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U. S. DEPARTMENT OF LABOR
BUREAU
OF LABOR
S T A T IS T IC S
ROYAL MEEKER, Commissioner
BULLETIN OF THE UNITED STATES \
BUREAU OF LABOR STATISTICS/
LABOR
LAWS
OF
THE
UNITED
j
( lN U .
STATES
SERIES
D E C IS IO N S O F C O U R T S
A F F E C T IN G L A B O R : 1917
LINDLEY D. CLARK
AND
AUGUSTUS P. NORTON
SEPTEMBER, 1918
WASHINGTON
GOVERNMENT PRINTING OFFICE
1918
OAC
CONTENTS.
Review of decisions of courts affecting labor, 1917.
Page.
Introduction........................................................................... ......................................... 13,14
Employer and employee....................................................................... .........................14-17
Enforcement of contract......................................................................................... 14,15
Breach of contract.................................................................................................... 15,16
Service letters...........................................................................................................
16
Interference with employment.............................................................................. 16,17
Seamen................................................................................................. .....................
17
Residence in company village...............................................................................
17
Wages.................................................................................................................................17-19
Minimum wage laws................................................................................................17,18
Mode and time of paym ent............................................... *..................................
18
Assignments..............................................................................................................18,19
Hours of labor............ ...................................................................................................... 19-21
Railroads......... .......................................................................................................... 19, 20
W o m e n ......................................................................................................................
21
Sunday labor.....................................................................................................................
21
Factory regulations.........................................................................................................
21
Railroads........................................................................................................................... 21,22
Liability of employers for injuries to employees....................................................... 22-28
Safe place and appliances...................................................................................... 22-25
Overtime w ork.........................................................................................................
25
Relation to compensation laws.............................................................................. 25, 26
Federal statute..........................................................................................................26-28
Jurisdiction........................................................................................................
26
Lim itation..........................................................................................................
26
Exclusiveness.................................................................................................... 26, 27
Interstate commerce.........................................................................................27, 28
Workmen’s compensation.............................................................................................. 28-50
Constitutionality of statutes.......................................................................... ...... 28, 29
Particular provisions of the laws...........................................................................30-50
Injuries compensated......................................................................................
30
Accidents...................................................................................................
30
Occupational disease................................................................................
30
Coverage..................................................................................................... 31-38
Employment status..................................................................................
31
Election......................................................................................................
31
Place of employm ent............................................................................... 31, 32
Casual employment.................................................................................. 32, 33
Hazardous employments.................................... >.................................. 33, 34
• Farm labor..................................................................................................
34
Public employees.................................................................................... 34, 35
Extraterritoriality..................................................................................... 35, 3.6
Interstate commerce................................................................................. 36, 37
A dm iralty.................................................................................................. 37,38
3
4
CONTENTS.
Workmen’s compensation— Concluded.
Page.
Particular provisions of the laws—Concluded.
Arising out of and in course of employment.......... ....................................38-42
Willful misconduct...........................................................................................
42
Liability of third parties................................................................................. 43, 44
Dependence....................................................................................................... 44, 45
Disability........................................................................................................... 45-47
Awards................................................................................................................
47
Medical treatment............................................................................................ 47, 48
Procedure...........................................................................................................48-50
Notice and claim ...................................................................................... 48, 49
Review ........................................................................................................ 49, 50
Employers’ liability insurance......................................................................................50, 51
Pensions.......................................................................................... ................................. 51,52
Public employees.....................................................................................................
51
Mothers’ pensions..................................................................................................... 51, 52
Old-age pensions.......................................................................................................
52
Employment offices.........................................................................................................
52
Labor organizations............................................................................................. .......... 52-60
Membership.............................................................................................................. 52,53
Restraint of trade.................................................................... .. ............................ 53, 54
Interference with employment...............................................- « cv„.......................54-56
Strikes........................................................................................................................ 56-60
Picketing...................................................................................................................
60
Decisions of courts affecting labor.
Alien contract labor—bringing seamen from China (Scharrenberg v. Dollar
S. S. Co.)........................................................................................................................ 61,62
Assignments of wages—constitutionality of loan law:
Illinois statute (People v. Stokes) ...................................................................... 62, 63
Ohio statute (Wessell v. Timberlake)................................................................... 63, 64
Boycott—blacklisting—conspiracy— combination in restraint of trade—anti
trust act:
Knauer v. United States......................................................................................... 64, 65
United States v. Hollis................ ........................................................................ .. 65-67
Employees’ disability insurance— color blindness as complete and permanent
68
loss of sight (Routt v. Brotherhood of Railroad Trainmen).................................
Employer and employee:
Contract of employment—
breach—amount of damages—commissions (Barry v. New York H old
ing & Construction C o.)............................................................................... 68, 69
breach by employee after receiving advances—constitutionality of
statute—involuntary servitude (Goode v. Nelson)................................ 69, 70
effect of custom— “ straight time9’ (Cormier v. H. H . Martin Lumber
C o.)...................................... .......................................................................... 70,71
grounds for discharge (Farmer v. First Trust C o.)......................................71, 72
term—discharge— damages (Stewart Dry Goods Co. v. Hutchison)....... 72, 73
Exclusion of person from streets of mining village—contract between land
lord and tenant (Ham s v. Ke'ystone Coal & Coke C o .)........................ ........73, 74
Interference with employment—causing discharge by mistaken notice to
employer of assignment of wages (Doucette v. Sallinger)............................. 74, 75
Service letter—right of action for failure to furnish— constitutionality of
statute— blacklist (Cheek v. Prudential Insurance Co. of Am erica)........ 75-77
CONTENTS.
Employer and employee— Concluded.
5
Page.
Trade secrets—
injunctions (E. I. Du Pont de Nemours Powder Co. v. Masland).......... 78, 79
list of customers—injunction— “ receiving1’ business (New Method
Laundry Co. v. MacCann)........................................................................... 79, 80
use by former employee (Aronson v. Orlov)............................................... 80-82
Employers’ liability:
Defenses—constitutionality of statute (Superior & Pittsburg Copper Co. v.
Tom ich)....................................................................... .......................................... 82, 83
Guards for dangerous machinery—assumption of risk by superintendent—
constitutionality of statute (Bowersock v. Smith)......................................... 83-85
Liability without fault—constitutionality of statute (Inspiration Consoli
dated Copper Co. v. Mendez) ........................................................................... 85, 86
Medical treatment—negligence of physician (Owens v. Atlantic Coast
Lumber Corporation)...........................................................................................86, 87
Mine regulations— “ known to generate explosive gasesJ’ (Eleganti v.
Standard Coal Co.)............................................................................................... 87, 88
Negligence— contributory negligence—infection from decayed chicken in
cannery (Potter v. Richardson & Robbins Co.)...................... *..................... 88, 89
Poisonous fumes— duty of employer to eliminate (Fritz v. Elk Tanning Co.) 90, 91
Proximate cause of death—pneumonia resulting from burns and recumbent
91
position (Sterling Anthracite Co. v. Strope)...................................................
Railroad companies:
Federal statute—
Interstate commerce—
freight conductor on return trip after moving interstate ship
ment (Illinois Central R. Co. v. Peery)................................... 91, 92
gateman (Southern Pacific Co. v. Industrial Accident Com
mission) ...........................................................................................
92
jacking up wrecked car (Southern Railway Co. v. P u ckett).. 92,93
lineman (Southern Pacific Co. v. Industrial Accident Com
mission) ...........................................................................................
93
repairing locomotive (Minneapolis & St. Louis R. Co. v.
Winters)..........................................................................................
94
shifting car to be loaded with interstate shipment—safety
appliances— uncoupling for flying switch (Christy v .Wabash
R. Co.)............................................................................................ 94,95
shifting cars with coal for engines (Lehigh Valley R. Co. v.
Barlow)............................................................................................ 95, 96
station agent securing mail bags from interstate train (Lynch
v. Boston & Maine R .)................................................................. 96, 97
Limitation—amendment of action begun at common law (Hogarty
v. Philadelphia & Reading R. C o.)...................................................97, 98
Rights of parent of minor (New York Central & Hudson River R.
Co. v. Tonsellito)..................................................................................
98
Hours of Service Act—violation—defenses (Baltimore & Ohio R. Co. v.
W ilson)............................................................................................................
99
Safety appliances—
couplers—protection of employees not coupling and uncoupling
(Louisville & Nashville R. Co. v Layton)...................................... 99,100
presumption of negligence—father’s right to damages for death of
minor son (Minneapolis & St. Louis R. Co. v. Go-tschall)............100,101
State and Federal statutes—jurisdiction of Federal Supreme Court
(Missouri Pacific Ry. Co. v. Taber)...........................................................
101
6
CONTENTS.
Employers' liability— Concluded.
Page.
Safe place to work—inspection of piling (South v. Seattle, Port Angeles &
Western Ry. C o .).................................................................................................
102
Safety provisions—liability of electric company to employee of patron
(Clayton v. Enterprise Electric Co.)...................... . ............... .....................102,103
Workmen’s compensation act—
effect—application to workman on ship on navigable waters (Shaughnessy v. Northland Steamship Co.)................................................... , . 103,104
effect of rejection—presumption of negligence (Mitchell v. Phillips
Alining Co.)..................... . ......................................................................... 104,105
interstate commerce—seaman on towboat handling interstate barge
(Morrison v. Commercial Towboat Co.)................................................ 105,106
minors legally permitted to work— dangerous employment (Westerlund
v. Kettle River Co.)................................... ............... .............................. 106,107
Employers’ liability insurance:
Liability, regardless of satisfaction of judgment— direct recovery— constitu
tionality of statute (Lorando v. Gethro)....................................................... 107,108
Provisions of policies—subrogation of injured employee to employer’s
rights (Verducci v. Casualty Co. of America).................................................
108
Employment offices—prohibition of receipt of fees from workmen— constitu
tionality of statute (Adams v. Tanner)................................................................ 108-112
Factory regulations—fire escapes—criminal responsibility of tenant (People v.
Shevite)...................................................................................................................... 112,113
Hours of labor of women— constitutionality of statute— exemption of railroad
restaurants (State v. Le Barron)............................................................................ 113,114
Hours of service—railroads:
Computation of twenty-four hour period (United States v. Missouri Pacific
Ry. Co.)..............................................................................................................114,115
Night and day offices (Illinois Central R. Co. v . United States)...................
115
Release between runs of round trip (Minneapolis & St. Louis R. Co. v.
United States)................................................................................................... 115,116
Reports of overtime—honest mistake (United States v. Northern Pacific
R. Co.)................................................. .............................................................. 116,117
Rest periods (Pennsylvania R. Co. v. United States)......................................
117
Switch tenders (Chicago & Alton R. Co. v. United States)............................
118
Telegraph operator occasionally transmitting orders for interstate trains
(Denver & Interurban Ry. Co. v. United States)..................................... 118,119
Unavoidable delay (Atchison, Topeka & SantaFeRy. Co. v. United States). 119,120
Insurance—sunstroke as accident (Higgins v. Midland Casualty Co.).............. 120,121
Interference with occupation—public interest—municipal fuel yards (Jones
v. City of Portland)......................................................... . .......................................121-123
Labor organizations:
Boycott—
advertising theater as unfair—conspiracy—injunction (Empire Thea
ter Co. v. Cloke)........................................................................................ 123-125
advertising theater as unfair—injunction (Steffes v. Motion Picture
Machine Operators’ Union)..................................................................... 125,126
advertising theater as unfair—injunction—evidence (Martin v.
Francke).........................................................................................................
127
conspiracy—interference with business—injunction (Harvey v. Chap
man)................................................................................................................
128
interference with business (Bossert v. Dhuy)......................................... 129-131
Conspiracy—
injunction—restraint of trade (George J. Grant Construction Co. v. St.
Paul Building Trades Council)............................................................... 131-133
CONTENTS.
7
Labor organizations— Concluded.
Page.
Conspiracy—Concluded.
murder— evidence (People v. S ch m idt)....................... ...........................133-136
secondary boycott— compelling use of union label (Justin Seubert
(Inc.) v. R e iff)...........................................................................................136-138
Contract to employ only members of a certain union—inducing breach
(Tracey v. Osborne)..........................................................................................138,139
Expulsion of member—
appeal to court (Fales v. Musicians’ Protective Union)....................... 139-141
conspiracy—liability of company procuring expulsion (St. Louis
Southwestern R y . Co. of Texas v. Thompson)....................................141,142
interference with employment— boycott— damages (Shinsky v.
. Tracey)....................................................................................................... 142-144
powers of officers (Pratt v. Amalgamated Association of Street and
Electric Railway Employees of America)......................................1 .. 144,145
Interference with contract of employment—
unionizing employees who have agreed not to join union—injunction
(Hitchman Coal & Coke Co. v. M itchell)............................................. 145-152
unionizing employees who have agreed not to join union—injunction—
jurisdiction (Eagle Glass & Mfg. Co. v. R ow e)................................... 152,153
Picketing—
injunction (St. Germain v. Bakery & Confectionery Workers’ U nion). 153,154
injunction—interference with nonunion shop (Heitkamper v. Hoff
man) ............................................................................................................ 154,155
municipal ordinance—
E x parte S tout.............. ...................................................................... 155,156
In re Sweitzer........................................................................................156,157
Strikes—
157
assault—evidence (Cranford v. State)..........................................................
conspiracy—injunction—picketing (Tri-City Central Trades Council
v. American Steel Foundries)................................................................158-160
conspiracy—picketing—injunction (Alaska Steamship Co. v. Interna
tional Longshoremen’s Association)..................................................... 160-162
injunction (Cohn & Roth Electric Co. v. Bricklayers, Masons, and
Plasterers’ Local Union)......................................................................... 162,163
injunction—contempt—punishment (Flockhart v. Local No. 40, Inter
national Molders’ Union)........................................................................ 163,164
injunction—damages (Max Ams Machine Co. v. International Associa
tion of Machinists).................................................................................... 164,165
injunction—picketing— Clayton Act (Stephens v. Ohio Telephone
Co.).............................................................................................................. 165-169
injunction—picketing—labor commissioner as witness (White Mt.
Freezer Co. v. Murphy)........................................................................... 169,170
injunction—power of officers of union to contract—damages (W. A.
Snow Iron Works (Inc.) v. Chadwick)................................................ 171,172
picketing—violence—injunction (Niles-Bement-Pond Co. v. Iron
Molders’ Union)..............1....................................................................... 172,173
prosecution for murder—selection of jurors (Zancannelli v. People). 173-175
Suspension of member—injunction (Holmes v. Brown).............................. 175,176
Unlawful combinations—restraint of trade—injunction—prevention of
competition (Paine Lumber Co. (Ltd.) v. Neal)........................................ 176-179
Mechanics’ liens—assignment by contractor of amount due him (London Bros.
v. National Exchange Bank of Roanoke)...................................... .................... 179,180
8
CONTENTS.
Mothers’ pensions:
Page.
Constitutionality of statute— taxation (Denver & Rio Grande R . Co. v.
Grand County).................................................................................................. 180,181
Death of husband—presumption from absence (Commonwealth v. Powell).
181
Old-age pensions—constitutionality of proposed legislation (In re Opinion of
the Justices).......................................................................................................... 182,183
Pensions for employees:
Deductions from salaries of county employees (Helliwell v. Sw eitzer)... 183,184
Removal from pension list because of allowance of compensation (Dickey
v. Jackson).........................................................................................................184,185
Peonage—holding to work by threats and putting in fear (Bernal v. United
States............................................................................................. *............................ 185,186
Railroads:
Headlights— Federal and State laws (Louisville & Nashville R. Co. v.
State)......................................................................................................................
186
Safety appliances—handholds—suspension of operation of statute (Illinois
Central R. Co. v. Williams)...............................................................................
187
Seamen:
Contracts—release ( The Moana)........................................................................ 187,188
Wrongful discharge—overtime—wages (Alaska Steamship Co. v. Gilbert). 188,189
Sunday labor:
“ Factory” —pasteurizing and bottling milk (People v. R. F. Stevens Co.
(In c.).................................................................................................................. 189,190
Necessity—moving-picture theater in city near training camp (Rosen
baum v. State).................................................................................................. 190,191
Observance of Jewish Sabbath—suit to restrain prosecution (Cohen v.
W e b b ) .....- .......................................................................................................
191
Wages:
Minimum-wage law—constitutionality—
Arkansas statute (State v. Crowe)............................................................. 191-193
Minnesota statute (Williams v. Evans).................................................... 193-195
Payment in scrip—constitutionality of statute— freedom of contract—note
given for accrued wages (Ex parte Ballestra)......................................... 195,196
Security for payment—contractors’ bonds (Northwestern National Bank of
Bellingham v. Guardian Casualty & Guaranty C o.)............................. 196,197
Semimonthly pay day— constitutionality of statute (Arizona Power Co. v.
State).................................................................................................................. 197-199
Ten-hour law—overtime—effect of settlement and release (Sumpter v.
St. Helens Creosoting C o.)............................................................................ 199,200
Weekly day of rest— “ factory” — machine shop of transit company (People v.
200
Transit Development Co.) ..... ...................................................................................
Workmen’s compensation:
Accident—
fireman contracting pneumonia from wetting (Landers v. City of
Muskegon)..............w.................................................................................. 200, 201
typhoid fever from drinking infected water (State ex rel. Faribault
Woolen Mills Co. v. District Court)..................................................... 201, 202
Accident arising out of employment—
freezing (State ex rel. Nelson v. District Court)........................................
202
sunstroke (State ex rel. Rau v. District Court)...................................... 202, 203
Admiralty—Federal and State jurisdiction—
203
Clyde Steamship Co. v. Walker.....................................................................
Southern Pacific Co. v. Jensen................................................................... 203, 207
CONTENTS.
9
Workmen’ s compensation— Continued.
Page.
Beneficiaries—wife living apart from husband—legal obligation to sup^port—lump sum (H. G. Goelitz Co. v. Industrial B o a rd )..* ................ 207,208
Benefits—
loss of eye already defective (Purchase v. Grand Rapids Refrigerator
C o.)..................................................................................................................
208
partial disability—employee earning more than before injury (Dennis
v. Cafferty)................................................................................................. 209,210
permanent impairment of use of foot (Underhill v. Central Hospital
for the Insane).............................................................................................
210
Casual employment—
plastering single room, during three or four days (Aurora Brewing Co.
v. Industrial Board).................................................................................210, 211
usual course of business—farm labor—carpenter building house on
ranch (Miller & Lux (Inc.) v. Industrial Accident Commission). . .
211
Constitutionality of statute—
due process of law—trial by jury—police power (Anderson v. Hawaiian
211,212
DredgingC o.)...................................................................................... .
election of employee to sue or recover compensation from employer
not complying with law—arising out of and in course of employment
(Fassig v. State)....................................................................................... 212-214
injury arising out of and in course of employment—agreement to assume
risks (Chicago Rys. Co. v. Industrial Board)..................................... 215,216
judicial powers (Solvuca v. Ryan & Reilly C o.)................................. 216,217
willful injury—disfigurement in addition to disability (Adamg v.
Iten Biscuit C o.)..................................................................................... 217-219
Dependence—
father and mother having other means (Fennimore v. PittsburgScammon Coal Co.) .......................................................................................
219
father partially, dependent, receiving all of son’s earnings (In re
Peters)............................................................................. .-.........................219, 220
marriage after injury which results in death (Kuetbach v. Industrial
Commission).............................................................................................. ■220, 221
marriage after injury which results in death—surviving wife (Crockett
v. International Ry. Co.)............................................................................
221
regularity of contributions for support (Commonwealth Edison Co. v.
Industrial Board)...................................................................................... 221, 222
sister as member of family (In re Murphy)............................................ 222, 223
Dependence—
wife in foreign country—notice and claim (In re Gorski)........................
223
wife in foreign country but supported by husband (Kalcic v. Newport
Mining Co.)................................................................................................ 223, 224
Duration of payments—subsequent insanity (In re Walsh)............................
224
Election—
injury occurring within 30 days from beginning of employment (Wood
ruff v. Producers’ -Oil Co.)...................................................................... 224, 225
minors—constitutionality of provision (Young v. Sterling Leather
Works).............................................................. ; ............................................
226
notice to father of minor b y pay envelope (Brost v.Whitall Tatum Co.). 226, 227
townships—hazardous employments—casual employment (McLaugh
lin v. Industrial Board)........................................................................... 227, 228
Employee—
president of company performing manual labor (Bowne v. S. W.
Bowne Co.)....................................................................................................
228
10
CONTENTS.
Workmen's compensation— Continued.
Employee— Concluded.
Page,
teamster assisting in extricating mired team—casual employment
(State ex'rel. Nienaber v. District Court)...............................................
229
wife of employer (In re Humphrey).............................................................
229
Employer and employee— “ engaged in business” —remodeling house
(Marsh v. Groner).............................................................................................
230
Employment in connection with, or in proximity, to machinery— “ mill,
shop, or factory” (King v. Berlin Mills Co.).............. ........................... 230, 231
Extraterritorial effect of statute—
nature of act (North Alaska Salmon Co. v. Pillsbury).......................... 231, 232
vessel in port of another State (Kruse v. Pillsbury).............................. 232, 233
Farm labor—laborer on thrashing machine (In re B oyer)...............................
233
Hazardous employment—
bricklayer pointing wall of lithographic establishment (Dose v. Moehle
Lithographic C o.)..................................................................................... 233,234
driver for florist, injured in arranging window box (Glatzl v. Stumpp).
235
operating ensilage cutter on farm (Raney v. State Industrial Commis
sion) ............................................................................................................. 235, 236
salesman for nonhazardous business, riding motorcycle (Mulford v.
A. S. Pettit Sons (In c.).......................................................................... 236,237
storage—retail <?oal dealer (In re Roberto).............................. ..................
237
storage—retail store (Walsh v. F. W. Woolworth C o.)........... .............. 237, 238
weighing hides unloaded from vessels—injury— anthrax contracted
through abrasion of skin (Hiers v. John A. Hall & C o.)................... 238, 239
Horticultural labor—janitor pruning tree (Kramer v. Industrial Accident
Commission)......................................................................................................
239
Injury—actinomycosis from pulverized grain (Hartford Accident & In
demnity Co. v . Industrial Commission)................................................... 239,240
Injury arising out of and in course of employment—
answering telephone call (Holland-St. Louis Sugar Co. v. Shraluka)__
240
241
attempt to raise window intentionally nailed down (In re Borin)_____
domestic servant lighting fire with alcohol (Kolasynski v. K lie)...........
241
eating lunch (Manor v. Pennington)............................................................
242
employee in factory on both sides of street, slipping on ice (Redner v.
II. C. Faber & Son).................................................................................. 242, 243
evidence—burden of proof (Bloomington, D. & C. R. Co. v. Industrial
Board)......................................................................................................... 243,244
fall from scaffold due to epilepsy (Van Gorder v. Packard Motor Car
C o.)..................................................................................................................
244
fall from stairs while leaving premises (In re O’Brien)........................ 244,245
horseplay acquiesced in by employer (In re Loper)............................. 245, 246
miner shot after going back to attend to unexploded charges (Atolia
Mining Co. v. Industrial Accident Commission)................................ 246, 247
moving beams to reach steam gauges—accident—objective symptoms
of injury (Manning v. Pomerene).......................................................... 247, 248
presumption— evidence (Chludzinski v. Standard Oil Co.).....................
248
presumption— evidence-(Ohio Building Safety Vault Co. v. Industrial
Board)............................................................................................................
249
returning from work (Swanson v. Latham & Crane).............................. 249, 250
traveling agent slipping on ice (In re Harraden).................................... 250, 251
traveling salesman slipping on ice (Donahue v. Maryland Casualty Co.).
251
volunteer (Eugene Dietzen Co. v. Industrial Board)............................ 251, 252
willful misconduct (Inland Steel Co. v. Lam bert)................................ 252, 253
CONTENTS.
11
Workmen’s compensation— Continued.
Page.
Injury b y negligence of third party—
deduction of amounts paid b y assailants under order in criminal pro
ceeding (Dietz v. Solom onw itz)............................................................253, 254
election of remedy—agreement between widow, employer, and insurer
as to suit (Detloff
Hammond, Standish & C o.)..................................
254
limitation of recovery—constitutionality of statute—hazardous em
ployment (Friebel v. Chicago City Ry. C o.)....................................... 255, 256
subrogation of employer to rights—amount of recovery (Otis Elevator
Co. v. Miller & Paine)............................................................................. 256-258
suits—parties (Book v. City of Henderson).................................................
258
Injury “ on, in, or about” a factory—truck used for delivery (Hicks v.
Swift & C o.)....................................................................................................... 258, 259
Interstate commerce—
election of remedies (Jackson v. Industrial Board)............................... 259, 260
injury without negligence of employer—Federal and State statutes:
New York Central R. Co. v. W infield.............................................. 260-265
Erie R. Co. v. W infield........................................................................ 265-267
Rounsaville v. Central R. R. of New Jersey.......................................
267
mowing weeds on railroad right of way (Plass v. Central New England
R. C o.)........................................................................................................ 267,268
plumber in maintenance of way department (Vollmers v. New York
Central R. C o.).......................................................................................... 268,269
Intoxication as cause of injury (Collins v. Cole)................................................
269
Intrastate or interstate commerce—
moving cars to storage tracks to be iced (Chicago Junction R. Co. v.
Industrial Board)..........................................................................................
270
repairing private spur track (In re Liberti)............................................ 270, 271
Medical services—
computation of “ thirty days after in ju ry” (In re McCaskey).................
271
employer’s liability for operation becoming necessary before expira
tion of thirty days, but postponed (In re Henderson)...................... 271, 272
liability of insurer for services furnished by employer after thirty days
(In re K elley)................................................................................................
272
Modification of awards—incapacity (Safety Insulated Wire & Cable Co. v.
Court of Common Pleas)................................................................................. 272, 273
Notice (In re Dorb)............................................................................................! 273, 274
274
Notice and claim— “ reasonable cause” —ignorance (In re Fells)..................
Occupational disease as “ personal injury” —rneurosis from stooping position
(In re Maggelet)................................................................................................ 274, 275
Permanent total disability—paralysis of legs—conducting business (Mc
Donald v. Industrial Commission)................................................................ 275, 276
Personal injury b y accident—
nephritis following exposure (United Paper Board Co. v. Lew is).........
277
pneumonia resulting from exhaustion and exposure (Linnane v..
Aetna Brewing C o.).................................................................................. 277,278
278
Procedure—appeal (Union Sanitary Mfg. Co. v. Davis)...................................
Public employment—
constitutionality of provision (State ex rel. Fletcher v. Carroll)........ 278-280
county building road (Gray v. Board of Commissioners).........................
280
laborers, workmen, and mechanics—janitor under civil service (White
v. City of Boston)...................................................................... .............. 280, 281
laborers, workmen, and mechanics—-teacher of automobile repairing
in vocational school (Lesuer v. City of Low ell)......................................
281
police officers (Griswold v. City of W ichita). . . . .. . .. . .. . .. . .. . .. . . .. .
M
281
12
CONTENTS.
Workmen’s compensation — Concluded.
Page.
Release—mistake as to extent of injury (Weathers v. Kansas City Bridge
C o.)..........................................................................................................................
282
Review after lump-sum settlement (In re McCarthy).................................. 282, 283
Review by court— effect of release (Odrowski v. Swift & C o.).......................
283
Revision of awards—marriage of dependent sister (Adleman v. Ocean A cci
dent & Guarantee Corp. (L td .)) ......................................................................
284
Self-insurance— constitutionality of statute (State ex rel. Turner v. United
States Fidelity & Guaranty C o.)........................ ......................................... 284, 285
Serious and willful misconduct of employer—maintaining elevator in un
safe condition— double compensation (R iley v. Standard Accident Ins.
C o.)..........................................................................................................................
286
Suits—failure of employers to observe lawful requirements (American
' Woodenware Co. v. Schorling)...................................................................... 286-289
Temporary total and permanent partial disability—
award for consecutive periods (Marhoffer v. Marhoffer)............................
289
“ in lieu of all other compensation’ * (In re Denton)............. .............. 289, 290
Total disability—
inability to get work (In re Lacione)...........................................................
290
income from conduct of business (Moore v. Peet Bros. Mfg. C o.)...........
291
Wage loss— earning power—wage advance due to educational training
(Epsten v. Hancock-Epsten Co.)................................................................... 291, 292
Willful misconduct—operation of elevator in violation of rules (Pacific
Coast Casualty Co. v. Pillsbury).................................................................... 292, 293
Workmen’s compensation insurance—medical, etc., expenses—indemnity
(State ex rel. Turner v. Employers’ Liability Assurance Corporation, L td .)..
293
B U L L E T IN
U .
S .
B U R E A U
NO. 246.
O F
O F
T H E
L A B O R
WASHINGTON.
S T A T I S T I C S .
Septem ber,
1918.
REVIEW OF DECISIONS OF COURTS AFFECTING
LABOR, 19 1 7 .
INTRODUCTION.
T h is b u lle t in is th e s ix t h in th e series d e v o te d e x c lu s iv e ly t o th e
p r e s e n ta tio n o f c o u r t d e cis io n s , th e p r e c e d in g n u m b e r s b e in g 112, 152,
169, 189, a n d 224. T h e first b u lle tin n o te d b e a r s d a te o f 1912, p r i o r
t o w h ic h tim e d e c is io n s o f th is n a tu r e a p p e a r e d in p r a c t ic a lly e v e r y
issu e o f th e b im o n t h ly b u lle tin s , e n d in g w it h N o . 100. B r ie f sta te
m e n ts a re g iv e n in th e M o n t h l y L abor R eview " o f th e b u re a u o f th e
m o r e im p o r t a n t ca ses as s o o n as th e y c o m e t o th e k n o w le d g e o f th e
office, b u t th ese a re in c lu d e d in th e a n n u a l su m m a r y . N o a tte m p t is
m a d e t o c o v e r th e e n tire lis t o f d e c is io n s h a n d e d d o w n b y th e S ta te
a n d F e d e r a l c o u r ts , r e p r e s e n ta tiv e ty p es, b e in g u s u a lly s o u g h t fo r . I n
a fe w cla sses o f ca ses, h o w e v e r , as th o se c o n s t r u in g w o r k m e n ’s c o m
p e n s a tio n la w s , th o s e r e la t in g t o la b o r o r g a n iz a t io n s , a n d th o s e in
v o lv in g im p o r t a n t q u e stio n s in in te rs ta te c o m m e r c e , a m o r e g e n e r a l
in c lu s iv e n e s s is p r a c t ic e d . T h e d e cis io n s u se d a re m a in ly th o s e h a n d e d
d o w n b y F e d e r a l c o u r ts a n d th e S ta te c o u r ts o f la st r e s o r t, t h o u g h in
som e cases o p in io n s o f s u b o r d in a te c o u r ts o f a p p e lla te ju r is d ic t io n are
u sed , n o t a b ly o f th e S u p r e m e C o u r t o f N e w Y o r k . A s h a s b e e n th e
ca se f o r th e p a s t fe w y e a rs , n o o p in io n o f th e A t t o r n e y G e n e r a l o f
th e U n it e d S ta te s c o n s t r u in g F e d e r a l la b o r le g is la t io n h a s a p p e a r e d .
T h e o p in io n s a re p r e s e n te d in a b r id g e d fo r m , th e fa c t s b e in g
u s u a lly sta te d in th e la n g u a g e o f th e e d ito r s , w it h q u o ta tio n s fr o m th e
la n g u a g e o f th e c o u r t in m o s t cases, t h o u g h o c c a s io n a lly th e c o n c lu s io n
r e a ch e d is in d ic a t e d w it h o u t su ch q u o ta tio n . T h e so u r ce s u se d a re th e
sa m e as in th e p a s t, i. e., th e N a t io n a l R e p o r t e r S y s te m , p u b lis h e d b y
th e W e s t P u b lis h in g C o ., a n d th e W a s h in g t o n L a w R e p o r t e r f o r th e
D is t r ic t o f C o lu m b ia . W i t h a fe w e x c e p t io n s th e ca ses u se d a re th o s e
w h ic h w e r e p u b lis h e d d u r in g th e c a le n d a r y e a r 1917, th e v o lu m e s
c o v e r e d b e in g as f o l l o w s :
S u p r e m e C o u r t R e p o r t e r , v o lu m e 37, p a g e 2 2, t o v o lu m e 38, p a g e 64.
13
14
REVIEW OF DECISIONS OF COURTS AFFECTING LABOR.
F e d e r a l R e p o r t e r , v o lu m e 2 3 6 , p a g e 6 09 , t o v o lu m e 2 4 5 , p a g e 816.
N o r th e a s te r n R e p o r t e r , v o lu m e 114, p a g e 3 2 1 , t o v o lu m e 117,
p a g e 848.
N o r th w e s te r n R e p o r t e r , v o lu m e 160, p a g e 2 09, t o v o lu m e 1 65,
p a g e 304.
P a c ific R e p o r t e r , v o lu m e 161, p a g e 113, t o v o lu m e 16 8 , p a g e 1120.
A t la n t ic R e p o r t e r v o lu m e 99, p a g e 2 5 7 , t o v o lu m e 102, p a g e 336.
S o u th w e s te r n R e p o r t e r , v o lu m e 189, p a g e 801, t o v o lu m e 1 9 8 ,.
p a g e 816.
S o u th e a s te r n R e p o r t e r , v o lu m e 90, p a g e 8 01, t o v o lu m e 94 , p a g e 480.
S o u th e r n R e p o r t e r , v o lu m e 73 , p a g e 1, t o v o lu m e 7 6 , p a g e 824.
N e w Y o r k S u p p le m e n t , v o lu m e 161, p a g e 9 61, t o v o lu m e 1 6 7 ,
p a g e 704.
W a s h in g t o n L a w R e p o r t e r , v o lu m e 45.
A n u n u s u a lly la r g e g r o u p o f im p o r t a n t d e c is io n s r e la te t o th e
s u b je c t o f la b o r o r g a n iz a t io n s , a n o t a b le ca se b e in g t h a t o f H it c h m a n
C o a l C o . v . M it c h e ll, p a sse d u p o n b y th e S u p r e m e C o u r t o f th e
U n it e d S ta te s. T h e w o r k m e n ’s c o m p e n s a t io n la w s o f th e v a r io u s
S ta te s a ffo r d th e la r g e s t s in g le g r o u p o f ca ses, a n d h e r e a g a in th e
S u p r e m e C o u r t o f th e U n it e d S ta te s h a s r e n d e r e d im p o r t a n t d e c i
s io n s o n th e s u b je c t o f th e a p p lic a t io n o f th e S ta te la w s o n th is s u b
je c t t o ca ses o f a d m ir a lit y a n d in te rs ta te c o m m e r c e . O t h e r im p o r
ta n t d e c is io n s u p h o ld th e c o n s t it u t io n a lit y o f th e m in im u m -w a g e
la w s o f A r k a n s a s a n d M in n e s o ta a n d d e c la r e u n c o n s t itu t io n a l th e
in it ia t e d a c t o f W a s h in g t o n f o r b i d d i n g e m p lo y m e n t a g e n c ie s t o c o l
le c t fe e s fr o m p e r s o n s s e e k in g e m p lo y m e n t b y t h e ir a id .
T h is r e v ie w is a n a t t e m p t t o p re s e n t in b r ie f th e s a lie n t p o in t s
p a s s e d u p o n b y th e c o u r t s in ca ses u n d e r c o n s id e r a t io n . T e c h n ic a li
tie s a re o m it t e d as f a r as p r a c t ic a b le in th e m o r e e x te n d e d r e p o r t s
a n d a re a lm o s t e n t ir e ly e lim in a te d in t h is b r ie fe r r e v ie w . I n s o m e
in s ta n c e s th e ca se m u s t b e r e fe r r e d t o u n d e r m o r e t h a n o n e h e a d b y
r e a s o n o f th e fa c t th a t m o r e th a n o n e p o in t is in v o lv e d in th e d is c u s
sio n . A s la s t y e a r , th e s u b je c t m a tte r o f th e ca se, a n d n o t th e n a tu r e
o f th e la w o n w h ic h it is b a se d , L e., c o m m o n o r s t a t u t o r y , d e te r m in e s
th e g r o u p in g .
EMPLOYER AND EMPLOYEE.
ENFORCEMENT OF CONTRACT.
W h il e it is c o m m o n ly s a id t h a t a c o n t r a c t f o r p e r s o n a l s e r v ic e s is
n o t s u b je c t t o th e r u le o f s p e c ific p e r fo r m a n c e , a fe w S ta te s h a v e
e n a c te d la w s p r a c t ic a lly s e e k in g th e e n fo r c e m e n t o f c o n t r a c ts w h e r e
a d v a n c e s h a v e b e e n m a d e b y th e e m p lo y e r o n th e s t r e n g t h o f a n ^
a g r e e m e n t f o r se r v ic e s. T h e F l o r i d a la w o n th is s u b je c t w a s u n d e r
c o n s id e r a t io n in a ca se ( G o o d e v. N e ls o n , p . 6 9 ) in w h ic h c o n v ic t io n
EMPLOYEE AND EMPLOYEE,
15
b y th e lo w e r c o u r t w a s r e v e r s e d b y th e s u p r e m e c o u r t o f th e S ta te
o n a c c o u n t o f th e d e c la r e d u n c o n s t itu t io n a lit y o f th e la w as t e n d in g
t o c r e a te a sta tu s o f in v o lu n t a r y s e r v itu d e . T h e F e d e r a l s ta tu te f o r
b id d in g p e o n a g e w a s h e ld a p p lic a b le in a ca se ( B e r n a l v. U n it e d
S ta te s, p . 1 8 5 ) in w h ic h a M e x ic a n w o m a n w a s b e in g h e ld t o c o m p u l
s o r y s e r v ic e b y th e p r o p r ie t o r o f a n a lle g e d h o t e l in T e x a s o n a c la im
th a t t h e la tte r h a d p a id th e w o m a n ’s fa r e , a n d r e fu s e d t o a llo w
w a g e s f o r th e w o r k d o n e .
A d iffe r e n t a s p e c t o f th e s u b je c t o f e n fo r c e d c o n t r a c ts is p r e s e n te d
in th e ca se o f e m p lo y e e s le a v in g s e r v ic e a ft e r h a v in g o b t a in e d k n o w l
e d g e o f se cre ts o f m a n u fa c t u r e o r o t h e r im p o r t a n t d a ta o f v a lu e t o
t h e ir e m p lo y e r , w h o s e e x c lu s iv e r ig h t th e r e to is g u a r a n te e d b y p r i n
c ip le s o f c o m m o n la w . A n o b v io u s d iffic u lty in p a s s in g u p o n q u e s
t io n s i n v o lv in g s e c re t p ro c e s s e s o f m a n u fa c t u r e is t h e ir n e c e s s a r y
d is c lo s u r e t o e x p e r t s in ca ses in w h ic h th e n o v e lt y o f th e p r o c e s s is
in d is p u te . S u c h a q u e s tio n w a s in v o lv e d in th e ca se E . I . D u P o n t
d e N e m o u r s P o w d e r C o . v. M a s la n d , p . 7 8 )', in w h ic h th e S u p r e m e
C o u r t s u s ta in e d a n in ju n c t io n a g a in s t a g e n e r a l d is c lo s u r e t o e x p e r ts ,
le a v in g th e c o u r t o p p o r t u n it y t o c o n t r o l in q u ir ie s a n d lim it th e m t o
th o s e n e ce s s a r y f o r a d e te r m in a tio n o f th e r ig h t s o f th e e m p lo y e r
a n d th e e m p lo y e e . I n A r o n s o n v. O r lo v (p . 8 0 ) a s im p le r q u e s tio n
w a s in v o lv e d , s in c e th e c o n te s t h in g e d o n th e r ig h t o f a n e m p lo y e r
t o m a k e u se o f a d e v ic e f o r w h ic h a p p lic a t io n s f o r p a te n ts w e r e
u n d e r d is c u s s io n . I n t h is ca se th e S u p r e m e C o u r t o f M a s s a c h u s e tts
a ffirm ed a n in ju n c t io n a g a in s t th e e m p lo y e e m a k in g u se o f h is e m
p lo y e r ’s d e v ic e in th e c o n d u c t o f a r iv a l b u sin e ss in th e sa m e fie ld .
* A lis t o f c u s to m e r s o f a la u n d r y w a s h e ld (N e w M e t h o d L a u n d r y
C o . v. M c C a n n , p . 7 9 ) t o b e a tr a d e se cre t, th e u se o f w h ic h f o r
s o lic it in g tr a d e f o r a r iv a l c o m p a n y c o u ld b e e n jo in e d . T h e c o m j p a n y ’s c o n t e n t io n t h a t th e in ju n c t io n s h o u ld c o v e r th e r e c e ip t o f
j w o r k "by its fo r m e r e m p lo y e e f r o m its o ld c u s to m e r s w a s n o t
! su sta in e d .
BREACH o r CONTRACT.
; D a m a g e s f o r th e u n la w fu l d is c h a r g e o f a n e m p lo y e e w e r e a p p r o v e d
j in a ca se ( B a r r y v. N e w Y o r k H o ld i n g & C o n s t r u c t io n C o ., p . 6 8 )
I w h e r e a n e s tim a te d v a lu e o f c o m m is s io n s o n b u sin e ss t h a t m ig h t
I h a v e b e e n o b t a in e d b u t f o r th e u n la w fu l d is c h a r g e w a s in c lu d e d in
tlie a w a r d . A m a n a g e r o f a d e p a r tm e n t s to r e w a s h e ld e n t itle d t o
, d a m a g e s f o r d is c h a r g e m a d e d u r in g th e c o u r s e o f th e fo u r t h y e a r
o f s e r v ic e , u n d e r a c o n t r a c t f o r th e te r m o f o n e y e a r , w it h p r e s u m e d
r e n e w a ls , th e c o u r t h o ld in g s u ch a p r e s u m p t io n c o n t r o llin g (S t e w a r t
D r y G o o d s C o . v . H u t c h is o n , p . 7 2 ). E m p lo y m e n t d u r in g a p a r t o f
th e tim e w a s h e ld n o t t o r e d u c e d a m a g e s , s in c e i t w a s u n r e m u n e r a tiv e .
T h e e ffe c t o f a c u s to m o f tr a d e w a s u n d e r c o n s id e r a t io n in C o r m ie r
I v. L u m b e r C o . (p . 7 0 ) , in w h ic h it w a s h e ld th a t “ s t r a ig h t t i m e ’*
16
REVIEW OF DECISIONS OF COURTS AFFECTING LABOR.
c o v e r e d th e p e r io d o f a p r o t r a c t e d s h u td o w n , sin ce th e e m p lo y e e h a d
n o t b ee n d e fin ite ly d is c h a r g e d at its c o m m e n c e m e n t.
T h e in a t t e n t io n o f th e s u p e r in te n d e n t o f a n e s ta b lis h m e n t t o its
o p e r a t io n w a s h e ld t o w a r r a n t h is d is c h a r g e in F a r m e r v. F ir s t T r u s t
C o . (p . 7 1 ) , w h e r e it w a s in e v id e n c e th a t th e e s ta b lis h m e n t w a s n o t
b e in g s a t is fa c t o r ily m a n a g e d a n d r e q u ir e d c lo s e p e r s o n a l s u p e r v i
s io n — th is in fa c e o f th e c o n t e n t io n th a t an e m p lo y e e o f h is r a n k
c o u ld n o t b e h e ld t o c o n s ta n t p e r s o n a l a tte n d a n c e u p o n h is d u tie s.
CLEARANCE CARDS.
T h e v e x e d q u e s tio n o f th e c o n s t it u t io n a lit y o f la w s c o m p e llin g th e
e m p lo y e r t o fu r n is h o n d e m a n d a c le a r a n c e c a r d o r s e r v ic e le tte r
w a s b e f o r e tl*e S u p r e m e C o u r t o f M is s o u r i (C h e e k v. P r u d e n t ia l
In s u r a n c e C o ., p . 7 5 ). T h a t la w s o f th is cla ss o r e w it h in th e p o lic e
p o w e r o f th e S ta te a n d t h a t th e y a re o f b e n e fic ia l in te n t as p r o t e c t
i n g w o r k m e n fr o m t h e . o p p r e s s iv e p r a c t ic e s s o m e tim e s in d u lg e d in
b y e m p lo y e r s o r g r o u p s o f e m p lo y e r s w a s m a in t a in e d b y th e c o u r t
in th e fa c e o f a d v e r s e c ita tio n s .
INTERFERENCE WITH EMPLOYMENT.
T h e S u p r e m e C o u r t o f M a ssa ch u se tts h a d b e fo r e it a ca se ( D o u
c e tte v. S a llin g e r , p . 7 4 ) , in w h ic h th e q u e s tio n o f d a m a g e s f o r d is
c h a r g e ca u se d b y th e a c t iv it y o f a t h ir d p e r s o n w a s in v o lv e d . T h e
o ffe n d e r h a d a c te d u n d e r a m ista k e , b u t it w a s h e ld th a t it w a s h is
d u t y t o a ssu re h im s e lf o f th e id e n t it y o f th e p e r s o n c o m p la in e d o f
f o r n o n p a y m e n t o f a d e b t, f a ilin g w h ic h h e w a s lia b le f o r d a m a g e s
f o r c a u s in g th e d is c h a r g e o f a n in n o c e n t m a n .
T w o cases a re n o t e d w h ic h a ro se u n d e r th e S h e r m a n A n t it r u s t A c t ,
o n e (U n it e d S ta te s v. H o llis , p . 6 5 ) b e in g a p r o s e c u t io n f o r c o n s p ir a c y
a n d c o m b in a tio n t o r e s tr a in tr a d e b y a n a s s o c ia tio n o f r e t a il lu m b e r
d e a le rs . I t s p u r p o s e w a s, a m o n g o th e r th in g s , t o p r e v e n t sa les t o
c o n s u m e r s b y o th e r s th a n r e ta il d e a le rs a n d t o b o y c o t t w h o le s a le
d e a le r s a n d m a n u fa c tu r e r s w h o m a d e su ch sales. A c t iv it ie s o f th is
n a tu r e w e r e h e ld t o b e o ffe n s e s a g a in s t th e la w a n d w e r e e n jo in e d .
T h e s e c o n d ca se (K n a u e r v. U n it e d S ta te s, p . 6 4 ) in v o lv e d q u ite
s im ila r a c tiv itie s o n th e p a r t o f an a s s o c ia tio n o f m a ste r p lu m b e r s ,
a n d in th is ca se a c o n v ic t io n f o r v io la t io n o f th e S h e r m a n A c t w a s
affirm ed b y a c ir c u it c o u r t o f a p p e a ls.
A n o v e l ca se b a se d o n g e n e r a l e c o n o m ic p r in c ip le s w a s p a s s e d
u p o n b y th e S u p r e m e C o u r t o f th e U n it e d S ta te s, w h ic h s u s ta in e d
th e c o n s t it u t io n a lit y o f a sta tu te o f M a in e w h ic h a u t h o r iz e d m u n ic i
p a lit ie s t o m a in ta in c o a l a n d w o o d y a r d s f o r th e p u r p o s e o f s e llin g
fu e l a t c o s t t o th e r e s id e n t p o p u la t io n . In te r e s te d p a r tie s s o u g h t t o
h a v e th is a c t d e c la r e d u n c o n s titu tio n a l o n th e g r o u n d th a t t a x a tio n
EMPLOYER AND EMPLOYEE.
17
f o r su ch p u r p o s e s w a s n o t f o r a p u b lic p u r p o s e a n d w a s n o t w it h in
th e p o w e r o f th e le g is la tu r e t o le v y . T h is th e S u p r e m e C o u r t, h o w
e v e r , d e n ie d a n d s u s ta in e d th e la w , (J o n e s v. C it y o f P o r t la n d ,
p . 1 2 1 .)
SEAMEN.
S in c e th e e n a c tm e n t o f th e se a m e n ’s la w o f 1915 th e sta tu s o f su ch
e m p lo y m e n t is m u c h m o r e c lo s e ly a s s im ila te d t o th a t o f la b o r e r s g e n
e r a lly , t h o u g h n o n e o f th e ca ses h e r e in n o t e d m a k e s r e fe r e n c e t o t h a t
a ct. I n A la s k a S te a m s h ip C o . v. G ilb e r t (p . 1 8 8 ) th e p o in t in v o lv e d
j is s im p ly as to th e te rm s o f th e c o n t r a c t t o b e h e ld as im p lie d a t
th e tim e o f e m p lo y m e n t a n d c h a n g e d w it h o u t n o t ic e 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 a d is c h a r g e f o r r e fu s a l t o a c c e p t th e c h a n g e d
, c o n d it io n s o f e m p lo y m e n t w a s n o t w a r r a n te d a n d a ffirm ed a j u d g
m e n t a w a r d in g w a g e s a n d e x p e n se s. Q u it e s im ila r q u e stio n s w e r e
in v o lv e d in th e s e c o n d ca se (T h e Mo ana, p . 1 8 7 ), in w h ic h s a ilo r s
w e r e h e ld e n title d t o th e b e n e fits o f a n u n d e r s t o o d a g re e m e n t f o r
' a r o u n d -t r ip e m p lo y m e n t, as a g a in s t th e e m p lo y e r ’s c o n t e n t io n th a t
th e y w e r e h ir e d f o r o n e w a y o n ly .
A t h ir d ca se th a t m a y b e m e n tio n e d u n d e r th is h e a d in v o lv e d th e
c o n s t r u c t io n o f th e F e d e r a l a lie n c o n t r a c t la b o r la w a n d its a p p li- c a t io n t o a lie n s b r o u g h t fr o m a fo r e ig n c o u n t r y f o r e m p lo y m e n t o n
a n o u t g o in g v e ssel, s e r v ic e as s a ilo rs a ls o b e in g r e n d e r e d o n th e v o y
a g e t o th e U n it e d S ta te s. T h e c la im th a t th is se r v ic e w a s a s u b te r
fu g e w a s r e je c t e d , as w a s th e ir c la s s ific a tio n as la b o r e r s ; w h ile t h e ir
t r a n s fe r fr o m o n e v e ssel t o a n o th e r in an A m e r ic a n h a r b o r w a s h e ld
n o t t o c o n s titu te a b r in g in g o f th e m in t o th e U n it e d S ta te s u n d e r
th e te rm s o f th e la w . (S c h a r r e n b e r g v. D o lla r S . S . C o ., p . 6 1 .)
RESIDENCE IN COMPANY VILLAGE.
A n in te r e s tin g ca se th a t d o e s n o t f a ll u n d e r a n y o f th e u su a l h e a d
in g s is o n e ( H a r r is v. K e y s t o n e C o a l & C o k e C o ., p . 7 3 ) in w h ic h th e
S u p r e m e C o u r t o f P e n n s y lv a n ia p a sse d u p o n th e v a lid it y o f a c o m
p a n y o r d e r e x c lu d in g a tra d e s m a n fr o m th e streets o f a v illa g e o w n e d
b y it a n d o c c u p ie d b y its e m p lo y e e s . T h e a u t h o r it y t o m a k e su ch
e x c lu s io n s w a s su sta in e d as b e in g w it h in th e te r m s o f a v a lid c o n tr a c t
w ith th e w o r k m e n .
W A G E S.
MINIMUM WAGE LAWS.
T h e q u e s tio n o f th e c o n s t it u t io n a lit y o f la w s a u t h o r iz in g th e
e s ta b lis h m e n t o f a m in im u m w a g e f o r w o m e n a n d m in o r s w a s b e fo r e
th e c o u r ts o f la st r e s o r t o f A r k a n s a s a n d M in n e s o ta . T h e S u p r e m e
C o u r t o f O r e g o n h a d u p h e ld a la w o f th a t n a tu r e in a d e c is io n r e n
d e r e d in 1914 (B u i. 169, p . 1 7 2 ), a n d th is w a s s u s ta in e d o n A p r i l 9,
1917, b y an e v e n ly d iv id e d c o u r t o n a n a p p e a l t o th e S u p r e m e C o u r t
64919°— 18— Bull. 246------ 2
18
REVIEW OE DECISIONS OE COURTS AEEECTING LABOR.
o f th e U n it e d S ta te s, o n e ju s t ic e k n o w n t o b e in f a v o r o f th,e c o n
s t it u t io n a lit y o f th e a c t n o t t a k in g p a r t in th e d e c is io n b y r e a so n o f
h is c o n n e c t io n w it h th e c a se d u r in g its tr ia l. S u b s e q u e n t t o th is
d e c is io n (J u n e 4 , 1 9 1 7 ), th e A r k a n s a s la w e s ta b lis h in g a s t a tu to r y
d a ily w a g e w a s s u sta in e d b y th e s u p r e m e c o u r t o f th e S ta te (S t a t e
v. C r o w e , p . 1 9 1 ), r e fe r e n c e b e in g m a d e t o th e p h y s ic a l n e e d s o f
w o m e n as r e q u ir in g a n a d e q u a te w a g e . T h e M in n e s o ta s ta tu te
re se m b le s t h a t o f O r e g o n in p r o v id i n g f o r a c o m m is s io n t o d e t e r
m in e w a g e s , a n d a s u b o r d in a t e c o u r t h a d ta k e n th e p o s it io n t h a t
th e la w w a s u n c o n s t itu t io n a l a n d e n jo in e d its e n fo r c e m e n t . T h e
s u p r e m e c o u r t, h o w e v e r ( W illia m s v. E v a n s , p . 1 9 3 ), t o o k th e o p p o s it e
v ie w a n d s u s ta in e d th e la w a s a v a lid e x e r c is e o f th e p o lic e p o w e r
n o t fo r b id d e n b y th e fo u r t e e n t h a m e n d m e n t.
MODE AND TIME OF PAYMENT.
I n th e B a lle s t r a ca se ( p . 1 9 5 ), a C a lif o r n ia s ta tu te f o r b i d d i n g th e
p a y m e n t o f w a g e s in s c r ip , e tc., u n le ss im m e d ia t e ly r e d e e m a b le in
f u ll in la w fu l m o n e y w a s h e ld c o n s t it u t io n a l a n d a c o n v ic t io n f o r its
v io la t io n a ffirm ed .
A ca se th a t m a y b e n o t e d h e re as in v o lv in g th e q u e s tio n o f th e
f u l l a n d a d e q u a te p a y m e n t o f w a g e s e a r n e d , t h o u g h n o t c o n c e r n e d
w it h th e q u e s tio n o f s c r ip o r o r d e r s , is o n e d e c id e d b y th e S u p r e m e
C o u r t o f O r e g o n (S u m p t e r v. S t. H e le n s C r e o s o t in g C o ., p . 1 9 9 ), th e
m a tte r o f o v e r tim e p a y b e in g u n d e r c o n s id e r a tio n . A c o n t e n t io n
t h a t th e 1 0 -h o u r la w o f th e S ta te w a s u n c o n s t itu t io n a l w a s first
r e je c t e d , b u t in a s m u c h as th e m o n t h ly p a y c h e c k s w e r e so d r a w n as
t o c o n s titu te , w h e n in d o r s e d , r e c e ip ts in fu ll o f w a g e s e a r n e d t o d a te
i t w a s d e c id e d th a t n o c la im c o u ld b e s u sta in e d f o r la b o r p e r fo r m e d
in e x ce ss o f th e 10 h o u r s d e c la r e d b y la w t o b e a d a y ’s w o r k .
A la w o f A r iz o n a e s t a b lis h in g a s e m im o n th ly p a y d a y w a s c h a l
le n g e d as t o its v a lid it y , p r im a r ily b e ca u se its e n fo r c e m e n t m ig h t
in v o lv e im p r is o n m e n t f o r d e b t w h e re th e e m p lo y e r b e c a m e s u b je c t
t o p u n is h m e n t f o r its v io la t io n (A r iz o n a P o w e r C o . v. S ta te , p . 1 9 7 ).
T h is c o n t e n t io n w a s r e je c t e d in v ie w o f th e fa c t th a t th e e m p lo y e r
in th e p re s e n t in s ta n c e w a s a c o r p o r a t io n , w h ic h c o u ld n o t b e im
p r is o n e d , a n d w a s t h e r e fo r e n o t e n title d t o r a ise th e q u e s tio n . T h e
fa c t th a t th e la w a p p lie d o n ly t o c o r p o r a t io n s w a s lik e w is e h e ld n o t
t o in v a lid a t e i t ; n o r c o u ld i t b e r e g a r d e d as v o id f o r u n c e r t a in t y in
r e q u ir in g p a y m e n t o f w a g e s “ a t o n c e ” t o p e r s o n s le a v in g s e r v ic e ,
th e la n g u a g e b e in g h e ld t o im p ly p a y m e n t w it h in a r e a s o n a b le tim e .
ASSIGNMENTS.
T h e p r a c t ic e o f a s s ig n in g fu t u r e e a r n in g s as s e c u r it y f o r lo a n s is
r e g u la t e d b y la w in a n in c r e a s in g n u m b e r o f S ta te s , a n d th e c o n
HOURS OF LABOR.
19
s t it u t io n a lit y o f s u ch la w s w a s c h a lle n g e d in t w o ca ses c o m in g u n d e r
r e v ie w a t th is tim e . I n P e o p le v. S to k e s ( p . 6 2 ) a c o n v ic t io n w a s
a ffirm e d b y th e S u p r e m e C o u r t o f I l l i n o i s a g a in s t a le n d e r w h o
c h a r g e d a r a te in e x ce ss o f th e s t a iu t o r y a m o u n t, th e la w b e in g h e ld
v a lid a g a in s t c la im s th a t i t w a s cia le g is la t io n a n d t h a t i t a b r id g e d
th e p r iv ile g e s a n d im m u n itie s o f c itiz e n s , d e p r iv in g th e m o f p r o p e r t y
w it h o u t d u e p r o c e s s o f la w . T h e S u p r e m e C o u r t o f O h io (W e s s e ll
'v. T im b e r la k e , p . — -), lik e w is e s u sta in e d th e v a lid it y o f th e la w o f
th is S ta te a g a in s t q u ite s im ila r o b je c t io n s w h e r e m o n e y h a d b e e n
lo a n e d w it h o u t p r o c u r in g th e lic e n s e r e q u ir e d b y th e sta tu te.
A n a s s ig n m e n t o f a d iffe r e n t t y p e w a^ b e f o r e th e S u p r e m e C o u r t
o f V ir g in ia (L o n d o n B r o s . v. N a tio n a l E x c h a n g e B a n k , p . 1 7 9 ), th e
c a s e b e in g o n e in w h ic h a c o n t r a c t o r h a d a s s ig n e d a b a la n c e d u e h im
p r io r t o th e s a t is fa c t io n o f c la im s f o r la b o r a n d s u p p lie s . T h e lo w e r
c o u r t h a d s u s ta in e d th e v a lid it y o f th e a s s ig n m e n t, h o ld in g th a t th e
m e c h a n ic s 5 lie n la w o f th e S ta te w a s n o t a v a ila b le w h e re th e p r o p
e r t y im p r o v e d w a s o w n e d b y a m u n ic ip a l c o r p o r a t io n . T h e s u p io u io
c o u r t r e v e rs e d th is d e c is io n , h o w e v e r , a n d h e ld th e a s s ig n m e n t in v a lid
u n t il th e c la im s h a d b e e n m e t.
W h e r e a c o n t r a c t o r b o r r o w e d m o n e y f r o m a b a n k a n d a s s ig n e d
as s e c u r ity a ll m o n e y t o b e c o m e d u e h im o n a c o n t r a c t w it h a c it y ,
p r i o r to a n y n o t ic e th a t c la im s m ig h t b e m a d e f o r u n p a id w a g e s, th e
fin a l b a la n c e p a id b y th e c it y w a s s u b je c t t o th e a s s ig n m e n t t o th e
b a n k r a th e r th a n t o su ch c la im s , le a v in g th e c o n t r a c t o r ’s b o n d m a n
lia b le t h e r e fo r . - T im e c h e c k s f o r la b o r a s s ig n e d b y th e w o r k m e n
th e m s e lv e s m ig h t a lso b e c a s h e d b y th e b a n k a n d f a l l w it h in th e p r o
te c t io n o f su ch b o n d , t h o u g h th e c la im s o f a s u b c o n t r a c t o r a n d a
b o o k k e e p e r w e r e n o t o f su ch a n a tu r e as t o b e e n title d t o th is p r o t e c
t io n (N o r t h w e s t e r n N a t io n a l B a n k o f B e llin g h a m v. G u a r d ia n C a s
u a lt y & G u a r a n t y C o ., p . 1 9 6 ).
HOURS OF LABOR.
RAILROADS.
T h e m o s t im p o r t a n t d e c is io n o f th e y e a r u n d e r th is h e a d is th a t
c o n s t r u in g a n d s u s ta in in g th e F e d e r a l e ig h t -h o u r la w a p p lic a b le
t o r a ilr o a d e m p lo y e e s , d e c id e d in M a r c h , 1917. A s it w a s p o s s ib le
, t o in s e r t th is d e c is io n in th e b u lle t in c o v e r in g 1916 d e c is io n s , it w a s
r e p r o d u c e d in t h a t n u m b e r (N o . 224, p . 1 4 4 ). T h e d e c is io n s t o b e
n o t e d a t th is t im e r e la te e n t ir e ly t o th e c o n s t r u c t io n o f th e 1 6 -h o u r
la w , s o -c a lle d , t h o u g h s o m e o f th e ca ses r e la te to th e 9 -h o u r e m p lo y
m e n t o f c e r ta in cla sse s o f p e r s o n s u n d e r th e sa m e a ct. T h u s in C h i
c a g o & A . R . C o . v . U n it e d S ta te s (p . 1 1 8 ), a c ir c u it c o u r t o f a p p e a ls
h e ld th a t s w itc h te n d e r s w h o h a b it u a lly r e c e iv e d o r d e r s b y te le
p h o n e w e r e w it h in th e cla s s t o w h o m th e n in e -h o u r p r o v is io n a p
20
REVIEW OF DECISIONS OF COURTS AFFECTING LABOR.
p lie d . A s im ila r c o n c lu s io n w a s r e a c h e d in a ca se (D e>nver & I n t e r u r b a n R y . C o . v. U n it e d S ta te s, p . 1 1 8 ), w h e re a t e le g r a p h o p e r a t o r
w h o o c c a s io n a lly h a n d le d o r d e r s f o r in te rs ta te t r a in s w a s h e ld t o b e
w it h in th e a ct, e v e n t h o u g h o n a p a r t ic u la r d a y n o s u ch o r d e r s m ig h t
b e tra n s m itte d . A t h ir d ca se u n d e r th is h e a d ( I ll i n o is C e n tr a l R . C o .
v. U n it e d S ta te s , p . 1 1 5 ), in v o lv e d th e q u e s tio n o f offices c o n t in u o u s ly
o p e r a te d , th e c o u r t h o ld in g th a t th e s h if t in g o f th e r e g is te r a n d o r d e r
b o o k f r o m a s ta tio n t o a t o w e r a fe w h u n d r e d fe e t a w a y a ft e r 1 2
h o u r s ’ u se b y o n e o p e r a t o r , th e re t o b e u se d f o r 12 h o u r s b y a n o th e r
o p e r a t o r , m u s t b e h e ld as th e m a in te n a n c e o f a s in g le office, a n d in
d iv id u a l e m p lo y m e n t th e r e in lim it e d t o 9 h o u r s o f s e r v ic e w it h in 24.
T h e s t a r t in g p o in t f o r c o m p u t in g th e 2 4 -h o u r p e r io d w it h in w h ic h
16 h o u r s o f w o r k a re t o b e p e r fo r m e d w a s c o n s id e r e d in U n it e d
S ta te s v. M is s o u r i P a c ific R y . C o . (p . 1 1 4 ) , th e c o u r t o f a p p e a ls a g r e e
i n g w it h th e c o m p a n y t h a t th is s h o u ld b e th e tim e w h e n th e i n d i
v id u a l e n te rs u p o n h is d u tie s f o r th e d a y .
T w o s o m e w h a t c o n t r a d ic t o r y o p in io n s w e r e g iv e n as t o w h a t c o n
stitu te s a b r e a k in c o n t in u o u s s e r v ic e w it h in th e la w . I n M in n e
a p o lis & S t. L . R . C o . v. U n it e d S ta te s (p . 1 1 5 ), a n a b s o lu te re le a se o f
f r o m t w o t o t w o a n d o n e -h a lf h o u r s at th e in te r m e d ia te s ta tio n o f a
r o u n d t r ip w a s h e ld n o t t o b e su ch in t e r r u p t io n as t o b e s u b tr a c te d
f r o m th e t o t a l p e r io d b e tw e e n th e sta r t a n d th e c o m p le t io n o f th e
r o u n d t r ip . I n P e n n s y lv a n ia R . C o . v. U n it e d S ta te s (p . 1 1 7 ), o n th e
o t h e r h a n d , a c o u r t o f s im ila r r a n k in a n o th e r c ir c u it h e ld th a t th e
c r e w o f a p u s h in g e n g in e h e lp in g tr a in s o v e r m o u n ta in g r a d e s w a s
o f f d u t y d u r in g rest p e r io d s o f 50 m in u te s e a c h , th e tim e b e in g s p e n t
in a r e s t h o u se , th e m e n b e in g s u b je c t t o c a ll a t a n y tim e , a n d p a y
b e in g c o n tin u o u s . T h is o p in io n d o e s n o t see m t o b e b a se d s q u a r e ly
o n th e p r o v is io n s o f th e la w , h o w e v e r , as a p p e a r s f r o m th e sta te m e n t
o f th e c o u r t th a t th e n a tu r e o f th e w o r k a n d th e c ir c u m s ta n c e s s u r
r o u n d in g it w e r e e x c e p t io n a l, r e fe r e n c e a lso b e in g m a d e t o u n u su a l
c o n d it io n s a r is in g f r o m a s ta te o f w a r , t o w h ic h c o n s id e r a t io n m ig h t
w e ll b e g iv e n i f n o a c tu a l o v e r s tr a in o f th e e m p lo y e e s w a s p e r m itte d .
W h a t is u n a v o id a b le d e la y so as t o c o n s titu te a n e m e r g e n c y e x
c u s in g e x ce ss e m p lo y m e n t w a s c o n s id e r e d b y th e S u p r e m e C o u r t in
A t c h is o n , T o p e k a & S a n ta F e R y . C o . v. U n it e d S ta te s (p . 1 1 9 ). T h e
a c tu a l carise o f th e d e la y w a s h e ld t o b e u n a v o id a b le a c c id e n t, b u t
s in c e th e c r e w m ig h t h a v e b e e n r e lie v e d a t a d iv is io n te r m in a l, th e
o v e r tim e w o r k w a s h e ld to b e u n ju s tifia b le , e v e n t h o u g h t h a t t e r m i
n a l w a s n o t th e r e g u la r e n d o f th e c r e w ’s r u n . A n o t h e r ca se b e f o r e
th e sa m e c o u r t (U n it e d S ta te s v. N o r t h e r n P a c ific R . C o ., p . 1 1 6 ),
in v o lv e d th e p o in t o f m a k in g r e p o r t s o f o v e r tim e e m p lo y m e n t , a n d
a n h o n e s t m is ta k e o n th e p a r t o f th e c o m p a n y in s e le c t in g th e p o in t
o f tim e f r o m w h ic h th e h o u r s o f s e r v ic e s h o u ld b e r e c k o n e d , w a s
h e ld t o w a r r a n t th e n o n e n fo r c e m e n t o f th e p e n a ltie s p r o v id e d f o r
its v io la t io n .
RAILROADS.
21
WOMEN.
A W y o m i n g sta tu te h a d e s ta b lis h e d a w o r k d a y f o r w o m e n , in
c lu d in g th o s e e m p lo y e d in r e s ta u ra n ts , b u t e x c e p t in g r a ilr o a d r e s
t a u r a n ts f r o m th e a p p lic a t io n o f th e la w . T h e s u p r e m e c o u r t o f th e
S ta te fo u n d n o a d e q u a te r e a s o n f o r m a k in g th is e x e m p t io n , a n d d e
c la r e d th e la w u n c o n s t itu t io n a l in so fa r as it a p p lie d t o r e s ta u ra n ts
o f a n y k in d (S t a t e v. L e B a r r o n , p . 1 1 3 ). A la te r a c t o f th e le g is
la tu r e m e t th e s itu a tio n b y e x t e n d in g th e la w t o r e s ta u ra n ts w it h o u t
d is t in c t io n .
SUNDAY LABOR.
T h a t th e o b s e r v a n c e o f th e J e w is h S a b b a th , m a d e in g o o d fa it h ,
w a s a n a d e q u a te c o m p lia n c e w it h a la w c a llin g f o r th e o b s e r v a n c e
o f S u n d a y , w a s m a in ta in e d b y th e K e n t u c k y c o u r t o f a p p e a ls in
C o h e n v. W e b b (p . 1 9 1 ). I n a N e w Y o r k ca se th e p a s t e u r iz in g a n d
b o t t lin g o f m ilk o n S u n d a y w a s h e ld n o t to b e w o r k in a fa c t o r y in
v io la t io n o f th e la b o r la w o f th e S ta te (P e o p le v. R . F . S te v e n s C o .,
p . 1 8 9 ) ; w h ile in a n o th e r ca se, u n d e r th e sa m e la w (P e o p le v. T r a n s it
D e v e lo p m e n t C o ., p . 2 0 0 ), th e e m p lo y m e n t o f a m a c h in is t f o r 7 d a y s
w it h o u t a re st o f 24 c o n s e c u tiv e h o u r s w a s h e ld to b e a v io la t io n
o f th e la w , a c o n s t r u c t io n -a n d -r e p a ir s h o p , a u x ilia r y t o a stre e t r a il
w a y c o m p a n y , b e in g h e ld t o b e a f a c t o r y w it h in th e m e a n in g o f th e
la w , a n d n o t e x e m p te d in th e g r o u p o f p o w e r h o u se s, etc., o w n e d
a n d o p e r a t e d b y p u b lic -s e r v ic e c o r p o r a t io n s , w h ic h a re e x c lu d e d
f r o m th e o p e r a t io n o f th e a ct.
W h a t is a w o r k o f n e ce s s ity w a s p a sse d u p o n b y th e S u p r e m e
C o u r t o f A r k a n s a s (R o s e n b a u m v. S ta te , p . 1 9 0 ), th e o p e r a t io n o f a
m o v in g -p ic t u r e s h o w o n S u n d a y b e in g h e ld n o t t o f a l l w it h in th a t
cla ss— th is o v e r th e c o n t e n t io n o f th e p r o p r ie t o r th a t th e im p o r t a n c e
o f fu r n is h in g s u ita b le e n te r ta in m e n t f o r s o ld ie r s e n c a m p e d n e a r b y ,
w h o w e r e a t lib e r t y o n ly o n S u n d a y , c o n s titu te d a n e ce s s ity u n d e r
th e c ir cu m s ta n ce s .
FACTORY REGULATIONS.
T h e l ia b ilit y o f a te n a n t f o r c o n d it io n s in a fa c t o r y b u ild in g o f
w h ic h h e o c c u p ie s a p a r t w a s c o n s id e r e d in P e o p le v. S h e v it z (p . 1 1 2 ),
c o n s t r u in g th e N e w Y o r k sta tu te. I t w a s h e ld th a t e v e n t h o u g h th e
d e fe c t la y o u ts id e o f th e p o r t io n o f th e b u ild in g r e n te d b y h im , th e
d e fe n d a n t w a s lia b le f o r p u n is h m e n t f o r t a k in g q u a rte rs in a b u ild
in g n o t c o n f o r m in g t o th e p r o v is io n s o f th e la w .
RAILROADS.
T h e S u p r e m e C o u r t o f th e U n it e d S ta te s r u le d (I ll i n o is C e n tr a l
R . C o . v. W illia m s , p . 1 8 7 ), th a t th e s a fe t y -a p p lia r ic e la w o f 1910
22
REVIEW OF DECISIONS OF COURTS AFFECTING LABOR.
r e q u ir e d s e c u r it y in c e r t a in e q u ip m e n t e v e n t h o u g h o r d e r s s ta n d
a r d iz in g s u ch e q u ip m e n t w e r e n o t in fo r c e , th e tim e a llo w e d f o r
s t a n d a r d iz a t io n n o t b e in g p e r m it t e d t o w a iv e r e s p o n s ib ilit y f o r
s a fe t y in th e m e a n tim e .
T h e r e la tio n o f S ta te a n d F e d e r a l la w s w a s c o n s id e r e d b y th e
c o u r t o f a p p e a ls o f A la b a m a in a ca se (L o u is v ille & N a s h v ille R . C o .
v. S ta te , p . 1 8 6 ) in w h ic h th e c o n s t r u c t io n o f lawTs r e q u ir in g lo c o m o
t iv e h e a d lig h t s w a s p a sse d u p o n . H e r e a g a in th e e ffe c t o f d e la y d u e
t o th e e s ta b lis h m e n t o f r e g u la t io n s w a s u n d e r r e v ie w , b u t th e c o u r t
h e ld th a t th e F e d e r a l la w w a s in e ffe c t f r o m th e d a te o f its e n a c t
m e n t, so th a t th e S ta te la w in th e sa m e fie ld m u st b e c o n s id e r e d as
s u p e rs e d e d a t t h a t tim e .
LIABILITY OF EMPLOYERS FOR INJURIES TO EMPLOYEES.
T h o u g h th e q u e s tio n o f e m p lo y e r s ’ lia b ilit y is o f m u c h less in t e r
est a t th e p r e s e n t tim e o n a c c o u n t o f th e a c t io n o f th e le g is la tu r e s o f
s o m a n y S ta te s in p a s s in g w o r k m e n ’s c o m p e n s a t io n . la w s , th e fa c t
th a t su ch la w s a re n o t e x c lu s iv e in a n u m b e r o f th e S ta te s a n d th a t
r a ilw a y s e r v ic e is in la r g e d e g r e e s t ill s u b je c t t o th e d o c t r in e s o f
lia b ilit y la w — e x c lu s iv e ly so as t o in te rs ta te c o m m e r c e — le a v e s to th e
s u b je c t a m e a su re o f im p o r ta n c e .
A p p r o x im a t in g th e p r in c ip le o f c o m p e n s a tio n , in th a t th e e m
p lo y e r is h e ld lia b le f o r in ju r ie s o c c u r r in g in d e s ig n a te d h a z a r d o u s
o c c u p a t io n s w it h o u t r e g a r d t o th e q u e s tio n o f n e g lig e n c e , is a n
A r iz o n a s ta tu te e n a c te d in c o n f o r m it y w it h p r o v is io n s o f th e S ta te
c o n s t it u t io n . T h e c o n s t it u t io n a lit y o f th e sta tu te w a s c h a lle n g e d
(I n s p ir a t io n C o n s o lid a t e d C o p p e r C o . v. M e n d e z , p . 8 5 ) , o n th e
g r o u n d t h a t th e a ct is in c o n flic t w it h th e fo u r t e e n t h a m e n d m e n t t o
th e F e d e r a l C o n s titu tio n . T h e s u p r e m e c o u r t o f th e S ta te h e ld t h a t
th e a c t wras v a lid is s p ite o f th e d e c la r a t io n o f lia b ilit y w it h o u t fa u lt ,
b a s in g its p o s it io n la r g e ly o n th e d e c is io n o f th e S u p r e m e C o u r t o f
th e U n it e d S ta te s u p h o ld in g w o r k m e n ’s c o m p e n s a tio n la w s e m b o d y
i n g th e sa m e p r in c ip le . O th e r p o in t s a g a in s t th e sa m e sta tu te w e r e
r a is e d in S u p e r io r &, P it t s b u r g h C o p p e r C o . v. T o m ic h (p . 8 2 ) , th e
c o n t e n t io n b e in g m a d e th a t th e p r o v is io n r e q u ir in g th e d e fe n s e s o f
c o n t r ib u t o r y n e g lig e n c e a n d a ssu m e d ris k s t o b e a lw a y s c o n s id e r e d
as q u e stio n s o f f a c t a n d l e f t t o th e ju r y w a s u n c o n s titu tio n a l. T h is
a ls o w a s r e je c t e d b y th e c o u r t , a n d th e la w a p p e a r s n o w t o b e w e ll
e s ta b lis h e d in th e ju d ic ia l sy ste m o f th e S ta te .
SAFE PLACE AND APPLIANCES.
T h e m a in te n a n c e o f s a fe t y c o n d it io n s in m in e s is p r e s c r ib e d in
p r a c t ic a lly e v e r y m in in g S ta te b y r e g u la tio n s c o v e r in g th e s u b je c t o f
in s p e c t io n a n d m a in te n a n c e o f s t a n d a r d c o n d it io n s o f s a fe t y . T h e
LIABILITY OF EMPLOYERS FOB INJURIES TO EMPLOYEES.
23
U t a h sta tu te c a lls f o r a n in s p e c t io n f o r g a se s in m in e s “ k n o w n t o
g e n e r a te e x p lo s iv e g a s e s ,” a n d th is p r o v is io n w a s h e ld ( E le g a n t i v.
S t a n d a r d C o a l C o ., p . 8 7 ), t o b e a b s o lu te , w it h o u t r e g a r d t o th e
a m o u n t o f s u ch g a ses d e v e lo p e d . A n e x p lo s io n o f g a se s in a p la c e
m a r k e d s a fe w a s h e ld b y th e S u p r e m e C o u r t o f A r k a n s a s (S t e r lin g
A n t h r a c it e C o . v. S t r o p e , p . 9 1 ) to b e e v id e n c e o f n e g lig e n c e , m a k
in g th e e m p lo y e r lia b le e v e n th o u g h th e in s p e c t o r w h o h a d m a d e th e
m a r k h a d r e p o r t e d th e w o r k in g p la c e u n s a fe . A n in t e r e s tin g p o in t
in th is ca se w a s as t o th e p r o x im a t e ca u se o f d e a th , w h ic h w a s d u e
d ir e c t ly t o p n e u m o n ia . T h e p h y s ic ia n h a d te s tifie d t h a t in h is o p in
io n th e p n e u m o n ia w a s a seq u e l o f th e b u rn s r e c e iv e d a t th e tim e o f
th e in ju r y a n d th e r e cu m b e n t p o s it io n m a d e n e ce s s a r y th e r e b y , a n d
th e s u p r e m e c o u r t r e fu s e d t o d is tu r b th e fin d in g a n d ju d g m e n t o f
th e c o u r t b e lo w o n th is p o in t .
P o is o n o u s fu m e s o f s lo w o p e r a t io n m a y g iv e r is e t o a s u it f o r d a m
a g e s i f it a p p e a r s t h a t th e e m p lo y e r w a s n e g lig e n t in f a i l in g t o p r o
v id e a d e q u a te v e n t ila t io n i n a p la c e m a d e d a n g e r o u s b y su ch fu m e s
( F r i t z v. E l k T a n n in g C o ., p . 9 0 ), th e S u p r e m e C o u r t o f P e n n s y l
v a n ia h o ld in g th a t su ch w a s th e ca se b o t h u n d e r th e c o m m o n la w
a n d u n d e r th e sta tu tes o f th e S ta te . T h e fa c t th a t th e in ju r e d m a n
c o n t in u e d a t w o r k u n d e r a ssu ra n ces fr o m h is s u p e r in te n d e n t w a s
h e ld n o t t o c h a r g e h im w it h c o n t r ib u t o r y n e g lig e n c e .
T h e n e g lig e n c e o f th e e m p lo y e r in fa i l in g t o in s p e c t p il i n g u p o n
w h ic h a r a ilw a y t r a c k w a s s u p p o r t e d w a s h e ld t o c h a r g e it w it h lia
b ilit y in S o u t h v. S e a ttle , P o r t A n g e le s & W e s t e r n R y . C o . (p . 1 0 2 ),
t h o u g h th e c o m p a n y c o n te n d e d th a t sin c e p il i n g s h o u ld la st f o r th r e e
y e a r s th e re w a s n o d u t y t o in s p e c t u n t il th a t tim e h a d e x p ir e d . I t
a p p e a r e d , h o w e v e r , th a t c o n d it io n s h a d in d ic a t e d th e p r o p r ie t y o f
s u ch in s p e c t io n p r i o r t o th e a c c id e n t, a n d lia b ilit y w a s a ffirm ed .
T h e q u e s tio n w a s r a is e d in L o u is v ille & N a s h v ille E . C o . v. L a y t o n
(p . 9 9 ) as t o h o w f a r th e b e n e fits o f th e F e d e r a l la w r e q u ir in g
s a fe t y c o u p le r s o n r a ilw a y tr a in s e x te n d . A s w itc h m a n , n o t at th e
tim e in te re s te d in th e m a tte r o f c o u p lin g o r u n c o u p lin g ca rs, w a s
in ju r e d b y th e fa ilu r e o f t w o c a rs t o c o u p le , a n d th e c o m p a n y c o n : te n d e d th a t th e a c t c o u ld b e o f n o b e n e fit t o h im , s in c e i t w a s o n ly
t o p r o t e c t a g a in s t d e fe c t s in th e c o u p lin g th o s e w h o s e d u t y r e q u ir e d
th e m t o g o b e tw e e n th e ca rs. T h e S u p r e m e C o u r t o f th e U n it e d
S ta te s a d m itte d t h a t th e im m e d ia te o c c a s io n o f th e la w w a s t o
p r o t e c t th o s e d ir e c t ly e m p lo y e d in c o u p lin g , b u t th a t its b e n e fits
w e r e b y n o m e a n s c o n fin e d to th a t cla ss o f e m p lo y e e s . A n o t h e r ca se
i n v o lv in g a d e fe c t in s a fe t y a p p lia n c e s w a s t h a t o f M in n e a p o lis &
S t. L o u is R . C o . v. G o t s c h a ll (p . 1 0 0 ), lik e th e fo r e g o i n g d e c id e d
b y th e S u p r e m e C o u r t o f th e U n it e d S ta te s, th e ca se c o m in g u p fr o m
th e S u p r e m e C o u r t o f M in n e s o ta . N e g lig e n c e w a s h e ld p r o p e r ly
in fe r a b le fr o m th e fa ilu r e o f th e c o u p le r t o h o ld , r e s u lt in g in th e
24
REVIEW OF DECISIONS OF COURTS AFFECTING LABOR.-
fa t a l i n ju r y t o a h e a d b r a k e m a n — th is in v ie w o f th e fa c t th a t a
p o s it iv e d u t y is d e v o lv e d u p o n th e r a ilr o a d s b y th e la w . T h e r ig h t
o f a fa t h e r to d a m a g e s f o r th e d e a th o f h is s o n w a s c o n s id e r e d in th is
ca se, n o p e c u n ia r y lo s s a p p e a r in g . I t w a s h e ld , h o w e v e r , th a t as
u n d e r th e M in n e s o ta la w th e fa t h e r w a s e n title d t o th e e a r n in g s o f
th e m in o r , n o e v id e n c e o f p e c u n ia r y lo ss w a s n e ce s s a r y t o s u p p o r t
a n a w a r d o f p r o p e r a m o u n t.
T h e c o n s t r u c t io n o f a K a n s a s sta tu te r e g a r d in g th e o p e r a t io n o f
d a n g e r o u s m a c h in e r y a n d th e a b r o g a tio n o f th e p r in c ip le o f a ssu m e d
r isk s w a s a ls o p a s s e d u p o n b y th e S u p r e m e C o u r t in B o w e r s o c k v.
S m it h (p . 8 3 ). A p a p e r c o m p a n y h a d c o n t e n d e d t h a t th e g u a r d in g
o f th e m a c h in e r y in q u e s tio n w a s n o t p r a c t ic a b le , a n d th a t th e in
ju r e d m a n , w h o w a s s u p e r in te n d e n t, h a d a ssu m e d th e r is k o f th e
in ju r y in a s m u c h as it w a s h is d u t y t o s a fe g u a r d th e m a c h in e r y . T h e
c o u r t b e lo w h a d a ls o in s tr u c te d th a t w h e r e th e re w a s a v io la t io n
o f th e sta tu te th e c o m m o n -la w d e fe n s e s o f c o n t r ib u t o r y n e g lig e n c e ,
fe llo w s e r v ic e , a n d a ssu m e d r is k s w e r e n o t a p p lic a b le , t o a ll o f w h ic h
th e c o m p a n y e x c e p te d , c o n t e n d in g th a t su ch a c o n s t r u c t io n w o u ld
d e p r iv e it o f its r ig h t s u n d e r th e fo u r t e e n t h a m e n d m e n t. T h e S u
p r e m e C o u r t o f K a n s a s h a d a ffirm ed a n a w a r d in th e p la in t iff’s
fa v o r , a n d th is w a s u p h e ld b y th e U n it e d S ta te s S u p r e m e C o u r t ,
w h ic h s a id as t o th e c la im th a t th e s u p e r in te n d e n t w a s h im s e lf o b li
g a te d t o s a fe g u a r d th e m a c h in e r y , th a t th e d u t y w a s im p o s e d u p o n
th e e m p lo y e r in a n a b s o lu te m a n n e r, a n d th a t h e c o u ld n o t r e lie v e
h im s e lf t h e r e fr o m b y c o n tr a c t, th e c o n s t it u t io n a lit y o f th e la w b e in g
s u s ta in e d in fu ll.
T h e m a tte r o f th e m a te r ia l w o r k e d u p o n r a th e r th a n o f th e c o n d i
t i o n s 'o f th e p la n t it s e lf w a s c o n s id e r e d in a D e la w a r e ca se ( P o t t e r v.
R ic h a r d s o n & R o b b in s C o ., p . 8 8 ) in w h ic h d a m a g e s w e r e s o u g h t
b e c a u se o f a n in fe c t io n d u e , as a lle g e d , t o th e h a n d lin g o f p u t r id
c a rc a sse s o f c h ic k e n s fu r n is h e d to b e c a n n e d . T h e c o u r t h e ld th a t th e
fitn e ss o f th e c h ic k e n s f o r f o o d d id n o t c o n c e r n th e e m p lo y e e , b u t th a t
sh e w a s e m p lo y e d t o p r e p a r e th e c h ick e n s , w h ic h w e r e p r e s u m a b ly
s u ita b le f o r th e p u r p o s e ; a n d i f sh e fo u n d th e m t o b e o th e r w is e , sh e
w a s in th e b e st p o s it io n t o d e te r m in e t h e ir c o n d it io n , a n d in p r o c e e d
i n g t o h a n d le a d e c a y e d c a rc a s s sh e w a s g u ilt y o f c o n t r ib u t o r y n e g li
g e n c e , b a r r in g h e r r ig h t t o r e c o v e r y .
T h e r e s p o n s ib ilit y o f a n e m p lo y e r f o r m e d ic a l tr e a tm e n t t o b e f u r
n is h e d u n d e r a n a g re e m e n t w it h h is e m p lo y e e s w a s h e ld b y th e
S u p r e m e C o u r t o f S o u t h C a r o lin a t o e x te n d t o a ca se in w h ic h d e a th
fo llo w e d th e r e fu s a l o f th e c o m p a n y p h y s ic ia n t o r e n d e r th e s e r v ic e
r e q u e ste d t o a n e m p lo y e e ’s w ife . (O w e n s v. A t la n t ic C o a s t L u m b e r
C o r p ., p . 8 6 .) T h is r u lin g w a s b a s e d o n th e a s s u m p tio n th a t th e
c o m p a n y m a in ta in e d th e fu n d o n a b a s is o f p e c u n ia r y p r o fit t o it s e lf,
n o s h o w in g t o th e c o n t r a r y a p p e a r in g .
LIABILITY OF EMPLOYERS FOR INJURIES TO EMPLOYEES.
25
G o in g b e y o n d th e c o n t r a c t r e la tio n s h ip o f e m p lo y e r a n d e m p lo y e e ,
a ca se (C la y t o n v. E n t e r p r is e E le c t r ic C o ., p . 1 0 2 ) w a s p a s s e d u p o n b y
th e S u p r e m e C o u r t o f O r e g o n , w h ic h h e ld th e c o m p a n y lia b le f o r th e
d e a th o f a n e m p lo y e e w h o s e e m p lo y e r d e r iv e d p o w e r fr o m th e tr a n s
m is s io n w ir e s o f th e c o m p a n y . T h e fa ilu r e o f th e c o m p a n y t o p r o
p e r ly in s u la te its s w itch e s w a s h e ld t o e n ta il a lia b ilit y u p o n it u n d e r
th e S ta te sta tu te.
OVERTIME WORK.
T h e e ffe c t o f p r o lo n g e d e m p lo y m e n t as e n t a ilin g lia b ilit y u p o n th e
e m p lo y e r f o r in ju r ie s tr a c e a b le th e re to w a s c o n s id e r e d b y th e S u
p r e m e C o u r t in a ca se b e fo r e it o n a p p e a l fr o m a n a p p e lla te c o u r t o f
I llin o is . (B a lt im o r e & O h io .R . C o . v. W ils o n , p . 9 9 .) O v e r 14 h o u r s
h a d in te r v e n e d b e tw e e n th e e x ce s s iv e w o r k a n d th e tim e w h e n th e
i n ju r y w a s r e c e iv e d . T h e ju r y h a d fo u n d th a t th e in ju r y w a s d u e t o
th e s tr a in u p o n th e p la in t iff b e ca u se o f th e e x ce s s iv e la b o r . T h e c o n
te n tio n th a t th e in ju r y m u st b e r e c e iv e d d u r in g th e tim e o f e x ce s s iv e
w o r k w a s r e je c t e d b y th e S u p r e m e C o u r t, as w e ll as o th e r c o n te n tio n s ,
a n d th e d e fe n s e s o f c o n t r ib u t o r y n e g lig e n c e a n d a ssu m e d ris k s w e r e
n o t a llo w e d , a n d th e ju d g m e n t w a s a ffirm ed .
RELATION TO COMPENSATION LAWS.
T h e c o m p e n s a tio n la w s o f a n u m b e r o f S ta te s e sta b lish a lte r n a tiv e
sy ste m s, p r o v id in g th a t w h e r e th e e m p lo y e r r e je c t s o r fa ils t o a c c e p t
th e p r o v is io n s o f th e c o m p e n s a tio n a c t lia b ilit y r e m a in s w it h c e r t a in
d e fe n s e s a b r o g a te d . T h e I o w a sta tu te is o f th is n a tu r e a n d d e cla r e s
th a t w h e re in ju r y o c c u r s it s h o u ld b e p r e s u m e d th a t su ch in ju r y w a s
d u e to th e n e g lig e n c e o f th e e m p lo y e r as its p r o x im a t e cau se. I n
M it c h e ll v. P h illip s M in in g C o . (p . 1 0 4 ) th is p r e s u m p t io n w a s o r ig i
n a lly r e lie d u p o n b y th e p la in t iff, b u t o n e v id e n c e b e in g in t r o d u c e d
t o o v e r th r o w th e p r e s u m p t io n , b o t h p a r t ie s b r o u g h t in a d d it io n a l e v i
d e n ce o n th is p o in t . T h e t r ia l c o u r t p a sse d u p o n th is e v id e n c e w it h
o u t s u b m ittin g th e ca se t o th e ju r y , b u t th e s u p r e m e c o u r t o f th e
S ta te h e ld th is a c tio n im p r o p e r , a n d r e m a n d e d it f o r a ju r y tr ia l,
h o ld in g th a t o n ly th u s c o u ld th e p u r p o s e s a n d o b je c t s o f th e a c t b e
c a r r ie d ou t.
I n S h a u g h n e s s y v. N o r t h la n d S te a m s h ip C o . (p . 1 0 3 ) th e S u p r e m e
C o u r t o f W a s h in g t o n h e ld th a t th e w o r k m e n ’s c o m p e n s a tio n la w o f
th e S ta te ; w h ic h w a s c la im e d b y th e c o m p a n y to a b o lis h su its at la w
f o r in ju r ie s t o e m p lo y e e s , w a s n o t a p p lic a b le in a ca se in w h ic h a
lo n g s h o r e m a n w a s in ju r e d w h ile u n lo a d in g a v e ssel in P u g e t S o u n d .
T h e c o u r t h e ld th a t th is a b r o g a tio n c o u ld ta k e e ffe c t o n ly w h e re th e
S ta te la w s w e r e o p e r a t iv e , a n d th a t th is , b e in g a m a r itim e ca se, w a s
o u ts id e o f S ta te c o n t r o l. O f th e sa m e t e n o r w a s th e c o n c lu s io n
r e a c h e d b y th e S u p r e m e C o u r t o f M a ssa ch u se tts in a ca se (M o r r is o n
26
REVIEW OF DECISIONS OF COURTS AFFECTING LABOR.
v. C o m m e r c ia l T o w b o a t C o ., p . 1 0 5 ) in w h ic h th e m a te o f a t o w b o a t
o p e r a t in g in B o s to n H a r b o r w a s in ju r e d w h ile a t t e m p t in g t o d e liv e r
a n a r t ic le t o a s e a g o in g b a r g e . T h e S ta te la w e x c lu d e s in te rs ta te c o m
m e r c e a n d se a m e n fr o m its o p e r a t io n , a n d as th e c la im a n t w a s e n
g a g e d in th e e x c lu d e d e m p lo y m e n ts n o b e n e fits w e r e o b ta in a b le u n d e r
th e act.
T h e sta tu s o f a m in o r la w f u l l y p e r m it t e d t o w o r k , b u t e n g a g e d in a
p r o h ib it e d e m p lo y m e n t , w a s h e ld b y th e S u p r e m e C o u r t o f M in n e s o ta
n o t to b e th a t o f a n e m p lo y e e u n d e r th e c o m p e n s a t io n a ct, so th a t an
a c t io n f o r d a m a g e s w a s p r o p e r ly b r o u g h t . (W e s t e r lu n d v. K e t t le
R iv e r C o ., p . 1 0 6 .)
FEDERAL STATUTE.
Jurisdiction .— W h e r e a s u it h a s b e e n d e c id e d u n d e r th e la w o f a
S ta te w it h o u t o b je c t io n fr o m th e d e fe n d a n t , th e S u p r e m e C o u r t o f
M is s o u r i h e ld th a t it w a s t o o la te t o ra ise th e q u e s tio n o f in te r s ta te
c o m m e r c e a n d th e a p p lic a t io n o f th e F e d e r a l la w o n a n a p p e a l, a n d
a ffirm ed th e ju d g m e n t o f th e c o u r t b e lo w . T h e S u p r e m e C o u r t o f
th e U n it e d S ta te s t o o k th e sa m e p o s it io n , h o ld in g a ls o th a t s in c e
th e r e w a s n o r ig h t o r p r iv ile g e d u ly c la im e d u n d e r th e F e d e r a l a ct
it h a d n o ju r is d ic t io n , a n d d is m is s e d th e ca se, le a v in g th e ju d g m e n t
o f th e S ta te c o u r ts u n d is tu r b e d . (M is s o u r i P a c ific R y . C o . v. T a b e r ,
p . 1 0 1 .)
L im itation — I n v o lv in g , lik e th e fo r e g o in g , a c o n s id e r a t io n o f
S ta te a n d F e d e r a l la w s , w a s a ca se ( H o g a r t y v. P h ila d e lp h ia & R e a d
in g R . C o ., p . 9 7 ) , p a sse d u p o n b y th e S u p r e m e C o u r t o f P e n n
s y lv a n ia . T h e c o n d u c t o r o f a s h if t in g c r e w o n a r a ilr o a d h a d su ed
a t c o m m o n la w , a n d th 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 h e
h a d r e c e iv e d b e n e fits fr o m its r e lie f s o c ie ty . O n its a d m is s io n th a t
th e in ju r e d m a n w a s e n g a g e d in in te rs ta te c o m m e r c e a t th e tim e o f
th e a c c id e n t, h e p o in t e d o u t th a t th e F e d e r a l la w d id n o t m a k e th is
a re le a se f r o m lia b ilit y . O n th e c o m p a n y ’s r e p ly th a t th e a c t io n w a s
n o t b r o u g h t u n d e r F e d e r a l la w , an a tte m p t w a s m a d e t o a m e n d th e
p le a d in g s so as t o b r in g th e ca se u n d e r th a t sta tu te , w h ic h th e tr ia l
c o u r t r e fu s e d t o a llo w . T h e s u p r e m e c o u r t r e v e r s e d th is r u lin g , a n d
o r d e r e d a n e w tr ia l, w h e r e u p o n ju d g m e n t w a s g iv e n f o r th e e m p lo y e e .
A n a p p e a l w a s a g a in ta k e n to th e su p r e m e c o u r t, w h ic h th e r e u p o n
r e v e r s e d its p r e v io u s d e c is io n , f o l l o w i n g th e d e c is io n o f th e S u p r e m e
C o u r t o f th e U n it e d S ta te s in a ca se in v o lv in g th is p o in t , w h ic h h a d
in th e m e a n tim e b e e n h a n d e d d o w n . T h is w a s t o th e e ffe c t t h a t a
n e w ca u se o f a c t io n w a s in t r o d u c e d b y p le a d in g th e sta tu te , a n d
s in c e m o r e th a n t w o y e a r s h a d e la p s e d s in c e th e in ju r y w a s r e c e iv e d ,
th e lim it in g p r o v is io n s o f th e la w p r e v e n t e d th e p r o s e c u t io n o f
th e case.
Exclusiveness .— B y f a r th e m o s t im p o r t a n t ca se s r e la t in g t o th e
e x c lu s iv e n e s s o f th e F e d e r a l sta tu te w ill b e c o n s id e r e d u n d e r th e
LIABILITY OF EMPLOYEES FOB INJURIES TO EMPLOYEES.
27
h e a d in g “ W o r k m e n ’s C o m p e n s a tio n , In t e r s t a t e C o m m e r c e .” A d e
c is io n b y th e S u p r e m e C o u r t o f th e U n it e d S ta te s a ffe c t in g a p h a s e
o f th is q u e s tio n d e te r m in e d th a t w h e r e a m in o r h a d r e c o v e r e d in a
s u it f o r d a m a g e s u n d e r th e F e d e r a l la w , n o c o m m o n -la w r ig h t s s u r
v iv e d t o th e fa t h e r , s in c e th e F e d e r a l sta tu te d e te r m in e d th e f u l l
lia b ilit y o f th e c o m p a n y in ca ses o f in ju r y t o its e m p lo y e e s in in t e r
sta te c o m m e r c e (N e w Y o r k C e n tr a l & H u d s o n R iv e r E . C o . v. T o n s e llito , p . 9 8 ).
Interstate commerce .— T h e q u e s tio n o f w h e n th e F e d e r a l la w is
a p p lic a b le , a n d w h e n it c a n n o t b e a v a ile d o f b e c a u s e th e e m p lo y e e is
n o t in in te r s ta te c o m m e r c e , c o n tin u e s t o b e a v e x in g on e. T h e g e n e r a l
p r in c ip le u n d e r ly in g th e d e c is io n s is th a t th e w o r k m a n m u st a t the;
tim e b e e n g a g e d i n ‘w o r k th a t is d ir e c t ly c o n n e c te d w it h o r w ill f a c i l i
ta te in te rs ta te c o m m e r c e . T h a t su ch a c o n n e c t io n e x is te d in th e ca se
o f a g a te m a n w h o m e t h is d e a th w h ile u n d e r t a k in g t o b a c k a h ors©
a n d w a g o n fr o m th e tr a c k , so th a t h e m ig h t c lo s e a p r o t e c t in g g a te
f o r th e p a s s a g e o f a n in tr a s ta te tr a in , w a s h e ld b y th e S u p r e m e
C o u r t o f C a lifo r n ia in S o u th e r n P a c ific C o . v. I n d u s t r ia l A c c id e n t
C o m m is s io n (p . 9 2 ). T h is a c tio n in v o lv e d th e o v e r r u lin g o f a n
a w a r d m a d e b y th e c o m m is s io n u n d e r th e S ta te c o m p e n s a tio n la w ,
th e d e c is io n b e in g b a s e d o n a fin d in g th a t th e u se o f th e t r a c k f o r b o t h
in te r s ta te an d- in tr a s ta te c o m m e r c e b r o u g h t w it h in th e s c o p e o f th e
F e d e r a l sta tu te p e r s o n s k e e p in g it in s u ita b le c o n d it io n f o r u se in in
te r s ta te tra ffic. T h e sa m e c o u r t r e a ch e d a n id e n t ic a l c o n c lu s io n in
a ca se in v o lv in g th e sa m e p r in c ip a ls (p . 9 3 ) , th e e m p lo y e e in th is
in s ta n c e b e in g a lin e m a n e n g a g e d in r e m o v in g a te le p h o n e w ir e w h ic h
h a d fa lle n u p o n a t r o lle y w ir e , th e la tte r b e in g a p a r t o f th e e q u ip
m e n t o f a n e le c tr ic r a ilw a y u se d in in te rs ta te a n d in tr a s ta te c o m
m e rc e . T h e S u p r e m e C o u r t o f M a ssa c h u se tts (L y n c h v. B o s to n &
M a in e R a ilr o a d , p . 9 6 ) , lik e w is e h e ld th e F e d e r a l la w a p p lic a b le in
th e ca se o f a s ta tio n a g e n t k ille d w h ile a t t e m p t in g t o se c u re m a il b a g s
d e liv e r e d b y a n in te rs ta te t r a in ; so a lso o f a w o r k m a n in ju r e d w h ile
a s s is tin g in ja c k in g u p a w r e c k e d c a r to rele a se a n o th e r e m p lo y e e
a n d t o a ssist in c le a r in g a w a y th e w r e c k (S o u t h e r n R y . C o . v. P u c k e t t ,
p . '9 2 ) , th e d e c is io n in th is in s ta n c e b e in g r e n d e r e d b y th e S u p r e m e
C o u r t o f th e U n it e d S ta te s. A n o t h e r in c lu s io n d e c id e d u p o n b y th e
c o u r t o f a p p e a ls o f M is s o u r i (C h r is t y v. W a b a s h R . C o ., p . 9 4 ) w a s
th a t o f a s w itc h m a n k ille d w h ile s h if t in g ca rs t o b e ta k e n t o a p o in t
a fe w m ile s a w a y f o r lo a d in g f o r in te rs ta te c o m m e r c e . T h e c o u r t
h e ld th a t s in c e th e c a r h a d b e e n d e s ig n a te d f o r th a t u se th e F e d e r a l
la w a p p lie d , e v e n t h o u g h th e c a r h a d n o t y e t b e e n lo a d e d . A n o t h e r
p o in t in v o lv e d in th is ca se w7as as t o a v io la t io n o f th e s a fe t y a p p lia n c e l a w ; th e c a rs w e r e p r o p e r ly e q u ip p e d w it h s a fe t y c o u p le r s ,
b u t in a s m u c h as th e m e th o d o f s w it c h in g a d o p te d r e q u ir e d th e e m
p lo y e e t o ta k e a p o s it io n b e tw e e n th e ca rs , it w a s h e ld th a t th e la w
w as- v io la t e d a n d l ia b ilit y in c u r r e d .
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REVIEW OF DECISIONS OF COURTS AFFECTING LABOR.
C a se s h e ld t o b e e x c lu d e d f r o m th e o p e r a t io n o f th e F e d e r a l la w ,
th e e m p lo y m e n t n o t b e in g o f th e n a tu r e o f in te r s ta te c o m m e r c e , w e r e
d e c id e d b y th e S u p r e m e C o u r t o f th e U n it e d S ta te s as f o l l o w s : I n
I llin o is C e n tr a l R . C o . v. P e e r y (p . 9 1 ) , w h e r e a fr e ig h t c o n d u c t o r
in ju r e d o n a r e tu r n t r ip , p u r e ly in tr a s ta te , c la im e d d a m a g e s o n th e
g r o u n d th a t th e o u t g o in g t r ip , in w h ic h in te rs ta te g o o d s w e r e c a r
r ie d , g a v e q u a lit y t o th e e n tir e r u n — a c o n t e n t io n w h ic h th e c o u r t
r e je c t e d ; a ca se (L e h ig h V a lle y R . C o . v. B a r lo w , p . 9 5 ) in v o lv in g th e
s h if t in g o f c a r s lo a d e d w it h c o a l f o r u se in c o a lin g th e e n g in e s , th e
c o a l h a v in g b e e n b r o u g h t f r o m w it h o u t th e S ta te b u t s t o r e d f o r
se v e r a l d a y s in a y a r d w it h in th e S ta te w h e r e th e in ju r y o c c u r r e d ,
th e c o u r t in th is ca se h o ld in g th a t th e in te r s ta te m o v e m e n t h a d t e r
m in a t e d w h e n th e c o a l r e a c h e d th e y a r d s ; a n d a t h ir d ca se (M in n e
a p o lis & S t. L o u is R . C o . v. W in t e r s , p . 9 4 ) , in w h ic h th e w o r k o f
r e p a ir in g a lo c o m o t iv e u se d in b o t h in te r s ta te a n d in tr a s ta te c o m
m e r c e w a s in v o lv e d . I n t h is ca se th e c o u r t d is t in g u is h e d b e tw e e n
su ch r e p a ir s a n d r e p a ir s u p o n a r o a d p e r m a n e n t ly d e v o t e d t o c o m
m e r c e a m o n g th e S ta te s , th e u se o f th e e n g in e b e in g v a r ia b le .
WORKMEN’S COMPENSATION.
W h ile th e v a s t m a jo r it y o f ca ses a r is in g u n d e r th e c o m p e n s a t io n
la w s r e c e iv e fin a l a d ju d ic a t io n a t th e h a n d s o f th e a d m in is t r a t iv e
o fficia ls, o r b y a g r e e m e n t b e tw e e n th e p a r tie s , a c o n s id e r a b le n u m b e r
r e a c h th e c o u r ts o f la s t r e s o r t f o r th e d e t e r m in a t io n o f c o n te s te d
p o in t s .
CONSTITUTIONALITY OF STATUTES.
C h a r g e s o f u n c o n s t it u t io n a lit y w e r e m a d e in s e v e r a l ca ses, s o m e
b e in g d ir e c t e d a g a in s t th e e ss e n tia l p r in c ip le s o f th e a cts, w h ile
o th e r s w e r e a d d r e s s e d t o s p e c ific p r o v is io n s o f la w h e ld o b je c t io n a b le
b y th e c o n te sta n ts . T h u s in F a s s ig v. S ta te (p . 2 1 2 ) a n o b je c t io n
w a s r a is e d t o p r o v is io n s o f th e O h io la w p e r m it t in g a n in ju r e d e m
p lo y e e t o s u b m it t o th e S ta te c o m m is s io n h is c la im f o r r e d re ss w h e re
th e e m p lo y e r h a s fa ile d t o c o m e u n d e r th e a c t a n d h a s n o t r e c e iv e d
p e r m is s io n t o b e c o m e a s e lf-in s u r e r . T h e r ig h t o f th u s s u b m it t in g
a c la im t o th e c o m m is s io n is m a d e a lte r n a tiv e t o th a t o f b r in g in g a
s u it f o r d a m a g e s w it h th e c o m m o n -la w d e fe n s e s b a r r e d . T h e t r ia l
c o u r t h a d h e ld t h a t th e le g is la tu r e h a d e x c e e d e d its a u t h o r it y in
m a k in g s u ch a g r a n t , b u t th e a p p e lla t e c o u r ts s u s ta in e d th e la w
a n d a ffirm ed th e a w a r d o f b e n e fits a n d p e n a lty . A n o t h e r p r o v is io n o f
th is sa m e la w p r o v id e d f o r s e lf-in s u r a n c e wTh e re a b ilit y t o m a k e th e
n e c e s s a r y p a y m e n t s w a s s a t is fa c t o r ily s h o w n . C e r ta in e m p lo y e r s ,
h a v in g s e c u r e d th e r ig h t t o b e c o m e s e lf-in s u r e r s , p r o c e e d e d t o ta k e
o u t in s u r a n c e f o r t h e ir p r o t e c t io n in s t o c k c o m p a n ie s , w h e r e u p o n
W ORKM EN *S COMPENSATION.
29
th e S ta te s o u g h t t o o u s t s u c h c o m p a n ie s f r o m w r it in g in s u r a n c e o n
th e g r o u n d t h a t th e p r o v is io n o f th e la w a u t h o r iz in g s e lf-in s u r a n c e
w a s u n c o n s titu tio n a l. T h is th e c o u r t r e je c t e d , a n d h e ld th e a c tio n
b o t h o f th e le g is la t u r e a n d o f th e s e lf-in s u r e r s t o b e v a lid (S t a t e e x
re l. T u r n e r v. U n it e d S ta te s F i d e l it y & G u a r a n t y C o ., p . 2 8 4 ). A
s u b se q u e n t a m e n d m e n t d e b a r s s e lf-in s u r e r s f r o m o b t a in in g s u ch
in s u r a n c e .
O f m o r e g e n e r a l n a tu r e w e r e o b je c t io n s r a is e d a g a in s t th e I llin o is
la w (C h ic a g o R y s . C o . v. I n d u s t r ia l B o a r d , .p . 2 1 5 ), th e a p p e lla n t
c o n t e n d in g t h a t th e a c t in q u e s tio n d iffe r s so la r g e ly f r o m th e a ct o f
1911, w h ic h h a d b e e n h e ld c o n s t it u t io n a l, th a t th e d e c is io n w it h r e f
e re n ce th e r e to w a s n o t c o n c lu s iv e . T h e c h ie f d iffe r e n c e c h a r g e d w a s
th a t o f d is c r im in a t o r y o r c la ss le g is la t io n , b u t th e c o u r t fo u n d n o
m e r it in th is c o n t e n t io n a n d a ffirm ed th e c o n s t it u t io n a lit y o f th e la w
o n th e p r in c ip le s la id d o w n in its d e c is io n o n th e e a r lie r la w . T h e
c o n t r a c t o f th e e m p lo y e e t o assu m e th e r is k s o f h is o c c u p a t io n w a s
h e ld t o b e v o id as c o n t r a r y t o th e p o l ic y o f th e a ct. T h e e m p lo y e r
in a ca se b e f o r e th e M a r y la n d C o u r t o f A p p e a ls (S o lv u c a v. B y a n &
R e i l ly C o ., p . 2 1 6 ) m a d e v a r io u s o b je c t io n s t o th e la w o n g r o u n d s o f
d u e p r o c e s s a n d c o n t r a v e n t io n o f th e la w o f th e la n d , b u t th ese o b
je c t io n s w e r e h e ld a n s w e r e d b y d e c is io n s o f th e S u p r e m e C o u r t. T h e
c o n t e n t io n th a t th e a c t c r e a te d a ju d ic ia l b o d y in v io la t io n o f th e
S ta te c o n s t it u t io n w a s lik e w is e r u le d o u t. I n A d a m s v. I t e n B is c u it
C o . (p . 2 1 7 ), th e u n c o n s t itu t io n a lit y o f th e la w o f O k la h o m a w a s
m a in ta in e d b y an e m p lo y e e w h o s o u g h t la r g e r b e n e fits in d a m a g e s
th a n th e c o m p e n s a tio n la w a llo w s . A n o v e l c o n te n tio n r a is e d w a s
th a t th e c o m p e n s a tio n la w is so r e v o lu t io n a r y in c h a r a c te r as t o b e in
e ffe ct an a m e n d m e n t t o th e S ta te c o n s t it u t io n a n d b e y o n d th e p o w e r
o f th e le g is la tu r e t o e n a ct. T h e c o u r t h e ld , h o w e v e r , th a t th e a ct w a s
w it h in th e p o lic e p o w e r o f th e S ta te a n d v a lid . A n o t h e r p o in t in
v o lv e d in th is ca se w a s as to th e p a y m e n t o f d a m a g e s f o r se rio u s d is
fig u r e m e n t in a d d it io n t o th e b e n e fits a llo w e d b y th e c o m p e n s a tio n
la w f o r d is a b il i t y ; th is th e c o u r t w o u ld n o t a llo w , h o ld in g th e a ct t o
b e e x c lu s iv e in its o p e r a t io n a n d n o t p e r m it t in g s u p p le m e n t a r y a c t io n
o f th e s o r t c o n te m p la te d .
A c ir c u it c o u r t o f H a w a ii h a d h e ld th e c o m p e n s a tio n la w o f th a t
T e r r it o r y u n c o n s t itu t io n a l as n o t a llo w in g d u e p r o c e s s o f la w , b o t h
b e ca u se o f its a lle g e d d e fic ie n c y in th e m a tte r o f r e q u ir in g n o t ic e o f
h e a r in g s b e f o r e th e a r b it r a t io n c o m m itte e s a n d b e ca u se it a b o lis h e d
tr ia l b y j u r y ; so m e q u e s tio n w a s a ls o r a is e d as t o c la s s ific a tio n . T h e
S u p r e m e C o u r t o f th e T e r r it o r y r e je c t e d a ll th e c o n te n tio n s m a d e
a n d su sta in e d th e a c t in e v e r y p a r t . (A n d e r s o n v. H a w a ii D r e d g in g
C o ., p . 2 1 1 .)
30
REVIEW OE DECISIONS OE COURTS AFFECTING LABOR.
PARTICULAR; PROVISIONS OF THE LAWS.
INJURIES COMPENSATED.
Accidents .— T h e S u p r e m e C o u r t o f M in n e s o ta (S t a t e e x r e l. F a r i
b a u lt W o o le n M ills C o . v. D is t r ic t C o u r t , p . 2 0 1 ) r e v e r s e d a n a w a r d
in fa v o r o f a c la im a n t w h o s e in ju r y w a s t y p h o id fe v e r , s a id t o h a v e
b e e n c o n t r a c te d f r o m d r in k in g in fe c t e d w a te r fu r n is h e d b y th e e m
p lo y e r , th e c o u r t h o ld in g th a t s u c h a n e v e n t w a s n o t o f a s u d d e n a n d
v io le n t n a tu r e , e ss e n tia l to c o n s titu te a n a c c id e n t. T h is c o u r t h e ld ,
h o w e v e r , t h a t fr e e z in g (S t a t e e x rel. N e ls o n v . D is t r ic t C o u r t , p . 2 0 2 )
a n d s u n s tro k e (S t a t e e x rel. E a u v. D is t r ic t C o u r t, p . 2 0 2 ) w e r e a c c i
d e n ta l in ju r ie s c o m p e n s a b le u n d e r th e a ct.
T h e C o u r t o f A p p e a ls o f C o n n e c tic u t r e v e r s e d a n a w a r d in b e h a lf
o f a fire m a n in a b r e w e r y , w h o s e d e a th w a s d u e t o p n e u m o n ia f o l l o w
i n g a n u n u su a l e x p o s u r e , a d d e d t o e x h a u s tio n , h o ld in g th a t e x h a u s
t io n , a lth o u g h d u e t o a c c id e n t, c o u ld n o t b e cla ss e d as a b o d i ly in ju r y
w it h in th e m e a n in g o f th e a ct. (L in n a n e v. A e t n a B r e w in g C o .,
p . 2 7 7 .)
A r a th e r p e c u lia r d e fin it io n o f th e te r m “ a c c id e n t ” is in s is te d u p o n
b y th e S u p r e m e C o u r t o f M ic h ig a n (L a n d e r s v. C it y o f M u s k e g o n ,
p . 2 0 0 ), w h e n it h o ld s th a t p n e u m o n ia f o l l o w i n g p r o t r a c t e d w e t t in g
in a fr e e z in g te m p e r a tu r e w a s th e seq u e l o f b u t a c o m m o n o c c u r r e n c e
in th e o c c u p a t io n o f a c it y fire m a n , a n d th a t e v e n a s u d d e n r u s h o f
w a t e r d r e n c h in g th e fire m a n f r o m h e a d t o f o o t w a s o n ly a n o r d in a r y
in c id e n t o f h is d u tie s a n d n o t an a c c id e n t ; th e d ise a se th a t f o llo w e d
w a s b r o u g h t o n , t h e r e fo r e , n o t b y a n u n e x p e c te d e v e n t b u t b y o n e
in c id e n t t o t h a t n a tu r e o f e m p lo y m e n t. A m o r e lib e r a l v ie w w a s
t a k e n b y th e A p p e lla t e C o u r t o f I n d ia n a in a ca se (U n it e d P a p e r
B o a r d C o . v. L e w is , p . 2 7 7 ), w h e re n e p h r it is f o llo w e d o v e r h e a t in g a n d
w e t t in g a n d su b se q u e n t c h ill, th e e m p lo y e e b e in g e n g a g e d in flu s h in g
h o t p u lp o u t o f a b a s e m e n t in t o w h ic h it h a d e s c a p e d f r o m a b r o k e n
p ip e . T h e c o u r t h e ld th a t a n y d ise a se d u e t o s u ch e x p o s u r e m ig h t
p r o p e r ly b e cla ss e d as a p e r s o n a l in ju r y b y a c c id e n t, c o m p e n s a b le
u n d e r th e la w o f t h a t S ta te .
Occupational disease.— T h e e le m e n t o f a c c id e n t as a c a u s e is n o t
in e v id e n c e in a ca se ( I n r e M a g g e le t , p , 2 7 4 ), d e c id e d b y th e S u p r e m e
C o u r t o f M a ssa ch u se tts , th e c la im a n t b e in g a c ig a r m a k e r w h o s u f
fe r e d f r o m n e u r o s is , c la im e d t o b e d u e t o th e e m p lo y m e n t. I n v ie w
o f m e d ic a l te s t im o n y t o th e e ffe c t th a t th e d ise a se w a s p r o b a b ly c a u s e d
b y a s t o o p in g p o s it io n a ssu m e d b y th e w o r k m a n , b u t n o t n e c e s s a r y t o
th e c o n d u c t o f h is w o r k , th e ca se w a s d is t in g u is h e d f r o m o n e o f t r u e
o c c u p a t io n a l d ise a se , a n d th e c la im d is a llo w e d .
A n in fla m e d c o n d it io n o f th e lin in g m e m b ra n e s o f th e n o s e a n d
m o u t h d u e t o d u s t in h a le d in h a n d lin g p u lv e r iz e d g r a in w a s c la s s e d
as a c o m p e n s a b le i n ju r y b y th e S u p r e m e C o u r t o f C a lif o r n ia ( H a r t
f o r d A c c id e n t & I n d e m n it y C o . v. I n d u s t r ia l C o m m is s io n , p . 2 3 9 ),
w o r k m e n 's
COMPENSATION.
31
COVERAGE
Em ploym ent status .— A c la im f o r c o m p e n s a tio n m a d e b y th e p r e s i
d e n t a n d p r in c ip a l s t o c k h o ld e r o f a lu m b e r c o m p a n y f o r in ju r ie s
r e c e iv e d w h ile h a n d lin g lu m b e r w a s d e n ie d b y th e C o u r t o f A p p e a ls
o f N e w Y o r k (B o w n e v . S . W . B o w n e C o ., p . 2 2 8 ), th e c o u r t s a y in g
th a t th e p r o v is io n s o f th e la w w e r e e v id e n t ly d ir e c t e d t o p e r s o n s o f
a d iffe r e n t sta tu s f r o m th a t in e v id e n c e f o r th e c la im a n t in th e ca se,
a n d th e d is t in c t io n w a s su ch a s s h o u ld n o t b e o b lit e r a te d . #A w if e e m
p lo y e d as c a s h ie r a n d b o o k k e e p e r in a s to r e o w n e d b y h e r h u s b a n d
w a s h e ld b y th e S u p r e m e C o u r t o f M a ssa c h u se tts n o t t o b e an
e m p lo y e e u n d e r th e a ct, s in c e a m a r r ie d w o m a n c a n n o t m a k e a c o n
t r a c t w it h h e r h u s b a n d ( I n r e H u m p h r e y , p . 2 2 9 ).
E lection .— S o m e d iffic u lty a tte n d e d th e a d ju d ic a t io n o f a ca se w h ic h
w a s b e f o r e th e S u p r e m e C o u r t o f A r iz o n a ( W o o d r u f f v. P r o d u c e r s ’ O il
C o ., p . 2 2 4 ), th e ca se c o m in g b e fo r e th e c o u r t a se cd n d tim e , w it h th e
r e s u lt th a t th e firs t d e c is io n w a s r e v e rse d . I n th e firs t p la c e th e c o u r t
d e n ie d t o th e p la in t iff e ln p lo y e e a n y r ig h t t o su e f o r d a m a g e s , d e c la r
i n g th a t h is o n ly r e c o u r s e w a s u n d e r th e c o m p e n s a tio n la w , w h ic h
h e w o u ld t h e r e fo r e h a v e n o in te re s t in h a v in g d e c la r e d u n c o n s t itu
t io n a l, a n d it r e fu s e d t o p a ss u p o n th e p o in t s o f u n c o n s t itu t io n a lit y
r a is e d b y h im . O n th e s e c o n d t r ia l it w a s d e c id e d th a t sin c e th e a ct
c a lls f o r e x p r e s s o r im p lie d e le c tio n b e fo r e it c a n b e c o m e a p p lic a b le ,
b u t e sta b lish e s a p r e s u m p t io n in f a v o r o f s u ch e le c tio n u n le ss an
e x p r e s s sta te m e n t in w r it in g is g iv e n n o t less th a n 30 d a y s p r i o r
t o th e a c c id e n t, th e a p p a r e n t c o n t r a d ic t io n m u st b e s o lv e d b y g i v in g
e ffe c t t o th e p a r a g r a p h o f p r e s u m a b ly la te r e n a c tm e n t, a n d sin c e 30
d a y s h a d n o t e la p s e d fr o m th e t im e o f e m p lo y m e n t th e c o m p e n s a tio n
a c t w o u ld n o t b e c o n s id e r e d t o g o v e r n .
T h e sta tu s o f m in o r s w a s in v o lv e d in t w o ca ses b e f o r e th e C o u r t o f
E r r o r s a n d A p p e a ls o f N e w J e r s e y , in o n e o f w h ic h ( B r o s t v.
W h it a ll-T a t u m C o ., p . 2 2 6 ) th e fa t h e r w a s h e ld t o b e d u ly n o t ifie d
o f th e s o n ’s e x c lu s io n f r o m th e b e n e fits o f th e c o m p e n s a tio n a c t b y
a p r in t e d n o t ic e a p p e a r in g o n th e b o y ’s p a y e n v e lo p e . T h e c o m p a n y
w a s t h e r e fo r e n o t a llo w e d t o p le a d its lia b ilit y u n d e r th e c o m p e n s a
t io n la w as a b a r t o a su it f o r d a m a g e s . I n th e s e c o n d ca se ( Y o u n g v.
S t e r lin g L e a th e r W o r k s , p . 2 2 6 ), th e p r o v is io n m a k in g th e la w a p p li
c a b le t o m in o r s in th e a b se n ce o f a w r itte n sta te m e n t t o th e c o n t r a r y ,
w h ic h , in th e ca se o f m in o r e m p lo y e e s , m u s t b e g iv e n b y o r t o th e
p a r e n t o r g u a r d ia n , w a s c la im e d t o d e p r iv e m in o r s o f th e ir r ig h t o f
e le c tio n , a n d so o f t h e ir p r o p e r t y r ig h ts . T h e c o u r t h e ld th a t th e
e ffe ct o f th e la w w a s e x a c t ly t o th e c o n t r a r y , b e in g t o s a fe g u a r d th e
m in o r ’s in te re s t a n d p r o t e c t h im a g a in s t a cts o f im m a tu r e ju d g m e n t ,
as th e le g is la tu r e h a d th e p o w e r t o d o .
Place o f em ploym ent .— T h e la w o f N e w H a m p s h ir e is a p p lic a b le
t o w o r k in s h o p s , m ills , fa c t o r ie s , e tc ., e m p lo y in g fiv e o r m o r e p e r
32
REVIEW OF DECISIONS OF COURTS AFFECTING LABOR.
son s. I t w a s h e ld ( K i n g v. B e r lin M ills C o ., p . 2 3 0 ) n o t t o c o v e r
th e ca se o f a w o r k m a n e r e c t in g a c a r r ie r f o r p u lp w o o d a t a d is ta n c e
o f a b o u t a m ile f r o m th e m ill o f th e e m p lo y e r , t h o u g h e n g a g e d a t
th e tim e w it h fiv e o r m o r e o t h e r m e n . S o a ls o th e S u p r e m e C o u r t
o f K a n s a s (H ic k s v. S w i f t & C o ., p . 2 5 8 ) r e v e rs e d a n a w a r d in b e h a lf
o f a d r iv e r d e liv e r in g m e a t a t a d is ta n c e fr o m th e e m p lo y e r ’s p a c k in g
h o u se , s in c e th e a c c id e n t d id n o t o c c u r o n , in , o r a b o u t a n y o f th e
c o m p a n y ’s .e sta b lis h m e n ts.
Casual em ploym ent .— T h e p r o b le m o f a w o r k m a n e m p lo y e d f o r
th e o d d jo b , o r n o t in th e r e g u la r lin e o f th e e m p lo y e r ’s b u sin e ss,
re m a in s u n s o lv e d . T h e la w s o f a m a jo r it y o f th e S ta te s e x c lu d e th e
s o -c a lle d ca su a l e m p lo y e e fr o m th e b e n e fits o f c o m ’"
':ion , t h o u g h
th e d e fin itio n s a re n o t u n ifo r m . T h e c o u r ts , o i 6 w x s e , ^ n o t in i
tia te a c tio n , b u t th e re is a c o n s id e r a b le d iv e r s it y in th e d e fin itio n s
fo r m u la t e d b y th e m , w h e r e th is d u t y d e v o lv e s u p o n th e m . W h e t h e r
th e d is ju n c t iv e “ o r ” o r th e c o n ju n c t iv e “ a n d ” is u se d in d e s c r ib in g
th e e m p lo y e e s u n d e r c o n s id e r a t io n is s ig n ific a n t, s o m e la w s r a y in g
“ ca su a l a n d n o t in th e r e g u la r lin e o f th e e
’ ^e
o th e r s u se th e w o r d a o r ” in ste a d . I n a ca^o p a s s e d
^ y th e
S u p r e m e C o u r t o f M in n e s o ta (S t a t e e x re l. M e n a b ^ r v. D is t r ic t
C o u r t, p . 2 2 9 ), th e d r iv e r o f a s p r in k le r c a r t w a s r e q u e ste d b y a
te a m ste r d e liv e r in g c o a l t o a ssist in e x t r ic a t in g h im f r o m a m u d h o le . W h ile r e n d e r in g th is a ssista n ce th e d r iv e r r e c e iv e d a n in ju r y ,
a n d m a d e c la im o f c o m p e n s a t io n a g a in s t th e c o a l d e a le r, w h ic h th e
c o u r t a llo w e d , sin c e , t h o u g h th e e m p lo y m e n t w a s c a s u a l in th e
o r d in a r y sen se, it w a s in th e u su a l c o u r s e o f th e d e a le r ’s b u sin e ss.
O n th e o th e r h a n d , a w o r k m a n e n g a g e d in p la s t e r in g a r o o m b e in g
e r e c te d as a n a d d it io n t o a b r e w in g e s ta b lis h m e n t w a s d e n ie d th e
b e n e fits o f th e I llin o is s ta tu te o n th e g r o u n d th a t e m p lo y m e n t f o r
th re e o r fo u r d a y s w a s c a su a l a n d n o t c o n t e m p la t e d f o r in c lu s io n in
th e e n a c tm e n t o f th e la w (A u r o r a B r e w in g C o . v . I n d u s t r ia l B o a r d ,
p . 2 1 0 ).
A d e n ia l o f th e b e n e fits w a s th e r e s u lt o f a c o n s id e r a t io n b y th e
S u p r e m e C o u r t o f P e n n s y lv a n ia o f a ca se (M a r s h v. G r o n e r , p . 2 3 0 )
in w h ic h a r e s id e n c e w a s b e in g r e m o d e le d , a p la s te r e r e m p lo y e d in
th e w o r k r e c e iv in g in ju r y . T h e e m p lo y e r w a s h e ld n o t t o b e e n g a g e d
in b u sin e ss in t h is u n d e r t a k in g , s o th a t n o r e s p o n s ib ilit y f o r in ju r y
t o th e w o r k m a n c o u ld b e p r e d ic a t e d o n th e e x is tin g fa c ts . A d iff e r
e n t sta tu s a p p e a r e d in a ca se p a s s e d u p o n b y a n a p p e lla te c o u r t o f
C a lif o r n ia (M ille r & L u x ( I n c .) v. I n d u s t r ia l A c c id e n t C o m m is s io n ,
p . 2 1 1 ), w h e r e it a p p e a r e d th a t b u ild in g o p e r a t io n s w e r e a p a r t o f
th e r e g u la r b u sin e ss o f a c o m p a n y o w n in g a r a n c h , so th a t a c a r
p e n te r in th e ir e m p lo y m e n t w a s e n title d to . th e b e n e fits o f th e a ct.
T h e d e fe n s e th a t fa r m e m p lo y m e n ts a re e x c lu d e d w a s n o t a llo w e d ,
a n d th e c o m m is s io n ’s a w a r d w a s a p p r o v e d . A n o t h e r ca se i n v o lv in g
W O R K M E N S CO M PENSATION.
33
th e p r in c ip le o f ca su a l e m p lo y m e n t is d is c u s s e d u n d e r th e s u c c e e d in g
h e a d in g (M c L a u g h lin ca se, p . 2 2 7 ).
Hazardous employments .— T h e lim it a t io n o f th e a cts t o cla sses o f
e m p lo y m e n t d e s ig n a te d as h a z a r d o u s r e n d e r s n e ce s s a r y a d ju d ic a t io n s
as to th e m e a n in g o f th is te r m a n d a lso as t o h o w f a r a n in c id e n t o f
th e p r in c ip a l e m p lo y m e n t is t o b e a ffe c te d b y th e c h a r a c te r o f th a t
e m p lo y m e n t. T h e C o u r t o f A p p e a ls o f N e w Y o r k (D o s e v. M o e h le
L it h o g r a p h ic C o ., p . 2 3 3 ) a ffirm ed a n a w a r d m a d e b y th e in d u s t r ia l
c o m m is s io n o f th e S ta te in f a v o r o f a b u ild in g la b o r e r w h o w a s
e n g a g e d in r e p a ir in g th e b u ild in g u sed b y th e c o m p a n y , t h o u g h th e
a jjp e lla te d iv is io n o f th e su p r e m e c o u r t h a d d e n ie d th e r ig h t . T h e
c o m p a n y ^ £ -£ v f?p ga ged in a s o -c a lle d h a z a r d o u s e m p lo y m e n t, a n d
u n d e r t J ^ d e i ^ W G A o f “ e m p lo y e e ” i n th e a m e n d e d N e w Y o r k la w
b e n e fits w e r e a v a ila b le to e m p lo y e e s o f th e c o m p a n y in c o n n e c t io n
w it h its b u sin e ss, ev e n t h o u g h n o t e m p lo y e d in th e m a in lin e o f its
in d u s t r y . I t is c le a r th a t th is d iffe r s fr o m th e d o c t r in e a n n o u n c e d
in th e B a r g e y ca se (B u i. 22 4 , p . 2 7 0 ), w h e re s im ila r e m p lo y m e n t
w i[77 r
•:v>[t])fulin e o f th e e m p lo y e r ’s b u sin e ss— a r u le f o l
io
nil? . x Jl U^-is i. i\0^ B rew in g C o . ca se, n o te d u n d e r th e p r e v io u s
h e a d in g . T h e N e w Y o r k c o u r t p o in t e d o u t th a t th e c o n d u c t o f th e
b u sin e ss n e ce ssita te d p r o p e r b u ild in g s , a n d th a t r e p a ir w o r k w a s so
e ss e n tia l th e re to th a t it c o u ld p r o p e r ly b e c a lle d p a r t o f th e u n d e r
t a k in g .
T h e sa m e c o u r t fo u n d it n e ce ssa ry , h o w e v e r , t o d is t in g u is h b e tw e e n
th e g e n e r a l b u sin e ss o f a n e m p lo y e r a n d th e d u tie s o f a s p e c ific em^
p lo y e e in a ca se (G la t z l v. S t u m p p , p . 2 3 5 ), in w h ic h a flo r is t, w h o s e
b u sin e ss w a s n o t h a z a r d o u s u n d e r th e a ct, e m p lo y e d a d r iv e r , th is
s p e c ific e m p lo y m e n t b e in g c la ss e d * a s o n e o f th e h a z a r d o u s o c c u p a
tio n s . N o t w it h s t a n d in g th is , a d r iv e r w h o w e n t so fa r as t o u n d e r
ta k e t o a r r a n g e a w in d o w b o x f o r w h ic h flo w e r s w e r e b e in g d e liv
e r e d , w a s h e ld t o h a v e d e p a r te d fr o m h is h a z a r d o u s e m p lo y m e n t as
d r iv e r in s o d o in g , a n d n o t t o b e w it h in th e p r o t e c t io n o f th e la w .
A n o t h e r ca se p a s s e d u p o n b y th is c o u r t in v o lv e d id e n t ic a l p r in c ip le s ,
a sa lesm a n in a n o n h a z a r d o u s b u sin e ss h a v in g b e e n fa t a lly in ju r e d
w h ile o p e r a t in g a m o to r c y c le , i. e., a v e h ic le p r o p e lle d b y g a s o lin e
o r o th e r p ow rer, a n d b y r e a s o n o f su ch s p e c ific a ct b r in g in g h im s e lf
w it h in th e te r m s o f th e la w . T h e c la im th a t th e e m p lo y e r w a s n o t
e n g a g e d in th e b u sin e ss o f o p e r a t in g m o to r c y c le s f o r g a in w a s a d
m itte d , b u t sin ce h e w a s e n g a g e d in a b u sin e ss f o r g a in , a n d in th a t
b u sin e ss m a d e u se o f m o to r c y c le s , th is w a s h e ld t o b r in g h im w ith in
th e a ct. ( M u lf o r d v. A . S . P e t t it & S o n s ( I n c . ) , p . 2 3 6 .)
T h e N e w Y o r k la w cla sses s to r a g e as o n e o f th e h a z a r d o u s o c c u
p a t io n s t o w h ic h it a p p lie s , b u t th e a p p e lla te d iv is io n o f th e s u p r e m e
c o u r t h e ld ( I n re R o b e r t o , p . 2 3 7 ) th a t th e s t o r in g o f c o a l b y a la r g e
64919°— IS— Bull. 246-------3
34
REVIEW OF DECISIONS OF COURTS AFFECTING LABOR.
r e t a il d e a le r w a s n o t su ch s t o r a g e as th e la w c o n t e m p la t e s ; s o a ls o in
a r e ta il e s ta b lis h m e n t, w h e re an e m p lo y e r w a s in ju r e d w h ile m o v in g
th e g o o d s t e m p o r a r ily s to r e d in th e b a se m e n t. (W a ls h v. F . W .
W o o lw o r t h C o ., p . 2 8 7 .) T h e c o n t r a r y v ie w w a s ta k e n b y th e S u
p r e m e C o u r t o f I llin o is (F r ie b e l v. C h ic a g o C it y R y . C o ., p . — ) , in
w h ic h it w a s h e ld th a t w h e r e a fu r n it u r e c o m p a n y m a in ta in e d a
w a re h o u s e f o r th e s t o r a g e o f its fu r n it u r e , it w a s o p e r a t in g a w a r e
h o u se w it h in th e m e a n in g o f th e act.
T h e lo a d in g a n d u n lo a d in g o f g o o d s in t r a n s p o r t a t io n is c a lle d
h a z a r d o u s b y th e N e w Y o r k la w , a n d a n t h r a x c o n t r a c te d t h r o u g h an
a b r a s io n o f th e s k in r e c e iv e d w h ile h a n d lin g h id e s w a s h e ld c o m
p e n s a b le as a n a c c id e n t a l in ju r y in a n in c lu d e d e m p lo y m e n t . (H ie r s
v. J o h n A . H a ll & C o ., p . 2 3 8 .)
A d m it t in g th e w o r k o f b la s t in g o u t s tu m p s o n a h ig h w a y t o b e
h a z a r d o u s , th e S u p r e m e C o u r t o f I llin o is (M c L a u g h lin v. I n d u s t r ia l
B o a r d , p . 2 2 7 ) d e n ie d b e n e fits in th e ca se o f a w o r k m a n k ille d w h ile
so e m p lo y e d , o n th e g r o u n d th a t su ch w o r k w a s m e r e ly c a s u a l o r
in c id e n ta l. T h u s , t h o u g h th e in ju r e d m a n w a s a r e g u la r e m p lo y e e in
r o a d b u ild in g , th e fa c t t h a t b la s t in g w a s n o t r e g a r d e d as a r e g u la r
p a r t o f th a t w o r k d e b a r r e d h im fr o m th e b e n e fits o f th e la w .
Farm labor .— T h e c o m m o n e x c lu s io n o f a g r ic u ltu r a l, h o r t ic u lt u r a l,
e tc., e m p lo y m e n ts w a s h e ld b y th e a p p e lla te c o u r t o f I n d ia n a n o t t o
b e a p p lic a b le in th e ca se o f a w o r k m a n e m p lo y e d a b o u t a t h r a s h in g
m a c h in e th a t w e n t a b o u t f r o m fa r m t o fa r m { I n r e B o y e r , p . 2 3 3 ) ;
s o a lso in th e ca se o f a w o r k m a n o p e r a t in g a n e n s ila g e c u t t e r p r o
p e lle d b y a g a s o lin e e n g in e (R a n e y v . S ta te I n d u s t r ia l C o m m is s io n ,
p . 2 3 5 ) , in w h ic h ca se th e S u p r e m e C o u r t o f O r e g o n c la s s e d th is w o r k
as th e o p e r a t io n o f a fe e d m ill, w h ic h is d e s ig n a te d a s o n e o f th e h a z
a r d o u s o c c u p a t io n s u n d e r th e la w . S u c h a d e c is io n , h o w e v e r , is n o
lo n g e r p o s s ib le , sin ce a n e x p lic it e x e m p t io n o f su ch w o r k o n fa r m s is
m a d e b y an a m e n d m e n t e n a c te d in 1917. T h e ja n it o r o f a b u ild in g
in ju r e d w h ile p r u n in g a tre e w a s h e ld t o b e e n g a g e d in h o r t ic u lt u r a l
la b o r , a n d an a w a r d o f th e C a lif o r n ia c o m m is s io n in h is f a v o r w a s
o n th a t g r o u n d r e v e rse d . (K r a m e r v. I n d u s t r ia l A c c id e n t C o m m is
s io n , p . 2 3 9 .)
Public em ployees .— W h il e p u b lic e m p lo y e e s a re c o m m o n ly in c lu d e d
u n d e r th e te r m s o f th e v a r io u s S ta te la w s , th e p h r a s e o lo g y is o ft e n
su ch as t o d e b a r th e m o f th e ir p r e s u m p t iv e r ig h t s . T h u s th e S u p r e m e
C o u r t o f K a n s a s d e n ie d th e r ig h t o f a w o r k m a n e n g a g e d in h a u lin g
g r a v e l f o r u se o n th e c o u n t y r o a d , s in c e th e c o u n t y w a s n o t e n g a g e d
in th e w o r k o f r o a d c o n s t r u c t io n f o r th e p u r p o s e o f b u sin e ss, t r a d e ,
o r g a in . (G r a y v. B o a r d o f C o u n t y C o m m is s io n e r s , p . 2 8 0 .) A n o t h e r
ca se b e f o r e th e sa m e c o u r t (G r is w o ld v. C it y o f W ic h it a , p . 2 8 1 ) w a s
d e c id e d a d v e r s e ly t o th e c la im a n t, a p o lic e c a p t a in k ille d b y a b u r g la r
b e in g h e ld n o t t o b e a w o r k m a n . I t w a s a ls o p o in t e d o u t t h a t in th e
w o r k m e n 's
c o m p e n s a t io n .
35
e x e r c is e o f p u r e ly g o v e r n m e n t a l fu n c t io n s , n o t c a r r ie d o n f o r p rofit*
th e r e w a s n o p o s s ib ilit y o f p a s s in g o n th e b u r d e n e n ta ile d b y c o m
p e n s a tio n p a y m e n t s t o a c o n s u m in g p u b l i c ; b u t th e w e ig h t o f t h is
a r g u m e n t as a p p ly in g t o a g o v e r n m e n t a l c o r p o r a t io n s u s ta in e d e n
t ir e ly b y t a x a t io n is n o t e n t ir e ly o b v io u s .
T h e S u p r e m e C o u r t o f M a s s a c h u s e tts d e n ie d th e b e n e fits o f th e
c o m p e n s a t io n la w o f t h a t S ta te t o a te a c h e r o f a u t o m o b ile r e p a ir in g
in a n in d u s t r ia l s c h o o l c o n d u c t e d b y th e c it y o f L o w e ll, w h o m e t h is
d e a th as a c o n s e q u e n ce o f som e im p r o p e r a c tio n o f a b o y w h o m h e
w a s in s t r u c t in g , th e c la im b e in g r e je c t e d o n th e g r o u n d t h a t th e
in ju r e d m a n w a s n o t a la b o r e r , w o r k m a n , o r m e c h a n ic w it h in th e
m e a n in g o f th e la w . (L e s u e r v. C it y o f L o w e ll, p . 2 8 1 .) T h e sa m e
c o u r t h e ld , h o w e v e r , th a t a s c h o o lh o u s e ja n it o r w h o p e r s o n a lly d id
th e w o r k o f c le a n in g , h e a tin g , w a s h in g w in d o w s , etc., a b o u t th e
b u ild in g w a s a la b o r e r w it h in th e m e a n in g o f th e la w a n d n o t in th e
“ o fficia l s e r v ic e ,” t h o u g h a n a p p o in t e e u n d e r th e c iv il-s e r v ic e a ct.
A n a w a r d in h is b e h a lf w a s t h e r e fo r e a ffirm ed . ( W h it e v. C it y o f
B o s t o n , p . 2 8 0 .)
T h e W a s h in g t o n s ta tu te p r o v id e s c o m p e n s a tio n b e n e fits f o r p u b lic
e m p lo y e e s u n le ss S ta te la w o r c it y c h a r te r o r o r d in a n c e m a k e s o t h e r
p r o v is io n in th e ir b e h a lf. W o r k m e n in ju r e d w h ile e m p lo y e d in th e
lig h t in g d e p a r tm e n t o f th e c it y o f S e a ttle c la im e d d a m a g e s a t c o m
m o n la w f o r th e ir in ju r ie s , a n d a s e ttle m e n t w a s a g r e e d u p o n . T h e
c o n t e n t io n b e in g m a d e th a t th e c it y w a s u n d e r th e p r o v is io n s o f th e
c o m p e n s a t io n a c t, a s u b o r d in a te c o u r t t o o k th e g r o u n d th a t e ith e r
c o m m o n -la w d a m a g e s o r a p e n s io n p r o v id e d f o r b y th e c it y c h a r t e r
w e r e th e r e m e d ie s a v a ila b le . T h e su p r e m e c o u r t, h o w e v e r , h e ld t h a t
th e a lt e r n a tiv e p r o v is io n s o f th e c o m p e n s a tio n la w d id n o t r e v iv e
a n y c o m m o n -la w lia b ilit y as t o p u b lic e m p lo y e e s , b u t th a t w h e r e th e
c it y c h a r t e r m a k e s p r o v is io n th a t p r o v is io n m u st b e a c ce p te d . T h e
c o n s t it u t io n a lit y o f s u ch c o n s t r u c t io n w a s c h a lle n g e d , b u t th e c o u r t
o v e r r u le d th e c o n t e n t io n , e v e n t h o u g h d iffe r e n t r e c o v e r ie s m ig h t r e
s u lt in d iffe r e n t m u n ic ip a lit ie s , h o ld in g th a t w h e r e a s u b s ta n tia l p r o
v is io n w a s m a d e , th e lo c a l e n a c tm e n t w o u ld g o v e r n . (S t a t e e x rel.
F le t c h e r v. C a r r o ll, p . 2 7 8 .)
E xtraterritoriality .— T w o o p in io n s n o t e d u n d e r th is h e a d c o m e
f r o m th e S u p r e m e C o u r t o f C a lifo r n ia a n d in d ic a t e a r e s t r ic t io n t o
S ta te b o u n d a r ie s o f th e o p e r a t io n o f th e la w . I n N o r t h A la s k a
S a lm o n C o . v. P ills b u r y (p . 2 3 1 ), a w o r k m a n w a s in ju r e d in A la s k a
w h ile e m p lo y e d u n d e r a C a lifo r n ia c o n tr a c t. O n firs t c o n s id e r a t io n
th e c o u r t a ssu m e d ju r is d ic t io n , b u t o n a s e c o n d e x a m in a t io n o f th e
q u e s tio n a c o n t r a r y c o n c lu s io n w a s r e a c h e d , a d is t in c t io n b e in g d r a w n
b e tw e e n a c o m p u ls o r y la w , u n d e r w h ic h t h e p a r t ie s t o th e c o n t r a c t
h a v e n o v o ic e in th e m a tte r , a n d a n e le c t iv e la w , w h ic h t h e y m ig h t
v o lu n t a r ily a c c e p t as a p a r t o f th e c o n t r a c t. I n th e s e c o n d in s ta n c e
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REVIEW OF DECISIONS OF COURTS AFFECTING LABOR.
(K r u s e v. P ills b u r y , p . 2 3 2 ), th e c la im w a s o n a c c o u n t o f a m a n k ille d
o n a v e ssel in a p o r t in th e S ta te o f W a s h in g t o n . A c c e p t i n g th e v ie w
a s t o e x t r a t e r r it o r ia lit y p r e v io u s ly a d o p te d b y th e c o u r t , th e c o n t e n
t io n w a s s till m a d e t h a t b y a fic t io n o f a d m ir a lt y th e v e sse l w a s a
p a r t o f th e t e r r it o r y o f th e S ta te o f C a lif o r n ia , so th a t th e la w
w o u ld a p p ly . T h is c o n t e n t io n w a s r e je c t e d a n d th e a w a r d m a d e b y
th e c o m m is s io n w a s a n n u lle d .
Interstate commerce .— A q u e s tio n o f th e h ig h e s t d e g r e e o f im p o r
ta n ce a n d in te r e s t w a s p a s s e d u p o n b y th e S u p r e m e C o u r t o f th e
U n it e d S ta te s in its c o n s id e r a t io n o f d e c is io n s m a d e b y th e N e w
Y o r k c o u r ts in fa v o r o f p e r s o n s e m p lo y e d in in te rs ta te c o m m e r c e ,
b u t in ju r e d w it h o u t th e n e g lig e n c e o f th e e m p lo y e r . T h e s e c o u r t s
h a d h e ld th a t th e F e d e r a l sta tu te r e la t in g t o e m p lo y e r s ’ lia b ilit y
lim it e d it s e lf to ca ses in w h ic h in ju r y w a s d u e t o n e g lig e n c e , a n d th e
S ta te m ig h t fin d a n u n o c c u p ie d fie ld in w h ic h it c o u ld a c t a n d f u r
n ish a r e m e d y f o r in ju r ie s d u e m e r e ly t o th e h a z a r d s o f e m p lo y m e n t
w it h o u t r e g a r d t o n e g lig e n c e . T h is th e S u p r e m e C o u r t d e n ie d (N e w
Y o r k C e n tr a l R . C o . v. W in fie ld , p . 2 6 0 ), th e c o n c lu s io n b e in g r e a c h e d
th a t th e F e d e r a l a c t u n d e r t o o k t o d e fin e th e f u ll s c o p e o f th e c o m
m o n c a r r ie r ’s lia b ilit y w h e n it e n a c te d a la w b a s in g t h a t lia b ilit y o n
n e g lig e n c e , a n d d e c la r e d th e a ct t o b e b o t h c o m p r e h e n s iv e a n d e x c lu
siv e , t w o ju s t ic e s d is s e n tin g .
T h e N e w J e r s e y c o u r t s h a d ta k e n th e sa m e v ie w as th e N e w Y o r k
c o u r ts , a n d in E r ie R . C o . v. W in fie ld (p . 2 6 5 ) th e S u p r e m e C o u r t
a n n o u n c e d its r e v e r s a l o f a d e c is io n s u s ta in in g a n a w a r d in b e h a lf
o f a c o m p e n s a tio n c la im a n t. A n a d d e d p o in t c o n s id e r e d in th e N e w
J e r s e y ca se w a s as t o th e n a tu r e o f th e in ju r e d m a n ’s e m p lo y m e n t,
h e h a v in g l e f t h is e n g in e , th e in ju r y o c c u r r in g w h ile h e w a s le a v in g
th e y a r d a ft e r c o m p le t in g h is d a y ’s w o r k . S in c e h e h a d b e e n
e n g a g e d in in te r s ta te c o m m e r c e d u r in g a t le a s t a p o r t io n o f h is
e m p lo y m e n t t h r o u g h th e d a y , it w a s h e ld th a t in le a v in g th e y a r d h e
w a s s t ill e m p lo y e d in c o m m e r c e o f th e sa m e n a tu r e , s in c e th e t r ip
t h r o u g h th e y a r d w a s a n e c e s s a r y in c id e n t o f h is d a y ’s w o r k . I t
w a s a lso h e ld th a t s in c e th e F e d e r a l la w w a s d o m in a n t , n o p r e s u m p
t io n o f e le c tio n t o b e g o v e r n e d b y th e S ta te la w c o u ld b e im p u t e d
o r a llo w e d . F o ll o w i n g th e d e c is io n in t h is ca se, th e C o u r t o f E r r o r s
a n d A p p e a ls o f N e w J e r s e y r e v e r s e d a d e c is io n o f th e S u p r e m e C o u r t
o f th a t S ta te , w h ic h h a d a ffirm ed a n a w a r d in a ca se in v o lv in g n o
n e g lig e n c e o n th e p a r t o f th e e m p lo y e r , s t a t in g th a t th e S ta te c o u r ts
a re b o u n d b y th e d e c is io n s o f th e S u p r e m e C o u r t o f th e U n it e d
S ta te s (R o u n s a v ille v. C e n t r a l R . R . o f N e w J e r s e y , p . 2 6 7 ).
T h e d iffic u lty o f d e c id in g b e tw e e n S ta te a n d F e d e r a l le g is la t io n
is in n o w is e m in ifie d b y th e e n a c tm e n t o f c o m p e n s a t io n la w s in lie u
o f lia b ilit y sta tu te s, a n d th e q u e s tio n o f w h a t e m p lo y m e n t s s h a ll b e
c la s s e d as in te r s ta te c o n tin u e s t o a ffo r d d iffic u lty . T h e S u p r e m e
W ORKM EN *S COMPENSATION.
37
C o u r t o f I llin o is a ffirm ed an a w a r d m a d e b y th e S ta te b o a r d in a
ca se (J a c k s o n v. I n d u s t r ia l B o a r d , p . 2 5 9 ), in w h ic h a w o r k m a n
e m p lo y e d in p a in t in g b r id g e s , to w e r s , e tc., h a d b e e n k ille d a n d c o m
p e n s a tio n c la im e d in h is b e h a lf. A n a c t io n h a d b e e n b r o u g h t u n d e r
th e F e d e r a l lia b ilit y sta tu te, b u t w a s d e m u r r e d t o 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 n o t e n g a g e d in in te rs ta te com m erce.* T h e c o u r t
su sta in e d th is , a n d a n a w a r d u n d e r th e c o m p e n s a tio n la w fo llo w e d ,
th e su p r e m e c o u r t d e c la r in g th a t n o r ig h t t o c o m p e n s a tio n h a d b e e n
lo s t b y th e e le c t io n t o su e u n d e r th e lia b ilit y a ct. T h e d e c is io n in th e
f o r e g o i n g ca se th a t th e e m p lo y m e n t w a s n o t in in te rs ta te c o m m e r c e
c a n h a r d ly b e r e g a r d e d as in h a r m o n y w it h th e fin d in g o f th e C o u r t
o f A p p e a ls o f N e w Y o r k th a t a la b o r e r in c u r r in g in ju r y w h ile
m o w in g w e e d s a n d g r a s s a lo n g th e r ig h t o f w a y w a s e n g a g e d in
in te rs ta te c o m m e r c e , s in c e h is “ w o r k c o n t r ib u t e d t o th e s a fe t y a n d
in t e g r it y o f th e r a ilr o a d ,” w h ic h m u st c e r t a in ly b e a d m itte d o f th e
w o r k o f a p a in t e r o f b r id g e s , s w itc h to w e r s , a n d th e lik e . I n th e
N e w Y o r k ca se (P la s s v. C e n tr a l N e w E n g la n d R . C o ., p . 2 6 7 ), a n
a w a r d a ffirm ed b y th e s u p r e m e c o u r t o f th e S ta te w a s r e v e r s e d o n
th e g r o u n d th a t th e S u p r e m e C o u r t o f th e U n it e d S ta te s h a d p la c e d
in te r s ta te e m p lo y e e s e n t ir e ly o u ts id e th e s c o p e o f th e S ta te la w .
T h e s u p r e m e c o u r t o f th e S ta te , a p p e lla te d iv is io n , a lso r u le d a g a in s t
th e c o m p e n s a tio n c la im o f a p lu m b e r w h o s e d u t y it w a s t o l o o k a ft e r
the* p ip e s a n d p lu m b in g e q u ip m e n t a b o u t th e s ta tio n s o f th e r o a d
e m p lo y in g h im , th e c o u r t h o ld in g t h a t th is w a s a m a in te n a n c e o f
th e w a y s a n d in s tr u m e n ta litie s o f in te r s ta te c o m m e r c e (V o llm e r s
v. N e w Y o r k C e n tr a l R . C o ., p . 2 6 8 ). W h e r e , h o w e v e r , a s p u r
t r a c k f o r p r iv a t e u se w a s th e p la c e o f in ju r y o f a r a ilr o a d la b o r e r ,
n o in te rs ta te tra ffic b e in g m o v e d th e r e o n a t th e tim e , i t w a s h e ld
th a t th e in ju r y w a s o f a n in tr a s ta te n a tu r e , so th a t th e c o m p e n s a tio n
la w c o u ld a p p ly ( I n re L ib e r t i, p . 2 7 0 ) ; a n d w h e re a s w itc h m a n w a s
k ille d w h ile a s s is tin g in th e m o v e m e n t o f ca rs o n t o a s to r a g e tr a c k ,
t o b e ic e d f o r th e s h ip m e n t o f m e a ts, it w a s h e ld b y th e S u p r e m e
C o u r t .o f I llin o is (C h ic a g o J u n c t io n R . C o . v. I n d u s t r ia l B o a r d , p .
2 7 0 ) th a t e v e n t h o u g h se v e r a l c a rs s u b s e q u e n tly w e r e lo a d e d f o r
in te r s ta te s h ip m e n t th e y h a d n o t a c q u ir e d th e in te rs ta te q u a lit y
at th e tim e o f th e in ju r y , a n d a c o m p e n s a tio n a w a r d w a s a ffirm ed .
A dm iralty .— T h e c o u r ts o f N e w Y o r k (S o u t h e r n P a c ific C o . v.
J e n se n , p . 2 0 3 ), a n d C a lif o r n ia (N o r t h P a c ific S te a m s h ip C o . v. I n
d u s t r ia l A c c id e n t C o m m is s io n , 163 P a c . 199— ca se n o t r e p r o d u c e d ),
h a d ta k e n th e v ie w t h a t lo n g s h o r e m e n a n d s te v e d o r e s m ig h t c h o o s e
• th e b e n e fits o f th e c o m p e n s a tio n la w s o f th e ir r e s p e c tiv e S ta te s in
lie u o f p r o c e e d in g in a d m ir a lt y , a n d a n u m b e r o f a w a r d s w e r e
m a d e a n d a p p r o v e d in a c c o r d a n c e w it h th e se v ie w s. T h e S u p r e m e
C o u r t o f th e U n it e d S ta te s, h o w e v e r , in th e J e n s e n ca se, d e c la r e d
th e r e m e d y o ffe r e d b y th e S ta te c o m p e n s a t io n la w s in c o m p a t ib le
38
EE VIEW OF DECISIONS OF COURTS AFFECTING LABOR,
w it h th e t h e o r y o f u n ifo r m it y c o n te m p la te d b y th e C o n s t it u t io n in
m a tte r s o f m a r it im e c o m m e r c e ; so th a t, a lt h o u g h th e re w a s b y F e d
e r a l la w a s a v in g t o s u ito rs o f th e c o m m o n -la w r e m e d y , w h e r e c o m
p e te n t, in lie u o f a d m ir a lt y p r o c e e d in g s , th e r e m e d y p r o p o s e d b y
th e c o m p e n s a t io n sta tu tes, w h o lly u n k n o w n t o th e c o m m o n la w ,
c o u ld n o t unpLer e x is t in g la w b e r e g a r d e d as a n a lte rn a tiv e . A lik e
c o n c lu s io n w a s a n n o u n c e d b y th e sa m e c o u r t in th e ca se o f C ly d e
S te a m s h ip C o . v. W a lk e r (p . 2 0 3 ), th e p r in c ip le s in v o lv e d b e in g th e
sa m e. I t is o f in te re s t t o n o te thafc C o n g r e s s h a s m e t th e s itu a tio n
b y r e s e r v in g t o s u ito r s n o t o n ly th e c o m m o n -la w r ig h t s p r e v io u s ly
e n jo y e d b y th e m , b u t p e r m it t in g th e m a lso t o m a k e c la im u n d e r th e
c o m p e n s a tio n la w s o f t b e ir S ta te s o f r e s id e n c e i f t h e y so e le ct.
ARISING dUT OF AND IN COURSE OF EMPLOYMENT.
T h e lim it a t io n im p lie d in th e p h r a s e “ a r is in g o u t o f a n d in th e
c o u r s e o f th e e m p lo y m e n t ,55 is o f th e essen ce o f th e r ig h t t o c o m p e n s a
t io n u n d e r p r a c t ic a lly e v e r y la w . W a s h in g t o n p r o v id e s b y its la w
a k in d o f in s u r a n c e c o v e r in g th e e m p lo y e e w h ile a t h is w o r k , c o m
p e n s a t io n b e in g “ a k in d o f p e n s io n in e x c h a n g e f o r a b s o lu te in s u r
a n c e o n h is m a s te r ’s p r e m is e s .5’ T h e O h io s ta tu te d o e s n o t c o n t a in
th e w o r d s “ a r is in g o u t o f , ” b u t d e s p ite th is o m is s io n th e s u p r e m e
c o u r t o f th e S ta te h e ld (F a s s ig v. S ta te , p . 2 1 2 ), t h a t it w a s th e p la in
in t e n t io n o f th e a c t n o t t o c o v e r a n y in ju r y w h ic h h a d its ca u se o u t
s id e o f a n d d is c o n n e c te d w it h th e e m p lo y m e n t. I n m o s t a cts, h o w
e v e r , th e t w o te r m s a re u se d c o n ju n c t iv e ly a n d n o q u e s tio n c a n a rise
a s t o th e n e ce s s ity o f b o t h tests.
T h e S u p r e m e C o u r t o f I llin o is (C h ic a g o E y s . C o . v. I n d u s t r ia l
B o a r d , p . 2 1 5 ) o v e r r u le d th e c o n t e n t io n th a t n e g lig e n t c o n d u c t o n th e
p a r t o f th e in ju r e d m a n w o u ld ta k e h im o u t o f th e e m p lo y m e n t in
w h ic h h e w a s e n g a g e d , n o r w o u ld th e a c c id e n t b e f o r th is r e a s o n r e
g a r d e d as o u t o f th e c o u r s e o f e m p lo y m e n t. R e fe r e n c e m ig h t h e r e
b e m a d e t o th e M a g g e le t ca se (p . 2 7 4 ) p r e v io u s ly n o te d , w h e r e it w a s
h e ld t h a t th e n e u r o s is fr o m w h ic h th e c la im a n t s u ffe r e d d id n o t a r is e
o u t o f th e e m p lo y m e n t as a n e ce s s a r y in c id e n t t h e r e o f.
T h e e ffe c t o f n a t u r a l c o n d it io n s w a s in v o lv e d in a ca se th a t w a s
b e f o r e th e A p p e lla t e C o u r t o f I n d ia n a ( I n re H a r r a d e n , p . 2 5 0 ), in
w h ic h a fir e in s u r a n c e a g e n t s lip p e d u p o n th e i c y s id e w a lk w h ile
g o in g f r o m th e r a ilw a y s t a t io n to a h o t e l in a c it y t o w h ic h h e h a d
b e e n sen t o n b u sin e ss. C o m p e n s a t io n w a s a llo w e d o n th e g r o u n d
th a t th e c la im a n t w a s w h e r e h e w a s o n a c c o u n t o f h is e m p lo y m e n t ,
a n d th a t h is e x p o s u r e t o s u ch in c r e a s e d h a z a r d s g e n e r a lly w a s a c o n - .
se q u e n ce o f th e n a tu r e o f h is e m p lo y m e n t. T h e S u p r e m e C o u r t o f
M a s s a c h u s e tts t o o k th e o p p o s it e v ie w in q u ite a s im ila r ca se ( D o n a
h u e v. M a r y la n d C a s u a lt y C o ., p . 2 5 1 ) , w h e r e a s a le sm a n w a s r e t u r n
i n g f r o m a b u sin e ss in t e r v ie w to ta k e a car; a n d s lip p e d o n th e ice .
w o r k m e n 's
c o m p e n s a t io n .
39
T h e . c o u r t r e v e rs e d an a w a r d f o r c o m p e n s a tio n o n th e g r o u n d th a t th e
in ju r y w a s d u e t o a r is k c o m m o n to th e p u b lic , a n d n o t d u e t o h is
e m p lo y m e n t. A d iffe r e h t c o n d it io n e x is te d in a ca se b e fo r e th e
S u p r e m e C o u r t o f N e w Y o r k (R e d n e r v. H . C . F a b e r & S o n , p . 2 4 2 ),
in w h ic h a w o r k m a n s lip p e d o n th e ic e o n a s tre e t w h ic h s e p a r a te d
th e t w o p a r ts o f th e e m p lo y e r ’s fa c t o r y . T h e c o n t e n t io n th a t it
w a s s im p ly a street a c c id e n t w a s r e je c t e d , e v e n th o u g h th e stre e t
w a s a n a c tu a l h ig h w a y , s in c e its s itu a tio n w a s su ch th a t in g o in g fr o m
p a r t t o p a r t o f th e p la n t it w a s n e ce ssa ry t o c ro s s it.
T w o o th e r ca ses in w h ic h th e q u e s tio n w a s r a is e d as to th e e ffe cts
o f n a tu r a l c o n d it io n s w e r e p a sse d u p o n b y th e S u p r e m e C o u r t o f
M in n e s o ta . I n o n e (S t a t e e x rel. N e ls o n v. D is t r ic t C o u r t, p . 2 0 2 ),
a ja n it o r s u ffe r e d f r o m th e fr e e z in g o f a to e , th e u ltim a te r e s u lt b e in g
th e a m p u ta tio n o f h is le g , th e fr e e z in g t a k in g p la c e w h ile h e w a s
e n g a g e d in s h o v e lin g s n o w o n a v e r y c o ld d a y . T h e lo w e r c o u r t
d e n ie d th e c la im o n th e g r o u n d th a t w h ile th e in ju r y a rose o u t o f th e
e m p lo y m e n t, it w a s n o t a n a c c id e n t ; b u t as th e su p r e m e c o u r t h a d
r e a c h e d th e c o n c lu s io n in a n o th e r ca se th a t fr e e z in g is an a c c id e n t ,
th e o n ly q u e s tio n th a t r e m a in e d o n th is a p p e a l w a s as to w h e th e r
it a ro se o u t o f th e e m p lo y m e n t, w h ic h th e c o u r t h e ld to b e tr u e in th is
in sta n c e . A n o t h e r ca se d e c id e d th e sa m e d a y a ls o r e v e rs e d th e lo w e r
c o u r t , a n d a p p r o v e d th e c la im o f a w id o w f o r th e d e a th o f h e r h u s
b a n d , w h o h a d s u ffe r e d fr o m s u n s tro k e w h ile e m p lo y e d as a str e e t
la b o r e r (S t a t e e x rel. R a u v. D is t r ic t C o u r t , p . 2 0 2 ). T h e r e w a s a
c o n ju n c t io n o f e x tre m e c o n d it io n s o f e x p o s u r e t o h e a t a n d m o is tu r e ,
w h ic h le d th e c o u r t t o s a y t h a t th e re w a s & v io le n t in ju r y p r o d u c e d
b y a p o w e r n o t n a tu r a l.
T h e p r in c ip le in v o lv e d in th e R e d n e r ca se d iffe r s in n o r e s p e c t
f r o m th a t o f th e w o r k m a n g o in g fr o m o n e p a r t o f th e b u ild in g t o
a n o th e r t o a n s w e r a t e le p h o n e c a ll (H o lla n d -S t . L o u is S u g a r C o ., v.
S h r a lu k a , p . 2 4 0 ). H e r e th e A p p e lla t e C o u r t o f I n d ia n a a ffirm ed a n
a w a r d , e s p e c ia lly as th e w o r k m a n h a d b e e n s u m m o n e d b y a s u p e r io r ,
a n d m ig h t w e ll a ssu m e th a t th e a n s w e r in g o f th e t e le p h o n e p e r t a in e d
t o h is e m p lo y m e n t.
I t is g e n e r a lly h e ld th a t h o r s e p la y is so r e m o v e d fr o m th e d u tie s o f
w o r k m e n th a t in ju r ie s in th e c o u r s e o f it a re n o t c o m p e n s a b le , b u t th e
c o u r t la st m e n tio n e d a p p r o v e d an a w a r d in a ca se ( I n r e L o p e r ,
p . 2 4 5 ), in w h ic h a w o r k m a n w a s fa t a lly in ju r e d in h is a tte m p t t o je r k
a w a v f r o m th e n o z z le o f a c o m p r e s s e d a ir h o s e t u r n e d u p o n h im b y
a fe llo w -w o r k m a n , th e e v id e n c e in d ic a t in g t h a t th e in ju r e d m a n w a s
ot th e tim e a t t e n d in g t o h is d u tie s, a n d th a t th e e m p lo y e r a t o t h e r
tim e s h a d a c q u ie s c e d in th e p la y w h ic h in t h is in s ta n c e r e s u lte d
fa t a lly .
I n ju r y r e c e iv e d w h ile th e e m p lo y e e is e n g a g e d in a n a c t o u t s id e
th e lin e o f h is d u t y w o u ld o r d in a r ily r e m o v e h im f r o m th e o p e r a t io n
40
REVIEW OF DECISIONS OF COURTS AFFECTING LABOR.
o f th e a ct. T h u s th e S u p r e m e C o u r t o f I llin o is (E u g e n e D ie t z e n C o .
v. I n d u s t r ia l B o a r d , p . 2 5 1 ) r e v e r s e d a n a w a r d in th e ca se o f an
e m p lo y e e e n g a g e d in b u ffin g , w h o o p e n e d th e c o v e r n e a r a v e n t ila t in g
fa n f o r th e p u r p o s e o f r e c o v e r in g fr o m th e d u s t r e c e p t a c le a n a r t ic le
w h ic h h e h a d a c c id e n t a lly d r o p p e d t h e r e in ; s o in a M a s s a c h u s e tts
ca se ( I n re B o r in , p . 2 4 1 ), in w h ic h a w o r k m a n in a d y e h o u s e s o u g h t
t o o p e n w in d o w s th a t w e r e n a ile d d o w n , o b v io u s ly f o r th e p u r p o s e
o f p r e v e n t in g su ch o p e n in g , th e c o u r t h o ld in g th a t th e n a ilin g w a s
a p la in n o t ic e o f in te n t, a n d t h a t in v io la t in g su ch n o t ic e th e w o r k
m a n w a s e n g a g e d in a n u n d e r t a k in g o u ts id e o f h is d u tie s. W h e r e ,
h o w e v e r , th e e x tr a n e o u s u n d e r t a k in g is r e la te d t o a d u t y , th e in ju r y
m a y b e h e ld t o b e w it h in th e te r m s o f th e a ct, as in .the ca se o f a
b o ile r te n d e r w h o s e d u t y it w a s t o r e a d a stea m g a u g e , a n d w h ile
a tt e m p t in g t o d o so fo u n d h is wTa y o b s tr u c t e d b y so m e h e a v y b e a m s
a n d u n d e r t o o k t o r e m o v e th e m , s u ffe r in g in ju r y as a c o n s e q u e n ce
(M a n n in g v. P o m e r e n e , p . 2 4 7 ). T h e S u p r e m e C o u r t o f N e b r a s k a
h e ld in th is ca se th a t p a in a n d n a u sea w e r e su fficien t o b je c t iv e s y m p
to m s o f a n i n ju r y t o w a r r a n t it s c la s s ific a t io n as a n a c c id e n t.
W h e n th e in ju r y is d u e , n o t t o th e e m p lo y m e n t b u t t o th e p h y s ic a l
c o n d it io n o f th e w o r k m a n , it c a n n o t b 8 s a id t o a rise o u t o f th e e m
p lo y m e n t , e v e n t h o u g h o c c u r r in g in its co u rse . T h is is th e p r o
n o u n c e m e n t o f th e S u p r e m e C o u r t o f M ic h ig a n in a ca se ( V a n G o r d e r
v. P a c k a r d M o t o r C a r C o ., p . 2 4 4 ), in w h ic h a w o r k m a n w a s fa t a lly
i n ju r e d in a f a ll f r o m a s c a ffo ld a b o u t 6 fe e t fr o m th e flo o r , th e f a l l
b e in g d u e t o a n e p ile p t ic fit. T h e S u p r e m e C o u r t o f C a lif o r n ia
a n n o u n c e d a lik e c o n c lu s io n in a ca se o f p r a c t ic a lly id e n t ic a l c ir
c u m s ta n c e s n o t r e p r o d u c e d (B r o o k e r v. I n d u s t r ia l A c c id e n t C o m
m is s io n , 168 P a c . 1 2 6 ).
T h e p o in t o f tim e a t w h ic h th e sta tu s o f e m p lo y e e te r m in a te s w a s
t h e e ss e n tia l e le m e n t in a d e c is io n b y th e S u p r e m e C o u r t o f M a s s a
c h u se tts ( I n re O ’B r ie n , p . 2 4 4 ), in w h ic h a n e m p lo y e e f e l l f r o m a
s t a ir w a y w h ile le a v in g th e p la c e o f h is e m p lo y m e n t. T h e c o u r t r u le d
t h a t th e c ir c u m s ta n c e s w a r r a n t e d th e p r e s u m p t io n th a t s u ch a n a c c i
d e n t w a s a r e a s o n a b le p r o b a b ilit y , so th a t it c o u ld b e r e g a r d e d as
h a v in g o c c u r r e d in th e c o u r s e o f e m p lo y m e n t a n d as a r is k a n d h a z a r d
o f th e b u sin e ss. A n e x te n s io n o f th e sa m e d o c t r in e le d th e S u p r e m e
C o u r t o f C o n n e c tic u t t o a w a r d c o m p e n s a t io n in th e ca se o f a m a n
w h o w a s k ille d w h ile b e in g t r a n s p o r t e d fr o m th e p la c e o f h is w o r k
t o h is h o m e , t r a n s p o r t a t io n c h a r g e s b e in g p r o v id e d b y th e e m p lo y e r
in a d d it io n t o th e r e g u la r w a g e s , a n d a n a r r a n g e m e n t m a d e b y w h ic h
o n e o f th e e m p lo y e e s r e c e iv e d th e t r a n s p o r t a t io n m o n e y d ir e c t ly f r o m
th e e m p lo y e r s t o c a r r y th e m e n b a c k a n d f o r t h in h is a u t o m o b ile
(S w a n s o n v. L a t h a m & C rane., p . 2 4 9 ). T h e S u p r e m e C o u r t o f C a li
f o r n ia d e c id e d ( A t o l i a M in in g C o . v. I n d u s t r ia l A c c id e n t C o m m is
s io n , p . 2 4 6 ) t h a t a s h o tfir e r w h o l e f t th e m in e a ft e r la y in g th e fu s e s
W ORKM EN *S COMPENSATION.
41
a n d r e tu r n e d so m e 2 0 m in u te s la te r t o r e m e d y th e c o n d it io n s d u e
to th e s u p p o s e d fa ilu r e o f t w o c h a r g e s t o e x p lo d e w a s s t ill w it h in
th e e m p lo y m e n t w h e n h e w a s s h o t b y a w a tc h m a n o n h is r e tu r n f r o m
th is v is it o f in s p e c t io n . I n s p ite o f th e fa c t t h a t th e s h o o t in g w a s
u n ju s tifia b le a n d re ck le s s, it w a s s till h e ld t o b e w it h in th e s c o p e o f
th e w a t c h m a n ’s d u tie s , n o t b e in g a n in t e n t io n a l o r p r e m e d it a t e d
a ssa u lt, so th a t th e in ju r e d m a n h a d s u ffe r e d fr o m c o n d it io n s c r e a te d
b y h is e m p lo y e r , a n d th e in ju r y w a s an in c id e n t o f s u c h c o n d it io n s .
T h a t th e e m p lo y m e n t sta tu s d id n o t e x is t a t th e tim e o f th e in ju r y ,
o r r a th e r th a t th e in ju r y d id n o t a rise o u t o f th e e m p lo y m e n t, w a s
th e c o n c lu s io n o f th e S u p r e m e C o u r t o f N e w Y o r k in a ca se in
w h ic h a c o n t r a c t o r ’s e m p lo y e e w e n t t o a p a r t o f a b u ild in g d is t in c t
fr o m th e w o r k in g p la c e o f h is e m p lo y e r f o r th e p u r p o s e o f th e r e
e a t in g h is lu n c h (M a n o r v. P e n n in g t o n , p . 2 4 2 ). T h e A p p e lla t e
C o u r t o f I n d ia n a lik e w is e (I n la n d S te e l C o . v. L a m b e r t , p . 2 5 2 ),
h e ld th a t a s w itc h m a n w a s n o t in ju r e d in th e c o u r s e o f h is e m p lo y
m e n t w h e n , a ft e r h a v in g q u it w o r k , h e c h a n g e d h is w o r k in g c lo th e s
f o r street c lo th e s a n d s ta r te d to d e p o s it a tim e c a r d ; w h ile o n the
w a y h e a tte m p te d t o g o u p o n a m o v in g e n g in e ' th a t w o u ld c a r r y
h im t o h is d e s tin a tio n w it h o u t c o m p e llin g h im t o m a k e a d e t o u r
o n a c c o u n t o f a n e x c a v a t io n th a t in t e r r u p t e d h is u su a l w a lk . A n
a w a r d in h is f a v o r w a s r e v e rs e d , th e c o u r t s a y in g th a t th e a c t o f
a t t e m p t in g to b o a r d th e ca r w a s n o t w it h in th e d u tie s o f h is e m
p lo y m e n t , b u t w a s a n a c t o n ly f o r h is o w n c o n v e n ie n c e , c h a r a c t e r iz
in g it as an u n n e c e s s a ry a tte m p t t o d o a p e r ilo u s a ct, so th a t th e
in ju r y d id n o t a rise o u t o f th e e m p lo y m e n t. S o m e w h a t in c o n tr a s t
w it h th e fo r e g o i n g w a s th e a c tio n o f th e S u p r e m e C o u r t o f N e w
J e r s e y in h o ld in g (K o la s y n s k i v. K lie , p . 2 4 1 ), th a t a d o m e s tic
s e r v a n t fa t a lly in ju r e d w h ile l ig h t in g a fire w it h a lc o h o l in d is
o b e d ie n c e o f o r d e r s n o t to use k e r o se n e “ o r a n y t h in g lik e t h a t ,” w a s,
n o t w it h s t a n d in g , in ju r e d b y an a c c id e n t a r is in g o u t o f a n d in th e
co u r se o f e m p lo y m e n t.
T h e c ir cu m s ta n ce s u n d e r w h ic h th e in ju r y is r e c e iv e d m a y b e su ch
th a t w h e th e r o r n o t th e in ju r y c o m e s w it h in th e d e s c r ip t io n o f
th e p h r a s e u n d e r c o n s id e r a t io n c a n o n ly b e in fe r r e d . T h u s , w h e re
a c a r p e n te r w a s w o r k in g o n th e t o p o f a c a r u p o n w h ic h w e r e
ir o n fr a m e s , n e a r th e e n d o f a n u n in s u la te d liv e c a b le , a n d th e first
in fo r m a t io n as t o th e in ju r y w a s d e r iv e d b y s e e in g th e w o r k m a n
fa ll, th e S u p r e m e C o u r t o f I l l in o i s h e ld th a t th e r e w a s su fficien t
e v id e n c e o f a c c id e n ta l in ju r y a r is in g o u t o f a n d in c o u r s e o f e m
p lo y m e n t t o su sta in a n a w a r d , e v e n t h o u g h th e re c o u ld n o t b e an
a ctu a l d e m o n s tr a tio n o f a ll th a t t o o k p la c e (B lo o m in g t o n , D . & C .
R . C o . v. In d u s tr ia l B o a r d , p . 2 4 3 ). L ik e w is e fa v o r a b le t o th e c la im
a n t w a s a d e c is io n o f th e S u p r e m e C o u r t o f N e w Y o r k (C h lu d z in s k i
v . S t a n d a r d O il C o ., p . 2 4 8 ), in a ca se in w h ic h a w o r k m a n w a s
42
REVIEW OF DECISIONS OF COURTS AFFECTING LABOR.
b u r n e d t o d e a th b y h is fla n n e l s h ir t c a t c h in g fire in a lo c k e r r o o m in
w h ic h w a s a lig h t e d B u n s e n b u r n e r , th e in ju r e d m a n b e in g a lo n e in
th e r o o m a t th e tim e w h e n h e r e c e iv e d th e in ju r y . T h e S u p r e m e
C o u r t o f I llin o is h e ld th e p r e s u m p t io n t o b e in f a v o r o f th e c la im
m a d e in c o n n e c t io n w it h th e d e a th o f a n ig h t w a tc h m a n w h o w a s
a p p a r e n t ly a ssa u lte d w it h an ir o n p ip e b y s o m e u n k n o w n p e r s o n
( O h io B u ild in g S a f e t y V a u lt C o . v. I n d u s t r ia l B o a r d , p . 2 4 9 ).- T h e
c o u r t h e ld th a t th e n a tu r e o f h is e m p lo y m e n t m a d e h is a ssa u lt b y
tre sp a sse rs a p o s s ib ilit y , so th a t an in ju r y o f th is n a tu r e w o u ld b e
c la ss e d as a h a z a r d o f h is w o r k .
WILLFUL MISCONDUCT.
A d is t r ic t c o u r t o f a p p e a ls o f C a lifo r n ia h e ld (P a c ific C o a s t C a s
u a lt y C o . v. P ills b u r y , p . 2 9 2 ) th a t a m e s s e n g e r b o y w h o u n d e r t o o k to
o p e r a t e a fr e ig h t e le v a to r in v io la t io n o f s p e c ific o r d e r s n o t t o d o so,
n o t ic e to th a t e ffe ct a lso b e in g p o s te d , w a s e x c lu d e d f r o m th e b e n e fits
o f th e la w b e ca u se o f w il l f u l m is c o n d u c t. W i t h th is m a y b e n o t e d
th e a c tio n o f th e S u p r e m e C o u r t o f R h o d e I s la n d a ffir m in g a d e cre e
d e n y in g c o m p e n s a tio n w h e re it wTas c le a r th a t th e d e a th o f an e m
p lo y e e w a s d u e t o h is in t o x ic a t io n , th e c la im a n t ’s h u s b a n d b e in g
d r o w n e d w h ile a t t e m p t in g to c o m e a s h o r e f r o m a d r e d g e w h e r e h e
w a s e m p lo y e d as a wra tc h m a n , to se cu re an a d d it io n a l s u p p ly o f liq u o r
(C o llin s v. C o le , p . 2 6 9 ).
W h e r e th e e m p lo y e r is fo u n d g u ilt y o f s e r io u s a n d w il l f u l m is c o n
d u c t , th e la w o f M a ssa ch u se tts p e r m its a d o u b le a w a r d . I n R i le y v.
S t a n d a r d A c c id e n t I n s u r a n c e C o . (p . 2 8 6 ), th e s u p r e m e c o u r t o f th a t
S ta te r e v e r s e d a fin d in g o f s u ch a p e n a l a w a r d m a d e a g a in s t an e m
p lo y e r o n th e g r o u n d t h a t h e h a d m a in ta in e d a n e le v a t o r in su ch a
sta te o f d is r e p a ir as t o m a k e h im g u ilt y o f w il l f u l m is c o n d u c t. T h e
c o u r t h e ld th a t n e g lig e n c e , e v e n th o u g h g r o s s o r c u lp a b le , w ill n o t b e
c la s s e d as se rio u s a n d w il l f u l m is c o n d u c t u n d e r th e a ct, sin c e th e id e a
in v o lv e d is o n e r a th e r o f in t e n t io n a l w r o n g d o in g w it h a w7an to n a n d
r e ck le s s d is r e g a r d o f its p r o b a b le co n s e q u e n ce s . T h e O h io sta tu te
p r o c e e d s o n a d iffe r e n t p r in c ip le , a n d a llo w s a s u it f o r d a m a g e s
in s te a d o f an a c tio n u n d e r th e c o m p e n s a tio n la w w h e r e an e m p lo y e r
fa ils t o c o m p ly w it h a n y la w fu l r e q u ir e m e n t f o r th e w e lfa r e o f h is
e m p lo y e e s . A n a p p e lla t e c o u r t a ffirm ed a ju d g m e n t in a ca se ( A m e r i
ca n W o o d e n w a r e M f g . C o . v. S c h o r lin g , p . 2 8 6 ) in w h ic h th e su p r e m e
c o u r t fo u n d o n ly c o m m o n -la w n e g lig e n c e , a n d r e v e rs e d th e c o u r ts
b e lo w . T h e m a tte r o f f a i l in g t o c o m p ly w it h a la w fu l r e g u la t io n
w a s h e ld t o b e lim it e d u n d e r th e a c t t o d is o b e d ie n c e t o s p e c ific o r d e r s
o r r e q u ir e m e n ts o f th e in d u s t r ia l c o m m is s io n o f th e S ta te , o r d e fin ite
p r o v is io n s o f la w s a n d o r d in a n c e s ; so th a t th e m e re n e g le c t t o m a in
t a in a s a fe p la c e a lo n g lin e s o f c o m m o n -la w d e fin itio n s c o u ld n o t b e
r e g a r d e d as m a k in g th e e m p lo y e r lia b le in d a m a g e s in s te a d o f u n d e r
th e c o m p e n s a t io n la w .
w o r k m e n 's
COMPENSATION.
43
LIABILITY OF THIRD PARTIES.
I t is a c o m m o n p r o v is io n o f th e sta tu te s th a t w h e r e th e in ju r y
is d u e t o th e n e g lig e n c e o f a t h ir d p a r t y th e in ju r e d e m p lo y e e m a y
su e h im o r ta k e h is c o m p e n s a t io n f r o m h is e m p lo y e r at h is o w n
o p t io n . I n th e la t t e r ca se th e e m p lo y e r h a s r e c o u r s e a g a in s t th e
t h ir d p e r s o n f o r r e c o u p m e n t, b u t n o ex ce ss r e c o v e r y m a y b e m a in
ta in e d b y h im f o r h is p e r s o n a l b e n e fit. A U n it e d S ta te s c ir c u it
c o u r t o f a p p e a ls c o n s tr u e d th e N e b r a s k a la w in a ca se o f th is n a tu r e
( O t is E le v a t o r C o . v. M ille r & P a in e , p . 2 5 6 ), in w h ic h s e ttle m e n t
h a d b e e n m a d e b y th e e m p lo y e r u n d e r th e p r o v is io n s o f th e c o m p e n
s a tio n la w o f th e S ta te . O n th e e m p lo y e r ’s su it a g a in s t th e t h ir d
p a r t y a la r g e r r e c o v e r y w a s 'm a d e th a n th e t o t a l o f th e a w a r d .
T h e t h ir d p a r t y ’s c o n t e n t io n th a t it s h o u ld h a v e b ee n p e r m itte d to
s h o w th a t th e e m p lo y e r ’s n e g lig e n c e c o n c u r r e d in p r o d u c in g th e
i n ju r y w a s d e n ie d , th e c o u r t h o ld in g th a t u n d e r th e la w th e e m
p lo y e r ’s r e s p o n s ib ilit y w a s p o s it iv e ly fix e d w it h o u t r e g a r d t o q u e s
t io n s o f its n e g lig e n c e , a n d th a t it w a s e n title d t o a s u b r o g a t io n
t o th e r ig h t s o f th e in ju r e d m a n o r h is d e p e n d e n ts in p r o c e e d in g
a g a in s t th e c u lp a b le t h ir d p a r t y . P a y m e n t s m a d e b y th e e m p lo y e r
o n a c c o u n t o f th e c o m p e n s a t io n a w a r d , a n d th e e x p e n s e o f th e p r o s e
c u t io n o f th e s u it, w e r e h e ld t o b e p r o p e r d e d u c tio n s f r o m th e j u d g
m e n t r e c o v e r e d , th e b a la n c e to g o to th e d e p e n d e n ts o f th e d e ce a se d
w orkm an .
W h e r e a ll th e p a r tie s a re u n d e r th e c o m p e n s a tio n la w , th e I llin o is
s ta tu te p r o v id e s - f o r r e c o v e r y o f c o m p e n s a tio n fr o m th e e m p lo y e r ,
th e la tte r b e in g th e n s u b r o g a t e d t o th e r ig h t s o f th e e m p lo y e e t o
th e e x te n t o f r e c o v e r y f r o m th e t h ir d p a r t y o f th e a m o u n t p a id as
c o m p e n s a tio n . A n in ju r e d m a n ’s su it a g a in s t th e t h ir d p a r t y w a s
t h e r e fo r e h e ld b y th e s u p r e m e c o u r t o f th e S ta te to n e c e s s a r ily f a i l
in a ca se w h e r e th is c o n d it io n c o n t r o lle d , e v e n t h o u g h th e re w a s a
p o s s ib ilit y o f a la r g e r r e c o v e r y in su ch a su it (F r ie b e l v. C h ic a g o
C it y R y . C o ., p . 2 5 5 ). I t w a s p o in t e d o u t t h a t w h ile th e e m p lo y e e
m ig h t b e a fin a n c ia l g a in e r i f h e h a d e le c te d n o t t o c o m e u n d e r th e
c o m p e n s a t io n la w , h e w a s a t le a st p r o t e c t e d b y a d o u b le r e c o u r s e
f o r a lim it e d r e c o v e r y u n d e r th e la w , s o th a t h e c o u ld n o t b e r e g a r d e d
as u n c o n s t itu t io n a lly d e p r iv e d o f h is r ig h ts . T h e K e n t u c k y sta tu te
v a r ie s f r o m th e m o r e c o m m o n m e th o d s o f p r o c e d u r e in p e r m it t in g
th e e m p lo y e e t o c la im c o m p e n s a tio n f r o m h is e m p lo y e r o r p r o c e e d
a g a in s t th e t h ir d p a r t y , o r t o se cu re r e d r e s s f r o m b o t h b y c o n c u r r e n t
o r su cce ssiv e a c tio n s , t h o u g h d o u b le r e c o v e r y c a n n o t b e h a d . I n
B o o k v. C it y o f H e n d e r s o n (p . 2 5 8 ), th e in ju r e d m a n first se cu re d a
c o m p e n s a t io n a w a r d a n d th e n su e d th e t h ir d p a r t y f o r d a m a g e s ,
m a k in g h is e m p lo y e r a p a r t y t o th e su it. S u c h a step w a s h e ld b y
th e c o u r t o f a p p e a ls o f th e S t a t e t o b e p r o p e r , a n d i f th e e m
p lo y e r w o u ld in t e r p le a d , a n y a m o u n t r e c o v e r e d f r o m th e th ird .
44
REVIEW OF DECISIONS OF COURTS AFFECTING LABOR.
p a r t y w o u ld b e p r o p e r ly d is t r ib u t e d b e tw e e n th e t w o su ito rs , th e e m
p lo y e r ’s r e c o v e r y b e in g lim it e d t o h is c o m p e n s a t io n p a y m e n ts , b u t
th e e m p lo y e e b e in g e n t itle d t o a n y a m o u n t in d a m a g e s r e c o v e r e d
w it h o u t r e g a r d to th e a w a r d s p r o v id e d in th e c o m p e n s a t io n la w .
W h e r e a t h ir d p a r t y w a s su e d a n d ju d g m e n t r e c o v e r e d a n a p p e a l
w a s ta k e n a n d th e d e fe n s e set u p th a t th e w id o w o f th e in ju r e d
m a n , th e e m p lo y e r , a n d th e in s u r e r , w e r e p a r tie s t o a c o n t r a c t b y
w h ic h it w a s p r o v id e d th a t th e w id o w w a s t o su e, a n d i f sh e r e c o v e r e d
$3,000 o r m o r e w a s t o r e c e iv e n o c o m p e n s a tio n , b u t i f sh e r e c e iv e d less
t h a n $ 3 ,0 0 0 th e d e fic it w a s t o b e m a d e u p t o h e r. T h e t h ir d p a r t y d e
fe n d a n t in th is ca se c o n t e n d e d th a t t h is a g re e m e n t a m o u n te d t o an
e le c tio n o f th e c o m p e n s a t io n r e m e d y b u t th e c o u r t h e ld th e a g r e e
m e n t v o id , a n d th e ju d g m e n t w a s a ffirm ed (D e t l o f f v. H a m m o n d ,
S t a n d is h & C o ., p . 2 5 4 ).
A p e c u lia r c o n d it io n w a s in v o lv e d in th e ca se, D ie t z v. S o lo m o n w it z (p . 2 5 3 ), p a s s e d u p o n b y th e s u p r e m e c o u r t o f N e w Y o r k .
T h e c la im a n t h a d b e e n a ssa u lte d b y s tr ik e rs , a n d w a s a w a r d e d c o m
p e n s a tio n , a s s ig n in g h is r ig h t t o su e f o r d a m a g e s t o th e p e r s o n o r
in s t it u t io n w h ic h s h o u ld b e lia b le t o m a k e th e c o m p e n s a t io n p a y
m e n ts. I n th e m e a n tim e c r im in a l p r o s e c u tio n s w e r e h a d a g a in s t
th e a ssa ila n ts, a n d th e y w e r e se n te n ce d t o im p r is o n m e n t , se n te n ce b e
i n g s u s p e n d e d o n c o n d it io n o f g o o d b e h a v io r a n d th e p a y m e n t o f
c e r ta in su m s t o th e in ju r e d m a n . T h e in d u s t r ia l c o m m is s io n h a d
r e fu s e d to m a k e a n y a llo w a n c e f o r th ese p a y m e n t s in a w a r d in g c o m
p e n s a tio n , b u t th e c o u r t d ir e c t e d th a t th e a m o u n ts th u s p a id s h o u ld
b e d e d u c te d fr o m th e c o m p e n s a tio n b en efits.
i
DEPENDENCE.
T h e S u p r e m e C o u r t o f I llin o is h e ld ( H . G . G o e lit z C o . v. I n d u s t r ia l
B o a r d , p . 2 0 7 ) t h a t th e r ig h t s o f a w id o w t o c o m p e n s a tio n w e r e b a s e d
o n th e le g a l o b lig a t io n o f th e h u s b a n d t o s u p p o r t h e r , a n d n o t u p o n
c o h a b it a t io n o r a c tu a l d e p e n d e n c e . I n th is ca se th e h u s b a n d h a d
b e e n s e p a r a te d f o r a n u m b e r o f y e a rs , a n d h e h a d liv e d i ll i c i t ly w it h
a n o th e r w o m a n , b u t it w a s h e ld th a t h is u n fa it h fu ln e s s , w h ile w a r
r a n t in g th e w i f e ’s l iv in g a p a r t, d id n o t in v a lid a t e h e r c la im , th e
I llin o is s ta tu te n o t r e q u ir in g th a t th e h u s b a n d a n d w if e m u s t b e
liv in g to g e t h e r at th e tim e o f th e in ju r y . O n th e o th e r h a n d , a w if e
r e m a in in g in a fo r e ig n c o u n t r y o n a fa r m o p e r a t e d b y a h ir e d m a n ,
a n d r e c e iv in g s o m e fu n d s f r o m h e r son in th is c o u n t r y , w a s h e ld b y th e
S u p r e m e C o u r t o f M a s s a c h u s e tts n o t t o b e d e p e n d e n t u p o n h e r h u s
b a n d w h o h a d b e e n a fe w m o n th s in A m e r ic a , a n d h a d sen t h e r n o t h
in g , b u t in t e n d e d t o h a v e h e r c o m e t o th is c o u n t r y la t e r o n ( I n re
G o r s k i, p . 2 2 3 ) ; b u t w h e r e r e m itta n c e s w e r e r e g u la r ly m a d e o f an
a m o u n t t h a t w o u ld a ffo r d o n ly p a r t ia l s u p p o r t , th e S u p r e m e C o u r t o f
M ic h ig a n (K a l c i e v . N e w p o r t M in in g C o ., p . 2 2 3 ), a p p r o v e d a n a w a r d
w o r k m e n 's
c o m p e n s a t io n .
45
m a d e b y th e in d u s t r ia l a c c id e n t b o a r d f o r b e n e fits as f o r c o m p le t e d e
p e n d e n c y , o n th e g r o u n d th a t th e e v id e n c e s h o w e d th a t th e r e w a s a n
a c tu a l d e p e n d e n c y , h e r e a r n in g s b e in g in su fficie n t f o r h e r s u p p o r t .
A n u n u s u a l a s p e c t o f th e q u e s tio n o f a s u r v iv in g w i f e ’s r ig h t s w a s
in v o lv e d in a ca se (C r o c k e t t v. I n t e r n a t io n a l R y . C o ., p . 2 2 1 ) in w h ic h
th e S u p r e m e C o u r t o f N e w Y o r k h e ld th a t a w id o w w h o h a d m a r r ie d
th e d e ce a se d su b se q u e n t to th e d a te o f h is in ju r y w a s a b e n e fic ia r y
w it h in th e te r m s o f th e la w , s in c e th e q u e s tio n o f d e p e n d e n c y is im
m a te r ia l as r e g a r d s w if e o r c h ild r e n , a n d c o n s t r u in g th e se n te n ce o f
th e la w , “ A l l q u e stio n s o f d e p e n d e n c y s h a ll b e d e te r m in e d as o f th e
tim e o f th e a c c id e n t ,” as n o t a p p ly in g t o p e r s o n s in th o s e r e la t io n
s h ip s. A s im ila r s itu a tio n w a s p a s s e d u p o n b y th e S u p r e m e C o u r t
o f W is c o n s in , w h ic h h e ld (K u e t b a c h v. I n d u s t r ia l C o m m is s io n ,
p . 2 2 0 ) th a t th e w id o w h a d n o r ig h t s a t th e tim e o f th e in ju r y , a n d
c o u ld a c q u ir e n o n e b y h e r su b se q u e n t m a r r ia g e .
T h e sta tu s o f a siste r w h o h a d m a d e a h o m e f o r h e r b r o t h e r , r e c e iv
in g w e e k ly c o n t r ib u t io n s f r o m h im f o r e x p e n se s, w a s h e ld b y th e
S u p r e m e C o u r t o f M a s s a c h u s e tts n o t t o b e th a t o f, a d e p e n d e n t, th e
d e ce a se d m a n b e in g d e c la r e d n o t t o b e th e h e a d o f a fa m ily o f w h ic h
th e siste r w a s a m e m b e r ( I n re M u r p h y , p . 2 2 2 ).
A fa t h e r p a r t ia lly d e p e n d e n t, r e c e iv in g a ll th e e a r n in g s o f h is
m in o r so n , w a s d e c la r e d b y th e A p p e lla t e C o u r t o f I n d ia n a ( I n r e
P e te r s , p . 2 1 9 ) t o b e e n title d t o th e m a x im u m a w a r d , e v e n t h o u g h h e
w a s o n ly a p a r t ia l d e p e n d e n t, sin ce h e h a d b e e n in r e c e ip t o f th e f u ll
e a r n in g s o f h is son . P a r t ia l d e p e n d e n c y w a s a lso fo u n d b y th e
S u p r e m e C o u r t o f K a n s a s w h e r e a m in o r s o n h a d t u r n e d o v e r t o h is
m o th e r th e m a jo r p a r t o f h is e a r n in g s , e v e n t h o u g h th e fa t h e r o w n e d
p r o p e r t y o f so m e v a lu e a n d r e c e iv e d w a g e s o f $12 5 p e r m o n th , th e
c o u r t d e c lin in g t o c o n s id e r th e p r iv a t e a ffa ir s a n d e c o n o m ie s o f th e
fa m ily (F e n n im o r e v. P it t s b u r g -S c a m m o n C o a l C o ., p . 2 1 9 ).
W h e t h e r r e g u la r it y o f c o n t r ib u t io n s w a s e ss e n tia l t o s u sta in a fin d
i n g o f d e p e n d e n c y w a s d e c id e d in th e n e g a tiv e b y th e S u p r e m e C o u r t
o f I llin o is , th e c o u r t fin d in g th a t th e s ta tu te d id n o t r e q u ir e d e
p e n d e n c e in th e ca se o f s u r v iv in g p a r e n ts o r lin e a l h e ir s (C o m m o n
w e a lth E d is o n C o . v. -I n d u s t r ia l B o a r d , p . 2 2 1 ).
DISABILITY.
T h e A p p e lla t e C o u r t o f I n d ia n a h a d b e f o r e it a ca se in v o lv in g
m u lt ip le in ju r ie s — o n e , th e a m p u ta tio n o f a n a rm , c a llin g f o r a n
a w a r d f o r p e r m a n e n t p a r t ia l d is a b ility , w h ile o th e r in ju r ie s o c c a
s io n e d t e m p o r a r y t o t a l d is a b ility . T h e S ta te b o a r d in q u ir e d w h e th e r
s e p a r a te a w a r d s s h o u ld b e m a d e f o r th e t w o in ju r ie s , t o w h ic h th e
c o u r t r e p lie d in th e a ffirm a tiv e , s t a t in g th a t th e p r o v is io n t h a t a w a r d s
f o r p e r m a n e n t p a r t ia l d is a b ilitie s s h o u ld b e in lie u o f a ll o t h e r c o m
p e n s a tio n m e a n t o n ly o th e r c o m p e n s a tio n f o r s u ch in ju r ie s th e m
46
REVIEW OF DECISIONS OF COURTS AFFECTING LABOR,
s e lv e s, a n d n o t f o r o t h e r in ju r ie s t h a t m ig h t b e r e c e iv e d at th e sa m e
t im e ( I n re D e n t o n , p . 2 8 9 ). A d iffe r e n t v ie w w a s ta k e n o f su ch a
s itu a tio n b y th e C o u r t o f A p p e a ls o f N e w Y o r k (M a r h o ffe r v. M a r h o ffe r , p . 2 8 9 ). T h e S ta te in d u s t r ia l a c c id e n t c o m m is s io n h a d m a d e
an a w a r d f o r a p e r io d o f t o t a l d is a b ilit y w h e r e th e r e w a s a la c e r a tio n
o f th e th u m b a n d in d e x fin g e r a n d an a m p u ta tio n o f th e se c o n d
fin g e r , a n d a n a d d it io n a l a w a r d f o r th e s c h e d u le p e r io d f o r th e lo s s o f
th e s e c o n d fin g e r . C u r r e n t a n d c o n s e c u t iv e a w a r d s b a s e d o n s e p a r a te
ite m s o f p h y s ic a l im p a ir m e n t , d is c o n n e c t e d f r o m e a r n in g p o w e r , w e r e
h e ld n o t t o c o m p o r t w it h th e s p ir it a n d p u r p o s e o f th e a ct.
A n a w a r d f o r t o t a l d is a b ilit y w h e r e th e in ju r y c o n s is te d o f th e
a m p u t a t io n o f o n e fin g e r o f th e r ig h t h a n d a n d a s t iffe n in g o f t w o
o t h e r fin g e r s w a s h e ld b y th e S u p r e m e C o u r t o f M a s s a c h u s e tts n o t
t o b e w a r r a n te d in a ca se ( I n r e L a c io n e , p . 2 9 0 ) in w h ic h n o e m p lo y
m e n t h a d in f a c t b e e n o b ta in e d s in c e th e a c cid e n t. T h e e v id e n c e w a s
h e ld , h o w e v e r , n o t t o s h o w e ith e r a t o t a l in a b ilit y t o d o w o r k o r t o
se c u re w o r k t o d o , so th a t th e a w a r d c o u ld n o t sta n d .
T h e S u p r e m e C o u r t o f W is c o n s in h a d b e f o r e it a ca se in v o lv in g
a n a tte m p t o f th e e m p lo y e r a n d in s u r e r t o o v e r t h r o w a n a w a r d f o r
p e r m a n e n t t o t a l d is a b ilit y w h e r e th e re w a s a p a r a ly s is , t h o u g h n o t
t o t a l, o f th e lo w e r lim b s a n d th e lo w e r p a r t o f th e b a c k , d is q u a lify
i n g e n t ir e ly f o r w o r k as a c a r p e n t e r o r la b o r e r , th e se b e in g th e lin e s
o f fo r m e r e m p lo y m e n t o f th e in ju r e d m a n . T h e f a c t t h a t a lu m p
su m w a s r e q u e s te d in o r d e r th a t th e m a n a n d h is w i f e m ig h t e n g a g e
in s o m e s m a ll b u sin e ss w a s h e ld n o t t o w a r r a n t a r e v ie w o f th e q u e s
t io n o f t o t a l d is a b ility , s in c e th e a w a r d w a s b a s e d o n h is w a g e -e a r n in g
c a p a c it y , a n d n o t o n w h a t m ig h t f o l l o w i f h e s h o u ld a tte m p t t o
s u p e r v is e o r d ir e c t a b u sin e ss u n d e r t a k in g (M c D o n a ld v. I n d u s t r ia l
C o m m is s io n , p . 2 7 5 ). A q u ite s im ila r ca se w a s b e f o r e th e S u p r e m e
C o u r t o f K a n s a s (M o o r e v. P e e t B r o s . M f g . C o ., p . 2 9 1 ), w h e re a m a n
a w a r d e d b e n e fits f o r p e r m a n e n t t o t a l d is a b ilit y w a s fo u n d t o b e m a k
i n g a n in c o m e o f s o m e $ 12 o r $15 a w e e k f r o m th e c o n d u c t o f a c le a n
in g , p r e s s in g , a n d t a ilo r in g b u sin e ss in th e b a se m e n t o f h is h o m e .
T h e c o u r t h e ld th a t th e p r o fit s o f b u sin e ss d id n o t c o n s titu te e a r n in g s
u n d e r th e la w , a n d Such a n u n d e r t a k in g w a s in n o w is e in c o m p a t ib le
w it h t o t a l in c a p a c it y f o r w o r k .
A n o t h e r ca se th a t w a s b e f o r e th e sa m e c o u r t w a s th a t o f a m a n
w h o s u ffe r e d to t a l a n d p a r t ia l d is a b ilit y f o r a p e r io d in ex ce ss o f
t w o y e a rs , f o r w h ic h p e r io d c o m p e n s a tio n b e n e fits w e r e a llo w e d .
B e f o r e th e e x p ir a t io n o f th e t im e h e fo u n d o t h e r e m p lo y m e n t at
w a g e s in e x c e s s o f h is e a r n in g s a t th e t im e o f th e in ju r y , b u t th e
c o u r t h e ld th a t th is f a c t d id n o t a ffo r d a n y w a r r a n t f o r a c a n c e lla
t io n o f th e m in im u m a llo w a n c e m a d e t o h im , th e s ta tu te h a v in g
m a d e n o p r o v is io n f o r su ch a ca se. I t w a s a ls o s a id th a t th e c o n d i
t io n w o u ld b e o f c o m p a r a t iv e ly s h o r t d u r a t io n a n d w it h o u t s e r io u s
W O R K M E N 'S COMPENSATION
47
refeults (D e n n is v. C a ffe r t y , p . 2 0 9 ). T h e S u p r e m e C o u r t o f N e b r a s k a
t o o k a s im ila r v ie w in th e ca se o f a n i n ju r y t o a m in o r e m p lo y e d as
a la b o r e r , w h o a ft e r h is in ju r y a tte n d e d a b u sin e ss c o lle g e a n d r e
tu r n e d t o h is fo r m e r e m p lo y e r a t a n a d v a n c e in w a g e s. S u c h a d v a n c e
w a s h e ld , h o w e v e r (E p s t e n v. H a n c o c k -E p s t e n C o ., p . 2 9 1 ), n o t t o b e
in c o m p a t ib le w it h an a w a r d as f o r lo s s o f e a r n in g p o w e r , s in c e th is
w a s th e fa c t as t o e m p lo y m e n t in h is fo r m e r o c c u p a t io n . A ca se o f
p e r m a n e n t im p a ir m e n t o f u se o f a f o o t w a s b e f o r e th e A p p e lla t e
C o u r t o f I n d ia n a (U n d e r h ill v. C e n tr a l H o s p it a l f o r th e In s a n e ,
p . 2 1 0 ), th e c la im a n t a s k in g f o r b e n e fits as f o r t o t a l d is a b ility . A n
a w a r d w h ic h c o n s id e r e d th e p r o p o r t io n a t e lo ss o f u se as c o m p a r e d
w it h th e a c tu a l lo s s o f a f o o t w a s su sta in e d b y th e c o u r t as fa l l in g
w it h in th e im p lie d lim ita tio n s .
AWARDS.
T h e S u p r e m e C o u r t o f M a ssa ch u se tts r e je c t e d th e c o n te n tio n o f
th e in s u r e r th a t in s a n it y fr o m a n o th e r ca u se th a n th e in ju r y f o r
w h ic h c o m p e n s a tio n b e n e fits w e r e b e in g p a id s h o u ld te r m in a te su ch
p a y m e n t s ( I n re W a ls h , p . 2 2 4 ). T h is c la im w a s b a s e d o n th e c o n
te n tio n th a t in s a n ity w a s a n a lo g o u s to d e a th fr o m a ca u se in d e p e n d
e n t o f th e in ju r y , b u t th e c o u r t d is a llo w e d it a n d o r d e r e d th e c o n
tin u a n c e o f p a y m e n ts .
A n a g r e e d a w a r d w a s h e ld n o t t o b e b in d in g b y th e S u p r e m e
C o u r t o f K a n s a s (W e a t h e r s v. K a n s a s C it y B r id g e C o ., p . 2 8 2 ),
w h e r e th e e x te n t o f th e d is a b ility w a s n o t k n o w n at th e tim e o f th e
se ttle m e n t a n d s ig n in g o f a rele a se. T h e c o u r t h e ld th a t i f th e m is
ta k e o f fa c t w a s m u tu a l, th e re s h o u ld b e a n o p p o r t u n it y t o d e v e lo p
th e fa c t s as t h e y e x is te d th a t a p r o p e r a d ju s tm e n t m ig h t b e m a d e .
T h e p r o p e r a w a r d f o r th e lo ss o f a d e fe c t iv e e y e w a s p a s s e d u p o n
b y th e S u p r e m e C o u r t -o f M ic h ig a n in a ca se (P u r c h a s e v G r a n d
R a p id s R e f r ig e r a t o r C o ., p . 2 0 8 ) in w h ic h th e in ju r e d m a n h a d h a d
a d e fe c t iv e e y e s in c e c h ild h o o d , d u e t o a c c id e n ta l in ju r y . T h e e y e
w a s c a p a b le o n ly o f d is t in g u is h in g lig h t a n d p e r c e iv in g a p p r o a c h in g
o b je c ts , a n d th e c o n t e n t io n w a s m a d e th a t an a w a r d as f o r th e lo s s o f
a p e r fe c t e y e w a s n o t w a r r a n te d . T h e w o r k m a n w a s in f a c t a b le t o
r e tu r n t o w o r k a t u n d im in is h e d w a g e s a ft e r a fe w w eek s, b u t th e
c o u r t h e ld th a t th e la w m a d e n o s p e c ific a tio n as t o th e e y e f o r w h ic h
c o m p e n s a t io n s h o u ld b e a w a r d e d b e in g n o r m a l, t h o u g h p e r h a p s a
m e re s ig h tle s s o r g a n m ig h t b e c o n s id e r e d n o e y e a t a ll. I n th e ca se
in h a n d , h o w e v e r , a n a w a r d f o r f u l l b e n e fits w a s a ffirm ed .
MEDICAL TREATMENT.
I n S ta te e x re l. T u r n e r v. E m p lo y e r s ’ L ia b ilit y A s s u r a n c e C o r p .
( L t d . ) ( p . 2 9 3 ), th e S u p r e m e C o u r t o f O h io c o n s tr u e d th e la w o f th a t
S ta te r e q u ir in g in s u r a n c e c o m p a n ie s t o p r o v id e s p e c ific a lly f o r m e d i
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REVIEW OF DECISIONS OF COURTS AFFECTING LABOR.
c a l e x p e n se s in th e ir in s u r a n c e c o n tr a c ts , th is p r o v is io n b e in g h e ld
v a lid as a lim it a t io n u p o n th e k in d o f c o n t r a c t t h a t th e c o m p a n ie s
m ig h t w r it e in c e r ta in cases in th e S ta te .
T h e o th e r ca ses u n d e r th is h e a d a r o se u n d e r th e I n d ia n a la w , a n d
h in g e d u p o n a s in g le p r o v is io n o f th e s t a t u t e ; a ll w e r e d e c id e d b y th e
a p p e lla te c o u r t. I n th e firs t ca se n o t e d ( I n re K e lle y , p . 2 7 2 ), it w a s
f o u n d a t th e t e r m in a t io n o f th e 30 d a y s o f r e q u ir e d m e d ic a l s e r v ic e
th a t fu r t h e r a tte n tio n w a s n e ce s s a r y in o r d e r t o sa v e th e l i f e o f th e
in ju r e d m a n , w h e r e u p o n th e e m p lo y e r in s tr u c te d th e p h y s ic ia n t o
c o n tin u e tre a tm e n t. T h e in s u r e r c o n te s te d its lia b ilit y f o r su ch a d d i
t io n a l se r v ic e s, b u t it w a s h e ld o b lig a t e d , in v ie w o f th e p r o v is io n s
o f th e a ct g i v in g th e e m p lo y e r th e o p t io n o f fu r n is h in g a d d it io n a l
n e e d e d a tte n d a n c e , a n d r e q u ir in g p o lic ie s t o c o v e r a ll b e n e fits o ffe r e d
b y th e a ct. Q u it e in c o n tr a s t w it h th e fo r e g o i n g w a s a ca se ( I n r e
H e n d e r s o n , p . 2 7 1 ) in w h ic h a n e v id e n t ly n e ce s s a r y o p e r a t io n w a s
d e fe r r e d u n til a ft e r th e e x p ir a t io n o f th e s ta tu to r y 30 d a y s , a n d th e
q u e s tio n w a s r a is e d w h e th e r th e b o a r d c o u ld o b lig a t e th e e m p lo y e r
t o p a y th e e x p e n s e s o f su ch d e fe r r e d o p e r a t io n . T h e c o u r t fo u n d
t h e sta tu te s o m e w h a t a m b ig u o u s , b u t a n s w e r e d th e q u e s tio n in th e
a ffirm a tiv e .
W h e n th e s t a t u t o r y 30 d a y s b e g in s to r u n w a s c o n s id e r e d in a ca se
( I n re M c C a s k e y , p . 2 7 1 ) in w h ic h th e in ju r e d m a n d id n o t b e c o m e
d is a b le d fr o m th e a c c id e n t u n t il th e 30 d a y s ’ p e r io d h a d e x p ir e d .
T h e c o u r t h e ld th a t in th is ca se th e in ju r y a n d a c c id e n t w e r e n o t c o n
te m p o r a n e o u s , b u t th a t th e d e v e lo p m e n t o f th e r e s u lt in g d is a b ilit y
fu r n is h e d th e s t a r t in g p o in t o f th e p e r io d .
PROCEDURE.
N otice and claim .— F a ilu r e t o file n o t ic e o n th e m e re a s s u m p tio n
th a t s o m e b o d y w a s s a fe g u a r d in g h is in te re s ts w a s h e ld b y th e S u
p r e m e C o u r t o f M a s s a c h u s e tts to b e fa t a l in a ca se ( I n r e F e lls ,
p . 2 7 4 ) w h e re th e tim e e la p s e d w it h o u t a c tio n , ig n o r a n c e o r m is ta k e
n o t b e in g c o n s id e r e d as r e a s o n a b le ju s t ific a t io n . T h e sa m e c o u r t
fo u n d th e la w n o t c o m p lie d w it h w h e r e n o n o t ic e a n d c la im w e r e
file d in b e h a lf o f a n o n r e s id e n t w id o w , th e in ju r ie s ' h a v in g b ee n
r e c e iv e d in J u n e , 1914, a n d a n a d m in is t r a t o r a p p o in t e d in F e b r u a r y ,
1915, w h o m a ile d a f o r m o f n o t ic e t o th e e m p lo y e r a n d t o th e b o a r d ,
w h ic h , h o w e v e r , w a s n o t r e c e iv e d b y th e b o a r d ( I n re G o r s k i, p .
2 2 3 ). I n th is ca se, t h o u g h th e w if e w a s a b se n t, th e so n w a s p r e s e n t,
a n d n o su fficien t r e a s o n a p p e a r e d u n d e r th e s ta tu te f o r c o n d o n in g
tlie d e la y . T h e S u p r e m e C o u r t o f N e w Y o r k ( I n r e D o r b , p . 2 7 3 )
h e ld it n o t a su fficie n t n o t ic e o f i n ju r y w h e r e th e in ju r e d m a n
s im p ly te le p h o n e d t h a t h e w a s s ic k w it h o u t in d ic a t in g th e n a tu r e o f
th e illn e s s o r t h a t th e r e h a d b e e n a n a c c id e n t. S u b s e q u e n t c o n v e r s a
w o r k m e n 's
COMPENSATION.
49
t io n w it h a fo r e m a n d is c lo s e d th e n a tu r e o f th e in ju r y , b u t n o t th e
tim e , p la c e , o r c ir c u m s ta n c e s o f its r e c e ip t, n o r d id it g iv e a n y in t im a
t io n th a t th e r e w o u ld b e a c la im f o r c o m p e n s a tio n . I t w a s a lso s a id
th a t t o a d m it su ch a cts as n o t ic e w o u ld c o m p le t e ly n u l l if y th e p r o
v is io n o f th e la w f o r w r it t e n n o tic e , th e o b je c t o f w h ic h w a s t o g iv e
th e e m p lo y e r o p p o r t u n it y t o m a k e in v e s t ig a t io n o f th e c ir c u m s ta n c e s
o f a n y a lle g e d a c c id e n t a l in ju r y .
R eview .— W h a t m u s t b e r e g a r d e d as a c o n d it io n r e q u ir in g le g is la
t iv e c o r r e c t io n w a s d e v e lo p e d in a ca se (A d le m a n v. O c e a n A c c id e n t
& G u a ra n te e C o r p o r a t io n ( L t d . ) , p . 2 8 4 ) p a s s e d u p o n b y th e C o u r t
o f A p p e a ls o f M a r y la n d . A n a w a r d h a d b e e n m a d e , f o l l o w i n g th e
d e a th o f a w o r k m a n , f o r a te r m in e x ce ss o f fo u r a n d o n e -h a lf y e a r s ,
to h is m o th e r a n d sister. A f t e r a b o u t s ix m o n th s th e sister m a r r ie d ,
a n e v e n t w h ic h w o u ld h a v e c a u se d th e t e r m in a t io n o f p a y m e n ts t o
a w id o w , a n d th e in s u r e r s o u g h t a r e v ie w o f th e a w a r d u n d e r th e p r o
v is io n o f th e la w th a t a u th o r iz e s m o d ific a t io n a n d r e a p p o r t io n m e n t
o f a w a r d s o n o c c a s io n . T h e c o u r t h e ld , h o w e v e r , th a t it h a d n o
a u t h o r it y t o a n n u l th e c o m p e n s a tio n o f a b e n e fic ia r y w h o w a s d e
p e n d e n t a t th e tim e o f th e e m p lo y e e ’s d e a th , a s itu a tio n w h ic h o b v i
o u s ly d is c r im in a te s b e tw e e n th e w id o w a n d o th e r d e p e n d e n ts w h o s e
m a r r ia g e m a y ta k e p la c e d u r in g th e c o m p e n s a tio n p e r io d .
A ca se in v o lv in g r e a d ju s tm e n t o f a w a r d s u n d e r th e la w o f N e w
J e r s e y , w h ic h p e r m its su ch r e a d ju s tm e n t a ft e r a y e a r fr o m th e
o r ig in a l a w a r d , w a s c o n s id e r e d b y th e s u p r e m e c o u r t o f th a t S ta te
( S a f e t y In s u la t e d W i r e & C a b le C o . v. C o u r t o f C o m m o n P le a s ,
p . 2 7 2 ). T h e fa c t s o f th is ca se re se m b le th o s e fo u n d in cases u n d e r th e
p r e v io u s h e a d in g o f d is a b ility , th e c o m p a n y h a v in g s o u g h t a m o d ifi
c a t io n o f a w a rd s in v ie w o f th e fa c t th a t th e in ju r e d m a n , a ft e r b e in g
in c a p a c it a t e d f o r a b o u t a y e a r a n d a h a lf, h a d so fa r r e c o v e r e d fr o m
h is c o n d it io n o f t o t a l d is a b ilit y as to b e a b le to d o lig h t w o r k , a n d h a d
s u b s e q u e n tly p r o c u r e d a p o s it io n at w a g e s in e x ce ss o f th o s e e a r n e d
a t th e tim e o f h is in ju r y . T h e c o u r t o f c o m m o n p le a s t o o k th e
g r o u n d th a t it c o u ld n o t r e v ie w th e a w a r d , b u t th e su p r e m e c o u r t
r e v e r s e d th is , s a y in g th a t a m o d ific a t io n o f th e a w a r d m ig h t b e h a d
o n a s h o w in g o f c h a n g e in c o n d itio n s .
T h e e ffe ct o f fin a l se ttle m e n ts w a s p a sse d u p o n in t w o ca ses n o te d ,
o n e b e fo r e th e S u p r e m e C o u r t o f M a ssa c h u se tts ( I n re M c C a r t h y ,
p . 2 8 2 ), w h ic h h e ld th a t a lu m p -s u m se ttle m e n t in f u ll o f a ll lia b ilit y
f o r th e in ju r ie s r e c e iv e d w a s b in d in g e v e n t h o u g h a c o n d it io n m ig h t
d e v e lo p fr o m th e in ju r y u n k n o w n a t th e tim e o f th e se ttle m e n t. T h e
sa m e v ie w w a s ta k e n b y th e S u p r e m e C o u r t o f K a n s a s (O d r o w s k i
v. S w i f t & C o ., p . 2 8 3 ), w h e re a rele a se h a d b e e n g iv e n a b o u t f o u r
m o n th s a ft e r th e in ju r y , o n r e c e ip t o f th e a m o u n t o f c o m p e n s a tio n
d u e u p to th a t tim e , n o fr a u d o r u n d u e in flu e n ce a p p e a r in g in th e
64919°— 18— Bull. 246-------4r
50
REVIEW OP DECISIONS OF COURTS AFFECTING LABOR.
p r o c u r in g o f th e rele a se. I n c o n n e c t io n w it h th e M c C a r t h y ca se ,
a tte n tio n m a y b e c a lle d t o th e W e a t h e r s ca se a lr e a d y n o t e d (p . 2 8 2 ),
in w h ic h th e S u p r e m e C o u r t o f K a n s a s h e ld th a t w h e r e th e re w a s
in a d e q u a te c o n s id e r a t io n a n d a m u tu a l m is ta k e o f fa c t , th e re le a se
w a s n o t b in d in g .
S o m e w h a t m o r e te c h n ic a l w a s th e p o in t in v o lv e d in a ca se b e fo r e
th e A p p e lla t e C o u r t o f I n d ia n a (U n io n S a n it a r y M f g . C o . v. D a v is ,
p . 2 7 8 ). D a v is h a d b e e n a w a r d e d c o m p e n s a tio n , a n d th e e m p lo y e r
a p p e a le d , w h e r e u p o n D a v is s o u g h t to se cu re a d is m is s a l o f th e a p p e a l,
s in c e n o m o t io n f o r a n e w t r ia l h a d b e e n m a d e , as in o r d in a r y c iv il
su its. T h e c o u r t r u le d th a t su ch p r o c e d u r e w a s n o t n e ce s s a r y in th e
ca se a t h a n d , e s p e c ia lly as th e re h a d b e e n a r e v ie w o f th e a w a r d b y
th e f u ll b o a r d , so th a t th e p a rtie s h a d h a d o p p o r t u n it y f o r p r e s e n tin g
a ll q u e stio n s.
EMPLOYERS’ LIABILITY INSURANCE.
A sta tu te o f M a s s a c h u s e tts p r o v id e s th a t w h e r e a lo ss o c c u r s u n d e r
a c o n t r a c t o f lia b ilit y in s u r a n c e , th e c o m p a n y is d ir e c t ly a n d a b s o
lu t e ly lia b le w it h o u t r e g a r d t o w h e th e r o r n o t th e in s u r e d p e r s o n
m a k e s s e ttle m e n t w it h th e in ju r e d p e rs o n . I n L o r a n d o v. G e t h r o
(p . 1 0 7 ), th e s u p r e m e c o u r t o f th e S ta te u p h e ld th e la w as c o n s t it u
t io n a l, a n d a ffirm ed th e r ig h t o f th e in ju r e d p e r s o n to h a v e th e in s u r
a n ce m o n e y a p p lie d d ir e c t ly to th e s a t is fa c t io n o f th e ju d g m e n t in
h is fa v o r . A q u ite s im ila r p o in t w a s in v o lv e d in V e r d u c c i v. C a s u
a lt y C o . o f A m e r ic a (p . 1 0 8 ), a ju d g m e n t h a v in g b e e n s e c u re d a g a in s t
e m p lo y e r s th a t w e r e in s o lv e n t. T h e c o m p a n y a d m itte d th a t th e y
w e r e in s u r e rs o f th e e m p lo y e r s , b u t c o n te n d e d th a t th e p o l ic y w a s
o n ly f o r th e b e n e fit o f th e in s u r e d firm in ca se p a y m e n ts h a d b e e n
m a d e b y it. T h e S u p r e m e C o u r t o f O h io h e ld th a t su ch a s t ip u la t io n
w a s in c o n s is te n t w it h th e la w o f th e S ta te , a n d th a t it w a s v o i d ;
ju d g m e n t w a s t h e r e fo r e e n te r e d f o r th e e m p lo y e e . A n o t h e r p o in t
t h a t a r o s e u n d e r th e la w o f th is S ta te w a s as to th e w r it in g o f in s u r
a n ce b y s to c k c o m p a n ie s t o in d e m n ify a n e m p lo y e r f o r th e r e s u lt o f
h is o w n n e g lig e n c e o r th a t o f h is a g en ts. S u c h in s u r a n c e w a s f o r
b id d e n b y th e la w , a n d a c o m p a n y w r it in g in s u r a n c e o f th e p r o h ib it e d
n a tu r e w a s o r d e r e d t o c o n f o r m w ith th e la w o r cea se o p e r a t io n s in
th e S ta te (S t a t e e x re l. T u r n e r v. E m p lo y e r s ’ L ia b ilit y A s s u r a n c e
C o r p . ( L t d . ) , p . 2 9 3 ).
N o t in v o lv in g th e m a tte r o f e m p lo y e r s ’ lia b ilit y in s u r a n c e , b u t
n o te d h e re as a m a tte r o f in te re s t, is a ca se o f b r o t h e r h o o d in s u r a n c e
o f a tr a in m a n w h o b e c a m e a ffe cte d w it h c o lo r b lin d n e s s a n d w a s, as
a c o n s e q u e n ce , d is c h a r g e d fr o m h is e m p lo y m e n t ( R o u t t v. B r o t h e r
h o o d o f R a ilr o a d T r a in m e n , p . 6 8 ). T h e p o lic y p r o v id e d f o r b e n e
fits as f o r t o t a l a n d p e r m a n e n t d is a b ilit y w h e re th e r e w a s c o m p le t e
PENSIONS.
51
a n d p e r m a n e n t lo s s o f s ig h t o f b o th ey es. T h e S u p r e m e C o u r t o f
N e b r a s k a h e ld th a t th e r e h a d b e e n su ch lo s s o f s ig h t f o r th e p u r p o s e
o f th e e m p lo y e e ’s v o c a t io n , so th a t h e w a s e n t itle d t o fu ll b e n e fits
u n d e r th e in s u r a n c e c o n tr a c t.
A n o t h e r ca se in v o lv e d th e q u e s tio n o f a c c id e n t in s u r a n c e , th e S u
p r e m e C o u r t o f I llin o is d e c la r in g th a t th e s u n s tro k e o f a tra ffic p o lic e
m a n , c o m p e lle d t o sta n d o n th e streets o n a v e r y h o t d a y , e n title d h im
to b e n e fits as f o r b o d i ly in ju r y su sta in e d “ s o le ly t h r o u g h a c c id e n t a l
m e a n s ,” r e v e r s in g th e lo w e r c o u r ts , w h ic h h a d d e n ie d th e b e n e fits o f
th e p o lic y ( H ig g i n s v. M id la n d C a s u a lty C o ., p . 1 2 0 ).
PENSIONS.
Public em ployees .— T h e first ca se t o b e n o te d u n d e r th is h e a d is
o n e in v o lv in g th e r ig h t o f a p o lic e m a n r e c e iv in g b e n e fits fr o m a p e n
s io n fu n d f o r th e m a in te n a n c e o f w h ic h d e d u c t io n s h a d b e e n r e g u
la r ly m a d e f r o m h is w a g e s , t o c o n tin u e to r e c e iv e su ch b e n e fits a ft e r
a n a w a r d o f c o m p e n s a tio n u n d e r th e I o w a la w (D ic k e y v. J a c k s o n ,
p . 1 8 4 ). T h e d e c is io n o f th e c it y officia ls in r e fu s in g t o m a k e p e n s io n
p a y m e n ts w a s a n n u lle d b y th e c o u r ts , th e su p r e m e c o u r t o f th e S ta te
a ffir m in g th is a c tio n o n th e g r o u n d th a t th e r u le a g a in s t d o u b le p e n
s io n s d id n o t a p p ly . A la te r a m e n d m e n t m a k e s th e c o m p e n s a tio n
la w in a p p lic a b le w h e re c it y e m p lo y e e s a r e e n title d to p e n s io n s u n d e r
lo c a l r e g u la tio n s .
T h e a p p lic a t io n o f a n I llin o is sta tu te d ir e c t in g th e e s ta b lis h m e n t
o f p e n s io n fu n d s f o r e m p lo y e e s o f c o u n tie s w a s p a sse d u p o n b y th e
s u p r e m e c o u r t o f th a t S ta te in H e lliw e ll v. S w e it z e r (p . 1 8 8 ). C o n
t r ib u t io n s to th e fu n d h a d b ee n c o n te s te d b y so m e o f th e e m p lo y e e s
o f C o o k C o u n t y , a n d th e a c t w a s h e ld v o id b y a c o u n t y c o u r t as to
a ll officers a n d e m p lo y e e s p r o v id e d fo r . T h e s u p r e m e c o u r t, h o w
e v e r, d is t in g u is h e d b e tw e e n e m p lo y e e s w h o s e sa la rie s w e r e g o v e r n e d
b y c o u n t y r e g u la t io n s a n d th o s e o v e r w h o m th e le g is la tu r e h a d d ir e c t
a u th o r ity , h o ld in g th e la w v a lid a n d a p p lic a b le as t o th e la tte r o n ly .
Mothers' pensions .— A s a fo r m o f o u t d o o r r e lie f p r e s e n tin g an in
d u s t r ia l a sp e ct, in t h a t it is r e s tr ic te d t o b e n e fits w h e r e th e re a re
c h ild r e n u n d e r th e w o r k in g a g e , th e s u b je c t o f m o th e r s ’ p e n s io n s h a s
b e e n in c lu d e d as in so m e d e g r e e a la b o r p r o p o s it io n . T h e c o n s t it u
t io n a lit y o f th e U t a h sta tu te w a s su sta in e d b y th e s u p r e m e c o u r t o f
th e S ta te (D e n v e r & R . G . R . C o . v. G r a n d C o u n t y , p . 1 8 0 ), o v e r th e
c o n t e n t io n th a t th e t a x f o r th e m a in te n a n c e o f su ch a p e n s io n is n o t
a p u b lic p u r p o s e . T h e b e n e fits o f th e la w w e r e h e ld to w a r r a n t its
e n a c tm e n t, a n d a s e c o n d c o n t e n t io n th a t th e le g is la tu r e c o u ld n o t
d e v o lv e u p o n th e c o u n t y c o m m is s io n e r s th e r ig h t o f le v y in g th e
n e ce s s a r y t a x w a s a ls o r e je c t e d , a n d th e la w su sta in e d in a ll its p a rts .
T h e c o n tin u a n c e o f p a y m e n ts u n d e r a n a m e n d e d f o r m o f th e
52
REVIEW OF DECISIONS OF COURTS AFFECTING LABOR.
la w w a s p a s s e d u p o n b y th e S u p r e m e C o u r t o f P e n n s y lv a n ia (C o m
m o n w e a lth e x re l. T r u s te e s o f M o t h e r s ’ A s s is ta n c e F u n d o f P h i la
d e lp h ia C o u n t y v. P o w e ll, p . 1 8 1 ). A n a c t o f 1913 a u t h o r iz e d -pen
sion p a y m e n ts t o a b a n d o n e d m o th e r s a m o n g o th e r s , w h ile in 1915
th e la w w a s m a d e t o a p p ly o n ly t o th o s e w h o s e h u s b a n d s a re d e a d
o r p e r m a n e n tly c o n fin e d in in s t it u t io n s f o r th e in sa n e . T h e c o u r t r e
fu s e d t o in d u lg e in th e p r e s u m p t io n o f d e a th in a ca se w h e r e th e
fa t h e r h a d d is a p p e a r e d in 1906 a n d h a d n o t b e e n h e a r d fr o m s in ce ,
a n d o v e r r u le d th e tru ste es a n d th e lo w e r c o u r ts , w h ic h h a d a d o p te d
th e v ie w th a t a n u n e x p la in e d a b se n ce f o r m o r e th a n se v e n y e a rs
ra is e d a v a lid p r e s u m p t io n o f d ea th .
Old-age pensions .— T h e N e w H a m p s h ir e L e g is la t u r e s o u g h t th e
a d v ic e o f th e su p r e m e c o u r t o f th e S ta te o n th e c o n s t it u t io n a lit y o f
a p r o p o s e d m e a su re f o r th e p a y m e n t o f o ld -a g e p e n s io n s ( I n re
O p in io n o f th e J u s tic e s , p . 1 8 2 ). W h ile th e o p in io n tu rn s la r g e ly
o n th e so m e w h a t u n u su a l p r o v is io n s o f th e c o n s t it u t io n , it is o f i n
te re st t o n o te th a t th ese p r o v is io n s lim it th e g r a n t o f p e n s io n s t o
th o se f o r a c tu a l s e r v ic e s , a n d f o r n o t m o r e th a n o n e y e a r a t a tim e.
T h e c o u r t h e ld th a t th e re w a s n o m e a n s b y w h ic h th e le g is la tu r e
c o u ld c ir c u m v e n t th e lim it a t io n s b y m e a n s o f v a lid a ct.
EMPLOYMENT OFFICES.
T h e s in g le ca ss n o te d h e re is o n e o f u n u su a l in te re s t, th e d e c i
s io n h a v in g b een r e n d e r e d b y th e S u p r e m e C o u r t o f th e U n it e d S ta te s,
f o u r o f th e n in e J u s tic e s d is s e n tin g (A d a m s v. T a n n e r , p . 1 0 8 ). T h e
q u e s tio n b e fo r e th e c o u r t w a s as t o th e c o n s t it u t io n a lit y o f a n in it ia t e d
la w o f th e S ta te o f W a s h in g t o n , f o r b i d d i n g e m p lo y m e n t offices to
ta k e fe e s fr o m w o r k m e n f o r s e c u r in g p o s it io n s f o r th em . T h e a ct w a s
h e ld to b e u n c o n s t itu t io n a l as in t e r fe r in g u n ju s t ifia b ly w it h a le g it i
m a te b u sin e ss in v io la t io n o f th e p r o v is io n s o f th e fo u r t e e n t h
a m e n d m e n t to th e F e d e r a l C o n s titu tio n . I n t e r e s t in g d is s e n tin g o p in io n s w e r e p r e p a r e d , c o n t e n d in g th a t th e la w s h o u ld b e s u s ta in e d as a
d e c la r a t io n o f th e p u b lic p o lic y , in v ie w o f d e m o n s tr a te d e v ils in ^ o lv e d in th e e x is tin g sy stem .
LABOR ORGANIZATIONS.
MEMBERSHIP.
W h ile th e r ig h t s o f m e m b e r s as su ch a re u s u a lly d e te r m in e d b y th e
c o n s t it u t io n a n d b y -la w s o f th e o r g a n iz a t io n s th e m se lv e s, th e c o u r ts
m a y fin d o c c a s io n t o in te r v e n e w h e re th e re is a fa ilu r e t o c o m p ly
w ith th ese p r o v is io n s , o r w h e r e th e y a re in a d e q u a te , o r w h e r e m a lic e
is s h o w n . T h e S u p r e m e C o u r t o f R h o d e I s la n d (F a le s v. M u s ic ia n s ’
P r o t e c t iv e U n io n , p . 1 3 9 ) fo u n d th a t th e p r o c e e d in g s o f th e lo c a l in
its t r ia l o f th e c o m p la in a n t h a d n o t b e e n in g o o d fa it h o r in le g a l
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53
fo r m , a n d d e c la r e d th e m v o id , s a y in g th a t in su ch ca se a n in ju r e d
p a r t y n e e d n o t e x h a u s t h is r e m e d y b y a p p e a l w it h in th e s o c ie ty .
W h e r e , h o w e v e r , it a p p e a r s th a t th e re h a s b e e n a n a d e q u a te o b s e r v
a n ce o f th e r e g u la t io n s a n d th e h e a r in g a n d p r o c e d u r e h a v e b e e n fr e e
f r o m fr a u d a n d d u ress, th e c o u r ts w ill n o t in te r v e n e t o c o m p e l th e
r e in s ta te m e n t o f an e x p e lle d m e m b e r ( P r a t t v. A m a lg a m a t e d A s s o
c ia t io n o f S tr e e t a n d E le c t r ic R a ilw a y E m p lo y e e s , p . 1 4 4 ).
T h e S u p r e m e C o u r t o f G e o r g ia fo u n d th a t a m e m b e r w h o h a d b ee n
fin e d o n th e g r o u n d th a t h e h a d p r e fe r r e d u n fo u n d e d c h a r g e s a g a in s t
a fe llo w m e m b e r h a d b ee n u n a b le to m a k e h is d e fe n s e b e ca u se o f th e
in t im id a t io n o f th e w itn esses. H e w a s n o t p re s e n t at th e tim e th is
a c tio n w a s ta k e n , n o r h a d h e b ee n n o tifie d o f th e in te n tio n t o c o n
s id e r h is case. T h e c o u r t t h e r e fo r e o r d e r e d th a t h e b e g iv e n th e
p r iv ile g e s o f th e u n io n p e n d in g a p r o p e r t r ia l (H o lm e s v. B r o w n ,
p . 1 7 5 ).
I t m a y h a p p e n th a t a m e m b e r o f a u n io n is e x p e lle d in a c c o r d a n c e
w it h its c o n s titu tio n , so th a t th e e x p u ls io n is n o t r e v ie w a b le b y th e
c o u r ts , b u t a r ig h t t o d a m a g e s wTill s till r e m a in i f th e u n io n p r o c e e d s
m a lic io u s ly to p r e v e n t th e e x p e lle d m e m b e r fr o m s e c u r in g o th e r
e m p lo y m e n t. T h e a c tio n o f th e u n io n in in t e r fe r in g w it h th e m e m
b e r ’s s e c u r in g o th e r e m p lo y m e n t in th e ca se in h a n d w a s fo u n d to b e
n o t t o se rv e th e e c o n o m ic in te re s ts o f th e a s s o c ia tio n , b u t to p r e s e r v e
d is c ip lin e in th e ir o w n r a n k s b y p u n is h in g h im f o r le a v in g a n d b e
c o m in g a m e m b e r of^a r iv a l o r g a n iz a t io n (S h in s k y v. T r a c e y , p . 1 4 2 ).
T h e S u p r e m e C o u r t o f M a ssa ch u se tts t h e r e fo r e a ffirm ed an assess
m e n t o f d a m a g e s m a d e b y a m a ste r.
A p r o t r a c t e d b a ttle h a s b een fo u g h t in th e ca se S t. L o u is S o u t h
w e ste rn R y . C o . v. T h o m p s o n (p . 1 4 1 ), it h a v in g b e e n a t lea st fo u r
tim es, b e fo r e th e A p p e lla t e a n d S u p re m e C o u r ts o f T e x a s in th e m o r e
th a n 10 y e a rs d u r in g w h ic h it h a s b ee n c o n te s te d . T h e p re s e n t
h e a r in g w a s o n an a p p e a l fr o m an a w a r d o f d a m a g e s a g a in s t th e
r a ilr o a d c o m p a n y w h ic h h a d c a u se d h im to b e e x p e lle d fr o m a
b r o t h e r h o o d a n d a g a in s t th e b r o t h e r h o o d f o r its a c tio n in e x p e llin g
w r o n g fu lly a n d n o t in g o o d fa it h . T h e ju d g m e n t w a s a ffirm ed a n d
th e c o n te n tio n th a t a n ex ce ss o f d a m a g e s h a d b ee n a w a r d e d w a s
r e je c te d , sin ce a p r e v io u s d e c is io n h a d b e e n m a d e th a t a la r g e r v e r d ic t
w a s n o t e x ce ssiv e .
R E STR A IN T OE TRADE.
T h e S u p r e m e C o u r t o f th e U n it e d S ta te s h a d b e fo r e it a case
(P a in e L u m b e r C o . ( L t d .) v. N e a l, p . 1 7 6 ), a lle g in g a c o n s p ir a c y o f
a la b o r o r g a n iz a t io n t o p r e v e n t th e sa le in in te rs ta te c o m m e r c e o f
g o o d s m a n u fa c t u r e d b y th e c o m p la in in g c o m p a n y . A d is t r ic t c o u r t
a n d a c o u r t o f a p p e a ls h a d r e fu s e d to a w a rd th e in ju n c t io n p r a y e d
f o r , a n d th e S u p re m e C o u r t t o o k th e sa m e v ie w , fo u r ju s tic e s d is-.
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REVIEW OF DECISIONS OF COURTS AFFECTING LABOR.
s e n tin g . T h e c o n c lu s io n w a s b a se d p r in c ip a lly o n th e fin d in g t h a t
th e r e w a s n o m a lic e t o w a r d th e p la i n t if f s ; n o r h a d t h e y b e e n ca u se d
a n y s p e c ia l d a m a g e w a r r a n t in g an in ju n c t io n . I t w a s h e ld th a t i f
th e re w a s in fa c t r e s tr a in t o f tr a d e in v io la t io n o f th e s o -c a lle d
S h e r m a n A n t it r u s t A c t a p r iv a t e p e rs o n c o u ld n o t b r in g s u it f o r an
in ju n c t io n t h e r e u n d e r ; r e fe r e n c e w a s a lso m a d e t o th e p o s it io n ta k e n
b y th e N e w Y o r k c o u r ts in r e g a r d t o th e issu a n ce o f in ju n c t io n s as
set fo r t h in its o p in io n in th e G u m m in g ca se (1 7 0 N . Y . 8 1 5 ).
Q u ite s im ila r w a s th e p o s it io n o f th e S u p re m e C o u r t o f .M in n e s o ta
in r e g a r d t o a d is p u te b e tw e e n a b u ild e r a n d c o n t r a c t o r o f S t. P a u l
a n d th e lo c a l b u ild in g -tr a d e s c o u n c il (G e o r g e J . G r a n t C o n s t r u c
t io n C o . v. B u ild in g T r a d e s C o u n c il, p . 1 3 1 ). T h e in ju n c t io n s o u g h t
w a s n o t so m u c h t o r e s tra in d e s ig n a te d a cts as u n la w fu l, b u t w h a t
w a s te r m e d “ o r g a n iz e d e c o n o m ic o p p r e s s io n ,” th e c o n te s t b e in g o v e r
th e r ig h t a n d lib e r t y o f th e e m p lo y e r t o m a in ta in a n o p e n sh o p . I t
w a s h e ld th a t th e e m p lo y e r w a s e n t ir e ly w it h in h is r ig h t s in so d o in g ,
b u t a lso th a t th e m e m b e r s o f th e u n io n m ig h t n o t o n ly r e fu s e t o
w o r k in a n o p e n s h o p , n o c o n t r a c t b e in g in v o lv e d , b u t m ig h t a lso
a g re e n o t to w o r k f o r a n y s u b c o n t r a c t o r o n a n y p a r t o f th e w o r k ,
e v e n t h o u g h h e e m p lo y s o n ly u n io n m en . O n r e h e a r in g in th is
ca se th e q u e s tio n o f r e s tr a in t o f tr a d e w a s p re s se d , a n d , w h ile it w a s
a d m itt e d th a t th e a cts o f m e m b e r s o f la b o r -u n io n s m ig h t b e su ch as
t o v io la t e th e S ta te la w o n th e s u b je c t, th e re w a s n o t h in g s h o w n t o
in d ic a t e th a t su ch a c t io n h a d y e t b een ta k e n b y th e u n io n in q u e s tio n .
I t w a s a d d e d th a t th e sta tu te in q u e s tio n w a s n o t in te n d e d to r e q u ir e
u n w illin g r e n d it io n o f s e r v ic e d u r in g th e p e n d e n c y o f th e d is p u te .
INTERFERENCE WITH EMPLOYMENT.
S e v e r a l ca ses w e r e n o t e d in w^hich e m p lo y e r s o r b u sin e ss m a n a g e r s
s o u g h t p r o t e c t io n a g a in s t th e a cts o f o r g a n iz e d la b o r w h ic h te n d e d
t o in t e r fe r e w it h th e c o n d u c t o f th e ir e sta b lish m e n ts. T h e m o s t
im p o r t a n t o f th ese w a s p a s s e d u p o n b y th e S u p r e m e C o u r t o f th e
U n it e d S ta te s, in v o lv in g th e r ig h t o f a la b o r o r g a n iz a t io n t o seek to
u n io n iz e a p la n t a g a in s t th e o w n e r s ’ w is h e s (H it c h m a n C o a l & C o k e
C o . v. M it c h e ll, p . 1 4 5 ). I n th is ca se th e m in e in q u e s tio n w a s b e in g
c o n d u c t e d as a n o n u n io n m in e , a ll w o r k m e n th e r e in b e in g u n d e r
c o n t r a c t n o t t o b e c o m e m e m b e r s o f a la b o r o r g a n iz a t io n so lo n g as
th e y r e m a in e d in t h e ir p re s e n t e m p lo y m e n t. A p r o t r a c t e d c o n te s t
d u e to e ffo r ts o f th e U n it e d M in e W o r k e r s t o o r g a n iz e th e m in e le d t o
an in ju n c t io n r e s t r a in in g su ch a c tiv itie s , a n d th e S u p r e m e C o u r t
h e ld , th re e ju s tic e s d is s e n tin g , th a t th e o p e r a t o r s w e r e e n title d t o th e
p r o t e c t io n s o u g h t a g a in s t w h a t w a s d e te r m in e d t o b e a n ille g a l in t e r
fe r e n c e wTith th e ir r ig h ts . T h e r ig h t o f an e m p lo y e r t o th e g o o d w ill
o f its e m p lo y e e s a n d t o p r o t e c t io n in e n jo y in g a r e a s o n a b le p r o s p e c t
LABOR ORGANIZATIONS.
55
o f th e ir c o n t in u e d s e r v ic e o n a g r e e d te r m s w a s m e n tio n e d as h a v in g
a p e c u n ia r y v a lu e “ in c a lc u la b ly g r e a t ,” f o r th e p r o t e c t io n o f w h ic h
th e c o u r t s w o u ld a ct. O n th e sa m e d a y th a t th e fo r e g o i n g d e c is io n
w a s r e n d e r e d th e sa m e c o u r t a n n o u n c e d its c o n c lu s io n s in a ca se in
v o lv in g m u c h th e sa m e p r in c ip le s (E a g le G la s s M f g . C o . v. R o w e ,
p . 1 5 2 ). I n b o t h th ese ca ses th e D is t r ic t C o u r t h a d g r a n te d a t e m p o
r a r y in ju n c t io n , w h ic h h a d b ee n r e v e rs e d b y th e C ir c u it C o u r t o f
A p p e a ls , a n d in b o t h th e a c tio n o f th e C ir c u it C o u r t o f A p p e a ls w a s
re v e r s e d a n d th e in ju n c t iv e r ig h t g r a n te d . A n a d d it io n a l p o in t in th e
p re s e n t ca se w a s as t o th re a ts o f v io la t io n b y an o r g a n iz e r , an d th e
m o tiv e a n d p u r p o s e b e h in d h is a c tiv itie s , as t o w h ic h le a v e w a s g iv e n
t o c o n n e c t o th e r p e r s o n s w it h in th e ju r is d ic t io n o f th e c o u r t w it h su ch
a c ts o f th e o r g a n iz e r n a m e d .
I n B o s s e r t v. D h u y (p . 1 2 9 ) th e C o u r t o f A p p e a ls o f N e w Y o r k
c o n s id e r e d th e a c t io n o f u n io n c a r p e n te r s in in s t ig a t in g a b o y c o t t
a g a in s t a n o p e n -s h o p e sta b lish m e n t. B o s s e r t ’s fa c t o r y h a d b ee n
se le c te d f r o m a m o n g s e v e r a l as th e o n e a g a in s t w h ic h a b o y c o t t w o u ld
first b e d e c la r e d , a n d th e p r o p r ie t o r s h a d se c u re d a n in ju n c t io n ,
w h ic h w a s o n th is a p p e a l r e v e rse d . T h e d o c t r in e o f th e c o u r t , as
a lr e a d y la id d o w n , w a s r e fe r r e d to , a n d th e a cts fo u n d ju s t ifia b le
as b e in g f o r th e b e n e fit o f th e m e m b e r s h ip a n d in g o o d fa it h , r a th e r
th a n f o r a n y m a lic io u s p u r p o s e o r f o r th e d e s tr u c tio n o f th e p la in
t iff's b u sin e ss.
T h a t th e u n io n h a d g o n e b e y o n d le g a l b o u n d s in its b o y c o t t o f an
e m p lo y e r w a s fo u n d b y th e S u p r e m e C o u r t o f M a ssa c h u se tts in
H a r v e y v. C h a p m a n (p . 1 2 8 ). T h e e n tir e c o n t r o v e r s y a p p a r e n t ly
a r o se o u t o f th e fa ilu r e o f th e e m p lo y e r t o d is c h a r g e h is c le r k s o n
a c c o u n t o f th e ir n e g le c t in th e m a tte r o f th e p a y m e n t o f d u e s t o th e
u n io n . T h e c o u r t h e ld th a t th e re w a s n o a p p a r e n t ju s t ific a t io n f o r
th e c o n d u c t o f th e u n io n in p ic k e t in g a n d b o y c o t t in g , it h a v in g n o
r e a l d is p u te w it h th e e m p lo y e r , a n d h is e m p lo y e e s n o t b e in g e n
g a g e d in th e d is p u te .
T h e sa m e c o u r t h a d b e fo r e it a ca se in w h ic h r iv a l o r g a n iz a tio n s
o f m o v in g -p ic t u r e o p e r a t o r s w e r e in v o lv e d (M a r t in v. F r a n c k e ,
p . 1 2 7 ). T h e p r o p r ie t o r s o f th e th e a te r , a n d th e ir o p e r a to r s , w h o
w e r e m e m b e rs o f th e K n ig h t s o f L a b o r , s o u g h t a n in ju n c t io n a g a in s t
a b o y c o t t a n d th e a d v e r t is in g o f th e th e a te r as u n fa ir t o o r g a n iz e d
la b o r . A lt h o u g h n o a c tu a l lo s s in a tte n d a n c e w a s s h o w n o n a c c o u n t
o f th e p ic k e t in g , th e r iv a l u n io n w a s e n jo in e d fr o m in t e r fe r in g w it h
th e r ig h t s o f th e e m p lo y e r s a n d th e ir e m p lo y e e s . A q u ite s im ila r
ca se w a s b r o u g h t b e f o r e th e S u p r e m e C o u r t o f M in n e s o ta , t h o u g h in
th is in s ta n c e th e o p e r a t o r e m p lo y e d w a s n o t a u n io n m a n . A n in
ju n c t io n w a s s o u g h t t o p r e v e n t th e p ic k e t in g o f th e th e a te r a n d th e
c a r r y in g o f a b a n n e r a n n o u n c in g th a t th e p r o p r ie t o r w a s u n fa ir to
o r g a n iz e d la b o r . I t w a s h e ld th a t th e te r m “ u n fa ir ” h a d a lim it e d
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m e a n in g p e r t a in in g t o th e r e la tio n s o f th e e m p lo y e r w it h o r g a n iz e d
la b o r , w it h o u t im p ly in g m o r a l s h o r t c o m in g s o r la c k o f in t e g r it y ,
a n d s in c e th e e ffo r t w a s m a d e to fu r t h e r th e in te re s ts o f th e u n io n ,
a n d .n o t as a m a lic io u s in t e r fe r e n c e w it h th e r ig h t o f th e e m p lo y e r ,
n o in ju n c t io n w o u ld b e a llo w e d . I t w a s sa id , h o w e v e r , th a t i f , u p o n
a h e a r in g , th e c h a r g e s , m a d e w e r e fo u n d tru e , p r o p e r r e lie f w o u ld
b e a ffo r d e d (S t e ffe s v. M o t io n P ic t u r e M a c h in e O p e r a t o r s ’ U n io n ,
p . 1 2 5 ). A lik e c o n c lu s io n w a s r e a c h e d b y th e S u p r e m e C o u r t o f
M o n ta n a in a ca se (E m p ir e T h e a t e r C o . v. C lo k e , p . 1 2 3 ), w h e re th e
d is p u te a rose o v e r th e r e fu s a l o f th e c o m p a n y t o e m p lo y fiv e m e m
b e r s o f th e M u s ic ia n s ’ U n io n a t e v e r y e x h ib it io n o f m o v in g p ic tu r e s .
I t w a s d e n ie d th a t th e p la in t iff h a d a n y v e ste d r ig h t in th e p a t r o n a g e
o f th e d e fe n d a n ts , o r o f a n y o n e else c h o o s in g to w it h h o ld i t ; n o r
h a d p e r s o n s w is h in g t o p a t r o n iz e th e th e a te r a n y v e ste d r ig h t s o f
p a t r o n a g e ; b u t t h e y m u st ta k e it o n th e te r m s im p o s e d o r le a v e it
as t h e y sa w fit. A d m it t in g th a t su ch d ic t a t io n is o ffe n s iv e , it w a s
h e ld th a t a tte m p te d d ic t a t io n is a lw a y s p re s e n t, a n d th a t th e p u b lic
m u s t c h o o s e w h e th e r it w ill y ie ld , su ch d ic t a t io n n o t b e in g an u n
l a w f u l in v a s io n o f lib e r t y i f it a m o u n ts t o n o t h in g m o r e th a n a
d e m a n d w h ic h a p e r s o n h a s a le g a l r ig h t t o m a k e , u p o n th e a lte r n a
t iv e o f h is d is p le a s u re .
I n v o lv i n g c ir c u m s ta n c e s q u ite s im ila r to th e M a r t in ca se a b o v e , is
o n e (T r a c e y v. O s b o r n e , p . 1 3 8 ), n i w h ic h a n o r g a n iz a t io n o f sh o e
w o r k e r s s o u g h t to r e s tr a in a r iv a l u n io n fr o m c a u s in g e m p lo y e r s to
b r e a k a g re e m e n ts to e m p lo y m e m b e r s o f th e p la in t iff u n io n . A g r e e
m e n ts h a d b ee n m a d e b y th e a u th o r iz e d a g e n c ie s o f th e c o m p la in in g
u n io n w h e r e b y e m p lo y e r s s h o u ld b e fu r n is h e d w it h la b o r b y th a t
u n io n , so lo n g as it w a s a b le t o d o so, a n d f o r th a t p e r io d m e m b e r s
o f th e u n io n s h o u ld b e e m p lo y e d t o th e e x c lu s io n o f a ll o th e rs. T h e
la w fu ln e s s o f su ch a g re e m e n ts w a s su sta in e d b y th e S u p r e m e C o u r t
o f M a ssa c h u se tts , a n d e ffo r ts to p r o c u r e th e b r e a c h o f c o n t r a c ts o f
th is n a tu r e w e r e h e ld t o b e a n in v a s io n o f r ig h t s w a r r a n t in g th e
issu e o f th e in ju n c t io n .
STRIKES.
A n y d is t r ib u t io n o f cases in v o lv in g la b o r d is p u te s is d ifficu lt, in
v ie w o f th e fa c t th a t str ik e s in v o lv e p ic k e t in g , a n d p ic k e t in g is
f o r th e p u r p o s e o f a b o y c o t t , w h ile in ju n c t io n s are s o u g h t to p r e v e n t
w h a te v e r s p e c ific a ct a p p e a ls t o th e a g g r ie v e d p a r t y as th e v it a l o r
v u ln e r a b le p o in t o f a tta c k . T h e ca ses g r o u p e d u n d e r th is h e a d
t h e r e fo r e in v o lv e m a tte r s o f ' p ic k e t in g , c o n s p ir a c y , etc. I n a case
p a s s e d u p o n b y a U n it e d S ta te s d is t r ic t c o u r t , th e o b lig a t io n o f a
te le p h o n e c o m p a n y t o m a in ta in its se r v ic e as set fo r t h in its c h a r te r
w a s p le a d e d , a n d a d e cr e e a sk e d fo r , d ir e c t in g th e c o m p a n y t o r e n
d e r its s e r v ic e a n d m a in ta in its e q u ip m e n t as a d u t y p a r a m o u n t
LABOR ORGANIZATIONS.
57
t o th e p r iv a t e in te re s ts o f th e c o m p a n y a n d a ll o t h e r p e r s o n s w h a t
so e v e r. I t w a s r e p lie d th a t th e in a b ilit y t o r e n d e r s e r v ic e w a s d u e
to th e a cts o f s tr ik e rs a n d s y m p a th iz e r s , w h o p r e v e n te d th e e m p lo y
m e n t o f r e p a ir m e n , a n d a n in ju n c t io n w a s issu e d a g a in s t in t e r fe r
en ce w it h th e c o m p a n y ’s e m p lo y e e s . T h e c o n te n tio n w a s th e n r a is e d
th a t th e in ju n c t io n a tte m p te d t o re s tra in th e s tr ik e r s f r o m a c tio n s
c la im e d to b e l a w fu l u n d e r th e a n titr u s t a c t as a m e n d e d b y th e
s o -c a lle d C la y t o n A c t . T h e c o u r t fo u n d th a t th is a ct, s o m e tim e s
c a lle d “ L a b o r ’s B i ll o f E ig h t s ,” a lso r e c o g n iz e d th e r ig h t s o f th e
e m p lo y e r a n d o f th e p u b lic , a n d lim it e d th e a cts it w o u ld ju s t if y t o
th o s e w h ic h a re la w fu l a n d p e a c e fu l, a c c e p t in g as a f a ir test o f
p e a c e fu l p ic k e t in g th e in q u ir y as t o w h e th e r th ese a cts w o u ld b e la w
f u l i f n o s tr ik e e x is te d (S t e p h e n s v. O h io T e le p h o n e C o ., p . 1 6 5 ).
T h e in ju n c t io n w a s n o t m o d ifie d , th e c o u r t h o ld in g th a t n o a c tio n s
p e r m itte d b y th e C la y t o n A c t w e r e in t e r d ic t e d b y it. A c ir c u it c o u r t
o f a p p e a ls a lso s u sta in e d an in ju n c t io n , t h o u g h w it h m o d ific a t io n s ,
in a ca se ( T r i - C i t y C e n tr a l T r a d e s C o u n c il v. A m e r ic a n S te e l F o u n
d rie s , p . 1 5 8 ), w h e re p ic k e ts h a d a ssa u lte d e m p lo y e e s , t h r e a te n in g
a n y w h o m ig h t ta k e e m p lo y m e n t w ith th e e m p lo y e r s . A l l p ic k e t in g
w a s e n jo in e d b y th e d e cr e e e n te r e d b y th e. d is t r ic t c o u r t, b u t th e
c o u r t o f a p p e a ls h e ld th a t p e a c e fu l p ic k e t in g w a s la w fu l. T h e p r in
c ip le s g o v e r n in g strik e s f o r h ig h e r w a g e s a n d im p r o v e d c o n d it io n s
w e r e p a sse d u p o n , su ch a c tio n b e in g d e c la r e d la w fu l, t h o u g h i f th e re
is an u n la w fu l c o n s p ir a c y to d e s tr o y b u sin e ss, e v e n la w fu l a cts o f
s t r ik in g e m p lo y e e s m a y b e r e stra in e d . T h e m e re fa c t th a t b u sin e ss
is in te r r u p te d w a s sa id n o t to d e te r m in e th e la w fu ln e s s o f a str ik e ,
o r o f p e rs u a s io n o r p ic k e t in g in th e in te re s ts o f a la w fu l s t r ik e ; b u t
th e q u e s tio n o f le g a lit y is t o b e d e c id e d u p o n th e fa c t s in e a ch case.
T h e sta tu s o f fo r m e r e m p lo y e e s o n strik e w a s to u c h e d u p o n , b e in g
d e s c r ib e d as on e o f a t e m p o r a r y su sp e n sio n o f r e la tio n s , b u t n o t on e
o f an a b so lu te d e te r m in a tio n o f t h e m ; so th a t su ch in t e r fe r e n c e as
m ig h t la w fu lly be e n g a g e d in c o u ld n o t b e sa id to b e an a ct o f m e re
in te r m e d d le r s .
A n in ju n c t io n w a s g r a n te d b y th e U n it e d S ta te s D is t r ic t C o u r t
f o r th e W e s t e r n D is t r ic t o f W a s h in g t o n (A la s k a S te a m s h ip C o . v.
In t e r n a t io n a l L o n g s h o r e m e n ’s A s s o c ia t io n o f P u g e t S o u n d , p . 1 6 0 ),
c o n s p ir a c y a n d v io le n c e b e in g sh o w n , a lso in t e r fe r e n c e w ith in t e r
sta te c o m m e rc e . L a w fu l p ic k e t in g w a s r e c o g n iz e d , b u t it w a s s a id
th a t s lig h t v io le n c e o r in t im id a t io n w o u ld h a v e m u c h w e ig h t in d e te r
m in in g its c h a r a c te r . T h e r ig h t to s tr ik e w a s m a in ta in e d , b u t n o
o v e r t a ct o b s tr u c t in g th e u se o f th e c o m p la in a n t ’s p r o p e r t y is ju s t ifi
a b le. R e fe r e n c e w a s m a d e in th is caso, t o th e C la y t o n A c t , b u t th e
p r iv ile g e s e n o u n c e d w e r e h e ld t o h a v e b e e n e x ce e d e d . A n o t h e r ca se
in w h ic h an in ju n c t io n w a s g r a n te d w a s th a t o f th e N ile s -B e m e n t P o n d C o . v. I r o n M o ld e r s ’ LTnion (p . 1 7 2 ), in w h ic h a d is t r ic t c o u r t
58
REVIEW OF DECISIONS OF COURTS AFFECTING LABOR.
for the Southern District of Ohio found strikers guilty of assaults
and violent conduct participated in by members of the union and
even the strike committee, with no apparent effort on the part of the
union to discourage such wrongful conduct. The right to strike and
maintain a peaceful picket was declared, but abuse and intimidation
were said to have no place.
An agreement of members of the union not to work with nontmion men was again upheld (Cohn & Roth Electric Co. v. Brick
layers’, etcn Union, p. 162), the complainant in this instance being an
electric company whose opportunity to make contracts was being
interfered with because other mechanics would not work on build-.
ings on which nonunion employees were engaged. An injunction
sought for was therefore refused by a lower court, this finding being
approved by the Supreme Court of Connecticut. The same court
granted a new trial in a case in which damages had been awarded
by the court below by reason of the acts of strikers and pickets, a
part of the damages allowed being for the expense of guards to
protect the company’s property. (Max Ams Mach. Co. v. Inter
national Ass’n of Machinists, p. 164.) It was inferable that a por
tion of this expense was for guards employed after the issue of the
injunction, and as it could not be assumed that the injunction would
be violated, the court decided that such expense should be borne by
the company itself if it wished to continue the guards, and it was
for the allowance of this cost that the new trial was ordered.
Where an employer was engaged in the conduct of business on
the open-shop plan, and both union and nonunion men had been
employed, the Supreme Court of Massachusetts held that the union
men are within their rights in withdrawing from the employment,
but may be enjoined from interfering with other contracts by means
of a secondary boycott or blacklist. Damages by reason of the viola
tion of an alleged contract by the officers of the union to furnish
labor were held not to be available, since the officers had no power tc
make a binding bargain, unless authorized thereto in some definite
way by the men themselves. (W. A. Snow Iron Works (Inc.) v.
Chadwick, p. 171.) The illegality of a secondary boycott was alse
maintained by the Supreme Court of New York (Justin Seubert.
Inc., v. Reiff, p. 136), where there was an effort to compel the use ol
a union label; an injunction was therefore issued, and the question
of damages was submitted to a referee.
A novel feature in a case passed upon by the Supreme Court ol
New Hampshire (White Mountain Freezer Co. v. Murphy,p. 169) was
as to the right of the labor commissioner of the State to be exempt
from testifying in a labor dispute, with regard to which he had ob
tained particulars by reason of attempts on his part to act as a con
ciliator. The court held that there was no confidential relation in-
LABOR ORGANIZATION'S.
59
volved, but that his status was comparable to that of a subordinate
court, so that he might be called upon to give evidence. It may be
noted that the situation was changed by an act of the legislature
making it impossible for the commissioner thus to give testimony in
the future. The dispute in this case arose over an attempt to procure
the unionizing of the shops, and questions as to whether the action of
the union could be classed as a conspiracy and whether organized
picketing was unlawful, were carried to the supreme court, which de
cided that under the circumstances the strikers were called, upon to
give evidence as to the lawfulness of their motives in declaring the
strike, and that the legality of picketing would be determined by the
facts shown in a disclosure of the methods used.
Punishment for contempt was considered by the Chancery Court
of New Jersey in a case, Flockhart v. Local No. 40 (p. 163), in which
the conduct of an alleged violator of an injunction was said to indi
cate an assumption on his part that he could by some means evade
punishment for any act that he thought necessary for the success of
the strike. In view of the persistence of the offenses jail sentences for
40 and 20 days were imposed upon two offenders, but there was a sub
sequent remission of the unexpired portion of the sentence on the
ground that there had been a sufficient penalty to convince the offend
ers that they must obey the injunction.
Unfortunate events that frequently accompany labor disputes, re
sulting fatally in two cases noted, were considered by the California
Court of Appeals and the Supreme Court of Colorado. In the first
instance (People v. Schmidt, p. 133), the court affirmed the conviction
and sentence to life imprisonment in the case of a person charged with
responsibility for the death of a person named, on the occasion of the
destruction of the Los Angeles Times Building in 1910. The case
turned largely on the nature of the evidence which connected the de
fendant with the events leading up to the explosion and its conse
quences ; the principles governing convictions for conspiracy are also
briefly discussed. The connection of the party with the different
activities was held to be shown by the various items of circumstantial
evidence developed, and the conviction was affirmed.
In the case before the Colorado court (Zancannelli v. People, p. 173),
the action of the court below in convicting the appellant for murder
was reversed, the circumstances being such that the court was not able
to content itself with a simple reversal, but showed the animus of the
prosecution and the court, and the nature and number of the errors
to be such that if they had not been “ written into the record as they
are, under the seal of the trial court, we could not believe that such
things had occurred in the trial of a cause in a court of record.”
Another case that may be noted in this connection is one in which
the Supreme Court of Arkansas affirmed a sentence of imprisonment
60
REVIEW OF DECISIONS OF COURTS AFFECTING LABOR.
in the case of an assault by a striker. (Cranford v. State, p. 157.) The
contention of the appellant was chiefly as to erroneous admissions by
the court of testimony as to what he had said before the occurrence
of the alleged assault. The court ruled that it was admissible as
showing the state of the appellant’s mind, and his feeling toward
persons of the class to which the assaulted man belonged.
PICKETING.
The specific point of picketing in strikes was passed upon in a few
cases noted, the Supreme Court of New York (Heitkamper v. Hoffman,
p. 154) granting an injunction against such picketing as to blockade
the entrance to the complainant’s place of business, marching upon
the sidewalk in front of his shop, or interfering with his customers
by threats, violence, etc., though at the same time recognizing the
right of the union to distribute a circular giving information as to
the relations between the complainant and union labor and asking
those who sympathized with such labor to withhold their patronage.
Similarly, an injunction against picketing was directed by the
Supreme Court of Washington in a case involving much the same
class of conditions. (St. Germain v. Bakery & Confectionery Work
ers’ Union, p. 153.) The court below had described what picketing
would be allowed, but the supreme court held that all picketing
should have been forbidden, since there »wTas a legal right to carry on
business without obstruction. This case arose on the failure of the
employer to compel the payment of union dues by its employees, and
cards had been distributed, and large numbers of persons blockading
the streets and sidewalks had joined to coerce the action of the
employer.
Municipal ordinances were considered by appellate courts of Texas
and Oklahoma. In the former case (Ex parte Stout, p. 155) the con
stitutionality of an ordinance of the city of El Paso forbidding
walking up and down in front of the place of business with signs
to discourage dealing with the person being picketed was affirmed.
The court took the ground that the conduct prohibited was of a
nature likely to lead to disturbances, to intimidate customers, and
injure business which should properly be protected. In the other'
case, on the other hand (In re Sweitzer, p. 156), an ordinance of
Oklahoma City prohibiting loitering was held not to be available to
prevent picketing, in view of the fact that there was a State law
authorizing the performance of acts in labor disputes which would
not be criminal if committed by one person. It was said that the
ordinance could not do indirectly or incidentally what it could not do
directly, and a discharge was granted in the case of the defendant
convicted thereunder.
DECISIONS OF COURTS AFFECTING LABOR: 1917.
A lie n Contract Labor— Bringing Seaman from China— Scharrenberg v. Dollar S. S. Co. et al., Supreme Court of the United
States {Nov. <5,1917), 38 Supreme Court Reporter , page 28.— Action
for statutory penalties was brought by Paul Scharrenberg against
the company named and two other corporations, operators of the
British steamship Bessie Dollar, and the master of that ship. There
were 19 counts in the complaint, each charging the bringing of a
Chinaman from Shanghai, China, to San Francisco. Scharren
berg afterwards shipped on another steamship, the Mackinaw,
working “ as a seaman” upon it for some days at San Francisco,
going thence to Grays Harbor, Seattle, Wash., and being under con
tract to complete the voyage to Shanghai. The action was brought
while the vessel was still at Grays Harbor. The subordinate courts
rendered judgment for the defendants on demurrer, and this was
affirmed by the Supreme Court, which held that the facts alleged in
the complaint made out no violation of the law of the United States
prohibiting the importation of alien contract laborers. Mr. Justice
Clarke delivered the opinion, and, after stating the allegations, spoke
as follows:
The employment of the man to serve as a bona fide seaman on the
Mackinaw is not questioned, and the allegations of the complaint
negative any suspicion that the employment of him in China was a
subterfuge adopted for the purpose of unlawfully securing his en-'
try into the United States.
Basing his right upon the allegations of the complaint, the claim
of the petitioner is, that by employing and bringing an alien laborer
as a seaman to San Francisco, in the manner described, for the pur
pose of shipping him, followed by his actually being shipped, as a
seaman on board a vessel of American registry, the defendants
violated the act of Congress of February 20, 190T [forbidding the
importation, etc., of alien contract labor] (34 Stat. at Large, p.
898).
The argument in support of this claim is that the seaman, de
scribed in each count of the complaint, was an alien contract laborer;
that the steamship Mackinaw was a part of the territory of the
United States, and that therefore the contracting to bring such alien
to San Francisco and to there employ him upon such vessel was to
knowingly assist and encourage the migration of an alien contract
laborer into the United States, for the purpose of having him per
form labor therein, in violation of the fourth and fifth sections of the
act.
61
62
DECISIONS OF COURTS AFFECTING LABOR.
The pertinent provisions of the act are then reviewed, and the
opinion continues:
In familiar speech a “ seaman ” may be called a “ sailor ” or a
“ mariner,” but he is never called a “ laborer,” although he doubt
less performs labor when assisting in the care and management of
his ship; and a “ seaman ” is defined, in the United States statutes
applicable to “ merchant seamen,” as being any person (masters and
apprentices excepted) who shall be employed to serve in any capacity
on board a vessel. (B. S. sec. 4612.) In the shipping articles, which
the United States law requires shall be signed by members of the
crews of ships of American registry engaged in foreign commerce,
the men are designated as “ seamen ” or “ mariners.” Thus, neither
in popular nor in technical legal language would the men employed
on the Mackinaw be called or classed as “ laborers,” and such seamen
are not brought “ into this country ” to enter into competition with
the labor of its inhabitants, but they come to our shores only to sail
away again in foreign commerce on the ship which brings them or
on another, as soon as employment can be obtained.
A
ss ig n m e n t s
of
W
ages — -C o n s t it u t io n a l it y
of
L oan
L
aw —
People v. Stokes, Supreme Court of Illinois ( Dec. 19, 1917), 118
. Northeastern Reporter , page 87.—F. B. Stokes was convicted of a vio
lation of the act, page 553, L a w s of 1917, requiring lenders of money
in amounts less than $300 and at rates of interest greater than 7 per
cent per annum to be licensed, and regulating the conduct of such
business. The offense charged consisted of loaning to one Miller, on
an assignment of his wages, $100 at a rate of interest alleged to be
per cent per month—the borrower receiving $100, and agreeing to
pay back $25 per month until $150 had been paid. The only ground
of appeal from the judgment of conviction was that the statute was
invalid. The supreme court upheld the act and affirmed the judg
ment, Judge Craig delivering the opinion. He considered together
the first .and second objections, viz, that the act was class legislation,
abridging the privileges and immunities of citizens and depriving
them of property without due process of law, in contravention of the
Federal and State constitutions, and that it granted special privileges
or franchises. These contentions were answered by references to
decisions of the Supreme Court of the United States and of the
courts of the States. The other objections, based on the State con
stitution, are likewise found to be untenable, in that the act
embraces subjects not expressed in its title, and is a local or special
law regulating the rate of interest; and that it vests judicial powers
in an administrative body, the department of trade and commerce,
which is authorized to grant or refuse licenses, according to the
qualifications of the applicant or the lack of them, and to demand
additional security from licensees when the bond given becomes
TEXT AND SUMMARIES OF DECISIONS.
63
doubtful for any reason. It was pointed out that these powers were
administrative and intended merely to further the carrying out of
the law as enacted, and that a party who was refused a license, or
whose license was revoked, had an undoubted right to resort to the
courts for redress.
A s s ig n m e n t s of W ages — C o n s t it u t io n a l it y of L o a n L a w — Wessell v. Timberlake, Supreme Court of Ohio {Nov. 21, 1916), 116
Northeastern Reporter , page J$ .—Herman Wessell was arrested by
one Timberlake, a constable, for making loans at a rate of interest
in excess of 8 per cent without a license. He brought habeas corpus
proceedings to test the validity of the chattel-loan law of Ohio (sec.
6346-1 to 6346-9, General Code)- The common pleas court of Ham
ilton County and the court of appeals successively declared the law
valid, and this judgment was affirmed by the supreme court, Judge
Wanamaker delivering the opinion. The claim of unconstitution
ality was largely based upon deprivation of property and due process
of law, emphasis being placed upon the alleged arbitrary power con
ferred upon the superintendent of banks to revoke a license when in
his opinion the licensee was guilty of violation of the law, with an
unfair and ex parte hearing or none at all, and with no opportunity
of appeal to the courts. The judge stated that the plaintiff relied
largely upon the decisions of a United States district court regarding
the so-called blue-sky law, but that this decision had recently been
reversed by the United States Supreme Court (Hall, etc., v. GeigerJones Co., 242 U. S. 539, 37 Sup. Ct. 217). Judge Wanamaker then
discussed the nature and scope of the police power, and quoted from
an opinion by Mr. Justice Day on the subject. Ancient and modern
instances of legislation against usury are cited. Continuing, he said :
It would seem now too late to challenge the constitutionality of
such legislation upon the ground that it is a denial of the right of
property or liberty of contract.
The right of property, or liberty of contract with reference to
property, is by our own constitution made “ subservient to the public
welfare.” Where, therefore, a statute seeks to accomplish such pur
pose as prevention of usury, such statute is clearly within the police
power of the State of Ohio under the provisions of both the State
and Federal constitutions, unless some part of the machinery for its
administration may violate some provision of State or Federal con
stitution.
The power of the State to regulate the business of chattel loans
was said to be settled in Sanning v. City of Cincinnati, 81 Ohio St.
142, 90 N. E. 125.
The court continues:
* We come now to consider the second question as to whether or not
the plans and provisions of the statute for the promotion of such
purposes are a legal exercise of such police power.
64
DECISIONS OF COURTS AFFECTING LABOR.
The legal machinery provided by the statute for the enforcement
of its provisions obviously must be operated by some officer or board.
The statute designates the superintendent of banks as such officer.
He grants the license provided for by the act, and agreeable to the
act may revoke a license. He is merely the executive of the State for
the enforcement of the statute, and the presumption surely is that
.he would exercise his discretion fairly and justly and in accordance
with the purpose, terms, and spirit of the act.
The decisions of the United States Supreme Court in the “ Trading
Stamp Case,” East v. Van Deman & Lewis Co., 240 U. S. 342, 36
Sup. Ct. 370, and in the “ Blue Sky Law Case,” were then examined,
and the doctrine as to valid classifications adopted in those cases was
held to apply to the present. The court then said that the chief and
most serious objection is that relating to the revocation of licenses;
but since in this instance the plaintiff did not take steps to secure a
license at all, but ignored the law and contested its validity as a whole,
the question of the validity of the provisions for revocation was not
presented as essential to the disposition of-the case. In so far as
involved, is the conclusion, the act is a valid one within the police
power of the State, and not in conflict with any provision of the
Constitution of the United States.
B oycott — B l a c k l is t in g — C o n sp ir a c y — C o m b in a t io n
in
R e
Knaucr v. United States, United
States Circuit Court of Appeals, Eighth Circuit {Sept. 16, 1916),
237 Federal Reporter , page 8.— Prosecution was inaugurated against
s t r a in t of
36 persons,
T rade — A
n t it r u s t
A
ct —
members o f the N a tio n a l A ssociation o f M aster P lum bers,
and they were indicted fo r conspiracy in violation o f section 1 o f
the Sherm an A n titru st A c t enacted in
1890.
T h e y were convicted
o f this offense in a district court, and the circuit court o f appeals
affirmed the ju d gm en t, the illeg a lity o f the policies carried out by the
association being shown in the fo llo w in g quotation fro m the opinion
delivered by Ju dge S m ith :
When the Sherman law was passed in 1890 the National Associa
tion of Master Plumbers had been organized for the “ protection ” of
master plumbers against the competition of the manufacturers and
wholesalers, and had pledged members not to buy of such manu
facturers and dealers as sold to consumers, and this had been de
clared “ the pivot of the position we are striving for as an organiza
tion.” On the day that the Sherman law became effective this or
ganization became illegal under the decision of Eastern States Lum
ber Ass’n v. United States, 234 U. S. 600, 34 Sup. Ct. 951 [Bui. No.
169, p. 53].
It is not our purpose to in any way limit the power of the mem
bers of the association to withdraw as soon as it became manifestly b
an illegal association. In other words, we would not deprive any’
member of his locus pcenitentise; but in 1899, after the passage of
65
TEXT AND SUMMARIES OF DECISIONS.
the Sherman law, at New Orleans the National Association of Mas
ter Plumbers adopted what is known as the “ New Orleans resolu
tion,” as follows:
“ That we, the master plumbers of the United States, in conven
tion assembled, do hereby assert our rights to be protected in con
ducting our business as plumbers and business men, and in the
future will purchase our supplies from those who sell only to mem
bers of the national association of master plumbers and manufac
turers and jobbers in accord therewith.”
As there were about twice as many master plumbers outside the
association as inside, though generally speaking the individuals out
side had rather a smaller business than those inside, still the busi
ness of those outside was so considerable that many of the manu
facturers and dealers decided to resist the attempt, which was
apparently successful in cutting from the list of their customers the
consumers, and now sought to extend this to two-thirds of the
plumbers. This resulted in a conference in New York, at which an
agreement known as the “ New York agreement” was made. Con
flicts arising under this agreement, in 1902, at Atlantic City, what
was known as the “ Cleveland resolution” was adopted, as follows:
“ That members of the National Association of Master Plumbers
are requested to confine their purchases of plumbing goods to manu
facturers and jobbers who are willing to assist in improving the
condition of the plumbing business, and who sell plumbing goods in
localities where there are members of the National Association of
Master Plumbers only to recognized master plumbers whose names
appear in the National Directory of Master Plumbers, published un
der the supervision of the National Association of Master Plumbers.”
It thus satisfactorily appears that the National Association was
called for the purpose of doing what is now a violation of law, and
such purpose was “ the pivot of ” its position. Instead of with
drawing when it became illegal, members by remaining such, and
continuing without objection when the association increased the
already illegal restraint, became guilty under the Sherman law with
out proof of any individual participation in any overt act. The
institution, if the law had been as it now is, would have been illegal
from its inception, and all who joined it with knowledge of its pur
poses, and remained members after the Sherman law was passed,
and made no effort to withdraw, or have the association withdraw,
from its illegal course, are subject to conviction for conspiracy un
der the law. One who was a member when the act of July 2, 1890,
was passed, or who subsequently became a member, and who knew
the illegal purpose of the association, and never withdrew' from it or
repudiated its illegal methods, is guilty under the act in question.
B oycott — B l a c k l is t in g — C o n s p ir a c y — C o m b in a t io n
in
R e
— United States v. Hollis et al.,
United States District Court, District of Montana, Fourth Division
{Mar.
1917), 21^6 Federal Reporter , page 611.—Suit in equity
was brought under the Sherman Antitrust Act against Willard G.
Hollis and others, alleging them to be engaged in an unlawful const r a in t of
T rade — A
n t it r u s t
649190—18—Bull. 246----- 5
A
ct
66
DECISIONS OF COURTS AFFECTING LABOR.
spiracy and combination to restrain trade. The defendants were
members of the Northwestern Lumbermen’s Association, composed
of retail lumber dealers in Minnesota, Iowa, North Dakota, South
Dakota, and part of Nebraska. It was charged that the objects of
their organization were as follows:
(1) To unreasonably eliminate or restrict competition, except as
between retail yards, for the trade of (a) contractors and builders,
(b) mail-order houses, (c) cooperative yards, (d) the ultimate con
sumer, except possibly some consumers, such as the United States
Government, railroads, grain elevators, etc. (2) To force the ulti
mate consumer to buy at retail prices from regularly established and
organized retail lumber merchants, recognized by retail associations.
(3) To force the ultimate consumer to buy from the regular and
recognized retail merchant who is operating a yard in the vicinity
where such lumber is to be used. (4) To prevent any wholesale
dealer or manufacturer from quoting prices, or selling and ship
ping to consumers.
The association adopted a code of ethics which had been adopted
by the National Lumber Manufacturers’ Association, one article of
which was as follows:
It should be the duty of the manufacturer and wholesaler to take
an active interest in the marketing of their products through regular
channels only. * * * It is the sense of the conference that the
widest trade publicity be given for the purpose of making known
irresponsive, irregular, and unscrupulous dealers and manufacturers.
The word “ irregular ” in the above was in 1909 changed to “ un
ethical.”
One method which the activity of the association took was the use of
“ customers’ lists.” The members of the association reported the names
of wholesalers and manufacturers with whom they dealt, and from this
information a list of the customers of each wholesaler and manufac
turer was compiled. This was extended by exchange of lists with simi
lar associations in other territory. Through reports of the members
and of detectives employed by the association, information was re
ceived of sales by wholesalers or manufacturers to consumers, including
cooperative and mail-order houses, and this was sent to the customers
of the wholesalers or manufacturers concerned, who protested against
the “ unethical ” shipment. The members did not deny the existence
of this method, but did deny that it was carried out in furtherance
of a conspiracy, or that members receiving such notice were under
any obligation to take action upon it. Information as to shipments
of lumber directly to consumers was furnished by the secretary of the
association to the Mississippi Valley Lumberman, and this journal
also published under the heading “ selfish dealers,” a list of retailers
who traded with the offending manufacturers, and a list of the manu
facturers and wholesalers who had signed an affidavit that uthey
TEXT AND SUMMARIES OF DECISIONS.
67
do not sell to catalogue houses, nor solicit trade of the consumers in
the territory of the legitimate dealers.” One contention of the de
fendants was that there was no evidence of actual restraint of inter
state commerce resulting. The court reviewed the testimony, show
ing that the manufacturers usually made promises of amendment
when reprimanded by the retailers, and that the testimony from
the mail-order houses, etc., made it plain that they had difficulty in
securing the desired lumber, although in some cases they were able
to get what they wanted. In the concluding portion of the opinion
Judge Booth, who held the law violated and granted the injunction
sought by the Government, said:
The test is, not whether by alleged methods carried out in pur
suance of a conspiracy some portion of interstate commerce is anni
hilated, but whether such commerce is substantially interfered with
or restrained.
The responsibility of those who unlawfully place substantial ob
stacles in the legitimate channels of interstate commerce is not less
ened by the fact that some of the persons engaged in such commerce
are able by superior agility to surmount the obstacles, and that others
by strength are able to break them down.
The court will not feel itself compelled to adjudicate in mathe
matical terms the extent of the restraint of interstate commerce, if the
evidence shows that it is substantial. Nor is it material here that the
motives of the defendants in carrying out the activities above de
scribed were of the best, and that the acts were inspired by an honest
belief that the interests, not only of those engaged in the lumber trade,
but of the community at large, would be best served by having lumber
and lumber products distributed solely through so-called regular'
channels. Such matters might very properly be considered by Con
gress in determining the propriety of enacting proposed legislation.
The sole inquiry here before the court at this time, however, is whether
the facts disclosed by the record make out a case within the statute
already enacted.
In Eastern States Lumber Association v. United States the court
uses the following language:
The argument that the course pursued is necessary to the protection
of the retail trade and promotive of the public welfare in providing
retail facilities is answered by the fact that Congress, with the right
to control the field of interstate commerce, has so legislated as to pre
vent resort to practices which unduly restrain competition or unduly
obstruct the free flow of such commerce, and private choice of means
must yield to the national authority thus exerted. Addyston Pipe
Co. v. United States, 175 U. S. 211, 241, 242, 20 Sup. Ct. 96.
In my judgment, the Government has clearly made out a case with
in the statute, as interpreted in Eastern States Lumber Association v.
United States, 234 U. S. 600, 34 Sup. Ct. 951 [Bui. No. 169,p. 53],and
Lawlor v. Loewe, 235 U. S. 522, 35 Sup. Ct. 170 [Bui. No. 169, p. 140],
and is entitled to relief by way of injunction.
It is proper to add that the defendants have, each of them, activities
other than those above criticized, of wide range and considerable im
portance, in reference to which no complaint is made.
DECISIONS OF COURTS AFFECTING LABOR.
68
E
m ployees’
D
is a b il it y
I n s u r a n c e — C olor B l in d n e s s
as
Com
Brotherhood of
Railroad Trainmen, Supreme Court of Nebraska {Nov. 3,1917 ), 165
Northwestern Reporter , page 11±1.— D o ris R o u tt was a train m an in
plete
P e r m a n e n t L oss
and
of
S ig h t — Routt v.
the em ploy o f the U n io n Pacific R a ilro a d Co. and was discharged
on June 5.
1913,
because he h ad become affected w ith color blindness.
H e was insured b y the B roth erh ood o f R a ilro ad T ra in m en , am ong
other th in gs, again st “ the com plete and perm anent loss o f sigh t o f
both eyes,” w hich w as declared to constitute total and perm anent
disability.
On refu sal
o f the association to m ake paym en t he brough t
suit, and a verdict in his fa v o r fo r
trict court o f D o u g la s C ou n ty.
$1,740
was rendered by the dis
T h e brotherhood contended that
color blindness w as not “ com plete and perm anent loss o f sig h t,”
since the eyes m ig h t be used fo r other purposes, though the em ployee
was disqualified
fo r
railroad
service.
The
court, Ju dge
H am er
delivering the opinion, affirmed the ju d gm en t, first exam in in g cer
tain cases analogous to the present one, and then sayin g in p a r t:
Applying the principle declared in the above cases, complete and
permanent loss of the sight of both eyes means loss of the use of the
eyesight of both eyes for the purposes of the insured’s vocation.
[Cases cited.]
The condition is not made that the eyes of the insured shall be
taken out of their sockets and away from his physical body, but only
that he “ shall suffer the complete and permanent loss of sight of
both eyes.” It does not say that he shall become blind in both eyes,
so as to become unable to see objects of any kind, but that he shall
lose the “ sight of both eyes.” This he did when' he became color
blind.
Where the peculiar malady known as color blindness so impairs
the sight that the member of such [railroad trainmen’s] association
who is insured therein is disabled and is unable longer to continue
in the train service, and is discharged therefrom on account of such
defect in his vision, it will be held that he is entitled to the benefits
provided by the certificate, the constitution, and by-laws and rules
of the society. In such case, while the sight of the insured may not
be entirely destroyed for some purposes, it will be deemed destroyed
and lost as to the particular avocation of a railroad trainman, and
he will be held entitled to recover upon the benefit certificate which
he holds.
E
m plo y er a n d
E
m ployee—
C on trac t
of
E
m ploym ent—
B reach— ■
Barry v. New York Holding
c6 Construction Co. et al., Supreme Judicial Court of Massachusetts
( Jan.
1917), 111^ Northeastern Reporter , page 953.—Richard F.
A
m o u n t of
D am a g e s — C o m m is s io n s —
Barry brought action against the company named for damages for
breach of a contract of employment for one year from September
22, 1913. He was employed to secure contracts for the use of a fire
proof building material known as “ ribbed concrete.” He was to
TEXT AND SUMMARIES OF DECISIONS.
69
receive a salary, and in addition commissions on contracts secured
by him. During the previous contract, which was in force from
January 1 to September 22, 1913, and under which he devoted half
his time to this work, the auditor to whom the case had been
referred found that he had procured contracts from which tlie
company received over $51,000. The auditor also found that a
second contract for full time was entered into September 22, and
that on November 21 he was unlawfully discharged, not having
secured any contracts during this period. Further findings of the
auditor were that $90 was due the employee for salary and cash
expenses, and that he had suffered damages to the amount of $2,000.
Judgment was entered for $2,090, and, the company having gone
into bankruptcy just after this judgment was rendered, its trustee
took an appeal. The court, Judge Loring delivering the opinion,
held that under the circumstances the judgment, including damages
for the estimated amount of commissions, was proper. The following
is quoted from the opinion:
We are of opinion that on the facts found by him the auditor was
warranted in making a finding for more than nominal damages for
this breach of the contract on its part. Of course the auditor could
not know that commissions would have been earned. But under the
circumstances of this case that did not prevent the auditor finding
more than nominal damages. The amount of his earnings during
9 months under the first contract might well be taken as a basis
for determining what he would have earned under the second con
tract during the 10 months during which he had a right to earn
commissions under that agreement.
E m p lo y e r a n d E m p lo y e e — C o n t r a c t o f E m p lo y m e n t— B r e a c h
by E m p lo y e e a f t e r
R e c e iv in g A d v a n c e s— C o n s t i t u t i o n a l i t y
of
Goode v. Nelson, Supreme Court
o f Florida (Jan. 18, 1917), 71± Southern Reporter , page 17.—Harry
S t a t u t e — I n v o l u n t a r y S e r v itu d e —
G oode petitioned fo r a w rit o f habeas corpus against
a sheriff.
F. M.
N elson,
G oode h ad been convicted and sentenced to im prison m en t
on a charge o f contracting to p erfo rm labor, and, w ith intent to de
fra u d , securing an advance o f
or return the m oney.
court o f B a y
6528,
A c ts o f
He
$37
and fa ilin g to p erfo rm the labor
w as rem anded to custody b y the circuit
C ou n ty, but in the supreme court the statute
1913)
(ch.
under w hich the conviction was had was held
unconstitutional, and the sheriff was directed to discharge the p ris
oner.
The
court based its opinion larg ely on the decision o f the
219 U. S. 219,
93, p. 634), th at a sim ilar statute v io
Federal C onstitution fo rb id d in g involu n
U n ite d States Su prem e C ou rt in B a iley v. A la b a m a ,
31
Su p.
Ct. 145
(see
Bui.
N o.
lated the provisions o f the
70
DECISIONS OF COURTS AFFECTING LABOR.
tary servitude. The court in its opinion differentiated other cases,
and in conclusion said:
The statute of the State here assailed by its terms provides punish
ment, not for obtaining money or other thing of value with intent
to injure and defraud, but for failure or refusal, without just cause,
to perform labor or service under the contract, or for failure or
refusal to pay for the money or other thing of value so received upon
demand. By making the failure to perform labor or service under a
contract a cause for imprisonment, the statute violates the organic
law in a manner that is quite similar to, and not distinguishable
from, that condemned in Bailey v. State of Alabama. The Alabama
statute provided that the failure or refusal to perform the service
must be “ with intent to injure or defraud.” The Florida statute
does not contain this element with reference to the failure to perform
labor, and is therefore at least as clearly a violation of the Federal
law, though the Florida act does not contain other provisions found
in the Alabama law that were condemned in the Bailey case.
E
m plo y er a n d
E
m ployee—
C o n tr ac t
of
E
m ploym ent—
E ffect
of
C u st o m —“ S t r a ig h t T im e
”— Cormier v. II . H. Martin Lumber Con
Supreme Court of W ashington ( Oct. IS , 1917), 167 Pacific Reporter ,
page 1105.—B. Cormier was a logger of 34 years’ experience, for the
last 24 of which he had been employed as foreman of crews either on
the boom or in the woods. He entered the employ of the company
named in August, 1912, at the agreed rate of $150 per month “ straight
time.” Near the last of August, 1913, he was ordered by the manager
of the company to shut down the camp. He testified that he under
stood that it was to be closed for 30 days, but the manager denied mak
ing this statement. Cormier understood that the hiring at “ straight
time ” meant that he was to be paid during all shutdowns, unless at
the time of shutting down he wras notified that his services were no
longer wanted. At any rate, he kept in touch with officials of the
company as to reopening, and refused offers from other companies
on the ground that he was still in the employ of the Martin Co.
In March, 1914, the manager repudiated the agreement as claimed by
the employee, and refused to pay him anything more than the balance
due on the month of August, 1913. On the trial of the case the
plaintiff introduced evidence to support his contention that there was
a custom in western Y/ashington that the meaning of the words
straight time ” should be as he had interpreted it. The jury ren
dered a judgment in his favor, though not for the total amount
claimed, and it was affirmed by the supreme court. Judge Holcomb
delivered the opinion, and in his discussion of the effect of custom
said:
Appellant insists that, under the terms of hiring, it had a right to
rely upon the understanding that respondent had been discharged
TEXT AND SUMMARIES OF DECISIONS.
71
the same as all its other employees; that his employment at $150 per
month was a hiring from month to month, which renewed the con
tract each month that his services were required, and, on the other
hand, discontinued it each month they were not required and fur
nished. That is not the case when such custom as was here relied
upon and shown existed. As the usage entered into' the contract,
respondent’s hiring did not cease until it was discontinued by one or
the other of the parties. The juiy were authorized to find from the
evidence that neither party discontinued the employment until March,
1914.
E
for
m plo yer a n d
E
m ployee—
D ischar ge —Farmer
C on tract
of
E m p l o y m e n t — G rounds
v. First Trust Go., United States Circuit
Court of Appeals, Seventh Circuit {Sept. 1^ 1917), 21^6 Federal R e
porter , page 671.—A. J. Farmer was a mechanical engineer, employed
as superintendent of the gas-engine shops of the Milwaukee Motor
Co. After serving in that capacity for about two months, a contract
for a year was entered into on August 1, 1912, under which Farmer
was to superintend and manage the shops, devoting his entire time,
and to receive a salary of $6,500 for the year and a bonus of $3 per
engine if 3,000 engines were produced during the year at a specified
factory cost with the original equipment and certain additional equip
ment to be installed. The company had a contract with the Imperial
Automobile Co. for 2,200 engines during the year, with an option for
1,000 more, the contract deliveries during 1912 being—August, 100;
September, 130; October, 260; November, 260; and Decem*ber, 300.
The installation of the new machinery was proceeding, and work on
engines was being done in December, but only 190 engines had been
delivered, and these were not altogether satisfactory. On Decem
ber 18 the vice president went to Jackson in response to the com
plaints of the automobile company, taking Farmer with him. The
next day the latter started back via Chicago and was urged to get
back to the shop as soon as possible. He said he would reach Mil
waukee the same day, as he was only going to stop off to purchase a
Christmas present for his wife. Instead he remained at Chicago for
personal purposes until the 22d, and then, having contracted a severe
cold, was not able to go to the shops, and on the 24th he was dis
missed. The company becoming bankrupt, he entered with its trus
tee a claim for more than $13,000 damages. The findings of the
referee on the matter are stated thus:
The referee found that the absence from duty was in no manner on
account of his own necessities or of the employer’s business, but
because of Farmer’s own self-indulgence during that time. He found
further that his absence and the failure to return to his emplojanent
was not such a breach of his contract of employment as to justify his
dismissal, and that his conduct during such time was not such as was
inconsistent with the nature of his employment, or rendered him unfit
72
DECISIONS OF COURTS AFFECTING LABOR.
to continue it. He allowed the claim to the extent of $3,862.50 for
the balance of the full year’s .salary, and disallowed it for the rest of
the claim, which was based upon the bonus.
Both parties petitioned for review, and the district court disal
lowed the entire claim; this order was affirmed by the court of ap
peals, Judge Alschuler delivering the opinion, from which the fol
lowing is quoted:
It is maintained for appellant that one serving in a supervisory
capacity is not so strictly accountable to the employer for his time
as is a clerk or a workman, and that Farmer’s absence of two or three
days without permission was not such a breach of the contract as
warranted its termination. ‘ The legal proposition, as generally
stated, is sustained by the authorities cited from Wisconsin, the State
where this contract was made, as well as elsewhere. [Cases cited.]
But the applicability of such a rule must depend upon the facts of
particular cases.
The difficulties under which the shop was operating were pointed
out, and the court then said:
The responsible head was Farmer. He had various foremen under
him, but he was the only mechanical engineer connected with the
plant, and while in authority it was upon his designing, planning,
and direction that success or failure depended. This high-priced
man faced obstacles, to surmount which would manifestly require
his fullest capacity and undivided attention. Surely this was not a
situation wherein~ the man at the helm might needlessly and with
impunity abandon his post that he might tread “ the primrose path
of dalliance.”
E
m plo y er
and
E
m ployee—
C on trac t
of
E
m ploym ent—
T erm —
Steicart Dry Goods Co. v. Hutchison, Court
o f Appeals of Kentucky (Nov. 16, 1917), 198 Southwestern Reporter ,
page 17.— M rs. A. L. H u tch ison w as em ployed b y the com pany n am ed
D
isc h ar g e —
in Jan u ary,
D am ages—
1912,
as m an ager o f a departm ent o f its business.
em ploym en t was fo r a term o f one year, at a salary o f
u nderstanding th at the am ount w ould be increased as deserved.
creases were m ade to
$1,800
and
The
$1,500, w ith
an
In
$2,400, the latter in 1914. She con
1915, when she was discharged,
tinued in the service un til A u g u st,
w r o n g fu lly as she claim ed.
She sued the com pany fo r dam ages fo r
the discharge, and a ju d gm en t in her fa v o r was entered in the circuit
court o f Jefferson C ou n ty.
She testified that she had m ade diligent
efforts to secure a position, after her discharge, bu t fa iled fo r the rea
son th at contracts fo r such em ploym en t are u sually m ade in J a n u a ry
and J u ly .
In
D ecem ber,
1915,
the attem pt resulted in a loss.
affirmed.
she w ent into business fo r h erself, but
T h e ju dgm en t o f the low er court was
J u dge C la y delivered the opinion, and first, citin g m a n y
cases, stated the law to be th at where the origin al h irin g is fo r a
period, as one year in this case, and em ploym ent continues after
73
TEXT AND SUMMARIES OF DECISIONS.
the expiration of that period without any different contract, it is
presumed that the contract is renewed for a similar period at the ex
piration of each successive term. The changes in salary were said
to make no difference as to this rule. The trial court had instructed
the jury to make no deduction for the time near the close of the year
when she was in business 011 her own account, since she was not
profitably employed at that time.
The trial judge had refused to instruct the jury that if the plain
tiff was discharged because she did not keep the hours usually ob
served by the other employees, it should find for defendant. This
action was held to be justified, since “ no witness claiming to know
the terms of the original contract of employment testified to any
violation thereof by plaintiff.”
E m p lo y e r a n d E m p lo y e e — E x c lu s io n o f P e r so n fro m S t r e e t s o f
Har
ris v. Keystone Coal <& Coke Co ., Supreme Court of Pennsylvania
(Jan. 8 , 1917), 100 Atlantic Reporter , page ISO.—L ou is H a r r is,
M in in g V i l l a g e — C o n t r a c t B e tw e e n L a n d lo r d an d T e n a n t —
w ho traded as the V ic to r S u p p ly C o., brought action against the
K eyston e C oal & Coke Co. and others fo r conspiracy, because he h ad
been prevented fro m goin g upon the streets o f the village o f
bu rg and selling and delivering merchandise there.
Greens-
T h e com pany
stated that its reason fo r so exclu din g h im was that he persisted in
selling to its em ployees and tenants explosives, which the rules, m ade
fo r the safety o f the em ployees and property, forbade being stored
in the village.
A covenant in the leases by which the em ployees held
their dw ellings in the village reserved to the com pany the rig h t to
bar objectionable persons fro m the streets, which were the private
property o f the com pany, it ow ning all the land in the village.
The
ju dge in the trial court directed a verdict fo r the coal com pany,
saying that any righ t which the plain tiff had m ust be derived fro m
the tenants, as customers, and that under the terms o f the lease the
com pany had the rig h t to exclude him .
T h e supreme court agreed
w ith this view , sayin g that since the language o f the lease was clear,
there was no question to subm it to the ju ry as to its m eaning, but the
interpretation was a question o f law fo r the court.
Ju dge
Mestrezat,
in the opinion delivered by him , said fu r th e r :
We know of no principle of law and have been cited to no decision
which prevents the enforcement of this contract. The parties had
the same right to contract for the control and supervision of the
highways in the village as they had to agree to the terms on which
the houses and lots wTere held by the tenants. The entire premises
wTere the private property of the defendant company. It had the
right to impose any lawful terms as to any part of the property, and,
74
DECISIONS OF COURTS AFFECTING LABOR.
the tenant consenting thereto, the contract became obligatory on both
parties.
We have not been convinced that, under the circumstances, the
restrictions placed upon the streets and alleys of the village are un
reasonable, nor that the provision of the lease imposing the restric
tions offends public policy. If, as we think is apparent, these re
strictions on the use of the highways were inserted in the contract
for the purpose of protecting the property of the defendant company
and to secure “ the peace, comfort and safety ” of the tenants, they
did not invalidate the lease. These were objects about which the
parties could properly contract and about which they, in view of the
purpose for which the village was constructed, might well be ex
pected to contract.
The jury would have been justified in finding, under the evidence,
that the plaintiff was delivering to the tenants an explosive for stor
age, in their houses, which was dangerous to the tenants and injurious
to defendant company’s property, and which was forbidden by an
order or regulation of the company. This was persisted in for such
a length of time as to convince the defendant company and its officers
that the plaintiff could not be trusted to go upon the premises. Such
conduct clearly justified the plaintiff’s exclusion from the premises.
E m p lo y e r a n d
E m p lo y e e — I n t e r f e r e n c e
w ith
E m p lo y m e n t—
C a u sin g D is c h a r g e by M i s t a k e n N o tic e t o E m p lo y e r o f A s s ig n
m e n t o f W a g e s — Doucette v. Sailinger, Supreme Judicial Court of
Massachusetts {Nov. 27,1917) ,117 Northeastern Reporter, page 897.—
Law rence Doucette brough t action against N a th a n S a llin ger fo r in
terference w ith em ploym ent resulting in D oucette’s discharge fro m
his em ploym ent w ith the H ey w a rd B ros. & W a k efield C o.
S a llin ger
transm itted to the com pany a copy o f an assignm ent o f wages a p
pearin g to have been given by the plain tiff, but w hich was really
m ade by another person o f the same name.
The
superior court o f
M id d lesex C ounty gave ju d gm en t fo r the plain tiff, and on appeal th is
was affirmed.
Ju dge B raley fo r the court said in p a r t:
It further appears and the jury could find, that the defendant upon
being notified by plaintiff’s counsel of the mistake in identity declined
to withdraw the notice until the plaintiff came to his place of business,
and satisfied him that he was not the assignor and debtor. The plain
tiff was undejrno obligation in the forum of morals or of law, to
make this journey. Nor was the burden upon him to convince the de
fendant of his mistake and to satisfy him that he was not the debtor.
(Lopes v. Connolly, 210 Mass. 487, 494, 97 N. E. 80.) The purser hav
ing insistently held to his course after being notified that he was in
the wrong, must take the natural and probable consequences resulting
from his negligence or refusal to institute the necessary inquiries,
even if when he declined to act damage to the plaintiff might not have
been expected or foreseen. [Cases cited.] The defendant not only
was notified September 13,1915, that the plaintiff was an employee of
Heyward Bros. & Wakefield Co., and that he had been discharged
75
TEXT AND SUMMARIES OF DECISIONS.
under a rule of the company, properly admitted in evidence, that
“ ajiy employee executing an assignment of wages will be liable to
immediate discharge,” but on September 23, 1915, when informed of
his loss of employment by the plaintiff’s counsel declined to act, and
deliberately insisted upon the enforcement of the alleged assignment.
It was not until the plaintiff, who, finding that he could not be re
instated unless the assignment was withdrawn, went to the defend
ant’s place of business “ and presented himself for identification,”
and procured an “ order for the release of his wages,” that his em
ployment was restored October 2, 1915.
E
F
m plo y er a n d
a il u r e
to
E
m ployee—
S ervice L etter — E
F u r n is h — C o n s t it u t io n a l it y
of
ig h t of
A
c t io n for
S tatute— B l a c k
Cheek v. Prudential Insurance Co. of America , Supreme Court
of Missouri {Feb. 20, 1917), 192 Southwestern Reporter , page 387.—
l ist —
E ob ert
T.
Cheek brou gh t action fo r dam ages against the com pan y
nam ed, and ju d gm en t was rendered in fa v or o f the com pany on de
m urrer, the S t. L ou is circuit court h old in g that the twTo counts o f
the p la in tiff’s petition did not properly state a cause o f action.
The
petition set forth th at the plain tiff had fo r 10 years been a solicitor o f
indu strial and other life insurance, and was qualified only fo r such
em ploym ent, and especially, on account o f several years o f residence
there, fo r such w ork ii> St. L ou is.
T h e first count was based upon
the failure o f the com pany on dem and after he had quit its service,
a fter
14 years
3020
o f the E evised Statutes o f
o f em ploym ent, to fu rn ish h im a service letter.
1909
Section
requires th at such a letter shall
be given by corporations to em ployees o f over
90
d a ys’ stan din g
leavin g em ploym ent, the letter to state the nature o f the service ren
dered and the true cause o f the severance o f the relation.
T h e second
count alleged conspiracy on the p art o f the com pany and its tw o
principal com petitors to blacklist em ployees who had le ft the service
o f any one o f them .
D a m a ge b y reason o f loss o f em ploym en t
resulting fro m these w rongs was alleged.
T h e supreme court re
versed the ju d gm en t o f the low er court, h old in g the petition good
and rem anding the case fo r trial.
T h e com pany contended th at tlie
statute relatin g to the letter o f dism issal, w hile lev yin g a pen alty
fo r v iolation , did not provide a basis fo r private action fo r d a m a g e s;
also that the statute was unconstitutional.
These contentions wTere
overthrow n by the opinion delivered by Ju dge W o o d so n , who said
as to the purpose o f the a c t :
Prior to the enactment of this statute a custom had grown up in
this State, among railroad and other corporations, not to employ any
applicant for a position until he gave the name of his last employer,
and upon receiving the name, it wrould write to said former employer,
making inquiry as to the cause of the applicant’s discharge, if dis
76
DECISIONS OF COURTS AFFECTING LABOR.
charged, or his cause for leaving the service of such former company.
I f the information furnished was not satisfactory, the applicant was
refused employment. This custom became so widespread and af
fected such vast numbers of laboring people it became a public evil,
and worked great injustice and oppression upon large numbers of
persons who earned their bread by the sweat of their faces.
The statute quoted was enacted for the purpose of regulating that
custom, not to destroy it (for it contained some good and useful ele
ments, enabling the corporations of the State to ascertain the de
gree of the intelligence as well as the honesty, capacity, and efficiency
of those whom the}^ wished to employ, for whose conduct they are
responsible to the public and their fellow employees), and thereby
remedy the evil which flowed therefrom.
As to the right of action by an individual injured because of a
violation of the statute, he said in part:
The best and clearest rule I have been able to find governing the
construction of such statutes is stated in 1 Corpus Juris, p. 957, in
the following language:
“ The true rule is said to be that the question should be determined
by a construction of the provisions of the particular statute and ac
cording to whether it appears that the duty imposed is merely for
the benefit of the public and the fine, or penalty, a means of enforc
ing its duty and punishing a breach thereof, or whether the duty im
posed is also for the benefit of particular individuals, or classes of
individuals. I f the case falls within the first class, the public
remedy by fine, or penalty, is exclusive, but if the case falls within
the second class a private action may be maintained, particularly
where the injured party is not entitled, or not exclusively entitled,
to the penalty imposed.”
This statute was enacted for the protection of the public, and for
the benefit of the employees of corporations who had become victims
of said custom, as shown by the authorities previously cited. The
contention is therefore decided in favor of the appellant and against
the respondent, and we hold that the statute gives the plaintiff a
cause of action.
At this point the court showed that it is not the duty of the super
intendent personally, but of the corporation through him, to furnish
the letter. Taking up the question of constitutionality, and of the
conspiracy to blacklist, it was said:
It is insisted by counsel for defendant that said section 3020 is
violative of the 44Constitution of Missouri, in that it is discrimina
tory, class legislation, and infringes right of free speech ” ; also that
it violates the 44Constitution of the United States, in that it de
prives the respondent of its liberty to contract without due process
of law.”
The statute under consideration was enacted in pursuance of the
police power of the State, and in no manner discriminates against the
respondent; it applies to all corporations doing business in this State.
Nor can this statute be declared class legislation.
This statute embraces within its provisions all persons and things
which naturally and reasonably belong to the same class and simi
TEXT AND SUMMARIES OF DECISIONS.
77
larly situated, and it operates equally and uniformly upon all of
them, and is not limited to only a portion of the persons and things
which rationally belong to the slime class. Similar statutes of
Georgia and Kansas have been held unconstitutional and void by
the Supreme Court of each of those States. Wallace v. R. Co., 94 Ga.
732, 22 S. E. 579 [Bui. No. 2, p. 201] ; Atchison, etc. R. Co. v. Brown,
80 Kans. 312, 102 Pac. 459 [Bui. No. 84, p. 416].
In my opinion the Georgia case and the Kansas case are not in
line with the spirit of similar statutes nor the spirit of this pro
gressive age, which is to protect and shield the public and the wage
earner from bodily injury, and to remove him from injurious cliques
and combinations formed by others to control his right to work and
labor for himself and those who are dependent upon him; otherwise,
the effect would be to pauperize him and his family, as well as all
other wage earners similarly situated.
That a foreign corporation has no inherent right to exist or to do
business in this State is no longer an open question. It derives those
rights from the State, impressed with such conditions and burdens as
the State may deem proper to impose, and when such a corporation
comes into this State to do business, it must conform to the laws of
this State, and will not be heard to complain of the unconstitution
ality of our police regulations.
Moreover, when a corporation of this State, or one doing business
herein, employs a person to work for it, it thereby, by necessary
implication at least, agrees with him to give him a letter of clearance
when he leaves the company, as provided for by said statute, for the
reason that said statute becomes a part of every such contract.
It is finally insisted by counsel for plaintiff that the demurrer
to the second count of the petition was improperly sustained. This
count charges that certain foreign corporations, including the de
fendant, doing business in this State, writing life and industrial
policies of insurance, made an unlawful agreement whereby each
agreed with the other not to employ within a period of two years
any j)erson leaving the service of the other company, or who had
been discharged by it, and that said agreement resulted in the in
ability of the plaintiff to find employment in the line of work in
which alone he could earn a living.
It is not contended that such corporation may not employ whom
soever it will; but that is not this case. Here the agreement or com
bination pleaded gave said companies a monopoly in said business,
which prevented the plaintiff from obtaining employment from any
one engaged in that business, thereby depriving him of his legal
right to follow his chosen occupation.
While the petition may be somewhat inartificially drawn, yet, in
our opinion, it states facts sufficient to constitute a good cause of
action against the respondent, under the constitution, common law,
or the statute, or all of them collectively.
For the reasons stated, we are of the opinion that the action of the
court sustaining the demurrer to each of the counts of the petition
was erroneous, and that the judgment should be reversed, and the
cause remanded for trial.
78
DECISIONS OF COUETS AFFECTING LABOR,
E m p lo y e r a n d E m p l o y e e — T rade S ecrets —I n j u n c t io n s —E. /.
Du Pont de Nemours Powder Co., et cd. v. Masland et a lS u p rem e
Court of the United States (May 21. 1917), ^7 Supreme Court Re
porter ,
575.— T h e com pany nam ed applied to a U n ited States
district court fo r an injunction to prevent W a lte r E . M a slan d , a
form er em ployee, fro m
using or disclosing secret processes w ith
which he had become fa m ilia r while in its service.
H e adm itted that
he intended to engage in the m anufacture o f artificial leather, to
w hich some o f the processes related, but denied that he intended to
use any trade secrets that he had learned in confidential relations
w ith the com pany.
H e , how ever, averred that m an y o f the th in gs
claim ed by the com pany were w ell know n to the trade.
A t first a
p relim in ary injunction was refused, but the defendant proposed be
fore the final hearing to m ake disclosures to experts w hom he w ould
em ploy, sufficient to insure proper preparation fo r his defense.
The
district court thereupon issued a p relim in ary injunction against dis
closing any o f the com p an y’s alleged processes to any one except
counsel, w ith leave to m ove to dissolve the injunction should occa
sion to consult experts arise.
L a ter a m otion to dissolve w as denied.
T h e circuit court o f appeals reversed the decree, and the m atter was
taken to the Su prem e C ourt by w rit o f certiorari.
T h e latter deci
sion was there reversed, it being held that the district court pro’perly
granted an injunction against disclosure to experts, leaving the court
opportu n ity to control the extent and m ethod o f such disclosure i f
any
should
prove necessary.
M r.
Justice
H olm e s
delivered
the
opinion, w hich, a fter a statem ent o f the facts, continues as fo llo w s :
The case has been considered as presenting a conflict between a
right of property and a right to make a full defense; and it is said
that if the disclosure is forbidden to one who denies that there is a
trade secret, the merits of his defense are adjudged against him be
fore he has a chance to be heard or to prove his case. We approach
the question somewhat differently. The word “ property ” as applied
to trade-marks and trade secrets is an unanalyzed expression of cer
tain secondary consequences of the primary fact that the law makes
some rudimentary requirements of good faith. Whether the plain
tiffs have any valuable secret or not the defendant knows the facts,
whatever they are, through a special confidence that he accepted.
The property may be denied, but the confidence can not be. There
fore the starting point for the present matter is not property or
due process of law7, but that the defendant stood in confidential rela
tions with the plaintiffs, or one of them. These have given place to
hostility, and the first thing to be made sure of is that the defendant
shall not fraudulently abuse the trust reposed in him. It is the usual
incident of confidential relations. If there is any disadvantage in
the fact that he knew the plaintiffs’ secrets, he must take the burden
with the good.
The injunction asked by the plaintiffs forbade only the disclosure
of processes claimed by them, including the disclosure to experts or
79
TEXT AND SUMMARIES OF DECISIONS.
witnesses produced during the taking of proofs, but excepting the
defendant’s counsel. Some broader and ambiguous words that crept
into the decree, seemingly by mistake, may be taken as stricken out
and left on one side. This injunction would not prevent the defend
ant from directing questions that should bring out whatever public
facts were nearest to the alleged secrets. Indeed, it is hard to see
why it does not leave the plaintiffs’ rights somewhat illusory. No
very clear ground as yet has been shown for going further. But
the judge who tries the case will know the secrets, and if, in his
opinion and discretion, it should be advisable and necessary to take
in others, nothing will prevent his doing so. It will be understood
that if, in the opinion of the trial judge, it is or should become
necessary to reveal the secrets to others, it will rest in the judge’s
discretion to determine whether, to whom, and under what precau
tions, the revelation should be made.
E m p lo y e r an d E m p lo y e e — T ra d e S e c r e ts — L i s t o f C u sto m e r s—
New Method Laundry Co. v.
MacCann, Supreme Court of California (Dec. 15, 1916), 161 Pacific
Reporter , page 990.— T h e com pany nam ed, engaged in the lau n dry
I n j u n c t i o n — “ R e c e iv in g ” B u s in e s s —
business in the city o f O ak lan d , bou gh t fro m John W . M a cC an n a
lau n dry route fo rm erly operated by h im , and em ployed h im as a
driver and solicitor u pon it.
H e carried on th is route fo r five years,
keeping a list o f customers, w ith the day o f the week when each
O n A p r il 5,
1913, M a cC an n le ft the em ploy o f the com pany, and began soliciting
expected his unlaundered articles to be called fo r.
fo r a rival lau n dry fro m the same customers.
O n petition by the
com pany fo r an injunction against this practice the superior court
o f A la m ed a C ou n ty granted such an injunction, restraining M acC an n
“ fr o m soliciting, but not fro m
receiving ” such work.
T h e com
pany appealed, contending that the injunction should, as had been
the practice in previous sim ilar suits, restrain the receiving o f busi
ness.
Ju dge L a w lo r, who delivered the opinion in the supreme
court, referred to the leadin g case o f E m p ir e Steam L a u n d ry Co. v,
L o zier, 165 C al. 95, 130 P ac. 1180 (B u i. N o. 152,
p. 51),
which estab
lished the doctrine that such lists o f customers constitute a trade
secret, against the violation o f which the em ployer m ay have a p er
petual injunction.
H e noted th at while the injunction in that case
prohibited receiving lau n dry work, the exact point had been raised
in the present case fo r the first tim e.
T h e conclusion reached was
that the ju d gm en t below should be affirmed in its origin al fo rm ,
A s to the question o f the prohibition o f receiving w ork, he said in
p a rt:
Coincident with the right of the employer to the protection of his
trade secrets against their unwarranted disclosure to or uncon
scionable use by persons not entitled thereto, is the right of all per
80
DECISIONS OF COURTS AFFECTING LABOR.
sons, in absence of negative covenants to the contrary, to follow any
of the common occupations of life. This right of a citizen to pursue
any calling, business, or profession he may choose is a property right
to be guarded by equity as zealously as any other form of property.
See Dent v. West Virginia, 129 U. S. 114, 9 Sup. Ct. 231. “ Labor is
property. The laborer has the same right to sell his labor, and to
contract with reference thereto, as any other property owner.” Gil
lespie v. People, 188 III 176, 58 N. E. 1007 [Bui. No. 35, p. 797]. It
can not, indeed, be questioned that an employee, in a case such as this,
retains the right to work for a rival laundry if he so chooses, or, hav
ing established a laundry business himself, to serve all persons who
voluntarily offer him their trade. But in such competition, he must
act with utmost fairness, resolving every doubt rather in favor of the
interests of the former employer than against them, and exercising,
at all times, every precaution to avoid violating, in letter or spirit, the
confidence reposed in him.
The judgment of the lower court also finds support in sound princi
ples of public policy. To restrain a person, lawfully engaged in a
laundry business, from receiving unlaundered goods from certain
former patrons is to sanction, to that extent, the establishment of a
trade blacklist, thereby depriving such patrons, without any fault on
their part, of the right to have their laundry work done where they
will. The constitutional guaranties of liberty include the privilege of
every citizen to freely select those tradesmen to whom he may desire
to extend his patronage, and equity can not invade or take away this
right, either directly or indirectly, without due process of law.
Discussing the claim that the permission to receive work wTould lead
to evasion which would amount to a solicitation, Judge Lawlor said in
part:
The decree expressly forbids defendant from in any manner solicit
ing or attempting to induce, directly or indirectly, such customers to
withdraw their patronage from plaintiff. Clearly, conduct on the
part of the defendant, his agent, or others in his behalf, such as sug
gested, would be contra bonos mores and a deliberate invasion of the
injunction issued to plaintiff.
Injunctive relief, in any case, must depend upon broad principles
of equity rather than on the particular wording of any decree. Con
ceivably, cases may arise where the court would be warranted in re
straining a person, engaged in a business, from “ receiving ” trade of
certain members of the community, but the facts presented here do
not demand such relief.
E
m plo y er a n d
E
m ployee—
T rade S ecrets — U
se b y
F ormer E
m
—Aronson et al. v. Orlov et al., Supreme Judicial Court of
Massachusetts (July 3 , 1917), 116 Northeastern Reporter , page
951.—The plaintiffs, Abraham Aronson and others, manufactured
petticoats in Boston, and sold them to large retail dealers in various
parts of the country. In November, 1912, Aronson invented a
method of improving the product by making the seams elastic. The
p l o yee
TEXT AND SUMMARIES OF DECISIONS.
81
garments were put on the market under the trade name “ Flexo
Seam.” The defendants Fatherson and Wachtel were employees
of the plaintiffs, and learned this trade secret through this connec
tion. Later they withdrew from their employment, and with Orlov
began the manufacture of a similar article, calling it by the desig
nation of “ Wunder Seam.” They advertised by letters to the trade
in various States, including those who were customers of the plain
tiffs, and were known to the defendants to be such. A decree grant
ing the plaintiffs an injunction was entered in the superior court of
Suffolk County, and this was affirmed by the Supreme Judicial
Court. Judge Rugg delivered the opinion, which was largely taken
up with questions as to the rights of the parties arising out of ap
plications for patents on the invention. The following, relating to
the use of trade secrets by former employees, is quoted from the
opinion:
Apart from the questions arising because of the applications for
patents, it is plain that the plaintiffs make out a case for equitable
relief on the facts found by the master. The idea of the improve
ment in the manufacture of garments was Aronson’s. It was not a
mere nebulous phantom of the fancy, but a definite conception of a
material device so simple that its mere statement would convey as
clear a notion as would a model of a complicated mechanism. This
idea was used rightfully by the plaintiffs. Fatherson was the first
of the defendants to know of that idea and he learned of it solely
by reason of and in the course of his employment by the plaintiffs.
The doctrine is well settled that an employee can not lawfully use for
the advantage of a rival and to the harm of his employer confidential
information which he has gained in the course of his employment.
TM& rests upon the implied contract, growing out of the nature of
the relation, that the employee will not after the termination of his
service use information gained during the period of his employment
to the detriment of his former employer. This doctrine has been fre
quently applied in this Commonwealth and it prevails generally.
[Cases cited.] '
It is also true, as decided by these and other cases, that equity will
enjoin interference with the rights of a manufacturer to his own
trade secrets and will prevent continuance of violation of duty by a
former employee in divulging them, and will give relief in damages
for injury already inflicted. There is a plain distinction between in
stances where employees leave one employer and use their own facul
ties, skill and experience in the establishment of an independent busi
ness or in the service of another, and instances where they use con
fidential information secured solely through their employment to the
harm of their previous employer. The plaintiffs have a clear cause
of action against their former employees, Fatherson and Wachtel.
The former, at least, has appropriated the Aronson idea for im
provement in dress design acquired solely through his employment.
The latter participated in, if he did not frame, the scheme whereby
Orlov was to embark in the business of manufacturing petticoats in
competition with the plaintiffs by the use of the information which
64919°— 18— Bull. 246------ 6
82
DECISIONS OF COURTS AFFECTING LABOR.
lie and Fatherson had acquired wholly through their employment by
the plaintiffs. Orlov in this respect stands no better than the other
twTo defendants. The Aronson idea was communicated to him by one
or both of his codefendants. At the first meeting of the three, the
previous employment and experience of Fatherson with the plaintiffs
formed the subject of the conference. Orlov and Wachtel were well
acquainted. The inference is irresistible that one of his dominating
motives in forming the arrangement with the other two was the
knowledge that there would be at his disposal the Aronson idea of
garment design. Under these circumstances he is on the same foot
ing and subject to the same liabilities as Wachtel and Fatherson.
E m p lo y e r s ’ L i a b i l i t y — D e fe n s e s — C o n s t i t u t i o n a l i t y
of
S ta t
u t e —Superior
& Pittsburg Copper Co. v. Tomich , Supreme Court
o f Arizona (July 2, 1917), 165 Pacific Reporter , page 1101.— F ra n k
T o m ic h ? h avin g been injured in the m ine o f the com pany nam ed,
brough t action against it fo r dam ages.
Ju dgm en t was in his fa v o r
in tlie Superior C ourt o f Cochise C ou n ty, and the com pany appealed,
a lleg in g that the law was unconstitutional.
T h is question, as fa r
as some o f the m ost im portan t considerations were concerned, had
been settled by the decision in In sp iration C onsolidated C opper C o.
v.
M endez,
16C
P ac.
278
(see p.
85),
in w hich it was held th at the
enactment o f such a law declaring lia b ility w ithout fa u lt was w ith in
the pow er o f the legislature.
O th er com plaints as to the constitu
tio n a lity o f the statute were held not to be w ell fou n ded, J u dge
C u n n in gh am d elivering the opinion and s a y in g :
Appellant contends that chapter 6 of title 14 is void for the rea
son its terms conflict with sections 5 and 7 of article 18 of the State
constitution. Section 5 is that:
“ The defense of contributory negligence or of assumptioij of risk
shall, in all cases whatsoever, be a question of fact and shall, at all
times, be left to the jury.”
This section does not restrict the powrer of the legislature to modify
or abolish the defense of contributory negligence. The restriction
contained in the section is clear that no law shall be enacted which
attempts to make the defenses of contributory negligence or assump
tion of risk, when interposed, determinable by the courts as matters
of law, but such defenses are made to depend upon facts when they
are properly interposable, and, interposed, they are required to be
established by a preponderance of the evidence to the satisfaction of
the jury. Whether the plaintiff’s negligence contributed to the
wrong, or whether the plaintiff assumed the risk and danger from
which the wrong arose, must be determined as a fact from the evi
dence by the jury.
Section 7 commands the legislature to enact an employers’ liability
law, by the terms of which any employer shall be liable for the death
or injury of workmen employed in all hazardous occupations named,
and any other industry designated by the legislature, whenever such
death or injury is caused by any accident due to a condition or con
83
TEXT AND SUMMARIES OE DECISIONS.
ditions of such occupation, except when such death or injury has
been caused by the negligence of the employee killed or injured. The
only restriction placed upon the legislative power in carrying out
said constitutional mandate found in the section of the constitution
is the exception, viz.:
Liability is incurred “ in all cases in which such death or injury of
such employee shall not have been caused by the negligence of the
employee killed or injured.”
In all other cases the legislative power is unlimited by said sec
tion 7.
A careful examination of chapter 6 of title 14 discloses no viola
tion of such limitation on the power of the legislature. The excep
tion is carefully preserved in paragraph 3154 of the statute. I f the
injury resulted from an accident arising out of and in the course of
labor, .service, and employment in a hazardous occupation, and was
due to a condition, or conditions, of such occupation or employment,
and was not caused by the negligence of the employee the liability to
damages exists. If, however, the injury was caused by negligence to
which the injured workman contributed, the liability of the employer
remains to an amount of the full damages, less the amount of damages
attributable to the employee’s negligence. In other words, the
damages are to be apportioned to the parties, employer and employee,
as the negligence attributable to the one is to the negligence attribu
table to the other. “ The fact [appearing] that the employee may
have been guilty of contributory negligence shall not bar a recovery,
but the damages shall be diminished by the jury in proportion to the
amount of negligence attributable to such employee,” are the words of
the statute. The statute is in full harmony with the constitutional
mandate and with its restrictions.
Questions as to the excessiveness of the damages awarded by the
jury, and as to the admission and rejection of evidence, and the con
duct of the trial, in which the jurors had been allowed to ask questions
of the witnesses rather freely, were resolved also in favor of the
plaintiff, and the judgment of the lower court was affirmed.
E
m plo yer s ’
L ia b il it y — G
s u m p t io n of R i s k b y
uards for
D an g er o u s M a c h in e r y — A s
S u p e r in t e n d e n t — C o n s t it u t io n a l it f
of
S tat
Bowersock v. Smith , Supreme Court of the United States (Mar.
1917), 37 Supreme Court Reporter , page 371.— Sum ner I . S m ith ,
ute—
6*,
superintendent o f the Law rence P ap er C o., w hile engaged in ad ju st
in g some unguarded dryer rolls, was crushed between them and killed.
H is ad m inistratrix sued
J. D.
dam ages, relyin g upon sections
o f K a n sas o f
1909,
B ow ersock, owner o f the fa cto ry, fo r
4676
to
4783
o f the G eneral Statutes
which provide fo r the g u a rd in g o f dangerous
m achinery, and fo r recovery where absence o f such guards contributes
to death or in ju ry.
In
defense it was pleaded th at it was not p ra c
ticable to guard the dryer, and that S m ith was g u ilty o f contributory
n eg ligen ce; also that he had assumed the risk o f in ju ry , as it was his
84
DECISIONS OF COURTS AFFECTING LABOR,
duty as superintendent to safeguard the machinery. ‘ Judgment in
favor of the plaintiff was affirmed by the supreme court of the State.
Mr. Chief Justice White delivered the opinion, again affirming this
judgment, and saying for the most part:
The court instructed the jury, over the objection of the defendant,
that, under the statute, contributory negligence was no defense, and
that the fact that Smith was employed as superintendent of the fac
tory, with authority to safeguard the machinery, would not bar a
recovery, and charged with reference to the burden of proof, in ac
cordance with the provision of the statute relating to that subject.
It was held, following previous decisions, that the common-law de
fenses of contributory negligence, fellow servant, and assumption of
the risk were not applicable to suits under the statute. The court,
further construing the statute, held that it embraced all employees of
every class or rank in the factories to which it applied, and that
merely because the deceased was employed as superintendent did not
exclude him from the benefits of the act nor relieve the owner from
responsibility under it. And it was held that a different result was
not required because the deceased had contracted with the owner to
safeguard the machinery under the circumstances of his employment.
In so ruling the court referred to the evidence, and pointed out that
although there was testimony as to the authority of the deceased,
under his contract, to safeguard the machinery, at the same time the
evidence showed that, in the exercise of such authority, he was under
the control of three superiors, all of whom had testified that they did
not consider it practicable to safeguard the dryer rolls. Attention
was also directed to the notice which the defendant posted with ref
erence to guards on machinery, as showing a control over that sub
ject by the owner. 95 Kan. 96, 147 Pac. 1118.
The case is here because of the asserted denial of rights guaranteed
by the fourteenth amendment.
That Government may, in the exercise of its police power, provide
for the protection of employees engaged in hazardous occupations
by requiring that dangerous machinery be safeguarded, and by mak
ing the failure to do so an act of negligence upon which a cause of
action may be based in case of injury resulting therefrom, is un
doubted. And it is also not disputable that, consistently with due
process, it may be provided that, in actions brought under such
statute, the doctrines of contributory negligence, assumption of
risk, and fellow servant shall not bar a recovery, and that the bur
den of proof shall be upon the defendant to show a compliance with
the act. [Cases cited.]
While not directly disputing these propositions, and conceding
that the Kansas statute contains them, and that it is not invalid for
that reason, nevertheless it is insisted that the construction placed
upon the statute by the court below causes it to be repugnant to the
due process clause of the fourteenth amendment. This contention is
based alone upon the ruling made by the court below that, under the
statute, the deceased had a right to recover although he had con
tracted with the owner to provide the safeguards the failure to fur
nish which caused his death,—a result which, it is urged, makes the
owner liable and allows a recovery by the employee because of his
neglect of duty. We think the contention is without merit. It is
85
TEXT AND SUMMARIES OF DECISIONS.
clear that the statute, as interpreted by the court below,—a construc
tion which is not challenged,—imposed a duty as to safeguards upon
the owner which was absolute, and as to which he could not relieve
himself by contract. This being true, the contention has nothing to
rest upon, since, in the nature of things, the want of power to avoid
the duty and liability which the statute imposed embraced all forms
of contract, whether of employment or otherwise, by which the
positive commands of the statute would be frustrated or rendered in
efficacious. Second Employers’ Liability Cases (Mondou v. New
York, N. H. & H. R. Co.) 223 U. S. 1, 52, 32 Sup. Ct.5 169 [Bui.
No. 98, p. 470].
E
m p lo y e r s ’
L i a b il it y — L i a b il it y
w it h o u t
F a u l t — C o n s t it u
Inspiration Consolidated Copper Co. v.
Mendez, Supreme Court of Arizona ( July £, 1917), 166 Pacific Re
porter , page 278.— C eferino M endez brough t action against the com
t io n a l it y
of
S tatute—
pany nam ed under the E m p lo y e rs’ L ia b ility A c t o f A r izo n a , ch ap
ter 6, title
14,
1913. The em ployee was a m iner
On June 28, 1914, he opened a com
o f the C iv il Code o f
engaged in underground w ork.
pressed air valve fo r the purpose o f clearing a com partm ent o f the
m ine o f fo u l air, and the air, escaping fr o m the valve under h eavy
pressure carried dirt and other substances into his eyes, in ju r in g
them .
No
negligence on the part o f the -employer was asserted, but
the declaration, based on the provision o f law m entioned, alleged
that the occupation was a hazardous one, and th at the accident w as
due to a condition o f such occupation.
The
com pany m ade claim
that the chapter in question w as void as in conflict w ith certain p ro
visions o f the State constitution and w ith the fourteenth am end
m ent to the C onstitution o f the U n ited States.
The
com pany fu r
ther alleged that the em ployee’s negligence was the sole cause o f the
in ju ry, that he was g u ilty o f contributory negligence in fa ilin g to
p ro m p tly and properly treat the injuries, that he assumed the risk o f
this inju ry as an ordinary risk o f his em ploym ent, and th at the
rem edy, i f any, w as under the succeeding chapter o f the Code, the
W o r k m e n ’s Com pensation L a w .
The
superior court o f
Yavapai
C ou n ty overruled the objections based on alleged u n constitutionality,
and ju d gm en t was rendered fo r the em ployee in the sum o f
less an am ount already paid over.
$5,500,
C ertain questions o f practice
relatin g to the proceedings on appeal were considered and deter
m ined in fa v or o f the em ployee, a fter which the m ain question o f
the v alid ity o f the law w as taken up.
Ju dge C un n in gh am was the
spokesman fo r the court in u ph oldin g the law and affirming the
ju dgm en t below , and fro m his opinion the fo llo w in g is quoted on
this p o in t :
The appellant contends, and I think its contention is correct, that
the liability statute must be construed as one creating a liability for
accidents resulting in injuries to the workmen engaged in hazardous
DECISIONS OF COURTS AFFECTING LABOR.
86
occupations, due to the risks and hazards inherent in such occupa
tions, without regard to the negligence of the employer, as such negli
gence is understood in the common law of liability; in other words,
such statute creates a liability for accident arising from the risks
and hazards inherent in the occupation without regard to the negli
gence or fault of the employer. The cause was tried upon that theory,
and the judgment must stand or fall according to the validity or in
validity of the said statute.
Chapter 6 of title 14 [the statute under consideration] was en
acted as a response to the mandate contained in section 7 of article
18 of the State constitution, reading as follows: [Provision quoted.]
This provision is clearly one mandatory upon the legislative branch
of the State government as to all the requirements set forth in that
provision for affirmative action by the legislature. The only limita
tion or restriction thrown about the legislature’s duty in this respect
is that in the enactment of employers’ liability laws or other laws
of such nature, no employer shall be made liable for the death or
injury of any employee, when such death or injury shall have been
caused by the negligence of the employee killed or injured.
The statute clearly does not require as a condition of liability that
the accident causing the injury proximately resulted from the mas
ter’s negligence, and it as clearly does exclude as a matter of defense
the assumption of all ordinary and extraordinary risks inherent in
the occupation. Such risks and dangers as are inherent in the occu
pation are declared to be unavoidable risks and dangers, and there
fore it necessarily follows that the employee in entering upon his
duties does not assume such ordinary inherent risks, although known
to him. Such risks as he may assume must be risks and dangers
other than risks and dangers inherent in the occupation.
The decision of the United States Supreme Court in New York
Central R. Co. v. White, 233 U. S. 188, 37 Sup. Ct. 247 (BulJ No.
224, p. 232), is then quoted from at length. This decision is made the
basis for the decision in the present case, as is shown by the following
pargraph quoted from Judge Cunningham’s opinion, after which
he disposes of other matters as to assumption of risks, limitation of
amount of liability, and the sufficiency of the evidence to sustain
the verdict, and announces the affirmance of the judgment of the
court below:
Thus, from the court of ultimate authority over questions affecting
constitutional guaranties and rights, we find answers to all of the
arguments advanced by the appellant why chapter 6 of title 14 is in
conflict with the fourteenth amendment of the Constitution of the
United States. I am of the opinion that the statute is free from the
objections urged by appellant on the authority of such case.
E
m p lo y e r s ’
L ia b il it y — M ed ic al
P h y s i c i a n — Owens
T r e a t m e n t — N eg lig en ce
of
v. Atlantic Coast Lumber Corpovation, Supreme
Court of South Carolina (Oct. 29, 1917), 94 Southeastern Reporter ,
page 15.—The company named was sued by Julius Owens, an em
TEXT AND SUMMARIES OF DECISIONS.
87
ployee, for damages for the death of his wife. His complaint al
leged that the company collects from the monthly wages of each of its
numerous employees the sum of $1, to maintain a staff of two physi
cians to render medical services to the employees and their families.
Owens’ wife becoming ill, he called upon one of the physicians, Dr.
Brown, who refused to attend on the ground that he was too busy.
Owens tried to find Dr. Sawyer, the other physician, but could not.
Three or four days later his wife’s condition became critical and
being still unable to find Dr. Sawyer, and without means to employ
another physician, he begged Dr. Brown to attend her; but the
physician would not go with his automobile across the ferry, al
though it was one regularly operated by the county authorities, and
the wife died. Damages were sought in the sum of $10,000, and
the company demurred to the complaint alleging the above as facts.
The trial court held that a cause of action was not stated by the
complaint, and sustained the demurrer. The supreme court, how
ever, reversed the order, thus placing the case in a position where it
might be tried on its merits. Judge Hydrick, in delivering the opin
ion, said in part:
I f the deductions made resulted in direct pecuniary profit to de
fendant, then, clearly, it would be responsible for the negligence or
malpractice of the physicians employed even with due care, on the
same principle that a private hospital conducted for gain, or the
physician himself, is made liable.
Nothing appearing to the contrary, the allegation that defendant
exacted and received pay for the promised services warrants an in
ference, at least prima facie, that defendant received pecuniary pro
fit from the scheme. Certainly it is not inferable that it was con
ducted as a charity, even in part. The fund so raised was retained
in defendant’s treasury and, if there was any surplus, it inured to
the benefit of defendant. This put upon defendant the burden of
showing that it derived no pecuniary gain in the conduct of the un
dertaking and administration of the fund to escape the liability
arising from that situation.
Construing the allegations of the complaint most liberally for
plaintiff, as we must on demurrer, they bring his case, at least prima
facie, within the situation described, in which the decided weight of
authority and reason holds the master liable for the malpractice or
negligence of physicians chosen by him, even with due care; for,
in that situation, the master assumes an absolute duty and respon
sibility to the servant. [Cases cited.]
E
m plo y er s ’
L ia b il it y — M
in e
R e g u l a t io n s — “ K
n o w n to
G ener
Standard Goal Go., Supreme
Court of Utah (Oct. 15, 1917), 168 Pacific Reporter , page 266.—A.
at e
E xplosive G a s e s ” —Eleganti v.
Eleganti brought action against the company named, as administra
tor of the estate of Giacamo Boetto, whose death, it was alleged,
DECISIONS OF COURTS AFFECTING LABOR.
88
was caused by the negligence of the company while he was em
ployed in its mine, in November, 1914. The company appealed from
a judgment against it, entered in the District Court of Salt Lake
County. It was unquestioned that several weeks before the acci
dent explosive gases had been found in the mine, and at that time
proper steps were taken to exclude them. A statute requires that
inspection for gases be made in all mines “ known to generate ex
plosive gases.” Such inspection was not made in the mine in which
the injury occurred during the interval after the first discovery of
gas, and failure in this respect was the negligence charged. There
was a controversy as to the meaning intended to be conveyed by
the expression quoted. The judge in the trial court had told the
jury that the mine was under the circumstances a mine known to
generate explosive gases, and the company contended that he should
have left this question to be determined by the jury from the evi
dence. This as well as the other disputed points were resolved in
favor of the plaintiff, and the judgment below was affirmed. From
the opinion delivered by Judge Frick the following is quoted:
Counsel’s theory seems to be that unless the mine in question devel
oped a certain quantity of explosive gases, that is, a quantity which
wTould in the opinion of experts make a mine dangerous or unsafe,
it would not constitute a mine known to generate explosive gases
within the purview of our statute. In our judgment that contention
is clearly untenable. The language of the statute is positive and
direct. There is no qualification such as counsel seem to assume.
The language of the statute is, “ In all mines known to generate ex
plosive gases ” the examination and inspection directed by the
statute must be made. A moment’s reflection will make fclear that
the statute was intended to and does apply to all mines where ex
plosive gases are known to exist, regardless of the quantity thereof.
The legislature thus withdrew; the question respecting the quantity of
gases, or whether the quantity was safe or otherwise, from the judg
ment of all classes, whether experts or nonexperts, and imposed the
duty of examination and inspection in all mines where explosive
gases in any quantity are known to exist.
E
m p lo y e r s ’
L ia b il it y — N eg ligence — C o n t r ib u t o r y N eg lig e n ce —
D ecay ed C h i c k e n i n C a n n e r y — Potter v. Rich
ardson <& Robbins Co ., Superior Court of Delaware {Jan. 26,
1915), 99 Atlantic Reporter , page 540.— A n n ie P otter, an em
I n f e c t io n
from
ployee
the
of
com pan y
nam ed,
suffered
fro m
blood
p oison in g
and claim ed th at it was the result o f the actionable n egligence
of
the
em ployer
in
fu rn ish in g
be prepared by her fo r canning.
p u trid
carcasses
of
chickens to
She had a scratch or cut on a
finger, th rou gh w hich it appeared the poison entered her system .
I t w as alleged th at the chickens h ad been in cold storage, and
TEXT AND SUMMARIES OF DECISIONS.
89
that the company knew or should have known their unsafe con
dition and warned the.plaintiff, who did not know of the danger.
The company demurred on the ground that a cause of action was not
stated in the declaration, and the demurrer was sustained, in effect
overthrowing the present suit. Judge Pennewill delivered the opin
ion, and stated that two questions of law were presented by the case:
First, did the defendant exercise due care in furnishing to the plain
tiff carcasses of chickens to be cut up and prepared? and, second,
was the plaintiff guilty of negligence which proximately contributed
to her injury? The opinion was in part as follows:
The first count is based upon the proposition that since the plain
tiff was employed by the defendant to clean and prepare the car
casses to be cooked or potted by the defendant, it owed her the duty
of furnishing and providing her with reasonably safe and sound car
casses of chickens to be cleaned and prepared. And since these
chickens were to be prepared and to be put on the market for food
for the public, the plaintiff had the right to rely upon the defendant
to furnish her with only such carcasses as might be deemed fit for
human food.
We think the plaintiff is here confusing the defendant’s duty to an
employee with the duty it owes its customers, the buyers of its
goods, who can have no knowledge of the condition of the chickens
before they are cooked and canned. The defendant’s duty to the
plaintiff can not be measured by the fitness of the chickens for food.
The carcasses were given to her only for the purpose of being pre
pared for cooking and canning.
The care the defendant should have exercised in procuring and
furnishing the carcasses for the plaintiff was reasonable and ordinary
care, that is, such care as a reasonably prudent and careful person
would have exercised in a like case, or under like circumstances.
Such being the duty imposed upon the defendant, it can not be held
liable unless there was a failure to exercise such care.
We are clearly of the opinion that the plaintiff’s means and oppor
tunities of discovering the danger complained of were even greater
than those of the defendant. It is inconceivable that she did not
observe and know the condition of the carcasses she handled. Indeed,
she must have known else she would not have made the averments she
has made in her declaration.
The plaintiff was employed to cut up and prepare chickens to be
cooked and canned or potted. She was not employed to cut up and
prepare putrid, rotten and decayed chickens. If she found a carcass
in such condition it was her duty to report the fact to her employer,
the defendant. Instead of doing that she went on and cut up the
carcass and her injury resulted therefrom. She was, in the opinion
of the court, guilty of contributory negligence.
After carefully considering this case, the court are of the opinion
that there is no substantial ground on which the jury would be justi
fied in finding negligence on the part of the defendant; and also, that
negligence on the part of the plaintiff approximately contributing to
her injury, appears from her declaration.
90
E
DECISIONS OF COURTS AFFECTING LABOR.
m p lo y e r s ’
L ia b il it y — P oisonous F
um es—
D uty
of
E
m p lo y er to
Fritz v. Elk Tanning Co ., Supreme Court of Pennsyl
vania (May H , 1917), 101 Atlantic Reporter >page 958.—Norman A.
E
l im in a t e —
Fritz was employed from October, 1911, to February, 1913, in the
bleaching room of the tannery carried on by the company named. In
this room were several vats containing fluids used in bleaching, one
being a warm solution of sulphuric acid. His duties required him
to be near the vats a large part of the time, and at certain times,
when the acid was put in or renewed, or the hides dipped in it, steam
or fog arose and enveloped the employee. He developed symptoms
of illness six weeks before he quit work, but was assured by the
superintendent that there were no injurious fumes. As to the dis
ability which the employee suffered from some cause, the court,
speaking through Ju dge Wailing, says:
When plaintiff began this work, he was robust, 26 years of age, and
weighed 195 pounds; when he quit he was a physical wreck, and for
16 months thereafter walked upon crutches, and much of that time
was confined to the house, and has not since been able to do any work.
At the time of the trial in 1916 he could walk with the assistance of
a cane, and weighed 140 pounds, and seemed to be permanently
disabled.
The testimony of physicians for the plaintiff is reviewed, their
opinions being very strongly to the effect that sulphuric acid poison
ing could and did result from the constant inhaling of the fumes.
Expert testimony equally positive is also summarized in favor of
the contention of the company that such poisoning was not the cause
of the illness. The court then expressed its view that the judgment
should stand, the concluding portion of the opinion for the most part
being as follows:
Where seemingly credible evidence tends directly to establish the
facts upon which defendant’s liability depends, a verdict based
thereon is not the result of guesswork, although such evidence is
strongly contradicted by that submitted for the defense. And
where, as here, a plaintiff’s case is supported by positive and circum
stantial evidence, and also by expert opinion, it must be submitted
to the jury, notwithstanding the strength of the opposing proofs.
In such case the remedy, if the verdict be against the weight of the
evidence, is a new trial, which was not here sought. The fact that no
case like this has come within the knowledge or information of any
witness called, while strongly persuasive, is not conclusive against
the plaintiff.
As the case was submitted, the verdict implies a finding by the
jury, not only that the fumes were poisonous, but that such fact was
or should have been known by the defendant, which was the common-law rule; but under section 11 of the act of May 2, 1905 (P. L.
352), it was defendant’s duty to know the character of the fumes and
gases arising in its bleachroom, and, if poisonous, to provide for their
elimination by exhaust fans or other sufficient devices. As no attempt
TEXT AND SUMMARIES OF DECISIONS.
91
w as m ade to com p ly w ith the statute, and no claim that it could not
have been done, i f the fum es were poisonous, and p lain tiff was in
ju red thereby, w ithout negligence on his p a rt, he was entitled to re
cover as the provisions o f the statute are m an datory. [C ases cited.]
T h e fa ct th at the p lain tiff, under the assurance o f the superinten
dent, continued at his w ork, did not as m atter o f law charge him
w ith contributory negligence.
E
m p lo y e r s ’
L ia b il it y — P r o x im a t e C a u se
of
D e a t h — P n e u m o n ia
Sterling A n
thracite Co. v. Strope , Supreme Court of Arkansas {Oct. 5, 1917),
197 Southivestern Reporter , page 858.—Fred Strope was injured by
R e s u l t in g
from
B urns
and
R e c u m b e n t P o sit io n —
an explosion of gas in the mine of the company named on February
18, 1916, and died 11 days later. On the trial of the suit of his
administratrix against the company for damages, there was evidence
on her behalf that the fire boss, after his required inspection on the
morning of the day of the injury, had reported the working place of
Strope to be unsafe, but had marked “ O. K.” on the board used for
that purpose; but for the defense evidence was introduced that a
mark was made to indicate that the place was found to be dangerous.
When the employee reached the working place and lighted his
miner’s lamp the explosion occurred. The court stated that since
there was substantial evidence of negligence, it could not disturb the
jury’s verdict, which had been in favor of the plaintiff.
Another question was whether the injury could be considered as
the proximate cause of death, which resulted directly from pneumoriia. The burns received were about the chest, shoulders, face,
and arms. The attending pl^sician testified that in his opinion the
pneumonia resulted from the burns and the recumbent position
necessitated by the injuries. It was held that there was justifica
tion also for the jury’s finding on this point. Specific instructions
to the jury relating to both matters, which were objected to, were
held to have been proper, and the judgment for the plaintiff was
affirmed.
E
m plo y er s ’
L
ia b il it y —
R ailroad C o m p a n ie s — F ederal S t a t u t e — ■
I n t e r sta t e C om m er c e — F r e ig h t C onductor
on
R e t u r n T rip A
fter
Illinois Central Railroad Co. v.
Peery , Supreme Court of the United States {Dec. 18, 1916), 37
Supreme Court Reporter , page 122.—Robert H. Peery was injured
M o vin g
I n t er stat e
S h ip m e n t —
in a rear-end collision while in the performance of his duties as a
freight conductor, and sued the company named, his employer, action
being brought under the Federal law, employment in interstate com
merce being alleged. Judgment in his favor in the Supreme Court
92
DECISIONS OF COURTS AFFECTING LABOR.
of Minnesota was reversed on this appeal, the Federal law being
held inapplicable. Peery’s run was from Paducah south to Fulton,
both points being in the State of Kentucky. The train out gener
ally, and on the day in question, had interstate goods on board, but
the return trip carried none, and it was on the return that the injury
complained of was received. The court held that the two trips
were separate movements, “ in opposite directions, with different
trains.” Conceding that the greater probability of getting traffic
going south was the chief reason for establishing the run, it was
held that this could not dominate the return to the extent of fixing
its character as interstate when there was no traffic of that nature
being carried.
E m p lo y e r s ’ L ia b il it y — R ailroad C o m p a n ie s — F ederal S t a t u t e -
Southern Pacific Co. v. Indus
trial Accident Commission of California, Supreme Court of Califor
nia (Dec. H , 1916), 161 Pacific Reporter , page 1139.— A n aw ard o f
I nterstate C o m m er c e — G a t e m a n —
com pensation was m ade by the C a lifo rn ia In d u stria l A cc id en t C o m
m ission to Jessie
Thom as
C. R o lfe ,
L.
R o lfe on account o f the death o f her husband,
in the em ploy o f the railroad com pany nam ed.
The
com pany petitioned fo r review on the ground that the em ployee was
engaged in interstate comm erce, and that the rem edy o f his w idow
was provided by the F ed eral E m p lo y e r s’ L ia b ility A c t .
R o lfe was a
crossing gatem an at a point where both interstate and intrastate trains
passed over the track.
As
an intrastate train was about to pass and
he had closed one o f the gates, he discovered that a horse and Wagon
had approached so near to the track th at he could not close the other
gate w ithout strikin g the horse or the w agon , and he started to cross
the track to back the horse aw ay, was struck by the train, and killed.
Tlio decision was that this was sufficiently related to interstate com
merce so that the F ed eral act applied, and the com pensation aw ard
was annulled.
Ju dge A n g e llo tti, in rendering the opinion, called
attention to decisions to the effect that a track used indiscrim inately
fo r both kinds o f traffic is an instrum entality o f interstate comm erce,
and that those engaged in keeping it in repair or in suitable condi
tion fo r use are engaged in such commerce, and so also as to persons
rem ovin g obstructions fro m the track.
E
m p lo y e r s ’
L ia b il it y — R ailroad C o m p a n ie s — F ederal S t a t u t e —
u p W recked C ar — Southern Rail
way Co. v. Puckett , Supreme Court of the United States (June 11,
1917), 37 Supreme Court Reporter , page 703.—H. E. Puckett, an em
I nt er stat e C om m er c e — J a c k in g
ployee of the company named, was injured in August, 1911, and
TEXT AND SUMMARIES OF DECISIONS.
93
brought action under the Federal Employers’ Liability Act against
the company. At the time of injury he was engaged in carrying
blocks to jack up a wrecked car, the purpose being to release another
employee who was pinned down by the car, and to assist in clearing
a\vay the wreck. He stumbled over some large clinkers beside the
track, and struck his foot against some old ties overgrown with
grass, fell, and was seriously injured. The court held, the Chief Jus
tice dissenting, that he was employed in interstate commerce, and
affirmed the judgment of the Court of Appeals of Georgia in his
favor, Mr. Justice Pitney saying:
The court held that although plaintiff’s primary object may have
been to rescue his fellow employee, his act nevertheless was the first
step in clearing the obstruction from the tracks, to the end that the
remaining cars for train No. 75 might be hauled over them; that his
work facilitated interstate transportation on the railroad, and that
consequently he was engaged in interstate commerce when injured.
We concur in this view. From the facts found, it is plain that the
object of clearing the tracks entered inseparably into the purpose of
jacking up the car, and gave to the operation the character of inter
state commerce.
E
m plo y er s ’
L ia b il it y — R ailroad C o m p a n ie s — F ederal S t a t u t e -
Southern Pacific Co. v. Indus
trial Accident Commission of California,, Supreme Court of Cali
fornia (Dec. 14, 1916), 161 Pacific Repm'ter, page 1143.— I n this case
I n t e r sta t e . C o m m er c e — L i n e m a n —
aw ard o f com pensation had been m ade by the industrial accident
commission
C ovell.
to
Jessie
Co veil fo r the death o f her husband,
Victor
A t the tim e o f the fa ta l accident he w as at w ork fo r the
com pany as
a
linem an, and engaged in rem oving a telephone w ire
which had fa llen upon a trolley wire, the rem oval o f w^hich was neces
sary before trains could be operated on an electric railw ay consti
tu tin g a part o f the passenger system , both interstate and intrastate.
I t was decided that the principles con trollin g in this case were the
same as those applied in the case o f the same title relatin g to a gatem an
(161 Pac. 1139;
see p.
92),
and the aw ard was annulled, it being
held th at the m atter was governed by the Fed eral E m p lo y e r s’ L ia
b ility L a w , and th at the com m ission h ad been w ithout jurisdiction
to m ake an aw ard.
The
fo llo w in g is quoted fro m the b rief opinion
delivered fo r the court by Judge A n g e llo tti :
It was necessary that this telephone wire be removed in order that
cars might be operated, as it was impossible to operate cars over the
line until such wire had been removed. Deceased being thus en
gaged directly in removing an obstruction to the use of an instru
mentality in actual use for purposes of interstate commerce was en
gaged in interstate commerce at the time of the accident.
94
DECISIONS OF COURTS AFFECTING LABOR.
E m p lo y e e 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 -
Minneapolis <& St.
Louis Railroad Go. v. Winters, Supreme Court of the United States
(Jan. 8, 1917), 37 Supreme Court Reporter , page 170.— G eorge H.
I n t e r s t a t e C om m erce— R e p a irin g L o co m o tiv e—
W in te r s, a m ach in ist’s'h elper, was inju red w hile wTorking in a rou n d
house repairing an engine.
Ju dgm en t in his suit against the com
pany was in his fa v o r, and the com pany appealed.
T h e record in the
case did not m ake it clear whether the verdict was rendered in ac
cordance w ith a view th at the case was w ithin the scope o f the F e d
eral act or the State law .
In
order to give the Suprem e C ou rt ju ris
diction on appeal to consider questions raised by the com pany it was
necessary to find th at the facts, which had been agreed upon in the
tria l court, showed an em ploym ent in interstate commerce and a
consequent a p plicability o f the F ed eral act.
was not shown,
Mr.
T h e court held that this
Justice H olm e s sayin g in the opinion delivered
by h i m :
The agreed statement is embraced in a few words. The plaintiff
was making repairs upon an engine. The engine “ had been used in
the hauling of freight trains over the defendant’s line. . . . which
freight trains hauled both intrastate and interstate commerce, and it
was so used after the plaintiff’s injury.” The last time before the
injury on which the engine was used was on October 18, when it
pulled a freight train into Marshalltown, and it was used again on
October 21, after the accident^ to pull a freight train out from the
same place. That is all that we have, and is not sufficient to bring
the case under the act. This is not like the matter of repairs upon
a road permanently devoted to commerce among the States. An en
gine, as such, is not permanently devoted to any kind of traffic, land
it does not appear that this engine was destined especially to any
thing more definite than such business as it might be needed for. It
was not interrupted in an interstate haul to be repaired and go on.
It simply had finished some interstate business and had not yet be
gun upon any other. Its next work, so far as appears, might be in
terstate or confined to Iowa, as it should happen. At the moment it
was not engaged in either. Its character as an instrument of com
merce depended on its employment at the time, not upon remote
probabilities or upon accidental later events.
E
m p lo y e r s ’
L ia b il it y — R ailr o aq C o m p a n ie s — F ederal S t a t u t e —
I n ter state C o m m er c e — S h i f t in g C ar
state
S h ip m e n t — S afe ty
A
to b e
p p l ia n c e s —
U
L oaded
n c o u p l in g
w it h
for
I nter
F l y in g
S w i t c h — Christy v. Wabash R. Co., Kansas City Court of Appeals,
Missouri (Jan. 29, 1917), 191 Southwestern Reporter, page 21fl.—
L au ra C h risty brough t action fo r the death o f her husband, occur
rin g w hile in the em ploy o f the railroad com pany nam ed.
In
the cir
cuit court o f R a n d olp h C ou n ty a ju ry rendered a verdict in her fa v o r,
and ju d gm en t was entered thereon.
I t was evident fr o m this verdict
95
TEXT' AND SUMMARIES OF DECISIONS.
that the jury found the facts alleged on the part of the plaintiff to
be true, and the court in this decision held that they were sufficient
to support the conclusion that the car which was being switched was
to be taken the next morning to a point a few miles away, there to be
loaded with eggs and sent to Chicago, an interstate movement. The
court held that this situation made the employment interstate service,
Judge Ellison, who delivered the opinion, saying as to it:
No sound reason can be suggested why that was not interstate serv
ice. We think it was such service in a special and immediate sense.
For the use to which the car was to be put was the already ascer
tained service of a specific shipment into another State; and that ship
ment was to be made on the day the car was being switched out of the
yards for that use.
The fatal injury to the deceased occurred in the making of a flying
switch of the car. The car was placed behind the engine, and after
they were in motion the engine was uncoupled and its speed increased,
so that they became separated a sufficient distance for the switch to
be thrown after the engine passed, turning the car upon the siding.
The engine and car were both equipped with automatic couplers, as
required by law, but it was held that the safety-appliance act was
violated by this method of switching, which required the employee to
asume a position between the engine and the car, a thing which the
law was designed to prevent. In this instance, as a matter of fact,
the employee fell off, probably in the act of pulling the coupling pin,
and was run over and killed. All questions were decided in favor of
the plaintiff, and the judgment was affirmed. As to the violation of
the safety-appliance provisions Judge Ellison said:
There was abundant evidence to show that a “ flying switch ” made
by the employee standing on the footboard in front of the moving
engine could not be accomplished without standing between the en
gine and car, or without hanging to the end of the car by placing
one foot in a stirrup and reaching some part of the body around be
tween the two. We think in these circumstances a case was made for
plaintiff. For, notwithstanding an interstate carrier complies with
the Safety Appliance Act, yet if it operates the cars so that the appli
ances can not be used without doing the thing the act seeks to avoid,
i. e., going between the cars, it violates the statute as fully as if it
had failed to install the appliances.
E
m p lo y e r s ’
L ia b il it y — R ailroad C o m p a n ie s — F ederal S t a t u t e — •
I n t er stat e C o m m er c e — S h i f t in g C ars
w it h
C oal
for
E
n g in e s —
Lehigh Valley R. Co. v. Barlow, Supreme Court of the United States
( May 21, 1917), 37 Supreme Court Reporter, page 515.— Jam es H.
B arlo w was aw arded dam ages fo r personal injuries in his suit against
the com pany nam ed, the action h av in g been brough t under the
F ed era l E m p lo y e r s’ L ia b ility
Act.
T h e ju d gm en t in his fa v o r was
96
DECISIONS OF COURTS AFFECTING LABOR.
affirmed by the various courts of New York State, the decision by
the court of appeals being reported in 214 N. Y. 116, 107 N. E. 814,
and summarized in Bui. No. 189, p. 110. The only question carried
to the United States Supreme Court was as to the employment of
Barlow in interstate commerce at the time of the injury. The facts
are stated, and the decision of the court that he was not occupied with
interstate commerce at the time of injury, but that the judgment must
be reversed, is set forth in the brief opinion delivered by Mr. Justice
McReynolds:
The accident occurred July 27, 1912, when, as member of a switch
ing crew, he was assisting in placing three cars containing supply
coal for plaintiff in error on an unloading trestle within its yards at
Cortland, New York. These cars belonged to it, and with their con
tents had passed over its line from Sayre, Pennsylvania. After be
ing received in the Cortland yards—one July 3 and two July 10—
they remained there upon sidings and switches until removed to the
trestle on the 27th.
We think their interstate movement terminated before the cars left
the sidings, and that while removing them the switching crew was
not employed in interstate commerce. The essential facts in Chicago,
B. & Q. R. Co. v. Harrington, 241 U. S. 177, 36 Sup. Ct. 517 [Bui.
No. 224, p. 105], did not materially differ from those now presented*
There we sustained a recovery by .an employee, holding he was not
engaged in interstate commerce; and that decision is in conflict with
the conclusion of the court of appeals.
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 —
I n t e r s t a t e C om m erce— S t a t i o n A g e n t S e c u r in g M a i l B a g s fr o m
Lynch v. Boston <& Maine Railroad, Supreme
Judicial Court of Massachusetts (May 25, 1917), 116 Northeastern
Reporter, page JiOl.— J u lia L y n ch brought action under the Massa
I n te r s ta te T r a in —
chusetts E m p lo y e r s ’ L ia b ility A c t fo r the death o f her husband,
Jerem iah L y n ch , in the em ploy o f the railroad com pany nam ed.
L y n ch was em ployed at the station at N ew bury port du rin g the n ig h t,
and it w as
a
p art o f his du ty, a fter low erin g the gates across a
Gtreet near the station, to cross the tracks in fro n t o f the train and
get the m ail bags fo r that station.
T h e engineer saw L y n ch start
to run across ahead o f the engine and pass out o f sigh t in fro n t o f
i t ; his body was later fo u n d where it had been dragged by the engine
before the train stopped fo r the station.
T h e train w as an express
ru nn ing fro m P o rtla n d to B oston , stop p in g only at B id d e fo r d , M e.,
and P ortsm ou th ,
N. H.,
before reaching N ew b u ry p o rt.
T h e ju d g
m ent was fo r the com pany, on the ground th at the w id o w ’s rig h t o f
action,
i f any, was under the F ederal L ia b ility
Act,
occurred du rin g em ploym ent in interstate commerce.
since the in ju ry
T h is was also
TEXT AND SUMMARIES OE DECISIONS.
97
the view of the supreme judicial court, Judge Crosby in the opinion
saying:
This train was a passenger train and carried mail and baggage
which it was the duty of Lynch to take from the train and place in
the baggage room at the station. It is plain that the train not only
was an interstate train but was engaged in the transportation of
interstate passengers and property—and so was engaged in the busi
ness of interstate commerce. It can not be doubted that the trans
portation of mail stands upon the same footing as the transportation
of freight, baggage, or other commodities. It is common knowledge
that railroad companies carry mail under contracts entered into
with the Federal Government authorized by statute and that such
transportation is paid for in accordance with the terms of such con
tracts. The fact that the carriage is for the Federal Government
does not stand different than if the service is rendered to an indi
vidual ; it is a part of the regular business of railroads from which
they derive a substantial revenue.
E
m p lo y e r s ’
L ia b il it y — R ailroad C o m p a n ie s — F ederal S t a t u t e — *
L im it a t io n — A
m endment
of
A
B egun
ctio n
at
C ommon
L aw — *
Hogarty v. Philadelphia <&Reading R y. Go., Supreme Court of Penn
sylvania (Oct. 9, 1917), 99 Atlantic Reporter , page 7hi.— W illia m J.
H o g a r ty lost his rig h t arm on F ebruary
1,1910,
w hile in the em ploy
o f the com pany nam ed, as conductor o f a sh iftin g crew.
H e was
thrown under a car by strikin g a telegraph pole when he leaned
beyond the side o f a car to uncouple it, and alleged th at the pole was
n egligently placed too near the track.
H is
origin al declaration was
at comm on law , statin g no facts indicatin g that the em ploym ent
was in interstate commerce.
T h e com pany defended on the ground
that he had accepted benefits fro m its relief society.
I t had ad
m itted, how ever, that the em ploym ent at the tim e o f the in ju ry was
in interstate commerce, and he called attention to the fa ct that the
Federal E m p lo y e r s’ L ia b ility A c t does not perm it the defense o f
release by paym en t fro m relief funds.
T h e com pany replied that the
F ederal statute had no application, since, he had sued at com m on
law.
T h e rejoinder o f the plain tiff claim ed the rig h t to amend b y
pleadin g the statute, which the trial court denied.
O n appeal the
supreme court reversed the trial court’s ju d gm en t fo r the com pany
and ordered a new trial.
91 A t l. 854,
T h is decision was reported in
and noted in B u lletin N o .
169,
p.
84.
245
P a.
443,
O n the second trial
judgm ent was fo r the em ployee, and the supreme court in the present
decision reversed its previous decision as w ell as the ju dgm en t, say
ing that in the m eantim e the U n ited States Suprem e C ourt had
settled the question in Seaboard A ir L in e Co.
290, 36
Sup. C t.
567,
64919°— 18— Bull. 246------7
v.
R enn,
241
U . S.
w hich was to the effect that i f the am endm ent
98
DECISIONS OF COURTS AFFECTING LABOR.
introduced a new and different cause of action, the statute of limita
tions must be considered; so that, since more than the statutory
period of two years had elapsed between the injury and the attempt
to make the amendment, such amendment would not be allowed.
Judge Moschzisker, who delivered the previous opinion, dissented
from the present view. The majority opinion was delivered by Judge
Brown, who, referring to the admission by the company that the
employment was in interstate commerce, said:
At the time the admission was made, and for nearly three years
before, all liability of the defendant under the act of Congress had
ceased; for none could have been enforced against it except by an ac
tion brought within two years from the time the injuries were sus
tained. The admission was not that the plaintiff had a cause of
action under the act of Congress, but merely that at the time of the
accident, and for two years thereafter, the defendant might have been
liable under the act, which, however, was no longer available to the
plaintiff.
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 —
New York Central <& Hudson River
R. Co. v. Tonsellito , Supreme Court of the United States ( June 4,
1917), 37 Supreme Court Reporter , page 620.— T h e C ourt o f E r r o r s
R ig h t s o f P a r e n t o f M in o r —
and A p p e a ls o f N ew Jersey affirmed ju d gm en t fo r dam ages aw arded in
a suit brough t by M ich ael T on sellito, an injured m in or em ployee o f the
com pany nam ed, fo r personal in ju ries; and in a separate suit by his
fath er, Jam es T on sellito,
m edical expenses incurred.
and noted in B u lletin N o .
fo r
loss o f
his
son’s services
These cases were reported in
189,
p.
98.
and
fo r
94 A t l. 904,
T h e Su prem e C ou rt affirmed
the ju d gm en t in the fo rm er case, but reversed it in the latter fo r
reasons m ade plain in m atter quoted fro m the opinion o f M r . Justice
M cR ey n o ld s as fo llo w s :
The court of errors and appeals rule, and it is now maintained,
that the right of action asserted by the father existed at common law
and was not taken away by the Federal Employers’ Liability Act.
But the contrary view, we think, is clearly settled by our recent
opinions in New York C. etc* R. Co. v. Winfield, 37 Sup. Ct. 546 [see
p. 260], an'd Erie R. Co. v. Winfield, 37 Sup, Ct. 556 [see p. 265].
There we held the act “ is comprehensive and also exclusive ” in re
spect of a railroad’s liability for injuries suffered by its employees
while engaging in interstate commerce. “ It establishes a rule or
regulation which is intended to operate uniformly in all the States as
respects interstate commerce, and in that field it is both paramount
and exclusive.” Congress having declared when, how far, and to
whom carriers shall be liable on account of accidents in the specified
class, such liability can neither be extended nor abridged by common
or statutory laws of the State*
99
TEXT AND SUMMARIES OF DECISIONS.
E
m p lo y e r s ’
L ia b il it y — R ailroad C o m p a n ie s — H
ours of
S er vice
Baltimore dc Ohio Railroad Co. v.
Wilson , Supreme Court of the United States (Dec. 18, 1916), 37
Supreme Court Reporter , page 123.—James B. Wilson was injured
A
ct —
V
io l a t io n —
D e f en ses —
while in the employ of the railroad company named. It was alleged
that he was kept on duty for more than 16 hours, and subsequently,
apparently 14 hours later, was again called on duty, and was at that
time so exhausted from the strain of the previous work that he was
not able to protect himself, and was injured as a consequence. The
jury which rendered a verdict for the plaintiff was instructed that if
it found that the violation of the Hours of Service Act proximately
contributed to the injury, it should not consider contributory negli
gence on the part of the plaintiff in determining the amount of the
damages. After stating the above facts, Mr. Justice Holmes, who
delivered the opinion affirming the judgment of an appellate court
of Illinois in favor of the plaintiff, spoke as follows:
The first step in the railroad’s real defense was that the plaintiff
was not kept on duty more than 16 hours,—a proposition that
there was substantial evidence to maintain. But that having been
overthrown by the verdict, it contends that the injury must happen
during the violation of law, or at least that the Hours of Service Law
fixes the limit of possible connection between the overwork and the
injury at 10 hours by the provision that an employee, after being
continuously on duty for 16 hours, shall have at least 10 consecu
tive hours off. It also objects that the plaintiff, if feeling incom
petent to work, should have notified the defendant. But no reason
can be given for limiting liability to injuries happening while the
violation of law is going on, and as to the 10 hours, the statute iixes
only a minimum, and a minimum for rest after work no longer than
allowed. It has nothing to do with the question of the varying rest
needed after work.extended beyond the lawful time. In this case
there was evidence that whether technically on duty or not, the plain
tiff had been greatly overtaxed before the final strain of more than
16 hours, and that, as a physical fact, it was far from impossible
that the fatigue should have been a cause proximately contributing to
all that happened. If so, then by the Employers’ Liability Act,
secs. 3 and 4, questions of negligence and assumption of risk dis
appear.
E
m p lo y e r s ’
an c e s —
L ia b il it y — R ailroad
C ouplers — P rotection
of
E
C o m p a n ie s — S a f e t y
m p lo y e e s
not
A
p p l i
C o u p l in g
and
—Louisville <& Nashville R. Co. v. Layton , Supreme
Court of the United States (Apr. 30, 1917), 37 Supreme Court R e porter, page Jf56.—O. Y. Layton sued the railroad company named
for damages for personal injuries, and judgment in his favor was
affirmed by the Supreme Court of Georgia. The action was brought
under the Georgia Employers’ Liability Act, which provides that
U
n c o u p l in g
100
DECISIONS OF COURTS AFFECTING LABOR.
the employee shall not be held to be guilty of contributory negli
gence, nor to have assumed the risk, where violation of any statute
enacted for his safety contributed to the injury—the reference being, it
was assumed, to the Federal Safety Appliance Act. The employee
was admittedly in the performance of his duty when injured. He
was a switchman, and was on top of one of two standing cars, when
an engine and car were backed against five other standing cars near
by to couple on to them. Through defect of the coupling apparatus,
the connection was not made, but the five cars were set in motion
against the car on which he was, throwing him to the track, where his
right arm was crushed by the cars. The question disputed was
whether the provisions of the Safety Appliance Act relating to
couplers is intended for the benefit of all who may be injured through
failure to conform to its regulations, or only of those whom such
failure compels to go between the cars. The Supreme Court adopted
the former view, sustaining the position taken by the court below,
saying that while the immediate occasion of the enactment of the
laws was the protection of the class of employees who were required
by their duties to go between the cars, their benefits were by no means
confined to such persons.
E
m plo yer s ?
ances—
L ia b il it y — R ailroad
P r e s u m p t io n
of
C o m p a n ie s — S a f e t y
N egligen ce — F a t h e r ’ s R ig h t
to
A
p p l i
D am
D e a t h of M in o r S o n — Minneapolis <& St. Louis R. Go. v.
Gotsehall, Supreme Court of the United States ( May 21, 1917), 87
Supreme Court Reporter, page 598.— M erlin E. G otsehall, 20 years
ages for
o f age, was head brakem an on a freig h t train tran sportin g m er
chandise in interstate commerce.
He
was near the rear end o f the
train, proceeding over the tops o f the cars tow ard the engine, when
the train became separated because o f the open in g o f a coupler on
one o f the cars, the em ergency brakes autom atically becam e set, and
the sudden jerk caused thereby threw h im off the train and under the
wheels, k illin g him .
N o ra G otsehall brought suit as adm inistratrix
against the railroad com pan y, and the Suprem e C ou rt o f M innesota
affirmed a ju d gm en t in her fa v or.
W h e th e r the m ere fa ct o f the
failu re o f the coupler to h old was sufficient to enable a ju ry to in fer
n egligence was in dispute, as was also the necessity o f evidence o f
pecuniary loss on the part o f the fath er, in whose interest the action
w as brought.
The
ju d gm en t was affirmed,
Mr.
C h ie f Justice W h it e
delivering the opinion, and s a y in g :
The jury, under an instruction of the court, wTas permitted to infer
negligence on the part of the company from the fact that the coupler
failed to perform its function, there being no other proof of negli
gence. It is insisted this wTas error, since, as there was no other
101
TEXT AND SUMMARIES OF DECISIONS.
evidence of negligence on the part of the company, the instruction
of the court was erroneous as, from whatever point of view looked
at, it was but an application of the principle designated as res ipsa
loquitur. We think the contention is without merit because, conced
ing in the fullest measure the correctness of the ruling announced in
the cases relied upon to the effect that negligence may not be inferred
from the mere happening of an accident except under the most ex
ceptional circumstances, we are of opinion such principle is here not
controlling in view of the positive duty imposed by the statute upon
the railroad to furnish safe appliances for the coupling of cars,
[Cases cited.]
Again it is insisted that error was committed in submitting the
case to the jury because there was no evidence of pecuniary loss
resulting to Gotschall’s father, on whose behalf the suit was brought.
But this disregards the undisputed fact that the deceased was a
minor, and as, under the Minnesota law, the father was entitled
to the earnings of his son during minority, the question is one not
of right to recover, but only of the amount of damages which it was
proper to award.
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— S t a t e and F e d e r a l
Missouri Pa
cific Railway Go. v. Taber, Supreme Court of the United States {May
21, 1917), 37 Supreme Court Reporter , page 522.— Charles L. S m a ll
S t a t u t e s — J u r is d ic tio n o f F e d e r a l Su prem e C o u r t—
was killed while em ployed as a sw itchm an b y the railw ay com pany
nam ed, and M a rga ret
L.
T a ber, the guardian o f his m inor children,
brough t suit in their b eh a lf to recover dam ages.
A c tio n was brough t
under the statutes o f the S tate o f M issou ri, and no objection was
m ade to this by the com pany in its answer or at the trial.
T h e com
p a n y appealed fro m a ju d gm en t in the p la in tiff’s fa v o r, but the State
supreme court refused to consider the contention th at, since S m a ll
was engaged in interstate commerce, the F ed eral act should have been
relied upon, and affirmed the ju d gm en t o f the court below.
The
Suprem e C ourt o f the U n ited States also held th at it w as too late to
raise the question.
M r . Justice M cR ey n o ld s, in delivering the opinion,
stated th at “ U n less some rig h t, privilege, or im m u n ity under the
F ed eral act was duly and especially claim ed, we have no ju risd ic
tio n ,” and concluded as fo llo w s :
The original action was based upon a State statute; the answer did
not set up or rely upon the Federal act; the trial court’s attention was
not called thereto, and although urged to hold liability dependent
upon it, the supreme court declined to pass upon that point because
not presented to the trial court. This ruling seems in entire accord
with both State statutes and established practice. [Cases cited.]
The case was therefore dismissed for want of jurisdiction, leaving
the judgment of the State courts undisturbed.
102
DECISIONS OF COURTS AFFECTING LABOR.
E m p lo y e r s ’
L ia b ility — S a fe
P la c e
to
W o r k — I n s p e c tio n
of
South v. Seattle, Port Angeles <& Western Ry. Go., Supreme
Court o f Washington (Nov. 20, 1917), 168 Pacific Reporter, page
896.— B en ja m in E . S ou th was fireman on a locom otive o f the
P ilin g —
com pany nam ed, when, on Jan uary 28, 1916, it was precipitated
into
He
the b a y
brough t
$16,000
at P o r t
suit
A n g eles b y
dam ages,
was rendered by a ju ry
C ou n ty, w hich
com pany
fo r
the
and
that
no
g iv in g
w ay
verdict
in
of
his
a trestle.
fa v o r
in the superior court o f
sum w as reduced b y
contended
a
the court to $10,000.
negligence
on
its
part
was
fo r
K in g
The
shown.
T h e trestle was bu ilt fo r the passage o f trains h au lin g logs to a m ill,
and was constructed in M a y or June, 1914.
I t was claim ed by the
com pany th at since such p ilin g should last fo r three years there
was no du ty to inspect before the expiration o f th at t im e ; also th at
the trestle h ad been repaired in fu lfillm en t o f any du ty owTed by it,
about Decem ber 1, 1915.
A m an o f experience testified, on the other
h an d, that w hile the life o f p ilin g varied in different w aters, it was
not safe to rely on its bein g in good condition fo r m ore than a year.
T h e repairing referred to was upon the side n ext the b a y, where
one or tw o piles were replaced and fender piles bu ilt to prevent d a m
age fro m floating logs.
T h ere was testim ony th at on the other side,
n ext the shore and the lo g du m p— the side where the engine went
off— the p ilin g was so ft and spongy under the water fro m the action
o f teredos and submarine g r o w th s ; and that several weeks before the
accident a pile was seen to be loose, and to be separated about 2 feet
fro m the cap which should rest on its top , and that some days before
the accident it disappeared en tirely ; it was at this poin t that the
break occurred and the engine went dow n.
T h e court affirmed the
ju d gm en t, h old in g that the duty o f inspection and attention to the
weakness o f the trestle was cast upon the com pany by the conditions
shown.
E
m plo y er s ’
L ia b il it y — S a f e t y P rovisions — L ia b il it y o r E l e c
to E m p l o y e e of P a t r o n — Clayton v. Enterprise
Electric Co., Supreme Court of Oregon (Dec. 5, 1916), 161 Pacific
Reporter, page lj.ll.— W. S. C la y ton was killed by electric shock
tric
Com pany
w hile tu rn in g a sw itch, and his w idow sued the com pany nam ed fo r
dam ages, and prevailed.
He
w as in the em ploy o f C arl
Eoe,
the
owner o f a p u m p in g plan t used fo r purposes o f irrigation , power
b ein g derived fro m the transm ission wires o f the electric com pany.
It
was asserted th at the com pany fa iled to properly insulate its
switches and other apparatus, and that it was therefore liable under
the provisions o f the em ployers’ lia b ility law o f the State.
On
the
other side it was claim ed th at the statute applies only to the relation
103
TEXT AND SUMMARIES OF DECISIONS.
of employer and employee, and that the judgment of the court below
for the plaintiff was not warranted for this among other reasons.
Judge Bean, who delivered the opinion of the supreme court, decid
ing the points raised in a manner which sustained the decision below,
said on the question stated:
From the language of the statute, which makes three special refer
ences to the safety of the general public, or the public, it seems there
can be no doubt but that the provisions of the law are intended to
safeguard members of the public from injury by coming in contact
with wires or appliances owned and controlled by an electric com
pany and used in the transmission and application of electricity of
a dangerous voltage. The title of the act plainly shows the purpose,
more fully set forth in the body of the act, to protect all persons
working around high voltage wires, without regard to whether they
are employees of the electric company or not. The enactment is for
the protection of life and limb, and should be given a fair and liberal
construction in the interest of public safety and protection of human
life.
E
m p lo y e r s ’
fect —
A
L ia b il it y — W
p p l ic a t io n to
W
o r k m e n ’s
o r k m a n on
C o m p e n s a t io n
S h ip
on
A
ct
N av ig able W
— E f
aters — -
Shaughnessy v. Northland Steamship Co ., Supreme Court of Wash
ington (Jan. 2^, 1917), 162 Pacific Reporter , page 546.— G eorge
Shaughnessy recovered a ju d gm en t fo r $3,500 as dam ages in a co m m o n -law action in the superior court o f K i n g C ou n ty fo r injuries
suffered by h im in the em ploy o f the com pany nam ed upon the steam
ship
Ailei,
which he w as assisting in un loadin g at a w h a rf located in
the navigable waters o f P u g e t Sound.
H e was obliged to descend into
the h*0!d fo r his w ork by a ladder, which was perpendicular and set
back under the edge o f a hatch a few inches so as not to interfere
w ith the m ovem ent o f the cargo slin g when it was raised and low ered
th rou gh this hatch.
A b o v e the hatch coam ing was a rope supported
b y stanchions so as to fo rm a railin g.
W h e n he bore his w eight
upon the rope in order to get a fo o tin g upon the ladder one o f the
stanchions gave w ay, and he was precipitated into the h old 20 feet
below , suffering the injuries com plained o f.
T h e supreme court first
held that there was no reason fo r disturbing the findings o f the ju r y ,
w hich, in rendering a verdict fo r the p lain tiff, necessarily fou n d that
the com pany w as n egligent in allow in g the rope, o f w hich an em
ployee m ig h t be expected to take hold in clim bin g to his work, to be
insecure, and also th at the em ployee was not g u ilty o f contributory
negligence in relyin g upon its support.
T h e im portan t question, it is said, is w hether the w orkm en’s com
pensation act has w ith draw n such cases fro m the consideration o f
the courts in a com m on-law suit, as was contended by the defendant
com pany.
I t is pointed out th at the act is com pulsory, neither em
104
DECISIONS OF COURT'S AFFECTING LABOR.
ployer nor employee having any option in the matter where the oc
cupation comes within the scope of the act. This, says Judge Par
ker, who wrote the opinion, “ points to a legislative intent to make
the act applicable only to those relations of employer and employee
which are in the legislative control of the State untrammeled by the
laws of the United States and the jurisdiction of the courts of the
United States.” It would follow, in the view of the court, that con
tribution is not required to the fund by the company, so far as the
maritime service of its employees is concerned, and, though the ship
was in the harbor, it was in a position which would subject the mat
ter to the admiralty jurisdiction if the employee saw fit to pursue
that remedy. The opinion cites the case, State ex rel. Jarvis v.
Daggett, 87 Wash. 253, 151 Pac. 648 (Bui. No. 189, p. 250), in which
it was held that such maritime service was not within the act, and
an attempt to compel the compensation commission to collect a con
tribution from the employer and for the fund, in order that the
claim might be paid from the fund, was unsuccessfully prosecuted.
The decisions in other States are for the most part differentiated be
cause the laws are elective, and it is held that the compensation act
does not apply to such cases under the Washington statute. The
judgment for the employee was therefore affirmed.
E m p lo y e r s ’ L i a b i l i t y — W o r k m e n ’s C o m p e n s a tio n A c t — E f f e c t
o f R e j e c t i o n —P r e s u m p tio n o f N e g lig e n c e —Mitchell v. Phillips
Mining C o S u p re m e Court of Iowa (Nov. 16, 1917), 165 North
western Reporter , page 108.—This was an action for damages for the
death of a miner employed by the company named, who received
fatal injuries from the fall of slate from the roof of the mine. The
Iowa workmen’s compensation law provides:
In actions by an employee against an employer for personal injury
sustained, arising out of and in the course of the employment, where
the employer has elected to reject the provisions of this act, it shall
be presumed that the injury to the employee was the direct result and
growing out of the negligence of the employer; and that such negli
gence was the proximate cause of the injury; and in such cases the
burden of proof shall rest upon the employer to rebut the presump
tion of negligence.
The plaintiff in this case did not at first introduce evidence of the
negligence of the company, but relied upon the presumption created
by the paragraph of the law quoted above. The company then intro
duced evidence which it claimed was sufficient to overthrow the
presumption and disprove its negligence. Further evidence was
then in turn given by both parties. Without presenting any ques
tion to the jury, the court directed a verdict for the company,
105
TEXT AND SUMMARIES OF DECISIONS.
and the plaintiff appealed. Judge Preston delivered the opinion of
the court, which held that the evidence should have been submitted to
the jury for determination of certain questions of fact and re
manded it to the trial court for that purpose. The subject of pre
sumption is first discussed in a more general way, after which the
court says:
The act, and particularly the section now in question, should be
construed so as to carry out the purposes and objects of the act. This
being so, there is little room for doubt that the legislature intended
that the evidence of the injury should be considered as evidence of
negligence, and to prove the fact of negligence by operation of the
presumption. The presumption is rebuttable, and the defendant
may show by evidence that it was not guilty of negligence, and that
the negligence wTas not the proximate cause of the injury. We shall
see later that it is a question for the jury to say whether the presump
tion has been overcome. Ordinarily this will be so, but there may be
exceptional cases.
We are of opinion that under the record made the case should
have been submitted to the jury for its determination as to whether
the statutory presumption of negligence had been overcome, and
that the case should be reversed on this ground. We think, too,
there are some circumstances in the record which it would have
been proper for the jury to consider in aid of the presumption, and,
see later that it is a question for the jury to say whether the presump
tion there was sufficient evidence to take the case to the jury.
The opinion then reviews the evidence, and holds that, even disre
garding the statutory presumption, there was evidence tending to
show negligence, sufficient to take the case to the jury.
E m p lo y e r s ’ L i a b i l i t f — W o r k m e n ’s C o m p en sa tio n
sta te
C om m erce— S ea m a n
on
Tow boat
A c t— In te r
H a n d l in g
In te rsta te
Morrison v. Commercial Towboat Co., Supreme Judicial
Court of Massachusetts (May 26, 1017), 116 Northeastern Reporter ,
page 499 .— F ra n cis B . M orrison brought action fo r personal in ju
B arge—
ries, against the com pany nam ed, under the provisions o f the W o r k
m en ’s
Compensation Act
o f M assachusetts w hich a p p ly to cases
in
w hich the em ployer is not a subscriber under the act, and w hich
abrogate com m on-law defenses. T h e act exem pts seamen, etc., on
vessels engaged in interstate or foreign commerce.
T h e em ployee
was, at the tim e o f in ju ry, mate o f a tow boat which operated in B o s
ton H arb o r.
T h is boat was to tow a barge w hich also belonged to
the com pany fro m its w h a rf to the flats in the harbor, after which
the barge, loaded w ith coal, w ould be taken
ocean-going tu g.
to
N o rfo lk ,
Va.,
by an
P relim in ary to this the tow boat went under the
bow o f the barge to deliver a bundle o f fish fo r consum ption on the
trip, and w hile there an engine
on
the barge was started w ithout
106
DECISIONS OF COURTS AFFECTING LABOR.
warning, and the employee was injured by the steam and boiling
water. The court held that since the compensation act and amend
ments except interstate commerce and seamen from their operation,
no action could be brought thereunder in the present instance, and
ordered judgment for the company. The following are extracts from
the opinion delivered by Judge De Courcey:
Interstate commerce in a legal sense embraces not only the trans
portation of freight from one State to another but every link in that
transportation, whether or not some of the links are entirely within
one State.
At the time of the plaintiff’s accident the tug Hersey had run
under the bow of the barge Helen , preparatory to towing it down to
the flats. The captain of the Helen was on the wharf for the pur
pose of casting off the hawser; and the donkey-engine, which was
used in heaving in the hawser, was started. At the time the purpose
of the movements of the plaintiff and of the tug was to reach and
move an interstate vessel.
E
m p lo y e r s ’
L ia b il it y — W
o r k m e n ’s
C o m p e n s a t io n A c t — M in o r s
m p l o y m e n t — Westerlund v. Kettle River G o S u p rem e Court of Minnesota (May 18,
1917), 162 North%oestern Reporter , page 680.—Hilding Westerlund,
L e g a l l y P e r m itt ed
to
W
or k —
D ang er o u s E
a minor, brought action by his guardian to recover for personal in
juries alleged to have been due to the negligence of his employer, the
company named. The company operated stone quarries, and the
plaintiff was at work for it, at the age of 14 years and 4 months,
when he was injured. He was assisting in the work of loading waste
material and dumping it outside the plant. He attempted to stop a
car which was being shunted and whose brakes were out of order, by
placing a block in front of the moving wheels, and was run over by
it. This method was alleged to be in accordance with the custom in
handling cars. He was not engaged in operating machinery of any
kind, but was in close proximity to it much of the time when at his
work. The compensation statute includes in its definition of the
term “ employee ” “ minors who are legally permitted to work under
the laws of the State.” The laws forbid employment of boys under
16 in operating or assisting to operate dangerous machinery and in
other specified work, and the provision concludes with a prohibition
of their employment in u any other employment dangerous to their
lives or limbs or their health or morals.” It was argued on behalf
of the company that this, under the rule of ejusdem generis,
refers only to employments similar to those enumerated. The lower
court had held the complaint sufficient, over the objection that the
matter was covered by the compensation law, and dismissed a de
murrer to the complaint; and this order was on this appeal affirmed,
the court holding that the boy was employed in an occupation dan
107
TEXT AND SUMMARIES OF DECISIONS.
gerous w ith in the m ean in g o f the provision quoted, and was there
fo re n ot le g a lly em ployed nor an “ em ployee ” under the com pensa
tion act.
E
m p lo y e r s ’
isf a c t io n
of
L ia b il it y I n s u r a n c e — L ia b il it y , R egardless
of
Sat
J u d g m e n t — D irect R ecovery — C o n s t it u t io n a l it y
of
Lorando v. Gethro et al., Supreme Judicial Court of
Massachusetts (Sept. 13, 1917), 117 Northeastern Reporter , page
185.— A lb e r t L o ran d o h ad recovered a ju d gm en t against Joseph C.
S tatute—
G ethro fo r personal injuries.
W h ile the report o f the case does not
disclose w hether or not L o ran d o was an em ployee o f G eth ro, the
principles involved w ould cover, in their m ost usual application, in
stances o f inju ries to em ployees.
T h e present suit was brou gh t in
equity against G ethro and the insurance com pany carryin g his lia b il
ity risk, under chapter 464 o f the acts o f 1914, w hich provides that,
upon the occurrence o f loss on account o f a casualty covered b y such
contract o f insurance, the lia b ility o f the insurance com pany shall
become absolute, and the paym ent o f the loss shall not depend u pon
the satisfaction o f the ju d gm en t by the assured; and that the ju d g
m ent creditor shall be entitled to brin g suit in equity to have the
insurance m oney provided in the contract o f insurance applied to
the satisfaction o f the ju dgm en t.
T h e insurance com pany dem urred
to the b ill on the grou n d that the statute was unconstitutional, and
in the tria l court an order was entered overru lin g the dem urrer.
T h is order was affirmed by the supreme ju d icia l cou rt, the v a lid ity
o f the law thus bein g upheld.
J u dge R u g g delivered the opinion,
and called attention to the reason fo r the existence o f the law in the
protection offered to the injured person in case o f the bankruptcy or
financial irresponsibility o f the assured.
He
resolved difficulties in
ascertaining the m eaning o f the law by an authoritative interpreta
tion o f certain expressions.
T h e question o f con stitu tion ality was
then taken up, and the fo llo w in g quotation show s the grounds taken
by the co u rt:
The statute is reasonable in its purpose and effect. Its obvious
design is to afford to the assured of modest resources the direct bene
fit of his insurance. It well might be a practical impossibility for
an assured who has complied with every other term of his contract
and has paid all premiums demanded by the insurer, first to pay the
loss and damage for which he was liable and against which he was
insured. The man without capital or credit might be powerless to
meet his obligation and put himself in position to recover against
the insurer. The man of slender resources or doing a considerable
business on small capital might be forced into bankruptcy, and get
little or no benefit from the insurance for which he had paid. The
persons injured by accidents, for which such classes of assured might
be liable, would be in effect remediless as to practical results for the
108
DECISIONS OP COURTS AFFECTING LABOR.
damages sustained by them. It well might be thought by the legis
lature a sound public policy that casualty insurance should become an
effective instrumentality for both the assured and the injured, and
not be a snare to the assured and a barren hope to the injured. I f
the legislature believed this, it reasonably might decide to framo
the terms of policies of casualty insurance and to provide means for
their enforcement to the end that these results might be avoided, and
to declare that policies lacking these requisites should not be written,
or if written should be ineffective as to these terms.
The instant statute is a declaration of public policy by the general
court respecting one aspect of casualty insurance. It is a declara
tion as to a subject within its general power of regulation. It gov
erns contracts made after it took effect. It is not retroactive. Its
terms are reasonable and violate no right secured by the Constitu
tion. It is well within the principle of numerous decisions where
statutes more or less interfering with the freedom of contract have
been upheld. [Cases cited.]
E
m p lo y e r s ’
of
L ia b il it y I n s u r a n c e — P rovisions
of
P o licies —
Sub
Verducci
v. Casualty Co. of America , Supreme Court of Ohio (May 15, 1917),
117 Northeastern Reporter , page 235.— A n to n io V erdu cci was in
r ogation
I n ju red E
m ployee
to
E
m p lo y e r ’s
R ig h t s —
jured w hile in the em ploy o f the firm o f E n sm in g er B ros.
them , and recovered a ju d gm en t in the sum o f
$10,000
He
sued
and costs.
In
the present suit he brough t action against the com pany nam ed, w hich
h ad executed a p olicy o f lia b ility insurance in fa v o r o f the em
ployers, and had conducted the defense in the p rior suit.
I t was
alleged that no part o f the ju d gm en t h ad been p a id , and that the
em ployers were insolvent.
T h e answer adm itted the execution o f
the p o licy , but stated that the policy provided th at it could be en
forced only by the insured firm, and then only on condition th at
ju d gm en t rendered against it had been satisfied.
o f S tate ex rel. T u rn er
tion (see p.
293),
v.
On
a
the auth ority
E m p lo y e r s’ L ia b ility A ssu ran ce C orp o ra
the court held th at these stipu lations, inconsistent
w ith the statute, were void.
A
ju d gm en t had been rendered in fa v o r
o f the defendant insurance com pany in the court o f appeals o f C a y u hoga C ou n ty, but this w as reversed, and ju d gm en t entered fo r the
em ployee, on the facts contained in an agreed statem ent.
E m p lo y m e n t O f f i c e s — P r o h i b it io n o f R e c e ip t o f F e e s fr o m
W o r k m e n — 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 — Adams v. Tanner et
al., Supreme Court of the United States (June 11, 1917), 37 Supreme
Court Reporter , page 662.—The people of the State of Washington
enacted in 1914 Initiative Measure No. 8, popularly known as the
Employment Agency Law, On December 3 of that year the gov
TEXT AND SUMMARIES OF DECISIONS.
109
ernor issued his proclamation announcing that the majority had
been in favor of its passage, and declaring it a law effective from
that date. In brief, the act forbids the taking of fees from workmen
for securing employment for them.
Even before the official proclamation of the passage of the law pro
ceedings were instituted, on November 25, to secure an injunction
preventing its enforcement, on the ground that it was invalid as in
conflict with the provision of the fourteenth amendment to the Fed
eral Constitution protecting property rights. The injunction was
denied and the bill dismissed by a Federal district court, whereupon
the case was taken to the Supreme Court of the United States on the
constitutional question. This court, divided 5 to 4, reversed the
decision below, and declared the law unconstitutional.
The majority opinion was delivered by Mr. Justice McReynolds,
who stated the facts as to the proceedings in the lower court. With
reference to the decisions of the State supreme court construing the
law rendered in the meantime, and to the question whether the
law, if valid, would practically prohibit the business of the com
plainants, he said:
In Huntworth v. Tanner, 87 Wash. 670, 152 Pac. 523 [Bui. No.
189, p. 123], the supreme court held school teachers were not “ work
ers” within the quoted measure and that it did not apply to one
conducting an agency patronized only by such teachers and their em
ployers. And in State v. Rossman, 161 Pac. 349, the same court
declared it did not in fact prohibit employment agencies since they
might charge fees against persons wishing to hire laborers; that it
was a valid exercise of State power; that a stenographer and book
keeper is a “ worker ” ; and that one who charged him a fee for fur
nishing information leading to employment violated the law.
The bill alleges “ that the employment business consists in securing
places for persons desiring to work,” and unless permitted to collect
fees from those asking assistance to such end, the business conducted
by appellants can not succeed and must be abandoned. We think
this conclusion is obviously true. As paid agents their duty is to
find places for their principals. To act in behalf of those seeking
workers is another and different service, although, of course, the same
individual may be engaged in both. Appellants’ occupation as agent
for workers can not exist unless the latter pay for what they receive.
To say it is not prohibited because fees may be collected for some
thing done in behalf of other principals is not good reasoning. The
statute is one of prohibition, not regulation. “ You take my house
when you do take the prop that doth sustain my house; you take my
life when you do take the means whereby I live.”
Decisions of the court recognizing that employment agencies are
subject to regulation and control are cited at this point, but Justice
McReynolds failed to find a reason for their absolute suppression,
since “ there is nothing inherently immoral or dangerous to public
welfare in acting as a paid representative of another to find a position
110
DECISIONS OF COURTS AFFECTING LABOR.
in which he can^earn an honest living. On the contrary, such service
is useful, commendable, and in great demand.” He quoted with ap
proval the opinion in the California case of In re Dickey, 144 Cal.
234 [Bui. No. 57, p. 693], which characterizes the business as “ not
only innocent and innocuous, but highly beneficial.” The extent of
the business of the plaintiffs, who furnished positions for 90,000
persons in one year, and received applications from at least 200,000
laborers, is referred to. Continuing, Justice McEeynolds said:
A suggestion on b e h a lf o f the State th at w h ile a pu rsuit o f this
kin d “ m a y be beneficial to some particu lar in d ivid u als or in specific
cases, econom ically it is certainly n onuseful, i f not vicious, because
it compels the needy and u n fortu n ate to pa y fo r th at w hich they are
entitled to w ith ou t fee or price, th at is, the rig h t to w o rk ,” w hile
possibly indicative o f the purpose held by those w ho originated the
legislation, in reason gives it no support.
Because abuses may, and probably do, grow up in connection with
this business, is adequate reason for hedging it about by proper regu
lations. But this is not enough to justify destruction of one’s right
to follow a distinctly useful calling in an upright way. Certainly
there is no profession, possibly no business, which does not offer
peculiar opportunties for reprehensible practices; and as to every one
of them, no doubt, some can be found quite ready earnestly to main
tain that its suppression would be in the public interest. Skillfully
directed agitation might also bring about apparent condemnation
of any one of them by the public. Happily for all, the fundamental
guaranties of the Constitution can not be freely submerged if and
whenever some ostensible justification is advanced and the police
power invoked.
The general principles by which the validity of the challenged
measure must be determined have been expressed many times in our
former opinions. It will suffice to quote from a few.
Only a portion of one of the quotations made at this point in the
opinion is here reproduced:
The legislature, being familiar with local conditions, is, primarily,
the judge of the necessity of such enactments. The mere fact that a
court may differ with the legislature in its views of public policy, or
that judges may hold views inconsistent with the propriety of the
legislation in question, affords no ground for judicial interference,
unless the act in question is unmistakably arid palpably in excess of
legislative power. * * *
If there existed a condition of affairs concerning which the legis
lature of the State, exercising its conceded right to enact laws for the
protection of the health, safety, or welfare of the people, might pass
the law, it must be sustained; if such action was arbitrary interfer
ence with the right to contract or carry on business, and having no
just relation to the protection of the public within the scope of legis
lative power, the act must fail. McLean v. Arkansas, 211 U. S. 539,
547, 548, 29 Sup. Ct. 206 [Bui. No. 81, p. 419].
The opinion concludes as follows :
We are of opinion that Initiative Measure No. 8, as construed by
the Supreme Court of Washington, is arbitrary and oppressive, and
TEXT AND SUMMARIES OF DECISIONS.
I l l
that it unduly restricts the liberty of appellants, guaranteed by the
fourteenth amendment, to engage in a useful business. It may not
therefore be enforced against them,
Mr. Justice McKenna dissented on the ground that “ the law in
question is a valid exercise of the police power of the State directed
against a demonstrated evil.” A dissenting opinion of considerable
length was prepared by Mr. Justice Brandeis, Mr. Justice Holmes
and Mr. Justice Clarke concurring. Mr. Justice Brandeis referred to
the frequently expressed doctrine that “ The action of the legislature
is final unless the measure adopted appears clearly to be arbitrary or
unreasonable or to have no substantial relation to the objects to be
attained,” and added that these facts and conditions can not “ be
determined by assumptions or by a priori reasoning. The judgment
should be based upon the consideration of relevant facts, actual or
possible—ex facto jus oritur” (the law arises from the fact).
In carrying out this method of inquiry into the facts, the evils, the
remedies, the conditions in the State of Washington, and the funda
mental problems were discussed in order, with numerous citations
from Government reports and from studies of the questions of un
employment and the procurement of employment. The sources cited
included Bulletins Nos. 68, 119, 192, and 211 of the Bureau of Labor
Statistics; the report and testimony submitted to Congress by
the United States Commission on Industrial Relations; reports of
the Washington State Bureau of Labor; the American Labor Legis
lation Review, etc. Thus the economic grounds for the act were
brought under review and the actual facts and conditions involved
considered. The concluding division of the opinion, under the head
“ The Fundamental Problem,” is quoted in full, exclusive of foot
notes giving citations and quotations from the authorities for the
statements made:
The problem which confronted the people of Washington was
far more comprehensive and fundamental than that of protecting
workers applying to the private agencies. It was the chronic prob
lem of unemployment—perhaps the gravest and most difficult prob
lem of modern industry—the problem which, owing to business
depression, was the most acute in America during the years 1913 to
1915. In the State of Washington the suffering from unemployment
was accentuated by the lack of staple industries operating continu
ously throughout the year and by unusual fluctuations in the demand
for labor, with consequent reduction of wages and increase of social
unrest. Students of the larger problem of unemployment appear to
agree that establishment of an adequate system of employment offices
or labor exchanges is an indispensable first step toward its solution.
There is reason to believe that the people of Washington not only con
sidered the collection by the private employment offices of fees from
employees a social injustice, but that they considered the elimination
of the practice a necessary preliminary to the establishment of a
constructive policy for dealing with the subject of unemployment.
112
DECISIONS OF COURTS AFFECTING LABOR.
It is facts and considerations like these which have led the people
of Washington to prohibit the collection by employment agencies of
fees from applicants for work. And weight should be given to the
fact that the statute has been held constitutional by the Supreme
Court of Washington and by the Federal district court (three judges
sitting)—courts presumably familiar with the local conditions and
needs.
In so far as protection of the applicant is a specific purpose of the
statute, a precedent was furnished by the act of Congress, December
21, 1898 (30 Stat. 755), which provides, among other things:
“ I f any person shall demand or receive, either directly or indi
rectly, from any seaman or other person seeking employment as
seaman, or from any person on his behalf, any remuneration what
ever for providing him with employment, he shall for every such
offense be liable to a penalty of not more than one hundred dollars.”
In so far as the statute may be regarded as a step in the effort to
overcome industrial maladjustment and unemployment by shifting
to the employer the payment of fees, if any, the action taken may be
likened to that embodied in the Washington workmen’s compensation
law (sustained in Mountain Timber Co. v. Washington, 243 U. S.
219, 37 Sup. Ct. 260 [Bui. No. 224, p. 252]), whereby the financial
burden of industrial accidents is required to be borne by the em
ployers.
As was said in Holden v. Hardy, 169 U. S. 366, 387, 18 Sup. Ct.
883 [Bui. No. 17, p. 625] :
In view of the fact that from the day Magna Charta was signed
to the present moment amendments to the structure of the law
have been made with increasing frequency, it is impossible to
suppose that they will not continue and the law be forced to adapt
itself to new conditions of society, and particularly to the new rela
tions between employers and employees as they arise.”
In my opinion, the judgment of the district court should be af
firmed.
F a c t o r y R e g u l a t io n s — F ir e E s c a p e s — C r im in a l R e s p o n s ib ilit y
o f T e n a n t —People v. Shevitz et al., Supreme Court of Neto York,
Appellate Division , First Department {Apr. IS, 1917), 16If. New
York Supplement, page 60S.—Hyman Shevitz was convicted of
having unlawfully conducted a factory in a building which did not
conform to the requirements of section 79b of the Labor Law of
New York State in respect to fire escapes and exits. The respondent
argued on the appeal that, as the exits complained of were outside
the workplace occupied by him, it could not be said that there was a
failure to observe the provisions of the section “ within his holding.”
The court, however, pointed out that the section provides in its first
sentence, “ No factory shall be conducted in any building heretofore
erected unless such building shall conform to the following require
ments.” The conviction was affirmed. Judge Scott in the opinion say
ing further:
113
TEXT AND SUMMARIES OF DECISIONS.
The evidence showed that the loft occupied by defendant had access
to no means of exit such as are required by the statute; consequently
no point within the loft occupied bv defendant arid used by him as a
factory is or can be within 100 or 150 feet “ from the entrance to one
such means of exit.” It follows that the factory is unlawfully con
ducted in this loft, and the defect is within the defendant’s hold
ing. This makes him responsible and punishable for a violation of
section 79b, and under section 1275 of the Penal law his offense is a
misdemeanor.
It may be, as urged in defendant’s behalf, that the defects in the
building were not such as he was called upon or authorized to
remedy; but, even so, it does not serve to excuse him. He need not
have established his factory in a building which did not comply
with the law; but, having done so, he can not escape the consequences.
H ou rs o f Labor o f W o m en — C o n s titu tio n a lity o f
S ta tu te — •
Le Barron , Su
preme Court of 'Wyoming (Jan. 18, 1917), 162 Pacific Reporter , page
265.—W illia m I. Le B arro n was charged w ith h av in g em ployed a
E x e m p tio n
of
R a ilr o a d
R e s t a u r a n t s — State v.
w om an in his restaurant fo r m ore than
10
hours in one day.
The
statute prohibits the em ploym ent o f wom en in certain establish
m ents, in clu d in g restaurants, fo r m ore than
railroad restaurants.
The
10
hours, but excepts
contention o f the respondent was th at
this was an im prop er classification, w hich m ade the statute void as
in contravention o f the fourteenth am endm ent to the F ed era l C on
stitution, and sim ilar provisions o f the S tate constitution.
I t was
h eld -th a t the statute was unconstitutional, in so fa r as it applied to
restaurants, fo r the reason given , and the case w^as returned to the
district court fro m w hich it had been certified fo r the answ ering o f
questions relatin g to this subject.
Ju dge B eard delivered the op in
ion, fro m w hich the fo llo w in g extracts are ta k e n :
A s to classifications w hich are perm itted and w hich do not violate
constitutional provisions, it is the u n ifo rm rule th at the reason fo r
the classification m ust inhere in the subject-m atter, and m ust be n at
u ral and substantial, and m ust be one suggested by necessity, by such
difference in the situation and circumstances o f the subjects as to
suggest the necessity or propriety o f different legislation w ith re
spect to them .
K e e p in g in m in d the purpose o f the act under consideration— the
protection o f the h ealth o f fem ales em ployed in restaurants by a
regulation o f the hours o f their em ploym ent— there is n oth ing appear
in g either upon the face o f the act, the pleadin gs, or in our own obser
vation ( i f we m ay take th at into consideration) rendering restaurants
operated by railroad com panies any m ore h ea lth fu l to fem ales there
in em ployed than in those conducted b y private individu als or other
com panies or corporations. I t is a m atter o f com m on and general
know ledge th at m ost o f the fem ale em ployees in restaurants are
waitresses, and the kind and character o f the labor p erform ed in
64919°— 18— Bull. 246------ S
114
DECISIONS OF COURTS AFFECTING LABOR.
each is the same. A waitress in a restaurant operated by a railroad
company is entitled to the same consideration in law and the same
safeguards to her health as one employed in a restaurant conducted
by a department store or a private individual.
At this point the opinion quotes from other opinions, and points
out that the fact that railroad restaurants are a convenience for the
traveling public and for railroad employees has no bearing on the
classification, which in order to be valid must be based on a differ
ence in the healthfulness of the employment. In the concluding
portion Judge Beard says further:
We are of the opinion that the statute in question arbitrarily and
without any substantial basis therefor discriminates between those
engaged in the same class of business; that it deprives restaurant
keepers, other than railroad companies, of the equal protection of the
law and imposes upon them and their employees burdens not imposed
upon railroad companies engaged in the same class of business and in
substantially the same situation; that it is class legislation and does
not operate uniformly upon all of the same class, and in so far as
it applies to the hours of labor in restaurants—that being the only
question before us—it is unconstitutional and void.1
H
ours
of
S ervice — R ailroads — C o m p u t a t io n
of
T w e n t y - four
United States v. Missouri Pacific Ry. Co., United
States Circuit Court o f Appeals, Eighth Circuit (June 15, 1917), 2 ^
Federal Reporter, page 38.— T h is action w as brought to recover pen
H
our
P eriod—
alties fo r violations o f the H o u r s o f Service A c t.
T h e railw a y com
pany objected to several counts o f the com plaint on the grou n d th at
the prosecution had adopted an erroneous m ethod o f com p uting the
24-h o u r period.
th ird count.
T h e dispute was illustrated by the facts in the
T h e em ployee C o u g h lin ’s regular hours were fro m
7 a. m . to 4 p. m ., so th at he was em ployed the nine hours w hich the
law fixes as the lim it.
On
Septem ber 6, 1914, he rem ained on duty
fr o m 7 a. m . u n til 1.30 p. m ., when he was definitely excused fro m
duty until 3 p. m ., at w hich hour he again went on duty and worked
until 5.10 p. m .
T h e next day he worked the regular hours.
By
startin g to com pute the 24-h ou r period at 3 p. m . on the fo rm er day,
the prosecuting officers calculated that the operator exceeded the legal
m a x im u m
by
1 hour
and
10 m inutes.
The
com pany
contended
that the com putation should be m ade fro m 7 a. m ., the tim e when in
regular course the m an entered upon his work.
Ju dge C arla n d , w ho
delivered the opin ion o f the m a jo rity , ruled that the m ethod adopted
b y the railroad com pany was the proper one, sayin g in p a r t :
In the Congressional Record for March 3, 1907, vol. 41, p. 4543,
it appears that while Senator Patterson was speaking on this same
statute he asked Senator Flint, who was acting as spokesman for the
iA n a m e n d m e n t o f 1 9 1 7 e x t e n d s t h e l a w t o f e m a le s e m p lo y e d in
c la s s e s , t liu s a v o id in g t h e f a u l t o f c la s s if ic a t io n p o in t e d o u t in t h i s
resta u ra n ts
case.
of
a ll
115
TEXT AND SUMMARIES OF DECISIONS.
conference committee having the bill in charge, the following ques
tions : “ Is the twenty-four hour period to be fixed arbitrarily by the
company? Is the twenty-four hour period a calendar day? Is the
twenty-four hour period to commence with each individual workman
as he enters upon the duties of his twenty-four hours of labor %”
Senator Flint answered the questions as follows: “ The last state
ment of the Senator is the correct statement.” We are of the opinion
that the trial judge did not err in his ruling upon this question.
H ours of S ervice — R ailroads — N ig h t a n d D a y O ffices — Illinois
Central R . Co. v. United States, United States Circuit Court of A p
peals, Eighth Circuit (Mar. 14, 1917), 241 Federal Reporter, page
667.—The company named was convicted of violations of the Hours
of Service Act by employing operators conveying train orders, in an
office continuously operated, for more than 9 hours out of the 24.
The defense was that the employees were not in an office operated
night and day,, and as they worked only 12 hours, there was no ex
cess. The cases related to three stations in Iow'a, but the facts were
similar in each case. The agent and operator worked at the station
from 7 a. m. to 7 p. m., when another operator took the train regis
ter and order book and carried them to a tower a few hundred feet
awTay, where he was engaged in dispatching from 7 p. m. to 7 a. in.,
then returning the books to the depot. The court held that the
two locations constituted but one office, and that the act had been
violated, affirming the judgment of the court below.
H ou rs
of
S e r v ic e — R a ilr o a d s — R e le a s e
b e tw e e n
Runs
of
R ound
Minneapolis & St. Louis R. Co. v. United States, United, States
Circuit Court of Appeals, Eighth Circuit (July 21, 1917), 24-5 Fed
eral Reporter, page 60.— T h e railroad com pany nam ed was con
T r ip —
victed in a district court on several counts fo r violation o f the H o u rs
o f Service
Act.
T h e facts in all ttfe cases were sim ilar, and in
v olved the em ploym en t o f crews o f fre ig h t trains on round trips,
the tim e elapsin g between the start and finish o f these trips being
fro m
17
to
18
hours.
At
the other end o f the line the crews were
absolutely released fo r fr o m 2 to 2\ hours, and i f th is tim e wTere
deducted, the total w ould be less than the
m itted.
16
hours o f service p er
T h e fa cilities fo r rest du rin g the period o f release were
not good.
T h e com pany h av in g w aived a ju ry tria l, the ju d ge o f
the trial court fo u n d th at the service was co n tin u ou s; and his ju d g
m ent o f conviction was affirmed, one o f the three ju dges dissenting.
T h e fo llo w in g is fro m the m a jo rity opinion delivered b y J u d g e G ar
land :
That an employee is absolutely relieved from service is not of con
trolling importance, if the time is so short or the opportunities for
116
DECISIONS OF COUBTS AFFECTING LABOR.
rest are so meager that for all practical purposes an employee does
not have the opportunity for rest which the ]aw requires.
We are of the opinion that the periods of release were periods of
waiting which gave no proper opportunity for rest. The service was
what is termed a “ turn-around” service. If the train crew can be
given an absolute dismissal for the time which elapses at any particu
lar terminal before the return trip is made, with only the oppor
tunity for rest which is shown by the evidence in this case, and such
time is held to break the consecutive hours of service, then the pur
pose of the law will be largely defeated, and the employees per
mitted to remain on duty for a ionger period than is lawful.
H
ours
of
S ervice — R ailroads — R eports
of
O ve r t im e —
H on est
United States v. Northern Pacific Railway C o S u p rem e
Court of the United States {Dec. h 1916), S7 Supreme Court Re
porter , page 22.— F iv e em ployees o f the com pany nam ed were called
M
at
is t a k e —
8.10
train.
o’clock p. m ., O ctober
29, 1911,
to take charge o f a w recking
B e fo re they reported it w as ascertained th at the train w ou ld
not be needed, but th ey were notified that they should report at
10.35.
D u r in g the interval they rendered no service except to keep alive the
fire in the engine.
T h e y then started on a fr e ig h t run, w hich w as
delayed by h ot boxes so that they did not arrive at the destination
u n til
1.15
If the tim e were reckoned fr o m 8.10 it
5 m inutes on du ty. T h e railroad com pany,
p. m . the next day.
w ou ld m ake
17 hours
and
in m a k in g its next report as required by section 20 o f the act to regu
late commerce, believin g that the tim e should be reckoned fro m
10.35,
om itted the nam es o f these m en fr o m am ong those w ho h ad exceeded
the lim it o f
16
hours.
In
another suit ju d gm en t h ad been rendered
fo r the G overnm ent fo r the forfeitu res fo r excessive services b y these
men, thus determ in in g th at the em ployees were on du ty fr o m
Th e G overnm ent then sued fo r a pen alty o f
to report the facts fo r
not reported fo r
30, 1911. In
289
5 days,
$500
8.10.
as fo r an om ission
although as a m atter o f fa c t they were
days a fter om ission in the report o f N ovem ber
affirming the ju d gm en t o f the circuit court o f appeals
in fa v o r o f the com pan y, the Suprem e C ourt assum ed th at the nam es
were om itted because it was in good fa ith believed th at the hours o f
service should be com puted fro m
10.35.
I t w as held th at it was not
the intent o f the law in such a case to exact the pen alty, M r . Justice
Clarke delivering the opinion and sayin g in p a r t :
The statute is a penal one and should be applied only to cases
coming plainly within its terms. While the reports filed must be
truthful reports, yet, since they must be made under oath, the pen
alties for perjury would seem to be the direct and sufficient sanction
relied upon by the law-making power to secure their correctness.
There are, to be sure, many statutes which punish violations of
their requirements regardless of the intent of the persons violating
TEXT AND SUMMARIES OF DECISIONS.
117
them; but innocent mistakes, made in reporting facts, where the cir
cumstances are such that candid-minded men may well differ in their
conclusions with respect to them, should not be punished by exacting
penalties, except where the express letter of the statute so requires;
and we conclude that the section under discussion contains no such
requirement.
The fact that the Government sues for only one-fifty-seventh part
of the forfeitures which had accrued under the construction of the
rule and statute contended for by it should make us slow to attribute
to Congress a purpose to enact what is thus admitted to be a punish
ment greatly disproportionate to the offense.
It being very clear that it is not the purpose of the law under
discussion to punish honest mistakes, made in a genuinely doubtful
case, the decision of the circuit court of appeals is affirmed.
H ours or S ervice — R ailroads — R est P eriods — Pennsylvania R .
Co. v. United States, United States Circuit Court of Appeals , Third
Circuit {Dec. 19, 1917) , 2^6 Federal Reporter , page 881.—-The com
pany named was convicted in a district court of violation of the
Hours of Service Act. The employees alleged to have been em
ployed for more than 16 hours out of 24 were engineers and firemen
on extra engines used to push freight trains over the mountain
grades of the company’s line. After pushing one train a certain
distance from the starting point, an engine awaited the arrival of a
train going in the opposite direction, which it assisted in the same
manner. Hostlers took charge of the engines in the interim, and
the crews wTere allowTed to take the time for rest, the company fur
nishing resthouses at some places, and lodging houses being avail
able at others. The men were subject to call at any time and "were
paid for the entire time. In one instance cited by the court as typi
cal there were two rest periods of 50 minutes each, spent in a resthouse, and the period of duty exclusive of these periods was 15 hours
and 10 minutes. In other cases there was no resthouse, but the men
went to lodgings near by and were off duty for two hours. The
court found that the nature of the work and the circumstances were
exceptional, and held that the rest periods should be deducted in
computing the working time. The judgment below was therefore
reversed. Judge Buffington, who delivered the opinion, also refers
to the importance of transportation during the War, and intimates
that some consideration should be given to the unusual conditions,
in cases where there, is no actual overstrain of the employees. He
also makes a suggestion that in view of the large number of prosecu
tions of‘ railroads in “ borderline ” cases, the authorization of an ad
ministrative officer representing the Interstate Commerce Commis
sion, to consult with the railroad officials and use his discretion in
advising them as to the boundaries of permissible practices, would
much simplify the problems presented in the enforcement of the law.
118
DECISIONS OF COURTS AFFECTING LABOR.
H o u r s o f S ervice — R ailroads — S w i t c h T enders — Chicago & A l
ton R . Co. v. United States, United States Circuit Court of Appeals,
Seventh Circuit (July 12, 1917 244 Federal Reporter, page 945 —
),
T h e U n ited
.
States brou gh t action against the railroad com pan y
nam ed fo r v iolation o f the H o u r s o f Service A c t b y the em ploym en t
o f switch tenders in its B lo o m in g to n -N o rm a l y ard , w hich is 7 f m iles
lon g, fo r 12 hours per day.
T h e com pany contended th at the 16-h our
lim it instead o f th at o f 9 hours applied to these em ployees.
Judg
m ent fo r the G overnm ent w as, how ever, affirmed in an opinion de
livered per curiam , w hich w as fo r the m ost p a rt as fo llo w s :
The train dispatchers and operators who direct the movement of
the trains elsewhere on the road outside of the yard limit have no
function within it. Therein the yardmaster has the general direction
of all train movements, his orders being communicated to and exe
cuted by his subordinates, the switch tenders, who are stationed at
various switch shanties within the yard, each switch tender having
special charge of certain switches in the immediate vicinity of his
particular shanty, and the service being continuous night and day.
The orders for the movement of the trains are transmitted by the
yardmaster from his central office by telephone to the various switch
shanties, where the switch tenders, at phones therein, receive them,
and execute them by transmitting them verbally or by signal to the
engine or train crews, and by manipulating the switches, so that
trains may take their proper tracks without coming in contact with
each other or with the various switch engines and cars being switched
and moved thereabout. Defendant had a rule requiring trains pass
ing through the yard to reduce speed and proceed only after the way
is seen or known to be clear. This use of the telephones by the
switch tenders in connection with the movement of the trains was
not occasional or exceptional, but was part of their general and usual
duties; each train movement so communicated to the crews, or par
ticipated in by the switch tender, being preceded by his reception of
a telephoned order directing it.
Our decision of August 6, 1915, in Chicago, Rock Island & Pacific
Ry. Co. v. United States, reported in 226 Fed. 27 [Bui. No. 189, p.
155], and followed by us in Chicago & Northwestern Ry. Co. v. United
States, 226 Fed. 30, is against the proposition, advanced for plain
tiff in error, that the 16-hour limit, and not the 9-hour limit, applies;
and upon the authority of those cases the judgment of the district
court must be and is affirmed.
H o u r s o f S e r v ic e — R a ilr o a d s ^ - T e le g r a p h O p e r a to r O c c a s io n
a l l y T r a n s m it t in g O r d e r s f o r I n t e r s t a t e T r a in s — Denver <&Interurban Ry. Co. v. United States, United States Circuit Court of A p
peals, Eighth Circuit (Oct. 11, 1916), 236 Fedetal Reporter, page
685.—Prosecution was commenced against the company named for
alleged violation of the Hours of Service Act by the employment
of its telegraph operator at Globeville, Colo., in a day and night office,
TEXT AND SUMMARIES OF DECISIONS.
119
for more than 9 hours, he having been employed from 3 o’clock p. m.,
July 4, 1914, to 1.07 a. m., July 5. The company contended that
it and the operator were not engaged in interstate commerce, at
any rate, not on the day mentioned. The company hauled interstate
freight over a part of its line, but such trains did not pass Globeville. The operator was controlled by the chief train dispatcher of
the Colorado & Southern Railway. Some of the trains of the Den
ver & Interurban Co. ran over the interstate highway of the Colorado
& Southern road, and occasional orders were transmitted through
the Globeville operator relating to the meeting and passing of the
Denver & Interurban trains and the interstate trains of the Colorado
& Southern Railway. The judgment of the court below, for the
Government, was affirmed, the court holding that the facts brought
the matter within the Hours of Service Act. Judge Trieber deliv
ered the opinion, in the course of which he said:
The fact that on that particular day this operator at Globeville
had received no orders relating to interstate trains is wholly im
material.
There was a joint traffic arrangement over this line and that of the
Colorado & Southern Railway Co., over certain parts of an interstate
highway, and all trains using that highway were under the control
of one person, the train dispatcher of the Colorado & Southern, ad
mittedly an interstate railway, from whom this operator received
his orders, which he was bound to transmit. The courts have been
very liberal in construing who are employees of a railroad engaged
in interstate transportation. [Cases cited.] And in our opinion
the defendant and its operator were clearly engaged in interstate
commerce.
H o u r s o f S e r v ic e — R a ilr o a d s — U n a v o id a b le D e l a y — Atchison ,
Topeka & Santa Fe Ry. Go. v. United States, Supreme Court of the
United States (June b, 1917), 37 Supreme Court Reporter , page
635.—The company named was convicted of a violation of the Hours
of Service Act in permitting the employment of a train crew for
more than the statutory limit on a run from Parker to Los Angeles,
Cal. A delay of over six hours was caused at one point by the break
ing of an axle, which was shown to have been an unavoidable acci
dent; but it appeared that the crew might have been relieved at San
Bernardino, which was a division terminal, though not the terminal
of the train crew. It was held that the company could not be ex
cused for not making, at that point, a change of crews, which would
have prevented the overtime work. The following brief extracts are
from the opinion delivered by Mr. Justice D ay:
The requirement of continued service after the train reached San
Bernardino was not occasioned by the unforeseen accident, but was
the direct consequence of the failure of the company to relieve the
120
DECISIONS OF COURTS AFFECTING LABOR.
e m p lo y e e s b y th e s u b s titu tio n o f a fr e s h c r e w , as th e r e c o r d s h o w s
c o u ld r e a d ily h a v e b e e n d o n e .
I f th e c o n s t r u c t io n c o n te n d e d f o r b y th e c o m p a n y b e a d o p te d , it
w o u ld f o l l o w t h a t th e e m p lo y e e s m ig h t b e k e p t in s e r v ic e f o r in d e fi
n ite p e r io d s , u n t il th e t e r m in a t io n o r e n d o f th e r u n s h o u ld b e
r e a c h e d , w h ic h i t is n o t d iffic u lt t o s u p p o s e m ig h t r e q u ir e m a n y h o u r s
o f s e r v ic e b e y o n d th e lim it a t io n s p r e s c r ib e d in th e b o d y o f th e a ct.
T h is c o n s t r u c t io n w o u ld d e fe a t th e p u r p o s e o f th e a c t b y p e r m it t in g
th e e m p lo y e e s t o e n d a n g e r th e m s e lv e s a n d th e p u b lic b y th e c o n
t in u e d s e r v ic e o f t ir e d a n d e x h a u s te d m e n . W e r e a c h th e c o n c lu s io n
th a t in k e e p in g th e c r e w in s e r v ic e b e y o n d S a n B e r n a r d in o th e c o m
p a n y w a s g u ilt y o f a v io la t io n o f th e sta tu te.
I n s u r a n c e — S u n s tr o k e as A c c id e n t — H iggins v. Midland Casualt/y Co ., Supreme Court o f Illinois (Dec. 19, 1918), 118 Northeast
ern Reporter, page 11.— C larence E . H ig g in s was a traffic policem an
in the city o f R o ck fo rd ,
111. O n
June
4, 1913,
a very w arm day, he
h ad been stan din g at the intersection o f M a in and State streets fo r
some tim e, w hen, at
pelled to go hom e.
4 .3 0 p. m ., he suffered a sunstroke and was com
A s a result o f this stroke he suffered a com plete
ph ysical and m ental breakdow n.
T h e com pany nam ed h ad issued
to him , about a year earlier, a po licy o f insurance, in d e m n ify in g him
“ against b od ily in ju ry (herein called such in ju r y ) , sustained solely
th rou gh accidental m eans.”
A clause entitled “ Special In dem n ities,
D , ” was included in the p o licy , and read as fo llo w s :
“ B l o o d p o is o n in g , s u n s tro k e , fr e e z in g , h y d r o p h o b ia , a s p h y x ia
t io n , u n p r o v o k e d a ssa u lts, a n d c h o k in g b y s w a llo w in g , as th e r e s u lt
o f su ch in ju r y , s h a ll b e d e e m e d t o b e in c lu d e d in s a id te r m 6 s u ch
in ju r y .’ ”
G r a c e H ig g in s , as h is c o n s e r v a to r , b r o u g h t su it o n th e p o lic y , a n d
a n a p p e lla t e c o u r t a ffirm ed a ju d g m e n t f o r th e c o m p a n y , s u s ta in in g
a c o n t e n t io n o f th e c o m p a n y t h a t as th e in ju r y w a s r e c e iv e d w h ile
th e in s u r e d w a s d o in g ju s t w h a t h e in t e n d e d t o d o a n d in th e w a y th a t
h e in te n d e d , it c o u ld n o t b e c la s s e d as a c c id e n ta l. T h e ca se is s a id
t o b e th e firs t c o m in g b e f o r e th is su p r e m e c o u r t r a is in g th e q u e s
t io n w h e th e r s u n s tro k e m ig h t b e th e r e s u lt o f “ a c c id e n t a l m e a n s .”
U n d e r th e c ir c u m s ta n c e s in v o lv e d in th is ca se it w a s h e ld t o b e s u ch
w it h in th e te r m s o f th e p o lic y , a n d th e ju d g m e n t w a s r e v e rs e d ,
J u d g e C a r te r , f o r th e c o u r t , e x a m in in g n u m e ro u s d e c is io n s a n d
s a y in g :
D id H ig g in s , in th is ca se, h a v e a n y r e a s o n t o a ssu m e t h a t th e
n a t u r a l a n d p r o b a b le c o n s e q u e n ce o f h is a cts a lo n g th e lin e o f h is
d u tie s in c o n t r o llin g th e tra ffic a t th e stre e t in t e r s e c t io n w o u ld b e a
su n s tro k e ? P l a i n l y n o t. T h e b r ie fs s h o w t h a t th e p la c e w h e r e th is
s u n s tro k e o c c u r r e d is a b u s y stre e t in te r s e c tio n , a n d w e h a v e a r ig h t
t o a ssu m e f r o m th e e v id e n c e th a t m a n y o th e r p e o p le w e r e p a s s in g
Section
TEXT AND SUMMARIES OF DECISIONS.
121
back and fo rth in the line o f their regular duties across th is street
intersection on th at d ay, and th at no other people so passin g back and
fo r th were stricken because o f the heat. I t w ould seem to require no
argum ent, therefore, to conclude th at fr o m H ig g in s ’ duties at the in
tersection in question, alth ough they were intentional and v olu n tary,
a sunstroke w ould not be considered the n atural and probable conse
quence o f his course o f action.
I n t e r f e r e n c e w i t h O c c u p a tio n — P u b lic I n t e r e s t — M u n ic ip a l
F u e l Y a r d s — Jones v . City o f Portland , Supreme Court o f the
United States (D ec. 10 , 1917), 38 Supreme Court R eporter , page
112.— T h e le g is la t u r e o f th e S ta te o f M a in e p a s s e d in 1903 a la w ,
in c o r p o r a t e d in th e R e v is e d S ta tu te s o f 1903 as s e c tio n 87 o f c h a p t e r
4, a n d r e a d in g as f o l l o w s :
A n y c it y o r t o w n m a y e s ta b lis h a n d m a in ta in , w it h in its lim its , a
p e r m a n e n t w o o d , c o a l, a n d fu e l y a r d , f o r th e p u r p o s e o f s e llin g , a t
c o s t, w o o d , c o a l, a n d fu e l t o its in h a b ita n ts . T h e te r m 64 a t c o s t ,” as
u se d h e r e in , s h a ll b e c o n s tr u e d as m e a n in g w it h o u t fin a n c ia l p r o fit .
T h e a u th o r itie s o f th e c it y o f P o r t la n d , in F e b r u a r y , 19 13, d u ly
p a s s e d a v o t e t o e s ta b lis h su ch a y a r d , th e v o t e f o l l o w i n g th e
la n g u a g e o f th e sta tu te in a ll re sp e cts. I t w a s p r o v id e d th a t th e
m o n e y n e ce s s a r y f o r th e p u r p o s e s h o u ld b e r a is e d b y ta x a tio n , a n d
$1,000 w a s a p p r o p r ia t e d . C itiz e n s a n d t a x p a y e r s o f th e c it y th e n
b r o u g h t s u it t o e n jo in th e e s ta b lis h m e n t o f th e y a r d . T h e s u p r e m e
c o u r t h a v in g d e c id e d in f a v o r o f th e c it y , s u s ta in in g a d e m u r r e r to
th e b ill, th e ca se w a s c a r r ie d to th e F e d e r a l S u p r e m e C o u r t o n th e
g r o u n d th a t th e sta tu te v io la t e d th e fo u r t e e n t h a m e n d m e n t to th e
C o n s t it u t io n ; it w a s c o n t e n d e d th a t th e e s ta b lis h m e n t o f m u n ic ip a l
fu e l y a r d s is n o t a p u b lic p u r p o s e , a n d t h a t t h e r e fo r e t a x a tio n t o
m a in ta in o n e w o u ld b e a t a k in g o f p r o p e r t y w it h o u t d u e p r o c e s s o f
la w . M r . J u s t ic e C la r k e d e liv e r e d th e o p in io n o f th e S u p r e m e C o u r t ,
a n d , a ft e r s t a t in g th e fa c t s o f th e ca se, s a i d :
T h e d e c is io n o f th e ca se tu r n s u p o n th e a n s w e r t o th e q u e s tio n
wrh e th e r th e t a x a t io n is f o r a p u b lic p u r p o s e . I t is w e ll s e ttle d th a t
m o n e y s f o r o th e r th a n p u b lic p u r p o s e s c a n n o t b e r a is e d b y ta x a tio n ,
a n d th a t e x e r tio n o f th e t a x in g p o w e r f o r m e r e ly p r iv a t e p u r p o s e s is
b e y o n d th e a u t h o r it y o f th e S ta te . C it iz e n s ’ S a v in g s & L o a n A s s o c ia
t io n v. T o p e k a , 20 W a ll. 655.
T h e a c t in q u e s tio n h a s th e s a n c tio n o f th e le g is la t iv e b r a n c h o f
th e S ta te G o v e r n m e n t , th e b o d y p r im a r ily in v e s te d w it h a u t h o r it y t o
d e te r m in e w h a t la w s a re r e q u ir e d in th e p u b lic in te re s t. T h a t th e
p u r p o s e is a p u b lic o n e h a s b e e n d e te r m in e d u p o n f u ll c o n s id e r a t io n
b y th e S u p r e m e J u d ic ia l C o u r t o f th e S ta te u p o n th e a u t h o r it y o f a
p r e v io u s d e c is io n o f t h a t c o u r t. L a u g h lin v. C it y o f P o r t la n d , 111
M e . 48 6, 90 A t l. 318.^
T h e a ttitu d e o f th is c o u r t t o w a r d S ta te le g is la t io n p u r p o r t in g t o
be p a s s e d in th e p u b lic in te re s t, a n d so d e c la r e d t o b e b y th e d e c is io n
122
DECISIONS OF COURTS AFFECTING LABOR.
o f th e c o u r t o f la s t r e s o r t o f th e S ta te in p a s s in g th e a ct, h a s o ft e n
b e e n d e c la r e d . I n U n io n L im e C o . v. C h ic a g o & N . W . R y . C o ., 283
U . S . 2 11, 3 4 S u p . C t. 522, th is c o u r t d e c la r e d th a t a d e c is io n o f th e
h ig h e s t c o u r t o f th e S ta te d e c la r in g a u se t o b e p u b lic in its n a tu r e
w o u ld b e a c c e p t e d u n le ss c le a r ly n o t w e ll fo u n d e d . [C a s e s c it e d .]
I n th e ca se o f L a u g h lin v. C it y o f P o r t la n d , s u p r a , th e m a tte r w a s
f u ll y c o n s id e r e d b y th e S u p r e m e J u d ic ia l C o u r t o f t h a t S ta te .
A f t e r r e v ie w in g th e ca ses w h ic h e s ta b lis h th e g e n e r a l a u t h o r it y o f
m u n ic ip a lit ie s in th e in te re s t o f th e p u b lic h e a lth , c o n v e n ie n c e , a n d
w e lfa r e t o m a k e p r o v is io n s f o r s u p p ly in g th e in h a b ita n ts o f su ch
c o m m u n it y w it h w a te r , lig h t , a n d h e a t b y m e a n s a d e q u a te f o r th a t
p u r p o s e , th e c o u r t c a m e t o c o n s id e r th e d is t in c t io n s o u g h t to b e
m a d e b e tw e e n th e ca se s w h ic h su s ta in th e a u t h o r it y o f th e S ta te t o
a u th o r iz e m u n ic ip a l a c t io n f o r th e p u r p o s e s sta te d , a n d th e o n e u n d e r
c o n s id e r a t io n , b e c a u s e o f th e fa c t th a t in th e in s ta n c e s in w h ic h
m u n ic ip a l a u t h o r it y h a d b ee n s u s ta in e d th e u se o f th e p u b lic streets
a n d h ig h w a y s f o r m a in s , p o le s , a n d w ir e s in th e d is t r ib u t io n o f
w a te r , lig h t , a n d h e a t h a d b e e n r e q u ir e d u n d e r p u b lic a u t h o r it y ,
w h e re a s in s u p p ly in g fu e l t o c o n s u m e rs , u n d e r th e te r m s o f th e la w
in q u e s tio n , n o su ch p e r m is s io n w a s e ss e n tia l, th e c o u r t -s a y in g :
“ L e t u s lo o k a t th e q u e s tio n f r o m a p r a c t ic a l a n d c o n c r e te s t a n d
p o in t . C a n it m a k e a n y r e a l a n d v it a l d iffe r e n c e a n d c o n v e r t a p u b lic
in t o a p r iv a t e u se i f , in s te a d o f b u r n in g th e fu e l a t th e p o w e r s ta tio n to
p r o d u c e th e e le c t r ic it y , o r a t th e c e n tr a l h e a t in g p la n t t o p r o d u c e th e
h ea t a n d th e n c o n d u c t in g it in th e o n e ca se b y w ir e s a n d in th e o th e r
b y p ip e s t o th e u s e r ’s h o m e , th e c o a l it s e lf is h a u le d o v e r th e sa m e
h ig h w a y t o th e sa m e p o in t o f d is t r ib u t io n ? W e f a i l t o see it. I t is
o n ly a d iffe r e n t a n d s im p le r m o d e o f d is t r ib u t io n a n d , i f th e le g is la
tu r e h a s th e p o w e r to a u th o r iz e m u n ic ip a lit ie s t o fu r n is h h e a t t o its
in h a b ita n ts 4 it c a n d o th is b y a n y a p p r o p r ia t e m e a n s w h ic h it m a y
t h in k e x p e d ie n t .’ T h e v it a l a n d e ss e n tia l e le m e n t is th e c h a r a c te r
o f th e s e r v ic e r e n d e r e d a n d n o t th e m e a n s b y w h ic h it is r e n d e r e d .
I t seem s illo g ic a l t o h o ld th a t a m u n ic ip a lit y m a y r e lie v e its c itiz e n s
fr o m ' th e r ig o r o f c o ld i f it c a n r e a c h th e m b y p ip e s o r w ir e s p la c e d
u n d e r o r a b o v e th e h ig h w a y s b u t n o t i f it c a n r e a ch th e m b y te a m s
t r a v e lin g a lo n g th e id e n t ic a lly sa m e h ig h w a y . I t w ill b e s o m e t h in g
o f a ta sk t o c o n v in c e th e o r d in a r ily in t e llig e n t c it iz e n t h a t a n a c t o f
th e le g is la tu r e a u t h o r iz in g th e fo r m e r is c o n s t it u t io n a l, b u t o n e
a u t h o r iz in g th e la t t e r is u n c o n s t itu t io n a l b e y o n d a ll r a t io n a l d o u b t.
F o r w e m u s t r e m e m b e r th a t w e a re c o n s id e r in g th e e x is te n c e o f th e
p o w e r in th e le g is la t u r e w h ic h is th e o n ly q u e s tio n b e f o r e th e c o u r t,
a n d n o t th e w is d o m o f its e x e r c is e w h ic h is f o r th e le g is la t u r e a lo n e .”
B e a r in g in m in d t h a t it is n o t th e fu n c t io n o f th is c o u r t u n d e r th e
a u t h o r it y o f th e fo u r t e e n t h a m e n d m e n t t o s u p e r v is e th e le g is la t io n
o f th e S ta te s in th e e x e r c is e o f th e p o lic e p ow Ter b e y o n d p r o t e c t in g
a g a in s t e x e r tio n s o f su ch a u t h o r it y in th e e n a c tm e n t a n d e n fo r c e m e n t
o f la w s o f a n a r b it r a r y c h a r a c te r , h a v in g n o r e a s o n a b le r e la tio n t o th e
e x e c u t io n o f l a w fu l p u r p o s e s , w e a re u n a b le t o s a y t h a t th e sta tu te
n o w u n d e r c o n s id e r a t io n v io la t e s r ig h t s o f th e t a x p a y e r b y t a k in g
h is p r o p e r t y f o r u ses w h ic h a re p r iv a te .
T h e a u t h o r it y t o fu r n is h lig h t a n d w a te r b y m e a n s o f m u n ic ip a lly
o w n e d p la n t s h a s l o n g b e e n s a n c tio n e d as th e a c c o m p lis h m e n t o f a
p u b lic p u r p o s e j u s t if y i n g t a x a t io n w it h a v ie w t o m a k in g p r o v is io n
TEXT AND SUMMARIES OF DECISIONS.
123
f o r t h e ir e s ta b lis h m e n t a n d o p e r a t io n . T h e r ig h t o f a m u n ic ip a lit y
t o p r o m o t e th e h e a lth , c o m fo r t , a n d c o n v e n ie n c e o f its in h a b ita n ts
b y th e e s ta b lis h m e n t o f a p la n t f o r th e d is t r ib u t io n o f n a tu r a l g a s
f o r h e a t in g p u r p o s e s w a s s u sta in e d , a n d w e t h in k p r o p e r ly so, in
S ta te o f O h io v. T o le d o , 48 O h io S t. 112, 2 6 N . E . 1061. W e see n o
r e a s o n w h y th e S ta te m a y n o t , i f it sees fit t o d o so, a u th o r iz e a
m u n ic ip a lit y t o fu r n is h h e a t b y su ch m e a n s as a re n e ce sw iry a n d su ch
sy ste m s as a re p r o p e r f o r its d is tr ib u tio n . H e a t is as in d is p e n s a b le
t o th e h e a lth a n d c o m fo r t o f th e p e o p le as is lig h t o r w a te r. I n a n y
e v e n t w e a re n o t p r e p a r e d t o sa y th a t w h e n a S ta te a u th o riz e s a
m u n ic ip a lit y t o t a x w it h a v ie w t o p r o v id in g h e a t a t c o s t t o th e i n
h a b ita n ts o f th e c it y , a n d th a t p u r p o s e is d e c la r e d b y th e h ig h e s t
c o u r t o f th e S ta te t o b e a p u b lic o n e , th a t th e p r o p e r t y o f a c itiz e n
w h o is ta x e d t o e ffe c t su ch p u r p o s e is ta k e n in v io la t io n o f r ig h t s
se c u re d b y th e C o n s t it u t io n o f th e U n it e d S ta te s. A s th is v ie w d e
c id e s th e q u e stio n s o p e n t o c o n s id e r a t io n , it f o llo w s th a t th e j u d g
m e n t o f th e S u p r e m e J u d ic ia l C o u r t o f M a in e m u st b e a ffirm ed .
L a b o r O r g a n iz a tio n s — B o y c o t t — A d v e r tis in g
T h e a t e r as U n
Em pire Theater Co . v. Cloke
et al., Supreme Court o f Montana (Jan. 25, 1917), 163 Pacific R e
porter, page 107.— T h e theater com pany nam ed sought an inju n ction
f a i r — C o n sp ira c y — I n j u n c t i o n —
against the M u sician s’ M u tu al U n io n and the S ilver B ow T ra d es
C ouncil, their m em bers, and certain nam ed persons, to prevent picket
in g the theater and pu blish ing it as u n fa ir to organized labor, and
carryin g on a boycott against the theater.
T h e dispute between the
unions and the com pany was brough t about by the refusal o f the
com pany to com ply w ith a dem and o f the m usicians’ union that five
o f its m em bers be em ployed, at a stated rate, at every exhibition o f
m o v in g pictures.
T h e district court o f S ilv er B ow C ou n ty dism issed
the petitio n , relyin g upon previous decisions o f the supreme court
o f the State, w hich are discussed in the fo llo w in g portion o f the
opinion delivered by Ju dge Sanner, affirming the ju d gm en t o f the
court b elo w :
T h e d e n ia l o f a n y r e lie f w a s e x p r e s s ly b a s e d u p o n th e p r io r d e
c is io n s o f t h is c o u r t in L in d s a y & C o . v. M o n t a n a F e d e r a t io n o f
L a b o r , e tc., 37 M o n t. 264, 96 P a c . 127 [B u i. N o . 78, p . 6 0 4 ], a n d I v e r
s o n v . D iln o , 44 M o n t. 2 7 0 ,1 1 9 P a c . 719 [B u i. N o . 99, p. 7 3 0 ], a n d th e
p la in t iff, c o n t e n d in g th a t th e s e c o n d p a r t o f th e L in d s a y o p in io n is
o b it e r , in s is ts th a t so m u c h o f b o t h d e c is io n s as are r e a lly e ffe c tiv e , as
w e ll as th e la te r ca se o f P e e k v. N o r t h e r n P a c ific R y . C o ., 51 M o n t.
295, 152 P a c . 421 [B u i. N o . 189, p . 2 9 4 ], c o m m a n d , u p o n th e fa c t s
fo u n d , a r e s u lt e x a c t ly o p p o s ite .
T h e c o u r t r e fu s e d t o a c c e p t th is v ie w , h o w e v e r , s a y in g :
T h e p o r t io n o f th e L in d s a y o p in io n a sse rte d t o b e o b it e r h o ld s
th a t in ju n c t io n d o e s n o t lie t o r e s tr a in th e p u b lic a t io n o f a c ir c u la r
d e n o u n c in g a n e n te r p r is e as u n fa ir t o o r g a n iz e d la b o r , w h e th e r su ch
124
DECISIONS OE COURTS AFFECTING LABOR.
p u b lic a t io n e m a n a te f r o m o n e o r fr o m m a n y p e r s o n s , a c o n c lu s io n
w h ic h is a ssa ile d as a lt o g e t h e r w ro n 'g . C o n s id e r in g h o w th a t ca se
w a s p r e s e n te d , w e c a n n o t r e g a r d th e p a r t r e fe r r e d t o as o b ite r .
A s to th e m a tte r o f c o n s t it u t io n a l lib e r t y o f s p e e c h a n d p u b lic a
tio n , a n d th e o p e r a t io n o f th e b o y c o t t , J u d g e S a n n e r s a id :
C o u n se l u r g e , how 7e v e r , th a t th e c o n c lu s io n is u n s o u n d b e c a u se th e
c o n s t it u t io n a l p r o v is io n p o s t u la t e d as th e b a s is o f it (S t a t e C o n s t,
a rt. 3, sec. 1 0 ) is a d d r e s s e d t o th e le g is la t u r e a n d n o t t o th e c o u r ts ,
b e ca u se it in s o m e w a y in t e r fe r e s wTith th e p o w e r o f c o u r ts o f e q u ity
in cases o f n u is a n ce , a n d b e ca u se it is c o n t r a r y to th e sta n d r e p e a t e d ly
ta k e n b y th e S u p r e m e a n d o t h e r c o u r ts o f th e U n it e d S ta te s. T h e
a n sw e r is n o t d ifficu lt. T h i s c o u r t fo u n d e d its d e c is io n u p o n th e
la n g u a g e o f th e p r o v is io n a b o v e c ite d , w h ic h n o t o n ly f o r b id s th e
p a s s a g e o f a n y la w im p a ir in g th e fr e e d o m o f s p e e c h , as d o e s th e
N a t io n a l C o n s t it u t io n , b u t w h ic h a lso p r o c la im s , as th e N a t io n a l C o n
s t it u t io n d o e s n o t, th a t “ e v e r y p e r s o n s h a ll b e fr e e t o sp e a k , w r it e
o r p u b lis h w h a te v e r h e wTill o n a n y s u b je c t, b e in g r e s p o n s ib le f o r a ll
a b u se o f th a t lib e r t y .” W e t h o u g h t , as w e s till t h in k , t h a t th is s e c o n d
c la u se o f o u r p r o v is io n c o n v e y s th e id e a o f lib e r t y , u n c h e c k e d as t o
w h a t m a y b e p u b lis h e d , b y a n y t h in g sa v e p e n a lt y , a n d is t h e r e fo r e
so m a te r ia l a d e p a r t u r e fr o m th e m e a n in g g iv e n t o th e n a t io n a l p r o
v is io n th a t th e F e d e r a l ca ses h a v e lit t le , i f a n y , s ig n ific a n c e ; a n d w e
w e r e , as w e s t ill a re , u n a b le t o c o n c e iv e h o w a n y o n e ca n p osse ss th e
r ig h t to p u b lis h w h a t h e p le a se s, s u b je c t o n ly t o p e n a lt y f o r a b u se,
a n d at th e sa m e tim e b e p r e v e n t e d b y a n y c o u r t fr o m d o in g so. I t
is t o b e r e m e m b e r e d , h o w e v e r , th a t th is c o u r t w a s d e a lin g in th e
L in d s a y ca se w it h th e r ig h t t o p u b lis h at la r g e , n o t w it h th e p r o
p r ie t y o f e n jo in in g a cts w h ic h , t h o u g h t h e y b e in a id o f th e r ig h t t o
p u b lis h , a re b r o u g h t , o r s o u g h t t o b e b r o u g h t , w it h in th e c a t e g o r y
o f n u isa n ce s. T h a t s u b je c t w a s c o n s id e r e d s o m e w h a t in th e D iln o
ca se a n d w ill b e r e fe r r e d t o la te r in th is o p in io n .
S o p r e m is in g , w e c o m e t o th e r e s u lt c o m m o n in b o t h th e L in d s a y
a n d th e D iln o ca ses, w h ic h is t o d e c la r e t h a t la b o r u n io n s a re n o t
u n la w fu l in th is S t a t e ; th a t su ch u n io n s m a y p u b lis h a n d p u r s u e a
p e a c e fu l b o y c o t t a g a in s t a n y p e r s o n o r e n te r p r is e d e e m e d b y th e m
t o b e u n fr ie n d ly , a n d t h a t a c o m b in a tio n o f su ch u n io n s o r t h e ir
m e m b e r s f o r su ch p u r p o s e s c a n n o t b e v ie w e d as a c o n s p ir a c y .
E v e r y p e r s o n h a s th e r ig h t , s in g ly a n d in c o m b in a tio n w it h o th e r s ,
t o d e a l o r r e fu s e to d e a l w it h wTh o m h e c h o o s e s ; t o r e a c h h is d e c is io n
i n th a t, as in a ll o th e r m a tte r s , u p o n o r w it h o u t g o o d r e a s o n : to
r e g a r d as u n fr ie n d ly a ll th o s e w h o , w it h o r w it h o u t ju s t ific a t io n ,
r e fu s e t o c o o p e r a t e o r s y m p a th iz e . T h e s e r ig h t s d o n o t d e p e n d u p o n
th e c h a r a c te r , n u m b e rs , o r in flu e n ce o f th o s e w h o see k t o e x e r c is e
t h e m ; n o r u p o n th e o c c a s io n f o r t h e ir e x e r c is e ; n o r u p o n th e c o n s e
q u e n ce s w h ic h m a y f o l l o w fr o m t h e ir le g it im a t e u se. T h e y h a v e
b e e n r e c o g n iz e d b y th is c o u r t as e x is t in g in a n in c o r p o r a t e d r a il
w a y b e n e fit s o c ie t y (P e e k v. N o r t h e r n P a c . E y . C o ., s u p r a ), a n d it
m a y b e s a id in p a s s in g th a t t h e y lik e w is e b e lo n g t o m e r c h a n t s ’ a sso
c ia t io n s , t o c o n s u m e rs in te r e s te d in th e c o s t o f liv in g , a n d , in s o m e
m e a su re , t o a ll o th e r p e r s o n s o r g r o u p s o f p e r s o n s b y w h o m a b o y c o t t
m a y b e c o n c e iv e d a n d p r a c t ic e d . T h e d e fe n d a n t s h a d th e se r ig h t s ,
TEXT AND SUMMARIES OF DECISIONS.
125
a n d , h a v in g th e m , c o u ld l a w fu lly a n n o u n c e t h e ir in t e n t io n t o a ssert
th e m . T h e p la in t iff, o n th e o th e r h a n d , h a s n o v e s te d r ig h t in th e
p a t r o n a g e o f th e d e fe n d a n ts , o r o f a n y o n e else w h o m a y c h o o s e t o
w it h h o ld i t ; a n d , n o m o r e th a n th e p la in t iff, h a v e th e p e r s o n s wTh o
m a y c h o o s e t o p a t r o n iz e it a n y v e s te d r ig h t t o su ch p a t r o n a g e . S u c h
p e r s o n s m a y ta k e su ch p a t r o n a g e o n th e te r m s im p o s e d , o r n o t, as
th e y see fit, ju s t as th e d e fe n d a n ts a n d t h e ir fr ie n d s m a y , i f t h e y see
fit, c h o o s e t o r e g a r d a r e je c t io n o f th ese te r m s as a r e je c t io n o f t h e ir
p a t r o n a g e . I n s h o r t, th e “ th re a t ” c o n v e y e d w a s t o d o w h a t th e
d e fe n d a n t s l a w fu lly c o u ld d o — a m e re w a r n in g o f th e ir in t e n t io n
w h ic h th e y c o u ld l a w fu lly g iv e . A c o m b in a tio n t o d o a l a w fu l t h in g
b y la w fu l m e a n s is n o c o n s p ir a c y .
C o u n s e l f o r p la in t iff p o in t t o
th e o c c a s io n f o r th is b o y c o t t , a n d e lo q u e n tly d e n o u n c e th e e ffr o n t e r y
o f la b o r u n io n s in d ic t a t in g to th o se w h o a re n o t h e ld to th e m b y a n y
tie s as o ffe n s iv e a n d as d a n g e r o u s to o u r m o s t p r e c io u s h e r it a g e ,
p e r s o n a l lib e r t y . O ffe n s iv e su ch d ic t a t io n m u st c e r t a in ly b e, b u t n o t
m o r e o ffe n s iv e n o r m o r e d a n g e r o u s , w e th in k , th a n w h e n th e lik e
is p u t fo r w a r d b y a g e n c ie s o f q u ite a d iffe r e n t c h a r a c te r . A t t e m p t e d
d ic t a t io n , m o r e o r less d is g u is e d , is e v e r p r e s e n t ; b u t it is n o t , in c o n
t e m p la t io n o f th e la w , an in v a s io n o f lib e r t y so lo n g as it a m o u n ts t o
n o t h in g m o r e th a n a d e m a n d w h ic h o n e p a r t y h a s a le g a l r ig h t t o
m a k e , u p o n th e a lte r n a tiv e o f its d is p le a s u re , a n d th e o th e r th e le g a l
r ig h t t o r e fu s e , b r a v in g th a t d is p le a s u re . W e see n o t h in g in th e
P e e k ca se to in t e r fe r e w it h th e c o n c lu s io n s a n n o u n c e d in th e L in d s a y
a n d D iln o ca ses, b u t m u c h t o c o n fir m th e m , a n d w e a re sa tisfie d t h a t
th e se ca ses c o r r e c t ly a p p ly th e la w t o p r e s e n t-d a y c o n d it io n s . I t
fo llo w s th a t th e ju d g m e n t m u st b e u p h e ld so fa r as th e b o y c o t t a n d
its p u b lic a t io n a t la r g e a re c o n c e r n e d .
A s t o th e c o m p la in t th a t th e p ic k e t in g , etc., c o n s titu te d a n u is a n ce ,
it w a s h e ld th a t th e e v id e n c e d id n o t b e a r o u t th is c o n te n tio n , as th e r e
w a s n o p r o o f o f in t im id a t io n o r v io le n c e . T h e ju d g m e n t o f th e c o u r t
b e lo w , d is m is s in g th e p e t it io n f o r an in ju n c t io n , w a s a ffirm ed .
L a b o r O r g a n iz a t io n s — B o y c o t t — A d v e r t is in g T h e a t e r a s U n
f a i r — I n j u n c t i o n — Steffes v . M otion Picture Machine Operators *
Union et al., Supreme Court o f Minnesota (Feb. 28,1917), 161 N orth western R eporter, page 524.— A lb e r t S te ffe s, w h o c a r r ie s o n a m o tio n
p ic t u r e th e a te r in M in n e a p o lis , p e t it io n e d f o r a n in ju n c t io n a g a in s t
th e u n io n n a m e d t o r e s tr a in in t e r fe r e n c e w it h h is b u sin e ss, c o n s is t in g
in p a r t o f th e h ir in g o f a m a n t o c a r r y b a c k a n d fo r t h in fr o n t o f
th e th e a te r a b a n n e r w it h th e w o r d s , “ T h is th e a te r is u n fa ir t o o r
g a n iz e d la b o r .” T h e d is p u te b e tw e e n h im a n d th e u n io n w a s b r o u g h t
a b o u t b y h is e m p lo y m e n t o f a m a c h in e o p e r a t o r w h o w a s n o t a u n io n
m a n . A s th e d e c is io n in th e d is t r ic t c o u r t o f H e n n e p in C o u n t y h a d
d e n ie d th e in ju n c t io n , J u d g e H a lla m , w h o d e liv e r e d th e o p in io n f o r
th e su p r e m e c o u r t, r e m a r k e d th a t th e t r u t h o f fa c t s w h ic h w e r e in
126
DECISIONS OF COURTS AFFECTING LABOR.
d is p u t e m u st b e ta k e n
c e r t a in a cts c h a r g e d t o
b e h e ld n o t p r o v e n . I n
d e n y in g th e in ju n c t io n
t o b e fa v o r a b le t o th e d e fe n d a n t s , a n d th a t
th e m , w h ic h w e r e d is t in c t ly u n la w fu l, w o u ld
e x p r e s s in g th e c o u r t ’s d e c is io n t h a t th e o r d e r
s h o u ld b e a ffirm ed , h e s a id fu r t h e r :
T h e te r m “ u n fa ir ” as u sed b y o r g a n iz e d la b o r h a s c o m e t o h a v e a
m e a n in g w e ll u n d e r s to o d . I t m e a n s th a t th e p e r s o n so d e s ig n a t e d is
u n fr ie n d ly t o o r g a n iz e d la b o r o r th a t h e r e fu s e s t o r e c o g n iz e its ru le s
a n d r e g u la tio n s . I t c h a r g e s n o m o r a l s h o r t c o m in g a n d n o w a n t o f
b u sin e ss c a p a c it y o r in t e g r it y . A s a p p lie d t o a th e a te r it s ig n ifie s
n o t h in g as t o th e m e r its o f its p e r fo r m a n c e s . A s a r u le o n e m a n h a s
n o r ig h t t o in t e r fe r e in th e b u sin e ss a ffa ir s o f a n o th e r , b u t i f h is
a c t in so d o in g is in p u r s u it o f a ju s t p u r p o s e t o fu r t h e r h is o w n in
te re sts h e m a y b e ju s tifie d in so d o in g , a n d so l o n g as h e d o e s n o t a c t
m a lic io u s ly a n d d o e s n o t u n r e a s o n a b ly o r u n n e c e s s a r ily in t e r fe r e
w it h th e r ig h t s o f h is n e ig h b o r h e c a n n o t b e c h a r g e d w it h a c t io n a b le
w r o n g . G r a n t v. S t. P a u l B u ild in g T r a d e s C o u n c il, 161 N . W . 520.
[S e e p . 1 3 1 .]
I n G r a y v. B u ild in g T r a d e s C o u n c il, 91 M in n . 171, 97 N . W . 663
[B u i. N o . 53, p . 9 5 5 ], it w a s s a id th a t w h e th e r a p u b lic a t io n th a t a n
e m p lo y e r o f la b o r is “ u n fa ir ” is o r is n o t u n la w fu l d e p e n d s o n th e
c ir c u m s ta n c e s o f e a ch ca se, th a t a n o t ific a t io n t o c u s to m e r s th a t p la in
tiff's a re “ u n fa ir ” m a y p o r t e n d a th r e a t o r in t im id a t io n , in w h ic h
ca se it w ill c o n s titu te a b o y c o t t a n d is u n la w fu l, b u t th a t a m e re n o t i
fic a t io n o f th a t s o r t w it h o u t m o r e is n o t a th r e a t, is n o t u n la w fu l,
a n d th a t th e t r ia l c o u r t w a s in e r r o r in th a t ca se in e n jo in in g su ch
con d u ct.
T h e d e c is io n in th e G r a y ca se is c o n t r o llin g a n d in a c c o r d a n c e
w it h it w e h o ld th a t th e c o u r t d id n o t e r r in r e fu s in g t o e n jo in th e u se
o f th e b a n n e r u se d in th is ca se u n less its u se u p o n th e p u b lic stre e t
w a s u n la w fu l. I f th e b a n n e r it s e lf is la w fu l w e a re u n a b le t o see
h o w th e m e re d is p la y o f it b y a p e d e s tr ia n u p o n a p u b lic s tr e e t is
u n la w fu l. I t is p la in th a t o n e d is p la y in g it m a y e a s ily f a l l in t o u n
la w f u l p r a c tic e s . I f it b e a c c o m p a n ie d b y a c ts t h a t c o n s titu te o b
s t r u c t io n o f th e s tre e t o r o f a ccess t o p la in t iff’s p la c e o f b u sin e ss, o r
i f a c c o m p a n ie d b y a n y w o r d s o r a cts w h ic h c o n s titu te in t im id a t io n
o r th re a ts , th e w h o le tr a n s a c t io n is u n la w fu l a n d s h o u ld b e e n jo in e d .
T h e r e a re c la im s o f th is k in d in p la in t iff’s c o m p la in t a n d affi
d a v it s , b u t t h e y a re a ll d e n ie d . T h e a ffid a v its o n th e p a r t o f d e fe n d
a n ts n e g a t iv e a n y a cts o f th is c h a r a c te r . T h e y a re t o th e e ffe c t th a t
th e b a n n e r w a s d is p la y e d o n th e s tre e t a n d n o t o n th e s id e w a lk , th a t
th e r e h a s b e e n n o in t e r fe r e n c e w it h p a t r o n s o f th e th e a te r . T h e t r ia l
c o u r t h a s a la r g e m e a su r e o f d is c r e t io n in th e m a tte r o f g r a n t in g
in ju n c t io n s p e n d e n te lite . O n th is s h o w in g w e a re n o t d is p o s e d t o
o v e r r id e th e o r d e r o f th e t r ia l c o u r t in r e fu s in g a t e m p o r a r y in ju n c
tio n . T h is is in h a r m o n y w it h th e fe w d e c is io n s w e fin d t h a t b e a r
u p o n th is s u b je c t. [C a s e s c it e d .]
I f , o n a f u l l h e a r in g o n th e t r ia l o n e v id e n c e p r o d u c e d b y th e p a r
tie s, th e c o u r t s h a ll fin d th a t th e c h a r g e s in th e c o m p la in t a re tr u e ,
p r o p e r r e lie f c a n th e n b e g iv e n , b u t w e a re o f th e o p in io n t h a t in
d e n y in g a n in ju n c t io n o n th e p le a d in g s a n d a ffid a v its s u b m it t e d
th e r e w a s n o a b u se o f d is c r e tio n .
TEXT AND SUMMARIES OF DECISIONS.
127
L a b o r O r g a n iz a tio n s — B o y c o t t — A d v e r tis in g T h e a t e r as U n
f a i r — I n j u n c t i o n — E v id e n c e — Martin
et al. v. Francke et al ., Su
preme Judicial Court o f Massachusetts (M ay 26,1917), 116 Northeast
ern R eporter , page JfiJ+.— M a rtin and W e llb r o o k , m em bers o f the
K n ig h ts o f L a b o r, and m o v in g picture operators, and G am m on and
H a rk in s, proprietors o f the theater in w hich the operators were em
p loyed, sued fo r an inju n ction against
W m . C.
Fran cke and others,
who, w ith the exception o f tw o men involved in the disp lay o f banners,
were mem bers and officers o f a local organization o f operators affiliated
w ith the A m erica n Federation o f L abor. I t appeared that the d efen d
ants attem pted to secure the discharge o f M a rtin and W e llb ro o k , and,
when they were unsuccessful in this, published b y m eans o f banners
statem ents th at the theater was u n fair to the organization.
F u rth er
findings o f the m aster to w hom the case was referred fo r the ta k in g
o f evidence and determ ination o f facts, also the procedure in the
case and the decision in regard to disputed points, are shown in the
opinion delivered b y Judge C rosby, fr o m
which the fo llo w in g is
ta k e n :
T h e m a s te r f i n d s :
T h a t “ th e p u r p o s e o f th e r e s p o n d e n ts in c a r r y in g th ese b a n n e rs w a s
t o ca u se , i f p o s s ib le , m e m b e r s o f th e A m e r ic a n F e d e r a t io n o f L a b o r
a n d th e p u b lic t o r e fr a in fr o m p u r c h a s in g tic k e ts o f a d m is s io n to
th e A p o l l o T h e a t e r ; 55 th a t it “ w a s th e in t e n t io n o f th e r e s p o n d e n ts
in d o in g th e a cts h e r e in b e fo r e d e s c r ib e d t o c o m p e l th e d is c h a r g e o f
th e c o m p la in a n t s M a r t in a n d W e llb r o o k b y th e o th e r t w o c o m p la in
a n ts, o r t o ca u se th e c o m p la in a n t s M a r t in a n d W e llb r o o k t o jo in th e
A m e r ic a n F e d e r a t io n o f L a b o r , b u t t h e y wTe re u n s u c c e s s fu l.”
I t w a s a d m itte d a t th e h e a r in g b e fo r e th e m a ste r th a t th e r e h a d
b e e n n o d im in u t io n in th e a tte n d a n c e a t th e th e a te r d u e t o th e a cts
o f th e r e s p o n d e n ts o r a n y o f th e m .
A fin a l d e cr e e h a s b e e n e n te r e d in th e s u p e r io r c o u r t e n jo in in g th e
d e fe n d a n t s f r o m in t e r fe r in g w it h r ig h t s o f th e p la in t iffs r e s p e c
t i v e l y ; th e o n ly q u e s tio n s p r e s e n te d b y th e a p p e a l a rise fr o m th r e e
e x c e p t io n s t o th e m a s te r ’s r e p o r t .
T h e first e x c e p t io n r e la te d t o la n g u a g e c la im e d t o h a v e b e e n u se d b y
th e c o m p la in a n ts , c h a r a c t e r iz e d as p r o fa n e , o b s ce n e , a n d v i l e ; b u t th e
su b sta n ce o f th e sa m e w a s n o t sta te d , so as t o e n a b le th e m a s te r t o d e
t e r m in e a s t o it s n a tu r e . T h e s e c o n d e x c e p t io n w a s as t o a fin d in g
th a t th e w o r d “ u n f a i r ” h a d p r a c t ic a lly th e sa m e m e a n in g as th e
w o r d “ s c a b ,” a m o n g la b o r m e n , w h ic h th e c o u r t h e ld t o b e a q u e s tio n
t o b e d e c id e d o n th e e v id e n c e ; w h ile th e t h ir d p o in t w a s as to a c h a r g e
o f p e r ju r y m a d e a g a in s t o n e o f th e p la in t iffs , th is e x c e p t io n b e in g
o v e r r u le d o n th e g r o u n d th a t th e m a ste r w a s in th e b e s t p o s it io n t o
p a s s u p o n th e c r e d ib ilit y o f th e w itn e sse s. A l l e x c e p t io n s b e in g o v e r
r u le d , th e d e c r e e w a s a ffirm ed .
128
DECISIONS OF COURTS AFFECTING LABOR.
L a b o r O r g a n iz a tio n s — B o y c o t t — C o n sp ira c y — I n t e r f e r e n c e
w ith
B u s in e s s — I n j u n c t i o n — H arvey v. Chapman et al ., Supreme
Judicial Court o f Massachusetts (Mar. 5 , 1917), 115 Northeastern R e
porter , page 30h.— Jam es W . M . H a r v e y brou gh t suit fo r an in ju n c
tion and dam ages against W a lte r C h apm an and others, a llegin g an
u n la w fu l conspiracy to interfere w ith his business as a retail grocer.
A
m aster h a v in g taken the testim ony and m ade findings o f fa ct, the
case was reported to the court fo r decision.
T h e m aster fou n d th at
there had been no real trade dispute between the L y n n G rocery and
P rovision C lerk s’ A ssociation , o f which the defendants were officers,
and the plain tiff, but that the entire trouble arose out o f the fa ilu re o f
his clerks to p a y their dues as m embers o f the association.
9, 1915,
O n J u ly
the association called a strike on the store, but none o f the
three clerks le ft.
T h e store was picketed, and the labor unions o f
the city were notified th at it was u n fa ir.
I t was fo u n d th at the
purpose o f all the acts, w hich were ratified by the association as a
w hole, was to force the plain tiff to discharge the clerks or com pel
them to p a y the necessary am ount and be reinstated.
T h e court
granted the inju n ction and also dam ages in the sm all am ount allow ed
by
the m aster, Ju dge
De
C ourcey statin g the findings o f fa ct and
s a y in g :
I t n e e d s n o d is c u s s io n t o s h o w th a t su ch in t e n t io n a l a n d h a r m fu l
in t e r fe r e n c e w it h th e p la in t iff’s b u sin e ss r e n d e r s th e d e fe n d a n t s lia b le ,
u n le ss th e re a p p e a r s a le g a l ju s t ific a t io n f o r th e ir c o n d u c t . N o s u ch
ju s t ific a t io n is d is c lo s e d . T h e r e w a s n o r e a l tr a d e d is p u te b e tw e e n
th e p a rtie s . A s th e re w a s, in fa c t , n o s tr ik e a t th e p la in t iff’s s to r e
a t a n y tim e sin ce J u ly 9, 1915, it is u n n e c e s s a ry t o c o n s id e r w h a t th e
d e fe n d a n t s p r o p e r ly m ig h t d o u n d e r a le g a l strik e . [C a s e s c it e d .]
T h e v a lid it y a n d e ffe c t o f th e a lle g e d a g re e m e n t b e tw e e n th e p a r tie s
is lik e w is e im m a te r ia l, b e ca u se o f th e fin d in g th a t i f e v e r in f o r c e
i t h a d b e e n te r m in a te d b y m u tu a l co n s e n t. [C a s e s c it e d .] T h e
P e a c e fu l P e r s u a s io n A c t n e e d n o t b e c o n s id e r e d , as it d o e s n o t p u r
p o r t t o ju s t if y a tte m p ts t o p e r s u a d e , w h ic h a re a p a r t o f an u n la w fu l
o r a c t io n a b le c o n s p ir a c y . T h e b o y c o t t in g o f th e p la in t iff’s b u sin e ss
b y th e d e fe n d a n t s w a s b a s e d u p o n th e fa ls e s ta te m e n t th a t h is e m
p lo y e e s w e r e o u t o n a s tr ik e , a n d it w a s c a r r ie d o n f o r th e p u r p o s e
o f c o m p e llin g th e p la in t iff, w it h w h o m th e y h a d n o tr a d e d is p u te ,
t o d is c h a r g e h is e m p lo y e e s o r t o c o e r c e th e m t o p a y th e su m s o f
m o n e y d e m a n d e d o f th e m b y th e a s s o cia tio n . P la in ly it w a s u n la w
fu l. [C a s e s c it e d .] .
T h e p la in t iff a r g u e s t h a t th e d a m a g e s a w a r d e d b y th e m a s te r a re
in a d e q u a te . B u t w e c a n n o t r e v is e th a t fin d in g in th e a b se n ce o f th e
e v id e n c e . I n v ie w o f th e p e rs is te n t u n la w fu l a cts o f th e d e fe n d a n t s
e v e n w h ile th e ca se w a s o n t r ia l, a n d t h e ir in t e n t io n t o c o n tin u e th e
sa m e u n le ss r e s tr a in e d b y th e c o u r t, th e p la in t iff is e n t itle d t o h a v e
th e m e n jo in e d f r o m p r o c la im in g th e e x is te n c e o f a s tr ik e o f th e
p la in t iff’s e m p lo y e e s , a n d fr o m in t e r fe r in g w it h h is b u sin e ss b y k e e p
i n g p ic k e t s a n d d is p la y in g b a n n e rs a b o u t h is s to r e f o r th e p u r p o s e
o f p r e v e n t in g th e p u b lic f r o m t r a d in g w it h h im . H e is a lso t o r e
c o v e r f r o m th e d e fe n d a n t s th e su m o f $100.
TEXT AND SUMMARIES OF DECISIONS.
Labor Organizations— Boycott— Interference
w it h
129
Business—
Bossert et cd. v. Dhuy et cd., Court o f Appeals o f New Y ork (Oct. 9,
1917), 117 Northeastern Reporter, page 582.— Louis Bossert and
&
John Bossert, copartners as Louis Bossert
Son, brought action
against Frederick Dhuy and others, for an injunction against inter
ference with the plaintiffs’ business by means of boycotting. The
plaintiffs were manufacturers of doors, sash, blinds, trim, and other
kinds of woodwork, and maintained an open shop, hiring union and
lonunion men indiscriminately. The defendants were officers and
igents of the United Brotherhood of Carpenters and Joiners of
America. They decided to take nonunion manufacturers of build
ing supplies of this nature one at a time, and, by a boycott, compel
them to unionize their factories. In pursuance of this plan they
urged builders not to purchase and use the materials of the plain
tiffs, and called strikes on jobs where such materials were used. The
supreme court in special term granted an injunction against these
practices, and its decision was affirmed by the appellate division,
151 N. Y . Supp. 877 (see Bui. No. 189, p. 3 3 7 ). Both parties ap
pealed from the judgment, and in the present decision by the court
of appeals the judgment is reversed, thus leaving the representa
tives of the union free to continue the methods complained of. Judge
Chase delivered the opinion, and quoted from the opinion in Na
tional Protective Association v. Cumming, 170 N . Y . 315, 63 N . E .
369 (Bui. No. 42, p. 1 1 1 8 ), as to the general principles governing the
right to strike. Continuing, he said:
I t is u n n e c e s s a ry in th e ca se n o w u n d e r c o n s id e r a t io n t o h o ld th a t
in a ll ca ses a n d u n d e r a ll c ir c u m s ta n c e s w h a te v e r a m a n m a y d o
a lo n e h e m a y d o in c o m b in a tio n w it h o th e r s, b u t it w a s c le a r ly esta b
lis h e d in th e N a t io n a l P r o t e c t iv e A s s o c ia t io n ca se th a t w o r k in g m e n
m a y o r g a n iz e f o r p u r p o s e s d e e m e d b e n e fic ia l t o th e m s e lv e s , a n d in
th a t o r g a n iz e d c a p a c it y m a y d e te r m in e th a t t h e ir m e m b e r s s h a ll n o t
w o r k w it h n o n m e m b e r s o r u p o n sp e c ifie d w o r k o r k in d s o f w o r k .
I t w a s n o t ille g a l, t h e r e fo r e , f o r th e d e fe n d a n t s t o r e fu s e t o a llo w
m e m b e rs o f th e b r o t h e r h o o d to w o r k in th e p la in t iffs ’ m ill w it h n o n
u n io n m e n . T h e sa m e r e a s o n in g re s u lts in h o ld in g th a t th e b r o t h e r
h o o d m a y , b y v o lu n t a r y a ct, r e fu s e t o a llo w its m e m b e r s t o w o r k in
th e e r e c tio n o f m a te r ia ls fu r n is h e d b y a n o n u n io n s h o p . S u c h a c t io n
h a s r e la tio n t o w o r k t o b e p e r fo r m e d b y its m e m b e r s a n d d ir e c t ly
a ffe cts th em . T h e v o lu n t a r y a d o p t io n o f a r u le n o t t o w o r k u p o n n o n
u n io n -m a d e m a te r ia l a n d its e n fo r c e m e n t d iffe r s o n ly in d e g r e e fr o m
su ch v o lu n t a r y r u le a n d its e n fo r c e m e n t in a p a r t ic u la r case. S u c h
a d e te r m in a tio n a lso d iffe r s e n t ir e ly fr o m a g e n e r a l b o y c o t t o f a
p a r t ic u la r d e a le r o r m a n u fa c t u r e r w it h a m a lic io u s in te n t a n d p u r
p o s e to d e s tr o y th e g o o d w ill o r b u sin e ss o f su ch d e a le r o r m a n u fa c
tu re r. A n a c t w h e n d o n e m a lic io u s ly a n d f o r a n ille g a l p u r p o s e
m a y b e restra in ed , a n d h e ld t o b e w it h in th e b o u n d s o f r e a s o n a b le
b u sin e ss c o m p e t itio n w h e n d o n e in g o o d fa it h a n d f o r a le g a l p u r *
p o se . (S e e R u li n g C a se L a w , v o l. 16, p p . 4 3 1 , 43 2 , a n d 4 3 3 .)
64919° —18—Bull. 246------9
130
DECISIONS OF COURTS AFFECTING LABOR.
I t a p p e a r s b y fin d in g s th a t a re u n c o n t r o v e r t ib ly e s ta b lis h e d b y
r e a s o n o f th e u n a n im o u s a ffirm a n ce o f th e s p e c ia l te r m b y th e a p p e l
la te d iv is io n t h a t it w a s n o t th e in te n t a n d p u r p o s e o f th e d e fe n d a n t s
in th is ca se t o in ju r e th e g o o d w ill o r b u sin e ss o f th e p la in t iffs as
in d iv id u a ls o r o f n o n u n io n m a n u fa c t u r e r s g e n e r a lly . I n r e fu s in g
t o w o r k o n n o n u n io n m a d e m a te r ia l, t h e y w e r e c o n s e r v in g th e ir
in te re s ts as in d iv id u a ls a n d as m e m b e r s o f th e b r o t h e r h o o d , a n d in
so d o in g n e c e s s a r ily in t e r fe r e d t o s o m e e x te n t w it h n o n u n io n m a n u
fa c t u r e r s . S u c h in t e r fe r e n c e n e c e s s a r ily r e s u lte d t o so m e e x te n t
a lso in th e N a t io n a l P r o t e c t iv e A s s o c ia t io n ca se, a n d s u ch fa c t
d id n o t p r e v e n t th e c o u r t s u s ta in in g th e a c t io n o f th e d e fe n d a n t s
th e re in .
A t th is p o in t m a n y o f th e fin d in g s o f fa c t b y th e c o u r t b e lo w a re
q u o te d in s u p p o r t o f th e p r o p o s it io n th a t th e m o tiv e o f th e u n io n
w a s th e fu r t h e r a n c e o f its o w n e n d s r a th e r th a n th e d e s t r u c t io n o f
th e p la in t iff’s b u sin e ss. J u d g e C h a se th e n w e n t o n as f o l l o w s :
T h e t r ia l c o u r t a ls o f o u n d :
“ T h a t s a id b r o t h e r h o o d h a s a d o p te d a n d s o u g h t t o e n fo r c e , a n d in
m a n y in s ta n c e s h a s e n fo r c e d , r u le s w h ic h f o r b i d a n d p r e v e n t its
m e m b e r s f r o m w o r k in g f o r a n y e m p lo y e r w h o e m p lo y s a n y s o -c a lle d
n o n u n io n c a r p e n t e r s a n d f r o m w o r k in g o n o r in c o n n e c t io n w it h
a n y b u ild in g w h a re m a te r ia ls a re u se d w h ic h a re p u r c h a s e d fr o m
a n y e m p lo y e r w h o e m p lo y s a n y n o n u n io n c a r p e n te r s .”
I n c o n s id e r in g th is fin d in g o f th e c o u r t w e m u st k e e p in m in d th e
fa c t th a t th e a c t io n o f th e b r o t h e r h o o d d id n o t in t e r fe r e w it h a n y
c o n t r a c t b e tw e e n e m p lo y e r arid e m p lo y e e . I t s a c t io n w a s o p e n a n d
c le a r ly d e fin e d , a n d its e n fo r c e m e n t w a s n o t d e s ig n e d t o a n d d id
n o t in c lu d e a n y fo r c e , fr a u d , th re a t, o r d e fa m a t io n . I t s a c t io n w a s
v o lu n t a r y a n d c o n c e r n e d la b o r c o m p e t it io n in w h ic h th e a s s o c ia tio n
a n d its m e m b e r s a re v it a lly in te re s te d .
A n a s s o c ia tio n o f in d iv id u a ls m a y d e te r m in e th a t its m e m b e r s s h a ll
n o t w o r k f o r s p e c ifie d e m p lo y e r s o f la b o r . T h e q u e s tio n e v e r is as
t o its p u r p o s e in r e a c h in g su ch d e te r m in a tio n . I f th e d e t e r m in a t io n
is r e a c h e d in g o o d fa it h f o r th e p u r p o s e o f b e t t e r in g th e c o n d it io n
o f its m e m b e r s a n d n o t t h r o u g h m a lic e o r o th e r w is e t o in ju r e an
e m p lo y e r , th e fa c t th a t su ch a c t io n m a y r e s u lt in in c id e n t a l in ju r y t o
th e e m p lo y e r d o e s n o t c o n s titu te a ju s t ific a t io n f o r is s u in g a n in
ju n c t io n a g a in s t e n fo r c in g su ch a c tio n .
R e fe r e n c e w a s th e n m a d e t o th e d e c is io n o f th e U n it e d S ta te s
S u p r e m e C o u r t in th e ca se o f P a in e L u m b e r C o . v . N e a l (se e p . 1 7 6 )
as s u p p o r t in g th e p o s it io n ta k e n . C o n t in u in g , th e c o u r t s a i d :
U p o n a ll o f th e fin d in g s b e f o r e u s th e sta te m e n t in th e fin d in g
th a t th e r e w a s a “ c o m b in a tio n t o o r g a n iz e a ll th e n o n u n io n m ills
o f B r o o k l y n ” s im p ly m e a n s t h a t th e b r o t h e r h o o d d e t e r m in e d t o
c a r r y o u t th e p r o v is io n s o f its c o n s t it u t io n r e la t in g t o n o n u n io n m a d e m a t e r ia l b y in s is t in g u p o n its e n fo r c e m e n t a n d b y im p o s in g th e
p e n a ltie s p r o v id e d t h e r e b y in ca se o f fa ilu r e o f a n y o f its m e m b e r s
t o c o m p ly th e r e w ith . T h e fu r t h e r sta te m e n t as t o th e “ o r d e r s o f th e
b u sin e ss a g e n t s ” s im p ly m e a n s t h a t th e r e p r e s e n ta tiv e s o f th e
b r o t h e r h o o d c a lle d th e a tte n tio n o f th e u n io n c a r p e n te r s e m p lo y e d
o n b u ild in g s w h e r e n o n u n io n m a te r ia l w a s b e in g e r e c te d t o th e c o n -
TEXT AND SUMMARIES OF DECISIONS.
131
se q u e n ce s t o th e m as m e m b e r s o f th e b r o t h e r h o o d in ca se t h e y c o n
tin u e d su ch e m p lo y m e n t.
I t is n o w u n a n im o u s ly fo u n d th a t th e d e fe n d a n t s d id n o t h a v e a
p r im a r y in te n t t o in ju r e th e p la in t iffs .
T h e c o n c lu s io n s o f la w o f th e c o u r t b e lo w a re q u o te d , a ft e r w h ic h
th e o p in io n c o n tin u e s as f o l l o w s :
B y r e a d in g th e o p in io n o f th e c o u r t a t th e s p e c ia l te r m , a d o p t e d
a t th e a p p e lla t e d iv is io n , w it h th e fin d in g s a n d c o n c lu s io n s o f la w , it
a p p e a r s th a t it w a s th e in t e n t io n o f th e c o u r t t o h o ld th a t th e fa c t s
f o u n d w o u ld n o t ju s t if y a ju d g m e n t in f a v o r o f th e p la in t iffs e x c e p t
s o f a r a s th e d e fe n d a n t s d is c r im in a t e d a g a in s t th e p la in t iff’s m ill a n d
r e fu s e d t o h a n d le th e p la in t iffs ’ m a te r ia l w h ile a t th e sa m e tim e c o n
t in u in g t o h a n d le m a te r ia l fr o m o t h e r n o n u n io n m ills .
W e d o n o t t h in k th a t th e c o n c lu s io n o f th e c o u r t is s u s ta in e d b y
th e. fin d in g s o f fa c t in th e case.
T h e s e c o n d p a r a g r a p h [ o f th e ju d g m e n t e n t e r e d ] a d ju d g e s t h a t th e
d e fe n d a n t s s h a ll n o t d ir e c t, r e q u ir e , o r c o m p e l a n y p e r s o n , b y b y -la w ,
r u le , o r r e g u la t io n o r a n y a c t th e r e u n d e r , t o cea se w o r k in g f o r a n
o t h e r b e c a u se th e y u se m a te r ia l p u r c h a s e d f r o m n o n u n io n s h o p s .
A n d th e t h ir d p a r a g r a p h t h e r e o f e n jo in s th e d e fe n d a n t s f r o m in
d u c in g a n y w o r k m e n in th e ir tra d e s t o q u it w o r k o n a n y b u ild in g
b e c a u se n o n u n io n c a r p e n te r s a re th e r e e m p lo y e d t o in s t a ll m a te r ia l
w h ic h c o m e s fr o m n o n u n io n sh o p s. A l l o f th e a cts e n jo in e d a re
u n d e r th e fin d in g s o f fa c t in th is ca se la w fu l a cts d o n e f o r l a w fu l
p u rposes.
W e t h in k th a t th e r u le s la id d o w n b y th is c o u r t in th e N a t io n a l
P r o t e c t iv e A s s o c ia t io n ca se r e q u ir e a r e v e r s a l o f th e ju d g m e n t in
f a v o r o f th e p la in t iff u p o n th e fin d in g s b e f o r e u s. W h e n it is d e t e r
m in e d th a t a la b o r o r g a n iz a t io n c a n c o n t r o l th e b o d y o f it s m e m b e r s
f o r th e p u r p o s e o f s e c u r in g t o th e m h ig h e r w a g e s , s h o r te r h o u r s o f
la b o r , a n d b e tte r r e la tio n s w it h t h e ir e m p lo y e r s , a n d as a p a r t o f
s u ch c o n t r o l m a y r e fu s e t o a llo w its m e m b e r s t o w o r k u n d e r c o n d i
t io n s u n fa v o r a b le t o it , o r w it h w o r k in g m e n n o t in a c c o r d w it h th e
s e n tim e n ts o f th e la b o r u n io n , th e r ig h t t o r e fu s e t o a llo w th e m t o
in s t a ll n o n u n io n -m a d e m a te r ia l fo llo w s as a m a tte r o f co u r s e , s u b
je c t t o th e r e b e in g n o m a lic e , fr a u d , v io le n c e , c o e r c io n , in t im id a t io n ,
o r d e fa m a t io n in c a r r y in g o u t th e ir r e s o lu tio n s a n d o r d e r s .
L a b o r O r g a n iz a t io n s — C o n s p ir a c y — I n j u n c t i o n — R e s t r a i n t o f
T r a d e — George J. Grant Construction Co. v . St. Paul Building
Trades Council et al., Supreme Court o f Minnesota (Feb. 23, 1917),
161 Northwestern Reporter, page 520.— T h is ca se r e la te d t o a t r a d e
d is p u te b e tw e e n t h e - p la i n t if f c o m p a n y , e n g a g e d in b u sin e ss as a
b u ild e r a n d c o n t r a c t o r in S t. P a u l, a n d th e c o u n c il, c o m p o s e d o f
d e le g a te s fr o m lo c a l u n io n s in th e b u ild in g - tra d e s . T h e c o m p a n y ,
p e t it io n e d f o r a n in ju n c t io n , w h ic h w a s d e n ie d b y th e d is t r ic t c o u r t
o f R a m s e y C o u n t y , a n d th is p o s it io n w a s a p p r o v e d b y th e s u p r e m e
c o u r t. T h e s u p r e m e c o u r t c a lle d a tte n tio n t o th e a lle g a t io n s in th e
c o m p la in t , a s t o a c o n s p ir a c y t o in ju r e th e c o m p a n y ’s b u sin e ss a n d
132
DECISIONS OF COURTS AFFECTING LABOB.
th e m e a n s ta k e n a n d th r e a te n e d t o b e u se d t o a c c o m p lis h t h a t p u r
p o s e . S in c e th e d e c is io n in th e lo w e r c o u r t w a s f o r th e u n io n , it is
p o in t e d o u t th a t th e fa c t s p u t in d is p u t e b y th e c o m p la in t a n d
a n s w e r m u st b e s u p p o s e d t o h a v e b e e n fo u n d fa v o r a b le t o th a t
o r g a n iz a t io n . J u d g e H a lla m , w h o d e liv e r e d th e o p in io n , th e n s a i d :
O n th e a r g u m e n t in th is c o u r t, c o u n s e l f o r th e p la in t iff a d m itt e d
th a t n o s in g le a ct d o n e w a s c la im e d to b e u n la w fu l; h is c la im w a s
th a t th e e n tir e set o f a cts, ta k e n t o g e t h e r a n d in c o n n e c t io n w it h
th e p u r p o s e w it h w h ic h th e y w e r e d o n e , w e r e u n la w fu l o n th e t h e o r y
th a t t h e y c o n s t it u t e d w h a t h e te r m e d “ o r g a n iz e d e c o n o m ic o p p r e s
s io n .” T h e r e s t r a in in g p o w e r o f c o u r t s o f e q u ity h a s u s u a lly b e e n
in v o k e d t o e n jo in so m e t a n g ib le o r s p e c ific a cts. B a d g e r B r a s s M f g .
C o . v. D a ly , 137 W is . 601, 119 N . W . 328. I t is n o t ea s y t o fr a m e
a n in ju n c t io n t o r e s tr a in “ o r g a n iz e d e c o n o m ic o p p r e s s io n .” I t is
n o t ea sy to f o r b i d a c o u r s e o f c o n d u c t b a s e d u p o n a cts, la w fu l w h e n
ta k e n a lo n e , o n th e t h e o r y th a t th e y a re u n la w fu l w h e n ta k e n as
a< w h o le . S o m e c o u r ts h a v e h e ld th a t an a c t la w fu l i f d o n e b y o n e
p e r s o n m a y b e u n la w fu l i f c o o p e r a t e d in b y m a n y , b u t w e a re n o t
a w a re th a t it h a s e v e r b e e n h e ld th a t m a n y la w fu l a cts d o n e b y th e
sa m e p e r s o n o r b o d y o f p e r s o n s c a n c o n s titu te a n u n la w fu l w h o le .
C o m in g to th e e s ta b lis h e d fa c t s w e fin d th e s itu a tio n lit t le m o r e
o r less th a n t h is : A la b o r d is p u te e x is ts b e tw e e n p la in t iff a n d th e
d e fe n d a n t u n io n s a n d t h e ir m e m b e r s. D e fe n d a n ts a re n o t e m p lo y e e s
o f p la in t iff. T h e d is p u te h a s a rise n m a in ly f r o m th e fa c t t h a t
p la in t iff r u n s w h a t is te r m e d a n “ o p e n s h o p ,” th a t is, it e m p lo y s n o n
u n io n m e n a n d it is c la im e d p la in t iff h a s a t s o m e tim e s d e a lt u n
f a i r l y w it h u n io n m e n a n d h a s in so m e ca ses r e fu s e d th e m e m p lo y
m e n t. I t w o u ld seem to b e a b o n a fid e d is p u te o n b o t h sid e s. W i t h
th e m e r its o f it w e a re n o t fu r t h e r c o n c e r n e d .
T h e u n io n s o f b u ild in g tr a d e s a n d t h e ir m e m b e r s h a v e a g r e e d
a m o n g th e m s e lv e s th a t u n til th ese c o n t r o v e r s ie s a r e a d ju s te d th e y
w ill n o t w o r k f o r p la in t iff o r f o r a n y s u b c o n t r a c t o r o n a n y c o n t r a c t
p la in t iff m a y h a v e o n h a n d . W e t h in k th e la w fu ln e s s o f t h is c o n
d u c t is . th e o n e q u e s tio n b e f o r e th e c o u r t.
I t is n o t e a s y t o d e fin e th e p o in t b e y o n d w h ic h la b o r in c o m b in a
t io n c a n n o t g o . I t is, p e r h a p s , n o t b e s t th a t w e t r y t o d o so. W e
w ill d o w e ll to c o n fin e o u rs e lv e s t o th e fa c t s o f th is ca se a n d d e t e r
m in e o n ly th e r ig h t s o f th e p a r t ie s a r is in g f r o m th o s e fa c ts . T h e
d e t e r m in a t io n o f th e q u e s tio n s h e re in v o lv e d is n o t d ifficu lt. P l a i n
t i f f m a y e m p lo y w h o m it p le a ses. I t m a y m a in ta in a n o p e n s h o p i f
it p le a ses. I t s h o u ld n o t b e c o e r c e d in t o d o in g o th e r w is e . D e f e n d
a n ts h a v e th e r ig h t t o w o r k f o r w h o m t h e y p le a se . I t is b e s t t h a t
we g iv e t o b o t h e m p lo y e r a n d e m p lo y e e a b r o a d fie ld o f a c tio n . A s
sa id by J u d g e C o o l e y :
“ I t is a p a r t o f e v e r y m a n ’s c iv il r ig h t s th a t h e b e l e f t a t lib e r t y
to r e fu s e b u sin e ss r e la tio n s w it h a n y p e r s o n w h o m s o e v e r , w h e th e r th e
r e fu s a l rests u p o n r e a s o n o r is th e r e s u lt o f w h im , c a p r ic e , p r e ju d ic e
o r m a lice . W i t h h is r e a s o n s n e ith e r th e p u b lic n o r t h ir d p e r s o n s h a v e
a n v le g a l c o n c e r n .” C o o le y o n T o r t s (2 d e d .) 328.
D e fe n d a n t s m a y , i f n o c o n t r a c t is in v o lv e d , r e fu s e t o w o r k in an
“ o p e n s h o p .” T h e y m a y a g r e e a m o n g th e m s e lv e s n o t t o d o so.
[C a s e s c it e d .]
TEXT AND SUMMARIES OF DECISIONS.
133
M a y t h e y , b e c a u se p la n it iff e m p lo y s n o n u n io n la b o r in c o n s t r u c
t io n o f a b u ild in g , a g re e n o t t o w o r k f o r a s u b c o n t r a c t o r o f p a r t o f
th e w o r k w h o d o e s e m p lo y o n ly u n io n m e n ? I t seem s t o u s t h is q u e s
t io n w a s a n s w e r e d y e s b y th is c o u r t in G r a y v. B u ild in g T r a d e s C o u n
c il, 91 M in n . 171, 97 N . W . 663 [B u i. N o . 53, p . 9 5 5 ]. T h e r e , as h e re ,
th e c o n t r o v e r s y a r o se o u t o f th e e ffo r t o f th e d e fe n d a n t u n io n s t o
c o m p e l th e p la in t iffs t o e m p lo y o n ly u n io n la b o r . I t w a s h e ld t h a t
th e d e fe n d a n t s h a d a c te d w it h in t h e ir r ig h t s a n d th a t th e y m ig h t
f o r th e p u r p o s e o f s tr e n g t h e n in g t h e ir u n io n s e ith e r s in g ly o r c o l
le c t iv e ly r e fu s e t o w o r k in p la c e s o r o n b u ild in g s o n w h ic h n o n u n io n
la b o r w a s e m p lo y e d . W e a d h e re t o th is d e c is io n .
I n d e n y in g a p e t it io n f o r r e a r g u m e n t, J u d g e H a lla m t o o k u p th e
q u e s tio n o f r e s tr a in t o f tr a d e , n o t c o n s id e r e d in th e p r e v io u s o p in io n .
A s r e p o r t e d o n p a g e 1055 o f 161 N . W ., h e s a id as t o t h is :
I n d is p o s in g o f th is a p p e a l th e c o u r t d id n o t m e n t io n th e c o n t e n
t io n th a t th e a cts o f d e fe n d a n t s w e r e c o n t r a r y t o s e c tio n s 8595 a n d
8973 o f th e G e n e r a l S ta tu te s o f 1913. S e c t io n 8595 m a k e s u n la w fu l
a n y c o n s p ir a c y t o c o m m it a n a c t in ju r io u s t o t r a d e o r c o m m e r c e , a n d
s e c t io n 8973 f o r b id s a n y c o m b in a tio n in r e s tr a in t o f tra d e .
W e d o n o t s a y t h a t th e a cts o f m e m b e r s o f la b o r u n io n s m a y n o t b e
s u ch as t o v io la t e e ith e r o r b o t h o f th e se sta tu tes, b u t w e a re o f th e
o p in io n th a t th e a cts w h ic h th e o r ig in a l o p in io n c o n s id e r s as e s ta b
lis h e d d o n o t v io la t e e ith e r. [C a s e s c it e d .]
I t seem s c le a r t h a t n e ith e r o f th ese sta tu tes w a s in te n d e d t o p r o
h ib it c o m b in a tio n s t o s tr ik e f o r th e p u r p o s e o f in c r e a s in g o r m a in
t a in in g w a g e s. I t is e x p r e s s ly p r o v id e d t h a t th e c o n s p ir a c y s ta tu te
d o e s n o t. S e c t io n 8596. N o d e c is io n h a s e v e r c o n s tr u e d a sta tu te
lik e o u r a n titr u s t sta tu te as c o n t a in in g a n y s u ch in h ib it io n .
W e a re o f th e fu r t h e r o p in io n t h a t it w a s n o t th e in te n t o f e ith e r
o f th e sta tu te s m e n tio n e d t o p r o h ib it m e m b e r s o f la b o r u n io n s w h o
h a v e a b o n a fid e d is p u te w it h a b u ild in g c o n t r a c t o r f r o m c o o p e r a t in g
t o w it h h o ld th e ir s e r v ic e s f r o m s u ch c o n t r a c t o r o r h is s u b c o n t r a c t o r s
u n t il th e d is p u t e is se ttle d . [C a s e s c it e d .]
W e m a y fu r t h e r a d d th a t in th e o r ig in a l d e c is io n w e h a d n o in t e n
t io n o f h o ld in g th a t th e le g is la tu r e m a y n o t p r o h ib it o n e o r m a n y
a c ts w h ic h , in th e a b se n ce o f sta tu te , w o u ld b e la w fu l, as h e ld in
A ik e n s v. W is c o n s in , 195 U . S . 194, 25 S u p . C t. 3 [B u i. N o . 57, p . 6 7 8 ],
a n d S w i f t & C o . v. U n it e d S ta te s, 196 U . S . 3 75, 25 S u p . C t. 2 7 6 , n o r
e v e n th a t an a ct, o r d in a r ily la w fu l i f ta k e n a lo n e , m a y n o t b e c o m e
u n la w fu l w h e n it is p a r t a n d p a r c e l o f a n u n la w fu l p lo t w h ic h is
“ a n a c t in it s e lf,” th e u s u a lly la w fu l a c t in s u c h ca se b e in g lik e n e d b y
J u s t ic e H o lm e s t o “ v o lu n t a r y m u s c u la r c o n t r a c t io n ,” w h ic h “ d e r iv e s
a ll its c h a r a c te r fr o m th e c o n s e q u e n ce s w h ic h w ill f o l l o w it u n d e r
th e c ir c u m s ta n c e s in w h ic h it w a s d o n e .” A ik e n s v. W is c o n s in , s u p ra .
L a b o r O r g a n iz a tio n s — C o n sp ira c y —
M u r d e r — E v id e n c e — P eople
v . Schmidt, D istrict Court o f Appeals , Second D istrict , California
(Jun-e
1917) , 165 Pacific R eporter , page 555.— M . A . S ch m id t
w a s charged with the m u rder o f C harles H a g e r ty in the L o s A n g eles
T im es B u ild in g o n O ctober 1, 1910, at w hich tim e 21 persons were
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DECISIONS OF COURTS AFFECTING LABOR.
k ille d b y an e x p lo s io n a n d th e fire w h ic h su cc e e d e d it. H e e s c a p e d
a p p r e h e n s io n a n d t r ia l u n t il 1915, w h e n h e w a s c o n v ic t e d , se n
te n c e d t o im p r is o n m e n t f o r l i f e in th e S ta te p e n it e n t ia r y o f C a li
fo r n ia , a n d h is m o t io n f o r a n e w t r ia l d e n ie d . T h e d e c is io n in th e
p r e s e n t a p p e a l w a s a n a ffirm a n ce o f th e ju d g m e n t a n d o r d e r o f th e
c o u r t b e lo w . J u d g e J a m e s d e liv e r e d th e o p in io n , a n d firs t d e ta ile d
at s o m e le n g t h th e fa c t s o f th e c r im e as th e t e s t im o n y f o r th e p r o s e
c u tio n t e n d e d t o p r o v e th e m . I t w a s s h o w n th a t J . J . M c N a m a r a
w a s s e c r e ta r y a n d tr e a s u r e r o f th e I n t e r n a t io n a l A s s o c ia t io n o f B r id g e
a n d S t r u c t u r a l I r o n W o r k e r s , w h ic h in 1905 d e c la r e d a g e n e r a l s tr ik e
a g a in s t th e A m e r ic a n B r id g e C o ., o n e o f th e o b je c t s b e in g t o u n io n
iz e th a t c o m p a n y ’s p la n t. M c N a m a r a , a p p a r e n t ly w it h o u t a u t h o r it y
fr o m th e u n io n , set o n f o o t th e d e s tr u c tio n o f b r id g e s a n d o th e r
w o r k w h e re n o n u n io n la b o r w a s e m p lo y e d . T r o u b le h a v in g a rise n
in C a lifo r n ia , h e sen t h is b r o t h e r , J . B . M c N a m a r a , t o th a t S ta te
in r e s p o n s e t o a re q u e st f r o m an officer o f an ir o n w o r k e r s ’ u n io n
f o r a ssista n ce . T h e M c N a m a r a s h a d d e v is e d an in fe r n a l m a c h in e ,
u s in g a la rm c lo c k s a n d d y n a m it e in th e c o n s t r u c t io n . T h e L o s
A n g e le s T im e s a n d th e M e r c h a n ts ’ A s s o c ia t io n o f L o s A n g e le s w e r e
a d v o c a te s o f th e o p e n -s h o p p la n . S c h m id t b e c a m e a n a ssista n t to
M c N a m a r a in a d v e r t is in g f o r a la u n c h a n d p u r c h a s in g d y n a m ite ,
as a p p e a r e d fr o m te s t im o n y o ffe r e d . I n a d d it io n t o th e T im e s
e x p lo s io n , in fe r n a l m a c h in e s e x p lo d e d o r w e r e fo u n d n e a r th e r e s i
d e n ce s o f th e p r e s id e n t o f th e T im e s C o . a n d o f th e s e c r e ta r y o f th e
M e r c h a n ts ’ A s s o c ia t io n , s h o w in g b y t h e ir c o n s t r u c t io n a n d th e m a k e
o f th e d y n a m it e t h a t t h e y w e r e th e w o r k o f th e sa m e p a r tie s .
T h e c o u r t th e n sta tes t h a t th e e v id e n c e is a m p le t o p r o v e th e c o n
n e c t io n o f th e d e fe n d a n t w it h th e c rim e . O n e c o n t e n t io n w a s th a t th e
d e fe n d a n t ’s c o n s t it u t io n a l r ig h t s h a d b e e n v io la t e d b e c a u se an e x
p o s t fa c t o la w h a d b e e n a p p lie d , th e la w in q u e s tio n t a k in g a w a y
th e g r o u n d o f b ia s o r p r e ju d ic e o f g r a n d ju r o r s as a fo u n d a t io n f o r
a m o tio n t o set a sid e th e in d ic tm e n t. T h is w a s d is p o s e d o f as n o t
a r ig h t m a te r ia l t o th e d e fe n s e , b u t as r e la tin g t o p r o c e d u r e m e re ly .
O t h e r t e c h n ic a l m a tte r s u n s u c c e s s fu lly u r g e d as g r o u n d s f o r a n ew
t r ia l r e la te d t o th e p r o c e e d in g s b e f o r e th e g r a n d ju r y a n d th e se le c
t io n o f th e t r ia l ju r y .
T h e c o n c lu d in g p o r t io n o f th e o p in io n , r e la t in g t o th e c o n s p ir a c y
a n d th e e v id e n c e in t r o d u c e d in p r o o f o f th e c r im e , is, w it h so m e
o m is s io n s , as f o l l o w s :
I t is a fu n d a m e n t a l r u le lo n g s e ttle d b y d e c is io n s th a t in p r o v in g
a c o n s p ir a c y it is n o t n e ce s s a r y th a t p r o o f b e m a d e th a t th e p a r tie s
m e t a n d a c t u a lly a g r e e d t o u n d e r ta k e th e p e r fo r m a n c e o f th e u n
la w fu l a ct, a n d th a t a c o n s p ir a c y m a y b e s h o w n b y p r o o f o f fa c t s
a n d c ir c u m s ta n c e s su fficien t t o s a t is fy th e ju r y o f th e e x is te n c e o f
th e c o n s p ir a c y , le a v in g th e w e ig h t a n d su fficie n cy o f th e e v id e n c e to
th e tr ie r s o f th e q u e s tio n s o f fa c t . [C a s e s c it e d .] I t is n o t d e n ie d
TEXT AND SUMMARIES OF DECISIONS.
135
th a t, a ft e r a c o n s p ir a c y h a s b e e n e s ta b lis h e d a n d it h a s b e e n e s ta b
lis h e d th a t a p e r s o n is c o n n e c te d t h e r e w ith as a c o n s p ir a t o r , th e
la tte r m a y b e p r o s e c u t e d as f o r c o m p lic it y in a n y u n la w fu l a ct
t h e r e a ft e r c o m m it t e d b y a n y o f th e c o n s p ir a t o r s w h ic h is w it h in th e
s c o p e o f th e g e n e r a l d e s ig n o r p la n . “ W h e r e se v e r a l p a r tie s c o n
s p ir e o r c o m b in e to g e t h e r t o c o m m it a n y u n la w fu l a c t, e a c h is c r im
in a lly r e s p o n s ib le f o r th e a cts o f h is a sso cia te s o r c o n fe d e r a t e s
c o m m it t e d in fu r t h e r a n c e o f a n y p r o s e c u t io n o f th e c o m m o n d e s ig n
f o r w h ic h t h e y c o m b in e . * * * E a c h is r e s p o n s ib le f o r e v e r y
t h in g d o n e b y h is c o n fe d e r a te s , w h ic h fo llo w s in c id e n t a lly in th e
e x e c u t io n o f th e c o m m o n d e s ig n as o n e o f its p r o b a b le a n d n a tu r a l
co n s e q u e n ce s , e v e n t h o u g h it w a s n o t in te n d e d as a p a r t ” o f th e
c o m m o n d e s ig n f o r w h ic h th e y c o m b in e d . [C a s e s c it e d .]
F o r th e re a so n s w e h a v e sta te d , v a lid it y c a n n o t b e g r a n t e d t o a n y
o n e o f th e e x c e p t io n s ta k e n b e ca u se o f th e in t r o d u c t io n o f d e c la r a
t io n s o f a n y o f th e c o n s p ir a t o r s m a d e a ft e r a n y p a r t ic u la r [o n e ] o f
th e e x p lo s io n s h a d b e e n ca u se d , as b e in g d e c la r a t io n s in a d m is s ib le
b e ca u se m a d e s u b se q u e n t t o th e c o m p le t io n o r a c c o m p lis h m e n t o f th e
o b je c t o f th e c o n s p ir a c y . T h e c o n s p ir a c y w a s s t ill a liv e a n d in e ffe ct,
a n d th e u ltim a te r e su lts h a d n o t b e e n a tta in e d , w h e n J . B . M c N a m a r a
c a m e t o th e S ta te o f C a lifo r n ia f o r th e p u r p o s e o f a s s is tin g in th e
w o r k . W e h a v e b e f o r e sk e tch e d b r ie fly th e s a lie n t fe a tu r e s o f th e
t e s t im o n y s h o w in g th a t S c h m id t , u p o n M c N a m a r a ’s a r r iv a l in S a n
F r a n c is c o , t o o k a n a c tiv e p a r t in s e c u r in g d y n a m it e f o r M c N a m a r a ’s
use. A l l o f th e a p p e lla n t ’s a cts in th a t c o n n e c t io n w e r e p e r f o r m e d
as s e c r e tly as p o s s ib le , u n d e r a ssu m e d n a m e s, a n d w it h e v e r y in d ic a
t io n o f a p p e lla n t ’s c o m p le t e a n d a c tiv e c o o p e r a t io n a n d s y m p a t h y
w it h th e w o r k o f d e s tr u c tio n t h e r e t o fo r e d o n e , th e n b e in g p la n n e d ,
a n d w h ic h w a s t h e r e a ft e r e x e c u te d . S c h m id t , th e a p p e lla n t , im m e
d ia t e ly b e fo r e th e T im e s e x p lo s io n , h a d b e e n in th e c it y o f L o s
A n g e le s a id in g in th e a tte m p t t o c lo s e th e o p e n s h o p s. T h a t h e k n e w
f o r w h a t p u r p o s e th e d y n a m ite w a s t o b e u se d is in d ic a t e d w h e n h e
s a id t o a w itn e s s w h o te s tifie d in th e ca se, in th e su m m e r o f 1910 ,
th a t:
“ T h e y (in L o s A n g e le s ) w o n ’t g iv e a u n io n m a n n o c h a n c e d o w n
th e re a t a ll. I t is a r e g u la r O tis t o w n th e y a re r u n n in g . T h e r e is
s o m e t h in g g o in g t o h a p p e n t o h im p r e t t y s o o n .”
A n d im m e d ia t e ly a ft e r th e T im e s e x p lo s io n S c h m id t w a s n o t t o b e
f o u n d a n d w a s n o t fo u n d u n t il a lo n g tim e t h e r e a ft e r , w h e n h e w a s
d is c o v e r e d l iv in g a t th e h o u s e o f E m m a G o ld m a n in N e w Y o r k , a
p o r t io n o f th e tim e , u n d e r an a ssu m e d n a m e . T h e le n g t h o f th is
o p in io n w o u ld b e e x te n d e d t o a g r e a te r lim it th a n is w a r r a n te d , w e re
w e to a tte m p t t o d isc u ss in d e ta il th e te s t im o n y as it is s h o w n in th e
8,000 p a g e s o f th e r e p o r t e r ’s t r a n s c r ip t. W h ile th e r e m a y b e p o r t io n s
o f th e te s t im o n y r e c e iv e d w h ic h in a d e ta c h e d w a y c o u ld p r o p e r ly
h a v e b e e n e x c lu d e d , th e w e ig h t o f th e e v id e n c e w a s so o v e r w h e lm in g
in its p r o o f o f th e c o n s p ir a c y a n d its o b je c t s as t o e n fo r c e th e c o n c lu
sio n th a t th e d e fe n d a n t in th e r ig h t s e c u re d t o h im u n d e r th e C o n s t i
t u tio n d id n o t s u ffe r s u b s ta n tia l p r e ju d ic e .
E a t h e r u n u s u a l stress is la id in s u p p o r t o f th e c la im f o r e r r o r in
a llo w in g o n e p a r t ic u la r b it o f e v id e n c e t o c o m e in . S e v e r a l m o n th s
a ft e r th e e x p lo s io n wTh ic h o c c u r r e d a t th e T im e s b u ild in g , a s u it ca se
w a s fo u n d in th e c h e c k in g r o o m a t a f e r r y s ta tio n in S a n F r a n c is c o .
T h e s u it ca se w a s id e n tifie d b y a M rs . I n g e r s o ll as b e in g o n e w h ic h
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DECISIONS OF COURTS AFFECTING LABOR.
eh e h a d seen in th e p o s s e s s io n o f J . B . M c N a m a r a b e f o r e th e 1st o f
O c t o b e r . T h e s u it ca se c a r r ie d a c h e c k la b e l, a n d u p o n b e in g o p e n e d
w a s fo u n d t o c o n t a in a n a la r m c lo c k , a c o il o f b la c k fu s e , s o m e b la s ti n g c a p s , a b ra ss p la te , so m e b r a ss b a r s w it h sc re w s , a n d c o p ie s o f
S a n F r a n c is c o n e w s p a p e r s d a te d O c t o b e r 1. T h e n e w s p a p e r s c o n
t a in e d a c c o u n ts o f th e d e s tr u c tio n o f th e T im e s b u ild in g . T h e s e
a r tic le s w e r e a ll e x h ib it e d t o th e ju r y . W e t h in k th e e v id e n c e w a s
c o m p e te n t. T h e c lo c k a n d b ra ss p ie c e s w e r e o f a s im ila r k in d t o th o s e
u se d b y th e M c N a m a r a s in th e m a n u fa c t u r e o f th e ir in fe r n a l m a
c h in e s. A s p r o o f o f th e fa c t th a t an e x p lo s io n h a d b e e n p r o d u c e d as
“ b a r g a in e d f o r , ” J . J . M c N a m a r a , th e s e c r e ta r y -tr e a s u r e r o f th e
a s s o c ia tio n , h a s a lw a y s r e q u ir e d h is m e n t o p r o d u c e n e w s p a p e r a c
c o u n ts s h o w in g th a t th e y h a d p e r fo r m e d t h e ir w o r k s u c c e s s fu lly .
I n a c ir c u m s t a n t ia l w a y , th ese a r tic le s w e r e a ll e v id e n c e t e n d in g to
s h o w th e e x e c u t io n o f th e w o r k o f th e c o n s p ir a t o r s a n d t o s h o w J . B .
M c N a m a r a ’s c o n n e c t io n th e r e w ith , a n d in c id e n t a lly th e c o n n e c t io n
o f S c h m id t w it h th e sa m e e n te r p r is e .
W e a re sa tisfie d th a t th e d e fe n d a n t r e c e iv e d a fa i r t r ia l a n d t h a t
h is c o n v ic t io n s h o u ld b e su sta in e d .
L a b o r O r g a n iz a t io n s — C o n s p ir a c y — S e c o n d a r y B o y c o t t — C om
p e l l i n g U s e o f U n io n L a b e l. — Justin Seubert, Inc., v . Reiff et al
Supreme Court o f New Y o rk , Trial Term , Onondaga County (<Jan
uary , 1917), 16h New Y ork Supplement , page 522.— T h e c o m p a n y
n a m e d su e d C h a r le s F . R e iff a n d o th e r s — a ll th e d e fe n d a n t s b e in g
e it h e r in d iv id u a ls o r v o lu n t a r y u n in c o r p o r a t e d a s s o c ia tio n s — f o r
a n in ju n c t io n a n d f o r d a m a g e s . A n in ju n c t io n w a s g r a n t e d a g a in s t
c e r ta in o f th e d e fe n d a n t s , a n d a r e fe r e e a p p o in t e d t o a s c e r ta in th e
a m o u n t o f d a m a g e s , w h ile as t o o t h e r d e fe n d a n t s th e c o m p la in t w a s
d ism iss e d . T h e c o m p la in t a lle g e d th a t th e d e fe n d a n t s c o m b in e d t o
c o m p e l th e u se o f th e u n io n la b e l u p o n c ig a r s m a n u fa c t u r e d b y th e
c o m p a n y , a n d t o e ffe c t th is d e s ig n b y u n la w fu l m e a n s. J u d g e
A n d r e w s , in th e o p in io n d e liv e r e d b y h im , s a id f o r th e m o s t p a r t :
I f th e o b je c t t o b e a tta in e d w a s in n o c e n t, a n d i f th e m e a n s u se d
w e r e a ls o in n o c e n t, th e r e w a s n o c o n s p ir a c y . T h e p la in t iff h a s n o
r e m e d y , h o w e v e r g r e a t ly it m a y b e d a m a g e d . T o s a y th a t b e ca u se o f
fe a r o f su ch d a m a g e s it w a s fo r c e d t o d o th is o r th a t, o r t h a t th e a cts
t h a t c a u se d th e d a m a g e s w e r e d o n e so it m ig h t b e fo r c e d t o a d o p t a
c e r t a in co u r s e , d o e s n o t a lte r t h is ru le . A t c iv il la w , w it h fe w e x c e p
t io n s , m a lic e d o e s n o t m a k e an a ct, o th e r w is e in n o c e n t, d o n e t o a c
c o m p lis h a r e s u lt o t h e r w is e le g a l, ille g a l, e v e n w h e n t w o o r m o r e jo i n
in th e a ct.
I m u s t fin d th a t c e r ta in o f th e d e fe n d a n t s d e s ir e d th e p la in t iff
t o u se th e u n io n la b e l a n d d id c e r ta in t h in g s t o e ffe c t t h a t d e s ig n .
T h e y m a y h a v e h a d o t h e r p u r p o s e s in m in d . T h is p u r p o s e , a lso ,
w a s b e h in d t h e ir a cts. B u t w a s th e d e s ig n it s e lf ille g a l? T h e u n io n
la b e l is o w n e d a n d c o n t r o lle d , b y th e C ig a r m a k e r s ’ I n t e r n a t io n a l
U n io n . A b o u t 10,000 fa c t o r ie s in th e U n it e d S ta te s, e m p lo y in g a b o u t
o n e -t h ir d o f a ll th e c ig a r m a k e r s a n d p r o d u c in g a n n u a lly s o m e t h in g
TEXT AND SUMMARIES OF DECISIONS.
137
lik e 3 0 ,0 0 0 ,0 0 0 b o x e s o f c ig a r s , h a v e e n te r e d in t o a n a g re e m e n t t o
u se th is la b e l. T h e la b e l it s e lf c e r t ifie s :
“ T h a t th e c ig a r s c o n t a in e d in th is b o x h a v e b e e n m a d e b y a fir s tcla ss w o r k m a n , a m e m b e r o f th e C ig a r m a k e r s ’ I n t e r n a t io n a l U n io n .”
T h e r u le s f o r th e u se o f th e la b e l a re th e n s u m m a r iz e d , a n d th e
o p in io n c o n t in u e s :
T h e c o n t e n t io n o f th e p la in t iff is th a t th e o b s e r v a n c e o f th e se r u le s
b y 10,000 m a n u fa c t u r e r s t h r o u g h a g re e m e n t w it h th e I n t e r n a t io n a l
U n io n c o n s titu te s a n u n la w fu l c o m b in a tio n in r e s tr a in t o f tr a d e .
C o n s e q u e n t ly th e sch e m e t o c o m p e l th e p la in t iff t o jo in in its u se is
a c o n s p ir a c y w it h in th e d e fin itio n s w h ic h I h a v e g iv e n . I c a n n o t
fin d a n y su fficien t b a s is f o r su ch c la im . T h e a u t h o r it y t o a d o p t s u ch
a la b e l is g iv e n t o th e u n io n s b y sta tu te. T h e v e r y p u r p o s e o f t h is
a u th o r iz e d u se is t o e n a b le p u r c h a s e r s t o d e te r m in e w h e th e r o r n o t
g o o d s e x p o s e d f o r sa le a re m a d e b y u n io n la b o r .
T h e m e a n s u se d t o e ffe ctu a te th e ir p u r p o s e s were th e n d is c u s s e d
b r ie fly , a n d s tr ik e s a n d p ic k e t in g w e r e s a id t o b e n o t in th e m s e lv e s
u n la w fu l. C o n t in u in g , th e c o u r t s a i d :
E ffo r t s w e r e m a d e t o p r e v e n t c u s to m e r s o f th e p la in t iff fr o m s e ll
in g its p r o d u c t s . T h is w a s d o n e b y p ic k e t in g in o n e in s ta n c e , b y
th e d is t r ib u t io n o f c a r d s c a llin g su ch c u s to m e r s u n fa ir , b y d is c i
p lin in g u n io n m e n w h o d e a lt w it h th e m , o r w h o w e r e e m p lo y e d b y
th e m , a n d s o ld th e p la in t iff’s g o o d s f o r th e m , a n d b y th r e a te n in g th o s e
c u s to m e r s w it h lo s s o f tra d e . I t is s a id th ese a cts v io la t e d b o t h th e
S ta te a n d th e U n it e d S ta te s sta tu tes.
A d is t in c t io n m u st b e d r a w n h ere. T h e s ta tu te o f N e w Y o r k e x
p r e s s ly sta tes th a t th e u n io n m a y a d o p t a d e v ic e “ f o r th e p u r p o s e o f
d e s ig n a t in g th e p r o d u c t s o f th e la b o r o f th e m e m b e r s t h e r e o f.*
L a b o r la w , sec. 15. I h a v e n o d o u b t th a t th e u n io n o w n in g th e la b e l,
o r a n y o n e else, m a y r e c o m m e n d th e p u r c h a s e o f g o o d s o n w h ic h it
is p la c e d , in p r e fe r e n c e t o o th e rs.
T h e t r o u b le a rise s i f a fu r t h e r ste p is ta k e n , a n d d e a le rs a re th r e a t
e n e d w it h lo ss o r in ju r y in ca se th e y s e ll e ith e r u n la b e le d g o o d s g e n
e r a lly o r su ch g o o d s m a d e b y a c e r ta in m a n u fa c tu r e r . T h a t m a y b e
an in ju r y t o c o m m e r c e — a n e ffo r t to c re a te a m o n o p o ly .
I t is tr u e th a t it m a y b e d iffic u lt t o sta te th e d is t in c t io n b e tw e e n
a p r im a r y a n d a s e c o n d a r y b o y c o t t . I u se th e w o r d “ b o y c o t t ” w it h
o u t a n y im p lic a t io n th a t it is in it s e lf a n d u n d e r a ll c ir c u m s ta n c e s
ille g a l. I t m a y b e sa id th a t, i f o n e m a y p e r s u a d e c u s to m e r s n o t to p a t
r o n iz e a c e r ta in d e a le r b e tw e e n w h o m a n d th e u n io n a q u a r r e l e x is ts ,
so o n e m a y p e r s u a d e c u s to m e r s n o t t o p a t r o n iz e o n e w h o d e a ls w it h
ih e first, a n d i f th is is la w fu l th e d e a le r h im s e lf m a y b e t o ld th a t
su ch a c o u r s e is t o b e a d o p te d . I t m a y b e s a id th a t th e sta tu te s
r e fe r r e d t o s im p ly c o d i f y th e c o m m o n la w a n d d o n o t m a k e w r o n g f u l
w h a t w a s n o t w r o n g fu l b e f o r e t h e ir a d o p tio n .
B u t o ft e n , w h e n it is s o u g h t t o d r a w a lin e b e tw e e n w h a t is p e r
m is s ib le a n d w h a t is fo r b id d e n , it is d iffic u lt t o sa y l o g ic a lly w h y a
c e r ta in a ct s h o u ld b e p la c e d o n th e o n e s id e o r th e o th e r . T h e c o u r t s
m u s t b e g o v e r n e d in t h e ir a c t io n b y c o m m o n sen se a n d c o n s id e r a t io n s
o f p u b lic p o lic y . A n a ct -m a y , w h e n c o m m it t e d in c o n c e r t w it h
o th e r s u n d e r c e r ta in c ir cu m s ta n ce s , ca u se s u c h in ju r y t o th e p u b lic ,
138
DECISIONS OF COURTS AFFECTING LABOR,
a n d m a y b e so u seless o r so u n fa ir th a t th e se c o n d it io n s w ill b e
d e c is iv e .
S u c h an a ct is a s e c o n d a r y b o y c o t t . I t m u s t b e h e ld t o b e an u n
l a w fu l in t e r fe r e n c e w it h t r a d e a n d c o m m e rc e . T h o s e w h o a g r e e t o
b r in g it a b o u t a re e n g a g e d in a c o n s p ir a c y . O n e in ju r e d b y it m a y
c o m e t o a c o u r t o f e q u ity f o r r e lie f.
W h o th e n e n g a g e d in th e c o n s p ir a c y h e re c o m p la in e d o f ? A s
a g a in s t m a n y o f th e d e fe n d a n t s th e re is n o t th e s lig h te s t p r o o f . A s
t o th e m th e c o m p la in t m u st b e d is m is s e d . B u t C ig a r m a k e r s ’ U n io n
N o . 6, th e C e n tr a l T r a d e s a n d L a b o r A s s e m b ly , D iv is io n 5 80 o f th e
S tr e e t C a r M e n , M a c h in is t s ’ U n io n N o . 381, C h a r le s F . R e iff, S a m u e l
C r o u s e , C h a r le s A . Y a te s , W illia m Z e ig le r , D e n n is a n d J o s e p h
C h a r le s a re in v o lv e d . T h e m e re fa c t th a t c e r t a in lo c a l u n io n s a re
m e m b e r s o f th e T r a d e s a n d L a b o r A s s e m b ly — th a t t h e y sen t d e le g a te s
t o th a t b o d y — d o e s n o t m a k e th e m p a r t ie s t o th e c o n s p ir a c y , i f th e y
t o o k n o a ffir m a tiv e a c t io n in th e m a tte r .
A s a g a in s t th e d e fe n d a n t s m e n tio n e d , t h e r e fo r e , th e p la in t iff is
e n t itle d t o a n in t e r lo c u t o r y ju d g m e n t c o n t in u in g th e in ju n c t io n so
f a r as is a b o v e in d ic a t e d , a n d a p p o in t in g a r e fe r e e t o d e te r m in e w h a t
d a m a g e s , i f a n y , th e p la in t iff h a s s u ffe r e d b y r e a s o n o f th e s o -c a lle d
secon d a ry b oy cott.
L a b o r O r g a n iz a t io n s — C o n t r a c t t o E m p lo y O n l y M e m b ers o f a
C e r t a in U n io n — I n d u c in g B r e a c h — Tracey et al. v . Osborne et al.,
Supreme Judicial Court o f Massachusetts (Jan. 26,1917), I l k N orth
eastern Reporter, page 959.— T h e p la in t iffs , m e m b e r s o f th e U n it e d
S h o e W o r k e r s o f A m e r ic a , su e d in e q u ity t o r e s t r a in th e d e fe n d a n t s ,
fo r m e r m e m b e r s o f th e sa m e u n io n , b u t n o w m e m b e r s a n d r e p r e
s e n ta tiv e s o f th e L a s t e r s ’ P r o t e c t iv e U n io n o f L y n n , t o r e s tr a in th e
d e fe n d a n t s fr o m c a u s in g e m p lo y e r s t o b r e a k a g re e m e n ts t o e m p lo y
m e m b e r s o f th e U n it e d S h o e W o r k e r s , a n d p a r t ic u la r ly f r o m c a ll
i n g a s tr ik e f o r t h a t p u r p o s e . J u d g e R u g g d e liv e r e d th e o p in io n ,
w h ic h firs t sta tes th e fa c t s in v o lv e d , a n d w h ic h is f o r th e m o s t p a r t
as f o l l o w s :
T h e ca se w a s se n t to a m a ste r, w h o s e fin d in g s so f a r as n o w m a te
r ia l a re th a t, f o r s e v e r a l y e a r s p r io r t o 1915, th e r e e x is te d in th e c it y
o f L y n n se v e r a l lo c a l b r a n c h e s o f th e U n it e d S h o e W o r k e r s . C o m
p o s e d orf th r e e d e le g a te s fr o m e a c h o f th e se b r a n c h e s w a s a s u b
o r g a n iz a t io n k n o w n as J o in t C o u n c il N o . 1, d e s ig n e d t o s e c u re c o n
c e n t r a t io n o f a u t h o r it y a n d e fficie n cy o f a d m in is t r a t io n . I t w a s
a u t h o r iz e d b y th e c o n s t it u t io n o f th e u n io n “ t o m a k e a g re e m e n ts
w it h m a n u fa c t u r e r s w h e n p r ic e s a n d c o n d it io n s a re s a t is fa c t o r y to
s a id jo i n t c o u n c il. S a id a g r e e m e n t [s i c ] t o b e o f a u n ifo r m n a tu r e
a n d t o b e is s u e d b y th e g e n e r a l e x e c u t iv e b o a r d .” I n th e e a r ly p a r t
o f 1915, a t th e in it ia t iv e o f o n e E n w r ig h t , th e p u b lis h e r o f a n e w s
p a p e r in L y n n , th e r e w a s a m o v e m e n t f o r th e p u r p o s e o f fo r m u la t in g
s o m e a g r e e m e n t b e tw e e n m a n u fa c t u r e r s a n d w o r k m e n t o p r o m o t e
in d u s t r ia l p e a ce . A s a r e s u lt a n a g r e e m e n t p o p u la r ly k n o w n as th e
“ P e a c e P a ct” was fr a m e d . T h e s e a g re e m e n ts , id e n t ic a l in fo r m ,
TEXT AND SUMMARIES OF DECISIONS.
139
e a c h t o b e s ig n e d b y a r e p r e s e n ta tiv e o f th e J o in t C o u n c il N o . 1 o f
th e U n it e d S h o e W o r k e r s , a n d b y s o m e m a n u fa c t u r e r w h o c h o s e to
a d o p t it, w e r e t o c o n tin u e in f o r c e o n e y e a r w it h s t ip u la t io n f o r
fu r t h e r e x te n s io n a n d p r o v id e d f o r th e a d ju s tm e n t o f a n y d iffe r e n c e s
t h a t m ig h t a r is e b e tw e e n th e c o n t r a c t in g p a r tie s a n d t h a t th e r e
s h o u ld b e n o s tr ik e s o r lo c k o u t s o r c e s s a tio n o f w o r k p e n d in g a d e c i
s io n as t o d iffe r e n c e s , a n d th a t a ll w o r k o f th e e m p lo y e r in c e r ta in
d e s ig n a te d r o o m s a n d d e p a r tm e n ts s h o u ld b e d o n e b y m e m b e r s o f
th e U n it e d S h o e W o r k e r s , a n d th a t, so l o n g as th e r e w a s a su fficien t
n u m b e r o f th ese t o d o th e w o r k , n o o th e r h e lp b e e m p lo y e d . O t h e r
c la u se s r e g u la te d d iffe r e n t a sp e cts o f th e r e la tio n s b e tw e e n th e e m
p lo y e r a n d th e m e m b e r s o f th e p la in t iff u n io n .
T h e m a ste r fo u n d t h a t th e a g re e m e n ts w e r e p r e p a r e d a n d e x e c u te d
in th e m a n n e r a n d b y th e a g e n c ie s p r o v id e d b y th e c o n s t it u t io n o f
th e U n it e d S h o e W o r k e r s .
T h e c o n t r a c t in its g e n e r a l o u tlin e s is s im ila r t o th a t h e ld le g a l
in H o b a n v. D e m p s e y , 2 17 M a ss. 166, 104 N . E . 7 1 7 [B u i. N o . 169,
. 3 0 3 ]. I n t h is a s p e c t th e ca se a t b a r is g o v e r n e d b y t h a t d e c is io n ,
t is p u t t in g in th e f o r m o f an a g r e e m e n t a s t ip u la t io n t h a t o n e
n a m e d la b o r u n io n s h a ll h a v e , so l o n g as it is a b le t o d o it, a ll th e
w o r k o f a p a r t ic u la r e m p lo y e r , a d e m a n d h e ld t o b e w it h in th e lim it s
o f a llo w a b le c o m p e t itio n in P ic k e t t v . W a ls h , 192 M a ss. 572, 584,
78 N . E . 753 [B u i. N o . 70, p . 7 4 7 ]. T h e c o n t r a c t d o e s n o t a p p e a r
t o h a v e b e e n m a d e f o r th e p u r p o s e o f in ju r in g th e d e fe n d a n t s , w h o
th e n w e r e m e m b e r s o f th e p la in t iff u n io n , o r f o r a n y p u r p o s e o t h e r
th a n th e m u tu a l a d v a n ta g e o f th e c o n t r a c t in g p a rtie s . I t w a s e n te r e d
in t o fr e e ly a n d n o t u n d e r c o m p u ls io n o r c o e r c io n . I t w a s n o t e n
te r e d in t o w it h a p u r p o s e t o h a r m a n y b o d y . T h is d o e s n o t i n fr in g e
u p o n th e p r in c ip le s e s ta b lis h e d in B e r r y v. D o n o v a n , 188 M a ss. 3 53,
7 4 N . E . 603 [B u i. N o . 60, p . 7 0 2 ], a n d S h in s k y v . T r a c e y , 114 N . E .
9 57 [se e p . 1 4 2 ], f o r d e c is iv e fa c t s th e re p re s e n t a re n o t fo u n d in th e
ca se a t b ^ r.
T h e fin d in g th a t th e d e fe n d a n t s h a v e s o u g h t t o e x e r t p re s s u r e u p o n
s o m e o f th e e m p lo y e r s to b r e a k t h e ir c o n t r a c ts o f e m p lo y m e n t w it h
m e m b e r s o f th e p la in t iff u n io n is d ir e c t a n d u n e q u iv o c a l a n d is s u p
p o r t e d b y a m p le fa c t s set f o r t h in th e r e p o r t . S u c h c o n d u c t w a s a
c le a r in v a s io n o f r ig h t s o f th e p la in t iff f o r w h ic h th e la w w ill p r o
v id e a r e m e d y . [C a s e s c it e d .]
T h e r ig h t s s e c u re d t o th e p la in t iffs u n d e r th e ir c o n tr a c ts a re su ch
as a re p r o t e c t e d in th e o r d in a r y ca se b y in ju n c t io n . T h is p r in c ip le
o ft e n h a s b ee n a p p lie d t o la b o r ca ses a n d is p e r tin e n t to th e fa c t s
h e re d is c lo s e d . [C a s e s c it e d .]
S in c e th e c o n tr a c ts b e tw e e n th e m a n u fa c t u r e r s a n d th e U n it e d
S h o e W o r k e r s w e re fo u n d v a lid a n d la w fu l, th e d e c r e e g r a n t in g an
in ju n c t io n a g a in s t in t e r fe r e n c e w it h th o s e c o n t r a c ts w a s a ffirm ed .
?
L a b o r O r g a n iz a t io n s — E x p u ls io n
C o u r t — Fates v . Musicians' Protective
of
M em b er— A p p e a l
to
Union, Local 198, American
Federation o f Musicians, et al., Supreme Court o f Rhode Island
(Feb. 14, 1917), 99 A tlantic Reporter , page 823.— W a r r e n R . F a le s
140
DECISIONS OF COURTS AFFECTING LABOR.
b r o u g h t su it in e q u ity a g a in s t th e fe d e r a t io n n a m e d , p r a y in g t h a t
its o r d e r s fin in g a n d e x p e llin g h im b e d e c la r e d v o id , a n d f o r a n in
ju n c t io n . F a le s w a s d ir e c t o r o f th e A m e r ic a n B a n d . A t r a v e lin g
b a n d c o m m itte e h a s a u t h o r it y , u n d e r th e la w s o f th e fe d e r a t io n , t o
t r y m e m b e r s f o r v io la t io n o f c e r t a in b y -la w s . F a le s w a s c h a r g e d
w it h h a v in g v io la t e d , d u r in g th e su m m e r sea son o f 1 917, s e c tio n D
o f A r t ic le V o f th e t r a v e lin g b a n d la w s o f th e fe d e r a t io n , b y p a y
i n g t o th e m e m b e r s o f h is b a n d less th a n th e p r ic e s tip u la te d in t h a t
s e c tio n , a n d o f c o n s p ir in g w it h th e m e m b e r s o f th e b a n d t o v io la t e
s e c tio n L o f A r t ic le V , r e la t in g to th e p r o v id i n g o f s le e p in g a c c o m
m o d a tio n s .
M r . F a le s w a s n o t ifie d th a t h is t r ia l b e f o r e th e t r a v e lin g b a n d c o m
m itte e w o u ld b e g in o n F r id a y , M a r c h 21, 1913. H e a p p e a r e d , a n d
r e q u e ste d t o b e r e p r e s e n te d b y c o u n s e l, t o b e c o n f r o n t e d w it h th e
w itn e s s e s a g a in s t h im , a n d to h a v e o p p o r t u n it y t o c r o s s -e x a m in e
th e m . H e w a s in fo r m e d th a t th e la w s o f th e fe d e r a t io n d id n o t
a llo w c o u n s e l in su ch ca ses, f o r e ith e r r e s p o n d e n ts o r th e c o m m it
t e e ; th is p h a se o f th e m a tte r d o e s n o t a p p e a r t o h a v e b e e n p re s s e d
e x c e p t as i t b e a rs o n th e g e n e r a l q u e s tio n o f a p r o p e r t r ia l. A f t e r
a p a r t o f F a le s ’s te s t im o n y h a d b e e n ta k e n , h e s ta te d t h a t h e w a s
o b lig e d t o le a v e , a n d d id so, th e t r ia l b e in g c o n t in u e d , a n d s te n o
g r a p h ic n o te s o f th e t e s t im o n y ta k e n a n d a n a b s tr a c t fu r n is h e d h im .
O n S a t u r d a y m o r n in g h e fu r n is h e d a m e d ic a l c e r tific a te t h a t h is
w i f e w a s v e r y s ic k a n d h is p re s e n ce w a s r e q u ir e d a t h o m e . T h e
t r ia l w a s c o n t in u e d o n t h a t d a y a n d S u n d a y , w it h o u t n o t ific a t io n t o
h im th a t it w o u ld b e c o n d u c t e d o n S u n d a y .
O n M o n d a y h e r e q u e ste d th a t i t b e p o s t p o n e d u n t il a ft e r th e c lo s e
o f a s u p e r io r c o u r t t r ia l in w h ic h h e w a s d e fe n d a n t a n d w h ic h
o p e n e d o n t h a t d a y . T h is re q u e st w a s r e fu s e d , a n d th e t r ia l w e n t
o n w it h o u t h is p re s e n ce . O n W e d n e s d a y th e ju d g e o f th e s u p e r io r
c o u r t s u s p e n d e d th a t t r ia l f o r th e d a y , b u t F a le s d id n o t a p p e a r
b e f o r e th e c o m m itte e , a n d th e c o m m it t e e ’s h e a r in g s w e r e c o n c lu d e d
o n t h a t d a y . H e d id n o t ta k e a n a p p e a l t o th e fe d e r a t io n . T h e r e
w a s te s t im o n y t o s h o w t h a t a ft e r h is e x p u ls io n m e m b e r s o f th e
u n io n w o u ld n o t w o r k w it h h im a n d th a t h e lo s t o p p o r t u n it ie s t o
c o n d u c t th e A m e r ic a n B a n d , as it t o o k s o m e e n g a g e m e n ts w it h
a n o th e r le a d e r. T h e c o u r t h e ld th a t h e h a d n o t b e e n g r a n t e d a f a i r
t r ia l, a n d th a t th e fin d in g s o f th e b a n d c o m m itte e w e r e v o id . I t
t h e r e fo r e a ffirm ed th e d e c r e e o f th e s u p e r io r c o u r t g r a n t in g to F a le s
th e r e lie f p r a y e d f o r . J u d g e J o h n s o n d e liv e r e d th e o p in io n , f r o m
w h ic h th e f o l l o w i n g is q u o t e d :
A s is im p lie d in th e a u th o r itie s , w h e re th e p r o c e e d in g is n o t p u r
su a n t to th e r u le s a n d la w s o f th e s o c ie t y , o r th e p r o c e e d in g w a s n o t
in g o o d fa it h , o r w h e r e th e re is a n y t h in g in th e p r o c e e d in g in v i o l a
tio n o f th e la w s o f th e la n d , so a s t o r e n d e r th e p r o c e e d in g v o id , th e
141
TEXT AND SUMMARIES OF DECISIONS.
e x h a u s tio n o f th e r e m e d y b y a p p e a l w it h in th e s o c ie t y is n o t
n e ce s s a r y .
W e d o n o t th in k th a t th e n o t ic e to a p p e a r b e fo r e th e c o m m itte e o n
W e d n e s d a y , M a r c h 26, w h e n th e c o u r t t o o k a re ce ss t o e n a b le th e
ju d g e t o a tte n d a fu n e r a l a ffo r d e d a n o p p o r t u n it y t o M r . F a le s w h ic h
c u r e d w h a te v e r o f ille g a lit y th e re h a d b e e n in th e p r o c e e d in g s u p
t o th a t tim e . H is re q u e st f o r a c o n tin u a n c e t ill th e e n d o f th e tr ia l
h a d b ee n ig n o r e d . T h e c o m m itte e h a d c o n t in u e d w ith th e h e a r in g
w h e n h is ca se in c o u r t w a s o n tr ia l, o n th e a s s u m p tio n , n o t b o r n e
o u t b y th e e v id e n c e , th a t it w a s n o t o n t r ia l o n M o n d a y , a n d w it h
f u ll k n o w le d g e th a t it w a s o n t r ia l o n T u e s d a y . I t h a d p r o c e e d e d
w it h its t r ia l o n S u n d a y w it h o u t n o t ic e t o h im . I t c o u ld n o t seize
u p o n an o c c a s io n w h e n an u n e x p e c te d h a p p e n in g ca u se d a b r e a k in
th e c o n t in u it y o f th e t r ia l in c o u r t t o su m m o n th e c o m p la in a n t t o
a p p e a r b e fo r e th e c o m m itte e a n d c o n c lu d e h is te s tim o n y , a n d th e r e b y
v a lid a t e th e v io la t io n s o f th e c o m p la in a n t ’s r ig h t in v o lv e d in th e
p r e v io u s p r o c e e d in g s . T h e o p p o r t u n it y t o a p p e a r b e fo r e th e c o m
m itte e o n W e d n e s d a y t o c o m p le te h is t e s tim o n y w a s n o t su fficien t t o
c u r e h is la c k o f o p p o r t u n it y t o be c o n fr o n t e d w it h a n d t o c r o s s e x a m in e th e w itn e s se s o n th e d a y s w h e n th e t r ia l b e f o r e th e c o m
m itte e p r o c e e d e d in h is a b se n ce o n S u n d a y , M o n d a y , a n d T u e s d a y .
T h e p r e s id in g ju s t ic e c o r r e c t ly a b sta in e d fr o m a n y fin d in g u p o n
th e m e rits o f th e ca se o n t r ia l b e fo r e th e t r a v e lin g b a n d c o m m itte e ,
a n d b a s e d h is d e c is io n o n ly o n th e p r o c e d u r e o f th e c o m m itte e in th e
tr ia l.
I n o u r o p in io n th e p r e s id in g ju s t ic e d id n o t e r r in h o ld in g th a t
th e fin d in g s o f th e t r a v e lin g b a n d c o m m itte e o n th e t r ia l b e fo r e it
w e r e v o id , a n d t h a t t h e r e fo r e th e c o m p la in a n t w a s e x e m p te d fr o m
e x h a u s t in g h is r e m e d y w it h in th e fe d e r a t io n b y a p p e a l.
L a b o r O r g a n iz a tio n s — E x p u ls io n
of
M em ber— C o n sp ira c y — L i a -
St. Louis Southwestern
R y. Co. o f Texas v. Thompson et al., Court o f Appeals o f Texas
(Feb. 22,1917), 192 Southwestern Reporter, page 1095.— T h e suit o f
B iL iT r o f
W. Z .
C om pan y P r o c u r in g E x p u ls io n —
T h om pson against the railroad com pany nam ed, the G ran d
Intern ational B roth erh ood o f Locom otive E n gineers, and certain
in dividu al defendants, to recover dam ages fo r w ro n g fu lly and m a li
ciously causing h im to be expelled fro m the brotherhood came to
the court o f civ il appeals on th is occasion on the th ird appeal.
P re
108 S . W . 4 5 3 , and 113 S . W . 144,
608, and B u i. N o . 80, p. 176. T h e
vious decisions were reported in
and noted in B u i.
N o . 78,
p.
charges m ade against T h o m p so n at the tim e o f his expulsion were
that he advised a w idow to sue a railroad com pany fo r the death
o f her husband, and th at he testified in another case against a ra il
road com pany, to the detrim ent o f the brotherhood.
The
m ost
im portan t questions o f law were determ ined in the previous deci
sions.
T h e ju d gm en t appealed fro m at this tim e was rendered a fter
a verdict in w hich the ju r y m ade certain findings and assessed actual
142
DECISIONS OF COURTS AFFECTING LABOR.
d a m a g e s a m o u n t in g t o $ 5 0 0 a g a in s t th e r a ilr o a d c o m p a n y a n d
e x e m p la r y d a m a g e s in th e su m o f $ 2 5 0 a g a in s t th e b r o t h e r h o o d ,
$ 1 ,2 5 0 a g a in s t th e r a ilr o a d c o m p a n y , a n d $ 5 0 a g a in s t e a c h o f th e
th r e e in d iv id u a l d e fe n d a n t s w h o w e r e s till liv in g .
I t w a s d e c id e d t h a t th e a c t io n o f th e b r o t h e r h o o d in e x p e llin g
T h o m p s o n f o r th e re a s o n s a s s ig n e d w a s w r o n g fu l a n d n o t in g o o d
fa it h , so t h a t it w a s lia b le , a n d c o u ld b e su e d e v e n t h o u g h i t w a s
a v o lu n t a r y o r g a n iz a t io n a n d th e in d iv id u a ls c o m p o s in g it w e r e
n o t m a d e p a r t ie s ; a lso th a t th e q u e s tio n o f e x ce ssiv e n e ss o f d a m
a g e s r a is e d b y th e r a ilr o a d c o m p a n y w a s fo r e c lo s e d b y a p r e v io u s
d e c is io n th a t a s t ill la r g e r v e r d ic t w a s n o t too g r e a t .
Labor
O r g a n iz a tio n s — E x p u ls io n
of
w i t h E m p lo y m e n t — B o y c o t t — D am ages —
M em ber— I n t e r f e r e n c e
ShinsJcy v . Tracey et al.,
Supreme Judicial Court o f Massachusetts {Jan. 26,1917),
N orth
eastern Reporter, page 957.— T h is w a s a n a c t io n b y D a v i d S h in s k y
114
a g a in s t M ic h a e l T r a c e y a n d o th e r s f o r an in ju n c t io n a n d f o r th e
d a m a g e s r e s u lt in g t o h im f r o m h is e x p u ls io n f r o m th e U n it e d S h o e
W o r k e r s a n d th e su b se q u e n t lo s s o f h is e m p lo y m e n t a n d in a b ilit y t o
se cu re o t h e r w o r k a t h is tr a d e . A m a s te r h a d m a d e a r e p o r t a ssess
in g th e a m o u n t o f d a m a g e s , b u t th e s u p e r io r c o u r t o f E s s e x C o u n t y
d is m is s e d th e b ill. T h is d e c is io n w a s r e v e r s e d a n d a d e c r e e o r d e r e d
in a c c o r d a n c e w it h th e m a s te r ’s r e p o r t . J u d g e B r a le y d e liv e r e d
th e o p in io n o f th e c o u r t , as f o l l o w s :
B y b e c o m in g a m e m b e r o f th e v o lu n t a r y a s s o c ia tio n k n o w n as “ th e
U n it e d S h o e W o r k e r s o f A m e r ic a ” th e p la in t iff e n g a g e d t o b e b o u n d
b y its r u le s a n d s u b je c t e d h im s e lf t o its d is c ip lin e . [C a s e s c it e d .]
A n d th e t r ia l f o r a lle g e d in fr a c t io n o f h is o b lig a t io n s h a v in g b e e n
c o n d u c t e d as th e m a s te r fin d s in a c c o r d a n c e w it h th e c o n s t it u t io n ,
h is e x p u ls io n is n o t r e v ie w a b le a n d th e b ill as a m e n d e d c a n n o t be
m a in ta in e d u n d e r th e fir s t p r a y e r , th a t th e d e fe n d a n t s b e e n jo in e d
u f r o m e x c lu d in g h im f r o m a ccess t o t h e ir m e e tin g s a n d f r o m m e m
b e r s h ip .” B u t u p o n s e v e r a n c e h is in te re s t in th e fu n d s a n d p r o p e r t y
o f th e a s s o c ia tio n e n d e d , n o r w a s h e b o u n d b y th e p u r p o s e s , o r
a m e n a b le t o th e p e n a l c o d e o f th e b o d y w it h w h ic h h e h a d b e e n
a ffilia te d , a n d in so f a r as th e d e fe n d a n t s w e r e c o n c e r n e d h is r ig h t to
d is p o s e o f h is o w n la b o r a c c o r d in g t o h is o w n w ill h a d n o t b e e n
a b r o g a te d o r r e s tr ic te d . [C a s e s c it e d .]
T h e firs t p a r a g r a p h o f th e a m e n d e d b i ll a lle g e s a n d th e a n s w e r
.a d m its, t h a t w h e n e x p e lle d h e h a d b e e n e m p lo y e d a t la s t in g sh o e s in a
lo c a l f a c t o r y f o r n e a r ly e ig h t y e a r s ; a n d th e m a s te r r e p o r t s t h a t h is
w o r k b e in g s a t is fa c t o r y , h e w o u ld h a v e b e e n r e ta in e d e x c e p t f o r th e
c o n c e r t e d a c t io n a n d c o n d u c t o f th e d e fe n d a n ts . T h e d o m in a n t p u r
p o s e a n d c o n t r o llin g m o tiv e in p r o c u r in g h is d is c h a r g e s h o r t ly a ft e r
e x p u ls io n , as w e ll as h is d is c h a r g e w h e n h e s u b s e q u e n tly o b t a in e d
e m p lo y m e n t w it h a n o th e r s h o e c o m p a n y w h ic h k n e w t h a t h e w a s n o
lo n g e r a m e m b e r o f th e U n it e d S h o e W o r k e r s , is fo u n d t o h a v e b e e n ,
TEXT AND SUMMABIES OF DECISIONS.
143
u t o p u n is h h im a n d h o ld h im u p as a n e x a m p le b e f o r e t h e ir m e m b e r
s h ip ,” a n d th e le tte r s w h ic h th e y c a u s e d t o b e se n t w e r e “ t o in d u c e
th e p la in t iff’s e m p lo y e r in e a c h in s ta n c e t o d is c h a r g e ” h im . T h e
ju s t ific a t io n p le a d e d m th e s ix t h p a r a g r a p h o f th e a n s w e r is, th a t th e
p la in t iff “ h a d b e e n a p a r t y t o an a g r e e m e n t a c o p y o f w h ic h is h e r e to
a n n e x e d , a n d th a t th e e m p lo y e r s m e n tio n e d b y h im in h is b i ll o f
c o m p la in t w e r e a lso p a r tie s t o s a id a g r e e m e n t ; th a t th e p la in t iff
v io la t e d h is a g re e m e n t a n d th a t i f a n y a c tio n w a s ta k e n b y h is
e m p lo y e r o r a n y o t h e r p e r s o n w h ic h r e s u lte d in in ju r y t o h im ,
* * * s a id a c t io n w a s th e d ir e c t r e s u lt o f h is o w n u n la w fu l a cts
in v io la t in g a n d r e p u d ia t in g h is a g r e e m e n t.”
I t is u n n e c e s s a ry t o p a ss o n th e v a lid it y o f th e a g re e m e n t w h ic h is an
in s tr u m e n t u n d e r sea l, o r t o d e c id e w h e th e r th e m a n u fa c t u r e r s o r
th e m e m b e r s o f th e a s s o c ia tio n c o u ld h a v e c o m p e lle d s p e c ific p e r
fo r m a n c e , f o r in th e lig h t o f th e fin d in g s q u o te d th is d e fe n s e v a n ish e s.
I t is tr u e th a t th e fift h , a n d in th is c o n n e c t io n th e im p o r t a n t ,
a r t ic le o f th is a g re e m e n t o r “ P e a c e P a c t ” e n te r e d in t o b y th e a s s o
c ia t io n w h e n th e p la in t iff w a s a m e m b e r a n d c e r ta in sh o e m a n u fa c
t u r e r s in c lu d in g h is e m p lo y e r s p r o v id e s , th a t “ * * * so lo n g as
th e se lo c a l u n io n s a re in a p o s it io n t o fu r n is h h e lp t o d o th e w o r k n o
o th e r h e lp m a y b e e m p lo y e d .” T h e d e fe n d a n t s n e v e rth e le ss w e r e n o t
s e e k in g its p r o t e c t io n f o r th e e c o n o m ic p u r p o s e o f fu r n is h in g w o r k
f o r th e ir o w n m e m b e r s, w h e re i f th is w e r e n o t d o n e th e re w o u ld n o t
b e e n o u g h w o r k t o k ee p th e m e m p lo y e d , w h ic h w a s th e m o tiv e u n
d e r ly in g th e s tr ik e d e c id e d t o b e la w fu l in M in a s ia n v. O s b o r n e , 2 1 0
M a ss. 2 50, 96 N . E . 1036 [B u i. N o . 99, p . 7 2 7 ]. N o r w e r e t h e y a c t u
a te d b y a d e s ire t o c o n s e r v e a n d p r o m o t e th e w e lfa r e o f th e p la in t iff
a n d h is e m p lo y e r s t h r o u g h th e o ffe r o f fr ie n d ly a d v ic e . B u t t o p r e
serv e a n d t o c o m p e l d is c ip lin e in t h e ir o w n r a n k s th e y in t e n d e d t o
p r o s c r ib e th e p la in t iff, w h o h a d b e c o m e a m e m b e r o f a r iv a l o r g a n i
z a t io n a n d b u sin e ss c o m p e t it o r o f th e a s s o cia tio n . I t m a y b e a d d e d ,
th a t at th e d a te o f th e a g re e m e n t th e p la in t iff h a d b ee n e m p lo y e d
f o r m a n y y e a r s u n d e r a c o n tr a c t a t w ill w h ic h d o e s n o t a p p e a r t o
h a v e b ee n d e p e n d e n t u p o n a c o n d it io n th a t h e s h o u ld b e a n d r e m a in
a m e m b e r o f a n y o r g a n iz a t io n . T h e p la in t iff’s e x p u ls io n d id n o t
a u t o m a t ic a lly te r m in a te th is e m p lo y m e n t , a n d h is c o n tin u a n c e a t h is
w o r k u n t il r e t ir e d s o le ly t h r o u g h th e ir e ffo r ts d id n o t as b e tw e e n
th e m se lv e s c o n s titu te a b r e a c h o f th e p e a ce p a c t o r a g re e m e n t f o r
w h ic h h e w o u ld b e lia b le t o th e d e fe n d a n t s in d a m a g e s . [C a s e s
c it e d .]
T h e r e p o r t w h ile ’ s t a t in g th a t th e p la in t iff h a s lo s t th e b e n e fit o f
h is c o n tr a c ts o f e m p lo y m e n t g o e s fu r t h e r . I t is s p e c ific a lly fo u n d
“ th a t b y r e a s o n o f th e c o n t r o l w h ic h th e d e fe n d a n t s a n d th e ir
o r g a n iz a t io n e x e r c is e o v e r th e sh o e in d u s t r y o f th e c it y o f L y n n it
w ill b e im p o s s ib le f o r th e p la in t iff t o o b t a in w o r k w it h a t le a st
n in e ty p e r c e n t o f th e sh o e m a n u fa c tu r e r s o f L y n n in w h ic h th e
la b o r is c o n t r o lle d b y th e U n it e d S h o e W o r k e r s o f A m e r ic a a n d f u r
th e r as a m a r k e d m a n it is h ig h ly im p r o b a b le th a t h e c o u ld o b ta in
a n d k e e p e m p lo y m e n t in th e r e m a in in g te n p e r c e n t o f th e sh o e
fa c t o r ie s o f L y n n .”
T h e p la in t iff m a n ife s t ly is a s u ffe r e r fr o m th e co n s e q u e n ce s o f an
in te n tio n a l a n d a s u c c e s s fu l b o y c o t t . I f h e h a d ce a se d t o w o r k a t h is
c a llin g a n d h a d e n g a g e d in t r a d e th e a tte m p t t o d e p r iv e h im o f h is
cu s to m e r s a n d t o d e s t r o y h is b u sin e ss b y th e m e th o d s d e s c r ib e d
144
*
DECISIONS OF COURTS AFFECTING LABOE.
w o u ld h a v e b e e n u n d e r th e m a s te r ’s fin d in g s a n a c tio n a b le w r o n g .
B u r n h a m v. D o w d , 2 1 7 M a ss. 3 5 1 ,1 0 4 N . E . 841 [B u i. N o . 169, p . 2 7 0 ].
T h e r ig h t t o a c q u ir e p r o p e r t y b y la b o r is c o e q u a l w it h th e r ig h t
t o a c q u ir e p r o p e r t y b y c o n t r a c t, a n d , h a v in g th e sa m e r ig h t t o se ll
h is la b o r as h e w o u ld h a v e h a d t o sell h is m e r c h a n d is e t o th e h ig h e s t
b id d e r , it is n o less a n a c t io n a b le w r o n g w h e re th e r ig h t t o h is h a n d i
w o r k as a m e a n s o f su b s is te n ce h a s b e e n m a le v o le n t ly ta k e n a w a y
o r im p a ir e d u n d e r in d u s t r ia l c o n d it io n s w h ic h th e d e fe n d a n t s k n e w
w o u ld so o p e r a t e as t o m a k e h is fu r t h e r e m p lo y m e n t in th e c o m
m u n it y w h e r e h e re s id e s e x tr e m e ly p r e c a r io u s i f n o t p r a c t ic a lly
im p o s s ib le . [C a s e s c ite d . 1 W h ile it is a p p a r e n t u p o n th e r e c o r d
th a t th e p la in t iff c a n n o t b e e ffe c t iv e ly a id e d b y in ju n c t iv e r e lie f h e
is e n title d t o d a m a g e s. [C a s e s c it e d .] T h e d e cr e e d is m is s in g th e
b ill is r e v e r s e d a n d a d e cr e e is t o b e e n te r e d f o r th e a m o u n t a ssessed
b y th e m a ste r.
L a b o r O r g a n iz a tio n s — E x p u ls io n o f M em ber— P o w e r s o f O f f i
c e rs —
Pratt v . Amalgamated Association o f Street and Electric
Railway Em ployees o f Am erica et al., Supreme Court o f Utah {O ct.
4 , 1917) , 167 Pacific R eporter , page 830.— C la r e n c e O . P r a t t b r o u g h t
a c t io n a g a in s t th e a s s o c ia tio n n a m e d f o r m a n d a m u s t o b r in g a b o u t
h is re in s ta te m e n t as a m e m b e r . P r a t t h a d b e e n f o r s e v e r a l y e a r s a
m e m b e r o f th e lo c a l d iv is io n a t D e t r o it , a n d h a d b e e n a m e m b e r o f
th e g e n e r a l e x e c u t iv e b o a r d o f th e a s s o c ia tio n . I n S e p te m b e r , 1911,
d e s ir in g t o b e c o m e a m e m b e r o f th e d iv is io n a t P h ila d e lp h ia , h e
s e c u r e d a w it h d r a w a l c a r d , a n d , o n p r e s e n tin g th e sa m e t o th e P h i la
d e lp h ia d iv is io n , th e b y -la w s w e r e s u s p e n d e d a n d h e w a s a d m itte d
a n d e le c te d b u sin e ss a g e n t. T h e e x e c u tiv e b o a r d , a c t in g u p o n a
p r o t e s t file d w it h it, b u t w it h o u t a h e a r in g , r u le d t h a t th e b y -la w s
w e r e im p r o p e r ly s u s p e n d e d , a n d P r a t t w it h d r e w fr o m h is p o s it io n
as b u sin e ss a g e n t. H e a tte m p te d t o a p p e a l t o th e b ie n n ia l g e n e r a l
c o n v e n t io n o f th e a s s o c ia tio n , b u t th e a p p e a l w a s n o t c o n s id e r e d .
H i s p e t it io n f o r a w r it o f m a n d a m u s w a s d is m is s e d b y th e d is t r ic t
c o u r t o f S a lt L a k e C o u n t y , a n d th e s u p r e m e c o u r t a ffirm ed th is d e
c is io n . J u d g e F r ic k d e liv e r e d th e o p in io n , a n d q u o te d th e o p in io n
o f th e c o u r t b e lo w as s u m m a r iz in g th e im m e n se b u lk o f e v id e n c e ,
la r g e ly ir r e le v a n t , fo u n d u p o n th e r e c o r d . F o ll o w i n g th is h e s a id
in p a r t :
W h ile p la in t iff in s is ts th a t h is r ig h t s h a v e b e e n t r a m p le d u p o n
a n d ig n o r e d b y r e a so n th a t h e w a s n o t p e r m it t e d t o p re s e n t h is a p
p e a l t o th e c o n v e n t io n h e ld a t S a lt L a k e C it y , U t a h , as b e f o r e sta te d ,
y e t w h a t h e a sk e d th e t r ia l c o u r t t o d o , a n d w h a t h e d e m a n d s a t
o u r h a n d s , is, th a t th e d e fe n d a n t s b e r e q u ir e d t o r e in s ta te h im as a
m e m b e r in g o o d s t a n d in g o f L o c a l D iv is io n N o . 47 7 as w e ll as a m e m
b e r in g o o d s t a n d in g o f th e a s s o c ia tio n a t la r g e .
C o u r ts m a y n o t in t e r fe r e w it h th e a cts a n d p r o c e e d in g s o f th e offi
c e rs o f b e n e fic ia l s o c ie tie s o r a s s o c ia tio n s t o th a t e x te n t. W h a t th e
c o u r t s a r e a u t h o r iz e d t o d o , a n d w h a t t h e y w ill d o , in t h a t r e g a r d is
145
TEXT AND SUMMARIES OF DECISIONS.
t o c o m p e l th e o ffice rs o f s u ch a s s o c ia tio n s , a n d th e a s s o c ia tio n s th e m
se lv e s, t o c o n d e m n n o m e m b e r a n d n o t t o f o r f e i t h is p r o p e r t y o r
h is p r o p e r t y r ig h t s w it h o u t a h e a r in g o r a n o p p o r t u n it y t o b e h e a r d
in h is d e fe n s e a c c o r d in g t o th e la w s a n d r u le s o f th e a s s o c ia tio n , a n d
i f th e r e a re n o su ch r u le s th e c o u r t w ill im p ly o r c re a te su ch . W h e n
su ch a n o p p o r t u n it y is g iv e n , h o w e v e r , a n d th e c o m p la in in g m e m
b e r h a s b e e n t r ie d a n d c o n d e m n e d , o r h a s b e e n d e c la r e d in e lig ib le in
a c c o r d a n c e w it h th e la w s a n d r u le s o f th e o r d e r o r a s s o c ia tio n , a n d
th e a cts o f th e officers o f th e a s s o c ia tio n in th a t b e h a lf a re fr e e f r o m
fr a u d o r d u re ss, c o u r ts m a y n o t in t e r fe r e .
L a b o r O r g a n iz a tio n s — I n t e r f e r e n c e w i t h C o n t r a c t o f E m p lo y
m ent—
U n io n iz in g E m p lo y e e s W h o
H ave
A greed
N o t to
J o in
Hitchman Goal & Coke Co. v. M itchell et al.9
Supreme Court o f the United States (Dec. 10, 1917), 38 Supreme
Court R eporter , page 65.— T h is suit was brough t in 1 907 to restrain
U n io n — I n j u n c t i o n —
the defendants fro m in terferin g w ith the co m p an y ’s em ployees in
an attem pt to organize the m ine by indu cin g them to jo in the U n ite d
M in e W o rk ers o f A m erica .
D ecisions o f the low er F ed eral courts
arisin g therefrom are reported
1 3 7 ),
and
21 4
F ed .
685
202 F ed . 512
169, p. 3 1 5 ).
(see B u i. N o .
(B u i. N o .
152, p.
152
I n B u lletin N o .
the facts leadin g up to the suit are given quite fu lly , and they are
review ed in the opinion o f the Suprem e C ourt.
I t appeared th at
certain defendants nam ed in the bill h ad not been served w ith proc
ess, being no lon ger officers o f the U n ited M in e W o r k e r s, and the
court held th at they were elim inated as factors in the case.
The
rem ainder were at the tim e o f the b rin g in g o f the suit officers and
leaders o f th e:union.
T h e H itch m an m in e was operated u nonunion ”
fro m the tim e it was opened in
came unionized.
1902
un til A p r il,
1903,
when it be
Strikes occurred between that tim e and
1906,
re
su ltin g fro m disputes h av in g no relation to the affairs o f the operator
or em ployees o f this p articu lar m ine or section.
A p r il
15, 1906,
A
strike was called
as a consequence o f the failu re o f the officers o f the
union to sanction the m a k in g o f an agreem ent by the m iners th em
selves w ith the com pany, a fter the expiration o f the term fo r w hich
a previous w age scale had been effective.
O n the request o f the
m iners in June to be allow ed to go back to w ork, it was agreed that
they should do so on a nonunion basis, and at th at tim e and there
after each m an hired agreed th at he w ould not join the union as
lon g as he continued in the com p an y’s em ploy, w hile the com pany
ii greed th at it w ou ld pa y the same w ages as the union m ines, but
would run the m ine nonunion.
I n Jan u ary,
1907,
the international
convention o f the U n ited M in e W o rk ers favored a po licy o f sup
p o rtin g strikes in the P an h andle district o f W e s t V ir g in ia (in w hich
the H itch m an m ine was located) and certain other u norganized sec649190— 18— Bull. 246------ 10
146
DECISIONS OF COURTS AFFECTING LABOR.
tio n s , o n th e g r o u n d th a t th e c o n tin u a n c e o f p r o d u c t io n b y th e u n o r
g a n iz e d s e c tio n s , w h ile s tr ik e s w e r e in f o r c e in o th e r fie ld s , in t e r fe r e d
w it h th e s e c u r in g o f d e s ir e d c o n c e s s io n s in th e la tte r. S o o n a ft e r
w a r d s a m e e t in g o f th e s u b d is tr ic t w h ic h in c lu d e d th e m in e v o te d t o
ta k e ste p s t o w a r d o r g a n iz a t io n , a n d T h o m a s H u g h e s t o o k u p th e
w o r k as o r g a n iz e r . H e b e g a n t o g e t se cre t a g re e m e n ts f r o m som e
o f th e m e n t o jo i n th e u n io n w h e n a su fficien t n u m b e r s h o u ld b e
s e c u re d , w it h th e p u r p o s e o f c a llin g a s tr ik e w h e n th a t w a s a c
c o m p lis h e d . T h e fa c t t h a t th e m in e r s h a d a g r e e d n o t t o jo i n th e
u n io n d u r in g th e ir e m p lo y m e n t w a s k n o w n t o th e o r g a n iz e r . H is
w o r k w a s in t e r r u p t e d b y a d e cr e e o f th e U n it e d S ta te s D is t r ic t C o u r t
f o r th e N o r t h e r n D is t r ic t o f W e s t V ir g in ia b e f o r e i t w a s so f a r c o m
p le te d as t o b e r e a d y f o r th e c a llin g o u t o f th e m e n . L a t e r th e
U n it e d S ta te s c ir c u it c o u r t o f a p p e a ls , fo u r t h c ir c u it, r e v e r s e d th is
d e cr e e , a n d it is th e o p in io n o f th e se t w o c o u r t s w h ic h a re c it e d
a b o v e . I n th e p re s e n t o p in io n th e S u p r e m e C o u r t , M r . J u s t ic e P i t
n e y d e liv e r in g th e o p in io n , a n d M r . J u s tic e B r a n d e is , M r . J u s t ic e
H o lm e s , a n d M r . J u s t ic e C la r k e d is s e n tin g , r e v e r s e d th e d e cr e e o f
th e c ir c u it c o u r t o f a p p e a ls a n d a ffirm ed th a t o f th e d is t r ic t c o u r t ,
h o ld in g th a t th e in t e r fe r e n c e b y th e d e fe n d a n t s w a s ille g a l, a n d su ch
as m ig h t b e r e a c h e d b y in ju n c t io n . F r o m th e m a jo r it y o p in io n th e
f o l l o w i n g is q u o t e d :
T h e q u e s tio n w h e th e r H u g h e s h a d “ p o w e r o r a u t h o r it y ” t o sh u t
d o w n th e H it c h m a n m in e is b e s id e th e m a r k . W e a re n o t h e re
c o n c e r n e d w it h a n y q u e s tio n o f u ltr a v ir e s , b u t w it h a n a c tu a l th re a t
o f c lo s in g d o w n p la in t iff’s m in e , m a d e b y H u g h e s w h ile a c t in g as
a g e n t o f an o r g a n iz e d b o d y o f m e n w h o in d u b it a b ly w e r e u n ite d
in a p u r p o s e t o c lo s e i t u n le ss p la in t iff w o u ld c o n f o r m t o t h e ir
w is h e s w it h r e s p e c t t o its m a n a g e m e n t, a n d w h o la c k e d th e p o w e r
t o c a r r y o u t th a t p u r p o s e o n ly b e ca u se t h e y h a d n o t as y e t p e r s u a d e d
a su fficien t n u m b e r o f th e H it c h m a n m in e r s t o jo i n w it h th e m , a n d
h e n ce e m p lo y e d H u g h e s as a n “ o r g a n i z e r ” a n d se n t h im t o th e
m in e w it h th e v e r y o b je c t o f s e c u r in g th e s u p p o r t o f th e n e ce s s a r y
n u m b e r o f m in e rs . T h e y s u cc e e d e d w it h r e s p e c t t o o n e o f th e m in e s
th r e a te n e d (t h e K ic h la n d ) , a n d p r e p a r a t io n s o f lik e c h a r a c t e r w e r e
in p r o g r e s s a.t th e H it c h m a n a n d th e G le n d a le a t th e tim e th e r e
s t r a in in g o r d e r w a s m a d e in th is cau se.
I n s h o r t, at th e tim e th e b i ll w a s file d , d e fe n d a n t s , a lt h o u g h h a v in g
f u ll n o t ic e o f th e te r m s o f e m p lo y m e n t e x is t in g b e tw e e n p la in t iff
a n d its m in e rs , w e r e e n g a g e d in a n e a rn e st e ffo r t t o s u b v e r t th o s e
re la tio n s w it h o u t p la in t iff’s c o n s e n t, a n d t o a lie n a te a su fficien t
n u m b e r o f th e m e n t o sh u t d o w n th e m in e , t o th e e n d th a t th e
fe a r o f losse s t h r o u g h s t o p p a g e o f o p e r a t io n s m ig h t c o e r c e p la in t iff
in t o “ r e c o g n iz in g th e u n i o n ” a t th e c o s t o f its o w n in d e p e n d e n c e .
T h e m e th o d s r e s o r te d t o b y th e ir “ o r g a n iz e r ” w e r e s u ch as h a v e
b e e n d e s c r ib e d . T h e le g a l c o n s e q u e n ce s r e m a in f o r d is c u s s io n .
T h e fa c t s w e h a v e r e c it e d a re e ith e r a d m itte d o r e lse p r o v e d b y
c le a r a n d u n d is p u t e d e v id e n c e a n d in d u b it a b le in fe r e n c e s t h e r e fr o m .
TEXT AND SUMMARIES OF DECISIONS.
147
W h a t a re th e le g a l c o n s e q u e n ce s o f th e fa c t s th a t h a v e b ee n
d e t a ile d ?
T h a t th e p la in t iff w a s a c t in g w it h in its la w fu l r ig h t s in e m p lo y
i n g its m e n o n ly u p o n te r m s o f c o n t in u in g n o n m e m b e r s h ip in th e
U n it e d M in e W o r k e r s o f A m e r ic a is n o t o p e n to q u e stio n . P l a i n t i f f ’s
r e p e a te d c o s t ly e x p e r ie n c e s o f strik e s a n d o t h e r in te r fe r e n c e s w h ile
a t t e m p t in g t o “ r u n u n io n ” w e r e a su fficien t e x p la n a t io n o f its r e s o lv e
to ru n “ n o n u n io n ,” i f a n y w e r e n e e d e d . B u t n e ith e r e x p la n a t io n
n o r ju s t ific a t io n is n e e d e d . W h a t e v e r m a y b e th e a d v a n ta g e s o f
“ c o lle c t iv e b a r g a in in g ,” it is n o t b a r g a in in g at a ll, in a n y ju s t sen se,
u n less it is v o lu n t a r y o n b o t h sid e s. T h e sa m e lib e r t y w h ic h e n a b le s
m e n to fo r m u n io n s , a n d t h r o u g h th e u n io n t o e n te r in t o a g re e m e n ts
w it h e m p lo y e r s w illin g t o a g re e , e n title s o t h e r m e n to r e m a in in d e
p e n d e n t o f th e u n io n a n d o th e r e m p lo y e r s t o a g re e w it h th e m to
e m p lo y n o m a n w h o o w e s a n y a lle g ia n c e o r o b lig a t io n to th e u n io n .
I n th e la tte r ca se, as in th e fo r m e r , th e p a r t ie s a re e n title d t o b e
p r o t e c t e d b y th e la w in th e e n jo y m e n t o f th e b e n e fits o f a n y la w fu l
a g re e m e n t t h e y m a y m a k e . T h is c o u r t r e p e a t e d ly h a s h e ld th a t th e
e m p lo y e r is as fr e e t o m a k e n o n m e m b e r s h ip in a u n io n a c o n d it io n
o f e m p lo y m e n t , as th e w o r k in g m a n is fr e e t o jo i n th e u n io n , a n d
th a t th is is a p a r t o f th e c o n s t it u t io n a l r ig h t s o f p e r s o n a l lib e r t y
a n d p r iv a t e p r o p e r t y , n o t t o b e ta k e n a w a y e v e n b y le g is la t io n ,
u n le ss t h r o u g h s o m e p r o p e r e x e r cis e o f th e p a r a m o u n t p o lic e p o w e r .
A d a ir v. U n it e d S ta te s, 208 U . S . 161, 174, 28 S u p . C t. 277 [ B u i .
N o . 75, p . 6 3 4 ] ; C o p p a g e v. K a n s a s , 236 U . S . 1, 14, 35 S u p . C t. 240
[B u i. N o . 169, p . 1 4 7 ]. I n th e p re s e n t ca se, n e e d le ss t o sa y , th e r e is
n o a ct o f le g is la t io n to w h ic h d e fe n d a n t s m a y r e s o r t f o r ju s t ific a t io n .
T h a t th e e m p lo y m e n t w a s “ at w ill,” a n d te r m in a b le b y e ith e r
p a r t y a t a n y tim e , is o f n o co n s e q u e n ce . T r u a x v . R a ic h , 239 U . S .
33, 38, 36 S u p . C t. 7, 9 [B u i. N o . 189, p . 5 3 ].
I n s h o r t, p la in t iff w a s a n d is e n title d t o th e g o o d w il l o f its
e m p lo y e e s , p r e c is e ly as a m e r c h a n t is e n title d t o th e g o o d w ill o f
h is c u s to m e r s a lt h o u g h t h e y a re u n d e r n o o b lig a t io n t o c o n t in u e t o
d e a l w ith h im . T h e v a lu e o f th e r e la tio n lie s in th e r e a s o n a b le
p r o b a b ilit y th a t b y p r o p e r ly t r e a t in g h is e m p lo y e e s , a n d p a y in g
th e m fa i r w a g e s , a n d a v o id in g r e a s o n a b le g r o u n d s o f c o m p la in t , it
w ill b e a b le t o r e ta in th e m in its e m p lo y , a n d t o fill v a c a n c ie s
o c c u r r in g fr o m tim e t o tim e b y th e e m p lo y m e n t o f o t h e r m e n o n
th e sam e term s. T h e p e c u n ia r y v a lu e o f su ch r e a s o n a b le p r o b a b ili
tie s is in c a lc u la b ly g r e a t, a n d is r e c o g n iz e d b y th e la w in a v a r ie t y
o f r e la tio n s . [C a s e s c it e d .]
T h e r ig h t o f a c tio n f o r p e r s u a d in g an e m p lo y e e t o le a v e h is e m
p lo y e r is u n iv e r s a lly r e c o g n iz e d — n o w h e r e m o r e c le a r ly th a n in W e s t
V ir g in ia — a n d it rests u p o n fu n d a m e n t a l p r in c ip le s o f g e n e r a l a p p li
ca tio n , n o t u p o n th e E n g lis h s ta tu te o f la b o r e r s . [C a s e s c it e d .]
W e r e tu r n t o th e m a tte r s set u p b y w a y o f ju s t ific a t io n o r e x cu se
f o r d e fe n d a n t s ’ in t e r fe r e n c e w it h th e s itu a tio n e x is t in g at p la in t iff’s
m in e.
T h e ca se in v o lv e s n o q u e s tio n o f th e r ig h t s o f e m p lo y e e s . D e f e n d
a n ts h a v e n o a g e n c y f o r p la in t iff’s e m p lo y e e s , n o r d o t h e y a ssert a n y
d is a g re e m e n t o r g r ie v a n c e in th e ir b e h a lf. I n fa c t , th e re is n o n e ;
b u t, i f th e re w e r e , d e fe n d a n t s c o u ld n o t, w it h o u t a g e n c y , set u p a n y
r ig h t s t h a t e m p lo y e e s m ig h t h a v e . T h e r ig h t o f th e la tte r t o s tr ik e
148
DECISIONS OF COURTS AFFECTING LABOR.
w o u ld n o t g iv e t o d e fe n d a n t s th e r ig h t t o in s tig a te a strik e . T h e
d iffe r e n c e is fu n d a m e n ta l.
I t is s u g g e s te d as a g r o u n d o f c r it ic is m th a t p la in t iff e n d e a v o r e d t o
se cu re a c lo s e d n o n u n io n m in e t h r o u g h in d iv id u a l a g re e m e n ts w it h
its e m p lo y e e s , as i f th is fu r n is h e d s o m e s o r t o f e x cu s e f o r th e e m p lo y
m e n t o f c o e r c iv e m e a su re s t o se cu re a c lo s e d u n io n s h o p t h r o u g h a c o l
le c t iv e a g re e m e n t w it h th e u n io n . I t is a su fficien t a n sw e r, in la w , to
r e p e a t t h a t p la in t iff h a d a le g a l a n d c o n s t it u t io n a l r ig h t t o e x c lu d e
u n io n m e n f r o m its e m p lo y . B u t it m a y b e w o r t h w h ile t o sa y , in
a d d i t io n : F ir s t , th a t th e re w a s n o m id d le g r o u n d o p e n t o p la i n t i f f ;
n o o p t io n t o h a v e a n 46 o p e n s h o p ” e m p lo y in g u n io n m e n a n d n o n
u n io n m e n in d iffe r e n t ly ; it w a s th e u n io n t h a t in s is te d u p o n c lo s e d s h o p a g re e m e n ts , r e q u ir in g e v e n c a r p e n te r s e m p lo y e d a b o u t a m in e
t o b e m e m b e r s o f th e u n io n , a n d m a k in g th e e m p lo y m e n t o f a n y n o n
u n io n m a n a g r o u n d f o r a s t r ik e ; a n d s e c o n d ly , p la in t iff w a s in th e
r e a s o n a b le e x e r c is e o f its r ig h t s in e x c lu d in g a ll u n io n m e n f r o m its
e m p lo y , h a v in g le a r n e d , fr o m a p r e v io u s e x p e r ie n c e , th a t u n less th is
w e r e d o n e u n io n o r g a n iz e r s m ig h t g a in a ccess t o its m in e in th e g u is e
o f la b o r e rs .
D e fe n d a n ts set u p , b y w a y o f ju s t ific a t io n o r e x cu se , th e r ig h t o f
w o r k in g m e n t o fo r m u n io n s , a n d t o e n la r g e th e ir m e m b e r s h ip b y in
v it in g o th e r w o r k in g m e n t o jo in . T h e r ig h t is fr e e ly c o n c e d e d , p r o
v id e d th e o b je c t s o f th e u n io n b e p r o p e r a n d le g itim a te , w h ic h w e
a ssu m e t o b e tru e , in a g e n e r a l sen se, w it h r e s p e c t t o th e u n io n h e re in
q u e s tio n . G o m p e r s v. B u c k s S t o v e & R a n g e C o ., 221 U . S . 4 1 8 , 43 9 ,
31 S u p . C t. 492 [B u i. N o . 95, p . 3 2 3 ]. T h e c a r d in a l e r r o r o f d e fe n d
a n ts ’ p o s it io n lie s in th e a s s u m p tio n th a t th e r ig h t is so a b s o lu te th a t
it m a y b e e x e r c is e d u n d e r a n y c ir c u m s ta n c e s a n d w it h o u t a n y q u a lifi
c a t io n ; w h e re a s in tr u th , lik e o th e r r ig h t s th a t e x is t in c iv iliz e d
s o c ie t y , it m u st a lw a y s b e e x e r c is e d w it h r e a s o n a b le r e g a r d f o r th e
c o n flic t in g r ig h t s o f o th e rs.
N o w , a s s u m in g d e fe n d a n t s w e r e e x e r c is in g , t h r o u g h H u g h e s , th e
r ig h t t o in v it e m e n t o jo i n t h e ir u n io n , s till th e y h a d p la in n o t ic e
th a t p la in t iff’s m in e w a s r u n “ n o n u n io n ,” th a t n o n e o f th e m e n
h a d a r ig h t t o r e m a in a t w o r k th e re a ft e r jo i n in g th e u n io n , a n d
th a t th e o b s e r v a n c e o f th is a g r e e m e n t w a s o f g r e a t im p o r t a n c e a n d
v a lu e b o t h t o p la in t iff a n d t o its m e n w h o h a d v o lu n t a r ily m a d e th e
a g r e e m e n t a n d d e s ir e d t o c o n tin u e w o r k in g u n d e r it. Y e t d e fe n d
a n ts, f a r fr o m e x e r c is in g a n y c a r e t o r e fr a in fr o m u n n e c e s s a r ily in
ju r i n g p la in t iff, d e lib e r a t e ly a n d a d v is e d ly s e le c te d th a t m e th o d o f
e n la r g in g t h e ir m e m b e r s h ip w h ic h w o u ld in flic t th e g r e a te s t in ju r y
u p o n p la in t iff a n d its lo y a l e m p lo y e e s . E v e r y H it c h m a n m in e r w h o
jo in e d H u g h e s ’s “ se cre t o r d e r ” a n d p e r m it t e d h is n a m e t o b e e n te r e d
u p o n H u g h e s ’s lis t w a s g u ilt y o f a b r e a c h o f h is c o n t r a c t o f e m p lo y
m e n t a n d e n a c te d a lie w h e n e v e r t h e r e a ft e r h e e n te r e d p la in t iff’s
m in e t o w o r k . H u g h e s n o t o n ly c o n n iv e d a t th is , b u t m u s t b e d e e m e d
t o h a v e c a u s e d a n d p r o c u r e d it , f o r it w a s th e m a in fe a tu r e o f d e
fe n d a n t s ’ p la n , th e s in e q u a n o n o f th e ir p r o g r a m .
T r u e , it is s u g g e s te d th a t u n d e r th e e x is t in g c o n t r a c t a n e m p lo y e e
w a s n o t c a lle d u p o n t o le a v e p la in t iff’s e m p lo y u n t il h e a c t u a lly
jo in e d th e u n io n a n d th a t th e e v id e n c e s h o w s o n ly a n a tte m p t b y
H u g h e s t o in d u c e th e m e n t o a g r e e t o jo in , b u t n o a tte m p t t o in d u c e
th e m t o v io la t e t h e ir c o n t r a c t b y f a i l in g t o w it h d r a w f r o m p la in
t i f f ’s e m p lo y m e n t a ft e r a c t u a lly jo in in g . B u t in a c o u r t o f e q u ity ,
TEXT AND SUMMARIES OF DECISIONS.
149
w h ic h lo o k s t o th e su b sta n ce a n d essen ce o f t h in g s a n d d is r e g a r d s
m a tte r s o f f o r m a n d te c h n ic a l n ic e t y , it is su fficien t t o s a y th a t to
in d u c e m e n t o a g re e t o jo i n is b u t a m o d e o f in d u c in g th e m to
jo in , a n d t h a t w h e n d e fe n d a n t s 44 h a d 60 m e n w h o h a d s ig n e d u p
o r a g r e e d t o jo in th e o r g a n iz a t io n a t H it c h m a n ,” a n d w e r e 44 g o in g
t o sh u t th e m in e d o w n as s o o n as t h e y g o t a fe w m o r e m e n ,” th e
60 w e r e f o r p r a c t ic a l p u r p o s e s , a n d t h e r e fo r e in th e s ig h t o f
e q u ity , a lr e a d y m e m b e r s o f th e u n io n , a n d it n e e d e d n o fo r m a l
r it u a l o r t a k in g o f a n o a th t o c o n s titu te th e m s u c h ; t h e ir u n it in g
w it h th e u n io n in th e p la n t o s u b v e rt th e sy ste m o f e m p lo y m e n t a t
th e H it c h m a n m in e , t o w h ic h th e y h a d v o lu n t a r ily a g r e e d a n d u p o n
w h ic h th e ir e m p lo y e r a n d t h e ir fe llo w e m p lo y e e s w e r e r e ly in g , w a s
su fficien t.
B u t th e fa c t s r e n d e r it p la in th a t w h a t th e d e fe n d a n ts w e r e e n
d e a v o r in g t o d o a t th e H it c h m a n m in e a n d n e ig h b o r in g m in e s c a n n o t
b e tr e a te d as a b o n a fid e e ffo r t t o e n la r g e th e m e m b e r s h ip o f th e
u n io n . T h e r e is n o e v id e n c e t o s h o w , n o r c a n it b e in fe r r e d , th a t
d e fe n d a n t s in te n d e d o r d e s ir e d t o h a v e th e m e n a t th ese m in e s jo in
th e u n io n , u n le ss t h e y c o u ld o r g a n iz e th e m in es. W it h o u t th is , th e
n e w m e m b e rs w o u ld b e a d d e d t o th e n u m b e r o f m e n c o m p e t in g f o r
jo b s in th e o r g a n iz e d d is tr ic ts , w h ile n o n u n io n m e n w o u ld ta k e th e ir
p la c e s in th e P a n h a n d le m in es. E x c e p t as a m e a n s t o th e e n d o f
c o m p e llin g th e o w n e r s o f th ese m in e s t o c h a n g e th e ir m e th o d o f
o p e r a t io n , th e d e fe n d a n t s w e r e n o t s e e k in g t o e n la r g e th e u n io n m e m
b e r s h ip .
I n a n y a sp e ct o f th e m a tte r , it c a n n o t b e s a id th a t d e fe n d a n t s w e r e
p u r s u in g th e ir o b je c t b y la w fu l m ea n s. T h e q u e stio n o f th e ir in
te n tio n s — o f th e ir b o n a fid e s— ca n n o t b e ig n o r e d . I t e n te rs in t o
th e q u e stio n o f m a lice . A s B o w e n , L . J ., ju s t ly s a id , in th e M o g u l
S te a m s h ip C a se , 23 Q . B . D iv . 6 1 3 :
44 I n t e n t io n a lly t o d o th a t w h ic h is c a lc u la te d in th e o r d in a r y
c o u r s e o f e v en ts t o d a m a g e , a n d w h ic h d o e s, in fa c t , d a m a g e a n o th e r
in th a t o th e r p e r s o n ’s p r o p e r t y o r tr a d e , is a c tio n a b le i f d o n e w it h o u t
ju s t ca u se o r e x c u s e .”
A n d th e in t e n t io n a l in flic t io n o f su ch d a m a g e u p o n a n o th e r, w it h
o u t ju s t ific a t io n o r e x cu se , is m a lic io u s in la w . [C a s e s c it e d .] O f
co u r se , in a c o u r t o f e q u ity , w h e n p a s s in g u p o n th e r ig h t o f in ju n c
tio n , d a m a g e th re a te n e d , ir r e m e d ia b le b y a c tio n at la w , is e q u iv a le n t
t o d a m a g e d o n e . A n d w e c a n n o t d e e m th e p r o ffe r e d e x cu se t o b e a
44 ju s t ca u se o r e x cu s e ,” w h e r e it is b a s e d , as in th is ca se, u p o n a n
a sse rtio n o f c o n flic t in g r ig h t s th a t a re s o u g h t t o b e a tta in e d b y u n fa ir
m e th o d s , a n d f o r th e v e r y p u r p o s e o f in t e r fe r in g w it h p la in t iff’s
r ig h t s o f w h ic h d e fe n d a n t s h a v e fu ll n o tice .
A n o t h e r fu n d a m e n ta l e r r o r in d e fe n d a n t s ’ p o s it io n c o n s is ts in th e
a s s u m p tio n th a t a ll m e a su res th a t m a y b e r e s o r te d t o a re la w fu l i f
th e y a re 44 p e a ce a b le ” — th a t is, i f th e y s to p s h o r t o f p h y s ic a l v io le n c e ,
o r c o e r c io n t h r o u g h fe a r o f it. I n o u r o p in io n , a n y v io la t io n o f
p la in t iff’s le g a l r ig h t s c o n t r iv e d b y d e fe n d a n t s f o r th e p u r p o s e o f
in flic t in g d a m a g e , o r h a v in g th a t as its n e ce ssa r y e ffe ct, is as p la in ly
in h ib it e d b y th e la w as i f it in v o lv e d a b r e a c h o f th e p ea ce . A c o m
b in a tio n to p r o c u r e c o n c e r te d b re a ch e s o f c o n t r a c t b y p la in t iff’s
e m p lo y e e s c o n s titu te s su ch a v io la t io n . [C a s e s c it e d .]
I t w a s o n e t h in g f o r p la in t iff t o fin d , fr o m tim e to tim e , c o m p a r a
t iv e ly s m a ll n u m b e rs o f m e n t o ta k e v a c a n t p la c e s in a g o in g m in e ,
150
DECISIONS OF COURTS AFFECTING LABOR.
a n o th e r a n d a m u c h m o r e d iffic u lt t h in g to fin d a c o m p le t e g a n g o f n e w
m e n to s ta r t u p a m in e sh u t d o w n b y a s tr ik e , w h e n th e re m ig h t b e a
r e a s o n a b le a p p r e h e n s io n o f v io le n c e a t th e h a n d s o f th e s tr ik e rs a n d
th e ir s y m p a th iz e r s . T h e d is o r d e r e d c o n d it io n o f a m in in g t o w n in
tim e o f s tr ik e is m a tte r o f c o m m o n k n o w le d g e . I t w a s t h is k in d o f
in t im id a t io n , as w e ll as th a t r e s u lt in g fr o m th e la r g e o r g a n iz e d m e m
b e r s h ip o f th e u n io n , th a t d e fe n d a n t s s o u g h t t o e x e r t u p o n p la in t iff,
a n d it r e n d e r s p e r t in e n t w h a t w a s s a id b y th is c o u r t in th e G o m p e r s
C a se [s u p r a ], im m e d ia t e ly f o l l o w i n g th e r e c o g n it io n o f th e r ig h t to
fo r m la b o r u n io n s :
“ B u t th e v e r y fa c t th a t it is la w fu l t o fo r m th e se b o d ie s , w ith
m u ltitu d e s o f m e m b e r s, m e a n s th a t th e y h a v e th e r e b y a c q u ir e d a
v a s t p o w e r , in th e p re s e n ce o f w h ic h th e in d iv id u a l m a y b e h e lp le ss.
T h is p o w e r , w h e n u n la w fu lly u se d a g a in s t o n e, c a n n o t b e m e t, e x c e p t
b y h is p u r c h a s in g p e a c e a t th e c o s t o f s u b m it t in g t o te r m s w h ic h
in v o lv e th e s a c r ific e o f r ig h t s p r o t e c t e d b y th e C o n s t it u t io n ; o r b y
s t a n d in g o n su ch r ig h t s , a n d a p p e a lin g t o th e p r e v e n t iv e p o w e r s o f a
c o u r t o f e q u ity . W h e n su ch a p p e a l is m a d e , it is th e d u t y o f g o v e r n
m e n t to p r o t e c t th e o n e a g a in s t th e m a n y , as w e ll as th e m a n y a g a in s t
th e o n e .”
D e fe n d a n t s ’ a cts c a n n o t b e # ju stifie d b y a n y a n a lo g y to c o m p e t itio n
in tra d e . T h e y a re n o t c o m p e t ito r s o f p la in t iff ; a n d i f t h e y w e re
t h e ir c o n d u c t e x ce e d s th e b o u n d s o f fa i r tra d e . C e r t a in ly , i f a c o m
p e t in g t r a d e r s h o u ld e n d e a v o r t o d r a w c u s to m fr o m h is r iv a l, n o t
b y o ffe r in g b e tte r o r c h e a p e r g o o d s , e m p lo y in g m o r e c o m p e te n t sa le s
m e n , o r d is p la y in g m o r e a t t r a c t iv e a d v e r tis e m e n ts , b u t b y p e r s u a d in g
th e r iv a l’s c le r k s t o d e se r t h im u n d e r c ir c u m s ta n c e s r e n d e r in g it .
d iffic u lt o r e m b a r r a s s in g f o r h im t o fill t h e ir p la c e s , a n y c o u r t o f
e q u it y w o u ld g r a n t an in ju n c t io n to r e s tr a in th is as u n fa ir c o m
p e t it io n .
U p o n a ll th e fa c t s , w e a re c o n s tr a in e d t o h o ld th a t th e p u r p o s e
e n te r ta in e d b y d e fe n d a n t s t o b r in g a b o u t a s tr ik e a t p la in t iff’s m in e
in o r d e r t o c o m p e l p la in t iff, t h r o u g h fe a r o f fin a n c ia l lo ss, t o c o n s e n t
t o th e u n io n iz a t io n o f th e m in e as th e lesse r e v il, w a s an u n la w fu l
p u r p o s e , a n d th a t th e m e th o d s r e s o r te d t o b y H u g h e s — th e in d u c in g
o f e m p lo y e e s t o u n ite w it h th e u n io n in an e ffo r t to s u b v e r t th e
s y s te m o f e m p lo y m e n t a t th e m in e b y c o n c e r te d b r e a c h e s o f th e c o n
tr a c ts o f e m p lo y m e n t k n o w n t o b e in fo r c e th e re , n o t t o m e n tio n
m is r e p r e s e n ta tio n , d e c e p t iv e sta te m e n ts, a n d th re a ts o f p e c u n ia r y
lo s s c o m m u n ic a te d b y H u g h e s t o th e m e n — w e r e u n la w fu l a n d m a li
c io u s m e th o d s , a n d n o t to b e ju s tifie d as a fa i r e x e r c is e o f th e r ig h t
t o in c re a s e th e m e m b e r s h ip o f th e u n io n .
T h a t th e d a m a g e r e s u lt in g fr o m a str ik e w o u ld b e ir r e m e d ia b le
a t la w is t o o p la in f o r d is c u s s io n .
A s a g a in s t th e a n s w e r in g d e fe n d a n ts , p la in t iff’s r ig h t t o a n in ju n c
t io n is c le a r ; as t o th e o th e r s n a m e d as d e fe n d a n t s , b u t n o t s e r v e d
w it h p r o c e s s , th e d e c r e e is e r r o n e o u s , as a lr e a d y sta te d .
R e s p e c t in g th e sw e e p o f th e in ju n c t io n , w e d iffe r s o m e w h a t f r o m
th e r e s u lt r e a c h e d b y th e d is t r ic t c o u r t.
S o f a r as it r e s t r a in s : (1 ) I n t e r fe r in g o r a t t e m p t in g t o in t e r fe r e
w it h p la in t iff’s e m p lo y e e s f o r th e p u r p o s e o f u n io n iz in g p la in t iff’s
m in e w it h o u t its c o n s e n t, b y r e p r e s e n tin g o r c a u s in g t o b e r e p r e s e n te d
t o a n y o f p la in t iff’s e m p lo y e e s , o r t o a n y p e r s o n w h o m ig h t b e c o m e
a n e m p lo y e e o f p la in t iff, th a t su ch p e r s o n w ill su ffe r o r is lik e ly to
TEXT AND SUMMARIES OF DECISIONS.
151
s u ffe r s o m e lo ss o r t r o u b le in c o n t in u in g in o r in e n t e r in g th e e m
p lo y m e n t o f p la in t iff, b y r e a s o n o f p la in t iff n o t r e c o g n iz in g th e u n io n ,
o r b e ca u se p la in t iff r u n s a n o n u n io n m in e ; ( 2 ) in t e r fe r in g o r a t te m p t
in g t o in t e r fe r e w it h p la in t iff’s e m p lo y e e s f o r th e p u r p o s e o f u n io n
iz in g th e m in e w it h o u t p la in t iff’s c o n s e n t, a n d in a id o f su ch p u r p o s e
k n o w in g ly a n d w il l f u ll y b r in g in g a b o u t th e b r e a k in g b y p la in t iff's
e m p lo y e e s o f c o n tr a c ts o f s e r v ic e k n o w n a t th e tim e' t o e x is t w it h
p la in t iff’s p r e s e n t a n d fu t u r e e m p lo y e e s ; ( 3 ) k n o w in g ly a n d w il l
f u ll y e n t ic in g p la in t iff’s e m p lo y e e s , p r e s e n t o r fu t u r e , t o le a v e p la in
t i f f ’s s e r v ic e o n th e g r o u n d th a t p la in t iff d o e s n o t r e c o g n iz e th e
U n it e d M in e W o r k e r s o f A m e r ic a o r r u n s a n o n u n io n m in e , e t c .; (4 )
in t e r fe r in g o r a t t e m p t in g t o in t e r fe r e w it h p la in t iff’s e m p lo y e e s so
as k n o w in g ly a n d w i l l f u ll y t o b r in g a b o u t th e b r e a k in g b y p la in t iff’s
e m p lo y e e s , p re s e n t a n d fu t u r e , o f th e ir c o n t r a c ts o f s e r v ic e , k n o w n
t o th e d e fe n d a n t s t o e x is t, a n d e s p e c ia lly fr o m k n o w in g ly a n d w i l l
f u ll y e n t ic in g s u ch e m p lo y e e s , p r e s e n t o r fu t u r e , t o le a v e p la in t iff’s
s e r v ic e w it h o u t p la in t iff’s c o n s e n t ; ( 5 ) tr e s p a s s in g o n o r e n t e r in g
u p o n th e g r o u n d s a n d p r e m is e s o f p la in t iff o r its m in e f o r th e p u r ’ p o s e o f in t e r fe r in g th e r e w it h o r h in d e r in g o r o b s t r u c t in g its b u sin e ss,
o r w it h th e p u r p o s e o f c o m p e llin g o r in d u c in g , b y th re a ts , in t im id a
tio n , v io le n t o r a b u s iv e la n g u a g e , o r p e r s u a s io n , a n y o f p la in t iff’s
e m p lo y e e s t o r e fu s e o r f a i l t o p e r f o r m t h e ir d u tie s as s u c h ; a n d ( 6 )
c o m p e llin g o r in d u c in g o r a t t e m p t in g t o c o m p e l o r in d u c e , b y th re a ts ,
in t im id a t io n , o r a b u s iv e o r v io le n t la n g u a g e , a n y o f p la in t iff’s e m
p lo y e e s t o le a v e its s e r v ic e o r f a i l o r r e fu s e t o p e r f o r m th e ir d u tie s
as su ch e m p lo y e e s , o r c o m p e llin g o r a t t e m p t in g t o c o m p e l b y lik e
m e a n s a n y p e r s o n d e s ir in g t o seek e m p lo y m e n t in p la in t iff’s m in e
a n d w o r k s fr o m so a c c e p t in g e m p lo y m e n t th e r e in — th e d e cr e e is f u ll y
s u p p o r t e d b y th e p r o o fs . B u t it g o e s fu r t h e r , a n d a w a r d s a n in ju n c
t io n a g a in s t p ic k e t in g a n d a g a in s t a cts o f p h y s ic a l v io le n c e , a n d w e
fin d n o e v id e n c e th a t e ith e r o f th ese fo r m s o f in t e r fe r e n c e w a s t h r e a t
en ed . T h e d e cr e e s h o u ld b e m o d ifie d b y e lim in a t in g p ic k e t in g a n d
p h y s ic a l v io le n c e fr o m th e sw e e p o f th e in ju n c t io n , b u t w it h o u t p r e ju
d ic e to p la in t iff’s r ig h t t o o b t a in a n in ju n c t io n h e r e a ft e r a g a in s t
th e se fo r m s o f in t e r fe r e n c e i f p r o o f s h a ll b e p r o d u c e d , e ith e r in p r o
c e e d in g s s u p p le m e n ta l t o th is a c tio n o r in a n in d e p e n d e n t a c tio n , th a t
s u ch a n in ju n c t io n is n e e d e d .
T h e d e cr e e o f th e C ir c u it C o u r t o f A p p e a ls is r e v e rs e d , a n d th e
d e c r e e o f th e d is t r ic t c o u r t is m o d ifie d as a b o v e s ta te d , a n d as so
m o d ifie d it is a ffirm ed , a n d th e ca u se is r e m a n d e d t o th e d is t r ic t c o u r t
f o r fu r t h e r p r o c e e d in g s in c o n f o r m it y w it h th is o p in io n .
T h e d is s e n tin g o p in io n w a s w r it t e n b y M r . J u s t ic e B r a n d e is , a n d
d is a g r e e d w it h th e r e a s o n in g o f th e m a jo r it y , a m o n g o t h e r th in g s ,
in h o ld in g t h a t th e m in e rs d id n o t v io la t e t h e ir c o n t r a c t u n t il th e y
a c t u a lly jo in e d th e u n io n . O n th is p o in t it is s a i d :
T h e r e w a s n o a tte m p t t o in d u c e e m p lo y e e s t o v io la t e t h e ir c o n
tra cts .
T h e c o n t r a c t c r e a te d a n e m p lo y m e n t a t w ill, a n d th e e m p lo y e e w a s
fr e e t o le a v e a t a n y tim e . T h e c o n t r a c t d id n o t b in d th e e m p lo y e e
n o t t o jo i n th e u n io n ; a n d h e w a s fr e e t o jo in i t a t a n y tim e . T h e
c o n t r a c t m e r e ly b o u n d h im t o w it h d r a w fr o m p la in t iff’s e m p lo y ,
i f h e jo in e d th e u n io n . T h e r e is e v id e n c e o f a n a tte m p t t o in d u c e
152
DECISIONS OF COURTS AFFECTING LABOR.
p la i n t if f ’s e m p lo y e e s t o a g r e e t o jo in th e u n io n ; b u t n o n e w h a te v e r
o f a n y a tte m p t t o in d u c e th e m t o v io la t e t h e ir c o n t r a c t. U n t il a n
e m p lo y e e a c t u a lly jo in e d th e u n io n h e w a s n o t , u n d e r th e c o n tr a c t,
c a lle d u p o n t o le a v e p la in t iff’s e m p lo y . T h e r e c o n s e q u e n tly w o u ld
b e n o b r e a c h o f c o n t r a c t u n t il th e e m p lo y e e b o t h jo in e d th e u n io n
a n d fa ile d t o w it h d r a w fr o m p la in t iff’s e m p lo y . T h e r e w a s n o e v i
d e n ce t h a t a n y e m p lo y e e w a s p e r s u a d e d t o d o th a t o r th a t su ch a
c o u r s e w a s c o n t e m p la t e d . W h a t p e r h a p s w a s in t e n d e d w a s t o se cu re
a g re e m e n ts o r a ssu ra n ce s f r o m in d iv id u a l e m p lo y e e s th a t th e y w o u ld
jo i n th e u n io n w h e n a la r g e n u m b e r o f th e m s h o u ld h a v e c o n s e n te d t o
d o s o ; w it h th e p u r p o s e , w h e n su ch tim e a r r iv e d , t o h a v e th e m jo in
th e u n io n t o g e t h e r a n d str ik e — u n le ss p la in t iff c o n s e n te d t o u n io n iz e
th e m in e . S u c h a c o u r s e w o u ld h a v e b e e n c le a r ly p e r m is s ib le u n d e r
th e c o n tr a c t.
L a b o r O r g a n iz a tio n s — I n t e r f e r e n c e w i t h C o n t r a c t o f E m p lo y
m ent—
U n io n iz in g
E m p lo y e e s W h o
H ave
A greed
N o t to
J o in
Eagle Glass <& M fg. Co. v.
R ow e , Supreme Court o f the United States (Dec. 10 , 1917) , 38 Su
preme Court R eporter , page 80.— T h is is a case o f suit fo r in ju n ction
U n io n — I n j u n c t i o n — J u r is d ic tio n —
by the com p an y nam ed, and is the same case decided in the cir
cuit court o f appeals, fo u rth circuit, under the title
E a g le
G lass
& M f g . C o. v. H i l l , reported 219 F e d . T19, and review ed in B u L
N o.
189,
p age
334.
T h e controversy w as between the com pany and
officers o f the A m erica n
F lin t
G lass W o r k e r s’ U n io n .
p rayed fo r an inju n ction , as in the H itch m a n case
The
(se e
p.
b ill
1 4 5 ),
against interference w ith em ployees under contract not to join the
union du rin g their em ploym ent by the com p an y.
As
in th at case
also, a decree o f the district court gra n tin g a tem porary inju n ction
had been reversed b y the circuit court o f appeals, whereupon the
com p an y procured a w rit o f certiorari, b rin g in g the case to the
S uprem e
C ourt.
P roceedings subsequent to
the
decision
of
the
circuit court were review ed, and the technical questions relatin g to
ju risdiction over the case, w hich was brought in the F ed eral courts
on the ground o f diversity o f citizenship, were decided so as to
su p p ort the jurisdiction o f the courts.
C om in g to the m erits o f the
case, the points were decided larg ely on the authority o f the H it c h
m an case.
T h e same three justices dissented as in that case.
con clu din g the opinion
delivered by
h im
fo r
the m a jo rity ,
In
M r.
Justice P itn e y s a id :
T h e p r e s e n t ca se, a c c o r d in g t o th e a v e r m e n ts o f th e b ill a n d
a m e n d e d b ill, d iffe r s fr o n t th e H it c h m a n ca se p r in c ip a lly in t h is :
T h a t it a p p e a r e d th a t G illo o ly , as o r g a n iz e r , h a d u se d m o n e y a n d
h a d t h r e a te n e d t o u se d y n a m it e t o r e in fo r c e h is o t h e r e ffo r t s t o
c o e r c e p la in t iff in t o a g r e e in g t o th e u n io n iz a t io n o f its w o r k s . T h e
sy s te m o f e m p lo y m e n t a t th e E a g le G la s s C o . f a c t o r y w a s p r e c is e ly
th e sa m e as th a t a t th e H it c h m a n m in e . T h e w r it t e n c o n t r a c t o f e m
p lo y m e n t in a u g u r a t e d a t th e E a g le G la s s W o r k s m o r e th a n a m o n t h
TEXT AND SUMMARIES OF DECISIONS.
153
p r i o r t o th e filin g o f th e b ill in th is ca se fo llo w e d p r e c is e ly th e fo r m
e s ta b lis h e d a t th e H it c h m a n m in e s h o r t ly a ft e r th e filin g o f th e b ill
in th a t ca se. A n d th e a c t iv it ie s o f G ii l o o l y a m o n g th e p la in t iff’s
e m p lo y e e s , a n d th e m o tiv e a n d p u r p o s e b e h in d th o se a c tiv itie s , as
a lle g e d in th e b ill, s h o w th e sa m e e le m e n ts o f ille g a lit y t o w h ic h w e
h a v e c a lle d a t te n tio n in o u r o p in io n in th e H it c h m a n case. P la in t iff
is e n t itle d to an o p p o r t u n it y , o n fin a l h e a r in g , t o p r o v e th ese a lle g a
tio n s as a g a in s t th o s e d e fe n d a n t s w h o a re w it h in th e ju r is d ic t io n o f
th e c o u r t, a n d t o c o n n e c t th e m w it h th e a c t iv it ie s o f G iilo o ly .
T h e d e cr e e o f th e C ir c u it C o u r t o f A p p e a ls , so f a r as it d ir e c t e d t h a t
th e t e m p o r a r y in ju n c t io n b e d is s o lv e d , w ill b e a ffirm ed , b u t so f a r as
it d ir e c t e d a d is m is s a l o f th e b ill it m u st b e r e v e rs e d , a n d th e ca u se
w ill b e r e m a n d e d t o th e d is t r ic t c o u r t f o r fu r t h e r p r o c e e d in g s in
c o n f o r m it y to th is o p in io n .
L abo r O r g a n i z a t i o n s — P i c k e t i n g — I n j u n c t i o n — St. Germain et
ux. v . Bakery <& Confectionery W orkers ’ Union , No. 9, o f Seattle ,
et al., Supreme Court o f Washington (July 17, 1917), 166 Pacific
R eporter , page 665.— N . H . S t. G e r m a in a n d w if e b r o u g h t a c tio n
a g a in s t th e la b o r u n io n n a m e d a n d c e r ta in in d iv id u a ls f o r a n in ju n c
t io n . T h e s u p e r io r c o u r t, K i n g C o u n ty , issu e d a d e cr e e f o r b i d d i n g
c e r t a in e n u m e r a te d p r a c t ic e s o n th e p a r t o f th e p ic k e ts , in c lu d in g
th e la y in g o f h a n d s u p o n a n y p e r s o n in th e e ffo r t t o p r e v e n t h is
p a t r o n iz in g th e b a k e rie s a n d r e sta u ra n ts o f th e p la in t iffs a n d th e
u se o f c e r ta in s ta te m e n ts a n d th e w o r d s 44 sca b ” a n d “ sca b s ” w it h
r e fe r e n c e to su ch c u s to m e r . T h e p e r m is s ib le a c tio n s o n th e p a r t o f
th e d e fe n d a n t s w e r e th e n set fo r t h in th e d e cr e e , in c lu d in g th e m a in
te n a n ce o f t w o p ic k e t s b e f o r e e a ch e s ta b lish m e n t, th e p la c e u p o n th e
s id e w a lk s w h e r e th e y m ig h t w a lk b e in g d e fin e d in s u ch a m a n n e r
th a t t h e y s h o u ld n o t a c t u a lly b lo c k th e en tra n ce^ a n d a u t h o r iz a tio n
b e in g g iv e n f o r th e u se o f b a d g e s o r s c a r fs , a lso o f s m a ll c a r d s , w it h
th e w o r d s u S t. G e r m a in ’s B a k e r ie s a n d R e s ta u r a n ts U n fa i r t o O r
g a n iz e d L a b o r .” T h e c a rd s , h o w e v e r , w e r e n o t to b e p la c e d o r t h r o w n
in s id e th e stores. T h e p la in t iffs o b je c t e d t o th e p a r t o f th e d e cr e e
w h ic h a llo w e d th ese p r a c t ic e s a n d a p p e a le d . I t a p p e a r e d th a t th e
p la in t iffs h a d b e e n e n g a g e d in th e b a k e r y a n d d a ir y -lu n c h b u sin e ss
in S e a ttle f o r 16 y e a rs , h a v in g t w o e s ta b lish m e n ts, a n d h a d e m p lo y e d
u n io n la b o r . A m e m b e r o f th e c o o k s ’ u n io n in t h e ir e m p lo y , h o w
e v e r, b e ca m e in a r re a rs as to h is d u e s, a n d th e d is p u t e a ro se fr o m
th e fa ilu r e o f th e e m p lo y e r s , at th e re q u e st o f th e u n io n , t o e ith e r
c o lle c t th e a m o u n t o f th e a r r e a r a g e o r d is c h a r g e th e c o o k . A s tr ik e
w a s c a lle d , a n d th e p ic k e t in g b e g a n , th e p ic k e ts r e m a in in g o n d u t y
f r o m 11.30 a. m . u n til th e c lo s e o f b u sin e ss in th e e v e n in g in n u m b e r s
as la r g e u p o n o n e o c c a s io n as b e tw e e n 4 0 a n d 50, jo s t lin g th e c u s
to m e rs , a n d a t tim e s, a t o n e o f th e sto re s, w h ic h w a s o n a c r o w d e d
stre e t, m a k in g it im p o s s ib le f o r a n y o n e t o e n te r o r le a v e th e sto re .
154
DECISIONS OF COURTS AFFECTING LABOR.
I t w a s s h o w n th a t th e g r o s s r e c e ip ts h a d fa lle n f r o m $ 4 ,0 0 0 p e r m o n t h
to $1,0 0 0 . J u d g e M o u n t d e liv e r e d th e o p in io n o f th e c o u r t, w h ic h
h e ld , o n e ju d g e d is s e n tin g , th a t th e in ju n c t io n s h o u ld h a v e fo r b id d e n
th e issu a n ce o f a n in ju n c t io n as p r a y e d f o r , w it h n o m in a l d a m a g e s,
s h o w in g m e r e ly a d im in u t io n o f g r o s s b u sin e ss, b u t n o t h in g d e fin ite
as t o p r o fit s , w a s n o t su fficien t t o su sta in a n a w a r d f o r s u b s ta n tia l
d a m a g e s . T h e ca se w a s t h e r e fo r e r e m a n d e d t o th e lo w e r c o u r t f o r
th e issu a n ce o f a n in ju n c t io n as p r a y e d f o r , w it h n o m in a l d a m a g e s.
T h e f o l l o w i n g is q u o te d f r o m th e o p in io n , s h o w in g th e c o u r t ’s v ie w s
w it h r e g a r d t o p ic k e t in g :
I n th e ca se a t b a r th e fa c t s , as s h o w n b y th e r e c o r d , a re c le a r t o th e
e ffe c t th a t th e g r ie v a n c e o f th e r e s p o n d e n ts w a s th a t S t. G e r m a in ’s
b a k e rie s a n d sto r e s w e r e u n fa ir t o o r g a n iz e d la b o r . T h e r e s p o n d e n ts ,
f o r th a t re a so n , m a in t a in e d p ic k e t s o n th e s id e w a lk in f r o n t o f th e
a p p e lla n t s ’ p la c e s o f b u sin e ss. T h e o n ly o b je c t o f m a in t a in in g th e se
p ic k e t s w a s to in t im id a t e th ese a p p e lla n ts a n d t h e ir p a tr o n s . T h e r e
c o u ld h a v e b e e n n o o th e r o b je c t , b e c a u se th e u n io n la b o r e r s h a d b e e n
c a lle d o u t. T h e y w e r e n o t w o r k in g th e re , a n d , in o r d e r t o r e q u ir e
th e se a p p e lla n t s t o e m p lo y u n io n la b o r , th e r e s p o n d e n ts s o u g h t to ,
a n d d id , in t im id a t e th e p u b lic fr o m e n t e r in g th e sto r e s a n d d e a lin g
w it h th e a p p e lla n ts . W h e t h e r th ese fa c t s w e r e a lle g e d in a c o m p la in t
w h ic h w a s u n d e n ie d , o r w e r e p r o v e n u p o n a t r ia l, m a k e s n o d iffe r
e n ce . W h e t h e r th e p ic k e t in g w a s p e a c e a b le o r o th e r w is e , u n d e r th e
fa c t s in t h is ca se, is e n t ir e ly im m a te r ia l, b e ca u se th e so le o b je c t o f
th e r e s p o n d e n ts w a s t o in t im id a t e , n o t o n ly th e p u b lic , b u t a lso th ese
a p p e lla n t s , a n d fo r c e th e m t o e n te r in t o a c o n t r a c t w h ic h t h e y w e r e
u n w illin g t o e n te r in to . T h e b o o k s a re f u ll o f ca ses t o th e e ffe ct t h a t :
“ T h e r ig h t t o c a r r y o n a la w fu l b u sin e ss w it h o u t o b s tr u c t io n is a
p r o p e r t y r ig h t , a n d its p r o t e c t io n is a p r o p e r o b je c t f o r th e g r a n t in g
o f a n in ju n c t io n .”
T h e id e a u p o n w h ic h p ic k e t in g b y a n y m e a n s c a n n o t b e su sta in e d
is th a t it in tim id a te s th e p u b lic f r o m e n t e r in g in t o th e p la c e , a n d
d o i n g b u sin e ss w it h a p e r s o n b e f o r e w h o s e sto r e o r p la c e o f b u sin e ss
a lin e o f g u a r d s is s ta tio n e d . W h e r e a lin e o f g u a r d s , c o n s is t in g o f
o n e o r m o r e , is s ta tio n e d in f r o n t o f a p la c e o f b u sin e ss, e v e r y o n e
k n o w s th a t su ch g u a r d is th e r e f o r th e p u r p o s e o f in t im id a t in g a n d
p r e v e n t in g th e p u b lic fr o m d e a lin g w it h th e p e r s o n w h o s e p la c e o f
b u s in e s s is p ic k e te d . T h a t th is is c o n t r a r y t o th e s p ir it o f o u r in s t i
t u tio n s , a n d th e r ig h t t o c o n d u c t a la w fu l b u sin e ss in a la w fu l w a y ,
w it h o u t m o le s ta tio n o f o th e r p e r s o n s , n e e d s n o a r g u m e n t t o su sta in it.
T h e ca ses a re n u m e r o u s t o th a t e ffe ct.
L
abo r
O r g a n iz a t io n s — P
ic k e t in g
— I n j u n c t io n — I
nterference
Heitkam per v . H offman et al., Supreme Court
o f New Y o rk , Special Term fo r Trials, K ings County (A p ril 9, 1917),
16If New Y ork Supplement, page 583,— T h e o d o r e H e it k a m p e r b r o u g h t
w it h
N
o n u n io n
Shop—
su it f o r a n in ju n c t io n a g a in s t M o r it z H o ffm a n , in d iv id u a lly a n d as
tr e a s u r e r o f th e J o u r n e y m a n B a k e r s ’ U n io n a n d o th e r s , t o r e s tr a in
TEXT AND SUMMARIES OF DECISIONS.
155
th e m f r o m a cts d e tr im e n ta l t o h is b u sin e ss. A f t e r H e it k a m p e r h a d
r e fu s e d t o u n io n iz e h is s h o p as re q u e ste d b y r e p r e s e n ta tiv e s o f th e
u n io n , v a r io u s m e th o d s w e r e a d o p te d t o p e r s u a d e c u s to m e r s n o t t o
p a t r o n iz e h im , in c lu d in g p e rs is te n t m a r c h in g u p a n d d o w n th e s tre e t
in fr o n t o f th e s h o p th r e e tim e s a w e e k , a d v is in g p e o p le t o b u y th e ir
b r e a d e lse w h e re , etc. A f a l l in g o ff in h is t r a d e w a s s h o w n . A n
in ju n c t io n w a s g r a n t e d a g a in s t th ese a cts, w h ile th e r ig h t w a s r e c o g
n iz e d t o c ir c u la r iz e th e fr ie n d s o f u n io n la b o r a n d e m p lo y o th e r
le g it im a t e m e a n s t o g iv e in fo r m a t io n as t o th e d e s ire o f th e u n io n
th a t th e p la in t iff s h o u ld n o t b e p a t r o n iz e d . T h e f o l l o w i n g is q u o te d
f r o m th e o p in io n d e liv e r e d b y J u d g e C a lla g h a n :
T h e fa c t s in th is ca se s a t is fa c t o r ily e s ta b lis h a c o n s p ir a c y o n th e
p a r t o f th e m e m b e r s o f th e u n io n , s tim u la te d b y its officers, to r u in
th e p la in t iff fin a n c ia lly . T h e r e is n o t h in g p a r t ic u la r ly w r o n g in a
n u m b e r o f m e n m a r c h in g o n th e s id e w a lk ; b u t a c o n tin u a n c e o f th a t
a ct, th re e tim e s a w e e k f o r a n u m b e r o f m o n th s , th e in t e r v ie w in g
u p o n th e s id e w a lk o f in t e n d in g c u s to m e r s o f p la in t iff, th e a d v is in g
o f th e m n o t t o p u r c h a s e b r e a d fr o m th e p la in t iff, a n d th e g a t h e r in g
o f a la r g e n u m b e r o f m e n in fr o n t o f th e p la in t iff’s s to r e , c a n n o t b e
r e g a r d e d as a n y t h in g b u t a n in fr in g e m e n t u p o n th e p la in t iff’s r ig h t s .
T h e u n io n w a s w it h in its le g a l r ig h t s in p u b lis h in g a n d d is t r ib u t
in g th e c ir c u la r , s o lic it in g its s y m p a th iz e r s a n d fr ie n d s t o w it h d r a w
t h e ir p a t r o n a g e , o r t o r e fr a in fr o m p a t r o n iz in g th e p la in t iff. [C a s e s
c it e d .]
A t th is p o in t th e m e th o d o f s u in g th e a s s o c ia tio n , t h r o u g h its
tr e a s u r e r as a r e p r e s e n ta tiv e , is s h o w n t o b e a p r o p e r o n e b y r e fe r
e n ce to th e sta tu te s a n d th e d e c id e d ca ses, t h o u g h n o d e c is io n w a s
m a d e as t o d a m a g e s . T h e o p in io n c o n c lu d e s as f o l l o w s :
N o ju s t c o m p la in t ca n b e m a d e b y th e p la in t iff a g a in s t th e u n io n ’s
c ir c u la r iz in g th e n e ig h b o r h o o d , a s k in g th e fr ie n d s o f u n io n la b o r
n o t to p a t r o n iz e th e p la in t iff, n o r ca n th e p la in t iff see k to r e s tr a in
th e u n io n , its m e m b e r s, o r a g e n ts fr o m p e a c e a b ly p e r s u a d in g p r o
p o s e d p a t r o n s o f th e p la in t iff fr o m t r a d in g in h is s h o p . T h e d o in g
o f th o se t h in g s w ill n o t b e r e s tra in e d . B u t a ju d g m e n t w ill b e e n
te r e d h e re r e s t r a in in g th e in d iv id u a l d e fe n d a n t s n a m e d h e re , a n d th e
d e fe n d a n t u n io n , its officers, m e m b e r s, a g e n ts , a n d e m p lo y e e s , fr o m
c o n g r e g a t in g in fr o n t o f p la in t iff’s s h o p , f r o m m a r c h in g u p a n d
d o w n u p o n th e s id e w a lk in fr o n t o f h is s h o p , f r o m b lo c k a d in g th e
e n tr a n c e t o h is s to r e , a n d fr o m in a n y w a y o r m a n n e r p r e v e n t in g
in t e n d in g c u s to m e r s f r o m e n t e r in g o r d e p a r t in g f r o m p la in t iff’s sh o p ,
o r in a n y m a n n e r b y th re a ts , v io le n c e , in t im id a t io n , o r fo r c e , in t e r
f e r i n g w it h p la in t iff’s e m p lo y e e s o r th o s e w h o m a y see k e m p lo y m e n t
fr o m p la in t iff.
L a bo r O r g a n i z a t i o n s — P i c k e t i n g — M u n i c i p a l O r d i n a n c e — E x
parte Stout, Court o f Criminal Appeals o f Texas (Nov. 21, 1917),
198 Southwestern Reporter, page 967.— T o m O . S t o u t w a s c o n v ic t e d
o f v io la t io n o f a n o r d in a n c e o f th e c it y o f E l P a s o , T e x ., a n d b r o u g h t
156
DECISIONS OF COURTS AFFECTING LABOR.
h a b e a s c o r p u s p r o c e e d in g s f o r h is rele a se. T h e o r d in a n c e in q u e s tio n
fo r b a d e w a lk in g u p a n d d o w n th e s id e w a lk in f r o n t o f a n y p la c e o f
b u sin e ss, w it h s ig n s c a r r ie d f o r th e p u r p o s e o f p e r s u a d in g a n y p e r
so n s fr o m e n t e r in g su ch p la c e t o tr a n s a c t b u sin e ss th e re in . A n o t h e r
s e c tio n o f th e o r d in a n c e s p e c ific a lly p r o v id e d t h a t it s h o u ld n o t b e
c o n s tr u e d as r e n d e r in g it u n la w fu l f o r m e m b e r s o f tr a d e -u n io n s t o
a tte m p t to p e a c e a b ly in d u c e o th e r s t o q u it e m p lo y m e n t o r r e fu s e t o
e n te r a n y p a r t ic u la r e m p lo y m e n t, etc. S t o u t , b e in g a m e m b e r o f th e
lo c a l b o d y o f th e C o o k s , W a it e r s , a n d W a it r e s s e s ’ U n io n , h a d w a lk e d
o n th e s id e w a lk b e fo r e a c e r ta in r e s ta u ra n t, b e a r in g “ s a n d w ic h ”
s ig n s s t a t in g th a t th e e s ta b lis h m e n t w a s u n fa ir t o o r g a n iz e d la b o r ,
th e fa c t b e in g th a t n o n u n io n h e lp w a s e m p lo y e d th e re . T h e o p in io n
o f th e c o u r t w a s d e liv e r e d b y J u d g e P r e n d e r g a s t , w h o firs t e x a m in e d
th e c it y c h a r te r a n d fo u n d in i t a u t h o r it y t o p a ss o r d in a n c e s o f th e
k in d in q u e s tio n , u n le ss som e c o n s t it u t io n a l o r s ta t u t o r y p r o v is io n
s h o u ld b e f o u n d t o p r o h ib it it. M a n y d e c is io n s a re c o n s id e r e d , a n d
th e c o n c lu s io n r e a c h e d th a t th e o r d in a n c e d o e s n o t v io la t e th e p r o
v is io n s o f th e T e x a s c o n s t it u t io n r e la tin g t o fr e e d o m o f s p e e c h a n d
p u b lic a t io n , n o r th o s e o f th e F e d e r a l fo u r t e e n t h a m e n d m e n t. F i n
a lly , th e o r d in a n c e is h e ld n o t t o c o n flic t w it h th e s ta tu te o f th e S ta te
m a k in g l a w fu l th e fo r m a t io n o f la b o r u n io n s , a n d c o n fir m in g th e ir
r ig h t t o p e a c e a b ly p e rs u a d e , e tc., it b e in g s h o w n th a t th e s e c tio n o f
th e o r d in a n c e it s e lf, a b o v e r e fe r r e d to , is c le a r ly in t e n d e d t o s a fe
g u a r d th e sa m e r ig h ts . T h e o r d in a n c e w a s t h e r e fo r e h e ld v a lid ,
a n d th e r e la to r r e m a n d e d t o th e c u s t o d y o f th e c it y m a r s h a l. F r o m
th e c o n c lu d in g p o r t io n o f th e o p in io n th e f o l l o w i n g is q u o t e d :
S u c h c o n d u c t as h is w o u ld n a t u r a lly le a d t o d is tu r b a n c e s , a n d h a d
a t e n d e n c y t o in t im id a t e a n d p r e v e n t a ll p e r s o n s fr o m e n t e r in g s a id
r e s ta u ra n t, a n d w o u ld n e c e s s a r ily in ju r e th e p r o p r ie t o r in h is b u s i
n ess. I t w a s th e d u t y o f th e c it y o f E l P a s o b y su ch an o r d in a n c e
to p r o t e c t h im in th e c o n d u c t o f h is b u sin e ss.
L abor
O r g a n iz a t io n s — P ic k e t in g — M u n ic ip a l
O r d i n a n c e — In
re Sw eitzer , Criminal Court o f Appeals o f Oklahoma (Feb. 17,
1917), 162 Pacific R eporter , page 113 — E v a S w e it z e r w a s a rre s te d
4.
a n d h e ld in c u s t o d y b y th e c h ie f o f p o lic e o f O k la h o m a C it y as a
re su lt o f p ic k e t in g in f r o n t o f th e L y r i c T h e a te r . T h e r e w a s a
tra d e d is p u te b e tw e e n th is th e a te r a n d its fo r m e r e m p lo y e e s . N o
c h a r g e w a s m a d e o f v io le n c e o r d is tu r b a n c e o n th e p a r t o f th e r e
s p o n d e n t, b u t it w a s c la im e d th a t sh e v io la t e d a n o r d in a n c e o f th e
c it y w h ic h p r o h ib it e d lo it e r in g a b o u t th e stre e ts a n d s id e w a lk s a n d
a t t e m p t in g t o in d u c e p e r s o n s n o t t o p a t r o n iz e a n y p la c e o f b u s i
ness. S h e s o u g h t in th is p r o c e e d in g f o r a w r it o f h a b e a s c o r p u s ,
w h ic h w a s g r a n t e d a n d sh e w a s d is c h a r g e d . T h e c o u r t h e ld th a t
TEXT AND SUMMARIES OF DECISIONS.
157
s e c tio n 376 4 , R e v is e d L a w s 1910, w h ic h a u th o r iz e s la b o r a g re e m e n ts
a n d d e cla r e s n o t c r im in a l a cts d o n e in c o m b in a tio n , i f su ch a c ts
w o u ld n o t b e c r im in a l i f c o m m it t e d b y o n e p e r s o n , g o v e r n e d th e
m a tte r , a n d s a id in r e g a r d t o i t :
T h e v e r y t h in g f o r w h ic h th e p e t it io n e r w a s a r re s te d a n d c o n
v ic t e d is s a n c tio n e d b y s t a t u t e ; a n d th e sta tu te fu r t h e r d e cla r e s th a t
it s h a ll n o t “ b e d e e m e d c r im in a l.”
W e t h in k n o o th e r c o n s t r u c t io n c a n b e p la c e d u p o n th is s ta tu te
th a n th a t it sta y s th e h a n d o f b o t h c iv il a n d c r im in a l p r o c e s s fr o m
in t e r fe r in g w it h th e p e a c e a b le a n d le g it im a t e e n d e a v o r s o f la b o r
to fu r t h e r th e ir in te re s ts , in t r a d e d is p u te s b e tw e e n th e m a n d th e ir
e m p lo y e r s .
B u t c o u n s e l f o r r e s p o n d e n t fu r t h e r in s is t th a t th e sta tu te is n o t
a p p lic a b le b e c a u s e :
“ T h e o r d in a n c e p r o h ib it s p ic k e t in g o n ly in c id e n t a lly , a n d its s c o p e
a n d e ffe c t a re m u c h b r o a d e r . I t p r o h ib it s as w e ll th e m e r c h a n t o r
th e a t r ic a l m a n a g e r fr o m fillin g s id e w a lk s a n d streets a d ja c e n t t o h is
p la c e o f b u sin e ss w it h p e d e s tr ia n s , w h o a n n o y p a s s e r s -b y w it h im
p o r t u n a t e s o lic it a t io n s .”
B u t th e le a r n e d c o u n s e l c e r t a in ly k n o w th a t in la w w e c a n n o t d o
in d ir e c t ly t h a t w h ic h m a y n o t b e d o n e d ir e c t ly . I f th e c it y c o m
m is s io n e r s c a n n o t d ir e c t ly p r o h ib it p ic k e t in g in fu r t h e r a n c e o f a
t r a d e d is p u te , t h e y c e r t a in ly c a n h o t a c c o m p lis h t h a t e n d in d ir e c t ly ,
o r , as c o u n s e l p u ts it, “ in c id e n t a lly .”
L
a bo r
O r g a n iz a t io n s — S t r ik e s — A
ssa u lt—
E
v id e n c e —
Cranford
v . State, Supreme Court o f Arkansas (June 25, 1917), 197 South
western Reporter, page 19.— R . C . C r a n fo r d , h a v in g b e e n c o n v ic t e d
in th e c ir c u it c o u r t o f S a lin e C o u n t y o n a c h a r g e o f a ssa u lt u p o n
H . W . O 'K e l l y w it h in te n t t o k ill, a n d se n te n c e d t o im p r is o n m e n t f o r
o n e y e a r , a p p e a le d fr o m th e ju d g m e n t o n th e g r o u n d th a t e v id e n c e
h a d b e e n a d m itte d o f h is r e m a r k s p r io r t o th e a lle g e d a ssa u lt. C r a n
f o r d w a s a s tr ik e r , a n d O ’K e l ly o n e o f th e cla ss k n o w n t o th e s t r ik
ers as “ sc a b s .” T h e w o r d s o f C r a n fo r d , t o th e a d m is s io n o f te s ti
m o n y a s t o w h ic h a t th e t r ia l h e m a d e o b je c t io n , w e r e t o th e e ffe ct
th a t i f th e sca b s k n e w w h a t h e k n e w th e y w o u ld b e a t h o m e w it h
t h e ir fa m ilie s . T h e c o u r t h a d a lso a llo w e d it t o b e s h o w n th a t a
s ig n h a d b e e n p u t u p a t h is p la c e , o v e r w h ic h th e r e w a s a c o m m o n ly
u sed p a s s a g e w a y , r e a d in g “ N o sca b s a llo w e d t o c r o s s th is w a y .” I t
w a s h e ld th a t th ese m a tte r s h a d b e e n p r o p e r ly a d m itte d , as t e n d in g
t o s h o w th e fe e lin g o f th e a c cu s e d t o w a r d th e cla s s o f p e r s o n s o f
w h ic h th e a ssa u lte d m a n w a s a m e m b e r. T e s t im o n y as t o th e a c t io n
o f b lo o d h o u n d s in t r a c k in g C r a n f o r d w a s h e ld a ls o t o h a v e b e e n
le g a lly a d m is s ib le , a n d th e e v id e n c e as a w h o le t o h a v e b e e n su fficien t
t o s u sta in th e v e r d ic t . T h e ju d g m e n t a n d s e n te n ce o f th e lo w e r c o u r t
w a s t h e r e fo r e a ffirm ed .
158
L
DECISIONS OF COURTS AFFECTING LABOR.
aborO r g a n iz a t io n s —
e t in g
S t r ik e s — C o n s p ir a c y — I n j u n c t i o n — P
ic k
— T ri-C ity Central Trades Council et al. v . American Steel Foun
dries , United States Circuit Court o f Appeals, Seventh Circuit {Jan.
24) 1917), 238 Federal Reporter, page 728.— S u it w a s b r o u g h t b y th e
A m e r ic a n S te e l F o u n d r ie s a g a in s t th e T r i - C i t y T r a d e s C o u n c il, a n d
in d iv id u a l d e fe n d a n t s w h o w e r e e ith e r th e c o m p a n y ’s fo r m e r e m
p lo y e e s o r m e m b e r s o f th e C o u n c il, t o se cu re a n in ju n c t io n . T h e
o b je c t w a s t o p r e v e n t a lle g e d t h r e a te n e d in ju r y t o th e c o m p a n y ’s
b u sin e ss a n d d e s t r u c t io n o f its p la n t a t G r a n it e C it y , 111., c la im e d t o
b e w o r t h $1,0 0 0 ,0 0 0 . I t w a s a lle g e d t h a t p ic k e ts h a d a ssa u lte d th e
p r e s e n t e m p lo y e e s a n d th r e a te n e d th e m a n d p r o s p e c t iv e e m p lo y e e s ,
a n d th e lik e . A d e cr e e w a s e n te r e d in a d is t r ic t c o u r t , w h ic h e n jo in e d
n o t o n ly v io le n c e , th re a ts , e tc ., b u t a ll p ic k e t in g . T h e d is t r ic t ju d g e ,
in r e n d e r in g h is o p in io n , s a i d :
T h is e v id e n c e c le a r ly s h o w s t h a t th is u n io n , th is tr a d e s c o u n c il, b y
th e t e s tim o n y o f its officers, e n te r e d u p o n th e w o r k o f p r e v e n t in g
th is c o m p la in a n t fr o m g e t t in g m e n t o r u n its f a c t o r y , r u n its p la n t ,
e x c e p t u p o n th e c o n d it io n th a t it p a y a c e r t a in sca le , th e N o v e m b e r
sca le . T h a t c o m b in a tio n w a s ille g a l. * * * U p o n th is q u e s tio n , I
s h o u ld s a y a w o r d a b o u t p ic k e t in g . T h e r e is n o su ch t h in g as p e a c e
fu l p ic k e t in g . Y o u m ig h t as w e ll t a lk a b o u t p e a c e fu l v io le n c e . Y o u
m a y as w e ll t h in k o f p e a c e fu l w a r a s p e a c e fu l p ic k e t in g .
O n a p p e a l t o th e c ir c u it c o u r t o f a p p e a ls th e d e cr e e w a s m o d ifie d
a n d a ffirm ed .’ T h e first p o in t d e c id e d w a s th a t th e F e d e r a l c o u r ts
h a d ju r is d ic t io n , as th e n e ce s s a r y d iv e r s it y o f c it iz e n s h ip w a s s h o w n ,
a n d th e a m o u n t o f p r o p e r t y th r e a te n e d w it h d e s tr u c tio n , t h o u g h n o t
th e a m o u n t a lr e a d y d e s t r o y e d , w a s in ex ce ss o f $3,000. J u d g e E v a n s ,
w h o d e liv e r e d th e o p in io n , th e n q u o t e d a u th o r itie s , in c lu d in g th e
la n g u a g e o f a t e x t -w r it e r a n d a F e d e r a l d e c is io n a ffir m in g th e r ig h t
o f p e a c e fu l p ic k e t in g , a n d c it e d m a n y o t h e r d e c is io n s o f th e sa m e
te n o r . C o n t in u in g , h e s a i d :
B u t it is c o n t e n d e d th a t th e d e c r e e in th e se r e s p e cts w a s p r o p e r
becau se:
(a) T h e r e s t r a in in g o r d e r d o e s n o t p r o h ib it p ic k e t in g p e r se, b u t
r e s tr a in s d e fe n d a n t s f r o m c a r r y in g o u t a n u n la w fu l c o n s p ir a c y to
d e s t r o y p la in t iff’s b u s in e s s ; th a t in o r d e r t o p r e v e n t th e d e fe n d a n t s
f r o m a c c o m p lis h in g th e u n la w fu l o b je c t o f th e c o n s p ir a c y , it w a s
n e c e s s a r y f o r th e c o u r t t o r e s tr a in th e d e fe n d a n t s f r o m p ic k e t in g
th e p la in t iff’s w o r k s , a n d p r o h ib it th e m f r o m a r g u in g t h e ir ca u se
w it h p la in t iff’s e m p lo y e e s .
(b) D e fe n d a n ts w e r e n o t p la in t iff’s e m p lo y e e s , b u t w e r e m e re
o u ts id e r s , in te r m e d d le r s , w h o w e r e n o t t r u ly r e p r e s e n tin g th e e m
p lo y e e s , b u t w e r e t r o u b le m a k e rs , fo m e n t in g s t r ife a n d t r o u b le w h e r e
la b o r c o n d it io n s a n d w a g e s w e r e e n t ir e ly s a t is fa c t o r y t o th e e m
p lo y e e s .
P l a i n t i f f ’s c o n t e n t io n t h a t a c o u r t m a y r e s tr a in l a w fu l a cts o f
s t r ik in g e m p lo y e e s , w h e n c o m m it t e d t o c a r r y o u t th e p u r p o s e o f ari
u n la w fu l c o n s p ir a c y t o d e s t r o y th e e m p lo y e r ’s b u sin e ss, is s u p p o r t e d
TEXT AND SUMMARIES OF DECISIONS.
159
b y m a n y a u th o r itie s . I f th e r e c o r d d is c lo s e d th e e x is te n c e o f an
u n la w fu l c o n s p ir a c y o n th e p a r t o f th e d e fe n d a n t s t o in ju r e o r
d e s t r o y p la in t iff’s p r o p e r t y th e c o u r t w o u ld b e c le a r ly ju s tifie d in
r e s t r a in in g la w fu l as w e ll as u n la w fu l a cts c o m m it t e d in fu r t h e r
a n ce o f s u ch a c o n s p ir a c y . I f th e p u r p o s e o f th e u n d e r t a k in g c o m
p la in e d o f w e r e p u r e ly a n d s im p ly , o r e v e n p r im a r ily , in t e r fe r e n c e
w it h th e p la in t iff in th e c o n d u c t o f its b u sin e ss as a lle g e d , n o a ct,
h o w e v e r in n o c e n t in it s e lf, d ir e c t e d t o th a t e n d ca n b e s a id t o h a v e
a la w fu l p u r p o s e f o r its d o in g . I n d e e d , it m a y w e ll b e s a id th a t a n y
a ct d ir e c t e d t o th a t e n d is n o t a la w fu l a ct. I f , o n th e o t h e r h a n d ,
th e o b je c t o f th e u n d e r t a k in g is la w fu l, th e n th e a cts c a lc u la te d t o
e ffe ctu a te th e o b je c t d o n o t n e c e s s a r ily b e c o m e u n la w fu l m e r e ly b e
ca u se th e y in t e r fe r e w it h th e p la in t iff’s c o n d u c t o f its b u sin e ss.
T h e r ig h t t o s tr ik e to s e c u re h ig h e r w a g e s a n d im p r o v e d c o n d i
tio n s o f la b o r is t o o fir m ly e s ta b lis h e d t o n e ce ssita te fu r t h e r e lu c id a
tio n . F r o m th e r e c o r d h e re w e c a n r e a c h n o o th e r c o n c lu s io n th a n
th a t th e o b je c t o f th is s tr ik e w a s t o s e c u re f o r p la in t iff’s e m p lo y e e s
th e N o v e m b e r w a g e sca le o f th e u n io n . N o t h in g a p p e a r s in th e
r e c o r d t o in d ic a t e th a t th is w a s n o t in g o o d fa it h , o r t o r a is e th e
s u s p ic io n th a t th e s tr ik e w a s a m e re c lo a k t o c o v e r a d e lib e r a te p u r
p o s e t o in t e r fe r e w it h th e p la in t iff’s c o n d u c t o f its b u sin e ss, o r t o
in ju r e a n d d e s t r o y its b u sin e ss a n d p r o p e r t y . T h e p u r p o s e b e in g
la w fu l, i f u n la w fu l m e a n s a re u sed t o e ffe ctu a te it, su ch m e a n s ca n
n o t b e m a d e t o r e a c h b a c k a n d ta in t th e p u r p o s e it s e lf w it h u n la w fu l
n ess, a n d th u s r e n d e r u n la w fu l a ll th e a cts in its fu r th e r a n c e . I n
th e p u r s u it o f a la w fu l p u r p o s e t o se cu re a r a ise in w a g e s , p ic k e t in g
m a y b e e m p lo y e d , as th is c o u r t h a s h e ld , t o a sc e r ta in w h o m th e la te
e m p lo y e r “ h a s p e r s u a d e d o r a tte m p te d t o p e r s u a d e t o a c c e p t e m
p lo y m e n t ,” a n d p e r s u a s io n m a y b e u se d t o in d u c e th e m t o r e fu s e o r
q u it th e e m p lo y m e n t.
U n d o u b t e d ly p ic k e t in g a n d p e r s u a s io n w o u ld in t e r fe r e w it h p la in
t i f f ’s c o n d u c t o f its b u sin e ss, in th a t it w o u ld m a k e it m o r e d iffic u lt
f o r it to r e ta in o ld e m p lo y e e s a n d t o h ir e a n d k e e p n e w on es. I n d e e d ,
th e v e r y a c t o f s t r ik in g o ft e n s e r io u s ly in t e r fe r e s w it h th a t “ fr e e a n d
u n r e s tr a in e d c o n t r o l a n d o p e r a t io n o f th e e m p lo y e r ’s b u sin e ss ” w h ic h
th e p la in t iff h e re a lle g e s as a n o b je c t o f th e c o n s p ir a c y c h a r g e d ; b u t
th e la w fu ln e s s o r u n la w fu ln e s s o f th e s tr ik e is n o t t o b e te ste d b y
su ch in c id e n t a l e ffe c t o f it. A n d so it is w it h p e r s u a s io n a n d p ic k e t in g ,
p r o p e r ly c a r r ie d o n in th e in te re s t o f ^ la w fu l strik e . T h e la b o r e r
m a y b e s t r ic t ly w it h in h is r ig h t s , a lt h o u g h h e o b s tr u c ts “ th e fr e e a n d
u n r e s tr a in e d c o n t r o l a n d o p e r a t io n o f th e e m p lo y e r ’s b u sin e ss.” T h e
r ig h t t o str ik e m u s t c a r r y w it h it b y im p lic a t io n th e r ig h t to in t e r fe r e
w it h th e e m p lo y e r ’s b u sin e ss t o a c e r ta in e x te n t. T h e r ig h t t o p e r
su a d e p r o s p e c t iv e e m p lo y e e s b y le g it im a t e a r g u m e n t m u st o f n e ce s
s ity in t e r fe r e w it h th e e m p lo y e r ’s b u sin e ss. W h e r e la b o r is e ss e n tia l
t o th e s u c c e s s fu l c o n d u c t o f a b u sin e ss, a n y in t e r fe r e n c e w it h th a t
la b o r is a n in t e r fe r e n c e w it h th e e m p lo y e r ’s b u sin e ss. B u t w h e th e r
th e in t e r fe r e n c e w it h th e b u sin e ss is la w fu l o r u n la w fu l d e p e n d s u p o n
th e fa c t s in e a ch case.
T h e o r d e r in th e in s ta n t ca se fa ils t o r e c o g n iz e th is d iffe r e n c e b e
tw e e n th e l a w fu l m e a n s o f in t e r fe r in g w it h a n o th e r ’s b u sin e ss as an
in c id e n t t o th e p a r t y ’s o w n r ig h t a n d u n la w fu l m e a n s a d o p te d b y th e
sa m e p a r t y . M e t h o d s m a y b e c o n s id e r e d la w fu l, e v e n t h o u g h th e e m
p lo y e r ’s b u sin e ss is in t e r fe r e d w it h , b e c a u s e s u c h m e th o d s a re in c i
160
DECISIONS OF COURTS AFFECTING LABOR.
d e n ta l t o th e r ig h t o f th e e m p lo y e e , w h ic h r ig h t s h o u ld b e a n d is
r e c o g n iz e d as e q u a l t o th e r ig h t o f th e e m p lo y e r .
P la in t iff’s fu r t h e r c o n t e n t io n t h a t th e d e fe n d a n t s w e r e n o t its
e m p lo y e e s a t th e tim e o f th e str ik e , a n d t h e r e fo r e h a d n o r ig h t t o
p ic k e t o r p e r s u a d e b y a r g u m e n t th o s e a b o u t t o e n te r p la in t iff’s e m
p lo y m e n t , is n o t w e ll ta k e n . I t is tr u e a s tr ik e r is n o t t e c h n ic a lly an
e m p lo y e e . T h e r e la tio n o f e m p lo y e r a n d e m p lo y e e is t e m p o r a r ily
su s p e n d e d d u r in g a strik e . T h e s itu a tio n h a s b e e n d e s c r ib e d a s :
“ A r e la tio n s h ip b e tw e e n e m p lo y e r a n d e m p lo y e e th a t is n e ith e r th a t
o f a g e n e r a l e m p lo y e r a n d e m p lo y e e n o r th a t o f e m p lo y e r a n d e m
p lo y e e s e e k in g w o r k fr o m th e m as s tr a n g e r s .”
N e ith e r s tr ik e n o r lo c k o u t f u ll y te r m in a te s d u r in g th e str ik e th e
r e la tio n s h ip b e tw e e n th e p a rtie s . A m o n g th e d e fe n d a n t s in th is ca se
th e re w e r e som e fo r m e r e m p lo y e e s . M a n y o f th e p la in t iff’s e m
p lo y e e s a t th e tim e o f th e s tr ik e w e r e m e m b e r s o f th e d e fe n d a n t s ’
o r g a n iz a t io n , th e T r i - C i t y C e n tr a l T r a d e s C o u n c il. T h e s e fa c t s d is
p r o v e th e c h a r g e th a t th e d e fe n d a n t s w e r e m e r e ly in t e r m e d d lin g in
th e a ffa ir s o f a c o m p a n y in w h ic h t h e y h a d n o in te re s t. U n d e r th e se
c ir c u m s ta n c e s it c a n n o t b e s a id th a t th e la b o r o r g a n iz a t io n w a s an
in t e r m e d d le r o r th a t its c o u r s e w a s c o n t r a r y t o th e w is h e s o f its m e m
b e r s o r th e w is h e s o f th e p la in t iff’s e m p lo y e e s .
I n so f a r as th e d e c r e e re s tra in s a ll p ic k e t in g a n d a ll p e r s u a s io n
a n d a ll in t e r fe r e n c e w it h th e p la in t iff’s fr e e a n d u n r e s tr a in e d c o n t r o l
o f its p la n t a n d th e o p e r a t io n o f its b u sin e ss, it tr a n s c e n d s th e lim it
o f p r o p e r r e s tr a in t, a n d s h o u ld b e m o d ifie d , so as to e lim in a te th e r e
fr o m a n y r e s tr a in t o f d e fe n d a n t s fr o m d o in g la w fu l a cts as in d ic a t e d
h e re in .
L a b o r O r g a n iz a tio n s — S t r ik e s — C o n sp ira c y — P ic k e t in g —
In ju n c tio n —
Alaska Steamship Co. v . International Longshore
m en s Association o f Puget Sound et al., United States D istrict
Court, W estern District W ashington (Sept. 5,1916), 236 Federal R e
porter, page 961^.— T h e A la s k a S te a m s h ip C o., in p e t it io n in g f o r a n
in ju n c t io n a g a in s t th e a s s o c ia tio n n a m e d a n d o th e r s , a lle g e d th a t
it w a s a c o m m o n c a r r ie r o p e r a t in g s te a m s h ip s b e tw e e n P u g e t S o u n d
p o r t s a n d A la s k a , c o n n e c t in g w it h r a ilr o a d s a n d w it h o th e r s te a m
s h ip lin e s , and s u b je c t to the Interstate C om m erce A c t ; th at su b s e
q u e n t t o th e s t r ik in g o f lo n g s h o r e m e n e m p lo y e d b y it in S e a ttle in
J u n e , 1916, b e lo n g in g t o a lo c a l o f th e a s s o c ia tio n , th e s tr ik e rs , b y
m e a n s o f v io le n c e a n d th re a ts , p r e v e n te d , o r a tte m p te d t o p r e v e n t,
e m p lo y e e s fr o m c o n t in u in g in th e c o m p a n y ’s s e r v ic e , p a s s e n g e rs
f r o m t a k in g p a s s a g e u p o n th e c o m p a n y ’s s te a m sh ip s, a n d e q u ip m e n t
f r o m b e in g ta k e n o n b o a r d th e vessels. I n d iv id u a l d e fe n d a n t s w e r e
officers o f th e lo c a l a s s o c ia tio n in S e a ttle , w h ic h has a m e m b e r s h ip
o f b e tw e e n 700 a n d 800, a n d o f th e P a c ific c o a s t d is t r ic t o f th e in t e r
n a t io n a l a s s o c ia tio n . O n M a y 1, 1916, th e d is t r ic t b o d y a d o p te d in
c o n v e n t io n a sca le o f w a g e s a n d h o u r s , a n d 44 it w a s d e c id e d t o e n fo r c e
a w a g e s c a le and w o r k in g r u le s .” T h e d e m a n d s w e r e n o t c o m p lie d
w it h , and th e e m p lo y e e s o f th is c o m p a n y in S e a ttle , n u m b e r in g a b o u t
TEXT AND SUMMARIES OF DECISIONS.
161
100, s t r u c k o n J u n e 1. T h e c o m p a n y th e n “ g r a n t e d a ll th e d e m a n d s
t h a t w e r e a s k e d ,” a n d th e m e n je t u r n e d t o w o r k J u n e 10. T h e y
s tr u c k a g a in o n J u n e 22 w it h o u t m a k in g a n y d e m a n d , a n d an e m
p lo y e e in th e office o f th e s e c r e ta r y o f th e d is t r ic t a s s o c ia tio n t o ld a n
o fficer o f th e c o m p a n y # th a t it m u s t g u a r a n te e t o g iv e th e m e n a ll
th e w o r k u p o n th e sm e lte r, w h ic h w a s o n e a t T a c o m a w it h w h ic h
th e c o m p a n y h a d n o t h in g t o d o . T h e v io le n t a cts c o m p la in e d o f
w e r e fo u n d t o h a v e b e e n c o m m itte d , a n d th e c o u r t , s p e a k in g t h r o u g h
J u d g e N e te r e r , h e ld th a t th e in ju n c t io n a sk e d f o r s h o u ld b e g r a n t e d .
W i t h r e fe r e n c e t o th e m a tte r s o f c o n s p ir a c y a n d p ic k e t in g , h e s a id
in p a r t :
A c o n s p ir a c y is d e fin e d as a c o m b in a tio n o f t w o o r m o r e p e r s o n s
b y c o n c e r te d a c t io n t o d o a n u n la w fu l t h in g o r t o d o a la w fu l t h in g
in an u n la w fu l m a n n e r. A c t s o f a g e n ts a n d e m p lo y e e s in fu r t h e r
a n ce o f th e c o n s p ir a c y a re th e a cts o f th e p r in c ip a ls .
A p ic k e t m a y b e c o n s id e r e d a n a g e n t o f a la b o r o r g a n iz a t io n , a n d
w h e re a p ic k e t is e s ta b lis h e d it c o u ld g o n o fa r t h e r th a n in te r v ie w s ,
p e a ce a b le p e r s u a s io n , a n d in d u c e m e n t s ; a n d s lig h t v io le n c e o r in
tim id a t io n w il l h a v e m u c h w e ig h t w ith a c h a n c e llo r in d e te r m in
in g th e c h a r a c te r o f a p ic k e t , o r th e a cts o f m e n u n d e r its d ir e c t io n ,
s in c e a p ic k e t , u n d e r th e m o s t fa v o r a b le c o n s id e r a t io n , is f o r th e
p u r p o s e o f in t e r fe r e n c e b e tw e e n o n e w h o w is h e s t o e m p lo y a n d th o s e
s e e k in g e m p lo y m e n t. C o u r ts h a v e in v a r ia b ly u p h e ld th e r ig h t o f
in d iv id u a ls t o fo r m la b o r o r g a n iz a t io n s f o r th e p r o t e c t io n o f th e
in te re s t o f th e la b o r in g cla sses, a n d su ch r ig h t is r e c o g n iz e d b y
th e u n la w fu l r e s tr a in t a n d m o n o p o ly a ct. O r g a n iz e d la b o r is o r g a n
iz e d c a p it a l, c o n s is t in g o f b r a in s a n d m u sc le , a n d h a s as la w fu l a
r ig h t t o o r g a n iz e as h a v e th e s to c k h o ld e r s a n d officers o f c o r p o r a
tio n s w h o a ss o cia te a n d c o n f e r to g e t h e r w it h r e la tio n t o w a g e s o f
e m p lo y e e s o r ru le s o f e m p lo y m e n t, o r t o d e v is e o th e r m e a n s f o r m a k
i n g t h e ir in v e s tm e n ts m o r e p r o fita b le . O r g a n iz e d la b o r a n d o r g a n
iz e d c a p it a l h a v e e q u a l la w fu l r ig h t s t o a sso cia te , c o n s u lt, a n d c o n f e r
w it h r e la tio n to w a g e s a n d r u le s o f e m p lo y m e n t. [C a s e s c it e d .]
T h e d e fe n d a n ts h a d th e r ig h t , i f t h e y so d e s ire d , t o cea se t o w o r k .
W h e t h e r th e y h a d g o o d ca u se o r n o t is n o t f o r th is c o u r t to sa y . O n
th e o th e r h a n d , th e c o m p la in a n t h a d th e r ig h t , u p o n th e d e fe n d a n t s
c e a s in g to w o r k , t o e m p lo y w h o m it e le c te d , a n d t o b e p r o t e c t e d
a g a in s t o v e r t a cts o f d e fe n d a n t s a g a in s t su ch e m p lo y e e s , a n d t o h a v e
th e u n o b s tr u c te d u se a n d e n jo y m e n t o f its p r o p e r t y . T h e r ig h t s o f
th e se v e r a l p a r tie s , as sta te d , a re r e c ip r o c a l, a n d a re m e a s u r e d b y th e
sa m e ru le .
J u d g e N e te r e r th e n sa y s th a t c o n s id e r a tio n m u s t b e g iv e n t o se c
tio n 20 o f c h a p t e r 323, k n o w n as th e C la y t o n A n t it r u s t A c t (3 8 S ta t.
L ., p . 7 3 0 ), r e la tin g t o in ju n c t io n s in la b o r d is p u te s , a n d t o se c
tio n s 3 a n d 10 o f th e I n t e r s ta te C o m m e r c e A c t , r e la t in g t o th e f a c i l i
t a t in g o f tra ffic a n d im p o s in g p e n a ltie s f o r o m is s io n o r fa ilu r e t o d o
a n y t h in g r e q u ir e d b y th e a c t o r c a u s in g su ch o m is s io n o r fa ilu r e .
64919°—18—Bull. 246------ 11
162
DECISIONS OF COURTS AFFECTING LABOR.
T h e s e c tio n s r e fe r r e d t o a r e q u o te d , a ft e r w h ic h th e o p in io n c o n c lu d e s
as f o l l o w s :
S e c tio n s 3 a n d 10 s u p r a [ o f th e I n t e r s ta te C o m m e r c e A c t ] im p o s e
d u tie s o n c o m p la in a n t , w it h p e n a ltie s a tta c h e d f o r v io la t io n . T h e
t e s tim o n y s h o w s t h a t th e c o m p la in a n t c o m p a n y is a c a r r ie r o f in t e r
sta te c o m m e r c e . I t lik e w is e c a r r ie s U n it e d S u ite s m a il f r o m th e p o r t
o f S e a ttle t o th e v a r io u s p o r t s a n d p la c e s in th e T e r r it o r y o f A la s k a ,
a t w h ic h p o r t s th e c o m m e r c e a n d m a ils a re d e liv e r e d to th e v a r io u s
c o n n e c t in g lin e s o f t r a n s p o r t a t io n , a n d as su ch c a r r ie r su sta in s a
s p e c ia l r e la tio n t o th e p u b lic . I t is c le a r ly e s ta b lis h e d th a t th e d e
fe n d a n t s d id c o o p e r a t e a n d c o n fe d e r a t e t o g e t h e r a n d w it h o th e r s fp r
th e p u r p o s e o f p r e v e n t in g th e p la in t iff fr o m c a r r y in g o n its b u sin e ss
as a c a r r ie r o f in te r s ta te c o m m e r c e a n d U n it e d S ta te s m a il. I t is
a lso e s ta b lis h e d th a t th e a cts d o n e w e n t b e y o n d th e p r iv ile g e e x te n d e d
a n d lic e n s e g r a n t e d t o d e fe n d a n t s b y s e c tio n 20, s u p r a [ o f th e C la y t o n
A c t ] , a n d i n fr in g e d u p o n th e r ig h t s o f c o m p la in a n t , a n d t h a t th ese
a cts a re a t tr ib u ta b le t o d e fe n d a n ts .
W h ile th e r e is n o te s tim o n y th a t a n y o f th e se a cts w e r e e x p r e s s ly
a u t h o r iz e d , th e re is n o e v id e n c e th a t th e a cts w e r e d is a p p r o v e d , o r
m e m b e r s d is c ip lin e d o r e x p e lle d . T h e t e s tim o n y d o e s s h o w th a t th e
d e fe n d a n t s d id h a v e c o n t r o l o f th e s itu a tio n , a n d d id n o t e x e r c is e th e ir
in flu e n c e o r p o w e r to c o r r e c t th e ir r e g u la r it ie s o r d isa v ow ; th e a cts
u n t il th e is s u a n c e o f th e t e m p o r a r y r e s t r a in in g o r d e r a n d s e r v ic e u p o n
th e d e fe n d a n t s , w h e n a ll o v e r t a cts c e a se d , w h ic h , c o n s id e r e d w it h
w h a t d e fe n d a n t s d id d o , c o n fir m s th e c o n c lu s io n th a t th e a cts w e r e
u n d e r th e a u t h o r it y a n d w it h in th e c o n t r o l o f d e fe n d a n ts . I t h in k
it is c le a r ly s h o w n th a t th e r ig h t s o f th e c o m p la in a n t as a n in te rs ta te
c o m m e r c e a n d U n it e d S ta te s m a il c a r r ie r w e r e v io la t e d , th a t d e fe n d
a n ts e x c e e d e d th e p r iv ile g e s g r a n te d b y th e A n t it r u s t A c t , a n d th e
d u t y im p o s e d u p o n p la in t iff b y th e C o m m e r c e A c t w a s je o p a r d iz e d .
I t is n o t th e p u r p o s e o f th is c o u r t t o u n d e r ta k e th e p o l ic in g o f th e
c it y o f S e a ttle w it h r e la tio n t o th e e m p lo y e e s o f c o m p la in a n t , b u t
t h e issu e h e re is lim it e d t o P ie r s 2 a n d A a n d a p p r o a c h e s th e re to .
N o r is it th e p u r p o s e o f th e c o u r t t o a b r id g e a n y o f th e r ig h t s g iv e n
b y s e c tio n 20 o f th e A n t it r u s t A c t . D e fe n d a n t officers a n d m e m b e r s
o f d e fe n d a n t a s s o c ia tio n w ill b e e n jo in e d f r o m u n la w fu lly c a u s in g ,
in d u c in g , o r in a n y w a y f o r w a r d in g a n y o f th e a cts c o m p la in e d o f as
lim it e d h e re in , a n d in a c c o r d a n c e w it h th e v ie w h e re e x p r e s s e d .
Labor
O r g a n iz a tio n s — S t r ik e s — I n j u n c t i o n — Cohn & Roth
E lectric Co. v . Bricklayers , Masons,
Plasterers ’ Local Union
No. 1 et al., Supreme Court o f Errors o f Connecticut (A ug. # , 1917),
101 A tlantic R eporter , page 659.— T h e c o m p a n y n a m e d su e d f o r an
in ju n c t io n t o r e s tr a in th e d e fe n d a n t s f r o m in t im id a t in g b y s trik e s,
th r e a ts o f str ik e s , b o y c o t t s , o r o th e r w is e a n y p r o p e r t y o w n e r , b u ild e r ,
o r c o n t r a c t o r , f o r th e p u r p o s e o f in d u c in g th e la tte r t o c a n c e l c o n
t r a c t s w it h th e c o m p a n y o r t o r e fr a in f r o m e n t e r in g in t o c o n t r a c ts
w it h it. T h e c o m p a n y c o n d u c t e d a n o p e n s h o p , a n d it a p p e a r e d t h a t
th e u n io n h a d a g r e e d n o t t o w o r k f o r a n y g e n e r a l c o n t r a c t o r o r o n
TEXT AND SUMMARIES OF DECISIONS.
163
a n y jo b i f a n y o p e n -s h o p co n tra cto P * w a s e n g a g e d in fu r n is h in g la b o r
o r m a te ria ls . T h e c o m p la in t r e c it e d th a t in o n e in s ta n c e th e u n io n
m e n h a d r e fu s e d t o w o r k o n a ll o f fiv e b u ild in g s in p r o c e s s o f e r e c
tio n b y o n e c o n t r a c t o r b e ca u se th e e le c t r ic c o m p a n y ’s n o n u n io n e m
p lo y e e s w e r e a t w o r k o n o n e o f th e b u ild in g s . T h e c o u r t , h o w e v e r ,
h e ld th a t t h is is o la te d in s ta n c e c o u ld n o t b e ta k e n in t o c o n s id e r a t io n
in d e t e r m in in g th e la w fu ln e s s o f th e a cts o f th e u n io n . T h e s u p e r io r
c o u r t o f H a r t f o r d C o u n t y h a d g iv e n ju d g m e n t in f a v o r o f th e u n io n ,
a n d th is is a ffirm ed b y th e c o u r t o f e r r o r s a n d a p p e a ls in th e p re s e n t
o p in io n , w h ic h w a s d e liv e r e d b y J u d g e W h e e le r , a n d f r o m w h ic h th e
f o l l o w i n g is q u o t e d :
T h e a g r e e m e n t o f th e d e fe n d a n t u n io n s a n d t h e ir m e m b e r s, t h a t
th e m e m b e r s w o u ld r e fu s e t o w o r k w it h n o n u n io n m e n , f o llo w e d b y
a c tio n b y th e m e m b e r s c e a s in g t o w o r k w it h th e n o n u n io n m e n o f
th e p la in t iff, is th e o n ly g r o u n d o f c o m p la in t w h ic h th e fa c t s fo u n d
s u p p o r t . I n d iv id u a ls m a y w o r k f o r w h o m th e y p le a se , a n d q u it
w o r k w h e n th e y p le a s e ,‘ p r o v id e d t h e y d o n o t v io la t e th e ir c o n t r a c t
o f e m p lo y m e n t.
C o m b in a t io n s o f in d iv id u a ls h a v e s im ila r r ig h t s , b u t th e lia b ilit y
t o in ju r y f r o m th e c o n c e r t e d a c tio n o f m e m b e r s h a s p la c e d u p o n t h e ir
fr e e d o m t o q u it w o r k th e se a d d it io n a l q u a lific a tio n s : T h a t t h e ir
a c tio n m u s t b e ta k e n f o r t h e ir o w n in te re s t, a n d n o t f o r th e p r im a r y
p u r p o s e o f in ju r in g a n o th e r o r o th e r s , ^ n d n e ith e r in e n d s o u g h t, n o r
in m e a n s a d o p te d t o s e c u re th a t e n d , m u st it b e p r o h ib it e d b y la w
n o r in c o n t r a v e n t io n o f p u b lic p o lic y . C o n n o r s v. C o n n o lly , 86 C o n n .
641, 86 A t l . 600 [B u i. N o . 152, p . 2 8 9 ], is a n e x a m p le o f a n a g r e e
m e n t w h ic h w e h o ld t o b e c o n t r a r y t o p u b lic p o lic y . T h e m e m b e r s
o f a u n io n , a c t in g u p o n th e ir a g re e m e n t, m a y r e fu s e t o e n te r u p o n
e m p lo y m e n t w it h n o n u n io n la b o r , o r r e fu s e t o c o n tin u e t h e ir e m
p lo y m e n t w it h n o n u n io n la b o r , p r o v id e d th e ir a c t io n d o e s n o t f a l l
w it h in th e q u a lific a tio n s o f t h e ir fr e e d o m o f a c t io n a lr e a d y sta te d .
[C a s e s c it e d .]
T h e e n d th e d e fe n d a n t s h a d in v ie w b y th e ir b y -la w s w a s thQ
s t r e n g t h e n in g o f t h e ir u n io n s . T h a t w a s a le g it im a t e e n d . T h e r e
is n o in d ic a t io n th a t th e r e a l p u r p o s e o f th e d e fe n d a n t s w a s in ju r y
t o th e p la in t iff o r th e n o n u n io n m e n it e m p lo y e d . W h a t e v e r in ju r y
w a s d o n e th e p la in t iff w a s a c o n s e q u e n ce o f tr a d e c o m p e t itio n , a n d
a n in c id e n t t o a c o u r s e o f c o n d u c t b y th e d e fe n d a n ts , b e g u n a n d
p r o s e c u te d f o r th e ir o w n le g it im a t e in te re s ts . T h e m e a n s a d o p te d
w e r e l a w f u l ; n o u n la w fu l c o m p u ls io n in a c t o r w o r d w a s p re s e n t.
L
abo r
O r g a n iz a t io n s — S t r ik e s — I
n j u n c t io n —
C ontem pt— P
un
— Flockhart v. Local No. Ifi, International Molders* Union
o f North Am erica , et al., Court o f Chancery o f New Jersey {Oct. 11,
1917), 102 Atlantic Reporter, page 658.— O n th e a p p lic a t io n o f J a m e s
F lo c k h a r t a n in ju n c t io n w a s g r a n t e d r e s t r a in in g th e u n io n n a m e d
a n d o th e r s fr o m u n la w fu l p r a c t ic e s in c o n n e c t io n w it h a strik e . I n
th e p r e s e n t p h a se o f th e p r o c e e d in g s J u d g e L a n e h a d b e f o r e h im f o r
is h m e n t
164
DECISIONS OF COURTS AFFECTING LABOR.
c o n t e m p t, c o n s is t in g o f v io la t io n o f th e in ju n c t io n o r d e r , o n e S te v e n
s o n , w h o m h e d e s c r ib e s as th e “ h e a d a n d fr o n t n o t o n ly o f th e str ik e ,
b u t o f th e ev e n ts c o n s t it u t in g th e v io la t io n o f th e o r d e r .” T h e te s ti
m o n y is h e ld t o p r o v e su ch v io la t io n o n th e p a r t o f S te v e n s o n . O n e
S c h u m h a d a lr e a d y b e e n a d ju d g e d g u ilt y o f c o n t e m p t, a n d th e q u e s
t io n o f th e s e n te n ce t o b e g iv e n th ese m e n w a s ta k e n u p . A s t o
S te v e n s o n ’s a c t iv it ie s J u d g e L a n e s a id in p a r t :
H e a ssu m e d th a t h e c o u ld in s o m e w a y o r a n o th e r g e t r id o f b e in g
p u n is h e d f o r a n y t h in g th a t h e d id w h ic h h e t h o u g h t w a s n e ce ssa r y t o
b e d o n e in o r d e r th a t th is str ik e s h o u ld b e s u c c e s s fu l, in c lu d in g p e r
siste n t v io le n c e , v io le n c e w h ic h p o s s ib ly d id n o t g o to a c tu a l in ju r y
t o l if e o r lim b , b u t in s u lt in g re m a rk s, a tte m p ts b y in t im id a t io n t o
p r e v e n t w o r k e r s fr o m e x e r c is in g th e ir in a lie n a b le r ig h t t o w o r k w h e r e
th e y p le a se a n d w h e n th e y p le a se.
T h e c o n c lu s io n r e a ch e d w a s th a t th e o n ly a d e q u a te p u n is h m e n t
w h ic h w o u ld a c tu a lly p r e v e n t r e cu r re n c e o f th e o ffe n s e w a s a ja il sen - *
te n ce , a n d su ch sen ten ce w a s im p o s e d u p o n ‘ S te v e n s o n f o r 40 d a y s
a n d S c h u m f o r 20 d a y s. T h r e e w e e k s la te r a p le a f o r r e m issio n o f
s e n te n ce w a s b e fo r e th e sa m e ju d g e , a n d it w a s g r a n t e d , h e s a y in g
th a t in h is o p in io n th e p r is o n e r s a n d th e ir a sso cia te s “ n o w r e a liz e
th a t th e la w a n d o r d e r s o f th e c o u r t m u st b e o b e y e d , a n d th a t th e
le n g t h o f t im e th a t th e y h a v e .b e e n in ja i l h a s b e e n su fficien t t o c o n
v in c e th e m o f th a t fa c t .”
L a b o r O r g a n iz a tio n s — S t r ik e s — I n j u n c t i o n — D a m a ges — Max
Am s Machine Go. v . International Association o f Machinists , B ridge
port Lodge , No. SO, et a lS u p r e m e Court o f Errors of Connecticut
(Dec. 15 , 1917) , 102 Atlantic R eporter , page 706.— T h e c o m p a n y
n a m e d su ed f o r a n in ju n c t io n t o r e s tr a in th e la b o r u n io n m e n tio n e d ,
its b u sin e ss a g e n t, a n d t w o o th e r m e m b e r s fr o m p ic k e t in g its p la n t
a n d fr o m p r e v e n t in g p e rs o n s fr o m e n te r in g its e m p lo y m e n t o r c o n
t in u in g th e re in b y th re a ts , in t im id a t io n , o r o th e r w ise . T e m p o r a r y
a n d p e r m a n e n t in ju n c t io n s w e r e s u c c e s s iv e ly g r a n t e d , a n d a ju r y
t r ia l w a s h a d as to th e a m o u n t o f th e d a m a g e s w h ic h w e r e d e m a n d e d
b y th e c o m p a n y in th e sa m e a c tio n . T h e v e r d ic t w a s f o r $ 5,0 00, b u t
th e u n io n o b je c t e d t o c e r ta in in c id e n ts o f th e t r ia l a n d a p p e a le d , a n d
in th e p re s e n t d e c is io n a n e w t r ia l w a s g r a n te d . A p a r t o f th e e x
p en ses c la im e d b y th e c o m p a n y w a s f o r th e m a in te n a n c e o f g u a r d s
t o p r o t e c t its p r o p e r t y , a n d , s in c e e v id e n c e w a s a d m itte d a n d m e n
t io n m a d e in th e c h a r g e t o th e ju r y o f c e r ta in “ r u m o rs , r e p o r ts ,
n e w s p a p e r sta tem en ts, a n d o th e r it e m s ” in d ic a t in g an in te n tio n o n
th e p a r t o f th e d e fe n d a n ts t o c o n tin u e u n la w fu l p r a c tic e s a ft e r th e
issu a n ce o f th e in ju n c t io n , it a p p e a r e d th a t th e ju r y m ig h t h a v e
c o n s id e r e d th a t th e e x p e n se s o f su ch g u a r d s a ft e r th e in ju n c t io n h a d
b e e n issu e d , as w e ll as b e fo r e , w e r e c h a r g e a b le t o th e d e fe n d a n ts .
165
TEXT AND SUMMARIES OF DECISIONS.
T h e c o u r t s h o w s th a t th e re c o u ld b e n o a s s u m p tio n th a t th e in ju n c
t io n w o u ld b e v io la t e d , a n d th a t, t h o u g h p r u d e n c e m ig h t d ic ta te th e
c o n t in u e d e m p lo y m e n t o f g u a r d s , it w a s th e d u t y o f th e c o m p a n y
it s e lf to b e a r th e e x p e n se . T h e d e fe n d a n ts fu r t h e r c o m p la in e d o f
th e in s tr u c tio n th a t th e c o m p a n y w a s e n title d to a v e r d ic t f o r n o m i
n a l d a m a g e s in a n y e v e n t, b u t th is w a s h e ld c o r r e c t. C e r ta in o r d e r s
sig n e d w ith r u b b e r sta m p s, b u t a u th e n tica te d b y o th e r m e a n s th a n
th e s ig n a tu re , h a d b e e n a d m itte d f o r th e p u r p o s e o f s h o w in g d a m
a g es, th e c o n d it io n s a r is in g o u t o f th e s tr ik e h a v in g m a d e it n e ce s
s a r y t o r e je c t th ese o r d e rs . T h e a d m is s io n o f th is e v id e n c e w a s,
o v e r th e o b je c t io n o f th e d e fe n d a n ts , h e ld to ^ h a v e b e e n p r o p e r ; b u t
o n a c c o u n t o f th e e r r o r as t o th e a llo w a n c e o f d a m a g e s f o r th e m a in
te n a n ce o f g u a r d s d u r in g th e e n tir e p e r io d , a n e w t r ia l w a s o r d e r e d
as p r e v io u s ly in d ic a te d .
L a b o r O r g a n iz a tio n s — S t r ik e s — I n j u n c t i o n — P ic k e t in g — C l a t -
Stephens v. Ohio Telephone Co ., United States District
Court , Northern District Ohio (Feb. H , 1917), 21fi Federal R eporter ,
page 759.— A . C . Stephens and others brought suits against the tele
to n A c t —
phone com pany nam ed, a lleg in g th at they
were subscribers and
representatives o f all the subscribers o f the telephone com pany.
It
w as alleged th at the com pany was obligated by its charter and its
contracts w ith its subscribers to give suitable service, but th at fo r
some tim e it had fa iled to keep its lines in reasonable repair or its
w o rk in g force com plete, and to giv e reasonable local or long-distanca
service.
T h e b ill asked th at the com pany be ordered to observe its
duties and obligations as an interstate carrier and a public u tility
under the acts o f C ongress govern in g interstate carriers and its con
tracts, and th at it be determ ined and decreed that the righ ts o f the
public are param ount to the p rivate interests o f the com pany, its
officers and em ployees, and all other persons whom soever.
A n oth er
com plain t by a telephone com pany in M ich ig a n w hich depended on
the O h io com pany fo r its O h io connections w as consolidated w ith
the one brought by the subscribers.
A
p relim in ary order w as issued
fin din g that the cables o f the com pany had du rin g the previous three
weeks been cut and destroyed at places m entioned in the com plaint,
and ordering th at they be repaired and thereafter m aintained in
good condition fo r operation.
A
provision fo u n d in the order was
as fo llo w s :
I t is fu rth er ordered, adju dged, and decreed that the defendant
com pany, its officers, agents, servants, and em ployees, those in concert
or participatin g w ith them , and all persons whatsoever, and p a r
ticu larly all persons h a v in g notice o f this order, be and are hereby
enjoined and restrained fro m in terferin g in any w ay, or in any m a n
ner, w ith the cables hereinbefore enum erated, or w ith the repair o f
166
DECISIONS
of
courts
a f f e c t in g
labor.
s a id c a b le s, o r w it h w o r k m e n e n g a g e d in r e p a ir in g s a id ca b le s, o r
w it h th e e m p lo y e e s o f d e fe n d a n t c o m p a n y w h e n in th e c o m p a n y ’s
s e r v ic e ; a n d a ll s a id p e r s o n s a n d p a r t ie s a r e e n jo in e d a n d r e s tr a in e d
f r o m d o in g a n y a cts o r t h in g s w h ic h m a y in t e r fe r e in a n y r e s p e c t
w it h th e p e r fo r m a n c e o f th e d u tie s a n d o b lig a t io n s o f th e d e fe n d a n t
c o m p a n y as a c o m m o n c a r r ie r .
T h e an sw er* o f th e te le p h o n e c o m p a n y w a s file d a ft e r th e e n t e r in g
o f th e p r e lim in a r y o r d e r a n d set u p t h a t th e d a m a g e t o th e lin e s w a s
d o n e b y s tr ik e r s a n d th e ir s y m p a th iz e r s , w h o p r e v e n te d th e e m p lo y
m e n t o f a f o r c e t o k e e p th e lin e s in o r d e r a n d t o o p e r a t e th e sy ste m
p r o p e r ly . P r i o r t o th is a n sw e r, h o w e v e r , B e r t H o ffm a n , r e p r e s e n t
i n g L o c a l 245 o f th e I n t e r n a t io n a l B r o t h e r h o o d o f E le c t r ic a l W o r k
ers, p e t it io n e d t o in te r v e n e a n d w a s a llo w e d t o d o so. I n th is p e t i
t io n th e u n io n d e n ie d p a r t ic ip a t io n in th e d a m a g e t o th e lin e s o f th e
c o m p a n y . I t w a s a sse rte d th a t th e s tr ik e w a s b e in g c o n d u c t e d b y
p e a c e fu l a n d la w fu l m e a n s, a n d t h a t “ u n t il s a id c o m p a n y s h a ll c o m
p ly w it h s a id d e m a n d s o f its e m p lo y e e s t h is p e t it io n e r w ill, in e v e r y
p e a c e a b le a n d la w fu l m a n n e r p o s s ib le , in t e r fe r e w it h th e b u sin e ss o f
s a id t e le p h o n e c o m p a n y .” T h e t e m p o r a r y r e s t r a in in g o r d e r la te r
b e c a m e a t e m p o r a r y m a n d a t o r y in ju n c t io n , a n d a ft e r w a r d s t e s tim o n y
w a s ta k e n as t o v io la t io n s o f it b y v a r io u s p a r tie s , in c lu d in g H o ffm a n .
T h e r e tu r n s o f th e r e s p o n d e n ts r a is e d th e q u e s tio n w h e th e r th e in
ju n c t io n w a s t o o b r o a d a n d in d e fin ite in a t t e m p t in g t o r e s tr a in th e
s t r ik e r s f r o m a c tio n s w h ic h w e r e c la im e d t o b e la w fu l u n d e r th e s e c
t io n s o f th e C la y t o n A c t r e la t in g t o la b o r d is p u te s . J u d g e K illit s ,
in d e liv e r in g th e o p in io n , e x p r e s s e d h is v ie w s as t o th e e ffe c t o f th a t
a c t u p o n c o n t r o v e r s ie s in v o lv in g p u b lic u t ilitie s a n d t h e ir e m p lo y e e s .
H e r e a c h e d th e c o n c lu s io n t h a t th e m o tio n s b y th e u n io n m e m b e r s
a t t a c k in g th e in fo r m a t io n s a g a in s t th e m s h o u ld b e d e n ie d , a n d th e
p r o c e e d in g s c o n t in u e d u n d e r s u ch in fo r m a t io n s as s t a t in g g r o u n d s
f o r h o ld in g th e r e s p o n d e n ts g u ilt y i f th e a lle g a t io n s m a d e th e r e in
s h o u ld b e p r o v e d . T h e f o l l o w i n g q u o ta tio n s a r e m a d e f r o m th e
o p in io n :
T h e s e c o n d p a r a g r a p h o f s e c tio n 20 [ o f th e C la y t o n A c t ] w e q u o te
in f u ll as th e im p o r t a n t o n e. I t h a s s o m e tim e s b e e n c a lle d “ L a b o r ’s
B i l l o f R ig h t s .” W e m a y as w e ll c a ll it a n “ E m p lo y e r ’s B i ll o f
R ig h t s ,” a n d a lso , w h e n th e re is a la b o r c o n t r o v e r s y in v o lv in g a
p u b lic u t ilit y as h e re , th e “ P u b l ic ’s B i ll o f R ig h t s .” T h e “ r ig h t s ”
g u a r a n te e d b y it t o th e e m p lo y e e s , “ in a n y ca se b e tw e e n e m p lo y e r
a n d e m p lo y e e s ,” a re t o b e set u p a g a in s t a n d lim it e d b y c e r ta in
“ r ig h t s ” o f th e e m p lo y e r th e r e in w r itte n . H e h a s ju s t as m u c h
r ig h t , u n d e r th is s e c tio n , th a t h is e m p lo y e e s s h a ll n o t e x c e e d th e
lim it s o f t h e ir r ig h t s u n d e r it as th e y h a v e t o e n jo y th e m . T h e r ig h t s
o f th e e m p lo y e r b e g in w h e r e th o s e o f th e e m p lo y e e s s to p . T h e g r a n t
i n g o f a “ r ig h t ” b y sta tu te a lw a y s in v o lv e s a n o b lig a t io n u p o n th e
fa v o r e d o n e n o t t o e x ce e d its lim ita tio n s . [P a r a g r a p h q u o t e d .]
I t is w e ll t o n o te , a n d n o t to lo se s ig h t o f , th e fa c t th a t th e w o r d s
“ la w f u l l y ,” “ p e a c e fu lly ,” “ l a w f u l ,” “ p e a c e fu l,” d o m in a te th e
TEXT AND SUMMARIES OF DECISIONS.
167
t h o u g h t o f th e s e c o n d p a r a g r a p h o f th e s e c tio n in q u e s t io n ; th e y
c o n t r o l its m e a n in g , as t h e y c o n t r o l b o t h th e c o u r t a n d th e p a r tie s to
a la b o r c o n t r o v e r s y . T h e sta tu te b u t e n a cts th e p o s it io n w h ic h
c o u r t s h a v e u n iv e r s a lly t a k e n ; th e re is n o t h in g n e w in it, f o r w e
h o ld th a t n o ca se e x is ts w h e r e a c o u r t h a s a tte m p te d ju r is d ic t io n t o
c o n t r o l la w fu l a n d p e a c e a b le a c tio n b y in ju n c t io n , a lt h o u g h it m a y
seem th a t s o m e tim e s ju d g m e n t m a y h a v e b e e n fa u lt y as t o w h a t p a r
t ic u la r a c tio n w a s “ u n la w fu l ” o r p r o v o c a t iv e o f a d is t u r b e d p e a ce .
T h e c h a lle n g e t o th e c o u r t is t o d e fin e “ p e a c e fu l p ic k e t in g ” w it h in
th e lim it s o f th is s e c tio n . T h is d o e s n o t seem t o b e a n o c c a s io n f o r
an a tte m p t a t a n a c a d e m ic fo r m u la , w h ic h , in a n y d e ta il, w o u ld m e e t
a ll e x ig e n c ie s p o s s ib le in la b o r c o n tr o v e r s ie s , i f o n e c o u ld b e
d raw n up.
E a c h ca se p re s e n ts its o w n p e c u lia r q u e stio n s. A n a ct m a y b e
l a w fu l a n d p e a c e fu l, o r th e o p p o s it e , a c c o r d in g t o its s e ttin g . I t is
e a sie r, a n d f a r m o r e p r a c t ic a b le , t h e r e fo r e , t o d e a l in p r o h ib it io n s
th a n in a ffirm a tio n s . B r o a d g e n e r a liz a tio n s , h o w e v e r , a re e a s ily
fr a m e d , b e ca u se , i f w e ju s t k e e p in m in d th e p r e v a le n c e in th e sta tu te
o f th e q u a lify in g id e a o f “ p e a c e f u l ” a n d “ l a w f u l ” a c tio n , w e c a n
n o t b e m is le d . T h e b e s t w e h a v e seen is o n e la t e ly a p p e a r in g in a
n e w s p a p e r d e v o t e d t o la b o r in te rests. I t i s :
“ W h a t c o n s titu te s p e a c e fu l p ic k e t in g m a y b e a n s w e r e d b y a n y
fa ir -m in d e d m a n , i f t h is q u e s tio n is a s k e d ,4 W o u l d t h is b e l a w fu l i f
n o s tr ik e e x is te d ? 5 ”
W e a c c e p t th is as a v e r y g o o d test, a n d a p p ly it t o th e c o n c r e te
q u e s tio n s o f fa c t a r is in g in th is ca se, as p r o p o u n d e d in th e se v e r a l
in fo r m a t io n s , w it h c o n c lu s io n s c e r ta in t o c o m e t o e v e r y “ fa ir -m in d e d
m a n .” S u p p o s e n o s tr ik e w e r e in p r o g r e s s —
W o u l d it b e la w fu l f o r o n e o r m o r e m e n t o u se o ffe n s iv e , a b u siv e ,
in s u lt in g , o r th r e a te n in g la n g u a g e t o a n o th e r o r o th e r s — f o r o n e t o
c a ll a n o th e r a “ r a t ,” a “ s c a b ,” a “ t h ie f ,” a n “ o u tc a s t,” o r b y a n y
o t h e r n a m e c o m m o n ly a c c e p te d as o ffe n s iv e , o r d e g r a d in g , o r c a lc u
la t e d t o p r o v o k e th e o th e r t o b r e a k th e p e a c e in r e s e n tm e n t? [O t h e r
q u e s tio n s fo r m u la t e d , b a s e d u p o n th e e v id e n c e a n d in fo r m a t io n .]
B e c a u s e su ch o c c u r r e n c e s a re lia b le t o b e th e r e s u lt o f p a s s io n s in
fla m e d b y su ch c o n tr o v e r s ie s , th e r e is a n in s is te n t a n d u n d e n ia b le
d e m a n d th a t a ll p e r s o n s h a v in g p a r t in a s tr ik e , w h o a r e t r y in g t o
e x e r c is e th e ir r ig h t s u n d e r th e la w to m a in ta in a str ik e , s h o u ld b e
p e r s is te n t in t h e ir e ffo r ts t o k e e p th e c o n t r o v e r s y w it h in la w fu l
b o u n d s a n d t o g u a r d th a t th e se in e x c u s a b le r e s u lts d o n o t f o l l o w ;
o th e r w is e , in th e e s tim a te o f th e p u b lic g e n e r a lly , t h e y w ill b e h e ld
t o s o m e c o n s id e r a b le m e a su re o f r e s p o n s ib ilit y .
T h e r ig h t o f fr e e s p e e c h d o e s n o t g iv e a n y o n e th e p r iv ile g e t o
f o r c e h is v ie w s u p o n o th e r s , t o c o m p e l o th e r s t o lis te n . T h e r ig h t o f
th e o th e r s t o lis te n o r t o d e c lin e to ' lis te n is as s a c re d as th a t o f fr e e
sp e e ch . I t is c le a r th a t, i f o n e d o e s n o t d e s ir e sp e e ch o f a n o th e r, h e
m a y as s u r e ly h a v e h is p r iv a c y t h e r e fr o m as th e p r iv a c y o f h is h o m e .
I t is u n d e n ia b le t h a t th e s o -c a lle d r ig h t o f p e a c e fu l p e r s u a s io n m a y
b e la w fu l l y e x e r c is e d o n ly u p o n th o s e w h o a re w illin g t o lis te n t o
th e p e r s u a s iv e a r g u m e n ts .
I t is a s a fe a n d p r o p e r g e n e r a liz a t io n th a t a n y a c tio n h a v in g in it
th e e le m e n t o f in t im id a t io n o r c o e r c io n , o r a b u se, p h y s ic a l o r v e r b a l,
o r o f in v a s io n o f r ig h t s o f p r iv a c y , w h e n n o t p e r f o r m e d u n d e r s a n c
tio n s o f la w b y th o s e l a w f u l l y e m p o w e r e d t o e n fo r c e th e la w , is u n
168
DECISIONS OP COURTS AFFECTING LABOR.
l a w f u l ; e v e r y a ct, o f s p e e c h , o f g e s tu re , o r o f c o n d u c t , w h ic h “ a n y
fa ir -m in d e d m a n ” m a y r e a s o n a b ly ju d g e t o b e in t e n d e d t o c o n v e y
in s u lt, th re a t, o r a n n o y a n c e to a n o th e r, o r t o w o r k a ssa u lt o r a b u se
u p o n h im , is u n la w fu l. N o t a s y lla b le o f th e C la y t o n A c t , o r o f a n y
o t h e r la w , w h e th e r o f le g is la t io n o f C o n g r e s s o r o f th e c o m m o n la w ,
s a n c tio n s a n y o f th e in c id e n ts w e h a v e r e fe r r e d to . T h e y a re t o b e
c o n d e m n e d as le g a lly in e x c u s a b le — su ch m u st b e th e v e r d ic t o f “ a n y
fa ir -m in d e d m a n ” — n o t h in g c a n b e s a id in ju s t ific a t io n .
T h e s e p r o p o s it io n s a re so e le m e n ta l th a t, b u t f o r th e c o n fu s io n
w h ic h e x is ts in m a n y m in d s th a t a la b o r c o n t r o v e r s y a ffe cts th e c o m
m o n e s t r u le s o f l ife , it w o u ld seem a w a s te o f tim e to sta te th e m .
T h e e x is te n c e o f a s tr ik e d o e s n o t m a k e th a t la w fu l w h ic h w o u ld
o t h e r w is e b e u n la w fu l. T h e s e p e r s o n a l r ig h t s t o w h ic h w e h a v e
a llu d e d are. in e a c h in s ta n c e , p r e c is e ly th o s e w h ic h th e s tr ik e r h im
s e lf w o u ld in s is t u p o n w e r e c o n d it io n s r e v e rs e d . T h e y a re a lso so
p la in , a n d th e a n sw e rs t o th e q u e s tio n s in v o lv in g th e m so c e r ta in ,
th a t o n e c a lle d u p o n t o e n fo r c e th e la w , i f h e h a s b u t o r d in a r y in
te llig e n c e , w ill p la in ly f a i l t o d o h is d u t y w h e n in h is p re s e n ce a
fe llo w c it iz e n su ffe rs a n in v a s io n o f h is r ig h t s o f th is c h a r a cte r.
T h e la b o r o r g a n iz a t io n , p a r t y t o th is ca se t h r o u g h th e r e p r e s e n ta
t io n o f H o ffm a n , ca m e h e re v o lu n t a r ily a n d w a s a d m itte d u p o n its
a p p lic a t io n a n d th e sta te m e n t o f its c o u n s e l, in th e p re s e n ce o f th e
office rs o f th e o r g a n iz a t io n , th a t th e in ju n c t io n th e n in fo r c e w o u ld
b e o b s e r v e d a n d r e s p e c te d u n til it s h o u ld b e m o d ifie d o r v a c a te d b y
th is c o u r t. I n d e e d , w e h a v e , as w e h a v e o b s e r v e d , e x a c t ly th e in
ju n c t io n w h ic h th e la b o r d e fe n d a n t s in th is c o u r t a g r e e d s h o u ld
b e issu ed . Y e t it p le a d s th a t it in te n d s t o “ i n t e r f e r e ” b y a ll “ la w
f u l m e a n s ” w it h th e b u sin e ss o f th e d e fe n d a n t c o m p a n y . I t s h o u ld
k n o w , a n d a c t u p o n th e k n o w le d g e , th a t th e o n ly “ i n t e r fe r e n c e ”
w h ic h th e la w p e r m its is t h a t in c id e n t a l t o a s tr ic t o b s e r v a n c e o f th e
te r m s o f s e c tio n 20 o f th e C la y t o n A c t . I f it g o e s b e y o n d th e p r i v i
le g e s o f a c tio n th e r e in p r o v id e d , it c o m e s w it h in th e c o u r t ’s r e s tr a in
in g a n d p u n it iv e p ro ce ss e s. I t s o n ly s a fe c o u r s e , in p u r s u in g its
“ i n t e r fe r e n c e ” m e th o d s , is t o p la c e in t e llig e n t ly a n d c a r e fu lly , in
w o r d a n d c o n d u c t , th e sa m e e m p h a s is w h ic h C o n g r e s s e m p lo y e d o n
th e e x p r e s s io n s “ la w fu l ” a n d “ l a w f u l l y ,” “ p e a c e fu l ” a n d “ p e a c e
f u l l y ,” as u se d in th e a ct.
T h e O h io S ta te T e le p h o n e C o . is a p u b lic u t ilit y . I t s firs t d u t y
is to s e r v e th e p u b lic . I t s w o r k m e e ts a v it a l p u b lic n e ce ssity . T h t
r ig h t o f its s t r ik in g e m p lo y e e s t o “ in t e r fe r e b y la w fu l m e a n s ” w ith
its b u sin e ss d o e s n o t m e a n a r ig h t t o c r ip p le p e r fo r m a n c e b y it o f
its d u tie s t o th e p u b lic , i f it c a n fin d p e o p le w il l in g to w o r k f o r it.
I f la b o r c a n b e h a d , th e c o m p a n y m u s t e m p lo y , a n d th e s tr ik e rs
m u s t p e r m it it t o e m p lo y a n d u se, la b o r t o p e r f o r m its p u b lic d u tie s,
a n d a n y o n e w il l in g t o w o r k f o r it m u st b e a llo w e d b y e v e r y b o d y
e n tir e fr e e d o m t o d o so. T h e p u b lic , h a v in g a g r e a t n e e d f o r s e r v
ic e s o f th e c h a r a c te r o ffe r e d b y th is p u b lic u t ilit y , h a s a n e n fo r c e a b le
r ig h t t o d e m a n d th ese c o n d it io n s o f b o th th e c o m p a n y a n d o f th o se
a s s o cia te d in c o n t r o v e r s y w it h it. T h is c o u r t is e m p o w e r e d t o sa y
t o th e c o m p a n y th a t it m u st m e e t its p u b lic o b lig a t io n s . C o u p le d
w it h th a t p o w e r o f th e c o u r t is th e p o w e r a n d d u t y o f l a y i n g its
p r o h ib it iv e a n d p u n is h in g h a n d u p o n a n y o n e w h o s e w i l l f u l l y u n
la w fu l c o n d u c t te n d s t o r e n d e r a b o r t iv e th e e x e r c is e o f th a t p o w e r .
W e c a n n o m o r e s a y t o th e c o m p a n y th a t it m u s t y ie ld t o th e d e
169
TEXT AND SUMMARIES OF DECISIONS.
m a n d s o f its s t r ik in g e m p lo y e e s th a n w e c a n sa y to th e m th a t t h e y
m u s t m e e t th e c o m p a n y ’s e x a ctio n s . T h e c o n t r o v e r s y m u st b e c a r
r ie d o n , o n b o t h sid e s, w it h o u t s u b s ta n tia l d e tr im e n t t o th e c o m
p a n y ’s p u b lic se rv ice .
W e are u n a b le to a g re e w it h r e s p o n d e n t ’s c o u n s e l th a t th e o r d e r
is d e ficie n t, b e ca u se it d o e s n o t c o n f o r m to th e p r o v is io n o f s e c tio n
19 o f th e C la y t o n A c t th a t an in ju n c t io n o r d e r s h o u ld s p e c ify in
“ r e a s o n a b le d e t a il ” th e t h in g s e n jo in e d . T h a t p o r t io n m o s t v i g o r
o u s ly a tta c k e d as t o o b r o a d a n d in d e fin ite is th e p r o v is io n r e s tr a in
in g th e d o in g o f “ a n y a cts o r t h in g s w h ic h m a y in t e r fe r e in a n y
r e s p e ct w it h th e p e r fo r m a n c e o f th e d u tie s a n d o b lig a t io n s o f th e
d e fe n d a n t c o m p a n y as a c o m m o n c a r r ie r .”
T h is p r o v is io n is as d e fin ite as it is p o s s ib le t o m a k e it. I t is th is
p a r a m o u n t in te re s t in th e p u b lic w h ic h m a y n o t s u ffe r in t e r fe r e n c e
as th e r e s u lt o f th e c o n t r o v e r s y , a n d it is im p o s s ib le t o set o u t e v e r y
a ct o r lin e o f c o n d u c t w h ic h m ig h t w o r k in te r fe r e n c e . L a b o r c o n
t r o v e r s ie s a re n o t u n e x p e c t e d o r u n u s u a l; c o u r t s r e c o g n iz e th a t t h e y
a re p o s s ib le ; c o u r ts a lso n o t ic e th a t th e e x is te n c e o f o n e p r o d u c e s
s o m e e m b a rr a s s m e n t t o th e e m p lo y e r a ffe c te d in th e m a n a g e m e n t o f
h is b u sin e ss. W h e t h e r th a t e m b a rr a s s m e n t a rise s t o a sta te o f
“ in t e r fe r e n c e ,” as th a t te r m m e a n s in ca ses o f th is so r t, d e p e n d s
u p o n h o w th e c o n t r o v e r s y is c o n d u c t e d o n e ith e r o r b o t h sid es. A
t o t a l c e s s a tio n o f th e e m p lo y e r ’s b u sin e ss, e v e n o f th a t o f a p u b lic
u t ilit y , m ig h t n o t in d ic a t e a n ille g a l in t e r fe r e n c e u n d e r so m e c ir
cu m s ta n ce s. A str ik e l a w fu lly c o n d u c t e d is n o t a n ille g a l in t e r fe r
e n ce , a lth o u g h it m ig h t e ffe c t ev en a t o t a l p a r a ly s is o f a p u b lic
u t ilit y ’s a c tiv itie s , r e s u lt in g in g r e a t p u b lic s u ffe r in g a n d loss. T h e
r ig h t t o a b a n d o n e m p lo y m e n t, b y in d iv id u a ls .s in g ly o r in a s s o c ia
tio n , is u n q u e s tio n e d , a n d th e la w m a in ta in s th e r ig h t o f su ch la to
e m p lo y e e s , c o m m o n ly k n o w n as s tr ik e rs , t o “ p e a c e fu lly ” p e r s u a d e
o th e r s to a b a n d o n th e sa m e e m p lo y m e n t, o r t o r e fr a in fr o m e n g a g in g
in e m p lo y m e n t, a n d t o th a t e n d “ p e a c e fu l p i c k e t i n g ” is p e r m it t e d
f o r p u r p o s e s o f o b s e r v a t io n a n d in fo r m a t io n a n d “ p e a c e fu l p e r
s u a s io n .” B u t n o s in g le a ct, t o w h ic h w e h a v e a llu d e d a b o v e , ca n
b e p o s s ib ly c o n s id e r e d t o b e a n e ce ssa r y , a n d h e n ce a n e x c u s a b le ,
a c c o m p a n im e n t o f p e a c e fu l p ic k e t in g . S u c h a c ts t e n d in e v it a b ly to
th a t “ in t e r fe r e n c e ” w h ic h th e la w c o n d e m n s .
I n th is v ie w , w e s u g g e s t th a t th e b a ld s ta te m e n t in th e p le a d in g o f
th e la b o r o r g a n iz a t io n r e fe r r e d t o th a t its p u r p o s e is t o “ in t e r fe r e ”
b y la w fu l m e a n s w it h th e b u sin e ss o f th is p u b lic u t ilit y c o m e s p e r il
o u s ly n e a r a c o n fe s s io n th a t a n u n la w fu l c o n s p ir a c y is in p r o g r e s s ,
a n d th e o n ly w a y th a t s u ch a c o n c lu s io n c a n b e a v o id e d is a lin e o f
c o n d u c t d u r in g th e fu r t h e r c o n tin u a n c e o f th is s t r ik e w h ic h w ill
ecu re th e p u b lic a g a in s t th a t in t e r fe r e n c e w it h th e b u sin e ss o f th is
p u b lic u t ilit y w h ic h is th e d ir e c t r e s u lt o f th e u n la w fu l a c ts o f th e
c h a r a c te r o f th o s e t o w h ic h w e h a v e a llu d e d . I f its? m e m b e r s w il l
c o n fin e th e ir s tr ik e a c t iv it ie s w it h in th e lim it s o f th e C la y t o n A c t ,
th e n w h a te v e r e m b a rr a s s m e n t en su es t o t h e c o m p a n y w ill b e n o
ille g a l in te r fe r e n c e .
L
abor
O r g a n iz a t io n s — S t r ik e s — I
n j u n c t io n —
P
ic k e t in g —
L
a bo r
C o m m i s s i o n e r a s W i t n e s s — W hite Mtn,. F reezer Co. v . M urphy et at.,
Supreme Court o f New Hampshire (M ay 1 , 1917), 101 A tlantic
170
DECISIONS OF COURTS AFFECTING LABOR,
R eporter , page 357.— S u its w e r e b r o u g h t b y th e c o m p a n y n a m e d
a n d t w o o t h e r c o m p a n ie s e n g a g e d in m a n u fa c t u r in g t o o b ta in in
ju n c t io n s a g a in s t E u g e n e L . M u r p h y a n d o th e rs. T h e d e fe n d a n t s
w e r e officers a n d m e m b e r s o f L o c a l N o . 2 5 7 o f th e I n t e r n a t io n a l
M o ld e r s ’ .U n io n o f N o r t h A m e r ic a , M u r p h y b e in g th e b u s in e s s a g e n t.
T h e u n io n d e m a n d e d , o n O c t o b e r 11, 1916, th a t th e c o m p a n ie s c o m
p e l t h e ir m o ld e r s n o t m e m b e r s o f th e u n io n t o jo in , a n d t h a t t h e y
c o n d u c t th e ir fa c t o r ie s th e r e a ft e r as c lo s e d s h o p s. T h is w a s r e fu s e d ,
a n d th e u n io n m e m b e r s s tr u c k . T h e s tr ik e w a s s t ill in e ffe c t a t th e
t im e o f th e h e a r in g o n th e ca ses, a n d , i t w a s a lle g e d , th e s tr ik e r s
w e r e u s in g m e a n s t o in t im id a t e th e r e m a in in g e m p lo y e e s , in c lu d
i n g p ic k e t in g . T h e ca ses w e r e se n t t o a m a s te r f o r th e fin d in g o f
fa c t s , a n d q u e s tio n s as t o e v id e n c e a r o s e d u r in g th e p r o c e e d in g s b e
f o r e h im . T h e s u p e r io r c o u r t o f H ills b o r o u g h C o u n t y r e fu s e d t o
r u le t h a t a s tr ik e o r g a n iz e d t o c o m p e l th e e m p lo y m e n t o f u n io n
m e n o n ly c o n s t it u t e d a c o n s p ir a c y in la w , a n d lik e w is e r e fu s e d t o
h o ld th a t o r g a n iz e d p ic k e t in g w a s u n la w fu l. T h e ca ses w e r e tr a n s
fe r r e d t o th e s u p r e m e c o u r t f o r d e c is io n s o n th e q u e s tio n s r a is e d b y
e x c e p t io n s t o th e se r u lin g s . J u d g e P a r s o n s w a s s p o k e s m a n f o r th e
c o u r t , a n d firs t s ta te d th a t th e a g e n t, M u r p h y , t h o u g h a p a r t y t o
th e p r o c e e d in g s , w a s a c o m p e te n t w itn e s s a n d c o u ld b e c o m p e lle d
t o t e s t ify , t h o u g h n o t t o in c r im in a t e h im s e lf. H e th e n d is c u s s e d th e
m a tte r o f th e o b lig a t io n o f th e la b o r c o m m is s io n e r to t e s t ify as to
p r o c e e d in g s b e f o r e h im in a n a tte m p te d c o n c ilia t io n o f th e c o n t r o
v e r s y . A n e x a m in a t io n o f th e sta tu te s h o w e d n o p r o v is io n th a t su ch
p r o c e e d in g s s h o u ld b e g iv e n s e c r e c y p r io r t o th e a m e n d m e n t a d o p te d
in 1917, w h ic h is as f o l l o w s :
“ N e it h e r th e p r o c e e d in g s n o r a n y p a r t t h e r e o f b e f o r e th e la b o r
c o m m is s io n e r b y v ir t u e o f th is s e c tio n s h a ll b e r e c e iv e d in e v id e n c e
f o r a n y p u r p o s e in a n y ju d ic ia l p r o c e e d in g b e f o r e a n y o t h e r c o u r t o r
t r ib u n a l w h a te v e r .”
M r . D a v ie , th e c o m m is s io n e r , h a d r e fu s e d t o a n s w e r w h e th e r a t a
c o n fe r e n c e c a lle d b y h im th e r e p r e s e n ta tiv e s o f th e c o m p a n ie s h a d
r e q u e s te d o f M u r p h y a s ta te m e n t in w r it in g o f th e d e m a n d s o f th e
u n io n . T h e c o u r t h e ld th a t th e c o m m is s io n e r w a s, p r e v io u s t o th e
t a k in g e ffe c t o f th e a m e n d m e n t n o te d , in th e sa m e c a t e g o r y as a s u b
o r d in a t e c o u r t a n d c o u ld n o t c la im th e p r iv ile g e o f r e fu s in g t o t e s t ify .
T h e c o u r t th e n t o o k u p th e t w o r u lin g s s u b m itte d t o it, h o ld in g as
t o th e im p lic a t io n o f a c o n s p ir a c y in th e p u r p o s e o f th e s tr ik e th a t
th e s tr ik e r s w e r e c a lle d u p o n t o g iv e e v id e n c e as t o th e la w fu ln e s s o f
t h e ir m o tiv e . W i t h r e g a r d t o p ic k e t in g th e c o u r t a g r e e d w it h th e
l o w e r c o u r t , h o l d i n g t h a t p ic k e t in g in it s e lf is n o t n e c e s s a r ily u n
la w fu l, th e m a tte r o f le g a lit y d e p e n d in g o n th e a c tu a l o c c u r r e n c e s
w h ic h m ig h t b e s h o w n o n th e t r ia l.
171
TEXT AND SUMMARIES OF DECISIONS.
Labor
O r g a n iz a tio n s — S t r ik e s — I n j u n c t i o n — P o w e r
of
O ffi
W . A . Snow Iron W orks
(In c.) v. Chadwick et al., Supreme Judicial Court o f Massachusetts
( June 11 , 1917 ) , 116 Northeastern R eporter , page 801 .— T h e com pany
cers o f U n io n to C o n t r a c t — D a m a ges—
nam ed brought action in equity
against Leon ard
B.
fo r
an injunction
and dam ages,
C hadw ick and others, and a decree g ra n tin g an
injunction bu t d en yin g dam ages fo r the m ost part, entered upon the
report o f a m aster to w hom the case h ad been referred, w as by th is
decision affirmed.
C hadw ick was the business agent o f an unincor
porated labor union.
T h e eigh t other defendants were members o f
th is union and had been em ployed by the com pany in the in stalla
tion o f w rou gh t-iron work.
T h e m a n u factu rin g or inside w ork was
conducted on the open-shop plan , the result being th at the em ployees
were nonunion m e n ; but the com pany was on frien d ly term s w ith the
union, and cu stom arily em ployed some union m en on its outside w ork.
O n a large contract w ith one C rane the eight union m en form ed part
o f a force o f 20.
T h ere was no com plain t about wages or hours.
W h ile the job was in process, how ever, a vote was passed by the
union instructing its secretary “ to send out new agreem ents to all the
contractors in their lin e,” and another instru cting the business agent
th at “ no m em ber be allow ed to w ork fo r u n fa ir firm s un til they had
been signed up by the business agent.”
A t a conference between the
em ployer and C hadw ick the form er refused to sign the agreem ent,
w hich provided fo r the em ploym en t o f union labor o n ly on outside
work.
T h e eight m en then struck.
As
to their rig h t to do th is the
court sa y s:
I f th e r ig h t o f th e e m p lo y e e s t o cea se ^ o r k o f t h e ir o w n v o lit io n is
u n q u e s tio n e d , th e o b je c t o r m o t iv e f o r w h ic h th e s tr ik e w a s p r e c ip i
ta te d is a q u e s tio n o f fa c t .
T h e fin d in g s o f fa c t b y th e m a ste r a re th e n e x a m in e d , a n d J u d g e
B r a le y , w h o p r e p a r e d th e o p in io n , g o e s o n as f o l l o w s :
I t is n o w p la in th a t th e p a r a m o u n t m o tiv e a c t u a t in g a ll th e p r o
c e e d in g s o f th e d e fe n d a n t s a n d t h e ir fe llo w m e m b e r s w a s b y m e a n s
o f th e s tr ik e t o f o r c e th e p la in t iff t o e m p lo y o n ly u n io n m e n o n a ll
o f its 46 o u ts id e w o r k ” u n d e r th e p e n a lt y , i f c o m p lia n c e w a s r e fu s e d ,
th a t fu ll p e r fo r m a n c e o f th e c o n t r a c t w it h C r a n e w o u ld b e s e r io u s ly
e m b a rr a s s e d i f n o t r e n d e r e d im p o s s ib le , w h ile its n a m e w o u ld b e
p u b lis h e d b y th e u n io n in th e la b o r m a r k e t, a n d a m o n g a r c h ite c ts
a n d c o n t r a c to r s f o r its p r o d u c t s , as a n e m p lo y e r o f n o n u n io n la b o r ,
m a k in g th e o b ta in m e n t o f fu t u r e c o n tr a c ts a n d th e n e ce s s a r y u n io n
la b o r e x c e e d in g ly p r e c a r io u s i f n o t p r a c t ic a lly im p o s s ib le . T h e
r ig h t o f th e p la in t iff t o th e b e n e fit o f its c o n t r a c t a n d t o r e m a in
u n d is tu r b e d b y th e u n io n d u r in g p e r fo r m a n c e , as w e ll as t o h ir e a n d
r e ta in su ch e m p lo y e e s as it m ig h t se le ct, u n h a m p e r e d b y th e in t e r
fe r e n c e o f th e u n io n a c t in g as a b o d y t h r o u g h th e in s t r u m e n t a lit y
o f a s tr ik e o r o f a s e c o n d a r y b o y c o t t o r b la c k lis t, is a p r im a r y r ig h t
w h ic h h a s n o t b e e n a b r o g a te d b y a n y o f o u r d e c is io n s . [C a s e s c it e d .]
172
DECISIONS OF COURTS AFFECTING LABOR.
T h e c la im th a t th e re h a d b e e n a c o n t r a c t w it h th e u n io n t o fu r n is h
m e n as r e q u ir e d , a n d th a t d a m a g e s m ig h t b e c o lle c t e d f o r lo ss o f
p r o fits o n a ll o th e r c o n t r a c ts w h ic h th e p la in t iffs m ig h t h a v e ta k e n
i f th e a m ic a b le r e la tio n s h a d c o n tin u e d , w a s d is p o s e d o f b y s h o w in g
.th a t th e officers h a d h a d n o p o w e r t o m a k e s u ch a c o n tr a c t. T h e
c o u r t s a id in p a r t o n th is s u b je c t :
T h e officers o f th e u n io n c o u ld n o t c re a te e ith e r b y w o r d o r c o n d u c t
a b in d in g b a r g a in in b e h a lf o f th e m e m b e r s o f t h e ir u n io n t o fu r n is h
la b o r to b e in d iv id u a lly p e r fo r m e d , u n le ss t h e y h a d b ee n a u th o r iz e d
e x p r e s s ly o r im p lie d ly b y th e m e m b e r s in so m e fo r m su fficien t t o
s h o w m u t u a lit y o f w ill a n d co n s e n t.
T h e “ c u s to m a n d p r a c t ic e ” o f fu r n is h in g m e n w h e n th e p la in t iff
c o m m u n ic a t e d its n e e d s d ir e c t ly , o r b y its fo r e m a n , th e d e fe n d a n t
H u s b a n d , t o th e r e s p o n s ib le officers o f th e u n io n , e v e n i f k n o w n t o
th e u n io n , a n d n e v e r fo r m a lly d is a p p r o v e d , d id n o t c o n s titu te a
c o n t r a c t f o r b r e a c h o f w h ic h d a m a g e s c o u ld b e r e c o v e r e d o r s p e c ific
p e r fo r m a n c e e n fo r c e d b y e ith e r p a r t y .
T h e c o u r t a d d e d th a t w h ile losse s in c u r r e d in th e s h o p b y r e a s o n
o f th e fa ilu r e t o se cu re th e a d d it io n a l c o n t r a c ts a ffo r d e d n o g r o u n d
f o r c la im in g d a m a g e s , d a m a g e s m ig h t h a v e b e e n a w a r d e d i f s e p a
r a t e ly c la im e d f o r th e lo s s c a u se d o n th e jo b o n w h ic h th e s tr ik e
w a s c a lle d .
Labor Organizations— Strikes— Picketing— V iolence— In ju n c
tion— Niles-Bem ent-Pond Co. v. Iron Molders ’ Union , Local No.
68, et a l U n i t e d States D istrict Court , Southern D istrict Ohio {Oct.
9 , 1917), 2^6 Federal R eporter , page 851.— About 115 members of the
union named, at work for the Niles Tool Co., at Hamilton, Ohio,
struck on May 24, 1917. The company was at work on contracts
amounting to about $ 3 ,0 0 0 ,0 0 0 , given priority under the National
Defense Act, for heavy machinery urgently needed by the United
States Government, which it was impracticable for the company to
have manufactured elsewhere. The company named as plaintiff
in this suit stood in the relation to the tool company of a holding
company, and it also secured the contracts and in turn contracted
with the tool company to produce the required machinery. The
prayer of the company for an injunction was granted by Judge
Sater, who stated his findings of fact and commented upon the
situation at length. The findings showed much violence on the part
of the strikers and their sympathizers and incidentally little effort
to prevent such action on the part of the public authorities. It is
stated that the strikers returned to work on July 23 for about
four days, but again left, claiming that bad faith was exer
cised by the company in the attempt to arrange the final terms
of settlement. It was claimed by the defendants that because of this
and because the arrangement between the two companies was a
173
TEXT AND SUMMARIES OF DECISIONS.
v io la t io n o f a n titr u s t la w s th e c o m p a n y d id n o t c o m e in t o c o u r t
w it h “ c le a n h a n d s ” a n d w a s t h e r e fo r e n o t e n title d t o its r e lie f.
T h is c o n t e n t io n w a s n o t u p h e ld b y J u d g e S a te r, w h o , a ft e r s e t t in g
f o r t h th e r ig h t o f w o r k m e n t o s tr ik e a n d t o p ic k e t p e a c e a b ly a n d
t o c o n v e r s e w it h p r o s p e c t iv e e m p lo y e e s w h o a re w illin g t o e n g a g e
in c o n v e r s a tio n , a d d e d th a t th is g a v e n o r ig h t o f c o m p u ls io n o r o f
in t e r fe r e n c e w it h th o s e u n w illin g to ta lk , a n d t h a t th re a ts , a b u se,
a n d in t im id a t io n h a d n o p la c e in th e c o n d u c t o f su ch a s tr ik e as
th e c o u r ts h e ld la w fu l. H e th e n s a id :
T h e r e c o r d s h o w s it w a s n e ce s s a r y t o e s c o r t w o r k m e n f o r th e ir p r o
t e c t io n w it h g u a r d s , a n d t h a t e v e n th e n s o m e o f th e m w e r e a ssa u lte d
a n d b e a te n u p .
T h e e x is te n c e o f su ch a c o n d it io n s h o w s th a t th e re w a s s o m e t h in g
r a d ic a lly w r o n g w it h th e c o n d u c t o f th e s tr ik e , w it h th e c o m m itte e
c h a r g e d w it h its m a n a g e m e n t, a n d th e e n fo r c e m e n t o f th e la w .
A b e lie f th a t la b o r c a n n o t w in a s tr ik e w it h o u t r e s o r t t o u n la w
f u l m e a n s d o e s it in ju s tic e . A s ta te m e n t t h a t su ch m e a n s a re n e ce s
s a r y t o su cc e e d is a s la n d e r . I t is th e re ck le s s a n d la w le s s fe w (a n d
th e ir lik e is fo u n d in a ll v o c a t io n s ) th a t fo m e n t tr o u b le , w h ic h
le a d s t o w r o n g d o in g a n d o ft e n u lt im a t e ly t h r o w s th e w e ig h t o f
p u b lic o p in io n a g a in s t th e str ik e r. L a b o r is e n t itle d t o its ju s t
d e se rts, a n d m a y la w fu lly str ik e t o g e t t h e m ; b u t n e ith e r la b o r n o r
a n y o t h e r a g g r e g a t io n o f b e in g s s h o u ld p e r m it its ca u se t o b e in ju r e d
b y th e m is b e h a v io r o f m is c h ie f m a k e rs, w h e th e r t h e y b e m e r e ly
s y m p a th iz e r s o r fo u n d w it h in its o w n ra n k s . I t s h o u ld s ta n d f o r
th e r e ig n o f la w .
R e l i e f m u st b e g r a n t e d as p r a y e d f o r a g a in s t a ll o f th e d e fe n d
a n ts. I t s e ffe c t w ill b e t o r e s tr a in th e m f r o m d o in g w h a t a n y g o o d
c it iz e n w ill n o t w is h t o d o . T h e e v id e n c e o f th e a c t iv e p a r t ic ip a t io n
o f m a n y m e m b e r s o f L o c a l N o . 68 is a b u n d a n t. T h e r e is a ls o e v i
d e n ce th a t m e m b e rs o f th a t u n io n w e r e in s tr u c te d t o k e e p w it h in
le g a l b o u n d s , b u t n e ith e r its officers n o r its str ik e c o m m itte e e n
fo r c e d th e in s tr u c tio n s . I n d e e d , S c h a lk , a m e m b e r o f th a t c o m
m itte e , p a r t ic ip a t e d in v io le n t c o n d u c t. S o m e o f th e m e m b e r s o f
L o c a l N o . 283 a lso a c t iv e ly s h a re d in th e m a tte r s o f w h ic h c o m p la in t
is m a d e . T h e r e is n o s h o w in g th a t a n y o ffice r o r m e m b e r o f th a t b o d y
b v w o r d o r d e e d d is c o u r a g e d th e w r o n g fu l c o n d u c t h e r e in m e n
t io n e d . T h e e ffo r t s o f th e p la in t iff t o b r in g a b o u t a f u ll d is c lo s u r e
o f th e u n h a p p y o c c u r r e n c e s c o n n e c te d w it h th e s tr ik e r e c e iv e d n o
a ssista n ce fr o m th a t u n io n , w h ic h d e fe n d e d a t th e h e a r in g . I f it
d e p r e c a t e d th e d is o r d e r t h a t p r e v a ile d , o r d is a p p r o v e d o f w r o n g d o in g
o n th e p a r t o f its m e m b e r s, as it o u g h t t o h a v e d o n e , it s h o u ld h a v e
c le a r e d its s k ir ts w h e n th e o p p o r t u n it y o ffe r e d .
L
a bo r
O r g a n i z a t i o n s — S t r i k e s — P r o s e c u t io n
fo r
M
urder—
Zancannelli v . People, Supreme Court o f
Colorado (June 4, 1917), 165 Pacific Reporter, page 612.— L o u is
S e l e c t io n
of
J u r o rs—
Z a n c a n n e lli w a s c o n v ic t e d o f h a v in g m u r d e r e d o n e B e lc h e r in th e
c it y o f T r in id a d , C o lo ., d u r in g th e in d u s t r ia l c o n flic t b e tw e e n th e
174
DECISIONS OF COURTS AFFECTING LABOR,
coal-mine owners and their employees, and sued for a writ of error
to secure a reversal of the judgment. The Attorney General filed a
confession of error, and the opinion of the supreme court, delivered
per curiam, states that ordinarily under such circumstances it would
enter judgment of reversal without comment, but that the nature
of the case was such that “ we think a good purpose will be served by
briefly stating the facts and commenting upon the same.”
T h e d e ce a s e d m a n w a s a d e te c tiv e iji th e e m p lo y o f th e m in e
o w n e r s. T h e p r o s e c u t io n in t r o d u c e d e v id e n c e t o th e e ffe c t t h a t th e
d e fe n d a n t h a d sta te d th a t h e k ille d h im “ f o r th e g o o d o f th e u n io n ,”
b u t th e r e w a s a lso e v id e n c e th a t o n e o f t w o m e n w h o w e r e seen fle e in g
f r o m th e p la c e w a s th e g u ilt y p a r t y , a n d th a t th e a r re s t a n d p r o s e c u
t io n o f th e p r e s e n t d e fe n d a n t w a s th e r e s u lt o f m is ta k e n id e n t it y .
T h e ju d g e o f th e d is t r ic t c o u r t o f L a s A n im a s C o u n t y , in w h ic h th e
ca se w a s t r ie d , w a s d is q u a lifie d f o r in te re s t a n d p r e ju d ic e , a n d th e
sa m e o b je c t io n s w e r e u n s u c c e s s fu lly u r g e d w it h r e g a r d t o th e a d d i
t io n a l ju d g e a p p o in t e d b y th e g o v e r n o r t o t r y th e ca se. H o w e v e r , th e
o c c u r r e n c e s a t th e t r ia l o v e r w h ic h h e p r e s id e d , w it h r e la tio n t o th e
im p a n e lin g o f th e ju r y a n d th e c o n d u c t o f c e r t a in ju r o r s , w e r e c o n
s id e r e d as su fficien t t o in v a lid a t e this p r o c e e d in g s . S e v e r a l ju r o r s
w e r e se a te d a ft e r r e fu s a l t o p e r m it th e d e fe n s e t o a sk th e f o l l o w i n g
q u e s t io n :
“ C a n y o u s ta r t o u t o n th e t r ia l o f th is ca se g i v in g t o th e d e fe n d a n t
th e b e n e fit o f th e le g a l r u le th a t a d e fe n d a n t m u s t b e p r e s u m e d t o b e
in n o c e n t u n t il h e is p r o v e n t o b e g u i l t y ? ”
T h e c o u r t le fu s e d t o p e r m it th e p u t t in g t o th e ju r o r s o f m a n y
o t h e r in q u ir ie s r e la t in g t o t h e ir b ia s o r p r e ju d ic e , p a r t ic ip a t io n in
t h e tr o u b le s c o n n e c te d w it h th e str ik e , etc. F r o m th e o p in io n th e
f o l l o w i n g is q u o te d as t o th e p r in c ip le s i n v o l v e d :
W h ile a p e r s o n is n o t n e c e s s a r ily d is q u a lifie d t o s e r v e as a ju r o r
in a c r im in a l ca se b y r e a s o n o f a p r e v io u s ly fo r m e d o r e x p r e s s e d
o p in io n w it h r e fe r e n c e t o th e g u ilt o r in n o c e n c e o f th e a c cu s e d (s e c.
3691 e t seq ., R . S . 1 9 0 8 ), i t w o u ld seem a lw a y s im p o r t a n t t o a s c e r ta in
t h e sta te o f th e p r o p o s e d ju r o r ’s m in d as t o th e d e fe n d a n t ’s r ig h t s
u n d e r th e la w , f o r , w it h o u t th is , h o w w o u ld it b e p o s s ib le f o r th e
c o u r t , w it h in th e m e a n in g o f th e la w , t o b e sa tisfie d th a t th e ju r o r
h a s n o o t h e r in te re s t o r m o tiv e in th e ca se th a n t o r e n d e r a tru e , fa ir ,
a n d im p a r t ia l v e r d ic t ? H o w e v e r , b e t h a t as it m a y , th e d e fe n d a n t
h a d a r ig h t t o p r o p o u n d q u e s tio n s t o th e p r o p o s e d ju r o r s t o s h o w n o t
o n ly t h a t th e r e e x is te d p r o p e r g r o u n d s f o r a c h a lle n g e f o r ca u se , b u t
a ls o t o e lic it fa c t s t o e n a b le h im t o d e c id e w h e th e r o r n o t h e w o u ld
m a k e a p e r e m p t o r y c h a lle n g e .
There was testimony that Juror Burkhardt had business relations
with the coal companies, that he had said that if he was on the jury
there would be “ a hung jury or a hung Dago,” that he had offered
to make bets that the defendant would be convicted, etc. This mat
TEXT AND SUMMARIES OF DECISIONS.
175
te r is g o n e in t o a t c o n s id e r a b le le n g t h , a n d th e o p in io n c o n c lu d e s as
fo llo w s :
T h e e r r o r s a b o v e n o t e d in v a lid a t e d th e p r o c e e d in g s a lm o s t a t t h e ir
v e r y b e g in n in g . M o r e o v e r , th e e r r o r s a re so n u m e ro u s , so o b v io u s ,
a n d so fa t a l t o th e v a lid it y o f th e p r o c e e d in g s t h a t u n le ss th e y w e r e
w r it t e n in t o th e r e c o r d as t h e y a re, u n d e r th e sea l o f th e t r ia l c o u r t ,
w e c o u ld n o t b e lie v e t h a t su ch t h in g s h a d o c c u r r e d in th e t r ia l o f a
ca u se in a c o u r t o f r e c o r d .
L
abor
O r g a n iz a t io n s — S u s p e n s io n
of
M
ember—
I n j u n c t io n —
Holmes et al. v. B row n , Supreme Court o f Georgia (Feb. 13 , 1917),
91 Southeastern R eporter , page IfiS.— A . B r o w n b r o u g h t a c t io n
a g a in s t M a r t in H o lm e s , p r e s id e n t o f th e B r ic k la y e r s , P la s te r e r s ,
a n d M a s o n s ’ U n io n o f A m e r ic a , a n d o th e r s f o r a n in ju n c t io n to
r e s tr a in th e m f r o m r e fu s in g h im th e r ig h t s a n d p r iv ile g e s o f a
m e m b e r o f th e lo c a l u n io n o f th e o r g a n iz a t io n in th e c it y o f A t la n t a .
H e h a d b e e n a m e m b e r f o r a b o u t 14 y e a rs . H e p r e f e r r e d c h a r g e s
a g a in s t a n o th e r m e m b e r w h ic h h e w a s n o t a b le t o su sta in , b e ca u se ,
as sta te d in th e c o u r t ’s o p in io n , th e m e m b e r s w h o fu r n is h e d th e
in fo r m a t io n w e r e in t im id a t e d b y p e r s o n s o tits id e th e u n io n . H e in
t u r n w a s a c cu se d o f m a lic io u s ly p r e f e r r in g a n u n fo u n d e d c h a r g e
a g a in s t a m e m b e r , a n d w a s t r ie d a n d fo u n d g u ilt y a n d fin e d $50
a t a m e e t in g a t w h ic h h e w a s n o t p re s e n t. N o n o t ic e w a s g iv e n h im
o f th e p r e f e r r in g o f th e c h a r g e s n o r o f th e t r i a l ; in fa c t , h e d id n o t
le a r n o f th e m a tte r u n t il a m o n th la te r. H e th e n m a d e c o m p la in t ,
a n d w a s in fo r m e d t h a t h e m u st p a y th e fin e t o th e lo c a l u n io n
b e f o r e a n a p p e a l c o u ld b e ta k e n , a lt h o u g h th e 3 0 -d a y lim it f o r
a p p e a ls w o u ld b e w a iv e d . H e w a s u n a b le t o p a y th e fin e , a n d w a s
n o t a llo w e d t o b e h e a r d b e f o r e th e lo c a l u n io n , n o r t o a tte n d th e
m e e tin g s o r p a y h is d u e s, w h ic h h e te n d e r e d . T h e s u p e r io r c o u r t
o f F u lt o n C o u n t y e n te r e d a n in t e r lo c u t o r y ju d g m e n t o r d e r in g th a t
h e b e g iv e n th e p r iv ile g e s o f m e m b e r s h ip p e n d in g a t r ia l, a n d th is
ju d g m e n t w a s a ffirm ed b y th e s u p r e m e c o u r t , J u d g e E v a n s d e liv e r in g
th e o p in io n a n d s a y in g , in _ p a r t :
T h e c o n s t it u t io n a n d b y -la w s o f th e in t e r n a t io n a l u n io n p r o v id e
t h a t n o m e m b e r s h a ll b e t r ie d e x c e p t u p o n a w r it t e n c h a r g e s t a t in g
th e s p e c ific o ffe n s e a g a in s t th e a c cu s e d m e m b e r , a n d th a t th e t r ia l
s h a ll b e h a d o n a sta te d d a y ; i f th e m e m b e r r e fu s e t o b e p re s e n t,
h e sh a ll b e n o t ifie d o f th e tim e w h e n th e t r ia l s h a ll o c c u r . U p o n
c o n v ic t io n a n d s e n te n ce th e sa m e o p e r a te s as a s u s p e n s io n o f a ll
b e n e fits a n d p r iv ile g e s u n t il c o m p lia n c e w it h th e te r m s o f th e se n
te n ce , w it h a r ig h t o f a p p e a l t o th e ju d ic ia r y b o a r d o n p a y m e n t o f
th e fin e. T h e c o n s t it u t io n a n d b y -la w s fu r t h e r p r o v id e f o r a b e n e
fic ia r y a n d m o r t u a r y fu n d m a in t a in e d o n a m u tu a l p la n , f o r th e
b e n e fit o f m e m b e r s w h o h a v e b e e n c o n n e c t e d w it h th e u n io n f o r a
p e r io d lo n g e r t h a n 6 m o n t h s ; f o r a p e n s io n sy s te m p r o v id i n g f o r
176
DECISIONS OF COURTS AFFECTING LABOR.
a b e n e fit t o m e m b e r s w h o h a v e r e a c h e d th e a g e o f 60 y e a rs , a n d w h o
h a v e b e e n in c o n t in u o u s g o o d s t a n d in g f o r a p e r io d o f 20 y e a r s ;
a n d f o r a d is a b ilit y b e n e fit to m e m b e r s o f 10 y e a r s ’ s t a n d in g .
T h e c o u r t fo u n d as a c o n c lu s io n o f fa c t th a t tlie e v id e n c e a u t h o r
iz e d an in fe r e n c e th a t th e p la in t iff h a d b e e n ille g a lly t r ie d a n d
s e n te n c e d , a n d th a t h e h a d t e n d e r e d a ll o f h is d u e s in a r r e a r s ; in
o t h e r w o r d s , h is sta tu s w a s th a t o f a la w fu l m e m b e r o f th e u n io n .
I n th e c o u r t ’s o r d e r th e p la in t iff w a s r e q u ir e d t o p a y th ese d u e s t o
t h e lo c a l u n io n , a n d u p o n .c o m p lia n c e w it h th is c o n d it io n b y h im
th e u n io n ' w a s t e m p o r a r ily e n jo in e d f r o m in t e r fe r e n c e w it h h is
r ig h t s as a m e m b e r . T h e o r d e r d o e s n o t fin a lly a d ju d ic a t e th e
p la in t iff’s sta tu s a s a m e m b e r , a n d s h o u ld n o t b e c o n s tr u e d as so
d o in g .
Labor Organizations— U n la w fu l Combinations— R estraint of
Trade — In ju n ctio n — Prevention o f Competition — Paine Lumber
Co. (L td .) et al. v. Neal et al., Supreme Court o f the United States
(June 11, 1917) , 37 Supreme Court R eporter , page 718.— The com
pany named and other corporations o f States other than New York
brought a bill in equity against Elbridge H . Neal and others, officers
and agents of the United Brotherhood of Carpenters and Joiners
of America and its New York branch; union manufacturers who
were members of the Manufacturing Woodworkers Association; and
master carpenters who were members of the Master Carpenters Asso
ciation. The bill was dismissed in a Federal district court, and the
decree of dismissal was affirmed by the Circuit Court of Appeals for
the Second Circuit. (Same case, 2 1 4 Fed. 82, Bui. No. 169, p. 1 6 4 .)
The Supreme Court took the same view, four justices dissenting.
Mr. Justice Holmes delivered the prevailing opinion, as follows:
T h e b ill a lle g e s a c o n s p ir a c y o f th e m e m b e r s o f th e b r o t h e r h o o d
a n d th e N e w Y o r k b r a n c h t o p r e v e n t th e e x e r c is e o f th e tr a d e o f c a r
p e n te r s b y a n y o n e n o t a m e m b e r o f th e b r o t h e r h o o d , a n d t o p r e v e n t
th e p la in t iffs a n d a ll o th e r e m p lo y e r s o f c a r p e n te r s n o t su ch m e m
b e rs fr o m e n g a g in g in in te rs ta te c o m m e r c e a n d s e llin g t h e ir g o o d s
o u t s id e o f th e S ta te w h e r e th e g o o d s a re m a n u fa c t u r e d , a n d it sets
o u t th e u su a l d e v ic e s o f la b o r u n io n s as e x e r c is e d t o th a t e n d . I n
1909 th e m a s te r c a r p e n te r s , c o e r c e d b y th e p r a c t ic a l n e ce ssitie s o f
th e ca se, m a d e an a g re e m e n t w it h th e N e w Y o r k b r a n c h , a c c e p t in g
a p r e v io u s ly e s ta b lis h e d jo i n t a r b it r a t io n p la n to a v o id str ik e s a n d
lo c k o u ts . T h is a g re e m e n t p r o v id e s th a t “ th e re s h a ll b e n o r e s t r ic t io n
a g a in s t th e use o f a n y m a n u fa c t u r e d m a te r ia l e x c e p t n o n u n io n o r
p r is o n -m a d e ; ” th e a r b it r a t io n p la n is c o n fin e d to s h o p s th a t u se
u n io n la b o r , a n d th e e m p lo y e r s a g re e t o e m p lo y u n io n la b o r o n ly .
T h e u n io n s w ill n o t e r e c t m a te r ia l m a d e b y n o n u n io n m e ch a n ic s .
A n o t h e r a g r e e m e n t b e tw e e n th e m a n u fa c t u r in g W o o d w o r k e r s ’ A s
s o c ia t io n , th e b r o t h e r h o o d , a n d th e N e w Y o r k b r a n c h , a lso a d o p ts
th e p la n o f a r b it r a t io n ; th e la b o r u n io n s a g r e e that~ “ n o n e o f th e ir
m e m b e r s w ill e r e c t o r in s ta ll n o n u n io n o r p r is o n -m a d e m a t e r ia l,”
a n d th e w o o d w o r k e r s u n d e r ta k e th a t m e m b e r s o f th e b r o t h e r h o o d
s h a ll “ b e e m p lo y e d e x c lu s iv e ly in th e m ills o f th e M a n u fa c t u r in g
TEXT AND SUMMARIES OF DECISIONS.
177
W o o d w o r k e r s ’ A s s o c ia t io n .” I t is fo u n d t h a t m o s t o f th e jo u r n e y
m e n c a r p e n te r s in M a n h a tta n a n d p a r t o f B r o o k ly n b e lo n g to th e
b r o t h e r h o o d , a n d th a t, o w in g t o t h e ir r e fu s a l to w o r k w it h n o n u n io n
m e n , a n d t o e m p lo y e r s fin d in g it w is e t o e m p lo y u n io n m e n , it is
v e r y g e n e r a lly im p r a c t ic a b le t o e r e c t c a r p e n te r w o r k in th o s e p la c e s
e x c e p t b y u n io n la b o r . I t a lso is fo u n d th a t, o w in g t o th e a b o v e p r o v is io n s as t o n o n u n io n m a te r ia l, th e sa le o f th e p la in t iff’s g o o d s in
th o s e p la c e s h a s b e e n m a d e less. T h e w o r k m e n h a v e a d o p te d th e
p o lic y c o m p la in e d o f w it h o u t m a lic e t o w a r d th e p la in t iffs , as p a r t
o f a p la n t o b r in g a b o u t “ A n a t io n -w id e u n io n iz a t io n in th e ir t r a d e .”
A n in ju n c t io n is a sk e d a g a in s t th e d e fe n d a n t s (o t h e r th a n th e
m a s te r c a r p e n t e r s ) c o n s p ir in g to r e fu s e t o w o r k u p o n m a te r ia l m a d e
b y th e p la in t iff, b e c a u se n o t m a d e b y u n io n la b o r ; o r e n fo r c in g b y
la w s in te n d e d t o p r e v e n t w o r k in g w it h o r u p o n w h a t is c a lle d u n fa ir
m a t e r ia l; o r in d u c in g p e r s o n s to r e fu s e t o w o r k f o r p e r s o n s p u r c h a s
in g su ch m a te r ia l, o r t a k in g o th e r e n u m e r a te d ste p s t o th e sa m e g e n
e r a l e n d ; o r c o n s p ir in g t o r e s tr a in th e p la in t iffs ’ in te r s ta te b u sin e ss
in o r d e r t o c o m p e l th e m to r e fu s e t o e m p lo y c a r p e n te r s n o t m e m b e r s
o f th e b r o t h e r h o o d . I t is p r a y e d fu r t h e r th a t th e p r o v is io n q u o te d
a b o v e fr o m th e m a ste r c a r p e n t e r s ’ a g re e m e n t a n d a n o th e r a n c illa r y
o n e b e d e c la r e d v o id a n d th e p a r tie s e n jo in e d fr o m c a r r y in g th e m
o u t. N o o th e r o r a lt e r n a tiv e r e lie f is p r a y e d . T h e g r o u n d on w h ic h
th e in ju n c t io n w a s r e fu s e d b y th e d is t r ic t c o u r t w a s th a t, a lt h o u g h
it a p p e a r e d th a t th e a g re e m e n ts a b o v e m e n tio n e d w e r e p a r ts o f a
c o m p r e h e n s iv e p la n t o r e s tr a in c o m m e r c e a m o n g th e S ta te s, th e c o n
s p ir a c y w a s n o t d ir e c t e d s p e c ia lly a g a in s t th e p la in t iffs a n d h a d
c a u se d th e m n o s p e c ia l d a m a g e , d iffe r e n t fr o m th a t in flic te d o n th e
p u b lic a t la r g e . T h e c ir c u it c o u r t o f a p p e a ls , r e s e r v in g its o p in io n
as t o w h e th e r a n y a g re e m e n t o r c o m b in a t io n c o n t r a r y t o la w w a s
m a d e o u t, a g r e e d w it h th e ju d g e b e lo w o n th e g r o u n d t h a t n o a cts
d ir e c t e d a g a in s t th e p la in t iffs p e r s o n a lly w e r e sh o w n .
I n th e o p in io n o f a m a jo r it y o f th e c o u r t , i f th e fa c t s s h o w a n y
v io la t io n o f th e a c t o f J u ly 2, 1890 [S h e r m a n A n t it r u s t A c t ] , a
p r iv a t e p e r s o n c a n n o t m a in ta in a s u it f o r an in ju n c t io n u n d e r se c
t io n 4 o f th e sa m e (M in n e s o t a v. N o r t h e r n S e c u r itie s C o ., 194 U . S .
48, 70, 71, 24 S u p . C t. 5 9 8 ) ; a n d e s p e c ia lly su ch a n in ju n c t io n as is
s o u g h t ; e v e n i f w e s h o u ld g o b e h in d w h a t seem s t o h a v e b e e n th e
v ie w o f b o t h c o u r ts b e lo w , th a t n o s p e c ia l d a m a g e w a s s h o w n , a n d
r e v e rs e th e ir c o n c lu s io n o f fa c t . N o o n e w o u ld m a in ta in th a t th e
in ju n c t io n s h o u ld b e g r a n t e d t o p a r tie s n o t s h o w in g s p e c ia l in ju r y
t o th e m se lv e s. P e r s o n a lly , I la y th o s e q u e stio n s o n o n e s id e b e ca u se ,
w h ile th e a c t o f O c t o b e r 1 5 ,1 9 1 4 [C la y t o n A c t ] , e sta b lish e s th e r ig h t
o f p r iv a t e p a r tie s t o an in ju n c t io n in p r o p e r ca ses, in m y o p in io n it
a lso e sta b lish e s a p o lic y in c o n s is te n t w it h th e g r a n t in g o f o n e h e re .
I d o n o t g o in t o th e r e a s o n in g th a t sa tisfies m e , b e c a u s e u p o n t h is
p o in t I a m in a m in o r it y .
A s th is c o u r t is n o t th e fin a l a u t h o r it y c o n c e r n in g th e la w s o f N e w
Y o r k , w e sa y b u t a w o r d a b o u t th e m . W e s h a ll n o t b e lie v e t h a t th e
o r d in a r y a c tio n o f a la b o r u n io n c a n b e m a d e th e g r o u n d o f a n in
ju n c tio n u n d e r th o s e la w s u n til w e a re so in s tr u c te d b y th e N e w Y o r k
C o u r t o f A p p e a ls . N a t io n a l P r o t e c t iv e A s s o . v. C u m m in g , 170 N . Y.
3 15, 63 N . E . 369 [B u i. N o . 42 , p . 1 1 1 8 ]. C e r t a in ly th e c o n d u c t c o m
p la in e d o f h a s n o t e n d e n c y t o p r o d u c e a m o n o p o ly o f m a n u fa c t u r e
64919°—18—Bull. 246------12
178
DECISIONS OF COURTS AFFECTING LABOR.
o r b u ild in g , s in c e th e m o r e s u c c e s s fu l it is th e m o r e c o m p e t ito r s a re
in t r o d u c e d in t o th e tr a d e .
D e c r e e a ffirm ed .
M r . J u s t ic e P it n e y w r o t e a d is s e n tin g o p in io n , in w h ic h M r . J u s tic e
M c K e n n a a n d M r . J u s t ic e V a n D e v a n t e r c o n c u r r e d , M r . J u s t ic e M c R e y n o ld s a ls o d is s e n tin g . M r . J u s t ic e P it n e y d is a g r e e d w it h th e
v ie w o f th e m a jo r it y th a t a p r iv a t e p e r s o n c a n n o t m a in ta in a su it
f o r a n in ju n c t io n u n d e r th e fo u r t h s e c tio n o f th e S h e r m a n A c t , s a y
i n g th a t th e ca se c ite d , M in n e s o ta v . N o r t h e r n S e c u r itie s C o ., is n o t
“ an a u t h o r it y a g a in s t th e r ig h t o f c o m p la in a n t s t o an in ju n c t io n to
p r e v e n t . s p e c ia l a n d ir r e p a r a b le d a m a g e t o t h e ir p r o p e r t y r ig h t s
t h r o u g h a v io la t io n o f th e S h e r m a n A c t , th e e ffe c t o f t h a t d e c is io n
b e in g m e r e ly t o d e n y r e lie f b y in ju n c t io n t o in d iv id u a ls n o t d ir e c t ly
a n d s p e c ia lly in ju r e d .” H e h e ld th a t a r ig h t t o a p p ly f o r su ch in ju n c
t io n is g iv e n , n o t b y a n y s p e c ific p r o v is io n o f th e s ta tu te , b u t b y th e
a b se n ce o f a n y p r o v is io n d e n y in g it a n d b y th e s e ttle d p r in c ip le s o f
e q u ity . T h e s p e c ia l in ju r y n e ce s s a r y , h e t h o u g h t , w a s p r e s e n t in th is
in s ta n c e . H is v ie w o f th e e ffe c t o f th e p r o v is io n s o f th e C la y t o n A c t
is s h o w n b y th e f o l l o w i n g q u o t a t io n :
T h e s u g g e s tio n , in b e h a lf o f d e fe n d a n t s , th a t s e c tio n 6 o f th e C la y
t o n A c t e sta b lish e s a p o lic y in c o n s is te n t w it h r e lie f b y in ju n c t io n in
s u c h a ca se as th e p re s e n t, b y m a k in g le g it im a t e a n y a cts o r p r a c t ic e s
o f la b o r o r g a n iz a t io n s o r t h e ir m e m b e r s t h a t w e r e u n la w fu l b e fo r e ,
is w h o lly in a d m is s ib le . T h e s e c tio n p r o h ib it s r e s t r a in in g m e m b e r s
o f su ch o r g a n iz a t io n s fr o m “ l a w fu lly c a r r y in g o u t th e le g it im a t e
o b je c t s t h e r e o f.” W h a t th ese a re is in d ic a t e d b y th e q u a lify in g
w o r d s : “ I n s t it u t e d f o r th e p u r p o s e o f m u tu a l h e lp , a n d n o t h a v in g
c a p it a l s to c k o r c o n d u c t e d f o r p r o fit .” B u t th ese a re p r o t e c t e d o n ly
w h e n “ la w f u l l y c a r r ie d o u t .” T h e s e c tio n s a fe g u a r d s th ese o r g a n iz a
t io n s w h ile p u r s u in g th e ir le g it im a t e o b je c t s b y la w fu l m e a n s, a n d
p r e v e n t s th e m fr o m b e in g c o n s id e r e d , m e r e ly b e c a u se o r g a n iz e d , t o
b e ille g a l c o m b in a tio n s o r c o n s p ir a c ie s in r e s tr a in t o f tr a d e . T h e
s e c tio n , f a i r l y c o n s tr u e d , h a s n o o th e r o r fu r t h e r in te n t o r m e a n in g .
A r e fe r e n c e t o th e le g is la t iv e h is t o r y o f th e m e a su re c o n fir m s t h is
v ie w . (H o u s e R e p . N o . 627, 6 3 d C o n g ., 2 d sess., p p . 2, 14—1 6 ; S e n a te
R e p . N o . 698, 6 3 d C o n g ., 2 d sess., p p . 1, 10, 4 6 .) N e ith e r in th e la n
g u a g e o f th e s e c tio n , n o r in th e c o m m it t e e r e p o r t s , is th e r e a n y i n d i
c a t io n o f a p u r p o s e t o r e n d e r la w fu l o r le g it im a t e a n y t h in g th a t b e
f o r e th e a c t w a s u n la w fu l, w h e th e r in th e o b je c t s o f su ch a n o r g a n i
z a t io n o r its m e m b e r s o r in th e m e a su re s a d o p te d f o r a c c o m p lis h in g
th e m .
I t is a lt o g e t h e r fa lla c io u s , I t h in k , t o s a y th a t w h a t is b e in g d o n e b y
th e p re s e n t d e fe n d a n t s is d o n e o n ly f o r th e p u r p o s e o f s tr e n g t h e n in g
th e u n io n . C o n c e d in g th is p u r p o s e t o b e la w fu l, it d o e s n o t ju s t i f y
o r e x cu s e th e r e s o r t t o u n la w fu l m e a su re s f o r its a c c o m p lis h m e n t. A
m e m b e r o f a la b o r u n io n m a y r e fu s e t o w o r k wTith n o n u n io n m e n , b u t
th is d o e s n o t e n title h im t o th re a te n m a n u fa c t u r e r s f o r w h o m h e is
n o t w o r k in g , a n d w it h w h o m h e h a s n o c o n c e r n , w it h lo s s o f tr a d e
a n d a c lo s in g o f th e c h a n n e ls o f in te rs ta te c o m m e r c e a g a in s t t h e ir
179
TEXT AND SUMMARIES OF DECISIONS.
p r o d u c t s i f they d o n o t c o n d u c t t h e ir b u sin e ss in a m a n n e r s a t is fa c
t o r y t o h im .
A n d th e s u g g e s tio n th a t, b e f o r e th e C la y t o n A c t , u n la w fu l p r a c t ic e s
o f th is k in d w e r e u s u a lly a n d n o t o r io u s ly r e s o r te d t o b y la b o r u n io n s ,
a n d th a t f o r th is r e a so n C o n g r e s s m u st h a v e in te n d e d t o d e s c r ib e th e m
as “ le g it im a t e o b je c t s ,” a n d th u s r e n d e r la w fu l w h a t b e f o r e w a s u n
la w fu l, is a lib e l u p o n th e la b o r o r g a n iz a t io n s a n d a s e r io u s im p e a c h
m ent o f C on gress.
N o r ca n I fin d in s e c tio n 20 o f th e C la y t o n A c t a n y t h in g in t e r fe r
in g w it h th e r ig h t o f c o m p la in a n t s to a n in ju n c t io n . I t r e fe r s o n ly to
ca ses “ b e tw e e n an e m p lo y e r a n d e m p lo y e e s , o r b e tw e e n e m p lo y e r s a n d
e m p lo y e e s , o r b e tw e e n e m p lo y e e s , o r b e tw e e n p e r s o n s e m p lo y e d a n d
p e r s o n s s e e k in g e m p lo y m e n t, in v o lv in g , o r g r o w in g o u t o f , a d is p u te
c o n c e r n in g te r m s o r c o n d it io n s o f e m p lo y m e n t .” T h e s e w o r d s e v i
d e n tly r e la te t o su its a r is in g f r o m s tr ik e s a n d s im ila r c o n tr o v e r s ie s ,
a n d th e c o m m itte e r e p o r t s u p o n th e b ill b e a r o u t th is v ie w o f th e
s c o p e o f th e s e c tio n . B u t th is is n o t su ch a su it. T h e r e is n o r e la
t io n o f e m p lo y e r a n d e m p lo y e e , e ith e r p re s e n t o r p r o s p e c t iv e , b e tw e e n
th e p a r tie s in th is case. D e fe n d a n ts w h o a re e m p lo y e e s a re in o n e
b r a n c h o f in d u s t r y in N e w Y o r k C i t y ; c o m p la in a n t s a re e m p lo y e r s
o f la b o r in a n o th e r b r a n c h o f in d u s t r y in d is ta n t S ta te s. N o r is
th e r e a n y d is p u te betw .een th e m c o n c e r n in g te r m s o r c o n d it io n s o f
e m p lo y m e n t. S e c t io n 20 p r o h ib it s a n in ju n c t io n r e s t r a in in g a n y p e r
s o n “ fr o m c e a s in g t o p a t r o n iz e o r t o e m p lo y a n y p a r t y t o su ch d is
p u te , o r f r o m r e c o m m e n d in g , a d v is in g , o r p e r s u a d in g o th e r s b y
p e a c e fu l a n d la w fu l m e a n s so t o d o ; * * * o r fr o m p e a c e a b ly
a s s e m b lin g in a l a w fu l m a n n e r, a n d f o r l a w fu l p u r p o s e s ; o r fr o m
d o i n g a n y a c t o r t h in g w h ic h m ig h t l a w fu lly b e d o n e in th e a b se n ce
o f s u ch d is p u te b y a n y p a r t y t h e r e t o .”
C le a r ly , th is p r o v is io n is lim it e d t o th e p a r t ic ip a n t s in a d is p u te
o f th e c h a r a c te r ju s t in d ic a te d . A n d , q u ite as c le a r ly , o n ly “ la w fu l ”
m e a su re s a re s a n c tio n e d — th a t is, o f co u r s e , m e a su re s th a t w e r e la w
f u l b e f o r e th e a ct. T h e r e is n o g r a n t, in te r m s o r b y n e ce s s a r y i n f e r
en ce , o f im m u n it y in f a v o r o f a b o y c o t t o f tr a d e r s in in te rs ta te c o m
m e rc e , v io la t iv e o f th e p r o v is io n s o f th e S h e r m a n A c t , t o w h ic h th e
C la y t o n A c t is s u p p le m e n ta l.
M
e c h a n ic s ’
L
ie n s —
A
s s ig n m e n t b y
C ontractor
of
A
mount
D
ue
— London B ros. et al. v . National Exchange Bank o f Roanoke
et al., Supreme Court o f Appeals o f Virginia (Sept. W , 1917), 93
Southeastern R eporter , page 699.— T h e K in g L u m b e r C o . c o n s tr u c te d
f o r th e c it y o f R o a n o k e a m u n ic ip a l b u ild in g , a n d b e f o r e th e la b o r e rs ,
s u p p ly m e n , a n d s u b c o n tr a c to r s h a d b e e n p a id th e c o m p a n y a s s ig n e d
$1 5 ,0 0 0 o f th e a m o u n t d u e it fr o m th e c it y t o th e b a n k n a m e d . T h e
c it y b r o u g h t a b ill o f in t e r p le a d e r , p r a y in g f o r a d e c is io n d ir e c t in g
it as t o th e d is t r ib u t io n o f th e b a la n c e o f n e a r ly $ 2 1 ,0 0 0 d u e fr o m it
u n d e r th e c o n tr a c t. T h e c o m p a n y h a v in g b e c o m e b a n k r u p t , its
tru ste e s w e r e a m o n g th e c la im a n ts m a d e p a r tie s d e fe n d a n t . T h e
la b o r e r s , e tc., m a d e t h e ir c la im u n d e r “ A n a c t to p r o t e c t s u b c o n t r a c
to r s , s u p p ly m e n , a n d la b o r e r s ,” C o d e o f 19 04, s e c tio n 2 4 8 2 a , p r o
H
im
DECISIONS OF COURTS AFFECTING LABOR.
180
v i d in g th a t a s s ig n m e n ts o f th e a m o u n ts d u e t o c o n t r a c to r s c a n n o t b e
e n fo r c e d u n t il th e d e m a n d s o f s u ch c la im a n ts h a v e b e e n sa tisfied .
T h e b a n k c o n te n d e d th a t th is a c t m u st b e c o n s tr u e d in c o n n e c t io n
w it h th e m e c h a n ic s ’ lie n la w , s e c tio n s 2 4 7 5 -2 4 8 1 , in c lu s iv e , o f th e
C o d e , so th a t th e c la im a n ts , n o t b e in g a b le t o p e r f e c t m e c h a n ic s ’ lie n s
b e ca u se th e o w n e r o f th e b u ild in g w a s a m u n ic ip a l c o r p o r a t io n , w e r e
n o t p r o t e c t e d b y th e la w a g a in s t a ssig n m e n ts. T h e la w a n d c h a n
c e r y c o u r t o f th e c it y o f R o a n o k e t o o k a v ie w a d v e r s e t o th e la b o r e r s
a n d th e o th e r c la im a n ts a s s o cia te d w it h th e m , arid th e y a p p e a le d .
T h e s u p r e m e c o u r t o f a p p e a ls , f o r w h ic h J iu '^ e P r e n t is d e liv e r e d th e
o p in io n , r e v e r s e d th e d e c is io n a n d h e ld th e a s s ig n m e n t in v a lid u n t il
th e c la im s h a d b ee n m e t, s a y in g o n th is p o i n t :
T h e w o r d s o f th e sta tu te a re w r it t e n in t o su ch a s s ig n m e n ts as
e ffe c t u a lly as i f th e a s s ig n m e n t in te r m s s ta te d as a c o n d it io n p r e c e
d e n t t h a t it s h o u ld b e v o id a n d in e ffe c t iv e u n til a ft e r th e p a y m e n t in
f u ll o f a ll d e b ts d u e b y th e a s s ig n o r t o s u b c o n tr a c to r s , s u p p ly m e n ,
a n d la b o r e r s f o r th e c o n s t r u c t io n o f th e b u ild in g , a n d in its le g a l
e ffe c t is a d ir e c t io n t o th e o w n e r th u s t o d is t r ib u t e th e fu n d .
M
others’
P
e n s io n s —
C o n s t it u t io n a l it y
of
S tatute— T
a x a t io n —
Denver & R. G. R. Go. v. Grand Gounty , Supreme Gourt o f Utah
(Dec. 2 1 , 1 9 1 7 ) , 1 7 0 Pacific R eporter , page 7 \.— T h e r a ilr o a d c o m
p a n y n a m e d b r o u g h t s u it a g a in s t th e c o u n t y t o r e c o v e r th e su m o f
$ 9 1 2 .6 6 , c o lle c t e d f r o m it d u r in g th e y e a r 1914 u n d e r th e m o th e r s ’
p e n s io n a ct p a s s e d b y th e le g is la tu r e o f U t a h in 1913. T h is t a x w a s
le v ie d in a d d it io n to a t a x f o r g e n e r a l c o u n t y ex p e n se s, o n e f o r s c h o o l
p u r p o s e s , a n d on e f o r p o o r r e lie f. T h e d is t r ic t c o u r t o f th e c o u n t y
h e ld th a t th e c o u n t y officers w e r e w it h o u t a u t h o r it y t o le v y su ch a
t a x , a n d r e n d e r e d ju d g m e n t f o r th e c o m p a n y ; th is ju d g m e n t , h o w
e v e r , is r e v e rs e d b y th e p re s e n t d e c is io n . T h e la w p r o v id e s f o r th e
l e v y in g b y th e c o u n tie s o f ta x e s su fficien t t o p r o v id e fu n d s f o r th e
p u r p o s e c o n te m p la te d . I t w a s first c o n t e n d e d t h a t th is w a s n o t a
u p u b lic p u r p o s e ” f o r w h ic h a t a x m a y la w fu l l y b e a ssessed , a n d
th a t t h e r e fo r e th e a c t p r o v id e d f o r th e t a k in g o f p r iv a t e p r o p e r t y
f o r o th e r th a n a p u b lic p u r p o s e . A s t o th is J u d g e G id e o n , w h o d e
liv e r e d th e o p in io n , s a id :
I t w ill b e c o n c e d e d , w e ta k e it, th a t th e p r o p e r r e a r in g a n d b r in g
in g u p o f c h ild r e n , th e ir e d u c a tio n , th e ir m o r a l w e l f a re, ca n a ll b e
s u b s e r v e d b e tte r b y g i v in g t o su ch c h ild r e n th e c o m p a n io n s h ip , c o n
t r o l, a n d m a n a g e m e n t o f t h e ir m o th e r s th a n b y a n y o th e r sy ste m d e
v is e d b y h u m a n in g e n u ity . T h e o b je c t o f th e a ct is t o p r o v id e m e a n s
w h e r e b y m o th e r s w h o are o th e r w is e u n a b le m a y b e e n a b le d t o g iv e
su ch a tte n tio n a n d c a r e t o th e ir c h ild r e n o f te n d e r y e a r s as t h e ir
h e a lth , e d u c a tio n , a n d c o m fo r t r e q u ir e . T h e a c t fu r t h e r p r o v id e s
th a t n o su ch m o n e y sh a ll b e a p p r o p r ia t e d o r g iv e n u n le ss th e m o th e r
is a fit p e r s o n m o r a lly a n d p h y s ic a lly to b e in tr u s te d w it h th e r e a r
TEXT AND SUMMARIES OF DECISIONS.
181
i n g o f y o u n g c h ild r e n , a n d t h a t o n ly d u r in g th e y e a r s w h e n th e
c h ild r e n a r e u n a b le t o d e te r m in e r ig h t fr o m w r o n g o r t o e a r n a
liv e lih o o d . T h e a c t h a v in g f o r its o b je c t th e b e tte r c a re f o r th e
t r a in in g , m e n ta l a n d p h y s ic a l, o f c h ild r e n w h o a re t o b e c o m e c itiz e n s
o f th e S ta te , w o u ld a t le a st le a v e th e c o n s t it u t io n a lit y o f su ch a c t
d o u b t fu l, a n d it is th e d u t y o f c o u r ts in d e t e r m in in g th e c o n s t it u
t io n a lit y o f a n y a c t t o r e s o lv e e v e r y d o u b t in f a v o r o f its c o n s t it u
t io n a lit y . W e a re n o t p r e p a r e d to h o ld th a t th e a ct, in e ffe c t, d o e s
n o t d e fin e a n d d e c la r e a p o lic y o f th e S ta te , n o r th a t it is n o t w it h in
th e p r o v in c e o f th e le g is la tu r e t o so d e fin e a n d d e c la r e a S ta te p o lic y .
H a v i n g in m in d th e p u b lic w e lfa r e b y a s s is tin g in s u r r o u n d in g c h il
d r e n o f te n d e r y e a r s w it h h o m e a s s o c ia tio n s , w it h th e c a re a n d
n u r tu r e o f t h e ir n a tu r a l p r o t e c t o r , th e m o th e r , th e le g is la tu r e , b y
th is a ct, h a s d e te r m in e d th a t t o b e a p o l ic y o f th e S ta te . S u c h b e in g
th e o b je c t o f th e a ct, th is c o u r t w o u ld n o t b e ju s t ifie d in d e c la r in g
th e a c t in v a lid a n d t h a t th e fu n d s so u se d a re n o t u s e d f o r a p u b lic
p urpose.
A c o n t e n t io n as t o th e p o w e r o f th e le g is la tu r e t o d e v o lv e u p o n th e
c o u n t y c o m m is s io n e r s th e r ig h t to le v y th e ta x e s n e ce s s a r y t o c a r r y
o u t th.e p r o v is io n s o f th e a c t w a s r e s o lv e d in f a v o r o f th e a ct, a n d it
w a s h e ld c o n s titu tio n a l. T h e ju d g m e n t o f th e c o u r t b e lo w w a s r e
v e r s e d a n d th e ca se r e m a n d e d .
M
o th ers’
P
e n s io n s —
D
eath
of
H
usband—
P r e s u m p t io n
from
A b s e n c e — Commonwealth ex rel. Trustees o f Mothers' Assistance
F und o f Philadelphia County v . Pow ell, A uditor General, Supreme
Court o f Pennsylvania (Feb. 12, 1917), 100 Atlantic Reporter, page
961^.— A m o th e r s ’ p e n s io n la w o f P e n n s y lv a n ia e n a c te d in 1913 p r o
v id e d f o r p a y m e n ts t o “ in d ig e n t , w id o w e d , o r a b a n d o n e d m o th e r s ,
f o r p a r t ia l s u p p o r t o f th e ir c h ild r e n in t h e ir o w n h o m e s .” T h is
w a s , h o w e v e r , c h a n g e d in 1915 so t h a t s u ch a ssista n ce wTas t o b e g iv e n
“ t o w o m e n w h o h a v e c h ild r e n u n d e r 16 y e a r s o f a g e a n d w h o s e
h u s b a n d s a re d e a d o r p e r m a n e n tly c o n fin e d in in s t it u t io n s f o r th e
in s a n e .” T h e p re s e n t p r o c e e d in g w a s o n e in m a n d a m u s t o c o m p e l
th e a u d it o r g e n e r a l t o d r a w h is w a r r a n t u p o n th e S ta te tre a s u re r
f o r th e p a y m e n t o f a su m t o th e m o th e r o f f o u r c h ild r e n . T h e
fa t h e r h a d d is a p p e a r e d in 1906, a n d h a d n o t b e e n h e a r d fr o m sin ce .
T h e tru ste e s o f th e fu n d , in v ie w o f h is u n e x p la in e d a b se n ce f o r
m o r e th a n se v e n y e a rs , fo u n d th a t h e w a s d e a d , a n d a p p r o v e d th e
a p p lic a t io n f o r r e lie f, w h ic h a c tio n w a s s u s ta in e d b y a lo w e r c o u r t ,
w h ic h g r a n t e d a m a n d a m u s . T h e s u p r e m e c o u r t h e ld th a t th e la w
s h o u ld n o t b e c o n s tr u e d t o w a r r a n t p a y m e n t in th is ca se a n d r e v e rs e d
th e a w a r d o f m a n d a m u s o n th e g r o u n d th a t th e a ct u se d th e w o r d
“ d e a d ” in its p o p u la r sen se, w it h o u t r e g a r d t o le g a l p r e s u m p t io n s
n o t m e n tio n e d in th e a c t.
182
DECISIONS OF COURTS AFFECTIN G LABOR.
Old-age Pensions— Constitutionality of Proposed Legisla
tion —In re Opinion of the Justices, Supreme Court of New Hamp
shire (Feb. 15, 1917), 100 Atlantic Reporter , page 1}9.—New Hamp
shire, in common with others among the New England States, has
a provision of law which permits the branches of the legislature, in
cases of importance, to ask the supreme court to pass in advance
upon the constitutionality of bills proposed for adoption. The con
stitution of the State contains the following reservation out of the.
supreme legislative power granted, being article 36, part 1, of the
constitution:
Economy being a most essential virtue in all States, especially in
a young one, no pension shall be granted but in consideration of
actual services; and such pensions ought to be granted with great
caution by the legislature, and never for more than one year at a
time.
The house of representatives adopted a resolution calling for an
opinion on the following questions:
1. Can the legislature authorize the granting of old-age pensions,
for one year at a time, to be paid either (a) by the State or (b) by
any political subdivision thereof?
2. Do the restrictions in the article as to “ actual services ” and as
to u one year at a time ” apply to political subdivisions of the State
as well as to the State itself ?
3. Can the legislature, at one session thereof, authorize the grant
ing of a pension for a year, and by a separate act authorize the
granting of a like pension for another year ?
The questions propounded were answered in the negative on ac
count of the provisions of the constitution, probably somewhat
unusual, above quoted. The opinion is in part as follows:
Pensions are not to be granted except in consideration of actual
services and never for more than one year at a time. A pension ordi
narily suggests the idea of a bounty or reward for service rendered,
but the term might include a grant which was a mere gratuity.
This latter is expressly excluded. Pensions are not to be granted
except in return for services which are fairly describable as actual,
not constructive, or imaginary. * * * I f “ old-age pensions ”
means pensions the right to which depends upon age alone, our
answer is in the negative.
As the legislature may grant a pension for only one year at a time,
legislation in the same year, whether in one bill or several, granting
in the whole pensions to the same persons for more than one year, is
beyond legislative power, and wholly void. We answer the third
question also in the negative.
The nondelegable character of the lawmaking power vested in the
legislature is subject to the exception that limited powers of local
legislation may be conferred upon minor subdivisions of the State.
But “ in the nature of things, such legislation must be not inconsistent
with the laws of the State.” (State v. Noyes, 30 N. H. 279, 293.)
TEX T AND SU M M ARIES OF DECISIONS.
183
The local legislation of towns and cities is equally subject to a reser
vation made before any legislative power was granted. Obviously
the legislature can not delegate a power it does not possess. Because
there' is no exception of the power of local legislation from the gen
eral reservation limiting the pension-granting power of the State, the
second inquiry is answered in the affirmative.
Pensions for Employees— Deductions from Salaries of County
Employees— Helliwell et al. v. Sweitzer, Supreme Court of Illinois
(Apr. 19, 1917), 115 Northeastern Reporter , page 810.—The Legisla
ture of Illinois in 1915 enacted a law providing for a pension fund
for employees of counties having a population of 150,000 or more.
Cook County is such a county, and Sidney L. Helliwell and others,
who were appointees of the county treasurer, sheriff, and other
county officials, brought a suit against the county clerk to prevent
him from deducting from their salaries, in accordance with the act,
the sum of $2 per month each for such pension fund. In the
superior court of Cook County a decree was entered overruling the
demurrer of the county clerk to the bill, and declaring the act void
as to all officers and employees provided for in it. The supreme court,
however, made a distinction as to the power of the legislature in
respect to such employees as the petitioners, over whose salaries the
county board has authority by virtue of a constitutional provision,
and those over which the legislature itself has power. It therefore
ordered the decree modified, but held that the lower court had prop
erly upheld the contention of the petitioners as far as their own cases
were concerned. The following extracts are taken from the opinion
delivered by Judge Duncan:
It is clear that the “ officers and employees” referred to in this
statute do not include public county officers, who are elected to their
offices by the voters of the county.
It is equally clear from the said provisions of the statute that the
words “ officers and employees ” in the act are broad enough to in
clude all that large class of officers and employees to which appellees
belong—i. e., all the officers and employees employed in the various
public offices of the county, and designated in section 9 of article 10
of the constitution as “ deputies and assistants,” whose number shall
be determined by rules of the circuit court and whose compensation
shall be determined by the county board.
This act is very similar in all its provisions to the Civil Serv
ice Pension Fund Act of 1911 (Laws 1911, p. 158) that was sus
tained by this court in Hughes v. Traeger, 264 111. 612, 106 N. E.
431 [Bui. No. 169, p. 56]. It was in that case held that the effect
of the law was to reduce the salaries of the officers and employees
coming within the provisions of the act $2 per month, or $24 per
year. The same holding must necessarily be made in this case, as
every reason and argument for the holding in that case will be
184
DECISIONS OF COUBTS AFFECTIN G LABOR.
found applicable 16 this case. The rule of law universally obtains
that the legislature has complete and absolute power, not only
over public officers and officials, but also over the compensation at
tached to the office and the manner and character of its duties, and
their performance, in the absence of a constitutional provision lim
iting that power or placing it elsewhere. [Cases cited.] The legis
lature, however, has no such power or right over the class of officers
to which appellees belong. Said section 9 of article 10 of the con
stitution has expressly lodged the power and authority in the county
board of Cook County to determine the salaries of appellees and all
other deputies and assistants appointed under said section of the
constitution, and the legislature has no power or right to fix the
salaries of such deputies and assistants or to raise or lower their
salaries. The act in question, therefore, can have no binding effect
as to appellees, and as to all that class of deputies and assistants
provided for by said section of the constitution, and whose salaries
the legislature has no power to determine, it is void.
The presumption must be indulged that the legislature only in
tended the act to apply to those officers and employees whom the
legislature had the right or power to control and provide for in such
a bill, and we are not warranted, therefore, in holding that it would
not have passed the act had it known that the act could not apply
to the class of officers to which appellees belong. Appellees, however,
have a right to have appellant perpetually enjoined from deduct
ing and retaining $2 per month, or any other sum, from their salaries
and the salaries of any of the other officers and employees in the
class to which appellees belong; but the act should not be held abso
lutely void as to all officers and employees of Cook County, as was
done by the decree of the court in said cause.
For the reasons aforesaid, the appellees were entitled to equitable
relief, as was apparent from the allegations of their bill. The court,
therefore, properly overruled the demurrer to the bill. Appellees
were not' entitled, however, to have the act declared entirely void
as to all such officers and employees provided for therein.
Pensions for Employees— Removal from Pension List Because
of Allowance of Compensation— Dickey v. Jackson et al., Supreme
Court o f Iowa (Dec. 11, 1917), 165 Northwestern Reporter , page
387.—George W. Dickey was a member of the police force of the
city of Des Moines, and a contributor to the policemen’s pension
fund, for which 1 per cent of his wages was regularly deducted. On
October 9, 1914, in pursuance of orders, he engaged in certain
physical tests, in the course of which he fell and received disabling
injuries. He was placed upon the pension roll at the rate of $41.25
per month, which was one-half his salary. This sum was paid until
July 7, 1916, when the trustees of the pension fund removed him
from the pension roll and refused further payments. The reason
for this action was that an award had been made to Dickey under the
workmen’s compensation act of $10 per week for 52 weeks until
TEXT AND SU M M ARIES OF DECISIONS.
185
October 23, 1915; $8 per week from that date until March 23, 1916;
and $5 per week until the entire period of compensation should reach
300 weeks. The district court of Polk County, on trial of the suit
of Dickey against the trustees and the city treasurer, annulled the
order taking him from the roll, and directed the treasurer to make
payment of the monthly pension. This judgment was affirmed by
the supreme court after a review of the provisions of the pension
act, which is compulsory on all cities having an organized police
department, and o f the compensation law, and the conclusion was
reached that the distinction between the forms of benefit was such
as to make the rulings against the right to double pensions inap
plicable.
Attention was also called to the amendment of the compensation
law, effective July 4, 1917, by which officers and employees of cities
who are eligible to pensions are excluded from the operation of the
act, thus indicating the right of the claimant to both benefits under
the law as it existed when his rights arose, but also preventing a con
tinuance of such a situation in cases occurring in the future.
Peonage— Holding to Work by Threats and Putting in Fear.—
Bernal v. United States, United States Circuit Court of Appeals ,
F ifth Circuit (Apr. 6, 1917), 21fl Federal Reporter , page 339.—•
Aurelia B. Bernal was convicted on a charge of peonage and sen
tenced to imprisonment for two and one-half years. It was alleged
that when Eosenda Nava, a Mexican alien, was at work as a domestic
servant at Laredo, Tex., for $4 per week, the respondent represented
to her that she was the proprietor of a small hotel at San Antonio, and
engaged her to work as a chambermaid at $6 per week. The re
spondent paid her railroad fare and took the woman to a house of
prostitution operated by her. The witness refused to practice prosti
tution and was set to work at menial domestic tasks, without pay and
with very little to eat, and told that she could not leave the house
until she paid back the amount of the fare, and that if she tried to
leave the immigration officers would be notified and would imprison
her. The employee did not have any money and did not know her
way around town and remained in fear of the respondent. Finally
she succeeded in sending a note to a cousin, and the latter sent a
policeman who removed her from the house and eventually restored
her to her family. Her testimony as to these facts were corroborated
by two girls at the house, and in part by the respondent herself. The
jury which considered the case reported, after deliberating from
Saturday until Monday, that they stood 8 to 4. The judge charged
them as to their duty to agree, and they finally brought in a verdict
186
DECISION'S OF COURTS AFFECTIN G LABOR,
of guilty. The court, one of the three judges dissenting, affirmed the
judgment, Judge Foster saying in the opinion delivered by him:
The law takes no account of the amount of the debt or the means of
coercion. It is sufficient to constitute the crime that a person is held
against his will and made to work to pay a debt. (Clyatt v. U. S., 197
U. S. 207, 25 Sup. Ct. 429 [Bui. No. 60, p. 695].) The court charged
the jury clearly and explicitly on the law. The credibility of the wit
nesses, the weight and sufficiency of the evidence, and the resolving of
the conflicts in the testimony were matters for the jury. If they be
lieved the witness Rosenda Nava, her testimony was sufficient to sup
port the indictment.
The defendant complains most loudly, however, because the jury
was held from Saturday until Monday, and of the supplemental
charge of the court. It is not unusual for juries to be held over Sun
day in criminal cases; but, in any event, this was a matter resting.in
the sound discretion of the court, and no abuse of discretion is shown.
Neither was there error committed in giving the supplemental charge.
Railroads— Headlights— Federal and State Laws— Louisville &
Nashville R . Go, v. State, Gourt of Appeals of Alabama ( June SO,
1917), 76 Southern Reporter , page 505.—The railroad company
named was convicted by the criminal court of Jefferson County of
violation of the State law enacted in 1915, relating to locomotive
headlights. The court of appeals, however, being itself of the opin
ion that the law was invalid, certified to the supreme court the ques
tion of its validity. The supreme court, Judge Thomas delivering
the.opinion, agreed that the statute had no application to engines
engaged in interstate commerce, because, Congress having acted in
the field, all State legislation on the subject was of no force.
The act of Congress of March 4, 1915, was by its terms to take
effect six months after its passage. It extended the provisions of
the act of February 17, 1911, relating to locomotive boilers and their
appurtenances, “ to apply to and include the entire locomotive and
tender and all parts and appurtenances thereof.” The inspectors
were given the same powers as to these matters as they had had with
reference to boilers. The original act provided for the proposal of
rules by the chief inspector to be binding upon the carriers after
approval by the Interstate Commerce Commission. The commission
took under consideration, and finally approved rules similarly pro
posed under the amendment of 1915, Nos. 29 and 31, relating to
headlights, but these were at first objected to by the carriers, and
the approval was delayed until after the commission of the offenses
under the State law, for which the company was convicted. It was
held, however, that Congress had by the passage of the act occupied
the field from the time of such enactment.
TEX T AND SU M M ARIES OF DECISIONS.
187
Railroads— Safety Appliances— Handholds— Suspension of Op
eration of Statute— Illinois Central Railroad Co. v. Williams,
Supreme Court o f the United States (Jan. 8, 1917), 87 Supreme
Court Reporter , page 128.— George R. Williams, a switchman for the
company named, brought action against it for injury, alleging as
negligence a violation of the Safety Appliance Act. The employee
was climbing to the top of a box car by means of a ladder on its side
for the purpose of setting the brake, when a handhold at the top
of the ladder and on the roof of the car gave way, causing him to
fall to the ground. Judgment in his favor in the trial court was
affirmed by the Supreme Court of Mississippi, and the company
again appealed. The second section of the Safety Appliance Act of
April 14, 1910, requires, among other appliances, secure handholds
or grab irons at the top of ladders. The third section provides for
the fixing by the Interstate Commerce Commission of standards for
the appliances mentioned in section 2. By an order of March 13,
1911,?the commission set such a standard
and allowed an extension
%
of time of five years from July 1, 1911, for conformity to the same.
The company contended that this order suspended the operation of
section 2 also until the date named. This construction the Supreme
Court did not accept, and it affirmed the judgment below. Mr.
Justice Clarke delivered the opinion, the concluding portion of which
is as follows:
To change these safety appliances on all the cars in the country
from what they were as contemplated by sec. 2—“ secure,” but differ
ing “ in number, dimensions, location and manner of application ”—■
to what they must be when standardized to meet the requirements
provided for in sec. 3, was regarded by Congress as a work so great
and expensive that it wisely committed to the informed discretion
of the Interstate Commerce Commission the power and duty of de
termining the length of time which the carriers should be allowed in
which to accomplish it. To give this discretion to the commission is
the function, and the only function, of the proviso of sec. 3, and the
claim that, by construction, power may be found in it to suspend
sec. 2, is too forced and unnatural to be seriously considered.
Seamen— Contracts— Release— The Moana, United States Dis
trict Court, Northern District California, First Division (Oct. SO,
1916), 236 Federal Reporter , page 809.—John Suarez and three others
libeled the British steamer Moana fo'r their wages on a return trip
from New Zealand to San Francisco. They were engaged by the
assistant engineer to take the place of four others who had been
employed but at the last moment failed to appear. They claimed
that they were told by him that the voyage upon which they were
entering was to be from San Francisco to New Zealand and return,
188
DECISIONS OF COURTS AFFECTIN G LABOR,
and that otherwise they would not have gone on board. They could
not read English, nor speak it to any extent, and on signing articles
for the voyage three days later they were again told, as they testified,
that the articles were for a round trip; as a matter of fact they were
for one way only, and the purser testified that this was explained
to them. At New Zealand they were discharged, received their
wages, and signed releases accordingly. They wished to return on
the boat as employees, but were not permitted to do so, and returned
as third-class passengers. They were awarded damages to the
amount of their wages on the return, Judge Dooling saying in the
opinion written by him:
The only testimony before the court concerning what the engineer’s
assistant told them at the time he procured them to go on board
shortly before the vessel sailed is the testimony of the libelants.
From this and the attendant circumstances the court must find that
libelants understood before they went aboard the Moana that they
were shipping for a voyage from San Francisco to New Zealand and
return, and under the circumstances the finding will be that such was
their contract. That being so, it is not of much materiality to deter
mine just what was done on board ship at the time of signing the
articles, although I believe the libelants then understood they were
signing articles for the return trip. There was, however, little else
that they could then do, save to sign such articles as were presented
to them. The ship in San Francisco was short-handed, and the time
for her departure was near. It was necessary to have men, and the
assistant engineer was apparently authorized to secure them, and
did so. Under such circumstances his contract was the contract of
the ship. That these seamen, speaking little English, signed off in
a distant land before they could get the money then earned, does not
seem to me to be a matter of much importance. They were pre
vented from returning as employees of the ship because of the oppo
sition of the Sailors’ Union in New Zealand, of which they were not
members. The master, perhaps, did not know just what arrange
ment the assistant engineer had made with libelants; but, as such
assistant was apparently authorized to employ the men, and did so,
the ignorance of the master as to the terms of such employment can
not lessen the responsibility of the ship. Libelants were employed
for a round trip from San Francisco to New Zealand and return,
and are entitled to the wages prayed for.
Seamen — W rongful Discharge — Overtime — Wages — A laslca
Steamship Co. v. Gilbert, United States Circuit Court of Appeals ,
Ninth Circuit {Oct. 23, 1916), 236 Federal Reporter , page 715.—
Arthur J. Gilbert proceeded by libel against the steamship Seward
to recover his wages for a voyage beginning and terminating at
Seattle, his fare from Juneau, Alaska, to Seattle, his expenses at
Juneau, and damages alleged at $500. He was employed on board
the vessel as night watchman at Seattle September 25, 1915. No
TEXT AND SU M M ARIES OF DECISIONS.
189
hours of service were fixed, but on a previous trip he had been on
duty from 6 p. m. to 6 a. m., and he began to observe the same hours
on this trip. On October 3, while preparing, at 5.45 p. m., to go on
watch, the first mate asked him why he was not on watch. He
replied that it was not 6 o’clock yet, and the mate told him he
was supposed to be on watch at 5 o’clock. The watchman remarked
that that would mean an hour’s overtime for him, and before the
conversation ended the mate asked him whether he would keep the
hours demanded without pay for overtime, and he replied that he
would not. He proceeded with his duties, and the next day he was
put on shore at Juneau. Wages up to that point were tendered and
refused. It was 10 days before he was able to get passage for Seattle.
The court adopted the opinion of Judge Neterer, of the district court,
which held that the seaman was entitled to his wages, his necessary
expenses at Juneau, and his fare back to Seattle. A part of this
opinion is as follows:
The fact that no definite hours were prescribed for him by the
shipping articles, or by the agreement between the Puget Sound
Shipping Association and the Sailors’ Union of the Pacific, and the
hours of 6 to 6 having been given him on a prior voyage, and he hav
ing continued under the same hours upon this voyage, and the first
intimation he had that the hours should be changed was at the time
of this conversation, would indicate suggestion for extra time, as it
would add an hour to the time previously required of him. There
is no showing of disqualification or unfitness for service, nor mu
tinous or rebellious or contumacious conduct. Under the circum
stances, the mate should have dealt with the libelant in a more in
dulgent spirit. Libelant should not have used the expression to his
superior officer which he did, and yet there was nothing disrespectful
in the words used, or any suggestion of disrespect or insubordination,
even though there was a suggestion of liability for overtime, and
the mate would not, under the circumstances, have the right to dis
charge him.
Sunday Labor— “ Factory ”— Pasteurizing and Bottling M ilk—
People v. R. F. Stevens Co. (Inc .) , Supreme Court of New York , A p
pellate Division , Second Department (May 11, 1917), 165 New York
Supplement, page 39.—The company named was convicted in the court
of special sessions, city of New York, of a violation of the section of
the labor law prohibiting the operation of factories on Sunday. The
question was presented whether an establishment for pasteurizing
and bottling milk is a factory. Judge Blackmar delivered the opin
ion, in which the decision of the lower court was reversed, and the
employment of a man in pasteurizing was held not to constitute a
breach of the statute. The definition of a factory in section 2 of the
labor law, as interpreted in a former decision, was first quoted, show
ing that to bring an establishment within that definition “ there must
190
DECISIONS OF COURTS AFFECTIN G LABOR.
be some manufacturing.” That the operations referred to are not
manufacturing was held to be determined by a previous decision,
though it related not to the regulation of labor but to taxation.
One subsection of the act contains an exception of certain estab
lishments, including milk-bottling plants. It was argued that the
exception would be useless and meaningless unless such establish
ments were factories under the act. The court held, however, that
this would not be presumed, since the exceptions were not originally
included, and “ that the exemptions were passed from excess of cau
tion.” It was also remarked that the person upon whose employ
ment the charge was based in the present case was engaged in pas
teurizing rather than bottling.
Sunday Labor— Necessity— Moving-Picture Theater i n City
Near Training Camp— Rosenbaum v. State , Supreme Court of
Arkansas (Dec. 10, 1917), 199 Southwestern Reporter , page 388.—
Louis Rosenbaum was convicted of violation of a statute in operating
a moving-picture show in the city of Argenta, Ark., on Sunday,
July 29, 1917. The statute of the State forbidding Sunday labor is
similar to the usual one, and excepts services of “ daily necessity,
comfort, or charity.” It was sought to make the point that the open
ing of moving-picture houses in Argenta and Little Rock was a
necessity under the circumstances existing, since some thousands of
soldiers in Camp Pike and Fort Logan H. Roots near by, were at
liberty on Sundays only, and in need of such recreation. Judge
Wood delivered the opinion, and reviewed at some length the history
of the institution of the Sabbath, or Sunday, and the reasons for its
observance. The conclusion was that no necessity for the labor
done was shown, and the judgment of conviction was affirmed. A
brief quotation is made from the concluding portion of the opinion,
as follows:
Excluding from our consideration the opinion evidence, reason
able minds under a correct interpretation of the statute could not
reach any other conclusion than that the labor performed by appel
lant and his employees was not that of daily necessity, comfort, or
charity. The qualifying word “ daily ” is significant of the kind of
necessity. It must be such as is required to meet a daily need.
In construing the term “ necessity,” we have given it a liberal
rather than a literal interpretation, holding that an absolute un
avoidable physical necessity is not meant, but rather an economic
and moral necessity. It is said in Shipley v. State, 61 Ark. 219, 32
S. W. 489, 33 S. W. 107:
“ If there is a moral fitness or propriety for the work done in the
accomplishment of a lawful object, under the circumstances of any
case, such work may be regarded a necessity, in the sense of the
statute.”
TEX T AND SU M M ARIES OF DECISIONS.
191
Judge Wood then refers to decisions upon facts very closely re
sembling those in the present case, where necessity was held not to
exist.
Sunday Labor— Observance of Jewish Sabbath— Suit to Re
strain Prosecution— Cohen v. Webb , Court of Appeals of K en
tucky (Mar. 23, 1917), 192 Southwestern Reporter, page 828.—
Samuel Cohen brought suit against U. G. Webb, police judge, to
obtain an injunction or a writ of prohibition to prevent the latter
from enforcing the Sunday law against the former. Cohen, in good
faith, kept the Jewish Sabbath, transacting no business from sun
down on Friday until sundown on Saturday. Repeated prosecutions
were instituted against him, and the judge instructed the jury that
such observance did not exempt a person from the operation of the
Sunday laws, as it did not constitute the observance of any other
calendar day as the Sabbath. On conviction fines were levied, each
less than $20, so that no appeal could be taken to a higher court, and
on nonpayment Cohen was imprisoned, and sought a remedy as
stated. The court held that injunction or prohibition would not lie
under the circumstances, but also held that the keeping of the Jewish
Sabbath was sufficient to exempt one from keeping Sunday, and
remarked that undoubtedly the police judge would be governed in
the future by this opinion of the supreme court. Judge Clay, who
delivered the opinion, said in part:
Clearly, it was not the purpose of the legislature to interfere with
the Jewish conscience and require the members of that sect to con
tinue to rest after their day of rest had ended. Of course, in speak
ing of Sunday, the statute refers to Sunday according to the Chris
tian calendar and provides for its observance as such. When it
comes to provide for an exemption, the controlling feature is the
observance of another Sabbath than Sunday and not the observance
of a mere statutory day. In other words, the purpose of the statute
is to give to each sect its particular Sabbath or day of rest. Any
other view of the statute would require the plaintiff not only to
observe his own Sabbath for a period of 24 hours, but to observe a
period of time not covered either by his Sabbath or the Christian
Sabbath. We, therefore, conclude that both the police court and
circuit court erred in holding that plaintiff was guilty under the
statute, notwithstanding the fact that he regularly observed the
Jewish Sabbath from sundown Friday evening to sundown Saturday
evening.
Wages — Minimum-wage Law — Constitutionality — State v.
Crowe, Supreme Court of Arkansas (June 4, 1917), 197 Southwest
ern Reporter, page 4-—The Legislature of Arkansas passed, in 1915,
an act, No. 191, “ to regulate the hours of labor, safeguard the health,
192
DECISIONS OF COURTS AFFECTIN G LABOR.
and establish a minimum wage for females in the State of Arkansas.”
In the present case the validity of that part of the statute relating
to the minimum wage was in controversy, and the circuit court of
Sebastian County had given judgment for the defendant Crowe,
against whom proceedings had been instituted by the State, on the
ground that the law had not been legally enacted. The supreme
court, however, held the law constitutional, and reversed the judg
ment, remanding the case for further proceedings.
As to the contention that the act violates the fourteenth amend
ment, Judge Hart cited the Oregon decision in Stettler v. O’Hara,
69 Oreg. 519, 139 Pac. 743 (Bui. No. 169, p. 173), and referred to its
affirmance by the United States Supreme Court without opinion,
awaiting which decision the Arkansas court had deferred the an
nouncement of its own. Decisions were cited and quoted affirming
the validity of laws limiting the hours of labor of and otherwise
affecting women, as were also decisions of the Supreme Court of the
United States and of State courts upholding limitations to the right
of free contract, enacted under the police power. The concluding
portion of the opinion is for the most part as follows:
It is a matter of common knowledge of which we take judicial
notice that conditions have arisen with reference to the employment
of women which have made it necessary for many of the States to
appoint commissions to make a detailed investigation of the subject
of women’s work and their wages. Many voluntary societies have
made this question the subject of careful investigation. Medical
societies and scientists have studied the subject, and have collected
carefully prepared data upon which they have prepared written
opinions. It has been the consensus of opinion of all these societies,
medical and other scientific experts, that inadequate wages tend to
impair the health of women in all cases and in some cases to injuri
ously affect their morals. Indeed, it is a matter of common knowl
edge that if women are paid inadequate wages so that they are not
able to purchase sufficient food to properly nourish their bodies, this
will as certainly impair their health as overwork. It is certain that
if their wages are not sufficient to purchase proper nourishment for
their bodies the deficiency must be supplied by some one else or by
the public, if they are to keep their normal strength and health.
The investigations above referred to show that it has become abso
lutely necessary for many women to work to sustain themselves, and
that they have no one to assist them. The strength, intelligence, and
virtue of each generation depends to a great extent upon the mothers.
Therefore the health and morals of the women are a matter of grave
concern to the public, and consequently to the State itself.
The members of the legislature come from every county in the
State. The presumption is that it passed the statute to meet a con
dition which it found to exist and to remedy the evil caused thereby.
As said in Stettler v . O’Hara, supra, we believe that every argu
ment put forward to sustain the maximum hours law or the restric
tion of places where women work applies equally in favor of the
TEX T AN D SU M M ARIES OF DECISIONS.
193
minimum wage law as also being within the police power of the
State and as a regulation tending to guard the public morals and the
public health. Of course, the legislature could not fix an unreason
able or arbitrary minimum wage, but it must be fair and reasonable.
It has been said that as to what is fair and reasonable there is no
standard more appropriate than “ the normal needs of the average
employee, regarded as a human being living in a civilized com
munity.”
Wages— Minimum-Wage Law— Constitutionality— Williarns v.
Evans et al., Supreme Court of Minnesota (Dec. 21,1917) ,165 North
western Reporter, page 495.— E. W . Williams instituted a suit to en
join Eliza P. Evans and others, members of the minimum-wage com
mission of Minnesota, from enforcing orders fixing minimum wages.
Another similar suit by the A. M. Ramer Co. was tried together with
the Williams case. The act, passed in 1913, establishes a minimumwage commission and provides for the determination by it of mini
mum wages for women and minors. Employers in any occupation
are prohibited from employing any worker at less than a minimum
wage determined and established by the commission. This determi
nation is made after investigation and public hearings, is effective 30
days after issuance of an order, and may be applicable to the whole
State or a portion thereof; but such order may be issued only if the
commission finds that one-sixth or more of the women and minors
employed in the occupation under consideration are receiving less
than living wages. The members of the commission duly issued cer
tain orders fixing wages, and the employers brought these actions to
restrain their enforcement, on the ground that the statute is unconsti
tutional. The district court of Ramsey County held the law void and
issued a temporary injunction. The supreme court took the opposite
view, upheld the law and reversed the order for an injunction. Judge
Hallam, speaking for the court, expressed the opinion that such
limitations on legislative power as were contained in the State consti
tution are not more restrictive than those of the fourteenth amend
ment to the Federal Constitution, and therefore directed attention to
the question whether the act violated the provisions of this amend
ment. Continuing, the opinion reads as follows:
The pertinent part of the fourteenth amendment reads:
“ Nor shall any State deprive any person 0f * * * liberty, or
property, without due process of law; nor deny to any person within
its jurisdiction the equal protection of the laws.”
This guarantees to the citizen liberty of contract and liberty to
conduct his business affairs in his own way. [Cases cited.] This
right it is claimed has been infringed by this statute.
The liberty of contract guaranteed by this amendment is not abso
lute. It is subject to the power of the State to legislate for certain
permissible purposes. [Examples given and cases cited.]
64919°— 18— Bull. 246------ 13
194
d e c is io n s
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courts
a f f e c t in g
labor.
The extent of the police power, giving legislatures authority to
restrict liberty of contract, and the principles governing its exercise
are examined, and the opinion continues:
Bearing these principles in mind, we must determine whether this
statute is.within the proper field of legislation.
There is a notion, quite general, that women in the trades are under
paid, that they are not paid so well as men are paid for the same
service, and that in fact in many cases the pay they receive for work
ing during all the working hours of the day is not enough to meet
the cost of reasonable living. Public investigations by publicly ap
pointed commissions have resulted in findings to the above effect.
Starting with such facts, there is opinion, more or less widespread,
that these conditions are dangerous to the morals of the workers and
to the health of the workers and of future generations as well.
It is a strife for employer and employee to secure proper economic
adjustment of their relations, so that each shall receive a just share
of the profits of their joint effort. In this economic strife, women as
a class are not on an equality with men. Investigating bodies, both
of men and of women, taking all these facts into account, have urged
legislation designed to assure to women an adequate working wage.
The legislatures of 11 States have passed laws having the same pur
pose as the one here assailed.
It is not a question of what we may ourselves think of the policy
or the justification of such legislation. The question is: Is there any
reasonable basis for legislative belief that the conditions mentioned
exist, that legislation is necessary to remedy them, and that laws
looking to that end promote the health, peace, morals, education, or
good order of the people and are “ greatly and immediately necessary
to the public welfare ” ? If there is reasonable basis for such legis
lative belief, then the determination of the propriety of such legisla
tion is a legislative problem to be solved by the exercise of legislative
judgment and discretion. (Holden v. Hardy, 169 U. S. 366, 398, 18
Sup. Ct. 383 [Bui. No. IT, p. 625].)
We think sufficient basis exists. It is not necessary that we should
hold that statutes of this kind applicable to men would be valid.
We think it clear there is such an inequality or difference between
men and women in the matter of ability to secure a just wage and in
the consequences of an inadequate wage that the legislature may by
law compensate for the difference. That there is such difference,
has been recognized as an economic fact by the United States
Supreme Court. (Muller v. Oregon, 208 U. S. 412, 28 Sup. Ct. 324
[ Bui. No. 75, p. 631]; Miller v. Wilson, 236 U. S. 373, 35 Sup. Ct.
342 [Bui. No. 189, p. 133].) Two cases have arisen in other States
involving the constitutionality of minimum-wage laws for women.
Jn both the laws were sustained. Stettler v. O’Hara, 69 Oreg. 519,
139 Pac. 743 [Bui. No. 224, p. 220]; State v. Crowe (Ark.) 197
S. W. 4 [see p. 191].
We sustain the principle of minimum-wage legislation as applied
to women. By like reasoning the principle may be sustained as
applied to minors.
The objection that the law embodies an unlawful delegation of
legislative power to the commission was taken up and the principles
TEX T AND SU M M ARIES OF DECISIONS.
195
governing the question examined by a reference to the decisions,
concluding with an extract from the opinion in an Ohio case, quoted
in Field v. Clark, 143 U. S. 649, 693, 694, 12 Sup. Ct. 495. This
quotation and the court’s further discussion are given herewith:
“ ‘ The true distinction’ * * * is between the delegation of
power to make the law, which necessarily involves a discretion as
to what it shall be, and conferring authority or discretion as to its
execution, to be exercised under and in pursuance of law. The
first can not be done; to the latter no valid objection can be made.”
Respondent contends that this act was not a complete law when it
left the legislature and that there w^as no complete law until after
the commission made an order and that the power to determine
“ when and where there shall be any law, and what it shall be, is to be
exercised at the whim and caprice of the commission.”
Let us address ourselves to this question. As above stated, section
20 defines a living wage. Section 12, in effect, enjoins every em
ployer to pay a living wage “ as defined in this act and determined
in an order of the commission.”
We think this must be construed as establishing a living wage as
defined in the act as the lawful minimum wage, and as fixing a liv
ing wage as so defined as the standard by which the commission
must be guided in determining a minimum wage for any occupa
tion. The determination of a minimum wage by the commission
is accordingly a determination of a fact “ upon which the law
makes * * * its own action depend.”
We do not overlook the fact that the statute can not be effectively
executed nor its penalties enforced until the commission establishes
a minimum wage, nor the fact that the commission is given a discre
tion as to when to make the investigation into any particular occu
pation which may result in an order fixing a minimum wage in that
occupation. These provisions vest “ discretion as to its execution to
be exercised under and in pursuance of the law,” and they do not
prevent the act from being a complete law nor render it invalid.
There are abundant instances of the application of this principle.
[Illustrations cited.]
The principles stated are now well recognized. The act contains
no delegation of legislative power.
Minor objections also were overthrown, with the result, stated
above, that the law was affirmed as valid.
Wages— Payment in Scrip— Constitutionality or Statute—
Freedom of Contract— Note Given for Accrued Wages— E x parte
Ballestra, Supreme Court of California {Nov. 16,1916), 161 Pacific
Reporter , page 120.—John Ballestra petitioned for a writ of habeas
corpus for his release, he having been arrested upon the charge of
violating the California statute forbidding payment of wages in scrip
or any kind of order, etc., unless redeemable in full and immediately
in lawful money. He questioned the constitutionality of this statute,
196
DECISIONS OF COURTS AFFECTIN G LABOR.
but it was upheld and the prisoner remanded to custody for trial.
Judge Shaw, in delivering the opinion for the court, said:
The right to make contracts, like other personal and property
rights, is subject to reasonable regulation designed and calculated
to promote the general convenience, prosperity, and welfare. Laws
having a reasonable tendency to accomplish these results, and not
imposing unreasonable burdens upon individuals, are valid. The
provisions of the statute in question do not transgress this rule. As
applied to ordinary transactions between employers and employees,
of the kind embraced within its terms, the statute is, in our opinion,
valid and constitutional.
The affidavit on which Ballestra is held in custody charged, in the
language of the statute, that on October 30, 1915, in Sonoma County,
Cal., Ballestra 66did willfully and unlawfully issue in payment of
and as evidence of indebtedness for wages due an employee, to w it:
Pasquale Barbaries,” a certain note set forth in the affidavit, for the
amount of wages due Barbaries, payable two years after date, and
not on demand, no part of which has been paid. This clearly states
an offense embraced in the description given in the statute.
r
Wages— Security for Payment— Contractors’ Bonds— North
western National Bank of Bellingham v. Guardian Casualty & Guar
anty Co ., Supreme Court of Washington (Dec. 12,1916), 161 Pacifto
Reporter , page 4-78.— Brooks & Olsen contracted with the city of
Bellingham for the construction of a water main and gave a bond,
with the guaranty company named in the title of the case as surety,
conditioned upon the payment of claims for labor and materials. The
contractors made an arrangement with the bank named to make loans
for the carrying on of the w^ork, agreeing to give the bank as security
assignments of all warrants issued by the city under the contract.
Such assignments were given and filed with the city comptroller.
Certain warrants were paid by the city to the bank, leaving a bal
ance of $2,300 and interest due on the notes given by the contractors
to the bank. After a time the bank ceased to make advances to the
contractors upon their notes, but cashed time checks and vouchers
issued by the contractors for labor and materials, taking the checks
and vouchers with a formal assignment upon them. The contract
did not, as is often the case, contain a provision for the payment
of a certain percentage of the estimated value of work done to the
contractors and the withholding of the balance to meet unpaid
claims for labor and materials, but did provide that the city might
withhold any and all payments until satisfied that wages and claims
for materials had been met. Action was brought by the bank to
recover from the guaranty company the $2,300 due on the notes and
several thousand dollars, the amount of time and material checks
cashed. The city showed that after making the payments to the
TEXT AND SU M M ARIES OF DECISIONS.
197
bank under the assignments of warrants and paying other claims for
labor and materials it still had nearly $3,400, which it paid into
court for distribution. Besides claims for materials and those clearly
for labor, properly speaking, the bank had purchased those of two
subcontractors and of the bookkeeper and stenographer for the con
tractors. The bank contended for the payment of its $2,300 out of
the money paid into court, on the ground that the contractors had
assigned to it all moneys to become due, as security for their notes
given it. The guaranty company asserted that the bank’s claim to
the $2,300 was inferior to that of the laborers and material men.
The court held that, since the assignments taken from the contractors
by the bank were filed with the city comptroller prior to any notice
that labor and material claims had not been or would not be paid,
and since the contract contained no provision for an absolute reserve
of any portion as security for such claims, and since nothing had
been withheld at that time for that purpose, the bank’s claim was
prior.
As to the claims of laborers and material men assigned to the bank,
the guaranty company contended that the bank, having agreed with
the contractors to advance them money, had a right to pay such
claims under this agreement, but none to purchase them; but the
court held that the bank had such a right like any one else.
The company next contended that the laborers and material men
could assign rights of action against the contractors, but not their
rights to proceed against the surety on the bond. The court held that
the right under the bond attached to the other right and passed by
the assignments. The claims of the subcontractor and the book
keeper were held not lienable, and the bank, therefore, not entitled
to recover for their amount. The net result was that the sum held
by the court was applied, first, to the $2,300 and interest, constituting
the balance on the notes, and then to the claims for labor and mate
rials held by the bank. The bank was then given judgment against
the guaranty company for the balance of these claims, exclusive of
those of the subcontractors and the bookkeeper.
Wages— Semimonthly Pay Day— Constitutionality of Stat
ute —Arizona Poioer Co. v. State , Supreme Court of Arizona (June
23,1917), 166 Pacific Reporter, page 275.—The company named was
convicted of the offense of refusing to pay one of its employees the
wages due him at the time of his quitting its service, as provided
in sections 705, 706, Penal Code, 1913. There was no dispute as to
the facts, but the company questioned the validity of the law, first,
because, as it claimed, while the penalty provided was a fine, impris
onment for debt might be a consequence of proceedings for its eollec-
198
DECISIONS OF COURTS A FFECTIN G LABOR.
tion. The court, speaking through Judge Ross, held that the corpo
ration could not sustain this objection, as is shown by the following
extracts from the opinion:
It is not possible, in fact or in law, to imprison appellant, either on
mesne or final process; it can not, as an individual, be arrested or com
mitted to jail.
If the fine is ever collected, it will not be by jailing the corporation,
but by execution against its property. The constitutional inhibition
is against imprisonment for debt; it does not prohibit th£ use of
other means to enforce the payment of a just debt. The stigma of
imprisonment is forbidden, and while the debtor, honest and dis
honest, is thus protected by the Constitution, the legislature is not
denied the power to impose penalties or fines as a means of inducing
an unwilling and litigious employer to make payment of wages
promptly and at short intervals when the public welfare demands and
requires it.
The appellant is not in a position to challenge the constitutionality
of the law on the ground of its application to individuals; that ques
tion can only be raised by parties whose rights are involved or affected
thereby.
Arguments that the contract contained in the charter of the corpo
ration was impaired by the law, and that the classification, by which
corporations and not other employers similarly situated were affected,
was unreasonable and arbitrary, and therefore unconstitutional,
were overruled by the court, which then said:
In the case of State v. Missouri Pacific Railroad Co., 242 Mo. 339,
147 S. W. 118 [Bui. No. 112, p. 134], every conceivable objection
was urged against the constitutionality of the law, which is practi
cally the same as ours. All of these objections were taken up and
fully discussed by the court and held to be without merit. We do not
deem it necessary to set forth here the reasons given by the court-in
support of its decision, but suffice it to say that they seem to us to be
in line with the general trend of the more recent development and
expansion of the law under what is known as the police power o f the
State.
A further contention wTas that the act was void for uncertainty
because in case the employee quits it is required that the employer
shall make payment of wages due 44at once.” It was claimed that
this must mean within a reasonable time, which would make its
application uncertain. The question of the proper interpretation is
discussed, and the opinion concludes as follows:
The statute does not, in terms, require the employee to demand of
the employer to pay, or require a state of facts showing the futility
of demand, yet without it no offense is made out, for it is possible
that the employee may refuse payment, or can not be found, or is
incapacitated. A demand and rerusal to pay are essential elements
of the crime. So, under our law, notice to the employer by the em
ployee that he has quit, a demand for the payment of his wages, and
a refusal to pay are essential elements of the offense defined. There
TEX T AND SU M M ARIES OF DECISIONS.
199
can not be a failure or refusal to pay until notice is given by the
employee to the employer that he has quit and a demand made for his
wages.
The admitted facts of the case are that one T. P. Caughlin, an
employee of the appellant, quit work on the 23d day of September,
1915, at which time he notified the appellant that he had quit. The
wages due him at that time was the sum of $22.07, the payment of
which was then demanded. The appellant failed and refused to pay
the wages, and did not pay them until on or about October 5tli, ap
pellant’s regular pay day. No excuse for failing to pay the wages
due Caughlin was offered, other than that the law was invalid.
We think clearly the prosecution made out a case under the law,
and that the judgment of conviction should be affirmed; and it is
accordingly ordered.
Wages— Ten-hour Law— Overtime— E ffect of Settlement and
Release— Sumpter v. St. Helens Creosoting Co ., Supreme Court of
Oregon (May 1, 1917), 164 Pacific Reporter , page 708.— James L.
Sumpter brought action for pay for overtime services from July 1,
1913, to September 27, 1914, as an assistant engineer, his regular
wages being $2.50 per 10-hour day. The amount of overtime was
435 hours, and the amount claimed to be due was computed at 37^
cents per hour. The company’s claim that the 10-hour law, on which
the action was based, was unconstitutional was overthrown, that
question having in the meantime been settled by the decision in the
case of State v. Bunting, 139 Pac. 731 (Bui. No. 169, p. 120), affirmed
by the Supreme Court of the United States in Bunting v. Oregon,
243 U. S. 426, 37 Sup. Ct. 435 (Bui. No. 224, p. 160). The company
then presented in evidence the monthly pay checks,, which were so
arranged as to embody statements of the account and to make the
indorsements a satisfaction of the accounts; also the time checks,
which when signed constituted receipts in full for labor to date.
The judgment in the circuit court of Columbia County had been for
the employee, but this was reversed, the supreme court holding that
it was competent for an employee, by settlement on the basis of the
regular pay without objection, to bar his rights for pay for the over
time. Judge Benson delivered the opinion, in concluding which he
said :
It appears to us that this state of the pleadings and the evidence
establishes beyond any question that there was an account stated and
a settlement which constitutes a bar to this action. Plaintiff argues
that such a conclusion is calculated to render the statute ineffective,
but we can not agree with this contention. The law provides for a
remedy in the shape of a criminal prosecution, but it nowhere pro
hibits the laborer from waiving his civil remedy after the labor is
performed. It must be conceded that there is no power to compel
plaintiff to prosecute this action and neglect to do so would be a
complete waiver. An accounting and settlement is another way of
200
DECISIONS OF COURTS AFFECTIN G LABOR.
reaching the same result. We conclude that the defendant was
entitled to a directed verdict, and a judgment will accordingly be
entered here in its favor.
W eekly Day of Rest— “ Factory”— Machine Shop of Transit
Company— People v. Transit Development Co., Supreme Court of
New Y ork , Appellate Division , Second Department (May '25, 1917),
165 New York Supplement, page 114.— The court of special sessions
of the city of New York found the company named guilty of the em
ployment of one Machiels, a machinist, for seven days without a rest
period of 24 consecutive hours, as required by statute. The company
was fined $20, and appealed. The decision turned upon the question
whether the plac6 of employment was a factory under section 2 of
the labor law. Power houses, etc., other than construction or repair
shops, owned and operated by public-service corporations, are ex
empted. The company involved was auxiliary to a street railway
company. The judgment of conviction was affirmed, the establish
ment where the work was performed being held to be a construction
or repair shop. Judge Stapleton concluded the opinion delivered by
him as follows:
The appellant argues that the fair and reasonable meaning of the
words “ construction or repair shops” should be limited to those
repair and construction shops where general construction and repair
work is carried on, and should not be extended to include purely
maintenance work in a generating plant. It further argues that the
phrase “ other than construction and repair shops ” modifies “ other
structures” and does not refer back to power houses, generating
plants, barns, storage houses, sheds.” We are not convinced by
either argument.
From the operation of the statute, the legislature, by definition,
specifically exempted power houses and generating plants ^owned or
operated by a public-service corporation; but then, with particularity,
it excludes repair shops from the benefit of the exemption. No dis
tinction is expressed between a shop in which emergency repairs are
made and a shop in which general repairs are made. The workshop
in which Machiels was employed is a repair shop. Had it been housed
in a building separate and apart from the power house, there would
not, we think, be any question that those employed in it are entitled
to 24 consecutive hours of rest in every calendar week. Why should
the circumstance that it is operated under the same roof make a differ
ence? We can not reason why.
Workmen’s Compensation— Accident — Fireman Contracting
Pneumonia from W etting— Landers v. City o f Muskegon , Supreme
Court o f Michigan (June 1 , 1917), 163 Northwestern Reporter, page
1$ .—Mary B. Landers, widow of William Landers, instituted pro
ceedings to secure compensation for the death of her husband, who
TEXT AND SU M M ARIES OF DECISIONS.
201
had been employed as a fireman by the city named. On the morning
of December 30, 1915, he was engaged in assisting to put out a fire
in the hold of a steamer wintering in the port. The boat stood out
of the water 40 feet, and much water from the hose rebounded upon
the firemen, so that Landers became very wet. Twelve hours were
required to extinguish the fire. He was taken ill the next morning,
quit work on January 2, and died of pneumonia January 13. The
claimant was awarded the expense of medical and hospital treat
ment and medicines, and $7.81 per week for 300 weeks. The award
was reversed by the court on the ground that the occurrence was not
an accident under the law, Judge Bird for the court saying in part :
Landers was employed as a fireman. It was a part of his regular
duties to go to fires and help extinguish them. In doing so, it was
not an unusual thing for him to get wet. Not only does the proof
show, but we think it is a matter of common knowledge, that firemen
are subjected to exposure and drenching while attempting to extin
guish fires.
We must therefore conclude that pneumonia was brought on, not
by an unexpected event, but by an event which was an incident to
his regular employment.
At about 11 o’clock in the forenoon, there was a sudden rush of
water from the upper deck, which fell onto and drenched the fire
men as they were working around the boat. This is assigned as the
unexpected event which constituted the accident. The uncontra
dicted proof is that they were wet through two or three hours
before this took place. We think this incident should be classed
among the ordinary ones attending the duties of a fireman, and not
as an accident.
I f it can be said in the present case that the diplococcus germ was
dormant in the system of the deceased, and that it was aroused to
activity by his exposure at the fire, the case must fail, because the
thing which aroused the germ into activity was caused by events
which were incident to his regular "employment, and not by the
unusual and unexpected event.
Workmen’s Compensation— Accident— Typhoid Fever from
Drinking Infected W ater —State ex rel. Faribault Woolen Mills
Co. et al. v. District Court, Rice County , et al., Supreme Court of
Minnesota (Oct. 26, 1917), 164 Northwestern Reporter , page 810.—■
An employee of the company named was awarded compensation by
the district court, the injury alleged being typhoid fever said to have
been contracted from drinking infected water furnished in the fac
tory for the use of the employees. It is stated that if this constituted
an “ accident ” within the definition contained in the law, the evi
dence was probably sufficient to sustain the findings of the district
court. The law provides that the word “ accident ” shall “ be con
strued to mean an unexpected or unforseen event, happening sud
denly and violently, with or without human fault and producing at
202
d e c is io n s
of
courts
a f f e c t in g
labor.
the time injury to the physical structure of the body.” After re
citing this definition, the opinion, written by Judge Taylor and
reversing the award, says:
The evidence shows that typhoid fever is a germ disease; that it
is produced by taking typhoid bacilli into the alimentary canal; that
no deleterious effects result until the bacilli taken into this canal
have multiplied enormously; and that it requires more than a week
after the infection for the disease to develop sufficiently for its
symptoms to be discernible. The disease does not result from an
event which happens “ suddenly and violently,” nor from an event
which produces “ injury to the physical structure of the body ” at
the time it happens.
Workmen’s Compensation— Accident Arising out of Employ
ment— Freezing— State ex rel. Nelson v. District Court, Ramsey
County , et al., Supreme Court of Minnesota {Nov. 2, 1917), 164
N orthwestern Reporter, page 917.— C. N. Nelson was a janitor em
ployed by the Northwestern Telephone Exchange Co. On February
22, 1916, he shoveled snow for about 1J hours during very cold
weather, and froze his big toe; the ultimate result of this injury
was the amputation of his leg. The district court denied the com
pensation claimed by Nelson, holding that the injury arose out of
his employment but was not an accident. He then carried the matter
to the supreme court by writ of certiorari, where the decision was
reversed and he was held entitled to compensation. It was first
pointed out that since the trial the court, following the great weight
of authority in other States, had decided, in the case of the State ex
reL Virginia &Rainy Lake Co. v. District Court, 164 N. W. 585, that
freezing was an accident. The inquiry was therefore narrowed to
the question whether the accident arose out of the employment. The
majority of the few cases found in other States led to the conclusion
that such was the fact, and the previous decisions in the Rau case
relating to sunstroke (see below), and in one where the injury was
caused by lightning, pointed in the same direction.
Workmen’s Compensation— Accident Arising out of the Em
ployment— Sunstroke— State ex rel. Rau v. District Court, Ramsey
County, Supreme Court o f Minnesota {Nov. 2,1917), 164 Northwest
ern Reporter, page 916.—George Rau died as a result of sunstroke
incurred while working as a street laborer for the city of St. Paul,
and the district court named denied compensation to his widow,
Lena Rau. This decision was reversed, the supreme court holding
her entitled to compensation on the facts found which, with the
TEXT AND SU M M ARIES OF DECISIONS.
203
court’s conclusions, are sufficiently presented in the following quota
tions from the opinions delivered by Judge Quinn:
The conditions surrounding decedent at the time of his injury ex
posed him to an unusual danger, different from that to which the
masses engaged in like employment were subjected. It had rained
the night before; the sand was wet; the sun’s rays direct, thereby
enhancing liability to sunstroke. Decedent was exposed to the direct
rays of the sun, in addition to the humid atmosphere emanating
from the wet street.
That the injury was sustained in the course of the employment
is not denied; that it was an “ unexpected and unforeseen event ” is
not questioned; and we have no difficulty in arriving at the conclu
sion that it was an event “ producing at the time injury to the
physical structure of the body happening suddenly and violently.”
It is undisputed that the day was extremely hot. The men had rested
for three-quarters of an hour in the shade and had returned to their
labor. Decedent was at work near the middle of the street, when, all
at once, he was seen to stagger. He had been overcome; had suffered
a sunstroke. This was a violent injury produced by an external
power, not natural.
Where the work and the conditions of the place where it is carried
on expose the employee to the happening of an event causing the ac
cident, there is no longer a risk to which all are exposed, and the result
is an accident arising out of the employment.
Workmen’s Compensation— Admiralty— Federal and State
Jurisdiction— Clyde Steamship Co. v. Walker, Supreme Court of
the United States (May 21, 1917), 37 Supreme Court Reporter , page
545.—William Alfred Walker was injured on July 1, 1914, while at
work as a longshoreman for the company named. An award to him
was affirmed by the court of appeals (215 N. Y. 529, 109 N. E. 604;
see Bui. No. 189, p. 249). This was reversed on the same principle
as governed in Southern Pacific Co. v. Jensen, decided on the same
date (see next case below).
Workmen’s Compensation— Admiralty— Federal and State
Jurisdiction— Southern Pacific Co. v. Jensen, Supreme Court of the
United States (May 21, 1917), 37 Supreme Court Reporter, page
525.— Christen Jensen was killed on August 25,1914, while employed
as a longshoreman in unloading the steamship El Oriente, belonging
to the company named and plying between the ports of New York
and Galveston. His average weekly wages were found by the work
men’s compensation commission to be $19.60, and an award was made
to his widow of $5.87 weekly, and to each of his two young children
of $1.96 weekly; also $100 for funeral expenses. The company ob
jected to the award on the ground that the Workmen’s Compensation
Act did not apply, first, because the employment was in interstate com
204
DECISIONS OF COURTS AFFECTIN G LABOR.
merce, and second, because such application would be in conflct with
the constitutional jurisdiction of Congress as to matters of admiralty.
The award was affirmed by the courts of New York State, the
opinion of the court of appeals being reported in 215 N. Y. 514, 109
N. E. 600; see Bui. No. 189, p. 221. However, the Supreme Court
held the ground of contention relating to admiralty to be a valid
one, and reversed the judgment, by a divided court standing 5 to 4.
Mr. Justice McReynolds delivered the majority opinion, and after
stating the findings of the commission and reviewing the proceedings
below he said in part:
In New York C. R. Co. v. White, 243 U. S. 188, 37 Sup. Ct. 247
[Bui. No. 224, p. 232], we held the [New York compensation] statute
valid in certain respects; and, considering what was there said, only
two of the grounds relied on for reversal now demand special con
sideration. First. Plaintiff in error, being an interstate common
carrier by railroad, is responsible for injuries received by employees
while engaged therein under the Federal Employers’ Liability Act of
April 22,1908, and no State statute can impose any other or different
liability. Second. As here applied, the workmen’s compensation
act conflicts with the general maritime law, which constitutes an in
tegral part of the Federal law under article 3, section 2, of the Con
stitution, and to that extent is invalid.
The Southern Pacific Co., a Kentucky corporation, owns and op
erates a railroad as a common carrier; also the steamship El Oriente,
plying between New York and Galveston, Tex. The claim is that
therefore rights and liabilities of the parties here must be deter
mined in accordance with the Federal Employers’ Liability Act. But
we think that act is not applicable in the circumstances.
The fundamental purpose of the compensation law, as declared
by the court of appeals, is “ the creation of a State fund to insure the
payment of a prescribed compensation based on earnings for dis
ability or death from accidental injuries sustained by employees en
gaged in certain enumerated hazardous employments,” among them
being “ longshore work, including the loading or unloading of car
goes or parts of cargoes of grain, coal, ore, freight, general merchan
dise, lumber or other products or materials, or moving or handling
the same, on any dock, platform or place, or in any warehouse or
other place of storage.” Its general provisions are specified in our
opinion in New York C. R. Co. v. White, supra, and need not be re
peated. Under the construction adopted by the State courts no
ship may load or discharge her cargo at a dock therein without incur
ring a penalty, unless her owners comply with the act, which, in
order to secure payment of compensation for accidents, generally
without regard to fault, and based upon annual wages, provides (sec.
50) that—“ an employer shall secure compensation to his employees
in one of the following ways: ” [Act quoted as to methods of security
required and penalties for failure to comply.]
Article 3, section 2, of the Constitution, extends the judicial power
of the United States “ to all cases of admiralty and maritime juris
diction ; ” and article 1, section 8, confers upon the Congress power
“ to make all laws which shall be necessary and proper for carrying
into execution the foregoing powers, and all other powers vested by
TEX T AND SU M M ARIES OF DECISIONS.
205
this Constitution m the Government of the United States, or in any
department or officer thereof.” Considering our former opinions,
it must now be accepted as settled doctrine that, in consequence of
these provisions, Congress has paramount power to fix and determine
the maritime law which shall prevail throughout the country.
[Cases cited.] And further that, in the absence of some controlling
statute, the general maritime law, as accepted by the Federal courts,
constitutes part of our national law, applicable to matters within the
admiralty and maritime jurisdiction. (The Lottawanna (Eodd v.
Heartt), 21 Wall. 558 [other cases cited].)
By section 9, judiciary act of 1789, the district courts of the United
States were given “ exclusive original cognizance of all civil causes
of admiralty and maritime jurisdiction, * * * saving to suitors,
in all cases, the right of a common-law remedy, where the common
law is competent to give it.” And this grant has been continued.
(Judicial Code, secs. 24 and 256.)
The work of a stevedore, in which the deceased was engaging, is
maritime in its nature; his employment was a maritime contract;
the injuries which he received were likewise maritime; and the rights
and liabilities of the parties in connection therewith were matters
clearly within the admiralty jurisdiction. [Cases cited.]
If New York can subject foreign ships coming into her ports to
such obligations as those imposed by her compensation statute, other
States may do likewise. The necessary consequence would be de
struction of the very uniformity in respect to maritime matters
which the Constitution was designed to establish; and freedom of
navigation between the States and with foreign countries would be
seriously hampered and impeded. The legislature exceeded its
authority in attempting to extend the statute under consideration
to conditions like those here disclosed. So applied, it conflicts with
the Constitution and to that extent is invalid.
Exclusive jurisdiction of all civil cases of admiralty and maritime,
jurisdiction is vested in the Federal district courts, “ saving to suitors
in all cases the right of a common-law remedy where the common law
is competent to give it.” The remedy which the compensation stat
ute attempts to give is of a character wholly unknown to the com
mon law, incapable of enforcement by the ordinary processes of any
court, and is not saved to suitors from the grant of exclusive juris
diction. [Cases cited.] And finally, this remedy is not consistent
with the policy of Congress to encourage investments in ships, mani
fested in the acts of 1851 and 1884, which declare a limitation upon
the liability of their owners.
The judgment of the court below must be reversed and the cause
remanded for further proceedings not inconsistent with this opinion.
Mr. Justice Holmes and Mr. Justice Pitney delivered dissenting
opinions, the latter presenting considerations additional to those
given in the former opinion, while Mr. Justice Brandeis and Mr.
Justice Clarke based their dissent upon the grounds expressed by
both the others. From Mr. Justice Holmes’ opinion the following
quotations are taken:
There is no doubt that the saving to suitors of the right of a com
mon-law remedy leaves open the common-law jurisdiction of the
State courts, and leaves some power of legislation, at least, to the
206
DECISIONS OF COURTS AFFECTIN G LABOR.
States. For the latter I need do no more than refer to State pilotage
statutes, and to liens created by State laws in aid of maritime con
tracts. Nearer to the point, it is decided that a statutory remedy
for causing death may be enforced by the State courts, although the
death was due to a collision upon the high seas. [Cases cited.]
Taking it as established that a State has constitutional power to
pass laws giving rights and imposing liabilities for acts done upon
the high seas when there were no such rights or liabilities before,
what is there to hinder its doing so in the case of a maritime tort?
Not the existence of an inconsistent law emanating from a superior
source—that is, from the United States. There is no such law. The
maritime law is not a corpus juris; it is a very limited body of cus
toms and ordinances of the sea. The nearest to anything of the sort
in question was the rule that a seaman was entitled to recover the ex
penses necessary for his cure when the master’s negligence caused his
hurt. The maritime law gave him no more. (The Osceola, 189 U. S.
158, 23 Sup. Ct. 483.) One may affirm with the sanction of that case
that it is an innovation to allow suits in the admiralty by seamen to
recover damages for personal injuries caused by the negligence of the
master and to apply the common-law' principles of tort.
Now, however, common-law principles have been applied to sustain
a libel by a stevedore in personam against the master for personal in
juries suffered while unloading a ship. Atlantic Transport Co. v.
Imbrovels, 234 U. S. 52, 34 Sup. Ct. 733, and the Osceola recognizes
that in some cases at least seamen may have similar relief.
Such cases as American S. B. Co. v. Chase, 16 Wall. 522; The Ham
ilton,, 207 U. S. 398, 28 Sup. Ct. 133, and Atlantic Transport Co. v.
Imbrovek, supra, show that it is too late to say that the mere silence
of Congress excludes the statute or common law of a State from sup
plementing the wholly inadequate maritime law of the time of the
Constitution, in the regulation of personal rights, and I venture to
say that it never has been supposed to do so, or had any such effect.
Mr. Justice Pitney also confined his dissent to the matter of ad
miralty, and short extracts only are given from the somewhat lengthy
opinion:
It should be stated, at the outset, that the case involves no ques
tion of penalties imposed by the New York act but affects solely the
responsibility of the employer to make compensation to the widow, in
accordance with its provisions, which are outlined in New York C. E.
Co. v . White.
The argument is that, even in the absence of any act of Congress
prescribing the responsibility of a shipowner to his stevedore, the
general maritime law, as accepted by the Federal courts when acting
in the exercise of their admiralty jurisdiction, must be adopted as the
rule of decision by State courts of common law when passing upon
any case that might have been brought in the admiralty; and that, just
as the absence of an act of Congress regulating interstate commerce in
some cases is equivalent to a declaration by Congress that commerce
in that respect shall be free, so nonaction by Congress amounts to an
imperative limitation upon the power of the States to interpose
where maritime matters are involved.
TEXT AND SU M M ARIES OE DECISIONS.
207
This view is so entirely unsupported by precedent, and will have
such novel and far-reaching consequences, that it ought not to be
accepted without the most thorough consideration.
The grant of judicial power in cases of admiralty and maritime
jurisdiction never has been construed as excluding the jurisdiction of
the courts of common law over civil causes that before the Constitu
tion were subject to the concurrent jurisdiction of the courts of ad
miralty and the common-law courts.
Nor is the reservation of a common-law remedy limited to such
causes of action as were known to the common law at the time of the
passage of the judiciary act. It includes statutory changes.1
Workmen’s Compensation— Beneficiaries— W ife Living Apart
from Husband— Legal Obligation to Support— Lump Sum— 11. G.
Goelitz Co. v. Industrial Board, Supreme Court of Illinois (Apr. 19,
1917), 115 Northeastern Reporter, page 855.— Henry Hunley was
killed by an accident in the course of his employment with the com
pany named. The industrial board found that he left surviving him
his lawful wife, Florence Hunley, and made an award of $5.20 a week
for 416 weeks, which was afterward commuted to the lump sum of
$1,925.91. The employing company took the matter to the circuit
court, which affirmed the award, but certified the case to the supreme
court as one proper to be reviewed by it. It appeared that Hunley
had married Florence Taylor in 1885, and a son and daughter were
born; that the mother and son were living in Calgary, Canada, at
the time of Hunley’s death; that for a time between 1893 and 1896 he
had lived with another woman. The company contended that
Florence Hunley was not dependent upon Hunley and could not re
cover compensation. Paragraph (a) of section 7 provides that com
pensation shall be payable for death in a certain amount “ if the em
ployee leaves any widow, child, or children whom he was under legal
obligation to support at the time of his injury.” It was held that
under the circumstances the wife was included as a beneficiary, the
fact that the son contributed to her support, and that she was the
owner of a home, not being material. Judge Carter for the court said
in part:
There can be no question, from the evidence, but that the husband
was under legal obligation to support his wife.
The evidence on the hearing before the industrial board shows,
without contradiction, that the applicant, Florence Hunley, was
legally married to the deceased and had never been divorced. Hun
ley’s unfaithfulness to his wife would undoubtedly justify the wife
in living separate and apart from him therafter, unless she condoned
1 As a consequence of the decision in this case, the sections of the judicial code referrr
to by Mr. Justice McReynolds were amended by Congress (Oct. 6, 1917), so as to save to
claimants “ the rights and remedies under the compensation law of any State ” in casos
of admiralty and maritime jurisdiction, thus adopting by legislative action the position
taken by the courts of New York and the minority of the Supreme Court.
208
DECISIONS OF COURTS AFFECTIN G LABOR.
the offense. There was no evidence or attempt by counsel to prove
that she did condone his unfaithfulness.
The duty to support his wife is imposed by law on the husband.
This duty does not depend on the inadequacy of the wife’s means, but
on the marriage relation. 13 R. C. L. 1188. Some of the statutes as
to workmen’s compensation in other jurisdictions provide that the
wife must be living with the husband at the time of the injury, but
our act does not so provide.
The award of a lump sum, however, was overthrown, since the
record did not disclose evidence that it was for the best interests of
the parties, but contained simply a statement by the attorneys for
Mrs. Hunley.
Workmen’s Compensation— Benefits — Loss o f Eye Already
Defective— Purchase v. Grand Rapids Refrigerator Co., Supreme.
Court o f Michigan (Dec. 21, 1916), 160 Northivestern Reporter,
page 891.— Clarence C. Purchase became a claimant for compensa
tion, and an award was made against his employer, the company
named. On March IT, 1915, Purchase, then 29 years of age, got
hot sand in his right eye, and after treatment it was deemed neces
sary, on April 1, to remove the eye. During his childhood the
eye had been severely injured, with the result that thereafter
it was only capable of distinguishing light and perceiving the
fact that an object was approaching it. He was able to return to
work and earn undiminished wages after a few weeks, and the
company contended that an award of the schedule rate for the loss
of an eye, i. e., 50 per cent of wages for 100 weeks, was not war
ranted by the circumstances. In an opinion delivered by Judge
Ostrander the court held that the law did not warrant the making
of any distinction because of the previous impairment of the eye
where some degree of usefulness had existed. The concluding por
tion of the opinion is as follows:
The legislature has not attempted a definition, or made a declara
tion, applicable to the case at bar, except in terms of the loss of an
eye. It has not specified a normal eye, although it may be concluded
that the law refers to an eye which performs in some degree the
functions of a normal eye. A mere sightless organ might perhaps
be considered no eye at all. Claimant has lost an eye, although an
infirm one. It was not wholly useless as an eye. On the contrary,
the testimony is that he could with it distinguish light and see ap
proaching objects. As a result of the injury, there was disability,
and the disability is “ deemed to continue for the period specified,
and the compensation so paid for such injury shall be as speci
fied. * * * ”
The conclusion of the board will not be disturbed.
TEX T AND SU M M ARIES OF DECISIONS.
209
Workmen’s Compensation — Benefits — P artial Disability—
Employee Earning More Than Before Injury— Dennis v. Gaf-
ferty et al., Supreme Court of Kansas (Mar. 16, 1917), 168 Paeiflo
Reporter , page 461.— Thomas E. Dennis was injured while employed
by W . H. Cafferty and another, doing business as the Kansas City
Sand Co. His work was to load cars with sand, moving them with
a pinch bar, and on November 28, 1914, while tightening a brake on
top of a car, he received an injury to his hand. He wore splints on
it for eight weeks, and afterwards a leather strap. The court found
that his average earnings at the time of the injury were $13.50 per
week, and that his probable weekly earnings would be $12 a week;
also that his total disability lasted for 42 weeks and partial disability
for 80 weeks. He was allowed $6.75 per week, or one-half his
earnings, for 42 weeks, and $3 per week, the minimum compensa
tion, for 80 weeks. It was contended that the finding that his
probable earnings would be $12 a week was contrary to the evidence.
He went to work at first on a “ boy’s job ” for $10.50 per week for
three months. Then he operated a power punch, work which
favored the injured hand, for some time up to March 11, 1916,
when he was given another job for the same company at $16.50,
which he held until about the end of the month, the work still not
being of a heavy nature. He resigned to accept a position as an
overseer, on the duties of which he entered April 3, 1916, at $36 a
week, and was holding this position at the time of the trial, May 23.
He testified that this position was temporary, but that he expected to
be transferred to another place at the same wages. There was evi
dence to the effect that the hand was not strong, and that he would
not be able to do such work as he was doing when injured. The court
said that it was impossible to justify the finding as to the amount of
probable earnings, but took the view that the language of the statute
provides a minimum for partial disability, and not for partial wage
loss. The line of reasoning followed is apparent from the follow
ing quotation from the opinion delivered by Judge West:
In framing the present act the legislature was providing for pay
ment on account of death or injury occurring in certain hazardous
employments, with the general view of compensation at the ultimate
expense of the public patronizing the industry in which the disaster
occurred, Certain boundary lines must needs be fixed to make the
act practicable. Instead of 50 per cent any other per cent could have
been designated in case of total incapacity. A minimum of $3 a
week was prescribed, not because it would in each case be in accord
with precise justice, but because as a general thing this was deemed
a fair lower rung for the ladder of allowances. While aiming at a
thing named compensation, no way was found to avoid in every in
stance certain inequities, or to provide in advance that judgments of
courts might never turn out to be, in the light of subsequent develop64919°— 18— Bull. 246------- 14
210
DECISIONS OF COURTS AFFECTIN G LABOR.
ments, slightly excessive or slightly lacking in sufficiency. Although
the method of settlement and adjustment should have been, and was
doubtless intended usually to be, without resort to the courts, it seems
to have been considered that in any case of partial incapacity the
traffic, otherwise the public, could and should bear at least $3 a week.
iWhile partially disabled, should a workman by some happy revolu
tion of the wheel of fortune, by entering a profession, or by obtain
ing a light, but lucrative position, be placed beyond the need of the
$3 allowance, no means has been provided for its detachment from
the aggregate of his income. But this occasional plethora must be
of comparatively short duration, and no serious results can follow.
Workmen’s Compensation— Benefits— Permanent Impairment
of Use of Foot— Underhill v. Central Hospital for the Insane, A p
pellate Court of Indiana, Division No. 2 {Dec. 4, 1917), 117 North
eastern Reporter, page 870.—Eugene Kellum received an injury on
May 16, 1916, while in the employ of the Central Hospital, and
claimed compensation. His pay had been $30 per month, plus room,
board, and laundry estimated to be of the value of $2.50 per week.
The industrial board found that he had received a permanent im
pairment of the use of his left foot amounting to 75 per cent, and
awarded him $5.50 per week (55 per cent of earnings) for 93J
weeks (75 per cent of the schedule period for severance of foot at
the ankle). As the hospital had furnished board, room, and laundry
covering the larger part of this amount, the balance was directed to
be paid in a lump sum. The employee claimed benefits under section
29, relating to total disability, and having a maximum limit of 500
weeks. The court held, however, that compensation should properly
be awarded under the general provisions of section 31, which gives
the board discretionary power to make awards for permanent partial
disability for a period not exceeding 200 weeks; but, as the same
section provides among its specific rates 125 weeks for the severance
of a foot, and it is said in the opinion that “ The facts of this case do
not disclose a severance of appellant’s foot or any part thereof,” a
limitation of the possible awTard in this instance to 125 weeks would
seem to be implied. There was held to be nothing to show that the
award of benefits for 93| weeks was not a reasonable one, and it was
affirmed.
Workmen’s Compensation— Casual Employment— Plastering
Single Boom, During Three or Four Days— Aurora Brewing Co.
v. Industrial Board of Illinois et al., Supreme Court of Illinois {Feb.
21, 1917) , 115 Northeastern Reporter, page 207.—Gottlieb Mack was
killed June 10, 1914, while in the employ of the company named, and
while engaged in plastering a room in a building being erected as an
TEX T AN D SU M M ARIES OF DECISIONS.
211
addition to the company’s bottle shop. His widow made claim for
compensation, and it was granted by the industrial board. At the
time of his fatal injury by the slipping of a ladder he had been at
work on the job about three days, and had practically completed it.
He was paid a wage of $4 per day, and worked alone, except for a
helper. He had done work for the company in previous years, once
for a month, and at other times for shorter periods. The court re
versed the award, holding that such employment was casual and
that the claimant was therefore not entitled to compensation. The
following extracts are taken from the opinion delivered by Judge
Carter:
It would seem that the legislature intended the word “ casual ” to
be used as meaning “ occasional,” “ irregular,” or “ incidental,” in
contradistinction from stated or regular. Each case, however, must
be decided quite largely upon its special facts.
In our judgment the legislature never intended an employee who
was engaged for one job, lasting only three or four days, to be
within the terms of the act, even though the same employee had been
employed at irregular intervals during several previous years to per
form similar jobs.
Workmen’s Compensation— Casual Employment— Usual Course
of Business— Farm Labor— Carpenter Building House on
Ranch.—Miller <& Lux (Inc.) v. Industrial Accident Commission,
District Court of Appeals of California, First District (Dec. 5 , 1916),
162 Pacific Reporter , page 651.—Sidney Eligh was injured while in the
employ of the company named, and was awarded compensation by the
industrial accident commission. The matter was taken to the court
by a petition for a writ of review. At the time of the injury Eligh
had been at work for 57 days as foreman of carpenters building a
cottage on a ranch owned by the company and containing 100,000
acres. The company’s charter allowed it to hold all kinds of prop
erty, to erect buildings, etc., and it was in fact engaged in carrying on
ranches, as well as other kinds of business, and constantly employed
carpenters in constructing and repairing buildings on its property.
The court held that the occupation was neither casual nor out of the
ordinary course of the employer’s business. It also denied the de
fense set up by the company that it was, as to this work, a farmer,
and included in the exemption of farm labor from the provisions of
the act. The writ of review was dismissed, and the award allowed
to stand.
Workmen’s Compensation— Constitutionality of S t a t u t e Due Process of Law— T rial by Jury— Police Power— Anderson v.
Hawaiian Dredging Co. (Ltd.), Supreme Court of Hawaii (Dec. 11,
212
DECISIONS OF COURTS AFFECTIN G LABOR.
1917), 24 Hawaii Supreme Court Reports , page 97.—One Anderson
haying claimed compensation from the company named, a circuit
court of the Territory gave judgment for the company on demurrer,
on the ground that the compensation statute was unconstitutional.
The supreme court, however, upheld the law, and reversed the judg
ment. As to the matter of notice it was said, in the opinion delivered
by Judge Eobertson, that the lower court “ fell into error in think
ing that ‘ there must be a positive provision for the giving of notice
* * * in order to constitute due process of law.5” The constitu
tional provision that trial by jury in actions at common law Should
be preserved was not applicable to proceedings other than at com
mon law, and in the case of compensation proceedings, where the
benefits are fixed, there is no necessity for a jury to assess dam
ages. The case of New York Central E. E. Co. v. White and the
other decisions of the United States Supreme Court sustaining com
pensation laws are discussed, likewise some of the State decisions;
and with regard to the Ives decision in New York it is said that,
though decided as recently as 1911, it “ has already become obsolete.”
The counsel for the defendant contended that where compulsory
laws had been upheld it was because, as in New York, industries were
classified and the law made applicable only to the more hazardous,
or because, as in California, all employers contributed to a State
fund from which benefits were paid. The opinion said as to this:
The acts in which classifications have been made have not been
sustained because of them, but in spite of them. Nor does the legis
lative power depend on the inclusion of a provision for a govern
mental compensation fund to which all employers shall contribute.
In our view the theory of the statute of this Territory that each em
ployer should provide for the compensation of the employees injured
in his own employ is every whit as reasonable as that of the Cali
fornia act. Its natural tendency would be to cause greater care ,and
better management on the part of employers of labor.
Workmen’s Compensation— Constitutionality o f Statute—
Election o f Employee to Sue or Eecover .Compensation From
Employer Not Complying W ith Law— Arising Out o f and In
Course o f Employment— Fassig v. State , Supreme Court of Ohio
(Jan. 23,1917), 116 Northeastern Reporter, page 10 .— Frank Pond
was injured while in the employ of Percy Fassig, in an establishment
having five or more employees. The employer had not contributed to
the State insurance fund, nor received permission to become a selfinsurer. The employee made application to the industrial commis
sion, under the provisions of section 27, to fix the amount of com
pensation, and it did so. It then gave the employer notice to pay
the amount within 10 days, and when such payment was not made,
4
TE X T AN D SU M M ARIES OF DECISIONS.
213
the State, through the attorney general, brought suit to recover the
amount plus the statutory penalty of 50 per cent. The employer con
tested the validity of section 27, which applies to employers not
complying with the provisions of the law, and gives to the employee
the right to proceed for compensation, as was done in this instance,
as an alternative to bringing a liability suit with the common-law
defenses barred. The court of common pleas rendered judgment for
the defendant, holding this section of the law unconstitutional, but
the court of appeals reversed this, giving judgment for the State
for the benefit of the employee; the supreme court also held the
law valid and affirmed the latter judgment. Judge Johnson de
livered the opinion, first quoting the constitutional amendment per
mitting the enactment of a compulsory compensation law, referring
to the decision upholding the former elective law of the State and
to the progressive sentiment leading to the passage of the compulsory
law. Section 27 is quoted in full, its relations with preceding sec
tions discussed, the option given to the employee to sue or to apply
for a determination of the amount of compensation pointed out, and
the procedure outlined. Judge Johnson then said:
The grant of power to the general assembly to pass a compulsory
law carries with it, as incident thereto, the power to include all such
reasonable provisions as are necessary to make the law effective. The
procedure laid down is in full keeping with the provisions of section
35 of article 2 of the constitution, and is one to compel the employer
to perform his part in the general scheme v f industrial protection.
It is claimed first that the right of trial by jury is violated.
It is at once manifest that the provisions of the section whose
validity is attacked are important and essential steps in the adminis
tration of the law itself and are vital to the accomplishment of its
beneficent purpose. The suit for the liquidated or stipulated amount
is not a sui,t as at common law by the employee for the damages sus
tained. The employee has waived the right to bring such a suit by
claiming compensation. A suit for damages is one for the recovery
of an unliquidated sum in an action at law. The suit by the State for
the amount of the compensation under section 27 is not one for negli
gence of any kind. It has no regard for such a thing. It is simply
based on the fact of injury in the course of employment. The re
covery in the damage suit is presumed to wholly compensate the inj ured person, but when he elects to accept compensation it is fixed in
accordance with the schedule. The action to recover it is a statutory
action, and under the amendment the statute properly fixes the meas
ure of recovery. The action against the employer to recover the
amount so ascertained and fixed must be brought in a court of gen
eral jurisdiction, and the defendant employer is entitled to a trial
by jury. He is entitled to make the defense that he is not an em
ployer of five or more employees, etc.; that the injury to the bene
ficiary was not received in the course of employment, or that it was
willfully self-inflicted; or he might show that he had paid his pre
mium into the insurance fund. The defense that he would not be
214
DECISIONS OP COURTS AFFECTIN G LABOR.
entitled to make in the case simply goes to the amount of compensa
tion, for that is fixed pursuant to the statute. I f the issues stated are
found against him, and he pays the amount fixed by the board, he
has only paid what other employers pay who comply with the provi
sions of the law, together with the penalty which the law imposes on
him for not obeying it. Inasmuch as the amount recovered is not de
termined by proof of the actual damages sustained, but is such an
amount as is fixed by the statute when the administrative board has
ascertained the facts to which the statute would apply, there is noth
ing for the jury to pass upon on that question. It is a sum that is
liquidated or stipulated by the statute.
There is no denial of trial by jury as to any issue which the employer
is entitled to raise.
It is also claimed that the section under examination infringes on
the judicial power of the State in that it confers upon an administra
tive board judicial functions.
From wThat has been already shown it will be seen that the proceed
ings before the commission, and its order, are merely administrative,
and simply lay the foundation for a suit in a court of competent
jurisdiction in which the employer has due process and all rights
reserved.
At this point authorities are cited bearing upon the point under dis
cussion. The opinion goes on as follows:
Much that has been already said applies with equal force to the
remaining claims of plaintiff in error that the section in question
denies to the employer in question the due process of law and the
equal protection of the law, in violation of the provisions of the
State and Federal Constitutions referred to.
An additional objection is made against the validity of section 27.
It is said that the provision with reference to an injury “ in the course
of employment” permits an award to one whose injury did not arise
out of the employment. We do not think this contention is well taken.
The language is found in the constitutional amendment as well as
in the statute. It was plainly the intention of the framers of the
amendment, and of the statute, to provide for compensation only to
one whose injury was the result of or connected with the employment,
and wTould not cover any case which had its cause outside of and dis
connected with the employment, although the employee may at the
time have been actually engaged in doing the work of his employer in
the usual way.
Counsel for some employees of employers who have elected to make
compensation under the statute have filed a brief in this case in which
they assert that section 22 of the act under consideration, which au
thorizes employers under the conditions named therein to directly
compensate their injured employees, is invalid because there is no
provision in the act itself by which an employee of such an employer,
who makes application to the board for compensation and is refused,
may have any relief whatever.
The validity of section 22 has been considered in another case not
yet reported [see Turner case, p. 284], and the court is unanimously
of opinion that it is a valid provision.
TEXT AND SU M M ARIES OF DECISIONS.
215
Workmen’s Compensation— Constitutionality or Statute— In
ju ry Arising Out o f and in Course o f Employment— A g r e e
ment to Assume Risks— Chicago Rys. Co. v. Industrial Board of
Illinois et al., Supreme Court of Illinois (Dec. 21,1916), 111^ North
eastern Reporter, page 531^.—James Balia was killed on October 17,
1913, while employed by the company named as a motorman. He was
in front of his car, attempting to adjust the trolley so as to move into
the barn, when the car suddenly started and crushed him between it
and the car ahead. The industrial board affirmed an award of an
arbitration committee in favor of his estate and against the company,
and it was again affirmed by the circuit court of Cook County, which,
however, certified that the cause was one proper to be reviewed by
the supreme court. The latter in the present decision again affirmed
the award in an opinion delivered by Judge Farmer. On the ques
tions of constitutionality, injury arising out of and in the course of
employment, and agreement to assume risks, the language of the
opinion is as follows:
It is first contended that the act of 1913 is unconstitutional, because
it interferes with the freedom of contract, and because it is special
and class legislation, granting special and exclusive privileges and
immunities to certain individuals, which are denied to others. The
plantiff in error insists the act of 1913 is different from the act of
1911, (Laws 1911, p. 314), which was held constitutional in Deibeikis
v. Link-Belt Co., 261 111. 454, 104 N. E. 211 [Bui. No. 169, p. 216],
and not in violation of the provisions of the Constitution it is claimed
the act of 1913 violates. The differences between the two acts relied
on are that the 1911 act applied only to employers engaged in espe
cially hazardous or dangerous employments or occupations, while
the 1913 act provides “ that any employer in this State may elect
to provide and pay compensation” under the act. Under the 1911
act every employer within the provisions of that act was presumed
to have elected to provide and pay compensation according to the
act, unless and until he filed a notice in writing to the contrary with
the State bureau of labor statistics. Under the 1913 act the employer
engaged in an extrahazardous occupation is likewise conclusively
presumed to be under the act unless he filed a written election to the
contrary, but employers in other than extrahazardous occupations
are not under the provisions of the act unless they file an election
to provide and pay compensation under the act. Plaintiff in error
is engaged in an occupation which is brought under the provisions of
the 1913 act, unless notice of an election to the contrary is filed in
writing. In the Deibeikis case it was held such a provision in the
act of 1911 did not violate the constitutional right of freedom to
contract. There is no material distinction between the two acts with
regard to employers engaged in hazardous occupations. We have
held the former act was not subject to the objection here made, and
it must follow, for the reasons given in the Deibeikis case, that the
1913 act is not subject to such objections. There is no merit in the
contention of plaintiff in error that the act is invalid, because it is
special and class legislation, and grants special and exclusive privi
216
DECISIONS OF COURTS AFFECTIN G LABOR.
leges and immunities to some individuals, which are denied others,
or that it is invalid because it deprives plaintiff in error of the right
of trial by jury. The Deibeikis case substantially answers every
constitutional objection raised in this case by plaintiff in error.
The facts appear to show that if deceased had observed the rules
of plaintiff in error, with which he was familiar, the accident might
not have occurred. I f the deceased had obeyed the rules of the plain
tiff in error company, he would have left his car in such condition
Miat it would not have started when he adjusted the trolley, and plain
tiff in error contends that the injury which caused his death was not
an accidental one sustained by deceased, arising out of and in the
course of his employment. What he was doing arose out of and was
being done by him in the course of his employment. The fact that
he acted negligently in doing it did not take him out of the employ
ment of plaintiff in error, nor the act which resulted in the injury
out of the course of his employment.
The deceased was employed August 25, 1913. In his application
for employment he agreed to assume all risks of accidents resulting
from his own negligence, and agreed, if he entered the employment
of plaintiff in error, to assume all risks of accidents happening as
the result of his own negligence while in such employment, and to
acquit plaintiff in error of all liability for any personal injury suf
fered by him while in such employ. Plaintiff in error contends that
this amounted to a contract between it and deceased that they were
not to be subject to the Workmen’s Compensation Act, and that no
recovery can be had under that act. The Workmen’s Compensation
Act is the declared public policy of the State upon the subject em
braced in the statute, and provides a method by which employers may
exempt themselves from providing and paying compensation under
the act to employees for accidental injuries sustained and arising out
of and in the course of the employment. It is contrary to the policy
of the act to allow an employer, while choosing to come under the
provisions of the statute by not filing an election in writing to the
contrary, to relieve itself from liability under the act by private
agreement or contract with the employee.
Workmen’s Compensation— Constitutionality of Statute—
Judicial Powers— Solvuca v. Ryan & Reilly Go., Court of Appeals
of Maryland (June 28, 1917), 101 Atlantic Reporter, page 710.—■
Antoni Solvuca brought suit against the company named for damages
for injuries sustained as its employee. The company pleaded that
it had conformed with the provisions of the workmen’s compensa
tion act, having secured permission to carry its risk as a self-insurer.
The plaintiff demurred to this plea, claiming that it was insufficient
because the compensation act was unconstitutional. The Baltimore
Court of Common Pleas upheld the law as valid, and rendered judg
ment for the defendant company. The court of appeals affirmed
this judgment, Judge Thomas delivering the opinion. He first
examined the provisions of the act, and stated that the court* had
TEX T AN D SU M M ARIES OF DECISIONS.
217
often held that 66the law of the land” in the State constitution, and
“ due process of law55 in the Constitution of the United States, mean
the same thing. The contention as to violation of that provision in
the State constitution was therefore held to be settled by the recent de
cisions of the Supreme Court of the United States, and quotation was
freely made from the opinion in New York Central E. Co. v .
White, 243 U. S. 188, 37 Sup. Ct. 247 (Bui. No. 224, p. 232). The
case of Am. Coal Co. v. Allegany Co., 128 Md. 564, 98 Atl. 143 (Bui.
No. 224, p. 208), holding valid a law creating a miners’ relief fund,
was also quoted as sustaining the present law against many of the
grounds urged against it. The constitutional provision for jury
trials was held to be satisfied by the provision for such trial on appeal
if requested by the parties.
The final objection answered was that the act violated the section
of the State constitution which vested all judicial powers in certain
courts named therein. Authorities were quoted as to what constitute
judicial powers, and an excerpt made from the decision of the Wis
consin Supreme Court sustaining the act of that State against the
same objection (Borgnis v. Falk, 147 Wis. 327, 133 N. W. 209 [Bui.
No. 96, p. 799]). In concluding its discussion of this matter the
court said:
The workmen’s compensation law, which was passed in the exercise
of the police power of this State, creates a commission known as the
State industrial accident commission to administer the provisions of
the act. In the discharge of its duties and the exertion of its powers
jt.^s required to exercise judgment and discretion, and to apply
the law to the facts in each particular case, but it is clear that the
legislature never intended to constitute the commission a court, or to
confer upon it the judicial power of the State within the meaning of
the constitutional provisions referred to.
Workmen’s Compensation— Constitutionality of S t a t u t e W i l l f u l Injury— Disfigurement in Addition to Disability—
Adams v. I ten Biscuit Co., Supreme Court of Oklahoma (Jan. 9,
1917), 162 Pacific Reporter , page 938.— B. L. Adams brought
action for damages for personal injuries against the company
named, his employer, and the company demurred to the complaint
on the ground that the injuries were covered by the workmen’s com
pensation act. The demurrer being sustained, tire employee carried
the case to the supreme court, claiming that the compensation act
was unconstitutional, and that even if constitutional it did not fully
cover his injuries. The act was, however, declared valid, and the
judgment sustaining the demurrer was affirmed. Judge Hardy de
livered the opinion, first outlining the provisions of the act, which
is compulsory. A somewhat novel contention raised was that the act
218
DECISIONS OF COURTS AFFECTIN G LABOR.
is so revolutionary in character as to amount to an amendment to
the State constitution, which could not be put in force by mere legis
lative enactment. The court admitted the importance of the law,
but after reviewing the history of such legislation in this and other
countries and the findings of commissions as to the evils and inade
quacy of the liability system, concludes that the law is within the
police power of the State and the authority of the legislative body.
With a thorough examination of the decisions, the other usual objec
tions to constitutionality are disposed of, including failure of the
title of the act to cover its subject matter and conflict with the pro
visions of the Federal and State constitutions in respect to trial by
jury, due process, and equal protection of the law. As to depriva
tion of all remedy for willful injuries by the employer, Judge Hardy
says in part:
The act does not undertake to regulate willful injuries of the
character mentioned, but leaves the injured employee to his remedy
as it existed when the act was passed.
Considering the various provisions of the act together, there does
not seem to be any ambiguity as to its meaning. It embraces all kinds
of accidental injuries not resulting in death, whether occurring from
the negligence of the employer or not, arising out of and in the
course of employment, but does not include willful or intentional
injuries inflicted by the employer, nor injuries resulting from an
intent upon the part of the employee to injure himself or another or
for a willful failure to use a guard or other protection against acci
dent required by statute or furnished pursuant to an order of the
State labor commissioner. A willful or intentional injury, whether
inflicted by the employer or employee, could not be considered as
accidental, and therefore is not covered by the act. The compensa
tion afforded by the act and the procedure by which the same is
determined was intended to be exclusive as to all of the injuries
therein embraced, and the right of action theretofore possessed by
the injured employee was abolished, leaving to him such right of
action in the courts for willful injuries as he may have had prior to
its passage, and the act, as thus construed, does not deprive plaintiff
of the equal protection of the laws.
The injury occurred through negligence of the company’s fore
man in causing an explosion of natural gas when Adams was at a
table about 12 feet from and directly in front of the oven. His
hands and arms were so badly burned as to totally and permanently
disable him from work at his trade as a baker, and permanent scars
were also left on his face, head, and entire body. It was urged that
he should at least have an action for additional damages for the
disfigurement, for which no compensation is allowed by the act.
Taking up this question and concluding the opinion Judge Hardy
said:
The legislative intent was evident to award compensation for all
accidental injuries arising out of or in the course of employment,
TEX T AN D SU M M ARIES OF DECISIONS.
219
and not to divide up such injuries and award compensation for a
portion thereof and leave to the injured employee a remedy for the
remainder. All of plaintiff’s injuries were received in the course of
his employment, were accidental, and were the result of the same
negligent act of defendant. The compensation provided was in
tended to be exclusive, and a right of action in the courts therefor
was abolished.
Workmen’s Compensation— Dependence— Father and Mother
Having Other Means—Fennimore et al. v. Pittsburg-Scammon
Coal Co., Supreme Court of Kansas (Apr. 7, 1917), 164 Pacific R e porter , page 265.—Rue Fennimore, 19 years of age, was killed while
an employee of the company named, and his parents claimed com
pensation. The son’s earnings were $50 per month, of which he
turned over perhaps $35 per month to his mother, and the finding
of the district court was that the father and mother were dependent
upon such earnings to the extent of $25 per month, or five-tenths
of his earnings; it awarded $900 as compensation. There was evi
dence that the father owned the dwelling house, which cost $1,450,
farm lands, from which he received a gross income of $400 or $500
in the year 1915, and one-fourth the stock of the coal company,
which was capitalized at $30,000; and that he worked for the com
pany at $125 per month. No household servants were kept, and the
son had helped with the family washings and the like. The supreme
court held that the finding of partial dependence was justified, noting
that the language of the law is indefinite, and that it is very diffi
cult to set up any rules or standards of dependency. Judge Burch
said in concluding the opinion:
Accepting the statute just as it came from the legislature, the
court is of the opinion that the question before the district court
was not one of how the domestic economies of the Fennimore family
might have been arranged, or ought to have been arranged, but how
they were arranged; and if the father and mother did in fact depend
in part on the son’s earnings, so that they suffered injury by being
deprived of what they had relied on, they were entitled to recover.
This being true, the finding of partial dependency is abundantly
sustained.
Workmen’s Compensation — Dependence — Father P artially
Dependent, Receiving a l l of Son’s Earnings— In re Peters , A p
pellate Court o f Indiana,, Division No. 1 (June 28, 1917), 116 North
eastern Reporter , page 848.—The father of a minor son accidentally
killed in course of his employment having made claim for compensa
tion, the industrial board of Indiana submitted to the court the
questions, first, whether the father was a dependent, and second,
whether he was entitled to full compensation, viz, 55 per cent of
220
DECISIONS OF COURTS AFFECTIN G LABOR.
$12.75 (the son’s wages) for 300 weeks. The son lived with the
family, consisting of father, mother, and two younger brothers. The
father received a weekly wage of $15, and had no property or other
income. The son’s wages went into the family fund. The court held
that the father was a partial dependent; and, holding that no de
duction from the amount of the wages should be made for the son’s
support, it answered the second question also in the affirmative, as
appears from the following extract from the opinion delivered by
Judge Batman:
As the father was receiving all his deceased son’s earnings at the
time of his death, or 100 per cent thereof, it follows that he will be
entitled to receive 100 per cent of what he would have received had
he been wholly dependent. In other words, there is no difference in
the amount a total dependent and a partial dependent is entitled to
receive under such section, where such partial dependent receives
all the earnings of such injured employee.
Workmen’s Compensation— Dependence— Marriage A fte r In
ju ry W hich Results in Death— Kuetbach v. Industrial Commis
sion of Wisconsin et al., Supreme Court of Wisconsin (Dec. 4, 1917),
165 Northwestern Reporter , page 802.— Ferdinand Kuetbach was in
jured December 18, 1915, under conditions which made his employer
liable for compensation. At that time he was living with his father,
who was dependent upon him. He died June 5, 1916, leaving a
widow, Etta Jiuetbach, whose marriage to him had taken place May
18, 1916. On June 21, 1916, a child was born to her, the result of
illicit relations with Kuetbach occurring before the time of the
accident. The widow and the child through his guardian made
separate claims for compensation, each claiming that the other was
not .entitled thereto. The industrial commission made an award to
the father of the deceased employee, but the district court of Kane
County reversed this action and made an allowance to the widow,
and her only. Under the provisions of the act a widow is conclu
sively presumed to be dependent upon a husband with whom she
was living at the time .of his death, and the same is provided with
reference to a minor child, there being no surviving dependent par
ent; while in all other cases questions of dependency are to be de
termined as of the date of the injury. On appeal, the supreme court
reversed the district court’s judgment, deciding, as did the commis
sion, that the father alone was entitled to benefits. In the opinion
by Judge Eosenberry the ground is taken that whether a person is a
dependent at all is determined by the status at the time of the acci
dent, while the conclusive presumptions noted above relate only to
the degree of dependency as total. The widow not having been a
TEX T AND SU M M ARIES OF DECISIONS.
221
lawful wife at the time of the injury, and the child not legitimate at
that time en ventre sa mere, no dependence whatever could be pre
sumed, and therefore they were held not to be rightful claimants.
Workmen’s Compensation— Dependence— Marriage A fter In
jury W hich Results in Death— Surviving W ife— Crockett v.
International Ry. C oS u p rem e Court of New York , Appellate Divi
sion, Third Department (Dec. 28, 1916), 162 New Yorjc Supplement,
page 357.—Davie Mayo Crockett was injured in the employ of the
company named on November 17, 1914, and died as a result on De
cember 17 of the same year. On November 23, 1914, he was mar
ried, and after his death his widow applied for compensation. The
State industrial commission certified to the court the question
whether she was entitled to an award as the surviving wife in accord
ance with the provisions of the law. The court drew a distinction
between wives and dependents, founded upon the wording of the act,
and decided that in such cases as the present one the “ surviving
w ife” is entitled to the benefits of the act. Judge Cochrane deliv
ered the opinion, which is in part as follows:
The argument against the question is based on the last sentence
of section 16, which is: “ All questions of dependency shall be deter
mined as of .the time of the accident.”
Undoubtedly the term “ dependents ” is very frequently used in
the statute as including wife and children. Instances to that effect
are numerous. Death benefits payable to wife and children, how
ever, in no respect rest upon the question of their dependency. That
very clearly appears from said section 16. Death benefits under
that section to all other persons rest on the dependency of such per
son or persons to the deceased employee. That is true of husband,
parents, brothers, sisters, grandparents, or grandchildren of the de
ceased. But a surviving wife and children under 18 years of age
are entitled to an award, although they may be wealthy. The dis
tinction exists because of the legal and moral responsibility of a hus
band and father to support his wife and children, irrespective of
their individual means of support. The phraseology of section 16
clearly indicates this distinction, and when, therefore, in the closing
sentence of that section, it is stated, “ All questions of dependency
shall be determined as of the time of the accident,” the term “ de
pendency,” .as there used, should be restricted in its application to
the same class of people to whom the term has previously been ap
plied throughout the same section. It does not apply to surviving
wife and children, because as to them the question of dependency is
immaterial.
Workmen’s Compensation— Dependence— Regularity of Con
tributions for Support— Gommonwealth Edison Co. v. Industrial
. Board of Illinois et al., Supreme Court of Illinois (Feb. 21, 1917),
222
DECISIONS OF COURTS AFFECTIN G LABOR.
115 Northeastern Reporter , page 158.—Victor F. Nelson having been
killed by electric shock while in the employ of the company named
on June 23,1914, the administrator of his estate made claim for com
pensation. Nelson was unmarried, and left a father, a stepmother,
an adult brother, and a married sister. The industrial board con
firmed an award of $3,500 as compensation, made by the committee
of arbitration. The company appealed, denying that the father was
dependent. The Illinois law authorizes the payment of compensation
where the deceased has contributed to the support of any lineal heir
within four years previous to the time of his injury. It was in evi
dence that the deceased in this instance had contributed sums of
from $10 to $20 to his father, whose wages were much smaller than
his own, sometimes as often as every second month, and more fre
quently and in larger sums in case of sickness. On one occasion he
had paid $25 the first week of an illness, and $35 the third week.
The court affirmed the award, saying that regularity of contributions
was not required to fulfill the conditions, and that “ the statute does
not require that the surviving parent or lineal heirs shall be de
pendent upon the deceased/’
Workmen’s Compensation— Dependence— Sister as Member o f
Family— In re Murphy , Supreme Judicial Court of Massachusetts
(Nov. 27, 1917), 117 Northeastern Reporter , page 794.— Jeremiah
Maloney was killed while in the employ of a subscriber under the
Massachusetts Workmen’s Compensation Act. The proceedings for
compensation instituted by his minor daughter and his sister, Mtfe.
Agnes M. Murphy, were opposed by the employer’s insurer, but an
award was made to the sister by the industrial accident board. It ap
peared that the sister was a widow having a son 15 years of age and
attending a high school, and that she, her brother, and her son lived
together in a house which had belonged to her mother, and for which
she had paid no rent, though six brothers and sisters in all held
undivided interests in it. The mother had lived with them until her
death in 1912. Mrs. Murphy secured outside work at washing and
the like, sufficient to earn some $3 per week. Maloney contributed $5
per week to the expenses, but during the previous winter had been
out of work and had fallen behind, and after working two months was
still two or three months in arrears at the time of his death. Mrs.
Murphy testified that at the time of the hearing she was able to earn
about $2 per week, and could not get along on that amount; that
she did not get along as well since her brother’s death; and that
“ nothing was ever said about board,” that is, as to the payments
made by him being regarded as for board. Maloney had also worked
about the place and cultivated a vegetable garden. The court held
223
T E X T A N D SU M M ARIES OF DECISIONS.
that he was not the head of a family of which the sister and her
son were members, and the award to her was reversed and a decree
entered in favor of the insurer.
Workm en’s Compensation— Dependence— W ife
in
Foreign
Country— Notice and Claim— In re Gorski, Supreme Judicial
Court of Massachusetts ( June, 28, 1917), 116 Northeastern Reporter,
page 811.— The administrator of the estate of John Gorski instituted
proceedings to recover compensation for the death of the latter
against his employer, the Howes Brick Co., and its insurer. The
fatal injuries were received June 24, 1914. Gorski had come from
Poland the previous November, leaving his wife and two daughters.
A minor son roomed with him, but such financial assistance as
passed between them was given by the son to the father. The ad
ministrator was appointed February 9, 1915, and on March 1 he
mailed to the industrial board a form of notice to the employer and
of claim for compensation; this, however, was not received by the
board. It appeared that the wife lived in the part of Poland affected
by the War; but since nearly six weeks intervened between the em
ployee’s death and the outbreak of war, and his son was with him,
the court held that no sufficient reason under the statute was shown
for failure to give notice and file claim within a reasonable time.
It also held that a claim not actually received by the«board could
not be said to have been “ filed ” with it.
It. was found that the wife remained on a farm and hired a man
to operate it and that the husband intended to have her come over
later on. The court held that she was neither a wife living with her
husband nor living apart from him for justifiable cause or because
he had deserted her. As the only money sent to her since the separa
tion had been furnished by the son actual dependency was held not
to be shown.
W o r k m e n ’s
C o m p e n s a tio n — D e p e n d e n ce—
Wife
in
F o r e ig n
Kalcic v. Newport Mining
Co., Supreme Court of Michigan (July 26, 1917), 163 Northwestern
Reporter, page 962.—Antonija Kalcic, widow, living in Croatia,
C o u n try
but
S u p p o rte d
by
H u sban d —
Austria, instituted a proceeding for compensation for the death of
her husband, Ljudevit or Louis Kalcic. He was killed while em
ployed in a mine of the company named, in May, 1914. Kalcic came
to this country in 1907 and worked in the mines until his death, with
the exception of a time during 1910, when he visited his old home in
Croatia. Besides the widow a son born in 1911 survived him.
He regularly sent money to his wife, amounting in the last year of
224
DECISIONS OF COURTS AFFECTIN G LABOR..
his life to $80. Her affidavit stated that she had no other means of
support except her earnings of 20 cents a day for two or three days
each month and that it had been their intention that she should
join her husband in America when sufficient funds had been ac
cumulated. A board of arbitration awarded her $1 a week for 300
weeks, but the industrial accident board modified this award to allow
for the same period the full amount for complete dependency; that
is, $8.70 per week, a sum equal to one-half the earnings of the
deceased. The court affirmed the latter award. It held that she was
not entitled to the presumption that she was totally dependent as
living with her husband at the time of his death, but that the facts
were sufficient to support a finding of actual total dependency.
W orkm en’s Compensation — D uration o f Payments — Subse
quent In sa n ity —In re Walsh , Supreme Judicial Court of Massa
chusetts {June 4,1917) , 116 Northeastern Reporter , page 496.—James
Walsh was injured on July 1, 1913, while employed by the Wholey
Boiler Works as a boiler maker, and as a result his right leg, was
shortened by 2^ inches. As the work at which he had been employed
required him to climb about and work on stagings, a physician whose
opinion was adopted by the board took the view that he was inca
pacitated for his trade, in which his wages were $15 per week, but
could do wotfk as a laborer and earn $7.50 per week. The insurance
company having refused to pay compensation after his recovery
from the original total disability, the board awarded him one-half
of his loss of wages, or $3.75 per week,, for the balance of the period
of 300 weeks. Subsequently the employee became insane from an
other cause than the injury, and was incapacitated from doing any
work. The court held that this did not bar the continued payment
of compensation, Judge Loring saying in part:
The insurance company has argued that the subsequent insanity
of the employee stands on all fours with the subsequent death of a
dependent. It was decided (In Murphy’s Case, 224 Mass. 592, 113
N. E. 283 [Bui. No. 224, p. 259]) that the subsequent death of a
dependent ends his right to compensation. But none of the consid
erations upon which that conclusion was reached exist in the case of
a permanent partial incapacity to work caused by an injury within
the act and a subsequent total disability coming from an outside
cause.
W orkm en’s Compensation — E lectio n — In ju r y Occurring
W ith in T h irty Days from Beginning o f Employment — Woodruff
v. Producers’ Oil Co., Supreme Court of Arizona {Nov. 26, 1917),
76 Southern Reporter, page 80S.—James Woodruff brought suit for
TEX T AND SU M M ARIES OF DECISIONS.
225
damages for injuries suffered by him while employed by the com
pany, caused, as he alleged, by the use of a defective derrick and a
worn and defective swivel, and the placing of an inexperienced man
in charge of engine and machinery. The first action brought by the
employee, based upon a liability statute alone, had been dismissed.
The present suit proceeded under the same liability statute (Civil
Code, art. 2315); the plaintiff also pleaded in the alternative that
if the cause of action should be found to be under act 20 of 1914 (the
compensation law, though usually referred to as the “ Burke-Roberts
Employers’ Liability A ct” ) that the latter statute was unconsti
tutional; and, finally, he asked for compensation if the ultimate
decision should be that the compensation law was not only applicable
but valid. The pleadings and proceedings were complicated, and
the supreme court rendered two opinions, the final one, on rehearing,
reversing the first, which had held the compensation act applicable,
and ruling that the plaintiff, having no other right of recovery, was
not in a position to attack the constitutionality of the compensation
law because he had no interest in proving it invalid, and affirming the
judgment of somewhat more than $300 as compensation awarded
by a district court.
The final decision derives its importance from its construction of
two provisions relating to election. Paragraph 1 of section 3 pro
vides that the act shall not apply to any employer or employee unless
prior to the injury they shall have elected by agreement, either
express or implied, to be so governed. Paragraph 3 of the same
section provides that contracts of hiring made subsequent to the
taking effect of the act shall be presumed to have been made subject
to the provisions of the act, unless there be as a part of said contract
an express statement in writing, not less than 30 days prior to the
accident, that the provisions of the act are not intended to apply. The
trial court held the two paragraphs inconsistent and gave effect to the
latter as later in the order of adoption. Since the employeee had not
notified the company to the contrary 30 days before the accident,
he was held to be under the act. The supreme court called attention
to the duty of courts in construing statutes to give effect to all parts
if possible and to harmonize them so as to give “ a sensible and intel
ligent effect to each.” It therefore held that contracts of employ
ment which have not been running 30 days at the time of the accident
are not affected by paragraph 3, but are under paragraph 1, and
the compensation law does not govern. It stated that the district
court had not adjudicated the rights of the plaintiff under the code
section governing liability suits, and remanded the case to it for
further action thereunder.
64919°— 18— Bull. 246------ 15
226
DECISIONS OF COURTS AFFECTIN G LABOR.
W orkm en’s Compensation— E lectio n — Minors— C on stitu tional
ity o f Provision — Young v. Sterling Leather Works , Court of
Errors and Appeals of New Jersey (Nov. 19, 1917), 102 Atlantic
Reporter , page 395.—Edward Young brought suit through his next
friend to recover damages for personal injuries received, as was al
leged, through the negligence of the defendant named, which was a
corporation and his employer. The defense set up was to the effect
that the parties were governed by the New Jersey workmen’s com
pensation act. This act provides that section 2, the compensation
provisions of the act, shall be applicable unless there is a written
statement to the contrary in the contract, or notice has been given in
writing by one party to the other; in case of a minor employee the
notice must be given by or to his parent or guardian. On behalf of
the plaintiff it was argued that this provision sought to bind minors
without their election, and is invalid as denying to them the equal
protection of the laws and depriving them of property rights. Judg
ment in the supreme court had been for the company, and this was
affirmed, Judge Kalisch in the opinion holding the provision valid
and saying in part:
An infant has no vested right in the disability which the common
law has erected as a barrier against his making binding contracts,
during his infancy, to the extent that the legislature may not consti
tutionally remove such disability as to future contracts entered into
by him.
At common law, an infant could only legally bind himself, by a
contract which was for his benefit, and obligations imposed, by
statute, upon an infant were binding. But even if this were other
wise, there is no constitutional provision in the way of the legislature
to deal with the disabilities of infancy, as it, in its legislative wisdom
or judgment, may see fit.
The provision of section 2, that in the case of a minor the notice
shall be given by or to the parent or guardian of the minor if the
provisions of that section are not intended to apply, is clearly for
the benefit of the minor. The legislative intent is to safeguard the
minor’s interest and to protect him against his immature act or
judgment. And this was clearly within legislative authority. It is,
in fact, declaratory of the common-law doctrine relating to transac
tions with infants.
W orkm en’s Compensation — E lectio n — Notice to F a th er of
M inor by Pay Envelope —Brost v*. Whitoll Tatum C o C o u r t of
Ei'rors and Appeals of New Jersey (Nov. 20,1916), 99 Atlantic R e
porter, page 315— Daniel C. H. Brost, a minor 19 years of age,
brought action by his next friend against the company named for
damages for personal injuries. The negligence charged was the
maintenance, in an unsuitable condition in the company’s glassblowing factory, of a board upon which it was necessary for him to
TEX T AN D SU M M ARIES OF DECISIONS.
227
walk in crossing a mold hole for the purpose of Carrying materials.
The board was loose and had a hole in it, which, it was claimed,
caused the employee to slip and fall into the mold hole. The com
pany defended, one ground set up being that the matter was gov
erned by the compensation act. It appeared, however, that the com
pany had printed on the boy’s pay envelope a warning that the
provisions of the compensation act were not intended by the company
to apply to him. The act provides that in the case of a minor, notice
of election to avoid the act must be given to the parent or guardian.
In this case the envelope had been given by the boy to his father,
and this was held to be sufficient notice to the latter. The supreme
court had held the plaintiff’s evidence insufficient and granted a non
suit, but this judgment was reversed and the case sent back for a jury
trial, it being held also that the evidence of the company’s negligence
was sufficient for the jury’s consideration, and that the abrogation
of the defense of assumption of risk by the act was valid. Judge
Walker examined pertinent decisions as to the matter of notice, and
stated the conclusion of the court with regard to it as follows:
In the case at bar the notice was actually conveyed to and received
by the boy’s father. We are of opinion that there was due service
in this case of the notice that the Workmen’s Compensation Act
should not apply, and therefore the plaintiff’s suit was properly
brought at common law.
W orkm en’s Compensation — E lectio n — Townships— Hazardous
Employments— Casual Employment —McLaughlin , Commissioner
o f Highways, v. Industrial Board of Illinois et cd., Supreme Court
o f Illinois (Dec. <5, 1917), 117 Northeastern Reporter , page 819.—
Abraham Hiler was killed October 15, 1913, while dynamiting
stumps in clearing out for a new road in the town of Marrowbone,
Moultrie County, 111. Hiler was a common laborer, and not spe
cially employed for the work of blasting. His administratrix was
awarded compensation by the circuit court of the county, which cer
tified the case as one proper to be reviewed by the supreme court.
The latter court held that townships are, by the terms of the act,
conclusively presumed to have elected to be governed by its pro
visions unless they have elected to the contrary, notwithstanding
that no provisions are made as to what officers may make the elec
tion, nor as to the method of raising money to pay awards; also
that the legislature had the power to make the act applicable to
municipalities. It held that a dirt road is not a “ structure ” under
the act, so as to make its building an extrahazardous occupation, but
that the use of dynamite in dangerous quantities in blowing out
stumps is extrahazardous. The judgment of the circuit court was
228
DECISIONS rOF COURTS AFFECTIN G LABOR.
reversed, however, and compensation denied, because the court took
the view that the work of dynamiting was casual, or incidental to
the main purpose of road building. Judge Duncan in the opinion
says as to this:
The work of dynamiting the stumps was a mere casual or inci-;
dental employment in connection with the matter of grading and;
repairing the road, and the evidence does not show that the road j
district had ever before used dynamite in connection with road
grading at any time, and the evidence clearly shows that that work
would only continue for a few hours at most. There was no ex
pectancy, so far as the evidence shows, that dynamite would ever
be again used by the district in its road work.
!
After a careful consideration of the question we have concluded
that the employment of Hiler in this case in the extrahazardous em- j
ployment was not a regular or stable employment within the mean- f
mg of the statute, but was merely a casual employment. Hiler was
therefore not an employee within the meaning of the workmen’s
compensation act, and the industrial board had no jurisdiction of
the case.
W orkm en’s Compensation— Employee— President of Company
Performing M a n u al Labor—Bourne, v. S. W. Bowne Co ., Court o f ,
Appeals of New York (May 8, 1917), 116 Northeastern Reporter ,;
page 364.—S. W . Bowne, the president and principal stockholder of
the company named, suffered an accident while at work assisting in
handling lumber, which resulted in the loss of his left leg. His salary i
of $70 per week was not affected by the accident, and he had received
dividends on his stock, during the preceding year, amounting to
$20,000. The industrial commission, on his proceeding for compen
sation, awarded the maximum, $20 per week, for 288 weeks. The
company and the insurer contended that he was not an employee
under the law, and this view was taken by the court, Judge Pound,
in the opinion delivered by him, saying in part :
The question is plainly presented whether the principal executive
officer of a corporation is an employee within the definition of the'
word contained in the workmen’s compensation law.
The words of the statute, construed in the light of the legislative
purpose, do not justify the conclusion that the distinction between
the higher executive officers of the corporation and its workmen was
obliterated. [Cases cited.] The short title of the act, the limitation
thereof to employers employing workmen, the evil to be remedied,
the method of remedying the evil, the obvious incongruity of apply
ing the law to the principal executive officer of a corporation as an
accident insurance at the maximum rate of not to exceed $20 a week
based on loss of earning power, all point conclusively to a distinction
between such an officer and other employees which the court should
not disregard.
TEXT AN D SU M M ARIES OF DECISIONS.
229
W orkm en’s Compensation— Employee— Teamster Assisting in
E xtricatin g Mired Team— Casual Employment— State ex rel.
Nienaber v. District Court of Ramsey County et al., Supreme Court
of Minnesota (Nov. SO, 1917), 165 Northwestern Reporter, page
268.—George B. Nienaber was a coal dealer in St. Paul. On June 9,
1917, one of his delivery teams, in the suburbs of that city, became
mired, and the driver requested the driver of a street sprinkler in the
employ of the city, but using his own team, to assist him. The
sprinkler teamster did so, hitching his team in front of that attached
to the coal wagon, and in urging his horses forward his foot and
ankle were stepped on and crushed. The teamster thereupon claimed
compensation from Nienaber, and an award in the amount of $9 per
week during the period of disability, not exceeding 300 weeks, was
made by the district court named, and appeal was taken. Judge
Brown delivered the opinion, stating that the majority of the court
considered that the injured man was at the time of the injury an em
ployee of the coal merchant, and, though casually employed, was
employed in the usual course of the business, so that compensation
had properly been awarded.
W orkm en’s Compensation— Employee— W ife o f Employer —In
re Humphrey, Supreme Judicial Court of Massachusetts (May 26,
1917), 116 Northeastern Reporter, page 1^12.—The claim of Eliza S.
Humphrey for compensation for an accidental injury was opposed by
the insurance carrier of her employer, a subscriber under the act,
who was her husband. She was paid regular wages for her services
as cashier and bookkeeper in a store, an arrangement to that effect
having been entered into at a time when her husband and his brother
carried on the business as partners. She was injured while on the lot
occupied by the store when on the way to her home near by. The
court, speaking through Judge Rugg, held that a wife can not be her
husband’s employee, and reversed a decree granting compensation,
the opinion being, in part, as follows:
It is provided by St. 1911, c. 751, pt. 5, sec. 2, that
Employee’
shall include every person in the service of another under any con
tract of hire, express or implied, oral or written,” with exceptions not
here material. Plainly a wife working for her husband is not within
the scope of this definition. Obviously one can not be an employee
without a contract. That is recognized by the words of the act.
Employment presupposes a contractual relation. A married woman
can not make a contract express or implied with her husband.
[Statute and decisions cited.] A married woman can not make a
valid contract with a partnership of which her husband is a member.
[Cases cited.] Manifestly a wife can not be an employee of her hus
band outside the Workmen’s Compensation Act. She can not be an
employee of her husband under the terms of that act.
230
DECISIONS OF COURTS AFFECTIN G LABOR.
W orkm en’s Compensation — Employer and Employee — 61E n
gaged i n Business”— Remodeling House— Marsh v. Groner, Su
preme Court &f Pennsylvania ( June SO, 1917), 102 Atlantic Reporter,
page 127.— Washington N. Marsh, who was injured while at work as
a plasterer on the house of Ida Groner, proceeded under the work
men’s compensation act against the latter. She was a married
woman, living with her husband in the house owned by her, and for
the greater part of the year had been remodeling the house. Marsh
was employed to do several days’ plastering, and sustained the in
jury complained of as the result of the collapse of a scaffolding. The
act provides that the term “ employee ” shall include persons “ who
perform services for another for a valuable consideration, exclu
sive of persons whose employment is casual in character and not
in the regular course of the business of the employer.” The court
of common pleas of Northampton County set aside an award made
by the workmen’s compensation board, and the supreme court affirmed
this action, Judge Stewart saying, in part, in the opinion delivered
by h im :
We derive from this [the definition of the term “ employee ” quoted
above] by necessary implication that only such employers are made
liable under the act as are themselves engaged in regular business.
This must be so if any effect whatever is to be given the exclusion
clause. I f the employer has no regular business, it follows that the
employee was not injured within the condition prescribed. What
gives rise to the question is the indefiniteness and want of precision
of meaning of the word “ business ” as it occurs in the act.
Statutes are presumed to employ words in their popular sense,
and when the words used are susceptible of more than one meaning,
the popular meaning will prevail. It would be a very exceptional
person who would not understand that the reference is to the habitual
or regular occupation that the party was engaged in with a view to
wanning a livelihood or some gain. These objects are necessarily
implied when one’s business is spoken of.
Our conclusion is that the defendant was not engaged in any busi
ness within the proper meaning of that term as used in the act, and
therefore the claimant when injured was not employed in the manner
prescribed by the act. His employment, like that of his employer,
was casual in character.
W orkm en’s Compensation— Employment in Connection w ith ,
or in Proximity to, M achinery— “ M i l l, Shop, or F a c to r y ”—
King v. Berlin Mills Co., Supreme Court o f New Hampshire (Dec.
5, 1916), 99 Atlantic Reporter, page 289.—One King petitioned for
compensation for injury received as an employee of the company
named. He was struck in the back by a plank while engaged, with
five or more other men, in erecting a carrier, to be used in conveying
pulpwood from freight cars on the Grand Trunk Railroad to the
TEX T AND SU M M ARIES OF DECISIONS.
231
Dead River, to be from there floated down to the company’s mill,
2 miles below on the Androscoggin River. The carrier was to con
sist, when completed, of a V-shaped trough, through which an
endless chain running at its bottom would convey the pulpwood.
The men were erecting a wooden horse’ one of the supports for the
trough. No part of the trough or chain, or of the machinery for
propelling the chain, was in position at the time. The apparatus
was entirely disconnected with any of the mills of the company,
being about a mile from the nearest one. Under these circumstances
it was held that the injury was not within the scope of the act, which
by its terms applies to “ work in any shop, mill, factory, or other
place on, in connection with, or in proximity to, any hoisting appa
ratus, or any machinery propelled or operated by steam or other
mechanical power in which shop, mill, factory, or other place five
or more persons are engaged in manual or mechanical labor.”
Judge Plummer concluded the opinion, written by him, with the
following statement:
The plaintiff’s case is not within the purpose and spirit of the
employer’s liability and workmen’s compensation statute. He was
not employed at a place where there was any machinery, but was
engaged in manual labor at a place wholly separate and distinct
from the defendant’s mills where machinery was in use, and at a
distance from them, and his employment was not such as to entitle
him to protection under the act.
W orkm en’s Compensation— E xtra territo ria l E ff e c t o f S ta t
ute— Nature o f A c t— North Alaska Salmon Co. v. Pillsbury et al.,
Supreme Court of California {Dec. H , 1916), 162 Pacific Reporter,
page 93.— Oscar Anderson was awarded compensation by the in
dustrial accident commission of California for an injury suffered
while at work in Alaska under a contract of employment made in
California. On the first consideration of the company’s appeal,
which was based on the ground that the commission did not have
jurisdiction to make an award for an accident happening outside the
State, the Supreme Court held that it did have such jurisdiction,
and affirmed the award. That decision was apparently not re
ported. The present decision was reached on a rehearing of the
case, and reversed the former view, the result being an annulment
of the award. Judge Sloss delivered the opinion, and said in part:
Our former decision, upholding the jurisdiction of the commission,
was based on the theory that the workmen’s compensation law en
tered into and became a part of the contract of employment, and
that, where such contract was made in this State, the statute fixed
the rights of the parties with respect to any injury arising out of the
employment, wherever such injury might occur.
232
DECISIONS OF COURTS AFFECTIN G LABOR.
Upon further study we are satisfied that this view is not tenable.
The liability of the employer to pay compensation arises from the
law itself, rather than from any agreement of the parties. The
law operates upon a status, i. e., that of employer and employee, and
affixes certain rights and obligations to that status. True, the rela
tion of employer and employee has its inception in a contract, but,
once the relation is created, its incidents depend, not upon the agree
ment of the parties, but upon the provisions of the law.
There is a manifest difference between a compulsory act, like ours,
and elective acts, like the Roseberry Act of 1911 and various statutes
in other States, under which the compensation provisions are de
pendent upon the election or consent of the employer and employee.
It may well be said that the rights declared by an elective statute
have their origin and sanction in the agreement of the parties to be
bound by the statute. Under a compulsory statute, however, the
correlative rights and obligations are not founded upon contract.
The question resolves itself, then, into one of the correct inter
pretations of our statute. Ordinarily, the statutes of a State have
no force beyond its boundaries.
Unquestionably, the legislature of Alaska has full authority to de
termine the conditions upon which liability shall exist for an injury
sustained within the boundaries of that terriory, and this right
could not be limited by the circumstances that the injured person
might be a nonresident of Alaska, and in the employment of another
nonresident under a contract of employment made elsewhere. It
will not be supposed that the legislature of this State undertook to
pass a law which would trench upon the sovereign powers of any
other jurisdiction.
Citing decisions in other States where the laws have been held to
have extraterritorial effect, the court differentiates the cases arising
in Connecticut, New Jersey, and West Virginia, because in those
States the laws are elective, and in the instance of West Virginia
the language of the law appears to make it apply to all workmen,
except those employed wholly without the State, which was not the
fact with reference to the miner whose injury gave rise to the de
cision. As to New York, it is said that while the statute is compul
sory, the fact that payments are made from a State fund, supported
by premiums whose amount is calculated on the total pay roll,
makes the decision there irrelevant under the circumstances existing
in California.
W orkm en’s Compensation— E x tra territo ria l E ffe c t of S ta t
ute— Vessel in P ort o f A n o th er State— Kruse et al v. Pillsbury
et al., Supreme Court of California (Jan. 19, 1917), 162 Pacific R e
porter, page 891.— Compensation having been ordered by the indus
trial accident commission to be paid to Emily Sandberg by Emil T .
Kruse and others, employers, for the death of her husband, the em
ployers applied for a writ of certiorari. The deceased, Louis Sand
berg, was second officer of a vessel and was killed while the vessel was
TEX T AND SU M M ARIES OF DECISIONS.
233
in port at Hoquiam, Wash. It had already been settled by the deci
sion in North Alaska Salmon Co. v. Pillsbury (see above) that the
California compensation law does not have extraterritorial effect, but
it was contended that the fiction of admiralty law causes a vessel
owned in any jurisdiction to remain a part of the territory of its own
State or country wherever it may be. The court held, after an examition of pertinent cases, that this does not hold as to a vessel in port.
The award of the commission was therefore annulled. Judge Mel
vin in the opinion written by him used the following language:
There are many authorities in support of the rule that when a
merchant vessel of one country enters the port of another for the
purposes of commerce, it subjects itself to the laws of the sovereignty
governing such port; unless some different rule has been established
by treaty or otherwise.
All nations have equal authority upon the high seas, and there
fore a ship upon the waters of the open ocean is subject to the laws
of the home port, being for all purposes a part of the substance of
the country from which she sails. But in the port of a foreign coun
try the laws of that country are in full force, and must operate to
the exclusion of the statutes of the sovereignty governing the ship’s
home port.
W orkm en’s Compensation— Farm Labor— Laborer on T h rash
ing M achine— In re Boyer, Appellate Court of Indiana, Division
No. 1 (Oct. 25, 1917), 117 Northeastern Reporter, page 507.—Wil
liam Boyer was a separator man on a thrashing machine operated
by Edw^ard A. Lane, who went about from farm to farm thrash
ing oats and wheat at a fixed price per bushel. The employer
opposed an application for compensation on the ground that the
employee was a farm laborer, and so belonged to a class excepted
from the operation of the compensation law. The industrial board
certified the disputed question of law to the court, which decided
in favor of the employee. It was pointed out that the thrashing
is seldom done by the farmer himself, and that the thrashing and
milling of grain are equally pursuits distinct from farming, the fact
that the thrashing machine travels about and operates upon the
farms not making any difference in the classification.
W orkm en’s Compensation— Hazardous Employment— B rick
layer Pointing W a l l o f Lithographic Establishm ent —Dose v.
Moehle Lithographic Co., Court of Appeals of New York (Oct. 23,
1917), 117 Northeastern Reporter, page 616.—Jacob Dose was em
ployed by the company named, whose business, that of lithograph
ing and printing, is classed as a hazardous one under the New York
workmen’s compensation act, to point up and repair the wall of its
234
DECISIONS OF COURTS AFFECTIN G LABOR.
building. He worked at day wages, and the company furnished all
materials and apparatus. *On June 22, 1916, while he was at work,
a rope supporting a scaffold broke, and he was thrown 30 feet to
the ground and suffered injuries for which he claimed compensation.
The industrial commission made an award in the claimant’s favor,
but this was reversed by the supreme court, appellate division, on the
authority of Bargey v. Massaro Macaroni Co., 155 N. Y. Supp. 1076,
affirmed 113 N. E. 407 (Bui. No. 224, p. 270). The court of appeals
reversed the judgment of the supreme court, holding the employee
entitled to compensation. Judge Hogan, who delivered the opinion,
reviewed the Bargey Case, and called attention to the provision in
chapter 622, Laws of 1916, amending the definition of the term 66em
ployee.” The following is quoted from the opinion:
It is obvious from a comparison of the earlier law with the
amended statute, that under the statute, before the amendment, an
employee to be entitled to an award must have been engaged in a
hazardous employment in the service of an employer conducting a
hazardous employment. Such was the construction of the law in the
Bargey Case. The amendment of 1916 was intended to, and does,
embrace an additional class of employees, viz, those in the service of
an employer carrying on a hazardous employment, even though such
employee is not actually engaged in a hazardous employment. The
claimant, Dose, was clearly within the class embraced in the amended
law.
The appellate division held that the injury to Dose did not arise
out of, and in the course of, an employment “ carried on by the em
ployer for pecuniary gain,” that Dose had no connection whatever
with the hazardous employment conducted in the building, that his
injury arose not out of and in the course of the work of lithographing
and printing, but of bricklaying, and that the employment of brick
laying was not carried on by the employer for pecuniary gain. That
conclusion would render meaningless the amendment of 1916. The
company was an employer of workmen. It conducted a hazardous
business for pecuniary gain, which term, as used in the statute,
merely means that the employer must be carrying on a trade, busi
ness, or occupation for gain in order to come within the act. Matter
of Mulford, 220 N. Y. 543,116 N. E. 344 [see p. 236}. The injury re
ceived by Dose was accidental, and sustained by him as an employee
in the service of the company which carried on a hazardous employ
ment. The position that he was employed in bricklaying, which was
not carried on for pecuniary gain by the company, is untenable. A
proper conduct of the business of the company required a suitable
plant, machinery, tools, etc. The company could not, in justice to
itself, its business, or its employees, continue business in a plant
which was actually unsafe or in danger of becoming so. Dose was
engaged in an employment incidental and requisite to the business
carried on by the company; and, under the law as amended, was
clearly entitled to compensation.
TEX T AND SU M M ARIES OF DECISIONS.
235
Workmen’s Compensation— Hazardous Employment— Driver for
Florist, Injured in Arranging Window Box.— Glatzl v. Stumpp ,
Court o f Appeals of New York (Jan. 30, 1917), 114 Northeast
ern Reporter , page 1053.— Franz Glatzl having suffered fatal in
juries while in the employ of G. E. M. Stumpp, a florist, proceedings
for compensation were brought by his widow, Eugenie Glatzl, and
his minor children, and an award was made in their favor by the
industrial commission. The employee was a driver engaged in mak
ing deliveries, and on November 8, 1915, he drove to a certain house,
and the other man on the wagon delivered flowers there. They then
attempted to arrange a window box, Glatzl climbing upon a ladder
in front of the house. He lost his balance and fell upon the ground,
and the window box, falling upon him, fractured and lacerated his
thumb. Tetanus developed and caused his death on November 24.
The court, reversing decisions of the board and of the appellate
division of the supreme court, held that the injury was not in the
course of a hazardous employment as driver,' Judge Cuddeback deliv
ering the opinion and saying in part:
It has been said that the employer of Franz Glatzl was engaged in
carrying on the business of a florist, which is not a hazardous employ
ment under the act, and that Glatzl, his employee, was not, therefore,
protected in any degree by the statute. We do not accept that view.
It is true that the business of florist is not mentioned in the act as a
hazardous employment; but in this case, as incident to his business,
the florist undertook to deliver to his customers the flowers which
they purchased, and in carrying on that branch of the business he
operated a wagon on the streets and highways of the city. That was
within the words of the statute a hazardous employment, and Glatzl
was hired to drive the wagon. If the injury which he received had
arisen out of and in the course of that employment, it would seem
plain that a case under the statute was made out. Then the widow
and children would be entitled to the award; but Glatzl was not
engaged in such service when he fell.
I can observe no connection between the driving of the delivery
wagon by Glatzl and his fall from the ladder which resulted in his
death. It was not because Glatzl was the driver of the delivery
wagon that he fell from the ladder. Any other person adjusting the
window box might have been injured in the same manner.
Workmen’s Compensation— Hazardous Employment— Operating
Ensilage Cutter on Farm—Raney v. State Industrial Commission,
Supreme Court of Oregon (July 17, 1917) ,166 Pacific Reporter , page
523.—Wesley Raney was injured in the employ of D. R. Tinnerstet,
while engaged in operating an ensilage cutter propelled by a gasoline
engine. His hand was caught by the knives and torn off at the wrist.
The employer’s business was that of a farmer. The industrial acci
dent commission refused compensation, but the circuit court of Tilla
236
DECISIONS OF COURTS AFFECTIN G LABOR.
mook County reversed this and gave judgment in the employee’s
favor. This was affirmed by the supreme court, which held that the
occupation was included within the compensation law, the cutter
used being a “ feed mill ” under its provisions. The court said fur
ther that—
The fact that the operation of an ensilage cutter may have been
merely incidental to farming, the business in which plaintiff’s em
ployer was generally engaged, did not make the management of the
u feed mill ” a less hazardous occupation.
The compensation law was amended by the legislature of 1917 so
as to exempt farmers from liability for compensation for injuries
received in the cutting of ensilage or other work done by powerdriven machinery when incidental to farming operations. Since the
injury in the present case occurred in 1916, compensation to the
claimant is, of course, not affected by this subsequent enactment.
W o r k m e n ’s C o m p e n s a t i o n — H a z a r d o u s E m p l o y m e n t — S a l e s m a n
f o r N o n h a z a r d o u s B u s i n e s s , R i d i n g M o t o r c y c l e — Mulford
et al v.
- A . S. Pettit <& Sons, Inc., Court of Appeals of New York {May 1,
1917), 116 Northeastern Reporter, page 344-—Norma S. Mulford
instituted proceedings under the compensation law for the death of
her husband, Edward S. Mulford, which was opposed by the em
ployer, the company named, and by the insurance carrier. The
employer dealt in lumber, coal and feed, not a hazardous business
under the compensation law. The claim was made, however, under
group 41 of section 2, which covers the operation of vehicles by gaso
line and other power. The appellate division affirmed an award
made by the industrial commission in favor of the claimant, and this
judgment was affirmed by the court of appeals, Judge Pound, in the
opinion, comparing with this case similar cases decided in the State,
and saying:
Of course, the employer in this case was not in the business of
operating a motorcycle for gain. Its business was riot the operation
of motorcycles in any sense. I think, however, that “ pecuniary
gain,” as used in the statute, merely means that the employer must
be carrying on a trade, business, or occupation for gain in order to
come within the act. If, in that connection, the purpose of using
the motorcycle is profit, that is enough. Herbert v. Shanley Co., 242
U. S. 591, 37 Sup. Ct. .232. The deceased in this case operated the
motorcycle as an incident to his employer’s business. In the Bargey
Case [218 N. Y. 410, 113 N. E. 407; Bui. No. 224, p. 270] we held
that deceased, a carpenter making repairs on a building used in the
manufacture of macaroni, was not covered by the act, because the
employer’s occupation was the preparation of macaroni, and that the
employee was not engaged therein. The question presented in this
TEXT AN D SU M M ARIES OF DECISIONS.
237
case was not considered in the opinion, although it was said that the
macaroni company was not engaged in the repair of buildings for
pecuniary gain.1
W orkm en’s Compensation— Hazardous Employment— Storage— »
R e ta il Coal D ealer— In re Roberto, Supreme Court of New York ,
Appellate Division, Third Department (Nov. H , 1917), 167 New
York Supplement, page 397.— Berhardina Roberto applied for com
pensation for the death of an employee of John F. Schmadeke (Inc.),
which conducted a large retail coal business. The capacity of its
pockets was between 10,000 and 12,000 tons, and the daily sales
amounted to not far from 1,000 tons. On December 15, 1916, the
supply of coal was small, and it was necessary for the employee to
“ trim ” the coal by moving coal out of the corners of the pocket, so
that it would run by gravity down a chute into automobile trucks
for delivery to customers. The employee was walking along a cor
ridor around the pocket when he fell, sustaining fatal injuries. The
court reversed an award to the applicant, and dismissed the claim.
It held that the business of an employer does not come within the
meaning of the term “ storage ” in the law, even though his business
may be an extensive one, where goods are kept on hand with no
other purpose than their delivery as fast as sales can be made.
W orkm en’s Compensation— Hazardous Employment>-Storage— R e ta il Store— Walsh v. F. W. Woolworth Co., Supreme Court of
New York, Appellate Division, Third Department ( Nov. H , 1917),
167 New York Supplement, page 394.— Emmet G. Walsh was awarded
compensation by the industrial commission for an injury alleged to
have been sustained on October 21, 1916, in the form of a strain of
the employee’s back. He was a boy of 16, and his duties were to take
merchandise delivered on the sidewalk in front of the employer’s
5 and 10 cent store and place it in the basement, and to take the goods
to the salesroom above at the request of the salesmen. He claimed
that the injury happened while he was rolling a barrel of peanuts
up an incline. The question of fact as to the injury having been set
tled by the decision of the commission, the only point at issue was
whether it occurred in the hazardous employment of “ storage.” The
employer was held not to be engaged in this business, and the award
was reversed and the claim dismissed. The following is taken from
the opinion delivered by Judge W oodward:
The most obvious thing about group 29, in connection with the
scheme of the workmen’s compensation law generally, is the fact that
it deals with wholesale matters. When the statute refers to ware
1 F or a repudiation o f the doctrine in the Bargey Case see Dose
Co., p. 233.
v. Moehle
Lithographic
238
DECISIONS OF COURTS AFFECTIN G LABOR.
housing or u storage of all kinds and storage for hire,” we are to under
stand, not purely incidental storage of the goods necessary to keep
up a retail stock, but the wholesale storage of merchandise in large
packages, involving special dangers in their handling and storage.
Formerly an employee was defined to be “ a person who is engaged
in a hazardous employment in the service of an employer carrying
on or conducting the same,” but now it is “ a person engaged in one
of the occupations enumerated,” or one “ who is in the service of an
employer whose principal business is that of carrying on or conduct
ing a hazardous employment upon the premises,” etc., and this clearly
excludes the claimant in this case, for it can not be contended that
the employer’s “ principal business ” was that of a warehouseman or
storage man, in the light of the record now before us.
W orkm en’s Compensation— Hazardous Employment— W eighing
Hides Unloaded From Vessels— In ju r y — A n th r a x Contracted
Through Abrasion o f Skin —Hiers v. John A. Hall cfe Go., Supreme
Court o f New York , Appellate Division , Third Department (May 2,
1917), 164 New York Supplement, page 767.— Eugene H. Hiers was
awarded compensation by the State industrial commission against
his employer, the company named, and its insurer. His occupation
was weighing hides on the piers in Brooklyn, the hides constituting
parts of the cargoes unloaded from vessels. Such unloading and
handling is one of the occupations designated as hazardous under the
compensation law. His gloves became permeated with moisture and
salt from the hides and a swelling was caused on the back of one of
his hands, resulting in an abrasion of the skin upon this swelling. On
February 10, 1916, anthrax germs contained in the hides were com
municated to his system through this fissure, and the award was
made for the disease resulting. A compensable injury is defined by
the act as including:
“ Only accidental injuries arising out of and in the course of em
ployment, and such disease or infection as may naturally and unavoid
ably result therefrom.”
The award in favor of the employee was affirmed, Judge Cochrane
saying:
There is a broad distinction between the present case and the case
of an occupational disease. The latter is incidental to the occupation,
or is a natural outcome thereof. It is expected, usual, and ordinary.
This disease incurred by the claimant was unexpected, unusual, and
extraordinary, as much so as if a serpent concealed in the hides had
attacked him. There is no difference in principle because the attack,
instead of being made unexpectedly by a concealed serpent, was made
unexpectedly by a concealed disease germ. We think the circum
stances constitute an accidental injury, within the meaning of the
statute.
However, there is another theory on which this award may be up
held. The claimant, in the course of his employment and as a result
239
TEXT AND SU M M A R IE S OF DECISIONS.
thereof, had received an abrasion on his hand or a fissure therein.
This may properly be deemed an accidental injury arising out of and
in the course of his employment, and the disease or infection caused
by the anthrax germ may be deemed “ such disease or infection as
may naturally and unavoidably result ” from such injury, within the
meaning of the statute.
W oskmen’s Compensation — H o rtic u ltu ra l Labor — Janitor
Pruning Tree— Kramer v. Industrial Accident Commission of Cali
fornia, California District Court of Appeals {Oct. 12, 1916), 161
Pacific Reporter , page 278.— The industrial accident commission
awarded compensation to Oscar Ohlsson for injury received while
in the employ of Henry J. Kramer. The former was janitor of a
building used by his employer as a dancing academy and dwelling
house. On the adjoining lot was a garage used by Kramer, and the
serious disability of the employee resulted from the piercing of his
ankle by a palm thorn while he was pruning a fig tree on this lot.
Horticultural labor is excluded from compensation, and the court
reversed the award on the ground that he was engaged in such
labor. In the course of the opinion delivered by Judge Shaw, he
said:
It appears that Ohlsson was employed in a dual capacity; that
is, in the capacity of a janitor for a dancing hall and a house
and garden laborer. In the light of the evidence we construe the
finding that Ohlsson was employed as a house and garden laborer
as referring to household domestic service mentioned in section 14,
and the caring for the flowers, grass, trees, and shrubbery growing
upon the two lots. In other words, the service performed by Ohlsson
as a house laborer consisted of household domestic service, while that
performed by him in the capacity of a garden laborer consisted in
horticultural labor. Clearly the labor of caring for grass lawns,
trees, shrubbery, and flowers is horticultural in character. The prun
ing of this fig tree without specific instructions so to do might well
be regarded as within the scope of his employment as gardener,
since the proper care thereof required such work to be done. It did
not interfere with the use of the driveway, and the pruning thereof
had no connection with the work of janitor which by any stretch of
the imagination could render it incidental thereto. Therefore the
conclusion of law as found by the commission that at the time of the
injury “ the applicant employee was not engaged in any of the occu
pations or employments excepted by section 14 of the workmen’s
compensation, insurance, and safety act from the provisions of said
act ” is without support in the facts -found.
New York decisions are discussed and found to be in agreement
with this view.
W o r k m e n ’s
C o m p e n s a tio n — -I n ju r y — A c tin o m y c o s is
G r a i n — Hartford
fro m
P u l
Accident & Indemnity Co. v. Industrial
Commission et al., Supreme Court of California {Jan. 4, 1917), 163
v e r iz e d
240
DECISIONS OF COURTS AFFECTIN G LABOR.
Pacific Reporter , page 225.—H. A. Burris, an employee of the Per
kins Grain & Milling Co. during the months of October, November,
and December, 1915, became afflicted with an affection of the nose
and mouth which was diagnosed as actinomycosis. His work was
filling sacks with ground barley and wheat, and the evidence, from
physicians who testified and medical works to which they referred,
was conflicting as to the causes of the disease and as to whether it
could be contracted from grain. The commission’s decision, award
ing compensation to the employee, was upheld by the court, the
opinion, delivered per curiam, concluding as follows:
The commission resolved this conflict in opinion and authority in
favor of the applicant for compensation by its finding that “ the
applicant’s employment in and about the handling of grain caused
him to contract the disease known as actinomycosis.” The evidence
in support of this finding consists, not only in the opinion evidence
of the physicians who treated the applicant and diagnosed his case,
but also in the testimony of the applicant himself that he had not
theretofore suffered from any such disorder, but that it had become
acutely developed whilst he was engaged in the work of sacking and
handling pulverized grain for his employer. We think this evi
dence was sufficient to warrant the commission in arriving at its
aforesaid conclusion, and this being so, we have no power to interfere
with its discretion in making said award.
W orkm en’s Compensation— In ju r y Arising o u t o f and i n
Course o f Employment— A n s w e r i n g Telephone C a l l — HollandSt. Louis Sugar Co. v. Shraluka, Appellate Court of Indiana, Divi
sion No. 2 (May 28, 1917), 116 Northeastern Reporter , page 830.—
Compensation was awarded Barton Shraluka by the industrial board
of Indiana, and the company named, his employer, appealed from the
award. The employee worked in the sugar factory from 6 a. m. to
6 p. m., 7 days a week, without opportunity to go outside the factory
or allowance of time for lunch. While at work on the third floor he
was informed by the company’s chemist that he was wanted on the
telephone. He started to walk down stairs, but near the top slipped
on some pieces of beet and fell to the floor below, sustaining several
injuries. It proved that the telephone call was for another employee.
The principal question was whether the injury was one arising out of
the employment. The court decided that it was and affirmed the
award. Judge Dausman delivered the opinion, stating the principles
set up by the apposite cases, which are cited, and saying that even if
the call had been one from his family or friends, it would have been
presumable that it was under the circumstances an incident of his
employment, especially as he had been summoned by a superior, and
had a right to assume that the call pertained to his employment.
TEXT AND SU M M ARIES OF DECISIONS.
241
Workmen’s Compensation— Injury Arising Out of And in
Course o f Employment— Attempt to Raise Window Intention
a lly Nailed Down— In re Borin, Supreme Judicial Court of Massa
chusetts (June 27, 1917), 116 Northeastern Reporter, page 817.—■
John Borin was injured while in the employ of the William Ryde
Co. Certain windows in the room had been nailed down, because to
reach them for the purpose of opening and closing involved dan
gerous climbing over dye tubs filled with hot water and steam.
The need of fresh air being great, the employee climbed over the
tubs and attempted to detach with a hammer and chisel the slat with
which one of the windows was fastened. A piece of the chisel flew
and struck him in the eye, causing the injury for which he claimed
compensation. In reversing an award made in his favor the court
held that this injury did not arise out of the employment, Judge
Braley concluding the opinion written by him as follows:
The claimant therefore must be held to have worked in the dye
house as fitted for use by his employer, who had the absolute right
to close the windows temporarily, or permanently, so that the prem
ises should be used as if those windows formed no part of the con
struction or equipment; of which conditions he had implied or con
structive notice. The fastened window spoke as plainly to him that
it was to remain closed as if a printed notice had been posted, or an
oral order had been given, the intentional violation of which ordi
narily would have precluded compensation.
Workmen’s Compensation— In ju ry Arising Out o f and in Course
Employment— Domestic Servant Lighting Fire with A lco
hol— Kolasynshi v. Klie, Supreme Court of New Jersey (Oct. 5,
1917), 102 Atlantic Reporter , page S.— Antoni Kolasynski claimed
compensation for the death of a servant in the family of John H.
Klie, this employee having been burned to death while lighting a fire.
She had been warned not to use kerosene “ or anything like that”
for the purpose, but the accident occurred while she was using wood
alcohol. The court, speaking through Judge Swayze, said that the
only question was whether the accident was one arising out of and
in the course of the employment, and affirmed a judgment for the
petitioner, saying in part:
of
That it was by accident is not questioned. It was a fortuitous
event, which might indeed be expected but might never happen. We
must conclude that it arose out of and in the course of the employ
ment unless the disobedience of orders prevents that conclusion.
The disobedience of orders in this case was a disobedience of orders
as to the way in which the work should be done. The work itself
was the very work decedent was expected to do. It was done at the
very place where it was meant to be done.
The measure of disobedience found was held not to bar the claim,
and the judgment was affirmed.
64919°—18— Bull. 246------- 16
242
DECISIONS OF COURTS AFFECTIN G LABOR.
Workmen’s Compensation— In ju ry Arising Out of and i n
Course of Employment— Eating Lunch— Manor v. Pennington ,
Supreme Court of New Y ork, Appellate Division, Third Department
(Nov. 14, 1917), 167 New York Supplement, page 424.—Alfred Pen
nington was a contractor doing some construction work on the main
and second floors of a garage in Plattsburg, N. Y., and had in his
employ William Manor. The employer had no control over the base
ment of the garage. Manor and three other men went into the cellar
at noon to eat their dinner, and just as they were about to go upstairs
to resume work the boiler exploded, and Manor received burns from
which he died the same day. John Manor made claim for compensa
tion, and the industrial commission made an award in his favor.
The court, however, held that the injury did not arise out of and in
the course of the employment, Judge Woodward, for the court, say
ing in part:
Manor was not an employee because he was not engaged in per
forming any of the work for which he was employed (Bargey v.
Massaro Macaroni Co., 218 N. Y. 410, 413, 113 N. E. 407 [Bui. No.
224, p. 270]) ; his injuries did not arise out of his employment in
any other sense than that he was, probably, in that locality because
he was employed upon the first and second stories of the building,
but he was not at the time doing anything for the employer, any
more than he would have been if he had been waiting in the office
of a local hotel for the expiring of the dinner hour.
The accident which happened was not due to any risk growing out
of the performance of the employer’s contract; it was such a risk
as arose from the conduct of the garage by its owners, witli which
the employer had no relation, and the employee could have been
performing no service for the master. He was performing no work
whatever; he was awaiting the hour to return to his employment in
a part of the premises which were in the possession and control of
third persons; and the law does not extend its protection to one thus
situated.
Workmen’s Compensation— Injury Arising Out o f and in
Course o f Employment— Employee in Factory on Both Sides o f
Street, Slipping on Ice— Redner v. H. C. Faber & Son, Supreme
Court o f New York, Appellate Division, Third Department (Nov.
14,1917), 167 New York Supplement, page 2J$ .— Charles W. Eedner
was employed as a general utility man by the H. C. Faber & Son Co.,
manufacturer of trunks. Across the street is a second trunk factory,
operated by the A. W. Wins'hip Co., a corporation having the same
stockholders as the Faber company and carried on as a single execu
tive organization with it. It was Eedner’s duty to perform services
for both concerns, including the lettering of trunks. On January
20, 1916, he went, at the direction of the superintendent of the
Faber company, to letter a trunk in the building of the Winship
TEX T AND SU M M ARIES OF DECISIONS.
243
company. On attempting to return lie slipped upon the snow and
ice in the street, and from the effects of the fall received he died six
months later. The question upon which the decision turned was
whether the injury was one arising out of the employment, it being
contended on the part of the employer and insurer, who appealed
from an award of compensation to the widow, that it was the result
of a street accident, to which all persons using the highway were
equally liable. The court, speaking through Judge Woodward,
affirmed the award, saying that some English decisions would seem
to sustain the contention mentioned, and that some of our own have
refused to sustain awards in cases where injuries occurred in high
ways after the termination of the hours of employment, but had not
gone to the extent to which the court was asked to go in the present
case. Continuing, the opinion says in part:
The evidence indicates that, while the location of the accident
was technically a public highway, it was in fact practically a part
of the premises of these two corporations; it was not generally
used for street purposes. The determining factor is, not whether the
accident occurred in a public highway, but whether the employee was
there in the performance of his duties. I f he was there in the dis
charge of the obligations of his employment, the accident would
arise out of such employment as certainly as though he had reached
a point within the factory and had there slipped and sustained his
injuries. This highway was a part of the place provided for him to
work in. Under the circumstances here disclosed, it was a matter
of absolute indifference who owned or controlled the highway. It
was as necessary for the decedent to cross this highway in doing the
work appointed as it was for him to cross the room in which he was
employed in the factory, and the liability would clearly extend to
him if injured in either case while actually employed.
On appeal the judgment in this case was affirmed by the State
court of appeals (May 14, 1918, 119 N. E. 842).
Workmen’s Compensation— In ju ry Arising Out of and in Course
of Employment— Evidence— Burden of Proof—Bloomington, D. &
0 . R . Co. v. Industrial Board , Supreme Court of Illinois {Feb. 7 , 1917),
H Northeastern Reporter , page 939.— Compensation was awarded
by the industrial board to the administratrix of Henry Yanda for
his death in the employ of the company named on July 9,1914. The
deceased, a carpenter, and one Albeitz were working at that time on
the top of a car. There were iron frames about ventilators on the top,
and Yanda was near the end of an uninsulated live cable. The other
workman was looking down at his work and had his cap over his
eyes. His first knowledge of any accident came when he saw Yanda
falling over. He caught Yanda, and the latter was taken down
from the car dead. The testimony as to whether or not there were
1
244
DECISIONS OF COURTS AFFECTIN G LABOR.
burns upon the body was conflicting, as was that as to whether death
from electric shock could occur without the presence of such burns.
The court held that although the burden of proving that death was
the result of an injury occurring in the course of employment rested
upon the administratrix, there was sufficient evidence to sustain the
view taken by the board that such was the fact. The concluding
portion of the opinion, which was delivered by Judge Cartwright, is
in part as follows:
The burden of proof that Yanda’s death was an accident arising
out of his employment rested upon the administratrix, and such
proof must amount to something more than mere guess and conjec
ture. The evidence was that Yanda was, and for 21 years had been,
in perfect physical condition, and the reasonable presumption is that
he was killed by some external, efficient agency. The agency was
present if it became operative through contact with the iron plate
and exposed end of the cable. The rational explanation is that the
death was caused by an electric shock.
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 o urse of E m p l o y m e n t — F a l l fr o m S caffold D u e to E p il e p s y —
Van Gorder v. Packard Motor Car Co., Supreme Court of Michigam,
(Mar. SO, 1917), 162 Northwestern Reporter, page 107.—Mildred Yan
Gorder instituted proceedings to obtain compensation for the death
of Frank Van Gorder, and an award was made to her by the indus
trial accident board. Yan Gorder was a steam fitter employed by
the company named, and when standing upon a scaffold 6 feet in
height he fell from it to the floor, fracturing his skull, and died
from the effects of the fall within 24 hours. The board found upon
evidence which the court deemed sufficient that the fall was the
result of epilepsy, and also found that the injury was one arising out
of and in course of the employment. The company contended that
it was not one arising out of the employment, and the supreme court
on appeal adopted this view, reversing the award on the ground that
the fall was caused only by the fit, and that this was the sole cause
of the injury.
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 o u r se of E m p l o y m e n t — F a l l fr o m S t a ir s W h il e L e a v in g P r e m
is e s .— In re O'Brien, Supreme Judicial Court of Massachusetts (Nov.
2 , 1917), 117 Northeastern Reporter, page 619.—John O’Brien, an
employee of the Standard Comb Co., received injuries while leaving
the premises in which he worked. O’Brien was 64 years of age, and
practically blind in his right eye, but his vision was sufficient to enable
him to do his work properly, and to descend the outside stairs which
TEXT AND SU M M ARIES OF DECISIONS.
245
led to the place of his employment. On September 12, 1916, while he
was going down the stairs after completing his day’s work, and while
other employees were rushing down the stairs, he took his hand
momentarily from the railing along them. He reached again for
the railing, but made a misstep or lost his balance while on the ninth
step from the bottom, and as a result fell over the railing to the
ground. The superior court of Worcester County affirmed an award
of compensation’ made by the industrial accident board, and from
this court’s decree the insurer appealed. The supreme judicial court
affirmed the decree, resolving in favor of the claimant the disputed
point as to whether the injury arose out of the employment. Judge
Pierce said as to this, in the concluding portion of the opinion de
livered by him:
We are of opinion that there is a reasonable probability that some
employee in the course of his employment will fall and receive an
injury while descending a stairway of an employer, constructed and
used as the stairway was in the case at bar. It follows that the likeli
hood of such a fall is a risk and hazard of that business.
W o r k m e n ’s C o m p e n s a tio n — I n j u r y A r is in 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 — H o r s e p la y A c q u ie s c e d in b y E m
p lo y e r — -In re Loper , Appellate Court of Indiana, Division No . 2
(June 1, 1917), 116 Northeastern Reporter , page 32h —The industrial
board, in the case of one Loper, certified to the court the ques
tion of law as to whether his injury and death arose out of his
employment within the meaning of the compensation act. Loper was
at work as a drill-press operator. The assistant superintendent, as a
matter of sport, attempted to apply to Loper’s person the nozzle of a
compressed-air hose, when the employee, in jerking away his body,
ruptured an abscess in the region of the gall bladder, causing acute
general peritonitis, and death two days after the injury. The em
ployees, as was found by the board, were accustomed to use the hose
to clean their clothes, and to turn the air from it upon one another.
The employee injured had participated in this at other times, but on
this occasion was attending to his work. The assistant superin
tendent had also participated before, and neither he nor any other
representative of the employer had objected to the practice. The
court held that under the circumstances the injury arose out of the
employment. It calls attention to the cases of other kinds of “ horse
play,” in the majority of which compensation has been denied.
We are not dealing here with a sporadic, occasional, or unantici
pated use of the air hose in play. It had become a habit here for the
employees to turn the hose against one another. That the habit was
*a perilous one, see the following, where similar accidents occurred:
[Cases cited].
246
d e c is io n s
of
courts
a f f e c t in g
labor.
The employer, with knowledge of the facts, permitted such practice
to continue. It was within his power to have prohibited it. By fail
ing to do so, it became an element of the conditions under which
the employee was required to work.
W orkm en’s Compensation— In ju r y Arising O u t o f and in
Course o f Employment— M iner Shot A ft e r Going Back to A tten d
to Unexploded Charges— Atolia Mining Co. et al. v. Industrial A cci
dent Commission et oil., Supreme Court of California (Aug. 10, 1917),
167 Pacific Reporter , page l l f i . — J. D. Mason was a shdt firer for the
company named. It was the custom in small mines, such as this was,
for some one of each shift of shot firers, after it appeared that some
shots had not exploded, to return and make the place safe for the
next shift. This could not well be done immediately on account of
smoke and gas left by the explosion. The shift which included Mason
finished work at 2 a. m. He and his two fellows had drilled 14 holes
and loaded them. They lighted the fuses and went up the shaft
about 100 feet, where they listened and counted 12 explosions. The
other men lived some distance from the mine and went home.
Mason went to his tent, about 200 yards away, washed his face and
hair, and returned to the mine about 20 minutes after leaving it. He
found that all the shots had been fired, the deficiency in the number
of reports doubtless resulting from simultaneous explosions, this
being a not uncommon occurrence. As he once more went to his tent
with his miner’s light one of the guards stationed to prevent theft of
ores, without inquiry or warning, shot him in the back, inflicting an
injury for which he claimed compensation. A n award was made by
the Industrial Accident Commission, and the employer and the in
surance company, praying for a writ of error, contended that he was
not an employee at the time of the injury, but a volunteer, his hours
of service having expired; also that the shooting was a premeditated
and unjustifiable assault. Overturning these contentions and affirm
ing the award, the court, through Judge Henshaw, said:
Upon neither of these grounds can this award be annulled. The
recognized custom of miners, carried out with the knowledge and ap
proval of the mine owners (a custom which manifestly makes for the
protection of the mine owners themselves, in lessening the liability of
injury from unexploded blasts by the oncoming new shift, ignorant
of the conditions), becomes in all essentials for this award a part of
the duty of the miner in the performance of his work, and his injuries
thus resulting grew out of and occurred in the course of his employ
ment.
Upon the second proposition, while unquestionably it was a heed
less and reckless thing for the guards thus to have shot a man without
more investigation as to his character and intentions than was here
shown to have taken place, yet every legal presumption favoring
TEXT AND SU M M ARIES OF DECISIONS.
247
innocence, the argument will not be sustained that these guards de
liberately perpetrated an assault to commit murder. To the contrary,
it will be held that the man who fired the shot, himself the chief guard,
believed that the circumstances justified him in so doing, and that
thus he was acting within the line of his own employment, and under
this view Mason, having been injured by the negligent performance
of an act within the general scope of the duties of the employee in
flicting the injury, is entitled to his recovery.
W orkm en’s Compensation— In ju r y Arising O u t o f and in
Course o f Employment— Moving Beams to R e a c h
Steam
Gauges—Accident — Objective Symptoms o f In ju r y —Manning v.
14
Pomerene , Supreme Court of Nebraska (Apr.
, 1917), 162 North
western Reporter , page
— Chapin E. Manning brought an action
for compensation against Louis W. Pomerene for injury suffered
while engaged in attending to a boiler for the latter. It was neces
sary, in order to read the steam gauges, to go into a narrow passage
way. Manning found this obstructed by some steel I-beams about 3
feet above the floor and pushed against them in an effort to move
them out of the way. He felt faint and sick and had pain in his
stomach and nausea, was obliged to sit down, and was unable to
work the remainder of the day. He acted as overseer of other men
on the next day, which was Saturday, but on Monday and after
wards he was unable to work, vomiting blood and having a slight
paralytic shock. He was 63 years old, and there was a contention
that the sickness was due to arteriosclerosis. Other contentions on
the part of the defense were that the removal of the beams was not
within the scope of the employment and that the occurrence was
not “ an unexpected or unforeseen event, happening suddenly and
violently,” and “ producing at the time objective symptoms of an
injury.” These questions were resolved in favor of the employee,
Judge Letton delivering the opinion, from which extracts are quoted
as follows:
It seems there was a narrow passageway in which he^was required
to walk in order to reach the gauges showing the steam pressure in
the boiler. The end of these beams projected over and obstructed
the passageway, and while there were steam fitters near whom he
might have called from their work to move the beams far enough to
allow him to pass, it was perfectly natural and to be expected that
in order to perform his duties he should move or attempt to move
them himself. They were lying upon a projecting part of the boiler,
and the testimony is that beams resting upon iron, as these were,
usually slide easily when pushed. In our view he was acting within
the scope of his employment.
It is insisted that no “ unexpected or unforeseen event, happening
suddenly and violently” occurred; that sickness arising from the
placing of his body by plaintiff against the beams and surging back
248
d e c is io n s
of
courts
a f f e c t in g
labor.
and forwards could not reasonably be said to be “ an unforeseen
event ” ; and that it did not happen suddenly and violently except
as it was produced by the plaintiff himself. It is said that this
language “ was clearly meant to limit recoveries to accident such
as the breaking of machinery, or the unexpected cutting or wound
ing of employee’s person by some breaking or falling or exploding
of apparatus, machinery, or tools.” To hold this would unduly
limit the meaning of this clause. The unforeseen event was the
straining, weakening or lesion of the blood vessels of the brain or
stomach, and this was an unforeseen event happening suddenly.
It is also said that no “ objective symptoms” of an injury appeared
at the time, and that these elements are essential. We agree with
this argument so far that the accident must produce “ at the time
objective symptoms of an injury,” but the difficulty is as to what
constitutes objective symptoms. Defendant’s idea is that by ob
jective symptoms are meant symptoms of an injury which can be
seen, or ascertained b^ touch. We are of opinion that the expres
sion has a wider meaning, and that symptoms of pain and anguish,
such as weakness, pallor, faintness, sickness, nausea, expressions of
pain clearly involuntary, or any other symptoms indicating a dele
terious change in the bodily condition may constitute objective
symptoms as required by the statute.
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 o u r se of E m p l o y m e n t — P r e su m p t io n — E v id e n c e — Chludzinski et
al. v. Standard Oil Co., Supreme Court of New Y ork, Appellate
Division, Third Department (Dec. 28,1916), 162 New York Supple
ment, page 225.—This decision arose out of a claim for compensation
by Catherine Chludzinski and others for the death of her husband,
an employee of the company named. Death was caused by fire
catching his flannel shirt, which, as in the case of all the workmen,
was saturated with oil and wTas very inflammable. During working
hours he went into a locker room adjoining the workroom, in which
there was a lighted Bunsen burner protected by a hood. A few
minutes later he came out with his clothes aflame, and died the same
day from the effect of burns. The company argued that there was
proof that thfe injury was not one arising out of and in the course
of the employment. The court held to the contrary, and affirmed an
award in favor of the widow and children, Judge Kellogg saying
in the opinion delivered by him:
In the absence of a rule prohibiting the men from going to the
locker room during working hours, it can not be said that the dece
dent had no right to enter that room, or that he ceased to have all
the benefits of an employee while there. Many reasons might have
made it proper, and in the due course of his employment, for him
to enter the room at the time. We can not, under the law, indulge
in any presumption against him.
TEXT AND SUM M ARIES OF DECISIONS.
249
W o r k m e n ’s C o m p e n s a tio n — I n j u r y A r is in 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 — P r e s u m p tio n — E v id e n c e — Ohio Building
Safety Vault Co. v. Industrial Board et al., Supreme Court of Illi
nois {Feb. 21, 1917), 115 Northeastern Reporter, page 149.—-
The company named was directed to pay compensation to the
widow of Jens Christensen, at the rate of $31 per month for 96
months, on account of the death of her husband on December 23,
1914. He was a night watchman in the employ of the company,
and on the night of December 19 received injuries which resulted
in his death. There was evidence tending to show that he was
assaulted with an iron pipe by some unknown person. The coroner’s
verdict was to that effect, and it was admitted as evidence before
the board, and on appeal was held to have been competent evidence.
The court also held that the circumstantial evidence was sufficient
to sustain the findings of fact on which the board based its award,
and affirmed the same. It appeared that the employee w^as of a
peaceable disposition and had no personal enemies, but it was con
tended by the employer that the injury did not arise out of the
employment. This contention was rejected by the court in its
opinion delivered by Judge Carter, who, in the course of his quite
thorough discussion of this point, said:
The deceased, because of his employment, was required to guard
the building from trespassers or other intruders, and on this account
he necessarily might have to deal with persons more or less regardless
of the rights of others. Those required to deal with such persons
run a risk of encountering violence. Under the evidence in this case,
the injury is fairly traced to the employment of the deceased as the
proximate cause—an injury which came from a hazard to which
Christensen would not have been equally exposed apart from his
employment. The danger of this injury was peculiar to his line of
work and not common with all other kinds of employment.
W orkm en’s Compensation— In ju r y Arising out o f a n d i n
Course o f Employment— Returning from W o rk — Swanson v.
Latham & Crane et al., Supreme Court of Errors and Appeals of
Connecticut {July 6 , 1917), 101 Atlantic Reporter, page 492.— Alice
May Swanson was a claimant to compensation against the firm of em
ployers named, and the company carrying their insurance. The
mployers were building contractors engaged upon a house in Staf
ford Springs, and employed six men, one of them Andrew S. Swan: / : b , the husband of the claimant.
The men were paid their regu
lar wages and in addition transportation charges, amounting to 90
cents per day, from Willimantic to Stafford Springs and return.
They were at liberty to use this money for board and remain at
Stafford Springs, or to expend it for transportation to Willimantic
250
DECISIONS OF COURTS AFFECTIN G LABOR.
and back. It was arranged that one of the employees, Osterhout
by name, should carry the men back and forth in his automobile
and be paid the transportation money directly by the contractors.
On December 7, 1916, as the men were returning from Stafford
Springs to their homes in Willimantic, the automobile collided with
a railroad train at a crossing, and all of the six men were killed.
The court affirmed an award of a compensation commissioner hold
ing that the injury arose out of and in the course of the employ
ment. From the opinion delivered by Judge Wheeler the following
is quoted:
Transportation to and from his work was incidental to his em
ployment; hence the employment continued during the transporta
tion in the same way as during the work. The injury occurring
during the transportation occurred within the period of his employ
ment, and at a place where the decedent had a right to be, and while
he was doing something incidental to his employment, because con
templated by it. The case falls clearly within the construction we
have heretofore placed upon the terms of the statute a arising in
the course of the employment.” Larke v. Hancock Mutual Life
Insurance Co., 90 Conn. 303, 308, 97 Atl. 320 [Bui. No. 224, p. 302].
An injury received by an employee while riding, pursuant to his
contract of employment, to or from his work in a conveyance fur
nished by his employer, is one which arises in the course of and out
of the employment.
W orkm en’s Compensation— In ju r y Arising O u t of and in
Course o f Employment— Traveling A gen t Slipping on Ice— In re
Harraden , Appellate Court of Indiana (Dec. 20, 1917), 118 North
eastern Reporter , page 11$.— Charles H. Harraden was an employee
of the Columbia Insurance Co., as a fire insurance agent. On March
20, 1917, he was sent from Detroit to Boyne City, Mich., on busi
ness and arrived there after dark. While going from the railway
station to a hotel he slipped upon the icy sidewalk and fractured
his femur. The industrial board found that he had been totally
disabled from work up to the time of the hearing before it and
might be permanently partially incapacitated. The board certified
to the court the question whether the injury was one arising out of
the employment. The court replied in the affirmative, after examin
ing pertinent cases. The following is quoted from the opinion deliv
ered by Judge Felt:
The facts show that Harraden’s employment exposed him to in
creased hazards generally, among which was the one which caused
his injury. The admitted facts compel the inference that the injury
of Harraden resulted from conditions produced by the weather, and
likewise because he was in the particular locality at the time in
question. The latter fact is due to his employment. The facts
admit of no other inference but that for his employment he would
TEXT AND SU M M ARIES OF DECISIONS.
251
not have been in that locality at the time of his injury. His employ
ment was therefore a contributing proximate cause of his injury.
By reason of it he was exposed to a hazard which in all reasonable
probability he would not otherwise have encountered. The work
he was employed to do required travel and made him particularly
subject to hazards to an extent far greater than like hazards en
countered by the general public.
Such being the case, the facts not only warrant the conclusion that
the injury of Harraden was received in the course of his employment,
but they likewise compel the inference that his injury arose out of
his employment within the spirit, purpose and meaning of the work
men’s compensation act.
W orkm en’s Compensation— In ju r y Arising O u t of and in
Course of Employment— Traveling Salesman Slipping on Ice— >
Donahue v. Maryland Casualty Co., Supreme Judicial Court of Mas
sachusetts (May 25, 1917), 116 Northeastern Reporter, page 2 2 6 »
Patrick M. Donahue was a traveling salesman for Thomas J. Flynn
& Co., engaged in the sale of church goods.
On February 21, 1916,
he went from the employer’s place of business in Boston to Lowell,
and from there by electric car to the village of Collinsville, and to
the house of a clergyman, distant about 10 minutes’ walk. After
completing the business he started to walk back to the car line, and
slipped on the ice and fell, breaking his ankle. This occurred at a
point where he was obliged to walk in the middle of the street, the
sidewalk being impassable on account of the ice. He intended to
take a car to a place where he could visit another prospective cus
tomer. The insurer appealed from an award of compensation made
by the industrial accident board, and on which the superior court of
Suffolk County had rendered judgment. The supreme judicial court
reversed this judgment on the ground that the injury was due to a
risk common to the public, the employment not being a contributing,
proximate cause.
W orkmen ’ s C ompensation— I njury A rising O ut of and in
C ourse of E mployment — V olunteer— Eugene Dietzen Co. v. Indus
trial Board o f Illinois, Supreme Court of Illinois (June 21, 1917),
116 Northeastern Reporter , page 684•—Giuseppe Cappucio was in
jured while in the employ of the company named on July 15, 1914,
and an award was entered in his favor by the committee of arbitra
tion and sustained by the industrial board, granting him $5 a week
for 112 weeks. The circuit court of Cook County affirmed the
award, certifying, however, that it was a case proper to be reviewed
by the supreme court. The employee’s work was the polishing of
small metal handles for tapelines by holding them against a buffing
wheel. He had to take these from one box and, after polishing,
252
DECISIONS OF COURTS AFFECTIN G LABOR.
place them into another. The dust from the operation fell into a
boxlike receptacle, connecting with a pipe to an exhaust fan. The
employee dropped one of the handles into the receptacle, and, going
a few feet away from his working place, removed a cover near the
fan, and reached in for the purpose of getting the article. In doing
this his hand was caught by the fan and severely injured. It was
proven that another man was responsible for the exhaust system, and
that the injured employee had nothing to do with it, and should have
called for assistance in case of need. There was a conflict of evi
dence as to whether he had received specific warning on another
occasion when he had taken the cover off the hole. The court held
that, the scope of his employment having nothing to do with the
exhaust system, the injury did not arise out of the employment.
W orkm en’s Compensation— In ju r y Arising O ut o f a n d i n
Course o f Employment— W i l l f u l Misconduct— Inland Steel Go.
v. Lambert, Appellate Court of Indiana, Division No. 2 {Dee. 19,
1917), 118 Northeastern Reporter , page 162.—Harold B. Lambert
proceeded against the company named for compensation for an
injury sustained while employed by the company. From the findings
of fact of the board it appeared that he was a switchman, that his
duties were in connection with the operation of a switch engine
about the yards, and that his hours were from 6 p. m. to 6 a. m. After
quitting work he changed his working clothes for street clothes, and
then had to go a distance equal to five city blocks to the entrance
of the plant to deposit a card in the time clock. On the morning of
March 7, 1916, when the injury occurred, the path along which he
usually went was impassable for more than 70 feet, because of an
excavation 10 feet deep. Before he reached this excavation the
engine came along, in charge of the day crew, running in the direc
tion in which he was going, and to avoid the excavation and save time
he attempted to board it, and received the injury, which resulted in
the loss of a foot above the ankle joint. He had been at work as a
switchman for two months, and the company had in force during
that time a rule that no one not at the time connected with its opera
tion should board a switch engine. He had been given a book of rules
on entering the employment, but it was in a foreign language which
he could not read, and on his returning it he was told that there were
none on hand in English, but that one would be furnished to him later.
He was in the office several times, but was not given a book, nor did
he ask for one. He had not previously ridden on the engine going
out in the morning, but had done so on several occasions at night.
The board found that he received his injuries by an accident arising
out of and in the course of the employment, and that it was not due
TEXT AND SU M M ARIES OF DECISIONS.
253
to his own willful misconduct; and it awarded him compensation
for 125 weeks at $11.06 per week. The court reversed the award
and ordered a rehearing. Judge Caldwell delivered the opinion, and
first pointed out that, while it was proper for the board to state its
conclusions as to whether the injury was an accident, whether it arose
out of and in the course of the employment, and whether it was the
result of willful misconduct, these were matters involving conclusions
of law and were reviewable by the court, and such findings should not
be upheld unless supported by the findings of ultimate fact. It was
agreed that the injury was the result of an accident in the course of
the employment, but the court held that under the facts as found it
did not arise out of the employment, Judge Caldwell saying on this
point:
In the case at bar we are impressed that the accident arose from a
peril added by the conduct of the appellee; that the act of attempting
to get on the engine in motion while proceeding to the time clock
was not reasonably incidental to his employment, but rather was an
act done purely for his own convenience. In our judgment the facts
do not present a situation wherein the employee negligently per
formed a duty, or was guilty of negligence in the performance of a
duty, but rather a case wherein he attempted unnecessarily to do a
perilous act, not reasonably incident to his employment. We there
fore conclude, under the fmding, that the accident did not arise out
of the employment.
W orkm en’s Compensation— In ju r y by Negligence o f Third
P a rty — Deduction o f Amounts Paid by A ssailan ts Under Order
in Crim inal Proceedings— Dietz v. Solomonwitz et al., Supreme
Court o f New York, Appellate Division , Third Department ( Sept•
13, 1917), 166 New York Supplement, page 81ft.— Charles B. Dietz
was a paper hanger employed by Harry Solomonwitz. While thus
at work in April, 1916, he was told by two members of a rival labor
union that there was a strike upon the work and was asked to quit.
When he refused to do so, the men assaulted him, inflicting injuries
from which he had not sufficiently recovered to be able to work up to
August 14, 1916. On that date an award was made to him. by the
industrial commission, he having in his proceeding for compensation
expressed his election to take compensation rather than any dam
ages obtainable from any person, and assigned his right to any such
damages to the person or institution who should be liable for com
pensation. The criminal court which tried the assailants sentenced
them to terms of imprisonment, but suspended the sentences and
paroled them on' condition not only of good behavior, but of pay
ment by them to Dietz of $100 immediately and $15 per week during
his disability. This weekly payment was the same as the amount of
weekly compensation awarded to Dietz to run from May 8 to August
254
DECISIONS OF COURTS AFFECTIN G LABOR.
14, 1916, and for such further period as might be determined on a
later hearing. The industrial commission decided that the employer
and insurance carrier were entitled to no credit for the amounts paid
by the parties responsible for the injury; but the court held that
these amounts should be deducted from the compensation. In con
cluding the opinion written by him Judge Lyon, for the court, said:
The provision of section 29 requiring the employer to contribute
only the deficiency should the employee elect to proceed against the
wrongdoer impliedly requires the application in reduction of the
employer’s liability of any amounts received from the third party.
The effect of the acceptance of these payments by the claimant was
to correspondingly reduce the liability of the employer to the claim
ant. Hence the award should have been only for the balance which
existed up to the time the award was ‘made.
W orkm en’s Compensation— I n j u r y b y Negligence of Third
Remedy— Agreement Between Widow, Em
a s to Suit— Detloff v. Hammond, Standish &
P a r t y — E lectio n of
pl o y e r , a n d I n s u r e r
Co., Supreme Court of Michigan (Mar. 29, 1917), 161 Northwestern
Reporter , page 91$.— Joseph Detloff was killed July 7, 1914, while
driving a milk wagon as an employee of the Detroit Creamery Co.,
by a collision with a motor truck of Hammond, Standish & Co.,
claimed to be due to the negligence of the truck driver. His widow,
as administrator, sued the latter company and recovered judgment
in the amount of $10,000. The defendant appealed and set up a
contract, evidence as to which had been rejected at the trial. The
widow, the creamery company, and its insurer were the parties to
this contract, and under it the widow was to sue the third party,
and if she recovered $3,000 or more was to receive no compensation,
while otherwise the deficit between the amount recovered and $3,000
was to be made up to her. This agreement was not filed with the
industrial accident commission nor approved by it. The defendant
in the suit claimed that the agreement constituted an election of the
compensation remedy. The court, however, held that the contract
was void, and the bringing of the suit was the only effective elec
tion which had been made, and affirmed the judgment of the court
below. Judge Stone delivered the opinion and in the concluding
portion said:
A contract is void if it contemplates acts that are illegal or con
trary to public policy. A contract which in its execution contra
venes the policy and spirit of a statute is equally void as if made
against its positive provisions. [Cases cited.]
We are impressed with the claim that the agreement in question
was void ab initio, because opposed to public policy and express
statute. I f not void in the beginning, it became so when this suit
was instituted, and therefore was immaterial and irrelevant to the
issue upon the trial.
255
TEXT AND SUMMARIES- OF DECISIONS.
W orkm en’s Compensation— In ju r y by Negligence o f Third
P a rty — Lim itation of Recovery— C o n stitu tion ality o f S ta tu te —
Hazardous Employment— Storage— Friebel v. Chicago City Ry. Co.
et al., Supreme Court of Illinois (Oct. 23,1917), 117 Northeastern R e
porter, page 467.— Karl Friebel was injured, as was claimed, by the
negligence of the company named and other street railway companies
operating a line, one of the cars on which injured him while he was
driving a truck for his employer, the Hartman Furniture
Carpet
Co. He sued the railway companies, which defended in part on the
ground that the suit was barred by section 29 of the workmen’s com
pensation law. This section provides for the recovery of compen
sation from the employer even when the injury is caused by the neg
ligence of third parties, provided all three parties are under the
compensation act— the employer being subrogated to the rights of
the employee to the extent of recovery from the third party of the
amount paid as compensation. Judgment was for the defendants in
the circuit court of Cook County, and this was affirmed by the su
preme court. It was first held that the furniture company, which
maintained a warehouse for the storage of its furniture, was engaged
in the operating of a warehouse, listed as one of the hazardous oc
cupations to which the law applies, and that the employee, who as
sisted in loading the truck at the warehouse and unloading it at the
houses of its customers, was engaged in a part of this enterprise.
The injury was held to have arisen out o f and in the course of the
employment, although it happened on the return from the last de
livery of goods for the day. Interpreting section 29, the court held
that the employee could receive, in cases like the present, where em
ployer, employee, and third party were all under the act, only the
amount provided by the compensation act for the injury received;
that the employer is the one directly liable for compensation and
that the employee can not maintain an action against the third party.
As thus construed, the section was held to be valid, as against a con
tention that the employers have not given up anything in return for
the benefits they receive under the section, nor do the employees re
ceive any benefit under it to compensate for the limitation of the
amount recoverable. It is pointed out that the employer may be
liable to pay compensation for injury caused by a third person in
the course of the employment, when nothing can be recovered by any
one from the third person, and that the employee is not required in
such cases to depend wholly on the solvency of his employer, nor, on
the other hand, on a possibility of recovery from the third party,
uncertain because it may not be possible to prove negligence. The
opinion is expressed that if, after compensation has been awarded,
the employer should prove to be insolvent and should refuse to bring
suit for the benefit of the employee, the latter might do so in his
&
256
DECISIONS OF COURTS AFFECTIN G LABOR.
employer’s name. In conclusion the statement is made that the sec
tion is valid, and a final objection relating to the insufficiency of the
recovery is removed, by Judge Duncan as spokesman for the court,
in the following words:
We do not think there is any single objection raised to the con
stitutionality or validity of this section of the statute that can be
sustained. It may be true, as appellant insists, that under the com
pensation act he will not receive sufficient compensation to adequately
compensate him for his real damages. We think it is certainly true
in this case. The answer to that is, that he had the option, before he
was injured, to have elected not to be bound by the compensation
act. The fact that it has happened that he has chosen the course that
realizes him the least money must be charged to his unfortunate
judgment or choice. It is no ground for invalidating the statute.
In case he should finally fail to recover in his common-law action
against the party causing his injury—i. e., in case his employer
should be unable to prove that ap'pellant has any right of action
against appellees—his action that brought him under the compensa
tion act will result in a pure benefit to the amount of compensation
he will receive from his employer.
We are clearly of the opinion that section 29 is legal and valid,
and that the court was right in holding, under the facts in this case,
that appellant has no right of action against appellees.
W orkm en’s Compensation— In ju r y by Negligence of Third
P a rty — Subrogation of Employer to R ights— Am ount of Recovert— Otis Elevator Co. v. Miller <& Paine , United States Circuit
Court o f Appeals , Eighth Circuit (Feb.
1917),
Federal Re
porter, page 376.— Harry D. Pettengill, who was an employee of
&
Miller
Paine, a corporation, and was engaged in their service in
the construction of a building in the State of Nebraska, was killed
on September 14, 1915. He having left a dependent wife and child,
his administrator proceeded for the purpose of securing compensa
tion under the State law, and an award was made. The employing
company then brought action against the Otis Elevator Co., to whose
negligence the injury was claimed to have been due, and judgment
was recovered for $10,000, a sum larger than the total amount of
compensation to be paid by the employer, the excess, under the law,
to go to the dependents of the deceased employee. The elevator com
pany contended that it should have been permitted to show that the
negligence of the employer concurred with its own in causing the
injury, in which case, it claimed, there could be no recovery by the
employer from the elevator company. This point of view was held
not to be tenable, and other issues were decided in favor of the em
ployer. Judgment in favor of the employer was therefore sustained.
Extracts from the opinion delivered by Justice Carland are as
follows:
TEXT AND SU M M ARIES OF DECISIONS.
257
The liability of Miller & Paine was positively fixed by law, regard
less of the question of negligence on its part. The law then pro
vided that Miller & Paine should be subrogated to the rights of the
dependents of Pettengill against the elevator company, providing it
was the negligence of the elevator company that caused his death.
To construe section 109 as not permitting Miller & Paine to prosecute
an action for the benefit of itself and the dependents of Pettengill,
if the negligence of Miller & Paine concurred with that of the ele
vator company in causing his death, would destroy the section. The
object of the section, as clearly appears from its language, was to
permit the employer to reimburse himself by an action against the
party whose negligence caused the death and also to allow the de
pendents of the deceased employee to recover a sum over and above
the amount for which the employer was absolutely liable regardless
of negligence, if the evidence should permit such recovery.
The action brought by Miller & Paine against the elevator com
pany under its right of subrogation must be treated, so far as the
right to recover is concerned, just as if the action had been brought
by the administrator of the estate of Pettengill. To decide that the
concurring negligence of Miller & Paine could defe'at such an action
would not only permit one wrongdoer to plead the fault of a joint
wrongdoer in defense, but would, as heretofore said, destroy the
right of subrogation granted by the statute. The liability to com
pensate an employee, imposed by law upon the employer regardless
,of negligence, is in lieu of his liability for all other reasons. The
trial court did not err in its rulings in reference to this proposition.
The second proposition advanced by counsel for the elevator com
pany is based on the fact that the elevator company at the trial
below offered to show that the liability of Miller & Paine under the
compensation act had been insured by an insurance company
licensed to do such business in the State of Nebraska, and that there
fore, as Miller & Paine would suffer no damage, it could not recover
any damages against the elevator company. But this argument in
volves a misconception of the action brought by Miller & Paine.
That action was to be tried just the same as if it had been brought by
the administrator of the estate of Pettengill. I f nothing had been
paid by Miller & Paine, or other person for them, the whole recovery
w^ould go to the dependents of Pettengill. Just how the amount re
covered in this action shall be divided as between the dependents,
Miller & Paine, or the insurance company, is no concern of the ele
vator company.
Some suggestion has been made in reference to the excess of the
recovery* in this action over and above the compensation fixed by the
statute being considered as an advance payment upon the amount
due as compensation from Miller & Paine to the dependents of Pet
tengill. The compensation in this case might be $10 per week for
350 weeks, or a period of about 7 years. Under the statute Miller &
Paine are entitled to deduct from the amount of the recovery in this
action the expense of recovering the same and the amount already
paid for compensation and the expense of last sickness and burial,
the balance to be paid forthwith to the dependents. The law says
this balance shall be treated as an advance payment by Miller &
Paine on account of any future installments of compensation. We
64919°— 18—Bull. 246------ 17
258
DECISIONS OF COURTS AFFECTING LABOR.
think a fair construction of the law is that this excess, in so far as
the unpaid installments are concerned, shall be considered as an ad
vance payment; but where, as in this case, the recovery exceeds the
whole compensation to be paid, the law by its language did not
intend to limit the recovery allowed by the first clause of section 109,
which specifically provides that the amount of recovery shall not be
limited to the amount payable as compensation.
W orkm en’s Compensation— In ju r y by Negligence o f Third
P a rty — Suits— Parties— Book v. City of Henderson Court of
,
Appeals o f Kentucky (Oct. 2, 1917), 197 Southwestern Reporter ,
page 4^9.— H . H . Book, a lineman for the Henderson Telephone
&
Telegraph Co., sued the city of Henderson for damages for its
alleged negligence in failing to properly insulate an electric light
wire. W hile he was engaged in work on the telephone wires one of
them came in contact with the electric light wire, and the resulting
shock threw him 20 feet from the pole upon which he was working,
and severe and permanent injuries were inflicted. He had, before
bringing this suit, recovered compensation from the company, and
he made the company a party to the present suit. The statute pro
vides for subrogation of the employer to the employee’s rights to the
extent of the amount of compensation, if that much is recovered. In
the present decision it is held that the employee is not limited in his
recovery to the amount paid him as compensation, but may recover
actual damages as in other liability suits, the amount of the compen
sation paid to be, of course, for the benefit of the employer. It was
said that the employer was properly made a party to the suit, but that
in order to secure his recovery from the third party he must inter
plead and set up his cause of action. I f this is done, it is the duty of
the court to apportion the amount awarded between the employer and
employee according to their rights therein; and if the employer
should not seek to recover, the defendant would still be entitled to
credit upon the judgment for the amount paid as compensation.
A circuit court had dismissed the petition in the present case, but the
court of appeals remanded the case for further proceedings in accord
ance with the opinion.
W
orkmen ’ s
tory, etc.—
C ompensation— I njury “ on , i n , or about ” a F ac
T ruck *Used for D elivery— Hicks v. Swift de Co.,
Supreme Court of Kansas (Nov. 10, 1917), 168 Pacific Reporter,
page 905.— Oliver E. Hicks was awarded compensation by the dis
trict court of Wyandotte county for an injury received in the employ
of the company named, and the company appealed from the judg
ment. Hicks was driver of a truck used in delivering meat, and was
injured by a box of meat falling upon him while he was attempting
T E X T AND SU M M ARIES OF DECISIONS.
259
to make a delivery in Kansas City, Mo., at a place about 12 miles
from the packing house. The company contested the judgment on
the ground that the injury was not received in Kansas, where the
packing house is located, and under whose compensation act and in
whose courts he proceeded; and, secondly, that the accident did not
occur 44on, in, or about ” a factory or one of the other establishments
mentioned in the act. The court held that it was not necessary to
discuss the first point, as the second was well taken, and the judg
ment was reversed. Judge Mason in the opinion said:
No recovery can be had by the plaintiff in this proceeding unless
he was injured 44on, in, or about ” the factory or packing house of the
defendant. That the word 44about ” is one of locality and not of
mere association or connection has been determined in a recent case.
An effort is made to bring the case within the statute, as it has
already been construed, by the argument that the truck which the
plaintiff was driving, being a portion of the equipment used in con
ducting the defendant’s business, was itself a part of the factory. To
support this view expressions are quoted tending to show that the
truck was a part of the plant. The term 44plant,” however, is quite
different from 64factory.” It may well apply to appliances used in
carrying on the business, wherever situated. 44Factory ” by the
statute is restricted to the premises where (mechanical) power is
used in manufacturing or preparing articles for sale. The truck
was an instrument for the distribution of the finished product, rather
than of its manufacture or preparation. While in charge of the
truck, after leaving the premises where the meat had been prepared,
the plaintiff was n o t44within the danger zone necessarily created by
those peculiar hazards to workmen wThich inhere in the business of
operating ” the packing house.
W orkmen ’ s C ompensation— I nterstate C ommerce— E lection of
R emedies— Jackson v. Industrial Board o f Illinois et al., Supreme
Court of Illinois {Dec. 5, 1917), 117 Northeastern Reporter , page
705.— W illiam J. Jackson, receiver of a railroad company, in the
employment of whom Nathaniel Raney was killed, 'sought by
writ of error to overthrow an award made by arbitrators to the
administratrix of Raney and affirmed by the industrial board and
by the circuit court of Vermillion County. Raney’s work was the
painting of railway bridges, towers, and other structures. A t the
time he was injured he was on his way with a 44speeder ” or motor
car to a work train to get a supply of paint to use in painting an
interlocking tower. He attempted to remove the speeder from the
track to allow an interstate train to pass and was killed by the train.
The administratrix first gave notice of a claim under the workmen’s
compensation act, and then sued under the Federal Employers’ Lia
bility Act. In that suit the receiver demurred to the complaint on
the ground that the employee was not engaged in interstate com
260
DECISIONS OF COURTS AFFECTIN G LABOR.
merce, and the demurrer was sustained. The administratrix then
prosecuted her claim under the compensation provisions, and an
award was made in the sum of $573.20.
The receiver contended that the administratrix was estopped
from claiming compensation by her election to sue under the liability
act, but this was overruled by the court, Judge Duncan, who deliv
ered the opinion, saying on this point:
The doctrine does not apply to concurrent remedies that are not
inconsistent with each other and has no application to an election
between suits based upon different statutes. Where one has a right
of action at common law and also under the statute for the same
injury the bringing of either of said suits is not a bar to the other,
and particularly where no recovery has been had under the one or
the other.
The court held, on the other hand, that the employer was now
estopped from defending on the ground that the employment was in
interstate commerce, saying:
The court by its judgment in that case determined one question of
fact that necessarily defeated the administratrix in that suit—i. e.,
that the deceased was not engaged in interstate commerce, and for
that reason she could not maintain her suit under the Federal Em
ployers’ Liability Act. That judgment completely estops plaintiff in
error, as well as the administratrix, from contending in any other
suit between the same parties that the deceased was injured while
employed by the plaintiff in error in interstate commerce.
Finally the court held that it is the employment and not the act
of the employee at the time of the injury which determines
whether or not an injury is within the purview of the liability act,
and that the fact that the employee was removing an obstruction to
interstate commerce at the moment did not prevent the application
of compensation provisions. The award was therefore affirmed.
W orkm en’s Compensation — I n t e r s t a t e Commerce — In ju r y
W ith o u t Negligence of Employer — F e d e r a l a n d Sta te Statutes—
New York Central R. Co. v. 'Winfield, Supreme Court of the United
States (May 21, 1917), 37 Supreme Court Reporter, page 546.—
James Winfield was tamping ties upon the track of the company
named, when a stone flew up and destroyed the sight of one of his
eyes, for which injury he claimed compensation under the New York
law. There was no dispute that the employment was in interstate
commerce, so that if the employer had been negligent the employee
would have been not only entitled to seek a remedy under the Federal
Employers’ Liability Act, but confined to such remedy. The ma
jority of the New York Supreme Court, Appellate Division, held
that, no negligence being alleged, the award of compensation made
TEXT AND SU M M ARIES OF DECISIONS.
261
to him by the State commission should stand. Its decision was re
ported in 153 N. Y. Supp. 499, and noted in Bui. No. 189, p. 256.
This judgment was affirmed, by the court of appeals of the State,
and an appeal was taken to the United States Supreme Court,
which, two judges dissenting, reversed the judgment, holding that the
Employers’ Liability Act is exclusive in the entire field of injuries
to railroad employees engaged in interstate commerce. Mr. Justice
Van Devanter delivered the majority opinion, which, after stating
the facts, proceeds as follows:
It is settled that under the commerce clause of the Constitution
Congress may regulate the obligation of common carriers and the
rights of their employees arising out of injuries sustained by the
latter where both are engaged in interstate commerce; and it also
is settled that when Congress acts upon the subject all State laws
covering the same field are necessarily superseded by reason of the
supremacy of the national authority. Congress acted upon the sub
ject in passing the Employers’ Liability Act, and the extent to which
that act covers the field is the point in controversy. The State de
cisions upon the point are conflicting. The New York court in the
present case and the New Jersey court in Winfield v. Erie E. Co.,
88 N. J. L.. 619, 96 Atl. 394 [Bui. No. 224, p. 330], hold that the act
relates only to injuries resulting from negligence, while the Califor
nia court in Smith v. Industrial Accident Commission, 26 Cal. App.
560, 147 Pac. 600 [Bui. No. 189, p. 98], and the Illinois court in
Staley v. Illinois C. E. Co., 268 111. 356, 109 N. E. 342 [Bui. No. 189.
p. 253], hold that it has a broader scope and makes negligence a test—■
not of the applicability of the act, but of the carrier’s duty or obliga
tion to respond pecuniarily for the injury.
In our opinion the latter view is right and the other wrong.
Whether and in what circumstances railroad companies engaging
in interstate commerce shall be required to compensate their em
ployees in such commerce for injuries sustained therein are matters
in which the Nation as a whole is interested, and there are weighty
considerations why the controlling law should be uniform and not
change at every State line. Baltimore & O. E. Co. v. Baugh, 149
U. S. 368, 378, 379, 13 Sup. Ct. 914. It was largely in recognition
of this that the Employers’ Liability Act was enacted by Congress.
Second Employers’ Liability Cases (Mondow v. New York, N. H. &
H. E. Co.), 223 U. S. 1, 51, 32 Sup Ct. 169 [Bui. No. 98, p. 470].
It Avas drafted and passed shortly following a message from the
President advocating an adequate national, law covering all such
injuries and leaving to the action of the several States only the in
juries occurring in intrastate employment. (Cong. Eec., 60th Cong.,
1st sess., 1347.) And the reports of the congressional committees hav
ing the bill in charge disclose, without any uncertainty, that it was
intended to be very comprehensive, to withdraw all injuries to rail
road employees in interstate commerce from the operation of varying
State laws, and to apply to them a national law having a uniform
operation throughout all the States. (House Eeport No. 1386 and
Senate Eeport No. 460, 60th Cong., 1st sess.)
262
DECISIONS OF COURTS AFFECTIN G LABOR.
True, the act does not require the carrier to respond for injuries
occurring where it is not chargeable with negligence, but this is be
cause Congress, in its discretion, acted upon the principle that com
pensation should be exacted from the carrier where, and only where,
the injury results from negligence imputable to it. Every part of the
act conforms to this principle, and no part points to any purpose
to leave the States free to require compensation where the act with
holds it.
That the act is comprehensive and also exclusive is distinctly
recognized in repeated decisions of this court.
Only by disturbing the uniformity which the act is designed to
secure and by departing from the principle which it is intended to
enforce can the several States require such carriers to compensate
their employees for injuries in interstate commerce occurring without
negligence. But no State is at liberty thus to interfere with the
operation of a law of Congress.
It follows that, in the present case, the award under the State
law can not be sustained.
Mr. Justice Brandeis wrote the dissenting opinion, in which Mr.
Justice Clarke concurred. The first part of this opinion is as
follows:
I dissent from the opinion of the court; and the importance of the
question involved induces me to state the reasons.
By the Employers’ Liability Act of April 22, 1908, Congress pro
vided, in substance, that railroads engaged in interstate commerce
shall be liable in damages for their negligence resulting in injury
or death of employees while so engaged. The majority of the court
now holds that by so doing Congress manifested its will to cover the
whole field of compensation or relief for injuries suffered by rail
road companies engaged in interstate commerce; or, at least, the
whole field of obligation of carriers relating thereto; and that it
thereby withdrew the subject wholly from the domain of State
action. In other words, the majority of the court declares that
Congress, by passing the Employers’ Liability Act, prohibited States
from including within the protection of their general workmen’s
compensation laws employees who, without fault on the railroad’s
part, are injured or killed while engaged in interstate commerce;
although Congress itself offered them no protection. That Congress
could have done this is clear. The question presented is : Has Con
gress done so? Has Congress so willed?
The workmen’s compensation law of New York here in question
has been declared by this court to be among those which “ bear so
close a relation to the protection of the lives and safety of those con
cerned that they properly may be regarded as coming within the
category of police regulations.” (New York C. R. Co. v. White, 243
U. S. 188, 207, 37 Sup. Ct. 247 [Bui. No. 224, p. 232].) And this court
has definitely formulated the rules which should govern in determin
ing when a Federal statute regulating commerce will be held to
supersede State legislation in the exercise of the police power. These
rules are:
1.
“ In conferring upon Congress the regulation of commerce, it
was never intended to cut the States off from legislating on all sub
jects relating to the health, life, and safety of their citizens, though
TE X T AND SU M M ARIES OF DECISIONS.
263
the legislation might indirectly affect the commerce of the country.”
(Sherlock v. Ailing, 93 U. S. 99, 103.)
2. 44I f the purpose of the act can not otherwise be accomplished—
if its operation within its chosen field else must be frustrated and
its provisions be refused their natural effect—the State law must
yield to regulation of Congress within the sphere of its delegated
power. * * *
44But the intent to supersede the exercise by the State of its police
power as to matters not covered by the Federal legislation is not to
be inferred from the mere fact that Congress has seen fit to circum
scribe its regulation and to occupy a limited field. In other words,
such intent is not to be implied unless the act of Congress, fairly
interpreted, is in actual conflict with the law of the State.” (Savage
•o. Jones, 225 U. S. 501, 533, 32 Sup. Ct. 715.)
3. 44The question must, of course, be determined with reference to
the settled rule that a statute enacted in execution of a reserved
power of the State is not to be regarded as inconsistent with an act
of Congress passed in the execution of a clear power under the Con
stitution, unless the repugnance or conflict is so direct and positive
that the two acts can not be reconciled or stand together.” (Missouri,
K. & T. E. Co. v. Haber, 169 U. S. 613, 623, 18 Sup. Ct. 488.)
Guided by these rules and the cases in which they have been
applied, we endeavor to determine whether Congress, in enacting the
Employers’ Liability Act, intended to prevent States from entering
the specific field of compensation for injuries to employees arising
without fault on the railroad’s part, for which Congress made no
provision.
To ascertain the intent we must look, of course, first at what
Congress has said; then at the action it has taken, or omitted to take.
We look at the words of the statute to see whether Congress has used
any which in terms express that will. We inquire whether, without
the use of explicit words, that will is expressed in specific action
taken. For Congress must be presumed to have intended the neces
sary consequences of its action. And if we find that its will is not
expressed, or is not clearly expressed, either in words or by specific
action, we should look at the circumstances under which the Employ
ers’ Liability Act was passed; look, on the one hand, at its origin,
scope, and purpose; and, on the other, at the nature, methods, and
means of State workmen’s compensation laws. If the will is not
clearly expressed in words, we must consider all these in order to
determine what Congress intended.
First. As to words used: The act contains no words expressing a
will by Congress to cover the whole field of compensation or relief
for injuries received by or for death of such employees while engaged
in interstate commerce; or the whole field of carriers’ obligations in
relation thereto. The language of that act, so far as it indicates any
thing in this respect, points to just the contrary. For its title is:
44An act relative to the liability of common carriers by railroad in
certain cases.”
Second. As to specific action taken: The power exercised by Con
gress is not such that, when exercised, it necessarily excludes the State
action here under consideration. It would obviously have been pos
sible for Congress to provide in terms, that wherever such injuries
or death result from the railroad’s negligence, the remedy should be
264
DECISIONS OF COURTS AFFECTIN G LABOR.
sought by action for damages; and wherever injury or death results
from causes other than the railroad’s negligence, compensation may
be sought under the workmen’s compensation laws of the States.
Between the Federal and the State law there would be no conflict
whatsoever. They would, on the contrary, be complementary.
Third. As to origin, purpose, and scope of the Employers’ Lia
bility Act and the nature, methods, and means of State workmen’s
compensation laws: The facts are of common knowledge. Do they
manifest that, by entering upon one section of the field of indemnity
or relief for injuries or death suffered by employees engaged in inter
state commerce, Congress purposed to occupy the whole field ?
Mr. Justice Brandeis then discusses under separate heads the ori
gin, scope, and purpose of the Federal Employers’ Liability Act, and
the nature, method, and means of the workmen’s compensation laws.
The question of whether or not the Federal and State legislation
conflict is then taken up, as follows:
The practical difficulty of determining in a particular case, accord
ing to presence or absence of railroad fault, whether indemnity is
to be sought under the Federal Employers’ Liability Act or under a
State compensation law, affords, of course, no reason for imputing
to Congress the will to deny to the States power to afford relief
through such a system. The difficulty and uncertainty is, at worst,
no greater than that which now exists in so many cases where it is
necessary to determine whether the employee was, at the time of the
accident, engaged in- interstate or intrastate commerce. Expedients
for minimizing inherent difficulties will doubtless be found by ex
perience. All the difficulties may conceivably be overcome in prac
tice. Or they may prove so great as to lead Congress to repeal the
Federal Employers’ Liability Act and leave to the States (which
alone can deal comprehensively with it) the whole subject of in
demnity and compensation for injuries to employees, whether en
gaged in interstate or intrastate commerce, and whether such injuries
arise from negligence or without fault of the employer.
We are admonished also by another weighty consideration not to
impute to Congress the will to deny to the States this power. The
subject of compensation for accidents in industry is one peculiarly
appropriate for State legislation. There must, necessarily, be great
diversity in the conditions of living and in the needs of the injured
and of his dependents, according to whether they reside in one or the
other of our States and Territories, so widely extended. In a large
majority of instances they reside in the State in which the accident
occurs. Though the principle that compensation should be made, or
relief given, is of universal application, the great diversity of con
ditions in the different sections of the United States may, in a wise
application of the principle, call for differences between States in
the amount and method of compensation, the periods in which pay
ment shall be made, and the methods and means by which the funds
shall be raised and distributed. The field of compensation for in
juries appears to be one in which uniformity is not desirable, or at
least not essential to the public welfare.
The contention that Congress has, by legislating on one branch of
a subject relative to interstate commerce, preempted the whole field
TEXT A STD SU M M ARIES OF DECISIONS.
265
has been made often in this court; and, as the cases above cited show,
has been repeatedly rejected in cases where the will of Congress to
leave the balance of the field open to State action was far less clear
than under the circumstances here considered. Tested by those de
cisions and by rules which this court has framed for its guidance, I
am of opinion, as was said in Atlantic Coast Line v. Georgia, 234
U. S. 280, 294, 34 Sup. Ct, 829 [Bui. No. 169, p. 182], that “ the in
tent to supersede the exercise of the State police power with respect
to this subject can not be inferred from the restricted action which
thus far has been taken.” The field covered by Congress was a lim
ited field of the carrier’s liability for negligence, not the whole
field of the carrier’s obligation arising from accidents. I find no
justification for imputing to Congress the will to deny to a large
class of persons engaged in a necessarily hazardous occupation and
otherwise unprovided for, the protection afforded by beneficent stat
utes enacted in the long-deferred performance of an insistent duty
and in a field peculiarly appropriate for State action.
W orkm en’s Compensation — In terstate
Commerce — In ju r y
W ith o u t Negligence o f Employer— Federal a n d State Statutes—
Erie R. Co. v. 'Winfield, Supreme Court of the United States ( May 21,
1917), 37 Supreme Court Reporter , page 556.— Am y Winfield pro
ceeded for compensation under the law of New Jersey for the
death *of her husband, employed as engineer of a switch engine.
The cars handled contained freight, some of them interstate, some
intrastate, and some both, but the accident occurred while he was
leaving the yard after completing his day’s work. It was assumed
by both parties that there was no negligence of the company causing
the injury. The court of common pleas of Hudson County, New
Jersey, rendered judgment in her favor, and the supreme court and
the court of appeals of the State entered successive reversals, the final
result being that the award stood. (See Bui. No. 224, p. 330.) This
case contains a point additional to the one settled in the New York
case above— New York Central Railway Co. v. Winfield— involving
the scope of Federal and State laws as to injuries on railroads. The
same two justices dissented as in that case. Mr. Justice Van De van ter
delivered the opinion, holding that compensation could not be granted
under the circumstances of the case, and spoke as follows:
The questions presented for decision are these: First, whether the
Federal act is regulative of the carrier’s liability or obligation in
every instance of the injury or death of one of its employees in inter
state commerce, or only in those instances where there is causal negli
gence for which the carrier is responsible. Second, whether the facts
proved sustain the conclusion that the deceased was employed in inter
state commerce at the time of the injury. Third, whether, by reason
of the State statute, the carrier became bound contractually to make
compensation in this instance, even though it came within the Fed
eral act.
266
DECISIONS OF COURTS AFFECTIN G LABOR.
The first question is fully considered in New York C. E. Co. v.
Winfield, the opinion in which has been just announced, 244 U. S. 147,
37 Sup. Ct. 546 [see p. 260], and it suffices here to say that, for the
reasons there given, we are of opinion that the Federal act proceeds
upon the principle which regards negligence as the basis of the duty
to make compensation, and excludes the existence of such a duty in
the absence of negligence, and that Congress intended the act to be as
comprehensive of those instances in which it excludes liability as of
those in which liability is imposed. It establishes a rule or regulation
which is intended to operate uniformly in all the States, as respects
interstate commerce, and in that field it is both paramount and ex
clusive.
The second question must be given an affirmative answer. In
leaving the carrier’s yard at the close of his day’s work the deceased
was but discharging a duty of his employment. (See North Carolina
E. Co. v. Zachary, 232 TJ. S. 248, 260, 34 Sup. Ct. 305 [Bui. No. 169,
p. 83].) Like his trip through the yard to his engine in the morning,
it was a necessary incident of his day’s work, and partook of the
character of that work as a whole, for it was no more an incident of
one part than of another. His day’s work was in both interstate
and intrastate commerce, and so, when he was leaving the yard at the
time of the injury, his employment was in both. That he was em
ployed in interstate commerce is therefore plain, and that his em
ployment also extended to intrastate commerce is, for present pur
poses, of no importance.
The third question requires some notice of the New Jersey statute.
It consists of two parts. One conforms to the principle which re
gards negligence as the basis of liability, and excludes liability in the
absence of negligence. In its details, however, that part differs ma
terially from the Federal act. The other conforms to a different
principle which rejects negligence as a basis of liability and requires
compensation to be made by the employer whenever the injury or
death of the employee is an incident of the service in which he is em
ployed. This part is described as “ elective,” and is not to be applied
unless the employer and the employee shall have agreed, expressly or
impliedly, to be bound thereby and to surrender “ their rights to any
other method, form, or amount of compensation or determination
thereof.” Eespecting the mode of manifesting such an agreement or
the contrary, it is provided that every contract of hiring “ shall be
presumed to have been made” with reference to this part of the
statute, and, unless the contract or a notice from one party to the
other contain “ an express statement in writing ” to the contrary, it
“ shall be presumed ” that the parties “ have agreed to be bound ” by
this part-of the statute. There was no express agreement in this
instance and there is no basis for regarding the carrier as in any
way bound by this part of the statute, save as it provides that an
agreement to be bound by it shall be presumed in the absence of a
declaration to the contrary. But such a presumption can not be in
dulged here, and this for the reason that by the Federal act the en
tire subject, as respects carriers by railroad and their employees in
interstate commerce, was taken without the reach of State laws. It is
beyond the power of any State to interfere with the operation of that
act, either by putting the carriers and their employees to an election
between its provisions and those of a State statute, or by imputing
TE X T A N D SU M M ARIES 01* DECISIONS.
267
such an election to them by means of a statutory presumption. The
third question, therefore, must be answered in the negative.
It follows that the court of errors and appeals erred in failing to
give controlling effect to the Federal act.
W o r k m e n ’ s Compensation — In terstate Commerce — I n ju r y
W ith o u t Negligence or Employer— Federal and State S ta t
utes— Rounsaville v. Central R. R. of New Jersey Court of Errors
,
and Appeals of New Jersey (June 18, 1917), 101 Atlantic Reporter,
page 182.— George A . Rounsaville brought proceedings to obtain
compensation for injuries suffered by him as an employee of the
company named. The court of common pleas of Warren County
held that the remedy was not under the compensation law, but under
the Federal Employers’ Liability Act of 1908, 1910. Its judgment
was reversed by the New Jersey Supreme Court (87 N. J. Law 371,
94 Atl. 392; Bui. No. 189, p. 258), which held that, there being no
negligence alleged, proved, or admitted on the part of the railroad
company, the State courts had jurisdiction under the compensation
law. In the meantime the case of Winfield v. Erie R. R. Co., aris
ing in the same State and identical in principle with the Rounsaville
case, had been decided by the Supreme Court of the United States (see
p. 265) ; and in the present decision the court of errors and appeals,
since the State courts are bound by the decisions of the Supreme
Court in matters involving the Federal Constitution and statutes,
reversed the judgment of the State supreme court and affirmed that
of the court of common pleas, the claimant thus failing to secure any
compensation for his injuries.
W
W
o r k m e n ’s
eeds o n
R
C o m p e n s a t io n — I
a il r o a d
R ig h t
of
nterstate
C om m erce — M
o w in g
W a y — Plass v. Central New England
R y . Co., Court of Appeals of New York (Nov. IS, 1917), 117 North
eastern Reporter, page 952.—Jane Plass was a claimant for compen
sation for the death of her husband, a section laborer for the railway
company named. He contracted ivy poisoning through cutting
grass and weeds along the right of way—which work was a part of
his duty—and this was followed by blood poisoning, bronchitis, con
gestion of the lungs, and death. The decision of the supreme court,
which held that such poisoning was an accident, and affirmed an
award to the widow, is reported in 155 N. Y. Supp. 854, and noted
in Bui. No. 189, p. 203. On further appeal the court of appeals re
versed the decree and ordered a new hearing, to give an opportunity
for a determination by the industrial commission as to whether the
employee was engaged in interstate commerce at the time of his
268
DECISIONS OF COURTS AFFECTIN G LABOR.
injury, holding that such a determination was necessary.
Collin, for the court, said:
Judge
I f there was any evidence that the work contributed to the safety
and integrity of the railroad, the work was connected with and a
part of interstate commerce by the railroad [quoting from the
Pedersen Case].
I f the deceased was engaged in services pertaining to and a part
of interstate commerce, the claimant was not entitled to an award.
N. Y. Central R. R. Co. v. Winfield, 244 U. S. 147, 37 Sup. Ct. 546
[see p. 260].
A witness on behalf of the employer testified that the object of
the work was the safety of the bridges of the railroad and of the
adjoining property, and to keep fires from spreading; if the grass
and weeds caught fire it might destroy parts of the railroad, and
the weeds and grass, not cut and removed, would to a certain extent
destroy the track ; would come upon the track and cause the engines
to slip. This testimony could not be wholly disregarded by the com
mission. It constituted some evidence, demanding a determination,
that the work of the deceased was or was not within interstate com
merce. The employer, by the evidence, objections, request to find,
and argument, directed the attention of the commission to its claim
that an award could not be made because the deceased was engaged
in interstate commerce. It was necessary to a lawful hearing and
award that the commission should pass, under the evidence, upon the
nature of the employment in which the deceased received his in
juries.
W orkmen ’ s C ompensation— I nterstate C ommerce— P lumber i n
M aintenance o f W a t D epartment— Vdimers v. New York Cen
tral R . Co., Supreme Court of New York, Appellate Division, Third
Department (Nov. 14, 1917), 167 Neiv York Supplement, page 426.—
Conrad H . Vollmers having been killed in the employ of the rail
road company named, Ethel H . Vollmers applied for compensation
for herself and children. Vollmers was a plumber employed in the
maintenance of way department of the railroad, and, while repairing
pipes beneath the station at Hillside, he had occasion to cross the
tracks in front of the station, and was struck by an engine and killed.
The industrial commission having made an award to the widow, the
court reversed it and dismissed the claim on the ground that the
employee was engaged in interstate commerce. Judge Woodward,
in the course of the opinion delivered by him, said:
The fact is found that his crossing of the tracks was in connection
with his employment. It seems clear, under the rule prevailing in
the Supreme Court of the United States, that Vollmers was engaged
in the maintenance of an instrumentality of interstate commerce;
he was doing the work necessarily involved in the maintenance of
ways department. The stations actually in use in the carrying on of
interstate commerce are clearly instrumentalities of such commerce,
and it is necessary to their proper maintenance that the plumbing
should be kept in repair. The position of Vollmers was not merely
269
TEX T AND SU M M ARIES OF DECISIONS.
of a plumber called in to do an incidental job; he was in the employ
of a department of the corporation devoted, not to the construction,
but to the maintenance of ways, and this required him to be in and
about the railroad properties generally, doing such repairs as were
needed, whether in the station houses or outside of them. To say
that such a man, identified with a department for the particular
purpose, is not engaged in interstate commerce is to ignore the facts
and the rulings of law made by the courts of last resort, and may
not be sustained.
W
o r k m e n ’s
C o m p e n s a t io n — I n t o x ic a t io n
as
C ause
of
I
njury—
Collins v. Cole, Supreme Court of Rhode Island (Feb. 20, 1917), 99
Atlantic Reporter , page 830.—Nora Collins began proceedings for
compensation for the death of her husband, James Collins, while in
the employ of C . M. Cole. The superior court of Newport County
denied compensation on the ground that the fatal injury was due to
the intoxication of the employee. He was watchman on a dredge,
and went on duty at 6 p. m. On July 7, 1914, the dredge was not at
work on account of rough weather. During the afternoon Collins
drank heavily, and came on duty in such a condition that he had
some one else attend the fires. He rowed back and forth to the shore
two or three times, with some assistance in maintaining the proper
direction, to carry members of the crew, as was his duty. On the
last trip back they brought a quart bottle of whisky, from which he
had two very large drinks. A little later the cook came from the
shore to the dredge, and he and Collins were heard talkin’g about
going to the shore for more whisky. Soon the deck hands heard
shouting, and found the cook struggling in the water and Collins
standing in a very small and unstable skiff, which belonged to a
yacht. This almost immediately tipped over, and in spite of efforts
to save them both men were drowned. The decree denying compensa
tion was affirmed in an opinion by Judge Vincent, who said after
stating the facts:
The petitioner argues that, in order to defeat the petition, the
respondent must prove that the death resulted solely and exclusively
from intoxication while on duty. If the petitioner means by that
that the respondent must exclude every possibility that death might
have resulted otherwise than from intoxication, we can not agree
with her. I f Collins was in an intoxicated condition, that is, a
condition in which he would be unable to look out for his own safety
with that degree of care which a person would otherwise naturally
exercise, and that, while so influenced, he did something which a
person in a normal condition would not be likely to attempt and
which brought about the accident, the trial court would be war
ranted in finding that the accident resulted from the condition into
which he had voluntarily brought himself. We do not think that
the statute requires that every possibility should be excluded before
the evidence becomes sufficient to support the finding that the result
was due to intoxication.
270
DECISIONS OF COURTS AFFECTIN G LABOR.
W orkm en’s Compensation— In tra sta te or In terstate Com
merce— Moving Cars to Storage Tracks to be Iced— Chicago Junc
tion R. Co. v. Industrial Board of Illinois et al., Supreme Court
o f IUinois (Apr. 6, 1917), 115 Northeastern Reporter , page 647.—*
W illiam S. Peterson, a switchman employed by the company named,
was killed in the course of his employment October 9, 1913. He was
assisting in the movement of cars onto a storage track, where they
were to be iced for the shipment of meats. The later history of
the cars showed that the greater part of them eventually were loaded
for interstate shipment, after four had been in a collision and become
disabled for use. It was agreed that if the employee was not en*
gaged in interstate commerce he was entitled to the compensation
which the industrial board had awarded him, while if he was in in
terstate commerce the Federal Employers’ Liability Act would gov
ern. The award of compensation was affirmed, Judge Cooke for the
court saying in part:
It was not until these cars were again moved to the loading plat
form, and it was known what material was ready to be loaded, that it
was determined that 10 of them should be loaded for destinations
outside the State and 1 to carry a shipment to a point within the
State. The movement of the string of cars by the switching crew
of which the deceased was a member was a local movement, and, as
none of these cars had at that time been selected to participate in
an interstate shipment, the deceased was not engaged in interstate
commerce, and the circuit court properly approved and confirmed
the award and decision of the industrial board. The icing of the
cars does not change the situation. The same procedure in icing was
required in all the shipments made by Armour & Co., whether inter
state or intrastate, and was, in effect, a part of the equipment of the
cars themselves.
W
orkmen ’ s
C ompensation— I ntrastate or I nterstate C om
P rivate S pur T rack— In re Liberti, Supreme
merce— R epairing
Court o f New York, Appellate Division, Third Department (Nov.
14, 1917), 167 New York Supplement, page 478-—Carmella Liberti
instituted proceedings for compensation for the death of Rosario
Liberti, and an award was made by the industrial commission. The
deceased was an employee of the railway company named, and suf
fered a fatal injury when he fell from a hand car, which he and a
number of other laborers were running upon a spur track to the
grounds of the Mission of the Immaculate Virgin. The track was
owned by the mission, and maintained by the company at the expense
of the mission. The railway is entirely within the State, but carries
interstate freight, and goods from without the State were taken to
the mission over this track about once a week, while cars with intra
state freight went in daily. The court held that the employment at
TEXT AND SU M M ARIES OF DECISIONS.
271
the time of the injury was not in interstate commerce, so that the
industrial commission had jurisdiction to award compensation; and
the award was affirmed, Judge Kellogg, in the opinion saying:
The mission’s track was solely for its use and for the carrying of
freight from the station to the mission, as a convenience to the com
pany and the mission. The property of the mission, its spur track,
and those who are working upon it, are subject to the State law and
are not governed by the Federal Employers’ Liability Act. I f the
company was drawing interstate freight over the spur for delivery
at the mission, and the accident had occurred to an employee en
gaged therein, a different question might arise; but this case seems
to be entirely outside of the question of interstate commerce, and is
purely a matter of domestic concern and arrangement.
Workmen’s Compensation— Medical Services— C o m p u t a t i o n of
“ Thirty Days after I n ju r y ”— In re McCaskey , Appellate Court
of Indiana, Division No . 1 ( Oct. 10, 1917), 117 Northeastern Re
porter , page 268.— Lewis Grabhorn was employed by the CottonWiebke Co., when on February 17,1916, he was accidentally struck in
the forehead by a sledge hammer in the hands of a fellow employee.
The accident was witnessed by the president and manager of the cor
poration, which did away with the necessity for notice. At the time
an abrasion of the skin of the forehead was produced, but no wound
requiring medical or surgical treatment. In the evening of March
18 he was taken with a violent pain in his forehead, and on the next
day consulted one McCaskey, a practicing physician, who on the 20th
diagnosed the trouble as an abscess, requiring an operation and drain
ing for a number of days. Dr. McCaskey rendered the necessary serv
ices, and presented a claim for $50, which was admitted to be a fair
compensation. The company, however, refused to pay this bill
because, as it contended, the services were not rendered within 30
days after the injury. The industrial board certified this question
to the court, and the latter decided that the claim was a valid one,
the injury not being in such a case contemporaneous with the acci
dent, but occurring at the time results developed wkich amounted
to disability.
W o r k m e n ’s C o m p e n s a t i o n — M e d i c a l S e r v i c e s — E m p l o y e r ’ s
b ility fo r
O p e r a tio n
Lia
B e c o m in g N e c e s s a r y b e fo r e E x p ir a t io n o f
In re Henderson , Appellate Court of
Indiana (June 1, 1917), 116 Northeastern Reporter, page 815.—The
T h i r t y D a y s , b u t P o stp o n e d —
employee Henderson was injured on October 16, 1916, and a part of
his left foot was amputated. The foot did not heal properly, gangrene
set in, and on the 28th day it was evident that within four or five
days another amputation would be necessary to save his life. On
272
DECISIONS OF COURTS AFFECTIN G LABOR.
that day the employer and insurance carrier notified the hospital
that the}r would not be responsible for treatment after the 30 days.
On the 29th day the employee filed an application asking the Indus
trial Board to make an order requiring the employer to continue the
surgical and hospital services beyond the first 30 days. The board
certified to the court the question whether it had, under section 25 of
the act, authority to require such continuation. The court answered
the question in the affirmative, showing that the language of the sec
tion was somewhat ambiguous, but placing an interpretation upon it,
and saying in the concluding part of the opinion delivered by Judge
Hottel:
We deem it proper to say that, if an emergency arose for either of
the services provided for in said act at a time when the same was
required to be rendered under said act, the employer by mere delay
in rendering the service could not escape liability for any service
which should have been and could have been rendered within the
period during which the act makes it his duty to perform the service.
W
o r k m e n ’s
s u r e r for
C o m p e n s a t io n — M
S e r v ic e s F
e d ic a l
u r n is h e d b y
E
S e r v ic e s — L
m ployer
A
fter
ia b il it y
T
h ir t y
of
D
In
ays—
In re K elley , Appellate Court of Indiana, Division No. 1 (June 1,
1917), 116 Northeastern Reporter , page 306.—John Kelley was in
jured under circumstances which made compensation payable under
the Indiana law, and the industrial board found that the physician
furnished by the employer rendered a bill for $90 for services during
the first 30 days after the injury; that at the expiration of 30 days
the employee was in such serious condition that further medical
services were necessary in order to save his life; that the employer
directed the physician to continue his services, and his bill for the
further services was $90; and that the charges were reasonable. The
contest was as to the liability of the insurer for the additional medical
services, and the board certified to the court the question whether
the physician was entitled to have the last-mentioned claim approved
as against the insurer. This was answered in the affirmative, the
court calling attention to the provisions of the act giving the em
ployer the option of furnishing additional medical attendance where
necessary, and to the provisions requiring that policies shall cover all
benefits conferred by the act; also to the fact that the additional
medical treatment in suitable cases would be to the advantage of the
employer and the insurance carrier as well as of the injured employee.
W o r k m e n ’s C o m p e n s a t i o n — M o d i f i c a t i o n
i t y —Safety
o f A w ard s— In c a p a c
Insulated Wire & Cable Co. v. Court of Common Pleas
in and fo r Hudson County et alS u prem e Court of New Jersey (Apr.
TEX T AND SU M M ARIES OF DECISIONS.
273
7, 1917), 100 Atlantic Reporter, page 846.—Philip Kress received
injuries to both hands about April 1, 1912, while in the employ of
the company named. He was awarded as compensation $6.21 per
week, or one-half his earnings at the time of the injury, for 400
weeks, it appearing at the time of the hearing, nearly a year after
the injury, that he was not able to do any work. Early in 1916 the
company applied for modification of the award, which was refused
by the court of common pleas on the ground that the original award
of the full 400 weeks must have been made on the basis of a finding
of total and permanent disability, and that action on the applica
tion would involve a review of that award. On the rendering of
this decision the case was taken to the supreme court. It appeared
that after being incapacitated from work for about a year and a
half, the injured man began to do light work at $9 a week, and later
became watchman in a factory at $12 per week, and at the time of
the hearing was getting $14, or more than his wages when injured.
The supreme court thereupon decided that a .modification of the
award might be had on the showing of change in conditions, the
statute providing for such adjustment after a year from the date of
the original awTard. Judge Kalisch in the concluding portion of
the opinion said as to the interpretation of the term “ incapacity” :
It is to be observed that the term “ incapacity of the injured em
ployee ” is used. The legislature has thereby established the test of
“ incapacity ” as the determining factor whether an award shall be
diminished or increased, as the case may be. The incaj^city which
the legislature had in mind was the incapacity to perform labor.
This, of course, is not applicable to the class of cases which the
legislature has expressly declared to be that of total disability,
such as the loss of both legs, etc., and for which there is a fixed period
of compensation.
It must be borne in mind that the basic principle of the compensa
tion act is indemnity. Therefore when it appears in a case where
an award had been made that the incapacity upon which the award
was based had diminished or ceased, it becomes the duty of the
court upon a proper application to interfere and grant relief.
W o r k m e n ’ s C o m p e n s a t i o n — N o t i c e — In re Dorb , Supreme Court
of New York, Appellate Division, Third Department (Nov. 14,1917),
167 New York Supplement, page 415.—Leo Dorb was an employee of
Frederick Stearns & Co., manufacturing pharmacists. On June 23,
1916, while lifting heavy boxes containing the manufactured prod
ucts, he sustained a hernia, but continued at work until July 3. He
consulted a physician and was told the nature of the injury and tele
phoned to the department where he worked that he was sick, but did
not inform them that there had been an accident, nor what the nature
64919°—18—Bull. 246-----18
274
DECISIONS OF COURTS AFFECTIN G LABOR.
of the illness was. Three or four days later he went to his assistant
foreman and told him the nature of his injury, without giving infor
mation as to the time, place, and circumstances, or stating that he
would make a claim for compensation. It was the duty of the assist
ant foreman to report accidents to the employer, but he did not do so
in this case, nor did the employee give any other notice. The law
provides that failure to give notice may be excused by the commission
because it could not have been given, or if the employer or insurer has
not been prejudiced by the failure. The court reversed the award
of the commission in favor of the claimant, saying that to justify
failure to give notice whenever oral notice had been given to an
agent of a corporation would completely nullify the provision of the
law for written notice, and its object, to afford the employer oppor
tunity to investigate the circumstances of the alleged accident.
W orkmen ’ s C ompensation— N otice and C laim — “ R easonable
C ause ”— I gnorance—In re Fells , Supreme Judicial Court of Massa
chusetts {Mar. 15,1917), 115 Northeastern Reporter, page 480.—The
employee Fells was injured, and his claim for compensation was
opposed by the insurer, on the ground that the claim was not made
until nine months after the injury, while the law provides that it
must be made within six months, unless failure to do so is occasioned
by mistake or other reasonable cause. It was shown that in this
case the en^ployee was illiterate and ignorant of the requirements of
the compensation law, and supposed that his foreman or the attend
ing physician was safeguarding his interests, though he did not ask
either to do so and was not assured that it would be done. An award
in his favor was affirmed by the superior court of Suffolk County,
but this was reversed by the supreme judicial court, Judge Carroll
delivering the opinion, and saying in part:
If the legislature thought it wise when it amended the act, it could
have provided that a failure to file a claim within six months would
not bar proceedings under the act if occasioned by ignorance, mistake
or other reasonable cause. But it apparently did not consider igno
rance a sufficient excuse for this delay.
A mere anticipation that some one will fulfill the law on behalf
of the employee, especially where there is no promise or assurance
that this will be done, is not a mistake or other reasonable cause
within the meaning of these words as used in this section.
W orkm en’s Compensation— Occupational Disease as “ Personal
I n j u r y ”— Neurosis from Stooping Position— In re Maggelet , Su
preme Judicial Court of Massachusetts (July 25, 1917), 116 North
eastern Reporter , page 972.—Frank Maggelet proceeded under the;
275
T EX T AN D SU M M ARIES OF DECISIONS.
workmen’s compensation act to recover compensation for injuries.
He had worked for 25 years for his employers, who were subscribers
under the compensation act, as a cigarmaker. In March, 1916, he
stopped work, and according to the finding of the industrial accident
board was totally incapacitated for work by reason of a condition of
occupational neurosis which arose out of and in the course of em
ployment. There was medical testimony that the disease probably
was caused by the stooping position of the employee at his work,
which produced pressure upon the brachial plexus. The court held
that this disease did not constitute a “ personal injury r within the
meaning of the act and reversed the decree in favor of the claimant
entered by the superior court of Suffolk County upon the decision of
the commission. The following is a part of the opinion delivered by
Judge Eugg:
The act does not mention disease or occupational disease. It
awards compensation for disease when it rightly may be described as
a personal injury. A disease of mind or body which arises in the
course of employment, with nothing more, is not within the act. It
must come from or be an injury, although that injury need not be a
single definite act but may extend over a continuous period of time.
Poisoning, blindness, pneumonia, or the giving way of heart muscle,
all induced by the necessary exposure or exertion of the employment,
fall well within recognized classes of personal injuries. On the other
hand the gradual breaking down or degeneration of tissues caused by
long and laborious work is not the result of a personal injury within
the meaning of the act. A person may exhaust his physical or mental
energies by exacting toil, and become unfit for further service, but ho
is not because of this entitled to compensation, for the reason that this
condition can not fairly be described as a personal injury. The dis
ease must be, or be traceable directly to, a personal injury peculiar to
the employment. A nervous condition dependent upon poor posture
of the body in our opinion does not constitute a commonly known and
well recognized personal injury consequent upon employment.
There is not enough in this record to show that the condition of
the employee is a necessary result of his work. It arose on all the
evidence from a bad posture of the body while at work. This record
is bare of any evidence to show that it is a reasonably necessary result
of the employment that those following it should have neurosis or
that the inducing proximate cause of. that condition is the employ
ment.
W
P
o r k m e n ’s
a r a l y s is
of
C o m p e n s a t io n — P e r m a n e n t
L
egs —
C o n d u c t in g B
u s in e s s
T
otal
D
is a b il it y —
—McDonald et al. v. In
dustrial Commission of Wisconsin et al., Supreme Court of Wiscon
sin (Apr. 4, 1917), 162 Northwestern Reporter , page 81$.—Fred
Edwards proceeded for compensation against C . S . McDonald, as
employer, and the insurance company which carried the latter’s risk.
An order was entered by the industrial commission, making an award
276
DECISIONS OF COURTS AFFECTIN G LABOR.
to Edwards. The award was of a lump sum, equal to six times the
amount of annual earnings, this being the amount provided for
total permanent disability. The injury, caused by a fall from a pile
driver, resulted in fracture of a vertebra and deformity of the
spinal column, which produced pressure upon the spinal cord, and
paralysis, though not total, of the lower limbs and lower part of
the back. There was medical testimony that he could do no work
requiring walking or stooping. He had not been fitted for any
work except as a carpenter or laborer. Attention is called to the
amendment of the language of the statute in 1915, by which, as a
requisite for a finding of total disability, there must be inability to
engage in “ other suitable employment ” as well as “ in the employ
ment that he was working at at the time of the accident.” However,
it was held that the finding was justified, Judge Eschweiler, for the
court, saying on this point:
We can not say that there is no support for the determination
’ arrived at by the commission and confirmed by the circuit court.
The testimony warrants the conclusion that this man is permanently
and totally disabled from performing labor at his trade as a car
penter or such labor as he was employed in at the time of the acci
dent as well as being permanently and totally disabled from per
forming manual or other labor in any other suitable employment.
As to the effect of an intention to engage in a small business the
judge said:
It is urged that because the record discloses that the respondent
desired to have the award in a lump sum so that he might under
take some small business to be conducted by him and his wife, that
therefore, by his own admission, he could not be considered as per
manently and totally disabled. We do not think this distinction
can be properly taken. There is a substantial difference between a
man’s wage-earning capacity, the foundation of the workmen’s com
pensation act, and his capacity to make money in a business con
ducted under his supervision or direction and with the use or invest
ment of other capital than that which arises from his own labor.
Success in such an undertaking is so evidently dependent upon mani
fold conditions other than the capacity to work that it can not, as
the law is now written, be considered to be a condition that must
militate against his right to compensation for permanent total dis
ability to carry on the work which he was employed in at the time
of the accident or other suitable employment. Such distinction is
pointed out in the case of Moore v. Peet Bros. Mfg. Co. (Kans.),
162 Pac. 295. [See p. 291.]
It was also held that the fact that the lump-sum awrard was made
before the expiration of six months from the date of the injury was
not material, no objection having been made at the time of the award
to such procedure, and the award was affirmed.
TEXT AN D SU M M ARIES OF DECISIONS.
277
W orkmen ’s C ompensation— P ersonal I njury by A ccident—
N ephritis F ollowing E xposure— United Paper Board Co. v. Lewis,
Appellate Court of Indiana, Division No. 1 (Oct. 11, 1917), 117
Northeastern Reporter, page 276.—Amberson Lewis, while in the
employ of the company named, was required to flush out with hot
water running from a hose a large quantity of hot pulp which had
escaped from a broken pipe into the basement of the factory. In
doing this work, which took several hours, he became excessively
heated and damp, and in going home to dinner he became chilled.
The chills lasted several days and developed into nephritis, causing
a disability of eight weeks. It was held that this constituted a
personal injury by accident under the act, Judge Batman, who
delivered the opinion, saying:
In the instant case it is clearly apparent that appellee contracted
the disease which caused the disability for which he seeks compensa
tion, as the direct result of an unusual circumstance connected with
his employment. His duties required him to keep the basement
room clean, but this did not ordinarily require him to flush hot
steaming pulp into the sewer with hot water from the exhaust of the
engine. It is evident that this was only required when the iron
pipe through which such pulp was conducted broke and allowed it
to escape to the floor. Hence the industrial board may have very
properly found that the breaking of the pipe created an unusual
condition under which appellee was required to work at the time
in question, resulting in enforced exposure. In such event, any
disease, of which such exposure is shown to have been the cause, may
properly be said, under the rule stated, to constitute a personal
injury by accident, and to come within the provisions of the work
men’s compensation act of this State.
The court further held that the possible negligence of the employee
in exposing himself to chill on leaving the factory could not be a
determining factor; also that the injury was one arising out of and
in the course of the employment.
W orkmen ’ s C ompensation— P ersonal I njury by A ccident—
P neumonia R esulting from E xhaustion and E xposure—Linnane
v. Aetna Brewing Co., Supreme Court of Errors and Appeals of
Connecticut (Dec. 19, 1916), 99 Atlantic Reporter, page 507.—The
dependent claimed compensation in this case and was given an
award by the compensation commissioner, which was affirmed by
the superior court of Hartford County. The deceased was a fire
man for the company named. His regular shift was from 7 a. m.
to 3 p. m. One of the other firemen being unable to reach his work
because of a storm, Linnane was called upon at 2 a. m. on December
14,1915, to go to work, and without any breakfast he made his way for
278
DECISIONS OF COURTS AFFECTIN G LABOR.
three-fourths mile through deep snow to the brewery. He arrived
out of breath and exhausted and wet nearly to his waist. He then
worked for 12 hours in his wet clothing, his work being heavy and
requiring him at times to be before the open mouth of the furnace
and at other times to wheel ashes and clinkers out into the yard.
He returned home exhausted and without appetite. Though ill he
worked a few days, but pneumonia developed and he died on De
cember 22. The judgment in the claimant’s favor was reversed be
cause the court held that the death was not the result of accidental
“ personal injury ” as required by the act in order that compensation
may be granted. Reference is made to the decision of the court in the
case Miller v. American Steel & Wire Co., 90 Conn. 349, 97 Atl. 345
(see Bui. No. 224, p. 306) ; and the case is said to be controlled by
the principles laid down therein, for, while the unusual weather
conditions might be classed as accidental, at least as concurring
with the untimely and prolonged hours of labor, the resultant
exhaustion, though accidentally incurred, could not be said to be
“ in and of itself a bodily injury ” within the meaning of the act.
W o r k m e n ’ s C o m p e n s a t i o n — P r o c e d u r e — A p p e a l — Union Sanitary
Mfg. Co. v. Davis, Appellate Court of Indiana (Jan. 2 3 , 1 9 1 7 ) ,
Northeastern Reporter, page 8 7 2 . —Frank L. Davis was awarded com
114
pensation by the industrial board of Indiana under the provisions of
the workmen’s compensation act of that State, and the employer, the
company named, appealed. Davis filed a motion to dismiss the ap
peal, claiming that it was not properly taken, as no motion for a new
trial had been made, as is necessary in ordinary civil suits as a pre
liminary to appeal. Judge Felt delivered the opinion of the court,
and overruled the motion to dismiss the appeal. It was held that a
motion for a new trial was not necessary, at least where, as in the
present instance, there had been a review of the award by the full
board; also that there was no necessity for a motion to set aside the
award of the full board, the attitude of the court being expressed by
the following, quoted from Judge Felt’s opinion:
An examination of the whole act shows clearly that the intention
of the legislature was to provide compensation and the proper award
with a minimum of legal procedure. The provisions for a review
afford opportunity of presenting to the full board all questions relied
upon by the aggrieved party, and in the main serve the same pur
pose that a motion for a new trial serves in a civil action.
W o r k m e n ’s C o m p e n s a t i o n — P u b l i c E m p l o y m e n t — C o n s t i t u t i o n
a l i t y o f P r o v i s i o n —State
ex rel. Fletcher et al. v . Carroll, Supreme
Court o f Washing ton (Feb. 2,1917 ), 162 Pacific Reporter, page 593.—
Stephen Fletcher and Josiah E. Rhoads were employees in the light
TEX T AND SU M M ARIES OF DECISIONS.
279
ing department of the city of Seattle and were severely injured by
burning by electric current. They made claim for large common-law
damages, and the sum of $3,500 was recommended by the city’s
finance committee to be paid to them in full settlement, which they
signified a willingness to accept. Ordinances were passed over the
ma}^or’s veto directing the city comptroller to draw warrants for such
payments. Acting upon legal advice, the comptroller refused to
issue the warrants, and the employees began proceedings in man
damus to compel him to issue them. In defense it was contended that
the provisions of the workmen’s compensation act afforded the sole
remedy against the city. The superior court, which was the first to
consider the action for mandamus, held that an injured person had a
right of election between common-law damages and acceptance of the
provision of the city charter, which allows, in cases of permanent dis
ability, a pension to be fixed by the city council, but not to exceed 20
per cent of the wages received at the time of injury. The compensa
tion act provides that it shall not apply to public employees where
State law or city charter or ordinance makes other provision. The
supreme court held that the lower court had erroneously interpreted
this provision, and that it simply removed such employees from the
operation of the provisions for payment from the State fund, with
out reviving common-law liability as to them. Reviewing the pur
pose of the act and the reasons for its enactment, Judge Fullerton,
who delivered the opinion, said in conclusion on this point:
Having in view the declarations concerning the purposes of the act
and the evils it was sought thereby to remedy, we can not conclude
that the legislature meant to subject municipalities, merely because
they had themselves made provision for the care of their employees
injured while in the course of their employment, to the burdens and
hazards of a common-law action in damages. We think it was meant
rather to substitute the remedy afforded by the city for the remedy
afforded by the act, and to leave the provisions which take away the
common-law action in force.
It was claimed that this interpretation would deny equal protec
tion of the laws, since the State and various municipalities made
unequal provisions for their employees. This contention was not sus
tained, the opinion saying:
But the law itself makes no discrimination in the respect men
tioned. On the contrary, it operates alike upon all municipalities
throughout the State. It simply provides that, where a municipality
has itself made provision for a person injured in a hazardous occupa
tion, the injured person must take under the municipal provision
rather than under the provision made by the law itself. It is true
that the result may be different recoveries in different municipalities
for similar injuries, but that is not to deny to the individual the equal
protection of the laws.
280
DECISIONS OF COURTS AFFECTIN G LABOR,
It was said that if the provision made by the city was merely nomi
nal, it was possible that the employee would be allowed to take under
the compensation act; but where the provision was in fact a substan
tial one, it must govern. -
W o r k m e n ’s C o m p e n s a t io n — P u b l ic E m p l o y m e n t — C o u n t y
B u il d in g R oad — Gray v. Board of County Commissioners of Sedg
wick County, Supreme Court of Kansas (June 9, 1917), 165 Pacific
Reporter, page 867.—G. S. Gray brought suit under the workmen’s
compensation act against the board mentioned in the title because
of an injury suffered by him while employed by the commissioners to
haul gravel for use on a county road, which was being graded and
surfaced. The court assumed, without deciding, that the employ
ment was within the act as being “ on, in, or about a mine or quarry,”
but held that the act applies, in relation to county or municipal work
as well as that of private employers, to employment in the employer’s
trade or business, in the hazardous occupations mentioned therein,
only when “ conducted for the purpose of business, trade, or gain.”
As a county, in its opinion, can not be said to build roads for such
a purpose, it held that the county was not liable to the injured em
ployee for compensation.
W
o r k m e n ’s
C o m p e n s a t io n — P u b l ic
E
m ploym ent
— L aborers ,
White
City of Boston, Supreme Judicial Court of Massachusetts (May 25,
1917), 116 Northeastern Reporter, page 481.— Com pensation was
W
orkm en, and
M e c h a n ic s — J a n it o r U
nder
C iv il S ervice —
v.
aw arded to A g n e s W h ite , whose husband, a schoolhouse jan itor, fe ll
w h ile w ash in g a w indow and was killed.
O n appeal it was contended
th a t W h it e , being an appointee under the civil-service act, was in
the “ official service,” and was therefore not w ithin the class o f “ labor
ers, w orkm en, and m ech an ics” to w hom the com pensation law ap
plies.
T h e court th rou gh Ju d g e L o r in g said that the m atter o f civil-
service appointm ent was not decisive, but rather the nature o f the
w o r k ; th at a head jan itor o f a city h all or large office bu ild in g, whose
duties were those o f superintendence and who did not personally
w ork w ith his hands, m ig h t not be a laborer or m echanic, but that
this instance presented a different aspect.
T h e decree aw arding com
pensation-w as affirmed, Ju dge L o r in g sayin g fu r th e r :
B u t the jan itor here in question was n ot th at kind o f a jan itor. I n
the case at bar the fa c t was or at least evidence w arranted a finding
th at the fa ct w as th at the deceased w ith his ow n hands did all the
w ork o f cleaning, heating, w ashing w indow s, care o f yards, side
w alks and law ns in case o f the tw o schoolhouses in question, and th at
TEXT AND SU M M ARIES OF DECISIONS.
281
work included everything from keeping the water-closets clean to run
ning the steam boiler in the school building of the Abby W. May
School (for which he had to have a fireman’s license) and the furnace
in the other school building.
Not only was it the duty of the deceased to do all the work, but the
evidence warrants a finding that he did it and all of it with his own
hands.
W o r k m e n ’s
C o m p en sa tio n — P u b lic
E m p lo y m e n t — L a b o re rs.
W o r k m e n , a n d M e c h a n ic s — T e a c h e r o f A u to m o b ile R e p a irin g in
Lesuer v. City of Lowell, Supreme Judicial
Court of Massachusetts (May 25, 1917), 116 Northeastern Reporter ,
page 4-88.— Clarence C. Lesuer was accidentally killed w hile in the
V o c a t i o n a l S c h o o l—
em ploy o f the city o f L o w ell.
He was
a teacher, am ong other subjects,
o f autom obile repairing, in the industrial and vocational school con
ducted by the city, his duty being to show the boys how to do repair
w ork
and
on occasion to
dem onstrate
m ethods, his
death being
caused by some unknow n act or omission on the part o f one o f the
boys w hom he was instructing.
His
fath er and adm inistratrix m ade
claim fo r com pensation, w hich was denied by the industrial accident
b o a r d ; and the decree entered on that decision was affirmed, on the
ground that the em ployee was not a laborer, w orkm an, or mechanic
w ith in the m eaning o f the law .
W
o r k m e n ’s
C o m p e n s a t io n — P u b l ic E
m ploym ent—
P olice O f f i
Griswold et al. v. City of Wichita , Supreme Court of Kansas
(Jan. 6, 1917), 162 Pacific Reporter , page 276.—Frank Griswold, a
cers—
police captain of the city named, was killed by a pistol shot from some
person who had broken into a store in the nighttime, and whom he
was attempting to arrest. Suit was brought under the compensation
law for the benefit of his family, and in the district court judgment
was for the defendant city, on the ground that a police officer is not
a workman and that the compensation provisions do not apply to
him. This judgment was affirmed by the supreme court, Judge Por
ter delivering the opinion, from which the following is quoted:
Many good reasons might be suggested for including within the
scope of the act workmen employed in hazardous enterprises by cities
engaged in conducting a business for profit, as electric light or water
works plants, because a city, like any private individual engaged in
trade or business, could pass on to the public at large the burden by
adding to the cost of the service. But where a city is engaged merely
in the exercise of its governmental functions, we think it clear that
the workman, no matter how hazardous*his employment, would not
come within the spirit and purpose of the compensation act.
282
W
DECISIONS OF COURTS AFFECTIN G LABOR.
o r k m e n ’s
C o m p e n s a t io n — R elease — M is t a k e
TVeathers
as to
E xtent
of
Kansas City Bridge Co., Supreme Court of
Kansas (Jan. 18, 1917), 162 Pacific Reporter, page &57.— Ju dgm en t
I n ju ry—
v.
was rendered in fa v o r o f W .
P.
W eath ers in the district court o f
W y a n d o tte C ou n ty, K a n s., in his proceeding under the w orkm en’s
com pensation act.
T w o weeks after an in ju ry to this em ployee he
went to the office o f the general m anager o f the bridge com pany, his
em ployer.
T h e y talked over the m atter o f the am ount o f com pensation
and agreed th at the em ployee would probably be able to go to w ork
in tw o weeks longer, and he was given a check fo r $24, being $6 per
week fo r fou r weeks, or 50 per cent o f his wages fo r that tim e, and
signed a release.
I t appears that a bone in his fo o t was broken,
w hich fa ct was not know n to either party at the tim e, and it was
actually several m onths before d isability ceased.
T h e ju d gm en t fo r
p lain tiff was set aside and a new trial ordered because there h ad
been no allegation that the m istake o f fa ct was m u tu al, and the in
struction to the ju ry h ad been to the effect that a release could be
set aside because o f inadequacy o f the consideration and a m istake
on the part o f the signer.
T h e court held, how ever, that where in
adequacy o f consideration and m utual m istake o f fact concur, a
release is not b ind in g.
T h e em ployee should, therefore, it was said,
have an opportu n ity in another tria l to prove these facts, i f they
existed.
T h e fo llo w in g is quoted fro m the opinion o f Ju dge M a r s h a ll:
T h a t part o f the instruction which says, in substance, that the
p la in tiff can recover i f he signed the release under a m istaken b elief
as to the extent o f his injuries is not correct. H e can recover when he
proves th at the agreem ent and release were executed under a m is
take o f both the p la in tiff and the defendan t as to the extent o f the
p la in tiff’s injuries, i f he also proves th at the am ount already paid
h im is n ot adequate com pensation under the law .
C o m p e n sa tio n — R e v ie w A f t e r L u m p -su m S e t t l e
In re McCarthy , Supreme Judicial Court of Massachusetts
(April 7,1917), 115 Northeastern Reporter, page 764.— P atrick Mc
W o r k m e n ’s
m e n t—
C a rth y
was
inju red on D ecem ber
22, 1913.
On
A p r il
1, 1915,
an
agreem ent, entered into fo r the settlem ent o f the rem aining lia
bility o f the insurer by the paym en t o f
d u strial accident board.
$500,
was affirmed by the in
L a ter, application was m ade fo r the loss
o f sigh t, w hich, at the tim e o f m a k in g the settlem ent, was not antici
pated.
T h is w as denied by the board, and its decision affirmed by
superior court p f Suffolk C ou n ty. The supreme ju d icia l court
also affirmed the decree, Judge Carroll, discussing for the court the
the
effect o f lu m p -su m paym en ts in p a rt, as fo llo w s :
The workmen’s compensation act was intended to compensate em
ployees during the period of incapacity for labor; and, in case of
DECISIONS OF COURTS AFFECTIN G LABOR.
283
death, to help their dependents by the payment of a weekly sum
during a stated period. Its purpose was not to compensate by the
payment of a lump sum unless the case presented features which
made it unusual; and this fact was to be found by the industrial acci
dent board. Weekly payments must have continued for six months
and the agreement of settlement must be found to be for the best
interests of the employee or his dependents. When these findings
are once made, the payment is in full settlement for all compensa
tion, general and specific, under the act. Both parties are bound
by it. The insurer can not complain if the amount is thought to be
too large, nor the employee, if too small.
Even if blindness developed after the six months’ period, and it
was caused by the injury and was unknown at the time of the settle
ment, the employee is nevertheless bound by the terms of his agree
ment, which state:
“ Said payments are received in redemption of the liability for all
weekly payments now or in the future due me * * * f or a\\ in_
juries received by me on or about the 22d day of December, 1913.”
W o r k m e n ’s C o m p e n s a tio n — R e v ie w b y C o u r t — E f f e c t o f R e
le a s e — Odrowski v. Swift <& Co., Supreme Court of Kansas (N o v . 11,
1916), 162 Pacific Reporter , page 268.—Stanley Odrowski was
awarded compensation by the district court of Wyandotte County
for injury suffered while in the employ of Swift & Co. The com
pany appealed, claiming that a release which had been signed by
the employee about four months after his injury and wThich the
district court had set aside was binding. This release was given
in consideration of $45 paid him at the time and $103.50 which he
had previously received. These sums made a total which, according
to the findings of the jury, exactly equalled the amount then due
him. It was claimed on his behalf that the release was secured
through false statements made by a physician in the employ of the
company as to the extent of the injuries. The court said, however,
that the employee’s own testimony not only did not bear out the view
that he executed the release in reliance on such statements, but, on
the other hand, negatived it, since he testified that he signed the
paper without reading it or knowing that it was a release. It was
pointed out that in the absence of any proof of fraud the mere fact
that a person, having every opportunity to do so, does not read a
paper which he signs, does not give the court power to permit him
to avoid its effect. The specific provision for the setting aside of
“ agreements for compensation ” and “ awards ” is held not to apply,
because by the terms of the act an agreement can only be set aside
for fraud or undue influence and because the word “ award ” is
used throughout in the sense of an arbitration. Finally, it is held
that the judgment must be reversed and remanded with directions to
enter a judgment for the company rather than for a new trial.
284
DECISIONS OF COURTS AFFECTIN G LABOR.
W o r k m e n ’s C o m p e n sa tio n — R e v isio n
o f
A w a r d s — M a r r ia g e
o f
Adleman v. Ocean Accident c& Guarantee Corp.
(Ltd.) et al., Court of Appeals o f Maryland (June 26, 1917), 101
Atlantic Reporter , page 529.— M o rris B renn er, an em ployee o f the
D e p e n d e n t S is te r —
R eliab le Ju n k
C o., o f H ag erstow n , M d ., died D ecem ber
as the result o f an accidental in ju ry .
$12.50
in the sum o f
per week fo r
5, 1914,
C om pensation was aw arded
4
years and
32
weeks fro m
the date o f death, and this sum was apportioned equally between
h is m other and a sister, M a r y B renner, each receiving
week.
I n June,
1916,
$6.25
per
the insurer, the com pany nam ed in the title
o f the case, filed a petition p ra yin g th at com pensation to the sister
be abated as o f the date o f June
19, 1915,
on w hich date she had
m arried one A d le m a n , but, as it was alleged, had concealed th is
fa c t, so that the com pany was not aware o f it u n til June
1, 1916.
T h e com m ission dism issed this petition, but on appeal by the com
pa n y the circuit court fo r W a sh in g to n C ou n ty ordered the com pensa
tion abated.
T h e claim ant in turn appealed, and under the present
decision she was successful in h av in g the com pensation ordered con
tinued according to the origin al award.
T h e com pensation act p ro
vides that com pensation shall cease on the m arriage o f a w idow ,
and section
54
provides fo r m odification o f awards b y the com m is
sion in the w ay o f a reapportionm ent am ong the beneficiaries.
It
w as argued b y the insurance com pany th at th is gave the com m is
sion pow er to deprive one beneficiary o f com pensation altogether,
but the court held th at the section conferred no pow er upon the
com m ission to annul the com pensation to a beneficiary w ho was a
dependent at the tim e o f the em ployee’s death.
W o r k m e n ’s C o m p en sa tio n — S e l f -i n s u r a n c e — C o n s t i t u t i o n a l
it y of S t a t u t e — State ex rel. Turner v. United States Fidelity &
Guaranty Co. of Baltimore, Md., Supreme Court of Ohio (Apr. 17,
1917), 117 Northeastern Reporter, page 232.— T h is w as a proceeding
in quo w arranto to oust certain insurance com panies fr o m exercising
the franchise o f w ritin g in O h io insurance to in d em n ify em ployers
w ho, under section 22 o f the w orkm en’s com pensation act, take upon
them selves direct lia b ility to p ay com pensation to w orkm en.
W ith
the exception o f em ployers who become self-in surers under this sec
tion, all em ployers com ing under the act are required to contribute
to the State fu n d by p a y in g prem ium s fo r insurance o f their com
pensation lia b ility therein.
C ertain em ployers, h av in g satisfied the
indu strial com m ission o f their financial ability to carry their own
risks, secured perm ission to do so, and then obtained contracts fro m
TEX T AN D SU M M ARIES OF DECISIONS.
285
the private insurance companies indemnifying them against possible
losses. The attack against this method of avoiding the monopoly
which the State fund otherwise would exercise was based on the
ground that section 22 was unconstitutional; the court, however, held
that it was valid, and that the employers given that privilege by
the commission might become self-insurers, with an indemnification
from other sources if desired. It may be noted that the legislature
in 1917 has limited the privilege of becoming self-insurers to those
who desire to be such without any provision for indemnification.
The first reason assigned for the alleged invalidity of the section
was that it was violative of the section of the constitution of the
State authorizing the passage of a compulsory workmen’s compen
sation act. The court remarked that the provision was permissive
and not mandatory, and that the details of the law and the method
of its administration were largely left to the good sense of the gen
eral assembly. Judge Nichols delivered the opinion, and said fur
ther on this point:
The law could have been framed, no doubt, so that all employers
would have been compelled to participate in the one fund to be ad
ministered wholly by the State board; but the law’s departure from
that exclusive method is not of such palpable nature as to suggest
to this court that*it should destroy such portion of the law.
Further objections to the section were of the nature of complaint
that there was a denial of the equal protection of the laws. The
opinion shows that there is no real discrimination between the em
ployers, since all have an equal opportunity to become self-insurers
if they can qualify. As to the equality among employees, Judge
Nichols concludes as follows:
So far as we can see, the only difference is in the person of the
paymaster—in the one case the State, and in the other the employer.
The law expressly provides that the compensation, when paid direct,
shall in no event be less than that paid out of the State insurance
fund. As heretofore stated, the board of award must be satisfied
of the financial ability of the noncontributing employer, and is fur
ther authorized to require such security or bond from such employers
as it may deem proper, adequate, and sufficient to secure to injured
employees the payment of compensation. In other words, the State
board of awards is clothed with full authority to make certain the
payment of compensation, just as certain in fact as if the State fund
itself was to be drawn upon. If, then, the compensation in the one
case is to be as great as in the other, and if the prompt payment is
as certain in the one case as in the other, the claim of inequality
before the law is dissipated to the very vanishing point.
The wisdom or unwisdom of permitting indemnity insurance con
tracts is declared not to be connected with the question presented to
the court.
286
DECISIONS OF COURTS A FFECTIN G LABOR.
W o r k m e n ’s C o m p e n s a t io n — S er io u s a n d W il l f u l M isc o n d u c t
of E m plo y er — M a in t a i n i n g E levator i n U n s a f e C o n d it io n —
D o u ble C o m p e n s a t io n —Riley v. Standard Accident Ins. Co. et al.,
Supreme Judicial Court of Massachusetts (May 25,1917), 116 North
eastern Reporter, page 259.—William Riley was injured in the em
ploy o f the Home Soap Co., and the employer and insurer appealed
from an award o f compensation made to him. The amount awarded
was doubled on the ground that the employer was guilty of serious
and willful misconduct in maintaining an elevator which was badly
out of repair, and whose condition resulted in the injury. The court
held that this did not constitute willful misconduct under the act, and
modified the aw
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