are 50 miles in length within
the State or not. If it had been the intention to require only such
roads as operated a line of 50 miles in length within the State, words
clearly manifesting that intention would have been used and not the
expressions that were employed, which clearly manifest the intention
to make this requirement of all railroads operating in the State whose
entire operative line is 50 miles or more in length.
The decision of the State court holding the full-crew statute to be
not a burden upon interstate commerce nor in conflict with the Con
stitution, and the decision of the United States Supreme Court in
affirmance of this in Chicago, Bock Island & Pacific Bailway Co. v.
State, 219 U. S. 453, 31 Sup. Ct. 275 (Bui. No. 95, p. 317), were cited
as authorities upholding the present decision.
R a ilr o a d s — R e l i e f D e p a r tm e n ts — C o n t r a c t s I n v a lid a t e d b y E m
p lo y e r s ’ L i a b i li t y A ct —Baltimore & Ohio Railroad Co. v. Miller,
Supreme Court of Indiana (Jan. 29, 1915), 107 Northeastern Re
porter, page 5^5.—In this action Charles W. Miller sued the com
pany named for benefits alleged to be due him as a member of its
relief department. Judgment being in his favor in the circuit court
of Dekalb County, the company appealed. The employee, an engi
neer, had become a member of the relief department, and had paid
his dues for a number of years. He was injured while engaged in
interstate commerce, in March, 1909. His relief department mem
bership entitled him to $2 per day for one year and $1 per day as
long as the disability continued, and he received payments in accord
ance therewith until April, 1912, when the company refused to pay
further benefits because he at that time recovered judgment for dam
182
BULLETIN OP THE BUREAU OP LABOB STATISTICS.
ages for his injury in the amount of $5,000, which was paid. He
brought action for the later-accruing relief benefits.
The regulations of the relief department required a release of lia
bility as a condition precedent to payment of benefits, aind provided
that bringing action should work a forfeiture of all claims for bene
fits. The Federal Employers’ Liability Act provides that any contract
whose purpose is to enable any common carrier to exempt itself from
liability under the act shall be void. The court held that the con
tract was indivisible, and that the whole was invalidated by the act,
so that the appellee, Miller, was without cause of action. The judg
ment in his favor was therefore reversed and a new trial granted.
R a ilr o a d s — R e l i e f
a g e s— R e c o v e r y o f
D e p a rtm e n ts — W a iv e r o f
D e d u c tio n s fr o m
R ig h t t o
D am
W ages— C o n s t it u t io n a lit y
o f S t a t u t e — Baltimore <&Ohio Southwestern Railroad
Co. v. Hagan,
Supreme Court of Indiana (June 15, 1915), 109 Northeastern Re
porter, page 194.—Chas. B. Hagan was in the employ of the com
pany named from August, 1909, to July, 1911, when he became dis
abled for service because of defective hearing. At the time of enter
ing upon work Hagan became a member of the relief department of
the road, and signed an agreement that a deduction of $4 per month
should be made from his wages for this purpose, the agreement also
containing a provision waiving his rights to damages in case of his
death or injury from the negligence of the company, and making the
bringing of suit a waiver of the right to benefits from the relief
association. This waiver was in violation of the Indiana statute of
1907 forbidding the establishment by railroads of relief organiza
tions with such requirements. The employee, after leaving, sued the
company for the amount of wages deducted for the purposes of the
relief society. Judgment was in his favor in the circuit court of
Lawrence County, and on appeal this was affirmed, the contention
that the statute mentioned was unconstitutional being disposed of by
Judge Morris, who delivered the opinion, as follows:
It is earnestly contended by appellant that the act of 1907, if held
applicable to interstate carriers, is invalid because of interference
with interstate commerce. It is not claimed that Congress has passed
any law in relation to schemes of relief for employees of interstate
railroads. It is manifest that the general assembly of 1907, in enact
ing the measure, purported to do so in the exercise of its police
power. We are o f the opinion that the act is within the bounds of
the lawful exercise of such power. While it may incidentally affect
interstate commerce, it is clear that the object of the statute was not
to regulate it, and, in the absence of congressional action, the mere
DECISIONS OF COURTS AFFECTING LABOB.
183
incidental effect will not invalidate the law. (Sligh v. Kirkwood,
237 U. S. 52,35 Sup. Ct. 501, and authorities cited; Vandalia Railroad
Co. v. Railroad Com., 101 N. E. 85 [Bui. No. 152, p. 1591].)
Appellant also claims that the act constitutes unconstitutional
class legislation because applicable alone to railroads. We can not
assent to this view. [Cases cited.]
Other contentions likewise overruled, in addition to certain tech
nical matters, were that the statute in question had been repealed
by implication by section 5 of chapter 88 of the Acts of 1911, and
that the fact that other losses of the employee than those from neg
ligent accident were insured by the association entitled it to at least
a part of the premiums'deducted.
R ailro ad s — S a f e t y A p p l ia n c e s — A i r B r a k e s — T r a n s f e r T r a in s —
United States v. CMfificgo, Burlington <&Qumcy Railroad Co., United
States Supreme Cowrt (May 10,1915), 35 Supreme Court Reporter,
page 634-—This was a proceeding against the railroad company
named for alleged violation of the Federal safely appliance act.
The point in controversy was whether the requirement as to the con
necting of a ce r ta in percentage of the air brakes of the cars of a
train applied to trains of the nature of the three in question. The
district court held that it did so apply, and rendered judgment for
the Government, while the circuit court of appeals reversed this
judgment (211 Fed. 12, B u i. No. 169, p. 179), upon which the United
States carried the case to the Supreme Court by certiorari.
It appeared from the evidence that the trains concerned were trans
fer trains running between the company’s yards at Kansas City, on
opposite sides of the Missouri River, the distance between their
nearest points being 2 miles. The connecting track is a main-line
track, 3,000 fed; being upon a single-track bridge across the river.
The track intersects, at grade, 12 or 15 tracks of other companies
and passes through the union depot tracks. The transfer trains
pass from one yard to the other as units, and are often preceded and
followed by other trains, passenger or freight. The three trains
consisted of 42, 36, and 39 cars, respectively, and only 9 in one train
and 10 in each of the others had the brakes connected. At the time,
August 9,1910, the requirement was that 75 per cent should be con
nected.
The decision of the Supreme Court was that the provisions of the
safety appliance law apply in such cases as that under consideration,
and it reversed the decision of the circuit court of appeals, thus
giving final judgment affirming the liability of the railroad company
for penalties for the violation charged. The part of the opinion
184
BULLETIN OF TH E BUREAU OF LABOR STATISTICS.
delivered by Mr. Justice Van Devanter expressing this conclusion
is as follows:
Giving effect to the views quite recently expressed in United States
v. Erie Railroad Co., 35 Sup. Ct. 621 [see p. 187], we think these
trains came within the air-brake requirement, which the amendatory
act of 1903 declares “ shall be held to apply to all trains * * *
on any railroad engaged in interstate commerce.” According to the
fair acceptation of the term they were trains in the sense of the
statute. The work in which they were engaged was not shifting cars
about in a yard or on isolated tracks devoted to switching opera
tions, but moving traffic over a considerable stretch of main-line
track—one that was a busy thoroughfare for interstate passenger
and freight traffic. Every condition suggested by the letter and
spirit of the air-brake provision was present. And not only were
these trains exposed to the hazards which that provision was in
tended to avoid or minimize, but unless their engineers were able
readily and quickly to check or control their movements they were
a serious menace to the safety of other trains which the statute was
equally designed to protect. That they carried no caboose or mark
ers is not material. If it were, all freight trains could easily be put
beyond the reach of the statute and its remedial purpose defeated.
Neither is it material that the men in charge were designated as yard
or switching crews, for the controlling test of the statute’s applica
tion lies in the essential nature of the work done rather than in the
names applied to those engaged in it.
R ailro ad s — S a f e t y
A p p l ia n c e s — H a n d
an d
P ower
B rakes—
Virginian Railway Co. v. United States, United States Circuit Court
of Appeals, Fourth Circuit (May 4, 1915), %£3 Federal Reporter,
page 748.—Judgment for the United States was rendered on the trial
of an action against the company named for violation of the safety
appliance act by the use of hand brakes instead of the automatic
brakes required. It appeared that the principal use made of the
tracks was in the transportation of coal, and that very heavy trains,
consisting of 100 cars of 54 tons each, were run at a low rate of
speed, and on the stretch of track in question down a heavy grade.
Under these circumstances it was found that the air brakes either
stopped the train entirely, or if they were released before the train
came to a standstill, the result was a jerking which frequently broke
the cars apart. An order was therefore given that the trains should
be controlled by hand brakes except in emergencies. The court
affirmed the judgment against the company. A statement of the
company’s position is given in the following quotation from the
opinion delivered by Judge Knapp:
The object of Congress was evidently that the automatic power
brakes should be used to control the speed of the train at all times
when good railroad practice would require the use of such brakes,
DECISIONS OF COUBTS AFFECTING LABOB.
185
and to permit the use of hand brakes under such circumstances as,
in the judgment of the people in charge of the operation of the
trains, would promote the safety of the operation.
Continuing, Judge Knapp said:
It is obvious that such a construction would practically nullify
the train brake requirement, and take all effective meaning from the
>rovision which makes it unlawful to run “ any train” unless the
ocomotive and cars are so equipped that the engineer can control
its speed * without requiring the brakeman to use the common hand
brake for that purpose.” The contention must be rejected as clearly
unsound.
There is no express or implied qualification, which in any way
relates to the question at issue, and it is not for the courts to intro
duce an exception which the Congress did not see fit to make.
The justification set up is that trains of 100 cars can not be moved
on this stretch of track, at the slow speed of 10 miles an hour or less,
and kept under safe control with the use only of the prescribed
power brake. But those operating conditions, which occasioned the
need of hand brakes, are evidently of defendant’s own creation. All
it has to do to comply with the law is to make up trains of such
smaller number of cars as can be safely and properly handled with
out resorting to the use of hand brakes. In short, the mandate of
the Congress is disregarded in this instance, not because compliance
involves any physical difficulty which is inherent or practically seri
ous, but merely because it involves some increase of expense. It is
too plain for argument that no such reason can serve to condone
disobedience to the command of the statute.
[
R ailro ad s — S a f e t y A p p l ia n c e s — H a u u n g D e f e c tiv e C a r fo r
R ep a ir s —“ N e c e s s a r y ” —United States v. Atchison, Topeka <&
Santa Fe Railway Co., United States District Cowrt, Southern Dis
trict of California (Jem. H , 1915), 220 Federal Reporter, page 215.—
This action was brought to enforce a penalty under the Federal
safety appliance act, it being agreed as to the facts that the company
moved a car having a defective coupler from a transfer track in San
Diego to a repair track 1 mile distant; also that it would have been
possible to send a repair man to the transfer track with suitable
materials and to make the repairs there. The case turned largely
upon the interpretation of the word “ necessary” as used in the
statute, which allows movements of defective cars, etc., to be made
to repair points if such movement is necessary. Judge Bludsoe, who
delivered the opinion affirming a judgment against the company,
said in part:
In order that the movement of a car, such as is involved herein,
can be justified, it must be shown by the carrier that such movement
was necessary, in order that the required repairs might be made, and
that such repairs could not be made except at the repair point to
which the car was moved. It will not suffice, in my judgment, to
hold that the word “ necessary” is the substantial equivalent of
186
BULLETIN OF TH E BUREAU OF LABOR STATISTICS.
“ convenient,” or that it should be qualified by the phrase “ practi
cably ” or “ economically ” ; so to hold would lie to place the conven
ience, practicability, and economy above human life, and that this
court will not do.
R ailroads — S a fe ty A pplian ces — S tate
an d
F ederal S tatutes —
Southern Railway Co. v. Railroad Commission of Indiana, Supreme
Court of the United States (Feb. 23, 1915), 35 Supreme Court
Reporter, page 304.— T h e R a ilro a d C om m ission o f In d ia n a b rou gh t
su it again st th e com pan y nam ed to recover a p en a lty fo r alleged v io
la tio n on F eb ru a ry 24,1910, o f a S ta te statute req u irin g gra b iron s
and h an d h old s on th e sides and ends o f every ca r. T h e ca r in ques
tio n w as tran sported fro m B o o n v ille to M illtow n , b oth in In d ia n a.
T h e com pan y filed an answ er in w h ich it den ied lia b ility u n der the
S tate law inasm uch as on F eb ru a ry 24, 1910, th e F ed era l sa fety
ap p lia n ce act im posed p en alties fo r fa ilin g to equ ip cars w ith hand
h old s, and also d esign ated th e cou rt in w h ich th ey m igh t b e recov
ered. T h is con ten tion w as overru led and ju d gm en t was entered
again st th e com pan y. T h a t ju d gm en t w as affirm ed on a p p eal, and the
case w as taken to th e Suprem e C ou rt o f th e U n ited S tates on a w rit
o f error. T h e Suprem e C ou rt reversed th e ju d gm en t, on th e grou n d
th a t th e p rov ision s o f th e S tate statute w ere in v a lid a ted b y th e F e d
era l sa fety app lian ce a ct, M r. J u stice L am ar, w h o d elivered the
o p in io n , sa y in g in p a r t:
The car alleged to have been without the required equipment,
though transporting freight between points wholly within the State
of Indiana, was moving on a railroad engaged in interstate com
merce, and the company was, therefore, subject to the provisions and
penalties of the safety appliance act. (Southern Railway Co. v.
United States, 222 U. S. 20,32 Sup. Ct. 2 [Bui. No. 98, p. 485].)
The defendant in error insists, however, that the railroad company
was also liable for the penalty imposed by the Indiana statute.
But the principle that the offender may, for one act, be prosecuted
in two jurisdictions, has no application where one of the Govern
ments has exclusive jurisdiction of the subject matter, and therefore
the exclusive power to punish. Such is the case here where Con
gress, in the exercise of its power to regulate interstate commerce,
has legislated as to the appliances with which certain instrumentali
ties of that commerce must be furnished in order to secure the safety
of employees. Congress, of course, could have “ circumscribed its
regulations” so as to occupy a limited field. [Cases cited.] But
so far as it did legislate, the exclusive effect of the safety appliance
act did not relate merely to details of the statute and the penalties it
imposed, but extended to the whole subject of equipping cars with
appliances intended for the protection of employees. The States
thereafter could not legislate so as to require greater or less or differ
ent equipment: nor could they punish by imposing greater or less or
different penalties.
DECISIONS OF COURTS AFFECTING LABOR.
R ailroads —
Y ards —United
187
S a f e t y A p p l ia n c e s — S w it c h in g O p e r a t io n s —
States v. Etie Railroad Co., Supreme Court of the
United States (May 3, 1915), 35 Supreme Court Reporter, page
681.—The United States brought action against the company named
for penalties for violations of the safety appliance act. On the sec
ond trial a verdict was directed for the defendant. The judgment in
its favor rendered thereon was affirmed by the circuit court of appeals,
and the United States brought the case to the Supreme Court on a
W rit of error. The attitude of the court of appeals appears in the
opinion in 197 Fed. 287 (Bui. No. 112, p. 128).
The company operates a railroad from New York via New Jersey
to Buffalo and Chicago. It has yards on the Hudson River at Jersey
City and Weehawken, and another inland at Bergen, the last named
being 2 miles from the Jersey City and 3£ miles from the Weehaw
ken yard. The yards are connected by a double track, which runs a
mile through a dark tunnel. This double track is used for a number
of through freight trains daily, and a train going from one yard to
another passes many switches connecting with tracks used by main
line passenger trains. The cars to be transferred from one yard to
another are made up into trains which remain intact during the run,
and a large number of cars are thus transferred daily.
Some counts of the indictment referred to alleged hauling between
the yards cars having defective couplers, etc., and others to hauling
trains not having the requisite number of air brakes connected. The
grounds for the decision of the circuit court of appeals were that the
three yards with the connecting tracks constitute a single and exten
sive yard; that the movements of the transfer trains were mere
switching operations, and therefore not within the air-brake provi
sion in the statute; and that it was permissible under the statute to
haul the cars with defective equipment under such circumstances.
The Supreme Court reversed the former judgment, Mr. Justice
Yan Devanter, who delivered the opinion, speaking in part as
follows:
We can not assent to the view that the yards at Jersey City, Wee
hawken, and Bergen are but a single yard. They doubtless are im
portant accessories to the defendant’s eastern terminal, but that does
not make them one yard. They lie from 2 to
miles apart, are not
so linked together that cars may be moved from one to another with
the freedom which is usual and essential in intrayard movements, and
are in actual practice treated as separate yards.
We are persuaded that the transfer trains moving from Jersey City
and Weehawken to Bergen and vice ver3a came within the purview of
the air-brake provision. They were made up in yards like other trains,
and then proceeded to their destinations over main-line tracks used
by.other freight trains, both through and local. They were not mov
ing cars about in a yard or on tracks set apart for switching oper
188
BULLETIN OF TH E BUBEAU OF LABOR STATISTICS.
ations, but were engaged in main-line transportation, and this in
circumstances where they had to pass through a dark tunnel, over
switches leading to other tracks, and across passenger tracks whereon
trains were frequently moving. Thus it is plain that in common
with other trains using the same main-line tracks, they were exposed
to hazards which made it essential that appliances be at hand for
readily and quickly checking or controlling their movements. The
original act prescribed that these appliances should consist of air
brakes controlled by the engineer on the locomotive, and the act of
1903 declared that this requirement should “ be held to apply to all
trains.” We therefore conclude and hold that it embraced these
transfer trains.
The hauling of the cars with defective equipment was clearly in
contravention of the statute. While section 4 of the act of 1910
permits such cars to be hauled, without liability for the statutory
penalty, from the place where the defects are discovered to the near
est available point for making repairs, it distinctly excludes from
this permission all cars which can be repaired at the place where they
are found to be defective, and also declares that nothmg therein shall
be construed to permit the hauling of defective cars “ by means of
chains instead or drawbars” in association with other cars in com
mercial use, unless the defective cars “ contain live stock or perishable
freight.” Six of the cars that were hauled while their equipment
was defective could have been readily repaired at the place where the
defects were discovered, which was before the hauling began. The
remaining two were hauled by means of chains instead of drawbars
in association with other cars in commercial use, and it is not claimed
that they contained live stock or perishable freight.
It follows that the district court erred in directing a verdict for the
defendant, and the circuit court of appeals erred m sustaining that
ruling. The judgments of both courts must therefore be reversed
and the case remanded to the district court for a new trial.
S tr ik e s — K id n a p in g o f M em ber o f S tr ik e r s ’ C om m ittee— E v i
d e n c e —State v. Payne et
Supreme Court of Minnesota (Dec. 11,
1914), 149 Northwestern Reporter, page 945.— P eter L. N ew m an
and on e S u lliv a n w ere con v icted in the d istrict co u rt o f C row Wing
C ou n ty on a ch a rg e o f k id n a p in g , and app ealed, th e ju d gm en t b ein g
affirm ed. The statute a lleged to have been v iola ted is G eneral
Statutes, 1913, section 8628, and reads as fo llo w s :
al.,
Every person who shall willfully seize, confine or inveigle another
with intent to cause him? without authority of law, to be secretly
confined or imprisoned within the State, or sent out of it, to be sold
as a slave, or in any way held to service, or kept or detained against
his will, * * * shall be guilty of kidnaping and punished, etc.
Four men had been tried jointly, and the other two were acquitted.
Testimony of Newman at a previous trial of the case was admitted
and no request was made for an instruction that this testimony
should not be considered against Sullivan. It was held that this
DECISIONS OP COURTS AFFECTING LABOR.
189
evidence was properly admitted against Newman, and that under
the circumstances Sullivan could not complain of its admission.
The only other question was as to the sufficiency of the evidence to
sustain the conviction. Judge Bunn, who delivered the opinion,
reviewed the evidence and discussed its sufficiency as follows:
The indictment charged that the defendants on April 17, 1913,
at the village of Crosby, in Crow Wing County, did willfully, un
lawfully, and feloniously seize, confine, and inveigle one Theodore
Sjogren, with intent to cause him, witnout authority of law, to be
secretly confined within the State, and set out the acts constituting
the seizure, confinement, and inveigling of Sjogren.
The evidence justified the jury in believing beyond a reasonable
doubt that the following facts were true: Sjogren was a miner and
had come from his home in Michigan to work in one of the mines
near Crosby. The miners started a strike^ and Sjogren was a mem
ber of a committee appointed to confer with the superintendent and
the “ captain ” of the shaft. Several conferences had been held prior
to the evening of April 17,1913. On that evening Sjogren visited a
pool hall in Crosby and attended a moving-picture show. After
coming out from this show with two companions, and as he was pass
ing an automobile standing near the sidewalk, revolvers were pointed
at his face, and he was ordered to step into the automobile. He com
plied, and the automobile drove off. Defendants Newman and -Sulli
van were two of the men, the others being the two defendants who
were acquitted and one Payne, who was indicted but not tried. All
of the men had revolvers, and dark handkerchiefs over their faces.
They gagged Sjogren and went through his pockets, though they
took nothing from him. The machine was driven to Brainerd, with
more or less of threats and shooting on the way. In Brainerd the
five men conducted Sjogren to a room in a hotel, where they had re
freshments. Sjogren was told that if he would not go back to the
mines, but would go home to Michigan, the men would let him go,
but would shoot him full of holes if he ever came back or wrote to
his friends in Crosby. Sjogren promised, and his captors left him in
charge of Payne, one or their number; the others going back to
Crosby. Payne, with the help of a revolver, kept Sjogren in charge,
saw that he bought a ticket to Duluth, and took the train with him.
Payne got off at Deerwood, Sjogren continuing to Duluth.
It is manifest that this story, if believed, was sufficient to convict
defendants of willfully seizing, confining, or inveigling Sjogren, with
the intent to cause him, without authority of law, to be secretly con
fined or imprisoned within the State. There is little room to question
the substantial features of Sjogren’s tale, as told above, and we are
obliged to hold that the conviction was justified by the evidence. We
are not concerned with the motives of the men who thus attempted
to get out of the way of one of the committee of strikers. It is not
pretended that they acted with any legal authority.
S u n d a y L abor — “ C o m m o n L a b o r ” — “ A v o c a t io n ” — N e c e s s it y —
A s se ssm e n t of P r o pe r t y —SteUhom
v. Board of Commissioners of
Allen Cownty, Appellate Court of Indiana (Nov. S, 1915), 110 North
190
BULLETIN OP THE BUREAU OF LABOR STATISTICS.
eastern Reporter, page 89.—August Stellhom brought action against
the county commissioners for a balance claimed to be due him for
services in assessing personal property during the years 1905, 1906,
1907, and 1908. The term during which this work was done was
March 1 to May 15, and the statutory rate of pay was $2 per day.
The claim has been allowed each year for 65 days, but the deputy
assessor claimed that he worked on Sundays checking up lists, etc.,
and also for a few days each year after May 15, his total additional
claim being for $136. The Sunday labor law of the State prohibits
common labor or engaging in one’s usual avocation, works of neces
sity and charity being excepted. It was held that the work done came
within the meaning of both common labor and usual avocation, the
word “ avocation ” being used in the sense of vocation or occupation.
The circumstances were examined and it was held that there was no
necessity within the meaning of the period, there being a provision
for the appointment of additional deputy assessors if needed. The
judgment for the defendants rendered in the trial court was affirmed.
S u n d a y L abor —C o n s t i t u t i o n a l i t y o f S t a t u t e —State v. Nicholls,
Supreme Court of Oregon (Sept. 14, 1916), 151 Pacific Reporter,
page 473.—Leigh E. Nicholls was convicted in a justice court of vio
lating the Sunday law, but on his appeal to the circuit court his objec
tion to the complaint as insufficient was sustained, from which de
cision the State appealed. The charge was of keeping open a cigar
store and selling cigars, tobacco and candy. The law, besides pro
viding that circumstances of necessity and mercy may be pleaded in
defense, exempts from its provisions theaters, keepers of drug stores,
doctor shops, undertakers, livery-stable keepers, butchers and bakers.
The respondent claimed that the law granted to the classes named
privileges and immunities not equally belonging to all citizens upon
the same terms, and was therefore in violation of the State con
stitution ; also that it was in conflict with the fourteenth amendment
to the Constitution of the United States. The court held that the
classification was reasonable and the law valid, and therefore reversed
the judgment of the circuit court and remanded the case for further
proceedings. Judge Burnett, who delivered the opinion, after defin
ing the police power and stating the respondent’s contention, said
in part:
The general rule laid down by the enactment forbids keeping open
any store, shop, grocery, bowfing alley, billiard room, or tippling
house for the purpose of labor or traffic. An exception is found in
the proviso excluding the occupations already named. A good reason
for this may be found in the fact that drug stores, doctor shops,
undertakers, butchers, bakers, and livery-stable keepers minister to
DECISIONS OF COURTS AFFECTING LABOR.
191
wants that are more imperative as a rule than those supplied by the
general run of business in the occupations named, while theaters
afford mental diversion conducive to rest and relaxation. The
emergency involved gives color and sanction to the exception. The
law applies to all persons coming within the class described and lim
ited in the statute. Many situations are pointed out in the argu
ment of the defendant illustrating possible absurdities. For in
stance, a carpenter shop may be closed, but the carpenters themselves
might be working on the outside, or the store of the defendant,
where cigars and candy are sold, might be closed, yet the same articles
might be purchased in a drug store. These contentions are properly
addressed to the legislative branch of the Government. We are con
cerned only with the authority, and not with the wisdom, of the law
makers. The question of whether an institution which vends both
drugs and candy is a drug store or a candy shop is not before us.
We are convinced that the classification set out in the statute is
reasonable, and that the legislation is a proper exercise of the police
power.
W age D ebts — L ia b i l i t y of S to ck h o ld e r o f C o rpo ra tio n — B o o k
E m p l o y e e —Farmtm v. Harmon, Supreme Court of Neto
York, Appellate Division, First Department (Apr. 16, 1915), 153
New York Supplement, page 885.—William Famum brought action
against William H. Harrison, one of the stockholders of the WishartDayton Auto Truck Co., and recovered a judgment against him in
the city court, for unpaid salary as bookkeeper of the company.
Farnum first sued the company and recovered judgment, and when
his execution was returned wholly unsatisfied, brought this action
pursuant to section 57 of chapter 59 of the Consolidated Laws. The
question to be decided was whether the plaintiff, a bookkeeper with
a salary of $50 per week, was included within the meaning of the
terms “ laborers, servants or employees” in the statute referred to.
The court reviewed the decisions relating to similar classifications,
and held that the plaintiff was a servant or employee of the com
pany, and therefore entitled to maintain the action. The, judgment
in his favor was accordingly affirmed
keeper as
W ages a s
P referred
C l a im s
S t a t u t e —Central
in
B a n k r u p t c y — C o n s t it u t io n
Trust Co. v. George Lueders & Co. et al.,
United, States Circuit Court of Appeals, Sixth Circuit (Mar. 2,
1915), 221 Federal Reporter, page 829.—In the Matter of J. Rheinstrom & Sons Co., Bankrupt, the district court issued an order allow
ing the claims of Lueders & Co. and other creditors, under the terms
of a Kentucky statute which provides that employees and persons
furnishing materials and supplies for the carrying on of a manu
facturing business shall have a preference in case the manufacturers
a l it y of
192
BULLETIN OF TH E BUBEAU OF LABOR STATISTICS.
become insolvent. The trust company appealed from this order.
The questions at issue are thus stated by Judge Knappen, who de
livered the opinion of the circuit court of appeals:
The grounds of attack upon the order are (1) that the statute
invoked is unconstitutional and in conflict with the [Federal] Bank
ruptcy Act; (2) that the statute does not relate to manufacturing
establishments other than those similar to rolling mills and foundries;
and (3) that the bankrupt did not own or operate a manufacturing
establishment.
It was held that the statute is not unconstitutional as discrimina
tory, as is shown by the following language used in the opinion:
T h e asserted g rou n d o f u n con stitu tion ality is th a t th e statute un
reason ably d iscrim in ates in fa v o r o f th ose w h o fu rn ish m aterials and
su p p lies to m a n u fa ctu rin g establishm ents, as again st th ose fu rn ish
in g m on ey o r m ach inery to th e sam e establishm ents, as w e ll as th ose
fu rn ish in g m aterials and su p p lies to establishm ents n o t en ga ged in
m a n u fa ctu rin g, and d iscrim in ates again st m a n u fa ctu rin g establish
m ents in fa v o r o f oth er establishm ents. W e th in k th is con ten tion
w ith ou t m erit.
The rule is well settled that the equal protection clause of the f ourteenth amendment does not take from the States the power to classify
the subjects of legislation, but leaves to the legislatures a wide field
of discretion in that regard, avoiding such classification only when
unreasonable and arbitrary, and that a legislative classification is
presumed to be reasonable unless it is apparent that there was and
could be no reasonable bads therefor. (Lindsley v. Natural Car
bonic Gas Co., 220 U. S. 61, 31 Sup. Ct. 337, and cases there cited;
Jeffrey Manufacturing Co. v. Blagg, 235 U. S. 571, 577, 35 Sup. Ct.
167 [Bill. No. 169, p. 203].) We see nothing arbitrary or unreason
able in preferring materialmen, whose supplies enter into the mark
eted product, over sellers of machinery, upon which liens for the
purchase price may well be reserved, or over those loaning money,
who not infrequently are in position to exact personal security or
indorsement, nor in either of the other respects complained of. We
cite in the margin several decisions of the Supreme Court which we
think amply sustain the validity of this statute against the criticisms
urged. The statute in no way conflicts with the Bankruptcy Act.
Section 64b of the act provides that—
“ The debts to have priority, except as herein provided, and to
be paid in full out of bankrupt estates, and the order of payment
shall be: * * * (5) debts owmg to any person who by the laws
of the States or the United States is entitled to priority.”
It was expressly held by this court in the Bennett Case that this
section of tne Bankruptcy Act adopts the Kentucky statute in ques
tion, and makes it the applicable Federal law in determining priori
ties. (153 Fed. 674.)
The court held that decisions already rendered debarred the con
tention that only manufacturing establishments similar to rolling
mills and foundries were included under the act; and, as to the
DECISIONS OF COURTS AFFECTING LABOB.
193
third point, showing at some length that the processes of making
so-called Maraschino cherries changed them into an entirely dif
ferent product from the cherries as originally imported, it held that
the plant was a manufacturing establishment within the meaning
of the law. The order of the district court was therefore affirmed,
granting the preferences to the employees and those furnishing
materials.
W ages
as
P referred
C l a im s
in
B a n k r u p t c y — “ W age
E a r n e r ” —“ S e r v a n t ”—Blessing v. Blanchard et al., United States
Circuit Court of Appeals, Ninth Circuit (May 10,1915), 223 Federal
Reporter, page 35.—The district court allowed priority to the claims
of two employees of the Pacific Car Motor Co., bankrupt, named
Blanchard and Winn, for the sums due them on their salaries earned
within three months prior to the filing of the bankruptcy petition.
The company was engaged in buying, selling and repairing auto
mobiles. Blanchard was general manager, and Winn superintendent
of the shop.
The company claimed that neither man was entitled to priority,
and pointed out that section 1, subdivision 27, of the Bankruptcy
Act defines a “ wage earner ” as one working at a rate of less than
$1,500 per year. The court held, however, that this definition does
not affect the construction of section 64b (4), relating to priorities.
The act provides for priority of wages due workmen, clerks, and
servants, and also, by amendment, salesmen. The court discussed
the meaning of the word “ servants,” and concluded that the general
manager should not be included in this designation. The following
is quoted from the opinion delivered by Judge Gilbert:
We think the word “ servant ” should be held to mean a restricted
class of subordinate helpers who work for wages, but who are not
salesmen, workmen? or clerks. We do not think it includes the
manager of a business, notwithstanding thajt he may also have
rendered services as a salesman.
Priority of payment was intended for the benefit only of those
who are dependent upon their wages, and who, having lost their
employment by the bankruptcy, would be in need of such protection.
It evidently was not thought that the general manager ox the busi
ness would require special protection. Such seems to have been the
opinion of the courts of bankruptcy. [Cases cited.]
On the other hand, it was held that Winn, who, although super
intending other men, was engaged personally in the work of repair
ing, etc., should receive the protection of the act. The judgment
of the court below giving priority to the claims of both was therefore
reversed as to Blanchard, and affirmed as to Winn.
26071°—Bull. 189—16----- 13
194
BULLETIN OF TH E BUBEAU OF LABOB STATISTICS.
W a g es — M i n e s — W e ig h in g C o a l b e f o r e S c re e n in g — C o n s titu
t io n a lit y o f S ta tu te — Rail db River Coal Co. v. Yaple et al., Su
preme Cowrt of the United States (Feb. 23,1915), 35 Supreme Court
Reporter, page 359.— T h e com pan y nam ed a p p lied t o th e U n ited
S tates D istrict C ou rt fo r the N orth ern D istrict o f O h io to e n jo in th e
m em bers o f th e In d u stria l C om m ission o f O h io fro m e n fo rcin g the
law o f th at S tate (104 O h io L aw s, p . 181) req u irin g paym ent o f coa l
m in ers, w hen m ade b y w eigh t o f co a l m in ed, to be m ade on the basis
o f w eigh t b efo re th e screen in g o f th e coa l. T h e in ju n ction w as re
fu sed (see 214 F e d . 273, B u i. N o. 169, p . 171), and th e com pan y
appealed. T h e Suprem e C ou rt affirm ed th e ord er o f th e cou rt be
low in an o p in ion d elivered b y M r. J u stice D a y , w h o sum m arized
th e a llegation s o f th e com pan y’s b ill, w h ich stated th e con d ition s o f
coa l m in in g and alleged th a t th e p rov ision s o f th e a ct “ are unreason
able and a rb itrary and im p racticab le in op era tion , and th a t th e act
is u n con stitu tion al, as in v iola tion o f th e fou rteen th am endm ent to
th e C on stitu tion o f th e U n ited States, and in v io la tio n o f th e co n
stitu tion o f the S tate o f O h io, and th at it delegates leg isla tiv e a u th or
ity to the in d u strial com m ission o f th e S tate and alth ou gh th e b ill
w as filed b e fo re th e act w ent in to effect, it w as alleged th a t the
in d u stria l com m ission , in p u ttin g th e sam e in to effect, w ou ld w ork
an irrep a ra b le in ju ry to th e p la in tiff.”
Before enacting the legislation under consideration, the question
had been referred to a coal-mining commission, which, after full
investigation, made a report in which the arguments for and against
the measure were discussed, and a bill was recommended in the form
in which it was passed, becoming the law in issue. In its first section,
the act proposes to establish a system by which the miner shall be
paid according to the total weight of all the coal contained in the
car in which it was removed from the mine; providing, however,
that no greater percentage of slate, sulphur, rock, dirt, or other
impurity shall be contained in such contents than the amount fixed
by the industrial commission of the State. By the second section,
the industrial commission is required to ascertain and determine the
percentage of impurities unavoidably present in the cars when
proper mining and loading are done.
The seventh section provides penalties for infractions of the act,
including improper mining and loading, so as to produce amounts of
impurities in excess of that allowed by the commission. A proviso
is made in this section to the effect that the miner and the operator
may agree upon deductions by a method of docking fixed upon by
themselves, which agreement may be substituted for the ascertain
ment of the commission. Indeed, section 3 of the act makes it the
duty of the miner and the employer to agree upon the percentage of
fine coal, commonly known as nut, pea, dust, and slack, to be allowed
DECISIONS OF COURTS AFFECTING LABOR.
195
in the output of the mine, and in case they do not, the commission
may fix a percentage which shall be in effect until otherwise agreed
upon by the miner and the employer, unless the commission finds
that the amount originally fixed is not correct, when it may itself
fix another rate, as provided in a later section.
Having stated the foregoing, Mr. Justice Day, speaking for the
court, said in part:
T h e o n ly p en a lty fix ed b y th e law again st th e em p loy er is con tain ed
in section 6, w h ere it is m ade u n la w fu l fo r th e em p loy er t o pass th e
coa l o v er a screen o r oth er d evice, fo r th e p u rp ose o f a scerta in in g
and ca lcu la tin g th e am ount to b e p a id th e m in er o r lo a d e r f o r m in in g
o r lo a d in g such con ten ts, w h ereby th e to ta l w eigh t o f such con ten ts
sh all be redu ced o r dim in ish ed.
There is nothing in the law to prevent the employer from screen
ing his coal as he sees fit for other purposes, and so as to fit it for the
market, in such wise as he may deem advisable. The inhibition on
screening is only upon that operation when it is done for the purpose
of calculating the amount to be paid to the miner for mining the coal.
Moreover, it is important to be considered in this connection that the
orders of the commission are not final, but are subject to review [by
the commission, and, on appeal, by the supreme court]. It would
seem that this system of law, with a right to review in the manner
we have stated in the Supreme Court of Ohio, has provided a system
ample for the protection of the rights of the employers. (See
Plymouth Coal Co. v. Pennsylvania, 232 TJ. S. 531, 34 Sup. Ct. 359
[Bui. No. 169, p. 170].) And of course in this, as in other cases, only
alleged infractions of constitutional rights of those complaining can
be considered in determining the constitutionality of the law. [Cases
cited.]
The objection that the law is unconstitutional as unduly abridging
the freedom of contract in prescribing the particular method of com
pensation to be paid by employers to miners for the production of
coal was made in the case of McLean v. Arkansas, 211 U. S. 539, 29
Sup. Ct. 206 [Bui. No. 81, p. 419], in which this court sustained a
law of the State of Arkansas, requiring coal mined to be paid for ac
cording to the run-of-mine system according to its weight when
brought out of the mine in cars. In that case the constitutional ob
jections founded upon the right of contract which are made here
were considered and disposed of. This court has often affirmed the
right of the State, in the exercise of its police power, to place rea
sonable restraints like that here involved, upon the freedom of contract.
A s to th e a lleged im p ra ctica b ility o f th e la w , because o f th e im pos
sib ility o f th e in d u strial com m ission d eterm in in g th e q u a n tity o f d irt
and oth er im p u rities in any coa l m ined, w e can fin d n o fo r c e in th at
o b jection . A greem en ts as to th e am ount o f d o ck in g fo r d ir t and
im p u rities in th e m in in g o f coa l h ave been con sta n tly m ade, and it is
n ot th e p rov in ce o f a cou rt to revise con clu sion s w h ich m en versed in
the business h ave fo u n d p ra ctica b le ; certa in ly n ot in advan ce o f an
attem pt to p u t th e law in to op era tion . T h e con sideration o f th e law
already g iven show s th e m eans enacted t o d o aw ay w ith these im p u ri
ties, and to insure as fa r as p ossible th e p rod u ction o f clean coa l.
196
BULLETIN OP TH E BUBEAU OP LABOB STATISTICS.
As to the objection because of the penalties, this is not a suit to
enforce penalties; nor, in view of the provisions of the statute, can
we say that the penalties are so great as to prevent a resort to the
courts to ascertain the constitutionality of the law.
We are unable to discover in the statute any infraction of the con
stitutional rights of the appellant and the order denying the tempo
rary injunction is accordingly affirmed.
W ages — W e e k l y P a y m e n t — E m pl o y e e s — People v. Interborough
Rapid Transit Co., Supreme Court of New York, Appellate Division,
First Department (July 9, 1915), 164 New York Supplement, page
627.—The people, by John Mitchell and others constituting the State
industrial commission, proceeded against the company named for a
penally of $50 for violation of the act requiring weekly payment of
wages to its employees. The questions involved were whether a
number of persons in various kinds of employment with the company
were employees under the definition contained in the act, and also
whether the payment of a civil engineer by check was a violation of
the requirement of cash payment. As a part of the persons were
held to be employees, the penalty was assessed. In rendering the
opinion Judge Hotchkiss said in part:
Section 11 requires every corporation (except such as operate steam
surface railroads, as to which a different provision is made) to “ pay
weekly to each employee the wages earned by him to a day not more
than six days prior to the date of such payment.” Section 2 of article
1 of the Labor Law defines the term “ employee ” to mean “ a mechanic,
workingman, or laborer, who works for another for hire.” Each
statute must necessarily be largely a law unto itself, and its proper
interpretation must depend upon its own particular language. The
statutory definition, which we have here to guide us, prevents any
peculiar force being attached to the terms “ wages ” and “ employee,”
and confines us to the simple inquiry whether, among the persons
enumerated in the submission, there are any who are properly to be
classed as mechanics, workingmen, or laborers, as those terms are
ordinarily and naturally used.
It scarcely needs argument to show that the following axe not
within the aefined classes: Stenographer, accountant, typist, chainman, levelman, civil engineer, bookkeeper, draftsman, structural de
signer, and clerk. The case of the rodman is not quite so clear. His
work is apparently largely of amanual nature; but, as his duty is to
“ assist civil engineers” in their work, I think that we may infer
that he belongs to the engineering; staff, although in a humble ca
pacity, rather than among the workingmen or laborers, and is accord
ingly not within the statutory definition. The blueprinter is also on
the border line; but I am inclined to think that he may, upon a liberal
construction, be deemed to be a workingman, as is the office boy.
The matron, upon a similar construction, should be classed as a workingwoman, as should the telephone switchboard operator. The
chauffeur is (or ought to be) a mechanic, but in any case he is a work
ingman.
DECISIONS OF COURTS AFFECTING LABOR.
197
Section 10 requires various classes of corporations of which defend
ant is one to “ pay to each employee * * * the wages earned by
such employee in cash,” and prohibits payment in scrip or store
orders. It is clear, therefore, that the civil engineer, inasmuch as he
is not a workingman, mechanic, or laborer, is not within the statute,
and payment of his compensation by check is lawful.
W e e k l y D a y o f R e s t — C o n s t i t u t i o n a l i t y o f S t a t u t e — People v.
0. KUnck Packmg Co., Court of Appeals of New York (Feb. 6,
1916), 108 Northeastern Reporter, page 278.—The company named
was convicted in the county court of violating during December, 1913,
section 8a of the Labor Law, by permitting certain employees to work
for seven days or more consecutively without any day of rest, and
the conviction was affirmed by the appellate division. The alleged
violation occurred in the plant of the company in Buffalo for the
killing of hogs and the preparation of meats in various forms for
consumption. The court cited among other cases that of Hennington v. Georgia, 163 U . S . 299, 16 Sup. Ct. 1086, and upheld the
law as constitutional, with the exception of the amendment of 1914
to subdivision 2, delegating certain powers to the commissioner of
labor, and affirmed the conviction. The following is quoted from
the opinion of Judge Hiscock, who spoke for the court:
This appeal presents as its underlying question the important one
whether the legislature may require that in certain occupations
employees shall have 24 consecutive hours of rest in every 7 days.
The statute which requires this has popularly^ come to be known as
the “ one day of rest in seven” law, and with certain exceptions
and subject to certain qualifications it provides with appropriate
penalties that every employer “ carrying on any factory or mercan
tile establishment * * * shall allow every person * * * em
ployed in such factory or mercantile establishment at least twentyfour consecutive hours of rest in every seven consecutive days.”
It is undisputed that this defendant was conducting a factory
within the meaning of this law and that it caused or permitted some
of its employees to labor without the prescribed rest in violation of
the terms of the statute. Its defense is based solely and squarely
on the contention that the law is unconstitutional and invalid. Its
broad claim is that, in attempting to limit the right of a male adult
to contract for his labor in the pursuits named, the legislature vio
lated the provisions of the constitution both of the State and the
United States.
We agree with the appellant that the statute can not be sustained
as one enforcing the religious observance of any day, but that it
must be sustained, if at all, as a valid exercise of the police power of
the State, for the promotion and protection of the public health
and welfare.
We see at the outset that it is applicable only to certain classes of
employees. But these are they who work in factories and mercan
tile establishments. We know as a matter of common observation
that such labor is generally indoors and imposes that greater burden
198
BULLETIN OF TH E BUREAU OF LABOB STATISTICS.
on health which comes from confinement, many times accompanied
by crowded conditions and impure air. Thus special conditions are
presented which become a reasonable basis for special consideration.
Can we say that the provision for a full day of rest in seven for
such employees is so extravagant and unreasonable, so disconnected
with the probable promotion of health and welfare that its enact
ment is beyond the jurisdiction of the legislature? Or does the very
reverse seem to be its character? We have no power of decision
of the question whether it is the wisest and best way to offset these
conditions and give to employees the protection which they need,
even if we had any doubt on tliat subject. That question, as we have
many times said in other similar cases, is for the legislature. Our only
inquiry must be whether the provision on its face seems reasonable,
fair, and appropriate, and whether it can fairly be believed that
its natural consequences will be in the direction of betterment of
public health and welfare, and, therefore, that it is one which the
State for its protection and advantage may enact and enforce. It
seems to me very clear that we may answer that it is such an one.
I now come to the consideration of special and subordinate fea
tures of the act which are attacked as unjustifiable and invalid.
These in the statute as originally adopted are found in subdivisions
2 and 5, and in the definition of the word “ factory.” The first sub
division exempts from the application of the statute janitors, watch
men, employees whose duties include not more than three hours’
work on Sunday in setting sponges in bakeries, caring for live ani
mals, maintaining fires, making necessary repairs to boilers or ma
chinery, superintendents, or foremen in charge. The second sub
division provides that the industrial board may for definite periods
except specific cases from the operation of the statute when neces
sary for “ the preservation of property, life or health.”
The definition of the word “ factory” (as finally amended in
1914—Laws of 1914, ch. 512) has the effect of excepting employees
in “ power houses, generating plants, barns, storage houses, slieds
and other structures owned or operated by a public service cor
poration, other than construction or repair shops, subject to the
jurisdiction of the public service commission under the public serv
ice commissions law.”
I think that the exemptions of the employees thus expressly speci
fied are based on such obvious reasons and grounds of classifica
tion and that the powers conferred on the industrial board are so
limited in extent and so governed by rules prescribed in the statute
itself that it was clearly within tie powers of the legislature to
enact as it did and that we need net spend any more time in the
consideration of these provisions than to state that we see nothing
objectionable in them from the constitutional standpoint of legis
lative power.
In the year 1914 this section was amended in two important re
spects. Subdivision 2 was amended and supplemented by adding
an exemption from its benefits of:
“ Employees, if the commissioner of labor in his discretion ap
proves, engaged in the work of any industrial or manufacturing
process necessarily continuous, in which no employee is permitted
to work more than eight hours in anv calendar dav.” (Laws 1914,
ch. 396.)
DECISIONS OP COURTS AFFECTING LABOR.
199
Also of:
“ Employees in dairies, creameries, milk condensaries, milk powder
factories, milk shipping stations, butter and cheese factories, ice
cream manufacturing plants and milk bottling plants, where not
more than seven persons are employed.” (Laws 1914, ch. 388.)
While these amendments were not adopted until after the occur
rence of the violations involved in this action, and are not, therefore,
before us in it, they are a subject of consideration in the case Matter
of Peach, 108 N. E. 110*2, argued at the same term and to be decided
at the same time as this case, and therefore, for purposes of conven
ience and of continuity of discussion, they will be considered in the
present opinion.
The provision exempting employees of dairies, creameries, etc.,
numbering seven or less, seems to be based upon a perfectly reason
able classification and therefore within the legislative power. It is
to be observed that all of these employments deal with perishable
products consisting of milk or having milk as a basic element. It is
apparent, therefore, that they could not be wholly suspended for 24
hours without either total destruction or serious impairment of their
products, and that the only manner in which the statute could be complied with would be by laying off part of the employees from day to
day. It is then quite probable that in a small establishment it would
be more burdensome than in a large one, to lay off each employee one
full day in seven. It is not difficult to perceive that it might impose
a greater proportion of extra work on those who remain if no extra
men were nired, or a greater proportionate burden on the business if
extra men were employed to take the places of those who were tem
porarily idle.
In determining whether it will enact such legislation as this the
legislature must necessarily always consider the two elements of
necessity for the legislation and of the burdens which its enactment
will inflict upon those who are subject to it. There must be a rea
sonable relation between the two, and frequently legislation has been
condemned because the ends to be gained aid not afford any adequate
or proper justification for the interference and burdens which were
imposed upon individual rights.
So long as there is some real difference in the situation, interests
and capacity of different classes of citizens, this may be made the
basis of legislative classification- which has a real and reasonable re
lationship to the difference which thus exists. The wide discretion
possessed by the State is not transgressed unless the classification is
palpably arbitrary. We think there may be a real difference between
the situation and labor of employees in large and small establish
ments of the kind covered by this exception and that therefore it
was proper for the legislature to differentiate them. This being so,
the question where the line should be drawn largely rested in its dis
cretion; and that discretion seems to have been exercised in a manner
naturally suggested by the relation between the number of employees
and the days of the week. [Cases cited.]
The remaining provision of the statute which exempts “ employees,
if the commissioner of labor in his discretion approves, engaged in
the work of any industrial or manufacturing process necessarily con
tinuous, in which no employee is permitted to work more than eight
hours in any calendar day,” presents greater difficulties. In fact,
200
BULLETIN OP TH E BUBEAU OF LABOB STATISTICS.
we are compelled to express the belief that it is unconstitutional
because of the attempt which the legislature has made to delegate its
powers to the commissioner of labor. The proposition is so well
settled that we need not cite authorities in its support that the legis
lature can not secure relief from its duties and responsibilities by a
general delegation of legislative power to some one else. It seems to
us that that is precisely and broadly what is here attempted. The
provision as a whole means that certain employees shall be exempt
if the commissioner of labor “ in his discretion approves.” (Laws
1914, ch. 396.)
This particular provision is not immediately involved in the cases
before us and it is not so connected with the general scope and pur
pose of the legislation that its imperfections totally destroy the lat
ter. As has been stated, it was adopted as an amendment, wherefrom
the conclusion quite irresistibly flows that the original statute may
stand, even though this provision falls as invalid.
W o r k m e n ’ s C o m p e n s a tio n — A b r o g a tio n o f C o m m on -la w D e
fe n s e s — S ta tu s o f E m p lo y e e — C o n s t i t u t i o n a l i t y o f S t a t u t e —
Wheeler v. Contoocook' MiUs Corporation, Supreme Cowrt of New
Hampshire (May 4,1915), 94 Atlantic Reporter, page 265.—Etta M.
Wheeler brought action against the company named for damages
for personal injuries suffered while employed by it in a stocking
factory. Her work was in an upstairs room, and on the day of the
accident it ran short, and she was directed to take her chair and go
downstairs where there was piecework to be done. The stairs had
no railing on one side for several steps from the bottom; the treads
were also badly worn, and there were upon them large bundles of
stockings which had been thrown down from the upper floor. While
carrying her chair and attempting to pick her way down the stairs,
she slipped and fell, receiving the injuries complained of.
Outside of technical matters as to the designation of the company
in the writ, and certain instructions to the jury and remarks of the
employee’s counsel in argument, the defenses were largely directed
to the constitutionality of the employers’ liability and workmen’s
compensation act of 1911. The exceptions in this, as well as other
respects were overruled, and the judgment of the superior court in
the employee’s favor was affirmed. The following is quoted from the
opinion delivered by Judge Peaslee:
The defendant moved for a directed verdict upon various grounds.
So far as it relates to the fault of the defendant in maintaining such
stairs, so encumbered, and ordering the plaintiff to use them while
hampered in her movements by the chair she was carrying, the evi
dence is clearly sufficient. The claim that because she had completed
one kind of work upstairs and was going downstairs to begin work
for which she was paid in a different way, therefore she was not,
while in transit, the defendant’s servant, does not demand extended
DECISIONS OF COURTS AFFECTING LABOR.
201
consideration. If the claim were well founded, employers would be
released from all liability under the act for the condition of the ways
provided for the ingress and egress of employees. Such is not the
law. (Boody v. Company, 77 N. H. 208, 210, 90 Atl. 859.)
Another objection made to the constitutionality of the law is
based upon the taking awav of certain defenses and alleged discrim
inations and inequalities in the provisions made for regaining the
same by accepting the provisions of the act. It was within the legis
lative power to abolish entirely the defenses of contributory negli
gence, assumption of risk, and the fellow-servant rule. [Cases cited.]
The objection that the classification of employments adopted is
unreasonable has been met and answered in many jurisdictions. It
is not an open question in this State. (State v. Griffin, 69 N. H. 1,
89 Atl. 260, and authorities there reviewed.)
The defendant is in error in its claim that the act is similar to the
one held to be unconstitutional in Ives v. Company (201 N. Y. 211,
94 N. E. 431 [Bui. No. 92, p. 251] ). In so far as the acts are similar,
their constitutionality was expressly declared in that case. The
ground upon which tne New York act was held to be unconstitutional
was that it provided for compensation when there was no fault upon
the part of the employer. As there is no such provision in our stat
ute, the only part of that decision which is adverse to plaintiffs has
no application here.
W o r k m e n ’ s C o m p e n s a t io n — A cc id e n t a s C a u s e o f D e a t h — I n
R e s u l t in g f r o m I n j u r y , a n d C a u s in g S u ic id e — In re Sponatski, Supreme Judicial Court of Massachusetts (Mar. 31, 1915),
108 Northeastern Reporter\ page JfiG.—This was an application by
Ellen C . Sponatski for compensation under the workmen’s compen
sation act, and an award had been made in her favor and affirmed by
the industrial accident board. On the appeal of the insurer, the
supreme judicial court affirmed this decision.
The deceased employee received an injury in the course of and
arising out of his employment on September 17, 1913, through a
splash of molten lead into his eye. He was treated in a hospital
until October 13,1913, when, as the board found, “ while insane as a
result of the injury he threw himself from a window and was fatally
injured.”
After discussing the evidence and coming to the conclusion that it
was sufficient to uphold a finding that the employee was insane as a
result of the injury and committed suicide without conscious voli
tion, Judge Rugg, who delivered the opinion, referring to the death
being the proximate result of the injury, said in part:
The obligation to pay compensation under the workmen’s com
pensation act equally is absolute when the fact is established that the
injury has arisen “ out of and in the course of ” the employment.
(Part 2, sec. 1.) It is of no significance whether the precise phys
ical harm was the natural and probable or the abnormal and incon
s a n it y
202
BULLETIN OP THE BUREAU OP LABOR STATISTICS.
ceivable consequence of the employment. The single inquiry is
whether in truth it did arise out of and in the course of that employ
ment. If death ensues, it is immaterial whether that was the reason
able and likely consequence or not; the only question is whether in
fact death “ results from the injury.” (Part 2, sec. 6.) When that
is established as the cause, then the right to compensation is made
out. If the connection between the injury as the cause and the death
as the effect is proven, then the dependents are entitled to recover
even though such a result before that time may never have been
heard of and might have seemed impossible. The inquiry relates
solely to the chain of causation between the injury and the death.
W o r k m e n ’ s C o m p e n s a t io n — A c c id e n t — E ffe c t of R elease on
C l a i m of D e p e n d e n t —Milwaukee
Coke
Gas Co. v. Industrial
Commission et al., Supreme Court of Wisconsin (Mar. 2,1915), 151
Northwestern Reporter, page %45.—The company named brought ac
tion against the industrial commission and Pauline Dixon to set aside
an award of the commission in favor of Mrs. Dixon. This award was
of the sum of $3,000 as compensation for the death of her husband,
Thomas Dixon. The circuit court of Dane County had affirmed the
award.
Dixon was an engineer on a switch engine, and when relieved at 7
o’clock on the evening of March 23,1912, started to ride back to the
office on the apron between the engine and tender. This was smooth,
and not rigid but movable, and he fell off, and suffered results which
the physicians diagnosed as arising from concussion of the brain.
He was at this time incapacitated for eight days and was paid $1.56
by the company, which was the exact amount to which he was entitled
for the temporary disability under subsection 2 of section 2394r-9 of
the statutes, for one day more than the week which he had lost. At
this time he executed a release of all claims. After working a large
part of the time until the following October, he became ill again,
and died December 15. The medical testimony was conflicting, but
the court held that there was evidence to sustain the findings of the
commission that the occurrence constituted an industrial accident, and
that the death was the result of it. The court further held that the
release was of no validity in barring the widow’s right to compensa
tion for two reasons: First, because, there being no dispute that the
small amount paid Dixon was the exact sum due for the temporary
disability, there was no consideration for the release of any other
claim; and second, because the circumstances gave rise to two distinct
claims, one belonging to the employee himself, and the other accruing
on his death to the dependents, and he could not personally release
the latter. The judgment was affirmed.
DECISIONS OF COURTS AFFECTING LABOR.
203
W orkmen’s Compensation— A ccident — H eknia — F inding of
Commission—Poccardi v. Public Service Commission, Supreme Court
of Appeals of West Virginia {Jan. 26, 1915), 84 Southeastern, Re
porter, page 21$.—j . Gaetano Poccardi, royal consul of Italy, brought
complaint against the Public Service Commission of West Virginia
on behalf of the widow of Cataldo Greco, an Italian subject, she being
the employee’s sole dependent. The commission had rejected the
claim of the widow against the workmen’s compensation fund. Greco
had been an employee of the Phillips Sheet & Tin Plate Co., and on
the 10th day of April, 1914, he and others lifted a heavy iron pipe
called a jim pole. This was on Friday, and he worked the next day,
but was obliged to go to bed on Sunday, the 12th, and to call a
physician on the 14th. The physician found the case serious, and had
the man removed to the hospital on the 15th, where he operated on
him for hernia on the 16th. The patient died on the 20th, the imme
diate cause of the death being heart trouble.
The evidence in this case was not well developed, but the court held
that the commission in such cases was in the position of a demurrant
to the evidence, that the court should regard the claim as proved if
the evidence would sustain a verdict of a jury in favor of the com
plainant, and that there was such evidence in this case. It an
nounced the principle, citing English and American cases, that a
rupture or other internal injury, resulting from a strain while at
work, is an accident within the meaning of the act. The rules applied
by the Washington commission with reference to hernia were ad
versely criticized. An order was entered requiring the commission to
ascertain the amount of the indemnity and cause it to be paid, stating
that, “ though a surgical operation for strangulated hernia precipi
tated Greco’s death, the legally proximate cause was the hernia.”
W o r k m e n ’ s C o m p e n s a t io n — A c c id e n t — Ivr P o iso n in g — Plass v.
Central New England Railway Co., Supreme Court of New York,
Appellate Division, Third Department (Nov. 10, 1915), 155 New
York Supplement, page 854•—Jane Plass proceeded under the work
men’s compensation law for compensation for the death of her
husband, a section laborer of the company named. He came in
contact with poison ivy while mowing the right of way of the rail
road, and the poisoning resulted successively in blood poisoning,
bronchitis and congestion'of the lungs, from which he died. The
company appealed from an award made by the compensation com. mission, but it was affirmed, Judge Kellogg, speaking for the court,
saying:
It has been held that contact with poison ivy which results in
death is an accidental death within a policy covering death by ex
204
BULLETIN OP THE BUREAU OF LABOB STATISTICS.
temal, violent, and accidental means. (Railway Association v. Dent,
213 Fed. 981.) The injury can not be called an occupational disease.
Plass actually, inadvertently, came in physical contact with poison
ivy. The poison to his system caused thereby resulted in his sick
ness, and reduced his power of resistance, and made him susceptible
to bronchitis. The attending physician treated him for ivy poison
ing, and then found he had developed more or less infection, the
blebs breaking open, and in that way he became infected, and while
in bed contracted bronchitis, which afterwards developed oedema of
the lungs, and he died quite suddenly.
The commission has found that the ivy and septic poisoning was
the remote cause of his death, and that his poisoned condition pre
disposed him to the acute congestion of the lungs of which he died.
We are not at liberty to review the findings of commission upon a
question of fact. There is certainly some evidence to warrant the
finding.
W o r k m e n ’ s C o m p e n s a t io n — A cc id e n t — T y p h o id F ever fr o m Im
W a t e r F u r n is h e d b y E m p l o y e r —Vennen v. New Dells Lum
ber Co., Supreme Court of Wisconsin (Oct. 26,1915), 154 Northwest
ern Reporter, page 640.—Frieda Vennen brought action as adminis
tratrix for the death of her husband, Gerhard Vennen, who had been
an employee of the company named. The company maintained
toilets for the use of its employees, the sewage from which was dis
charged into the river near its plant. It was alleged that the com
pany took water from the river, in such location that it was con
taminated by the sewage, as well as from the city waterworks, for
use in the plant; that through improper connections the two supplies
became commingled; that the company caused its employees to drink
of this water; and that as a result Vennen became sick with typhoid
fever and died. The company’s answer set forth facts which, with
the allegations of the declaration, it claimed brought the plaintiff’s
remedy under the workmen’s compensation act. The plaintiff de
murred to the answer, the demurrer was overruled, and the plaintiff
appealed. The court affirmed the decision below, thus holding that
the facts as alleged brought the matter within the scope of the com
pensation act, and that the proceeding must be as provided by it.
Judge Siebecker, who delivered the opinion, said in part:
The facts alleged show that the parties to the action were subject
to the compensation act. The inquiry then is: Was Vennen’s death
proxunately caused by accident while he was “ performing services
growing out of and incidental to his employment” ? The inference
from the alleged facts is reasonably clear that Vennen at the time of
the alleged injury resulting in his death was “ performing services
growing out of and incidental to his employment.”
The contention that an injury resulting from carelessness or negli
gence is not one that can be said to have been accidentally sustained
in the sense of the compensation act is not well founded.
pure
DECISIONS OP COURTS APPECTING LABOR.
205
The fact that the deceased became afflicted with typhoid fever
while in defendant’s service would not in the sense of the statute
constitute a charge that he sustained an accidental injury, but the
allegations go further, and state that this typhoid affliction is at
tributable to the undesigned and unexpected occurrence of the
. presence of bacteria in the drinking water furnished him by the de
fendant, as an incident to his employment. These facts and circum
stances clearly charge that Vennen s sickness was the result of an
unintended and unexpected mishap incident to his employment.
These allegations fulfill the requirements of the statute that the
drinking of the polluted water by the deceased was an accidental
occurrence, while he was “ performing services growing out of and
incidental to his employment.” It is alleged that the consequences
of this alleged accident resulted in afflicting Yennen with typhoid
disease, which caused his death. Diseases caused by accident to
employees while “ performing services growing out of and incidental
to his employment” are injuries within the contemplation of the
workmen’s compensation act. This was recognized m the case of
Heileman Brewing Co. v. Industrial Commission, 152 N. W. 446
[evidence that inhalation of gas fumes following explosion excited
latent infection, or lowered vitality so as to increase liability to in
fection, death resulting from miliary tuberculosis], and voelz v.
Industrial Commision, 152 N. W. 830. [Here English cases are
examined.] We are of the opinion that the decision of the trial
court holding that the facts pleaded show that Vennen’s death was
caused by accident while performing service growing out of and
incidental to his employment is correct, and that the demurrer was
properly overruled.
W o r k m e n ’s C o m p e n s a t io n — A p p lic a t io n of S t a t u t e — E m p lo y e r s
L ess T h a n F iv e —F a i l u r e to I n s u r e —Bayon v. Buckley, Su
of
preme Court of Errors of Connecticut (Feb. 23, 1915), 93 Atlantic
Reporter, page 139.—Mrs. Alvah Bayon was injured on May 7,1914,
while shaking a rug in the course of her employment with John G.
Buckley. The commissioner of compensation made an award to
her, and when the employer appealed, the superior court sent the case
to the supreme court for decision on an agreed statement of facts.
The employer claimed that he was not liable for compensation be
cause the act does not apply to employers of less than five persons,
and, if it were found thus to apply, that the employee was not en
titled to compensation because the employer had failed to comply
with SAction 30 of part B, requiring employers to give proof of
financial ability or to insure their risks. The court decided against
both these contentions, and dismissed the appeal. Judge Thayer,
who delivered the opinion, discussed at length the reasons for and
against the inclusion of employers of less than five persons under
part B, in case they do not actively elect not to be within such pro
visions, and held that while the legislature intended to offer less
inducements to the small employers and their employees,' together
206
BULLETIN OF TH E BUREAU OF LABOR STATISTICS.
with those concerned in agricultural, domestic and casual employ
ments, it was not the expressed intention to exclude them. As to
the other question he said in part:
But the chief inducement to the employee to accept part B un
questionably is the fact that he thereby secures compensation for
injuries for which the common law gives him no remedy. It is too
unreasonable to believe that the legislature intended tnat the em
ployer, after having accepted part B, should be able to deprive the
employee of these Denefits without notice by simply neglecting to
comply with the provisions of the act which he had accepted. It is
consistent with the language of section 42 to hold that failure by
the employer to comply with section 30 deprives the employer of his
benefits under part B, but does not deprive the employee of his bene
fits under it, and that the latter in such case may claim compensa
tion under the act or, in a case when the common law gives a remedy,
may have his action at common law as modified by part A. This
we think is the proper construction to be given to this section. It
follows that compensation was properly awarded to the plaintiff.
W o r k m e n ’s C om p en sa tion — A p p lic a t io n t o
C o n s t i t u t i o n a l i t y o f S t a t u t e — Porter et al. v.
M u n ic ip a lit ie s —
Hopkins et al., Su
preme Court of Ohio (Nov. 11, 1914), 109 Northeastern Reporter,
page 6£9.—This action was brought by various officers of Hamilton
County, the city of Cincinnati, and other subdivisions of the State of
Ohio, against the county treasurer and others to test the constitu
tionality of certain sections of the workmen’s compensation act, the
specific ground alleged being that the difference in the method by
which the amount of premiums was to be paid in the case of the State
and its subdivisions and in the case of other employers was an undue
and unauthorized discrimination. The petition further alleged that
the various municipalities had suffered a deduction from their taxes
for premiums due to the State insurance fund under the provisions
of the act mentioned, and asked that the various officers be enjoined
from proceeding under the act in the making of the deductions com
plained of.
The opinion, which was written by Judge Johnson, quoted the con
stitutional amendment of 1912, which authorized the legislature to
pass compulsory compensation legislation and to provide for a classi
fication of occupations. Judge Johnson then called attention to the
fact that the statute under consideration is an amendment of the
original act of 1911, enacted since the constitutional amendment
above, and continued:
This court in State ex rel. v. Creamer. 85 Ohio St. 349, 97 N. E. 602
[Bui. No. 99, p. 698], in upholding the constitutionality of that
statute, pointed out that it was not compulsory or coercive, but that,
while it did not compel the employer and employee to operate under
DECISIONS OP COURTS AFFECTING LABOR.
207
its provisions, inducements were held out in the enactment to facili
tate and make desirable its acceptance by both.
It is manifest that the purpose [of the amendment to the consti
tution] was to leave no doubt as to the power of the legislature to
ass a compulsory act providing for an insurance fund which should
e contributed to by employers only. The section further provides
that the laws so passed may provide for the taking away of any or
all rights of action or defenses from employees and employers sub
ject to certain conditions named. It is then provided that laws may
be passed establishing a board which may be empowered to classify
all occupations according to the degree of hazard, to fix rates of con
tribution to such fund according to such classification, and to collect,
administer, and distribute such fund and determine all rights or
claimants thereto.
The State and its subdivisions and public employees are entirely
distinct from employers and employees engaged in private business
occupations. It may well be doubted whether the term “ occupa
tion can be properly applied to the duties of one in the service of
the State. The State and its subdivisions are not engaged in an
occupation in the usual acceptation of that term. The political sub
divisions of the State are merely instrumentalities to carry out the
purposes of government, and their liabilities are entirely different
in their nature and scope from those of employers in private busi
ness. Section 20 of the law provides that the board shall keep a
separate account of the money paid into the State insurance fund
by the State and its subdivisions and the disbursements therefrom
on account of injuries to public employees. The board is further
required by section 17 to communicate to the general assembly
on the first day of each regular session an estimate of the amount
necessary to be contributed to the fund by the State during the next
two years. These provisions are obviously for the purpose of ena
bling the legislature to provide such ar insurance fund for the
employees of the State and its subdivisions as would be sufficient to
maintain the separate account above indicated. We think it clear
that there has been no conflict raised between the sections of the
statute named and the constitutional provision quoted.
The opinion then took up the contention that the act amounted to
a diversion of taxes from the purpose for which they were levied,
contrary to the provisions of the constitution of the State, as to
which it said:
No such invalidity exists in the act we have under examination.
It fixes a certain charge or debt which is to be paid by the several
subdivisions named, the amount of which is to be deducted from
the taxes collected before they are distributed by the proper minis
terial officers. The maintenance of contingent and general funds
for general purposes is provided for by statutes which are familiar.
The municipal and other subdivisions are fully empowered to raise
such funds. It would be wholly impracticable to specifically name
in the different budgets the amount to be raised for each specific
item. There are many incidental charges which are necessarily
taken care of out of the funds of the character referred to as the
K
208
BULLETIN OF THE BUREAU OF LABOR STATISTICS.
needs arise. The fact that the amount raised does not meet the exact
requirements from time to time, and that some inconvenience may
arise, does not affect the validity of the statutory requirements.
W o r k m e n ’ s C o m p e n s a t io n — A w a r d of L u m p S u m — McCracken v.
Missouri Valley Bridge & Iron Co., Supreme Court of Kansas (July
28, 1915), 150 Pacific Reporter, page 832.—George M. McCracken
was a common laborer in building a bridge and was in the employ of
the company named. On December 29, 1914, he was killed in the
course of his employment. Employer and employee were subject
to the provisions of the workmen’s compensation act. His wages
were 25 cents per hour and he worked eight hours per day. Ellen
McCracken, the mother and sole heir of the employee, proceeded
against the company for compensation, and procured an award of a
lump sum of $1,872, which was the amount of the earnings of the
employee for three years at the rate of $2 per day.
The statute provides that in case the employment has been for less
than one year the yearly earnings will be determined by taking 52
times the average weekly earnings for the time during which the
employment is continued. The company attempted to construe this
as allowing only one year’s earnings in such a case; and also con
tended for periodical payments. Judge Burch, who delivered the
opinion, after quoting the provisions of the statute, said:
It will be observed that the amount of compensation is three times
the workman’s earnings for a year. Anticipating that difficulty might
be encountered in computing earnings for a year, the legislature pro
vided a rule which applies to the facts of the present case. The period
of the workman’s employment with the defendant was less than
a year, in fact less than a month within the year preceding his
death. Therefore the amount of his earnings for a year were deemed
to be 52 times his average weekly earnings during the period he was
in the defendant’s service. His average weekly earnings were $12.
Fifty-two times this amount are $624, earnings for a year. Three
times this sum are $1,872, the amount of compensation and the
amount of the judgment. It is said that judgment should not have
been rendered in a lump sum, but that the plaintiff should have been
awarded periodical payments according to her necessities, so that,
in case o f her death, any unpaid balance would be saved to the de
fendant. The statute leaves the character of the judgment to the
discretion of the trial court.
“ The judgment in the action, if in favor of the plaintiff, shall be
for a lump sum equal to the amount of the payments then due and
respectively due under this act, with interest on the payments overue, or, in the discretion of the trial judge, for periodical payments
as in an award.” (Laws 1911, ch. 218, sec. 36.)
In this case there is no possible hope for improvement like restora
tion of earning capacity to an injured workman. The son is dead.
S
DECISIONS OP COURTS AFFECTING LABOR.
209
The mother was entirely dependent upon his earnings for her own
continued existence, independent of charity. She is utterly destitute.
She has no income or sources of income of her own. She is physi
cally unable to earn her own living, and she is 62 years old. The
statute gave her $1,872. With this sum she must establish herself
according to her helplessness, and then employ the remainder so that
it may last to the end of her days, for she will never have any more.
Probably the plaintiff can not attain her life expectancy, and the
insurance company wants this judgment doled out to her in install
ments “ as her necessities require ” so that, should she die soon, part
of the judgment will not have to be paid.
The case was a typical one for the substantially automatic operation
of the workmen’s compensation law, and the bridge company was
anxious to make compensation at once to the plaintiff for tne loss of
her sole means of support. But the insurance company informed the
defendant that liability should be established in tne court of last re
sort or the indemnity the defendant had purchased would not be paid.
So an appeal had to be taken. Five grounds were stated. The first
was that the judgment was contrary to the evidence, which, of course,
was too frivolous to serve even as makeweight. The other four pre
sented in four different ways the stale subject of judgment for a lump
sum. It is submitted that the statute quoted above relating to the
form of the judgment in compensation cases is too plain and unam
biguous for fair minds or ordinary acumen to differ respecting the
power conferred. This court had patiently spelled out time and
again the legislative meaning and purpose, which were already too
clear to be misconceived, and the attorney for the defendant had too
much respect for himself and for the court to argue the matter. The
point concerning the amount of the judgment, which is too much
dignified by calling it a point, was pressed into service at the hearing.
The court does not possess adequate means of dealing with this
kind of lawlessness. The attorney for the defendant, who signs the
papers, is not amenable to discipline, because he was acting under
duress of the peril to his client, who he assured the court was and
always has been anxious to pay. The real culprit is not in court or
subject to process. Because appeals of this kind, serving no purpose
except to oppress claimants and to frustrate the law, are common in
compensation cases, the court has adopted the practice of disposing
of them summarily on motion to dismiss for want of merit.
Some time must be consumed even when this course is pursued. In
this instance, by means of an utterly groundless resistance of payment
accomplished by an abuse of judicial proceedings, the plaintiff will
have been kept out of her money for the greater part of a year.
Insurance companies say they are preyed upon by “ snitch ” lawyers
who secure lump-sum judgments for permanent injuries to the spine.
I f this be true in some instances, the course pursued in this case is
not less disreputable and affords no remedy. It is quite possible that
district courts have sometimes hesitated to render judgments for com
pensation payable in installments because of the practical certainty
that workmen would be hounded into unjust compromises by one pro
ceeding after another brought nominally to test restoration to earning
capacity.
26071®—Bull. 189—16---- 14
210
BULLETIN OP THE BUREAU OF LABOR STATISTICS.
W o r k m e n ’s
C om p en sa tion — B e n e fit s — C o n c u r r e n t
A w a rd s —
Fredenburg v. Empire United Railways Co., Sv/preme Court of New
York, Appellate Division, Third Department {July 1, 1916), 164
New York Supplement, page 361.—Guy Fredenburg was injured
November 7,1914, while in the employ of the company named, as a
motorman, while removing a trolley pole from its socket. The pole
came in contact with the trolley wire, and severely burned Fredenburg’s feet and hands, the injuries in the case of the right foot, which
was in contact with the socket at the time, necessitating its amputa
tion. The compensation commission affirmed awards of $13.46 per
week—two-thirds of the weekly wage—for 205 weeks for the loss
of the foot, and of $13.46 per week, to run concurrently, for 14
weeks up to February 27,1915, to which date it was found he would
have been totally disabled by the other injuries, independent of that
to the right foot. The court held that this was erroneous, as appears
from the following quotation from the opinion delivered by Judge
Lyon:
The act provides but the single rate of compensation, to wit, 66f
per cent of the employee’s average weekly wages; and this percentage
for a longer or shorter period is applicable to all disabilities, whether
total or partial, and is the maximum compensation provided for by
the statute. The act was not intended as a source of profit to the
employee, or as a means of punishment of the employer, who in
many cases is wholly free from any fault in connection with the acci
dent. If concurring awards may be allowed, it is easy to see how that
practice may be carried to such an extent as to become very burden
some and unjust to the employer and very unfortunate to an imrovident employee, and to a considerable extent render nugatory the
eneficent purpose of the statute.
While the commission has found that the injuries other than those
resulting in the loss of the foot have disabled the claimant from
working until January 28, the date of the report, and has awarded
compensation therefor to February 27, 1915, and has continued the
case for further hearing, there is no finding that such disability is
permanent, as would be the case in the event of the loss of a thumb or
finger, or that the disability will exist at the expiration of the period
of 205 weeks.
The award of compensation for the loss of the foot should be af
firmed. The award of compensation for injuries other than the loss
of the foot should be reversed, but without prejudice to the further
continuance of the case, and to the right of the claimant to make
further application to the commission, or its successor, for an award
of compensation on account of such other injuries.
E
W o r k m e n ’s C om p en sa tion — B e n e fit s — E f f e c t op P o ssible O pe r
a t io n —Feldman v. Braunstein, Supreme Court of New Jersey (Mar.
29,1916), 93 Atlantic Reporter, page 679.—Samuel Feldman brought
DECISIONS OF COURTS AFFECTING LABOB.
211
action against Charles Braunstein under the workmen’s compensa
tion act. Judgment was for the petitioner in the court of common
pleas of Hudson County. The judge found that the injury was
temporary in character if an operation was performed, but that if
an operation was not performed the injury was permanent, and
amounted to 90 per cent of the loss of an eye. He therefore de
termined that the injury was temporary, and that the petitioner was
entitled to compensation during the disability, not to exceed 300
weeks. The compensation for loss of an eye is for 100 weeks. The
supreme court reversed the judgment, holding that compensation
should be for the last-named period on a bads of permanent dis
ability, as the determination could be based only upon the facte
before the court and existing at that time, without reference to the
probable effects of an operation. It pointed out that if the operation
was had and the disability cured prior to 100 weeks, a modification
of the decree reducing the period of compensation might be secured
by petition.
W o r k m e n ’s C om p en sa tion — B e n e fit s — Im p a irm e n t o f
A rm —Northwestern Fuel
U se op
Co. v. Leipus et al., Supreme Court of Wis
consin (June 1, 1915), 152 Northwestern Reporter, page 856.—One
Leipus was injured while in the employ of the company named, on
October 6, 1913. Both bones of his forearm were broken, and, as
they did not heal readily, several operations were necessary. The
arm finally healed, but remained in a weakened condition. The in
dustrial commission found that the total disability ceased January 3,
1915, and awarded the employee 65 per cent of his previous earnings
for 65 weeks up to that date; and finding also that thereafter he
would “ have a forearm that is functionally 50 per cent of a normal
forearm,” it awarded him the same weekly amount for 100 weeks
additional, being one-half the length of time for which the amount
would by the workmen’s compensation law be awarded for “ the loss
of an arm at the elbow,” or for paralysis of the same. The question
was whether subdivision 5 of section 2394-9 of the statute, containing
a schedule of awards for specified injuries, had been correctly con
strued in making this decision. The court reversed the judgment,
and remanded the cause for further proceedings, holding that, the
provisions of the subdivision in question being so definite, there was
no room for an award for mere impairment of function under it,
but that the award in such a case should be made under the provisions
of the previous subdivisions alone, which provide for “ such benefit
as shall fairly represent the proportionate extent of impairment of
earning capacity.”
212
BULLETIN OF THE BTJBEAU OF LABOR STATISTICS.
W o r k m e n ’s C om p en sa tion — B e n e fit s — I n j u r t t o H a n d a n d t o
U p p er A rm—State ex rel. Kennedy et al. v. District Court of Clay
County et al., Supreme Court of Minnesota (Mar. 18, 1916), 151
Northwestern Reporter, page 530.—The district court rendered an
award of compensation in favor of an employee, Alex Rohrenbach,
against his employer Kennedy, and the latter appealed on the ground
of a wrong method of computation of benefits.
The finding of the trial court was that the plaintiff’s right hand
was crushed, and the flesh, muscles and tendons torn, causing a loss
of use of the hand amounting to 85 per cent; and also that the right
arm was injured to the extent of 35 per cent. The benefit for the
total loss of the hand is one-half the wages for 150 weeks, and taking
85 per cent of this period gave the plaintiff, whose weekly wages
were $15, $7.50 per week for 127$ weeks. The period for loss of an
arm being 200 weeks, 35 per cent of this amounted to 70 weeks, and
the two combined, according to the method adopted by the trial court,
made 197$ weeks, or almost the total amount of 200 weeks specified
for entire loss of an arm. The court held this wrong, as the injuries
were evidently quite different from total loss, and held that the
method should have been to estimate the entire injury on the basis of
a percentage of total disability of the arm as a whole. Since the
record did not even make it entirely clear whether or not the dis
ability of the shoulder and upper arm was permanent, the court held
that it could not make this estimate, but the previous judgment was
reversed and the case sent back for further proceedings in accordance
with the principle set forth.
W o r k m e n ’s C om p en sa tion — B e n e fit s —Loss o f F in g e r —Fineman
v. Albert Manufacturing Co. et al., Supreme Court of New York,
Appellate Division, Third Department (Nov. 10, 1915), 155 New
York Supplement, page 909.—Annie Fineman, while operating a
sewing machine in manufacturing underclothing, was injured by a
needle puncturing the third finger of her left hand, which necessi
tated its amputation at the first phalange. Cellulitis of the joints
developed, so that the remainder of the finger, while not removed,
became useless. Two-thirds of wages for 25 weeks is fixed by the
law as the compensation for the loss of a third finger, and it is pro
vided that in other cases of this class, not specifically provided for,
the compensation shall be two-thirds of the difference in earning
capacity during the continuance of partial disability. The compen
sation commission after several hearings had granted the allowance
for 25 weeks, and then made a further award, adopting the theory of
the claimant that there was not a “ loss” of the finger, so that the
provision for “ other cases,” permitting payments for wage loss, be
came operative. The court reversed this award, holding in accord
DECISIONS OF COURTS AFFECTING LABOR.
213
ance with the contention of the defendants, that the condition
amounted to a loss of the finger, and that the amount of compensa
tion under such circumstances should certainly not be more than that
for the complete loss by amputation.
W o r k m e n ’s C om p en sa tion — B e n e fit s — Loss o f H a n d — Rockwell
v. Lewis et oil., Supreme Court of New York, Appellate Division,
Third Department (July 1,1915), 154 New York Supplement, page
898.—Judge A. Rockwell was injured while in the employ of John L.
Lewis. The employer and insurer appealed from an award of com
pensation. In December, 1914, the compensation commission deter
mined that the claimant had lost the index, second, and third fingers,
and that his fourth finger was mutilated. For the four injuries they
allowed respectively 46,30,25, and 4 weeks, aggregating 135 weeks at
$11.54 per week, or $1,757.90. Subsequently, in February, 1915, the
commission again took up the case, reached the conclusion that the
employee had lost the use of his hand, and made an additional allow
ance, bringing the total time up to 244 weeks. The employer and in
surer urged that the commission had no power to make awards other
than those specifically provided for by the statute for the loss of the
separate fingers. The court, however, affirmed the later award, hold
ing that a finding of permanent loss of use of the hand, which is made
by the statute equivalent to the loss of the hand, was justified by the
facts.
W o r k m e n ’s
C om p en sa tion — B e n e fit s — M e d ic a l
T rea tm en t—
Massachusetts Bonding <&Insurance Co. v. Pillsbury et al., Supreme
Court of California (Aug. 5.1915), 151 Pacific Reporter, page 419.—
This was a proceeding under the compensation act by L. D. Taylor
against the Kissel Car Co., his employer, and the insurance company
named, and an appeal was taken from an award made by the commis
sion, of $175.34 plus the reasonable value of medical and surgical
services. The employee, while working as a machinist upon automo
biles, caught his little finger in a gear and it was crushed, and later
amputated at the distal joint. The award was for 2f per cent of a
total disability, or for 65 per cent of weekly wages for 11 weeks.
Besides constitutional objections to the law, which were settled by
the case of Western Indemnity Co. v. Pillsbury, 151 Pac. 398 (see
p. 229), the company contended that the commission was not author
ized by the act to award compensation for less than 10 per cent
partial permanent disability. This was based on the language of sub
divisions 5 and 6 of section 15 of the act, but the point was overruled
by the court; since, though the lowest rate of disability named is 10
214
BULLETIN OP THE BUBEAU OP. LABOB STATISTICS.
per cent, allowances are authorized for disabilities “ intermediate to
those fixed” by the schedule, and this was construed as permitting
allowances for minor injuries. (An amendment of 1915 adds a pro
vision allowing for a 1 per cent disability.) It was also held that
the insurer was bound to pay for the medical and surgical treatment,
where the employee had objected to the first physician furnished by
the employer, had found another, to whom he was sent, out of town,
and had finally gone to his family physician.
W o r k m e n ’s C o m p e n s a tio n — B e n e f i t s — P a r t i a l
D is a b ilit y —
Hirsckkom v. Fiege Desk Co. et al., Supreme Cowrt of Michigan,
(Jan. 29, 1915), 150 Northwestern Reporter, page 851.—While he
was operating a machine for the company named, a piece of emery
flew into the eye of the employee Hirschkorn. The emery was re
moved, but inflammation and iritis set in, and he was totally in
capacitated for nine weeks. A scar on the cornea over the pupil
remained, which diminished the vision of that eye between onethird and one-half. The employee, however, went to work at the
same employment and wages as before. The board awarded him
compensation for the total disability, and for 35 weeks in addition
for partial disability, as the fair proportion of the 100 weeks pro
vided for the entire loss of an eye.
Section 10 of the workmen’s compensation act of Michigan, relat
ing to partial disability, provides for payment of one-half the dif
ference between the wages which the injured employee earns after
the injury and that previously earned, and also contains a schedule
of payments for specific injuries, which does not mention injuries
to the eye less than total loss of vision. Since neither of these pro
visions applied to the present case, the court held that the addi
tional compensation should not be allowed.
W o r k m e n ’s C om p en sa tion — B e n e fit s — “ P e r m a n e n t ly In c a p a
b le o f U s e ” —Floccher v. Fidelity <& Deposit Co. of Maryland,
Supreme Judicial Court of Massachusetts (May 19, 1915), 108
Northeastern Reporter, page 1082.—Frank Floccher was granted
certain compensation by the industrial accident board, and the
insurer appealed. The employee’s right hand was capable of a
small amount of motion in the thumb and first finger, while the
other fingers were paralyzed, and the circulation impaired so that
the hand frequently went to sleep. The court affirmed the decision
giving compensation for loss of a hand, holding that it was perma
nently incapable of use, since the possible use was so small as to be
DECISIONS OF COURTS AFFECTING LABOB.
215
negligible. It also held that the evidence that an operation might
improve the condition was so slight that the claimant could not be
required to submit to it on peril of forfeiture of his compensation.
W o r k m e n ’s C om p en sa tion — B e n e fit s — T e m p o ra ry a n d P e rm a
n e n t D i s a b il it y —Maziarshi v. George A. OKI <& Co., Court of
Errors and Appeal* of New Jersey (Nov. 16, 1914), 98 Atlantic
Reporter, page 110.—Joseph Maziarski was injured, and brought
action against the employer under the workmen’s compensation act.
The opinion of the court states the facts and the method of comput
ing the compensation adopted by it as the correct one, as follows:
The plaintiff suffered injuries to the index finger and the middle
finger of the left hand. That to the index finger was found by the
judge to be temporary, and he awarded 50 per cent of the plaintiff’s
wages for six weeks, during which the injury prevented the use of
the finger. He found the injury to the other finger to be equal to the
loss of one-half the phalange of that finger; as the plaintiff’s wages
were $15, the amount allowed for the loss of a finger would have
been $7.50, and one-half of that, the amount allowed for the loss of
a phalange, would have been $3.75; and an injury, equal as this was
found to be, to the loss of one-half of the phalange, would, under the
clause providing for a proportionate compensation, be entitled to
one-half of $3.75. The judge, however, held the clause providing
for a minimum compensation of $5 to be applicable, and fixed that
amount for 30 weeks as the proper compensation. We have just sus
tained this view in James A. Banister Co. v. Kriger, 89 Atl. 923
[Bui. No. 152j p. 178]. The allowance of compensation for both the
temporary injury and the permanent injury has been sustained in
Nitram Co. v. Court of Common Pleas, 84 N. J. Law, 243, 86 Atl.
435. That distinct damage may be allowed for injury to each finger
is sufficiently indicated by the provision of the statute that the
amount received for more than one finger shall not exceed the amount
provided in the schedule for the loss of a hand.
W o r k m e n ’s C om p en sa tion — B e n e fit s — T e m p o ra ry a n d P e rm a
n e n t D i s a b il it y — Vishney v. Empire Steel <& Iron Co., Supreme
Court of New Jersey (Aug. 7, 1915), 95 Atlantic Reporter, page
148.—John Vishney petitioned for compensation against the com
pany named, his employer, and the company appealed from a judg
ment fixing compensation. The employee was blinded by a powder
blast, which resulted in the loss of four-fifths of the use of both
eyes. His average wages were $11.66 per week. The accident oc
curred December 15,1913. Two hearings were had upon the matter.
At the first, on April 27, 1914, medical witnesses testified that the
conjunctivitis from which the employee was suffering would, in their
opinion, yield to hospital treatment in three months. The employee
216
BULLETIN OF TH E BUREAU OF LABOR STATISTICS.
was therefore at this time awarded, for temporary disability, onehalf his weekly wages from the time of the accident to that of the
hearing to be paid in a lump sum, and the same weekly amount, $5.88,
to be paid weekly for 13 weeks additional. Leave was given him to
apply to the court at the end of that time if a cure had not been
effected. This he did, and it was shown that permanent disability
existed to the extent of 80 per cent of the use of each eye. The
schedule compensation for the loss of one eye being 50 per cent of
wages for 100 weeks, he was awarded this compensation for 80 weeks
for each eye, or 160 weeks in all, to run from the termination of the
payments for temporary disability on July 27,1914.
The employee claimed that it was erroneous to find that the tem
porary disability ceased on July 27,1914. The court held that there
were facts to warrant such a finding, and defined temporary dis
ability in the following language of Judge Kalisch:
Temporary, as distinguished from permanent, disability, under
the workmen’s compensation act, is a condition that exists until the
injured workman is as far restored as the permanent character of the
injuries will permit. An apt illustration is a case where there has
been a loss of both arms. The temporary disability to be considered
in such an instance is the physical state of the patient until the
stumps are healed and he is able to get about. The actual disability
to do effective work is the same in either case and continues for life.
(Birmingham v. Lehigh & Wilkes-Barre Coal Co., 95 Atl. 242.)
That compensation for the permanent disability had not been
awarded for a long enough period was determined by the court as
follows:
In the present case it was not ascertained until the second hearing
whether or not the prosecutor’s injuries would be of a permanent
character.
The trial judge proceeded on the theory that because the com
pensation for the loss of an eye is fixed at 50 per cent of the weekly
earnings for 100 weeks, compensation for the loss of or injury to
each eye should be considered separately under that clause, and,
having found that each eye had lost four-fifths of its usefulness, he
calculated the number of weeks for which compensation should be
made on the bads of an 80 per cent loss of each eye, which would
make 80 weeks for each eye, or a total of 160 weeks for both.
The trial judge evidently overlooked that provision of the statute
which, among other things, provides that the loss of both eyes shall
constitute a permanent disability, and that compensation shall be
made therefor according to clause b.
Reverting to clause b we find that the compensation for the loss
of both eyes shall not exceed 400 weeks. It appearing that there was
a loss of usefulness of both eyes to the extent of 80 per cent the pros
ecutor was entitled to compensation for 320 weeks.
DECISIONS OP COURTS AFFECTING LABOR.
217
W o r k m e n ’s C om p en sa tion — B e n e fi t s — “ W a g e s ” —Smolenski v.
Eastern Coal Dock Co., Supreme Court of New Jersey (Feb. 18,1915),
93 Atlantic Reporter, page 85.—This was an action under the work
men’s compensation act in which the only dispute was as to the amount
of wages on which the compensation should be based. The man was
at the time of the injury employed as a car rider at 25 cents an hour.
At other times he earned larger and smaller rates, and his work was
irregular, so that the employer claimed that his wages should not
be considered to be more tha^i $12.40 per week, while the judge of the
court of common pleas of Middlesex County determined that they
were $15 per week, on the basis of 25 cents an hour for 10 hours a
day and six days a week. Judge Swayze delivered the opinion of
the supreme court affirming this judgment. He discussed the lan
guage of the statute, and concluded:
The language indicates that, in a case where weekly wages are not
fixed, they shall be taken to be six times the daily wages, and that the
daily wages shall be the wages for a working day of ordinary length,
excluding overtime. We think it may fairly be held that the legisla
ture meant that the daily wages should be taken to be what would be
earned by working for the ordinary number of hours, and that the
employee was not to lose by reason of enforced idleness during some
of those hours, nor to gain because on some days he worked overtime.
Wages, the legislature said, must be construed to be the money rate
at which the services were recompensed. What is to be considered
is not the recompense in fact received but the rate which the contract
of hiring fixed, whether that rate was in fact realized for the whole
time or not. We think that in an employment and a community
where the regular working week was six days of 10 hours each, and
the workman was paid 25 cents an hour, the natural conclusion of
most men, if they tried to reduce the hourly rate to a weekly rate,
would be that the weekly rate was $15. The truth is there is no
weekly rate, but we are forced by the statute to fix one in order to
determine the compensation to which the workman or his dependents
are entitled. Under this compulsion we can think of no better
method.
W o r k m e n ’s C o m p e n s a t io n — CoNSTmmoNAUTT o f S t a t u t e —
Memphis Cotton Oil Co. v. Tolbert, Court of Civil Appeals of Texas
(Dec. 5,1914), 171 South/western Reporter, page 309.—A. T. Tolbert
brought action against the company named for compensation for in
juries suffered in its mill. Judgment was for the plaintiff in the
district court of Hall County, and the company appealed, a large
number of assignments of error being considered. Only those having
to do with the constitutionality of the workmen’s compensation law
will be noticed here, the law being upheld as to all points raised in
218
BULLETIN OF THE BUREAU OF LABOR STATISTICS.
this case. The company asserted that the act was unconstitutional for
the following reasons:
(a) It is in conflict with section 35, article 3, of the constitution
of the State, in that the subject of the act is not expressed in the
title thereof, and for the reason that said act contains more than one
subject; (b) it is unconstitutional and in violation of the fourteenth
amendment to the Constitution of the United States, which provides
that no State shall “ deny to any person within its jurisdiction the
equal protection of the laws” ; (c) it violates the fourteenth amend
ment of the Constitution of the United States, and section 19, article
1, of the constitution of the State of Texas, in that the act authorizes
the taking of the property of a citizen and depriving him of his lib
erty without due process of law; (d) the act is contrary to public
policy, and is not within the police power of the State; (e) it is in
violation and contrary to article 12, sections 1, 2, of the constitution
of the State of Texas, which provides:
“ No private corporation snail be created except by general laws.
General laws shall be enacted providing for the creation of private
corporations.”
The act undertakes to create by special enactment a private corpo
ration to be known as the “ Texas Employers’ Insurance Associa
tion.”
In discussing the point raised by (a), the court, speaking by Judge
Huff, quoted the title and a part of the act, summarizing the pro
visions of the remainder, and discussed them, concluding as follows:
We have concluded that the subject of the act is stated in the title,
and that there is not more than one subject contained therein. The
ends to be reached are more than one, but all relate to the employer’s
liability and the proceedings for the compensation of certain employ
ees, etc. The employer is liable when he is not a subscriber to tne
insurance association, and the act then further provides what com
pensation the employee may receive from the association when the
employer is a member thereof.
As to the remaining contentions Judge Huff said:
Subdivisions b, c and d have been fully answered by the courts
of the State in various decisions. They have held a similar stat
ute relating to the employees of railroads not in violation of the
fourteenth amendment to the Constitution of the United States,
and we think the reasons advanced in those cases applicable to
this. [Cases cited.] We think the Supreme Court of the United
States nas answered the appellant’s proposition that the act in ques
tion is contrary to the Constitution of the United States, in that it
is class legislation, and that it makes an arbitrary division of the
employees, and that the act is contrary to public policy, and author
izes ttie taking of the property of the citizen, etc. It is held by that
court that no one has a vested right in the common law. “ The
law itself may be changed at the will of the * * * legislature,
unless prevented by constitutional limitations.” If the appellant
had been possessed of property created by the common law, the legis
lature could not deprive it of such property by changing the law,
but that is not this case. (Mondou v. Bailway Co., 223 U. S. 1, 32
DECISIONS OF COURTS AFFECTING LABOR.
219
Sup. Ct. 169 [Bul. No. 98, p. 470]; Aluminum Co. v. Ramsey, 222
U. S. 251, 32 Sup. Ct. 76.)
Subdivision e asserts that the act is unconstitutional, because it
violates article 12, sections 1, 2, of the constitution of this State.
We shall not discus3 the question of what is a general law within
the meaning of the provision of the constitution, but it will, we
think, be sufficient to say that, if the sections of the act authorizing
the creation and regulation of Texas Employers’ Insurance Associa
tion are unconstitutional because not authorized under the general
incorporation law of this State, the sections of the law involved in
this suit are not so connected with the insurance sections as to render
void the sections relating to contributory negligence, assumed risk,
and fellow servant.
It is a well-recognized principle that an act may be unconstitu
tional, and therefore void, as to some of its provisions and valid as
to others. I f the insurance sections are repugnant to the constitu
tion and should be stricken out, yet, if that which remains of the act
and which are involved in this suit are complete within themselves
and capable of being executed in accordance with the legislative
intent, then such parts so remaining should be held valid. [Cases
cited.] We think the sections relating to insurance of employees
may be so eliminated from the act, if they should be held repugnant
to the constitution, without impairing other sections of the act in
question. We do not wish to be understood as holding that the sec
tions relating to insurance associations are unconstitutional. We
do not pass on that question at this time, for the reason that we do
not think it necessary in order to hold the other portions valid. This
assignment will be overruled.
W o r k m e n ’s
C om p en sa tion — C o n s t it u t io n a l i t t
of
S ta tu te —
Middleton v. Texas Power <fb Light Co., Court of Civil Appeals of
Texas (Jan, W, 1915), 178 Southwestern Reporter, page 956.—
Charles Middleton brought action against the company named for
damages for personal injuries, claimed to be the result of its negli
gence. The company pleaded that it, as an employer, had complied
with the requirements of the workmen’s compensation act of the
State, known as the employers’ liability act, and asked that the suit
be dismissed. The plaintiff charged that the act was unconstitu
tional and void. The trial court dismissed the action, and the plain
tiff appealed. The court of appeals, speaking by Judge Key, said in
regard to the action of the lower court.:
If that portion of the employers’ liability act which prescribes that
when an employer has complied with the requirements of the act his
employees shall have no right of action against him for damages
for personal injuries is unconstitutional and void as to nonconsenting
employees, then the trial court committed error when it sustained the
plea in abatement.
A synopsis of the provisions of the act was then given by the court,
and the opinion, which reversed the decision of the court below, hold
220
BULLETIN OF TH E BUREAU OF LABOR STATISTICS.
ing that the part of the act mentioned is unconstitutional and that
the employee has a right to bring suit under the common law, reads
in part as follows:
We have reached the conclusion that so much of the statute here,
involved as undertakes to deprive an employee of what otherwise
would be his cause of action against his employer is unconstitutional
and void; but as the jurisdiction of this court is not final, and as the
case will go to the supreme court, we shall not undertake to decide
other constitutional questions. Our reason for holding that the pro
vision of the statute referred to is unconstitutional is based upon the
fact that it leaves it optional as to the employer, and makes it com
pulsory as to the employee when the employer has elected to avail
himself of the benefits of the statute. The Federal Constitution de
clares that no State shall deprive any person of life, liberty, or prop
erty without due process of law, nor deny to any person within its
jurisdiction the equal protection of the laws; and our State constitu
tion, in section 3, article 1, in general terms declares the equal rights
of men.
The constitution also vests in the legislature the exclusive power to
make laws, and therefore that body has no power to delegate legisla
tive authority to any private person. Undoubtedly, the statute here
involved is optional as to the employer—he has his choice and may
or may not become a subscriber, pay premiums, obtain insurance for
the benefit of his employees; and thereby release himself from what
would otherwise be his liability to such employees. It is true that
if he does not pursue that course he loses some of his common-law
defenses, but the fact remains that he has an option and may choose
between two laws concerning himself and his employees and fixing
their respective rights.
We think it is also quite clear that the statute is compulsory as to
the employee, and allows him no choice as to whether he will accept
its terms, or claim his rights as they formerly existed according to
the common law. In other words, the statute presents to the em
ployer two laws, differing widely and radically concerning his liabil
ity to his employee, and permits him to choose, without the consent
of his employee, which of those two laws shall fix the rights of his
employee as against him.
Has the legislature the power to enact a law that embodies such a
fundamental and far-reaching discrimination in favor of the em
ployer and against the employee? After careful and patient con
sideration, we think it is clear that this question must be answered
in the negative, and that feature of the statute be declared un
constitutional.
Other cases were then cited, and especially a number holding the
compensation laws of other States constitutional, the differences be
ing pointed out, and the opinion continues:
In reaching the conclusion and making the decision we have made,
it is deemed proper to say that, inasmuch as the Texas statute pro
vides, in terms, that if any part of it shall be held invalid or inopera
tive no other part or parts shall be affected thereby, we do not hold
that the entire act is invalid or inoperative; but merely hold that,
DECISIONS OP COURTS APPECTTNO LABOR.
221
unless it be shown that the appellant in this case, who is an employee
suing his employer, has consented to accept the terms of the Texas
act relating to employers’ liability, he has not lost his common-law
right of action. In so far as our decision is concerned, and unless
the law is unconstitutional in other respects, we see no reason why
it may not stand in force and be administered for the benefit of con
senting employers and employees.
The judgment was therefore reversed and the case remanded for a
new trial.
W o r k m e n ’s C o m p e n s a tio n — C o n s t it u t i o n a l it y o p S t a t u t e —
C o n s t r u c t io n — S te a m s h ip L in e s O p e r a te d in I n t e r s t a t e C om
m e r c e —Jensen
v. Southern Pacific Co., GouH of Appeals of New
York (July IS, 1915), 109 Northeastern Reporter, page 600.— M a rie
Jensen p r o ce e d e d
u n d e r th e w o rk m e n ’s co m p e n sa tio n la w a g a in st th e
S o u th ern P a c ific C o ., a s e m p lo y e r a n d s e lf-in s u r e r , f o r th e d ea th o f
h e r h u sb a n d , w h o w a s k ille d A u g u s t 1 5 ,1 9 1 4 .
H e w a s e m p lo y e d in
El Oriente, a lo n g s id e
a p ie r in th e H u d so n
u n lo a d in g th e stea m sh ip
R iv e r . T h is v e ssel w a s o w n e d b y th e r a ilr o a d co m p a n y , a n d it s ro u te
w a s b etw een N ew Y o r k a n d G a lv e sto n . I t d id n o t a p p e a r th a t it
w a s o p e ra te d in c o n n e c tio n w ith a lin e o f r a ilr o a d , a n d in its r e p o r t
o f th e a ccid e n t th e co m p a n y sta te d it s b u sin ess t o b e “ tra n s p o rta tio n
b y stea m sh ip s e n g a g e d w h o lly in in te rsta te com m erce.” T h e a p p e l
la te d iv is io n a ffirm ed a n a w a rd in fa v o r o f th e p e titio n e r , a n d th e
co m p a n y a p p e a le d o n g ro u n d s sta te d in th e o p in io n , w h ich w a s d e liv
e re d b y J u d g e M ille r , w h o a ffirm ed th e a w a rd , w h ich is q u o te d a t
som e le n g th b e lo w :
We are required, on‘this appeal: First, to construe the workmen’s
compensation law (chap. 67 of the Consolidated Laws; L. 1914, ch.
41) in so far as it relates to this case; and, second, to determine its
constitutional validity. The scheme of the statute is essentially and
fundamentally one by the creation of a State fund to insure the pay
ment of a prescribed compensation based on earnings for disability
or death from accidental injuries sustained by employees engaged in
certain enumerated hazardous employments.
By insuring in the State fund, or by himself or his insurance car
rier paying the prescribed compensation, the employer is relieved
from further liability for personal injuries or death sustained by
employees. Compensation is to be made without regard to fault as a
cause of the injury, except where it is occasioned by the willful
intention of the injured employee to bring about the injury or death
of himself or another, or results solely from his intoxication while
on duty.
The particular provisions requiring construction are the following:
“ Sec. 2. Application.—Compensation provided for in this chapter
shall be payable for injuries sustained or death incurred by em
ployees engaged in the following hazardous employments: * * *
“ ‘ Group 8. The operation, within or without the State, including
repair, of vessels other than vessels of other States or countries used
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BULLETIN OP THE BUBEAU OP LABOR STATISTICS.
in interstate or foreign commerce, when operated or repaired by the
company. * * *
“ ‘ Group 10. Longshore work, including the loading or unloading
of cargoes or parts of cargoes of grain, coal, ore, freight, general
merchandise, lumber or other products or materials, or moving or
handling the same on any dock, platform or place, or in any ware
house or other place of storage.’ ”
“ S ec . 114. Interstate Commerce.—The provisions of this chapter
shall apply to employers and employees engaged in intrastate, and
also in interstate or foreign commerce, for whom a rule of liability
or method of compensation has been or may be established by the
Congress of the United States, only to the extent that their mutual
connection with intrastate work may and shall be clearly separable
and distinguishable from interstate or foreign commerce, except that
such employer and his employees working only in this State may, sub
ject to the approval and in the manner provided by the commission
and so far as not forbidden by any act of Congress, accept and be
come bound by the provisions of this chapter in like manner and
with the same effect m all respects as provided herein for other em
ployers and their employees.”
It is claimed that loading and unloading are included in “ oper
ation,” and that therefore the case falls within group 8, which ex
cepts vessels of other States or countries used in interstate or foreign
commerce, but the specific enumeration of longshore work in group
10 excludes such work from the other group.
It is next claimed that the statute was not intended to apply to
employment in interstate or foreign commerce, and that in case of
doubt that construction should be adopted, for otherwise it would
offend against the commerce clause of the Federal Constitution by imosing a burden upon such commerce. The latter claim will be noticed
rst. The statute does not purport directly to regulate or impose a
burden upon commerce, but merely undertakes to regulate the rela
tions between employers and employees in this State. Such regula
tion may, and no doubt does, indirectly affect commerce, but to the
extent that it may affect interstate or foreign commerce it is plainly
within the jurisdiction of the State, until Congress by entering the
field excludes State action. [Cases cited.]
Literally construed, section 114 makes the statute apply only to
intrastate work, either done by itself or in connection with, but
clearly separable and distinguishable from, interstate or foreign
commerce. But, though the section is awkwardly phrased, it is
manifest that a broader application was intended, else the clause
“ for whom a rule of liability or method of compensation has been
or may be established by the Congress of the United States” is
meaningless. The legislature evidently intended to regulate, as far
as it had the power, all employments within the State of the kinds
enumerated. The earlier sections are in terms of general application,
and section 114, which is headed “ Interstate Commerce,” is one of
limitation, not of definition. Its obvious purpose was to guard
against a construction violative of the Constitution of the United
States. Again, the spirit, not the letter, must control. If it had
been intended to confine the application of the act to intrastate work,
the legislature would doubtless have said so in a sentence. The
words may be ” should be construed in the sense of “ shall be.”
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DECISIONS OP COUBTS AFFECTING LABOB.
223
One other question in respect of the application of the act remains
to be considered. It is said that the appellant is a carrier by railroad,
and that therefore the Federal Employers’ Liability Act of 1908 pre
scribes the rule governing the employment in which the deceased was
engaged. As far as this case is concerned the appellant is a carrier
by water. Its business is transportation by steamships, which, as far
as appears, may not, even indirectly, be related to transportation by
railroad, certainly not by any particular line of railroad. It is sig
nificant that the earlier Federal statute of 1906 applied to “ every
common carrier ” engaged in interstate or foreign commerce, whilst
the present act applies only to carriers by railroad. There is nothing
in the act indicative of a purpose to apply it to carriage by water, it
it happen to be conducted by a railroad corporation, and not other
wise—to apply one rule of liability to transportation by a steamship
line, if owned and operated by a railroad corporation, and a different
rule to precisely similar transportation not thus controlled. The
Federal act provides a rule of liability of carriers by railroad for
injury or death—“ resulting in whole or in part * * * by reason
of any defect or insufficiency, due to its negligence, in its cars, engines,
appliances, machinery, track, roadbed, works, boats, wharves or
other equipment.”
The words “ boats” and “ wharves” may be given due effect by
applying them to adjuncts or auxiliaries to transportation by rail
road.
Our conclusion, therefore, is that the employment in which the
deceased was engaged was not governed by the Federal statute, that
the workmen’s compensation act applied to it, and that the latter act
is not violative of the Federal Constitution for attempting directly to
regulate or impose a tax or burden on interstate or foreign commerce.
We now come to perhaps the most important question in the case:
Does the act violate the fourteenth amendment to the Constitution of
the United States for taking property without due process of law ?
Much reliance is placed on the decision of this court in Ives v.
South Buffalo Railway Co., 201 N. Y. 271, 94 N. E. 431 [Bui. No.
92, p. 251].
The opinion then discussed the act of 1910, declared unconstitu
tional in the case cited, called attention to the amendment to the State
constitution in 1913, pointed out the differences between the earlier
act and the one now under consideration, and concluded that “ the
two acts are so plainly dissimilar that the decision in the Ives case is
not controlling in this.”
Continuing, Judge Miller said:
Moreover, upon the question whether an act offends against the
Constitution of the United States the decisions of the United States
Supreme Court are controlling. The only one of the numerous
workmen’s compensation acts which appears to have been directly
passed on by the United States Supreme Court is the act of Ohio,
which contained an optional clause. (Jeffrey Manufacturing Co. v.
Blagg, 235 U. S. 571, 35 Sup. Ct. 167 [Bui. No. 169, p. 203].) The
single question decided in that case was that limiting the application
of the act to shops with five or more employees did not result in arbi
224
BULLETIN OP THE BUBEAU OP LABOB STATISTICS.
trary and unreasonable classification. This [New York] act is com
pulsory. The employer is subjected to a penalty for not adopting
one of the three methods of insurance allowed him, and the employee
has no choice at all, except possibly as to whether he will enter one
of the classified employments.
At this point the decision in Noble State Bank v. Haskell, 31 Snp.
Ct. 186, sustaining the Oklahoma law requiring compulsory contri
bution by banks to a fund to guarantee deposits, was commented on
as decisive, the court using practically the same language as was
used by the Supreme Court of Iowa on this point in the Hunter case,
below, and concluding:
We should consider practical experience, as well as theory, in de
ciding whether a given plan in fact constitutes a taking of property
in violation of the Constitution.
Continuing, the court said:
A point was made on oral argument that the act was unconstitu
tional for depriving an employee injured by negligence imputable to
the employer of a right of action for the wrong. It is not accurate
to say that the employee is deprived of all remedy for a wrongful
injury. He is given a remedy. To be sure, the compensation or re
covery is limited, and that in a sense may possibly constitute a
taking; but, if so, it is his contribution to an insurance scheme de
signed for his benefit, and may be justified on precisely the same
rounds as the contribution exacted of the employer has been. When
e enters into the contract of employment, lie is now assured of a
definite compensation for an accidental injury occurring with or
without fault imputable to the employer, and is afforded a remedy
which is prompt, certain, and inexpensive. In return for those
benefits he is required to give up the doubtful privilege of having a
jury assess his damages, a considerable part or which, if recovered
at all after long delay, must go to pay expenses and lawyer’s fees.
This subject should be viewed in the light of modern conditions,
not those under which the common-law doctrines were developed.
With the change in industrial conditions, an opinion has gradually
developed, which almost universally favors a more just and economi
cal system of providing compensation for accidental injuries to em
ployees as a substitute for wasteful and protracted damage suits,
usually unjust in their results either to the employer or the employee,
and sometimes to both. Surely it is competent for the State in the
promotion of the general welfare to require both employer and em
ployee to yield something toward the establishment of a principle
ana plan of compensation for their mutual protection and advantage.
The act now before us seems to be fundamentally fair to both employer
and employee. It is plainly justified by the amendment to our own
State constitution, and the decisions of the United States Supreme
Court, notably in the Noble State Bank case, make it reasonably cer
tain that it will be found by that court not to be violative of the
Constitution of the United States.
f
DECISIONS OF COURTS AFFECTING LABOR.
225
W o r k m e n ’s C om p en sa tion — C o n s t i t u t i o n a l it y o f S t a t u t e —
D e fe n s e s —Hunter v. Colfax Consolidated Coal Co., Supreme Court
of Iowa (Nov. 24, 1915), 154 Northwestern Reporter, page 1037.—
Hunter was a miner in the employ of the company named, and was
injured by a fall of coal. The company was one which might have
been subject to the provisions of the workmen’s compensation act,
but had rejected it. It was agreed that if the company was liable,
the damages amounted to $100 and interest, and judgment was
entered for the plaintiff for that amount, and the company appealed.
One defense made by the company was that the injury was wholly
due to the employee’s own negligence. It requested that the issue
raised by this defense be submitted to the jury for determination,
and this was refused. The company contended that the act, in tak
ing away such a defense, was in violation of the Constitution of the
United States. ‘ The court, however, speaking by Judge Salinger,
held that the act does not take away this right of defense, and that
the trial court had misinterpreted it in this respect
A second contention was to the effect that the act was unconstitu
tional as destroying existing contracts, as to which the court said:
It suffices, for present discussion, that the statute at bar has not a
suggestion that existing contracts are within its contemplation. On
the contrary, it provides expressly that existing conditions are not
to be affected.
The third division lists the objections to the constitutionality of
the act (all of which were ruled upon adversely and the law upheld)
as follows:
The constitutionality of the act is challenged, speaking in general
terms, because:
(1) It interferes with the right to contract generally, and specifi
cally, by fixing a scale of compensation to be made by the employer to
the injured employee.
(2) It makes arbitrary discriminations by means of improper
classifications, and is so improper class law.
(3) It improperly delegates judicial power and substitutes a hear
ing and determination which is not due process of law for the right
to have due hearing in a proper court.
(4) It misuses the taxing power in providing a system by which
the employer takes out insurance to assure payment of compensation
to his employee.
(5) On the whole, it denies due process of law, deprives the de
fendant of property without due process, and abridges the privileges
and immunities of the defendant as a citizen of the United States.
As to No. (1), the right to contract, the provisions regarding waiver
or reduction of liability are mentioned, and the court says:
It is no interference with the right to make agreement that the
legislature enacts what it thinks will prevent the breach of an agree26071®—Bull. 189—16---- 15
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BULLETIN OF TH E BUREAU OF LABOR STATISTICS.
ment entered into. What is taken away is not the right to bargain,
but the right, by deviousness, to break the bargain made.
Speaking of the provision that when influence is exercised by or
on behalf of the employer to secure rejection of the act by the em
ployee such rejection shall be null and void, the court says:
To put the ban upon such influences interferes with no right of
contract, but simply heads off one method of evading and crippling
the act. One underlying purpose of the statute is to promote ac
ceptance by the employee. No valid right is infringed by making
taboo the employment of methods that might press the employee to
reject.
The provision that settlements within 12 days after injury shall be
presumed to be fraudulent is upheld, although declared superfluous in
view of the provision that all settlements reducing the amount of
compensation are void. In concluding the discussion as to the right
to contract, the court says:
There is power in the legislature to abridge the right of contract
in the exercise of what may be termed the general power of com
munity self-defense, the police power.
While the right to contract is a property right, like all other
roperty rights, it is “ subservient to the public welfare,” and may
e taken by the State in a well-directed effort to promote the public
welfare by the exercise of the police power.
This is followed by a citation of instances in which the power re
ferred to has been exercised and upheld.
Coming to objection No. (2), referring to discriminations and
classifications, it is pointed out that the exception of household, do
mestic, and farm laborers and casual employees has been generally
sustained.
As to the classification of employer and employee, and the effect of
acceptance and rejection, Judge Salinger says:
Next, we are asked to hold that the statute contains an improper
classification and an arbitrary differentiation because, as is claimed,
if employer and employee both reject, the employee none the less takes
the benefit of the act, and that^where the master accepts and the em
ployee rejects, the one who rejects gets as much as the one who ac
cepts. We might well dispose of this contention with saying that it
deals with what is not in this case. But, going beyond that, we find
this to be the situation: Section 5 provides that where both reject,
the liability of the employer shall be the same as though the employee
had not rejected. But this does not stand alone. For paragraph B
of section 3 provides that if the employee rejects, he must suffer, in
his suit for injury, that the employer may plead and rely upon “ any
and all defenses, including those at common law, and the rules and
defenses of contributory negligence, assumption of risk, and fellow
servant,” with certain limitations, and section 10 is that compensation
under the act is to be awarded only if both have done what amounts
to acceptance of the act. Construing all together, it is found that the
act does penalize the employee who rejects. That the penalties im
E
DECISIONS OP COURTS AFFECTING LABOR.
227
posed upon the master and the servant may not be precisely the same
is, as will presently be seen, not vital, and does not sustain the broad
assertion made that an arbitrary difference is created as to the con
sequences of conduct which is; in substance, alike.
It may be well said, in passing, that such differences as do exist are
sustained by the quite generally accepted doctrine that the freedom
to contract is only in theory enjoyed Dy the employee as fully as by
his employer, and that the police power may be invoked to sustain
some differentiations in favor of the employee, on the theory that
this is a method of protecting him for the public good against the
actual inequality between him and his employer.
As to No. (3), it is held that there is not an improper delegation
of judicial power, nor a denial of due process of law.
As to No. (4), alleged unjust taxation, the court says in part:
The only inquiry we need address ourselves to is whether the socalled taxation involved in the maintenance of insurance be, if a tax,
or though a tax, a tax for a public purpose, sustained by the police
power; and we think the cases answer in the affirmative, and that
independent thought sustains them.
Cases were then cited, notably the bank deposit guaranty case
(Bank v. Haskell, 219 TJ. S. 104, 31 Sup. Ct. 186), and the opinion
continues:
Granted that employers are compelled to insure and that there is
in that sense a taking, they insure themselves and their employees
from loss, not others. The payment of the required premiums
exempts them from further liability. The theoretical taking, no
doubt, disappears in practical experience. As a matter of fact, every
industrial concern, except the very large ones who insure themselves,
have, for some time, been forced by conditions, not by law, to carry
accident indemnity insurance. Tne difference is that a relatively
small part of the sums thus paid actually reached injured workmen
or their dependents.
We hold the insurance features of the act do not invalidate it.
As to the question of supposed infringement of constitutional
rights raised under No. (5), brief quotations are given herewith:
It is significant, too, that appeal is provided from the decree en
forcing the award on which all save pure questions of fact may be
reviewed. For all practical purposes, the rule prevailing in this
court on the law side—for that matter, the language of the grant in
the Constitution—take from us the power to pass upon pure ques
tions of fact. The elimination of that power is certainly not the
taking of power to review in toto. We hold that though the act does
not in terms provide for judicial revieWj except by said appeal, the
statute does not take from the courts all jurisdiction in the premises.
That statute sanction of agreements which do divest the courts of all
jurisdiction to settle disputes between contracting parties would
nullify such statute is not at all determined by the cases that con
demn such agreement. It is one thing that a particular contract is
void because the law disapproves it; quite another that a law is void
because it approves, rather than disapproves, such contract.
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BULLETIN OF THE BUBEAU OF LABOR STATISTICS.
The true scope of the inquiry is, then, whether our Constitution
prevents the delegation of judicial powers by statute; paraphrased,
inhibits statutory approval of such delegation by contract.
Our investigation has failed to find a case in which contracts
unduly restrictive of the powers of courts have been avoided on the
ground that their making was inhibited by a constitution.
Taking up the matter of removal of defenses, the court says:
There is a general challenge that if the employer rejects the pro
visions of the act he is deprived of certain defenses, and it is put
epigrammatically that he is deprived of practically all defense if he
insists upon his constitutional rights to trial by jury under due
process of law.
Under this head, objections that the defenses of (1) the negligence
of the employee, (2) contributory negligence, (3) negligence of fel
low servant, (4) assumed risks, and (5) the right of trial by jury
(except as to the amount of damages), are taken away from the em
ployer, are reviewed, and the conclusion reached that there is noth
ing unconstitutional in the manner in which the act treats these
matters.
The fourth and last division of the opinion takes up the objection
that the act is unduly coercive in implying acceptance, and in mak
ing presumptively fraudulent compromises entered into within 12
days after the injury. TTith regard to coerciveness in the withdrawal
of privileges in case of rejection, and in conclusion stating its de
cision, the opinion reads:
It comes to this: Can a law be void for coercion which attaches no
penalty to rejection of its provisions other than taking away, in
whole or in part, that which the citizen may lawfully be deprived
of without reference to any statute which might be either accepted
or rejected? If the legislature may validly say: You shall not de
fend with contributory negligence, nor with fault of fellow servants;
you must prove you are not in fault for the injury suffered by your
servant while doing your work; you must effect "insurance so that
your insolvency may not leave him a crippled public charge, or make
a public burden of his dependents; you may contract with each other
to arbitrate summarily, effectively and cheaply, and the award shall
be not more than a stated sum, and you shall not contract for less
payment—^can validly compel all this without enacting a workman’s
compensation act—then how can the saying that these things you
shall lose and these things you shall do unless you accept the act be
undue compulsion ?
One who is at liberty to do or not to do a thing can always say,
I will not do what I can refuse to do, with or without reason, unless
rou do what I demand. There can be no coercion in the sight of the
aw effectuated by doing or not doing what one has the absolute right
to do or not to do, no matter what terms are attached to doing or
refraining. The only penalty for nonacceptance of this act is the
infliction of what the legislature may do in any event. This is not
invidious compulsion.
}
DECISIONS OF COUBTS AFFECTING LABOB.
229
The trial court erred in holding the act precluded the defense that
the employer is in no wise at fault for the injury charged to him.
For this, reversal must ensue. The cause is remanded to enable ap
pellant to make such defense, assuming the burden of proof thereon,
and to plead contributory negligence by way of mitigation of dam
ages, if advised to do either. In all other respects, the decision below
is right, and the validity of the statute under consideration is hereby
affirmed.
W o r k m e n ’s C om p en sa tion — C o n s t i t u t i o n a l it y o f S t a t u t e — I n
j u r y A r is in g o u t o f a n d i n t h e C ou rse o f E m p lo y m e n t— F o re m a n
I n ju r e d b y A s s a u lt o f W o r k m e n — Western Indemnity Co. v. Pills-
bury et al., Supreme Court of California (Sept 2,1915), 151 Pacific
Reporter, page 398.— L . E u d d er proceeded against h is em p loyer, the
O cean S h ore E a ilro a d C o., and its insurer, th e W estern In d em n ity
com pensation un der the C a liforn ia act o f 1913, k n ow n as the
B oy n ton A c t. C om pensation w as aw arded, and th e insurer b rou gh t
the case to th e suprem e cou rt b y means o f a w rit o f certiorari.
Co., f o r
Eudder was foreman of a crew of 15 or 20 section hands, mostly
Greeks. According to the findings of the industrial accident com
mission Eudder, on the 12th of April, 1914, observed that one Pappas
was not doing his work of shoveling properly, and took the shovel
from the Greek and showed him how it should be done. The laborer
continuing to work in an improper manner, the foreman told him to
drop his shovel and get his time. This was not done, and when the
foreman attempted to take the shovel away, the man struck him with
the flat side of it. Eudder then said he would make him drop the
shovel, and stepped back to get a stick 5 or 6 feet long. The workman
meantime picked up a stone, but on the approach of the foreman
dropped this and again struck with the shovel, missing his mark, how
ever. The foreman then inflicted a blow with the stick, which felled
the man to his knees. The latter seized the foreman by the legs and
threw him, and climbing upon him, for 15 minutes inflicted severe
lacerations with his teeth upon the foreman’s face, hands and arms,
v^hich resulted in blood poisoning and prolonged disability. There
being conflicting evidence, the court accepted as true the findings of
fact of the commission as above stated; it also held that the commis
sion was not in error as a matter of law in holding that the occurrence
was an accident, and one arising out of and in the course of Eudder’s
employment. As to this Judge Sloss, who delivered the opinion of
the majority of the court, said in part:
T h e circum stance that the in ju ry was the result o f a w illfu l o r
crim inal assault b y another does n ot exclude th e p ossib ility that the
in ju ry w as caused b y accident [citin g authorities].
Under these and other authorities, it is clear that an injury caused
by the attack of a third person may be accidental so far as the injured
230
BULLETIN OF THE BUBEAU OF LABOB STATISTICS.
person is concerned. On the other issue, whether the injury occurred
in the course of the employment of Rudder, it must also be held that
the finding of the commission was sustained by sufficient evidence.
The question, simply stated, is whether the injury resulted from Rud
der’s undertaking to do something in the line of his duty, or whether
it occurred as the result of his going outside the scope of his employ
ment and entering upon a private quarrel for reasons of his own. The
facts found justify the inference that Rudder was hurt in an alterca
tion which grew out of his justifiable efforts to maintain his authority
as foreman and to protect the property of his employer intrusted to
his care.
As to the question of the constitutionality of the act, on the decision
of which it was stated a number of pending cases turned, there are
two opinions, each expressing the views of three judges and uphold
ing the constitutionality of the act; and a vigorous dissenting opinion
by Judge Henshaw. The principal opinion was written by Judge
Sloss. He first refers to the previous act of 1911 and to the constitu
tional amendment adopted for the purpose of authorizing a compul
sory compensation act. The provisions of the present or Boynton
Act are summed up, and the new section of the constitution quoted.
In taking up the objections to the act on the ground of conflict with
the fourteenth amendment to the Constitution of the United States,
as depriving persons of due process of law and the equal protection of
the laws, the nature and purpose of compensation legislation, the
nature of the police power which, if anything, it is stated, must give
validity to the act, and the decisions upholding the validity of several
of the State compensation acts are first discussed. Taking up the
decisions on the laws most similar to the one under consideration, the
opinion, with some omissions, reads:
Counsel have cited but two decisions dealing directly with the
validity of acts which make the scheme of compensation, irrespective
of negligence, compulsory with respect to employers and employees.
And m these cases opposing conclusions were reached. In Ives v.
South Buffalo Railway Co., 201 N. Y. 271, 94 N. E. 431 [Bui. No.
92, p. 251], the court of appeals of New York declared that the
statute of 1910, providing a system of workmen’s compensation for
certain employments, was in conflict with the constitution, in two
respects: (a) Because it deprived the employer of property without
due process of law; and (b) because it deprived both employer and
employee of the right to trial by jury, guaranteed by the constitution
of the State. The second ground, whether well taken or not, has no
application to the case at bar; for, although our constitution has
always contained a provision securing the right of trial by jury
(art. 1, sec. 7), the legislature is expressly authorized to provide
for the settlement by arbitration, by a board, or by the courts, of
disputes involving the liability of employers. On the other point,
that of “ due process,” the main stress of the opinions in the Ives
case is laid upon the proposition that the statute imposes a liability
DECISIONS OF COURTS AFFECTING LABOR.
231
upon an employer who has been guilty of no fault, and who, under
the preexisting law, was under no obligation to compensate his em
ployee for an injury. This, it is declared, is a violation of the em
ployer’s constitutional rights.
On the other hand, in State ex rel. Clausen v. Burr, 65 Wash. 156,
117 Pac. 1101 [Bui. No. 96, p. 814], the validity of an act similar, in
its main purpose, to the New York statute and to the Boynton Act,
was upheld; the court handing down an exhaustive and able opinion
to support its conclusion.
The essence of the decision in the Ives case is that freedom from
liability on the part of an employer who has been guilty of no fault
is a fundamental property right of which he can not be deprived by
mere legislative declaration. With all possible respect for the emi
nently learned court which pronounced this decision, we are unable
to give our assent to the doctrine. The rules of the common law
defining the rights and obligations of persons holding various mutual
relations are not necessarily expressions of fixed and immutable prin
ciples, inherent in the nature of things [citing Mondou v. Railroad
Co., 223 U. S. 1,32 Sup. Ct. 169, Bid. No. 98, p. 470, and other cases].
The line is sharply drawn, however, by the New York court of
appeals, between the fellow-servant and contributory negligence
rules, on the one hand, and the rule that fault on the part of the
employer must be shown, on the other. Why this distinction? Is
the latter doctrine any more sacred or inherently necessary than
either of the former? Under the common law the burden of indus
trial accident, where no fault was attributable to employer or work
man, fell on the workman. Under the new law it falls, primarily
at least, on the employer. It can not be said that the one rule or the
other is a necessary or logical result of fundamental principles of
justice. The very trend of legislation exemplified by the act before
us illustrates how general is the belief that an enlightened concep
tion of justice requires that the old rule be superseded by the new.
There is nothing contrary to the permanent and underlying notions
of human right in the declaration that he who is conducting an en
terprise, in the operation of which injury to others is likely to occur,
shall respond for such injury to those who have not, by their own
willful misconduct, brought it upon themselves.
Such a change in the “law itself, as a rule of conduct,” is as fairly
within the scope of legislative power as is the abolition of the defense
of fellow servant or that of contributory negligence. If the law
making body deems such change to be needed for the furtherance
of the general well-being, it is taking a view that may at least be
entertained by reasonable minds, and its action is justified by the
broad authority embraced within the police power.
The fourteenth amendment was “ intended to prevent the arbitrary
exercise of power, or undue, unjust, and capricious interference with
personal rights; not to prevent those reasonable regulations that all
must submit to as a condition of remaining a member of society.”
(State ex rel. Clausen v. Burr, supra.) Therefore a law which dis
turbs no vested right of property, which is not retroactive in its
operation upon the conduct of persons, but which, looking to the
future, merely changes the existing rules governing the liability of
masters for injuries caused by accidents occurring to their servants
232
BULLETIN OP THE BUREAU OF LABOR STATISTICS.
while in the service, does not come within the scope of the fourteenth
amendment. The employment [relation] creates a status involving
relative rights and obligations, and it is properly for the legislature,
acting within the bounds of fairness and reason, to determine the
nature, extent, and application of those rights and obligations. If
the lawmaking body determines that one of the incidents of that rela
tion shall be that the employer must compensate his employee for an
accidental injury received in the service, an enactment to that end is
neither arbitrary nor outside the scope of legislative authority.
The fixing of liability on one who is without fault is not new to the
law. The opinion of tne Washington Supreme Court in State ex rel.
Clausen v. Burr, supra, gives numerous instances of such liability,
both at common law and under statutes which have withstood attack
on constitutional grounds. Some, at least, of the cases thus referred
to, can not, we think, be distinguished from the case at bar, so far as
the point now under discussion is concerned.
We have not overlooked the circumstance that the Boynton Act,
unlike some of the other statutes to which we have referred, does not
limit the newly created scheme of compensation to specially enu
merated industries, selected as and declared to be extrahazardous in
character. We do not conceive that this difference has any real bear
ing upon the constitutional questions heretofore discussed. The
legislative power to impose the liability upon an employer who is
without faulty does not, in the view of the courts which have dealt
with the subject, rest upon the consideration^ that the particular
employer is conducting an industry in which injury is more likely to
result than in some other. If the burden may be imposed upon any
employer conducting a lawful and necessary industry, it may be
imposed upon all who are conducting industries in which, in the
judgment of the legislature, the public welfare requires this measure
of protection.
Nor do we think that any distinction, so far as constitutional ob
jections are concerned, can be based upon the fact that this act im
poses upon the employer a liability to compensate his employees for
injuries actually received in the particular employment, while under
other statutes—for example, that of Washington—all employers are
required to contribute sums, proportioned to their pay roll and gradu
ated according to the nature of the industry, into a fund out of which
all claims for compensation are to be paid. The essential question
is whether liability for injury suffered by employees through accident
may be imposed upon employers who havo been guilty or no breach
of duty. Once this question is answered in the affirmative, the mode
of imposing the liability, whether it be by way of a proportionate
contribution having some of the characteristics of a tax, or by fixing
a direct liability upon each employer for each accident as it occurs, is
a matter for legislative determination.
The exclusion of casual employees and those engaged in agricul
ture, horticulture, and domestic service, was held not to be an invali
dating or unreasonable classification, and the act as a whole was
upheld.
DECISIONS OF COUBTS AFFECTING LABOB.
W o r k m e n ’s C o m p e n s a t io n — C o n s t i t u t i o n a l i t y o f
P r e s u m p t io n a s t o E l e c t i o n b y E m p lo y e e — Machin
233
S ta tu te —
v. DetroitTimkin Axle Co., Supreme Court of Michigan (June 14, 1915), 153
Northwestern, Reporter, page 49.—Thomas Mackin brought action
at common law to recover damages for injuries received by him
while at work for the company named. He had been in its employ
for over two months previous to the injury, which occurred on
October 8, 1912. He was oiling shafting when he received an elec
tric shock which threw him from a stepladder onto a grinding ma
chine from which he received severe bruises and injuries. He was
confined to his bed for several weeks and was attended by a physi
cian furnished by the company. On the question of negligence it
was stipulated that owing to defective insulation the shafting which
the employee was oiling was heavily charged with electricity, and had
been for eight days before the injury. The company had filed a
statement with the industrial accident board electing to accept the
provisions of the compensation act, and its election and method of
compensation had been approved by the board. No notice of this had
been given to the employee. When the company tendered the amount
due him under the provisions of the compensation law he declined to
accept on the ground that the law was unconstitutional and brought
this action. The lower court declared the act constitutional and
directed a verdict for the company. The supreme court affirmed the
judgment entered on this verdict, upholding the constitutionality of
the act in an opinion written by Judge Steere, from which the fol
lowing is quoted:
Though more fully elaborated and subdivided, the propositions
urged by plaintiff’s counsel against the constitutionality of the act
under consideration may be summarized and stated as follows: It
conclusively imputes to the employee knowledge of the employer’s
election to come under the law; it confers upon the industrial acci
dent board judicial powers; it includes provisions not covered by the
title, and tne title embraces more than one subject; it discriminates
against domestic, farm, and casual employees, and is class legislation;
it deprives a parent of right of action for injury to his child; and it
deprives an injured employee of the right to be represented by an
attorney or agent of his choice, ii> making all attorney fees subject to
regulation by the industrial accident board.
It can be assumed without misgiving that there is no vested right
in any remedy for a tort yet to happen which the constitution pro
tects. Except as to vested rights, the legislative power exists to
change or abolish existing statutory ana common-law remedies.
Common and statute laws only remain in force until altered or
repealed.
At this point a quotation is made from the Second Employers’ Lia
bility Cases, 223 U. S. 50, 32 Sup. Ct. 175 (Bui. No. 98, p. 470), sup
porting the statement just made, and attention is called to the fact
234
BULLETIN OF TH E BUBEAU OF LABOB STATISTICS.
that nearly all the foreign compensation laws and those of the States
have been sustained as constitutional when brought before the courts.
Continuing, the opinion reads:
In some States the law is made compulsory upon both parties or
upon one with choice to the other, giving rise to questions wnich need
not be considered here, since the law in this State, as applied to this
case, becomes operative upon neither employer nor employee who does
not expressly or impliedly consent; but, if the employer so elects, and
the employee does not give written notice to the contrary he is con
clusively presumed to have consented, and comes under the act.
Plaintiff contends the act is unconstitutional in that particular, con
travening both the Federal and State constitutions, because it de
prives an injured employee of his right to resort to the courts for
redress and nave trial by jury without knowledge, consent; or waiver
on his part, and there can be no waiver of constitutional rights with
out knowledge of the facts upon which it is based.
The record fails to disclose whether plaintiff did or did not have
actual notice that defendant elected to become subject to the act, but
he did have-constructive notice and was presumed to know the law,
and to know that it became operative as to him if his employer
elected, unless he gave notice to the contrary as provided in the act.
The decision upon the Massachusetts act in Young v. Duncan, 218
Mass. 346,106 N. E. 1 (Bui. No. 169, p. 221), is commented upon as sup
porting the propriety of such a provision. The remainder of the
opinion upon this point is as follows:
No constitutional provision is pointed out which prohibits the
legislature, in framing this law to best avoid uncertainty and conten
tion tending to litigation, from adopting a rule of conclusive pre
sumption upon the question of notice so long as the employee was left
in the first instance free to forestall, overcome? or prevent such pre
sumption by his own act if he so desired. This being true, the con
stitutional objections raised, which are necessarily founded upon the
idea of coercion, disappear because the employee has had a free
choice, and, by having failed to give notice, must be held to have
elected his remedy under the workmen’s compensation law. Such
legal presumptions are not unconstitutional nor uncommon. A
familiar illustration is the conclusive presumption that a party en
titled to jury trial in a civil action has waived his right and elected
to go to trial without a jury unless he took some affirmative action
and made demand before a certain time or point of progress in the
case arrived.
The contention that the industrial accident board and the arbitra
tion commission are unconstitutional bodies, because combining the
functions of the three departments of government, is shown to be
untenable because the act is elective, and the board merely an ad
ministrative agency. The decisions of the courts of Michigan itself
and other States are referred to in support of this view.
As to the equal protection of laws the court says in part:
The law is' unquestionable that it is within the power of the legis
lature to classify both employers and employees, if the classification
DECISIONS OF COURTS AFFECTING LABOR.
235
is not fanciful or arbitrary and for reasons of public policy, is based
upon substantial distinctions, is germane to the object sought to be
accomplished by the act, not limited to existing conditions only, and
applies impartially and equally to each member of the class. Classifi
cations of this nature, some of them identical with that under con
sideration, have been sustained in various States where workmen’s
compensation acts and other laws affecting industrial workers were
under consideration.
Finally, the contention as to the parent’s loss of action for
services of a minor is dismissed as not applicable to this case, and the
provisions of the act relating to attorneys’ and physicians’ fees are
also held not to be invalid.
W o r k m e n ’ s C o m p e n s a t io n —D e p e n d e n c y —Petvozino v. Ameri
can Mutual Liability Co., Supreme Judicial Court of Massachusetts
(Dec. 31, 1914), 107 Northeastern Reporter, page S70.—Florinda
Petrozino, who instituted this action under the workmen’s compen
sation act, was administratrix of a deceased workman. The decree
in the superior court having been in her favor, the insurer appealed
and raised the point that the mother and sister of the workman were
not wholly dependent upon him. This contention was rejected and
the decree affirmed, as indicated in the following quotation from the
opinion by Judge Braley:
The evidence shows that they are residents of Italy, and having
become unable by reason of failing eyesight to follow their usual
occupations were forced to rely wholly upon him for the means of sub
sistence. The insurer, however, contends, that the. 6 or 7 cents a day
earned by another sister who was a member of the family, and the
remittances from time to time to the mother of various sums by an
aunt of the decedent were sufficient to take the case out of the statute.
But the findings, that the remittances were mere gratuities, and that
the pittance earned by the sister was hardly sufficient for her own
maintenance, and that no part was paid to the dependents who never
relied upon either for aid, eliminates those relatives as contributing
and dependable sources of support. It being plain on the facts that
during his life the mother and sister had no other source of income
except his earnings, they were rightly found to be wholly dependent
upon the employee, and the rulings requested could not be given.
W o r k m e n ’ s C o m p e n s a t io n — D e p e n d e n c y —Pinel v. Rapid Rail
way System, Supreme Court of Michigan (Jan. 29,1915), 150 North
western Reporter, page 897.—Edgar Pinel was killed on May 29,
1913, while in the employment of the company named. He left no
widow or children, but a mother, brothers and sisters. The board of
arbitration denied the claim of the mother, and the industrial accident
board affirmed this decision, whereupon the claimant secured a review
236
BULLETIN OF THE BUBEAU OF LABOR STATISTICS.
of the proceedings by the supreme court. The injured man was not
making any contribution to his mother's support, and as he would
be under no legal obligation to do so until proceedings were brought
against him to compel such contribution, the court held that the
mother was not a dependent within the meaning of the law.
W o rk m e n ’s
C o m p e n s a t io n — E l e c t i o n — C o n t r a c t
of
E m p lo y
m e n t — Johnson
1915) ,
v. Nelson, Supreme Court of Minnesota {Jan. 8,
150 Northwestern Reporter, page 620.— F r a n k A . J o h n s o n
b r o u g h t a ctio n a g a in st P e t e r N e lso n f o r d a m a g e s f o r in ju r ie s a lle g e d
t o h a v e b een s u ffe re d b y re a so n o f th e n e g lig e n c e o f N e lso n , th e
e m p lo y e r .
T h e s e in ju r ie s w e re r e c e iv e d o n J u n e
30, 1915,
w h ile
J o h n s o n w a s a t w o r k f o r N e ls o n in W is c o n s in o n r a ilr o a d co n stru c
tio n . N e lso n ’s a n sw e r a lle g e d th a t th e case w a s g o v e r n e d b y th e W is
co n sin W o r k m e n ’s C o m p e n sa tio n A c t , a n d th a t th e p la in t iff J o h n
son c o u ld n o t th e r e fo r e r e c o v e r in th is su it. J u d g m e n t w a s re n d e re d
in N e lso n ’s f a v o r in th e d is tr ic t c o u r t o f H e n n e p in C o u n ty , a n d th e
p la in t iff a p p ea le d .
The employee had been engaged in the same kind of work for
the same employer in Minnesota for some time, and there was no
definite contract as to the duration of the employment. Eighteen
days before the injury he had been sent into Wisconsin to work. The
employer had elected to come under the Wisconsin act as far as his
work in that State was concerned, but the employee claimed to know
nothing of that statute.
The act provides that the employee in such case shall be subject
to its provisions if he gives no notice at the time of entering the
employment of his election not to be so subject. The court concluded
that the plaintiff, by his failure to give notice, had accepted the
provisions of the act, and that his sole remedy was under it. The
judgment of the court below was therefore affirmed.
W o r k m e n ’ s C o m p e n s a t io n — E le c t io n — D am a g e s fo r D e a t h —
Turnquist v. Hannan, Supreme Judicial Court of Massachusetts {Dec. 31.
1914), 107 Northeastern Reporter, page 443.— I d a C. T u m q u is t , a d
R ecovery b y I n s u r e r f r o m T h ir d P ersons — S u b ro g a tio n —
m in is tr a tr ix o f a d ecea sed w o r k m a n , b r o u g h t a ctio n f o r th e b en efit o f
th e in su re r, w h o h a d p a id co m p e n sa tio n t o h e r, t o r e c o v e r th e a m o u n t
fr o m F r a n k
J.
H annon,
a
th ir d p a r ty , th r o u g h th e n e g lig e n c e o f
w h o se a g e n t th e fa t a l in ju r y h a d o c c u r re d .
T h e r e w e re fin d in g s f o r
th e p la in t iff a d m in is tr a tr ix in th e s u p e r io r c o u r t o f S u ffo lk C o u n ty ,
a n d th e case ca m e b e fo r e th e su p re m e c o u r t o n e x c e p tio n s b y H a n n o n
t o th e t r ia l c o u r t’s r e fu s a l t o g iv e ce rta in r u lin g s req u ested b y h im .
DECISIONS OF COUBTS AFFECTING LABOB.
237
The opinion, which was in affirmation of the position of the court
below, was delivered by Judge Rugg, and is in part as follows:
This action is brought in her [the administratrix’s] name by the
insurance company for its benefit under section 15 or part 3 of the
act, which is in these words:
“ S ec . 15. Where the injury for which compensation is payable
under this act was caused under circumstances creating a legal lia
bility in some person other than the subscriber to pay damages in re
spect thereof, the employee may at his option proceed either at law
against that person to recover damages or against the association for
compensation under this act, but not against berth, and if compensa
tion 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 lia
bility of such other person.”
I f the injury in the case at bar had not resulted in his death, two
alternatives would have been open to the employee under the terms
of part 3, section 15, of the act: (1) To bring an action at law against
the defendant for the injury done him, or (2) to proceed for compen
sation under the workmen’s compensation act. But he could not
have pursued both remedies. He would have been bound to elect be
tween the two.
The opinion then holds that the requirement for election applies to
the representative of a deceased employee, under the definition of the
word “ employee ” given in part 5, section 2 of the act, and that there
fore the administratrix was bound by the election made. In conclu
sion Judge Rugg said:
The act by part 3, section 15, does not import into its terms the
equitable principle of subrogation. It simply provides that where
the insurer has afforded the prompt relief to the dependents of a
deceased employee which the act requires, it may enforce for its own
benefit the rights against tortious third persons causing his injury
which would otherwise have been available to the employee or his
representatives.
This right is not dependent upon reimbursement or subrogation.
It puts upon the insurer the burden of undertaking what in many in
stances might be litigation uncertain by reason of disputed facts or
novel law, but gives it all the advantage of the right of action which
in substance is assigned to it. Hence, it is an immaterial circumstance
how much it may have paid or be liable to pay under the act.
In a s m u ch as th e lia b ilit y e sta b lish ed b y th e d e a th sta tu te is in su b
sta n ce a p e n a lty o r fin e, th e C o m m o n w e a lth , th r o u g h it s le g isla tu re ,
c a n m a k e su ch fin e p a y a b le t o a n y p e rso n e q u ita b ly e n title d t o it.
W h e r e th e le g isla tu r e p r o v id e s th a t th e on e w h o h a s a ffo r d e d p r o m p t
r e lie f t o th e d ep e n d e n ts o f t h e d ecea sed m a y re ce iv e th e p e n a lty , th e re
is n o le g a l reason w h y i t s h o u ld n o t b e e n fo r c e d .
W o b k m e n ’ s C o m p e n s a t io n — E m p l o y e e — C onstbtjction o f S t a t
In re Rheinwald, Supreme Court of New York, Appellate
Division, Third Department (May 14, 1915), 158 New York Supute—
238
BULLETIN OF THE BUREAU OF LABOR STATISTICS.
plemenb, page 598.—Mary Rheinwald instituted proceedings to ob
tain compensation for the death of her husband, Robert Rheinwald,
who was killed on July 1, 1914, while painting a sign on the walls
of the building owned by the Builders’ Brick & Supply Co. He was
doing this work personally and alone, and was performing it for a
lump sum, under a written contract as to quality of the materials
and permanence of the result. The employer and insurer contended
that as an independent contractor he was not an “ employee” within
the meaning of the law, and consequently the claimant was not
entitled to compensation. The commission, by a vote of three to two,
upheld this view, and declined to grant the compensation petitioned
for. This decision the court reversed, also by a divided court, two
judges dissenting. The majority opinion was delivered by Judge
Woodward, who said in part:
Was Rheinwald an “ employee,” in fairness and in fact, within
the meaning of the workmen’s compensation law? Was he of the
grade and status of worker, rather than of the grade and status of
independent enterpriser? I am of opinion that he was, and that
such a holding is essential to effectuate the purpose of the act, in
transmitting the burden of this bereavement from the scanty purse
of this workingman’s widow and children to all the patrons of the
product or service furnished by his employer. The fact that he was
to be paid a lump sum or “ by the job ” can not be recognized as
taking him out of the class of “ employee.” The fact that his con
tract to do the work was in writing is not decisive on that issue, or
the fact that by it he made certain undertakings of satisfaction of
the employer or replacement if the finished work did not endure an
expected length of time. The fact that his employment by the
respondent was casual or intermittent can not deprive him of the
status of .employee, in the absence of explicit legislative pronounce
ment to that effect. The fact that he furnished tools or materials,
or undertook to do a specified “ job” or produce a given result,
does not prevent his being in fact a workman, an “ employee,” within
the purview of this statute. Common sense and regard for the
actualities should be potent on this issue, rather than technical dis
tinctions and elaborate refinements. Rheinwald really was a worker:
the sum he received for his painting was in an economic sense
wages, and not profits; he had no helpers, on whose work he made a
rofit; he was not an employer, with employees whom it was his
uty to insure under the act; he personally performed all the work:
it was contemplated by the employer that he would; and the em
ployer had at least potential control, direction, and supervision of
all the work Rheinwald did at his trade for the respondent.
S
W o r k m e n ’ s C o m p e n s a t io n — E m p l o y e e — I n d e p e n d e n t C o n t r a c
—In re Powley, Supreme Gowri of New York, Appellate Division,
Third Department (July 1, 1915), 154 New York Supplement, page
4®6.—A. Ray Powley proceeded for compensation against Vivian &
tor
DECISIONS OP COURTS AFFECTING LABOR.
239
Co. (Inc.), and the insurance company carrying its compensation
risks. He was given an award of $15 a week for six weeks, but an
appeal was taken on the ground that he was not an employee. Powley had let his dredge to the company during the continuance of a
contract which it had to perform, and himself operated the dredge.
The company agreed to furnish certain supplies. These were carried
out in a gasoline launch, but on the day of the accident, in the ab
sence of anyone to run the launch, Powley was obliged to attempt
to make a trip himself. While starting the motor it back-fired and
broke his wrist. The court held that in his principal employment
as operator of the dredge he was an independent contractor, but
that in going to procure supplies he was an employee, and therefore
his injury was covered by the compensation act.
W o r k m e n ’ s C o m p e n s a t io n — E m p l o y e e — M in o r E m p l o y e d i n P ro
H azardo u s O c c u p a t io n —Foth v. Macomber db 'Whyte Rope
Co., Supreme Court of Wisconsin (Oct. 5,1915), 154 Northwestern
Reporter, page 369.—Clarence Foth brought action for damages for
injury to his left arm received while in the employ of the company
named. The employee was a minor who was of such age as to be
legally employed, but not on the hazardous work which he was doing
when injured. He claimed that under these circumstances he was
entitled to bring a liability action, while the employer argued that
the remedy would be under the compensation law. The court took
the latter view, and reversed the judgment in the plaintiff’s favor.
The compensation statute includes as an employee every person in
the service of another, etc., “ including minors who are legally per
mitted to work under the laws of the State.” Judge Marshall spoke
for the court, and the following is a quotation from the latter part
of his opinion:
We reach the conclusion that the legislative purpose was as above
indicated, and the words “ (who, for the purposes of section 2394-8,
shall be considered the same and shall have tne power of contracting
as adult employees),” were added to render clear that, without preju
dice to liability under the penal statutes, any minor who is legally
permitted to work at all in a gainful occupation is to be regarded
as being competent to contract, as regards subjecting himself to the
provisions of the workmen’s compensation law, as fully as an adult
person.
h ib it e d
W o r k m e n ’ s C o m p e n s a t io n — “ E m p l o y e e ’ ’— P ie c e w o r k e r — State
essrel. Virginia <&Rainy Lake Co. v. District Court of St. Louis Comity
et al., Supreme Court of Minnesota (Dee. 18, 1914), 150 Northwestern
Reporter, page Ml.—One Bashko had been awarded compensation by
240
BULLETIN OF THE BUBEAU OF LABOR STATISTICS.
the district court of St. Louis County for an injury which resulted in
the loss of sight of one eye. He was at work for the company named
in getting out ties, poles and posts from the company’s timberlands,
being paid by the piece according to the size, character and grade of
the different articles. He could largely proceed in his own way so
far as time and method of working was concerned, and the com
pany contended that he was an independent contractor and not an
employee entitled to compensation. It invoked the test laid down by
the courts as to the relation of employer and employee with reference
to responsibility for negligence causing injury to third persons, that
is, whether or not the alleged employer had power to control the acts
of the other in respect to the transaction out of which the injury
arises. The court, speaking by Judge Taylor, held that the evidence
in this case that Bashko was such an employee was sufficient to have
required its submission to the jury, if this had been an action at law
to which the rule mentioned applied, saying in part:
In the present case Bashko did not contract to perform a specific
and definite undertaking, nor to accomplish a specific and agreed
upon result. He did not agree to cut any specific quantity of timber,
nor to cut the timber from any specific quantity of land. The com
pany owned the timber and wanted it made into ties, poles and posts.
It had established a schedule of prices which it paid for piecework.
Bashko had worked at piecework for some years and could earn
more than the ordinary wages at such work. He applied for a job
getting out timber by the piece and the company set him to work.
The company had a large number of men doing the same kind of
work upon , the same terms. It is not likely that the owners of
valuable timber would permit ordinary workmen to cut and manu
facture it for them wholly free from supervision or control. The
evidence tends to show that the company did not surrender, but re
served, the right to supervise and control the work of Bashko, at
least to the extent necessary to prevent waste and loss. They re
quired him to cut the timber clean as he went, and to manufacture it
according to specifications furnished by them, and also to pile the
brush. They inspected his work from time to time and occasionally
directed him to remedy defects therein. They had the right to dis
charge him at any time, and this right afforded adequate means for
controlling his work. The evidence was ample to sustain the find
ing of the trial court under the rule invoked.
The court therefore held that the injured man was an employee
under the workmen’s compensation act, and affirmed the judgment of
the court below.
W o r k m e n ’ s C o m p e n s a t io n — E m p l o y e e s I nclud ed — P o lice O f f i
—Blywn v. City of Pontiac, Supreme Court of Michigan (Mar.
18, 1915), 151 Northwestern Reporter, page 681.—Millard F. Blynn
was a policeman of the city of Pontiac, and was killed, while riding in
cers
DECISIONS OF COTJBTS AFFECTING LABOR.
241
an automobile with two other policemen on January 2, 1912, by an
automobile dashing against a telegraph pole. His widow made
claim for compensation, the act providing that employees of cities,
etc., shall be covered by it, and defining the term “ employee” as
including every person in the service of the State or any county, city,
incorporated village, etc., under an appointment or contract for hire,
except an official of the State, city, etc. Under the city charter po
licemen are appointed by the governing commission and take an oath
of office. After examining the evidence and the decisions in point,
the court concluded that the decedent had been not an employee, but
an officer of the city, and disallowed the claim.
W o r k m e n ’s C o m p e n s a t io n — E m p l o y e r — Bongo v. B. Waddington
<fk Sons (Inc.) et al., Supreme Court of New Jersey (June 4,1915),
94 Atlantic Beporter, page 408.—The petitioner for compensation in
this case was injured while employed as a teamster by the company
named. . The team which he drove was let out, with others, to one
Vanderbilt, who directed what work should be done, and could ob
ject to having the services of a particular teamster, in which case
the man would not be further assigned to the Vanderbilt work. The
teamster was hired and paid, however, by the Waddington company.
At the trial, compensation was awarded the employee against Van
derbilt, and the question on appeal was whether there was evidence
to justify such finding. The court held that there was not, the
Waddington company being the employer under the meaning of the
compensation act. Judge Parker, who delivered the opinion, said in
part:
“ Employee * * * includes all natural persons who perform
services for another for financial consideration.”
In the case at bar the financial consideration moving to the injured
employee was the wages that he was paid by Waddington and conse
quently Waddington was the “ other ” that was his employer in the
intendment of the act.
We conclude therefore that it was an error on the part of the
trial court to hold Vanderbilt as the employer. VanderDilt had no
direct dealings with the petitioner; he had nothing to say on the
question how much wages petitioner should be paid; the only contract
that he made was ar contract with Waddington for the supply of a
team consisting of a wagon, horses, and driver, for which he paid
as a team. There was of course ample evidence to justify an award
as against Waddington, and this is what we think the court ought
to have done.
W o r k m e n ’s
C o m p e n s a t io n — E m p lo y m e n t
O b t a in e d
U nder
Kenny v. Union
BaMway Co., Supreme Court of New York, Appellate Division, Third
26071°—Bull. 189—16---- 16
F a ls e P r e te n s e s — R e la t io n s h ip — C a u s a t io n —
242
BULLETIN OF TH E BUBEAU OF LABOB STATISTICS.
Department (Mar. 3,1915), 152 New York Supplement, page 117.—
Elizabeth Kenny made claim for compensation for the death of John
J. Kenny, and the company named appealed from a decision of the
workmen’s compensation commission making an award in her favor.
It was claimed that the company was not liable to make the payment
because Kenny, in his application for employment, had falsely stated
that he was not married, when in fact he was married and had two
children; also that he had not previously worked on a railroad, when
he had been employed by another company and had been discharged
for dishonesty. Obtaining employment by false statements in writ
ing as to previous employment is made a misdemeanor by the Penal
Code. The company made no distinction between single and mar
ried men in its employment, but might have refused to hire the
deceased, had it known the facts, because of his making a misstate
ment of his marital condition. It was stated that he probably would
not have been employed if he had truthfully stated that he had
been previously employed by another company and been discharged.
The court affirmed the award of the commission, holding that there
was no doubt of the existence of the relation of employer and em
ployee. Judge Lyon, who delivered the opinion, said in part:
The compensation law does not except from its benefits employees
who have obtained employment in violation of this provision of the
penal law.
The false representations in no way related or contributed to the
cause of death. The plain purpose of the statute was to provide com
pensation to an employee for an accidental personal injury, said to
the family of an employee who has suffered death as a result of such
injury sustained by an employee arising out of and in the course o f '
such employment “ without regard to fault as a cause of such in
jury,” with the two specified exceptions of “ where the injury is
occasioned by the willful intention of the injured employee to bring
about the injury or death of himself or another, or where the injury
results wholly from the intoxication of the injured employee while
on duty.” Concededly the injury was wholly accidental, and neither
exception applies.
W o rk m e n ’s
C o m p e n s a t io n — E m p l o y m e n t s
C o n s t r u c t io n o f S t a t u t e —Guerrieri
I n clu d ed — E l e v a
v. Industrial Insurant:
Commission, Supreme Court of Washington (Mar. 3, 1915), llfi
Pacific Reporter, page 608.—Melville Guerrieri appealed from an
order adverse to him as to his claim for compensation. He was in
jured while operating an elevator in a mercantile establishment, and
the question raised was whether this is one of the extrahazardous
employments contemplated by the law. The court held that from its
connection, and the fact that classes of business rather than kinds
tors —
243
DECISIONS OP COURTS AFFECTING LABOR.
of machinery are there listed, the word “ elevators” in section 2 of
the law refers to grain elevators or warehouses, and not to the kind
of elevators, or lifts, in one of which the employee was injured; also
that by section 4 only construction work on elevators is covered.
The order below was therefore affirmed.
W o r k m e n ’s
C o m p e n s a t io n — E v id e n ce — P r e s u m p t io n
C au se —Englebretson
as
to
et al. v. Industrial Accident Commission et al.,
Supreme Court of California (Aug. 7, 1915), 151 Pacific Reporter,
pageJ$l.—John Englebretson, employer, brought proceedings against
the commission to review its action in granting an award for an injury
causing death claimed to have been suffered by James M. Wells while
in Englebretson’s employ. Wells was driving a team of horses at
tached to a scraper, in the construction of a railroad embankment.
Another man loaded, operated and dumped the scraper. Teams
drawing dump carts were also engaged in the work. On March 4,
1914, Wells became sick while at work, and was obliged to be taken
home. It was found that an internal hemorrhage of the abdominal
cavity was the cause of the sickness. He grew worse, and died on
March 17,1914. An autopsy showed a rupture of blood vessels. It
was claimed that the man was called upon, while at work with the
scraper, to assist in swinging around the end of one of the dump
carts, and that this caused the strain which brought about the rup
ture. The court did not pass upon the question whether an injury
so occurring is caused by accident within the meaning of the law;
but annulled the award because there was no competent evidence to
prove that the rupture was caused in the manner claimed, holding
that the making of an award without proof of the essential fact
that the injury resulted from an accident is an act in excess of
the jurisdiction of the commission. It was held that the testi
mony of physicians amounted merely to proof that the rupture
might have been caused by muscular exertion, but was no proof
that the employee lifted a wagon as claimed. The court found that
the only other testimony was what the employee said as to the cause
of the condition which resulted in his death, and that this was inad
missible as hearsay. In discussing this point the court took up the
provision that the commission shall not be bound by technical rules
of evidence, and concluded that the rule by which hearsay evidence is
excluded is not merely a technical rule. Finally, it was held that
the decision would only annul the award, leaving the commission free
to hold a further hearing if evidence in support of the claim can be
produced.
244
BULLETIN OP TH E BUBEAU OF LABOB STATISTICS.
A cci
Com
mission of Wisconsin et al., Supreme Court of Wisconsin (Feb.
9,1915), 150 Northwestern Reporter, page 998.—George Hartmann,
while in the employ of the company named, met his death on May 29,
1913, by drowning in the Menominee River. At lunch time he went
along a walk on the bank of the river leading to a toilet used by
the employees, when a splash was heard, and he was seen in the
river, not struggling, from which he could not be rescued. The in
dustrial commission made an award to the claimant, Barbara Hart
mann, but the circuit court of Dane County set this aside, holding
that, the evidence being equally consistent with the theory of accident
or that of suicide, the claimant did not sustain the burden of proof
necessary to make out her case. The supreme court held, on appeal,
that the rule in certiorari cases requires the upholding of the original
conclusion if there is evidence to support it, and that this was true
in this case. It held further, that the presumption of accidental
death instead of suicide would operate in a case of this kind, and
make it necessary for some evidence to be adduced to the contrary
before the weight would preponderate in the direction of the suicide
theory.
The judgment of the circuit court was reversed, with direction to
enter a judgment affirming the award of the industrial commission,
giving to the claimant $2,259.11 in stated weekly installments.
W o r k m e n ’s C o m p e n s a t io n — E v id e n c e — P r e s u m p t io n o f
d e n t a l D e a t h —Milwaukee Western Fuel Co. v. Industrial
W o r k m e n ’ s C o m p e n s a t io n — E v id e n c e — P rocedure —Carroll v.
Knickerbocker Ice Co., Supreme Court of New York, Appellate
Division, Third Department (Sept. 15, 1915), 155 New York Sup
plement, page 1.—Bridget Carroll made claim for compensation for
the death of her husband Myles Carroll, against the company named.
The commission awarded $100 funeral expenses, and a weekly com
pensation of $4.61 to the widow and $1.13 to each of five children.
The deceased was driver of an ice wagon and, according to the
findings of the commission, was injured by his ice tongs slipping
and causing a cake of ice weighing 300 pounds to strike him in
the abdomen. He, with the assistance of two others, was able to
lift the ice 4 feet and put it in the ice box. It appeared that
he drank liquor on this occasion, and was and had been for 25 years
a hard drinker. He went home and was taken sick, and shortly
afterwards was taken to a hospital, where he died four days later,
after developing delirium tremens. The proof of death made by
the attending physicians gives, as the remote cause, that 300 pounds
of ice struck his epigastrium, causing gastric hemorrhage—rigidity
DECISIONS OF COURTS AFFECTING LABOR.
245
in upper abdomen. * * * The immediate cause is given as
“ Oedema of the lungs—delirium tremens.” No person saw the
alleged accident, though several were about, and practically the only
proof of it was his statements to certain persons. The court affirmed
the award, interpreting the statute as allowing the admission of hear
say evidence. Two of the five judges dissented, one of them pre
senting his reasons in a dissenting opinion. Judge Howard, who
delivered the majority opinion, said:
The proof offered was of such a character that no court would have
hesitated a moment to reject it. All the rules of evidence, the accu
mulation of centuries of experience and wisdom, were ignored by
the commission. But was the commission not authorized to ignore
them? Indeed, in order to keep step with the spirit of the law, was
the commission not bound to ignore them? It is clearly evident that
the great bulk of the testimony in this case was hearsay, and in some
instances hearsay upon hearsay. There is slight evidence that the
deceased vomited blood, and some evidence from which it might
be inferred that he strained himself by lifting on the ice. From these
two slender items of evidence the commission might have inferred
that the injury arose from the accident. Everything else is wholly
hearsay. The doctor’s certificate that the remote cause of death was
because 300 pounds of ice hit the deceased is, of course, only hearsay.
So that the question arises here whether the commission, under sec
tion 68 of the compensation act, were authorized to receive the
hearsay evidence and base their findings upon it. Section 68 reads
as follows:
“ Technical rules of evidence or procedure not required.—The com
mission or a commissioner or a deputy commissioner in making an in
vestigation or inquiry or conducting a hearing shall not be bound
by common law or statutory rules of evidence or by technical or
formal rules of procedure, * * * but may make such investiga
tion or inquiry or conduct such hearing in such manner as to ascer
tain the substantial rights of the parties.”
Subdivision 2 of section 67 also provides that the commission shall
adopt rules providing the “ nature” of the evidence to be accepted
by it. As to proceedings before the commission, these two sections
wholly abrogate the substantive law of evidence—abrogate the com
mon law, the statute law, the rules of procedure formulated by the
courts, and all the technicalities respected by the legal profession.
The commission is authorized by this section, it seems, to make its
investigation in any manner that it chooses, wholly unfettered by any
law previously invented by man. This is the spirit of the statute. The
commission is to be bound neither by custom nor by precedent. The
trials before the commission are to be summary, speedy, and informal.
The very instant that the old rules of evidence are invoked, the in
formal character of the hearing disappears, and the rigid, formal
rules of procedure and all the technicalities incident to the practice
of the law will grow up around the commission, hampering and
delaying it, working inconvenience and hardship upon the claimants,
and defeating the intent of the law.
Assuming, then, that the commission had the right to receive the
hearsay evidence which it did receive, and act upon it (and if it had
246
BULLETIN OF THE BUBEAU OP LABOB STATISTICS.
a r ig h t t o rece iv e it, it h a d a r ig h t to a ct u p o n i t ) , its d e c is io n o n
th e q u estion s o f f a c t w a s fin a l a n d is b e y o n d o u r p o w e r t o c r it ic iz e o r
rev ok e.
W o r k m e n ’ s C o m p e n s a t io n — E x c lu s iv e n e ss o f R e m e d y — T h ir d
P ar tie s — C o n s t it u t io n a l it y o f S t a t u t e — Northern Pacific Rail
way Co. v. Meese et al., Supreme Court of the United States (Jan.
17, 1916), 36 Supreme Court Reporter, page 223.— T h is case arose
in th e U n ite d S ta tes d is tr ic t c o u r t f o r th e d e a th o f a la b o r e r em
p lo y e d as a lo a d e r o f ca rs b y a b r e w in g c o m p a n y in th e c it y o f
S ea ttle, W a s h . W h ile h e w a s s o e n g a g e d , o w in g t o th e a lle g e d n e g li
g en ce o f th e r a ilr o a d c o m p a n y , th e c a r w h ic h h e w a s lo a d in g , a n d
w h ic h w a s o n a s id in g , w a s v io le n t ly stru ck . T h e a c tio n w a s b r o u g h t
u n d e r th e S ta te statute a u th o r iz in g r e c o v e r y f o r fa t a l in ju r ie s ,
c o m m o n ly k n o w n as L o r d C a m p b e ll’s Act. T h e c o m p a n y , th o u g h
n o t th e e m p lo y e r o f Meese, co n te n d e d th a t th e o n ly red ress a v a ila b le
w as th a t g ra n te d b y th e co m p e n sa tio n a c t o f 1911 in th e S ta te o f
W a s h in g to n , w h ic h a b r o g a te d su its at la w in cases o f in ju r ie s t o em
p loy ees. T h e a c t co n ta in s p r o v is io n s fix in g th e lia b ilit y o f t h ir d
p a rties, a n d th e c o n te n tio n th a t th e e ffe ct o f th e sta tu te w a s t o e x
clu d e d a m a g e s u its in su ch cases w a s su sta in ed b y th e d is t r ic t c o u r t
(206 F e d . p . 222, B u i. No. 152, p . 195). On a p p e a l, th e c ir c u it c o u r t
o f a p p e a ls re v e rse d th is d e c is io n (211 F e d . 254, B u i. No. 169, p . 250),
h o ld in g th a t th e fa t a l a c c id e n t a ct h a s n o t b e e n re p e a le d a n d w a s
a v a ila b le. T h e case w a s th e n b r o u g h t t o th e S u p r e m e C o u r t o f th e
U n ite d S tates, w h ic h re v e rse d th e ju d g m e n t o f th e c ir c u it c o u r t o f
a p p e a ls as t o th e n a tu re o f th e la w a v a ila b le , a n d affirm ed th e ju d g
ment o f th e tr ia l co u rt.
The compensation act repealed certain liability statutes of the
State, but did not repeal the fatal accident act. The effect of the
compensation law had been passed upon by the supreme court of the
State in Peet v. Mills (76 Wash. 437, 136 Pac. 685 [Bui. No. 152,
p. 193]), wherein it was decided that the new remedy was exclusive
in so far as injuries to employees are concerned. The railroad com
pany’s contention was that the circuit court of appeals erred in not
accepting the opinion in Peet v. Mills as controlling. The Supreme
Court sustained this contention, Mr. Justice McReynolds, who de
livered the opinion, saying that “ It is settled doctrine that Federal
courts must accept the construction of a State statute deliberately
adopted by its highest court.” Quotations were then made from
the opinion of the supreme court in Peet v. Mills, in which it was
said that it was intended by the legislature that the new remedy
“ should be ample, full, and complete, reaching every injury sus
tained by any workman while engaged in any such [included] in
dustry, regardless of the causes of the injury or the negligence to
DECISIONS OF COURTS AFFECTING LAROR.
247
which it might be attributed.” Attorneys for respondent Meese had
suggested that such a construction of the act would cause it to con
flict with the equal protection clause of the fourteenth amendment,
but this the Supreme Court declared was a contention without merit,
and no other question having been raised involving the application
of the Federal Constitution, the action already indicated was taken.
W o r k m e n ’ s C o m p e n s a t io n — E x t r a t e r r it o r ia l E f f e c t o f S t a t
—Post v. Burger dfc Gohlke, Court of Appeals of New York (Jan.
11, 1916), 111 Northeastern Reporter, page 351.—Burger & Gohlke
formed a corporation engaged in sheet-metal work, their office being
in Brooklyn, N. Y. Post, a resident of that place, had been in
their employ for more than two years, and was sent by them on
September 1, 1914, to perform work on a building in Jersey City,
N. J., and while there engaged he received an injury to his wrist for
which compensation was awarded. To secure compensation due to
its employees from time to time the company named was insured, and
from the award of the State commission, affirmed by the appellate
division of the supreme court, the employer and its insurer brought
this appeal to the court of appeals. The sole question involved was
that of the effect of the law as covering work done outside the limits of
the State, and the construction adopted by the courts was to the effect
that the law does so apply, on the ground that the act reads into the
contract between every employee and his employer the provisions of
the compensation system without regard to the place of the occur
rence of the accident. Having stated the facts, and announced cer
tain fundamental principles, Judge Chase, who delivered the opinion
of the court, said:
It is well settled that the legislature has the power to compel a
contract between employer and employee that is extraterritorial in
effect.
In determining the intention of the legislature in enacting the
workmen’s compensation law of this State there are two important
provisions of the act that must constantly be borne in mind, as they
affect and characterize all the other provisions of the act:
1. In the absence of substantial evidence to the contrary, it must
be presumed that the claim comes within the provisions of the act.
(Workmen’s compensation law, sec. 21.)
2. The liability of the employer for compensation includes every
accidental personal injury sustained by the employee “ arising out of
and in the course of his employment, without regard to fault as a
cause of such injury.”
He then discussed the various provisions of the ad;, defining the
parties affected, the duty of the employer as to medical attendance,
security of compensation, and mode of determination of rights under
the act. Reference was then made to the inadequacy of the commonute
248
BU LLETIN o f t h e BUBEAU o f l a b o r STATISTICS.
law doctrine of employer’s liability under present industrial con
ditions, after which Judge Chase continued:
The act was passed pursuant to a widespread belief in its value as
a means of protecting workingmen and their dependents from want
in case of injury when engaged in certain specified employments.
It was the intention of the legislature to secure such injured work
men and their dependents from becoming objects of charity and to
make reasonable compensation for injuries sustained or death in
curred by reason of such employment, a part of the expense of the
lines of business included within the definition of hazardous em
ployments as stated in the act. It was also the intention of the
legislature to make such compensation not only a part of the ex
pense of the business and a part of the cost of the things manu
factured and of transportation as defined by the act, but ultimately
to require such compensation to be paid by the consumer of the
manufactured goods and by those securing transportation. The act,
in view of its humane purpose, should be construed to intend that in
every case of employment there is a constructive contract between
the employer and employee, general in its terms and unlimited as to
territory; that the employer shall pay as provided by the act for a
disability or the death of the employee as therein stated. The duty
under the statute defines the terms of the contract. (6 Ruling Case
Law 588; Board of Highway Commissioners v. Bloomington, 253
Ills. 164.)
Our conclusion as to the intention of the legislature is reached
from the act as a whole. The intention is also specifically shown by
the fact, as already stated, that an employee as defined by this act
includes a person engaged in the course of his employment away from
the plant of the employer. The language of the statute, if construed
literally, and we see no reason why it should not be, expressly in
cludes the employee in this case, as he was engaged in his employ
ment in New Jersey, away from the plant of his employer, and under
the employer’s express direction.
It is also specifically shown by the fact that the cost of insurance
is determined by ascertaining the number of all the employees of the
employer and the wages paid to them. There is no provision in the
act for ascertaining the number of employees of an employer engaged
in employment within the State of New York, nor is there any de
duction from the amount to be paid for State or other insurance by
reason of the fact, if true, that a portion of the employees of an em
ployer are or may be engaged outside of the boundaries of the State.
The provision in regard to insurance and the manner of ascertaining
the premium for the same and the fact that no provision is made for
basing the insurance premium on employment within the State or in
any way limiting the liability of the insurance carrier to injuries
received in the State, shows that the act was passed without intend
ing to limit the same to a contract for employment within the State.
The purpose of the legislature would seem to require that the act be
read into every contract of employment and provide compensation
for every injury incurred while engaged in such employment without
limitation.
The appellants had referred to a case arising under the compensa
tion act of Massachusetts, in which it was held that the law of that
DECISIONS OF COTJKTS AFFECTING LABOR.
249
State did not have effect beyond its boundaries; as to this, however,
it was pointed out that the statute of Massachusetts contained ex
pressions not found in that of New York, so that the case did not
afford a precedent. Reference was also made to a case in the Con
necticut courts, Kennerson v. Thames Towboat Co., 94 Atl. 372
(see p. 251), and to Rounsaville v. Central Railroad Co., 94 Atl. 392
(see p. 258), a New Jersey case, in which cases the laws of the re
spective States were held to have extraterritorial effect. Concluding,
Judge Chase said:
The courts of this State have recognized the compensation laws of
other States and countries and give effect to such laws, unless they
are contrary to the laws or policy of this State. [Cases cited.]
We appreciate that any determination that may be made of the
question under consideration will result in some practical difficulties
in administering the statute, but the difficulties that will be met with
in administering the statute construed as requiring a contract binding
upon both parties without limitation will be less burdensome than
the difficulties that would be experienced with a contrary construc
tion of the statute. The practical difficulties that may be met in
administering the statute as herein construed can be substantially
overcome by adopting rules for the commission or perhaps by further
legislation.
The order should be affirmed with costs.
W o r k m e n ’s C o m p e n s a t io n — F e d e r a l a n d S t a t e J u r i s d i c t i o n —
A d m i r a l t y — E l e c t i o n o f R e m e d ie s — In
re Walker, Court of Ap
peals of New York (July 15,1915), 109 Northeastern Reporter, page
60£.— T h is case, a cla im b y W . A . W a lk e r f o r co m p e n s a tio n , in
v o lv e d a p o in t n o t c o n s id e r e d in J en sen v. S o u th e rn P a c ific C o ., 109
N . E . 600 (see p . 2 2 1 ). T h e cla im a n t w a s in ju r e d o n a stea m sh ip
ly i n g a lo n g sid e a p ie r in th e H u d s o n R iv e r , a n d th e q u e stio n o f th e
a p p lic a tio n o f th e w o r k m e n ’s c o m p e n s a tio n a c t a r o s e ; a lso w h e th e r,
i f i t w a s a p p lic a b le , it w a s n o t in c o n flic t w ith th e cla u se o f th e C o n
stitu tio n o f th e U n ite d S ta te s w h ic h d e cla re s th a t th e ju d ic ia l p o w e r
o f th e F e d e r a l G o v e r n m e n t s h a ll e x te n d t o a ll cases o f a d m ir a lty a n d
m a ritim e ju r is d ic tio n .
T h e c o u r t p o in te d o u t th a t in su ch cases th e
su ito r h a s an e le ctio n w h e th e r t o p r o c e e d in a d m ir a lty o r u n d e r th e
co m m o n la w , a n d sin ce th e c o m p e n s a tio n la w is a su b stitu te f o r th e
co m m o n -la w re m e d y , a c h o ic e m a y s till b e e x e r c is e d in th is resp ect.
As to the alleged denial of equal protection of the laws to the
employer Judge Miller, who delivered the opinion, said:
But it is argued that the act purports to grant exemption from fur
ther liability to those who comply with it, and that as such exemption
is not effectual in the case of employers whose property may be pro
ceeded against in admiralty, it is as to them a denial of the equal
protection of the laws. The exemption, however, is from suits at
common law, of which all employers complying with the act equally
250
BULLETIN OF THE BUBEAU OF LABOB STATISTICS.
have the benefit. If another remedy remain, it results from the nature
of the case, and not from any attempt at discrimination on the part
of the legislature.
W o r k m e n ’ s C o m p e n s a t io n — F e d e r a l a n d S t a t e J u r is d ic t io n —
A d m ir a l t y — S ole R e m e d y — State
ex rel. Jarvis v. Daggett et al.,
Supreme Court of Washington (Sept, 13, 1915), 151 Pacific Re
porter, page 648.— F r a n k J a r v is m a d e c la im u n d e r th e co m p e n s a tio n
a ct f o r in ju r y w h ile w o r k in g o n th e stea m sh ip Whatcom, e n g a g e d
in in tra sta te traffic in P u g e t S o u n d . T h e vessel w a s o w n e d b y tw o
f o r e ig n c o r p o r a tio n s .
T h e c o m m is sio n r e je c te d th e c la im o n th e
g r o u n d th a t i t h a d n o ju r is d ic t io n o v e r th e o w n e rs, as th e y h a d
p a id n o co m p e n s a tio n p re m iu m s, n o r h a d d e m a n d b e e n m a d e u p o n
th e m f o r th e sam e.
J a r v is th e n co m m e n ce d a n a c tio n a t c o m m o n
la w , w h ic h w a s r e m o v e d t o th e U n it e d S ta te s d is t r ic t co u r t.
T h is
c o u r t en tered ju d g m e n t in f a v o r o f th e d e fe n d a n ts, b eca u se n o d e
m a n d h a d been m a d e u p o n th e m f o r co m p e n s a tio n p re m iu m s , w h ic h ,
u n d e r th e co m p e n s a tio n a ct, is th e n e ce ssa ry p re re q u isite t o a suit.
T h e s u it u n d e r co n s id e r a tio n w a s th e n sta r te d a g a in st th e c o m m is
s io n , i t b e in g a m a n d a m u s p r o c e e d in g t o c o m p e l th e c o m m is s io n t o
m a k e su ch d em a n d . T h is w a s d e n ie d , th e c o u r t first c a llin g a tten
t io n t o th e la n g u a g e o f th e co m p e n s a tio n a ct, w h ic h p o s it iv e ly e x
c lu d e s e v e r y o th e r r e m e d y f o r p e rs o n a l in ju r y t o e m p lo y e e s th a n
th o s e a v a ila b le u n d e r it. It w a s sta ted th a t p r io r t o th e p a ssa g e o f th e
co m p e n sa tio n a ct a p e rs o n in ju r e d in su ch e m p lo y m e n t h a d an o p tio n
t o p r o c e e d in a d m ir a lty o r u n d e r th e co m m o n la w . S in c e th e S ta te
le g is la tu re h a s n o p o w e r t o m o d i f y th e a d m ir a lty la w , n o r ta k e fr o m
a n y w o rk m a n a n y r ig h t u n d e r it, th e c o u r t h e ld th a t th e le g is la tu re
w ill b e p re su m e d t o h a v e in te n d e d t o g r a n t c o m p e n s a tio n o n ly in cases
w h e re i t h a d th e p o w e r t o a b o lish e v e r y o th e r re m e d y . It w a s p o in te d
o u t th a t th e re w o u ld b e d is c r im in a tio n a g a in s t th e o p e r a to r s o f ves
sels, w h ic h m ig h t a m o u n t t o a d e n ia l o f th e e q u a l p r o te c tio n o f th e
la w s, sin ce su ch o p e ra to rs w o u ld b e o b lig e d t o p a y p r e m iu m s lik e
o th e r e m p lo y e r s , b u t w o u ld s till b e lia b le t o b e p r o c e e d e d a g a in s t
in a d m ir a lty , w h ile th e o th e r e m p lo y e r s w o u ld b e re lie v e d o f a ll
lia b ilit y .
It
w a s a r g u e d o n J a r v is ’s b e h a lf th a t, a s C o n g r e s s h a d
p a ssed n o w o r k m e n ’s co m p e n s a tio n a c t a p p lic a b le t o th is cla ss o f
e m p lo y e e s , th e
State c o u ld
e x e rcise its r ig h t t o le g is la te in th e m a tter.
T h is w a s a lso h e ld u n ten a b le, th e c o u r t s h o w in g th a t th e r e m ig h t b e
a v io la t io n o f th e r e s tr ictio n o f o w n e rs o f vessels, fix e d b y th e m a r i
tim e la w , t o a n a m o u n t o f lia b ilit y eq u a l t o th e in te re s t o f th e o w n e r
in th e vessel a n d fr e ig h t , in cases w h e re th e o w n e r w a s n o t h im s e lf
n e g lig e n t. It w a s h e ld th a t th e le g is la tu r e h a d n o p o w e r t o fix a
d iffe r e n t sta n d a r d o r m easu re.
DECISIONS OF COURTS AFFECTING LABOR.
251
W o r k m e n ’ s C o m p e n s a t io n — F ed eral a n d S t a t e S t a t u t e s — I n
C o m m e r c e b x W ater — E x t r a t e r r it o r ia l E ff e c t o f S t a t
u t e — A d m ir a l t y — Kennerson v. Thames Towboat Co., Supreme
te rsta te
Court of Errors of Connecticut (June 10, 1915), 94 Atlantic Re
porter, page 872.—Two cases resulting from proceedings under the
workmen’s compensation act were here taken up together, awards
of compensation having been made by the superior court of New
London County.
The accident resulting in the death of the two men occurred in
the waters of Raritan Bay, and it was agreed that it occurred in
the navigable waters of New Jersey. Employer and employees were
citizens of Connecticut, and the contract of employment was made
in that State to be performed partly within and partly without the
State. Both parties had accepted the provisions of part B of the
workmen’s compensation act.
The company contended that the admiralty court had exclusive
jurisdiction of the matter, but the court held that in personal actions
the State courts have concurrent jurisdiction.
As to whether the Federal Employers’ Liability Act applied to
these cases so that compensation could not be granted and whether
the compensation act was limited to accidents within the State, Judge
Wheeler, who delivered the opinion of the court, said in part:
Again, it is insisted that an action for the injury in question is
given in the admiralty court, and hence, under section 40 of the
compensation act, it does not apply to this case. By this section
the liability must have occurred in interstate or foreign commerce.
There is nothing in the record to indicate whether the injury oc
curred while the employee was engaged in interstate or foreign com
merce. If this be disregarded, it is still manifest this section has
no application. The laws of the United States do not provide for
compensation such as this contract gives, nor for a recovery for
death or injury not predicated upon fault. Congress has not as yet
legislated in regard to injuries occurring in interstate commerce by
water; the State therefore may. (Stoll v. Pacific Steamship Co.,
205 Fed. 169 [Bui. No. 152, p. 218].)
Presumably section 40 and similar provisions in other compensa
tion acts have reference to the Federal Employers’ Liability Act.
Where the injury arises from a cause not covered by the Federal
act, this section does not apply. To come within the Federal act
there must be interstate traffic, interstate employment, and negli
gence. Though the first two conditions be present in this proceed
ing, the latter is not. (Note to 6 Neg. and Compensation Acts, p.
920.) It is not claimed, nor do we see how it could be with success,
that a State may not provide that contracts of employment entered
into without its bounds may include compensation for injury aris
ing out of and in the course of the employment in another jurisdic
tion.
We come then to the next question, whether our compensation act
provides for compensation for injuries received outside our State
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BULLETIN OF THE BUBEAU OF LABOR STATISTICS.
and arising out of and in the course of the employment. The re
spondent insists that our act has no extraterritorial effect. That is
not the precise question to be determined, but, rather, whether our
act provides for compensation arising out of a contract of employ
ment authorized by our act, for injuries suffered without our juris
diction. If our act authorizes such a contract, recovery may be had;
otherwise not.
Unless the intention to have a statute operate beyond the limits of
a State is clearly expressed or reasonably to be inferred from the
language of the act, or from its purpose, subject matter, or history,
the presumption is that the statute is intended to have no extra
territorial effect. A like presumption should control the operation
of a contract based upon a statutory authority.
We find no clearly expressed intention in our act that the contract
authorized should operate without the State. If found in the act,
it must be found as an inference reasonably to be inferred from the
language of the act, read in the light of its purpose, subject matter,
and history.
Its intent was to afford its protection to all Connecticut employers
and employees who might voluntarily choose to make its provision
for compensation for injury a part of their contracts of employ
ment. It assumed that accident is incident to employment, and pur
posed to charge its cost in the case of every injury not caused by the
willful and serious misconduct or intoxication of the injured em
ployee to the industry in which it occurred. If our act intends its
contracts of employment to include compensation for injuries oc
curring only within our jurisdiction, it manifestly defeats its own
ends. In that case the employer may not charge to the industry the
compensation for injuries occurring without the State, and the em
ployee or his dependents may not collect the same. Neither employer
nor employee can know what portion of this period of employment
will be subject to the provisions of the act, and no provision for
insurance of this liability will be practically possible, since it may not
ordinarily be known what part of the service will be in and what
part out of the State, or in what jurisdiction the service will be per
formed, in industries and commercial enterprises engaged in intra
state and interstate employment. The State boundary is not the
limit of very many businesses. To subject them to the laws of the
many jurisdictions in which they may be engaged will be especially
burdensome to them, and involve them probably in greater expense
and liability and far greater difficulties than under the old system.
Specific provisions of the act covering u any action,” “ any injury,”
records of injuries sustained by employees without reference to place,
and the like, were discussed, and from these terms of general in
clusiveness the court concluded that, as the act was contractual, the
contracts arising under it will, “ unless a contrary intent appears, be
found to cover injuries without as well as within the State.”
The other questions of law submitted to the supreme court were
decided in favor of the claimants, and the superior court was advised
to render judgment dismissing the appeals of the company.
DECISIONS OF COURTS AFFECTING LABOB.
253
W o r k m e n ’s C o m p e n s a t i o n — F e d e r a l a n d S t a t e S t a t u t e s — I n
t e r s t a t e E m p lo y e e I n j u r e d W i t h o u t N e g l i g e n c e o f E m p lo y e r —
Staley v. Illinois Central Railroad Co., Supreme Court of Illinois
(June 24,1915), 109 Northeastern, Reporter, page $42.—L a u r a Staley
p ro ce e d e d a g a in st th e c o m p a n y n a m e d u n d e r th e I llin o is W o r k m e n ’s
Compensation Act for the death of her husband. He w a s run over
a n d k ille d on March 28,1913, b y a s w itc h e n g in e of the company, h is
in its y a r d s n e a r Centralia, 111. The c o m p a n y set u p in
d e fe n se th a t the cau se o f a c tio n stated was n o t c o m p r e h e n d e d i n
th e fie ld o f th e w o r k m e n ’s co m p e n sa tio n a ct, b u t w a s w ith in th e scope
of th e F e d e r a l Employers’ Liability Act. The c ir c u it c o u r t before
w h ic h the t r ia l w a s h e ld fo u n d i n th e p la in t iff’s fa v o r , a n d e n te re d
ju d g m e n t f o r $3,500, p a y a b le in a lu m p su m . This ju d g m e n t th e
e m p lo y e r ,
a p p e lla te c o u r t affirm ed, w it h th e e x c e p tio n o f th e a m o u n t, w h ic h
it re d u ce d t o th e p re s e n t v a lu e o f $3,500, b u t th e s u p re m e c o u r t re
versed th e ju d g m e n ts .
The evidence in the case showed that the employee was on the way
to repair an engine engaged in switching and handling interstate
commerce, and was run down by an engine engaged in handling aU
classes of freight, both interstate and intrastate. The court held that
he was clearly engaged in interstate commerce, and the question
then arose whether, where there is no negligence proved on the part
of the employer, the matter is so covered by the Employers* Liability
Act as to exclude the operation of a State workmen’s compensation
act. Referring to the general principle of law involved in case of
such conflict of statutes, and to certain decisions, Judge Carter, who
delivered the opinion, said:
The power of Congress to regulate commerce among the several
States is supreme ana plenary under the Constitution. The reserva
tion to the States to legislate on questions affecting interstate com
merce is only of that authority which is consistent with and not op
posed to the grant of Congress, which extends to every instrumen
tality or agency by which interstate commerce may be carried on.
The decisions hold that with respect to certain subjects embraced
within the grant of the Constitution which are of such a nature as
to demand that if regulated at all their regulation should be pre
scribed by a single authority^ the power o f Congress is exclusive,
while in other matters admitting or diversity of treatment, accord
ing to the special requirements of local conditions, “ the States may
act within tneir respective jurisdictions until Congress sees fit to act;
and, when Congress does act, the exercise of its authority overrides
all conflicting State legislation.” (Simpson v. Shepard, 230 U. S.
352, 33 Sup. Ct. 729.)
The question in the case before us is not whether the deceased was
engaged in interstate commerce at the time of the accident, for that is
conceded. Neither is it necessarily the question whether the work
men’s compensation act affected directly and substantially an instru
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BULLETIN OF TH E BUREAU OF LABOR STATISTICS.
ment of commerce. The argument of counsel for plaintiff in error
that the workmen’s compensation act affects the employee “ solely
as a member of society and not as an instrument of society,” and is
therefore within the police power of the State, can not be sustained
if Congress has by legislation acted on the “ subject matter ” or the
“ particular subject” or in the “ same field” (as those terms are
understood in the decisions) as that covered by the Illinois Work
men’s Compensation Act.
In Atlantic Coast Lin© Railroad Co. v. Georgia (234 U. S. 280,
34 Sup. Ct. 829 [Bui. No. 169, p. 182]), the court sustained a State
statute requiring locomotives engaged in interstate commerce to be
equipped with electric headlights of a certain candlepower, as a
police regulation [Congress not having acted in this field].
In Southern Railway Co. v. Railroad Commission of Indiana (236
U. S. 439,35 Sup. Ct. 304 [seep. 186]),the court had under considera
tion an Indiana statute requiring railway companies to place secure
grab irons and handholds on the ends and sides of cars engaged in
interstate commerce, and it was held that until Congress had entered
that field the State could legislate as to the equipment of cars in
such a manner as would only incidentally affect, without burdening,
interstate commerce, but also held that Congress had entered upon
that field and therefore superseded existing State legislation on the
same subject.
The court then quoted a part of the Employers’ Liability Act, and
discussed the subject matter covered by that act. Quotations from
opinions dealing with this point were given, in answer to the ques
tion—
What is the “ subject,” “ particular subject,” “ subject matter,”
“ field,” “ particular field,” or “ chosen field ’ covered by the Federal
Employers’ Liability Act?
Some of these follow:
The first and perhaps the leading case discussing and construing
the present act is Mondou v. New York, New Haven & Hartford
Railroad Co. (223 U. S. 1,32 Sup. Ct. 169 [Bui. No. 98, p. 470]). In
that case the court said:
“ Prior to the present act the laws of the several States were re
garded as determinative of the liability of employers engaged in
interstate commerce for injuries received by their employees while en
gaged in such commerce. But that was because Congress, although
empowered to regulate that subject, had not acted thereon, and be
cause the subject is one which falls within the police power of the
States in the absence of action by Congress. [Citing authorities.]
The inaction of Congress, however, in no wise affected its power over
the subject. [Citing authorities.] And, now that Congress has
acted, the laws of the States, in so far as they cover the same field,
are superseded, for necessarily that which is not supreme must yield
to that which is.”
In Michigan Central R. Co. v. Vreeland (227 TJ. S. 59, 33 Sup. Ct.
192 [Bid. No. 152, p. 88]), the court, in discussing the scope of the
Federal Employers^ Liability Act, said:
“ We may not piece out this act of Congress by resorting to the local
statutes of the State of procedure or that of the injury. The act is
d e c is io n s o f c o u r t s a f f e c t i n g
la b o b .
255
one which relates to the liability of railroad companies engaged in
interstate commerce to their employees while engaged in such com
merce. The power of Congress to deal with the subject comes from
its power to regulate commerce between the States. * * * By
this act Congress has undertaken to cover the subject of the liability
of railroad companies to their employees injured while engaged in
interstate commerce. This exertion of a power which is granted in
express terms must supersede all legislation over the same subject by
the States. * * * It therefore follows that in respect ox State
legislation prescribing the liability of such carriers for injuries to
their employees while engaged in interstate commerce this act is para
mount and exclusive, ana must remain so until Congress shall again
remit the subject to the reserved police power of the States.” [Citing
authorities.]
In Wabash R. Co. v. Hayes (234 U. S. 86,34 Sup. Ct. 729 [Bui. No.
169, p. 77]), it was said:
“ Had the injury occurred in interstate commerce, as was alleged,
the Federal act undoubtedly would have been controlling, and a re
covery could not have been had under the common or statute law of
the State; in other words, the Federal act would have been exclusive
in its operation—not merely cumulative. * * * On the other
hand, if the injury occurred outside of interstate commerce, the Fed
eral act was without application, and the law of the State was con
trolling.”
Judge Carter therefore held, in accordance with the precedents
cited, that the Employers’ Liability Act so covers the field that the
workmen’s compensation act is not applicable in cases like the present,
and that the judgment below must be reversed and the case remanded,
saying in part:
We have referred to and commented on practically every decision
of the United States Supreme Court bearing upon this question.
It is clear that there can oe no “ recovery ” under the Federal Em
ployers’ Liability Act, properly construed, in the absence of negli
gence on the part of the employer, as that term is used in the statute
and in the decisions construing the same. But if the question of neg
ligence alone determines the applicability of the Federal law, then,
before it can be held that such law is applicable, there must be a final
adjudication as to whether the injury resulted from negligence. Ob
viously, Congress legislated on more than the subject of negligence.
It legislated on that but also on the amount of recovery, and super
seded all State laws on that subject, as shown by the decisions already
cited. It also legislated on the subject of limitation when an action
could be begun. The question of comparative negligence of em
ployee and employer, assumed risk, contributory negligence, liability
under indemnity or insurance contracts, under the wording of the act
are so involved with that of negligence that it would seem impossible
to separate the cases under the Federal Employers’ Liability Act
solely on the line of the negligence of the employer.
Counsel for plaintiff in error argue that the title of the Federal
Employers’ Liability Act, especially the phrase “ certain cases,” shows
that Congress did not intend to cover all cases of injuries occurring
on railroads while engaged in interstate commerce. With this we
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BULLETIN OF THE BUREAU OF LABOR STATISTICS.
do not agree. We think the phrase “ in certain cases ” was inserted
in this title to obviate some of the defects suggested in the title of
the act held unconstitutional in 207 U. S. 463, 28 Sup. Ct. 141, supra,
and that the “ certain cases” was meant to limit it to those cases
where the liability arose in interstate commerce. The wording of the
statute and the reasoning in these decisions lead inevitably to the
conclusion that “ the particular subject,” “ subject matter,” “ field,”
or “ chosen field ” taken possession of by the Federal Employers’ Lia
bility Act was the employer’s liability for injuries to employees in
interstate transportation by rail, and the real question, as clearly
stated in distinct terms in several of the cases that we have quoted
from in deciding whether the Federal statute is applicable, is whether
the injury for which the suit was brought was sustained while the
company and the injured employee were engaged in interstate com
merce. The Federal Employers’ Liability Act has taken possession
of—has occupied—that field for the purpose of calling into play
therein this exclusive power of the Federal Government.
W o r k m e n ’s C om p en sa tion — F e d e r a l a n d S t a t e S t a t u t e s — I n
t e r s t a t e E m p lo y e e I n ju r e d w i t h o u t N e g lig e n c e o f E m p lo y e r —
1Vinfield -v. New York Central & Hudson River Railroad Co., Su
preme Cowrt of New York, Appellate Division, Third Department
{ May 7 , 1915), 153 New York Supplement, page 499.— Jam es W in
field m ade claim f o r com pensation against the ra ilroad com pan y
nam ed, and an aw ard w as m ade in h is fa v o r b y the com m ission, fr o m
w h ich the com pa n y appealed. W h ile h e w as ta m p in g ties u p on a
track used in both interstate and intrastate com m erce, a stone flew
u p and in ju red his eye. T h ere w as n o dispute that i f h e h ad been
in ju red b y the em p loyer’s negligence he m igh t have b rou gh t action
under the F ed eral E m p loyers’ L ia b ility Act, and the question arose
whether, as the com pan y contended, he was confined to a rem edy
under th at act, o r w hether he w as entitled to benefits under the
com pensation act. T h e m a jority o f the cou rt h eld th at th e aw ard o f
the com m ission should be affirmed, tw o ju d g es dissenting. J u d g e
K e llo g g , w h o delivered the m a jority op in ion , sa id :
The Federal Employers’ Liability Act is entitled “An act relating
to the liability of common carriers by railroad to their employees in
certain cases.” The title clearly indicates that it does not cover all
the grounds of liability, but that the act relates only to the particular
cases expressly provided for in it. The provisions of the act relate
solely to liability on account of negligence. The several States, there
fore, in the exercise of their police power, may make such laws and
regulations for the protection of the laborers within the State as may
seem best, unhampered by the Federal Employers’ Liability Act,
except so tar as they attempt to prescribe a liability for negligence or
the remedies therefor in interstate commerce.
The workmen’s compensation law has no reference to the question
of the negligence of the employer and creates no liability or remedy
for negligence.
DECISIONS OP COTJBTS AFFECTING LAB0 B.
257
The State insurance fund makes the compensation to the injured
employee. By insuring in the State fund the employer is under no
liability to pay, and does not pay, anything to his employee. The
premium of insurance represents the only expense to him imposed
by the law, and the constitution provides that the moneys paid by
him under the act shall be held to be a proper charge in the cost of
operating the business.
The employer has been guaranteed by the act protection from any
liability on account of accidents occurring in its business, and the
employee has been promised protection from such accidents. The
State fund, therefore, would not be in a good position to contend
that the moneys so received were not applicable to compensate for
an injury received in an employment which it has assessed and in
sured. The moneys in its hands for the benefit of injured employees
would in part be paid for carrying this very risk.
It is true that the statute permits the compensation commission
to accept the employer as a self-insurer, if he satisfies it of his ability
to respond or furnishes to it proper security; but, when he becomes
a self-insurer, he in effect takes the place or the State fund as an
insurer, and his liability therefor under the act is not strictly as an
employer, but as a self-insurer. He has taken the place which the
statute primarily intended the State fund to take, and necessarily
assumes corresponding liabilities. He may choose not to be a selfinsurer, and not to insure in the State fund, and to obtain insurance
in a company or association authorized to make such insurance; but
the company or association is simply taking the place of the State
fund. The self-insurer, the company, or the association pays the
losses to the fund. The fund, in all cases, through the commission,
makes the compensation to the employee.
The statute should be given a broad and liberal construction, in
order to carry out the beneficent purposes for which it was enacted.
It is not a law fixing a liability for negligence, or fixing a liability
upon or creating a cause of action against the employer, but, as we
have said, is in substance a provision that the State will make com
pensation to injured employees in hazardous employments from
moneys which it has collected or secured from them. It is a State
system of insurance. No liability other than for premiums is im
posed upon the employer, except by way of penalty. He may relieve
himself from the payment of premiums by becoming a self-insurer.
An employee is not prejudiced by the fact that his employer
ualifies as a self-insurer, or insures otherwise than in the State
und. The rights of the employee under the act do not depend at
all upon the manner in which his employer has elected to cany
his insurance. The Federal statute giving a remedy in certain cases
of negligence does not interfere with the rights of the State to require
that every employee in a hazardous employment shall be insured.
It is urged that the claimant may claim under the Federal and the
State statutes, thus securing a double compensation. That question
must be met when it arises. This resident of the State, working
as a common laborer at the place of his residence upon a railroad
track, who perhaps never was in or upon a railroad car, should not
be deprived of the benefits of this remedial statute, enacted for his
benefit, simply because at times interstate trains passed over the
?
26071®—Bull. 189—16----- 17
258
BULLETIN- OP TH E BUBEAU OF LABOB STATISTICS.
road upon which he was working. The statute should not be killed
by refinements, or construed to death, but, within the spirit of
section 21 of the act, should be applied to every case arising in such
hazardous employments where a Federal statute does not necessarily
conflict with it.
Congress has not established any general rule of liability or
method of compensation between employers and employees. It has
by the Federal Employers’ Liability Act only regulated the method
of enforcing liability in cases of negligence, and that statute is
not the action of Congress referred to m section 114 of the compen
sation law. I f Congress makes a general regulation as to liability
or compensation for accident occurring from the business without
regard to fault as a cause thereof, as distinguished from actions of
negligence, then section 114 must be considered.
This case came before the court of appeals of the State on appeal
from the foregoing ruling, and was there affirmed (110 N. E. 614).
This court pointed out the exclusiveness of the Federal act in its
field, but maintained that the act was of such restricted scope as to
leave room for the operation of the State law. There could be no
double compensation, since if the Federal law applied it would be
exclusive; and if it did not, only the State law affords relief. The
employer’s insurance covers his liability under the State law, and
only that; the boundary between the two laws is sufficiently clear,
and the State may act so far as Congress has not acted, and until
it shall see fit to do so.
W
o r k m e n ’s
terstate
E
C o m p e n s a t io n — F
m ployee
I n ju r e d W
ederal
it h o u t
and
S tate S tatu tes— I
N e g l ig e n c e
of
E
n
m ployee—
E x t r a t e r r i t o r i a l E f f e c t o f S t a t u t e — RoumaviUe v. Central Rail
road Co., Supreme Court of New Jersey (June 7,1916), 94 Atlantic
Reporter, page 392.—Proceedings were commenced by George A.
Kounsaville to obtain compensation, and the judgment in the court
of common pleas was adverse to him. Two questions were in dispute;
one, whether compensation was barred by the admitted fact that the
workman was injured while employed on an interstate train, and the
other, whether it was barred by the fact that the accident occurred
in another State, although the contract of employment was clearly
a New Jersey one. The court reversed the decision below on these
points, and decided that compensation might be granted. Judge
Swayze, who delivered the opinion, said in part:
The Federal Employers’ Liability Act is an act, as its name imports,
to regulate the liability of employers, and, as its body dhows, is ap
plicable only to liability in tort for negligence. No new right of
action is given. All that is done is to take away certain defenses
which had come to be thought unjust. The legal liability of the
employer under the act does not depend upon the terms of the con
tract of service, and is neither increased nor diminished thereby.
DECISIONS OF COTXBTS AFFECTING LABOB.
259
The amount of the pecuniary liability is in no way regulated or
limited. The act applies only to certain classes of employers. In all
these respects the workmen’s compensation act differs. Liability
thereunder is contractual, and, while the contract liability^ is im
plied from silence, either party is at liberty to adopt or reject the
statutory contract. A new right of action is given, of a character
unknown to our law, at least tor several centuries. The liability of
the employer depends, not on any fault of his own or his servants,
but on whether, by act or by silence, he has adopted the statutory
terms. The amount of his pecuniary liability is fixed by statute and
not by the verdict of a jury. Employer and employee adopt, as a
>art of their contract, a novel method of procedure, in which the
iability and the compensation are determined by the judge, instead
of by a jury. And the compensation is ordinarily meant to be paid
by installments, in lieu of wages, as it were, and may be changed if
circumstances change. The scheme is more like a pension scheme
than a liability for a breach of contract, or damages in tori The
difference between the two kinds of legislation is illustrated in our
act. Section 1 is an employer’s liability act similar to the act of
Congress, and regulates the liability in a common-law action of tort.
Section 2 creates and regulates the new statutory right. But for para
graph 8 of section 2 there might have been a double recovery, a re
covery for the tort in a common-law action, and a recovery of the
statutory compensation by means of the statutory procedure. Nor
would that double recovery have been illegal, however unjust it
might be and was in fact considered to be by the legislature, for
compensation by way of pension from the master is quite different
in character from compensation by a tort-feasor, master, or third
person, for a wrong not arising out of contract.
We think it clear that the act of Congress deals with an entirely
separate matter from the act of our own legislature. No confusion
would have arisen if the distinction recently pointed out by Justice
Trenchard had been observed in the early days of this kind of leg
islation. (Gregutis v. Waclark Wire Works, 92 AtL 354 [Bui. No.
169. p. 255].)
The question whether our act applies in a case where the accident
happens in another State is novel. We are dealing with the question,
whether a New Jersey court will enforce a New Jersey contract, ac
cording to the terms of a New Jersey statute. The question hardly
calls for an answer. The place where the accident occurs is of no
more relevance than is the place of accident to the assured, in an
action on a contract of accident insurance? or the place of death of
the assured, in an action on a contract of life insurance.
There is no proof in the pending case as to the law of Pennsyl
vania. If it be said that the Pennsylvania law may provide a differ
ent scheme of compensation, and that the effect or our decision may
be to allow a double recovery, we can only say that questions of that
kind had better be dealt with as they arise, and in the light of the
exact scheme of compensation that may be involved. It is enough
for the present to say that recovery of compensation in two States is
no more illegal, and is not necessarily more unjust, than recovery
upon two policies of accident or life insurance.
{
260
W
BULLETIN o f t h e b u b e a u o p l a b o r STATISTICS.
o r k m e n ’s
C o m p e n s a t io n — F e d e r a l
and
S tate
S tatutes— I n
Ilammill v.
Pennsylvania Railroad Co., Supreme Court of Neio Jersey (June 4,
1915), 94 Atlantic Reporter, page Sid.—Delia Hammill proceeded as
administratrix under the compensation act for the death of her
brother in the employment of the defendant company, and was
awarded compensation by the court of common pleas of Middlesex
County. The employee was drowned when he fell off a canal
boat on which lie worked, the railroad company named operating the
canal as lessee.
The employee had no other dependents, and the company con
tended that the petitioner was not such. The deceased and another
brother considered their sister’s residence as their home as far as they
had any; they stopped there from Saturday night until Monday
morning each week, and each paid her $5 per week. The supreme
court held that the finding below was justified, that these payments
were materially greater than the mere value of board and lodging,
and that therefore they were contributing to her support and she was
an actual dependent.
The company contended that the Federal Employers’ Liability Act
and not the workmen’s compensation act applied to the case. This
contention was also held untenable, Judge Parker, who delivered
the opinion, saying:
It is further argued that the canal is an interstate waterway; ergo,
the Federal Employers’ Liability Act applies; ergo, our workmen’s
compensation act does not apply. Conceding the interstate character
of the canal, we think these deductions are erroneous. The Federal
act does not apply, because by its terms it affects only common car
riers by railway. (Act Apr. 22, 1908, ch. 149, 36 Stat. 65, Comp.
Stat. TJ. S. (1913) sec. 8657 et seq.) It is true that the employer is
a railroad company, but as such employer of deceased it was operat
ing a canal and not a railroad. Again, the Federal and State acts
are not in pari materia. The one is an act creating a liability to the
employee as in tort, based upon common-law negligence, or the fail
ure to comply with some statutory provision for the safety of the
employee; the other, so far as its section 2 is concerned, is a compen
sation act purely contractual in character, and requiring compensa
tion for in] my or death to be made as an incident of the mere rela
tion and quite irrespective of any question of negligence on the part
of the employer. It was manifestly intended, among other things,
to give relief in just such cases as the present one, where no claim of
negligence on the part of the employer could reasonably be made.
As to this class of cases at least, we deem the Federal act not to be
exclusive. The authorities cited by prosecutor will be found to in
volve in each case a conflict between the Federal act and a State act
imposing a liability as in tort for breach of a statutory or commonlaw duty.
terstate
B
a il r o a d
O
p e r a t in g
C anal— D
ependents—
DECISIONS OF COURTS AFFECTING LABOR.
261
The award had included $100 for funeral expenses. The law orig
inally allowed funeral expenses only in cases where there were no
dependents. An amendment of 1914 allows them in all cases, but
this was not enacted until after the accident in question. The award
was therefore reduced by that amount, and as so modified was
affirmed,
W o r k m e n ’s
C o m p e n s a t io n — H a z a r d o u s
E m p lo y m e n t — D r u g
g i s t ’ s E m p l o y e e —Larsen
v. Paine Drug Co. et al., Supreme Court
of New York, Appellate Division, Third Department (Nov. 10,1915),
155 New York Supplement, page 759.— Kris Larsen was killed while
in the employ of the company named, and his widow, Ingeborg
Larsen, proceeded for compensation. An award was made, and the
employer and insurer appealed.
The commission found that Larsen was employed as a porter,
elevator man and general utility man by the company, which was
in the business of manufacturing and selling drugs, chemicals, medi
cines and pharmaceutical preparations at both retail and wholesale.
The court held that it might reasonably be inferred that a wholesale
druggist manufactured drugs. The commission further found that
the employee at the time of the accident was engaged in building a
shelf near an elevator well, and while reaching into the well to obtain
a board which he had placed there, fell down the shaft and was in
stantly killed. The court upheld the award of compensation, Judge
Howard, who delivered the opinion, saying:
A general utility man, engaged in an establishment where drugs
and chemicals are manufactured, must be presumed to participate
more or less in the work of the establishment. The deceased was
engaged at the instant of the accident in building a shelf, but in order
to do this it may have been necessary to handle the drugs and chemi
cals in the building; that is, move them so as to have room to build
the shelf, and after it was built place them upon the shelf. In fact,
the evidence before the commission shows that the deceased was re
quired to rearrange cases and do work of that character. In McQueeney v. Sutphen & Hyer (153 N. Y. Supp. 554 [see p. 264]), this
court said:
“ If the employee is engaged in an employment declared hazardous
by this law, but at times may work in a nonhazardous employment,
it is not unreasonable that the injury should be considered within the
act, if the employer fails to show all the facts.”
W
o r k m e n ’s
C o m p e n s a t io n — H
azard ou s
E
m ploym ent—
H
a rvest
—Aylesworthv. Phoenix
Cheese Co., Supreme Court of New York, Appellate Division, Third
Department (Nov. 10,1915), 155 New York Supplement, page 916.—
in g
I ce
for
Com pany P
r e p a r in g
F
oodstuffs
262
BULLETIN OF TH E BUBEAU OF LABOR STATISTICS.
Earle Aylesworth, while employed by the cheese company in harvest
ing ice, froze some of his fingers, and was awarded compensation
amounting to $159.50. Harvesting ice is not a hazardous employ
ment mentioned in the compensation act, while preparation of food
stuffs, in which the company was presumably engaged, is included.
It was held that since the employee’s regular work was the harvesting
of ice, and he had nothing to do with the preparation of foods, he
was not entitled to compensation, and the award was reversed.
W o r k m e n ’ s C o m p e n s a t io n — H azardo u s E m p l o y m e n t — J a n it o r —
P u t t in g o u t F lag —Gleisner
v. Gross & Herbener et cil., Supreme
Court of New York, Appellate Division, Third Department (Nov.
10, 1915), 155 New York Supplement, page 9J$ .—Albert Gleisner
suffered a fracture of the femur while in the employ of the company
named. His employment was as janitor of a building, which is not
a hazardous employment under the law. Group 42 of the compen
sation act includes: Structural carpentry; painting; construction, re
pair and demolition of buildings; plumbing; heating engineering;
covering of pipes or boilers. It appeared that the employee some
times engaged in some of the employments named in this group. The
industrial commission’s finding was that Gleisner slipped and fell
“ while going up on the roof to perform some work on the flagpole.”
The notice of injury and claim for compensation stated that he was
going to hang out the flag. The court set aside an award in the
claimant’s favor, Judge Woodward saying in the concluding portion
of his opinion:
Where, as apparently here, the employee’s ordinary duties and ac
customed scope of activities do not come exclusively or predomi
nantly within the category of enumerated employments, and only
casually or incidentally does he do work fairly falling within that
category, his right to remuneration must hinge on a finding that he
sustained injury while actually and momentarily doing work named
in the statute.
It is clear that additional evidence must be adduced and more comrehensive findings made before a janitor, who casually and incientally did plumbing, repair, and heating work, may receive com
pensation under the statute for injuries received while ascending a
ladder to the roof for the purpose of hanging a flag.
S
W o r k m e n ’ s C o m p e n s a t io n — H azardous E m p l o y m e n t — P r e pa r a
M eats —Kohler v. Frohmamm et <d., Supreme Court of New
York, Appellate Division, Third Department (May 5, 1915), 153
New York Supplement, page 559.—Katie Kohler made claim for
compensation for herself and children for the death of Nicholas
t io n o p
DECISIONS OF COURTS AFFECTING LABOR.
263
Kohler. The employer was a retail butcher, and the employee was
injured while grinding meat in an electric meat chopper. He lost
four fingers of his right hand, which resulted in pneumonia, causing
his death. It was contended that he was engaged in an occupation
declared hazardous by the statute. Group 30 is “ Packing houses,
abattoirs, manufacture or preparation of meats or meat products or
glue.” The court held that in the absence of evidence to the con
trary he had been properly held to be within the statute by the com
mission, which made an award to the claimants. Judge Kellogg, in
delivering the opinion, said:
It does not appear what kind of meat he was grinding or for what
purpose it was being ground. The employer, in his report, gives no
further details of the matter. Evidently he knew, or had the means
of knowing, the particular purpose for which the chopper was being
used at the time of the accident. It does not appear that the intestate
was not grinding the meat for sausage, or to make some other prepa
ration or meat.
Section 21 of the act called upon the employer for more particular
information than he gave. The position most favorable to the em
ployer is that a part of his business might fall within the hazardous
employment and a part not, and if he claimed the injury occurred
outside of the hazardous employment it rested with him to show the
facts. In McQueeney v. Sutphen & Hyer et al. (153 N. Y. Supp. 554
[see p. 264]), we have considered the application of this section. The
award should be affirmed.
W o r k m e n ’s C o m p e n s a t io n — H a z a r d o u s E m p lo y m e n t — P r e p a r a
t i o n o f M eats —H o t e l E m p l o y e e —De
la GardeTle v. Hampton Co.
et al., Supreme Court of New York, Appellate Division, Third De
partment (May 5, 1915), 153 New York Supplement, page 16%.—
Anna de la Gardelle claimed compensation for the death of her hus
band, Peter, while in the employ of the company named. He was a
butcher, or assistant to the chef, at the Hampton Hotel in Albany,
and his duty was the distribution of meats to the cooks as ordered.
While boning a leg of mutton on the block, his knife accidentally
slipped and cut an artery in his groin, resulting in death. The
workmen’s compensation commission decided that he was not engaged
in a hazardous employment within the meaning of the workmen’s
compensation law, and denied the claim, whereupon the claimant
appealed, contending that he had been so engaged within groups 30
and 33, which read as follows:
“ Group 30. Packing houses, abattoirs, manufacture or preparation
of meats, or meat products, or glue.”
“ Group 33. Canning or preparation of fruit, vegetables, fish, or
foodstuffs: pickle factories and sugar refineries.”
264
BULLETIN OF TH E BUBEAU OF LABOR STATISTICS.
The court concurred with the commission in holding that work
such as that in which the employee was engaged was not included in
the meaning of the law, Judge Lyon, who delivered the opinion,
saying the provisions quoted could not, in his judgment, be regarded
as covering any employment consisting of the preparation of meat or
foodstuffs for cooking purposes, in the ordinary course of household
duties, domestic service, or the conduct of hotels or restaurants in
which foods and meats are prepared and cooked for eating on the
premises.
W
o r k m e n ’s
C o m p e n s a t io n — H
azard ou s
E
m ploym ent—
P
resum p
—McQueeney v. Sutphen <& Flyer
et <d., Supreme Court of New York, Appellate Division, Third De
partment (May 5, 1915), 153 New York Supplement, page 654.—
Thomas McQueeney made claim for compensation for an injury
against the employer named and the insurer, and an award was en
tered in his favor by the commission, upon which the employer and
insurer appealed. The business of the employer was “ polishing plate
and window glass, jobbers and manufacturers of mirrors and bev
eled plates.” The employee was injured while assisting two other
employees in raising a light of plate glass from the cutting table.
The commission found that his employment was within group 20
of section 2 of the compensation law, which is: “ Manufacture of
glass, glass products, glassware, porcelain or pottery.” As to this
and other questions arising in the case, Judge Kellogg, who delivered
the opinion affirming the award, said for the most part:
Cutting up and beveling glass, or making looking-glasses of it,
may be considered a manufacture of glass products within the mean
ing of this law.
The appellants contend that it does not appear that the claimant
was engaged in one of the hazardous employments defined by section
2 of the law; that it does not appear that the glass which the claimant
was handling was being made into looking-glasses or beveled glass
plates, or even was to be cut into small-sized plates; that for all
that appears he may have been packing glass which had been sold
to a customer in the same condition it was in when received at the
shop. This contention overlooks the provision of section 21 that in
any proceeding for the enforcement of a claim it shall be presumed,
in the absence of substantial evidence to the contrary, “ (1) that the
claim comes within the provisions of this chapter.” The presumption
in itself is not unreasonable.
If the exact cause of the injury is not made plain to the commis
sion, the employer is at fault, as he failed properly to report the
accident. He has every means of knowing the facts, and
should not benefit by withholding them. If the employee is engaged
in an employment declared hazardous by this law, but at times may
work in a nonhazardous employment, it is not unreasonable that
t io n
of
I n c l u s io n
of
E
m ployee
DECISIONS OF COUBTS AFFECTING LABOR.
265
the injury should be considered within the act if the employer, fails
to show all the facts.
The State, in a way, assesses upon such hazardous employment such
a sum as may fairly meet its risks, collecting the money in advance,
or requiring security for its payment, for the benefit of the injured
employees. The amount it collects in each year from each employ
ment is based upon the number of men employed, the pay rolls, and
the particular nature of the employment. The commission, however,
permits an employer to contract for insurance by which, in cases of
an injury, the amount of the award shall be paid by the insurance
carrier to the State for the benefit of the injured persons, and also
permits the employer to be a self-insurer upon his satisfying the com
mission that he is able to pay and will pay to it the sums necessary
to meet awards for the injuries received by employees in his business.
In effect, therefore, the State through its commission, undertakes to
make compensation for injuries received in these hazardous employ
ments from moneys which the employer has in advance paid or se
cured to it under a law which declares that such payments may be
treated as a proper charge of the cost of operating the business, thus
in the end putting the premium upon the ultimate consumer. In
contemplation of the act and the constitutional provision under
which it was passed, accidents in the employment finally fall upon
the consumer, and not upon the employee or employer; the State
commission standing between the employee, the employer, and the
ultimate consumer.
We therefore have a situation in which, if the employer had
insured in the State fund, the insurance premium would rest upon
the basis that, when at work for his employer, the claimant, McQueeney, was to be engaged in the hazardous employment all the
while, and the premium having been exacted upon that basis, prima
facie the loss should be met upon that basis.
W orkm en’s
C o m p e n s a t io n — H azardo us
E m p l o y m e n t — “ V e h i
”—Wilson v. C. Dorflinger <&Sons et al., Supreme Court of New
York, Appellate Division, Third Department (Nov. 10, 1915), 155
New York Supplement, page 857.—William H. Wilson was killed
when he accidentally fell down an elevator shaft in the establishment
of his employer, the company named. He was a porter and shipping
clerk, and incidentally operated the elevator when he had occasion
to use it, there being no Regular operator. The court held that the
employee was included within the classification of group 41, which
includes operation of vehicles otherwise than on tracks, deciding that
the elevator car was such a vehicle.
cle
W o r k m e n ’s
C o m p e n s a t io n — H azardous
E m p l o y m e n t — W are
—Mihm v. Hussey et al., Supreme Cowrt of New York, Ap
pellate Division, Third Department (Nov. 10, 1915), 155 New York
Supplement, page 860.—William E . Mihm proceeded against his emh o u sin g
266
BULLETIN OF THE BUREAU OF LABOB STATISTICS.
plover, William H. Hussey, and the insurer, for compensation for
injuries sustained while employed as a shipper, and engaged in plac
ing barrels of vinegar in a storehouse maintained by the employer,
who was in the wholesale produce business. The State industrial
commission submitted to the court the question whether the employee
was engaged in a hazardous employment, it being alleged that the
occupation was included in group 29, which embraces “ warehous
ing.” Judge Lyon, after stating the facts and quoting definitions
of “ warehousing” and “ employment,” said:
Claimant’s employer was not carrying on the business of warehous
ing for pecuniary gain; hence the submitted question should b?
answered in the negative.
W o r k m e n ’ s C o m p e n s a t io n — I n j u r y — P r o x im a t e C au se — Great
Western Power Co. v. PUlsbury et al., Supreme Court of California
(Oct. 18,1915), 151 Pacific Reporter, page 1136.— On July 1, 1914.
Ernest Dreyer was in the employ of the company named, shaving and
painting poles. He accidentally caught his left hand between a pole
and another piece of timber, bruising the flesh and knocking a small
piece of skin from the back of the hand. He continued at work on
July 2 and 3, using the other hand only. July 4 was Saturday, and
when work was resumed on Monday he was unable to go to work
because of the condition of the hand and the severe pain. Blood
poisoning appeared to be the cause of the condition, and the time
when the pain and suppuration ensued was said by physicians to be
consistent with the period of development of a common germ caus
ing this condition, if the bacilli had entered at or about the time of
the aceident. An award of $78.97 was made, with the further sum of
$9.37 weekly, beginning September 17, 1914, and continuing until
the termination of the disability. This award was affirmed, Judge
Shaw saying in the opinion:
We perceive no merit in the claim that this disability was not proximately caused by the injury and abrasion of the skin. Such results
do ensue from such abrasions^ and they are brought about by the
operation of what are ordinarily considered natural forces; that is,
by the intervention of infectious germs usually, or at least frequently,
present in the air or on the surface of substances with which any
person may come in contact, and which are invisible to the eye and im
perceptible to the senses. The accident was the proximate cause of
the injury, within the definition of the term “ proximate cause” as
elaborately stated by Justice Henshaw in Merrill v. Los Angeles, etc.,
Co. (158 Cal. 503, 111 Pac. 534).
W o r k m e n ’ s C o m p e n s a t io n — I n j u r y — P r o x im a t e C a u s e —Kill v.
Industrial Commission of Wisconsin et al., Supreme Court of Wis
consin (Apr. 13, 1915), 152 Northwestern Reporter, page 148.—
DECISIONS OF COURTS AFFECTING LABOR.
267
Edward A. Kill cut his left wrist on April 16,1915, while in the em
ploy of the Plankinton Packing Co. as a tinsmith. The company
sent him to a physician, who treated him, and on April 25 the wound
was practically healed. On the evening of April 26 the injured man
engaged in a boxing bout, and the wrist afterwards grew worse and
became infected, finally resulting in the loss of bones of the hand and
wrist, incapacitating him from following his trade. The commis
sion found that the bacteria had been walled off by natural processes
at the time he engaged in the boxing match, and would not have done
further harm, and eventually would have been expelled from the
system but for the strenuous exercise which stirred them to renewed
activity and at the same time lessened his resisting power. The com
mission on these findings dismissed the application for compensation,
and the circuit court of Dane County entered judgment confirming
this order. The supreme court affirmed the judgment, holding that
the injury was not the proximate cause of the ultimate disability.
Judge Kerwin, in delivering the opinion, said in part:
I n th e in sta n t ca se th e b o u t w h ic h w a s su b seq u en t t o th e o r ig in a l
in ju r y in te rv e n e d a n d w a s th e efficien t cau se a n d h a d its o r ig i n .in
d e p e n d e n t o f th e o r ig in a l ca u se a n d su p e rse d e d i t a n d th e r e b y b eca m e
th e p r o x im a t e ca u se o f th e in ju r y . [C a s e s c it e d .]
As appears from the statement of facts, the commission found that
had the applicant refrained from entering the boxing bout, and
given his wrist only moderate exercise for a few days more, no
serious result would nave followed. This finding is supported by the
evidence, and establishes the fact that the boxing bout proximately
caused the injury complained of, within the meaning of the work
men’s compensation act; therefore the decision below is right and
must be affirmed.
W o r k m e n ’s C o m p e n s a t io n — I n j u r y A r i s i n g O u t o f a n d
C o u r s e o f E m p lo y m e n t — A t t e m p t e d R e s c u e —Dragovich v.
In
Iro
quois Iron Co., Supreme Court of Illinois (Oct. 27,1915), 109 North
eastern Reporter, page 999.—Peter Dragovich brought proceedings
for compensation for the death of Frank M. Markusic, which oc
curred while the latter was in the employ of the company named.
Judgment was awarded in the sum of $8,500 in the circuit court of
Cook County, on an appeal by the employer from the report of the
board of arbitration.
One point urged by the company was that the act had not been
passed by the legislature in accordance with constitutional provisions.
The court, however, rejected this contention on the evidence.
It appeared that the employee, in running to aid another employee
who had fallen through an opening in the floor into hot water, and
who shouted for help in Croatian, the native language of both, had
himself fallen into the hole. This opening could not be seen on ac
268
BULLETIN OF TH E BTJBEATJ OF LABOB STATISTICS.
count of steam arising from it. The other employee was rescued by
others about the same time that Markusic fell in. The latter died
two days later from the effects of the scalding. The court held that
the injury arose out of and in the course of employment, an.d affirmed
the award. Judge Carter, who delivered the opinion, referring to the
phrase “ arising out of and in the course of employment,” said:
This provision of the statute has never been construed by this court,
but somewhat similar acts have been construed by the courts in other
jurisdictions. Under these authorities it is clear that it is the duty
of an employer to save the lives of his employees, if possible, when
they are in danger while in his employment, and therefore it is the
duty of a workman in his employ, when occasion presents itself, to
do what he can to save the lives of his fellow employees when all are
at the time working in the line of their employment. Any other
rule of law would be not only inhuman, but unreasonable and un
economical, and would, in the end, result in financial loss to employers
on account of injuries to their employees. From every point of view
it was the duty of the deceased, as a fellow employee, in the line of
his duty to his employer, to attempt to save the life of his fellow em
ployee under the circumstances here shown. That he failed in his
attempt does not, in the slightest degree, change the legal situation.
W o r k m e n ’s C o m p e n s a t io n — I n j u r y A r i s i n g O u t op a n d I n
C o u r s e o p E m p lo y m e n t — B o a r d in g C a r A f t e r W o r k T im e — De
Toe v. New York State Railways, Supreme Court of New York, Ap
pellate Division, Third Department (Sept. 15,1915), 155 New York
Supplement, page 12.—The widow of Edward De Yoe was awarded
compensation of $5.59 weekly during widowhood, together with
funeral expenses, for the death of her husband. He had been in the
employ of the company named, which was a self-insurer, as a motorman, and was run down and killed by an automobile while going
from the car bam to take a car to go and have his watch tested. This
testing was a requirement of his employment, and was to be done
every two weeks under penalty. Employees were not paid for their
time in having the test made, but the person making it was desig
nated and paid by the company. The court set aside the award,
Judge Woodward, who delivered the opinion, saying in part:
The crucial question at all times is whether he is engaged in the
hazardous employments mentioned in the statute, for it was only
as to these that the legislature has required the employer to provide
compensation.
The evidence is that the deceased had closed his day’s work, and
made his report of his time in writing, on which his wages were
based, and that he had passed out of tne employer’s barn, and had
reached the middle of the street, when he was struck by a passing
automobile, and if the master is liable here he must be so because or
a general insurance liability. It can not be under the terms of the
DECISIONS OF COURTS AFFECTING LABOR.
269
workmen’s compensation act. The State has not yet required the
employer to become a general insurer of the lives of his employees.
It has simply required that they be protected while engaged in the
performance of certain hazardous employments.
W o r k m e n ’ s C o m p e n s a t io n — I n j u r y
A r is in g
Out
of
and
In
C ourse of E m p l o y m e n t — B u r d e n of P roof— In
re Savage, Supreme
Judicial Court of Massachusetts (Nov. 23, 1915), 110 Northeastern
Reporter, page 282.— M rs . E v a S a v a g e p r o c e e d e d f o r co m p e n s a tio n
f o r th e d ea th o f h e r h u s b a n d , J o s e p h W. S a v a g e . T h e in d u s tr ia l
a ccid e n t b o a r d d e c id e d a d v e rs e ly t o th e c la im a n t, a n d th e s u p e r io r
c o u r t o f W o r c e s te r C o u n ty e n te re d a d e cre e a c c o r d in g ly . T h e d e cre e
w a s affirm ed, J u d g e C a r r o ll, w h o d e liv e re d th e o p in io n , s a y in g :
Under the workmen’s compensation act, the findings of the indus
trial accident board are equivalent to the verdict of a jury or the
findings of a judge and are not to be set asidedf there is any evidence
to support them. [Cases cited.]
The industrial accident board has found that:
“ The employee, Joseph W. Savage, did not receive a personal
injury arising out of and in the course of his employment; that his
death occurred by reason of his unexplained absence from the car
which he was engaged in unloading; that his presence on the rail
road track was unnecessary under the circumstances and subjected
him to a needless risk of injury from moving railroad trains; and
that, therefore, the widow, Mrs. Eva Savage, is not entitled to com
pensation under the statute.”
The plaintiff is not entitled to recover under this statute, unless
the injury arose out of and in the course of her husband’s employ
ment; and to establish these facts the burden of proof rests upon
her. It is not enough “ to show a state of facts which is equally con
sistent with no right of compensation as it is with such right.”
There being no evidence to show that the fatality was caused by her
husband’s employment or that it occurred while he was engaged
therein, she can not recover. [Cases cited.]
W o r k m e n ’s C o m p e n s a t io n — I n j u r y A r i s i n g O u t o f a n d I n
C o u r s e o f E m p lo y m e n t — C l e a n i n g M o t o r c y c l e U s e d i n B u s i
n e s s — Kingsley v. Donovan et al., Supreme Court of New York,
Appellate Division,, Third Department (Nov. 10, 1915), 155 New
York Supplement, page 801.—Harry H. Kingsley proceeded against
his employer, William F. Donovan, and the insurer, for compensa
tion for the loss of the distal phalanges of the first and second fingers
of his right hand. While cleaning the clutch of his motorcycle the
fingers were caught in the chain guard, and portions of them taken
off. The motorcycle was owned by the employee, who used it in
riding to and from his work, and occasionally in the business of the
270
BULLETIN OF TH E BUREAU OF LABOR STATISTICS.
employer. The court, with one judge dissenting, affirmed an award
of the compensation commission, Judge Kellogg saying in the
opinion delivered by him for the court:
The appellants contend that the accident was not one arising out
of and in the course of employment. There is some evidence tend
ing to prove those facts, and under the workmen’s compensation law
the decision of the commission is conclusive upon the facts. Clearly,
if the bicycle was only used for the convenience of the claimant in
bringing him to and from his place of work, the case would not be
within the act. But the evidence shows that from time to time it
was used in the business of going to and from the work off the
premises, and that at other times, when it had been cared for during
working hours, no question had been raised by the employer. It
could not be used in the business, unless kept in proper condition.
The fact that the workman was engaged upon it near the place of
business and during business hours, and that it was frequently used
in the business, do not make the findings of the commission
unreasonable.
"W o rk m e n ’s
C o m p e n s a t io n — I n j u r y
A r is in g
O ut
of
and
In
C o u r s e o f E m p lo y m e n t — D e a t h b y L i g h t n i n g —Klcminshi
v. LaJce
Shore <£•Michigan Southern, Railway Co., Supreme Cowrt of Michi
gan (Apr. 19, 1915), 152 Northwestern Reporter, page 213.—The
widow of a railroad section man who was killed by a stroke of light
ning while he was in a barn in which he had taken refuge from a
storm at the direction of the foreman made application for compensa
tion. The industrial accident board made an award in her favor, and
the company appealed. The supreme court reversed and set aside
the award, saying in the opinion delivered by Judge McAlvoy:
It is our opinion that in the instant case claimant’s husband did
not come to his death as the result of “ a personal injury arising out
of and in the course of his employment,” within the meaning of the
workmen’s compensation law. It is clear from the stipulated facts
that this injury was in no way caused by or connected with his em
ployment through any agency of man which combined with the ele
ments to produce the injury; that plaintiff’s decedent by reason of
his employment was in no way exposed to injuries from lightning
other than the community generally in that locality.
W o r k m e n ’ s C o m p e n s a t io n — I n j u r y A r is in g O u t o f a n d I n C ourse
E m p l o y m e n t — D e a t h b y L ig h t n in g —State ex rel. People’s Coal &
Ice Co. v. District Court of Ramsey County, Supreme Court of Min
nesota (June 4,1915), 153 Northwestern Reporter, page IIP.—Caro
line Newman brought action for compensation for the death of her
son, employed by the company named in the title of the case. Com
pensation was awarded her by the district court, and the company
brought certiorari to review the decision.
of
DECISIONS OF COURTS AFFECTING LABOB.
271
The employee was the driver of an ice delivery team, and was
required to cover his route regardless of weather, though he was
permitted to seek shelter from storms. On the morning of Septem
ber 1, 1914, during a severe rainstorm accompanied by lightning,
he was on the usual route. He left the team in the street and went
toward a large elm tree at the side of the road, either for protection
from the storm or on his way to solicit orders. The tree was struck
by lightning, and he was killed.
The court reviewed the few and conflicting cases in Great Britain
and this country involving death by lightning, and held that, since
the Minnesota law makes the review by the court one on questions of
law only, and since there was evidence to sustain the finding that the
injury arose out of the employment, it was not called upon to disturb
the judgment rendered;
W o r k m e n ’s C o m p e n s a t io n — I n j u r y A r i s i n g O u t o f a n d I n
C o u r s e o f E m p lo y m e n t — D o i n g F o r b id d e n A c t — Smith v. Corson,
Supreme Court of New Jersey (Feb. H, 1915), 93 Atlantic Reporter,
page 112.— Lillie B. S m ith , a d m in is tra trix , p e titio n e d in th e c o u r t o f
co m m o n pleas o f Cape May C o u n ty a g a in st Leander Corson f o r
ben efits u n d e r th e w o r k m e n ’s co m p e n sa tio n act.
H e r d e ce d e n t h a d
been e m p lo y e d as a ca rp e n te r, a n d w a s k ille d o n th e 2 1 st d a y o f
A p r il,
1913, b y
a f a l l f r o m a b o a r d la id a cross a s c a ffo ld .
T h e t r ia l
ju d g e fo u n d as fa c t s th a t th e d ecea sed w a s n o t a s tr o n g , h e a lth y
m a n , w a s e m p lo y e d a t less p a y th a n th e r e g u la r c a rp e n te rs, a n d w a s
e x p re s s ly t o l d b y h is e m p lo y e r n o t t o g o u p o n th e s c a ffo ld s n o r d o
a n y c lim b in g ; a ls o o th e r fa c t s w h ic h m ig h t in d ic a te th a t a t th e tim e
o f th e a ccid e n t h e w a s n o t a ctu a lly w o r k in g . T h is ju d g e n e v e rth e
less fo u n d th a t th e a c cid e n t w a s o n e a r is in g o u t o f a n d in th e co u rse
o f e m p lo y m e n t. T h e su p re m e c o u r t re v e rse d th e ju d g m e n t in fa v o r
o f th e p e titio n e r , J u d g e K a lis c h , w h o d e liv e r e d th e o p in io n , s a y in g
in p a r t :
This latter finding [that the accident arose out of and in course
of employment] can not be reconciled with the other facts found by
the trial judge, and is expressly gainsaid by his finding of fact that
the decedent was told by his employer “ to keep off scaffolds ahd not
to do any climbing.” His mishap and death were directly due to his
own disregard of nis master’s express orders. He was, on the scaffold,
not in the course of his employment but in direct violation of it, and
therefore it can not be said that the injuries which caused his death
arose out of his employment.
W o r k m e n ’ s C o m p e n s a t io n — I n j u r y A r is in g O u t o f a n d I n
C ourse of E m p l o y m e n t — F a il u r e o f H e a r t W h il e L if t in g — In re
Fisher, Supreme Judicial Cowrt of Massachusetts (Apr. 1,1915), 108
272
BULLETIN OF THE BUREAU OP LABOR STATISTICS.
Northeastern Reporter, page 361.—This was a proceeding under the
workmen’s compensation act by Mabel Fisher, widow of George T.
Fisher, against Zebulon L. Canady, who had been his employer, and
the latter’s insurer. The superior court of Suffolk County entered a
decree in favor of the widow, following a decision by the committee
of arbitration that the deceased met death by an injury arising out of
and in the course of employment, and the affirmance of this decision
by the industrial accident board. The decision was upheld by the su
preme judicial court. The employee, after several times carrying
water, two pails at a time, for some distance, was changed to the
work of carrying bags of coal weighing 150 or 200 pounds. He car
ried one and lifted it on a car, and the second was rested on the wheel
of the wagon from which it was being unloaded, for him to take. He
reached for it, and about one minute later the passer, who had turned
his back, saw him on the ground in a dying condition. He had had
articular rheumatism, and there was testimony that valvular trouble
of the heart was to be expected after this disease, and also that such
heart trouble was undoubtedly the cause of death, and was probably
induced by a final effort after the heart muscles were already very
tired. The court held that there was sufficient evidence on which to
base the finding that an injury in the course of employment was the
cause of death.
W o r k m e n ’ s C o m p e n s a t io n — I n j u r y A r is in g O u t o f a n d I n
C ourse or E m p l o y m e n t — I m p l ie d A u t h o r it y to do C e r t a in W o r k —
State ex rel. Duluth Brewing & Malting Co. v. District Court of St.
Louis County et al., Supreme Court of Minnesota (Mar. 19, 1915),
151 Northwestern Reporter, page 912.—Charles De Cook was injured
while in the employment of the company named, and compensation
was awarded him by the district court. The question presented was
as to whether the injury was one arising out of, as well as in, the
course of his employment, and the supreme court decided that it was
such, affirming the judgment below in the employee’s favor.
The employee was foreman’s helper, and had varied duties among
which was that of replacing the electric light bulbs in the bottling
room when defective. These were covered with wire screens to pre
vent breakage, and each was locked, the foreman carrying the key, a
simple three-cornered contrivance. On April 9, 1914, De Cook was
handed by another workman what was apparently an empty car
tridge shell of unusual length. It occurred to him that this could
easily be made into a key, and save the time necessary to hunt up the
foreman and carry the key back and forth when the light bulbs had
to be replaced. He attempted to. do this, using a hammer, and it
DECISIONS OF COURTS AFFECTING LABOR.
273
proved that the article was an unexploded dynamite cap, which
exploded, a portion piercing his right eye* and destroying the sight.
Judge Holt, in delivering the opinion, from which one judge dis
sented, spoke in part as follows:
The trial court evidently took the view that De Cook in good faith
believed he was furthering his master’s business and performing an
act which he might reasonably be expected to do when he undertook
to supply himself with a key. He had never been told that the light
bulbs were to be under lock as to him who was charged with the duty
of seeing that the broken and defective ones were replaced. When a
servant undertakes in the course of his employment, during the proper
hours therefor, and in the proper place, to do something in further
ance of his master’s business, and meets with accidental injury therein,
the trial court’s finding that the accident arose out of and in the course
of employment should not be disturbed, unless it is clear to us that
the ordinary servant, in the same situation, would have no reasonable
justification for believing that what he undertook to do when injured
was within the scope of his implied duties. If another servant duly
engaged in the master’s work had had his sight destroyed, instead of
De Cook, in this accident, the thought would have been almost irre
sistible that this law was meant to cover such injury. But, upon the
facts in this case, we doubt whether De Cook should occupy a less fa
vorable position. If the attempt to make a kev was reasonably within
the scope of his employment, the fact that, from ignorance or error
of judgment, he made use of dangerous material, not provided by the
master, should not necessarily exclude the conclusion that the injury
arose out of the employment. The term can not be restricted to in
juries caused from anticipated risks of the service, if the law is to be
of the benefit intended.
W o r k m e n ’ s C o m p e n s a t io n — I n j u r y A r is in g O u t of a n d I n
C ourse of E m p l o y m e n t — O p e r a t io n of T r u c k — Hendricks v. See-
man Bros., Supreme Court of New York, Appellate Division,, Third
Department {Nov* 10,1515), 155 New York Supplement, page 638.—
Charlotte Hendricks proceeded under the workmen’s compensation
act for the death of Richard Hendricks, who had been a helper on a
track belonging to the firm named. The operation of a truck on a
highway is defined in.the law as a hazardous employment. I t was
held that this included the work of the helper in loading and unload
ing, watching and protecting the goods, etc.
The employee had ordered some boys to get off the rear of the
wagon, and when they did not obey, he jumped from it to drive them
away., fell and was killed. It was held that the work of protecting
the employer’s goods and interests was a duty arising out of and in
the course of his employment, and that the fact that he may have
been impulsive and imprudent made no difference. An award in
favor of the claimant was therefore affirmed.
26071°— Bull. 189— 16--------18
274
BULLETIN OP TH E BUBEAU OF LABOR STATISTICS.
W o r k m e n ’ s C o m p e n s a t io n — I n j u r y A b is in g O u t of a n d I n
C ourse of E m p l o y m e n t — S a v in g E ff ec ts fr o m S i n k i n g L ig h t e r —
In re Brightman, Supreme Judicial Court of Massachusetts (Dec. SI,
1914), 107 Northeastern Reporter, page 527.— E m m a L . B r ig h tm a n ,
w id o w o f I r a B . B r ig h tm a n , d eceased , b r o u g h t a c tio n f o r co m p e n s a
t io n f o r h is d e a th a g a in s t th e in su re r o f h is e m p lo y e r .
B r ig h tm a n
h a d been a c o o k o n a lig h t e r , w h e re h is e m p lo y m e n t r e q u ire d h im t o
liv e a la r g e p a r t o f th e tim e. W h e n th e c r a f t b e g a n t o s in k h e w e n t
b e lo w sev era l tim e s t o secu re h is effects. T h e e x e r tio n a n d e x c ite
m e n t a g g r a v a te d an e x is t in g w eak n ess o f th e h e a rt, so th a t h e d ie d
s o o n a ft e r r e a c h in g th e d o c k .
T h e c o u r t h e ld th a t th e in ju r y ca m e
w ith in th e s c o p e o f th e co m p e n s a tio n a ct, s a y in g th a t “ T h e p e r ils
o f th e sea w e r e risk s a r is in g o u t o f a n d in th e co u rse o f th e e m p lo y
m en t,” th a t “ T h e d ecea sed d id n o t a b a n d o n th e s e r v ic e o f h is e m
p lo y e r a n d e m b a rk o n a v e n tu re o f h is o w n w h e n he t r ie d t o sa v e
h is c lo t h in g ,” th a t “ T h e s ta n d a r d t o b e a p p lie d is n o t th a t w h ic h
n o w , in th e li g h t o f a ll th a t h a p p e n e d , is seen t o h a v e b e e n d ir e c t ly
w ith in th e lin e o f la b o r h e lp fu l t o th e m a ster, b u t t h a t w h ic h an
o r d in a r y m a n r e q u ir e d t o a c t in su ch an e m e rg e n cy m ig h t d o w h ile
a ctu a te d w it h a p u r p o s e t o d o h is d u ty ,” a n d th a t “ There m a y b e
fo u n d a ca u sa l c o n n e c tio n b etw een th e e m p lo y m e n t a n d th e t h in g
d o n e b y th e e m p lo y e e a t th e tim e o f the s in k in g o f th e lig h t e r .” A
d e cre e in f a v o r o f th e p la in t iff w a s a c c o r d in g ly affirm ed.
W o r k m e n ’s C o m p e n s a t io n — I n j u r y A r i s i n g O u t o f a n d I n
C o u r s e o f E m p lo y m e n t — S u p e r i n t e n d e n t M u r d e r e d b y T r e s
p a s s e r —In
re Reithel, Supreme Judicial Court of Massachusetts
(Oct. 18,1915), 109 Northeastern Reporter, page 951.—Alma Reithel
instituted proceedings under the workmen’s compensation act for the
death of her husband, Erhardt Reithel, who had been superintendent
of the Pondville Woolen Mills. She was awarded compensation,
and the insurance company appealed. The employee was shot and
killed by an intruder whom he ordered from the premises in accord
ance with his general duty and with specific instructions given by the
manager on a previous occasion when the same man had created a
disturbance. The award was affirmed in an opinion by Judge Rugg,
who said:
This finding [of the industrial accident board] presents a case of
wholly unprovoked murder. The question is, whether this personal
injury was one “ arising out of and in the course of ” the employment
of Reithel. Plainly it arose in the course of his employment. It
came upon him while he was doing his duty in the place and manner
required by his contract of hire.
The only point of difficulty is whether it also arose out of the
employment. The industrial accident board has found that it did.
DECISIONS OF COURTS AFFECTING LABOR.
275
The facts are not in dispute. The question to be decided is whether
as a matter of law this finding was erroneous.
The employee was the superintendent of a mill. It was a part of
his general duty to order trespassers from the premises. In this
respect he was required to deal with those more or less heedless of
the rights of others in their conduct. Superimposed upon this gen
eral obligation resting on him by reason of his contract of employ
ment was a special one respecting Bombard. It came into existence
because Bombard on some occasion within a few weeks before the
event in question had been upon the premises of the employer. His
conduct on that occasion was of sufficient importance to form the
subject of a report by the superintendent to his superior, the manager
of the factory. In view of these circumstances, the employee was
given a special direction respecting Bombard. His duty was defined
in. this particular. He was to be ordered out, and the police were to
be summoned if he did not go. The liability to whatever personal
injury might be likely to arise in dealing with such a person was,
therefore, within the contemplation of the employer and employee in
establishing the boundaries of the latter’s duty. That became a risk
of the employment.
Under our workmen’s compensation act it is not required that the
injury be also an accident, differing in this respect from the English
act and being more liberal to the employee. But even under the
English act, in the present case, the dependent would be awarded
compensation. [Cases cited.]
Workmen’s Compensation—I njury A rising Out of and I n
Course of Employment—Volunteer—Spooner v. Detroit Saturday
Night Co., Supreme Court of Michigan, (July 23,1915), 153 North
western Reporter, page 657.—Mary Spooner made claim under the
compensation act for the death of her husband, James Spooner. The
newspaper publishing company named, having suffered a fire, had
contracted for the use of certain printing apparatus of the Winn &
Hammond Co. in the plant of the latter, which also furnished ele
vator service. The Saturday Night Co. was to furnish an engineer
in case it wished to use the machinery, and therefore needed power,
after 5 p. m. The company began to operate at night on February 6,
1913, and engaged an engineer named McCabe for that purpose. On
that night Spooner, the engineer for the Winn & Hammond Co., told
McCabe that he himself would run that night, that McCabe need
not stay; and the latter accordingly went away. Spooner had been
employed as engineer for many years, and running the elevator was
no part of his duties. About 2 o’clock in the morning he went from
the basement, where the engine room was, up the stairway. On the
second floor he met three employees of the Saturday Night Co. and
engaged in conversation with them. The three men then started to
go to the third floor to get stools upon which to sit while at work,
and Spooner offered to take them up in the elevator. The elevator,
276
BULLETIN OF THE BUBEAU OF LABOR STATISTICS.
upon which there was no light, passed one floor safely, and as it was
passing the next floor Spooner received the injury which caused his
death, but the three men were unable to tell the cause of the accident.
An arbitration committee made an award of $2,520 in favor of the
claimant, and this was affirmed by the industrial accident board.
That board found that Spooner was in the employ of the Saturday
[Night Co. after 5 o’clock on February 6, while the contention of that
company was that he never became its employee, and that there was
nothing upon which to base this finding. It also claimed in appeal
ing from the decision that the injuries did not arise out of and in
the course of his employment, and if he was an employee of that
company his employment was casual. The court reversed the ruling
of the board, in an opinion delivered by Judge Stone.
As to the question of employment, Judge Stone said:
A careful reading of the evidence contained in this record leads us
to the conclusion that we can not say there was no evidence to sup
port the finding that Spooner was an employee of the Detroit Satur
day Night Co.
Continuing'he said:
Did the injuries arise out of and in the course of his employment?
The appellant needed and had employed an engineer to operate the
engine and dynamo upon the night in question. It was not concerned
with and did not need the use of the elevator. If we are right in
saying, under the first proposition, that there was evidence that
Spooner was in the employ of the appellant, that employment was
solely to operate the engine and dynamo. The engine room was lo
cated in the basement of the building; and, so far as this record
shows, Spooner had no occasion to leave it, and had no duty to per
form upon the upper floors of the building during the night of the
injury. Under the evidence he had gone upon these upper floors
purely and solely to visit with the men working there. The evi
dence is undisputed that he walked up the stairway. He owed no
duty to those men, or to anybody, to take them to the upper floors
upon the elevator; neither was he requested to do so. It was doubt
less a friendly act upon his part, which did not tend to further the
business of appellant. At the time of the injury we think that he
was engaged in an act outside of, and not in the course of, his employ
ment.
W o r k m e n ’ s C o m p e n s a t io n — I n j u r y
A r is in g
O u t of E m pl o y
L ig h t n in g —Hoenig v. Industrial Commission of
Wisconsin et al., Supreme Court of Wisconsin (Feb. 9, 1915), 150
Northwestern Reporter, page 996.—Helena Hoenig applied to the
industrial commission for compensation for the death of her hus
band, who was killed by a stroke of lightning while at work on a dam
on August 8, 1913. The industrial commission found that the ex
posure to hazard from lightning stroke at the time and place of
m en t— D eath by
DECISIONS OP COURTS AFFECTING LABOR.
277
injury was not different, substantially, from that of ordinary out-ofdoor work, and accordingly ordered that the application be dismissed.
The court held that, there being substantial evidence to support the
finding of the commission, it would not be disturbed.
W o r k m e n ’ s C o m p e n s a t io n — I n j u r y A r is in g
m ent—
Out
of
E m ploy
E m p l o y e e W a r m in g H im s e l f B e t w e e n C ars — Northwestern
Iron Co. v. Industrial Commission et al., Supreme Court of Wis
consin (May 4, 1915), 152 Northwestern Reporter, page 416.—The
industrial commission awarded compensation to one Kretkovich for
injuries suffered while employed by the company named, and the
company brought action to set aside the award. The company manu
factures iron briquettes, and these are run out in small dump cars into
the yard, where it was the duty of the injured employee to dump the
cars, move them onto a return track, and pick up any briquettes
which had fallen off the cars, A car usually came out every 15
minutes, and the men had about 5 minutes’ leisure between trips.
The injury occurred at about half past 10 on a cold night, and the
employee was caught between two cars, while either picking up
briquettes or warming himself by the car of heated briquettes which
had last come out. The commission decided that in either case he
was entitled to compensation, which view the supreme court upheld,
as is shown by the opinion delivered by Judge Winslow and quoted
from as follows:
If we credit the claimant’s own story, there is no question about
his right to compensation, because he was picking up briquettes at
the time the second car came from the kiln and struck him. The
commission, however, did not decide whether the claimant or Vignovich told the truth, but held that in either case compensation must
be paid; hence we must consider the case on the assumption that the
story told by Vignovich is true. This story is in effect that, the
night being cold, they blocked a car as it came out and sat down on
the track in front of it to get warm from the heat of the briquettes,
which were just out of the kiln; that in a few minutes he left claimant
lying on the track in front of the car and went over to his own
track 25 feet away, and some minutes later heard claimant holler,
and came over and found him caught between the cars. The only
reasonable inference from this testimony seems to be that the claim
ant, instead of at once proceeding to pick up the fallen briquettes,
dump the car, and thus prepare to receive the next car, blocked, the
car, and proceeded to sit down or lie down in front of it in order to
get warm, and was there caught by the next car, either while he was
engaged in getting warm or while he was picking up briquettes after
he had got warm. This would be good ground upon which to find
the claimant negligent, but negligence does not prevent compensation.
Clearly this testimony does not show that the injury was intention
ally self-inflicted; hence the only question is, Does it show that at
278
BULLETIN OF THE BUREAU OF LABOR STATISTICS.
the time of the accident the claimant was not performing service
growing out of or incidental to his employment? We think not.
The man’s duties involved periods of leisure during which apparently
he was expected to kill time as best he might, with no specific direc
tion as to what he should do or where he should wait; the night was
cold, and he put off dumping the car until he could warm himself
from its heated contents; to say that in so doing he had left the mas
ter’s employment, was pursuing his own private purposes, and doing
something foreign to the work he was employed to do is illogical to
a degree. To protect himself from undue and unnecessary exposure
to the cold was a duty he owed his master as well as himself, and it
does not follow that he left his master’s employment because he neg
ligently allowed the second car to run into him while he was warm
ing himself.
W o r k m e n ’s C o m p e n s a t io n — I n j u r y A r i s i n g O u t o f E m p lo y
m e n t — H a z a r d o u s E m p lo y m e n t — Newman v. Newman et al., Su
preme Court of New York, Appellate Division, Third Department
(Nov. 10,1915), 155 New York Supplement, page 665.—Belle New
man brought proceedings for compensation for herself and children
for the death of Frank Newman, against George H. Newman, em
ployer,. and his insurer. The compensation commission entered an
award, and the insurance company appealed.
The employee Newman worked in connection with a packing house,
and his ordinary duties were to drive a meat delivery wagon, also at
times to assist about the abattoir, cut meat for retail delivery, and
occasionally, after 7 p. m., when the wagon delivery ceased, to make
near-by deliveries on foot. On the evening of the injury he cut meat
from 7 till 10 p. m., and started to deliver an order, when he fell over
a bucket of broken glass, severed a vein, and died from the resulting
hemorrhage.
The court held that the employee was not engaged at the time in
a hazardous employment under group 30, “ Packing houses, abattoirs,
manufacture or preparation of meats or meat products or glue,” nor
group 41, which includes the operation of wagons. It was held that
the hazard was one to which any individual would have been equally
exposed while walking in the same way, and therefore was not inci
dent to his employment. The award was reversed.
W o r k m e n ’ s C o m p e n s a t io n — I n j u r y A r is in g O u t of E m p l o y
FUippis v. Fcdkenburg et al., Supreme Court of New York, Appellate Division,
Third Department (Nov. 10,1915), 155 New York Supplement, page
761.—Millie De Filippis, claimant for compensation in this proceed
m en t— P l a y f u l
A s s a u l t b y F e l l o w S e r v a n t —De
DECISIONS OF COURTS AFFECTING LABOB.
279
ing, was a girl 15 years of age, employed as operator of a buttonhole
machine in the manufacture of shirts. There were in the factory two
adjoining toilet rooms separated by a partition. The employee went
into one of these, and felt something touch her on the arm. She
looked through the crack to see where the article came from, and a
girl thrust some scissors through the crack into her right eye, caus
ing nearly a total loss of vision of the eye. The employer and
insurer appealed from an award of compensation to her. The court
held that the occurrence was an accident, since it was unlooked for,
and not intended by either employee.
The court reviewed a number of cases in which it had been de
termined that accidents more or less similar did or did not arise out
of the employment, largely English cases, but including the New
York Supreme Court’s decision in favor of the employee in Hulley v.
Moosbrugger (93 Atl. 79 [see below]). It is pointed out, however,
that in New Jersey, where the last-named case arose, all employment
excepting casual employment is covered, while in New York only
certain hazardous employments are included. It was held that the
accident was not reasonably incidental to the service, and that the
judgment must be reversed.
W o r k m e n ’ s C o m p e n s a t io n — I n j u r y A r is in g O u t o f E m p l o y
P l a y f u l A s sa u l t of F e l l o w W o r k m a n — Hulley v. Moos
brugger, Court of Errors and Appeals of New Jersey (Nov. 15,1915),
95 Atlantic Reporter, page 1007.— A c t io n w a s b r o u g h t b y A n n ie E .
H u lle y a g a in st H e r m a n F. M o o s b r u g g e r , u n d e r th e w o rk m e n ’s c o m
m ent—
p en sa tion a ct, f o r th e d ea th o f h e r h u s b a n d , W il li a m H u lle y , w h ile
in th e d e fe n d a n t’s e m p lo y m e n t. H u lle y w a s a p lu m b e r , a n d w en t to
a b in in th e sh o p f o r fittin g s t o b e u sed o n a jo b h e w a s d o in g in a
d w e llin g h ou se. W h ile h e w a s d e s c e n d in g an in c lin e d c o n cre te flo o r
a fe llo w w o r k m a n w h o m h e w a s p a s s in g m a d e a p la y fu l a tte m p t to
k n o ck o ff h is h a t o r strik e h im , a n d in d o d g in g th is a tta ck H u lle y
s lip p e d , a n d su sta in e d in ju r ie s w h ic h ca u sed h is d ea th .
T h e co u rt
o f co m m o n p le a s o f S om e rse t C o u n ty re n d e re d ju d g m e n t f o r th e
p la in t iff, a n d th is w a s affirm ed b y th e su p re m e c o u r t (93 A t l. 79)
o n th e g r o u n d th a t su ch a n ev en t w a s “ re a s o n a b ly in c id e n t t o the
e m p lo y m e n t.”
O n a p p e a l, h o w e v e r , th e c o u r t o f e r r o r s a n d a p p e a ls
rev ersed th is ju d g m e n t, s in ce t o e n ta il r e s p o n s ib ility o n th e em
p lo y e r , th e in ju r y m u st b e th e re su lt o f an a c c id e n t w h ic h n o t o n ly
arises o u t o f b u t a lso in th e co u rse o f e m p lo y m e n t, w h ic h w a s n o t
fo u n d t o be tru e in th e p re se n t in sta n ce.
Chancellor Walker, who delivered the opinion, referred to a num
ber of English cases, the compensation law of Great Britain' contain
ing the same phrase as to “ arising out of and in course of employ
280
BULLETIN OF THE BUREAU OF LABOR STATISTICS.
ment,” saying, “ cases in that jurisdiction construing that language
will be useful in construing the same language in our own act.” In
accordance with the views set forth in the cases cited, the court
concluded that:
In the case at bar the employer was not charged with the duty to
see to it that none of his employees assaulted any other one of them,
either willfully or sportively. And when one made such an assault
upon another he was guilty of the doing of a negligent act as an
individual tort-feasor for which his employer was not responsible.
The accident in this case was clearly not one within the scope of
the employment of the decedent, nor was it one arising out of a risk
reasonably incident to that employment.
We are of opinion that an employer is not liable, under the work
men’s compensation act (P. L. 1911, p. 134), to make compensation
for iniury to an employee, which was the result of horseplay or
skylarking, so called, whether the injured or deceased party instiated the occurrence or took no part in it; for, while an accident,
appening in such circumstances, may arise in the course of it, it can
not be said to arise out of the employment.
f
W o r k m e n ’ s C o m p e n s a t io n — I n j u r y A r is in g O u t of E m p l o y
—P r o x im a t e C a u se —City of Milwaukee v. Industrial Com
mission et al., Supreme Court of Wisconsin {Mar. 2, 1915), 151
Northwestern Reporter, page $47.—Julius Torney was principal of a
school in Milwaukee. He was engaged on May 29, 1912, in testing
the applicants for positions on the basket-ball team of the school in
order to select a team for competition in an annual field meet required
by the school board. He was struck in the head by a basket ball,
which ruptured a blood vessel and caused unconsciousness. He never
recovered from the effects of this accident, and died on December 27
of the same year. He was undoubtedly suffering from an advanced
stage of arteriosclerosis at the time he was injured. Otherwise, the
blow would probably have caused no serious injury. The commis
sion awarded compensation to the widow, and the circuit court
entered judgment in her favor. The court stated that under the
compensation act a finding of the industrial commission could be
reviewed by the court only upon the grounds: (1) that the board had
acted without or in excess of its powers; (2) that the award was
procured by fraud; (3) that the findings of fact did not support the
award. Neither the second or third ground was relied upon, so that
the only ground open was that the board had acted in excess of its
powers by making findings having no support in the evidence. The
court said that if any reasonable view of the evidence did so support
the finding of fact, the latter would be upheld. It held that the
evidence did so support the finding that the accident grew out of the
employment.
m ent
DECISIONS OF COURTS AFFECTING LABOR.
281
As to the accident being the proximate cause of the injury, the
court drew a distinction between the meaning of proximate cause
imder the law of negligence and that of compensation, and held that
under the latter the fact that the result was not one that would be
reasonably anticipated to follow the cause—if it appeared that it in
fact did follow—did not have the important bearing that the city
attributed to it. Judge Vinge, who spoke for the court, said in part:
To incorporate into the phrase “ proximately caused by accident ” all
the conceptions of proximate cause in the law of negligence would
be to lug in at one door what the legislature industriously put out at
another. Proximate cause, under the law of negligence, always has to
be traced back to the conduct of a responsible human agency; under
the compensation act the words “ proximately caused by accident”
in terms relate to a physical fact only, namely2an accident. Hence,
if the injury or death can be traced, by physical causation not too
remote in time or place to the accident, then such injury or death was
proximately caused by the accident, irrespective of any element of
reasonable anticipation. The term “ proximately” was no doubt
used to exclude physical causes so remote in time or place or both as
to make them of doubtful value in tracing the relation between
cause and effect.
Workmen’s Compensation—I njury in Course of E mployment—
A cting as Fireman—In re McPhee, Supreme Judicial Court of
Massachusetts (Sept. 16,1915), 109 Northeastern Reporter, page 633.—
The dependent of Otis McPhee was awarded compensation by the in
dustrial accident board. McPhee had been employed as superintend
ent by the Atlantic Park Co., proprietor of an amusement resort in
the town of Hull and a subscriber under the workmen’s compensation
act. As a part of his duties he organized a fire brigade to protect
the property of the company. He- was also a member of the fire
department of the town, receiving a small compensation. On the
evening of June 22, 1918, fire broke out in a garage about 40 feet
from the buildings of the company. In the proceedings for comr
pensation the company’s general manager stated that he considered
that it was in the course of employment, and the duty of the em
ployee, to attempt to put out this fire. He and the men of the
brigade went with the company’s chemical engine, and remained until
the fire had been extinguished. The industrial accident board found
that the employee while operating the chemical apparatus became
drenched with water and saturated with smoke, and that the injury
inflicted by this means caused lobar pneumonia and death; that if,
according to some testimony presented, he went to the top of a ladder
and used a hose as a member of the town department, after all that
could be had been done with the chemical engine, this did not alter
the matter. This finding and the award were affirmed by the
supreme judicial court as based on sufficient evidence.
282
BULLETIN OF THE BUREAU OF LABOR STATISTICS.
W o r k m e n ’ s C o m p e n s a t io n — I n j u r y i n C ourse of E m p l o y m e n t —
P u t t in g u p H orse —Smith v. Price et oil., Supreme Court of New
York, Appellate Division, TMrd Department (May 5, 1916), 163
New York Supplement, page 281.—Lillian F. Smith made claim
for compensation on behalf of herself and her children for the death
of her husband, Erwin D. Smith, an employee of the company
named, and secured an award from the commission, from which the
employer M id insurer appealed. The deceased was employed in
driving a truck at Cortland, N. Y., and was putting up his horse in
the stall when it jumped and squeezed him against the side of the
stall, causing his death. The court held that this part of the duty
was included in the employment designated in the law under group
41, Judge Kellogg, who delivered the opinion, saying in part:
The benefit of the act is not limited to the actual time that the
horse is moving or that the employee is upon the truck. It covers
every injury or death received in the course of the employment. The
loading and unloading of his truck, hitching and unhitching his
horse to the truck, feeding and caring for his horse, are a part of
the employment or operating the truck, and are fairly within the
provisions of the law.
W o r k m e n ’ s C o m p e n s a t io n — I n j u r y i n C ourse o f E m p l o y
W o r k m a n S e e k in g S h e l t e r F r o m S t o r m —Moore v. Lehigh
m en t—
Valley Railroad Co., Supreme Court of New York, Appellate Divi
sion, Third Department (July 1,1916), 164 New York Supplement,
page 680.—Ralph R. Moore was awarded compensation against the
railroad company named for injuries sustained in its employ, and
an appeal was taken. The company owned and operated a rail
road between points in New Jersey and New York, and telegraph
and telephone lines along its route. The employee was assisting in
erecting a new line of poles and wire at a place where it was desired
to change the location of them. On July 23, 1914, a violent rain
storm arose during working hours. Several of the men went under
a tree until it no longer afforded protection, when some of them went
into a paper mill; but there being no more room in it, Moore, with
others, went under cars standing on a switch, about one-fourth mile
from where they had been working. No shelter was furnished by
the company for such occasions, nor was there any rule of the com
pany in regard to the matter; but it was customary for the men to
find shelter where they could, and no deductions were made from
their wages for time lost on other occasions nor on this one.
While the employee was sitting under a car, an engine moved the
cars. He was struck upon the forehead by a projection of the car
and fell over, and both legs were cut off, when they in some manner
DECISIONS OF COURTS AFFECTING LABOR.
283
got upon the rail. An award was made to him of two-thirds his
weekly wages for the remainder of his life. On appeal the com
pany’s contentions were that the compensation act was unconstitu
tional; that in such cases State legislation is excluded by the acts
of Congress relating to interstate commerce, viz, the Hours of Service,
Safety Appliance, and Employers’ Liability acts; and that the injury
was not an accident arising out of and in the course of employment.
As to the first two questions the court held that previous decisions
governed, Judge Lyon, who delivered the opinion, saying:
In the case of Jensen v. Southern Pacific Co. (109 X. E. 600 [see
{>. 221]) the workmen’s compensation act was held to be constitu
tional; and in the case of Winfield v. New York Central & Hudson
River Railroad Co. (153 N. Y. Supp. 499 [see p. 254]) we held that
the claimant, although engaged m interstate commerce, was not
excluded by section 114 of the workmen’s compensation law from
claiming benefits under that law, where the injury was in no way
attributable to the negligence of the employer, but was as to him
wholly accidental.
In discussing the question whether the occurrence was an accident
arising out of and in the course of employment, the English and
American cases were gone into quite fully, and the court, which con
cluded that this was an accident, and within the language of the
statute, and which affirmed the award, said in part:
That the injury was sustained by claimant during the course—
that is the period, or time, or extent—of the employment is not
seriously disputed by the defendant; but the defendant strenuously
contends that the injury did not arise out of the employment. It was
not only customary that the claimant should seek shelter from the
storm, but doing so was not a remote, but a necessary, and unques
tionably frequent, incident of his employment during the summer
months. Had he taken shelter in the paper mill, and the roof fallen
in, or the floor given way, and he been accidentally injured, he would
have been entitled to the benefit of the compensation law. Whether
a place in a stone crusher being operated by machinery, or under a
car standing upon a switch, was the safer place, does not appear.
The four linemen chose places under the cars. However, assuming
that the place under the car was the more dangerous, the fact that
the plaintiff’s judgment led him to choose it, and that he was in
jured there, does not bar him from the operation of the act. Con
tributory negligence furnishes no ground of defense. The compensa
tion law says that the employer shall provide compensation “ with
out regard to fault as a cause of such injury.” The risk of accidental
injury was incidental to the claimant seeking and obtaining shelter,
and to his employment, and was fairly within the contemplation of
both employer and employee. The act of seeking and obtaining
shelter arose out of—that is, was within the scope or the sphere of—
his employment, and was a necessary adjunct and an incident to
his engaging in and continuing such employment.
284
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BULLETIN OF TH E BUREAU OF LABOR STATISTICS.
W o r k m e n ’ s C o m p e n s a t io n — L ia b i l i t y of R eceiver fo r P a y m e n t
B e n e f it s —Wood et al v. Camden Iron Works, United States Dis
trict Court, District of New Jersey (Feb. 15,1915), 221 Federal Reporter, page 1010.—Suit was brought by Walter Wood and others
against the corporation named, and a receiver was appointed for the
corporation. The receiver petitioned for instructions as to whether
or not he should continue to make payments which the corporation
was making at the time of his appointment to employees entitled to
the same under the workmen’s compensation act, in one case pursuant
to a judgment, and in the others without suit. The court held that
the statute contemplated that compensation payments should be a
part of the wages paid for labor, and decided that the receiver
should make the payments, and could do so under the head of oper
ative and administrative expenses.
W o r k m e n ’ s C o m p e n s a t io n — R ailroads — I n t e r st a t e C o m m e r c e —
C a r R e p a ir S h o p —Okrzsezs v.
Lehigh Valley Railroad Co., Supreme
Court of New York, Appellate Division, Third Department (Nov.
10, 1915), 155 New York Supplement, page 919.—The workman in
this case was injured while repairing a car in the shops of the com
pany. There was evidence that the car had been used in both inter
state and intrastate commerce. The compensation act contains a
provision that in proceedings under it, it shall be presumed in the
absence of substantial evidence to the contrary that the claim comes
within the provisions of the act. It was held that compensation had
been properly awarded, and the contention of the company that the
workman was engaged in interstate commerce at the time of his
injury was rejected.
W o r k m e n ’ s C o m p e n s a t io n — R ailroads — I n t e r st a te C o m m e r c e —
Fairchild et al. v. Pennsyl
vania Railroad Co., Supreme Court of New York, Appellate Divi
sion, Third Department (Nov. 10,1915), 155 New York Supplement,
page 751.— P r o c e e d in g s w e re b r o u g h t u n d e r th e w o r k m e n ’s c o m
S w it c h in g o n I n t r a s t a t e R ailroad —
p e n sa tio n a c t f o r th e d ea th o f W illia m F a ir c h ild w h ile in th e e m
p lo y o f th e r a ilr o a d c o m p a n y n a m ed .
On
A ugust
25, 1914,
he w as
a tte m p tin g t o u n c o u p le t w o ca rs f r o m a tr a in , w h e n h e w a s k ille d
b y “ som e s o r t o f an e x p lo s io n o f e le c tr ic ity , w h ic h is n o t v e r y w e ll
e x p la in e d , a n d is n o t m a te r ia l.”
T h e tr a in w a s o n e o f th e L o n g
Island
R a ilr o a d , a ll tr a in s o f w h ic h o p e ra te e n tir e ly w ith in th e
S tate.
T h e r e w a s n o p r o o f th a t a n y p a sse n g e rs o n b o a r d w e r e d es
tin ed o u tsid e th e S t a t e ; b u t th e c o m p e n s a tio n b o a r d fo u n d th a t th e
tr a in h a d c a rr ie d in tersta te b a g g a g e , w h ic h h a d h o w e v e r b een p r e
DECISIONS OF COURTS AFFECTING LABOR.
285
viously unloaded. The court held that the employee was not engaged
in interstate commerce, and was entitled to an affirmation of the
award entered in his favor, Judge Howard saying in the opinion:
Even if train No. 423 had carried baggage, on its trip just ended,
destined for another State, that baggage had been unloaded before
the time of the accident, and, at the time of the accident, the deceased
was breaking up the train of empty cars preparatory to the forma
tion of a new train. If the actual work being performed at the time
of the injury is the real test as to whether it was interstate, surely
the work being performed by the deceased when he was injured was
not interstate, for he was uncoupling empty cars on a local railroad,
operating always exclusively within this State—a railroad having
110 interstate characteristic whatever, except when actually engaged
in carrying interstate passengers, baggage, or freight.
W o r k m e n ’ s C o m p e n s a t io n — R a i l w a y R e l ie f A s so cia tio n — R e
—West Jersey Trust Co. v. Philadelphia db Reading Railroad
Co., Supreme Court of New Jersey (Nov. 3,1915), 95 Atlantic Re
porter, page 753.—The trust company named proceeded as adminis
trator for compensation for the death of Amos B. Calloway, who was
killed while in the employ of the railroad company named, as a
brakeman, engaged in interstate commerce. He left a widow and
two young children. Compensation was denied by the court of com
mon pleas, but the supreme court reversed this decision, pointing
out that all the grounds urged by the company against the recovery
of compensation had been decided adversely to it except perhaps
the last. Judge Parker names the first three objections and cites the
cases disposing of them, and discusses the fourth, as follows:
That as deceased was engaged in interstate commerce, the Federal
act is exclusive. It is decided otherwise in Rounsaville v. Central
R. R. Co. (94 Atl. 392 [see p. 258]).
That deceased was willfully negligent. But willful negligence is
not a defense under section 2 of the act. (See Taylor v. Seabrook,
94 Atl. 399 [see p. 292].)
That the act is inapplicable on account of the rule of lex loci con
tractus. (Aliter in American Radiator Co. v. Rogge’s Administra
tor, 86 N. J. Law 436, 92 Atl. 85, affirmed 93 Atl. 1083 [see Bui. No.
169, p. 226].)
That the claim is barred by a release by decedent in his lifetime,
contained in his application for admission into the railroad relief
association, and a further release by his widow, on receipt of the
death benefit from said association.
The first seems to refer to damages only. The compensation act,
as has been more than once pointed out, created a right of recovery
contractual in its nature, and irrespective of negligence or other
common-law liability on the part of the employer. (American
Radiator Co. v. Rogge, supra; Jacowicz v. Delaware, Lackawanna &
Western Railroad Co., 92 Atl. 946.)
lease
286
BULLETIN OF TH E BUREAU OF LABOR STATISTICS.
But apart from this, the statute of 1911, which was on the statute
book at the time of the second employment, created an irrebuttable
presumption in the absence of an express contract, or notice, as therein
provided, of the assent of the parties to a new contract, or quasi
contract, whereby in case of injury or death there should be com
pensation according to the statutory scheme. (American Badiator
Co. v. Rogge, supra.) This must be taken to have superseded pre
existing arrangements between the parties, and, among them, the
release in advance of all claim for “ damages ” in view of the mem
bership in the relief association. The subsequent release of the
widow, which by its recitals is expressly founded upon the agree
ment contained in the membership application, and which includes
the relief association as a party released, must be held, as a matter of
construction, to be limited in its application to the rights and liabil
ities of the parties as they would have existed if the compensation
act had not been passed. This construction is fortified by consider
ing that the act of 1911, by paragraph 12 (P. L., p. 139), provides
for awards based on the existence of children, as well as the widow,
and for distribution to them in case of intestacy, according to the
intestate law of this State. The release is made by the widow qua
widow, and of course can not bind the personal representative of the
deceased, who sued in the right of the estate.
W o r k m e n ’ s C o m p e n s a t io n — R ig h t to A p p e a l —Crockett v. State
Insurance Fund, Supreme Court of New York, Appellate Division,
Third Department (Nov. 10,1915), 155 New York Supplement, page
692.—Compensation was awarded in this case to Elizabeth K.
Crockett for the death of her husband while in the employ of the
International Railway Co. The company was insured with the State
fund, from which the compensation was payable. The employer
appealed, but the appeal was dismissed, on the ground that when
the insurance is placed with the State fund, absolutely relieving the
employer from all liability, the law gives the employer no right to
appeal. The possibility that an award from the fund would cause
an increase in the premium rates was held to create too remote an
interest to confer upon the employer the right to appeal. An appeal
from this judgment was taken to the court of appeals by the State.
W o r k m e n ’ s C o m p e n s a t io n — T e r m in a t io n o f B e n e f it s — F in d in g s
B oard — E vid e n ce —Spooner v. Estate of P. D. Beckwith (Inc.),
et al., Supreme Court of Michigan (Dec. 18,1914), 149 Northwestern
Reporter, page 971.— A ld e n S p o o n e r w a s in ju r e d w h ile e m p lo y e d as
of
a m o ld e r b y th e c o r p o r a t io n n a m e d , w h ic h h a d e le cte d t o c o m e u n d e r
th e p r o v is io n s o f th e w o r k m e n ’s co m p e n s a tio n a ct.
T h e c o m p a n y in
its r e p o r t o f th e a c c id e n t, w h ic h o c c u r r e d O c t o b e r 22,1913, d e s c rib e d
i t as “ m o lte n ir o n s p la s h in g in to r ig h t e y e , r ig h t e y e b u r n e d .” A
s e c tio n o f th e a c t p r o v id e s th a t i f th e e m p lo y e r o r th e in su ra n ce c o m
DECISIONS OF COURTS AFFECTING LABOR.
287
pany reach an agreement in regard to compensation with the em
ployee this agreement, if approved by the industrial accident board,
shall be final and binding upon the parties to it. On November 14,
1913, an agreement was filed with the board, under which Spooner
was to receive $8.80 per week as compensation. Later a letter from
the eye specialist to whom a local physician who treated the employee
at first had referred him, written to the local physician, expressed
the opinion that the condition of the right eye then existing was
due to senile cataract, and was not traumatic. The company peti
tioned for termination of the compensation and a hearing was had
before the board. Both physicians were witnesses. The board found
that the condition was due to the injury, and a reversal of this find
ing was sought in the appeal to the court. Besides urging that the
findings of fact were unwarranted, the company claimed that the
employee had never produced any proof that he sustained any injury,
nor of the other essential facts entitling him to compensation. The
court pointed out that the agreement took the place of an arbitral
hearing and award, and established the facts set forth in it, except
that the physical condition of the employee always remains open to
inquiry. Examining the evidence of the physicians, the court con
cluded that from it different inferences of fact might legitimately be
drawn, and that the court would therefore not disturb the findings of
the board. The order of the board denying the petition of the com
pany was accordingly affirmed.
W o r k m e n ’s C o m p e n s a t io n — T o t a l a n d P a r t i a l D i s a b i l i t y —
In re Stiekley, Supreme Judicial Court of Mas
sachusetts (Dec. 81, 1914), 107 Northeastern, Reporter, page 850.—
Job Stiekley was injured December 13, 1912, losing four fingers of
his right hand. It was conceded that lie was totally incapacitated
until May 16,1913. Between May 16 and October 17 he worked 18
days for his old employer, as watchman and at his old job as a pile
driver. It was agreed that he was entitled to compensation for
partial incapacity from July 11 to October 17. After October 17.
1913, he was unable to obtain work although he made diligent efforts.
The committee on arbitration found that on account of his inca
pacity to work and his inability to secure employment he was entitled
to $8.70 per week from the last-named date for an indefinite time,
subject to the right of review provided in the statute. Since his
original wages were $2.75 per day, this was equivalent to a finding of
total incapacity. The industrial accident board made a similar find
ing. The insurer contended that as a matter of law, there being no
physical change, a man who had been only partially incapacitated
F in d in g s o f B o a r d —
288
BULLETIN OP TH E BUBEAU OP LABOB STATISTICS.
could not become totally incapacitated, and that even if that were
possible such a situation had not occurred in this case. Since, while
the board detailed certain testimony, the record did not show that the
court had before it all the evidence on which the board based its find
ings, the court held that it could not determine whether the rulings
requested by the insurer should have been given. The decree was
therefore affirmed.
W o r k m e n ’ s C o m p e n s a t io n — T o t a l a n d P a r t ia l D i s a b i l i t y —
Loss op R e m a in i n g H a n d —Schwab v. Emporium Forestry Co. et
al., Supreme Court of New York, Appellate Division, Third Depart
ment (May 5, 1915), 153 New York Supplement, page %3J^—Jacob
Schwab made claim against his employer, the company named, and
its insurer for compensation under the workmen’s compensation act.
His injury consisted of the loss of his right hand at the wrist, on
July 6, 1914. His left hand had been amputated in 1892. The
commission certified to the court the question whether the claimant
was entitled to compensation for permanent total disability, or for
loss of one hand. The court determined that he was entitled to an
award for permanent total disability, as is shown in the opinion
delivered by Judge Smith:
I f a man has two hands, he is presumably a more efficient worker
and can receive higher wages than if crippled by the loss of one
hand. _The method of payment of compensation for the loss of one
hand is to allow the salary which the injured party was earning
for 244 weeks. I f the injured party had two hands and were earn
ing $20 a week; if he lost one hand he would recover $4,880. Another
workman having lost one hand before entering the emplwrnent
would be receiving, say, $10 a week for less efficient service. I f that
workman lost the second hand in the service, if the claim of the
insurance carrier is right, he would recover for 244 weeks at $10 a
week, or $2,440. So that for the loss of the second hand, which had
its double value on account of the previous loss of the first hand,
under this system he would be entitled to recover only half as much
as for the loss of the first hand. This anomalous result would indi
cate that the legislature could not so have intended. By subdivision
1 of section 15, the loss of both hands shall presumably constitute
total disability. As compensation for that total disability, he is to
receive 66| per cent of the average weekly wages that ne is then
earning. As the man with one nand is presumably earning less
wages than a man with two hands, to allow for the loss of the second
hand as a permanent disability, a percentage of the weekly wage that
he was then earning would be in complete harmony with compensa
tion to one who had lost both hands by the accident, who receives his
66| per cent upon the greater wages that he was earning at the time
of the accident.
Moreover, this reasoning accords with the rule which seems to be
laid down in subdivision 6 of section 15, which provides that the
DECISIONS OF COURTS AFFECTING LABOR.
289
fact that an employee has suffered previous disability shall not pre
clude him from compensation for a later injury, “ but in deter
mining compensation for the later injury, or both, his average
weekly wages shall be such sum as will reasonably represent his
earning capacity at the time of the later injury.” Cases are cited
upon the attorney general’s brief which indirectly lend support to his
contention that the claimant has the right to recover as for a perma
nent disability. But the decision may well rest upon the logic of
the situation, in view of the fact that the amount of compensation
depends upon the weekly wage, and the weekly wage is influenced
by his crippled condition at the time of the accident.
In answer to the question certified, we decide that the claimant is
entitled to recover as for total disability.
An appeal from this judgment was taken to the court of appeals
of the State.
W o r k m e n ’s
C o m p e n s a t io n — T o t a l
and
P a r tia l
D is a b ility —
Loss o f S e c o n d E ye —State ex. rel. Garwin v. District Court of Cass
County et al., Supreme Court of Minnesota (Mat. 19, 1916), 151
Northwestern Reporter, page 910.—John Garwin, who was totally
blind in one eye, having lost the sight thereof by accidental injury,
was injured while in the employ of J. Neil’s Lumber Co., the sight
of the other eye being destroyed. The trial court awarded him the
amount designated by the statute for permanent partial disability
consisting of loss of an eye. He appealed, contending that the award
should be for permanent total disability, as he was now totally blind.
The court affirmed the previous judgment, holding that section 15 of
the act clearly indicates that in such cases the compensation is to be
for partial disability only, and quoting that section as follows:
If an employee receive an injury, which, of itself, would only
cause permanent partial disability, but wnich, combined with a
previous disability, does in fact cause permanent total disability, the
employer shall only be liable for the permanent partial disability
caused by the subsequent injury.
W o r k m e n ’s
C o m p e n s a t io n — T o t a l
and
P a r tia l
D is a b ility —
Loss o f S e c o n d E ye —Weaver v. MaxweU Motor Co., Supreme
Court of Michigan (June 7, 1915), 152 Northwestern Reporter,
page 993.—Charles Weaver, who had lost one eye several years be
fore, lost the other by accident while in the employ of the company
named. The question arose as to the construction, of the act, whether
he should be compensated as for total disability, or under the pro
vision that for the loss of an eye the injured person should receive
one-half his weekly wages for 100 weeks. The court decided that the
latter provision would apply, Judge Moore, who delivered the
26071°—Bull. 189—16----- 19
290
BULLETIN OF TH E BUBEAU OF LABOR STATISTICS.
opinion, after quoting the findings of the industrial accident board
and the provisions of the law, saying:
Since the case was submitted counsel for the claimants has called
the attention of the court and opposing counsel to the case of State
ex rel. Garwin v. District Court et al. (Minn.), 151 N. W. 910 [see p.
289], which is a case on all fours as to the facte. It is not a precedent
in the instant case, however, because the Minnesota statute contains
language not found in the Michigan statute, reading:
“ I f an employee receive an injury, which, of itself, would only
cause permanent partial disability, but which, combined with a previ
ous disability does in fact cause permanent total disability, the em
ployer shall only be liable for the permanent partial disability caused
by the subsequent injury.”
And it was held the compensation should be based upon the per
manent partial disability, and not, as claimed by the appellant, on
the basis of permanent total disability.
It must be confessed that the provisions of the Michigan statute
are so ambiguous as not to be free from doubt. All of its provisions,
however, should be given effect, if possible. The compensation fixed
in section 9 must be based upon the fact that the total incapacity for
work resulted from the injury. Section 10 deals with the partial
incapacity for work resulting from the injury, and fixes the com
pensation, and then proceeds:
“ For the loss of an eye fifty per centum,” etc. “ The loss * * *
or both eyes * * * shall constitute total and permanent disa
bility.”
In the instant case the loss of the first eye was a partial disability
for which, if our workmen’s compensation law had been in existence,
the then employer would have been liable, and for which disability
the present employer was in no degree the cause. The loss of the
second eye, standing by itself, was also a partial disability, and of
itself did not occasion the total disability. It required that, in ad
dition to the results of the disability occasioned by the accident of
seven years ago, there should be added the result of the partial dis
ability of the recent accident to produce the total disability. The
absence of either accident would have left the claimant partially in
capacitated. We think it clear the total incapacity can not be en
tirely attributed to the last accident. It follows that the compensa
tion should be based upon partial incapacity; and it is so ordered.
W o r k m e n ’s
C o m p e n s a t io n — T o t a l
W o r k — F in d in g s
of
B o a r d — In
D is a b ility — In a b ility
to
re Septimo, Supreme Ju
dicial Court of Massachusetts (Deo. 14, 1914), 107 Northeastern
Reporter, page 63.—This was a procedure by Thomas Septimo
under the workmen’s compensation act, in which the insurer ap
pealed from a determination of the industrial accident board, re
versing the report of the committee of arbitration. The employee
received an injury arising out of and in the course of his employment,
and during a part of the period between the date of his injury and
the filing of his claim, was employed by his former employer and
F in d
DECISIONS OF COURTS AFFECTING LABOR.
291
paid $9 a week. Before the injury his weekly wages were $10.
While he was so employed after the injury, the mill was shut down
for a time for lack of work. The question was whether he was en
titled to compensation for partial or total incapacity for work for
the period when the mill was dosed. The court sustained the find
ing of the board that the incapacity was total, following previous
decisions in holding that such finding will stand if there is any evi
dence to warrant it. As to the evidence, and the effort of the man
to secure employment, Judge Crosby, who delivered the opinion,
said in part:
The insurer contends that because the employee was employed
after his injury and paid wages at the rate of $9 a week, a finding of
total incapacity for work during the time that the mill was closed
was not warranted.
We do not think that this contention can be maintained. While
such employment was evidence that the employee was not wholly
incapacitated for work, yet it was not conclusive.
The record shows that he was seriously crippled and disabled.
He has lost the whole of every finger, except the forefinger of his
right hand and the little, or fourth, finger of his left hand. When
the grave character of these injuries is considered, we can not say,
without the evidence before us, that the finding of total disability for
work of the employee was not warranted.
The finding that the employee was physically unable to earn any
thing during the period when the mill was closed renders imma
terial the finding of the committee of arbitration that he did not
make any effort to obtain employment.
In view of this finding ot fact we need not consider the further
contention of the insurer that the failure of the employee to work
during this time was due to the condition of the labor market and
not to his incapacity to earn wages. (Sullivan’s Case, 218 Mass.
141, 105 N. E. 468 [Bui. No. 169, p. 241].) [English cases also
cited.]
W o r k m e n ’ s C o m p e n sa t io n — W il l f u l M isc o n d u c t —Gignac v.
StudebaJcer Corporation, Supreme Oowrt of Michigan (June 7,
1915), 152 Northwestern Reporter, page 1037.—Harry Gignac pro
ceeded against the company named for compensation for an injury
suffered while in its employ. He was a checker, whose duty it was
to check the automobiles placed in railroad cars by the company for
shipment. While returning from a track farther from the plant, he
attempted to cross a string of cars which had been placed on the side
track next tiie platform, without looking to see where the train crew
were, or whether there was likely to be a movement of the cars at
that time. The engine backed up while his foot was on a coupling,
and crushed it so that the toes had to be amputated. The question
arose whether he was guilty of intentional and willful misconduct,
so as to bar him from the benefits of the act. The court held that he
292
BU LLETIN OF TH E BUREAU OF LABOR STATISTICS.
was not, affirming the award of the industrial accident board in his
favor. Judge Brooke said, in part, in the opinion:
-These cases [cited on behalf of the company] all arose in foreign
jurisdictions and under statutes containing somewhat different lan
guage from that used in the Michigan act. The question has twice
been presented to this court, in the case of Clem v. Chalmers Motor
Co., 178 Mich. 340, 144 N. W. 848 [Bui. No. 169, p. 242], and again
in the case of Kayner v. Sligh Furniture Co., 180 Mich. 168, 146
N. W. 665 [Bui. No. 169, p. 244].
While it is quite clear that the claimant’s injury was brought about
by his own gross negligence, we are of opinion that it can not be
said as a matter of law that he was guilty of such intentional and
willful misconduct as would defeat his recovery.
W o r k m e n ’ s C o m p e n sa t io n — W il l f u l M isc o n d u c t — P ow ers a n d
F in d in g s o f B oard —Great
Western Power Co. v. Pillsbury et al.,
Supreme Cowrt of California (Jwne 10,1915), lift Pacific Reporter,
page 85.—James Mayfield, an employee of the company named, was
killed by electric shock while removing a transformer from a pole in
the course of his employment. He was not wearing rubber gloves,
in spite of strict rules of the company that they should be worn
when working among “ hot ” wires, and in spite of personal directions
by his foreman, once three days before his death and once one and
one-half hours before it. His gloves were at hand in a wagon accom
panying him. In the proceedings to secure compensation for May
field’s death there was no dispute as to the facts in regard to this,
and the court, after a somewhat elaborate discussion of the powers of
the industrial accident board, and of the court in reviewing cases
brought before it on certiorari, held that the court has the power to
set aside awards which have been made without any warrant in the
evidence for the decision on the question of “ serious and willful
misconduct,” that being one of the matters giving the board juris
diction. In the present case the court held that, as a matter of law,
there was willful misconduct, and it annulled the award of the board
in favor of the claimants.
W o r k m e n ’ s C o m p e n sa t io n — W il l f u l N eg lig e n c e — Taylor et al.
v. Sedbrook, Supreme Cowrt of New Jersey {June 4>1915), 94 Atlan
tic Reporter, page 899.—This was a proceeding for compensation for
the death of Thomas B. Stout. The compensation was awarded by
the court of common pleas. The death resulted from the fall of a
masonry pier in a cellar which the employee was digging out. The
employer contested the award on the ground, among others, of the
willful negligence of the employee, but the court held that there is
DECISIONS OF COURTS AFFECTING LABOR.
293
no provision as to willful negligence in the law applicable to cases of
compensation, but only to those coming under the liability section of
the statute. Judge Parker, in his opinion, said as to this:
The first ground urged for a reversal is that the accident was due to
the willful negligence of the deceased. We think counsel misappre
hends the provisions of the act of 1911, so far as they relate to willful
negligence. All that that act says on this subject is contained in the
portion of the act designated as section 1, which may be called, for
convenience, the employer’s liability section of the statute. In this
part of the act the liability is made to depend, not upon any implied
contract for compensation, but upon the negligence of the employer,
either at common law or resulting from the requirements of the act
itself. When we come to section 2 we find that the provision of will
ful negligence is entirely omitted, and that the only exemption is when
the injury or death is intentionally self-inflicted, or when intoxica
tion is tile natural and proximate cause of injury.
DECISIONS UNDER COMMON LAW.
A r m e d G u ard s — S t a t u s — L ia b il it y o f E m p l o y e e fo r A s sa u lt —^
Pennsylvania Mining Co. v. Jamigan, United States Circuit Court
of Appeals, Eighth Circuit {Mar. 8, 1915), 222 Federal Reporter,
page 889.— T h e D is tr ic t C o u r t o f th e U n ite d S ta tes f o r th e W e ste rn
D is tr ic t o f A rk a n sa s g a v e ju d g m e n t t o F r a n k J a m ig a n a g a in st th e
co m p a n y n a m ed f o r d a m a g es f o r a n a ssa u lt co m m itte d u p o n h im .
H e w a s a u n io n le a d e r a n d o r g a n iz e r. T h e re h a d b ee n tr o u b le in
th e co m p a n y ’s m in e , a n d th e co m p a n y ’s su p e rin te n d e n t te s tifie d th a t
h e h a d h e a rd o f d a n g e r o f th e u n io n ’s “ c le a n in g u p th e ca m p a n d
b u rn in g a ll th e b u ild in g s .” T o p re v e n t th is a n d p r o te c t th e ir p r o p
e r ty th e co m p a n y e m p lo y e d a rm ed g u a rd s, w h o w e re u n d e r th e
d ir e c tio n o f o n e E y s te r , a su p erin ten d en t. T h e la tte r , w ith a g ro u p
o f th e g u a rd s, m e t J a m ig a n o n th e h ig h w a y , a n d a ft e r som e c o n
v e rsa tio n , set u p o n h im a n d b e a t h im se v e re ly , a ft e r w h ich E y s te r
s a id :
“ Frank, you done well to get out as well as you did; if you ever
come again, and try to organize, you will get more than you did.”
The court held that the complaint stated a cause of action, and
that the jury’s verdict finding the company responsible to the injured
man could not be found to be without support in the evidence. It
affirmed the judgment in Jamigan’s favor, Judge Amidon, who de
livered the opinion, saying in part:
At the conclusion of all the evidence, defendant moved for a
directed verdict. This is the only assignment of error that has merit.
There was evidence tending to support the claim of the company
that the assault was personal, and not made for the purpose of pro
tecting the company^ property. On the other hand, there was evi
dence and circumstances tending to support the claim of the plaintiff.
This issue was submitted to the jury in a charge of which the defend
294
BU LLETIN OP TH E BUBEAU OF LABOB STATISTICS.
ant has no cause of complaint. If the guards acted within the
general scope of their authority, the company is responsible for what
they did, although they acted wantonly. [Cases cited.] When the
evidence and circumstances are open to conflicting inferences, the
question whether the acts were within the scope of the agent’s author
ity is for the jury. [Cases cited.]
The jury returned a verdict in favor of the plaintiff for $5,000.
The trial court, on motion for new trial, required this to be reduced
in the sum of $1,800. Upon that being done, the motion for new
trial was denied. We find no error in the record.
B l a c k l i s t — R a ilw a y
B e n e f it
A s s o c ia t io n — D ir e c t in g
Em
p lo y e e s n o t t o C a l l D e s ig n a te d P h y s ic ia n —D a m a g es— Peek v.
Northern Pacific Railway Co. et al., Supreme Cowrt of Montana
(Oct. 18, 1915), 152 Pacific Reporter, page J$l.— William A . Peek
brought action against the railway company named, and against
Nichols, its general superintendent, Fowler, its division superintend
ent, Kennedy, its yardmaster at Helena, and Welsh, its assistant yardmaster, charging them with conspiring to injure plaintiff in his busi
ness as a physician, in publishing and bringing to the notice of the
employees of the company the following:
“ H e l e n a , M o n t ., Mar. 8,1911.
“All Yard Employees:
“ In case of an accident to an employee where medical attention is
needed at once, do not in any case call Dr. Peek. If company doctor
can not be located, order ambulance and have party sent to hospital.
“ (Signed)
F.E. K e n n e d y ,
“ General Yardmaster.”
It was alleged that the notice was maliciously intended to and did
injure Dr. Peek in his business.
On the trial testimony for the plaintiff only was received. It was
shown that the Northern Pacific Beneficial Association is an organ
ization of employees of the railway for the purpose of furnishing
medical and surgical aid to the members. It operates hospitals, and
employs physicians at various points on the line, two of whom are
located in Helena. The rules require members to call the nearest
authorized physician, except that in emergencies arising from acci
dent other physicians may be employed temporarily until the arrival
of a “ company physician.” Membership is made a condition of em
ployment by the railway company, with some exceptions. The asso
ciation is distinct from the railway company, and the company makes
up the deficit in case the stated contributions from the wages of the
employees are insufficient. In January, 1911, Kimberly, then presi
dent of the association, wrote to General Superintendent Nichols,
complaining that annoyance and expense was caused by a disposition
of employees at Helena to call upon Peek without regard to the
DECISIONS OF COURTS AFFECTING LABOB.
295
rules. A large bill recently rendered by Peek for services to an em
ployee was mentioned as an illustration. Mr. Nichols wrote to the
division superintendents under him, including Fowler, and Fowler
issued a circular, addressed to “All Concerned.” These communi
cations, however, simply called attention to the rules, and urged that
they be followed in the matter of employing the association’s phy
sicians as far as possible. Mr. Fowler also had a conversation with
Kennedy about a particular case, in which he again referred to the
rules. The notice quoted above was posted by Welsh at the direction
of Kennedy. Testimony as to the damages was largely confined to
that of Dr. Peek himself, who estimated his total falling off of busi
ness from the railway employees to be $70 per month. Instructions
given at the trial are quoted in the opinion. The jury exonerated
Nichols and Welsh,- and returned a verdict of $700 against the other
defendants. The supreme court showed that Fowler also should
have had judgment in his favor, and that the damages, for want of
proof of actual damages, should be nominal; and accordingly gave
the physician judgment against the railway company and Mr. Ken
nedy for $1. The following quotations are made from the opinion
as delivered by Judge Sanner:
From the instructions just quoted it is clear that the plaintiff
prosecuted his case upon the theory—which was entirely correct—
that his right of action was not for the loss of general practice
among employees of the defendant company, but for loss of such
emergency practice chargeable to the beneficial association as would
have come to him but for the notice complained o f; in other words,
that the defendants had and could have no authority to say that the
beneficial association would not deal with Dr. Peek in any case.
That the beneficial association could, under proper circumstances,
have lawfully signified to its members by any proper means its in
disposition to have any dealings whatever with Dr. Peek, is, we
think, beyond dispute; but that it did not do or authorize anything
of the kind is equally clear from the evidence of record. The letter
of Mr. Kimberly was ample warrant for defendants to proceed ac
cording to its purport, but it did not go beyond the request for suit
able steps to enforce the rule of the association restricting the call
of outside surgeons to cases of emergency and pending the arrival
of the authorized surgeon. From this the notice in question was a
material departure, and the question is: Whose is the liability and
to what extent is that liability established?
The exoneration of Mr. Nichols by the jury was entirely just.
His only participation in the matter was his letter to the division
superintendents, and that letter was well within the range of Mr.
Kimberly’s request. For the same reasons the defendant Fowler
should also have prevailed. Nothing written or said by him ex
ceeded the scope of Mr. Nichols’ letter or constituted any order to
the defendant Kennedy to go beyond what the rules of the associa
tion require. Mr. Kennedy, however,* was liable, notwithstanding
his alleged want of actual malice. The rules were called to his at
tention, and he was told that preference was due to the authorized
296
BU LLETIN OF TH E BUBEAU OP LABOR STATISTICS.
surgeon in every case; but he was not directed to publish, as in
effect he did, that under no circumstances should Dr. Peek be called.
To that extent, and in that sense, his action was wrongful, and
malice, if necessary, might be implied. The company was also
liable, though upon other grounds. Mr. Kennedy was its yardmaster at Helena, and it was within the general scope of his em
ployment to publish suitable notices to such of the company’s em
ployees as were under his direction, including, when authorized,
such notices as the one complained of. Had the railway company
directed the publication, unauthorized by the beneficial associa
tion as it was, its liability would be obvious. So in permitting its
channels to become the medium through which the beneficial associa
tion should speak to its employees, it undertook to answer for wrongs
committed in that process.
We can not agree, however, that liability in any amount has been
established against any of the defendants. Under his own theory
of the case plaintiff was entitled to enjoy only that practice charge
able to the beneficial association which, save for the notice, would
have come to him in emergency- cases. His testimony—unsatisfac
tory at the best—touches only nis entire activities among yard em
ployees. No figures are given, no circumstances stated, upon which
cross-examination might oe based or a determination reached as to
what portion of the whole loss came within the class for which
liability was claimed. So far as damages are concerned, there is a
total failure of proof, and the plaintiff must be relegated to his
right to nominal damages only.
C o n t r a c t o p E m p l o y m e n t — A b a n d o n m e n t — R ec o v er y o p W ages
D e p o sit — Koch v. Sijf et al., Supreme Court of New York, Ap
pellate Term, First Department (June 28,1916), 164 New York Sup
plement, page 223.—Max Koch brought action against Ephraim Siff
and another, and secured a judgment in the municipal court of the
Borough of Manhattan. The reason for the modification and affirm
ance of the judgment is given in the court’s opinion as follows:
As the evidence clearly shows that the plaintiff left the employ of
the defendants on account of his fear of strikers, who had assaulted
him on the street, and was not discharged or requested to leave, there
is no ground for allowing him to recover his unearned wages. On the
other hand, the defendants consented to his leaving, and should not
be allowed to retain the $50 deposit.
The recovery should therefore be reduced to $62, the amount of the
deposit, and $12 for the three days’ work for which he received no
pay, and, as modified, affirmed.
and
C o n t r a c t o f E m p l o y m e n t — B r e a c h b y E m p l o y e e — D am a g e s —
D e p o sit —SUbert
v. Katz, Supreme Court of New York, Appellate
Term, First Department (Feb. 4,1915), 151 New York Supplement,
page 510.—Meyer Silbert brought action against Philip Katz for a
DECISIONS OP COURTS AFFECTING LABOR.
297
deposit of $100 which he had made for the faithful performance of a
contract to work for the defendant as foreman. The defendant put
in a counterclaim for damages for breach of the contract. Judgment
was for the plaintiff in the municipal court of the Borough of Man
hattan. The result of the appeal was a reversal of the court below,
as is shown in the following opinion by Judge Bijur:
Although the deposit is described as “ liquidated damages,” the
question whether it is to be treated as such or as a penalty does not
arise. It is shown, without contradiction, that plaintiff refused to
perform his contract by failing even to begin to render services there
under. Thereupon the defendant employed another man in his place.
Although the subject was not amplified nor thoroughly developed,
the defendant gave some evidence, from which it appeared that he
had made efforts to replace the plaintiff for the same wage, but was
unable to obtain another foreman for less than $55 a week.
Upon the record, defendant’s [employees] counterclaim for dam*
ages was proved, and he should have had judgment therefor.
Judgment reversed, and new trial granted.
C o n t r a c t o f E m p l o y m e n t — D isc h a r g e — R e m e d ie s — Continental
Aid Association, v. Lee, Court of Appeals of Georgia (July 2,1915),
85 Southeastern Reporter, page 790.—L. A. Lee brought action
against the association named for damages for his discharge. A
statement of the remedies open in such cases, and the reason for the
reversal of a judgment in the plaintiff’s favor, are given in the fol
lowing paragraph of the syllabus by the court:
One who is employed as a clerk, and who is discharged, has the
right of electing either of three remedies: (1) He may bring an
immediate action for any special injury received from the discharge;
(2) he may wait until the expiration of the term for which he was
employed, and sue for the entire amount due him under the contract;
or (3) he may treat the contract as rescinded and seek to recover
upon quantum meruit the value of the services actually performed.
Reasonably construed, the present suit is an action to recover the
value of the plaintiff’s services for the entire term fixed by the con
tract, though it was brought before the expiration of the term; and
a finding for the plaintiff was not supported by the evidence. Proof
that the plaintiff was willing to perform the services for the un
expired part of the term, and that the value of the services as fixed
by the contract amounted to $137.30, would not authorize a recovery
or that amount, where it appeared that the suit was brought prior to
the expiration of the term.
C o n t r a c t o f E m p l o y m e n t — I m p l ie d R e n e w a l — G ro u n d s fo r D is
—Akron Milling Co. v. Leiter, Appellate Cowrt of Indiana
(Dee. 18, 1914) , 107 Northeastern Reporter, page 99.—John C. Leiter
brought action against the company named for payment for his
c h a rg e
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BU LLETIN OF TH E BUBEAU OF LABOB STATISTICS.
services. He was employed as manager of its grain business for one
year, being paid weekly. At the expiration of the year the employ
ment continued without further express contract and on the same
terms for over four months, when the employee was discharged,
upon which he sued for pay for the balance of the second year. The
company alleged as a reason for the discharge that the employee had
been unfaithful to its interests in that he had a secret agreement by
which he received a commission from a seller of machinery, whose
goods he caused to be installed in the mill, and that he allowed an
inferior article to be used in order to obtain larger profit. It ap
peared, however, that this had been known to the company before
the expiration of the first year’s contract, although perhaps more
fully proved later. The trial judge instructed the jury that under
these circumstances the facts alleged by the company constituted
no justification for the discharge during the second year of the em
ployment. Judgment was in favor of the plaintiff.
The appellate court held that certain technical objections made by
the company were unavailing, and cited and adopted the principle
found in several cases in other jurisdictions, that the continuation of
the employment at the conclusion of the original contract constituted
a new contract for a year. It then decided that the instruction of
the trial judge was correct, as appears from the following quotation
from the opinion by Judge Hottel:
It is urged that it was the duty of appellee [Leiter] to frankly
inform the appellant [the milling company] of the things done by
him that were inconsistent with the faithful discharge of his duties
to his employer, and appellant had a right to refrain from informing
appellee of its discovery of the facts concerning his duplicity with
them until such time as they should be fully convinced, by authentic
proof concerning the same, whether this was acquired before or after
the expiration of said contract. There is no doubt but that appellant
had the right to refrain from telling appellee of his supposed du
plicity until such time as it saw fit, whether before or after the expira
tion of the original contract, but whether knowledge of such duplicity,
either supposed or real, acquired before the expiration of the old con
tract, would be a sufficient excuse, under the law, for a discharge of
appellee from the employment under the new contract which the law
implied, is a very different question. Such information or knowledge
would have furnished a very good excuse for refusal to renew the
contract, but we think it is entirely insufficient to justify a discharge
after the renewal. The instruction was, we think, in the respect for
which it is criticized, as favorable to appellant as the law would
permit.
C o n tr a c t o f E m p l o y m e n t — L if e E m p l o y m e n t — C o n sid e r a tio n
R e lea se o f C l a im for D am a g e s — R a t if ic a t io n — Swanson v.
Union Pacific Railroad Co., Swpreme Court of Nebraska (May 14,
1915). 152 Northwestern Reporter, page 744-—Nelse Swanson brought
for
DECISIONS OF COURTS AFFECTING LABOB.
299
action against the company named for breach of a contract of em
ployment for the remainder of his life. The employee had been in
jured in August, 1905, the injury resulting in the loss of a leg. While
in the hospital he was visited by his foreman, Baldwin, who, it was
shown, was frequently intrusted by the claim agent of the company
with the making of settlements with the employees working under
him. The employee testified that a settlement was there made, by
the terms of which he received $500 in cash, and an agreement that
he should be employed for life, or as long as he desired to work, at
his former salary of $3 per day, and he signed a release. After he
had sufficiently recovered he was employed under Baldwin from the
early part of 1906 until November, 1911, when, Baldwin having died,
he was discharged by his successor.
The court reviewed and adopted as sound the reasoning in the case
of Tylee v. Illinois Central R. Co., 150 N. W. 1015 (see p. 311), and
held that the evidence of the oral agreement to employ was properly
admitted. It held that the evidence of ratification of the contract
by the company was much stronger than in the Tylee case, since the
employment of a crippled man, older than the maximum age at which
the foreman was authorized to hire men for such duties, for a period
of years, could be explained only on the theory of such a contract as
claimed by the plaintiff.
The judgment, which had been in Swanson’s favor in the district
court of Douglas County, was affirmed.
C o n t r a c t of E m p lo y m e n t — T e rm — B r e a c h — Gabriel v. Opoz
nauer et al., City Court of New York (Mar. 20, 1916), 153 New
York Supplement, page 990.—Lucille Gabriel brought action against
Jack Opoznauer and another for breach of contract of employment,
and the verdict was in her favor. The defendants then moved to set
aside the verdict. The defendants were manufacturers of gowns in
Chicago, and the alleged contract between them and the plaintiff, a
designer, was made on October 10,1912, when they were arranging to
enter the same business in New Tork. Opoznauer signed and handed
to the plaintiff a letter memorandum, which contained the words
“ We herewith engage you at a salary of five thousand two hundred
dollars ($5,200), to be paid in weekly installments of $100, for each
week of work conscientiously performed.” This is followed by a
provision that if her qualifications were not as she had represented
them, the connection might be terminated. There was no claim,
however, that her services were not satisfactory. At the time he
handed her the letter the employer specifically stated, “ This is for
a year.” The contract was carried out for nine months until July
10, 1913, when the designer was discharged because of adverse busi
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BU LLETIN OP TH E BUREAU OP LABOR STATISTICS.
ness conditions, and in a manner which the court’s opinion states
plainly discloses that the employers considered that they were under
obligation to employ her until October. They later claimed, how
ever, that they had the right to discharge her at the end of any week.
The court denied their motion to set aside the verdict, and its views
on the questions of law are set forth in the following quotations from
the opinion delivered by Judge Rawson:
The contention that, because the memorandum of hiring and dis
charge conditions which Opoznauer handed the plaintiff contained
no words of express covenant on her part, the agreement made be
tween them on October 10 was unenforceable for lack of mutuality,
is untenable. Whatever the agreement was as to duration of the em
ployment, there was an agreement, both parties acted on and under
it, both performed its terms for most of the contract period claimed
by the plaintiff, and the plaintiff was prevented from completing
performance only by discharge under circumstances in no wise con
templated by any terms of the memorandum prepared by Opoznauer
for his own protection on the subject of right to discharge.
The authorities lead to the conclusion that the hiring was for a
year. Probably I would have been warranted in so ruling as a mat
ter of law, construing the letter memorandum of October 10, alone.
The agreement, it will be noted, was to pay a salary of $5,200, not
a salary at a rate of $5,200j per year, as in cases relied on by the de
fendants, and the plaintiff was discharged before she received the
$5,200 stipulated. If it had been intended to give an absolute right
to discharge at any time, Opoznauer could readily have so stated,
without leaving it to inference. It seemed perhaps preferable, in
view of the border-line character of the legal question involved, to
buttress the rule of legal construction with the jury’s deliberate de
termination as to what the agreement of October 10 really was,
taking into account all the facts brought out as to that hiring. •De
fendants certainly have no right to complain because! the present
verdict stands fortified by such a reference to the jury, which reached
from all the evidence the same conclusion as the court might justi
fiably have declared to them as matter of law.
C o n t r a c t o p E m p l o y m e n t — T e r m — B r e a c h — D am a g e s — Salpem
v. Langroek Bros. Co., Kings County Court, New York (Feb. 16,
1916), 168 New York Supplement, page 985.—The plaintiff in this
case, Emanuel Halpern, was an engraver, and was in the employ of
the company named when the contract was made, for the breach of
which he brought suit against it. The contract reads:
In consideration of Langroek Bros. Company engaging me in their
manufacturing establishment from week to week on a salary of
$15 for the first six (6) months, starting August 29, 1912, to Feb
ruary 29, [sic] 1913; $16 for the second six months, starting Febru
ary 29, [sic] 1913; $17 from August 29 to February 29, [sic] 1914;
$18 from February 29 [sic] to August 29; $19 from August 29 to
February 29 [sic], 1915; $20 from February 29 [sic] to August 29;
$21 from August 29 to February 29,1916:
DECISIONS OF COURTS AFFECTING LABOR.
SO I
(1) I hereby agree to comply in every detail with the following
requirements:
[Paragraphs 2 to 5 inclusive contain requirements to be performed
by the employee.]
(6) It is agreed and understood between Langrock Bros. Company
and myself, should I remain in their employ for a period of three
(3) years from the above-mentioned date and faithfully carry out all
the above requirements, I shall be paid by Langrock Bros. Company
$2 for each week that I have been employed during the period of said
three (3) years. The said three years to expire from the abovementioned date.
(Signed)
L a n g r o c k B ros. C o m p a n y .
L . L . L an grock.
E m a n u e l H alpern .
(Date) J u l y 23,1912.
The employee was not permitted to begin work under this contract.
The company conceded the making of the contract and offered judg
ment for $15, one week’s wages. The plaintiff testified that at the
time of the signing of the contract he had a talk with the president
of the company and was told that he was hired for a period of three
and one-half years for the reason that, being a foreigner and not
accustomed to work as they do it in New York, the company wanted
to secure his services so that he would not leave as soon as he learned
the company’s method of doing business. The company claimed that
the contract was unilateral, and therefore not binding upon either
party; and that if binding it provides only for a hiring at will or
from week to week.
The court gave judgment for the employee, holding that the con
tract was one of employment for three and one-half years, and that
the employee was entitled to his wages less the amount he had been
able to earn. Judge Boy,.who delivered the opinion, said in part as
to the questions above stated as being in issue:
In view of the defendant’s offer that the plaintiff have judgment
for one week’s salary under the contract, it is difficult to understand
how the defendant can support its claim that the contract is unen
forceable (irrespective of the period), because, since the plaintiff was
not permitted to even commence his employment, the defense that
the contract is unenforceable, because unilateral, applies equally to
plaintiff’s claim to one week’s salary as to his claim to three and onenaif years’ salary. I am not willing, however, to dispose of defend
ant’s claim entirely upon admission and concession. I think it suffi
ciently appears from the above paper that there was an agreement
between the parties. The subject of mutuality of contracts, so far as
actions at law are concerned, and the subject of unilateral contracts,
has been discussed at length by the court of appeals recently in the
case of Grossman v. Schenker, 206 N. Y. 466,100 N. E. 39. I quote
some of the pertinent passages:
“A contract includes not only what the parties said, but also what
is necessary to be implied from what they said.” “ What is implied
in an express contract is as much a part of it as what is expressed.”
302
BU LLETIN OF TH E BUREAU OF LABOR STATISTICS.
The same subject was considered in Moran v. Standard Oil Co.,
211 N. Y. 187,105 N. E. 217; the court said:
“ There may be a promise to serve without a promise to employ,
but there can be no ‘ agreement’ for service without mutuality of
rights and duties.”
We find words of agreement in paragraphs first and sixth of the
instrument in the case at bar. In paragraph sixth, by reference to the
“ above requirements” and the “ above-mentioned date,” I think a
promise on the part of defendant to pay the consideration mentioned
in the first part of the instrument can be inferred or implied. Cer
tainly the paper in question is at least an offer on the part of the
plaintiff to work for the defendant for a certain term at a certain
consideration, and I think the acceptance by the defendant of the
plaintiff’s offer is clearly indicated by the signature of the defendant
to the paper. This also makes an agreement.
The next question is, For how long a term did the parties agree
that the plaintiff should-be hired? It can hardly be claimed that
the agreement is clear on this point. There is very little in the sur
rounding circumstances and the situation of the parties to throw
light upon the question, except the fact that the contract was pre
pared by the defendant and that when the contract was signed the
plaintiff was told by the defendant’s president that he (plaintiff)
had a contract for three and one-half years. Of course, the intention
of the parties must be determined from the language which they em
ployed in the agreement. The meaning of the agreement is not at
once apparent, and so assistance must be obtained from the rules of
law which are designed to guide us in these circumstances. These
rules are well settled, and the only difficulty is in applying them.
“ In this State the rule is settled that, unless a definite period of
service is specified in the contract, the hiring is at will, and the master
has the right to discharge and the servant to leave at any time.”
(Watson v. Gugino, 204 N. Y. 535, 98 N. E. 18.)
“ The fact that the compensation is measured at so much a day,
month, or year does not necessarily make such hiring a hiring for a
day, month, or year, but that in all such cases the contract may be
put to an end by either party at any time, unless the time is fixed.”
(Martin v. New York Life Insurance Co., 148 N. Y. 117, 42 N. E.
416.)
It is also a fundamental rule that, if possible, effect should be given
to all the language employed in an agreement. It is difficult to under
stand why, if the contract in question was only a hiring for a week,
the obligations of the plaintiff had to be set out in such detail. Again,
if it were a weekly hiring, or a hiring at will, why were seven periods
of six months each provided for in the agreement? Why, when the
compensation was fixed at $21 for the last period of six months, did
the agreement not say, “ $21 from August 29 to February 29, 1916,
and thereafter.” Further, why was the extra compensation of $2
a week carefully limited to three years of the period of three and
one-half years, unless it was for the purpose of clearly indicating
that the extra compensation of $2 should not be paid for the last six
months of the term? Literally the words mean that the salary was
only $15 for the first six months and not $15 a week; but the defend
ant, by its offer of judgment of $15 for one week’s salary, has con
DECISIONS OF COURTS AFFECTING LABOR.
303
ceded that this is not the meaning of the language or the intention
of the parties.
The plaintiff is entitled to judgment for $15 a week for the three
and one-half years, less the $800 which he earned during that time.
(Milage v. Woodward, 186 N. Y. 252,78 N. E. 878.)
On appeal the appellate division of the court set aside this judg
ment and dismissed the complaint, on the ground that the suit was
brought for an amount in excess of $2,000, and was not therefore
within the jurisdiction of the county court. (See 155 N. Y. Supp.,
p. 167.)
C o n tr a c t o f E m p l o y m e n t — T e r m in a t io n — R e c o v er y o f W ages —
“ S e a m e n ” —The
P. SchuhUnited States District Court, South
ern District of Alabama, (Jem. 30,1915), 223 Federal Reporter, page
455.—Anderson Jackson and others, employed as deck hands on the
vessel named, sued to recover their wages. At the time of hiring no
term of service or rate of wages was mentioned, but, one at least of the
men having been employed similarly by the same employer, it was
understood that the pay was to be at the rate of $35 per month, or
$1.16| per day. The employees cleaned the barges which the steamer
took in tow, made the trip up the river from Mobile, loaded the
barges with ties, and began the return trip. Three of the four barges
became stranded on a sand bar, and the employees worked a part of
the night in attempting to get them afloat. 'Die next morning they
were ordered to carry the ties from one of the barges to the steamer,
which they refused to do, on the ground that they were too tired,
having worked all the preceding day and a part of the night. They
were told, if they would not do the work, to get off the boat, and did
so. Previous to this, the men had worked 15 days.
The court stated the rule of law that a hiring at a specified rate,
no time being specified, is an indefinite hiring, and may be deter
mined at any time at the will of either party; and a recovery may
be had for the services actually rendered. It held that the employees
were not “ seamen ” under the statutes of the United States providing
that deserters shall forfeit wages due them. It therefore held that
they were entitled to recover the wages earned for services rendered
prior to the day on which they left the boat.
E m pl o y e r a n d E m p l o y e e — L ia b il it y of R a ilr o a d to M a n B oard
W o r k m e n ’ s T r a in to S ec u r e E m p l o y m e n t — Schifatagua v. At
lantic CUy Railroad Co., Supreme Court of Pennsylvania (May 26,
1915), 95 Atlantic Reporter, page 260.—The plaintiff in this case was
injured while boarding a workmen’s train used by the company named
in g
304
BU LLETIN OP TH E BUBEAU OP LABOR STATISTICS.
to carry its laborers to their working place, where he hoped to secure
work. That he was not either an employee or a passenger was held
by the court, which reversed a judgment in his favor. In delivering
the opinion Judge Stewart said in part:
That the train was exclusively a train to carry workmen was a
fact not in dispute. That either invitation or permission was given
plaintiff by anyone in charge of the train to enter the car nowhere
appears in the evidence for the plaintiff, except as the general direc
tions given by a presumed boss could be so construed; while, on the
other hand, the uncontradicted evidence adduced by the defendant
is to the effect that neither invitation nor permission was given by
any employee. The trial judge was correct in holding that, except
as plaintiff was a passenger when injured, there could be no recovery;
but on the state of the evidence he should have held as matter of law
that he was not a passenger, and directed a verdict for the defendant.
E m pl o y e e s ’ A sso c ia tio n s — E x p u l s io n — C h a r g e s — T r ia l — R es
M e m b e r s h ip —Grassi Bros. (Inc.) v. O’BowJee et al.,
Supreme Cowrt of New York, Special Term, New York County (Feb
ruary, 1915), 153 New York Supplement, page 493.—The corporation
named was a member of the Employing Plasterers’ Association, a
voluntary association composed of firms and corporations engaged
as employers in the plastering trade. The object of the association
is stated in its constitution to be **to foster, protect and promote the
welfare and interest of its members,” and it is provided that mem
bership shall be held as personal property by either person, firm, or
corporation. The institution fee is fixed at $100, animal dues at $80,
and there is a schedule of fines for nonattendance at meetings. The
company was expelled from this association, and brought action for
restoration on the ground that its expulsion was illegal under the
constitution of the association. The court held that the proceedings
of the association were not legal, Judge Goff, who delivered the
opinion, saying in part:
t o r a tio n to
The relations of a member of an unincorporated society to the
society are fixed by the contract of the parties, as expressed in the
constitution and by-laws. With their operation when applied as
disciplinary measures a court of equity will not interfere, provided
they are applied justly and fairly. Ir they are so applied, further
inquiry will not be made. By his voluntary act the member assumes
obligations and submits to liabilities; and if, after due observance of
his rights, unsatisfactory results follow, he will not be heard in com
plaint of the tribunal which he has selected. This is the essence of
all judicial authority that has pronounced upon the subject. (Cohen
v. Thomas, 209 N. Y. 407, 103 N. E. 708, and cases cited; People ex
rel. Holmstrom v. Independent Dock Builders’ Union, 164 App.
Div. 267,149 N. Y. Supp. 771.)
The interest which plaintiff acquired by its membership was not
merely of a sentimental or social nature. It was of substance and
DECISIONS OP COUBTS AFFECTING LABOB.
305
value in its business aspect, and it can not be deprived of it, except
by proceedings in accordance with the law of its membership. [Cases
cited.] Article V, section 5,.of the Constitution provides that:
“ The executive committee shall act as a * * * trial committee
and shall decide * * * all charges involving irregularities, such
as violations of contracts, etc.; but their finding shall be subject to
appeal to the association tor final action. It shall be the duty of the
committee to hear all charges and to make a careful investigation of
same before taking action thereon, and to accord a fair hearing be
fore the committee.”
Section 6 reads:
“All charges must be preferred in writing over the signature of
the person or persons making the charge,” etc.
Reduced to essentials, these provisions require (a) that charges
must be in writing over the signature o f the person making the
charge; (6) that the committee shall hear all the charges; and (c)
that the accused shall have a fair hearing, which means that he shall
have a fair trial. There is no provision requiring notice of the
preferring of charges to be served on an accused member; but there
should be, and since there is not, the law will insert such provision,
because it would be repugnant to a sense of justice that an accused
should be haled before a trial committee without being apprised
of the cause. [Cases cited.]
On the 19th of September, 1913, plaintiff received from the secre
tary of the association this letter:
“ G e n t l e m e n : You are hereby cited to appear before the executive
committee of the Employing Plasterers’ Association on Monday,
September 22,1913, at 3 o’clock, No. 30 West Thirty-third Street.”
The opinion shows that this was entirely inadequate as a notice to
answer charges. On the appearance of the representative of the com
pany before the committee no charges were read or exhibited to him,
nor were any witnesses heard, but the company was found guilty on
the finding of the “ trade board” and expulsion recommended. A
special meeting of the association was held, at which also no charges
were preferred nor witnesses examined. The plaintiff’s representa
tive was excluded while a vote was taken to expel the plaintiff. The
court says:
From the initial step, when plaintiff was “ cited ” to appear before
the executive committee, to the culminating vote for expulsion, the
association ignored its own laws and thereby deprived plaintiff of
its right. The course taken was not marked by irregularities which
might be waived by appearance and participation, but it was funda
mentally invalid, in that, there being no charges, there could be no
trial, and consequently there could be no verdict of guilty and
sentence of expulsion.
The contention was made by the association that authority had
been given to a “ trade board,” instituted under an agreement be
tween the employers’ association and the workmen’s associations, to
take action in such cases. This is examined, and the conclusion
26071°—Bull. 189—16— -20
306
BU LLETIN OF TH E BUBEAU OF LABOB STATISTICS.
reached that such authority is not given by the constitution, which
alone could legally confer it as far as the association involved was
concerned, nor even under the trade agreement.
It was adjudged that plaintiff should be restored to membership,
with all its rights and privileges, and with damages to be deter
mined by reference as previously agreed. Injunction against the
local unions of workmen was refused, as it would not be presumed
that the workmen would refuse to work for the company until action
was actually taken in that respect.
E m pl o y e r s ’ L ia b il it y — A ssu m p t io n o f R is k s — F e l lo w - se r v a n t
D o c tr in e —Kligo
v. Rome Soil Pipe Manufacturing Co., Court of
Appeals of Georgia (Sept. 3,1914), 86 Southeastern Reporter, page
82.—J. A. Kligo brought action against the company named for
damages for personal injuries, but was nonsuited. On appeal the
judgment against him was affirmed. The facts of the case are not
stated in the reporter, but the syllabus by the court is a concise state
ment of the unmodified common-law doctrines as to fellow servants
and assumption of risks. The statements of law are supported by
many citations from the statutes of the State and decisions of its
courts, which are here omitted:
I f the injury to the plaintiff in fact resulted from negligence at
all, it resulted from the negligence of a fellow servant, with whom
and by whose side the plaintiff had worked almost continuously for
more than two years prior to the injury. For an injury arising alone
from the negligence of a fellow servant there can be no recovery, ex
cept in the case of railroad companies.
A servant can not recover for injuries resulting from the incom
petency of a fellow servant, if he had equal opportunity with the
master of discovering such incompetency, or in the exercise of or
dinary care should have known of such incompetency.
The presumption exists that the master exercised ordinary care in
the selection of his servants; and one who complains of injuries which
he alleges resulted from the incompetency of nis fellow servants must
overcome this presumption by direct proof, and can not successfully
rebut the presumption by inferences drawn from facts which fail to
disclose knowledge on the part of the master of the incompetency of
the fellow servants. The mcompetency of a fellow servant must be
established by the plaintiff, who complains of injuries resulting
therefrom, as a fact in the case, and not by any inferences.
No recovery can be had upon mere proof of negligence on the part
of the master; but the plaintiff must show, in addition to the exer
cise of due care on his own part, that he was not aware of the danger,
that his opportunities of knowing the existence of the danger were
not equal to those of the master, and that in the exercise of ordinary
care he could not himself have known of the danger.
DECISION’S OP COURTS AFFECTING LABOR.
307
An adult servant will be presumed to have knowledge of existing
defects or dangers in machinery in connection with which his duties
require him to work, and to know of the competency or incompetency
of his fellow servants working with him about such machinery, after
established by the plaintiff, who complains of injuries resulting there
from, as a fact in the case, and not by any inferences.
E m p lo y e r s ’ L i a b i l i t y — C o n t r a c t
A vo id S u it —Kelly
fo r
P a y m e n ts
to
W if e
to
v. Burnham, Williams <&Co., Supreme Court of
Permsylvama (Feb. 22, 1915), 93 Atlantic Reporter, page 949.—
Margaret Kelly brought an action for damages against A . B. John
son and others, constituting the firm named.
On May 31, 1907, Andrew Kelly, the husband of the plaintiff, was
injured while in the employ of the firm by the bursting of a woodpolishing wheel. He was rendered unconscious for three days, and
permanently incapacitated for work. He became of unsound mind,
and was confined in an insane hospital from shortly after the acci
dent up to the time of the trial. Within a day or two after the
accident one Pooley, claiming to be an employee of the firm, called
and, according to plaintiff’s testimony, agreed to pay the rent of
her house, $16 per month, and $8 per week for household expenses
so long as her husband was unable to work, and thereafter to employ
him at $12 per week, if she would not “ go to law.” . Payments were
made aggregating $790 and continuing up to July 7, 1909, when the
firm ceased to make them, with the result that after a time the wife
brought suit upon the alleged contract. The court of common pleas
of Philadelphia County dismissed the case, and the plaintiff ap
pealed. The Supreme Court reversed the judgment, holding that
Mrs. Kelly showed a good cause of action.
In delivering the opinion Judge Fraser stated the reasons of the
trial court for entering a nonsuit, and the grounds for reversal of
the judgment, as follows:
At the trial in the court below a compulsory nonsuit was entered;
the reasons assigned therefor being: (1) Insufficient evidence to es
tablish Pooley’s authority to make the contract; (2) want of con
sideration; and (3) that appellant had no right of action for the
injury received by her husband. The refusal of the court to take off
the nonsuit is assigned as error.
For the purpose of determiningthe question now before us, we may
assume, as testified to by Mrs. Kelly, that Pooley made an agree
ment with her for the payment of certain sums of money if she would
not bring suit against appellees. An examination of the testimony
fails to show authority in Pooley to make such a contract in their
behalf. That being the case, was the evidence sufficient to take the
question of ratification of Pooley’s act by appellees to the jury ? The
payments claimed to have been agreed upon between Mrs. Kelly and
308
BU LLETIN OF TH E BUREAU OF LABOR STATISTICS.
Pooley were made from time to time at the office of appellees by Mr.
Vauelain, one of the appellees, and by authorized employees of the
company, during the 27 months following the accident without objec
tion or protest upon the part of either Mr. Vauelain, who apparently
had knowledge of some understanding or agreement with Mrs. Kelly,
or any other member of the company. This evidence was amply suffi
cient to require the submission to the jury of the question of a con
tract by Pooley and its ratification by appellees. I f the sums allowed
her were a charity, voluntarily made, as set forth in the affidavit of
defense, and were not made under a contract as claimed by Mrs.
Kelly, that question was also for the jury.
To sustain a consideration, appellant relies on Hamaker v. Eberley,
2 Bin. 506, 4 Am. Dec. 477. The rule laid down in that case would
seem to sustain her contention. While it is true as a general rule
that a promise to forbear a suit against a person against whom the
plaintiff has no legal cause of action is not a sufficient consideration,
the situation here makes that rule inapplicable to the facts before
us. While Mrs. Kelly probably had no right of action against
appellees at the time Pooley was “ coaxing her not to go to law,” we
can fairly assume from the testimony that it was believed by both
herself and Pooley that her husband’s injuries would terminate
fatally. In that event Mrs. Kelly would have an action against ap
pellees, and if under those circumstances she “ gave up all her legal
redress, either present or future, under any circumstances which
might arise” (Hamaker v. Eberley, supra), as she did according to
her testimony, there was ample consideration to sustain the contract
which she avers existed between herself and appellees. We are of
opinion that, under the circumstances developed by plaintiff’s testi
mony, this case was for the jury.
E m pl o y e e s ’ L ia b il it y — C o n t r a c t to F u r n is h M e d ic a l S ervices —
LiMopoulos v. Oregonv-WaaMngton Railroad <& Navigation Co., Su
preme Court of Washington (Sept. 24,1915), 151 Pacific Reporter,
page 818.—Evangelos Liliopoulos was employed as a laborer by the
company named in the early part of April, 1913, his wages being
$1.75 per day, a deduction of 50 cents per month being made for the
company’s hospital fund. This employee, also the others of the gang,
and the foreman who hired them, were Greeks.
April 27,1913, was a holiday known as the Greek Easter, and no
work was done. Liliopoulos did not take part in the celebration, but
remained in and near the car in which were his deeping quarters.
After thfe dinner hour, and between 1 and 1:30, the subforeman, time
keeper and others came to him, and undertook to get him to join them
in drinking. He took one glass of beer, and refused to take more.
One of the drunken men drew a pistol and threatened to shoot him
if he did not drink. Liliopoulos attempted to take away the pistol,
and it was discharged through his upper arm, severing the main
artery, splintering the bone, and severely lacerating and bruising the
DECISIONS OP COURTS AFFECTING LABOR.
309
tissues. The company had no physician or surgeon at the place, nor
was any located there. The employee’s colaborers bound the arm so
as to stop the flow of blood, and demanded from the foreman that he
be taken to the company’s hospital for treatment. This was refused
on account of the rule of the company that hospital benefits would
not be furnished to an employee injured in a fight or brawl. The use
of a hand car was also refused, and he was taken to a hospital in a
town about 10 miles distant on the next passenger train, which passed
at 6 p. m. He was taken to the hospital at the expense of the other
laborers, and he and his brother bore the expense of the treatment
there. The railroad company sustained the claim of the foreman that
the man was not entitled to hospital benefits at its expense. The arm
was finally removed four days after the injury, when the lower arm
had become gangrenous, and there was infection above the wound,
causing slow healing of the amputation wound.
The employee brought action against the company for breach of
contract, alleging failure to furnish medical attendance as agreed,
and consequent loss of the arm. On the trial the employee testified
that he was told by the foreman that the deduction from his wages
would entitle him to medical and hospital services in case he should
become sick or injured while in the company’s employ, no mention
being made of the exception relied upon by the company; and this
evidence was corroborated by others hired at the same time. Judg
ment was rendered for the employee in the superior court of King
County, and this was affirmed. As to the authority of the foreman
who hired the employee to bind the company as to the terms of the
contract, and also his agency for the company in receiving demand
for hospital services, Judge Fullerton, who delivered the opinion,
said:
The evidence makes it clear that he was empowered to take men
into the employ of the company and discharge them after they had
been so employed. Presumptively, at least, he was empowered to
state the terms of the contract of hire to those whom he hired, and if
he stated them incorrectly, or even contrary to his instructions, any
loss caused thereby must fall upon the person whose agent he was,
not upon the person dealing with him as a stranger.
It is argued further in this connection that, since the respondent
was not engaged in the service of the company on the day of his
injury, he was not under the authority of the foreman, and hence
notice to the foreman was not notice to the company, and any lack
of attention on the part of the foreman would not bind the company.
We can not think this contention tenable. The foreman was tne
representative of the company with whom the contract of hire was
made. He had charge of the force of men of whom the respondent
formed a part. He was the only agent of the company authorized
to deal with the respondent which the company had brought to the
respondent’s notice. He contracted with the respondent on behalf
810
BU LLETIN OP TH E BUREAU OF LABOB STATISTICS.
o f th e co m p a n y t o fu r n is h h im w ith m e d ica l a n d s u r g ic a l a tten d a n ce
in ca se h e sh o u ld b e co m e s ick o r b e in ju r e d d u r in g th e tim e h e w a s
in th e co m p a n y ’s e m p lo y . S u re ly it ca n n o t b e s a id u n d e r th ese
c o n d itio n s th a t h is p o w e r t o re p re se n t th e co m p a n y w ith re fe re n ce
t o th e c o n tr a c t e x is te d o n ly d u r in g th e p e r io d s o f th e e m p lo y m e n t in
w h ich th e re sp o n d e n t w a s a ctu a lly e n g a g e d in m a n u a l la b o r in th e
c o u rs e o f th e e m p lo y m e n t; o n th e c o n tr a r y , h is p o w e r t o so re p re
se n t th e co m p a n y co n tin u e d d u r in g th e e n tire co u rse o f th e em
p lo y m e n t o r u n til su ch tim e a s th e re sp o n d e n t sh o u ld r e ce iv e n o tic e
fr o m th e co m p a n y th a t th e fo re m a n n o lo n g e r re p resen ted it .
T h e re w a s e v id e n ce b o th f o r a n d a g a in st th e p r o b a b ility o f re
co v e r y w ith o u t a m p u ta tio n i f th e re h a d b ee n tim e ly a tte n tio n t o th e
w o u n d , a n d th e c o u r t h e ld th a t th e q u e stion h a d b een p r o p e r ly su b
m itte d t o th e ju r y as t o w h eth e r th e lo ss w a s d u e to th e b re a ch o f
c o n tr a c t o n th e p a r t o f th e co m p a n y in n o t p r o m p tly re n d e rin g
m e d ic a l a n d s u r g ic a l serv ice s.
Em
p lo y e e t o L e a v e S t o r e — Keefe v. Straus et al., Supreme Court of
New York, Special Term, New York County (September, 1915), 155
New York Supplement, p. 530.— O n D ecem b e r 2 0 ,1 9 1 2 , a c o ld w in te r
E m p lo y e r s ’ L ia b il it y — R e f u s a l o f O p p o r t u n it y f o r S ic k
d a y , L o u isa K e e fe , a sa lesw om a n in th e s to re o f th e d e fe n d a n ts in
th is a c tio n , w a s, as a lle g e d in th e co m p la in t, ta k e n s ic k a t h e r
co u n te r, w ith a c h ill a n d v o m itin g . S h e ex p re sse d a d e sire t o g o
h om e f o r im m ed ia te m e d ica l trea tm en t, a n d a sk ed f o r a p a ss t o g e t
h e r h a t, c o a t, e tc. A c c o r d in g t o a ru le o f th e s to re , th ese w e re in a
lo c k e r , a n d c o u ld n o t b e o b ta in e d w ith o u t a p ass. T h is w a s re fu se d
o n th e g r o u n d th a t n o p a sses c o u ld b e g iv e n b e fo r e c lo s in g h o u rs
u n til a ft e r th e h o lid a y s , a n d sh e w a s o b lig e d t o rem a in in th e store
f o r o v e r tw o h o u rs , fr o m a b o u t 4 p . m ., w h en sh e w a s ta k e n ill.
W h e n d ie le f t sh e w as s till s u ffe rin g fr o m th e sev ere c h ill, b u t m a d e
h e r w a y a s b est sh e c o u ld to h e r h o m e in B r o o k ly n 5 m ile s a w a y ,
n o a ssista n ce b e in g g iv e n o r o ffe re d . S h e to o k t o h e r b e d a n d secu red
m e d ic a l trea tm e n t, b u t d ie d fr o m p n eu m on ia o n D ece m b e r 26. I t
w a s a lle g e d th a t h e r d ea th w a s ca u sed s o le ly b y th e d e fe n d a n ts fo r c
in g h e r t o rem a in in th e sto re f o r o v e r tw o h o u rs a ft e r d ie w a s se ize d
w ith th e c h ill, a n d b y th e ir fa ilu r e to tak e a n y p re ca u tio n s to p ro te c t
h e r fr o m th e elem en ts o r a ssist h e r h om e.
T h e su it w a s b ro u g h t
a g a in st N a th a n S tra u s e t a l., b y H a n n a h K e e fe as a d m in is tra trix ,
a n d th e d e fe n d a n ts d e m u rre d t o th e co m p la in t, th u s r a is in g th e
q u e stio n w h e th e r, c o n c e d in g th e fa c ts a lle g e d to b e tru e , th e y co n sti
tu te a ca u se o f a ctio n .
T h e c o u r t h e ld th a t a ctio n a b le n e g le ct t o
p e r fo r m a le g a l d u ty w a s se t fo r t h , a n d ju d g m e n t w a s g iv e n to th e
p la in t iff, w ith le a v e t o th e d e fe n d a n ts, h o w e v e r, t o w ith d ra w th e
d e m u rre r a n d file a n a n sw er, th u s b r in g in g th e case in o rd e r fo r
t r ia l in th e u su a l w a y .
DECISIONS OF COUBTS AFFECTING LABOB.
E m pl o y e e s ’
L ia b il it y — R e lea se — A g re e m e n t
to
311
P ay
S alary
v. Illinois Central
Railroad Co., Supreme Cowrt of Nebraska (Jan. 89,1915), 150 North
western Reporter, page 1015.—Gus A . Tylee brought action to re
cover $900 due as salary as traveling watchman for the company
named at $75 per month for one year. He had been injured while
alighting from a train on March 6, 1911. He signed a release for
the damages resulting from this injury, purporting to be on con
sideration of $10, but claimed that a further consideration was the
payment to him of his regular salary during Such time as he should
be unable to resume work. His salary for the month of March, 1911,
was paid in full, but the company refused to pay it thereafter. He
claimed that he was unable to resume work for one year, and in the
district court of Douglas County recovered a verdict for the full
amount claimed. On appeal, the judgment was affirmed, Judge Bose,
who delivered the opinion, saying:
One of the assignments of error challenges testimony of plaintiff
on the ground that it varies and modifies the terms of a written
instrument. The release signed by plaintiff makes no mention of a
promise to pay his salarv as a part of the consideration.
The oral testimony ox plaintiff tends to show that the promise to
pay his salary during the temporary disability resulting from his
injuries was part of the consideration for the release. It is argued
that proof or this nature varies and modifies the terms of the writ
ten instrument, and is consequently inadmissible. What plaintiff
signed was an agreement releasing defendant from liability for per
sonal injuries. There is no attempt to vary the terms of the release
itself. Plaintiff is not seeking damages for the tort. In effect, the
action is one on an oral promise to recover part of the consideration
for the release. The rule of law applicable to the present inquiry
is that an oral promise by an employer to pay an employee his regular
salary during a temporary disability may be shown by parol to be a
part of the consideration for a release or the employer’s liability for
personal injuries, though the employee signed a release for the ex
pressed consideration of a specific sum of money. [Cases cited.] It
follows that the oral evidence was properly admitted.
As to the company’s contention that its claim agent had no au
thority to make the oral agreement upon which the employee’s action
was based, it is pointed out that the company, in introducing in
evidence the release and invoking its protection, adopted the in
strumentalities employed by its claim agent in procuring it, includ
ing the oral promise.
w h il e
U n a b l e to W o r k A ft e r I n j u r y —Tylee
E m p lo y e r s ’ L ia b il it y — R
e l ie f
F u n d — C o n tr a c t fo b H
at .f
Pay
Bab t o A w a b d —
MoAdow v. Kansas City Western Railway Co., Supreme Cowrt of
Kansas (Oct. 9,1916), 151 Pacific Reporter, page 1113.—G. B. McAdow brought action against the company named upon an oral con
D u r in g D
is a b il it y
— J u d g m e n t f o b D a m a g es a s
312
BU LLETIN OF TH E BUBEAU OF LABOR STATISTICS.
tract of insurance claimed to have been made at the time of his em
ployment as a motorman. By its terms as alleged by him 50 cents
per month was to be deducted from his wages, and he was to receive
half pay while disabled, if the duration of the disability was not over
one year. The employee had sued the company for damages for the
injury which caused the disability, and recovered $7,500 on the
ground that it was negligent, and it was suggested that the claim
under the contract was barred thereby. The company claimed that
the- 50 cents per month was used to buy accident insurance from a
company in that business, and that the employee’s action should be
against that company. The fact that on an occasion when the em
ployee had been paid a small sum for a minor injury the receipt
indicated that the source of the money was the insurance company
is mentioned, also the fact that notices had been posted indicating
that the deductions were made for such insurance. Reference was
made to a case in the Indiana courts, in which a certificate of insur
ance was furnished the employee; this was decided in favor of the
employer, but Judge Mason, who delivered the opinion reversing the
judgment of the court below in favor of the company in the present
case, said:
The language quoted [in the Indiana case] makes it entirely clear
that the employee was a party to a contract under which the insur
ance company had written an accident policy for his benefit, any
payments under it to be made to him through the railroad pay
master. Here the plaintiff did not testify to such an arrangement,
nor did the defendant introduce any incontestible proof of its exist
ence. That the evidence as a whole may have tended strongly in that
direction does not affect the question now under consideration. A
Canadian court, however, has reached a conclusion contrary to that
arrived at in the Indiana case cited, upon a contract quite similar
to the one there interpreted.
It was then pointed out that the liability for negligence in an
action.for damages and that on a contract of this character are
entirely distinct, so that recovery in the former is no bar to this
action. It was also held that the company had the power to bind
itself by such a contract, although it did not have power to conduct
a general insurance business.
E m pl o y e r s ’ L ia b il it y I n s u r a n c e — A m o u n t o f P r e m iu m s — I n
B o oks —Frankfort Marme Accident db Plate Glass Insur
ance Co. v. California Artistic Meted <&Wire Co., District Cowrt of
Appeals, TMrd District, California (Aug. 12,1915), 151 Pacific Re
porter, page 176.—The companies named entered into two contracts
of liability insurance, the premium in one case being 2 per cent and
in the other 1 per cent of the last-named company’s pay roll, and the
spe c tio n o f
DECISIONS OP COURTS AFFECTING LABOR.
313
policies running for one year from September 17,1907. The pay roll
was estimated at $2,500, there being an additional clause providing
for adjustment of the premium at the end of the year in accordance
with the fact as to the actual pay roll. After September 17, 1908,
the insurance company repeatedly demanded an opportunity to
inspect the books of the metal company to ascertain the amount due
it for additional premiums, but this was refused. A suit in equity for
discovery and for judgment for the amount found to be due was
brought, and in the trial court a decree compelling an accounting
was made, and judgment rendered in the sum of $2,600 in favor of
the insurance company. The metal company appealed from the
judgment and the order denying a new trial. It contended that the
insurance company had no right to sue it in equity, as there was
adequate remedy at law. The court held that there was ground for
an action in equity, as the contract created a fiduciary relation be
tween the parties, making the metal company the agent of the insur
ance company to inform it as to the amount of the pay roll, and con
sequently of the amount of premiums due.
The trial court had decided that the policies would be construed as
applying to the compensation paid by the metal company to all its
employees, both inside and outside the office building. The court of
appeals sustained the decision in this respect also, and affirmed the
judgment on the ground that by its failure to keep a separate account
of the payments to outside employees as wages for the insurance
year, the employing company itself had so construed or should be
held to have so construed the policies as to embrace within them
its entire pay roll; or that at any rate, the company having failed
to discharge its duty of keeping a separate account of the wages paid,
thus making it impossible to determine what proportion was paid to
outside employees, the court was justified in concluding and deciding
that the basis of the amount to which the insurance company was
entitled as premiums on the policies was the total wages paid all its
employees, inside as well as outside.
E m pl o y e r s ’ L ia b il it y I n s u r a n c e — C o n s t r u c t io n o p C o n t r a c t —
E xp e n se s —Little
CahaJba Coal Co. v. Aetna Life Insurance Co.,
Supreme Cowrt of Alabama (Apr. 15,1915), 68 Southern Reporter,
page 317.—The coal company named was insured by an indemnity
policy of the insurance company, which limited the liability for loss
onaccountof an accident resulting in the injury or death of one person
to $5,000, but required that the insurance company should also pay
the expenses of litigation, and provided that the insurance company
might assume the defense of any case at its own cost. An employee,
Gilbert, was injured, and recovered a verdict for $5,000. On appeal
314
BULLETIN- OP TH E BUREAU OF LABOR STATISTICS.
the judgment was affirmed, which decision carried with it 10 per
cent damages and interest pending the appeal, which brought the
amount to $6,672.25, exclusive of costs. The insurance company paid
the costs and contributed $5,000 toward the payment of the judg
ment ; but the coal company brought action against it for the balance
of $1,672.25. The coal company contended that this amount was an
expense of litigation which the insurer was liable to pay under the
contract, and also that the insurer, having caused the additional ex
pense by its appeal, was responsible therefor. The court overruled
both these contentions, and held that the insurance company was not
further liable.
I n ju n c t i o n — C o n te m p t— E v id e n c e — Oates v. United States,
United States Circuit Court of Appeals, Fourth Circuit {May 4,
1915), MS Federal Reporter, page 1018.—James Oates and three
others were found guilty of contempt of court in separate proceed
ings in the District Court for the Northern District of West Vir
ginia, and sentenced to pay the costs and be imprisoned for six
months. The contempt alleged was violation of a temporary restrain
ing order issued September 29,1913, in the case of West YirginiaPittsburg Coal Co. v. John P. White et al., enjoining interference
with the company’s business by the use of threats, force, intimidation
or persuasion to induce its employees to break their contracts or leave
their work, or by using like means to induce any person to refuse to
accept employment with the company; also trespassing upon the
company’s premises for the above purposes. The judgment at con
viction was reversed on this appeal, Judge Woods, who delivered the
opinion of the court, saying:
The district judge made specific findings of a number of acts of
disobedience of the order by each of the parties charged, and the
sentence imposed on each defendant was the payment of the costs
and imprisonment for six months. The questions here made, recently
considered and decided in Schwartz v. United States, 217 Fed. 866
[see p. 315], and Scoric v. United States, 217 Fed. 871, will not be
reconsidered.
There was before the district judge competent evidence sufficient
to warrant a finding of contempt in disregarding the orders of the
court against all of the plaintiffs in error. 'As to some of these find
ings there was, indeed, no conflict of evidence. As to others, how
ever, there was conflicting evidence, and hence it was important that
irrelevant and incompetent evidence should be excluded from con
sideration. Numerous objections were made to testimony as hearsay
which were either overruled or left for future consideration. It is
true the court in its decree recites that it bases its finding upon “ the
legal evidence produced upon the trial rejecting all improper and
irrelevant parts thereof,” but hearsay evidence was admitted, and it
is impossible for this court to say from the record what the district
DECISIONS OF COURTS AFFECTING LABOR.
315
judge ultimately rejected and whether any of the incompetent testi
mony influenced his findings or the extent of the punishment in
flicted.
A part of the decree of Judge Dayton in the district court is
quoted, reciting the facts as to the opinion of that court in Hitchman Coal & Coke Co. v. Mitchell et al., 202 Fed. 512 (Bui. No. 152,
p. 137), and as to the issuance of a final decree in that case. The
opinion of the circuit court of appeals then concludes as follows:
Some of these conclusions were held to be erroneous in the case of
Mitchell et al. v. Hitchman Coal Co., 214 Fed. 685 [Bui. No. 169, p.
315], and it is impossible to determine from the record to what ex
tent the erroneous views of the district judge as to the legality of the
labor union influenced his findings of fact or his infliction of punish
ment. Following the rule laid down in Gompers v. Buck’s Stove &
Range Co., 221 U. S. 418, 31 Sup. Ct. 492 [Bui. No. 95, p. 323], we
are obliged to hold, further, that it was not in accordance with law
to impose a general sentence for the separate acts of contempt aUeged
and found against the defendants. The punishment for distinctly
different offenses should have been so separated that this court on
review could analyze the evidence and determine which, if any, of the
charges were sustained.
The judgment of the district court must be reversed, and the
causes remanded, so that the district judge may reconsider them,
indicating in his finding the evidence rejected as hearsay, announc
ing his conclusions of fact in view of the judgment of this court in
Mitchell v. Hitchman Coal Co., and imposing sentence in accordance
with the view of the Supreme Court of the United States in Gompers
v. Buck’s Stove & Range Co.
I n j u n c t io n — C o n t e m p t — P o w er of C o u rt — Schwarts v. United
States, United States Circuit Court of Appeals, Fourth Circuit (Sept.
8,1914), $17 Federal Reporter, page 866.—Proceeding was brought
against Meyer Schwartz for criminal contempt in violating an order
of the District Court for the Northern District of West Virginia,
directed against the officers of the United Mine Workers of America
“ and all persons combining and conspiring with the said designated
persons and all other persons whomsoever.” The charge against
Schwartz fell under the following provision of the order: “ from
ordering, aiding, directing, assisting, or abetting, in any manner
whatsoever, any person or persons to commit any or either of the
acts aforesaid.” By petition the plaintiff, the West Virginia-Pittsburg Coal Co., made the following allegation against Schwartz:
Meyer Schwartz, who keeps a store near your petitioner’s Locust
Grove mine, after being advised of the terms and provisions of the
said restraining order, has continued to furnish a meeting place for
your petitioner’s striking employees and to assist in inducing your
petitioner’s striking employees to remain away from their wort, in
violation of their respective contracts of employment.
816
BU LLETIN OP TH E BUREAU OP LABOR STATISTICS.
An affidavit attached to the petition alleged service of the order
on Schwartz, his acts of furnishing a place for the striking miners
to hold their meetings as near as possible to the mines, and of pro
viding a conveyance and a driver for two of the officers of the United
Mine Workers to go over the plaintiff’s property to a meeting of the
strikers.
Schwartz with others promised in open court on December 2,1913,
to desist from the acts charged as contempt and to comply strictly
with the order of injunction, but in January a petition to the court
alleged that he had continued in violation of it, and after hearing
he was adjudged guilty and sentenced to imprisonment for 60 days,
which judgment was on the present trial affirmed, as appears below.
The errors alleged by Schwartz as reasons for reversal of this
judgment are rather technical, and some will not be noticed here.
As to others Judge Woods, who delivered the opinion of the court,
said in part:
There is no force in the position that the judgment should be re
versed because the court exceeded its power in adjudging the defend
ant guilty of contempt for furnishing a meeting place for organizers
of the United Mine Workers of America and others, and thus aided
them in inducing by force: threats, intimidation, and persuasion the
employees of West Virginia-Pittsburg Coal Co. to quit work. It is
true that the judgment for contempt, as well as the order of injunc
tion, will be set aside on writ of error, when the trial court had no
jurisdiction to make the order of injunction. [Cases cited.] But
that condition is not presented here. The court had jurisdiction of
the subject matter—the protection of the West Virginia-Pittsburg
Coal Co. in its property rights—and of the defendant, who had
appeared in the cause to answer the charge that he had unlawfully
interfered with those rights.
Under these conditions it can not be said by the defendant that
the order of injunction and the order to show cause, acquiesced in by
him and not appealed from, is a nullity, because it may have been
erroneous in embracing acts which should not have been held to be
unlawful aid to those who were charged with unlawful interference
with the business of the West Virginia-Pittsburg Coal Co.
“ If a party can make himself a judge of the validity of orders
which have been issued, and by his own act of disobedience set them
aside, then are the courts impotent, and what the Constitution
fittingly calls the ‘ judicial power of the United States’ would be
a mere mockery.” (Gompers v. Buck’s Stove & Range Co., 221 U. S.
418, 31 Sup. Ct. 492 [Bui. No. 95, p. 323].)
The well-established principle is that in a case of criminal contempt
the trial court must be convinced of the guilt of the accused beyond
a reasonable doubt, but when there is evidence tending to show guilt
the finding of fact by the trial court can not be reviewed by this
court. (Bessette v. Conkey Co., 194 U. S. 338, 24 Sup. Ct. 665.) In
this case there was evidence that the defendant rented his land to
the officials of the United Mine Workers of America and others, who
were taking means forbidden by the injunction to induce the em
DECISIONS OP COURTS AFFECTING LABOR.
317
ployees of West Virginia-Pittsburg Coal Co. to quit work, not only
with the knowledge that it would be used, but with the purpose that
it should be used, as a base for their operations. There was also
evidence that he furnished conveyances to some of the same persons
for a like purpose. This was evidence tending to show the “ aiding
and assisting ” by the defendant which the court had forbidden.
This court in a unanimous opinion (Mitchell et al. v. Hitchman
Coal & Coke Co., 214 Fed. 685 [Bui. No. 169, p. 315], has expressed
its views fully on the limits to which an injunction of this sort should
go. It was there held that it is an invasion of the rights of the
citizen to enjoin the promotion of a labor union by persuasion and
other peaceable and lawful means. Had this order of injunction
been brought up for review by the defendant, it would have been
modified in his behalf. But it is too late to allege before this court
that the injunction was too broad when the defendant appeared in
court to answer the charge of violating the injunction, and, instead
of bringing the order up for review, waived all objections to it by
submitting himself and promising obedience to it.
I n te r fe r e n c e w it h E m p l o y m e n t — B l a c k l is t — McCarter v. Balti
more Chamber of Commerce, Court of Appeals of Maryland (May
5, 1915), 94 Atlantic Reporter, page 641.—Robert McCarter brought
action against the Baltimore Chamber of Commerce, which set up
the claim that the declaration against it did not properly charge an
offense, and in the Baltimore city court this contention was sustained
and judgment was rendered for the defendant organization. The
chamber of commerce had provisions in its by-laws to the effect that
any company, firm, or individual whose dealings with any member
were “ inconsistent with just and equitable principles of trade,” should
be tried before the complaint committee of the chamber; and if the
charge should be sustained, any member doing business with the
party should be expelled. Proceedings were had under these pro
visions with respect to McCarter, and several members who had em
ployed him ceased to do so. The court affirmed the judgment below,
Judge Constable, who delivered the opinion, saying in part:
It will be noticed that the declaration avers iio particular nor
definite period of time for the termination of the contracts of em
ployment, and therefore it is to be assumed that they were terminable
at the will or wish of either party without actionable liability upon
the part of either, in other words, a case of hiring from day to day.
We do not mean to intimate that because of this a third party has
the legal right to maliciously interfere so as to terminate an employ
ment, but only to note that it was the legal right of either employer
or employee to bring the employment to an end.
The argument ox the appellant is that this is not a case of one
voluntarily refusing to continue business with him, but a case of one,
against his will, being forced by threats and intimidations made by
a third party, the appellee, to sever those relations. And this brings
us, to our minds, to the crucial test of the liability of the appellee,
318
BU LLETIN OP TH E BUREAU OF LABOR STATISTICS.
whether the by-law in question was, in law, a coercive threat upon the
minds of the members of the appellee corporation. I f the posting of
the appellant by virtue of it did not so amount, then the fact that
the corporation directed certain members to observe it under penalty
of the enforcement of its provisions adds nothing to the claim of the
appellant.
The question of whether such a by-law is coercive has given rise to
a conflict of the authorities. There have been many cases where asso
ciations have had by-laws similar, or practically so, to the one in this
case, and in some jurisdictions courts have held the associations
liable to parties injured through their enforcement, while in others
the opposite conclusion has been reached. [Cases cited.]
Of the above-cited cases we think it only necessary to review that
of Bohn Manufacturing Co. v. Hollis [54 Minn. 223,55 N. W. 1119],
for the reason that in a recent case (Klingel Pharm. v. Sharpe &
Dohme, 104 Md. 218, 64 Atl. 1029) this court has reviewed the tacts
and approved the finding of the Minnesota court. In that case a
large number of retail lumber dealers formed a voluntary associa
tion by which they mutually agreed that they would not deal with
any manufacturer or wholesale dealer who should sell lumber di
rectly to consumers at a place where a member of the association was
engaged in the retail business, and they provided in their by-laws
that whenever any wholesale dealer or manufacturer made any such
sale, their secretary should notify all the members of the fact. The
plaintiff made such a sale, and tne secretary made demand upon him
for the penalty prescribed by the by-laws, but the plaintiff delayed
so long in the payment of the penalty tne secretary threatened to
send notices to all the members. By the provisions of the by-law
any member who continued dealings with such wholesale dealer was
subject to expulsion from the association. The plaintiff applied for
an injunction to restrain the sending of the notices, but it was held
no action would lie, and that there was no ground for an injunction.
Chief Judge* McSherry, in delivering the opinion in Klingel
Pharm. v. Sharpe & Dohme, supra, approved the opinion in the above
case and declared “ there was nothing unlawful in this.” Under the
authority of those cases there was not such an interference with the
rights of the appellant by the appellee corporation as to amount in
law to a wrongful and malicious interference for which an action
will lie.
I n t e r fe r e n c e w it h E m p l o y m e n t — B l a c k l is t — S t r ik e s — I n j u n c
ComeTlier v. Haverhill Shoe Manufacturers’ Association et
al., Supreme Judicial Court of Massachusetts (Sept. 16, 1915), 109
Northeastern Reporter, page 64$.—John Coraellier brought action
by bill in equity to secure an injunction against the association named
and others, to restrain interference with his securing employment, by
means of blacklist. A justice of the court affirmed the report of a
master and dismissed the bill, and this action was affirmed by the
supreme judicial court, which overruled the plaintiff’s exceptions, on
grounds set forth in an opinion written by Judge De Courcy.
t io n —
DECISIONS OP COURTS AFFECTING LABOB.
319
Comellier was one of 40 employees of the Witherell & Dobbins Co.
who struck on December 12, 1912. He secured employment at an
other factory, and was summarily discharged about two hours later,
the master finding that the cause of his discharge was the fact that
he was one of the strikers. It appeared that on the day of the strike
or the day after, at the request of Mr. Child, manager of the Shoe
Manufacturers’ Association, Mr. Dobbins brought to a meeting of
the manufacturers several lists of the names of the employees who
had gone on strike, and these were circulated to prevent them from
getting work in Haverhill or vicinity, so that they would be forced to
return to their former employment. The master named from the
20 respondents in the suit 10 companies and individuals whom he
found to be responsible for the acts complained of, and these are
referred to in the opinion under the. term “ defendants.” In ren
dering the opinion that the procedure must be in law rather than in
equity, Judge De Courcy said:
Did this combination of the defendants to blacklist the striking
employees of the Witherell & Dobbins Co., resulting in the discharge
of and damage to the plaintiff, give him a legal cause of action ? The
statement of the general right of the Fox Co. to terminate a work
man’s employment wheji and for what cause it chooses, where no right
of contract is involved, does not carry us far. (See Coppage v.
Kansas, 236 U. S. 1, 35 Sup. Ct. 240 [Bui. No. 169, p. 147].) The
same is true of the recognized equal rights of employers and em
ployees to combine in associations or unions, so long as they employ
lawful methods for the attainment of lawful purposes. (See Hoban
v. Dempsey, 217 Mass. 166, 104 N. E. 717 [Bui. No. 169, p. 303].)
But it is settled that the intentional interference by even an indi
vidual, without lawful justification, with the plaintiff’s right to have
the benefit of his contract with his employer would be an actionable
wrong. (Berry v. Donovan, 188 Mass. 353, 74 N. E. 603 [Bui. No.
60, p. 702]; Hanson «. Innis, 211 Mass. 801, 97 N. E. 756 [Bui. No.
112, p. 161].) A combination to blacklist is the counterweapon to
a combination to boycott, and is open to similar legal objections,
when directed against persons with whom those combining have no
trade dispute, or when the concerted action coerces the individual
members, by implied threats or otherwise, to withhold employment
from those whom ordinarily they would employ. (See New England
Cement Gun Co. v. McGivem, 218 Mass. 198, 105 N. E. 885 [Bui.
No. 169, p. 298], and cases cited.) It is true that in Worthington v.
Waring, 157 Mass. 421, 32 N. E. 744, this court refused to enjoin the
defendants from making use of a blacklist, stating that the rights
alleged to be violated were personal and not property rights, and that
there were no approved precedents in equity for issuing an injunction
against the grievance there complained of. In the light of more
recent decisions of the court recognizing that the right to labor and
to its protection from unlawful interference is a constitutional as
well as a common-law right there appears to be no sound reason why
it should not be adequately protected under our present broad equity
powers. As intimated in Burnham v. Dowd, 217 Mass. 351, 104
320
BULLETIN OP THE BUREAU OP LABOR STATISTICS.
N. E. 841 [Bul. No. 169, p. 270], the case of Worthington v. Waring
can not well be reconciled with our later decisions. It must be con
sidered as no longer binding as an authority for the doctrine that
equity will afford no injunctive relief against an unlawful combi
nation to blacklist.
It should be added that Stats. 1914, ch. 778, was enacted after the
events in controversy and has not been considered. Nor, on the
facts, have we had occasion to determine how far the “ peaceful
persuasion” statute (Stats. 1913, ch. 690) permits one employer to
advise another not to employ his striking employees. In several
States legislation has been enacted to prevent blacklisting; and most
of the decisions deal with the validity or construction of the different
statutes. (See Labor Laws of the United States, Bureau of Labor
Statistics, Bulletin No. 148; Labor Decisions, 1912, Bulletin No.
112; Id. 1913, Bulletin No. 152.)
Assuming that if this were an action at law the plaintiff could
recover for the damages caused by the unlawful combination of the
defendants to blacklist him, the question remains whether he is en
titled to prevail in the present suit. He has brought these proceed
ings in a court of equity. Under the established maxim that “ he
who comes into equity must come with clean hands,” the court will
not lend its active aid to him if he has been in equal wrong with the
defendants touching the transaction as to which relief is sought,
but will leave him to his remedy at law. The strike at the Witherell
& Dobbins factory in which he joined is intimately connected with
the blacklist of which he complains. The plaintiff individually
was free, under his contract at will, to terminate his employment
for any reason that he deemed sufficient. He had an undoubted
right to join a labor organization. The employer as an individual
had similar rights. But while each had a right to organize with
others, it by no means follows that the organizations lawfully could
do everything that the individual could do. [Cases cited.] An act
lawful in an individual may be the subject of civil conspiracy when
done in concert, provided it is done with a direct intention to injure
another, or when, though done to benefit the conspirators, its natural
and necessary consequence is the prejudice of the public or the op
pression of individuals.
Without discussing the conflicting authorities in other jurisdic
tions, in this Commonwealth, in the present stage of the industrial
controversy, the principle is defined tnat the legality of a strike de
pends first upon the purpose for which it is maintained, and secondly
on the means employed in carrying it on. As to the first, it is no
longer in question that organized labor lawfully may strike for
higher wages, shorter hours, and improved shop conditions. (Minisian v. Osborne, 210 Mass. 250, 96 N. E. 1036 [Bul. No. 99, p. 727],
and cases cited.) On the other hand it has been decided that a strike
instituted merely to compel a closed shop would not be justifiable on
principles of competition, but would be unlawfuL (Beynolds v.
Davis, 198 Mass 294, 84 N. E. 457 [Bul. No. 77, p. 393]; Folsom v.
Lewis, 208 Masc. 336, 94 N. E. 316 [Bul. No. 95, p. 341].) In the
debatable ground between these extremes the conflict of rights must
be adjusted as new conditions arise. And the question whether any
particular strike is lawful is a question of law. (De Minico v. Craig,
DECISIONS OP COURTS AFFECTING LABOB.
321
207 Mass. 593, 94 N. E. 317 [Bui. No. 95, p. 344]; Burnham v. Dowd
[supra].)
What then was the purpose of the Witherell & Dobbins strike?
The master has found that it was instituted and maintained for the
reason that the company, although willing to grant the request for
an increase of wages, was unwilling to make an agreement as to
prices with or through the union or its representatives; and the
employees were unwilling to make such an agreement except through
the union or its representatives. Plainly it would not be unlawful
for the men to combine to secure an experienced spokesman for their
collective bargaining, and to select an outsider in order to avoid fu
ture criticism from the employer or fellow employees. Further, the
fact that the person they select to speak for them, and to act per
sonally as their agent in presenting the proposed price list to their
employer, happens to be an official of the union would not render
unlawful a strike called to enforce their demand. Apparently that
is as far as the employees of the Witherell & Dobbins shop went.
The master expressly finds that:
“ The price list did not contain any provisions that the union must
be recognized or make any stipulation as to the employment of
union or nonunion labor, and no such demand was made.
Not all the men who went on strike were members of the union.
Later there developed what probably was latent from the beginning,
a struggle between the manufacturers to deal with their employees
as they saw fit, and the union to secure recognition. As a practical
matter it might be difficult to find a permanent position where the
union would rest content with a degree of “ recognition” that allowed
it to represent its members without interfering with the rights of
their nonunion fellow workmen and virtually forcing them to join
the organization. But so far as the record and the findings of the
master disclose, the strike in question did not contemplate the dis
charge of nonunion men, and was not immediately or remotely a
strike for a closed shop. On the facts appearing in the record we can
not say that the combination to strike at the Witherell & Dobbins
shop was for an unlawful purpose^ any more than a similar combina
tion of employers for nonrecognition of the union would be.
It is clear from the findings of the master, however, that the
Witherell & Dobbins strike was conducted by unlawful means; that
laws were violated and the well-established rights of others invaded.
On several occasions crowds of strikers paraded in front of the fac
tory, cheering and shouting “ Come out!” and occasionally adding
the names of men who remained at work; once at least 100 or more
paraded in front of the factory, 2 by 2 in one direction and 2 by 2 in
the opposite direction, so that there were 4 persons abreast most of
the time, and the operatives leaving the factory had difficulty in
breaking through the line. Some of the employees were intimidated
and followed by crowds, others had to be escorted home by police
officers, and 4 or 5 were assaulted by strikers or their sympathiz
ers because they took the place of striking employees. One serious
attack, characterized by tne master as cowardly and unprovoked,
was made on an employee named Mills, as he was going home after
dark at the conclusion of his day’s work. And while the persons
who committed the assaults were not identified, the union and its
26071°—Bull. 189—16---- 21
322
BULLETIN OF TH E BUREAU OF LABOR STATISTICS.
officials made no effort to stop or control them; and the union men
who were present when Mills was assaulted and rendered uncon
scious made no effort to give any aid or to pursue the man who
struck the blow. The strike was carried on in a manner that reason
ably caused the average employee to be apprehensive for his personal
safety. The plaintiff can not avoid responsibility for some, at least,
of these acts. The strike, which was pending for more than three
months after the bill was filed (as well as the “ general” strike),
was maintained under the direction of the union to which he be
longed, and for the recognition of which he went on strike. He took
part in the picketing and in at least one of the parades, and otherwise
aided and encouraged it. (See Lawlor v. Loewe, 235 U. S. 522, 35
Sup. Ct. 170 [Bui. No. 169, p. 140].)
The conduct of the plaintiff and the acts of others with whom
he was legally identified preclude him from obtaining the active aid
of a court of equity. For any damage caused by the blacklist which
the defendants maintained he must seek his redress, if any, at law.
Accordingly it becomes unnecessary to consider the effect upon his
rights of his participation in the general strike of December 30, and
the further questions, whether that strike was for a lawful or an
unlawful purpose, and whether it was conducted by lawful or un
lawful means.
For the reasons herein set forth a decree is to be entered over
ruling the exceptions, confirming the master’s report, and dismiss
ing the bill of complaint.
In terferen ce w ith Employment—Causing Discharge— F a l s e
Statements—Scott v. Prudential Outfitting Co. (Inc.), Supreme
Cowrt of New York, Appellate Term, First Department (Nov.
S, 1915), 155 New York Supplement, page 497.—Agnes Scott, a
minor, brought action by her guardian ad litem against the company
named for causing her discharge from employment. She had been
for two years in the employ of a corporation, when the Prudential
Outfitting Co., as alleged, falsely represented that she was indebted
to it, and that she had given an assignment of her wages. It was also
alleged that she had been out of employment since her discharge in
April, 1915, and the amount due her at the time of the discharge
had been withheld because of the alleged assignment. Judgment
was in her favor in the municipal court, and on appeal this was
affirmed, Judge Bijou stating the law as to the main questions as
follows, and also ruling for the plaintiff on more technical points:
It can scarcely be doubted that in the present state of the law
this complaint sets out a cause of action. ( Warschauser v. Brooklyn
Furniture Co., 159 App. Div. 81, 144 N. Y. Supp. 257.) As inti
mated in that case, and as held in Moran v. Dunphy, 177 Mass. 485,
59 N. E. 125 [Bui. No. 37, p. 1202], the mere fact that the employ
ment was at will does not impair the cause of action, however it
may modify the amount of damages. There are many other cases
DECISIONS OF COURTS AFFECTING LABOR.
323
to the same effect. Nor does the fact that the complaining employee
was an infant preclude a recovery, since we can not indulge in any
presumption that the infant was not lawfully entitled to receive and
retain tne wages for her labor.
I nterference with Employment—Causing Discharge—Filing
Unauthorized A ssignment—Kermedy v. Hub Manufacturing Co.,
Supreme Judicial Cowrt of Massachusetts (May 21, 1915), 108
Northeastern Reporter, page 932*—Matthew P. Kennedy brought
action against the company named for damages for unlawfully
causing his discharge by his employers, J. L. Walker & Co. In
1902 the plaintiff gave a power of attorney to Oscar F. Berry, with
power of substitution, “ to execute and deliver to the said Oscar F.
Berry an assignment of my wages or future earnings,” and at the
same time became indebted to him in the sum of $3 for a hat. Berry
was then doing business under the name of the Hub Manufacturing
Co., and in 1910 he with two others organized a corporation under
that name, which was the defendant in the present suit, and trans
ferred to it bills receivable, etc., to the amount of $6,000. Berry
was president and a director of the company, and in 1912 one Thornrose, treasurer and also a director, by substitution made an assign
ment of the plaintiff’s wages to the Hub Manufacturing Co. Shortly
after the date of the assignment it was shown to the plaintiff by
the superintendent of his employers, and for the 8 or 10 weeks be
fore the discharge, there was conversation about it about twice a
week, a collector of the Hub Co. calling at the office, etc. The
superintendent testified that the plaintiff’s work was satisfactory,
.and that there was no reason in his work or conduct for his dis
charge. The superior court of Suffolk County had rendered a ver
dict in Kennedy’s favor, and in delivering the opinion of the su
preme judicial court affirming it Judge Rugg said that this evidence
“ warranted, if it did not require a finding that the reason [for the
discharge] was the annoyance and possible litigation and expense
which might be occasioned to the employers in connection with the
assignment,” the liability of the company being due to the fact that
the power of attorney did not warrant the execution of an assign
ment to the Hub Manufacturing Co., but only to Berry personally,
so that the assignment made was unsupported by any act of the
plaintiff, Kennedy.
Labor Organizations—B y - l a w s —Expulsion o f Member—Schou-
ten v. Alpine, Cowrt of Appeals of New York (Jwne 1,1915), 109
Northeastern Reporter, page 244.—Lambert Schouten brought ac
tion against John R. Alpine, as president of the United Association
324
BULLETIN OP THE BUREAU OP LABOB STATISTICS.
of Journeymen Plumbers, Gas Fitters, Steam Fitters, and Steam
Fitters’ Helpers of the United States and Canada. Schouten, a jour
neyman plumber, was expelled from Local No. 498 of New York
City in August, 1908, and a penalty of $100 as a new initiation fee
imposed upon him. This action was on appeal affirmed by the
United Association. He thereupon brought suit against the United
Association, claiming that he was illegally expelled; that he was not
served with written charges or given notice or an opportunity to be
heard; that the expulsion and penalty imposed were in violation of
the constitution and by-laws of the local, and the affirmation by the
United Association was illegal and contrary to justice. Judgment
was in his favor in the trial court, and was affirmed in the appellate
division, but was on the present appeal reversed and a new trial
granted. As to the trial and the instructions given and requested,
and other facts, the following is the statement of the court of ap
peals in the opinion delivered by Judge Hogan:
The trial justice submitted to the jury in various forms the ques
tion as to whether the plaintiff was given a trial in accordance with
the rules and by-laws of the labor union to which he called attention
in his charge, and charged that the only theory upon which the
plaintiff could recover was that he was not given a fair trial and
was not given an opportunity to put in his defense. The jury ren
dered a verdict in favor of the plaintiff for $3,500, which was re
duced $150 by the appellate division.
It is unnecessary to refer to the conflict of evidence between the
parties relating to the proceedings of the local union. For the pur
poses of this appeal, it may be assumed that the plaintiff was enti
tled to written notice of charges against him, an opportunity to
defend himself against the same, and to have a fair trial as provided
in the constitution and by-laws of the local union, and in view of
the verdict of the jury, that such was not properly afforded him.
The important question arises as to the liability of the United As
sociation to plaintiff for damages in this case.
It was only by affirmative action of the plaintiff that the matter
could be brought to the attention of the executive board of the
United Association as the constitution and by-laws of the local did
not contain provision for such appeal. When plaintiff petitioned
the United Association to review the action of the local union it
must be assumed that he appreciated the fact that such review would
involve a consideration of the proceedings of the local union as well
as the statement made by him. He had no right to assume that the
United Association would act on his statement alone.
The executive board of the United Association had before it for
review a record of the proceedings of the local union and the state
ment of plaintiff when it passed upon the appeal taken by plaintiff.
It is not alleged in this case that the members of the United Asso
ciation individually, or as representing that association, were guilty
of any fraud, misconduct, or bad faith in the performance of the
duty imposed upon them by plaintiff’s appeal. Assuming, for the
purposes of argument,, that the executive board of the United Asso
DECISIONS OF COURTS AFFECTING LABOR,
325
ciation made an erroneous decision, in the absence of bad faith, the
members of that body or the association which they represent can
not be held liable in damages by reason of such a determination
induced by the appeal of a member. The ostensible object of such
organization was a lawful one, and has been so declared by the court.
(National Protective Association v. Cumming, 170 N. T. 315,63 N. E.
369 [Bui. No. 42, p. 1118].)
This action is sought to be maintained under section 1919 of the
Code of Civil Procedure. The provisions of this section, however,
in an action against an unincorporated association, are limited to a
cause of action for which the plaintiff might maintain an action
against all the associates by reason of their liability therefor either
jointly or severally, and in the event of a recovery satisfaction is to
be made under subsequent provisions of the code out of personal
property belonging to the association, or owned jointly, or in com
mon, by all the members thereof. It is essential, therefore, to a right
of recovery in such a case that the cause of action was one for which
an action might be maintained against the 30,000 members of the
United Association, and for this reason we do not agree that this
action is maintainable in its present form. (McCabe v. Goodfellow,
133 N. T. 89,30 N. E. 728.)
As to the action of the United Association approving the impo
sition of a penalty of $100 in the nature of a new initiation fee upon
the plaintiff, while it is true that section 115 of the by-laws of the
United Association contains an inhibition against a local union im
posing a fine of more than $25 upon any member without the consent
of the United Association, we do not construe that section to be ap
plicable to the case at bar. Under the constitution of the local union
provision is made for the imposition of fines by sections 15, 50, 72,
which fines are limited in the several sections, except as provided by
sections 15 and 69, to such amounts as may be fixed in the several
cases therein specified. By section 54 provision is made:
“Any member refusing to obey the orders of the local union as con
veyed t>y the delegates snail, upon conviction, after a trial before the
executive board, forfeit his membership and be subject to such pen
alty as the local union may impose for said offense.”
The plaintiff herein, according to the report made by the local to
the United Association, was expelled and penalized for working
upon a job after the same had been declared unfair both by the con
ference board and the local, and, as asserted by it, after notice thereon
had been given plaintiff. The local’s right to determine the penalty
was conferred upon, and was not limited by the constitution and by
laws in a case within section 54 above quoted.
The conclusion that the United Association is not liable in this case
renders unnecessary a consideration of the exceptions taken by coun
sel for the defendant to the charge of the court.
Labor Organizations—C ollective Agreements—L ia bility to
C ontractor not Notified, fo r Reduction o f Wages—Powers v.
Journeymen Bricklayers’ TJmon No. 3 et al., Supreme Court of Ten
nessee (Dec. M, 1914) >I?® Southwestern Reporter, page 284.—This
326
BULLETIN OF THE BUBEAU OF LABOR STATISTICS-.
was a suit by L. C. Powers against the labor union named and others.
Judge Neil, who delivered the opinion of the court, stated the facts
involved and the history of the case up to the appeal to the supreme
court as follows:
The case stated by the bill is this: The defendant union is com
posed of tine bricklayers in Knoxville and vicinity. Under the terms
of the organization there is devolved upon it the duty of fixing the
rate of wages for all of its members for each year in advance.. The
union fixes this scale about the beginning of the calendar year, and
gives notice to contractors before the employment or union year be
gins, which runs from the 1st of May of any given calendar year to
the last day of April of the following year. The complainant is a
contractor in Knoxville, and necessarily has to employ the members
of the union to work for him in carrying out his contracts, as he can
obtain no others. He received a notice m the early part of the year
1910 that the regular wage for the ensuing union year would be 62£
cents per hour. On the faith of this notice, and accepting the terms,
he employed certain of the members, and for a series of months paid
them at the rate of 62£ cents, without any knowledge or notice that
the rate had been changed by the union, after it had been given to
him. The fact was, however, that after he had been notified of the
62£-cent rate, and had employed the men, the union changed the
rate to 56| cents per hour, but gave complainant no notice. In
ignorance of the change, he continued to pay his employees at the
rate of 62£ cents, the result of which was that he suffered a loss of
$322.59 difference in his profits between the 56^-cent and 62£-cent
wage. He sues for this sum.
There was a demurrer filed which raised the point that the above
facts did not state a cause of action. The chancellor and the court of
civil appeals so held. We think they were both in error.
The following is the greater portion of the remainder of the
opinion, in accordance with which the court remanded the case,
which the courts below had attempted to dismiss, placing it in con
dition for further proceedings:
A labor union organized for the purpose of regulating the wages
of its members and protecting them in their contracts and the pro
motion of their interests as laboring people is lawful. (Lohse Pat
ent Door Co. v. Fuelle, 215 Mo. 421, 114 S. W. 997 [Bui. No. 81, p.
434, and other cases cited].) It has even been held mat it is lawful
for a single employer to contract with a labor union that he will
employ only union men. (Jacobs v. Cohen, 183 N. Y. 207, 75 N. E.
5 nBul. No. 64, p. 896].)
The situation in Knoxville, under the allegations of the bill, was
such that the union had absolute control of the labor market in
respect of the services of bricklayers, fixed the term of employment
and the wages, and the bricklayers all had agreed thereto by becom
ing members of the union which exercised this power. Tne result
was that the complainant was bound to accept these terms if he
employed aiiy of their men. He could employ no other. Now, while
each several contract of employment was made with the men who
agreed to work for him, and while they might accept his employment
DECISIONS OF COURTS AFFECTING LABOR.
327
or refuse it, yet, if a contract was made between them, and the com
plainant, it was bound to be on the terms fixed by the union. So,
while there was no contract between the union and the complainant
for the services of the men who worked for him, yet the relation
established by the facts existing at the time was the same in practical
effect and result as if he had agreed with the union to employ no one
but its members. Possessing the power, as it did, to make it impos
sible for the complainant to employ any member except on terms
fixed by it, and having assumed, as a part of the duty imposed, the
obligation to give notice of the terms on which contractors were
authorized ana expected to rely, the duty was likewise imposed on
the union by necessary implication of law to give notice of any
change made in these rates which would affect the rights of contrac
tors justified in acting under a previous notice. To hold differently
would authorize the conclusion that the union could with impunity
use its lawful powers for the purpose of enabling its members to
practice a fraud on contractors who justly relied on, and were ex
pected to rely on, its representations or notices as to the rate of
wages. In issuing these notices the union necessarily informed con
tractors that they were final, and were to be the basis of contracts,
or at least were to continue for the period fixed in the notice, unless
changed by the same power which issued the notice. When the union
so issued a notice, knowing it must be and would be relied on by the
contractor, and issued it for the purpose of having it relied on, and
it was relied on and acted on by the contractor to his prejudice, be
cause of a subsequent change made without notice, the liability arose
against the union to make good the injury so caused. The notice
of the rate fixed for a year was a continuing representation on the
part of the union that such was the agreed basis of contract with the
men for the whole year, and upon a subsequent change of the baas
without notice to the contractor such former notice thereafter oper
ated as a continuing misrepresentation, and, being relied on by the
contractor to his prejudice, raised a cause of action against the party
making such misrepresentation—that is, the union. The failure to
give the notice of the change in the rate naturally resulted in such
damage as is claimed by the complainant in the present case, and of
this the union was bound to take notice.
Before closing the opinion we should say that it appears from, the
bill that the union is an unincorporated association. As such, of
course, it can not be made a party. (Pickett v. Walsh, 192 Mass. 572,
78 N. E. 753 [Bui. No. 70y p. 747].) To avoid this difficulty the
complainant made sundry members of the union parties defendant,
stating that these were all he could learn the names of. It is not dis
tinctly alleged in the bill that these were made defendants as repre
senting all others of the same class—that is, standing for the union.
(Pickett v. Walsh, supra [other cases cited].) Proper allegations,
however, can be made on this subject when the case again reaches
the chancery court on the remand.
On the ground stated we are of the opinion that both the chancery
court and the court of civil appeals committed error in digmiggjrig the
bill. Their decrees are therefore reversed, and the cause remanded,
to the end that the amendment above mentioned may be made, and
that an answer may be filed and proof heard.
328
BULLETIN OF TH E BUREAU OF LABOR STATISTICS.
L abor Organizations—I njunctions—B y -laws—I ntimidation—
Rhodes Bros. Co. v. Musicians’ Protective Union, Local No. 198,
American Federation of Musicians of Providence et al., Supreme
Court of Rhode Island (Jan. 4,1916), 92AtlanticReporter, page 641.—
The company named brought action for an injunction against the
labor union named and the members of its board of directors, and se
cured a preliminary injunction in the superior court of Providence
and Bristol counties, whereupon the respondents appealed. The com
pany maintains a place of entertainment at Cranston, E. I., where it
conducts a dance hall and employs an orchestra daily during the
summer. E. M. Fay, engaged in leading and furnishing orchestras,
and a member of the union, entered into a contract with the com
pany on March 5,1914, for the employment of an orchestra for the
season, which contract contained clauses reserving to the musicians
the right to maintain their obligations to the federation without
interference. Mr. Fay selected an orchestra from the members of
the union, and it furnished the music from April 11 to June 6,1914.
Fay did not conduct it personally, the contract not calling for this.
The company claimed that there was much dissatisfaction with the
music among its patrons, and canceled the contract, after which an
other orchestra composed of members of the union was employed.
The board of directors of the union then passed a vote forbidding
its members to enter or continue in the employment of the company
as musicians. The company thereupon filed its bill of complaint,
setting forth the facts, stating that the union comprised all avail
able musicians, and asking that it be restrained from interfering with
the company’s right to engage members of the association or with
the members’ right to enter such employment, from imposing fines or
expelling members for so doing, from intimidation, etc.
At the first hearing in the superior court the decision was that a
case had been made out except as to irreparable injury. At a second
hearing the decision was in favor of the complainant, and a decree
was entered enjoining the union as prayed for.
After stating the facts substantially as above, Judge Vincent, who
delivered the opinion of the supreme court reversing the judgment of
the court below, discussed the points raised on appeal, with slight
omissions, as follows:
The novelt
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