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U. S. DEPARTMENT OF LABOR
JAMES J. DAVIS, Secretary

BUREAU OF LABOR STATISTICS
ETHELBERT STEWART, Commissioner

BULLETIN OF THE UNITED STATES )
BUREAU OF L AB O R S T A T IS T IC S )
LABOR

LAWS

THE

UNITED

STATES

N o. 391
SERIES

DECISIONS OF COURTS AFFECTING LABOR
1923-1924

LINDLEY D. CLARK AND STANLEY J. TRACY
Of the United States Bureau of Labor Statistics

AUGUST, 1925

WASHINGTON
GOVERNMENT PRINTING OFFICE
1925

A D D IT IO N A L COPIE S
OF THIS PUBLICATION MAY BE PROCURED FROM
THE SUPERINTENDENT OF DOCUMENTS
GOVERNMENT PRINTING OFFICE
WASHINGTON, D. C.
AT

70 C E N T S P E R C O P Y

CONTENTS
Page
Introduction_____________________________________________________________
1, 2
Decisions of courts affecting labor_________________________________________ 2-536
Absent voters’ law—constitutionality—construction of statute (Jones v.
2,3
Smith)______________________________________________________________
Aliens:
Chinese seamen—not laborer under exclusion act (United States
ex rel. Lum Young v. Stump)----------------------------------------------------3,4
Contract laborers— telegraph operator (E x parte Gouthro)__________
5
Immigration— “ wife ” of admissible or domiciled alien—proxy mar
riages (Ex parte Suzanna)______________________________________
5-7
Right to do business—constitutionality of ordinance (Cornelius et
al. v. City of Seattle et al.) ______________________________________
7, 8
Right to do business— constitutionality of ordinance (Miller v. City
of Niagara F alls)_______________________________________________
8,9
Associations—medical treatment—malpractice—responsibility for choice
of physician—status of association members (Carr v . Northern Pac.
Beneficial Assn.) _____________________________________________________ 9,10
Bribery of employees—giving or offering gratuity to obtain trade se
crets (State v. Landecker)__________________________________________
11
Contempts of court—jury trial— constitutionality of statute (Pacific Live
Stock Co. v. Ellison Ranching C o.)___________________________________ 11,12
Contract for w ork :
Compliance with State constitution—right of foreign corporation—
recovery for work done (Interstate Construction Co. v. Lakeview Canal C o.)__________________________________________________ 12,13
Wage increase— effect of war— threat of strike—promise to recoup
contractor— consideration—constitutional restrictions on munici
palities (McGovern et al. v. City of New Y ork )__________________ 13-16
Contract of employment:
Abandonment— modification (Anderson v . Standard Lumber C o.)__ 16,17
Agreement not to employ certain persons—public policy (Winthrop
v . A llen)_________________________________________________________ 17,18
Agreement not to engage in similar business— trade secrets—injunc
tion (Kaumagraph Co. v. Stampagraph Co. (I n c .))--------------------- 18,19
Bonus—
(Pyrtle v. International Shoe C o.)_____________________________
19
effect of promise (Scott v. J. F. Duthie & C o.)-------------------------- 20, 21
evidence ( Zampatella v. Thomson-Crooker Shoe C o.; Harring
ton v. Same; Shaft v. Same)________________________________ 21,22
Breach—
action for damages (Gallino v. Boland)------------------------------------- 22,23
discharge—
hiring for year—conduct injurious to master’s business—
damages (Hale Hardware Co. v. Ragland)----------------------- 23, 24
recovery—“ satisfactory service ” (Lummus Cotton Gin Co.
v. Baugh)________________________________________________ 24,25
term—hiring “ by the yea r” (Willis v . Wyllys Corp.)---------25,26
offer of other work (Williams v. Robinson)____________________
26
practical construction—proper performance ( Schneider v. Yietor) 26,27

h i

CONTENTS

Contract of employment—Continued.
Page
Engaging in similar business— breach— enforcement by injunction
(Clark Paper & Manufacturing Co. v. Steenacher)_____________ 28,29
Interference— discharge caused by third person (Southern Finance
Co. v. F oster)___________________ ________ ,_______________________29,80
Life employment—consideration— waiver of action for damages
(Stevens v. Southern By. C o.)----------------------------------------------------- 30,31
Overtime— receipt “ in full payment ” (Yardley v. Iowa Electric Co.)_
32
Payment for additional services—inference (Robinson v. M unn)____33,34
“ Permanent employment”—breach (Rape v. Mobile & O. R. C o.)_34,35
Profit sharing—engaging in similar business (Balton v. Knollman
Paper C o.)________
35,36
Repayment of advances—breach—constitutionality of statute (Phil
lips v. B ell)______________________________________________________ 36,37
Repayment of advances—evidence (Winters v. State)--------------------- 37,38
Convict labor:
Contract for labor—constitutionality (Price v. M abey)_____________ 38,39
Contract for labor— constitutionality of statute (Pollock v. Mabey;
Utah Manufacturer’sAssociation v.M abey)_______________________ 39,40
Contract for leasing—rights of citizens to prevent violation of law—
construction of statute (Green v.Jones)__________________________ 40-42
Cooperative associations—wages— corporate debts— capital stock (Kritzer
v. Arma Coal Co.) ___________________________________________________
42
Employers’ liability:
Admiralty—
Federal statute—assumption of risk (Panama Railroad Co. v.
Johnson)_____________________________________________________ 43-46
Federal statute— stevedore— negligence of fellow servant—work
men’s compensation law (Cassil v. United States Emergency
Fleet Corporation et a l.)_____________________________________ 46,47
repair to scow in navigable waters (Great Lakes Dredge & Dock
Co. v. Kierejewski)___________________________________________47,48
safe place— duty o f stevedore—effect of State statutes (O’Brien
v. Luckenbach S. S. C o.)_____________________________________ 48-50
“ unseaworthiness”—employment of unfit mate (The Rolph) __ 50,51
wages—jurisdiction (The Sinaloa, Larsen v. Lindvig)__________
52
Assumption of risk—
flying chips (Emery v. Chicago, R. I. & P. Ry. C o.)____________ 52, 53
guaranty of protection from assaults by strikers (Kansas, O. &
G. Ry. Co. o f Texas v. P ik e)________________________________ 53,54
negligence (Valdosta Street Ry. Co. v. M cDonald)____________ 54,55
Common-law defenses— effect of passage of workmen’s compensation
laws—right to recover (Estep v. P rice)___________________________ 55,56
Contributory negligence—proximate cause— choice of remedies— Ari
zona statute (Gazette Printing & Publishing Co. v. Suits)________ 56-58
Death—conscious suffering—evidence— accident reports (Gerry v.
Worcester Consol. St. Ry. C o.)___________________________________ 58-60
Election of remedies— Arizona statute (Twohy Bros. Co. v. R ogers)- 60,61
Employee—
cook hired by bridge crew (Edelbrock v. Minneapolis, St. P. &
S. S. M. Ry. C o.)__________________________________________ 61-63
strike breakers— contributory negligence (Lewis v. Louisville
Ry. C o .)____________________
63,64
workman assisting employee on request (Kirk v. Showell, Fryer
& C o.)_______________________________________________________ 64,65

CONTENTS

Employers’ liability—Continued.
P age
Factory act—liability o f employer to third person (Bollinger v.
Hill C ity)_______________________________________________________ Go, 06
Fellow service—vice principal— dual capacity—safe place (Hildman
v . American Manufacturing C o.)-------------------------------------------------- 66,67
Government agency—highway contractor—damages (J. Harvey Vandivier & Son v. Hardin’s Admx.) -------------------------------------------------68
“ Hazardous occupation”— work in or about reduction works and
smelters (Gillis v. Graeber)---------------------------------------------------------- 68,69
Independent contractor—negligence— death from falling earth (Lawhon v. St. Joseph Veterinary Laboratories)------------------------------------69,70
Independent contractor—stevedore—workmen’s compensation act
(Machae v. Fellenz Coal & Dock C o.)_____________________________
71
Industrial police— course of employment—injury to third party ( Seymoure v. Director General of R ailroads)__________________________ 71-73
Industrial police— injury to third party (Walters v. Stonewall Cot
ton M ills)_______________________________________________________ 73,74
Medical treatment— contract—workmen’s compensation act (Ashby
v. Davis Coal & Coke C o.)_______________________________________ 75,76
Mine regulations—violation o f statute— safety rules (Kirk v. W ebb)— 76,77
Minor unlawfully employed—
misrepresentation of age—recovery for death (Hodges v. Sa
vannah Kaolin C o.)---------------------------------------------------------------- 77,78
right of action where father consented to employment—violation
of safety law—proximate cause—workmen’s compensation
(Irvine v. Union Tanning C o.)________________________________ 78-80
rights of parent—workmen’s compensation (Silurian Oil Co. v.
W hite)_______________________________________________________ 80-82
Negligence—
assumption of risk—duty of employer (Kell v. Rock Hill Fer
tilizer C o.)___________________________________________________82-84
assumption o f risk—injury—fellow servant (Grant v. N ihill)— 84-86
contributory negligence—circumstantial evidence (Folsom-Morris Coal Mining Co. v. M orrow)-----------------------------------------------86,87
dangerous machinery—liability o f seller as affected by subse
quent negligence o f employer (Rosebrock v. General Electric
Co. et a l.)____________________________________________________ 87,88
employment of incompetent fellow servant (Duff v.A yers)------------------ 89
Railroad companies:
Federal statute—
assumption o f risk (Washington Terminal Co. v . Sampson). 89,90
assumption of risk— damages (Jackson v. A tw ood)---------------- 91,92
contributory negligence ( Frese v. Chicago, B. & Q. R. Co.) — 92,93
“ employee”— temporary assistant (Baltimore & O. S. W. R.
Co. v . B urtch)------------------------------------------------------------------93,94
interstate commerce—
flagman of switch crew—award of compensation (Denni
son v . P a y n e )----------------------------------------------------------- 94-97
machinist’s helper making running repairs on engine—
course of employment—damages (Baltimore & Ohio
R. Co. v. K ast)_____________________________________ 97-99
removing smokestack at ferry station—persons entitled
to damages— “ ch ild” (Hiser v. D avis)----------------------99-101

CONTENTS

Employers* liability—Continued.
Railroad companies—Continued.
Federal statute—Continued.
interstate commerce—continued.
Page
replacing derailed car on spur track—safe place—negli
gence (Shaffer v. WesternMaryland Ry. C o.)_____ 101,102
shoveling coal into pit for interstate and intf&state en
gines (Kibler v. D avis)___________________________ 102-104
negligence—
contributory negligence (Sigmon v. Southern Ry. C o.)—
104
injury (Cincinnati, New Orleans & Texas Pac. Ry. Co.
v. Calhoun)________________________________________
105
res ipsa loquitur (Central Railroad Co. o f New Jer
sey v. Peluso)-------------------- --------------------------------105-107
place o f suit—injunction against action in foreign jurisdic
tion (Lancaster et al. v. Dunn)_______________________107,108
relief department—contract for mutually exclusive remedies
(Roberson v. Chicago, B. & Q. R. C o.)_______________ 108-110
safety appliances—
defective grab irons— causal relation to injury (Davis
v. W olfe)________________________________________ 110,111
negligence—^evidence (Northcutt v. D avis)__________ 111,112
platform steps on passenger cars (H ill v. Minneapolis,
St. P. & S. S. M. Ry. C o.)__________ _____________ 112,113
negligence—safe place—assumption o f risk (Atlantic Coast Line
Railroad Co. v. Gray)-------------------------------------------------------- 113,114
transportation o f circus train—contract of waiver—validity
(Diereckx v. Davis)___________________ :__________________ 114,115
Rate of interest on judgment—constitutionality o f statute (Arizona
Eastern Railroad Co. v. H ead)_________________________________ 115,116
Release of one o f joint defendants—evidence (McLaughlin v. Chief
Consolidated Mining C o.)__________________
116,117
Safe place—assumption of risk—negligence—proximate cause (Ryan
v. L ea)______________________ :____________________________- ___117-119
Safe place—fellow service—duty to make rules (Tatum v. Crab
tree)___________ :____________________________________ __________ 119,120
School district—manual training pupil—unguarded machinery (Sul
livan i>. School District No. 1 )_________________________________ 120-122
Statutory limitations—reliance on invalid statute— effect o f statute
reviving right of action (Robinson v. Robins Dry Dock & Re
pair C o .)______________________________________________________ 122,123
Third-party liability—assumption o f risk (Mirnek v. West Penn
Power C o.)____________________________________________________ 123,124
Workmen’s compensation—
injury by inhaling impure air (Jellico Coal Co. v. Adkins)____124-126
negligence—burden o f proof (Jones v. Princeton Coal C o.)------126,127
Employers’ liability for acts o f employees:
“ Employee”— status o f porter in railroad terminal (Atlanta Ter
minal Co. v. Lowndes)__________________________________________
128
Joint liability (Davis v. Groner)-------------------------------------------------- 128,129
Negligence— contributory negligence—injury to employee o f inde
pendent contractor (Flowers v. Virginian Railway C o.)_________ 129-131

CONTENTS

VII

Employers’ liability for acts o f employees—Continued.
pago
Scope o f authority—-injury to third person (Rawley v. Common
wealth Cotton Oil C o.)________________________________________
131
Scope of employment—
injury to third person (Loux v. H arris)_____________________ 131,182
injury to third person—damages (Cusimano v. A. S. Spiess Sales
C o.)---------------------------------------------------------- L______________ 132,133
injury to third person (Beger v. Southern Pacific C o.)________133,134
Employment agencies—regulation o f fees— constitutionality o f statute
(E x parte S m ith )__________________________________________________ 134,135
Employment offices—regulations o f hiring—constitutionality o f statute
(Ex parte Messer)--------------------------------------------------------------------------135,136
Factory regulations:
delegation o f legislative authority—power to regulate erection o f fire
escapes (Dockery v. State)____________________________________ 136,137
food establishments—physical examinations o f employees—constitu
tionality o f ordinance (Langley v. City o f D allas)___________ _ 137-139
Factory etc. regulations—protection o f health o f employees— “ car shed
a c t”— constitutionality o f statute (Wabash By. Co. v: O’B ryan)____139,140
Hours of labor:
Closing time o f barber shops— constitutionality of ordinance— (Falco
v. Atlantic C ity)---------------------------------------------------------------------- 140,141
Employment o f women—constitutionality o f statute (Radice v. New
Y o r k )________________________________________________________ 141,142
Employment o f women and children—constitutionality o f statute
(State v. Collins)---------------------------------------------------------------------- 142,143
Hours o f service—railroads—yardmaster directing train movements
(United States v. Atchison, T. & S. F. By. C o.)________________ 143,144
Housing—regulations o f rents— constitutionality o f statute— “ emer
gency” —basis o f legislation (Chastleton Corp. v. Sinclair)__________ 144,145
Interference with employment:
City ordinance—prohibition on peddlers (Real Silk Hosiery Mills v.
City o f Richmond)_____________________________________________
146
Conspiracy—injunction—rival theaters (Peekskill Theatre (Inc.) v.
Advance Theatrical C o.)----------------------------------------------------------- 146-148
Seamen—registration—requirement o f taking turns—injunction
(Street v. Shipowners’ Assn, o f the Pacific Coast)_____________ 148,149
Labor organizations:
Actions—jurisdiction—wages— determination by court of industrial
relations (Local No. 497 o f Amalgamated Assn, of Street & Elec
tric Ry. Employees o f America v. Joplin & P. R. C o.)__________ 149,150
Attempt to force local to surrender charter—injunction— right of
union to appeal to court (Barbrick v. Huddell)-------------------------151,152
Collective agreements—
enforcement—injunction (Goyette v. C. V. Watson C o.)---------153-156
enforcement o f rules (Mosshamer v. Wabash Ry. C o.)------------ 156,157
monopolies—construction of statute (Campbell v. People)____157,158
monopolies—restraint of trade— antitrust act—Clayton Act
(United States v . National Assn, of Window Glass Manufac
turers)--------------------------------------------------------------------------- 158-162
strikes—injunction (Maisel v. Sigman)_______________________162-165
Compulsory arbitration—penalty for calling strike—Kansas Court of
Industrial Relations (Dorchy v. Kansas)_______________________ 165-167

VIII

CONTENTS

I
Labor organizations— Continued.
Conspiracy—
P age
evidence—acceptance o f money from contractor (People v . Seefe ld t )__________________________—____________ ______ _____167-169
evidence—payment for strike settlement (People v. M ader)_169-171
member defrauding association (Auto Workers’ Temple Assn, v .
Janson)------------- -------------------------------- 1---------------------------- 171,172
monopoly—combination in restraint o f interstate commerce
(Charles A. Ramsay Co. v. Associated Bill Posters)_______172-174
rules of union—loss o f employment (Ryan v. H ayes)________174,175
Employers’ associations—
conspiracy—interference with employment— damages (Carlson v.
Carpenter Contractors’ Assn, o f Chicago) (two cases)_____175-177
monopolies—
collective agreements—conspiracy—damages (Overland Pub
lishing Co. v, H. S. Crocker C o.)_____________________ 177-181
construction of statute (Johnson v. People)_______________
181
restraint o f interstate commerce— control of sale of building
materials (United States v. Industrial Assn, of San Fran
cisco )_________________________________________________ 181-185
open-shop contract—conspiracy—injunction (Trade Press Pub
lishing Co. v. M oore)______________________________________185-188
Expulsion o f local from international union—rules— injunction (S i
mons v. B erry)------------------------------------------------------------189,190
Expulsion of local from national union—relation to national organi
zation— conspiracy (Musical Mutual Protective Union v. Weber) _ 190,191
Expulsion of local from national union—rules— effect upon members
o f local union (Taussig v. W eber)-------------------------------------------- 191,192
Expulsion of member—liability for damages—suability—constitu
tionality of statute (Grand International Brotherhood of Loco
motive Engineers v. Green)____________________________________ 192-195
Expulsion of member—rules (Whitney v. K in g)----------------------------195
Industrial Workers of the World— criminal syndicalism—sabotage—
constitutionality of statute—evidence (State v. Dingman)______196-199
Injunction—
contempt—
“ civil ”— “ criminal ”—procedure (Reeder v. Morton-Gregson
Co.; Pyle v. Same)—7________________________________ 199,200
criminal offense—jury trial (Michaelson v. United States;
Sandefur v. Canoe Creek Coal C o.)___________________ 200-204
punishment—jury trial (Patton v. United States)_______ 204,205
Interference with employment— discrimination against outside con
tractors—injunction (J. I. Hass (Inc.) v. Local Union No. 17 of
Brotherhood o f Painters, etc.)-------------------------------------------------- 205,206
Interference with employment— discrimination against outside con
tractors—injunction (New Jersey Painting Co. v. Local No. 26,
Brotherhood o f Painters, etc.)________________________________ 206-208
Legislative investigation—criminal responsibility for Refusal to pro
duce documents (People v. Foster)------------------------------------------ 209,210
Libel—status o f unincorporated association (Tucker v. Eatough)_211,212
Monopolies—strike—interference with interstate commerce (United
Leather Workers’ International Union v . Herkert & Meisel Trunk
C o.)___________________________________________________________ 212-214

CONTENTS

Labor organizations— Continued.
Picketing—
Page
injunction— exclusion of strikers from wharf (Keegan v. Board
of Commissioners of Port o f New Orleans)___________ _____214,215
interference with conduct of business—coercion to hire union
helpers— evidence (Yablonowitz v. K orn )___________ _
215,216
primary and secondary boycott—injunction—relation of pro
prietors of union shops (Ellis v. Journeymen Barbers’ Inter
national Union of America,LocalNo. 52)____________________ 216-219
violation of industrial court act—interstate commerce (State v.
Personett___________________________________________________ 219,220
Protection of employees as members—constitutionality of statute—
interference with employment—injunction— Clayton Act (Mont
gomery v. Pacific Elec. Ry. C o.)_______________________________ 220-222
Railroad Labor Board—jurisdiction—powers (Pennsylvania System
Board of Adjustment of Brotherhood of Railway and Steamship
Clerks, etc. v. Pennsylvania R. C o.; Pennsylvania R. System and
Allied Lines Federation No. 90 v.Same)______________________ 223-229
Railroads— effect of strike on liability of common carrier (Gage v.
Arkansas Central R. C o.)____________________________________ 229,230
Revocation of charter— “ strike ”—loss of beneficiaries’ certificates—
power over subordinate lodges (Jennings v. Lee; Sullivan v.
S am e)________________________________________________________ 230,231
Rules— intervention by court (Carey v. International Brotherhood
of
Paper Makers)___________________________ 231-233
Rules—intervention by courts (Stivers v. Blethen et a l.)________ 233,234
Seniority rights—rules—individual rights not extinguished by mem
bership (Piercy v. Louisville & Nashville Ry. C o.)____________ 234-236
Service on representative—“ doing business” — sympathetic strike
(Pacific Typesetting Co. v. International Typographical U nion). 237-239
Status— “ citizenship” (Russell v. Central Labor Union)________ 240,241
“ Strike ”—provision of contract as to extension of time— “ lockout ”
(Pazieri-Hogan Co. v. Bender)________________________________ 241-243
Strikes—
conspiracy—interstate commerce—injunction (United States v.
Railway Employees’ Department of American Federation of
L abor)____________________________________________________ 24^246
duty of city to protect operations of street cars—attempt to pre
vent operation—injunction (Schenectady Ry. Co. v. Whitm yer)_____________________________________________________ 246,247
incitement—violation of statute (People v. Fontuccio)________ 247,248
injunction—
act of third party as violation (Taliaferro v. United
States)________________________________________________ 248,249
Clayton Act (Foss v . Portland Terminal C o.)_____________ 249,250
Clayton Act—“ irreparable in ju ry” (Great Northern Ry. Co.
v. Brosseau et a l.)------------------------------------------------------ 251-253
contempt—
(McCourtney et al. v . United States)_________________ 253,254
(Winkle v. United States)__________________________ 254,255
newspaper publication (Cohen v. United States)____ 255,256
newspaper publication (Cornish v. United States)____ 256,257
contempt proceedings—liability o f union (Anderson & Lind
Manufacturing Co. v. Carpenters’ District Council)____ 257-259

CONTENTS

Labor organizations—Continued.
Strikes—Continued.
Page
interference with trade—waiver o f strike clause (Normandie
Shirt Co. v. J. H. & C. H. Eagle)---------------------------------------- 259,260
intimidation-criminal conspiracy (Venable v. State)________ 260,261
liability o f employer for acts o f employees on strike (The No.
C -4)__ ________________________________ ____________ ______ 261,262
monopolies—injunctions— combination in restraint of interstate
commerce (Silverstein v. Local No. 280, Journeymen Tailors’
Union, e t c .) _________________________________________________
263
monopolies—interference with interstate commerce (Finley v.
United Mine Workers of America)-------------------------263-265
open-shop contract—interference with employment—injunction
(Moore Drop Forging Co. v. McCarthy)__________________ 265-268
" outlaw strike ”—interference with transportation— contract
waiving liability (American Ry. Express Co. v. Johnson)___ 268,269
picketing—
injunction—
(Pacific Coast Coal Co. v. District No. 10, United Mine
Workers of America)_____________________________ 269-271
action against unincorporated unions ( Citizens* Co. v.
Asheville Typographical Union No. 263)__________ 271,272
powers o f equity court (Adams et al. v. Local No. 400,
Cooks and Helpers, etc.)___ _______ _________________
272
status of workmen on strike (La France Electrical Con
struction and Supply Co. v . International Brotherhood
of Electrical Workers, Local No. 8 et aL)__________ 273-276
Strike to compel closed shop—misrepresentation—injunction (Hotel
& Railroad News Co. v.Leventhal)------------------------------------------ 276-278
Suspension o f members—internal organization (Jose v. Savage)_ 278,279
Licensing o f occupations:
Barber shops—beauty parlor (Keith v . State Barber Board et a l.)- 279, 280
Electricians—power o f municipality (Arms v. City of Chicago)____
280
Fishermen—constitutionality o f law of Alaska (Haavik v. Alaska
Packers* Assn.)________________________________________________ 280,281
Operating public conveyances— city ordinance—injunction (City o f
Tulsa v. Thom as)--------------------------------------------------------------------- 281,282
Plumbers—constitutionality o f statute (People v. Rogers)_________: 282
Mechanics’ liens:
Chattel mortgage— rank (Metropolitan Securities Co. v. Orlow
et a l . ) ________________________________________________________ 282-285
Laborer’s liens (Hilley v. Lunsford)----------------------------------------------285
Test bore as “ w e ll”— scope o f lien (Western Well Works (Inc.) v.
California Farms C o.)________________________________________ 285,286
Mine regulations— shot firers—constitutionality o f statute (Glendale Coal
Co. v. Douglas)---------------------------------------------------------------------------------287
Monopolies— “ public business”—power o f corporation commission to fix
rates—penalty— constitutionality o f statute (Oklahoma Operating Co.
v. Love et a l.)-------------------------------------------------------------------------------- 287-289
Protection of employees as voters—time to vote—payment o f wages dur
ing time lost— constitutionality o f statute (People v. Chicago, M. & St.
P. Ry. Co.)_._______________________________________________________ 289,290
Railroads— safety appliances— strike as justification o f failure to repair—
inspection (United States v. Western & Atlantic Railroad)__________ 291,292

CONTENTS

Page
Sabotage— criminal syndicalism—construction o f statute (E x parte
M oore)---------------------------------------------------------------------------------------------292-294
Strike insurance:
Loss— computation o f profits ( Standard Printing & Publishing Co. v.
Broth w ell)_____________________________________________________ 294-297
Loss—in a n ity to make profits under new organization (Fleet-McGinley Co. v. Broth w ell)______________________________________ 297,298
Sunday labor:
Serving meals—construction o f ordinance (State v. Black welder)___
298
Works of necessity—manufacture o f carbon black (Natural Gas
Products Co. v. Thurman)_____________________________________ 298,299
Works o f necessity— operating garage (Johnsonv. State)_________ 299,300
W ages:
Assignment—constitutionality o f statute (West et al. v. Jefferson
Woolen Mills et a l.)---------------------------------------------------------------- 300,301
Assignment—constitutionality of statute—earned and unearned
wages (Wight v. Baltimore & OhioRailroad C o.)________________ 301-303
Bonus—premiums (Johnson v. Fuller & Johnson Manufacturing
Co.)------------------------------------------------------------------------------------------ .303,304
Contract of employment—“ straight tim e” (Lindsey v. L ee)______ 304.305
Contract under duress—seamen (Shanley v. United States)______ 305-307
Hours o f labor—public works— overtime—power of State (Turney v.
J. H. Tillman C o.)____________________________________________ 307,308
Minimum wage law—
constitutionality (Folding Furniture Works (Inc.) v. Indus
trial Commission o f W isconsin)___________________________ 308,309
publication o f proceedings— duty o f newspapers— constitution
ality of statute (Commonwealth v. Boston Transcript C o.)— 309,310
Payment—
company stores— constitutionality o f statute (People v. Heirs of
Serralles)__________________________________________________ 310,311
trading stamps— constitutionality o f statute (Lawton et al. v.
Stewart Dry Goods C o.)-------------------------------------------------------311,312
weekly pay day—classification—penalties— Constitutionality of
statute (Livingston v. Susquehanna Oil C o.)_______________ 312,313
Payment on discharge—
construction of statute—waiver by contract (Burdette v. Broad
view Dairy C o.)--------------314
penalty—construction o f statute (Goodell v. Pope-Shenon Mining
C o.)-------------------------------------------------------------------------------------315,316
Payment on termination of employment—penalty—constitutionality
of statute (State v. M artin)____________________________________ 316,317
Penalty for nonpayment—
f
constitutionality o f statute ( Superior Laundry Co. v. R ose)__317,318
criminal liability—construction of statute (Ex parte M orse)— 318,319
Preferred claims—bankruptcy—“ laborers” (Cavanaugh v. Art
Hardware & Manufacturing C o.)_________________________
320
Railroad in hands o f receiver—reduction by court—United States
Labor Board (Coffee v. G ray)________________________________ 320-322
Rates—
city ordinance—constitutionality (Attorney General ex rel. Lennane v. City o f D etroit)----------------------------------------------------- 322,323
city ordinance—constitutionality (Wagner v. City o f Mil
waukee)___________________________________________________ 323-325

XII

CONTENTS

Wttges—Continued.
Rates—Continued.
Page
railroads—porter acting as brakeman—contract o f employ
ment—presumptions (Pittsburg, C. C. & St. L. Ry. v. Mara b le )_____________________________________________________ 325,326
railroads—porter acting as brakeman—regulation by order—
contract (Dick v. D avis)------------------------------ ------------ _____ 326,327
working conditions—jurisdiction of industrial court—constitu
tionality o f statute (Court o f Industrial Relations v . Chas.
Wolff Packing C o.)________ ___________ — ________________ 327-334
Seamen— double wages for deferred payment (Cox v. Lykes B ros.)335
Workmen’s compensation:
Accident—
award—basis—refusal of medical advice (Western Shade Cloth
Co. v. Industrial Commission)_____________ ________________ 336,337
disease—
inhaling irritating dust (Meade Fiber Corp. v. Starnes)— 337,338
. typhoid fever (Frankamp v. Fordney H otel)_______________
338
disease following the wetting o f a fireman (Ferris v. City o f
Eastport)___________________________________________________
339
evidence—
.(Riley v. Carnegie Steel C o.)____________________________ 339,340
employer’s report (Northeast Oklahoma Railroad -Co. v.
State Industrial Commission)__________________________ 340,341
findings of commission (Andrews v. Industrial Commission
of Colorado)___________________________________________ 341,342
presumption (Watkins v. Pittsburgh Coal C o.)___________ 342,343
injury arising out of and incidental to the employment—assault
by insane fellow workman (John H. Kaiser Lumber Co. et al.
v. Industrial Commission.of Wisconsin et a l.)______________ 343,344
occupational disease—
emphysema (Mauchline v. State Insurance Fund)________ 344,345
inflammation of lungs (Peru Plow & Wheel Co. v . Indus
trial Commission)_____________________________________ 345,346
inhalation o f gas— “ objective symptoms” (Van Vleet v.
Public Service Co. of Y ork )___________________________ 346,347
tuberculosis (Clinchfield Carbocoal Corp. v. K iser)_______ 347,348
* “ Act of God ”— concurrent cause (Dunnigan v. Clinton Falls Nursery
C o.)______________________________ _____________________________ 348,349
Admiralty—
constitutionality of amendment to Judicial Code (State o f Wash
ington v. W. C. Dawson & Co.; Industrial Accident Commis
sion v. James Rolph Co. et a l.)________________ - __________ _ 349-352
diver constructing ways fo r launching ship (Milters’ Indemnity
Underwriters v. Boudreaux)---------,--------------- ------.— --------- 352,353
stevedore, working on dock ( Scott v. Department of Labor and
Industries)_____________________ :__________________________ 353,354
workman injured while working on tunnel under navigable river
(Sullivan v. Booth & Flinn)___________ ____________________ 354,355
Alien beneficiaries—
dependency not presumed—evidence— error of procedure not
ground for review (Western Pipe & .Steel Co. v: Industrial
Accident Commission)—,_____ .--------------- ------ ------------ j_____ 355,356
dependents (Miami Coal Co. v. P eskir)— !_________356-358
treaty rights—constitutionality o f statute (Liberato v. R o y e r ). 358,359

CONTENTS

XIII

Workmen’s compensation—Continued.
Page
Attorney’s lien—settlement by agreement (Graham v. Wichita Ter
minal Elevator C o.)------------------------------------------------------------------ 359,360
Award—
agreement—vested rights (Forkasv. International Silver C o.)- 360-862
amount (Ex parte United . States Cast Iron Pipe & Foundry
C o.}_________________________________________________________
362
basis—
allowance for voluntary payments (Hulo v. City of New
Iberia)_______________________________________________ 362,363
inability to obtain work—business depression (Driscoll’s
case)--------------------------------------------------------------------------- 363,364
‘‘ loss of bodily function” (Vukelich v. Industrial Commis
sion)__________________________________________________ 364,365
loss of leg—earning capacity (Aetna Life Ins. Co. v. Indus
trial Commission)____________________________« ________ 365,366
seasonal employment (Gruber, v. Kramer Amusement
Corp.)________________________________________________ 366,367
change of condition—
limitation (American Chain Co. v. Salters)______________ 367,368
rehearing (Summit Coal & Mining Co. v. Industrial Commis
sion )__________________________________________________ 368,369
computation o f wages (Garrison v. Woodward Iron C o.)--------- 369-371
death following disability (Sinclair’s case)____________________
371
death of beneficiary—
vested right—
(La Chapelle v. Union Pac. Coal C o.)______________ 371,372
(Smith v . City o f Bluffton)________________________ 372,373
admiralty—construction of new vessel (Zahler v. De
partment of Labor and Industries)________________ 373,374
“ next o f kin” (National Power Const. Co. v. Rouleau)- 374,375
death of one dependent—right of survivor (Sw ift & Co. v. Indus
trial Commission)_________________________________________ 375,376
employee o f two employers—wage basis (Quebec’s case)--------- 376,377
medical services— claim for compensation not filed (Staff v.
Eagle Warehouse & Storage C o.)____________________________
377
review—
construction o f statute (Pittsburg Coal Co. v . Industrial
Commission)__________________________________________ 377-379
limitation (Bosquet v. Howe Scale C o.)_________________ 379,380
limitation— changed condition ( Chebot v. State Industrial
Accident Commission)_________________________________ 380-382
term— evidence—forecasting duration of temporary incapacity
(Groveland Coal Mining Co. v. Industrial Commission)____ 382,383
Award in another State—estoppel (Minto v. Hitchings & C o.)____ 383,384
Casual employment (Rissman v. Industrial Accident Commission)- 384,385
Claim—
inception o f period o f limitation (Hustus’ case)______________ 385,386
limitation—
effect of existence of war (Rogulj v. Alaska Gastineau Min
ing C o.)_______________________________________________ 386,387
effect o f existence o f war (Siplyak v. D avis)____________ 387,388
rights of insurer (Cheesman v. Cheesman)--------------------- 388,389
notice—request to investigate— “ advance payments” (Giamelli
/
v. R ahtz)__________________________________________________ 389,390
subsequent death (Johnson v. Ismert-Hincke Milling C o.)____ 390,391

XIV

CONTENTS

Workmen’s compensation—Continued.
Page
Claim by volunteer—limitation (Northwestern Malt & Grain Co.
v. Industrial Commission)_____________________________________ 391,392
Contractor—liability o f principal—“ third party” (W hite v. George
B. H. Macomber Co.; Bindbeutel v. Willcutt & Sons C o.)_____ 392,393
Contractor—noninsurance—“ maintaining and keeping in repair
buildings” (T. Johnson Co. v. Industrial Commission)__________ 393,394
Coverage—
agricultural labor—cooperative threshing association (Keefover
v. V asey)--------------------------------------------------------------------------- 394,395
agricultural labor—operation o f corn husker (Roush v. Heffelb o w e r)____________________________________________________ 395,396
Death without dependents—
payment to special fund—rehabilitation—constitutionality o f
statute (People v. Yosemite Lumber C o.)—------------------------- 396-398
payment to special funds—constitutionality o f statute (Sheehan
Co. v . Shuler)_____________________________________________ 398-400
payment to State— construction o f statute (Utah Oil Refining
Co. v. Industrial Commission)_____________________________ 400,401
Dependency—
absence o f marriage relationship—legal wife living apart from
husband (E x parte Thomas)______________________________ 401,402
both parents contributing to support of minor children—injury
to mother (F ox v. Industrial Accident Commission)------------ 402,403
child by former wife (Hudson v. City o f F lint)______________ 403,404
death of child contributing to family fund (Wisconsin Mutual
Liability Co. v. Baldus)___________________________________ 404-406
death of child not contributing to support of parents (Hagan et
al. v. Mason-Hanger Construction C o.)------------------------------- 406,407
death of son contributing to parents’ support—award—con
struction of statute (M clntire v. Department of Labor and
Industries)________________________________________________ 407,408
illegitimate child—“ dependent orphan” (Portin v. Portin)— 408,409
mother of son employed by father (Fortner v. Industrial Com
mission)___________________________________________________ 409,410
nonresident alien—evidence (Illinois Steel Co. v. Industrial
Commission)________________________________________________ 410,411
remarriage of widow—
effect on right o f child ( Ex parte Central Iron & Coal C o .)- 411,412
“ incapacitated” child (Aluminum Co. of America v. Fendn a ll)___________________________________________________ 412,413
rights o f other dependents (Tolli v. Connecticut Quarries
C o.)________________________________________________— 413-415
wife separated from husband (Mutimer v. General Electric
C o.)_______________________________________________________ 415,416
Disability—“ earning capacity” — charity(Sensk’s case)------------------416
Disfigurement—compensation benefits (Simon v, Maryland Battery
Service C o.)-------------------------------------------------------------------------------416-418
Dual employment—
independent contractor—night watchman (Sargent v. A. B.
Knowlson C o.)______________________________________________ 418,419
independent contractor—scope o f employment (Press Publish
ing Co. v. Industrial AccidentCommission)__________________ 419-421

CONTENTS

Workmen’s compensation—Continued.
Election—
Page
acceptance by employee—waiver (Junior Oil Co. v. B y r d )____ 421,422
presumption—failure to insure (Avre v. Sexton)_____________ 422,423
Employee—
“ casual employment”— machinist specially employed (Han
ger v. H. W. Walker C o.)________________________________ 423,424
general and special employers—
corporation supplying workmen (Federal Mutual Liability
Insurance Co. v. Industrial Accident Commission o f Cali
forn ia )_________________________________________________ 424<-426
workmen detailed to service of another ( State ex rel, Albert
Lea Packing Co. (Inc.) v .IndustrialCommission)_____________ 426
golf caddy—injury arising out of and in course of employment—
employment of children (Indian Hill Golf Club v. Industrial
Commission)--------------------------------------------------------------------- 427,423
hospital employee—wages (Bernstein v. Beth Israel Hospital
et a l.)____________________________________________________ 428,429
independent contractor— casual employment—religious corpora
tions— (Roman Catholic Archbishop v. Industrial Accident
Commission)______________________________________________ 429,430
partner receiving salary (Le Clear v. Smith)-------------------------- 430,431
public drayman (Hector v. Cadillac Plumbing & Heating C o )- 431,432
traveling salesman on commission (McCarthy v . Dunlevy-Franklin C o.)___________________________________________________ 432,433
Employee not on pay roll— compensation— power of commission to re
verse decision without notice (Farr v. Department of Labor and
Industry)_______________________________________________________
433
Employees of independent contractors—penalty for nonpayment of
awards—constitutionality of statute (De Witt v.State)_______ 434-436
Employer—
contractors’ employees— “ engaged in trade or business” (Bello
v. Notkins)________________________________________________ 436,437
county court furnishing tools and laborers— “ engaged in indus
try ” (Rader v. County Court o f Roane County)____________ 437,438
national guard—casual employment (Nebraska National Guard
v. Morgan)________________________________________________ 438,439
Employers’ liability—
“ employee” —policeman—failure of city to pay premiums (Fahler v . City o f M inot)_____________________________________ 439.440
injury arising out of and in the course o f employment—
death on day not worked (Kirby Lumber Co. v. Scurlock
et a l.)________________________________________________ 440-442
minor (Novack v. Montgomery Ward & C o.)____________ 442,443
occupational disease— lead poisoning—statute (Zajachuck v.
Willard Storage Battery C o.)-------------------------------------------- 443,444
violation of safety requirement—
construction of statute (Ohio Automatic Sprinkler Co.
v. Fender)____________________________________________ 444r-446
exclusiveness of remedy (Knoll v . Shaler eta l.)_________ 446-448
exclusiveness of remedy (Navracel v. Cudahy Packing
C o.)__________________________________________________ 448,449
Extra hazardous employment—injury to employee working in a
garage—numerical basis (Wheeler v. Rhoten)________________ 449,450

XVI

CONTENTS

Workmen’s compensation—Continued.
Extraterritoriality—
5 Page
basis of award—use o f artificial appliances (Globe Cotton Oil
Mills v. Industrial Accident Commission)
------- .1 --------- 450,451
construction o f statute (Altman v. North Dakota Workmen’s
Compensation Bureau)_________ ______ — _____—____^_____ 451,452
elective statute (Hopkins v. Matchless Metal Polish CO.)_____ 452-454
elective statute (Smith v. Van Noy Interstate C o .)-—__________
454
Fraud—review o f facts—findings of commission ( Solomon v. Detroit
United B y .)___________ - ______ - -------------------- ------------------------- 455,456
Independent contractor—
repair man—findings o f industrial commission ( Schoewe v.
Winona Paint & Glass C o.)------------------------------------------------- 456,457
repairs to machinery by member of firm under contract
(Machenheimer v . Department of Labor and Industries)— 457,458
Injury—
a w ard constitutionality o f statute (Smith v. Cudahy Packing C o.)458
settlement—release (Farris v. United States Fidelity &
Guaranty C o.)____________________ ___________________ 458-460.
disease following wetting (Texas Employers’ Ins. Assn. v. Jackson )_________________________________________________________
460
excessive physical exertion (Beck Mining Co. v. State Industrial
Commission)________________________________________________
461
strain (Cherdron Construction Co. v. Simpkins)____________ 461,462
Injury arising out o f and in the course of employment—
“ accident
erysipelas following vaccination (Jefferson Print
ing Co. v. Industrial Commission)_________________________ 462,463
assault by fellow employee—
“ habitual conduct” (Peavy t/. C W. Merydith Contracting
C o .)__________________________________________________ 463,464
quarrel (Furst Kerber Cut Stone Co. v. M ayo)____________
464
assault by striker while on way to work (Lampert v . Siemons
et al.) —_________________________________________________ - 465,466
; assault by strikers (Malky v. Kiskiminetas Valley Coal C o.)— 466,467
death—proximate cause—intervening agency (Upham’s c a s e ). 467,468
disobedience o f order (Hibberd v . Hughey)________________ 468,469
employee mistaken for robber (Industrial Commission v. Ernest
Irvine (Inc.) et a l.)_____________________________________ 469,470
going to work (Cudahy Packing Co. v. Parramore)_________ 470-472
hernia— evidence (Babich v. Oliver Iron Mining C o.)________ 472,473
horseplay (Chicago I. & L. Ry. Co. v. Clendennin)___________
474
lightning stroke (Madura v. City o f New Y ork )______________ 474,475
loss of foot by freezing (Cleveland v. R ice )__________________ 475,476
operating elevator without order (Randall Co. v . Industrial
Commission)______________________________________________ 476,477
shooting by unknown person (Dyer v. Rapides Lumber C o.)_ 477,478
shooting by .unknown person—inferences (Jersey Ice Cream Co.
v. Industrial Commission)_____ ____________________
478,479
slipping on sidewalk (State Compensation Ins. Fund v. Indus
trial Accident Commission o f California)__________________
480
voluntary exposure to risk (Terminal Railroad Assn, o f St.
Louis v. Industrial Commission)__________________________ 480,481
- Injury arising out o f employment—violation o f rule (F ox v. Truslow
& Fulle)________________________- __________ - _________________ 481,482

CONTENTS

XVII

Workmen’s compensation— Continued.
P age
Injury “ because of employment”—detective shot while attempting
arrest (Pinkerton National Detective Agency v. W alker)______ 483-484
Injury by third party—
effect of recovery—persons wholly and partly dependent (Corria
v. Fink B r o s .)-!--------------------------------------------------------------- 484,485
election of remedies— effect of acceptance of compensation pay
ments (Hunt v. Zako)______________________________________
485
election of remedies— “ plant”— damages (Mathewson v. Olmstea d )____________________________________________________ 486,487
measure of recovery— computation of benefits payable during life
(Bauer et al. v. Rusetos & C o.)----------------------- ------------------ 487,488
recovery— reimbursement for compensation paid—equitable rights
(Hartford Accident & Indemnity Co. v. Chartrand)------------ 489,490
subrogation—rights of insurer (London Guarantee & Accident
Insurance Co. u. Vicksburg, S. & P. R. Co.) ________________ 490,491
Insurance—
failure to provide—status of injured employee (Merrick & Coe v.
Modlin)___________________________________________________ 491,492
lapse—intent of statute (Bordson v. North Dakota Workmen’s
Compensation Bureau)____________________________________ 492-494
Insurance policy—cancellation (Hamberger v. W olf e-Smith C o.)____
494
Joint tort-feasors—payment of award by one— action for malprac
tice (Pitkin v. Chapman)-------------------------------------------------------- 494,495
Latent accidental injury—time of occurrence (Selders v, Cornhusker
Oil C o.)______________________________________________________ 495,496
Limitation—“ reasonable cause” for delay (De Felippo’s case)____
496
Medical and surgical aid—
choice o f physician (Lading v. City of Duluth)______________ 496,497
employment by claimant—
disability—evidence (Old Ben Coal Corp. v. Industrial Com
mission) ______________________________________________ 497-499
modification of award—time for review (Thompson v.
T ow le)________________________________________________ 499,500
fees—power of commission(Weinreb
v.Harlem Bakery &
Lunch Room (I n c .))--------------------------------------------------------- 500,501
refusing operation—discontinuance of compensation (Beaulieu’s
c a s e )_____________________________________________________ 501,502
Medical, etc., treatment— “ unusual cases ” —injury arising out o f the
employment (Rys’s case, White’s case,Willis’s case)------------------ 502,503
Minor illegally employed—
acceptance of benefits— suit for damages (Lopez v. King Bridge
503
C o .) ________________________________________________________
effect of stipulations— dependency (General Construction Co. v.
Industrial Commission)___________________________________ 504,505
Occupational disease—
apportionment of award—limitation (Blanchard v. Industrial
Commission)______________________________________________ 505,506
date of injury—notice (Bergeron’s case)_______________________
506
pulmonary tuberculosis—granite cutting(Wenrich v. W arning)507
Partial disability—“ increased incapacity”— opportunity for employ
ment (Ray’s case)____________________________________________ 507,508
Payment to married widow—rights of child— credits (Colorado Fuel
& Iron Co. v. Industrial Commission)__________________________ 508,509

44915°—25---- 2

xvm

CONTENTS

Workmen’s compensation—Continued.
pact
Penalty for “ serious and willful misconduct ” — double compensation
(Randolph’s case)------*------------------------------------------------------------ 509,510
Penalty for “ willful failu re” —increased compensation (Park Utah
Mining Co. v. Industrial Commission)----------------------------------------- 510,511
Permanent partial disability—
multiple injuries—basis o f awards (Bausch v. F idler)___T___511-513
specific award—
date o f beginning (Crawford v. Virginia Iron, Coal & Coke
C o .)___________________________________________________ 513,514
date o f beginning (Milwaukee Electric Railway & Light Co.
v. Industrial Commission)_____________________________ 514,515
Permanent total disability—
award for disfigurement (Clark v. H ayes)------------------------------515,516
change o f condition—award—vested right—effect o f amending
statute (Arnold & Murdock Co. v. Industrial Commission)_516,517
Prior injury—enucleation o f useless eye—award (Ladd v. Foster
Bros. Manufacturing C o.)---------------------------------------------------------517,518
Second injury—permanent total disability (Lente v. L ucci)______518,519
Settlement—
release—fraud (Cramer v. Kansas City Rys. C o.)____________ 519,520
release—mutual mistake o f fact (McCroskey v. Procter & Gamble
Mfg. C o.)_________________________________________________ 520,521
Specific award— continuing disability(Walker’s case)----------------------521
Status o f commission—judicial tribunal—power of supreme court—
constitutionality o f statute (Pine v. State Industrial Commis
sion) --------------------------------------------------------------------------------------- 522,523
Subcontractor with less than three employees— construction o f stat
ute (Kloman v . Industrial Commission o f Wisconsin et a l.)____ 523,524
Total disability—
i
loss of sight—income from investment (American Zinc Co. v.
L usk)_____________________________________________________ 525,526
other income (Equitable Coal & Coke Co. v. Industrial Commis
sion) _________________________ n----------------------------------------- 526,527
partial recovery—burden o f proof (In re Ginley)____________ 527,528
“ W illful and serious misconduct ”—violation of safety rule (Mancini
v. Scovill Mfg. C o.)___________________________________________ 528,529
W illful misconduct—notice—payments voluntarily made—loss o f
hand (Ezell v. T ipton)_________________________________________ 529-531
Workmen’s compensation insurance:
Deposited “ funds ” in foreign State— effect of foreign compensation
award (In re Phillips)---------_------------ ------------------------------------- 531-533
Employees excluded from policy—mandamus (Oxford Paper Co. v.
T h a y e r)_________________________________________________________
533
Premium rates— construction of statute (State v. Hughes Electric
C o .)___________________________________________ ^______________
534
Reciprocal associations—legality—right of subscriber to challenge—
liability for unpaid premiums (Sherman & Ellis (Inc.) v. Indian
apolis Castings C o.)----- ------------------------------------------------------------ 534-536

BULLETIN OF THE

U. S. BUREAU OF LABOR STATISTICS
no. 39i

WASHINGTON

august ,

192s

DECISIONS OF COURTS AFFECTING LABOR: 1923-1924
INTRODUCTION

Ten bulletins have preceded the present publication in a series
devoted to the presentation of decisions of courts and opinions of
the Attorney General construing and applying the labor laws o f the
United States. Prior to the year 1912, decisions were carried regu
larly in the bimonthly bulletins of the Bureau of Labor Statistics
and its predecessors as a part of that publication. Since that date,
annual volumes have been published with the exception of a single
volume for the years 1919 and 1920, and the present bulletin, which
like that, covers two years. The current bulletin contains no
opinions from the Attorney General, none construing labor statutes
having been received.
An attempt is made to select decisions of special interest and im
portance, together with illustrative decisions setting forth the prin
ciples generally applicable in cases affecting the contract of employ
ment, the safety of the employees, their compensation for injuries,
the powers and limitations of labor organizations, and in brief, all
those principles of law which affect the relations o f employer and
employee, or the status of these parties. The great bulk of the cases
are those decided in the State courts of last resort and in the Federal
courts, though in a few States the opinion of intermediate courts of
appellate jurisdiction (final as to certain cases) are reproduced.
As in past years, the National Reporter System, published by the
West Publishing Co., St. Paul, Minn., is the chief reliance for the
material used. The Washington Law Reporter is the source for
cases in the District of Columbia; and advance sheets of the Opinions
of the Attorney General are examined for matter of interest from
the Department of Justice.
An abridgment of the statements and the opinions is necessary in
order to save space, the former being usually made in the language
of the editors, while essential points in the opinion requiring authori
tative exactness are quoted, together with such other excerpts as
serve to clarify the points selected for presentation. The decision^
used appeared in the publications named below during the calendar

DECISIONS OF COURTS AFFECTING LABOR

years 1923 and 1924, with a few exceptions, where later decisions
have been incorporated on account of their connection with appealed
cases. The present bulletin covers the following reporters:
Supreme Court Reporter, volume 43, page 100, to volume 45, page 113.
Federal Reporter, volume 284, page 304, to volume 1 (2d.), page 960.
Northeastern Reporter, volume 137, page 177, to volume 145, page 528.
Northwestern Reporter, volume 190, page 785, to volume 200, page 832.
Pacific Reporter, volume 210, page 497, to volume 230, page 624.
Atlantic Reporter, volume 118, page 769, to volume 126, page 640.
Southwestern Reporter, volume 245, page 1, to volume 265, page 1119.
Southeastern Reporter, volume 114, page 625, to volume 125, page 384.
Southern Reporter, volume 94, page 1, to volume 101, page 848.
New York Supplement, volume 196, page 769, to volume 206, page 704.
Washington Law Reporter, volumes 51 and 52.

A number of decisions of outstanding interest have been rendered
during the period covered by this bulletin. The unsettled dispute
as to liabilities in the Coronado case, relative to the capacity and
responsibilities of labor organizations, decisive rulings as to the
status of the Railroad Labor Board and the Kansas Industrial Court,
a wide range of substantive provisions and administrative problems
o f workmen’s compensation, questions of construction and constitu
tionality as regards minimum wage laws, and a variety of cases in
volving the status and powers of labor organizations in their differ
ent aspects and activities, the application of the antitrust law to such
organizations and to employers’ associations, and the constitution
ality of a number of statutes relative to wage payments, the licensing
of occupations, restrictions on Sunday labor, etc., make the bulletin
one of interest to the workingman whose legal problems are given
consideration, and to every student of the industrial situation in its
judicial phases.
DECISIONS OF THE COURTS
A bse n t

V oters ’

S t a t u t e —Jones

L a w — C o n s t it u t io n a l it y — C o n s tr u c tio n

Sm ith , Suprem e Court o f Arkansas {S ep tem

ber 29,192If), 26If Southwestern R eporter, page 950.—The action in
question involved the constitutionality and construction of sections
3810 et seq. of Crawford & Moses’ Digest of Arkansas law. Section
3810 provides that where voters are unavoidably absent from the
polling place where they are entitled to vote, “ any employee of any
railroad company, traveling salesman, student of any college o f this
State or other person, being a qualified voter of the State,” may
vote by mail in accordance with the methods prescribed. A number
o f residents of Howard County, Ark., were employed on election
day in a neighboring county, harvesting peaches in a large orchard
about four miles from the Howard County line. Their votes were

ALIENS

cast under the above law, and the defeated candidate contested the
legality of the action, challenging both the constitutionality of the
statute and its application, if valid, to the parties in this case.
The circuit court of Howard County sustained the statute and
construed it as applicable to the parties herein described. On appeal
the supreme court adopted the same position, finding no limitation
in the constitution restricting the legislature in its prescription o f
plans and methods by which voters might exercise the franchise
right. “ We have nothing to do with the question of wisdom or
policy of granting this privilege to absent voters, but we find noth
ing in the constitution which prohibits the legislature from authoriz
ing ballots to be cast in that manner.” The validity of the act was
therefore sustained.
A further contention was that the peach harvesters were not with
in the class of persons indicated by the enumeration in the statute.
However, the words “ or other person” must be construed as of
general application and not to refer alone to persons of the classes
specifically enumerated, else “ no meaning whatever is given to
them, and they are entirely eliminated from the effect to be given
to the statute.”
As to the force of the words “ unavoidably absent,” it was said:
. It is unnecessary to decide in this case to what extent there may be
a judicial determination of the question of unavoidability of the
absence of such a voter from his county, for the evidence shows that
these voters were in fact absent on account of being laborers in an
orchard where peaches were being harvested, and their duties as
such laborers brought them within the terms of the statute. The
language of the statute has reference to unavoidability on account
of ordinary duties, occupation, or business. It is a relative term
when thus employed, and its extent can not be accurately measured
or defined; therefore, in any judicial review much latitude must
at least be allowed the voter in determining whether or not his
absence is unavoidable.
The conclusion was reached, therefore, that the trial court had
decided correctly in allowing the ballots in question to be counted,
and this judgment was accordingly affirmed.

A liens— C hinese S eamen — N ot L aborer U nder E xclusion
A ct— United States ex ret . L w n Y ou n g v. Stum p , United States
Circuit Court o f A ppeals , F ourth Circuit

(J u ly 5 ,1 9 2 3 ) , 292 F e d —Lum Young, o f Chinese birth and nation
ality, was employed as a bona fide seaman on the American steam
ship Oritani. While on a voyage from Boston, Lum Young at
tempted to go on shore leave temporarily at Baltimore and was re-

eral R eporter , page 3 5

DECISIONS OF COURTS AFFECTING LABOR

strained by the Commissioner o f Immigration, pursuant to sub
division 11 o f regulation 10 of the Department o f Labor. Habeas
corpus was brought, and from a judgment denying the writ the peti
tioner appealed.
The question as to the rights o f alien seamen, including those o f
Chinese nationality, has been reviewed by the courts in numerous
cases, particularly where bona fide seamen on voyages have been re* fused the right to land under provisions o f the treaty between the
United States and China, or the Chinese exclusion acts, or o f the
provisions of the immigration acts o f the United States. As to this
situation the court said:
There is no case under the facts here, where the right to shore
leave has been denied to a bona fide foreign seaman passing in and
out o f the harbors o f the United States in the lawful exercise o f his
business. Seamen as such are not within any inhibited class, and
from their business and calling are not persons seeking to gain ad
mission to this country in the sense o f becoming a part o f the same,
or citizens thereof; but, on the contrary, while engaged in their law
ful avocations as seamen, navigating the seas, they seek merely the
right to pass in and out o f our ports and harbors. Our treaties and
laws have with care prescribed those who may and who may not
come within our borders, and too much pains can not be taken to
see that the restrictive provisions respecting vicious and undesirable
incomers are rigidly enforced. But this should not cause us to
stretch such laws, and the requirements imposed under them, in the
effort to better our domestic conditions, so as to make them appli
cable to persons and things not within their purview.
The district court denied the writ on the ground that the immi
gration act should control, and as rule 10, issued pursuant to section
32 of the act, provided that a bond in the penal sum o f $500 should
be given by Chinese seamen before landing, Young could not go
ashore without complying with the rule.
The circuit court of appeals said:
We are unable to concur in the conclusions o f the court below,
either as to the meaning o f section 32 o f the immigration act, or as
to the authority o f the Secretary o f Labor, under the rule issued
pursuant thereto to detain on shipboard a bona fide Chinese seaman
coming temporarily into the ports o f the United States, following
his vocation and calling, and without the purpose to remain there.
Our conclusion upon the whole case is that the appellant, a bona
, fide seaman, touching temporarily at an American port, was entitled
to shore leave, and to land in pursuit of his calling—neither the
treaty with China nor the Chinese exclusion act including such sea
men in their exclusive and restrictive provisions—and that the ap
pellant was entitled to discharge under the writ o f habeas corpus
prayed for.
The decision o f the lower court was reversed, one judge dissenting.

ALIENS

A liens— C ontract L aborers— T elegraph O perator.— E x parte
Gouthro , United States District Court , District o f Michigan {F ebru
ary 21, 1 92 4), %96 Federal R eporter, page 506 .—This case involved
the construction o f the immigration law o f February 5, 1917, as
amended.
Mae E. Gouthro was a telegraph operator employed by the West
ern Union Telegraph Co. at its office at Sidney, Nova Scotia, and
came to the United States on a transfer to the company’s station
in Boston, Mass., entering the country at Yanceboro, Me., on a rail
road pass furnished by her employer. She was held for exclusion
as having had her passage paid by a corporation, as being a contract
laborer, and as having entered without inspection by means o f false
and misleading statements. The court found that the interstate com
merce act permitted ‘ the issuance of free passes to employees of
telegraph companies,7’ and there was no evidence of any corpora
tion having paid for this pass in any way. The furnishing of such
a pass for this purpose was no violation o f the immigration act, so
the first point could not be sustained.
As to the second contention, the court found that the occupation of
the applicant was one requiring skill and experience, and was not
manual or physical, but mental labor, so that she was not within
the prohibition o f the law with regard to contract labor.
The use of false or misleading statements, “ thereby entering with
out inspection,” was next examined. It was undisputed that an in
spector had boarded the train and questioned the applicant as to her
purpose in the journey and how long she was going to remain. She
asked him about payment o f the head tax, which she was prepared to
pay, but he told her that unless she was going to stay more than six
months she need pay none. Not being certain how long she would
remain, she agreed to make the payment if she remained more than
six months, but before that term expired she was arrested as unlaw
fully in the country. As to this contention also, the courts found
nothing to support the Government’s accusation, since an inspection
had been made and the inspector was entirely free to pursue his
inquiries at w ill; and even if false and misleading statements had
been made, the fact remained that the entrance was not “ without
inspection.”
The petitioner was therefore ordered discharged and released from
custody.

A liens— I mmigration — “ W if e ” of A dmissible or D omiciled
A lien — P roxy M arriages— E x parte Suzanna, United States D is
trict Court , D istrict o f Massachusetts (<January 8, 1 9 2 4 ), %95 F e d
eral R eporter, page 718 .—This

case involved the legal meaning of

DECISION'S OP COURTS AFFECTING LABOR

the word “ w ife55 as used in section 3 of the act of Congress of Feb
ruary 5, 1917, as amended. This act prohibits the admission of an
illiterate alien woman over 16 years of age unless she is the “ wife,
mother, grandmother, or daughter of an alien lawfully seeking ad
mission to the United States, or already established here.”
Sabina Suzanna could neither read nor write, but claimed the
right to admission as the wife of Manuel Gomes, a resident o f Phila
delphia. Admission was refused solely on the ground that she was
not Gomes’s wife, the Portuguese quota not being filled. There was
no evidence that the marriage was fraudulently contracted for the
purpose of evading the immigration law. The facts as briefly sum
marized by the court are as follow s:
Manuel Gomes was domiciled in Philadelphia. He contracted a
marriage with Sabina Suzanna by proxy. The law of Portugal
allows such proxy marriages (Ringrose Marriage and Divorce Laws,
p. 117 et seq.),‘ and the required forms were properly carried out.
The woman came to this country and was prevented from landing
by the immigration authorities on the ground that she was illiter
ate. They refused to allow her to land as being Gomes’s wife, taking
the position that the proxy marriage was invalid under the laws of
the United States.
District Judge Lowell found no authority determining the validity
of proxy marriages in either England or the United States. In dis
cussing the question the necessary distinction between two different
senses of the word 64marriage ” was emphasized. “ In one sense it
designates the ceremony by which two persons are united in wedlock.
In the other sense it designates the state o f wedlock itself. * * *
The law o f marriage as a status depends upon that of the domicile
of the parties, according to the decisions o f many English and
American courts.” (Cases cited.)
The opinion concludes:
In an article in the Harvard Law Review for the year 1919 (32
Ilarv. L. Rev. 473), Professor Lorenzen recites the history o f proxy
marriages, and comes to the conclusion that such a marriage is valid
in any State of the Union where common-law marriages are recog
nized.
The question must be decided in this case on the law of Pennsyl
vania, as Gomes was domiciled there. It is well settled in Pennsyl
vania that a common-law marriage is valid. We have seen that the
overwhelming weight o f authority—in fact, the unanimous opinion
of all judges and text-writers—is that a marriage contract, if valid
where made, is valid everywhere, provided that it is not celebrated
between two persons who are too nearly related to each other, or
between two persons one of whom had a wife or husband still living.
There is nothing in the law of Pennsylvania which I have been
able to discover requiring the personal presence of the parties at the
ceremony, and I agree with the learned opinion of Professor Loren
zen that the proxy marriage celebrated in Portugal is valid in Penn

ALIENS

sylvania. The result is that Sabina Suzanna was the wife of Manuel
Gomes, and that she had the legal right to enter the United States.
A writ directing the release from detention was therefore ordered
to issue.
A liens— R ight

to do

nance .— Cornelius et oil.

B usiness— C onstitutionality

O rdi

C ity o f Seattle et ail., Suprem e Court o f

'Washington (F ebruary 14, 1 92 3), 213 Pacific R eporter, page 17 .—
Carroll Cornelius, the owner of the Cornelius Cafe, in the city of
Seattle, Wash., and other proprietors of restaurants, hotels, and
public eating houses made contracts for the removal of the garbage
which constantly accumulated on their premises. The refuse was
sold to persons who used it for feeding hogs. Because o f the large
amount of garbage accumulated each day in the city, a large number
of hog ranches had been established near the city, many o f which
were owned by subjects of the Emperor of Japan. I. W. Ringer
operated a large hog ranch near the city, which was not a financial
success, as he could not compete with other ranch owners in purchas
ing the garbage. The city council passed an ordinance requiring the
owners of hotels, restaurants, and public eating houses to place all
garbage in sanitary containers and provided for the letting o f con
tracts to responsible citizens of the United States by the city board
of public works to collect and remove the garbage under the super
vision of the commissioner of health.
In compliance with the terms of the ordinance, the board of
public works let a contract to the Pacific Meat & Packing Co. to
remove the garbage from a described section of the city. This com
pany was incorporated, with Ringer as president and a member of
the board of trustees, to take over Ringer’s hog ranch and other
assets.
Cornelius and others, Japanese subjects, brought an action to
enjoin the enforcement of the ordinance in question and to enjoin
the operation o f the contract let to the Pacific Meat & Packing Co.
It was held that the ordinance was not for the benefit or protection
of public health but was a part of the plan to benefit Ringer and
bar Japanese from purchasing garbage in the city, and as such was
arbitrary, unreasonable, and void. It was also contended that the
ordinance deprived the plaintiffs of due process and equal protection
of the law.
The relief sought was refused, and an appeal was taken to the
supreme court of the State. That court affirmed the action of the
lower court and sustained the validity of the ordinance. With
reference to the contention that the ordinance violated the due
process and equal protection clauses of the State and Federal Consti

DECISIONS OF COURTS AFFECTING LABOR

tutions, the court said that the contention was predicated upon
the premise that Cornelius and others had a property right in the
garbage because it was of market value as hog food, but the court
held that there was no such property right, according to the estab
lished rule. It was then contended that to bar the aliens involved
in the suit from bidding for the contract was a violation of the
rights guaranteed them by a treaty existing between Japan and the
United States. The court admitted that the fourteenth amendment
applied equally to aliens as to citizens, but further said:
It is also true that common occupations and businesses o f the
community are protected under these provisions of the constitutions
from prohibition by the legislative power. But, as we have seen,
the right of a city to prohibit scavenging and garbage collecting has
been repeatedly sustained as not falling within the rule of common
occupations and businesses. The service performed is a public
service and the contractor becomes in effect a public employee. And
this court has held * * * that a city may limit public employ
ment to citizens of the United States.
Neither is the right to be employed by the city such a right as is
protected to the subjects of the Emperor of Japan by the existing
treaty between the United States and Japan. By the terms of the
treaty subjects of the Emperor of Japan are insured the liberty “ to
carry on trade, wholesale and retail, * * * and generally to do
anything incident to or necessary for trade, upon the same terms as
native citizens or subjects, submitting themselves to the laws and
regulations there established.” This does not confer a right to
engage in public work.
In support of this conclusion the court cited Crane v. New York
(239 U. S. 195, 36 Sup. Ct. 85) and Heim v. McCall (239 U. S.
175, 36 Sup. Ct. 78; see Bui. No. 189, pp. 50-53), in which a law
of New York prohibiting the employment of aliens on public works
was sustained. The judgment of the court below was accordingly
affirmed.
A liens— R ight to do B usiness— C onstitutionality of O rdi
nance .— M iller v. C ity o f Niagara Falls , Suprem e Court o f N ew
Y o r k , A ppellate D ivision (January 2 ,1 9 2 If,), 202 N ew Y o r k Su pple
m en t , page 51(9.—An

ordinance of the city of Niagara Falls pro
vided that a license must be secured to sell at retail any beverages
except tea, coffee, cocoa, chocolate, milk, or buttermilk. It provided
further that no permit should be granted to an alien. The plaintiff,
Peter Miller, was the proprietor of a restaurant and an alien. He
sought to have the ordinance declared invalid, and from an order
denying his application for an injunction pendente lite an appeal
was taken.
The supreme court held that the validity of such an ordinance had
already been established in a prior case, Safee v . City of Buffalo

ASSOCIATIONS

(204 App. Div. 561, 198 N. T . Supp. 646), decided by the same
court, and that the only question raised by the appeal was whether
the provision “ denying the right to obtain permit or license to aliens
makes the ordinance void.” Mr. Justice Sears, speaking for the
court, said:
An alien resident is undoubtedly protected under the fourteenth
amendment of the Constitution of the United States in his right to
earn a living by following the ordinary occupations of the commu
nity. But the constitutional provision does not deprive the State of
its police powers.
The court cited Terrace v. Thompson (263 U. S. 193, 44 Sup. Ct.
15)j with approval, as to the police power:
“ and in the exercise of such powers the State has wide discretion
in determining its own public policy and what measures are neces
sary for its own protection and properly to promote the safety, peace
and good order of its people.”
The court pointed out that, as said in Safee v. City o f Buffalo,
“ it may reasonably be said that the welfare o f the community will
be best served by excluding from licensees such persons as are not so
attached to the institutions of our country as to be in the class of its
citizenry.”
Under the principle stated the court held the classification valid
and that, as it could be made by the State, “ it may be made by the
municipality to which the power to legislate has been duly dele
gated.”
The order appealed from was affirmed.

A ssociations— M edical. T reatment— M alpractice— R esponsibil
C hoice of P h ysician — S tatus of A ssociation M embers.—

it y for

Carr v. N orthern Pac . Beneficial A ssn ., Suprem e Court o f 'Washing
ton (January 7, 192 If), 221 Pacific R eporter , page 979.— J. E. Carr

was a member of the Northern Pacific Beneficial Association, which
is made up of employees of the Northern Pacific Railway Co. Its
purpose is to furnish medical, surgical, and hospital attention to its
members, who contribute to its* support by regular payments. It
was a voluntary association, and as the members were too numerous
to be made party to an action at law, the suit was brought against
certain named officers and agents.
In January, 1913, Carr went to the hospital for treatment on
account of appendicitis and a psoas abscess and was there treated
by a surgeon who was said not to be “ in sympathy with the defend
ant’s method of doing business and providing medical and surgical
aid,” so that in selecting the said surgeon to treat the plaintiff the
organization was negligent and did not use due care. The same

DECISIONS OP COURTS AFFECTING LABOR

charge was made as to the selection of the physician who cared for
and dressed the plaintiff’s wound, this physician being “ notoriously
negligent and incompetent.” For this negligent treatment, which
continued up to March, 1918, and its consequences, damages were
claimed in an action. In the superior court of Franklin County the
suit failed, and from the judgment against him the plaintiff appealed.
Judge Parker, for the supreme court, set forth the status of mem
bers of the organization to which Carr belonged as follow s:
Being furnished no other information touching the nature o f the
association and his relation to it, we must presume that he was a
member not only with equal rights but with equal powers touching
its management with all other members, and that its management is
the result of the voice of all such members expressed in some appro
priate manner.
Reference was then made to an earlier decision by the Supreme
Court of Minnesota. (Martin v. Northern Pacific Beneficial Assn.,
68 Minn. 521, 71 N. W . 7 0 1 ; see Bui. No. 14, p. 88.) Speaking of
this same organization it was there said that:
As the deceased was a member of the association, he must be deemed
to have been as much a party to the selection o f the physicians and
nurses at the hospital and its management as any other member of
the society. No member had any greater or less rights or obligations
than the deceased. The employees at the hospital were just as much
the servants o f Mr. Martin as they were of all or any other one o f
his associates, and he could not bring a suit against another for a
personal wrong done him by such servant, because it would be as
much the act of Martin as that of his associates. I f a tort has been
committed upon the person of Mr. Martin by the employees o f the
association, the remedy is against those who committed it, either
separately or jointly, and not against the association.
On the view there taken the judgment below was affirmed, three
judges dissenting.
The dissent stated that the decision 44seems to be in conformity
with legal precedent, but it is not in accordance with justice, or what
the law ought to be.” The association is not a partnership, but an
extensive voluntary association with elected governing officers chosen
by the members.
No one ever heard of a member*of a community or of a private
corporation being precluded from suing the municipality or the
corporation for personal injuries inflicted upon the citizen or the
stockholder by the negligent acts of those carrying on the functions
of the municipality or the corporation.
The dissent concludes,“ It is not well to adhere blindly to precedent
and lose sight o f remedial justice.”

CONTEMPTS OF COURT

B ribery of E mployees— G iving or O ffering G ratuity to O btain
T rade S ecrets—State v. Landecker, Suprem e Court o f N ew Jersey
( October 20,192%,), 126 Atlantic R eporter, page 408.—Edward

Lan
decker was convicted of corruptly offering and paying an employee
of the Richards Chemical Works, one La Valle, a sum of money
with intent to procure from him secret formulas used by his em
ployer in the manufacture of preparations used in the finishing of
silk goods, in violation of the statute making such an act a misde
meanor. (P. L. 1908, p. 587.) The defendant brought error, seek
ing to have the conviction reversed. The first ground relied on was
.that there was no evidence in the case to show that the Richards
Chemical Works was injured by the act of the defendant, “ in that,
in order to justify a conviction, the burden rested upon the State to
prove not only the obtaining or attempting to obtain the secret
formulas by the defendant but that the selling of them by the man
La Valle was harmful to the company.” The court replied to this
contention that the legislature had placed no such limitation upon
the fact of criminality.
The test is whether the person who gives, offers, or promises the
gift or gratuity does so with the intent denounced by the statute.
Where that intent appears, it is quite immaterial whether its suc
cessful carrying out will be injurious to the business of the employer
or not. The legislative purpose, as declared in the caption, is to
punish attempts to corruptly influence agents, employees, or servants
with relation to the matters indicated in the body of the act; and
proof that such attempt has been made is proof that the statutory
provision has been violated.
Cross-examination to ascertain the motive in committing the crime
was held proper as bearing on the motive. The conviction was
affirmed.
C ontempts

C ourt— J ury T rial— C onstitutionality

ute—Pacific L iv e

Stock Co.

S tat

Ellison Ranching Co., Suprem e

Court o f Nevada (M arch 8 0 ,1 9 2 3 ), 213 Pacific R eporter, page 700 .—

Chapter 94 of the acts of the Nevada Legislature of 1913 provided
that “ in all cases of contempt arising without the immediate view
and presence of the court the person charged with contempt may
demand and have a jury trial.” The statute also required another
judge to preside in case the defendant objected to the judge of the
court of which Jje is alleged to be in contempt, acting as trial judge.
The parties in the instant case were neither employers nor work
men, nor was any labor question involved. However, the statute
is one of interest to labor, being of a form frequently passed as a
means of regulating the punishment of contempts where injunctions

DECISIONS OF COURTS AFFECTING LABOR

have been issued in labor disputes. The facts of the case are not of
importance, the question o f constitutionality being the only matter
of interest. After citing the statute, Judge Orr, who delivered the
opinion, said:
The question presented is not a new one. It has been passed upon
by many of the courts of the country, both State and Federal. The
decisions are uniform to the effect that, while the legislature may
enact laws which regulate the exercise o f the power of courts to
punish for contempt, they can not diminish or abridge that power.
That power to punish for contempt is inherent in courts of record,
created by the constitution, and can not be substantially abridged or
diminished by the legislature is conceded in this case; but it is con
tended that the act in question in attempting to provide for the
intervention o f a jury is but regulatory and does not abridge or
diminish the power of the courts to punish for contempt.
The decisions of a number of courts in which similar statutes were
considered were then reviewed, all o f them being in support o f the
conclusions arrived at in the instant case. Consideration was then
given to the argument that to say that the intervention of a jury
would abridge or diminish the power of the court was an expression
o f lack of confidence that juries would perform their sworn duty.
The court rejected such a suggestion, but held that there was a more
far-reaching proposition involved, i. e., that the people through the
Constitution had invested the courts with powers that they must
retain so long as the people themselves left the organic law without
amendment. Continuing, the court said:
In so declaring we but reaffirm the principle that the three great
divisions of this State government must remain separate and dis
tinct, each retaining the powers invested by the constitution without
encroachment one upon the other.
The legislature did not give to the courts power to punish for
contempt; the legislature can not take it away nor abridge or dimin
ish it.
Holding that the statute attempted “ a substantial abridgment of
the inherent power o f the court to punish for contempt,55 it was said
to be void and unconstitutional in so far as it related to a trial by
jury.
C ontract for W ork— C ompliance w it h S tate C onstitution —
R ight of F oreign C orporation— R ecovery for W ork D one— I n

v. Laheview Canal C o ., Suprem e Court o f
15, 1 9 2 4 ),
Pacific R eporter, page 850 .—The
Interstate Construction Co. was a Colorado corporation with its
main offices at Denver. The Lakeview Canal Co., a Wyoming cor
poration, wishing work done in the construction of a canal in Park
County, Wyo., made a contract with the construction company to
terstate C om truction Go.
‘W yom ing {A p r il

CONTRACT FOR WORK

that end. Before the work was completed there was a dispute be
tween the parties and it was abandoned, the construction company
claiming a balance of $38,442.58 due for work and material.
A provision of the constitution of Wyoming forbids any corpora
tion, domestic or foreign, “ to transact business in this State until
it shall have accepted the constitution o f this State and filed such
acceptance in accordance with the laws thereof.” The failure of the
construction company, a foreign corporation, to file such acceptance
was pleaded as a defense to its claim for the amount alleged to be
due. Judgment was for the canal company in the trial court, and
this was affirmed on appeal to the Supreme Court of Wyoming.
This provision of the constitution had been previously construed
as mandatory and making “ unlawful, voidable and unenforceable
all contracts entered into in this State in violation thereof.” On
this view no subsequent compliance with the law could make the
unlawful contract valid, since if “ a contract, or any business that
gives rise to a claim is unlawful, it can not be made lawful by
anything that is done subsequently.”
The fact that the contract was made at Denver, Colo., likewise
does not alter the situation, as it had reference “ solely to business
to be done in this State,” and as the law forbids the doing of any
business in the State by a foreign corporation until acceptance of
the constitution, the form or place of the contract is immaterial.
“ I f the business is done within the State, without accepting the con
stitution, it is done unlawfully.” Other contentions were likewise
disposed of adversely to the plaintiff’s case, the conclusion being
reached that it “ has no right to maintain the action herein.”
The judgment of the lower court was therefore affirmed.

C ontract for W ork— W age I ncrease— E ffect of W ar— T hreat
S trike— P romise to R ecoup C ontractor— C onsideration— C on
stitutional R estrictions on M unicipalities -1—McGovern et al. v.

City of New York Court of Appeals of New York (January 9
1923 138 Northeastern Reporter page 26.—Patrick McGovern and
others, plaintiffs in this case, in August, 1916, made a contract with
the city of New York for the construction of a part of a subway
project, the consideration involved being in excess of $4,000,000. In
December the men employed demanded an increase in wages. An
advance was allowed, a scale being fixed to continue for a stated time.
In February, 1917, before this time elapsed, a new advance was de
manded, and the contractors were urged to continue the work, the
commission *in charge insisting that it must not be interrupted, and
assuring the contractors “ that a way would be found of reimbursing

DE ISIONS OP COURTS AFFECTING LABOR

them for the increased expense.” The commission also expressed
its opinion that war with Germany would soon be declared, which
would result in great increases in cost of both labor and material;
but there was a promise to pay such increases and to cooperate with
the contractors in procuring the legislation necessary to that end.
With the declaration of war in April, wages on public works and
in war and other industries advanced both in and out of the city.
The contractors declined to meet the demands unless reimbursement
was promised, and the board of estimate and apportionment and the
commission in charge of the subway construction “ held joint and
separate meetings,” as a result of which they “ expressly, jointly, and
severally promised and agreed” to make good the extra financial
burdens of the contractors “ due to the war.”
The validity of this contract or agreement was contested in the
case in hand, Judge Cardozo delivering the opinion. The work was
o f such magnitude, employing about 6,000 workmen, that the addi1 tional costs would have amounted to some millions of dollars. The
contractors’ claim was that the concession promised by the city was
“ not a gift in form or substance,” but was “ the stipulated equivalent
for the surrender of a right.” Judge Cardozo stated that this right,
“ when subjected to analysis, will be found to be illusory.” Refer
ence was made to a provision of the constitution which forbids a
legislature and city council or any board of supervisors to grant
extra compensation to contractors. This was said in itself to con
demn the contract.
Continuing, the judge said:
We are told that a right was surrendered when the contractors
paid the wages that were necessary to keep the work in motion, and
avert its disruption and suspension as the result o f a protracted
strike. In the circumstances disclosed by the complaint they could
not have done less without being guilty o f a wrong. They had
covenanted to build the road and to keep at all times upon the work
a suitable supply of men. This meant that they must hire the labor
and pay the wages necessary to permit them to proceed. Their duty
was to avert the strike unless there was a reasonable prospect that
without unreasonable delay other labor could be obtained at cheaper
rates, not less, however, than those prevailing in the market. Pay
ment of less is forbidden in the statute.
We are to determine the character o f the transaction not from
isolated sentences, but from its origin and purpose as revealed in
the pleadings as a whole. The statement that war increased the cost
o f labor can only mean that war increased the prevailing or market
rates at which labor could be obtained.
We find it incredible, indeed, that the municipal authorities would
have been willing in any other circumstances to subject the munic
ipality to so enormous an increase o f expense. I f the complaint is
read in its entirety, the conclusion is inevitable that the workmen

CONTRACT FOR WORK

asked for wages not unreasonable in amount, that owing to the war
labor could not be obtained at lower rates, and that neither a strike
nor any reasonable opportunity to look tor labor elsewhere would
have changed the situation.
The plaintiffs, therefore, did nothing more than it was their duty
to do without additional reward. [Cases cited.] Their case is built
on the mistaken notion that a strike in and of itself was sufficient to
relieve them of a duty to proceed. The contractors, it is said in the
complaint, “ were under no duty or obligation to terminate or pre_ vent said strike, or any strike or threatened strike, as their respective
contracts contained provisions in substance to the effect that, in case
of strikes, their respective times to complete and perform their con
tracts would be extended for a period o f time equaling the time or
times any such strike or strikes might or should continue or exist,
and without penalty.” The contract is referred to in the complaint
as incorporated therein, and a copy was handed up to us on the
argument. The plaintiffs misconceive its effect. After declaring
that time is o f the essence, and providing for liquidated damages
for delay, it extends the time for completion in case the contractor
shall be actually and necessarily delayed by reason o f any labor
strike not caused or instituted or provoked by the contractor or his
agents. A strike due to the failure o f the contractor to pay the
wages essential to keep the work going, if those wages are reasonable
in amount, and if cheaper labor can not be obtained at the prevail
ing market rates, is not one resulting in necessary delay, but, on the
contrary, is caused or provoked by the contractor itseli. The con
tract does not mean that whenever a strike is threatened the con
tractor may abandon all effort to avert it and fold his hands until
such time as lower wages may prevail. The plaintiffs stress the fact
that the strikers abandoned a scale of wages which had been estab
lished to hold good till the construction contracts were completed.
The contracts o f employment, however, were terminable at will.
The men did not agree to serve till the completion o f the work, nor
the plaintiffs to employ them till that time. The severance o f the
relation did not constitute a wrong. But the wrong, if it were
proved, would not enlarge the plaintiff’s rights. They may not set
up their own contract with their own employees as an excuse for the
nonfulfillment of their duty to another. In such a situation nothing
o f value was given up by the contractors when they gave up the op
portunity to involve the city in a strike. They made no claim to the
city, they make no claim to the court, that they expected, if these
men left, to find others to fill the places. Their position was that
they had reached the limit of their own readiness to proceed with
the performance of a losing contract. The proposition to modify
the contract was not presented by the plaintiffs, nor accepted by the
city, as one for the surrender of a veritable opportunity to find
cheaper labor elsewhere. It was presented and accepted on the
theory that the opportunity did not exist either in expectation or in
reality. The plaintiffs did not take the attitude that they could carry
the work on at a lower cost, and that to benefit the city they would
assume an extra burden. The plaintiffs took the attitude that they
proposed to stand aside, and that since the work could not be done
more cheaply it would not be done at all.
44915°—25----- 3

DECISIONS OP COURTS AFFECTING LABOR

O ther considerations were taken u p, but the decision rested chiefly
on the points noted and restdted in a declaration o f the in valid ity
o f the agreem ent.

C ontract of E mployment— A bandonment— M odification— A n
derson v. Standard Lumber Go., D istrict Court o f Appeal o f Cali
fornia (November 16, 1923) , 221 Pacific Reporter, page 686.—George

A. Anderson sued the Standard Lumber Co. on an alleged contract
o f employment. He claimed to have been hired by its superintend
ent to act as an “ all-around yardman ” at its plant, at a salary of
$250 per month. The contract was made in Minnesota for work in
California. The superintendent had specific authority to hire cer
tain workmen, but none o f the rank or rating claimed by Anderson.
When Anderson reached California he found that he was not suffi
ciently familiar with conditions to fill the place agreed upon, and
stated that “ he couldn’t handle the job,” and that “ he didn’t know
sugar pine from white pine.” He was afterwards put to work by
an authorized party as night foreman at $225 a month. The gang
with which he worked was let out after six weeks, and Anderson was
offered another job at 65 cents an hour, but declined. A few days
later he was put to work in the box factory where he was paid $5
per day, the same as others for like work. After a few days he was
discharged for leaving the factory before the whistle blew. He
accepted payment at the rate of $225 per month while in charge o f
the night force, but refused payment at the rate of $5 per day in
the box factory, and took the case up with the State labor commis
sioner. The employer thereupon paid the amount due Anderson to
the commissioner. “ There was no attempt made to show that the
services rendered were reasonably worth more than the allowance
paid therefor.”
Anderson contended that the original contract was binding on the
company, even though the superintendent had exceeded his authority
in making it. The court stated the law to be that, even though an
agent violates his instructions or exceeds the limit set to his au
thority, he will bind his principal in dealing with third persons “ if
his acts are within the scope o f the authority which the principal
has caused or permitted him to appear to possess” ; but a belief
founded only on the agent’s statement is not enough. The contract
made in Minnesota was with an agent who had not yet entered the
employment of the company, so that no representation by it could
be pleaded. He had a letter authorizing certain activities, but
nothing beyond that. “ From the foregoing it clearly appears that
the defendant was not bound by the agreement on which the plaintiff
sued.”

CONTRACT OF EMPLOYMENT

It was further said that even if there had been a binding contract,
Anderson’s statement that he was not able to do the work and his
agreement to do other work at a smaller salary amounted to an
abandonment of the original contract—not an oral modification of a
written contract, but a substitution of an oral contract for a written
contract with the superintendent.
No basis for the action to recover on the grounds of the original
contract therefore existed, and the judgment of the court below in
favor of the defendant company was accordingly affirmed.

C ontract of E mployment — A greement not to E mploy C ertain
P ersons— P ublic P olicy— W inthrop v. A llen , Supreme Court o f
South Carolina , (D ecem ber

1922) 115 Southeastern R eporter ,
Winthrop owned a large body o f land in
Hampton County, S. C., a portion of which he rented to Paul H.
Allen. The remainder of it was rented to other white tenants, who
had in turn sublet it to colored tenants. There were some 20 or 25
of these tenants, including the members of their families capable of
doing farm work, who had rented land south of a locality desig
nated as “ the Gaul,” and were living there. The contract between
Allen and Winthrop for the rental of the land contained a provision
that the labor south of “ the Gaul ” should not be employed by Win
throp at all but should be left for Allen to employ in gathering his
crops at times when the colored tenants did not work on their own
crops. Allen did not pay his rent and Winthrop brought an action
to recover it. Allen set up in defense a counterclaim because o f
Winthrop’s breach of his express agreement and contract with Allen
that the labor residing south of “ the Gaul ” would not be disturbed
by Winthrop. It was shown that at the time cotton was to be
picked, Winthrop notwithstanding his agreement not to do so, moved
about 20 negro laborers away and worked them in his own fields,
thereby depriving Allen of the use of their services. He claimed to
have suffered damage from the acts o f Winthrop. Judgment was
rendered in favor o f Allen and an appeal was taken to the supreme
court o f the State. The question raised was whether the alleged
contract between the parties which was made the basis of Allen’s
counterclaim was against public policy and therefore not good as a
claim for damages.
Judge Cothran reversed the lower court on the ground that the
contract was against public policy, saying:
This labor was not under any kind of contract with the defendant.
They were tenants of the plaintiff and masters o f their own time
when their own crops did not demand their attention; this labor was
not a matter of barter between the plaintiff and the defendant, and

page 745 —Frederick

DECISIONS OP COURTS AFFECTING LABOR

such a contract as is alleged was an unlawful restraint upon their
individual freedom of contract, a combination between the plaintiff
and defendant which manifestly is against public policy, as it forced
the labor to be employed by the defendant at his own price.

C ontract of E mployment— A greement N ot to E ngage in S im
B usiness— T rade S ecrets— I njunction — Kaumagraph Co. v.

ilar

Stampagraph Co. (In c .), Court o f Appeals o f N ew Y o r k (January
2 3 ,1 9 2 3 ) , 138 Northeastern Reporter, page 1^85.—The

Kaumagraph
Co. was engaged in the manufacture of transfer stamps and em
broidery patterns, which it sold. Its methods were known and used
in England, where they were patented, for many years before the
company began its business. Employees of the British patentees
were employed by the company, and it was their knowledge of the
work that enabled it to do business. These men had contracted that
“ under no circumstances nor at any tim e55would they engage in any
similar business or disclose the secrets of the process of the business,
nor engage in any similar business in certain territory without first
securing the written consent of the company.
Subsequently employees of this company, with others, organized
the defendant, Stampagraph Co., to carry on a competing business.
Among these employees were those who had the original knowledge
of the patented English methods, and who had made the Kauma
graph Co. possible by reason of their knowledge. The company
thereupon asked for an injunction to restrain the rival corporation,
and to bind its former employees from making use of its trade
secrets, claiming also a breach of the contract above noted.
The trial court granted the relief prayed, on the ground that the
employees had become possessed of knowledge of the company’s
secret processes while in its employ, and also because there had been
a breach of the contract on the part of two of the former employees.
This was reversed by the appellate division on the ground that the
secret processes in use had not been developed by the complaining
company, nor had it acquired the sole right to use them from the
discoverer of the process. Furthermore, the contracts were not en
forceable in equity as they “ savored of servitude.” (197 App. Div.
66, 188 N. Y. Supp. 678; see Bui. No. 309, p. 57.) An appeal was
then taken by the Kaumagraph Co. to the court of appeals of the
State, where the judgment of the appellate division was affirmed.
In the course of the opinion Judge Pound said:
The findings of the appellate court that the fundamental processes
were revealed by the English patents, and that knowledge thereof
was brought to plaintiff rather than obtained from it by the defend
ants Chadwick and Turned, are not without evidence to sustain them.

CONTRACT OF EMPLOYMENT

As to the restrictive covenants contained in the contracts of Chad
wick and Turner, it is well established that equity will not enforce
them specifically except to protect plaintiff’s trade secrets. An
employee will not be perpetually restrained from working for an-*
other except to prevent a breach of confidence as well as a breach of
contract. The surrender for an unlimited time of the right to use
the skill, knowledge, and experience which a workman brings to the
services o f his employer as a condition of such employment has never
been enforced by injunction.
The contract with Chadwick (the first of the English workmen to
enter the company’s service) being unenforceable, the “ keystone is
removed from plaintiff’s arch.” The English patents were said to
be open to all, and knowledge obtained from them could not be
classed as secret information obtained from the company. There
was therefore no basis for the injunction, and the judgment of the
appellate court was affirmed with costs.

C ontract

E mployment— B onus—P yrtle v. International Shoe

C o ., Missouri Court o f A ppeals (M arch 6, 1923) , 21^9 Southwestern
R eporter , page 1^32.—Charles E. Pyrtle was employed by the Inter

national Shoe Co. on a weekly basis with a bonus of 10 per cent of
his weekly wage. Later he was employed on a monthly basis of $90.
Pyrtle claimed that the defendant agreed to pay him a bonus of 10
per cent of his monthly wages, payable at the end of the year. The
circuit court had given a judgment for the defendant and the plain
tiff appealed. The court o f appeals, after examining the evidence
submitted by the plaintiff on examination and cross-examination,
held that—
Considering these answers in the light of plaintiff’s entire testi
mony, we do not think they disprove plaintiff’s case as a matter of
law.
We think the case should have been submitted to the jury, who
alone could pass upon the question o f plaintiff’s credibility and the
weight to be given to his testimony.
It was contended by the defendant that the bonus was to be paid
at the end of the year to the employees, and as Pyrtle’s employment
terminated on the last day of November* he was not entitled to it.
The court, however, held:
This point is without merit because there was no evidence adduced
to the effect that the payment of the bonus herein sued for was con
ditional upon plaintiff remaining in the employ of defendant until
the end of the year.
The judgment was reversed and a new trial granted.

DECISIONS OP COURTS AFFECTING LABOR

C ontract

of E mployment — B onus— E ffect of P romise— S cott
F . D uthie <& C o., Suprem e Court o f W ashington {J u ly 6 , 1928 ),
2J6 Pacific R eporter , page 853.—J. F. Duthie & Co. were shipbuild

v. / .

ers with a contract with the United States Shipping Board for the
construction o f certain vessels. On December 23,1918, this company
put out a statement to the effect that it wished to induce general
department foremen in its employ to continue with it and to refrain
from accepting employment elsewhere until the completion o f that
contract. To this end it promised “ the general department fore
men now in its employment that upon the completion o f its contract
with the Shipping Board the company will divide as a bonus onehalf million dollars among those o f its general department foremen
who continue in its employment until the completion o f that
contract.”
F.
C. Scott was one of these department foremen and alleges that
he relied upon this promise and remained with the company con
tinuously until October 15, 1920, when the contract referred to had
been completed. He stated also that he would not have so continued
except in reliance upon the promise, and that he had not been paid
the bonus. In order to enforce the promise referred to Scott had
brought action in the Superior Court of King County, where judg
ment was in favor of the company, and Scott appealed.
The supreme court of the State, speaking by Judge Mackintosh,
reversed the judgment o f the court below, holding that the promise
was a binding one by reason o f its acceptance by compliance with
the terms created therein. Such compliance “ created a unilateral
contract which is binding upon the offerer.” There was no mutu
ality o f obligation, which generally applies in the law o f contracts,
“ but upon performance o f the condition by the promisee the con
tract becomes clothed with a valid consideration which relates back
and renders the promise obligatory.” (6 R. C. L. 687.)
Continuing Judge Mackintosh said:
The promise here was therefore no “ nudum pactum” on that
theory, nor is it one on the theory that the promise was one for
additional pay to be given one already under contract to do the
very work for which the additional pay was promised. The argu
ment that the appellant can.not recover the bonus for the reason that
he was paid his regular salary while in the respondent’s employ over
looks the very idea conveyed by the word “ bonus” which is “ an
allowance in addition to what is * * * stipulated.” (Standard
Dictionary.) The complaint shows that the appellant was free to
quit his work at any time, and therefore was under no obligation
to do the thing which the respondent was seeking to accomplish by
its offer. The compliance with the terms o f the offer created a con
tract supplementary to the contract o f employment. By this supple
mentary contract the respondent agreed to reward the appellant for

CONTRACT OF EMPLOYMENT

remaining in its employ and refraining from “ accepting employ
ment elsewhere until this company shall complete the ships.”
Reference was then made to the cases o f Zwolanek v. Baker Mfg.
Co. (150 Wis. 517, 137 N. W. 769; see Bui. No. 112, p. 178), and
Roberts v. Mays Mills (184 N. C. 406,114 S. E. 530; see Bui. No. 344,
p. 241). In both these cases the promise of the bonus was held bind
ing even though there was a prior contract under which workmen
were engaged at fixed rates to render the services performed. After
citing other cases the court continued:
Some of these cases arose where the promise of a bonus was made
at the time that the employee entered the promisor’s employ, but
their reasoning and applicability to the present case was not thereby
lessened, for where the employee to whom the promise is made is at
liberty to cease his work at will, he is under no duty to do that which
the promise seeks to secure, and in reason, is in the same situation
as is one just entering upon such employment.
A distinction was therefore found “ between the promise o f a gift
to one for doing what he is obliged to do, and a promise o f a bonus
to one for doing what he is not obliged to do.”
The judgment of the court below was therefore reversed, with
instructions to overrule the demurrer, thus permitting the trial of
the case to proceed.
C ontract

E mployment— B ontjs— E vidence— Zampatella

Thom son-Crooker Shoe G o H a r r i n g t o n

Sam e; S h a ft

Sam e,

Supreme Judicial Court o f Massachusetts (M a y 2 1 ,1 9 2 If), llflf N orth
eastern R eporter, page 82.—The three cases above cited were before

the court on report from the superior court of Suffolk County,
which had awarded judgment to each o f the plaintiffs on verdicts.
The men were employees o f the shoe company under contracts,
mainly oral, each plaintiff testifying that a promise was made o f a
15 per cent bonus on the year’s pay, the same to be paid at Christ
mas. When Christmas arrived, a notice was posted that the bonus
would not be paid on account of business being bad. On the ques
tion of whether or not there had been a binding promise to pay the
bonus, the supreme court ruled that “ if the jury believe this evi
dence, and the question was one of fact, they could find that a legal
contract was made to pay this bonus; that it was not a mere gratuity
but a part of the contract o f service.”
Though the evidence was contradictory, it was for the jury to
decide, and as the service was apparently rendered, in part at least,
in view of the promise as to a bonus, which the jury might find to
be “ founded on a good consideration,” this entitled the plaintiffs
to the payment of the bonus.

DECISIONS OF COURTS AFFECTING LABOR

The verdict was therefore allowed to stand, and judgment was
directed to be entered accordingly.

C ontract
Gallino

E mployment— B reach— A ction

Boland, Supreme C ourt o f M ichigan

1922 ), 191 Northw estern R eporter , page 222. —A.

for

D amages—

{D ecem ber 29,

P. Gallino, a sail
ing master on the Great Lakes, claimed a contract of employment
with Boland, who was either an agent or partner of the other de
fendant, Cronin. The agreement purported to call for service as
master of a sailing boat for the navigation season of 1920 at a
salary of $2,250. No services were ever rendered under this con
tract, as the defendants did not provide a boat, nor did they pay
any of the wages agreed upon.
Suit was brought on the 20th of May, 1920, to recover the amount
agreed upon in the contract, and there was a verdict in the sum of
$2,213.50. Judgment followed, from which an appeal was taken.
One contention was that the suit had been prematurely brought,
inasmuch as at the date of its commencement the navigation season
had not been concluded. As to this, Judge McDowell, speaking for
the court, said:
We are unable to agree with the contention of counsel. His argu
ment is based upon the erroneous assumption that the plaintiff’s
action is for wages due under the contract and not for its breach.
Plaintiff’s claim was not for labor actually rendered, but for labor
which he would have rendered if he had been allowed to perform
under his contract. It was the plaintiff’s right to treat the breach
as a complete termination of the contract, to bring his action im
mediately, and. to recover for the entire term of employment.
It appeared that the trial did not take place until December, 1921,
about a year after the contract had expired and when it was possible
to discuss the question of the plaintiff’s diligence in seeking other
employment. This point was urged by counsel for the defendant,
who claimed that Gallino had not sought sufficiently earnestly to
minimize his damages by reason of the breach of this alleged con
tract. It was in evidence that he was employed for a time, but found
conditions so disagreeable that he quit that employment; also that
he sought in various ways and in different localities to secure a
position.
The court instructed the jury to consider this in estimating the
damages. It was a question for the jury, and was properly sub
mitted, with a sufficient explanation o f plaintiff’s duty in the matter.
The responsibility of the alleged partners for the acts of each
other was considered, and the submission to the jury was said to be
justified, so that the findings on this point could not be disturbed.

CONTRACT OF EMPLOYMENT

Other objections assigned were said to be without merit, and the
judgment of the court below was affirmed.

C ontract of E mployment — B reach— D ischarge— H iring for
Y ear— C onduct I njurious to M aster’s B usiness— D amages— H ale
Hardware Go.

Ragland , Supreme Court o f Arkansas {J uly H ,

1 92 4), 263 Southwestern R eporter, page 962. —E.

A. Ragland was
sued by the Hale Hardware Co. to recover $40.26 charged him for
materials. Ragland filed an answer in which he admitted the debt,
but asked judgment against the company for $725 as compensation
due him for a breach of contract of employment. Judgment was
in his favor for an amount reduced by certain items, and both
parties appealed.
It appears that Ragland had been employed by the Hale Hard
ware Co. for a number of years at a monthly rate. At the beginning
of the year 1921, John Hale, manager of the company, made an
agreement with Ragland for the period of one year at a salary of
$1,500, to be paid in monthly installments. There was controversy
on this point, but that was the finding of the trial court, sustained
by the supreme court. Ragland discharged his duties as a salesman
in a faithful and efficient manner, but was discharged early in July,
as he alleged, “ without any cause.” He sought employment as a
hardware salesman, but failed. He worked at some other employ
ment during the remainder of the year, and made a small amount
of money. The evidence indicated that Ragland had been paid every
two weeks at the rate of $125 per month, which, under the evidence,
constituted the monthly installments in which the yearly salary of
$1,500 should be paid. Computing the balance owed Ragland, and
deducting the amount earned otherwise, the judgment in his favor
was. said to be properly rendered. It was pointed out that “ it was
Ragland’s duty to seek and accept other like employment; but he
was not required to seek or accept employment of a different char
acter” in order to reduce the amount of the judgment against his
former employer.
The hardware company claimed that it had grounds for discharg
ing Ragland. Incompetency, negligence, and dishonesty or ineffi
ciency are recognized grounds for discharge, and Ragland was
impliedly bound to serve his employer faithfully “ and to refrain
from doing any act knowingly and willfully which might inju
riously affect the business of his employer.” It was charged that
Ragland was injuring his employer’s business by driving off its
customers on account of his sympathy with the strikers of a rail
road passing through town. The strike had continued for some

DECISIONS OP COURTS AFFECTING LABOR

time, and the strikers’ places had been filled, a bitter feeling arising
between the new and the former employees. “ The people along the
line of the railroad took sides in the matter, because the railroad
strike injured all classes of business.” Sympathies were divided, but
the hardware company sought to maintain neutrality, neither for
nor against the strikers. Ragland was said to be sympathetic with
the strikers who traded with him in the store where he conducted his
business as salesman. He allowed them to congregate in the store
where he talked with them. “A number of witnesses testified that
they had quit trading with the store because they understood that
Ragland sympathized with the strikers and permitted them to con
gregate in the store.” There was no evidence that the manager had
told Ragland not to talk with the strikers nor to refuse to allow them
to congregate in the store. There was no evidence that the strikers
had become boisterous or otherwise offended the customers, or that
Ragland had used abusive language against those not in sympathy
with the strikers. However, the witnesses said a that his general
attitude was one of sympathy for the strikers, and that they would
see him talking with little groups of them in the store.”
Judg§ Hart found nothing in this to indicate negligent or offen
sive conduct.
It is fairly inferable that the customers who quit trading at the
store did so because they believed that Ragland was in sympathy
with the strikers; but their conduct in this regard was the result of
their own bitterness in the matter, and was not caused by the acts or
conduct of Ragland. It does not appear that he did anything of
an affirmative character that warranted the customers in carrying
their trade to another store.
No overt acts were therefore found, “ or conduct willfully and
knowingly which would tend to injure the business of his employer.”
There was nothing to show that the weight of evidence was against
the finding of the chancellor in any respect, and his decree was there
fore affirmed.
C ontract op E mployment — B reach— D ischarge— R ecovery—
“ S atisfactory S ervice ” — Lum m us Cotton Gin C o . v. B au gh , Court

9 1923 116 Southeastern R e
porter , page 51 —A contract of employment was entered into
between the Lummus Cotton Gin Co. and one J. A. Baugh, which
read in part:
The above proposition is hereby accepted this 22d day of Decem
ber, 1920, service to begin January 1, 1921, and to continue 12
months, conditioned on your conduct and services being satisfactory
to us, we to be the sole judge in reserving the right to terminate this
contract upon 30 days’ notice at any time.
o f A ppeals o f Georgia (F eb ru a ry

CONTRACT OF EMPLOYMENT

A dispute arose as to the construction of this clause when the
employer terminated the contract and dispensed with the services
of the employee solely upon the ground that the company’s financial
interests made such action necessary. An action for damages was
brought by the plaintiff against the company and a judgment was
rendered in his favor. The company took the case to the court of
appeals. That court construed the clause above as not authorizing
the employer to terminate the contract for the reason given.
The court of appeals said that “ the employer’s right to be the sole
judge as to conditions upon which he will terminate the contract
must, if any effect is given to the provision that the employee’s right
to continue in service for the period contracted for is conditioned
upon the employee’s services being satisfactory to the employer, be
exercised only as respects the character of service upon the part of
the employee, of which character of services the employer is to be
the sole judge.”
C ontract of E m ploym ent — B reach — D ischarge — T erm —
H iring “ by the Y ear ” — W illis v. W y lly s Corporation , Court o f E r
rors and A ppeals o f N ew Jersey (N ovem ber 2 0 ,1 9 2 2 ) , 119 A tlantic
Reporter , page 2b.—William

H. Willis received a letter from the
comptroller of the Wyllys Corporation which stated in part:
Confirming the arrangements made with you at our conference
last Tuesday, we engage your services as assistant comptroller in
charge of factory accounting, with a salary at the rate of $7,500 per
year, with the understanding that, if the connection proves satisfac
tory, the salary, beginning January 1, 1921, will be at the rate of
$9,000 per year. In further confirmation of our arrangements, it is
understood that the company will pay the expenses of moving your
household effects from Cleveland.
The plaintiff began his work and was paid at the rate of $7,500
until December 31, 1920, then at the rate of $9,000 until the end of
February, 1921, when he was discharged for no fault. Defendant
contended that the employment was at will and the plaintiff main
tained that it was a hiring by the year. The trial court left it to the
jury, who found for the plaintiff. Oral evidence was admitted dur
ing the trial, and on judgment for the plaintiff defendant claimed
error in permitting oral evidence as to the terms of the contract.
The court gave the American and English view as to such con
tracts in referring to the letter:
Our consideration of the case leads us to the conclusion that the
letter alone, viewed as the entire contract, is properly to be construed
as a hiring by the year. There is great diversity of view in the dif
ferent jurisdictions respecting this class of cases. The “ English
view,” so called, tends to a construction establishing a contract for a
definite term, it this can be spelled out of the language used. The

DECISIONS OP COURTS AFFECTING LABOR

“American view,” favored by most of the States, tends toward a
holding that the hiring is at will, unless the hiring be fairly plain,
Our own cases seem to favor the English view.
In the case at bar it is of some significance that the defendant
proposed to, and in fact did, pay for the transportation of plaintiff’s
household effects from Cleveland, Ohio, a circumstance looking
toward* some degree of permanency in the employment. The trial
court would have been justified in instructing the jury that the letter
and plaintiff’s acceptance of its terms established a#hiring by the
year.
The judgment was accordingly affirmed.

C ontract
W illiam s

E mployment — B reach— O ffer

O ther W

ork—

R obinson , Supreme Court o f Arkansas (A p r il 16 , 1 9 8 3 ),

250 Southwestern R eporter , page 14»—

Bonnie Robinson was em
ployed to take charge of the kitchen, to do all the baking, and to
make salads at the summer hotel of the defendants. The contract
provided for a salary of $25 a week during the “ season.” Plaintiff
was discharged on July 9, the season not closing until September 14,
and it was for her pay for the time between July 9 and September
14 that the plaintiff brought an action at law.
The defendants contended that the discharge was rightful, but the
jury decided the issue of fact in favor of the plaintiff. From a judg
ment in favor o f the plaintiff the defendant appealed.
The supreme court pointed out that the verdict was conclusive,
and to the contention of the defendant that the plaintiff was offered
other work at $10 a week, said:
This employment was in a more menial capacity, and appellee de
clined to accept it. This she had the right to do. It was her duty
to seek and accept other like employment; but she was not required
to seek or accept employment of a different character.
The plaintiff was unable to secure similar employment, but the
amount she was able to earn at odd jobs was deducted by the jury
from the amount owed by the defendant. The plaintiff was held
not entitled to railroad fare and hotel bills from her home to the
hotel of defendant as there was nothing in the contract as to paying
this sum.
The judgment was affirmed.
C ontract of E mployment — B reach— P ractical C onstruction—
P roper P erformance— Schneider v. V ictor, Suprem e C ourt o f N ew
Y o r k , Appellate D ivision {A p r il 4> 1 9 2 4 ), %03 N ew Y o r k Supple
m ent , page 897.—The contract in question provided for the employ

ment of the plaintiff to go to London and other foreign ports to
make arrangements in connection with a new department to be

CONTRACT OF EMPLOYMENT

formed by the defendant. The employment under the contract was
to terminate upon the return of the plaintiff to the United States
within a period of approximately six months, with a provision for
its renewal or continuation as follows :
* * * Upon the return of the employee to the United States,^
if proper business connections have been established by him for the"
purposes hereinabove mentioned, this contract shall be deemed to be
renewed and extended for a further period of one year from the date
of such return of the employee upon the terms hereinafter set forth.
The plaintiff made business arrangements and claimed that he
was entitled to employment as provided by the contract. The de
fendant denied that “ proper business connections were established,”
so that the plaintiff “ acquired no right to further employment after
his return.” The supreme court of New York County gave a judg
ment entered on a directed verdict dismissing the complaint and the
plaintiff appealed.
The appellate division was of opinion that the question whether
the plaintiff did or did not establish proper business connections for
the defendant, as defined by or intended by the contract of employ
ment, was for the jury. In this connection, however, it was pointed
out that the contract was prepared by the defendant’s attorney, and
that the rule was applicable that “ the construction most favorable
to the plaintiff of which the contract is susceptible should be adopted,
since the words were chosen by the defendant.” Also “ a practical
construction was put upon the contract by the parties themselves in
jointly negotiating certain tentative arrangements,” and that was
held to be the proper and best way to arrive at the intent of the
parties.
The most that the court could say in the defendant’s favor was
that the contract was “ sufficiently ambiguous to admit parol testi
mony as to the intention of the parties.” The ruling of the trial
court that the defendant had the right “ to be sole arbiter of what
constituted proper business connections ” was disagreed with:
In the first place, it is to be noted that the words of the parties as
expressed in the contract only call for “ proper business connections.”
To hold that these words mean business connections to the absolute
satisfaction of the defendant would seem harsh construction, since
the subject matter of the contract does not involve matters strictly
personal to the defendant.
Even where the words used in a contract are “ to the satisfaction
of ” a party, if it appears that the parties intend to achieve some defi
nite purpose of the carrying out of which others could judge as well
as the parties, it is held that such satisfaction must be reasonable.
The court, being of the opinion that the issues should have been
submitted to a jury, accordingly reversed the judgment and ordered
a new trial.

DECISION'S OF COURTS AFFECTING LABOR

C ontract of E mployment — E ngaging in S imilar B usiness—
B reach— E nforcement by I njunction — Clark Paper & M anufac
turing Co.

Stenacher, Court o f Appeals o f N ew Y o r k (J u ly 13,

192 3), llfi Northeastern Reporter, page 708.— T h e

Clark Paper &
Manufacturing Co., of Kochester, N. Y., employed Edward D. Stenacher under a written contract of employment executed January 1,
1915. This agreement recited that the period of employment was to
be “ for a period of time to be mutually agreed upon between them,”
upon certain terms and conditions, among which were that Stenacher
was in no way to divulge or furnish names of clients’ business meth
ods, trade secrets, etc., to any other person, firm, or corporation, and
further that he would not “ for eight years from expiration of the
contract of employment or during the term thereof, enter the employ
of any competitor or of any person, firm, or corporation handling
or manufacturing the same line of goods as the Clark Co. in the
State of New York.” No date was ever set for the expiration of
the contract.
Stenacher left the Clark Co. on April 23, 1917, and entered the
employ of the George Irish Paper Co., located in Buffalo. The
plaintiff, the Clark Co., sought to enjoin the defendant from con
tinuing in the employ of the George Irish Co. for a period of eight
years and further from disclosing any information about the plain
tiff company.
From a judgment granted by the lower court and affirmed by the
appellate division the defendant appealed.
Mr. Justice Crane, speaking for the court, in discussing the con
tract of employment, said:
The date of the expiration of the contract was not fixed, nor was
the length of time during which it was to operate agreed upon.
From what date were the eight years, therefore, to commence to run ?
The parties contemplated, as stated in this writing, that a period of
time would be fixed by agreement, and that during the eight years
from the expiration of that period the defendant would be bound
by his contract not to enter the employ of a competitor. The plain
tiff has, therefore, in effect obtained specific performance of a con
tract which has not been made. It has enjoined the defendant from
working during a period which could have been made definite, but
which was not. The relief obtained is in the nature of specific per
formance. The agreement which the parties intended to make has
never been made. For this reason, if for no other, the plaintiff was
not entitled to the judgment which it has obtained.
An employee may be prevented under his negative covenant from
revealing trade secrets even where the term of employment is at will,
and has not been fixed for a definite period. The complaint here is
upon an alleged contract not only to refrain from revealing secrets,
but to keep out of like work for eight years. The judgment follows
the complaint. The contract alleged must be proved to obtain such
a drastic remedy.

CONTRACT OF EMPLOYMENT

The plaintiff, Mr. Clark, testified that the reason he had the con
tract signed was to keep the employee, after he had trained him,
from leaving to go to a competitor.
The court added:
It is to be seen that the plaintiff here seeks to enforce this alleged
contract to prevent the defendant from working for anybody else in
a similar business in any capacity for a period of eight years, and
does not assume that he will or can reveal or impart any informa
tion as to the plaintiff’s business which may do it harm. There is
no evidence that the defendant has been in a position to obtain such
information, or that there were any trade secrets to learn.
Experience, competency, and efficiency in selling goods are quali
fications which can hardly be so rare as to require the aid of equity
to prevent an irreparable loss to an employer who finds himself com
pelled to substitute one salesman for another. An express negative
covenant not to work for another will not, as a rule, be granted save
in those exceptional cases where, by reason of the peculiar or extra
ordinary character of the services, a violation of an agreement will
cause injury to the employer for which an action at law will afford
no adequate remedy. An injunction may always issue to enforce
such a covenant where the employee has become the possessor of
valuable trade secrets concerning his employer’s business.
A contract, however, by an ordinary workman not to enter other
like employment for eight years after leaving his employer would, in
my judgment, when there was this bare fact alone, and no element
of secret or valuable information obtained which he might or could
impart, be so unreasonable as to make the contract one in restraint
of trade and personal liberty, and therefore void.
The judgment appealed from was reversed accordingly, and the
complaint dismissed.
C ontract of E mployment — I nterference— D ischarge C aused
T hird P erson— D amages— Southern Finance Go v. F oster Court

), 95 Southern

o f A ppeals o f Alabama (January 16 1923
page 338.—Robert Foster was an employee of

R eporter

the Louisville & Nash
ville Railroad Co. The Southern Finance Co. served a notice on the
railroad company to the effect that it held a valid assignment of
Foster’s wages. As a result Foster, pending the investigation of
such assignment and its release, was discharged from his employ
ment. Foster then brought an action for damages against the
finance company for wrongfully and maliciously causing his dis
charge from employment. Foster further stated that on the date the
employer was notified the finance company did not have a valid
assignment of his wages and had no legal claim to his wages, and
that the agent of the finance company, acting within the line and
scope of his authority, with knowledge of the facts, wrongfully and
maliciously caused the notice to be served on his employer, as a result

DECISIONS OF COURT'S AFFECTING LABOR

of which he was rendered unable to work, was injured in his credit,
and was caused to suffer great mental anguish.
Judgment was rendered in favor o f Foster and the finance com
pany appealed. The court of appeals, however, affirmed the judg
ment of the trial court, holding that the assignments of error raised
by the finance company were not good.
The law to be applied in cases of this kind was stated in the case
T. C. I. & Ry. Co. v. Kelly (163 Ala. 348, 50 So. 1008), as follows:
“ I f the defendant wrongfully and maliciously procured the dis
charge of the plaintiff, it is liable to him for the damages proximately resulting from that discharge, though Waggoner & Hannon
[his employers] were not liable for discharging him, and had a right
to discharge him at any time, with or without cause. But, on the
other hand, if the defendant had a right to do what it did, and in doing
it terminated its contract with Waggoner & Hannon, thus causing
the latter to discharge the plaintiff, and he suffered loss in conse
quence, then defendant is not liable, though its action in terminating
its contract was actuated by malice towards plaintiff, and was in
tended to injure him.”
Applying this to the present case the court said:
I f the defendant without any lawful right broke up, or through
their agents caused to be broken up, the contractual relations exist
ing between plaintiff and his employers, although such relations
could have been terminated at the pleasure of either party, and as a
proximate result thereof there was damage to plaintiff, defendant
would be liable to plaintiff for such damage.
The judgment for damages was accordingly affirmed, and rehear
ing was subsequently (January 30) denied. The supreme court of
the State also denied a writ of certiorari sought by the finance com
pany to review and revise the judgment of the court of appeals.
(95 So. 340.)
C ontract of E mployment — L ife E mployment — C onsideration—
W aiver of A ction for D amages—Stevens v. Southern R ailw ay G o .,
Suprem e Court o f N orth Carolina (A p r il 9 , 1 92 4), 1Q& Southeastern
R eporter , page 295 .—Sam

Stevens sued the Southern Railway Co.
to recover damages for its failure to keep an agreement with him
for life employment. He alleged that he worked for the Richmond
& Danville Railroad and its successor, the defendant in this case,
from 1879 until his discharge in 1921. He claimed injuries through
the negligence of the road in 1883 and on a subsequent day or days.
He -claimed also that there had been a written contract executed
by himself and the superintendent of the road, who was afterwards
general manager of the Southern Railway, and another. These men

CONTRACT OF EMPLOYMENT

were dead, and the contract had been burned, but its substantial
provisions were said to be that if he would not sue the railroad for
his injuries “ it would give him a job as long as he could work, and
take care \>f him afterwards.” Stevens also testified that in 1916,
the president of the Southern Railway Co. gave him a bronze
badge marked “ Southern Railway Company for loyalty,” the other
side carrying the name “ Sam J. Stevens, 1879 to 1916.”
The company defended by denying the execution of the contract,
introducing evidence tending to show that the Southern Railway
Co. was not organized until 1894, and that Stevens had been dis
charged for neglect of duty.
Judgment was for the plaintiff in the court below, and was af
firmed on appeal to the supreme court, Judge Adams delivering the
opinion. It was first found that certain exceptions were not well
taken, evidence to establish the nature and extent of the plaintiff’s
injuries being a proper basis to suggest the reasonableness of such
a contract as that alleged by him. As to the contract itself it was
said that—
It has been held that contracts of this character are not against
public policy or incapable of enforcement on the ground of indefi
niteness merely because the exact period of service is not specified.
Hence the courts have sustained contracts by employers to give to
servants injured by their negligence “ steady and permanent ” em
ployment, or employment “ as long as the company’s works are
running,” or “ so long as the business of a corporation continues,”
or during the life of the employee, or to give “ a living wage re
quired for the support of the employee and his family.” As we
have indicated, it can not be said that the contract between the
plaintiff and the railroad was without consideration. They entered
into a compromise and adjustment of the plaintiff’s claim for dam
ages, and “ such adjustment will afford a sufficient consideration
for the agreement whether the agreement was well founded or not.”
The defendants contended that if such a contract was made at all
it was with the Richmond & Danville Railroad, and therefore was
not binding on the defendant company. The court recognized the
evidence showing the making of this contract by parties one of
whom was an officer of the defendant road; also that the defendant
road was formed by the combination of the Richmond & Danville
Railroad and other roads; and further that the gift of the bronze
medal by the president of the Southern Railway Co. and the other
circumstances “ were sufficient to create a reasonable inference that the
defendant with knowledge of the contract continued the plaintiff’s
employment and recognized and ratified the agreement under which
the compromise was effected and the service rendered and accepted.”
No error appearing, the judgment stood.
44915°—25----- 4

32
C ontract

DECISIONS OF COURTS AFFECTING LABOR
of

E mployment — O vertime— R eceipt “

m e n t ” — T a rd ley

F ull P a y

Iow a E lectric Go ., Suprem e Court o f Io w a

(F ebrua ry 6, 1 9 2 3 ), 191 N orthwestern R eporter, page 791 .—The

plaintiff Yardley was employed by the Iowa Electric Co. as a
stoker at its gas plant, working from April 7, 1920, to September
24 of the same year. He had previously been employed by the com
pany, and testified that on returning to work he was told that the
plant had been put on an eight-hour basis and that he would be paid
for overtime. He said further that he was furnished with time
sheets for a record of his overtime, and that he turned these in
every day with the record of his hours of work.- The company
denied that the contract contemplated payment for overtime. How
ever, the jury decided the question in Yardley’s favor, and judgment
was rendered accordingly in the court below. From this an appeal
was taken to the supreme court of the State, where the judgment was
affirmed. So far as this finding of fact was concerned, it “ must be
considered by this court as a verity.”
Judge De Graff, who delivered the opinion of the court, having
made the above statements took up the question involved in the
mode of payment. This was by means of pay checks, on the back
of each of which were printed the words: “ Indorsement by the
payee below will constitute a receipt in full for the amount and
items indicated.” The company claimed that by this means the
plaintiff had released it from further obligation, as on the face of the
check were the words, “ This voucher check is issued in full payment
for services rendered to and including” date specified. Plaintiff
testified that he complained that the checks did not include his over
time, and that he was assured by the manager that this matter would
be taken up and “ he would see that the plaintiff got his extra pay.”
This conversation was denied by the defendant, “ but nevertheless
it presented a fact question, and it was for the jurors to say whom
they would believe.” As to the effect of this form of check and
indorsement, Judge De Graff said:
Payment by the company was incidental to the contract of em
ployment. Payment at stated times was contemplated by that con
tract, but the manner and method o f payment was a matter to be
determined by the company. It adopted the check system, and it
may not be said when a pay check was tendered to the plaintiff that
a new contract was intended by the parties or that a modification of
the original contract of service was within the purview of the par
ties. A new contract was not created. It involved simply a method
of discharging a legal obligation. Nor may it be said, under the
evidence, that the amount at each stated period of payment was in
dispute. The defendant company denies that there was an agree
ment to pay for overtime, but this denial harks back to the date of
the agreement in question, though it may be considered as a con
tinuing denial up to the time of the trial.

CONTRACT OF EMPLOYMENT

C ontract of E mployment — P aym en t for A dditional S ervices—
I nference—Robinson v. M u nn , Court o f A ppeals o f N ew Y o r k
(A p r il 1 , 19%4) i
Northeastern R eporter, page 784.—Katherine
Robinson, an experienced nurse, whose brother had married the only
daughter o f Mr. and Mrs. Daniel Munn, had nursed Mr. Munn when
he was injured and permanently crippled in 1912, receiving $20 a
week for her services, and had also nursed Mrs. Munn through her
fatal illness in 1916, receiving wages at the rate of $25 per week.
From the time o f Mrs. Munn’s death until that of Mr. Munn, about
five and one-half years, Miss Robinson worked in Mr. Munn’s home,
doing the housework and caring for him in his crippled and infirm
condition. She was paid $30 a month for about four years, then
$40 a month until the last month of Mr. Munn’s life, when she
received $50.
After his death she sued to recover the reasonable value of services
rendered as a nurse during the entire period. “ She alleges in her
complaint that she was employed, not only as housekeeper but
also as nurse, upon an agreement that she was to be paid monthly
for her services as housekeeper, and that her compensation as nurse
was to be adjusted later.” She placed the value of these services at
$18 per week and the trial jury awarded a verdict of $2,200. The
appellate division held that the reasonable value of a legacy of
$1,000 given her by Mr. Munn’s will should be deducted from this
amount, and modified the judgment accordingly. The executor of
the will appealed, securing a reversal of the judgment on the ground
that the terms of the contract had been complied with and that there
was no evidence o f any agreement to make additional payment for
the services rendered as a nurse.
The inference o f an implied contract to pay the reasonable value
of services rendered, which may arise from the mere rendition and
acceptance of the service, can not be drawn, where, because of the
relationship of the parties, it is natural that such service should be
rendered without expectation of pay. Accordingly a salaried em
ployee can not ordinarily recover, in addition to his salary, the
reasonable value o f services rendered which fall outside the scope
o f duties o f his employment, unless such services are so distinct
from the duties of his employment and o f such nature that it would
be unreasonable for the employer to assume that they were rendered
without expectation of further pay.
In the present case the plaintiff was evidently employed to take
care of Mr. Munn and his home as his wife had done during her
life. He paid her a monthly stipend, and she made her home with
him, and apparently had considerable freedom in the home. She
probably took better care of him than she could have done if she
had not been a skilled nurse; she probably even rendered services
to him from time to time which only a skilled nurse could render;
but, except for the period o f nine months in 1912 after his leg was
injured, he had not previously employed or required a nurse to

DECISIONS OF COURTS AFFECTING LABOR

take care of him. The services which the plaintiff was employed to
render included apparently the care both of his home and his per
son, and the fact that she was able to care for his person better
than an unskilled housekeeper could have done does not show that
she was employed in the capacity of a professional nurse, under
an implied agreement that she should be paid in the future the rea
sonable value of her services as a nurse, in addition to compensa
tion actually paid to her from time to time for services rendered
in the capacity of a housekeeper.
It did not appear that any claim for further pay had been as
serted during the employer’s life, “ and if plaintiff had such claim
it is evident that she preferred not to assert it until she learned how
she would fare under her employer’s will.”
On account o f lack of evidence to sustain the claim the judgment
in her favor “ should be reversed and the complaint dismissed with
costs in all courts.”
C ontract of E mploym ent — “ P ermanent E mployment ” —
B reach— Rape v. M obile & O. R . Co., Suprem e Court o f M ississippi
(June 16 , 19%4), 100 Southern R eporter , page 585 .—Charles C. Rape
had secured employment as a car repairer with the Mobile & O. R.
Co. during a strike. When he applied for the job he asked if he
would be let out if the strikers should come back. To his inquiry,
he testified, the answer was given, “ I f you go to work you will
have a permanent job, and you will have seniority over the
others.” Other workmen who were taken on at the same time al
leged practically identical contracts. It was agreed that all claims
for damages for failure to carry out the contract for permanent
employment would be determined by the proceedings in the instant
case. It was alleged that after about six weeks’ employment the
company “ wrongfully, and without just cause or excuse, discharged
said plaintiff, and thereby wrongfully breached said contract of
employment.” Damages in the amount of $3,000 were claimed.
From a judgment in favor of the company Rape appealed, an
affirmance by the supreme court resulting. Judge Cook, who de
livered the opinion, found that “ the decisive question is whether
the contract here relied on is supported by an adequate considera
tion, and is in other respects sufficiently definite to be enforceable.”
It was recognized that a contract for permanent employment made
in consideration o f a release obtained for damages is enforceable,
and “ is equivalent to life employment, or for such length of time
as the employer has work which the employee can perform, and is
able, ready, and willing to perform, in a satisfactory manner.”
Cases were cited sustaining the view that in the absence of some
valid consideration an agreement for permanent employment or for
life is merely an indefinite contract, terminable by either party

CONTRACT OF EMPLOYMENT

whenever he or they wish for some good reason to sever the em
ployment relation. The plaintiff contended that his accepting the
offer o f permanent employment constituted a contract “ binding on
both parties, and, if not binding on the plaintiff, it was neverthe
less binding on the defendant railroad company.”
As already indicated, this contention did not prevail, and the ad
verse judgment below was affirmed.
C ontract of E mployment — P rofit S haring— E ngaging in S im i
B usiness—B olton v. Knollm an Paper Go ., Missouri Court o f

lar

A ppeals {June 86, 1 98 3), 853 Southwestern R eporter, p. 433 .—
Wallace F. Balton, plaintiff, one Knehans, and one Hormann each
began working on different dates for the Knollman Paper Co. upon
a salary of $50 a month with the understanding that they would
each receive a share of the profits as additional compensation. The
salaries were increased from time to time, and at the time of quit
ting the employment the plaintiff was receiving $100 a month and
Hormann $90 a month. The profits were to be determined annually
and the amounts due each were to be allowed to accumulate until
the sum of $500 be reached, at which time the same was to be paid.
In 1908 each of the three had $500 due, but under an agreement
with the defendant the amount was left in the company, until in
1912 the sum due each was $1,000. The defendant at that time
forced them to leave the money with the company under penalty of
dismissal; interest was offered, however, at the rate of 5 per cent.
Hormann left the employ in 1917, Knehan in 1919, and the plaintiff
in 1920. The others having assigned to Balton, he brought an
action to recover the shares of profit due, with the interest thereon.
The shares o f profit due the employees since 1912 had been paid in
part except Hormann’s, and there being no allegation that he had any
due since 1912, it was assumed that he had been paid for the period
from 1912 to the date of his resignation.
The defendant set up as a defense to the action that it was agreed
between the parties that payment of the before-mentioned profits
was contingent upon the employee entitled to same having given
00 days’ notice in advance upon leaving the employment, and further
that the employee was not to engage in a business o f the same char
acter in St. Louis for one year after leaving the employment. A ll
three of them were engaged in a similar business a few blocks from
that of the defendant and in no case had the employee given 60 days’
notice.
From a judgment for the plaintiff in the sum of $4,368,e36, the de
fendant appealed, taking exception to certain instructions given the
jury.

DECISIONS OF COURTS AFFECTING LABOR

The court o f appeals of St. Louis held on review that the evidence
did not show that the employees had agreed to give 60 days’ notice
before quitting and further that even though one employee did un
derstand that he was to give 30 days’ notice, failing to do so did not
defeat his right to a share of the profits under his contract o f em
ployment, as the information as to the requirement was not given
until after his share in the profits had accrued. The court said:
The evidence sufficed to warrant the finding that plaintiff and his
assignors did not agree to the conditions which defendant seeks to
impose upon their right to their respective shares o f the profits
as part compensation for their many years o f labor in the defend
ant’s service. It was for the jury to resolve the conflict in the testi
mony, and it must be conceded that the fact that after 1912 defend
ant tor some years paid each of these men interest on $1,000 and paid
each his share o f the profits annually, is rather inconsistent with
the idea that such employee had no rignt to share in the profits at all
unless he should quit defendant’s employ, upon 60 days’ notice, and
after the lapse of a further year, and provided that during that
period he had not engaged in a competitive business.
The exceptions to the instructions given the jury were overruled
and the judgment was therefore affirmed.

C ontract of E mployment — R epayment of A dvances— B reach—
.C onstitutionality of S tatute— PM Ilips v. B ell, Sheriff , S u
prem e Court o f F lorida {A u g u st 16, 1 9 2 2 ), 9%, Southern R eporter,
page 699 .—Chapter 7917, Acts of 1919, Laws of Florida, provides

as follows:
S ection 1. Any person in this State who shall, with intent to in
jure and defraud, under and by reason o f a contract or promise to
perform labor or service, procure or obtain money or other thing o f
value as a credit, or as advances, shall be guilty of a misdemeanor,
and upon conviction thereof shall be punished by a fine of not ex
ceeding five hundred ($500.00) dollars or by imprisonment not
exceeding six months.
S ec. 2. In all prosecutions for a violation of the foregoing section
the failure or refusal, without just cause, to perform such labor or
service or to pay for the money or other thing of value so obtained
or procured shall be prima facie evidence o f the intent to injure and
defraud.
John Phillips obtained $175 as a credit and advance from the
partnership of Bullard-Sellers & Co. in consideration of his agree
ment to perform labor for them. He failed to return the money or
perform the labor. He was arrested and convicted for violating the
above statute. The case was taken to the supreme court of the
State, where Phillips questioned the constitutionality of the statute
as a violation o f the thirteenth amendment to the Constitution of the
United States. To sustain his contention he referred to the cases

CONTRACT OF EMPLOYMENT

o f Bailey v. State of Alabama (211 U. S. 452 and 219 U. S. 219;
31 Sup. Ct. 145), in which a somewhat similar statute had been pro
nounced invalid.
The Supreme Court of Florida held its statute constitutional and
pointed out the distinction between the Florida and Alabama stat
utes. In addition to the provisions of the Florida statute, the Ala
bama act provided that any person who, with intent to injure or
defraud his employer, entered into a written contract for service
and thereby obtained from his employer money or other personal
property, “ and with like intent and without just cause, and without
refunding the money or paying for the property,” refused to per
form the service shall be punished as if he had stolen it.
The Supreme Court of the United States, speaking through Mr.
Justice Hughes in the Bailey case, said: aA ll that appears from
the record with regard to the foundation of the case against him is
that the plaintiff in error is held on a charge of having obtained
money under a written contract with intent to defraud.” The court
said that the Supreme Court of the United States in the Bailey
case held that there was no doubt that one merely obtaining money
under a written contract with intent to defraud was guilty of
conduct that could be made a crime.
It was further pointed out that the decision of the Supreme Court
in the Bailey case holding the statute of Alabama unconstitutional
was predicated upon the act making proof of failure to perform the
service or liquidate the debt prima facie evidence of the guilt of
the accused. The court held section 1 of the act constitutional, and
did not pass upon section 2 of the act because the record in the
case did not show that the rule of evidence provided in section 2
was invoked in the trial of this case. The court further said that
“ if section 2 is unconstitutional and void the two sections are not
so interdependent that one can not be declared unconstitutional with
out destroying the other.”
The judgment was therefore affirmed.

C ontract

dence— W inters

E mployment — R epayment of A dvances— E vi
v. State , Court o f Appeals o f Georgia {A p r il 16.

1921t 122 Southeastern R eporter , page 635 .—This was a prosecution
under the “ labor contract law ” of the State of Georgia, which pro
vides penalties for the failure of employees under contract to per
form the work agreed upon or to repay any advances made by rea
son of the contract.
Judge Bloodworth, who delivered the opinion of the court, an
nounced at the opening of the opinion the principles applied to the
law.

. DECISIONS OP COURTS AFFECTING LABOR

The defendant was convicted of violating the “ labor contract
law.” Because of the nature of this law, and lest it be abused, the
courts have been strict in requiring the State to allege and prove
those things which, under the statute, are necessary for a conviction.
It has been held that the State must show “ that tnere was a distinct
and definite contract for service ” ; that there was no good reason why
the contract was not performed, or no good reason why the accused
did not return the money advanced to him; that the particular place
where the labor is to be performed “ must be so located and identified
by the evidence as to establish a contract to labor at a certain and
definite ” place; and that the time for such labor must be specifically
shown.
The evidence in the present case was “ in several respects not en
tirely satisfactory.” There was nothing to show that the defend
ant’s failure to work or repay the money was without good reason,
nor did the accusation state where the work was to be done, and it
was in fact “ too indefinite to be the basis of a criminal prosecution.”
The only evidence as to why the contract might not have been per
formed suggested its impossibility, as the only report received from
the laborer was that he was in another county on the chain gang.
As the work was to have been done in 1920, and the complainant
did not see the laborer until some time in 1923, he “ could not know
o f his own knowledge whether or not defendant was able to per
form his contract of labor for the year 1920.”
For the reasons stated, the judgment o f conviction in the city
court of Dawson was reversed.

C onvict L abor— C ontract

for

L abor— C onstitutionality — Price

M a te y , Suprem e Court o f Utah (Septem ber 8 , 1 9 8 3 ), 2 18 Pacific
R eporter , page 721f.—The State board of corrections contracted with

the Pioneer Garment Manufacturing Co. for the installation by the
manufacturer o f machinery and equipment in the State prison for
the manufacture by the State o f overalls and shirts. The company
was to purchase all overalls and shirts made in excess of those needed
by the State institutions. No sales were to be made to any other
than the manufacturing company except with its written permission.
The constitution of the State of Utah directs the legislature to
prohibit the contracting o f convict labor and the employment of
convicts outside the prison grounds, except on public works under
the direct control of the State. By subsequent acts of the legislature,
the prison board is to determine what lines of productive labor
shall be pursued and select such lines as will interfere as little as
possible with the same lines of industry carried on by citizens of
the State.

CONVICT LABOR

A writ of prohibition was petitioned for by Fred W. Price, the
Utah Manufacturers’ Association intervening. In the course of the
opinion granting the writ, Chief Justice Weber said:
What does the State agree to supply under this contract with the'
Pioneer Garment Co.? Incidentally it furnishes a building, light,
heat, and air, but the main thing is labor; it is labor only that the
agreement gives the garment company from the State and it is con
vict labor only which the garment company pays for. Reduced to its
simplest form, the contract provides for the furnishing of labor by
the State and for the payment of that labor by the contractors.
What difference does it make whether the contractor pays the State
45 cents per dozen for the labor of the prisoners in making a dozen
sliirts and overalls or whether it pays the State 45 cents per day for
the labor of the prisoner ? However plausible it may be as a sophism,
the proposition is in its essence a contract for the hiring of prison
labor.
An obvious attempt is made to do indirectly that which the law
forbids being done directly. In its last analysis the contract is one
that sells prison labor, not shirts and overalls, although the words
“ labor,” “ convict,” “ convict labor,” or “ prison labor,” do not occur
in the contract. Instead, the words used are u persons employed by
the State.” The attempted evasion is palpable.
Our conclusions are that the contract here involved is a plain and
unmistakable contracting of convict labor and is therefore repugnant
to the constitution and is forbidden by the statutes of this State.

C onvict L abor— C ontract for L abor— C onstitutionality of
S tatute—Pollock v. M a b ey Supreme Court o f Utah (M a y 6 ,1 9 2 ) ) ,

226 Pacific R eporter page 1 8 6 ; Utah Manufacturers' Assn.

M a b ey

Supreme Court o f Utah { M a y 6 192If), 226 Pacific R eporter page
189.—In further pursuance of its purpose to provide industrial em

ployment for the inmates of the penitentiary, the board of correction,
after its unsuccessful attempt to contract with the Pioneer Garment
Manufacturing Co., which contract was by its terms declared a plain
and unmistakable contracting of convict labor and therefore uncon
stitutional and forbidden by the State statutes (Price v . Mabey,
above), adopted a resolution to establish a garment factory for the
employment of prisoners.
Two writs of prohibition were petitioned for, one by W. R.
Pollock, a taxpayer, and the other by the Utah Manufacturers’ Asso
ciation, the former contending that the board of correction acted
without and in excess of the powers and jurisdiction of the board,
in contravention of the common law and against public policy, and
in violation of existing statutes. Further, the resolution, entailing
an expense of approximately $25,000, unlawfully increased the bur
dens of taxation on the plaintiff and other taxpayers of the State.

DECISIONS OF COURTS AFFECTING LABOR

The opinion points out that it is the duty o f State officers charged
with prison control, if possible, without contravention of the con
stitution or of any statute, to provide means by which these laws
*relating to the employment of prisoners can be carried into effect.
In the words o f the judge:
In the conduct and control of the prison the peculiarities or the
different capacities o f the various prisoners confined in the State
prison can not be, and was not intended to be, the only considera
tion to guide the board of corrections in determining the means of
furnishing employment to the prisoners. In the practical applica
tion of the powers given, much latitude must be allowed the mem
bers of the board in the exercise o f sound discretion. The court is
not justified in holding, from the record before us, that due con
sideration was not given by the board to the requirements o f this
subdivision, nor that the employment proposed is not best suited
to the various capacities of the prisoners. In the very nature o f
things that is a duty that must very largely be left to the board o f
control.
Whether the board has exercised wisdom in installing the par
ticular industry proposed, or in determining the magnitude o f that
industry as proposed, are questions that courts should not attempt
to review in the absence o f a showing that the spirit of the statute,
as well as the letter, has been violated. There are no facts alleged
in the complaint, nor are there any statements in the resolutions,
^ which indicate that the board o f corrections has abused or exceeded
the powers granted to it by the sections of the statutes quoted. It
conclusively appears that the labor of the prisoners is to be under
the direct control of State officials^ and the work to be done is for
the State and not for private individuals or private corporations.
The opinion concludes:
Neither is there any doubt that the board of control is vested with
discretionary powers in providing the means by which this legisla
tive intent shall be carried into effect. The courts should not, and
will not, therefore, interfere with those discretionary powers.
The proceeding was accordingly dismissed.
In the second case, brought by the same association that was active
in the Price case heretofore mentioned, the court, for the reasons ex
pressed in the Pollock case, dismissed the action. It was held that
there was no contract for the hiring of convicts as in the Price case,
the present plan contemplating that the work should be done in
prison grounds and under the direct control of the State.

C onvict L abor— C ontract for L easing— R ights of Citizens to
P revent V iolation of L a w — C onstruction of S tatute— Green v.
Jones , Suprem e Court o f Arkansas (A p r il 28, 1 9 2 b ), 261 South
western R eporter , page b3.—W.

E. Green and others sued to prevent
certain acts by J. W. Jones and others, members of the board of

CONVICT LABOR

penitentiary commissioners. The chancery court of Pulaski County
denied relief, whereupon the plaintiffs appealed, securing a reversal
o f the judgment below.
The decision in the trial court had turned on its conclusion that
the plaintiffs had no legal capacity to bring the suit by which they
undertook to require the penitentiary commission to comply with the
law as the plaintiffs construed it. They were taxpayers and citizens,
but the chancellor held that they “ had no such special interest in
the matter as would entitle them to bring the suit.”
Judge Hart, speaking for the court, held that the legislature had,
within its rights, made certain laws controlling the management of
the penitentiary and the convicts therein, and intrusted to the com
mission the duty of “ carrying into effect the public policy of the
State with regard to the management of its convicts as expressed by
its legislation.” I f this should be done in such a manner as to lay
“ an illegal burden and exaction upon the taxpayers of the State ”
their rights would be violated, and their mode of redress is that
which was undertaken in the instant case.
Each citizen and taxpayer has an interest, where his pecuniary or
property rights are involved, in seeing that no administrative board
like the one now under consideration shall discharge its duties in a
manner violative o f the statute creating it, and specifically defining
the duties that it may perform, as well as the things which it shall
not do.
Specifically, the law makes certain provisions as to the kinds of
employment in which convicts shall be used. Section 9694 provides
that “ the commission shall not hire out or lease, or permit any per
son to hire out or lease, any of the convicts of this State to any per
son or persons whomsoever.” The complaint made by the plaintiffs
was to the effect that for several months convicts had been hired out
“ to individuals, firms, partnerships, and corporations for the pur
pose of clearing land, constructing houses, levees, dams, and public
improvements in violation of the statute.” Particular reference was
made to the construction of a dam on which a large number of con
victs were employed.
Judge Hart found the employment to be in contravention of the
law, saying:
It is urged that the convicts have not been leased within the mean
ing of the statute because their physical control is under the super
vision and direction of guards and wardens appointed by the peni
tentiary commission. The physical custody of the convicts by the
guards and wardens appointed by the penitentiary commission does
not and can not prevent the contract from being one of hiring out or
leasing the convicts. Such a construction of the statute would in
effect render it useless and ineffectual for the purpose for which it
was enacted. The public policy of the State, as shown by the legis

DECISIONS OP COURTS AFFECTING LABOR

lative will, was to prevent letting o f the convicts to persons or cor
porations to be worked by them for private gain. To allow the con
tracts to stand would be contrary to the policy of the law as tending
obviously to result in the violation of the purpose and spirit of our
statute prescribing the rules and regulations which are to govern
the penitentiary board in the control and working o f the State con
victs.
The judgment below was therefore reversed and the chancery
court directed to grant the prayer of the complaint and “ to restrain
the Arkansas State Penitentiary Commission and the members
thereof from hiring out and leasing the State convicts.”

C ooperative A ssociations— W ages— C orporate D ebts— C apital
S tock— K ritzer v. A rm a Goal C o ., Suprem e Court o f Kansas
{O ctober 6 , 1923 ), 219 Pacific R eporter , page 28£.—Joe Kritzer
was one of some 15 or 18 coal miners, lessees of a coal mine, who in
corporated under the name the Arma Coal Co., for the supposed
purpose o f facilitating the conduct of the operation of the mine.
Each of the associates contributed a dollar for organization ex
penses and notes of stockholders were given for $500 with which to
begin business. A charter was obtained, a board of directors elected,
and some by-laws were drawn up. There was evidence that the or
ganization had no capital stock.
It appeared that no one understood how to conduct the affairs of a
corporation. The directors and stockholders met sometimes casually
and quite regularly on pay days. It was agreed at the organization
meeting that each stockholder should receive miner’s wages at the
rate of $6.05 per day. Nobody could receive anything, however,
until the company began to sell coal. The wages of stockholders
were regarded as back wages, and when some o f the members became
dissatisfied they were paid their back wages in full.
Upon judgment for Kritzer in an action for wages due, the de
fendants appealed, their contention being that the back wages were
contributions to the capital stock and not corporate debts. W it
nesses for the defendant testified the stockholders’ contributions of
labor at $6.05 per day were contributions to the capital stock; if the
enterprise was successful, profits were to be divided; if no surplus,
the stockholders were to lose their labor. Justice Burke, in the con
clusion of his opinion, says:
O f course, stockholders are not entitled to a division of profits
until corporate debts are paid. But the question here was: Were
back wages corporate debts, which accumulated because operating
expenses necessarily had to be taken care of first ? The question was
one of fact. The court made no findings of fact, and it can not be
said that the judgment was wholly unsupported. The judgment of
the district court is affirmed.

employees ’ liability

E mployers’ L iability — A dmiralty— F ederal S tatute— A ssump-*
R isk —Panama Railroad Go . v. Johnson, United States C ir

tion of

cuit Court o f A ppeals, Second Circuit (M arch 2 6 ,1 9 2 8 ), 289 Federal
R eporter, page 964.—Andrew Johnson, a seaman, was injured on

board an American vessel in navigable water—the Guanuquil River,
in Ecuador, South America. The plaintiff brought an action in
the common-law court instead of an admiralty court, and proceeded
under the act of June 5, 1920 (41 Stat. 988, 1007), giving to a sea
man suffering personal injuries in the scope of his employment the
same right of action at law for damages as railway employees under
the Federal employers’ liability act. (Comp. Stat., secs. 8657-8665.)
He recovered a judgment for damages, whereupon the employer
brought error, claiming that the statute was unconstitutional. The
court first announced that it has never been understood that the right
of seamen must be asserted only in the courts of admiralty. The
Constitution, article 3, section 2, extended the judicial power of the
Federal courts to all cases of admiralty and maritime jurisdiction,
but this fact in no way precludes “ Congress from subsequently
making alterations in the system of law referred to.”
Continuing, Judge Rogers, who delivered the very full opinion,
said:
In the judiciary act of 1789 (1 Stat., p. 76, c. 20) the right of the
common-law courts was recognized, and it was provided that the
Federal district courts should have exclusive jurisdiction of all cases
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 that provision has ever since remained
unrepealed.
The maritime law afforded two remedies. One was a proceeding
in rem, and the other was a proceeding in personam. Where the
proceeding was in rem, the jurisdiction of admiralty was exclusive;
where it was in personam, the courts of common law had a concur
rent jurisdiction. And when a party came into the common-law
court with a proceeding in personam, which he might have brought
in the admiralty court, the cause was disposed of according to the
procedure which governed that class of courts, and was tried with
a jury. It certainly can not now be questioned that the act under
which the‘plaintiff proceeded was-in any respect invalid in provid
ing that a seaman who suffers a personal injury in the course of his
employment may sue at law and have a right to a trial by jury.
While a seaman who was injured in the service of his ship had a
right from the beginning to sue in the common-law court, he was
restricted to a maritime recovery, i. e., only for his maintenance,
cure, and wages. The Jones Act gave to seamen the remedy given
under the United States statutes to railway employees, which pro
vides for relief in damages, the common-law defenses being strongly
modified.

DECISIONS OF COURTS AFFECTING LABOR

# We entertain no doubt but that it was within the authority of
Congress by the Jones Act to make the employers5 liability act ap
plicable to seamen injured upon navigable waters within the mari
time jurisdiction of the United States. Congress has paramount
power to fix and determine the maritime law which shall prevail
in this country. The system of maritime law as changed is still
coextensive with and operating uniformly in the whole of the United
States. The changes introduced into the system by making the em
ployers5 liability act applicable to seamen who suffer personal in
jury in the course of their employment does not violate any constitu
tional right of the defendant and does not exceed the powers of the
Congress.
It was claimed that the plaintiff, who met his injuries in falling
from the ladder, had been employed upon the ship IT months anti
was entirely familiar with the ladder; and it is said that, except
where the risk is created by the violation of a statutory rule, railroad
employees assume the risk under the Federal employers5 liability
act just as they did at common law.
That the act of the servant in assuming the risk must have been vol
untary and not under constraint is well-established law. In consider
ing whether, then, plaintiff voluntarily assumed the risk we may con
sider the nature of his employment. This man was a seaman, and was
injured while obeying an order given him by an officer of his ship, and
which directed him to climb the ladder. It is the duty of seamen to
remain with the ship and to act in obedience to the commands of the
master. Disobedience of orders by a seaman may involve him in
serious consequences, and subject him to possible forfeiture of the
wages previously earned and to imprisonment by the master.
We do not think that under the circumstances the defendant can
be heard to say that the plaintiff ought not to have obeyed the order,
or that in obeying it he voluntarily assumed the risk.
After deciding that plaintiff did not assume the risk the court
said that it was not necessary to base the case on that point. The
maritime law imposed on the owner the risk incident to the use of
defective and dangerous appliances, and there was nothing in the
new act to change the law on that point. The owner here supplied
a defective and dangerous ladder; the seaman was held entitled
to recover and his right of action could not be defeated on the
ground of assumption of risk.
The judgment in favor of the plaintiff was therefore affirmed.
Following this action of the circuit court of appeals, the case was
taken to the Supreme Court on a writ of error, where the judgment
was again affirmed. (264 U. S. 375, 44 Sup. Ct. 391.) After dis
posing of the question of jurisdiction, Mr. Justice Yan Devanter,
who delivered the opinion of the court, took up the question of con
stitutionality, the claim having been made that the statute was in
conflict with that provision of the Constitution which extends the
judicial power of the United States to “ all cases of admiralty and
maritime jurisdiction.55

e m p l o y e r s ’ l ia b il it y

The history of this provision and of the law to which it relates
was then reviewed, the court pointing out that provision had been
made by the Constitution for the creation of courts by Congress,
and also that there had been a grant by act of Congress of a
right to suitors in maritime cases to permit a common-law remedy
where that law was competent to give it. The statute in question
undoubtedly relates to a 44matter which falls within the recognized
sphere of the maritime law,” but Congress is empowered to 44alter,
qualify, or supplement the maritime rules,” so as to bring them
44into relative conformity to the common-law rules or some modifi
cation of the latter, if the change be country-wide and uniform in
operation.” The statute does not withdraw injuries to seamen from
the scope of the maritime law, nor does it enable seamen to with
draw them.
On the contrary, it brings into that law new rules drawn from
another system and extends to injured seamen a right to invoke, at
their election, either the relief accorded by the old rules or that
provided by the new rules. The election is between alternatives
accorded by the maritime law as modified, and not between that law
and some nonmaritime system.
It was still insisted that the statute restricts the enforcement of
the rights founded on such rules, admitting their validity, 44and
thereby encroaches on the admiralty jurisdiction intended by the
Constitution.” However, it was decided that the phraseology of
the law grants but does not compel a proceeding on the common-law
side of the trial court, with a trial by jury as an incident. 44The
words are used in the sense of 4an action to recover damages for
such injuries,5 the emphasis being on the object of the suit rather
than the jurisdiction in which it is brought.” There is further an
option to seek compensatory damages under the new rules, or the
old allowances of wages, maintenance, and cure. I f the action is in
admiralty the issues will be tried by the court, but if suit is on the
common-law side there will be a right of trial by jury. 44So con
strued, the statute does not encroach on the admiralty jurisdiction
intended by the Constitution, but permits that jurisdiction to be
invoked and exercised as it has been from the beginning.”
It was further objected that the grant of election between the
different forms of redress gave an advantage to seamen without
according a corresponding right to their employers, so that the
law was 44unreasonably discriminatory and purely arbitrary.” As
to this Judge Van Devanter said:
Of course, the objection must fail. There are many instances in
the law where a person entitled to sue may choose between alterna
tive measures of redress and modes of enforcement; and this has
been true since before the Constitution. But it never has been held,

DECISIONS OP COURTS AFFECTING LABOR

nor thought so far as we are advised, that to permit such a choice
between alternatives otherwise admissible is a violation of due
process of law. In the nature of things, the right to choose can not
be accorded to both parties, and, if afforded to either, should rest
with the one seeking redress rather than the one from whom redress
is sought.
The judgment was accordingly affirmed.

E mployers’

L iability — A dmiralty— F ederal S tatute— S teve
of F ellow S ervant— Workmen ’ s C ompensa

dore— N egligence
tion

L aw — Gassil v. United States E m ergen cy F leet Corporation

et al., United States Circuit Court o f A ppeals , N inth Circuit (M a y

7, 192 3), 289 Federal R eporter , page 77%.—Jesse W. Cassil, while
employed as a stevedore by the Portland (Oreg.) Stevedoring Co.,'
was assisting in the effort to land a sling load of lumber on a truck
on said ship when the winchman raised the load by a sudden violent
jerk, thereby causing Cassil’s hand to be caught between the loaded
sling and the hatch coaming.
Libel was brought against the United States Emergency Fleet
Corporation and another, and on a decree for the defendants an
appeal was taken.
Negligence was charged against both the ship and the stevedoring
company. Cassil was rendering a maritime service at the.time he
received the injuries, but he could hold the Emergency Fleet Cor
poration responsible only on the theory that the vessel was “ unseaworthy in respect to the instrument whereby his injuries were
Occasioned,” and there was no allegation in the libel that the acci
dent “ resulted from the use of any defective appliance of the ship.”
Nor could he hold the stevedoring company responsible “ if the
negligent act which caused his injuries was that of a fellow
servant.”
It was contended that the fellow-servant rule would not apply
in the instant case because of the American merchant marine act
(41 Stat. 988, 1007), which declares that “ any seaman who shall
suffer personal injury in the course of his employment may, at his
election, maintain an action for damages at law, with the right of
trial by jury,” and grants the rights allowed to railroad employees
by Federal law. It was further contended' that a stevedore was
declared a seaman by statute (R. S., sec. 4612; Comp. Stat., sec.
8392). The court held, however, that—
It was not the intention of the statute to include as seamen long
shoremen or stevedores. The statute was not intended to and does
not enlarge the definition of “ seamen” as it was then understood
and accepted in admiralty law. Generally speaking, a seaman is
anyone who, by contractual engagement with the owner, master,

EMPLOYERS* LIABILITY

or charterer of a vessel, serves the vessel in navigation. He is not
necessarily a sailor. He may be a cook, fireman, or even a bar
tender. A stevedore renders no service in actual navigation. It
is true that he renders service incidental to navigation in loading
and unloading vessels, a service which is maritime in its nature,
but he is a landsman and he does not belong on the Vessel, nor does
he go with the vessel. It has never been held that stevedores are
included in the definition contained in the section so quoted.
The Oregon compensation law abrogated the fellow-servant doc
trine, and the appellant claimed that the admiralty court was bound
to take notice of that law. The court said:
The State, however, has no authority to provide rules for the
enforcement of rights in admiralty.
As to the contention that as the libel contained all essential
requisites for a complaint at common law under the compensation
law it should have been transferred to the common-law side of the
court, it was held that—
The libel contains no allegation of the diversity of citizenship
essential to give jurisdiction to a Federal court.
Nor can the appellant in this proceeding avail himself of the
provision of the original judiciary act (Comp. Stat., sec. 991, [3]),
extending the judicial power of the United States to 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,” for that provision refers only to remedies for
enforcement of the Federal maritime law and does not create sub
stantive rights or assent to their creation by the States.
The decree was affirmed.
E mployers’ L iability — A dmiralty— R epair to S cow in N avi
W aters— Great Lakes D redge <& D ock Go. v. Kierejew ski,

gable

United States Supreme Court (February 9, 1 92 3), 1$ Supreme
Court R eporter, page 418.—The plaintiff in this case brought an

action in admiralty to recover damages for the death of her husband,
a boiler maker, who was drowned while making repairs upon a scow
moored in the navigable waters of Buffalo River. The United
States District Court, Western District of New York, had enter
tained jurisdiction, and the company brought error. The question
of jurisdiction was the only one involved.
It appeared that the employee lost his life by falling from a
scaffold resting on a float alongside the scow which he was repair
ing. This was said to be a maritime service to the completed vessel
on navigable waters, the subject matter having direct relation to
navigation and commerce. “ The rules of the maritime law, sup
plemented by the local death statute, applied and fixed the rights
44915°—25----- 5

DECISIONS OF COURTS AFFECTING LABOR

and liabilities of the parties.” The action of the district court was
therefore affirmed.
A similar case was before the same court later. (Gonsalves v.
Morse Dry Dock & Repair Co. (Nov. 17, 1924), 45 Sup. Ct. 39.)
Here the district court for the Eastern District of New York, on the
ground that the injury was not maritime, had refused to entertain
a case in which a workman was injured while repairing a steamer
then resting in a floating dock at Twenty-seventh Street, Brooklyn.
The injury resulted from the explosion of a torch which the em
ployer had negligently permitted to be out of repair. It was said
that the instant case was controlled by the opinion in the case above
presented, “ unless the injuries sustained by appellant were not the
result of tort, committed and effective on navigable waters.” As
the ship was supported by a structure floating on navigable waters,
“ clearly the accident did not occur upon land.” It was said to be
settled that admiralty jurisdiction in tort matters depends upon
locality, and as the locality was maritime, the jurisdiction was neces
sarily that of admiralty, so that the judgment below was reversed.

E mployers’ L ia bilit y — A dmiralty — S afe P lace — D u t y of
S tevedore— E ffect of S tate S tatutes— O 'Brien v. Luckenbaeh
S . S . C o ., United States Circuit Court o f A ppea ls , Second Circuit
(June 25, 1 9 2 3 ), 293 Federal R eporter, page 170.—Mary T. O’Brien

proceeded in admiralty against the Luckenbaeh Steamship Co. and
the Union Transport Co. to recover damages on account of the death
of her husband. O’Brien was employed as a carpenter on the steam
ship, working for the transport company, which undertook to adapt
a vessel in New York Harbor for the carrying of a cargo of grain.
This made necessary the installation of bulkheads in the hold of the
ship in the construction of which timbers of very considerable weight
were used. These had been piled across the hatch covers in a
dangerous manner by stevedores under the control of the transport
company. While in the performance of his duty, O’Brien stepped
upon a hatch cover which gave way, causing him to fall to his
death. The district court had entered a decree for both respondents,
whereupon the administratrix appealed.
In passing upon the case, Judge Rogers, who delivered the opinion
of the court, found that “ beyond question, those in charge of this
work should not have permitted these timbers to be placed upon the
hatch,” The hatch cover itself was not in good condition, but the
actual cause of the injury was found to be the improper placing of
the heavy timbers thereon. Witnesses testified that “ they had never
before seen lumber placed on the hatch covers and that they usually
placed it on the side of the ship.” The opinion then pointed out

employers ’ liability

that “ no right of action was given by the common law to recover
damages arising from the death of a human being caused by the
negligent act of another,” since personal actions die with the person.
The same doctrine exists in the general maritime law, but it has
been held by the Supreme Court that “ where death upon navigable
waters follows from a maritime tort [and] the law of the State to
which the vessel belongs gives a right of action for wrongful death
if such death occurs on the high seas on board the vessel,” such
right of action will be enforced in an admiralty court of the United
States. The act of Congress of 1920 giving an action for damages for
death on the high seas beyond one maritime league from shore does
not affect the rule cited, but “ leaves the matter as it stood prior to
its enactment as respects waters within the territorial limits of any
State, and it is without application in States having a statute giving
a right of action in death cases and making contributory negligence
a bar to the maintenance of such an action.”
A New York law gives the right of recovery in cases of fatal
injury, but the contention is made that the liability of an employer
is now fixed by the provisions of the workmen’s compensation act,
so that a suit for damages under the old statute can not be main
tained. This was found not to be in accordance with the construc
tion of the law adopted by the New York Court of Appeals in
passing upon a similar case. (Warren v. Morse Dry Dock & Repair
Co., 235 N. Y. 445; 139 N. E. 569.) Accepting this as conclusive, it
was held that the court of appeals had the right to hear and deter
mine the pending suit.
Taking up next the consideration of the case on its merits, the
general principles were recognized that an employing stevedore
should furnish a safe place, the doctrine of assumption of risk
applying. However, in the instant case the decedent was exposed
to a danger not normally incident to his employment. The danger
was occasioned by the negligence of his employer in allowing the
timbers to be placed upon the hatch and in not having the hatch
properly secured. Since the employee was not under obligation to
inspect for the purpose of discovering whether his employer had
performed his duty or not, he could not be charged with the assump
tion of the risk in the case.
As to the principle of contributory negligence, it was pointed out
that under the maritime law if such negligence appeared it was
not necessarily a bar to all recovery, but damages will, in the proper
case, be apportioned. However, the New York law makes any con
tributory negligence a bar to recovery, and as the right of action here
depended upon a New York statute, if contributory negligence ap
peared no recovery could be had. Such negligence had been pleaded
in this case, but the court did not find that it had been established.

DECISIONS OF COURTS AFFECTING LABOR

The steamship company had been joined in the libel, but no evi
dence appeared showing it to be “ in any way responsible for the
death of the decedent.” The court below properly held that no
negligence was shown against it and dismissed the libel as to it. The
transport company, however, was evidently guilty of negligence,
and having failed to establish any defense, judgment was awarded
in the amount of $16,500 with legal interest from the date of the .
death, together with costs. This award was arrived at by finding the
life expectancy of the decedent to be about 30 years, and his earnings
a little more than $2,000 a year, though they would have probably
increased. From this computation his own expenses must be de
ducted, leaving the conclusion as set forth.

E mployers’
ployment of

L iability — A dmiralty— “ U nseaworthiness ’’— E m
U nfit M ate— “ The R olp h ,” United States District

Court, Northern D istrict o f California {June 28, 1 92 8), 298 F e d
eral Reporter, page 269 .—This was a libel against The R olp h by

one Kohilas, a sailor on that vessel, intervening libels being also
filed by three others. The claims were for injuries received at the
hands of the first mate, “ now admittedly a convict for the brutal
treatment of seamen, described as a giant, weighing in the neigh
borhood of 285 pounds, all bone and muscle, and with a reputation
for ferocity as wide as the seven seas.”
District Judge Partridge, who passed upon this case, reviewed
the course of the vessel from the port of Vancouver to Melbourne,
New Castle, and Antofagasta, Chile. It was a. story of constant
shifting of crews on account of the brutality of the mate, and of
serious injuries to the sailors with fists, pieces of scantling, rope
ends, etc. Medical treatment was denied the injured man, “ with
curses and words of vituperation,” and though Kohilas was nearly
blind from being struck in the face repeatedly, he was compelled to
go on with his work, and when unable to do so “ the first mate
tied him up by the arm to the wheel of the bilge pump, and if he had
not been held up by the other sailors his arm would certainly have
been broken, or probably torn out of the socket.”
The mate had been discharged at the Chilean port, “ but was not
taken into custody by the master and brought in irons to San
Francisco, or to an American port for trial, as the statute re
quires.” It was claimed on behalf of the vessel that the master
knew nothing of these assaults, but the court found this “ incredi
ble.” One sailor was drowned and many beaten, “ and to say that
the captain did not know it is simply to trifle with this court.”
Judge Partridge took into consideration the effect of such treat
ment upon the attractiveness of the vocation of sailors, so that “ it

EMPLOYEES * LIABILITY

is not alone a question of common humanity ” that is in issue, but
one of the policy of the Government to foster and extend the mer
chant marine, so that “ the courts should not seek to defeat a claim,
which under all the circumstances would be just, for ill treatment
of the seamen, for any technical reason.” Recovery should not be
limited simply to wages, maintenance, and cure, the Supreme Court
having held that the vessel and her owner are both “ liable to an
indemnity for injuries received by seamen in consequence of the
unseaworthiness of the ship.”
Kohilas had completely lost the sight of one eye and had only
enough vision in the other to enable him barely to walk around; an
other claimant had, as a result of blows, completely lost the hearing
of one ear. The other two had been assaulted but had not received
permanent injuries.
Having announced the principle of liability for damages on the
basis of a decision already cited (T he Osceola , 189 U. S. 158, 23 Sup.
Ct. 483), the opinion concludes:
It is likewise well established that the very principle of ancient
maritime law, to the effect that a sailor is entitled only to wages,
maintenance, and also cure, carries with it the corollary that, if the
cure is not provided to the best ability of the master, the resulting
damage must be compensated in a court of admiralty. Requests by
Kohilas for treatment were brutally refused. Moreover, in mv
opinion, the master of the ship violated the statute when he neg
lected to deliver Hansen, or bring Hansen back to an American
port in irons for trial for his crime. But more than all that, it is
perfectly apparent that as to the sailors, The R olph was not a sea
worthy vessel. Seaworthiness, according to all the authorities, not
alone implies that the vessel be staunch and sound, but that she shall
be properly manned. The leading case in this circuit, of course, is
the case oi the R io de Janeiro limitation of liability of the Pacific
Mail Steamship Co. (130 Fed. 76), in which the court of appeals
of this circuit held that the R io de Janeiro was not seaworthy when
she sank in the Golden Gate, for the reason that her crew was com
posed of Chinese who could not speak English, so that when it came
to lowering the lifeboats they were unable to understand the orders
of the master and the first officer. I therefore hold that the employ
ment of Hansen rendered The R o lp h , in so far as the sailors were
concerned, an unseaworthy vessel, therefore admiralty rule No. 15
or 16 does not apply at all, and that the decree should be for the
libelant and the intervening libelants.
Inasmuch as the injuries were fully set forth in the testimony
by medical and other witnesses, the expectation of life and earnings
of these men were laid before the court, there is no necessity for a
reference to a commissioner in the usual manner.
The decree, therefore, will provide that the judgment be, for
Kohilas, in the sum of $10,000; for Kapstein, in the sum of $3,500;
for Seppinnen and Arnesen, in the sum of $500.

DECISIONS OF COURTS AFFECTING LABOR

E mployers’

L iability — A dmiralty— W

ages— J urisdiction— The

Sinaloa^ Larsen v. L in d vig , United States District Oov/rt, N orthern
D istrict o f California (A u gu st 23, 1983) , 292 Federal R eporter,
page 61fi.—A lf

Larsen was assaulted by the mate by the captain’s
orders, while the ship Sinaloa was at sea, bound from San Francisco
to Nicaragua and return. On the arrival of the ship at Corinto, in
Nicaragua, the captain ordered Larsen and one other sailor off the
ship, Larsen and the other man and five other sailors left the vessel
at'Corinto and sought the Norwegian vice consul. Upon returning
to the dock at the suggestion of the vice consul, the ship had sailed.
An action was commenced for the wages.
The court held that wages could be recovered as the sailors were
subject to abuse, one was assaulted by a mate by the captain’s orders,
and the vessel left them in a foreign port without any signal or
notification of sailing. Larsen also could recover for the assault.
As to the matter of jurisdiction the court said:
It is contended in this case, however, that I should decline juris
diction because these men were foreigners on a foreign vessel. The
argument is based upon the provisions of the protest of the Govern
ment of Norway, filed here amongst the papers, and upon article 13
of the treaty between the United States and Norway and Sweden (8
Stat. 346), which gives to consuls and vice consuls of the latter
countries the right to sit upon any dispute between captains and
crews of vessels of those nations.
However, these men shipped in San Francisco for a round [trip]
voyage to Nicaraguan ports, to be returned and discharged in San
Francisco, the port of their embarkation. While it is true that the
Sinaloa is a Norwegian vessel, still at the time she was being oper
ated by a coterie of American citizens, who are resident in San
Francisco, and who are respondents in this case. It seems to me that
under such circumstances the force of the treaty with Norway and
Sweden is destroyed by the provisions of section 8382a of the Com
piled Statutes. That section was enacted March 4, 1915, and spe
cifically abrogates any treaty provisions in conflict with the pro
visions of this act. In my opinion, therefore, the provisions of the
treaty in question, if they can be held to deprive this-court of juris
diction, under the circumstances in this case, are in conflict with
the provisions of the act.
Judgment for libelants.
E mployers’ L iability — A ssumption

Chicago, R .

R isk — F lying C hips —

/. & P . R y . C o ., Suprem e Court o f M issouri
(Decem ber 18,1922), 21fi Southwestern R eporter, page 335 .—Arthur
Emery was an employee of the Chicago, Rock Island & Pacific Rail
way Co. While assisting in removing iron angle bars which con
nected the joints of iron rails on the main line of track near Amity,
Mo., a piece of metal flew off and struck Emery in the eye, causing
loss of sight.

E m e ry

employees ’ liability

Emery brought an action for damages against his employer and
obtained a judgment. An appeal was taken to the Supreme court of
the State. The employer contended that Emery had assumed the
risk of the employment, and therefore it was not liable. In further
ance o f this contention it was pointed out that the flying particles of
iron or rust were a usual and obvious risk incident to the business as
it was carried on. The method used in doing the work was to allow
one employee to hold a steel chisel between the web of the rail and
the angle bar, while another hit the head o f the chisel with a maul.
Emery’s contention was that the employee who held the chisel at the
time looked away and moved the chisel just as he [Emery] was about
to hit it with the maul. This caused a glancing blow and a piece of
metal flew into Emery’s eye. The supreme court held that Emery
had assumed the risk and the judgment was accordingly reversed.
The court said that it was incumbent upon Emery to prove that the
glancing blow caused a particle o f metal to enter his eye, as the evi
dence shows that the particles of iron or rust flew always from the
cutting end of the chisel. The injury was one of the risks incident to
the employment, and therefore no recovery could be had, and as
Emery had exposed himself to the hazard of being hit, he consented
to assume the risk.
E mployers’ L iability — A ssumption of R isk — G uaranty of P ro
A ssaults by S trikers—Kansas, O. <& G . B y . Co. o f

tection from

(

Texas v. P ik e , Court o f Civil A ppeals o f Texas June 7 1924 ) , 264
Southwestern R eporter , page 693.—During the nation-wide strike of

shop-craft employees of railway companies in the summer of 1922,
W. J. Pike was offered employment by the Kansas, O. & G. Ry. Co.
under an agreement that he should be protected “ against any and all
attacks, injuries, and violences at the hands of strikers, strike sym
pathizers, and others who were not engaged in the employment with
him.” This agreement had been entered into as a moving condition
o f an acceptance of employment. While at work sweeping out a pas
senger coach about 3 o’clock in the morning, after about five days’
employment, Pike was shot through the abdomen and through his
left arm, suffering immediate and permanent injuries. On his action
for damages he alleged that the company had failed to provide the
safeguards promised, violating its contract and guaranty, by reason
o f which he suffered the injuries complained of and for which dam
ages were sought.
Judgment was in his favor in the district court of Grayson County,
that judgment being affirmed by the court of civil appeals. The com
pany made a general denial of the charges and alleged that Pike
“ had full knowledge and notice of the acts and omissions complained
of by him, and assumed the risk o f any injury arising therefrom.”

DECISIONS OF COURTS AFFECTING LABOR

The jury found, on special issues submitted, that the promise had
been made, that the protection had not been reasonably furnished,
that the injuries were received on account of such failure, that dam
ages in the sum of $1,000 were due for the injuries received, and that
Pike had not assumed the risks as defined by the court.
On the appeal, Judge Looney, speaking for the court of appeals,
found the case “ one of first impression in this State; in fact, we
have not been able to find, nor has our attention been called to but
one other reported case where similar facts were brought under
review and rights of litigants adjudicated.” The law of master
and servant has in no part received “ more varied application than
that of assumed risk.” The relation is regarded as contractual,
“ that is, the servant, in consideration of stipulated compensation,
impliedly agrees to assume the usual and ordinary risk of his em
ployment and the master impliedly agrees to furnish the servant
suitable instrumentalities and see that they are safely used.”
Reference was then made to “ the case nearest in point.” (Han
sen v. Dodwell Dock Co., 100 Wash. 46, 170 Pac. 346; see Bui. No.
258, p. 50.) Here a longshoreman was assaulted by a mob of strikers
and recovered damages, pleading a contract for protection, as in
the instant case. The court there said:
The contract is a stranger to the books because of its novelty,
but it differs in no sense in its essentials from other contracts by
which one person for a sufficient consideration agrees with another
to do or not to do a particular thing.
There is nothing in such contracts, therefore, to differentiate them
“ from any other binding contract.”
The jury found the contract to have been made and not kept.
Appellant in this case was not forbidden by anything in the law
to make the agreement with appellee to safeguard and protect him
personally from the assaults and violence o f strikers and strike
sympathizers.
There was no error in the rulings or proceedings and the judg
ment of the trial court was therefore affirmed.

of R isk — N egligence— V a l
v. M cDonald , Court o f A ppeals o f Georgia (March
7 , 1 92 3), 116 Southeastern R eporter , page 651.—C. H. McDonald was
employed by the defendant street railway company to assist in putting
up and connecting overhead trolley wires. While so engaged the
plaintiff, who had been in the employ but a short time, called atten
tion to a weak point in a rope that was being used to pull the wires.
A coemployee, who had been in the service some time, assured him
that the rope, which had been put together by plaiting and twisting,

E mployers’ L iability — A ssumption

dosta Street R y . Co.

EMPLOYERS' LIABILITY

was stronger at that point than elsewhere and because of this as
surance plaintiff continued in his work. The rope broke and the
plaintiff received injuries for which he brought an action for dam
ages.
The defendant company demurred, contending that the condition
of the rope was obvious and apparent to the plaintiff; that he knew
of the defect and assumed the risk by using the rope. The trial court
overruled the demurrer.
On review in the court of appeals the judgment of the trial court
was reversed for the reason that:
The petition clearly shows that the plaintiff had knowledge of
the defect in the rope, and that its use was obviously dangerous
to him, and, rather than depend upon his own observance, he de
pended upon the statement of a coemployee, not the alter ego, of
the company, and in the face of this apparent and obvious danger
used the rope, and was, as he must have known he would be, in
jured.
E mployers’ L iability — C ommon - law D efenses— E ffect of P as
W orkmen ’s C ompensation L aws — R ight to R ecover—

sage of

E step

P rice , Supreme Court o f A ppeals o f W e st Virginia {F e b

ruary 6 , 1 92 3), 115 Southeastern R eporter , pa,ge 861 .—C.

E. Price,
who was engaged in grading and constructing a county road, had in
his employ one Rufus Estep and a number of other workmen for that
purpose. During the course of the work Estep was directed by Price
to assist in felling a large elm tree which stood in the right of way
and on which two other workmen were working. Accompanied by
another worker, named Zarnes, he went to the tree as directed. A
short time thereafter an ax which one of the other workmen was
using in chopping into the tree slipped off the handle and struck
Estep on the back of the hand, causing serious and possibly perma
nent injury. He brought an action for damages against Price, his
employer. He alleged that Price, though an employer within the
scope of the workmen’s compensation law of the State, was not a
subscriber to the State fund and was not entitled to the protection
offered by the acts; also that he could not avail himself of the
common-law defenses of the fellow-servant rule, assumption of risk,
and contributory negligence. Estep alleged that the employer failed
to provide reasonably safe tools and appliances for the work and
that the employer was not reasonably careful in hiring competent
and careful fellow servants. A trial was had, and there was some
conflict in the evidence and in particular as to who furnished the
defective ax. At the conclusion of the evidence the court struck out
all of Estep’s evidence and directed a verdict for the employer. The
case was taken to the supreme court o f appeals. The sole question

DECISION’S OP COURTS AFFECTING LABOR

before the court was whether the evidence was sufficient to make a
case for the jury to decide. The court reversed the judgment o f the
trial court and remanded the case for a new trial.
Judge Lively, speaking for the court, said:
It must be kept in mind that under the workmen’s compensation
act ah employee can not recover against his employer for every
injury he receives in the employment where the employer fails to
take the benefit of that act. There must be some negligence imput
able to the master, some act or omission from which the injury
resulted. The servant assumes the risks incident to his employment
other than those induced by the master’s negligence, notwithstanding
the fact that the act precludes the master from reliance upon the
common-law defenses of assumption of risk, fellow-servant rule, and
contributory negligence. Noncompliance with the act leaves the
master liable to the servant for common-law negligence and deprives
him of the common-law defenses stated.
To make a master liable for an injury to his servant by omission
of some duty imposed upon him, the existence of a causal relation
between such omission and the injury is necessary. An employer
who has not elected to bring himself within the provisions of the
Michigan workmen’s compensation act is not answerable for injury
sustained by an employee, in the absence of some negligence on the
part of the former. (Lydman v. DeHaas, 185 Mich. 128,151 N. W.
718.)
It is the duty of the master to furnish tools and appliances which
are reasonably safe and suitable for their purpose, and the servant
may assume that the master has performed tjiat duty.
Assuming that plaintiff’s evidence truly describes the accident and
its cause, and assuming it to be true that defendant had no knowledge
o f the presence or use of the defective ax, the jury, under the circum
stances surrounding the unfortunate incident, might reasonably infer
and find that the master had neglected to furnish sufficient and
reasonably safe and suitable tools for the purpose of cutting and
removing the tree and that a fellow servant was negligent in the
performance of the master’s work.
The question of negligence on the part of the master and on the
part of the fellow servant, under all the facts and circumstances, was
for the jury to determine.
E mployers’ L iability — C ontributory N egligence— P roximate
C ause— C hoice of R emedies— A rizona S tatute— Gazette P rinting
<& Publishing C o . v. Suits , Suprem e Court o f A rizona {June 6 ,1 9 2 If) ,
226 Pacific R eportery page 642-—Samuel

Suits, employed as a stereo
typer by the defendant Gazette Printing & Publishing Co., was
made assistant foreman of the pressroom about three or four months
before the accident, in order to take charge when the foreman went
on a vacation. On the morning of the injury, while the plaintiff
was attempting to adjust some clips on the cylinders, he had one
Feurriegel, an employee of the pressroom, turn on the electric power
to turn the rolls so that he, the plaintiff, could adjust the clips.

employers ’ liability

The power being turned on, the plaintiff reached with his hand to
adjust the clips and his fingers were caught between the rolls. It
appeared from the evidence that the rolls could have been turned
with perfect safety by hand. The foreman, one Hansen, who had
been instructing the plaintiff in the work, had never adjusted the
clips by turning the rolls by hand, but had always used the electric
power, and the plaintiff contended that as he was taught that way
the defendant was liable for compensation under the act. Judg
ment was in the plaintiff’s favor, and the defendant appealed.
The supreme court pointed out that under the employers’ liability
law the plaintiff did not have to show that the proximate cause of
the injury was the negligence of the employer, but that he did have
to show that his own negligence did not cause the injury. It was
the view of the supreme court that the danger was “ open, patent,
and obvious, so that any person of ordinary intelligence and under
standing could see and appreciate it,” and further that “ the de
fendant had provided another and a safe way to adjust clips which
the plaintiff could have followed without any danger whatever.”
The rule of law was stated to be:
Where a servant unnecessarily and of his own volition uses an
unsafe way or place to do his work when other and safer ways or
places are available he can not recover for injuries sustained by
reason of his negligent act if the danger is such that no ordinarily
prudent person would incur it under like circumstances. (26 Cyc.
1248.)
The supreme court then said:
When the rule is applied to the facts of the present case, in con
nection with the rule that will not permit an employee to say he
was not negligent when he sees, knows, and appreciates the danger,
it is not possible to permit this judgment to stand unless we disre
gard these well-established rules.
It was pointed out that if Hansen had been injured in doing the
same thing, “ it is hardly conceivable that the law would adjudge
that he at the time was in exercise of reasonable care or ordinary
prudence.”
The fact that it is the usual custom of employees to do their work
in a dangerous or reckless way will not bind the employer. The
standard of due care required of persons engaged in hazardous occu
pations can not be lowered by the habitual negligence of others in
the same line o f work.
The judgment was reversed and the cause remanded for the com
plaint to be dismissed, with the suggestion that, in such a case,
where “ his own negligence was the proximate cause of his injury,”
the injured man “ should seek relief under the workmen’s compen
sation law, and not invoke the remedy open to the employee who

DECISIONS OF COURTS AFFECTING LABOR

is free from negligence and is injured by an accident due to a con
dition or conditions due to his occupation.”
Mr. Chief Justice McAlister did not agree with the decision o f the
court, and in his dissenting opinion said:
But whether using electric power for this purpose is so dangerous
that no ordinarily prudent person would attempt it does not suffi
ciently appear from the record that this court should say as a matter
of law that the mere selection of that way of doing this particular
act constitutes such negligence as to preclude the plaintiff from
recovery.
No other conclusion can be drawn than that in using electric power
he was obeying the instructions o f his employer, and that such
method, whether safe or unsafe, was selected by appellant itself and
not by appellee.
The fact, however, that he saw Hansen do it almost daily for
several months without any accident, and that Feurriegel saw him
do it for more than a year with the same result, shows, to my mind,
that it was not so dangerous that this court should say, as a matter
of law, that appellee’s failure to disobey his instructions and select
the other method of adjusting the clips constitutes such negligence
as to preclude a recovery by him. I f it were true that appellee had
voluntarily adjusted the clips with the aid of electric powder, it would
still be impossible to say, as a matter of law, that the accident was
due to his choice of a dangerous method of performing the act.
* * * And the contention that appellee having voluntarily chosen
a dangerous method of adjusting the clips, assumed the risks inci
dent thereto, would likewise fail, even though the doctrine of the
assumption o f risks applied under the employers’ liability law as
under the law of negligence because it, like contributory negligence,
is a question of fact for the jury.

E mployers’

L ia bilit y — D eath — C onscious S uffering — E vi
R eports— G erry v. W orcester Consol, S t. R y . C o .,

dence—A ccident

Supreme Judicial Court o f Massachusetts (>Septem ber 15 , 192If), 11$
Northeastern R eporter , page

691 —Jessie W. Gerry brought two
actions against the Worcester Consolidated Street Railway Co. to
recover damages, one for the death of her husband and the other for
his conscious suffering due to injuries received while in the com
pany’s employ. Action was brought under chapter 514, Acts of 1909,
the employers’ liability statute, and under the common law. The
common law provides no recovery for death, but this statute estab
lished the liability for death, covering also the subject of conscious
suffering.
In the court below Mrs. Gerry obtained judgment for the con
scious suffering, but a verdict was directed for the defendant com
pany in the first action. Both she and the company excepted to the
judgment, and the case was taken to the supreme court. Here her
exceptions were overruled and those of the company sustained.

EMPLOYERS’ LIABILITY

Judge Carroll, speaking for the court, stated the purpose of the
statute above mentioned to be to limit the amount recovered to the
statutory maximum. “ The plaintiff could pursue her remedy at
common law and recover for her husband’s conscious suffering; but
if she elected so to do, she has no remedy under the statute in ques
tion, and a recovery thereunder would bar her recovery at common
law in the separate action.”
The procedure indicated by the statute must be followed in order
to recover for death, and if conscious suffering preceded the death
one recovery must cover both claims, a single action being contem
plated. The separate action for death could not therefore be enter
tained and “ the verdict for the defendant was ordered rightly.”
Judge Carroll then took up the proceedings in the action for
conscious suffering and found that the employer was not a subscriber
under the workmen’s compensation act. A suit for damages was
therefore the proper procedure, but various instructions as to evi
dence were found incorrect. However, the court was of the opinion
that “ there was evidence for the jury on the question of the de
fendant’s negligence.”
There were questions as to the observance of the rules o f the
company in connection with the accident. Evidence was submitted
as to the existence of oral rules and their application to the case in
hand. The admission of such evidence had been excepted to, and
the court ruled that these exceptions should have been maintained.
“ Oral rules resting in the memory or recollection of witnesses might
be difficult to prove. A rule for the guidance of employees in matters
affecting the safety of others must be made known to them; it must
be published.” On account of the uncertainty of such rules and
the difficulty of their establishment, a rule “ concerning the opera
tion of important business is not admissible unless printed or
written and published.” Other evidence not material as bearing on
the question in issue had been received, and an instruction given
that if the company had permitted the violation “ of any rule,
written or oral, this was evidence of negligence.” There was error
in respect to both of these items and also with regard to an instruc
tion which implied that the defendant was negligent “ merely
because it failed to make a rule which the jury considered necessary.”
Other points were raised, that of chief interest being the admission
as evidence of an accident report made by the employer to the
State industrial accident board. This report is required by law and
gives various details, including those fixed by the statute “ and other
information required by the department,” Employers failing so to
report are subject to fine, the material thus supplied to be “ fur
nished on request to the State board of labor and industries for its
own use.” Nothing appeared to suggest the availability of such

DECISIONS OF COURTS AFFECTING LABOR

reports for use in prosecutions of suits for damages, and no right is
given the public to inspect them, the only use other than by the
board itself being their availability to the State board of labor
and industries for its use. The purpose of the reports is to furnish
the board such information as it deems to be o f value and importance
to itself, and if they are to be used in actions for damages as
admissions to the employer’s prejudices, “ it might cause serious
embarrassment to the board in obtaining the necessary information.”
Moreover, “ it would, in our opinion, be unfair to the parties and
contrary to the meaning of the statute to allow the reports of the
accident as an admission against the defendant.”
The company’s exceptions in the second action were therefore
sustained, while the plaintiff’s exceptions in the first action were
overruled, “ but judgment is to be suspended on the first action until
the determination of the second action.”

E mployers’ L iability — E lection
ute — T w o h y B ro s. Go.

R emedies- - A

rizona

S tat

Rogers, United States Circuit C ourt o f
A ppeals, N inth Circuit (N ovem ber 1%, 1 9 2 3 ), 293 Federal R ep orter ,
page 566.—Walter Rogers, an employee of Twohy Bros. Co., com

menced a common-law action in a State court of Arizona to recover
damages for personal injuries. The company procured the removal
o f the case to the Federal court on the ground of diversity of citizen
ship. After this removal Rogers filed an amended complaint, add
ing to the common-law cause of action a second cause o f action
based on the State employers’ liability law. The defendant com
pany moved to strike out this cause of action claiming that Rogers
had brought his common-law action in the State court, and had
thereby elected to pursue that remedy exclusively. The court denied
this motion, and other complaints were filed omitting the commonlaw cause of action entirely. The defendant continued to object,
but the objection was overruled, and on trial Rogers recovered
judgment on his third amended complaint, based on the State em
ployers’ liability law. The case was then brought to the circuit
court o f appeals on a writ of error, where the judgment o f the
court below was affirmed.
The single question before the court was whether Rogers had
made an exclusive election by bringing his common-law action in
the State court. The situation in Arizona differs from that in most
States, since the compensation law o f the State, while compulsory
as to the employer, leaves to the employee the option, after the in
jury, of pursuing his remedy under that act or suing for damages.
The suit may be either at common law or under the employers’ lia
bility law, but the law provides that “ any suit brought by the work

employers ’ liability

man for a recovery shall be held as an election to pursue such
remedy exclusively.” A ll these remedies are open to an injured em
ployee until a binding election is made. It was said by the court
that “ ordinarily, where a party has a choice of remedies, the mere
bringing of an action, without more, will not constitute an irrevo
cable election to pursue that remedy to the exclusion of all others,
but the election here is purely statutory.”
The statute in question had been construed by the supreme court
of the State, the decision of which is controlling; but the construc
tion given by the court was hardly more specific than the statute
itself, the language being that the statute is apparently a declara
tion of the legislature leaving the employee “ at liberty to pursue
any o f the remedies provided by law until he adopts one by insti
tuting a suit for redress, when the one adopted becomes exclusive.”
Examining the provisions of the constitution which relate to the
enactment of a compensation law, which granted to the employee
the option of compensation or a damage suit, the court found as to
the limitation on the employee that—
He is only required to elect as between these two rights or reme
dies, and the proviso and the language of the supreme court of the
State should be construed in the light of this constitutional provi
sion. I f the workman claims under the compulsory compensation
law (Civ. Code 1913, pars. 3162-3179L he waives the right to sue
as provided in the constitution; and ii he sues as provided in the
constitution, he waives the right to claim under the compulsory
compensation law, but beyond this there is no election and no waiver.
I f the workman retains the right to sue the employer under the
constitution, he is not required to elect as between the different
remedies there provided, and the mere bringing of a suit at common
law does not constitute an absolute waiver of his right to thereafter
make timely claim under the employers’ liability law.
This decision was said to be in harmony with the practice in the
State, where the common-law cause of action and the cause of action
arising under the employers’ liability law may be joined in the same
complaint, “ although this practice has neither the sanction nor the
disapproval of the supreme court of the State.” Such being the
case, the judgment of the court below was correct and' is affirmed.

E m plo ye rs ’
L ia b il it y — E m plo ye e — C ook
H ired
by
B ridge
C rew — Edelbrock v . Minneapolis , S t, P , & S . S. M . B y . Go ., Suprem e

(January 15, 1924) , 196 N orthwestern R eporter ,
806.—Helen Edelbrock was hired as a cook and paid by a
bridge crew in the employ of the defendant railway company. Her
husband was hired as a laborer on the same crew. Her work was
performed in a kitchen car furnished by the railroad company, and
Court o f Minnesota

page

DECISIONS OF COURTS AFFECTING LABOR

while so engaged on April 4, 1921, she attempted to accelerate the
kitchen fire by the application of kerosene and as a result an explo
sion occurred resulting in her death on April 19. Application was
made for compensation under the Minnesota employers’ liability act.
There was a verdict for the plaintiff in the district court, and the
defendant appealed from the order denying its blended motion for
judgment notwithstanding the verdict or a new trial.
It was contended that there was apparent or implied authority to
hire a cook for the crew in such a manner “ as to make the contract
of employment binding upon the defendant.” The supreme court
refused to take that view. The evidence showed that she received
$50 a month wages, which amount as well as the cost of the food and
supplies was paid “ out o f a fund contributed by the men them
selves.” The money was collected by the husband of the deceased,
and all bills were paid by him. The company “ possessed none o f the
powers of supervision and control typical o f the employer’s con
ventional relationship to his employee.” The fact that the defend
ant company “ furnished fuel and the kitchen car ” the court held
did not “ make her the employee o f the defendant.”
The supreme court referred to the case of Doyle v. Union Pacific
Ky. Co. (147 U. S. 413, 13 Sup. Ct. 333), in which the plaintiff, a
woman, occupied a section house o f the company, boarded its men,
and was assisted by the railroad in collecting the board bills. The
United States Supreme Court held in that case that the defendant—
“ was not interested, in a legal sense, in the management of the
boarding house, did not receive the board money, pay the expenses,
take the profits, or suffer the losses. The company could not call
upon her for any account, nor could she demand payment from the
company for any services rendered by her. * * * The fact that
the company agreed to aid her in collecting what might be due her
from time to time by the boarders, * * * did not convert Mrs.
Doyle into a servant of the company.”
The Supreme Court of Minnesota was o f the opinion that “ this
comment applies precisely to the instant case and disposes o f it, upon
the issues of the relationship between the defendant and Mrs.
Edelbrock.” The court further said:
The relationship of employer and employee is in essence a con
tractual one. Here there is no evidence of contract as between Mrs.
Edelbrock and the defendant. The controlling question of employ
ment can not be decided otherwise, unless courts arrogate to them
selves the power o f creating a contractual relationship, where the
parties have expressly avoided it.
The order, in so far as it denied a new trial, was reversed.
Mr. Justice Holt dissented:
The evidence justified a finding that the bridge crew foreman
had apparent authority to employ a cook for the crew. Their work

e m p l o y e e s ’ l ia b il it y

was such that a cook was necessary. I f the plaintiff’s intestate
had received her injuries previous to the first pay day, I think that
the jury could not well have found otherwise than that she was the
servant of the defendant. There is no direct evidence that she knew
whom her pay came from, nor, perhaps, is it a conclusive test of the
relation of master and servant that the master pays the wage.
Knowledge of the husband did not conclude her next of kin, her
daughters.
E mployers’ L iability— E mployee— S trike B reakers— C ontribu
N egligence— Lew is v. Louisville R y . Co., Court o f Appeals

tory

o f K en tu cky

(June 10, 1 92 4),

1095.—In

Southwestern Reporter, page

August, 1919, there was a strike of employees of the
Louisville Ry. Co., and the president of the company telephoned
to Reed & Co. in Chicago to send 200 or 300 men to operate the
street cars in Louisville during the strike, and this was done.
Some of the men knew how to operate the cars, but many did not.
Among the latter was Joseph Lewis. An experienced man, one
Murphy, was told to instruct the new men how to operate a car;
while so doing he asked Lewis to see if the headlight on the car
on which he (Murphy) was was burning. Lewis stepped on the
front fender to adjust the bulb, and while so engaged the car was
started, and before it could be stopped collided with another car,
catching Lewis and breaking both his legs. Murphy was at the
front of the car, but one of the men he was instructing had started
it. The brakes failed to work, and the man who started the car did
not know how to reverse. The men shouted to Lewis, who was
facing them with his back toward the cars which they were ap
proaching, “ and when the car was within about 5 feet of the other
car he turned around and stood there as if paralyzed until the col
lision occurred.” He was a gas fitter by trade and did not know
anything about the operation of cars. His suit for damages resulted
in peremptory instructions to the jury to bring a verdict for the
defendant company, from which he appealed.
The first contention was that “ Murphy and Lewis and all the
other men who came down from Chicago were employees of Reed &
Co. and not of the railway company.” To this Judge Hobson,
speaking for the court, stated that Murphy was on one of the com
pany’s cars operating it as an instructor at the direction of the com
pany, in its service, and for its benefit. “ I f there was negligence
on his part, the defendant is liable.” Lewis got on the car at Mur
phy’s instructions, “ and Murphy could see him there when it started
up.” He knew the danger, and he knew the condition of the brakes,
etc., of tho car on which he was. “At least there was evidence tend
ing to show these facts, and the rule is that if there is any evidence
44915°—25---- 6

DECISIONS OF COURTS AFFECTING LABOR

the question is for the jury.” Lewis was not a fellow servant of
the man operating the car under Murphy’s directions, nor was he
a fellow servant of Murphy. “ He was not operating the car, and
had no part in its operation. His danger being known, it was a
question for the jury if ordinary care for his safety was exercised
after his peril was discovered.”
Another contention was that Lewis had failed to use ordinary
care for his own safety. He had seen the other car when the men
shouted to him, “ but failed then to jump off, but, on the contrary,
stood there like a man dazed and paralyzed.” The court announced
the general rule here to be that “ contributory negligence is a ques
tion for the jury, especially in cases where the plaintiff is placed
suddenly in peril and fails in the emergency to take the safest
course.” The capacity to exercise presence of mind varies with dif
ferent persons. Lewis had traveled all night, had slept little either
that night or Saturday night, and was at work which he knew noth
ing about. The rule of law applicable is “ that the opportunity to
think and act must be taken into consideration. There is no rule of
law which prescribes any particular act to be done or omitted by a
person who finds himself in a place of danger. The only requirement
of the law is that the conduct of the person involved shall be con
sistent with what a man of ordinary prudence would do under like
circumstances. And whether the plaintiff exercises such care is for
the jury’s determination.” (20 R. C. L. 134,135.)
Inasmuch as no submission to the jury had been permitted, the
above principles had not been complied with. The judgment was
therefore reversed and the cause remanded for a new trial.

E mployers’ L iability — “ E mployee ”— W orkman A ssisting E m
ployee on R equest— K ir k v. Shpwell , F r y e r & Go ., Suprem e Court
{M arch 19 , 1 92 3), 120 Atlantic R eporter , page
W. Kirk was injured by the alleged negligent opera
tion of an automobile belonging to Showell, Fryer & Co. The driver
at the time of the injury was not a regular employee but was assist
ing a regular employee in delivering a bulky package in the course
of the employer’s business. The driver, while waiting for the trans
action of business, requested his assistant to move the automobile in
accordance with the instructions of a policeman, and while so doing
this assistant lost control of the machine, injuring Kirk.
The case was tried in the court of common pleas of Philadelphia
County, where a compulsory nonsuit was entered on the ground that
the assistant who drove the automobile truck at the time of the injury
was not an employee of the owner of the vehicle, so that it was not
o f Pennsylvania

670.—Charles

employers ’ liability

responsible for his negligent acts. The supreme court, speaking by
Judge Sadler, found to the contrary. Eecognizing that the driver
at the time was not an employee of the owner of the truck, it appeared
that the article removed was of such weight and bulk as to justify a
finding that the services of two men were needed in handling it. The
truck was being moved at the request of an officer of the law in com
pliance with the necessary regulations of traffic, and the employee in
requesting his assistant to move the vehicle was carrying out the
business of the employer in spite of the fact that there was no direct
employment by it. The rule followed in this case was thus stated:
It is a rule universally recognized that the relation of master and
servant can not be imposed on a person without his consent, express
or implied. It is upon the exception to this general rule, which is
quite as well settled as the general rule itself, that the plaintiff relies
to establish the relation of master and servant in this case. The ex
ception is that a servant may engage an assistant in the case of an
emergency where he is unable to perform the work alone.
The court stated that the question of sufficient authority to employ
an assistant was one to be passed upon ordinarily by a jury, which
must decide as to the extent of the emergency. I f actual emergency
existed, “ then there was an implied authority on the part of the
driver to secure assistance in the performance of his master’s work.”
The action of the court below was therefore reversed with instruc
tions to proceed with the trial.

E mployers’ L iability — F actory A ct— L iability op E mployer
T hird P erson— Bollinger v. H ill C ity , Suprem e Court o f Kansas

(J u ly 6 , 1 9 2 4 ),
Pacific R eporter , page 265.—D. A. Bollinger
went with the superintendent of the municipal electric-light plant
to a committee of the city council to discuss the question of his
employment as assistant superintendent of the plant, the resigna
tion of the incumbent assistant superintendent being expected. For
three days thereafter Bollinger went to the light plant and re
mained several hours a day. On the third day the superintendent
left him alone at the plant, telling him that if anything went wrong
to call him (the superintendent). While the superintendent was
out one Gibson saw Bollinger pouring some oil into the self-oiler
on the engine, and a little later saw that he was caught in the
revolving shaft on the side of the engine. Aid was called, the
machine stopped, and Bollinger taken out. The sleeve of his jacket
had caught upon an unguarded set screw, and from the injuries re
ceived he died six days later. An action was instituted for damages
by the widow and three minor children, and from a verdict and
judgment in the sum of $10,000 the defendant city appealed. The

DECISIONS OF COURTS AFFECTING LABOR

defendant contended that Bollinger was a mere volunteer and that
he was in the plant of his own volition, and that therefore the plain
tiff should not recover. The supreme court said, however:
It can not be said Bollinger was a trespasser. He was invited by
the superintendent to take charge of the plant during the noon hour.
Whether or not, under the circumstances, he was employed or labor
ing in the plant was a question of fact for the jury.
The electric-light plant comes within the purview of the factory
act. It was owned and maintained and operated by the city.
The supreme court quoted with approval from Pack v . Grimes
(107 Kans. 704, 183 Pac. 330):
A person laboring in such an establishment, although not an
employee of the proprietors thereof, is within the protection of the
factory act. [Syl.]
And from the opinion of the case the court quoted:
There is a contention that as plaintiff was not an employee of
defendants he was not entitled to the protection of the act. This
protection is given not only to employees, but it is also extended to
other persons working in the establishment.
The supreme court was of the opinion that the two cases were
similar and that the same reasoning would hold in the present case
as in the case cited.
It was contended that the verdict was excessive, but, as the court
pointed out, the deceased was about 26 years of age and had earned
as high as $7 a day in his employment as an operator of a threshing
machine. This the court decided was sufficient evidence, together
with.surrounding circumstances, to warrant the verdict of the jury.
The verdict and judgment of the lower court were therefore
affirmed.
E mployers5 L iability — F ellow S ervice— V ice P rincipal— D ual
C apacity— S afe P lace—H ildm an v. Am erican M anufacturing Go .,
M issouri Court o f A ppeals (M arch 6 , 1923 ), 21fi Southwestern R e
porter, page 9 9 — John

Hildman, a foreigner with but little knowl
edge of the English language, was employed as a laborer by the de
fendant, the American Manufacturing Co. A number of barrels
of tar, weighing about 500 pounds each, were stored upright two
barrels high in an alley on the premises. Skids were usually used
to lower the barrels on the second tier, but on August 2, 1920, the
defendant’s foreman used a buffer barrel; that is, a barrel placed
lengthwise on the ground and the second tier barrel being tipped
over on this buffer barrel, thus breaking the force of the fall. Hild
man and another were helping the foreman; Hildman stood at one
end of the buffer barrel, the foreman at the other end, and the third

employees ’ liability

man by the upright barrels. When the barrel to be moved was
shoved over upon the buffer barrel, it slipped and fell upon the
plaintiff, injuring him. The plaintiff claimed that the buffer barrel
was not blocked and that as a result thereof it rolled away when
the other barrel hit it. This was denied by the foreman, who claimed
that the barrel was blocked, but that the barrel which fell slipped;
that he called to the plaintiff to get out of the way, but that the plain
tiff did not understand him. The company contended that the fore
man “ was acting in a dual capacity, and in doing the manual work
of helping to lower the barrel he was a mere colaborer with plain
tiff ; and that his negligence, if any, in doing such work, in failing
to control the barrel, or otherwise, was the negligence of a fellow
servant for which defendant is not liable.” Judgment was in Hildman’s favor in the trial court, and the employer appealed.
The court of appeals, while admitting the dual capacity doctrine,
said:
Where a servant occupies such dual relation, the liability vel non
of the master for the acts of such servant is to be determined by
the character of the act drawn in question and not alone by the ser
vant’s rank.
Due to the request of the defendant for a peremptory instruction
directing a verdict in its favor, the court held that the “ evidence
must be reviewed in the light most favorable to the plaintiff,” and
from that viewpoint found it clear that the evidence warranted a
finding that “ the proximate cause of plaintiff’s injury was the fail
ure to block the buffer barrel.” The defendant .insisted, however,
that if the foreman was negligent, “ the negligence was that of a
fellow servant.” The court did not agree.
When a skid was not used and the work was done by the use of a
buffer barrel, it was the duty of defendant’s vice principal, Dobanda,
who was present and had charge of the matter, to see that this barrel
was so blocked as to make it reasonably safe to be used for such
purpose. And if he negligently failed in the discharge of that
duty, thereby exposing plaintiff to an extra hazard, his negligence
in that respect sufficed to cast liability upon defendant as for a
breach of the duty owing by it as master to its servant.
And we may add that if, under the evidence, plaintiff’s injury be
regarded as due to the negligence of Dobanda, as vice principal, in
failing to block the buffer barrel, combined with his negligence as
a fellow servant in the matter of handling the other barrel, then
such combined negligence—being in law the negligence of the master
combined with that of a fellow servant—operates to cast liability
upon the defendant for injuries thereby sustained by plaintiff while
in the exercise of ordinary care for his own safety.
The judgment given in the St. Louis circuit court in favor of the
plaintiff was affirmed.

DECISIONS OF COURTS AFFECTING LABOR

E mployers’ L iability — G overnmental A gency— H ig h w a y C on
tractor— D amages—/ . H a r vey Vandivier & Son

v. Hardin's A d m x .,
Court o f A ppeals o f K en tu ck y (January £9 , 19£Jf) , £58 Southwestern

R eporter , page 306. —Charles

Hardin was employed by J. Harvey
Vandivier & Son, which was engaged in the work of building and
constructing highways under contract with the county. He re
ceived fatal injuries and his administratrix sued to recover dam
ages. The employer was not operating under the workmen’s com
pensation law and was held by the trial court to be deprived of the
defenses of contributory negligence and fellow service in accordance
with the terms of that act. Judgment was in favor of the adminis
tratrix and the employer appealed.
The defense offered was that the employers were carrying on
work for the county, a governmental agency, so that they were not
responsible. They also pleaded the defenses of contributory negli
gence and fellow service, but the court of appeals sustained the
position of the trial court in holding these defenses not available
where an employer neglects to comply with the provisions of the
State compensation act.
It was conceded that neither the county nor the State would have
been liable for the death of Hardin if either had itself been con
ducting the work in question; “ but we have never held and can
see no reason for holding that a contractor who undertakes on his
own account for a named consideration to do certain work for the
county or State upon a public highway or to furnish his own help
and to do all the work, employing his own methods in the perform
ance of a contract to construct or reconstruct a highway, should not
be liable for injuries to his employees resulting directly from the
negligence of the master.”
The liability of the employer having been established, the only
question that remained was as to the amount of the judgment, $7,500.
The deceased was about 36 years o f age, in good health, with an
expectancy of 30 years, and earning $2.50 or more a day, working
regularly. He supported a wife and several children, “ and was
shown to be a good provider.” The court found it “ utterly im
possible” to class this verdict as excessive, and the judgment was
affirmed.
E mployers’ L iability — “ H azardous O ccupation ”— W ork i n or
A bout R eduction W orks and S melters— GUlis v. Oraeber , Suprem e
Court o f A rizona (D ecem ber ££, 19£3 ), ££1 Pacific R eporter, page
£35.—W.

E. Graeber sued S. R. Gillis to recover damages for in
juries received while in his employment. Gillis was engaged in the
construction of a brick flue and tunnel to be used in connection with
the ore-reduction works and smelter of the International Smelting

employers ’ liability

Co., of Inspiration, Ariz. Graeber was employed by him and while
at work on a scaffold he fell and received the injuries complained of.
The liability act applies to hazardous employments, among which
are enumerated work on a scaffold 20 or more feet above the ground
and “ work in or about * * * ore-reduction works and smelters.”
It was claimed, but not conclusively shown, that the scaffold in
question was 20 or more feet above the ground or floor beneath.
In the trial court the jury was told that if it found that the plaintiff
was employed “ in work in and about ore-reduction works or
smelters, or on a scaffold 20 or more feet above the ground or floor
beneath in the erection and construction of a brick flue or tunnel,
or either or both of such classes of work, the defendant was liable.”
The employer assigned this instruction as error, and also appealed
from the refusal of the court below to instruct the jury to bring in
a verdict in his favor. The judgment below favored the plaintiff,
from which this appeal was taken.
Judge Ross, speaking for the supreme court, found it proper for
the question of the height of the scaffold to be left to the jury, in
view of the conflict of evidence on this point; but as the occupation
of bricklayer is not in itself within the statute, but only when that
or other work is carried on on ladders or scaffolds “ elevated 20 feet
or more above the ground,” it was necessary for this point to be
decided as a basis of judgment in the plaintiff’s favor. The classi
fication “ in or about smelters ” could not apply because that was not
the nature of the employer’s undertaking.
“ The purpose for which the flue was intended had nothing to do
with the accident, and that the flue happened to belong to a smelt
ing company instead of a hospital has no legal bearing on the con
troversy.” There was nothing in connection with the smelting
company’s plant that affected the conditions of his employment, so
that allusion to that provision of the statute on the part of the
judge was error.
The judgment of the court below was therefore reversed and the
cause remanded for a new trial.

E mployers’ L iability — I ndependent C ontractor— N egligence—
D eath from F alling E arth— Lawhon v. S t. Joseph Veterinary
Laboratories, Suprem e

Court o f M issouri

Southwestern R eporter, page H . —John

(M a y 22, 1 92 3), 252

Lawhon, while digging a
ditch ior a sewer on the premises of the St. Joseph Veterinary
Laboratories, was killed when the earth on the sides of the ditch
or trench fell upon him. Lida J. Lawhon brought an action for
damages for the death of her husband. From a judgment in the
circuit court for the defendant the plaintiff appealed.

DECISIONS OP COURTS AFFECTING LABOR

The facts surrounding the death of Lawhon were not in dispute,
but the terms of the contract were, it being contended by the plain
tiff that the relation of master and servant was created, while the
defendant claimed Lawhon was an independent contractor.
The contract with Lawhon was oral, his duty being to construct
the sewer in conformity with an engineer’s chart as to depth, loca
tion, and levels, for which he was to be paid $75. He was to fur
nish all labor and tools. The defendant was to furnish the tile on
the ground.
The supreme court said:
A servant, according to the great weight of authority, is a person
who is subject to the control of his employer with respect to the
manner in which the details of the work are to be performed.
Whether Lawhon was subject to the orders and directions of the de
fendant with respect to the performance of the details of the work
of constructing the sewer depended upon the contract between
them.
Plaintiff offered no direct evidence with reference to the contract.
Her evidence tended to show, however, that Lawhon was engaged
in digging a sewer for defendant; that an agent of defendant, who
was exercising a supervisory control over its plant and premises,
was at all times present, giving orders and directions with respect
to the manner in which the work was to be done, and that these
orders were complied with by Lawhon and his colaborer, Hosford.
This evidence was sufficient to warrant the inference, not only that
there was a contract for employment, but that the defendant had
therein reserved the right to supervise and direct the manner of
executing the work in detail.
An instruction was given to the jury to the effect that if Lawhon
“ had had more experience in digging trenches than defendant’s
employees, who were about the premises at the time the work was
being done, it devolved upon him, and not them, to discover the
danger of the earth caving in before the event happened.” The
court in holding the instruction erroneous said:
In doing so it entirely ignored the evidence on the part of plain
tiff which tended to show that defendant, through its vice princi
pal, promised Lawhon that it would watch the sides of the trenches
during the progress of the work, and brace them if they showed
any tendency or danger of caving. I f such assurance was given,
then Lawhon, notwithstanding he may have been an experienced
workman, had a right to rely upon it and to continue at work in
the trench, unless and until the danger became so obvious and
imminent that no ordinarily prudent person would have remained
longer therein.
The judgment was therefore reversed and the cause remanded
for a new trial.

e m p l o y e r s ’ l ia b il it y

E mployers’ L iability— I ndependent C ontractor— S tevedore—
orkmen ’ s C ompensation A ct—Machae v. F e lle m Coal <fk D ock

Co., Suprem e Court o f W isconsin (February 12 , 1924)) 197 N orth
western Reporter) page 198.—Frank Machae was a stevedore engaged

in assisting, in the hold of a vessel moored to the defendant’s coal
dock, in unloading a cargo of coal. The coal was removed by means
of a hoist and bucket. The bucket was prematurely dumped, and
the contents fell upon the plaintiff, inflicting serious injuries. An
action was started for damages, and the case was tried before a jury.
A special verdict was returned to the effect that the plaintiff was
an employee of the defendant, that the hoist operator was negligent,
and that the negligence was the proximate cause of the injury. The
court rendered judgment for the defendant, and the plaintiff ap
pealed. The supreme court, while it agreed with the result obtained
by the trial court, did not agree with the method used or reasons
given. The supreme court pointed out that one Hannan, a stevedore
contractor, was employed by the defendant to unload the coal. He
was paid so much a ton, and he hired and paid the men to do
the work. When the job was finished the defendant paid Hannan
for it and Hannan paid the men himself, and therefore “ he was
nothing more nor less than the well-known stevedore contractor.”
Our conclusion is based upon the main facts that Hannan was
employed by the defendant to unload the coal at so much per ton;
that he did it in his own way; that the defendant reserved no right
to control or direct his methods; that he hired and discharged his
own men; that the defendant paid him the contract price in a lump
sum; and that he in turn paid his own men. This constituted Han
nan an independent contractor.
Neither the plaintiff nor the hoist operator were employees of the
defendant. They were both employed by Hannan. There is no
theory upon which the defendant can be held responsible for the
plaintiff’s injuries.
It was pointed out that if the plaintiff were under the compensa
tion act the defendant would be liable for compensation if it could
not be collected from Hannan; “ but it is well settled that a stevedore
is not subject to the workmen’s compensation act.”
The judgment was therefore affirmed.

E mployers’ L iability — I ndustrial P olice— C ourse of E mploy
T hird P arty— Seym oure v. Director General o f

ment — I njury to

Railroads) Court o f A ppeals o f the District o f Columbia (June 4,
1923)) 51 Washington Law Reporter) page 536.—Charles

J. Sey
moure was employed by the Union News Co. to sell magazines, fruit,
and candy on trains, his run being between Washington, D. C., and
Danville, Va. The evidence of the plaintiff disclosed the following

DECISIONS OF COURTS AFFECTING LABOR

facts: On one trip the train arrived at Danville near midnight, and
the plaintiff engaged a porter to take his stock into the baggage
room. He followed the porter, and while passing one of the coaches,
a gentleman raised the window and told the plaintiff that he had
forgotten some magazines that he had loaned his wife and him
during the trip. Plaintiff went back to the coach and received
the magazines through the window, shook hands with the gentleman,
and started again for the baggage room. At that time Special Officer
Began came up from behind and seized him, accusing him of flirting.
Plaintiff told the officer that he must be mistaken; that he was not
flirting. Began replied, according to the evidence of the plaintiff,
“ What do you mean ? Do you mean to call me a liar ? ” It was
alleged by the plaintiff that he was at that time assaulted by Began,
receiving serious injuries. An action was brought to recover dam
ages for personal injuries sustained by the plaintiff as a result of the
assault.
It appeared from the evidence that Began was employed by the
Southern Bailway Co. as a special officer. He was also “ special
officer for the city of Danville, operating with the police department
there, and was authorized to arrest anybody for violations of the
State laws, both as police officer of Danville and as special officer of
the railway company.”
The trial judge had said:
There is no question from the evidence * * * that, if Began
can be said to have been at the time an agent, servant, or employee
of defendant, acting within the scope and performance of his duties
as such, and acting for and on behalf of the defendant, the latter
would be liable.
But being of the view that the decision in an earlier case governed,
the court directed a verdict for the defendant, whereupon the plain
tiff appealed.
The court of appeals found the case relied on not applicable, and
quoted with approval from Sharp v. Erie B. Co. (184 N. Y. 100);
in which case the court said:
A railroad company employing a servant who happens to be a
public officer acquires no immunity from such employment. I f he
acts maliciously or in pursuit of some purpose of his own, the de
fendant is not bound by his conduct, but if, while acting within
the general scope of his employment, he simply disregards his mas
ter’s orders or exceeds his powers, the master will be responsible
for his conduct.
The court also cited Brewster v. Interborough Bapid Transit Co.
(123 N. Y. Supp. 992), where it was said:
The defendant, as a common carrier, owed a duty to its passengers
that its employees should treat them in a decent manner and pro
tect them from attack. Nor does the fact that Kellerman was a

employers ’ liability

44special officer” in any way alter the situation or relieve the de
fendant from its liability. It would be preposterous to hold that
because the defendant caused its employees to be designated as a
44special officer,” it was thereby relieved of responsibility for his
acts.
In the present case Regan was appointed a special officer under
the authority of the Virginia code, which provides that such an
appointment may be made by the president or executive officer of
any railroad company incorporated by the State with the approba
tion of the circuit court and may be removed by the same powers.
Such officer 44shall have authority in all cases in which the rights
of such railroad companies are involved, to exercise within the
State all powers which can be lawfully exercised by any constable
or police officer for the preservation of the peace, the arrest of
offenders and disorderly persons, and for the enforcement of laws
against crimes.” The court held that the natural inference deducible from Regan’s testimony was that his sphere of action was
44practically confined to railroad property,” as he said that his
duties 44covered the Danville division, including the station where
trains came in and went out.” The conclusion of Mr. Justice Robb’s
opinion reads:
He, therefore, was primarily the servant of the company, his
duties as a public officer being incidental. It is apparent, then, that
the jury would have had the right to find that his duties were of a
dual character, and that his acts primarily were in the interest and
for the benefit of the company,. although in certain instances he
might act independently of it. Under the evidence plaintiff had
committed no breach of the peace or any unlawful act warranting
his arrest. Why, then, was he molested by Regan? Evidently be
cause, in Regan’s view, he had flirted with a passenger (a term of
uncertain signification), and was subject to discipline therefor. In
such circumstances, it would be going far, we think, to rule as a
matter of law that the jury would not have been justified in finding
that Regan was acting for the supposed benefit of and as agent for
the company, in the line of his duty and within the general scope
of his authority.
The judgment was accordingly reversed and the cause remanded
for a new trial.
E mployers’ L iability — I ndustrial P olice— I njury to T hird
P arty— Walters v. Stonewall Cotton M ills , Supreme Court o f M issis
sippi ( October W , 192 4), 101 Southern R eporter , page 1$5.—The
only point of interest in this case is the responsibility of an industrial
organization for special police officers appointed at its request, and
usually, as in this instance, paid in whole or in part by the company
in interest.

DECISIONS OF COURTS AFFECTING LABOR

The Stonewall Cotton Mills were located in an unincorporated
village, the plant and residences of the employees constituting the
principal part of the village. As a provision for the maintenance of
order the general manager of the mill secured the appointment of
one Nicholson as deputy sheriff, and promised to give him, besides
the fees allowed by the court for his legal services, the monthly
sum of $75.
Acting under his authority as a police officer, Nicholson assaulted
Edgar E. Walters “ without any provocation,” beating him “ most
unmercifully.” Walters thereupon brought action against the cotton
mills for damages, claiming that it was responsible for the acts of
Nicholson. The trial court held to the contrary, whereupon Walters
appealed. The supreme court reversed the decision of the court
below, and remanded the case for a new trial.
Judge Anderson, who delivered the opinion, took note of the
“ diversity of authority as to the liability of natural persons and
corporations for the wrongful acts of police officers who have been
commissioned by public officials.” Continuing he said:
However, the weight and better reasoned modern opinion is that,
where persons, natural, or artificial, with the consent of the State,
employ police officers of the State to represent them in protecting and
preserving their property and maintaining order on their premises,
and such officers are engaged in the furtherance of their duties, act
ing within the general scope of their powers, they become and are
servants of and employees of such private persons and corporations,
and, for any negligent or wanton acts committed by them in the line
of their duties to the injury of others, their masters or employers
are liable.
I f the servant at the time of the wrongful act was engaged for the
master in the general scope of his employment, though acting con
trary to the express instruction of the master, still the latter is
liable. Or putting the same principle another way, if the servant,
when he committed the wrongful act, was acting in furtherance of
the master’s business for which he was employed, the master is liable,
although the servant in the doing of the act has, contrary to the in
struction of.the master, stepped beyond his authority.
It was found that the evidence indicated the employment of
Nicholson to arrest and prosecute violations of the law, and that
when the injuries complained of were inflicted he was acting in ac
cordance with that employment. There was, therefore, sufficient
evidence to go to the jury on the question of whether or not Nichol
son was acting within the scope of his employment when he inflicted
the injuries complained of, instead of the court directing a verdict
for the company, as had been done.

EMPLOYERS’ LIABILITY

E mployers’ L iability — M edical T reatment— C ontract— W ork
C ompensation A ct—A s h b y v. Davis Coal & Coke C o Su

m e n ’s

preme Court o f Appeals o f W e st Virginia (January 15, 192If), 121
Southeastern R eporter, page 17If.—This was an action by H. K.
Ashby against the Davis Coal & Coke Co., his employer, to secure
judgment for damages due to the failure of the employer to furnish
medical treatment as required by contract. The company was a
subscriber to the workmen’s compensation fund* but maintained a
special medical service for its employees under the provisions of the
compensation act, deducting a certain amount from the employees’
wages as part maintenance for the service proposed.
Ashby claimed that, following his injury, he went to the only
physician offered by the employer, “ who made a pretended examina
tion of him and informed him that he had not received any serious
injury and did not need treatment.” Ashby then went to another
point where there was a hospital in charge of a physician, who was
also in the employ of the company, but was there refused admission
or examination without permission or authority of the physician
making the first examination. Ashby then offered to pay for an
X-ray examination at the hospital, which was also refused without
the written permission of the other physician. This latter physician
refused to give such permission or authority, but reported to the
State compensation commissioner that the plaintiff was able to work
and was no longer in need of compensation, whereupon payments
were discontinued. The plaintiff then went to Charleston seeking
restoration to the fund, but was directed to go to the hospital at
Elkins, where he was again refused admission or examination as
before. He then procured an X-ray examination elsewhere at his
own expense, which showed that three vertebrae in his neck were
dislocated, the condition having become permanent. For the con
stant* suffering and disability due to the negligence of the employer
in failing to secure physicians of suitable and proper skill this action
for damages was brought.
The employer claimed that he was relieved from liability for
damages by reason of his being a subscriber to the compensation
fund which, by the terms of the act, exempted the employer from
actions for damage for injury or death after the employer’s election
to come under the fund; also that the alleged wrongful act of the
physician, charged to be an agent of the defendant, did not make
the latter liable to respond in damages; and further, that no facts
had been presented which would hold the employer liable for the
malpractice of this physician in view of his compliance with the
workmen’s compensation law.
The circuit court of Barbour County sustained a demurrer to the
declaration made by the plaintiff, and the questions were certified to

DECISIONS OF COURTS AFFECTING LABOR

the supreme court. Here the ruling as to the demurrer was reversed,
permitting the case to come up on its merits.
Judge Miller, who delivered the opinion of the court, after stating
the facts said:
Plaintiff does not sue for damages resulting from injuries sustained
while working in defendant’s mine, but for the alleged permanency
of his injuries as a result of the neglect or wrongful act of defend
ant’s physician, whom, it is alleged, the defendant knew to be incom
petent and unskillful at the time. Defendant deducted from plain
tiff’s wages a sum each two weeks for medical treatment. This
arrangement between the parties amounted to an implied contract,
at least, by which defendant agreed to furnish plaintiff medical at
tention in return for the fee paid it; and this contract was made
independently of plaintiff’s rights under the workmen’s compensa
tion act. The legislature evidently recognized the right to make
such'contracts by section 27 of the compensation law.
As we have said above, this suit is not for compensation for the
injuries received by plaintiff while working in defendant’s mine, but
for damages resulting from the negligence of defendant in employ
ing an incompetent physician to treat defendant, under the contract
or arrangement between defendant and its employees; and we are of
opinion that plaintiff is entitled to maintain such an action inde
pendently of his rights under the workmen’s compensation law.
E mployers’ L iability — M in e R egulations— V iolation of S tat
R ules—K ir k v. W e b b , Suprem e Court o f A ppeals o f
W e st Virginia (>Septem ber 16, 192b), 12b Southeastern R ep orter ,

ute— S afety

501.—Joe Kirk was employed by Webb and others in a mine,
and was injured while preparing to shoot “ from the solid,” written
permission from the district mine inspector not having been first
obtained, as required by law. Bark supposed that the authorization
had been obtained and was preparing to do the work directed when
the explosive materials ignited and were discharged, severely in
juring him, for which he brought this action.
The complaint had been demurred to in the court below, and
questions as to the declaration were certified to the Supreme Court
for its consideration. Judge Miller, speaking for the court, called
attention to the fact that the statute in question is penal. “ It makes
it an offense for the operator or mine foreman to cause or permit shoot
ing to be done in the mine without first having obtained the permit
in writing of the district mine inspector.” This statute does not in
terms give a right of action for damages where it is violated, but
# the court, assuming that a right of action would result from its
infraction, took up as the “ pivotal question ” whether or not a good
cause of action had been stated.
It did not appear that the injuries were sustained “ from the
actual shooting of coal from the solid; the averment is that while
page

EMPLOYERS* LIABILITY

preparing to do so, as ordered by the mine foreman,” there was an
explosion and resultant injuries. There was nothing stated as to
the quality of the materials, their defectiveness or other dangerous
nature above their necessary explosive quality, and the court found
that the only injuries for which the plaintiff could sue would be
those sustained proximately by reason of a violation of the statute.
The question whether the statute intended to reach back and cover
the agencies to be used in the unlawful firing of shots was answered
in the negative. 44Plainly, the object of the statute was to reduce
dangers incident to the shooting of the coal from the solid, and
not to protect employees from the dangers incident to handling
explosives used in such shooting.”
The second count of the declaration was that the employer had
failed to provide suitable rules governing the use of explosives and
explosive materials in and about its mine as required by statute.
As to this Judge Miller said that the statute was general in its terms,
the law itself furnishing a 44pretty fair set of rules governing the
subject.” The declaration had not specified any particular rule
not covered by the statute that should have been adopted, nor was
it shown how the observance of any rule would have protected Kirk
from his injuries. As it did not appear in what respect the employer
was negligent, this count, as well as the first, was subject to de
murrer, which the circuit court should have found.
The decision of the court below overruling the demurrers was
therefore reversed.
E mployers’

L iability — M inor U nlawfully E mployed— M is
A ge— R ecovery for D eath —H odges v. Savannah

representation of

Kaolin Go ., Suprem e Court o f Georgia (F ebruary 20, 1 9 2 3 ), 116
Southeastern R eporter, page 303 .—A statute of Georgia (Laws, 1914,

p. 88) provides that no child under the age of 14 years shall be em
ployed by or permitted to work in or about any mill, factory,
laundry, manufacturing establishment, or place of amusement; and
any person, who shall hire or place for employment or labor any
such child shall be guilty of a misdemeanor.
Ben Hodges, a boy 13 years of age at the time of the accident, was
employed by the Savannah Kaolin Co., defendant, which was en
gaged in manufacturing clay products. On November 11, 1919, he
was commanded by an employee of the defendant corporation to
place and adjust the belt on a pulley and shafting so that the power
could be conveyed to a washer machine. The shafting and pulley
were revolving at high speed, and the boy, in an effort to adjust the
belt, reached out his hand from a position on a scaffold about 18 feet*

DECISIONS OF COURTS AFFECTING LABOR

from the ground, when his shirt sleeve became entangled in the pul
ley, drawing his entire body over the revolving shafting and so
mutilating it that he died within a few hours.
Minnie Hodges, the mother, brought an action for the death of the
boy, and from the affirmation of judgment in the court of appeals on
a directed verdict for the defendant in the lower court, she brought
certiorari to the supreme court.
The plaintiff alleged negligence in—
employing the child and permitting him to work about the mill;
placing him in a dangerous employment and work and in an unsafe
place to work; allowing him to be about the moving machinery and
failing to warn him of its danger; commanding him to place and
adjust the belt upon the rapidly revolving pulley and shafting.
The defendant company admitted that the boy worked in its plant
but contended that the mother told them he was over 16 years of age,
but this was denied.
It was shown that the mother was dependent upon her son’s wages,
either in whole or in part, and that the father lived with the family.
The supreme court held that the mother was not estopped from
bringing the action for the recovery of the value of his life, although
the father was living, where she did not hire or place the child in the
plant, otherwise than by knowing that he worked there and by receiv
ing his wages.
It was further held that the action could be maintained, and that
the directed verdict excluded reasonable deductions and inferences
from the testimony which might have authorized a different verdict.
The judgment was therefore reversed, thus permitting a new trial.

E mployers’ L iability — M inor U nlaw fully E mployed— R ight
A ction W here F ather C onsented to E mployment — V iolation
of S afety L aw — P roximate C ause— W orkmen ’ s C ompensation —

Irvin e v. Union Tanning C o ., Supreme Court o f Appeals o f W e st
Virginia ( October H , 192If
125 Southeastern R eporter, page

110.—Levi Irvine sued as administrator of his son’s estate, the latter
having been killed while operating an elevator which was connected
with the employer’s steam-heating plant. The son was under 14
years of age at the time, and the declaration charges that the em
ployer negligently and unlawfully operated its elevator without
complying with the required safety provisions; also that the boy
was negligently and unlawfully employed in violation of the child
labor statute, the foreman having assigned him to operate the ele
vator knowing the boy to be under 14 years of age and that the
elevator was dangerous and unsafe.

employers ’ liability

It was stated that the employer was a subscriber to the workmen’s
compensation fund, but that he was not entitled to its protection
because of the violations of the laws referred to. The declaration
also stated that the father “ in no wise consented to or acquiesced
in the employment of said decedent, and his employment by the de
fendant to work in its steam-heating plant was without the knowl
edge, consent, or acquiescence of his father.”
The case came to the Circuit Court of Pocahontas County, where
the employer demurred to the declaration, the demurrer being over
ruled. However, questions were certified to the supreme court, the
objections pointed out on demurrer being that the father had
“ suffered or allowed his son to be employed in violation of the
statute,” whereby he had committed a criminal offense, and could
not maintain an action by which he would receive the benefit of an
injury resulting from his own wrong; also that the father had been
guilty of contributory negligence in permitting the employment,
for which reason there could be no recovery.
Judge Meredith, speaking for the court, having made the above
statements, said:
Both of these propositions embody the same principle, namely,
that one can not take advantage of his own wrong. We think a
sufficient answer to both is that the declaration distinctly negatives
the fact that the father knowingly or willingly suffered his son to
be employed by defendant. It says that he in no manner* consented,
but that the employment was without his “ knowledge, consent, or
acquiescence.” Counsel for defendant seems to take the position
that in no event can there be a recovery by the administrator for the
benefit of the father for the wrongful death of an infant, caused by
the negligence of his employer, where he is employed in violation of
the child labor law, apparently resting it on the ground that it is
the mandatory and unescapable duty of the father at all times and
places and under all circumstances to know where his child is, and
that whenever and wherever the child is employed it is with the
father’s consent. This can not be the law. Suppose a child within
the prohibited age rims away from home. His father does not know
where he is. lie obtains employment in a coal mine and is killed
while at work there by reason of his employer’s negligence. Must
we say that in such case he was employed with his father’s knowl
edge and consent, because it is the duty of the parent to control the
child and to know where he is? We do not think so. Certainly
the father under the facts supposed would not be criminally liable;
nor can we hold that he would be estopped from asserting the em
ployer’s civil liability for the wrong, because of any contributory
negligence of the parent.
The court then pointed out the fact that the case did not rest
“ solely or even mainly on the ground that the decedent was unlaw
fully employed in violation of the child labor law,” the main ground
being that the employer had violated the safety laws of the State in
44915°—25-----7

DECISIONS OF COURTS AFFECTING LABOR

failing properly to guard and equip the elevator shaft and cab as
required by law. 44In other words, the gist of the complaint is that
defendant did not furnish the decedent a reasonably safe place to
work and that this failure or act of negligence was the direct or
proximate cause of his injury.” Judge Meredith then said:
As we understand the law, the parent consenting to the unlawful
employment wherein his child is injured is barred recovery only in
those cases where the unlawful employment is the direct or proxi
mate cause of the injury. But if death results from some, act of
negligence of the defendant, other than its unlawful employment of
the infant, as for example, its failure to provide a reasonably safe
place to work, or to provide reasonably safe tools and appliances
with which to work, or its positive violation of some statute, other
than the statute prohibiting the employment of the decedent, and
such act of negligence be shown to be the direct or proximate cause
of the injury, then the defendant would be liable, even though the
parent consented to the employment.
If, therefore, the injury was the result of failure to guard and
protect the elevator rather than the unlawful employment of a child,
44it makes no difference whether the father consented to the unlawful
employment of his son or not, because the father’s contributory
negligence in consenting to the unlawful employment, not being the
proximate cause of the injury, would be of no avail to defendant.
Unless protected by some safety device, an elevator is just as likely
to fall with an adult as with an infant; but as this case is now upon
demurrer, we may make no further comment in anticipation of what
may be proved upon the trial. The demurrer was properly over
ruled.”
A special plea was offered, setting forth that the company was
under the workmen’s compensation law, so that no action could be
brought against it for damages. As to this the court said: 44I f he
were unlawfully employed, then the workmen’s compensation law
has no application whatever to this case. It has no bearing on either
side of the case.” The law provides that the act does not apply to
44persons prohibited by law from being employed,” so that the trial
in this case should proceed 44without reference to the workmen’s
compensation statute, just as if that statute had never been enacted
and did not exist.” This was said to be true whether the case was
based on the violation of the child labor statute or of the safety law,
so that this plea had been properly rejected.
The court had therefore ruled properly both in regard to the
demurrer and to the special pleas.
E mployers’ L iability — M inor U nlawfully E mployed— R ights
P arent— W orkmen ’ s C ompensation—Silurian Oil Co. v. W h ite,

Court o f C ivil A ppeals o f Texas (M a y 16 , 1923 ), 252 Southwestern

employers ’ liability

Reporter, page 569 .—James Byron White, a minor, left his father’s
home and obtained employment with the Silurian Oil Co. in another
city. While working in the company’s power plant he suffered
serious injury to his head, for which injury he was awarded by
the industrial accident commission the sum of $6,015, payable in
installments.
J. M. White, the father of James Byron White, brought an action
for the loss and damages on account of wages and support by the
minor, alleging that the boy was injured through the negligence of
the defendants in the course of a dangerous employment, and with
out the father’s knowledge or consent. The company set up in de
fense that it was paying compensation under an award of the in
dustrial accident commission.
Finding no Texas case applicable, the court of civil appeals re
ferred to a Massachusetts case (King v. Viscoloid Co., 219 Mass. 420,
106 N. E. 988) decided under the Massachusette statute :
The Massachusetts statute, like the Texas act, relating to the
question of workmen’s compensation, contains no express provision
depriving the parent of an injured minor of his common-law right
of action, and the court held in the King case that an existing com
mon-law right of action is not taken away by a statute save by direct
enactment or necessary implication, and that laws depriving a citi
zen of rights possessed by them should be strictly construed. This
rule is recognized in this State.
It is a fundamental principle of the common law that a father
has an independent right of action to recover for damages occasioned
by injury to his minor child. Under the common law the right of
action for injuries resulting in death does not survive the death of
the injured party.
Then in deciding that the compensation act of 1917 did not bar a
minor’s parent from a common-law right of action for negligent in
juries, the court of civil appeals said:
It is significant that the Texas act, like the Massachusetts act,
does not expressly give the minor the right to contract for employ
ment without the parent’s consent. The Texas act seems to recog
nize the minor’s legal disability, and does not attempt to remove it
except where it authorizes him to receive and receipt for compensa
tion for partial incapacity. By the common law, where there is
no emancipation and no consent of the parent to the employment of
a minor, the parent is entitled to the custody, companionship, serv
ices, and earnings of his minor child. Where personal injuries are
wrongfully inflicted upon the child, the minor has his independent
right of action against the wrongdoer for the pain, suffering, dis
figurement, and permanent disability which may result. Separate
and apart from the minor’s right, the parent may bring his action
for the loss of his child’s services, quare servitium amicit, as well
as for the wrongful enticement of the child to leave his parent and
for the employment of the child against the parent’s wishes, and
for medfcal expenses incident to the injuries. In construing the

DECISIONS OF COURTS AFFECTING LABOR

Texas act we must bear in mind the further common-law rules, that
a parent could not maintain an action for the loss of the services
of a minor child instantly killed, nor could he recover for exemplary
damages therefor. Article 16, section 26, of the constitution was
adopted to change the common law in this particular; and the
statute (art. 4698) expressly confers the right upon the parent.
The Texas act does not preclude even an injured employee from
suing his employer for injuries sustained not in the course of his
employment. The parent’s common-law action should not be barred
where his minor son was employed without his consent and injured
through the negligence of his employer.
The judgment, granting the father $1,200 for loss of wages and
support of the child and $100 spent for medicines, was therefore
affirmed.

E mployers’ L iability — N egligence— A ssumption of R isk — D u ty
E mployer— K e ll v. R ock H ill Fertilizer C o ., Suprem e Court o f

South Carolina (February 26, 1923) , 116 Southeastern R eporter ,
page 97.—J. L. Kell, a carpenter employed by the defendant, Rock

Hill Fertilizer Co., was one of a number of men engaged in the erec
tion of a building. Beams, called “ plates,” were being placed in
position on the top of certain upright posts and there made fast by
nailing. A long heavy pole, called a “ gin pole,” with a pulley near
the top, was used to hoist the beams into place on the top of the
posts. This gin pole stood upright, four guy ropes attached above
the pulley (block and tackle) holding it in position. The men
moved the gin pole from place to place as necessary to hoist the
timbers into place. One of the beams was placed out of line and a
foreman ordered it realigned. Kell was on top of this beam doing
the work of drawing the nails and renailing the beam. At this time
the gin pole had to be moved to hoist the next section of the plate.
All the guy ropes except one had been loosened, and the pole was
leaning against the plate on which Kell was working. Of the three
loose ropes, two were being held by men and one was free. The
gin pole fell and knocked Kell off the end of the plate, inflicting
injuries from which he died.
An action was brought by Sallie J. Kell, administratrix of Kell,
for damages for the alleged wrongful death, and from an order of
nonsuit the plaintiff appealed.
The plaintiff contended that Kell’s death was caused by the negli
gence of the defendant, and the defendant based his motion for a
nonsuit'on the ground (1) that the evidence failed to establish ac
tionable negligence, and (2) that “ as a matter of law the evidence
made out both the defenses of contributory negligence aiid of as
sumption of risk.” The nonsuit was granted on the first ground.

employers ’ liability

As to the duties of the master, Mr. Justice Marion, speaking for
the supreme court, said:
Having furnished, with due regard to the nature of the work, a
reasonably safe place, reasonably safe and suitable tools and ap
pliances, an adequate force of competent help, and a reasonably ade
quate plan or system, including proper rules and regulations, for
doing the work, in the first instance, the master’s duty thencefor
ward is to exercise due care to maintain those conditions by provid
ing reasonably adequate supervision. The most general form in
which the limits of a master’s obligations are susceptible of being
stated is that he is not bound to supervise the merely executive de
tails of the work to be done by his servants.” (Labatt, sec. 58(x)
I f the danger in the servant’s environment which eventuates in his
injury is caused by the negligence of a fellow servant in carrying
out a detail of the work in a manner attributable to the fellow
servant’s own delinquency and not to any breach of the master’s
nondelegable duties, the risk of such injury, implied from the con
tract of service, is held to have been assumed by the injured serv
ant, and the master is absolved from liability. Hence the accepted
test in this jurisdiction, in determining who are fellow servants, “ is
in the character of the act being performed by the offending serv
ant, whether it was the performance of some duty the master owed
to the injured servant, the performance of which duty the master
had intrusted to the offending servant.”
That the work was dangerous was shown by the accident, and the
question arose whether the “ danger was one the master was under
no obligation to anticipate or to provide against.” The court in
answering said:
One phase of the master’s “ absolute duty is that of seeing that
the number of persons employed is sufficient to prevent each o f them
from being exposed to that class of risk which results from an inade
quacy of the force available for the work in hand.” (Labatt, 1st ed.,
sec. 573.) I f the fall of the gin pole had been caused by the break
ing of a defective guy rope it would scarcely be doubted that such
fact would be some evidence of breach of the master’s duty.
And the question of whether there was such a breach was for the
jury. Continuing, the court held that—
The duty of supervision extends to the prevention of such in
juries from the carelessness of fellow employees in executing details
as might be reasonably anticipated and provided against by proper
organization and executive planning and by the adoption of proper
methods, rules, and regulations for carrying on the work, considered
with due regard to its nature and scope.
The question of whether the moving of the gin pole was a regular
operation or such a transitory detail of the work as was beyond the
pale of the master’s duty of supervision was held as being proper for
the jury to decide.

DECISIONS OP COURTS AFFECTING LABOR

The court on deciding that the affirmative defenses of assumption
of risk and contributory negligence were not sustained by the evi
dence, said:
I f the injury was caused by any breach of a nondelegable duty
of the master, the danger of such injury was not a risk assumed
by the servant, unless it appears to the exclusion of any other
reasonable inference that the servant continued in the service and
undertook to perform this work in hand with full knowledge of
the condition brought about by the master’s negligence and with
some intelligent appreciation of the danger.
And further where the employee—
chooses to remain in the service of the master with full knowledge
of that risk and comprehension of the danger to which he is thereby
exposed, without a promise on the master’s part to remedy the
delect, etc., he will be held to have impliedly contracted to assume
such additional risk of injury.
Whether Kell had such knowledge of the insufficiency of the force
of men on the pole and appreciation of the danger as to imply the
assumption of risk on his part, whether the danger was apparent
or should have been apparent to one of ordinary sense and prudence,
and whether the work would or would not have been undertaken by
a man of ordinary sense and prudence were questions that the
supreme court considered proper to be decided by a jury.
The judgment of the circuit court was reversed and the cause
remanded for a new trial.
E mployers’ L iability — N egligence— A ssumption of R isk — I n
S ervant— Grant v. Nihill , Supreme Court o f M o n

jury — F ellow

tana (O ctober 19 , 1 92 2), 210 Pacific R eporter , page 911^.—Peter
Anderson was employed by the defendant, Patrick Nihill, and
assigned by the foreman to work on a certain moldboard plowing
outfit. The outfit consisted of 10 moldboard plows pulled by a
steam traction engine. Two levers were attached to each of the
10 plows, one lever being used in regulating the depth and the
other in raising the plow off the ground. It was the duty of Ander
son to stand on a wooden platform above the plows, with his back to
the engine, and operate the plows. On the occasion of the injury
Anderson, in making a turn at the corner of the field, was lifting
the plows from the ground by means of the levers when he lost
his balance and fell from the platform in front of or under the
plows. He testified that a rock got under the platform and raised
it, causing him to fall. It appeared that the platform was not
securely bolted down and that Anderson, one Boner (the engine
operator), and the foreman knew it.
An action for damages was brought and a judgment was obtained
for $15,000, from which an appeal was taken. Anderson having died

EMPLOYERS’ LIABILITY

in the meantime, the suit was maintained by one Grant, his adminis
trator.
In actions for damages where negligence is involved, the com
plaint must allege that the injury resulted proximately from the
negligent act charged. The complaint in this case, alleging that
the platform was defective because of insecure fastenings and that
the injury was caused by negligence in not providing a safe work
ing place, was held sufficient to show causal connection between the
negligence and the injury.
The court observed that there was a presumption of law under
Revised Code of 1921, section 10606, that a person exercises ordi
nary care for his own safety; and on the contention that Anderson
assumed the risk, the court stated:
A servant by the act of entering the service of his master assumes
all the usual and ordinary risks attendant upon his employment,
not including risks arising from the negligence of the master, and
he assumes the latter as well if he knows of the defects from which
they arise and appreciates the dangers which flow from such
defects.
Here it will be noted that there are two elements, to wit, knowl
edge of the defect, and that which is of equal importance, an ap
preciation of the risk resulting therefrom. His [Anderson’s] state
ments that, when they got on rough and stony ground, the platform
would not go steady, but worked up and down, and that he asked
Boner to fix it, show that he did realize and appreciate that there was
danger. Actual knowledge of the risk is not necessary in order that
he assume it. I f the circumstances are such that a reasonably pru
dent man ought to have known of the danger, he will be charged
with the knowledge. In the case of an adult servant of sound mind,
where the dangers of the employment are visible, so that a man of
ordinary intelligence, though not an expert, could not fail to see and
comprehend them, an employer is under no obligation to warn the
servant of their existence. But, conceding that plaintiff did know of
the defective condition and appreciated the danger, if he was assured
by the defendant that the defect would be repaired, plaintiff could
continue in the employment for a reasonable length of time thereafter
without assuming the risk, unless the danger was so great that a
reasonably prudent man would not have continued at work. So
likewise the rule seems to be settled that a servant can rely upon his
employer’s direction to do an act as being safe unless the danger
is so apparent that one of ordinary prudence would observe it and
would refuse obedience.
Boner, the engineer, had promised Anderson to have the platform
fixed, but the question then arising was whether Boner was such a
representative of the defendant that the defendant could be held for
his statements1
. The court observed that:
Whether one acts as a fellow servant or as a representative of the
master under a given state of facts is a question of law for the court.

DECISIONS OF COURTS AFFECTING LABOR

The plaintiff contended that Boner had been placed in authority
over the deceased, and because of that he was a vice principal for
whose acts the defendant was liable. On this point the court said:
Superior position or authority alone does not necessarily make him
a vice principal. In determining who is a vice principal, the question
is whether the person whose status is in controversy has been in
trusted with, and authorized to perform, any nondelegable duty re
quired oi the master. The master’s liability in cases of vice principalship does not depend upon who performs the duty, but upon the
character of the act done or services performed, and the existence of
the duty itself, there being certain duties which he can not delegate
to a fellow servant and absolve himself from liability for their non
performance. It is not a question of grade or rank, and the em
ployee’s place or grade of service is not material. Whenever a master
delegates to any officer, servant, agent, or employee, high or low,
the performance of any duty which really devolves upon the master
himself, then such officer, servant, agent, or employee stands in the
place of the master and becomes a substitute for the master, or, in
other words, a vice principal, and the master is liable for his acts or
his negligence to the same extent as though the master himself had
performed the acts or was guilty of the negligence. These non
delegable duties are, among others, that of exercising reasonable care
to provide the servant with a safe place to work, reasonably safe im
plements and materials to work with, and with reasonably competent
fellow servants.
The record, taken as a whole, discloses that plaintiff and Boner
were fellow servants. Being a fellow servant Boner did not repre
sent defendant when he promised repairs and assured plaintiff there
was no danger. Plaintiff assumed the risks, and the motion for a di
rected verdict should have been sustained.
The judgment was accordingly reversed, with instructions to dis
miss the complaint.
E mployers’ L iability — N egligence— Contributory N egligenceC ircumstantial E vidence—F o lso m -M orris Coal M ining C o . v. M o r

7, 1924) , 226 Pacific R e
employed by the FolsomMorris Coal Mining Co. as a pit-car driver, conveying coal from
the mine to the outlet. On July 81, 1919, his body was found be
tween two loaded coal cars which he had been driving, and almost
across the track. He had lost his cap and lamp; they were found
up the track. The plaintiffs, the parents of the deceased, contended
that the deceased, “ after losing his lamp in the darkness, started
to the upper side to get in the clear, but was caught between the
side of the front car and the props and rolled to ljis death” on
account of the negligent construction of the way. The passageway
at the place of the injury was narrow, and particularly hazardous at
this particular place, because of the incline. The supreme court
was of the opinion that there was ample testimony to support the

row, Supreme Count o f Oklahoma {M a y
porter , page 63.—Willis Earl Morrow was

employees ’ liability

theory of the plaintiffs. No one saw the accident, but in supporting
the judgment for the plaintiffs given in the district court the supreme
court said:
It is not necessary that plaintiff allege and prove the exact man
ner in which the injury occurred. This may be established by
circumstantial evidence, and is a question of fact for the jury.
The question of contributory negligence was also held one of fact
for the jury. The following instruction was given the jury:
I f you find for the plaintiffs, they [you] will assess the amount
of their recovery at such sum as you may deem proper, not to ex
ceed the sum of $15,000. In determining the amount of their re
covery, you may take into consideration the nature of the deceased’s
work and his earning capacity, the time the deceased would probably
have continued to have worked and contributed to the support of
his father and mother, if any, but in no event to exceed $15,000.
The supreme court held this was the correct statement of the
law, and as to the amount of the verdict said :
The present case shows that the 24-year-old son was contributing
to the support of his parents, and the jury found that there was
reasonable expectation that he would continue to do so. The verdict
was $2,750, a very modest sum, and amply supported by the evidence
measured by the instruction.
The judgment was therefore affirmed.
E mployers’ L iability — N egligence— D angerous M achinery —
L iability or S eller as A ffected by S ubsequent N egligence of E m
ployer— Rosebrock v. General Electric Go. et al., Court o f Appeals
o f N ew Y o r k {J u ly IS , 1928) , llfi Northeastern Reporter , page 571.—
The Niagara Falls Power Co. generates electricity at Niagara Falls
and sells it to Buffalo and Tonawanda. In Tonawanda there is a
station maintained by the Niagara Falls Power Co. through which
the wires or cables pass, and alongside of this station is the build
ing and plant of the Tonawanda Power Co., one of the defendants
in this case and a consumer of part of the electricity coming from
Niagara Falls. The current coming from Niagara Falls was so
strong that it had to be reduced in force in order that the amount
of electricity used by the Tonawanda Power Co. could be measured,
and for this purpose transformers were used. In order to increase
its supply of electricity, the Tonawanda Power Co. ordered two new
transformers from the General Electric Co., the old transformers
not being large enough. These transformers were shipped and in
stalled as the old ones had been installed, both old and new ones
having been purchased from the General Electric Co.
When the transformers were installed, the current was turned on
and an explosion resulted, in which 13 men, including one Edwin
D. Rosebrock, were killed.

DECISIONS OP COURTS AFFECTING LABOR

An action was brought by Lucy Rosebrock, as administratrix,
against the General Electric Co. and the Tonawanda Power Co.
The trial court entered a judgment for the plaintiff against the
General Electric Co. and dismissed the complaint as to the Tona
wanda Power Co. The General Electric Co. appealed.
The jury found that the explosion was caused by leaving in the
newly installed transformers wooden blocks placed there for the
purpose of shipment, through which the current short-circuited, and
not that it was caused by reason of noncircuiting the feed wires.
As to this finding the court said:
There is sufficient evidence to sustain the jury’s finding that the
Niagara Falls Power Co. did not know that these transformers had
in them the wooden blocks. There is also evidence to sustain the
finding that the defendant failed to give its usual and cautionary
notice or caution regarding this danger.
The old transformers were shipped without the wooden blocks,
and the jury held that the buyer was not obliged to inspect the new
ones, especially as there was no notice attached warning of the pres
ence of the blocks. The seller was held negligent for failure to warn
of such presence. As to this the court added:
I take it that an instrument which may be dangerous and is gen
erally known to the electrical profession as a danger need not be
warned against by a seller. This, however, seems to be a special case.
The use of wooden blocks was not general but limited. The de
fendant itself established the practice of giving a caution—it deemed
it necessary.
The court of appeals ruled against the contention of the defendant
that the authority of the State industrial commission was required
before the administratrix could maintain the action, saying: “ This
is not the law where the claim is against a third party not the
employer.” The court concluded its opinion, saying:
The blocking causing the danger had to be removed. Who was
to remove it ? The purchaser was to remove it before use. I f pur
chasers generally, according to the custom and trade, knew of the
packing and caused its removal, the defendant was not negligent.
On the other hand, if the circumstances were special and peculiar,
not generally known to the trade, and the seller was negligent in not
causing notice of the danger to be brought home to the customer, or
shipped the transformers as ready for use, then the fact that the
purchaser was also negligent in failing to discover the danger would
not relieve the seller. In considering the charge, we must start with
the defendant’s negligence. That being established, the fact that the
negligence of others concurred in the result does not relieve the
defendant.
The judgment of the court below was therefore affirmed.

employees ’ liability

E mployers’ L iability — N egligence— E mployment of I ncom
F ellow S ervant—D uff v. A yer s, Suprem e Court o f Arkansas

petent

(N ovem ber 6 ,1 9 2 2 ) , 21fi Southwestern Reporter, page 508 .—Charles
Duff was the sole owner of a plant at Hope, Ark., and was engaged
in the manufacture of barrel headings. The plant was located near a
railroad sidetrack. The materials used at the plant came in from the
woods to the factory and were unloaded by employees of Duff. One
C. R. Ayers was engaged in operating a wheelbarrow in this work.
In order to avoid a collision with a truck, while rolling the barrow
down a short incline from the unloading platform, he turned the
barrow to one side and let it collide with a post. As it tilted over
one of the handles of the barrow struck Ayers in the back and
severely injured him. It appeared that the truck which Ayers was
trying to avoid was operated by a boy about 9 years old, who was
inexperienced and not qualified to drive a wagon. Ayers brought an
action against his employer for damages because of the personal
injuries received, and a verdict was rendered in his favor, where
upon the employer appealed to the supreme court. That court
affirmed the judgment, stating that the trial court had submitted
the case to the jury on the issue whether or not there was negli
gence in employing as driver of the wagon an inexperienced and
incapable child. The court had the fellow-servant rule before it as
a defense of the employer, but held that the contention was not sound
under the charge of negligence in the employment of an inefficient
and unskillful fellow servant. The court said:
The common-law rule as to responsibility for the negligent acts of
fellow servants has not been changed by statute, so far as concerns
individuals who are employers of servants; but the master is liable
for the act of an unskillful fellow servant where he has been negli
gent in the employment on the theory that the negligence in em
ploying such a servant is the proximate cause of the injury. It is
on that theory alone that appellee is entitled to recover in the present
case, and the court was correct in refusing to tell the jury that
recovery should be denied merely because the negligent employee
was a fellow servant.

E mployers’ L iability — R ailroad C ompanies— F ederal S tatute—
A ssumption of R isk — W ashington Terminal Co. v. Sampson, Court
o f Appeals o f the District o f Columbia (M a y 7, 1 92 8), 289 Federal
Reporter, page 577 .—John R. Sampson was employed by the Wash

ington Terminal Co. as an extra car inspector, air-brake inspector
and repair man, and during the intervals in his employment he en
gaged in other activities, being busy icing water coolers in passenger
cars in the terminal at Washington, D. C., at the time of the acci
dent complained of in this action. Metal buckets were provided for

DECISIONS OF COURTS AFFECTING LABOR

carrying ice, the plaintiff choosing the best one of three buckets
available, and while using it, he accidentally cut his finger on the
edge, from which injury blood poisoning developed. The plaintiff
had protested to the foreman about the buckets before the injury,
and had received an order on the storehouse for a new bucket, but
the man at the storehouse had none in stock so plaintiff had to work
with the old one.
In an action under the Federal employers’ liability act the plain
tiff recovered damages and defendant brought error.
There were only two questions considered by the court on review,
the first being as to whether the employers’ liability act of 1906 or
1908 controlled, and the second as to whether the-plaintiff assumed
the risk of his employment. As to which act controlled the law of
the case, the court said:
We think, in view of the fact that the two acts treat of the same
subject matter, namely, the liability of common carriers, the former
relating to common carriers of every description and the latter to
common carriers by railroad, that the later act was designed at
least to provide an exclusive remedy against common carriers of the
latter class. This view is confirmed by the provision of the last sec
tion of the act of 1908 that it should not affect any proceeding or
right of action under the earlier act.
Under the act of 1908 the defense of assumption of risk could be
invoked by the employer unless the case came within the exceptions
set forth in section 4 (Comp. Stat. sec. 8660), and it did not appear
that the case in hand was so included.
The vital question on which the reversal of the case really de
pended was whether Sampson assumed the risk resulting from the
negligence of the terminal company.
The court said:
It seems clear that the dangers incident to the use of this bucket
were obvious, and Sampson’s testimony tends strongly to show that
they were fully known and apprehended by him. Any person of
ordinary intelligence, especially one who had used such a bucket for
two weeks, ought to be presumed to know that there was constant
danger of injury such as he sustained from the protruding jagged
ends of metal. The fact that two or three days before the accident
he complained of the dangerous condition of the bucket, asserted
that such buckets were bad to go in the cars with, and that “ they
were dangerous to passengers, let alone to work with,” is very sig
nificant upon this question. It is difficult to believe, in view of this
admission, that Sampson did not clearly appreciate the fact that the
jagged metal was likely to catch upon, lacerate, or tear anything
with which it came into contact. The fact that Sampson complained
of the condition of the bucket to the foreman does not, as counsel
contends, relieve him from the assumption of risk.
The defense having been properly raised in the lower court the
judgment was reversed.

e m p l o y e r s ’ l ia b il it y

E mployers’ L iability — R ailroad C ompanies— F ederal S tatute—
A ssumption of R isk — D amages—Jackson v. A tw o o d , Supreme Court
o f Indiana (June 2 9 ,1 9 2 3 ), HO Northeastern Reporter, page 549 .—
Edward Atwood, while acting as a locomotive fireman, was killed
by the derailment of his engine in Evansville, Ind., and an action
for damages was brought by his widow. It was complained that at
the time of injury the defendant, W. J. Jackson, receiver of the
railroad company, was violating the Federal safety appliance act
(U. S. Comp. Stats., secs. 8605-8612); that the defendant and others
in charge of the railroad were negligent in keeping up the roadbed
on the main track; and that the defendant ordered the deceased to
work as a fireman on an engine used for the purpose of pulling a
passenger train from Evansville, Ind., to Chicago, 111.
The defendant set up a general denial, and that the cause of action
did not accrue within two years next before the commencement
of the suit.
The judgment was for the plaintiff in the sum of $25,000 and the
defendant appealed, contending that the complaint did not directly
state that the injuries and death were the direct result of negligence
or violation of any duty imposed by common law or statute, and
further that it was not sufficiently averred that the alleged negligence
of the defendant was the proximate cause of the injury and death,
nor that the defendants had knowledge and the plaintiffs did not
have knowledge of any defects, dangers, acts, or omissions alleged
to have been the cause of the death.
The court, in affirming the decision for the plaintiff, said:
The plaintiff states facts sufficient to show that at the time of the
injury to appellate’s intestate, appellant was violating the Federal
safety appliance act (U. S. Comp. Stats., secs. 8605-8612), in this,
that the locomotive engine on which appellee’s decedent was em
ployed, and which the appellant was using in moving interstate
traffic over its line, was not equipped for use with a power-driving
wheel brake and appliances for operating the train brake system.
It also alleges that such negligence was the proximate cause of de
cedent’s injuries and death. The complaint was sufficient to with
stand the demurrer filed. The evidence shows that the failure to
have the power brakes of the train connected with the front loco
motive was the proximate cause of that engine being turned over,
so as to crush decedent beneath it.
As to the contention that the deceased had knowledge of the
dangers of the work and therefore assumed the risks incident thereto,
the court said:
The allegations of the complaint are direct and positive as to the
violation of the Federal statute, and in such case there is no assump
tion of risk by decedent.
I f persons whose duty it was to look for defects in the track, as
charged in the complaint and as shown by the evidence to exist, did

DECISIONS OF COURTS AFFECTING LABOR

not find any defects, such evidence was sufficient to justify the jury
in drawing the inference that appellee’s decedent had no notice,
actual or constructive, of the defective condition of the track, and
that he could not have known of such defective condition in the exer
cise of ordinary care.
The violation of a Federal statute was sufficiently charged and
proven. It is conceded that the complaint is defective, if regarded
as based on common-law negligence alone, for the reason that it
does not allege facts sufficient to show that appellee’s decedent did
not assume the risk of damages arising from the defective condition
of the track; but this defect in the complaint is cured by the evi
dence.
The court held that an instruction to the jury to consider the earn
ing capacity and “ 'from all the facts and circumstances” to say what
the measure of recovery should be, was not erroneous as telling the
jury to consider other facts and circumstances than those stated.
In conclusion it was stated:
Appellant says the damages assessed by the jury are excessive, but
no authority is cited and no reason presented to show that the
damages awarded are in fact excessive as shown by the evidence, and
no part of the evidence relating to the elements ox damage is set out
in the brief. However, an examination of the record discloses evi
dence that at the time of his death decedent was 45 years old and in
good health; that he was an industrious and sober man; that he
was earning $75 every two weeks and contributed all of it to the
support of his family; that he was always at home with his wife and
children except when engaged in his work; that his life expectancy
under the American experience mortality tables was 24.54 years.
Under this evidence we can not say the damages are excessive.

E mployers’ L iability — R ailroad C ompanies— F ederal S tatute—
C ontributory N egligence—Frese v. Chicago , B . & Q. R . C o .,
U nited States Suprem e Court ( October 15, 1923), ^ Suprem e Court
R eporter, page 1 .—Johanna Frese sued the Chicago, Burlington &

Quincy Railroad Co. to recover damages for the death of Joseph J.
Frese, employed by the company as an engineer. Judgment was in
her favor in the trial court, but this was reversed by the Supreme
Court of Missouri (290 Mo. 501, 235 S. W. 97), whereupon the case
was brought to the Supreme Court of the United States, where the
judgment of reversal was affirmed.
Frese was approaching a crossing, at which he was required to
bring his train to a full stop before proceeding. This he did, but
afterwards collided with another train at the crossing, his view being
intermittently obstructed. The law of Illinois, in which State the
accident occurred, makes it the imperative duty of the engineer to
be certain that the way is clear before entering upon the crossing.
Mrs. Frese contended that the negligence of the fireman con
tributed to the injury, so that “ even if Frese was negligent that

e m p l o y e r s ’ l ia b il it y

would not be a bar to this action under the employer’s liability act.”
Mr. Justice Holmes, in delivering the opinion of the court, after
announcing the facts, stated that “ the statute makes it the personal
duty of the engineer positively to ascertain that the train can safely
resume its course. Whatever may have been t&e practice, he could
not escape this duty, and it would be a perversion of the employers’
liability act (April 22, 1908, c. 149, sec. 3; 35 Stat. 65, 66 [Comp.
Stat., sec. 8659]) to hold that he could recover for an injury pri
marily due to his failure to act as required, on the ground that
possibly the injury might have been prevented if his subordinate had
done more.”
A very similar case was before the court somewhat later (Novem
ber 17, 1924) from the Supreme Court of Tennessee. (Davis v.
Kennedy, 45 Sup. Ct. 33.) In this case a double-track road merged
at a designated point into a single track, instructions being for the
engineer of the train involved never to pass that point unless it was
known to be a fact that a designated train had passed it. The failure
of the engineer to ascertain this resulted in a collision and his
death. The trial court and the supreme court of the State were of
the opinion that other members of the crew as well as the engineer
were bound to look out for the approaching train, and that their
negligence contributed as a proximate cause of the engineer’s death.
Mr. Justice Holmes, who delivered this opinion also, said on this
point:
We are of opinion that this is error. It was the personal duty of
the engineer positively to ascertain whether the other train had
passed. His duty was primary, as he had physical control of No. 4,
and was managing its course. It seems to us a perversion of the
statute to allow his representative to recover for an injury directly
due to his failure to act as required on the ground that possibly it
might have been prevented if those in secondary relation to the
movement had done more.
The judgment of the court below was therefore reversed. .

E mployers’ L iability — R ailroad C ompanies— F ederal S tatute—
“ E mployee ”— T emporary A ssistant— Baltimore & 0 . S. W . R . Co.

Burtch , United States Supreme Court (January 7 , 1 92 3), 44 S u
preme Court R eporter , page 165.—One Burtch received injuries while

assisting in unloading a heavy machine from a freight train at Commisky, Ind. He was not a regular employee of the company, but
was asked by the train conductor to assist in unloading the machine,
the train crew being unable to do so without help. Evidence indi
cated that the making of such requests was a long-standing practice,
and on the findings as to requests and assistance the plaintiff had been

DECISIONS OF COURTS AFFECTING LABOR

awarded judgment in the trial court, which was affirmed by the
Supreme Court of Indiana (124 N. E. 858). Proceedings in the case
were on the assumption that the law of the State of Indiana con
trolled, and not the ^Federal statute applicable to cases arising in
interstate commerce.
The supreme court found that the machine (an ensilage cutter)
came into the State from Louisville, Ky., but evidence was said to
be lacking as to whether or not the cutter came from that point to
Commisky. The finding of the jury that evidence was lacking as
to the source of the shipment was said by the court to be against
the plainly established facts, which showed the interstate character
of the shipment; but more was required. “ It is necessary to show
further thatcthe employee at the time of the injury [was] engaged
in interstate transportation, or in work so closely related to it as
to be practically a part of it.’ ”
On this latter point Mr. Justice Sutherland, who delivered the
opinion of the court, declared that it was “ too plain to require dis
cussion that the loading or unloading of an interstate shipment by
the employees of a carrier is so closely related to any State trans
portation as to be practically a part o f it,” so that the test above
laid down was met.
It was claimed that Burtch was interested in the cutter as part
owner, and that he assumed responsibility as such in complying with
the request of the conductor to assist in unloading it. This view
was said not to be supported by the evidence, and exemption from
liability on that ground was denied. However, as material differ
ences exist between the provisions of the State law and the Federal
statute, “ since certain common-law defenses, abrogated by the for
mer, are still available under the latter,” it was necessary to reverse
the judgment of the State courts and to remand the case for further
proceedings not inconsistent with the present opinion.

E mployers5L iability — R ailroad C ompanies— F ederal S tatute—
I nterstate C ommerce— F lagman of S w itch Crew— A ward of
C ompensation—Dennison v. P a yn e , United States Circuit Court o f
A ppeals , Second Circuit (June 20, 1 9 2 3 ), 293 Federal R eporter ,
page 333 .—Rose Dennison sued as administratrix to recover dam
ages for the death of Harry W. Dennison, employed by the Dela
ware, Lackawanna & Western Railroad Co., while under the man
agement of the Federal agent, John Barton Payne.
Dennison was acting as train flagman of a switching crew at
Hanover, Pa., the last work of which had been to move a train of
cars loaded with coal to a yard some miles out, but all within the

EMPLOYERS ’ LIABILITY

State of Pennsylvania. However, one car in the train was billed
at the mines to a point outside the State. Leaving the train at its
destination, the three engines and the caboose in charge of the
switching crew were to return to a designated point and report for
orders. The crew had completed a day’s work of eight hours, and
unless orders for overtime were given, they would run the engines
and caboose to the village of their residence and return to their
homes, leaving the outfit available for work in the morning.. While
on the way to the point where orders were expected, there was a
collision with an unlighted and unguarded loaded train standing
on the same track, resulting in the death of Dennison and three
others. The negligence of the company was admitted, but action
under the Federal employers’ liability law was opposed on the
ground that the employment was intrastate so that this act did not
apply, and further that an award of compensation had been made
under the State law, which was res adjudicata in the present ac
tion. Judgment was for the railroad in the district court, but on
the proceedings in the circuit court of appeals a contrary view was
taken.
Judge Kogers, who spoke for the court, first took up the question
as to the nature of the employment. It was found that the fact
that there was one interstate car in the train moved controlled,
so that the last engagement had been work in interstate commerce.
No distinct act intervened between this work and the return to the
point directed by the orders, and it was held that the fact that
Dennison had last been engaged in interstate commerce before
doing the act preparatory to the next step should be regarded as
determining the nature of his .employment at the time his injury
was received. As a matter of fact, the orders would have been to
move empty cars in purely intrastate commerce, but—
if the expectation that the employee would presently be called upon
to perform a task in interstate commerce is not sufficient to bring a
case within the employers’ liability act, a like expectation that he
would presently be called upon to perform a task in intrastate com
merce is equally insufficient to take a case out of the statute which
would otherwise be within it. The orders which might have been
given upon the arrival at Taylor crossover are wholly immaterial
to fix the status of the intestate at the time of the accident.
The court below took the position that the plaintiff had failed
to prove that the workman was at the time of his death engaged in
interstate commerce, and directed a verdict for the defendant on the
ground that the case was not an interstate case. Inasmuch as the
court of appeals found to the contrary, the judgment must be re
versed unless another ground of defense is available. The defend44915°—25-----8

DECISIONS OF COURTS AFFECTING LABOR

ant had offered the ground that the workmen’s compensation board
of the State had made an award to the widow, which award was
res adjudicata, and operated as a bar to further action. This ques
tion was not considered by the court below, as its finding bn the
other point was a sufficient basis for its decision. However, the
court of appeals found it necessary to consider this point, the other
ground having been held insufficient.
It appears that the plaintiff in the case before the court, suing
as administratrix, began her action in due time, but on finding that
judgment would not be reached before the expiration of the period
of limitation under the compensation act, she entered a claim in
her individual name, stating that the petition was filed “ to obviate
the running of the statute of limitations under the State compen
sation law, in the event that the deceased was not engaged in inter
state commerce, which fact is now in litigation in the courts.”
The compensation board proceeded with inquiry and a finding
was entered in her behalf. From this finding by a referee the de
fendant appealed to the full board, where a new hearing was had
and a decision rendered including findings of fact, conclusions of
law, and an award of compensation. The board found that the em
ployee was injured while engaged in intrastate commerce, and ac
cordingly claimed jurisdiction. Neither party appealed from this
decision, but no application was ever made for payment by the
claimant herself or by anyone on her behalf.
The reliance of the defendant on “ the general principle that a
right, question, or fact distinctly put in issue and directly determined
by a court of competent jurisdiction as a ground of recovery can not
be disputed in a subsequent suit between the same parties,” was ac
cepted by the court. It was also said that the rule which forbids
“ the reopening of a matter once judicially determined by competent
authority applies as well to the judicial and quasi-judicial acts of
public officers and boards as to the judgments of courts having gen
eral judicial powers.” But if there was no jurisdiction, the decision
would be not merely voidable but void, and while jurisdiction of
the person may be obtained by consent, if jurisdiction is lacking
over the subject matter consent can not confer it.
Inasmuch as the board had authority to make awards in cases of
injury in intrastate commerce, it necessarily had jurisdiction to de
termine whether any specific injury was in such commerce or in in
terstate commerce. “ I f erroneous, its decision would simply be
voidable, to be corrected by writ of error or appeal. Its award has
the effect of a judgment of a court of competent jurisdiction, no
appeal having been taken therefrom.” However, in order that a judg
ment may work an estoppel, there must have been identity of parties
in the two cases. Proceedings before the compensation bureau were

EMPLOYERS* LIABILITY

in the name of “ Eose E. Dennison, claimant ” ; while in the suit fqr
damages the action was in the name of “ Eose E. Dennison, as ad
ministratrix.” Since there are no children, she was the sole party
in interest both in the claim and in the suit, and it was contended
that the parties were the same in both; but under the Federal statute
an action must necessarily be by the personal representative of a de
ceased person for the benefit of persons named, and a recovery by a
widow as such had been set aside by the Supreme Court of the
United States. (American Kailroad Co. v. Birch, 224 U. S. 547, 32
Sup. Ct. 603.)
In Troxell v . Delaware, Lackawanna & Western E. E. Co. (227
U. S. 434, 23 Sup. Ct. 274; see Bui. No. 152, p. 76); a widow had
sued under the State law of Pennsylvania, but in a Federal court,
to recover for the death of her husband, but judgment was against
her. She then sued as administratrix in the same court to recover
under the Federal statute and secured a recovery. This the circuit
court of appeals reversed on the ground that the first action had been
a bar to the second, but the Supreme Court reversed the judgment of
the circuit court of appeals and affirmed that of the district court in
her favor as administratrix. Applying this principle as governing
in the present case the court found that there was not an identity
of parties, so that the doctrine of res adjudicata was inapplicable.
Inasmuch as the deceased was engaged in interstate commerce,
and as the proceedings before the Pennsylvania State board were
not between the same parties as in this action, there was no bar to
the maintenance of the present action. The court of appeals com
mitted error in ruling to the contrary, and its judgment was there
fore reversed.
E mployers’

L iability — E ailroad C ompanies— F ederal S tat
C ommerce— M achinist ’s H elper M aking P u n
on E ngine — C ourse of E mployment — D amages—

ute— I nterstate
ning

E epairs

Baltimore <& Ohio Railroad Go. v. K a st, United States Circuit Court
o f A ppeals, S ixth Circuit (June 6 ,1 9 2 4 ), 299 Federal Reporter, page
419 .—Harry

Kast, a machinist’s helper in the employment of the
Baltimore & Ohio Eailroad Co., was engaged at the time of his injury
in assisting in making what are called road or running repairs to a
passenger engine. This engine had reached Garrett, Ind., with an
interstate passenger train and was bulletined to go out in about 10
hours with another interstate passenger train. This was its normal
use, and on the day in question orders were given to make certain
light repairs in the interval at Garrett. Kast was told by his supe
rior to go to another part of the company’s premises and procure a
piece of pipe needed in the repairs. While on the errand the supper

DECISIONS OF COUKTS AFFECTING LABOB

or lunch gong sounded, and some question arose as to whether Kast
continued on his errand or turned aside to procure his lunch basket.
The evidence was conflicting, but in any case he was at the time of
his injury, accompanied by another employee, crossing an open area
way on a part of the premises ordinarily used by employees in going
about their work. While walking over this way a volume of steam
suddenly escaped from a tank near by, which completely obstructed
their view, and in trying to escape Kast stepped on a socket wrench
lying on the ground and sustained the injuries complained of. Judg
ment had been in his favor in the court below, and the company
brought error, the circuit court of appeals affirming the judgment.
Circuit Judge Mack, speaking for the court, took up first the ques
tion of whether or not the parties were engaged in interstate com
merce at the time the injury occurred. The viewpoint of the court
below was approved. It was there held that “ if the engine repair
work was interstate commerce, plaintiff was so engaged, notwith
standing he had quit work and was going to lunch [on the premises],
with the expectation of immediately returning to the same work.”
As the engine was merely placed in the roundhouse and not sent to
the repair shops, “ it was not really withdrawn from interstate com
merce in order to make the repairs in question.” It was a customary
lay-over during which such repairs as could be made on a sidetrack
or in the roundhouse were usually made. The conclusion therefore
was that the plaintiff was engaged in interstate commerce.
Taking up next the question of negligence, it was admitted that
“ but for the abolition of the fellow-servant rule no case of negligence
could have been made out.” Since the Federal statute abrogates that
defense, and since the wrench lay in the pathway much used by the
employees, it was proper to submit the question of negligence to the
jury. The mere fact of the accident itself would not justify the
application of the doctrine of res ipsa loquitur (the matter speaks
for itself), a rule frequently applied in negligence cases other than
between employer and employee; but “ this rule, properly under
stood as a rule of circumstantial evidence, is none the less applicable
as between the employer and employee.” Not every possibility of a
purely accidental cause of injury need be excluded by the plaintiff,
nor should a case “ be left to a jury simply on a question of probabil
ities” ; but probabilities such as developed in the instant case are
available to “ help out items of evidence from which an inference can
be drawn.”
Damages had been awarded by the jury in the amount of $25,000.
The trial judge required a remittitur of $7,500 as a condition to
denying the company’s motion for a new trial, expressing the opinion
that the amount awarded “ evidences passion and prejudice and can
not be sustained.” As to this Judge Mack said that if the verdict

e m p l o y e e s ’ l ia b il it y

was based upon passion or prejudice it should have been set aside
and not merely a remittitur required.
However, as nothing appeared in the record other than the size of
the verdict to indicate prejudice or undue sympathy, the amount of
the judgment ($17,500) fully compensated the plaintiff for his
“ undenied substantial injuries,” and the judgment was affirmed.

E mployers’ L iability — R ailroad C ompany — F ederal S tatute—
I nterstate C ommerce— R emoving S mokestack at F erry S tation—
P ersons E ntitled to D amages— “ C hild ”—R iser v. D avis , Court
o f Appeals o f N ew Y or k (N ovem ber 28 , 1 92 2), 187 Northeastern
R eporter , page 596 .—Mabel

Burke Hiser sued James C. Davis, Direc
tor General of Railroads, to recover damages for the death of the
father of her child by an accident occurring in interstate commerce.
Judgment was in the plaintiff’s favor in the lower court, which was
affirmed by the court of appeals. Chief Justice Hiscock, delivering
the opinion, noted two principal points in dispute on the appeal
to the court of appeals. The first was as to the quality of the em
ployment. Hiser, at the time of his death, was engaged in removing
an old smokestack upon a boiler building at a ferry which was oper
ated as an adjunct to railroad service between New York and New
Jersey. The boilers affected were used to heat the waiting room,
ticket offices, etc., of the ferry station, and to furnish hot water to
the ferryboats. While thus employed Hiser was caught by an en
tering ferryboat and crushed so that he died. As to the interstate
character of this work, Judge Hiscock said:
We thus have it that the intestate was at work upon a building or
appliance which was an essential instrumentality in carrying on de
fendant’s business of interstate commerce. It was not, in my opinion,
an instrumentality so remote from the operations of interstate com
merce that the intestate, while working thereon, could not be said to
be engaged in helping to carry on the processes of commerce.
The second proposition urged on appeal was said to be “ much
more troublesome.” The plaintiff administratrix had been pre
viously married and abandoned by her husband, who entered the
war and is said to have been reported dead. The plaintiff then
married the deceased and to this marriage a child was born. How
ever, before this latter event the former husband reappeared and
sued for a divorce, which he obtained on the ground of adultery.
The deceased also sued for an annulment of his marriage, which,
being bigamous, was annulled by the court. At the time of this
action the laws of New York provided that where such an annul
ment as the above took place, when at least one of the parties to
the marriage had contracted it in good faith, the child should be

100

DECISIONS OF COURTS AFFECTING LABOR

deemed the legitimate child of the parent who at the time of the
marriage was competent to contract. This provision of law was
not considered in the decree of annulment, “ through ignorance or
indifference of counsel,” so that no finding was made or provision
declaring the status of the infant.
The Federal employer’s liability act, under which this suit was
brought, authorizes recovery in behalf of a surviving widow and
children. The marriage having been annulled, the administratrix
could sue only in behalf of the child. As to the construction of the
law in this respect, Judge Hiscock said that “ the interpretation of
the word ‘ child’ or ‘ children’ in such a Federal statute as in
cluding or not illegitimate children depends upon the law of the
State wherein the statute is being enforced.” The obvious purpose
o f the New York statute above cited was to protect the child of such
marriage or alliance as the one in the instant case. The lower court
“ utterly failed to consider that branch of the action” ; while the
evidence that the plaintiff herself contracted this marriage in good
faith was said to be “ very thin.” For this reason the court did not
have power to amend and correct this action.
In the effort to save the rights of the child the mother had ap
plied for an opening of the interlocutory decree pronouncing the
annulment of the marriage “ to permit the appropriate findings
and decretal provisions legitimatizing the child under the section of
the code heretofore referred to.” This application was granted, and
the question came to the court of appeals as to whether this action
was authorized or whether the court had power to open the pro
ceedings and make the findings and provisions which it did on any
theory other than that of correcting a mistake or inadvertence.
The conclusion was reached that such right existed, the opinion on
this point reading:
I suppose there is no question but that, if intestate had lived, the
court would have had the power, on the application or consent of
both him and plaintiff, to open said judgment and proceedings and
pass upon the issue of good faith, and, if found, decree the legiti
macy of the child. The man, however, had died before the applica
tion; but the application was made by plaintiff, who had been
appointed the administratrix of the intestate and general guardian
of the infant. As I have said, the rights which the court was* per
mitted to protect in such an action were of a peculiar nature. They
were not so much the rights of the people who were parties to the
action as the rights of the infant. Interest in the matter did not
die with the death of the intestate, but it survived in a very lively
mid real way with the infant. The code did not require that the
infant should be a party to the annulment action, but its rights were
involved therein, and, the decree having failed to pass thereon, we
think that the court could amend the judgment on the application

employers ’ liability

101

of one who was its mother and guardian and also a party to the
original suit.
A possible objection to such a procedure was the interference with
the rights of other next of kin, but as to this the court said that if
next of kin survived it did not appear but that they had had due
notice of all proceedings, with ample protection of their rights, and
it must be presumed “ that a court of general jurisdiction has pro
ceeded advisedly and regularly” in the absence of evidence to the
contrary.
The judgment was therefore affirmed in favor of the child.

E mployers’

L iability — R ailroad C ompanies— F ederal S tat
C ommerce— R eplacing D erailed C ar on S pur
P lace— N egligence— Shaffer v. W estern M aryland

ute— I nterstate

T rack— S afe

R y . G o ., Suprem e Court o f Appeals o f W e st Virginia {M arch IS,
192S ), 116 Southeastern R eporter , page 747.—Luke

Shaffer, em
ployed by the defendant Western Maryland Railway Co. as a car
repairer in its shops at Thomas, W. Va., was directed to go with
others to Bayard, W. Va., and rerail a car that had been derailed
on a branch line extending to the mines of the Emmons Coal Co.
from Bayard. Upon completing this work the men got on a rail
way gasoline motor car, which met them at Bayard to take them
back to Thomas. While passing through a small town the motor
ran into a board extending across the track and Shaffer was thrown
off; a 250-pound jack, which had been used in their work, fell from
the motor upon Shaffer, mashing and breaking his leg. The board
had been placed there by a merchant who used it in transporting
his freight from the opposite side of the track to his store. The
merchant had been using the board, which was 14 feet long and
about a foot wide and placed about a foot above the track, for
several years. The former owner of the store had done the same.
Shaffer brought an action and recovered a judgment of $5,000
for personal injuries received in service. The defendant brought
error.
The declaration based the action on the defendant’s common-law
liability for negligence and also on the defendant’s liability under
the Federal employers’ liability act. (U. S. Comp. Stat., secs. 86578665.) As to joining the two causes of action the supreme court of
appeals said:
Under our practice, where a plaintiff has several distinct causes
of action he is allowed to pursue them cumulatively in the same suit,
subject to certain rules which the law prescribes as to joining such
demands only as are of similar quality or character.

102

DECISIONS OP COURTS AFFECTING LABOR

There is not in this case such an inherent difference between the
cause of action arising under the common or State law and the
cause of action arising under the Federal statute as will prevent
their joinder in the same declaration. Whether the cause arises
under the one or the other it is based on the defendant’s negligence.
The question whether Shaffer was engaged in interstate com
merce so as to entitle' him to relief under the Federal statute was an
swered by Mr. Justice Meredith as follows:
While plaintiff’s primary object may have been to replace the car
upon the spur track, yet the jury might reasonably find that the
object of clearing the track of the derailed car entered inseparably
into the purpose of replacing it in proper position on the track, and
thereby gave to his work the character of interstate commerce. The
character of the work being done at the time the injury occurred
determined whether he was injured in interstate commerce. He was
engaged in interstate commerce when he was replacing the car on
the spur track, that track being used in such commerce, and that
character was stamped upon his employment not only when he was
actually so engaged but continued so until he could, within a reason
able time, with the facilities afforded, return to Thomas, where his
permanent place of employment was and where his home was
located.
That the defendant was required to provide a-reasonably safe
place to work was held by the court in citing Newhouse v. K. &
W. V. R. Co. (59 S. E. 1071; 62 W. Va. 562) :
“ Such a reasonably safe place to work has been extended, with
respect to railroads, to the entire track over which the servant is
required to pass in discharge of his duties.” This duty can not be
assigned.
Defendant can not absolve itself of its duty to keep the track
clear, where plaintiff was injured, by showing that Shoemaker, who
placed the board across the tracks, was not in its employment. It
had knowledge of his custom, and it was clearly an act of negligence
to permit the practice to continue over a course of years. We think
the court could say as a matter of law that the evidence showed
defendant guilty of negligence.
The judgment in favor of the plaintiff was therefore affirmed.

E mployers’ L iability — R ailroad C ompanies— F ederal S tatute—
I nterstate C ommerce— S hoveling C oal into P it for I nterstate
and I ntrastate E ngines —K ib ler v. D avis , Suprem e Court o f N e
braska (March 81, 1 9 8 3 ), 198 N orthwestern R eporter, page 732 .—

Charles W. Kibler was the administrator of the estate of Albert J.
Gammill. Gammill had been employed by the Union Pacific Rail
road Co. at Kearney, Nebr., to shovel coal into a pit from which
mechanical carriers moved thg coal into a chute for the immediate
use of engines engaged in both interstate and intrastate traffic. The

EMPLOYERS* LIABILITY

103

company was at the time under Federal control, and an action for
damages was brought against the Director General of Railroads on
this account.
Gammill had, with other workmen, unloaded a number of cars, and
was waiting for other cars to be brought in for unloading. While
so waiting he was struck by the empty cars which were violently
hit by a string of cars run onto the track without signal either by
whistle or the presence of a flagman. Gammill fell upon the track
and was run over, receiving fatal injuries.
The administrator recovered in the district court of Buffalo
County, from which an appeal was taken to the supreme court of
the State. The judgment was there affirmed, Judge Cook delivering
the opinion.
Among the contentions raised was one as to the nature of the
deceased workman’s employment. The coal handled was placed in
bins which required replenishment about every 30 hours, so that the
supply must be kept continuously available for practically immedi
ate use. The fact that part of it was used in intrastate commerce
was held not to qualify the operation so as to take it out of the
Federal statute, the labor in which Gammill had been employed
being classed as essential to the operation of interstate trains. The
work that he did was the last manual labor affecting the coal supply
before it was placed in the tenders for firing the locomotives. From
this Judge Cook concluded :
We are of opinion, where one is engaged in shoveling coal into a
pit, to be elevated by machinery into a coal chute for immediate use
in engines used in both interstate and intrastate traffic, that he is
engaged in a work so closely related to interstate transportation as
to be part of it, and that he is within the protection of the Federal
employers’ liability act.
It was in evidence that the engineer who drove the cars upon the
track “ was aware of the fact that coal shovelers were likely to be
on the upper track, waiting to perform their duties.” The facts
were, said to be sufficient to “ warrant the jury in finding that the
defendant was negligent.” It was argued, however, that the in
jured man was himself negligent in taking the position that he did
while waiting for the other cars to be brought up. It was pointed
out that under the Federal act 44contributory negligence, no matter
how great, is not a defense, but may be considered for the purpose of
reducing the recovery.”
The question of assumption of risks was also raised. There was
a conflict in the evidence as to whether a flagman was usually kept
on the front end of a string of cars when being run onto an upper
track, but it did appear that on the present occasion the cars were

104

DECISIONS OF COURTS AFFECTING LABOR

“ pushed with more than usual violence.” In this connection the
court said:
Where the defense of assumption of risk is submitted to the jury
on conflicting evidence and under proper instructions, its verdict
is conclusive on the question.
No substantial error having been found in the proceedings of
the lower court, its judgment was affirmed.

E mployers5 L iability — R ailroad Company — F ederal S tatute—
N egligence— C ontributory N egligence— Sigm on v. Southern B y .
C o ., Supreme Court o f N orth Carolina (N ovem b er 28, 192 3), 120
Southeastern Reporter, page 56.—C.

A. Sigmon was employed by the
Yadkin Railroad Co. as an engineer on a passenger train running be
tween Salisbury and Norwood, N. C. On September 28,1920, orders
were given to Sigmon and his train crew to meet another train at
Yadkin Junction. On arriving at the junction the conductor was
busy taking tickets so the flagman gave the signal to go ahead; the
engineer failing to remember the order, proceeded, and was killed
in a head-on collision with a freight train.
The Yadkin Railroad Co. was owned and operated by the
Southern Railway, and the engine of the freight train belonged to
the Southern Railway Co., so the administratrix (Ada Sigmon)
joined both as defendants in a proceeding under the Federal em
ployers5 liability act for damages for the death of C. A. Sigmon.
The defendant appealed from a judgment for the plaintiff.
The Supreme Court observed that though the deceased engineer
contributed to his own death by his negligence in failing to obey
the order to wait at the junction for the freight train, yet the con
ductor and flagman, when they found the train proceeding con
trary to orders, should have signaled the engineer to stop. The flag
man admitted that he forgot and the conductor said he did not
know why he did not give the signal.
Mr. Chief Justice Clark observed that the jury might take into
account contributory negligence as reducing damages, and said for
the court:
While the intestate was guilty of contributory negligence, there
was ample evidence that the collision would not have occurred but
for negligence on the part of the conductor and of the flagman.
Under the Federal employers5 liability act the jury was empowered
to apportion the recovery according to the ratio which they found
should exist between the causal effect of the contributory negligence
of the engineer and that of the defendants in the conduct of the
conductor and flagman.
Judgment was therefore affirmed.

employees ’ liability

105

E mployers’ L iability — R ailroad C ompanies— F ederal S tatute—
N egligence— I njury — Cincinnati, N ew Orleans & Texas Pacific
R y . Co.

Calhoun, Court o f Appeals o f K en tu cky (M a y 25, 1923),

252 Southwestern Reporter, page 115.—Joe

Calhoun was employed as
a section hand by the defendant, New Orleans & Texas Pacific Rail
way Co. While so engaged he was directed with others to move a
hand car loaded with tools from a sidetrack to the main track of the
railroad. Calhoun was at the front of the car with his back to all
the other men except one, who was also at the front of the car. The
man diagonally across the car back of the plaintiff used a bar in
raising his end, this act giving him greater leverage and throwing
added weight upon the plaintiff. As a result of this act the plain
tiff suffered a rupture and attending injuries.
Calhoun brought an action under the Federal employers’ liability
act (U. S. Comp. Stat., secs. 8657-8665), and from a judgment in his
favor the railroad company appealed.
The facts were practically uncontradicted by the defendant. The
court of appeals, on reviewing the case, said through Mr. Justice
Turner:
It can not be said that the use of a lining bar or other instrument
in attempting to lift a hand car or other heavy object, while others
assisting therein are only using their hands, is in and of itself
negligence; but such instrument, which gives to the one using it a
leverage or physical power which he knows the others have not at
the time, may be used in such manner as to amount to negligence.
This evidence justifies the inference that the man using the lining
bar was negligent in not recognizing the fact that his increased
leverage and power because of its use might and would throw and
cast upon some of his fellow workmen an undue or disproportionate
share of the weight, if he negligently used the increased leverage
and power so given to him. The evidence is undisputed that im
mediately thereafter appellee complained of being strained and in
jured, and told the man who had used the lining bar that he could
have lifted as much as he did if he had had a fair deal. It further
shows that appellant did not go to work, and was unable to do so for
eight or ten months thereafter, and even at the time of the trial,
a long time after the injury, he still suffered from the results thereof.
It is true that six men were cooperating with each other in the mov
ing of the hand car, but they were not cooperating with an equal
footing.
The judgment for damages in the amount of $600 was therefore
affirmed.
E mployers’ L iability — R ailroad C ompanies — F ederal S tat
I psa L oquitur— Central Railroad Co. o f

ute— N egligence— R es

Peluso, United States Circuit Court o f A ppeals ,

Second Circuit

(January 2, 192 3), 286 Federal R eporter, page

N ew Jersey

106

DECISIONS OF COURTS AFFECTING LABOR

661 .—James Peluso, employed by the Central Railroad Co. of New
Jersey as a crane operator, had been engaged in unloading iron ore
from a barge moored to the dock and placing it in cars on the rail
road tracks. He had loaded all the cars and was waiting for a sup
ply of empty cars, when Kraus, his superior, came to the dock. He
told Kraus that there was no coal in the bin and swung the boom of
the crane over to the third track from the crane where some coal
cars were standing. The crane stood idle with the bucket hanging
over a car. Kraus examined the coal bin and “ hollered ” to Peluso,
telling him not to touch the coal in the cars as there was plenty in
the bin. Kraus turned around with his back to the crane and when
he looked again he saw the boom flying in the air. Neither Kraus
nor anyone else saw the occurrence. The evidence showed that the
boom of the crane had broken. The jury found that the complete
break in the center of the boom caused the crane to overturn and
carried Peluso to his death by drowning, that the side of the coal
car was not caught by the lips of the bucket, and that Peluso was
not guilty of contributory negligence.
The action was brought under the Federal employees’ liability
act and damages were awarded for the death of Peluso in the sum
of $13,313.75. The defendant moved for a directed verdict on the
ground that there was no evidence of negligence, but the case was
sent to the jury with the above results, and the defendant assigned as
error that the trial judge wrongly held and charged that the case
was one to which the doctrine of res ipsa loquitur was applicable.
The court quoted on review from Francey v. Rutland R. R. Co.
(119 N. E. 86) with regard to the rule:
“ The phrase usually employed to express the rule, res ipsa lo
quitur—the thing speaks for itself—may at times tend to obscure
rather than to make dear what the rule means. All that is meant
is that the circumstances involved in or connected with an accident
are of such an unusual character as to justify in the absence of any
other evidence bearing upon the subject the inference that the acci
dent was due to the negligence of the one having possession or con
trol of the article or thing which caused the injury. This inference
is not drawn merely because the thing speaks for itself, but because
all of the circumstances surrounding the accident are of such a
character that unless an explanation is given the only fair and rea
sonable conclusion is that the accident was due to some omission of
defendant’s duty.”
Continuing the court said:
We may at once state that we are unable to see any justification in
reason for failing to apply the correct doctrine of res ipsa loquitur
to an action such as that at bar. The question was so squarely met
by a distinguished court in the Marceau case (153 App. Div. 931),
and so ably dealt with in the opinion of Werner, J. (211 N. Y. 203;
105 N. E. 206), that we might well stop with that citation, but for the

employees ’ liability

107

necessity of examining certain cases in the Federal Courts, which it
is urged hold contrary to the New York rule.
The court, after discussing Patton v. Texas & Pacific Kailway
(179 U. S. 658, 21 Sup. Ct. 275), Looney v. Metropolitan R. R. Co.
(200 U. S. 480, 26 Sup. Ct. 303) and Minneapolis & St. Louis R. R.
Co. v. Gotschall (244 U. S.,66, 37 Sup. Ct. 598; see Bui. No. 246, p.
100), said:
From the foregoing we think it quite clear that the Supreme Court
has left unimpaired the doctrine of res ipsa loquitur as between
employer and employee where the circumstances are such as to war
rant the application of that doctrine in the sense of the definition
in the Francey and other cases cited, supra.
We may frankly state affirmatively that we hold that this doctrine
is applicable to cases between master and servant, including, of
course, employer and employee under the Federal employers’ lia
bility act.
The question of negligence of the employee was said to be a proper
question for the jury in this case and the court made no error in
denying the motion for a directed verdict. The judgment was there
fore affirmed.
E mployers’

L iability — R ailroad C ompanies— F ederal S tat
S uit — I njunction A gainst A ction in F oreign
J urisdiction— Lancaster et al. v. D unn, Suprem e Court o f Louisiana
ute— P lace

{Decem ber 2 9 ,1 9 2 2 ), 95 Southern R eporter, page 885 .—William T.
Dunn, while regularly performing his duties as fireman on a pas
senger train engaged in interstate commerce, was killed in the
course of his employment. He left surviving him a widow and two
minor children. His home was in the State of Louisiana and in
this State he met his death.
The widow, acting as administratrix of the estate of her deceased
husband, brought an action for damages against the Texas & Pacific
Railway Co., the employer, not in Louisiana where the death oc
curred but in Texas. The railway company instituted a suit in the
courts of Louisiana seeking an injunction to restrain the widow
from prosecuting the action in Texas.
It was contended by the company that the filing of the suit for
damages in the Texas courts was done for the purpose of obtaining
an undue and unequitable advantage over the railway company. To
substantiate this contention it was pointed out that it would be less
convenient and more expensive to the railway company to produce
the evidence in the Texas courts than it would to produce it in
Louisiana where the accident occurred. Further, it was pointed out
that in Texas a jury’s verdict is final on questions of fact and that
it is not final in Louisiana, and as a result of this lack of right of

108

DECISIONS OF COURTS AFFECTING LABOR

review, the Texas verdicts were much larger than those given in
Louisiana.
A preliminary injunction was granted, but after hearing a judg
ment was rendered dissolving the injunction. J. L. Lancaster and
others, as receivers of the railway company, appealed to the supreme
court of the State, that court affirming the judgment below.
With reference to the jurisdiction of the equity courts in a case
of this kind Judge O’Neil, speaking for the court, said:
The doctrine seems to be well established now by the decisions of
the courts of other States that a court of equity has authority to pre
vent a person within the court’s jurisdiction from prosecuting a
suit in a court having jurisdiction in another State, whenever the
purpose or object of the suit complained of is merely to harass and
annoy the defendant therein, or to accomplish something unconscion
able or inequitable, or not obtainable in the court of the complaint.
There is no well-defined rule or formula for determining when such
a case is presented to a court of equity. Each case must be deter
mined by its own peculiar facts. The doctrine of the authority is
founded upon the theory that every citizen owes obedience to the
laws of the State of his domicile and to the decrees of the courts
of his domicile. The local court in such a case does not undertake
to control the other court, but merely controls the individual within
the jurisdiction of the local court.
There are three interrelated considerations which, in our opinion,
sustain the judgment appealed from. First of all, the equity pow
ers of the courts of this State are, by article 21 oi the Civil Code,
expressly limited to cases in which there is no express law; sec
ondly, the Federal employers’ liability act expressly conferred upon
the defendant in this suit the right to bring her action for damages
or compensation in the court in which she brought it ; and, thirdly,
she had been appointed and was qualified as the administratrix of
her husband’s succession, under authority of the Texas court, and
was proceeding in obedience to the orders of that court, when the
plaintiffs in this case sought to put a stop to the proceeding.

E mployers’
ute — R elief

L iability — R ailroad C ompanies— F ederal S tat
D epartment— C ontract for M utually E xclusive

R emedies—Roberson v. Chicago , Burlington & Quincy Railroad
C o ., Suprem e Court o f Nebraska (Decem ber

SO, 1922), 191 N orth
Roberson was injured while in
the employment of the Chicago, Burlington & Quincy Railroad Co.,
being employed by it as a brakeman in interstate commerce in the
year 1915. He was a member of the Burlington relief department
and received benefits therefrom for about a year. He then sued for
damages under the Federal statute and recovered a judgment for
$5,000, which the company paid in full. The relief department
thereupon terminated payments, and the present action was brought
to recover the remainder of the benefits claimed.
western R eporter , page 71£.—Floyd

employers ’ liability

109

On becoming a member of the department Roberson had signed the
customary agreement that “ if any suit shall be brought against said
company for damages * * * the benefits otherwise payable and
all obligations of said relief department ” shall be forfeited without
further action. In spite of this provision, Roberson carried his case
to the district court of Webster County, and on a trial before a judge
without a jury secured a judgment for the continuation of the bene
fits claimed, from which the company appealed.
The judgment of the trial court was reversed by the supreme court,
and the case dismissed, Judge Shepherd, speaking for the court,
saying:
It is not necessary to review Burlington relief litigation in Ne
braska. Suffice it to say that this court has consistently held the con
tract of the relief department good, and that the injured employee
must forego his relief and take his damages or take his relief and
forego his damages.
Despite this construction by the courts of the State, Roberson
contended that the Federal statute, section 5 (U. S. Comp. Stat., sec.
8661), sustains the present claim. This provides that any contract,
the intent of which is to enable a common carrier to exempt itself
from the liability created by the statute, “ shall to that extent be
void.” As to this the court said:
It clearly appears from the language employed that the Burling
ton relief contract with the plaintiff could not operate to preclude
the latter from a resort to his action for damages. But that seems to
be the extent of its effect on said contract if common and ordinary
meaning is given to the words used. “ To exempt itself from any
liability created by this act ” is the expression of Congress. And the
liability so created was the liability to respond in damages for injury
suffered. The act limits the contract in that respect alone. The
contract shall “ to that extent be void.” I f Congress had intended to
provide also that the contract should be ineffectual to exempt the
carrier from the payment of benefits when damages had been recov
ered and collected, it would have said so.
Judge Shepherd then took up the conflicting constructions of this
provision, one by the Supreme Court of Minnesota in the case of
Wise v. Chicago, Burlington & Quincy Railroad Co. (133 Minn.
434; 158 N. W. 711), in which the present contention of the injured
workman is upheld. However, the court found a precedent to the
contrary in Getkin v. Pennsylvania Railroad Co. (259 Pa. 150; 102
Atl. 506). The facts in that case were practically identical with
those in the instant case. An extended citation was made from the
opinion therein, following which Judge Shepherd said:
I have before adverted to the fact that the decisions of this court
have always tended to sustain the contract and to respect elections
thereunder. It is not now disposed to void it or hold it for naught,

110

DECISIONS OP COURTS AFFECTING LABOR

except as it is expressly voided and held for naught by legislative
act. Such is the view o f the Pennsylvania opinion.
Nebraska and Pennsylvania are thus seen to have looked at the
question from the same viewpoint and to have arrived at similar
conclusions. The present claim is founded upon contract for relief
benefits between the employee, appellee, and the company, appellant,
which contract contains the plain proviso that bringing suit and re
covering and collecting damages tor his injury shall preclude him
from relief benefits. This contract stands unaffected by the act of
Congress invoked. He was not entitled to the recovery of benefits
awarded by the judgment of the district court, and such judgment
must be reversed and the action dismissed at the cost of the appellee.

E mployers’ L iability — R ailroad C ompanies— F ederal S tatute—
S afety A ppliances— D efective G rab I rons— C ausal R elation to
I njury —Davis v. W o lfe , United States Suprem e C ou rt. {N ovem ber
1 2 ,1 9 2 3 ) ,

4-4 Suprem e Court R eporter, page 6£.—Lee A. Wolfe was
a conductor on a freight train which was being used in interstate
commerce. While the train was at a station, moving slowly, he was
standing on the side of one of the cars with his feet in a sill step
fastened to the bottom of the car near the end and holding on, with
his right hand, to a grab iron directly over the sill step. The grab
iron was defective in that the wood around it had rotted and the iron
had a play of about an inch. Wolfe signaled the train to stop, but
instead it moved forward with a violent jerk, and as a result of the
jerk and the defective grab iron Wolfe was thrown beside the car
and one of its wheels ran over his left arm. The loose condition of
the grab iron was not disputed. An action was brought against
'James C. Davis, designated agent under the transportation act (41
Stat. 456), and judgment was given for the plaintiff in the trial
court and affirmed in the Supreme Court of Missouri (294 Mo. 170,
241 S. W. 915). The defendant sued but a writ of certiorari. The
plaintiff brought his action under the Federal employers’ liability
act (Comp. Stat., secs. 8657-8665), in connection, primarily, with an
alleged violation of the safety appliance act (Comp. Stat., secs.
8605-8612).
It was the contention of the defendant that the case could not be
taken to the jury under the safety appliance act, but that it was
erroneously held to be applicable in the courts below. It was con
tended that on the facts Wolfe was not in a situation where the
defective grab iron “ operated as a breach of duty imposed for his
benefit which, it is urged, merely requires the furnishing and mainte
nance of grab irons in behalf of employees engaged in coupling or
uncoupling cars, or a service connected therewith.”

employers ’ liability

111

The Supreme Court, speaking through Mr. Justice Sanford, said:
Section 4 of the amended act provides that, until otherwise ordered
by the Interstate Commerce Commission, it shall be unlawful to
use on any railroad engaged in interstate commerce any car “ not
provided with secure grab irons or handholds in the ends and sides
* * * for greater security to men in coupling and uncoupling
cars.”
While there is no previous decisions of this court relating to this
aspect of section 4, a controlling analogy is to be found in its de
cisions as to the application of section 2 of the act which, as amended,
makes it unlawful to use on a railroad engaged in interstate com
merce any car not equipped with automatic couplers capable of
being coupled and uncoupled “ without the necessity of men going
between the ends of the cars.”
N
The opinion then reviewed four cases in which the injured em
ployees were not engaged “ either in coupling or uncoupling or in
any service connected therewith,” yet were held by analogy to come
under the provisions of section 2.
Mr. Justice Sanford, in continuing his opinion, said:
The rule clearly deducible from these four cases is that, on the
one hand, an employee can not recover under the safety appliance act
if the failure to comply with its requirements is not a proximate
cause of the accident which results in his injury, but merely creates
an incidental condition or situation in which the accident, otherwise
caused, results in such injury; and, on the other hand, he can recover
if the failure to comply with the requirements of the act is a proxi
mate cause of the accident, resulting in injury to him while in the
discharge of his duty, although not engaged in an operation in which
the safety appliances are specifically designed to furnish him pro
tection.
At the conclusion of the opinion it was held that the question of
whether the defective grab iron was the proximate cause of the
injury was properly submitted for the jury.
The judgment of the Supreme Court of Missouri was therefore
affirmed.
E mployers’ L ia bilit y — R ailroad C ompanies — F ederal S tat
A ppliances— N egligence— E vidence—N orthcutt v.

ute— S afety

12, 1923) , 214 Pacific R e
1113.—C. S. Northcutt, an employee of the Union
Pacific Railroad, was working on a freight train transporting inter
state freight. At Solomon it was necessary to uncouple and detach
cars from the train. At the time of the injury the plaintiff was en
gaged in uncoupling cars which were equipped with automatic coup
lers operated by a lever. After two unsuccessful attempts he made a
third, then held the lever and signaled the engineer to go forward,
which the engineer did; but the entire .train moved and the car

D avis, Suprem e Court o f Kansas (M a y
porter, page

44915°—25-----9

112

DECISIONS OP COURTS AFFECTING LABOR

which the plaintiff was endeavoring to uncouple struck him, knock
ing him under the wheels and crushing one of his legs so that it
had to be amputated.
There was no evidence of unsafe or defective apparatus, and on
demurrer judgment was given the defendant, from which plaintiff,
Northcutt, appealed. The question for the court to decide was
whether proof of the fact that the couplers and appliances did not
work was evidence that they did not comply with the Federal safety
appliance act, at least sufficient to compel the court to overrule the
demurrer.
The court said that this question was answered by the United
States Supreme Court in Chicago, E. I. & Pac. Ky. v. Brown (229
U. S. 317,33 Sup. Ct. 480, 57 L. Ed. 1204) in this language:
Under the safety appliance acts the failure of a coupler to work
at any time sustains a charge of negligence on the part of the car
rier. (C. B. & Q. E. E. Co. v. United States, 220 U. S. 559.)
Eeference was made to several other cases, and the court held that
“ there was sufficient evidence to compel the court to submit the
issues to a jury for determination.”
The judgment was therefore reversed and a new trial granted.

E mployers’ L iability — E ailroad C ompanies — F ederal S tat
A ppliances— P latform S teps on P assenger C ars—

ute— S afety

H ill v. Minneapolis , S t. P . & S . S . M . R y . Go ., Suprem e Court o f
Minnesota (N ovem ber 7, 1 92 4), 200 N orthwestern R eporter , page
485 .—David B. Hill was employed as a brakeman on an interstate

passenger train. On January 30, 1923, his train was backing out of
a station and he was at the rear of the train to watch the street
crossings. He gave the back-up signal from a crossing, and as the
train backed up he started to get on it, using the steps on the rear
end of the rear coach, and fell and was run over. As a result he lost
his left leg above the knee. It was contended that the lower step
was defective. The trial court directed a verdict for the defendant,
and the plaintiff appealed from an order denying his motion for a
new trial. It was contended that this case came within the Federal
safety appliance act because of the language, “ all cars must be
equipped with secure sill steps” (U. S. Comp. Stat., sec. 8618,
8619), and further because of an order of the Interstate Commerce
Commission dated March 13, 1911. The supreme court construed
the law to be different.
The order provides for sill steps for passenger train cars without
end platforms. It does not provide for sill steps for passenger cars
with platforms. In fact, passenger coaches that carry passengers
are not equipped with sill steps, and there is np occasion or neces-

employees ’ liability

113

sity for such equipment being put thereon. They are attached to
mail cars, express and baggage cars used in passenger trains, but
such cars have no platform. The sill step is a strip of iron in the
nature of a stirrup. They hang down from the sill of the car and
are distinctly different equipment from the passenger steps leading
in and out of a passenger coach, such as the alleged defective step
in this case. Probably Congress considered that such steps were
under such constant use by the public and under such continued
observation of railway employees that it was not necessary to include
them with the rigid requirements of the act. The only step the
act mentions is a sill step. The broken step in this case is not a
sill step. We are therefore brought to the conclusion that the safety
appliance act has no application to the present case.
The court was of the opinion that there was insufficient evidence
to sustain a verdict for the brakeman, and therefore the judgment
in favor of the defendant was affirmed, the court adding :
Such cases must appeal strongly to the wisdom of the lawmakers
for the inclusion of railway employees in a compensation act.

E mployers’ L iability — K ailroad C ompanies— N egligence— S ate
P lace— A ssumption op R isk — Atlantic Coast Line Railroad Co. v.
G ray, Court o f A ppeals o f Georgia (June 1 2 ,1 9 2 3 ), 118 Southeastern
Reporter, page 72.—Solomon Gray, employed by the Atlantic Coast

Line Railroad Co. as a member of a 44steel gang ” to remove rails
from its line of railroad, was directed to help carry a steel rail from
the track and as he was doing so, walking along the dismantled
track, he struck his right foot against a spike left standing in one
of the crossties after the removal of the steel rail. In falling, the
flange of the steel rail cut into the back of his left leg, near the heel,
and completely severed the tendon of Achilles.
Gray brought an action for damages for the injury received, bas
ing the action on grounds of negligence on the part of the company,
pleading the State law as to employers’ liability.
The court of appeals pointed out that the duty of a master to
furnish his servant a safe, place in which to work does not apply
46where the prosecution of the work itself makes the place a danger
ous one,” and—
In the instant case the petition clearly shows that the dangerous
condition of the place where the plaintiff was working was caused
44by the prosecution of the work itself.”
The petition, construed, as it must be, most strongly against the
plaintiff, shows that the injury sued for was caused by the plaintiff
striking his foot against a spike which he himself, and other mem
bers of his gang, had carelessly and negligently left standing in a
crosstie after they had removed the identical rail which he was
carrying when injured, and that the spike was left standing at a
sufficient height above the surface of the crosstie to have been easily

114

DECISIONS OP COURTS AFFECTING LABOR

discovered by anyone having ordinarv eyesight and intelligence,
and that the plaintiff was possessed o f both. Indeed, as the spike
was left standing by the plaintiff himself, it is obvious that he must
have known of its existence and location, and that by the exercise
of the slightest care he could have stepped around it and avoided
being injured.
The judgment for the plaintiff was therefore reversed.

E mployers’ L iability — R ailroad
Circus T rain — C ontract of W

C ompanies— T ransportation
aiver— V alidity — D iereckx

D avis , Appellate Court o f Indiana (Decem ber 2 2 ,1 9 2 2 ), 137 N orth
eastern R eporter, page 685.—Joe

Diereckx, an employee of the Carl
Hagenbeck & Great Wallace Show Co., received an injury while rid
ing on a train which transported the circus. This train was stand
ing on a track and was run into by a “ troop train ” on the 22d of
June, 1918, inflicting serious injuries on the plaintiff.
The circus outfit was being transported on its own train of 49
cars, including flat cars, stock cars, coaches, advertising cars, etc.
The movement was effected by the railroad under a specific contract
to move these cars and the train in accordance with the schedule of
exhibitions of the circus on the payment of a fixed sum. It was
also agreed that the railroad company was not acting as a carrier,
“ either common or special,” but as a hirer to the circus company for
the performance of a specific undertaking; and that the railroad
company was not liable to the circus company or any person in its
employ for injury due to negligence, defects in the railroad, etc.
Diereckx sued the railway company, or rather the Director Gen
eral, then operating the railroads of the United States, judgment
being in favor of the defendant. Diereckx then appealed, but with
the result of an affirmation of the adverse judgment against him.
The effective defense against the suit was the contract of waiver
included in the contract for service above noted. The contention
of the injured man was that this provision was void on the ground
that the ordinary relation of passenger and carrier existed between
him and the railroad. As to this Judge Dausman, who delivered
the opinion of the court, said:
The contract between the railway company and the show company
is not void on the principle of the common law, which, on the ground
of public policy, does not permit a common carrier to contract against
liability for its own negligence. The service required by the show
company in order that its itinerary might be fulfilled was special.
I f its engagements to give exhibitions at the various towns were to
be punctually kept, its outfit must move on a time schedule peculiarly
its own, and must move as an entirety. Its tents and trappings, its
uncommon vehicles, its wild and domestic animals, and its numerous
employees must go together. For these and other reasons it was

EMPLOYERS* LIABILITY

115

impracticable, if not impossible, to use the railway company’s equip
ment or its regular trains. It is apparent, and the important fact is,
that the show company was not seeking transportation for persons
and property in the usual course of the business of a common car
rier by rail. It sought to have its own train of cars moved from
place to place on a time schedule suitable to its own peculiar pur
pose. From the very nature of the service desired, and from the
situation of the parties, it is dear that the property and employees
of the show company were not to be intrusted to the railway com
pany in the manner in which freight and passengers are intrusted
to' a common carrier. The railway company might have refused
absolutely to receive or to haul the cars of the show company; for
the railway company did not hold itself out as engaging in the busi
ness of hauling or moving trains for others. It follows, then, that
the railway company had the right to enter into the contract with
the show company on the conditions therein stated. The contract
is valid; and in the performance thereof the railway company was
not acting as a common carrier. [Cases cited.]
An attempt was made to show that the injury was the result of a
willful and intentional act. It was conceded that if exemption for
such acts had been included in the contract it would to that extent
have been void. The plaintiff was not a trespasser, and even if he
was the company would have owed him the duty of protection
against willful and intentional injury. However, there was nothing
to indicate such a course of conduct, and every reason to assume the
contrary, as the engineer of the troop train would, in self-protection,
have declined so to act if he had had knowledge of the prospective
collision.
The judgment denying damage was therefore affirmed.

E mployers’ L iability — R ate of I nterest on J udgment— C onsti
S tatute— Arizona Eastern Railroad Go. v. H ea d ,

tutionality of

Supreme Court o f A rizona {A p r il 10 , 192J}),
page 1057.—Charles Head obtained a judgment

Pacific R eporter ,
against the Arizona
Eastern Railroad Co. in the sum of $10,500. An appeal was taken
to the supreme court and the judgment was affirmed on condition
that the appellee would remit $6,500. He did so by filing his written
consent, but then filed a motion asking that there be added to the
judgment, as modified, interest of 12 per cent per year from the
date of the filing of the suit up until the time the judgment be
paid. The defendant moved to retax the costs. The Civil Code
of 1913, paragraph 3161, provided, in connection with the liability
of employers, that in actions for damages under the section, if the
defendant appeals and the plaintiff is successful on the appeal, the
judgment shall be increased by the addition of interest at the rate
of 12 per cent per year on the amount of the judgment from the date

116

DECISIONS OF COURTS AFFECTING LABOR

of the filing of the suit until the full amount o f the judgment be
paid. The supreme court held that the requirement to pay 12 per
cent was a violation of amendment 14 of the Federal Constitution:
It is a notorious fact that every plaintiff (in this class of cases)
demands a great deal more than the jury usually awards him; yet
this statute allows interest from the date of the filing of the com
plaint. We have been unable to find any definition of interest that
would reach back that far. Interest is computed upon sums defi
nitely known, or that may be ascertained by arithmetical computa
tion, or upon a sum adjudicated to be due from one person to
another.
We conclude the law is unequal in two respects: (1) In making
the defendant pay double the interest that other judgment debtors
are required to pay; and (2) in permitting the interest to run from
date of filing suit, whereas in all other cases it runs from date of
verdict. It is also unequal in that it undertakes to punish a judg
ment debtor by charging him interest from date* of filing complaint
for not paying what he could not pay, the amount not being known
or knowable until found by judicial process. The burden is not
increased for not settling without a lawsuit, but for not settling at
once and without appealing from a judgment which the defendant
may think unjust and erroneously obtained. This is so even though
the defendant may have offered before suit to settle plaintiff’s claim
for more than the judgment obtained, and the offer have been re
jected. It is true even though it was not possible to settle before
suit because of the exorbitant demands of plaintiff.
It is also apparent that the general law provides for interest
applicable to the judgment in this kind of case as in other cases,
and that therefore the legislature, in selecting this particular class
of judgment debtors, and imposing the penalty of 12 per cent from
the date of filing complaint, was indulging in special legislation.
The supreme court refused the motion of the defendant to retax
the costs because of the large reduction in the judgment. The
motion of the plaintiff for the addition of the 12 per cent interest
was also 'disallowed.
E mployers’ L iability — R elease of O ne of J oint D efendants—
E vidence— M cLaughlin v. C h ief Consolidated M ining G o ., Suprem e
Court o f Utah (D ecem ber 4 , 1923 ), 220 Pacific R eporter , page 726 .—
William C. McLaughlin sued the Chief Consolidated Mining Co.
and its shift boss, James B. Hanley, for injuries received while at
work in the company’s mine, May 25, 1917. The plaintiff was a
mucker, his duties consisting of shoveling into cars the ore and
other material shot down by the miners. He had nothing to do
with the loose rock or earth on the sides of the mine nor with
timbering or inspecting, but merely with the loading of material
and the clearing away from the ground of loose rock, etc. Hanley
was in immediate charge as shift boss, and directed and supervised

employers ’ liability

117

the work. The action for damages was based on injuries received
by falling rock due to the negligence of the employer in securing
by timbering and otherwise the safety of the injured man.
On trial Hanley was found not guilty of the negligence charged,
but the company was assessed damages to the amount of $15,000.
The company appealed, contending that to release its codefendant,
Hanley, had the effect of discharging it, so that no judgment would
lie against it. “ In the complaint each defendant is charged with
negligence. The jury in their verdict in favor of plaintiff and
against the company also found in favor of Hanley.” It also cited
the rule of law that “ if the party who actually causes the injury
is free from all civil and criminal liability therefor, his employer
must also be entitled to a like immunity.”
It was considered by the supreme court, Chief Justice Weber
speaking, that if the sole negligence was that of the servant, and
he was found not liable, then the master could not be held; but “ it
does not follow that the finding in favor of Hanley necessarily
absolved the mining company from liability.”
The details surrounding the accident were then considered, and
the assurance by the general foreman, Nesbitt, who was superior to
Hanley, when plaintiff nofed doubtful conditions, saying: “ Just
continue working; it’s all right.” Summarizing the evidence, and
viewing it “ in the light most favorable to plaintiff, as it must be
on appeal,” it was found sufficient to support the verdict without
considering the alleged negligence of Hanley. This did not mean
that the case could be tried by abandoning one proposition or shift
ing to another; “ but the testimony relating to Nesbitt was both
material and important. The jury may have concluded that Hanley
should not be held for the reason that he was working under
Nesbitt, who was not made a defendant, and that Nesbitt and the
mining company were blamable, and not Hanley.”
Various other phases of evidence and procedure were discussed,
but all were resolved in favor of the decision as rendered by the
court below.
E mployers’ L iability — S afe P lace— A ssumption of B isk —
N egligence— P roximate C ause—R ya n v. L ea , M issouri Court o f
Appeals (A p r il 2, 1 92 3), 21$ Southwestern R eporter , page 685 .—

Frank Eyan, employed as a laborer and a carpenter’s helper, was
working for the defendant and engaged with others in the erection
of a building. Eyan was told to take a sledge hammer and some
nails up a ladder to the second floor of the building. This ladder
was used by all the workmen, and when Eyan reached it there were

118

DECISIONS OF COURTS AFFECTING LABOR

three hod carriers on it, one at the top, one near the top, and one half
way up. Stopping at the side he told another hod carrier to go
ahead, that he was going to rest, to which the hod carrier replied that
he also was going to rest. The foreman, seeing Ryan stopping at the
foot of the ladder, ordered him to go on up, but Ryan, who was
waiting for the ladder to be cleared, said, “ Wait a minute,” where
upon the foreman then ordered him to “ go on and go up that ladder;
there wasn’t no time to kill there; that they were wanting the maul
up there.” Ryan then started up the ladder and was about 10 feet
up when the hod carrier next preceding him, who had just reached
the top, caught the shank of his hod on something, causing the bricks
in the hod to fall upon Ryan.
An action was brought for damages for personal injuries on the
ground that the defendant was negligent in furnishing an unsafe
place in which to work, in adopting an unsafe method in doing the
work, and in ordering plaintiff at the time to climb the ladder.
From an order of the circuit court denying a motion to set aside a
nonsuit the plantiff appealed.
The defendant set up that the plaintiff was contributorily negli
gent; that the risk was assumed; and that the injury was caused by
the negligence of a fellow servant.
1
The Kansas City Court of Appeals held that “ there can be no
question but that the hod carrier who spilled the bricks was plain
tiff’s fellow servant.” The plaintiff did not deny this.
As to the contention that the ladder was “ weak and shaky ” in the
middle, the court said:
So far as the ladder was concerned, it was perfectly safe for the
purpose intended, and, even if it did shake or vibrate in the middle,
that had nothing to do with causing the accident. The fact that the
ladder vibrated in the middle had no bearing, for even if there is a
negligent defect in an appliance furnished, “ such defect must be the
proximate or legal cause of the injury,” else the master is not liable.
The court further held that the master “ is not an insurer of the
safety of the servant,” and—
When the master has used ordinary care to furnish his servant a
reasonably safe place to work and has furnished a reasonably safe
appliance to work, he has a right to trust the servant himself or a
fellow servant to perform the simple duties incident to the servant’s
employment and resting on the servant’s knowledge and skill.
The ladder was considered by the court as being of the proper kind
for the work on hand. Then as to the order of the foreman ordering
the plaintiff to ascend the ladder, the court held that the order itself
was not the proximate cause of the injury, that there was—
No evidence that in directing the plaintiff to go on he was hurry
ing him or that any haste caused the hod carrier to spill the bricks.

em plo yees’

LIABILITY

119

As to the defense of assumption of risk by the plaintiff, the court
said:
So far as concerns the danger from hod carriers allowing bricks to
fall while g;oing up the ladder, plaintiff knew that the hod carrier
was above him and still on the ladder, and if there was any likelihood
of bricks being allowed to fall, plaintiff was as well aware of that as
the foreman. The latter had no reason to anticipate this would hap
pen. But if the plaintiff knew the danger, and, knowing it, preferred
to obey merely from a desire not to incur the foreman’s displeasure,
he assumes the risk.
On the final finding of the court of appeals that the plaintiff “ was
not exposed to an unusual or extra hazard, and that there was no
negligence in giving the order,” the judgment denying recovery was
affirmed.
E mployers’ L iability — S afe P lace— F ellow S ervice— D u ty to
M ake R ules— Tatum v. Crabtree , Supreme Court o f Mississippi
(January 2, 1 9 2 3 ), 94 Southern R eporter , page 449.—W. S. F.
Tatum operated a lumber mill in the State of Mississippi. In the
course of the manufacture of the lumber at the mill it was carried
on roller beds, from which it was thrown down onto movable skids
and lumber ramps. The movable skids were used in rolling the
lumber down the roller bed onto the ramps. They sometimes became
misplaced, necessitating their readjustment.
Amos Crabtree was employed in this part of the mill, and it was
his duty to readjust the skids when necessary. One Boles was a
fellow worker of Crabtree. During the course of the employment,
while Crabtree was engaged in adjusting the skids which had be
come misplaced, a piece of timber came out on the roller bed, and
Boles, without warning Crabtree, turned it onto the ramps. It
rolled down with great force, mashing and breaking Crabtree’s left
leg between the hip and the knee. An action was brought against
the employer for damages because of the injuries received. The
action was based on the negligence of the employer in permitting
the place of work to become unsafe and on the lack of rules gov
erning the actions of the employees. There was a trial, which re
sulted in a verdict in the sum of $3,000. Judgment followed, and
an appeal was taken to the supreme court of the State on the ground
that the evidence did not establish liability and that there should
have been a directed verdict for the employer.
This contention was upheld by the supreme court, this court point
ing out that evidence had been introduced to show that the place
of work was unsafe and that movable skids should have been pro
vided which would not have become misplaced, thereby necessi
tating their readjustment, but the court said that on cross-examina

120

DECISIONS OF COURTS AFFECTING LABOR

tion Crabtree admitted that the kind of skids used was the bestknown method by which the timber could be thrown from the roller
bed onto the ramps.
With regard to the making of rules by an employer for the pro
tection of employees, Judge Anderson, speaking for the court, said:
Was the promulgation of any rule or regulation by appellant for
the safety of appellees required under the facts of this case? A
master is not required by law to promulgate rules governing the per
formance of their duties by his servants simply because the work
about which such servants are engaged is dangerous to life or limb;
it is only where, in addition to being dangerous, the work of the
servants is also complex and the conditions which may arise are
uncertain and obscure. I f the work is simple in character and free
from complexities, the master is under no obligation to adopt rules.
In other words, where the danger is apparent to all, and the duty
of the servants to avoid such danger is manifest, no rules are re
quired.
In the case here appellee and his fellow servant, Boles, were in
full view of each other; each by the exercise of the simplest caution
could have seen what the other was doing; both knew that for the
fellow servant, Boles, to turn the piece of timber down on the ramps
while appellee was replacing the skids was most dangerous to the
latter. We therefore have a case where the place was entirely safe,
provided the fellow servant, Boles, performed his plain duty. On
the contrary, it could only be unsafe if he failed to perform his duty;
in other words, a case where appellee’s place of work was reason
ably safe and he was injured alone through the negligence of his
fellow servant, Boles.
E mployers’ L iability .— S chool D istrict — M anual T raining
P upil — U nguarded M achinery —Sullivan v. School D istrict N o. 1,
Suprem e Court o f W isconsin (Februa ry 6 , 1 9 8 3 ), 191 N orthwestern
R eporter , page 1080.—Daniel Sullivan, a pupil in the schools of the

city of Tomah, Wis., was injured while attending the manual-train
ing department established as a part of the educational system of
the schools of the city. It was alleged that this injury was due to
the failure of the school district to perform its statutory duty to
equip certain saws with proper safety devices. The action was
brought under sections 2394-48 and 2394-49 of the statutes, which
require employers to furnish and use safety devices and safeguards
in order to protect the employees and frequenters of the establish
ments or places in which dangerous machinery is found, and section
2394-72, which penalizes the sale of mechanical devices, etc., which
do not comply with the requirements of the law as to safety provi
sions. Another section, 2394r-4, defines the term “ employer ” and
expressly includes school districts therein.
Judgment was in favor of the defendant school district in the
circuit court of Monroe County, and on appeal this judgment was

employers ’ liability

121

affirmed by the supreme court of the State. Judge Doerfler, after a
brief statement of the facts, said:
It must be conceded that under the common law the defendant, in
establishing and maintaining this department, is performing a
purely governmental function, for which it can not be held liable
for damages sustained by a pupil resulting from the negligence of
the officers, agents, and employees of the district. But plaintiff’s
counsel contends that the aforesaid sections of the statutes have
operated so as to change the common-law doctrine in this State, and
he presents a forcible and lucid argument to support his position.
Judge Doerfler then discussed the history of sections 2394-48 and
2394-49, saying that prior to 1913 they referred solely to employers
of labor and employees and frequenters of their establishments. An
amendment of 1913 extended to owners of public buildings the
obligation “ to so construct, repair, and maintain such public build
ing” that it would be safe, which had been required of employers
as to their places of employment. Cases arising since this enact
ment were cited in which the nonliability of school districts was held
under circumstances involving similar conditions as the present.
It was further pointed out that the attendance of pupils at the
schools is not voluntary but compulsory, and that manual training
is a fixed part of the educational system, so that contact with the
necessary machinery is not optional but comes in the line of the
required school attendance. The opinion continues:
The doctrine of nonliability of a municipality for the performance
of governmental functions is so deeply rooted in our jurisprudence
and has so generally been recognized and accepted for so long a
period of time that in effect it has virtually attained the force of a
statute, and while such doctrine has been recognized for over half
a century no legislature has attempted to nullify it.
Legislation in derogation of the common law should be strictly
construed most favorably to the public corporation and not to the
claimant for damages.
In order to abrogate the common-law doctrine, the intention of the
legislature must be clearly expressed, either in specific language
or in such a manner as to leave no reasonable doubt of its object.
The conclusion was reached that “ a school building is not one of
the public buildings nor is a school district such an owner as comes
under the provisions of sections 2394-48 and 2394-49,” citing Srnka
v. Joint School District No. 3 (174 Wis. 38; 182 N. W. 325). Sec
tion 2394-72 was held not to affect the installation of machinery for
such use as in the present instance, nothing appearing to show that it
was intended “ to annul the doctrine of immunity of a municipal
corporation for a failure to comply with the provisions of any
statutes.”
Plaintiff’s counsel called attention to an opposing citation of the
Supreme Court of Washington (Redfield v* School District, 40

122

DECISIONS OF COURTS AFFECTING LABOR

Wash. 85; 92 Pac. 770) ; “ but that decision was rendered under a
statute of the State of Washington which expressly provided for a
liability against the school district for an injury on account of a
violation of the provisions of the act.” There was here, therefore,
a creation of a liability in express language such as is not found
in the Wisconsin law.
Reference was also made to a New York case. (Herman, by
Guardian, v. Board of Education, 234 N. Y. 196; 137 N. E. 24.)
This case was “ similar to the one at bar,” and the court of appeals
of New York overruled the nonliability doctrine with respect to a
school district and held it liable where a pupil was injured in con
nection with the operation of dangerous machinery. As to this
Judge Doerfler said:
We can not subscribe to the decision in that case without over
ruling former decisions which have become the settled law of this
State and without conflicting with fundamental principles of law
recognized by this court and by courts generally in the Union.
Much that has been said by plaintiff’s counsel in regard to the
logic contained in Folk v. City of Milwaukee (108 Wis. 359, 363, and
364; 84 N. W. 420) is undoubtedly true. The educational system of
this State has undergone great changes since that decision was ren
dered. Manual training is now a constituent part of our system of
education, and instruction in that branch involves the use of me
chanical devices. But whether or not the doctrine of nonliability
of a school district should be changed is a matter which rests with
the wisdom of the legislature and not with the courts, and until
such change is effected by a proper statute we must consider it our
duty to adhere to our former decisions and to pronounce in favor of
the nonliability doctrine.
E mployers’ L iability — S tatutory L imitations — R eliance on
I nvalid S tatute— E ffect of S tatute R eviving R ight of A ction—
Robinson

Robins D r y D ock & R epair C o C o u r t o f A ppeals o f

N ew Y o r k (M a y 2 0 , 1 9 2 4 ) , 144 Northeastern R eporter, page 579 .—

George Robinson was killed while working for the Robins Dry
Dock & Repair Co. on May 20, 1918. This action was taken by the
widow as administratrix in December, 1920, to recover damages
for the death of her husband. The statute under which she sued
prescribed a limitation of two years, and the action was brought
about two and a half years after the death. However, in the inter
val Mrs. Robinson, relying on the Federal amendment to the
Judicial Code, October, 1917, had applied for and procured com
pensation under the compensation law of New York. This was
terminated October 15,1920, after the Supreme Court had held this
attempted amendment invalid, so that the compensation law was not
applicable to the maritime case herein involved. The court below

employers ’ liability

123

had accepted the employer’s contention that the statute was out
lawed under the limiting provision of the State law, and the court
of appeals held that there was nothing in the intervening adoption
and failure of the compensation statute to lead to a suspension of
the running of the statute. The act having been declared uncon
stitutional at a time after the statute of limitations applied, it was
then “too late to enable the plaintiff to begin her action.”
However, the legislature had apparently taken this proposition
under consideration, and after the decision from which this appeal
was taken had enacted a new section to the civil practice act (ch. 392,
1923), permitting suit to be brought within a year after the statute
became effective in cases such as the present one. “ The statute
was enacted solely for the purpose of enabling the party to bring
an action when, without such suit, lapse of time would furnish a
complete defense.” As to whether or not the legislature had power
to revive a right of action already barred was said to be the subject
of conflicting opinions; but the court, 4 to 3, took the position that
it had, Judge Lehman saying that the situation accidentally pro
duced by relying on the apparently valid statute reasonably called
for a remedy; that there was no arbitrary deprivation of any one’s
rights but merely securing to the plaintiff of the rights originally
contemplated with provision for reasonable opportunity to enforce
them. The illusory supposition of an alternate remedy caused a
legal wrong which the legislature now proposes to cure, as it rea
sonably may.
The judgment denying her the right to proceed was therefore
reversed, three judges dissenting.

E mployers’ L iabiility — T hird- party L iabiliity — A ssumption of
R isk — M irnek v. W e st Penn P ow er Go ., Suprem e Court o f P en n syl
vania {January 7, 1924 ), 123 Atlantic R eporter , page 769.—One
Mirnek, who was employed by the Pennsylvania Railroad Co., was
sent by those in charge of his work to help unload a car on a track
near the electric light poles of the defendant company. His work
had to be done on top of the car close to the wires on the electric
light poles. The wires were about breast high to Mirnek as he was
working and must have been apparent to him in the broad daylight.
From some unstated cause Mirnek’s body swayed, his hands came in
contact with the wires, and he was instantly killed. An action was
brought against the defendant power company, and from a judgment
in its favor the plaintiff appealed.
The railroad company had for some time prior to the accident
been proceeding to elevate the tracks of its line, but had not, until
a very short time before, been proceeding very fast. A large force

124

DECISIONS OF COURTS AFFECTING LABOR

of men were put to work without the knowledge of the defendant
company, and the tracks were moved and elevated so .that the nearest
one was only about a foot or a foot and a half from the defendant’s
poles. A short time before the accident in question one of the rail
road employees received a shock when a shovel he was using came
in contact with a wire. The defendant was notified and the defend
ant’s employees promised that the wires would be raised so as to
give sufficient clearance, but this was not done immediately. The
supreme court, in holding that the defendant had no notice of the
danger to the railroad employees, said:
I f the present complaint had been of a defect in the poles or wires,
arising from the manner of construction, or because of an observable
deterioration, or one arising from lapse of time, liability might be
predicated thereon, if injury resulted from such neglect. But where,
as here, that which had been safe became harmful only by reason of
the action of a third party, which defendant was not required to
anticipate, and a sufficient time had not elapsed to charge it with con
structive notice of this particular kind of dangerous condition, actual
notice is required, for a defendant is not obliged to seek for defects
of this character, or to assume they may arise.
The notice given the defendant of the shock received by one of
the railroad employees was to the effect that he had been injured
when a large “ iron bar ” (not shovel) came in contact with the de
fendant’s wires. The defendant promised to raise the wires, but no
statement was made to it that a further elevation in the tracks was
contemplated. The fact of the previous accident was held as not
helping the plaintiff. “ The defendant was not told that the instru
ment which came in contact with the wires was a shovel being used
in unloading a car.” As to the promise of the defendant the supreme
court said:
The promise made by defendant to the railroad company that the
wires would be raised was not made to decedent, nor, so tar as apears, had he any knowledge of it. I f he did know, then he must
ave been acquainted with the fact that their elevation was desired,
because they were dangerous in their then present condition; and, in
that event, having chosen to take the risk, there could be no recovery.
I f he did not know, then the promise was as to him an irrelevant fact,
for he could not have relied on it.
The judgment of the lower court was therefore affirmed.

E mployers’ L iability — W orkmen ’s C ompensation— I nju ry by
I nh aling I mpure A ir— Jellico Goal Go . v. A d k in s , Court o f A p
peals o f K en tu ck y (F ebrua ry IS , 1923), 21fl Southwestern R eporter ,
page 972.—Morgan Adkins, a laborer in a mine of the Jellico Coal

Co., was made ill by inhaling impure air while at work at the mine.
Both parties were under the compensation act of the State, and

employers ’ liability

125

Adkins applied for compensation under that law. The board found
that the illness was produced as claimed, but that the act provides
only for traumatic injuries by accident and for such diseases as are
the natural and direct result of such injuries; further, that the pres
ent injury was not itself a traumatic one nor was it the result of a
traumatic injury, so that the board had no jurisdiction.1
Adkins appealed to the Circuit Court of Whitley County on this
ruling and at the same time sued the employer in an action at com
mon law for injuries due to negligence. The company pleaded this
suit for damages as a bar to his appeal on the compensation decision.
This plea was allowed, but the court affirmed the action of the board
in finding that the latter had no jurisdiction in the present case.
Thereupon the coal company pleaded the proceedings before the
compensation board as a bar to the suit for damages. This plea being
overruled, the company then pleaded the contributory negligence of
the injured workman, but judgment was in his favor in the amount
of $2,250. From that judgment the present appeal was taken to the
court of appeals, resulting in the judgment of the court below being
affirmed, Judge McCandless delivering the opinion of the court.
Following the statement of facts as above, Judge McCandless set
forth the purpose of the compensation act, basing its construction on
the construction placed upon the British statute by the courts of
England. The conclusion was reached that if the legislature had
intended to compensate occupational diseases it would have used
language of that specific intent, which failing, the construction
adopted by the court below was approved. The discussion on this
point concluded as follows:
We therefore conclude that diseases of an employee contracted in
the course of his employment and arising out of it, occasioned by
negligence of the employer and not caused by traumatic injury, are
not compensable under the act, but that for such diseases he may
have an action at common law. Further, that, as the board of com
pensation had no jurisdiction of the claim, a proceeding in that
tribunal did not bar an action at law, and the court did not err in
so holding.
Consideration was then given to the alleged errors in the commonlaw action for damages. Evidence was to the effect that the room
in which Adkins and his “ buddy ” were working was over 100 feet
beyond the nearest break through and that the brattices were in bad
condition, so that the room would not clear of smoke after a shot in
less than half a day, whereas in a properly ventilated mine it should
clear in from 10 to 15 minutes. The condition had previously occa
sioned headache, but Adkins “ did not know that it was dangerous.”*
*An a ct o f 1924 (ch . 7 0 ) a llo w s com p en sa tion w h ere in ju rie s o r d e a th a re due to th e
in h a la tio n o f sm oke o r n o x io u s ga ses in mine®.

126

DECISIONS OF COURTS AFFECTING LABOR

On the day when he suffered the injury for which action was brought
he was compelled to leave work with a severe headache and dizziness
and finally became unconscious, remaining so for several hours. He
was confined to his bed for three months, suffering pains in his chest
and head, and was at the time of the trial “ unable to work and was
permanently afflicted with endocarditis.”
There was some conflict in the medical testimony, but it was in
evidence that breathing impure air and poisonous gases would pro
duce endocarditis and that Adkins’s present condition followed his
sickness at the mine, without further cause being assigned therefor.
“ It seems that this is sufficient evidence of his injuries being proximately produced by such air and gas to submit that question to the
jury.” The statute requires that no working place shall be driven
more than 60 feet beyond a break through without the consent of the
assistant inspector for the district. It is not claimed that such con
sent was given, and this court has held in a number of cases that
“ when the defendant has failed to conform to a statutory duty it
can not rely on the defense of assumed risk.” The circumstances
were also found such as to put in issue the question of contributory
negligence, so that Adkins could not be charged therewith as a matter
of law. The jury’s findings were therefore based on proper instruc
tion and procedure, and the judgment was affirmed.

E mployers’

L ia b il it y — W orkmen ’ s C ompensation — N egli
P roof— Jones v. Princeton Goal C o ., A ppellate

gence— B urden of

Court o f Indiana {A p r il 2 0 ,1 9 2 3 ), 139 Northeastern R eporter, page
202 .—Virgil H. Jones was employed as a motorman to operate an

electric motor used in hauling cars in the mine of the Princeton
Coal Co. Along the various travelways of the mines were electric
wires, charged with 500 volts, suspended from the roof, and it
was necessary that these wires be fully insulated for the safety of
the employees. As Jones was operating the motor along the main
entry of the mine in the course of his employment some debris fell
out of the roof and caused the wires to strike him across the face
and head, the sight of his left eye being thereby destroyed.
Jones brought an action for $10,000. The complaint alleged
negligence in permitting the debris to remain in the roof of the
entry and for failure to insulate the wires completely and to secure
them safely to the roof, and that defendant company had notice
of the conditions in the mine.
Judgment was rendered for the defendant company, and an ap
peal taken, one ground being that the trial court had instructed the
jury that Jones had not shown that the dangerous condition had

employers ’ liability

127

existed for such time as to charge his employer with knowledge
thereof. As to this the appellate court said:
Under the provision of the statute (sec. 8020c, Burns R. S. 1914)
it is clear that the burden of showing want of knowledge of the loose
condition of the rock which fell and injured plaintiff was upon
the defendant, and the absence of evidence of want of such condi
tion, or of evidence that defendant could not have discovered the
fact by ordinarily careful inspection can not inure to its benefit.
A proffered defense had been that the employer was under the
compensation act, as to which the opinion stated:
It is averred in the complaint that more than 30 days before the
injury to appellant, appellee excepted itself from the operation of
the workmen’s compensation act by proper steps to that end, and
at the trial of the cause appellee made proof of this fact. In the
absence of evidence to the contrary, it is presumed that exception
from the operation of the workmen’s compensation act continued
to the time of the injury complained of. I f defendant, after so
excepting itself from the provisions of the act, took steps by which
it undertook to waive its exemption from the operation of such
act, the burden was upon it to prove such fact.
An injured employee can either bring an action at law for dam
ages or make a claim under the compensation law when the em
ployer has not insured his liability or made proof of his financial
ability to pay compensation direct. The court on this point said:
Because of the total absence of evidence that defendant had at the
time of the accident insured its liability, or had furnished the
industrial board satisfactory proof of its financial ability to pay
direct the compensation required, it was plaintiff’s right to have the
jury instructed that defendant was not in a position to claim ex
emption from an action at law, and, having tendered instruction
No. 6 to that effect, it was error for the court to refuse to give it.
The judgment was therefore reversed and a new trial granted.
A petition was then submitted asking for a rehearing, the em
ployer contending that the statute in question did not relate to the
subject of the burden of proof. This the court was ‘‘ unable to
understand,” since the law provides that “ The burden of proving
that such employer did not know of such defect, * * * shall
be on the defendant, but the same may be proved under the general
denial.”
Another complaint was that the court had failed to consider the
effect of the repealing clause of the compensation act, but the court
disposed of this point by stating that:
The compensation act only repeals such acts and parts of acts
as are inconsistent with it, and the section involved is not incon
sistent with the workmen’s compensation act. (Jones v. Prince
ton Coal Co. (June 26,1923,140 N. E. 438.)
The petition for a rehearing was accordingly denied.
44915°—25----- 10

DECISIONS OF COURTS AFFECTING LABOR

128

E mployers’ L iability for A cts of E mployees— “ E mployee ”—
S tatus of P orter in R ailroad T erminal — Atlanta Terminal Go. v.
Low ndes, Court o f A ppeals o f Georgia {A p r il 10, 1923), 117 South
eastern R eporter, page 111.—Mrs. Frank B. Lowndes, a passenger

on the “ West Point Road,” left her train and walked into the build
ing of the Atlanta Terminal Co. A porter in the employ of the
terminal company, who wore a red cap, rolled up a truck and took
her suit case, among others, and carried it into the building. When
she arrived in the building she told the porter, who had her suit case
on the truck, to bring it to her at the entrance or exit of the building.
He did not bring it, and Mrs. Lowndes was unable to find him.
The porter was employed by the Terminal Co. and was permitted
to carry baggage for gratuities. He was not paid for such services by
the company, but was allowed to spend most of his working time
doing such work.
It was contended that the porters were janitors, that their day’s
work was 12 hours, and that they were permitted to wear a red cap
and carry baggage, but that they were not paid for such carrying.
The trial court gave the plaintiff a judgment for the value of the
suit case and contents, which the porter failed to deliver. Upon
the judge of the superior court refusing to sanction a writ of cer
tiorari the defendant excepted and brought error.
The court of appeals affirmed the judgment, saying, in part:
The “ red cap ” porter was employed by the Atlanta Terminal Co.
and permitted by it to offer his services to passengers in the trans
porting of their luggage. The fact that the Atlanta Terminal Co.
did not pay specifically for the services of the porter in rendering
assistance to passengers passing through its gates will not relieve it
from liability when it is shown that such porters are held out to the
public to render service in assisting passengers in handling their
baggage. The mere fact that this agent and servant of the defendant
company receives a gratuity from the passengers will not change the
relationship of the porter.

E mployers’ L iability
D avis

for

A cts

E mployees— J oint L iability —

Groner, Court o f Errors and A ppeals o f N ew Jersey {A p r il

27, 1 9 2 3 ), 120 Atlantic R eporter, page 731.—The

point involved in
this case was the responsibility of the employer and his employee to
a third party injured by the negligence of the latter. Edward Davis
was run down by an automobile owned by the defendant, Groner,
driven at the time by one Kryor. In the Supreme Court of New
Jersey judgment for the plaintiff was affirmed on appeal from the
trial court, and the defendant again appealed, but unsuccessfully.
The opinion by the court of errors and appeals adopted the opinion
of the supreme court as its own, the entire court voting for affirm-

e m p l o y e e s ’ l ia b il it y f o e a c t s o f e m p l o y e e s

129

ance. The contention had been made that the jury should have been
charged in the trial court that they could not find a verdict against
both the employee and his employer, but that if they found for the
plaintiff they must name one of the parties as the responsible de
fendant and find a single verdict against him alone. The court not
only refused this charge but charged the law to be directly the con
trary. This the supreme court approved, finding no error in the
refusal of the charge or in the actual instruction, saying:
In the case of Whalen v . Penn. R. R. (73 N. J. Law, 192, 63 Atl.
993), we held that “ So far as this court is concerned the rule is set
tled that where an injury is caused by the negligence of an agent,
acting in the line of his employment, the action may be joint against
such agent and his principal, or may be separate against either.”
The course pursued by the trial court, which is made the subject of
present complaint, was entirely justified by the decision just referred
to, and is controlling upon us.

E mployers’ L iability for A cts of E mployees— N egligence-*
C ontributory N egligence— I njury to E mployee of I ndependent
C ontractor—F low ers v. Virginian Railway Go ., Supreme Court o f
Appeals o f Virgima (March 15 , 192 3), 116 Southeastern R eporter ,
page 672 .—Boxley, Goodwin, and Bray, independent contractors,

were engaged in widening a tunnel of the Virginian Railway Co.
for the purpose of laying an additional track therein. The office of
the contractors and the shacks of the employees were located along
the tracks about a half a mile west of the tunnel.
John Flowers, plaintiff, was employed by the contractors on work
connected with the tunnel. He quit work on June 18, 1920, about
6 o’clock in the afternoon, and started walking to the office to “ check
out ” for the day. As he approached a curve, walking between the
two main-line tracks, he saw an eastbound freight train coming on
the track to his left. He looked back and did not see or hear any
train on the westbound track, so he moved closer to that track to
allow more clearance for the freight train. Continuing on his way,
he looked back once more, and seeing and hearing nothing he
rounded the curve, when he was struck by the tender of an engine
which came up behind him on the other track, running backwards
and having another engine in tow. The engineer could not see
Flowers because of the curve and the overhang of the tender, though
the fireman could have seen him had he not been engaged in firing
the engine at the time.
The space between the tracks was in general use by the men work
ing at the tunnel and at the place of the accident was the only
walkway which they could reasonably use.

130

DECISIONS OF COURTS AFFECTING LABOR

The accident occurred in West Virginia and plaintiff was taken to
a hospital at Princeton, W. Va. The day he left the hospital a claim
agent of the railroad company paid him $160 and took from him a
release of claim for the injury. Part of the money was used by the
agent, with plaintiff’s approval, in the purchase of some clothing
and a railroad ticket to Jarret, Va. Flowers did not read the re
lease, and testified that he did not understand it to be a release when
he signed it.
The trial court set aside a verdict for the plaintiff and entered a
judgment for the defendant, from which judgment the plaintiff ap
pealed.
That the substantive law of West Virginia was controlling, as the
accident happened in that State, was conceded by counsel, and by
further agreement the West Virginia decisions as officially reported
were used in the trial court as showing the law of the State.
In its order setting aside the verdict the trial court did not show
the grounds on which it was based, though there were three defenses
relied upon—lack of negligence on the part of the defendant, con
tributory and concurring negligence of the plaintiff, and the written
release.
The supreme court of appeals, in determining whether the jury
was warranted in finding that the defendant failed in the discharge
of its duty to the plaintiff, held that the plaintiff was an invitee,
saying:
The testimony of the witnesses along with the maps and photo
graphs in evidence tended materially, if not convincingly, to show,
and the jury might well have believed, that the plaintiff was using
the space between the tracks as a necessary incident to his employ
ment, and it is not denied that the employees and agents of the de
fendant, including in particular the engineer in charge of the engine
which did the damage, had notice of such use by the servants of
Boxley, Goodwin and Bray, and that such servants were particu
larly to be expected along the track at about the hour when this acci
dent occurred. In view of the fact that the plaintiff had to use the
right of way in going to and from his work (a fact which upon this
appeal must be regarded as established), he had as much right to be
where he was at the time of the accident as if his actual employment
had been at that place, and there was therefore as much obligation
on the employees of the defendant to expect and look out for him
there as there would have been to expect and look out for him at
the tunnel during working hours. The facts as they were evidently
found by the jury brought the plaintiff within the category of an
invitee, and placed upon the defendant a duty toward him wholly
different frQm that owing to a bare licensee.
Whether the employees of the defendant used reasonable care to
give adequate warning of the approach of the engine, whether the
release was procured by fraud or imposition, and whether the plain

employers’ liability for acts of

EMPLOYEES

131

tiff was guilty of contributory negligence were held by the supreme
court as questions of fact for the jury to decide.
The instructions to the jury that the railroad track was in itself a
proclamation of danger, that a person moving along it must keep
a constant lookout in both directions, and if such looking or listen
ing does or would warn him of the approach of a train, he must
keep off tjie track until the train has passed, and that if he could
have seen the approaching train in time there could be no recovery
in spite of the defendant’s negligence, were held to be proper by the
supreme court of appeals.
The judgment was reversed and a final judgment rendered in
favor of the plaintiff for the amount of damages fixed by the jury.

E mployers’ L iability for A cts of E mployees— S cope of A u
T hird P erson— R a w ley v. Commonwealth C ot

thority — I njury to

ton Oil C o ., Suprem e Court o f Oklahoma (Decem ber 1 2,1922),+ 211
Pacific R eporter, page 74 *—Sylvester

Brown, a negro, employed as
night watchman by the Commonwealth Cotton Oil Co., loaned two
guns to two minors, sons of officers of the company. The boys shot
one of the guns at some blackbirds, and the bullet, glancing from its
course, hit Milo Rawley, a minor, in the eye.
An action for damages was brought for the boy by his father
against the company and the fathers of the boys. It was contended
that the act of Brown was negligence per se, and that the company
was answerable for his acts in delivering the guns to the boys. It
was further contended that the fathers were answerable for the acts
of their minor sons.
A demurrer to the declaration was sustained in the lower court,
and on appeal the supreme court said:
Neither the fathers of the boys nor the corporation of which they
were officers owned the guns or intrusted the children with them or
knew that either the watchman or the children were in possession of
them. The guns were the private property of the watchman and
were in no way suitable or essential to his employment.
Surely the mere employment of a watchman to guard property
and keep away trespassers does not involve authority to shoot tres
passers nor does it involve authority to loan firearms to children for
any purpose.
The judgment was affirmed.

E mployers’ L iability for A cts of E mployees— S cope o f E m
t o T hird P erson— L ou x v. Harris, Suprem e

ployment— I njury

Court o f Michigan {M arch 6, 1 9 2 4 ), 197 N orthwestern R eporter,
page 494 .—Gerrit

Wagner was in the employ of the defendant, in

132

DECISIONS OF COURTS AFFECTING LABOR

charge as night man. The defendant operated and owned a garage
where persons could rent automobiles to be driven by themselves.
Wagner had instructions not to leave the garage nor help any
renter in trouble, nor drive any automobile. About 11 o’clock in
the evening of September 30, 1922, a man who had rented an auto
mobile telephoned the garage that he was out in the country and
had run out of gas. Wagner asked an employee of the. defendant
at another garage, who happened to be present, to watch the garage,
and drove one of the cars with gasoline for the stranded car. On
returning to the garage he struck and injured the plaintiff. At the
trial the circuit judge directed a verdict for the defendant, apply
ing a statute that provided that the owner of a motor vehicle should
be liable for any injury caused by it, “ provided that the owner shall
not be liable unless said motor vehicle is being driven by the express
or implied consent or knowledge of such owners.” The plaintiff ap
pealed.
The supreme court said that “ this is a common-law action against
a master for the negligence of his servant while about the master’s
business, and, in considering the legal questions, the statute relied
upon in the court below must be laid entirely aside.” The selling of
gasoline was a part of the business. Wagner in selling the gasoline
to the stranded party was in the scope of his employment, but he
“ violated instructions in taking the gasoline to the stranded renter
of one of defendant’s cars.” The court said:
The liability of defendant depends upon whether Wagner, in
taking the gasoline to the renter of one of defendant’s cars was act
ing within the scope of his employment.
He was about his master’s business, but acting in a forbidden
way. Wagner’s disobedience in not notifying the defendant and
in leaving the garage and using the automobfle did not place him
outside the scope of his employment. “ I f the agent commits a tort
in the course of his employment the principal is liable therefor even
though he was ignorant thereof and the agent in committing it ex
ceeded his actual authority or disobeyed the express instructions of
his principal” (2. C. J. 848).
The judgment was reversed on the ground that the case should
have been left to the jury, and a new trial was granted.

E mployers’ L iability for A cts of E mployees— S cope of E m
T hird P erson— D amages— Ousimano v. A .

ployment — I nju r y to

S. Spiess Sales Go ., Suprem e Court o f Louisiana {A p r il 2, 1923 ),
96 Southern R eporter, page 118 .—A chauffeur of A. S. Spiess Sales

Co. was engaged in delivering some goods of the company by auto
mobile and while doing so decided to go to his home for something.
While hurrying back he ran the truck at an excessive and negligent

em ployers’

l ia b il it y

for a c ts

EMPLOYEES

183

rate of speed, and, in order to avoid a collision with another vehicle
in front of him, turned aside and crashed into the front of the plain
tiff’s store, knocking plaintiff down and causing a fracture at the
base of the skull.
The plaintiff sued the defendant in the civil district court, Parish
of New Orleans, for $20,125 as damages for personal injuries, re
covering a verdict and judgment of $12,500. The defendant ap
pealed to the supreme court. The plaintiff’s wife made herself a
party to the suit upon plaintiff’s death.
Mr. Justice St. Paul, on reviewing the record, presented first some
fundamental principles governing the relation of employer and
employee:
It is not every deviation from the direct line of his duties on the
part of an employee that constitutes a turning aside from his
master’s business. Nor does the master’s liability cease merely be
cause the servant is acting contrary to, or even in defiance ox, ex
press instructions from his master. But the servant must have
abandoned and turned aside completely from his business, to engage
in some purpose wholly o f his own, before the master ceases to be
liable for his acts.
We are therefore of opinion that, even if defendant’s chauffeur
had turned aside from defendant’s business for some purpose of
his own, yet at the moment of the accident he had fulfilled his own
purpose, and was then in the act of attending to the business of his
master either by continuing his deliveries or by returning to the
store. And we think his master is liable for his negligence when so
engaged.
As to the damages, the court found that though a fracture is a
very severe injury, yet the plaintiff left the hospital in about 10
days and was, within a month, able to attend to his own affairs and
file suit personally against the defendant. In view of these findings
the court allowed $3,000 for the injury received and $100 for the
cost of replacing a shed destroyed.
The plaintiff died about three and one-half months after the acci
dent, but the court held the evidence insufficient to support the
contention that the fracture of the skull caused the death.
The verdict o f $12,500 awarded by the jury was reduced to $3,100
plus interest and costs, except the cost of appeal, which was charged
to the plaintiff.
E mployers’ L iability for A cts of E mployees— S cope of E mploy
T hird P erson— R eger v. Southern Pacific G o .,

ment — I n ju ry to

(October 13 , 1 9 2 2 ), 210
A. F. Reger, while driving an
automobile, approached a railroad crossing on Fifth Street in the
city o f Chicago and brought the automobile almost to a stop. R. A.

California

D istrict

Court

A p p ea l

Pacific R eporter , page 971 .—Mrs.

134

DECISIONS OP COURTS AFFECTING LABOR

Betz, employed as a baggageman by the defendant, was on the edge
of the street near the main tracks with a baggage truck, and made a
motion which Mrs. Reger understood to be a signal to cross. She
proceeded in low gear until an oncoming train hit her automobile.
Betz testified that he made a gesture to direct her attention to the
approaching train; that he first signaled for her to stop but she
did not see him. Mrs. Reger testified that she “ knew about the time
the trains were supposed to arrive there, and * * * knew this
train was about to arrive because the busses and express wagons
were standing there.”
The defendant contended that Betz was acting without the scope
of his authority and not in the course of his employment. The
court, in holding that the railroad company was not liable for the
negligent signal to cross, said:
The evidence does not show that Betz had authority, either ex
press, implied, or ostensible, to act for the defendant in giving the
signal to cross.
The discharge o f the duties of flagman is beyond the scope of
employment of a baggageman, and a traveler would not be justified
in relying on the signal of such employee from mere knowledge of
the fact that he was a baggageman.
Betz was retained as baggageman after the accident and it was
urged that the retention constituted such a ratification as to make the
defendant liable for the consequences o f the accident. The court
held, however, that the authorities were contrary to this contention.
The judgment in favor of the plaintiff in the lower court was
reversed.
E mployment A gencies— R egulation of F ees— C onstitution
S tatute— E x parte Sm ith, Suprem e Court o f California

ality of

(F ebru ary 2 6 ,1 9 2 4 ) , 223 Pacific R eporter, page 971.—H. B. Smith,
engaged in the business of conducting an employment agency, was
arrested upon a criminal complaint charging him with collecting
and charging fees in excess o f the amounts provided by law. Smith
applied for a writ of habeas corpus, contending that the statute in
question was unconstitutional on the ground that it was in contra
vention of the Constitution o f the United States, and particularly
the due-process clause of the fourteenth amendment and sections 1
and 13 of Article I.
The Legislature o f California in 1903 passed a law which placed
a limitation on the amount o f fees that employment agencies could
charge, and in the case o f Ex parte Dickey (144 Cal. 238,77 Pac. 925)
the court said, in construing it:
“ The petitioner is engaged in a harmless and beneficial business.
As a part o f his 4property5 in that business are the services that he

EMPLOYMENT OFFICES

135

renders in obtaining employment for those seeking it. It is not
compulsory upon anyone to employ him, and who so seeks to avail
himself of his services is at liberty to reject them if the terms of the
contract for compensation are not satisfactory to him. By this act
in question he is arbitrarily stripped of this right of contract and
deprived of his property, and left, in following his vocation and in
pursuit of his livelihood, circumscribed and hampered by a law not
applicable to his fellow men in other occupations. Such legislation
is of the class discussed by Judge Cooley * * * centirely arbi
trary in its character, and restricting the rights, privileges, or legal
capacities of one class of citizens in a manner before unknown to
the law.’ ”
The supreme court quoted the above with approval, as it also did
the decision o f the United States Supreme Court in Adkins v. Chil
dren’s Hospital, wherein a law fixing wages for women and children
in the District of Columbia was held invalid. (261 U. S. 525, 43
Sup. Ct. 394; Bui. No. 344, p. 249.) The same arguments were used
in the Adkins case as in the present case, and the court said:
The question being a Federal one, the decision of the highest
court of the country on the subject is conclusive upon us, even if we
found ourselves without a precedent within our own jurisdiction.
The court, being of the opinion that the law in question was
invalid, ordered the prisoner dismissed.

E mployment O ffices— R egulations of H iring— C onstitution
S tatute— E x parte M esser, Suprem e Court o f Florida

ality of

(February 11, 192b), 99 Southern Reporter, page 330 .—Chapter
9297, Acts of 1923, Laws of Florida, was an act to regulate the em
ployment of laborers who go from one county in Florida to another.
It required any person seeking to employ laborers in one county
of the State to go to another county of the State to perform labor
to make certain statements to the sheriff of the county, giving the
name of the employer of the agent or of the person for whom the
work was to be done, the number of laborers sought, and the place
where they would work. A filing fee of $1 was to accompany the
statement.
L. L. Messer was charged with having secured laborers in Jackson
County to perform labor in Bay County without having complied
with the requirements made, and was found guilty. He therefore
sued out a writ o f habeas corpus charging that the statute in ques
tion was repugnant to provisions of the State and Federal Constitu
tions. This contention was sustained by the supreme court, Judge
West delivering the opinion. The statute was not limited in its
application to any class of labor, but applied to all except common
carriers and their agents. The persons involved were of full age,

136

DECISIONS OF COURTS AFFECTING LABOR

under no legal disability, and the employment contemplated was in
no wise affected with a public interest. The statute was held to
interfere with the liberty of the proposed employer and with the
right o f the workmen, who are free to exchange their services for
money or other forms of property without the limitations proposed
by the statute, 44which conceivably would in many instances be
unreasonable and productive of no benefit.” The statute had no
bearing on the question of hours of labor, payment of wages, safety,
sanitation, or morals.
Concluding, Judge West said:
No such basis can be found for it. It attempts to deal with ordi
nary business relations of individuals which have heretofore been
regarded as free from arbitrary governmental restriction because
of constitutional limitations. It is, we think, clearly within the
inhibitions of the constitutional guaranties of liberty o f persons to
contract, as construed by the cases cited which are binding upon this
court, and therefore transgresses legislative power. It follows that
the judgment o f conviction o f petitioner is void and that he should
be discharged.
F actory R egulations— D elegation of L egislative A uthority —
P ower to R egulate E rection of F ire E scapes— D ockery v. State ,
Court o f Criminal A ppeals o f Texas (January 10 , 1 92 3),
western R eporter , page 508.—The

South

Legislature of Texas had enacted
a law (Acts o f 1917, ch. 140) providing, for the erection o f fire
escapes. Section 1 o f the act made it the duty o f the owner o f cer
tain described buildings to erect “ adequate fire escapes ” ; section 2
defined an adequate fire escape to be 64a concrete stairway, an iron
or steel stairway, an iron or steel straight chute, or an iron or steel
spiral chute, each type o f which may be constructed of other fire
proof material of equal strength, and may be erected on the exterior
or the interior o f any building requiring fire escapes.” It was then
made the duty of the fire marshal and o f the State fire insurance
commission 44to prepare and promulgate minimum specifications
for the construction and erection o f each type o f fire escape au
thorized by this act.” It was further provided th at44no fire escape
shall be approved as complying with the provisions of this act, the
material and erection o f which are not at least the equivalent o f the
minimum specifications promulgated by the State fire marshal as
herein provided.” Section 5 o f the act made it the duty o f the
State fire marshal to serve written notice upon the party whose duty
it was to 'erect such fire escapes, and section 6 penalized any person
who failed, neglected, or refused to comply with the provisions of
the act. Tom Dockery was the owner o f the Savoy Hotel in the
city o f Waco, Tex. The building was within the class covered by

FACTORY REGULATIONS

137

the act, and as it was without adequate fire escapes the fire marshal
served written notice to erect one adequate fire escape, to be built
according to the specifications promulgated by the fire marshal. He
failed to comply with the order. Criminal proceedings were brought
against him and he was convicted of failure to comply with the
provisions of the statute. He appealed from this judgment on the
ground that the law under which he was convicted was unconstitu
tional. The judgment o f conviction was reversed and the injunctive
order dismissed when the court of criminal appeals found itself
“ unable to assent to the proposition that this law conformed to the
constitutional requirements, being firmly convinced that it is ob
noxious thereto, and in conformity with other decisions of this court,
the judgment of the trial court will be reversed.” Judge Lattimore,
speaking for the court in this case, said:
From the above it is plain that no citizen in this State can know
from the statutes what he may place on his building of three or more
stories in the way o f a fire escape; but, on the contrary, the State
fire marshal must prepare and in some way promulgate specifica
tions of each type of fire escape contemplated by the statute above
referred to. The real test to be applied in any given case in de
termining the guilt of one prosecuted for a violation of this law
would necessarily be:
“ Have you a fire escape made in accordance with the specifica
tions promulgated by the State fire marshal? I f you have not, the
law has been violated.”
The meat of this law is not to compel one to have a fire escape,
but that all must have them built according to specifications which
are not written in the law, but which must be prepared and published
by another than the lawmaking body.
The statement of the case seems to make self-evident the proposi
tion that the law under discussion is an attempt to delegate to the
State fire marshal the power to so make, unmake, or change the
element necessary to give effect to this statute, as to render the act
obnoxious to the constitution.
Specifications for fire escapes prepared and promulgated by the
State fire marshal are not written in the law o f the land, and we are
unable to perceive how they can otherwise be entitled to obedience or
citizens be made penally liable for failure to conform to same. * * *
The judgment was therefore reversed and the case dismissed.

F actory R egulations— F ood E stablishments— P hysical E x
of E mployees— C onstitutionality of O rdinance —

am inations

Lan gley

C ity o f Dalias , Court o f Civil Appeals o f Texas (M a y

19 , 1983)) 25% Southwestern R eporter , page 203 .—W.

H. Langley
and others filed a bill against the city of Dallas for an injunction to
restrain the enforcement of an ordinance enacted by the city requir
ing “ all those engaged in operating food products establishments,

138

DECISIONS OP COURTS AFFECTING LABOR

including grocery stores, to have medical examinations of themselves
and their employees made at intervals of not more than six months.”
It was made an offense punishable by fine to employ a person with
an infectious or contagious disease. Both employees and employers
were required to undergo the Wasserman blood test. One o f the
plaintiffs had been arrested under the ordinance and others were
threatened with arrest.
The district court gave judgment for the defendant city and the
plaintiffs appealed, alleging that the ordinance was not authorized
by the charter of the city; that it was not within the police power of
the city; that it discriminated against the plaintiff because “ it does
not include other classes of persons who handle property which the
public acquires and in the acquisition of which the public comes into
contact with those who may have communicable diseases” ; that it
violated the due process of law clauses of the State and Federal Con
stitutions ; and that it was unreasonable in its requirements as to in
spection and medical certificates required.
The court o f civil appeals in upholding the decision of the lower
court said:
The charter grants the city the power “ to enact and enforce ordi
nances necessary to protect health, life, and property, * * * to
protect the lives, health, and property o f the inhabitants of said
city; * * * and it shall have and exercise all powers of munici
pal government not prohibited by this charter, or by some general
law of the State of Texas, or by the provision of the constitution of
Texas.” This charter language is an express delegation of authority
to enact the ordinance. It passes to the municipality the inherent
police power to regulate the sale of food, including the power to
regulate the places of such sales and the power to impose reasonable
restrictions and requirements upon those who personally handle food
products at such places.
The city having been expressly clothed by the legislature with the
power to pass the ordinance, its act in passing it must be accorded
the dignity and respect to be ascribed to any legislative act express
ing the inherent police power of government. The legislative right
and power to regulate the sale of articles of food is well established
and now universally recognized. Such legislation does not transcend
the inhibitions of constitutions against depriving citizens of privi
leges, immunities, and property without due process of law. Persons
and property are subjected to restraints and burdens by it, but the
presumption is that for the restrictions thus imposed they are com
pensated by the benefits and securities derived therefrom by the pub
lic in general. Furtherance of the protection of public health in a
large city is a paramount function of the municipal government,
especially when the municipality receives the authority expressed by
the charter provision above quoted.
The ordinance complained against is not patently arbitrary. In
such circumstances courts can not undertake to determine the ques
tion o f the necessity for the regulations imposed. That question,

FACTORY REGULATIONS

139

under these conditions, is one of legislative policy belonging exclu
sively to the board of commissioners.
The ordinance applies uniformly and without distinction or dis
crimination to all those of the classes affected and regulated by it in
the interest of the public health, and hence does not contravene the
constitutional provision for the equal protection of the law.
The judgment denying the injunction was affirmed.

F actory, E tc., R egulations— P rotection of H ealth of E m
C ar S hed A c t ”— C onstitutionality of S tatute—

ployees— “

Wabash R y . Co.

O 'Bryan, Prosecuting A tto r n e y , United States

District Court, Eastern D istrict o f M issouri (D ecem ber 2 1 ,1 9 2 2 ), 285
Federal R eporter , page 583.—The

General Assembly of Missouri at
its 1917 session enacted a law known as the “ car shed act ” (Laws
1917, p. 323). The act, in effect, required certain employers engaged
in the construction and repair of freight and passenger cars used
within the State of Missouri to provide buildings for the protection
of the safety, health, and comfort of the employees engaged in the
work.
The Wabash Railway Co. was engaged as a common carrier of
both interstate and intrastate commerce in the State of Missouri.
It brought proceedings on the equity side of the United States Dis
trict Court, seeking an injunction against the prosecuting attorney
of Randolph County, Mo., to prevent the enforcement by him against
the company of the provisions of the act. It was contended on be
half of the company that the offense denounced by the act and for
which a penalty is provided was so indefinite, uncertain, and abusive,
that it did not inform the accused of the nature and cause of the
accusation as required by the constitution of Missouri. This con
tention was upheld and the law held unconstitutional and void. In
reaching this conclusion Judge Faris said:
It is obvious that persons against whom the provisions of the act
are aimed might erect a building or buildings for the purposes and
uses of this act, and yet find themselves amenable to prosecution and
liable to be fined a maximum of $500 a day, because in the view of
some court or some jury the building erected did not “ fully protect
all employees engaged in construction and repair work from ex
posure to cold, rain, sleet, snow, and all inclement weather.”
“ What,” said Judge Booth, in a similar case touching a similar
statute, “ is the standard of guilt? When it is fixed, and by whom?
The words ‘ rain and snow 5 are hardly definite enough in a criminal
statute. The words ‘ heat and cold ’ are so elastic in their meaning
as to cover the whole range of temperature. The words 6inclement
weather’ are equally indefinite. What is meant by ‘ inclement
weather ’ ? W ill a fog or mist come within the language ? W ill wind
be included? It is surely necessary that limitations shall be placed
on all of these terms. But who is to supply the limitations, the

140

DECISIONS OF COURTS AFFECTING LABOB

employer, or the employee, or the court, or the jury ? The legislature
is the only proper authority to define a statutory crime against the
State. This j>ower can not be delegated to individuals, to courts, or
juries.” (Chicago, etc., By. Co. v . Bailroad, etc., Com., 280 Fed.
loc. cit. 899.)
So, also, may similar criticism, for that the language is indefinite,
uncertain, and obscure, be directed against the proviso in the act,
which relieves an alleged offender, if so it be, that the repairs may
be done in 30 minutes or less, or in less time than would be required
to move the car needing repairs from the yards to the car repair shed.
Who is to guess as to these things? The ability to guess correctly
make up the difference between guilt and innocence. Bailroad yards
differ in size, and employees differ in ability and in the rapidity
with which they work. The situation of the car needing repairs, or
the location o f it in the train, or in the yards, might be such in some
cases as to require only 5 minutes to move it into the car repair
shed, and under other conditions and situations such removal might
require an hour or more. Yet some one must correctly estimate these
differing elements, under peril of prosecution and fine. I f he guess
right, he is innocent; if he guess wrong, he is guilty of a misde
meanor. But we need go no further into this; the lack of definite
ness and certainty is too plain for argument.
The legal force of such an objection to a criminal statute is settled.
“ Laws which create crime ought to be so explicit that all men sub
ject to their penalties may know what acts it is their duty to avoid.”
(U. S. v. Brewer, 139 U. S. 278, 11 Sup. Ct. 538, 35 L. Ed. 190.)
Also, appositely, it was said by Mr. Justice Brewer, sitting in the
circuit court in the case of Tozer v . U. S. (52 Fed. loc. cit. 919),
that—
“ In order to constitute a crime, the act must be one which the
party is able to know in advance whether it is criminal or not. The
criminality of an act can not depend upon whether a jury may think
it reasonable or unreasonable. There must be some definiteness and
certainty.”
An injunction restraining the enforcement of the act was therefore
authorized, on the submission of a bond conditioned as required by
law.
H ours

tionality of

L abor— C losing T im e of B arber S hops— C onstitu
O rdinance—Faleo v. Atlantic C ity , Suprem e Court o f

77,1 9 2 3 )^ 122 Atlantic R eporter , page 610 .—
Chapter 87 o f the Laws of 1917 of New Jersey authorizes the govern
ing body of any municipality to regulate the opening and closing
of barber shops, and to fix and enforce penalties for violation of
such ordinances as the municipality may make. An ordinance was
adopted by the proper authorities of Atlantic City to fix the hours
of closing at 8 p. m. on week days, except Saturday, when they may
remain open until 9 o’clock. Salvadore Faleo was convicted of
keeping his shop open after 8 o’clock on Thursday in violation
N ew Jersey (N ovem ber

HOURS OF LABOR

141

of this ordinance, and the case was brought to the supreme court
to review his conviction.
The points made were that the ordinance and statute violate the
provisions of the fourteenth amendment as to the right of acquir
ing, possessing, and protecting property; that the ordinance is un
reasonable ; that it is in restraint of trade; and that the provisions
contained therein with regard to licensing shops are invalid, not
being well founded. The court held that barber shops are known
to be the means of spreading disease, and the propriety of licensing
and inspection “ in the interest of the public health can not be
doubted.” The fixing of opening and closing hours “ is also within
police power,” and not in violation of the fourteenth amendment.
Discretion must be exercised in making regulations fixing the time
of closing, and “ the implication is that they shall be reasonable;
but every intendent is in favor of their reasonable character, and
unless plainly unreasonable the court will not interfere.” The fact
that all classes frequent barber shops as public places, and that
sanitary supervision is quite generally regarded as necessary justi
fies the restriction on the hours of closing; since to allow them to
remain open at all hours would render “ adequate inspection in- ,
convenient or difficult, or even impossible, and consequently detri
mental to the public health.”
No merit was discovered in the contention that there was restraint
of trade, since all persons engaged in the same business are subject
to the same restrictions and entitled to the same privileges. The
power to license and regulate shops had already been upheld, and
the contention that the limitations were “ not well founded” was
said to be sufficiently disposed o f by what had already been said.
The judgment of conviction was therefore affirmed with costs.

H ours of L abor— E mployment of W omen — C onstitutionality
S tatute—Radice v. N ew Y o r k , United States Supreme Court

{March 10 , 1921+), ^ Suprem e Court R eporter , page 825 .—A New
York statute of 1917 (ch. 535, sec. 3) forbids the employment of any
female over the age of 16 in connection with any restaurant for
more than 6 days or 54 hours per week, or more than 9 hours in any
one day, or between 10 p. m. and 6 a. m. This law applies to cities
of the first and second class, but exempts employees who are singers
and performers or attendants in ladies’ cloakrooms and parlors, and
also females employed in dining rooms and kitchens of hotels or in
lunch rooms conducted by employers solely for the benefit of their
own employees.

142

DECISIONS OP COURTS AFFECTING LABOR

Joseph Radice was convicted o f violating this statute, and this
conviction was affirmed by the various courts of the State. The case
was then brought to the Supreme Court on a writ o f error, the claim
being that the statute violates the due process clause of the four
teenth amendment by depriving the employer and employee o f their
liberty o f contract, and also that there is an unreasonable and
arbitrary classification in violation of the equal protection clause of
this amendment. Mr. Justice Sutherland, who delivered the opinion
o f the court, sustained the validity o f the statute and affirmed the
coiiviction.
As to the contention that there was an undue interference with the
liberty o f contract it was said:
The answer of the State is that night work o f the kind prohibited
so injuriously affects the physical condition o f women, and so
threatens to impair their peculiar and natural functions, and so
exposes them to the dangers and menaces incident to night life in
large cities, that a statute prohibiting such work falls within the
police power of the State to preserve and promote the public health
and welfare.
The legislature had acted on information before it, and “ courts
must be cautious about reaching a conclusion respecting facts con
trary to that reached by the legislature.” Various cases were cited
in support of the opinion that there were reasonable grounds for the
enactment, and none could be found for a contrary opinion.
As to the question o f classification, it was pointed out that the
limitation to cities of the first and second class was not unusual and
arbitrary in view o f the conditions prevalent in such cities. “ Nor
is there substance in the contention that the exclusion of restaurant
employees o f a special kind, and o f hotels and employees’ lunch
rooms, renders the statute obnoxious to the constitution.” A ll in
the same class o f work are included in the same restraint, so that
there is no “ arbitrary, oppressive, or capricious” classification.
Decisions recognizing comparable classifications were cited: Miller
v. Wilson (236 U. S. 373, 35 Sup. Ct. 342; see Bui. No. 189, p. 133),
regulating the hours o f labor o f women in hotels, but omitting those
of boarding houses, lodging houses, etc.; and Bosley v. McLaughlin
(236 U. S. 385, 35 Sup. Ct. 345; see Bui. No. 189, p. 136), sustaining
a law regulating the hours of labor of women pharmacists and
student nurses in hospitals, but excepting graduate nurses.
In accordance with the foregoing opinions the judgment o f the
court below was affirmed.
H ours

L abor— E mployment of W omen and C hildren— C on
S tatute— State v. Collins, Supreme Court o f
South Dakota {May 1, 1924), 198 Northwestern Reporter, page
of

stitutionality of

HOURS OF SERVICE

143

557 .—The defendant, W. S. Collins, was charged with unlawfully
compelling Josephine Secor to work for more than 10 hours on July
14, 1923, in his cafe. A statute (Rev. Code 1919, sec. 10014, as
amended 1923, ch. 308) provided for a limitation of 10 hours a day
on the employment of any woman, girl, or child under the age of 16
years, and provided a penalty for violations. The defendant
demurred to the complaint, and upon the demurrer being overruled
he appealed.
The sole argument was as to the constitutionality of the statute as
amended and whether the State or Federal Constitution had been
violated. The defendant relied upon the decision in Adkins v. Chil
dren’s Hospital (261 U. S. 525, 43 Sup. Ct. 394; see Bui. No. 344, p.
249), and in particular “ the comments of Mr. Justice Sutherland as
to the effect of the nineteenth amendment upon the status o f women.”
Mr. Chief Justice Taft, in a dissenting opinion to the above case,
said:
The amendment did give women
1’ *’ 1 power and make more
protection will be in
certain that legislative provisions
accord with their interests as they see them. But I don’t think we are
warranted in varying constitutional construction based on physical
differences between men and womep because of the amendment.
The doubts raised by the Adkins case, supra, were held by the
court as having been removed by a more recent unanimous decision
in Radice v. New. York (44 Sup. Ct. 325, 264 U. S. 292, see p. 141).
“ It is made clear by that decision that the Children’s Hospital case
did not overrule the prior ‘ hours o f labor’ decisions. The court
being of the opinion that the law as amended was 6not offensive to
the Federal or State constitutional provisions,” ’ therefore affirmed
the order appealed from.

H ours of S ervice— R ailroads— Y ardmaster D irecting T rain
M ovements— United States v. A tchison , T . & S. F . B y . Co., United
States District Court , N orthern D istrict o f Illinois

( A p r il 19,1921}),
. —This was an action brought by the
United States to recover for six several violations o f the hours of
service law (act of March 4, 1907, 34 StaL L. 1415). This estab
lishes a maximum of 16 hours for certain employees, but provides
that operators, train dispatchers, etc., delivering orders pertaining to
or affecting train movements may not remain on duty more than 9
hours in any 24 at offices and stations continuously operated night
and day.
H.
F. McCollum and one Bray were day and night yardmasters,
respectively, at a yard o f the defendant company, on duty 12 hours
each. It was in evidence that they had both used the telephone to

298 Federal R eporter, page 5 $

44915°—25-----11

144

DECISIONS OF COURTS AFFECTING LABOR

dispatch, report, transmit., receive, and deliver orders pertaining to
or affecting train movements. The rules of the road required all
trains and engines without trains to be under the control and direc
tion of the yardmaster, who was responsible for their prompt move
ment, proper position, and expeditious dispatch. This finding
brought the parties within the terms o f the act, and in the opinion o f
the judge “ this record shows a plain violation o f the statute,” and
it was therefore ordered that judgment be entered against the com
pany, defendant herein, for the sum o f $600 and costs of suit.

H ousing— R egulation

ute— E mergency— B asis of

R ents— C onstitutionality of S tat
L egislation— Chastleton Corporation.

Sinclair, Suprem e Court o f the United States (A p r il 2 1 ,1 9 2 4 ) , 44

Supreme Court R eporter, page 405 .—The

Chastleton Corporation was
the owner o f an apartment house in the city of Washington, D. C.
Under the terms of the act o f Congress of May 22, 1922, extending
the act of October 22, 1919 (ch. 80), the rent commission of the
District of Columbia had reduced the rentals on the apartments in
that building. The order fixing the rents was passed August 7,
1922, the rates fixed to run from#the first of the preceding March.
The corporation sought to have the order set aside, but was refused
relief in the courts o f the District, and appealed to the Supreme
Court. The decree of the lower courts dismissing the complaint was
there reversed, Mr. Justice Holmes delivering the opinion.
The history o f the act was reviewed, and its constitutionality as
upheld in Block v . Hirsh (256 U. S. 135, 41 Sup. Ct. 458; see Bull.
No. 309, p. 135) commented on. The original act o f 1919, which
was limited to expire in two years, was extended to May 22, 1922,
by an act o f 1921, and was further extended at the later date until
May 22, 1924 (42 Stat. 543). What was said in the earlier decision
was in substance repeated—
as to the respect due to a declaration o f this kind by the legislature
so far as it relates to present facts. But even as to them a court is
not at liberty to shut its eyes to an obvious mistake when the validity
of the law depends upon the truth o f what is declared. And still
more obviously, so far as this declaration looks to the future, it can
be no more than prophecy and is liable to be controlled by events. A
law depending upon the existence of an emergency or other certain
state of facts to uphold it may cease to operate if the emergency
ceases or the facts change, even though valid when passed.
The order was retroactive and passed some time after the latest
enactment in May, 1922. “ In our opinion it is open to inquire
whether the exigency still existed upon which the continued opera
tion o f the law depended.” It was said to be a matter o f public

HOUSING

145

knowledge that the Government had considerably diminished its
demand for employees, and other causes leading to a great afflux
of people to Washington “ have lost at least much of their power.”
Extensive activity in building would also add to the ease of finding
homes.
I f about all that remains of war conditions is the increased cost of
living, that is not in itself a justification of the act. Without going
beyond the limits of judicial knowledge, we can say at least that
the plaintiff’s allegations can not be declared offhand to be unmain
tainable, and that it is not impossible that a full development of
the facts will show them to be true. In that case the operation of
the statute would be at an end.
The opinion concludes, after citing a number of cases:
These cases show that the court may ascertain as it sees fit any
fact that is merely a ground for laying down a rule of law, and if
11
1
1 11 J1 Jitute is in force to-day, upon
should be compelled to say
that the law has ceased to operate. Here, however, it is material to
know the condition of Washington at different dates in the past.
Obviously, the facts should be accurately ascertained and carefully
weighed, and this can be done more conveniently in the Supreme
Court or the District than here. The evidence should be preserved
so that if necessary it can be considered by this court.
Subsequent to the foregoing decision a case came to the Court o f Appeals
o f the District of Columbia (Peck v. Fink (November 3, 1924), 52 Wash. Law
Rep. 738) relative to the continued validity of the act in the light of the fore
going decision and the evidence before that court. The facts in the Chastleton
case were cited and quotations made from the opinion therein. It was pointed
out that the case was remanded to the Supreme Court of the District for
further ascertainment o f facts, because, “ as we read the opinion, although
it judicially knew that the emergency giving rise to the enactment of the leg
islation had ceased to exist on the date o f the opinion, or April 21, 1924, it was
not prepared, without evidence, to declare such emergency at an end on the
date of the order of the Rent Commission, entered August 7, 1922.”
The order in question in the instant case was entered at a still later date
“ than this authoritative declaration by the Supreme Court” ; and though
Congress by an act o f May 17, 1924, “ purported to continue the legislation in
force for still another year, there was no constitutional basis for the legisla
tion, the Supreme Court having declared the emergency at an end upon facts
judicially known to the court.” Nothing remained but a “ plain duty to apply
it [the decision above] in the case before us.” Without adding to the reason
ing of the Supreme Court, “ we may say with propriety that if the emergency
in question is not at an end, then this legislation may be extended indefinitely,
and that which was ‘ intended to meet a temporary emergency* may become
permanent law.** The judgment in favor o f the findings o f the commission was
therefore reversed.
Subsequent proceedings in the courts have indicated entire abandonment of
the law as unconstitutional in accordance with the above findings.

146

DECISIONS OF COURTS AFFECTING LABOR

I nterference w it h E mployment — C it y O rdinance— P rohibi
P eddlers—Real Silk H o sie ry M ills v. C ity o f Richm ond,

tion on

United States D istrict Court, N orthern D istrict o f California { A p ril
24, 1 9 2 4 ), 290 Federal R eporter, page 126.—This

case is of interest
only as to involves the right of a municipal corporation to restrict
certain classes of occupations.
The city of Richmond, Calif., had enacted an ordinance imposing
penalties on peddlers and solicitors who ring or knock at the doors of
dwellings whereon is posted a sign “ no peddlers.” The plaintiff
company disposes o f its goods through solicitors who canvass for
orders, and the city threatened to enforce the penalties of its or
dinance against these solicitors. As the goods were to be transported
from another State, the question of interference with interstate com
merce was also involved.
Judge Bourquin, who delivered the opinion in the case, stated the
facts, and continuing said:

The ordinance aims at prevention of trespass, annoyance, conflict,
disorder, and breach of the peace, otherwise of reasonable apprehen
sion. In principle it is legitimate exercise of local self-government
or police power, in no wise encroaching upon interstate commerce;
for the latter does not license the offensive conduct by the ordinance
denounced nor confer immunity against consequent punishment.
But though the ordinance, even as the householder’s sign, recog
nizes the legal and popular distinction between peddlers and solici
tors or agents, it undertakes to extend its ban beyond the house
holders. It would visit the consequence of trespass upon solicitors
guiltless of any offending. A householder’s ban upon peddlers is
none to solicitors, and so the latter may there lawfully enter and
solicit contracts, though the former are excluded from trade. Where
the householder permits solicitors, the city can not forbid.
Hence application of the ordinance to plaintiff’s solicitors is un
warranted interference with interstate commerce and deprivation of
liberty of contract and of property without due process of law.
An injunction was accordingly granted to restrain the enforcement
of the ordinance until final hearing could be had.

I nterference w it h E mploym ent — C onspiracy — I njunction —
R ival T heaters—Peekskill Theatre {I n c .), v. A dvance Theatrical
C o., Suprem e Court o f N ew Y o r k , Appellate D ivision
1 9 2 3 ), 200 N ew Y o r k Supplem ent, page 726.—The

{J u ly 6,

instant case is
not one involving relations of employers and employees, but the
principles applied are identical to those made use of in the adjust
ment of labor disputes.
The Peekskill Theater was constructed and operated as a movingpicture house. The proprietors had been warned by certain of the
defendants before the building was erected that they would have

INTERFERENCE WITH EMPLOYMENT

147

trouble in getting films to exhibit. They went ahead with the
work, and made various contracts with producing firms for films,
but these contracts were broken through the activities of certain
defendants, who were officers of Loews (Inc.).
The defendant company and others associated with it had been
successful in the court below in securing a denial of the plaintiff’s
motion for an injunction, but the appellate division reversed this
finding, and ordered an injunction to issue, Judge Smith saying
that “ from the papers the conclusion is inevitable that it was the
determined effort of these men to prevent the plaintiff from securing pictures and ruining its business.”
Without discussing at length the legal principles governing the
case, the court said:
The distinction between lawful and unlawful competition and the
resultant interference with another’s business is not in any way ob
scure. The motive of the defendants is clearly shown, both by their
acts and by their statements, that they would ruin the plaintiff’s
business and not allow the plaintiff to procure films for exhibition.
That the defendants represent powerful interests aggravates rather
than mitigates their unlawful acts. Both by the common law and by
our statute a party is allowed free competition unhampered by the
wrongful interference of third parties, even for the purpose of
securing greater profit to themselves. That individuals may com
bine for the betterment of their own interests is unquestioned, as
long as they confine their acts to those that are lawful, and as
long as they do not interfere with the legal rights of a party against
whom their action is aimed. There is no statutory or common law
that permits a combination of parties, either capitalists or laborers,
to effect an illegal purpose, even for the betterment of their own con
ditions. It may be that, as against these combinations, laborers have
less protection except through combinations; but even then, they are
given no immunity to infringe the rights of others, that either the
common law or the statutes have granted them. It is claimed that
there is no malice here shown, but only a desire to protect the de
fendants’ interest by all their acts of which complaint is made;
but the law condemns all acts trespassing upon the legal rights of
others as malicious, as a matter of law, and will grant reparation in
damages, or an injunction where those damages are not capable of
specific measurement. This interference must be stopped, and the
courts will have no difficulty either by injunction or, if necessary, by
the administration of the criminal law, to prevent these unlawful
acts. The courts have little patience with those who trifle with clear
legal rights o f another.
Judge Smith then added that the injunction should restrain all
parties from inducing violation of any contracts made between the
plaintiff and any film producers; it should also specifically restrain
Loews (In c.), who operate a rival theater in the city, from influenc
ing producers to allow the Peekskill Theater only such films as
Loews may not need in their own exhibits, and restrain the other de

148

DECISIONS OF COURTS AFFECTING LABOR

fendants from refusing to sell films to the plaintiff for the purpose
of boycotting and preventing it from doing business, or otherwise
conspiring with the codefendants or actors to deprive the plaintiff of
the necessary films for its business.

I nterference w it h E mployment — S e a m e n — R egistration —
R equirement of T aking T urns— I njunction —Street v. Shipow n
ers’ A ssn . o f the Pacific Coast, United States Circuit Court o f A p
peals, Ninth Circuit {June 9 , 1 9 2 2 9 9 Federal R eporter, page 5 .—

Alfred Street represented himself as a member of the International
Seamen’s Union of America, with over 10,000 members working as
seamen. On account of the large number of his associates it was
impossible to join them all in his complaint, so “ he brings this
action on his own behalf and in behalf of all such seamen.”
Street’s complaint was against the Shipowners’ Association o f the
Pacific Coast and the Pacific American Steamship Association, which
had practically complete control of vessels engaging in commerce
between ports on the Pacific coast and other American and foreign
ports. These associations, it was alleged, had combined to establish
a system o f registration o f all seamen, by which each man was
registered and given a number and required to take turns for em
ployment according to such number. This registration and the
number were entered in a book held by the seaman until he was
engaged, when he would deliver it to the master of the vessel.
“ Upon his discharge he receives it back, so that it operates as a
certificate of discharge as well.” In the book is a record of the
man’s place of birth, age, height, weight, appearance, rating, expe
rience, etc. It was complained that these regulations prevent wellqualified and well-known seamen from obtaining employment at
once, that they are regulations of commerce in violation of the Con
stitution of the United States, and that they interfere with the ship
ping commissioner’s act and its amendments. Plaintiff refused to
engage in commerce under such a system and is suffering loss and
damage because he can not obtain employment without obeying the
rules and regulations laid down, against which an injunction is
sought.
The defendant moved to dismiss the bill o f complaint on the
ground that it did not state facts sufficient to constitute a cause of
action. This motion was granted in the district court, and an ap
peal was taken to the Supreme Court, which transferred the cause
to the circuit court of appeals as not being entitled to a hearing in
the Supreme Court because not meeting the requirements of the
Judicial Code in respect o f appeals and writs o f error from the dis
trict court directly to the Supreme Court.

LABOR ORGANIZATIONS

149

The court below expressed the view that “ the shipping commis
sioner’s act neither provides nor contemplates compulsory service
or employment,” also that the antitrust law had not been violated,
nor had the plaintiff shown himself entitled to the relief prayed,
nor did he connect himself with the rule o f practice o f which he
complains.
In passing upon the various points Circuit Judge Morrow, speak
ing for the court, found that the refusal of the Supreme Court to
exercise jurisdiction was a determination that no constitutional
question was involved and that the regulations of the associations
could not be regarded as infringing on the powers of Congress or
encroaching on the duties o f the shipping commission or violating
the antitrust law. I f there was any justiciable injury, the circuit
court of appeals must discover the grounds for its relief in some
manner which the judgment of the district court did not recognize.
Judge Morrow found in the practice of registration and taking num
bers to determine the turns of employment nothing unfair nor dis
criminatory, but rather a regulation that “ seems to be fair and
reasonable in the interest of a square deal.” Voters are registered,
patrons of a post office or theater stand in line and take their turns,
and “ we are not aware that any court has held that any citizen has
suffered a justiciable injury by reason o f such a regulation.” The
system appears to be “ well adapted for the regulation o f the busi
ness of shipping seamen.” The services of the shipping commis
sioner under the shipping commissioner’s act are not exclusive; but
bureaus may be maintained by either seamen or employers inde
pendently “ and may render material assistance without impinging
on either the letter or the spirit of the statute.”
No sufficient ground for injunction appears, and the decree below
in favor of defendant associations was accordingly affirmed.

L abor

O rganizations— A ctions— J urisdiction— W ages— D eter
C ourt of I ndustrial E elations— Local Union N o.

mination by

I[97 o f Amalgam ated Association o f Street & Electric Railw ay E m
ployees o f Am erica

Joplin & P. R . Co., United States Circuit

Court o f A ppeals , E ighth Circuit {M arch 3 , 1 9 2 3 ) , 287 Federal R e
porter, page JflS.—The Court of Industrial Eelations of Kansas,

after a hearing of a wage controversy between the railway employees’
union and the employing railway company, rendered a decision and
order on April 23, 1920, fixing a minimum wage scale that “ should
be put in force and effect in May 1, 1920, and should continue in force
for a period of six months thereafter.” The service of the summons
in the case was on March 3, 1920, and the plaintiffs, officers of the
union, instituted this action in the State court to recover the differ

150

DECISIONS OF COURTS AFFECTING LABOR

ence in the wages of the members employees paid between March 3
and May 1,1920, and the wages which would have been paid had the
wage scale set by the court been in effect during that period. No
claim exceeded $100 but the aggregate amounted to $7,271.47, and
as all were based on the same ground the suit was brought on behalf
of the union members collectively. Action by the officers of the
union on behalf of the membership was under the express authoriza
tion of the State law creating the court of industrial relations.
The defendants, on the ground that the amount sued for was in
excess of $3,000, had the case transferred to the Federal court, and a
motion by the plaintiffs to remand the cause to the State court was
overruled, and a decision rendered, adverse to the claims of the plain
tiffs. They then sued out a writ of error, bringing the case to the
court of appeals. The court o f appeals sustained the district court
on the point of jurisdiction on the ground that as long as the amount
in controversy in a claim between citizens of different States ex
ceeded $3,000 that was a sufficient basis. “ When two or more plain
tiffs having separate and distinct demands unite for convenience and
economy in a single suit, it is essential that the demand of each be
o f the requisite jurisdictional amount.” Here the plaintiffs did not
have separate and distinct demands, but rather a common and un
divided interest.
The plaintiffs based the suit upon the order of the court o f in
dustrial relations alone, contending that the true construction of the
order was that the wage scale took effect on March 3, 1920; that the
statute fixed the time when the minimum wage scale should take
effect and it was unnecessary for the court of industrial relations to
adjudge that time; that—
Because, in view of the provision of the statute that the minimum
wage scale fixed by the court of industrial relations should take
effect from the time of the service of the summons, that part of its
order which fixed the time for it to take effect later was void.
The court of appeals held that—
The clear and plain terms of the finding and order of that [in
dustrial] court, leave no doubt that it intended to and did adjudge
that such scale should not take effect before May 1, 1920. * * *
It was necessary for that court to determine how long—during what
time—the minimum wage scale it prescribed was reasonable and just,
and should be in effect, and it never determined or adjudged that it
was reasonable or just during any time anterior to May 1, 1920, but
evidently determined and adjudged that it was not so.
Therefore, the labor union could not recover the increased rate of
wages for the time between the service of summons and the date of
the new scale of wages, and the finding of the court below to that
effect was affirmed.

LABOR ORGANIZATIONS

151

L abor O rganizations— A ttempt to F orce L ocal to S urrender
C harter— I njunction — E ight of U nion to A ppeal to C ourt—
Barbrick v. H uddell, Suprem e Judicial Court o f Massachusetts
{M a y 28, 1 9 2 8 ), 189 Northeastern R eporter, page 629.—Local No.

263 of the International Union of Steam and Operating Engineers
was organized in 1904. It was prosperous, was on a sound financial
basis, owned considerable property, and was recognized by em
ployers as being an organization where competent engineers might
be secured. Local No. 664 had not met with much success, and
proposals had been made to consolidate the two locals. Both locals
agreed to consolidate on condition that Local No. 664 should return
its charter to the international office, and that the money on hand
and due should become the property of Local No. 263, the entire
membership of Local No. 664 to be admitted to Local No. 263. The
defendants were officers and members of the general executive board
of the international union with the exception of one Miller. The
executive board was advised of the plan of the locals, and in reply
the general secretary informed Local No. 263 that the executive
board favored the plan but that consolidation could take place only
upon the relinquishing of both charters and the issuance of a new
one. Local No. 263 refused to accept the terms suggested but Local
No. 664 agreed to accept them. Later all but three members of
Local No. 664 transferred their membership to Local No. 263.
The defendant, Huddell, on succeeding to the office of general
president o f the international organization, ordered the charters to
be taken up, and on receiving no action by Local No. 263, reported
to the executive board that he intended to revoke its charter. No
formal vote was taken by the board, though assent was made to the
statement of the president. Huddell notified several unions that
Local No. 263 was no longer a member o f the international union.
The officers o f Local No. 263 brought an injunction to restrain
defendants from taking the charter, books, papers, or other property
of the local, or revoking the charter and issuing a new charter.
The defendants in turn sought to enjoin the plaintiffs here from
further resisting the orders o f the general executive board of the
international union. The suits were tried together before a master
and on a decision favoring the plaintiff union in both, the defendants
appealed, the action o f the court below being affirmed.
The court on reviewing the case stated that in its opinion:
The general executive board had no power to revoke the charter
of Local 263, except as authorized by the constitution of the organi
zation. We have been unable to find that any express authority is
given to the general executive board to order an amalgamation of
two or more local unions, or to revoke the charter of a local union,
except the authority given by article 11, section 3; and in taking the
charter from Local 263 the executive board did not act under this

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section and did not revoke the charter because of a violation of the
constitution or rules of the union. The fact that under article 11,
section 1, all the executive powers o f the international union are
vested in the general executive board, did not clothe that board with
the authority to revoke the charter o f Local 263 for the purpose of
amalgamating the two unions. Even if the perfecting of this
amalgamation could be considered an executive power, it was ad
mitted, according to the master’s report, that local unions could not
amalgamate without consent of the general executive board, and
that this board could not impose an amalgamation on any local union
without its consent. Under these circumstances the general executive
board had no lawful power to deprive Local 263 of its charter in
order to bring about the combination of Local 263 with Local 664
under a new charter. The action o f the board in revoking the char
ter was void.
Something more than mere membership is embraced in this case.
It involves the life o f the organization known as Local 263, with its
funds and property, its associations and reputation, and all the rights
and privileges of its members. The plaintiffs were members of this
union, and they desired to continue in such membership. Their right
to labor is property, “ and as such merits protection. The right to
make it available is next in importance to the rights of life and lib
erty.” Their right to enjoy whatever advantages membership in this
union would bring them in their calling could not be taken away by
the unlawful action of the general executive board. In our opinion
property rights are involved and equity will assume jurisdiction to
protect them.
The general rule is that remedies within the organization must be
sought before appealing to the courts. The proceedings within the
union for revocation of the charter of the plaintiffs were void, being
without authority under the constitution. Any appeal within the
association must have been to the general executive board. Under
the circumstances an appeal would have been futile. The law does
not require a vain form.
It was charged that the union had failed to comply in all respects
with the procedure prescribed by the constitution, so that it was not
in a position to ask relief in equity, as it did not appear “ with clean
hands.” On this point the court said:
The plaintiffs are not to be deprived of relief because they uninten
tionally violated some of the rules o f the organization when these
acts had no immediate and necessary relation to the equity sued for.
The principle that one must come into equity with clean hands is
not applicable under the facts found in this case.
The defendant objected to the finding of the master that the suit
was properly authorized. The local union had voted its executive
committee full power to act and after suit was brought a confidence
vote was given the board. This was held sufficient to support the
finding that the suit was properly authorized.
The other points in the case involved only questions of evidence so
were not included herein. The decisions appealed from were there
fore affirmed.

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153

L abor O rganizations— C ollective A greements— E nforcement—
I njunction — G oyette v. G . V . W atson G o ., Suprem e Judicial Court
o f Massachusetts (June 11, 1 92 3), llfi Northeastern R eporter , page
285 .— The Supreme Judicial Court of Massachusetts had before it

three cases in which the question involved was the nature and en
forcement of agreements between employers and labor organizations.
The cases were combined and disposed of at one time, although each
represented different parties and an independent set of circum
stances. In the entitling case, Goyette v. C. Y . W atson Co., the
general business agent of the Shoeworkers’ Protective Union sought
an accounting and the enforcement of an agreement between the com
pany named and the union under the terms of a contract entered
into on July 19, 1920. This fixed the prices to be paid for different
processes, and contained an agreement to employ only members of
the union if available; if they were not available, others than mem
bers might be employed subject to discharge when members of the
union became available.
The term of this contract was one year, there being a verbal agree
ment that it should be continued until a new contract was consum
mated. No subsequent agreement was ever made, and the master
to whom the subject was referred found that such compliance with
the old contract as existed “ was done as a matter of practice and
not as a matter of agreement, and no implied contract has been
established.”
The company in January, 1922, closed its factory in Haverhill
because of local labor troubles and moved to Lowell, where it opened
a nonunion shop, but Goyette procured an interlocutory decree en
joining the company until A pril 15, 1922, from having or employ
ing any nonunion shoe operatives in its factory if member em
ployees were available, unless the union assented in writing to such
hiring. The company therefore closed its factory and asked for a
sufficient number o f members of the union to operate the stitching
room. A s these could not be supplied, the union finally gave writ
ten permission to employ nonunion workers on permanent contracts
where union members were not available. Being thus obliged to
employ nonunion workers, the employer refused to permit the agent
of the union to inspect the stitching room. A fter the injunction
expired, the company moved its cutting room to Haverhill and em
ployed its nonunion operatives without reference to the union’s
demands.
This was purely an action brought by the union to secure the
enforcement o f an alleged collective agreement, and since the claim
for damages had been waived the only remedy by injunction would
be the issuance of a mandate compelling the employer to employ

154 .

DECISIONS OP COURTS AFFECTING LABOR

only stitchers who were members of the union; but as the master
had found that the union admitted its inability to furnish stitchers,
the court held that" such mandate should not issue. The question
whether in any event specific performance of such a contract would
be decreed under the circumstances was passed by as not necessary
to be decided.
In the second case (Lovely et al. v. Gill et al.) the Boot and Shoe
Workers’ Union had a contract with George Newburgh and others,
doing business as the Triangle Shoe Co. This contract contained
the usual provision as to employing only members o f the union,
and its repudiation was being sought by a rival union, the Shoe
Workers’ Protective Union, which desired to displace the plaintiff
union and secure all the work for itself.
The purpose of the rival union was admitted, and the action was
between the two unions rather than against the employer, though
the purpose of the action was, in form, to restrain the employer from
violating and terminating its contract with the plaintiff union. The
rival union admitted that while the contract of which it had knowl
edge was in force it undertook to ruin the union of plaintiffs by
threats of intimidation, inducing, and coercing the company to re
pudiate its contract. Judge Braley, speaking for the court, declared
that in so doing the rival union was not acting under an alleged
right to strike to protect its own individual or economic interests,
but was endeavoring to destroy the individual rights o f fellow
workmen unless they submitted to its dictation and control. Part
of the contract was an agreement to furnish the company a stamp
or label indicating the fact that its shoes were made by the labor
o f members of the Boot and Shoe Workers’ Union. It was con
tended that the contract as drawn created a monopoly and was also
in violation of the Federal antitrust law. The judge held that as
the matter stood there was no “ indication of a Federal question
being involved or that the contract is in restraint of trade.” The
union label is not a trading stamp; it is merely a mark “ showing
that products bearing the stamp are made by the manual labor of
members of the plaintiff’s union.” Its use would not suppress com
petition nor tend to control the manufacture o f goods.
So far as the agreement provided for the exclusive employment
o f union labor, the cases already decided are in favor of its validity
as against the contention that it tends to foster a monopoly or vio
late the antitrust law; nor does the provision relating to arbitra
tion o f labor disputes render it invalid. The fact that some mem
bers of the union left the employment of the company under the
pressure o f the rival union’s activities and of the induced coopera
tion of the employer therewith does not invalidate the proceedings

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155

in the present case even though such deserting members are included
among the parties plaintiff. The contract was for the benefit of
all members, and it was held that those desiring its benefits should
not be deprived thereof by reason of the effectiveness of the activi
ties of the rival union in procuring the abandonment of their work
by some o f the employees for the purpose of accomplishing an abro
gation of the contract. The demurrer to the bill of complaint was
therefore overruled.

In the third case (Knipe Bros (Inc.) v. White et al.) the plaintiff
sought to enjoin members of both the unions mentioned in the pre
vious cases to prevent their interference with its business by threats,
parades, picketing, or other acts of intimidation.
This company, like the employer in the foregoing case, had a
contract with the members o f the Boot & Shoe Workers’ Union for
the use of the union stamp and the employment of only members
of the union in good standing. This contract was observed for
more than five years, but on October 4, 1922, it appeared that the
employer had in his factory 180 members of the Boot & Shoe
Workers’ Protective Union. In an effort to secure control of the
situation the latter union decided to call out its members and picket
the factory. These men had been employed because of the inability
of the contracting union to furnish enough workers, and on the
decision to strike they left the factory without notice, and some of
them joined the picketers. The trial judge found this action to be
“ in pursuance of a conspiracy to induce by picketing those who are
about to enter the plaintiff’s employment to refrain from doing so,
and to compel or induce those remaining in its employ to leave and
join the Shoe Workers’ Protective Union.”
This picketing was continued for some months and led to the
abandonment of work by about 35 of the plaintiff’s employees, who
joined the antagonistic union and assisted in maintaining the pickets.
The contract was found not to be one which established a monopoly,
and, as its terms were known to the interfering picketers, there was
a clear attempt to procure the violation of a contract, with a purpose
to compel the hiring of only members of the rival union and the
exclusion of all others. “ It has been repeatedly decided that the
acts of the defendant were unjustifiable.” This case was said to
involve no question of specific performance, nor was any claim for
damages pressed. The decree issued by the court below was
affirmed, though the prohibition of intimidation was restricted by
inserting the words, “ as alleged in the bill.” The Shoe Workers’
Protective Union was therefore restrained from the use of threats,
patrols, picketing, or acts of intimidation “ as alleged in the bill ” ;
also from interfering with employees or prospective employees and

156

DECISIONS OF COURTS AFFECTING LABOR

otherwise combining or conspiring to prevent entrance upon or
continuance in the previous employment, thus protecting the agree
ment made by the employer and the Boot & Shoe Workers’ Union.

L abor O rganizations— C ollective A greements— E nforcement
of R ules— M ossham er v. W abash R y . C o ., Suprem e Court o f M ich i
gan (Decem ber 29, 1 92 2), 191 N orthwestern Reporter, page 210 .—

Jesse Mosshamer was a locomotive engineer in the yard of the
Wabash Railway Co. at its Detroit terminal. He was in a class
known as “ yard fixtures,” and sought by a bill for injunction
to restrain the company from violating certain claimed seniority
rights. The company conducted an open shop, but maintained
working agreements with the Brotherhood of Locomotive Engineers
and the Brotherhood o f Locomotive Firemen and Enginemen.
After the first action the bill was amended so as to make these
organizations defendants together with the railway company, and
also four other engineers as plaintiffs. These latter were members
of the brotherhoods, but Mosshamer was not. The bill was dis
missed as to him, and he made no appeal. Injunctive relief was
granted in favor of the four other plaintiff engineers against the
company and both brotherhoods, and all appealed.
Seniority rights are important to the men, as they permit the
men to choose their jobs and to secure employment in times of re
duced operations as against members below them in rank. There
had been considerable friction between the so-called “ yard fixtures ”
and the engineers who operated trains on the road. The latter are,
as a class, apparently superior to the yardmen, and in case of reduced
operations claim the right to do yard work, to the displacement of
the “ yard fixtures.” Continuous disputes developed by this sys
tem were finally referred by agreement of the membership to the
chief executives o f the two brotherhoods, who established certain
orders, to which the plaintiffs took exception.
On appeal to the supreme court, it was held that while the rail
way company had certain agreements with the brotherhoods recog
nizing the unions, there was no contract which required the em
ployment of any number o f men for any particular time, or even
“ to employ the plaintiffs for a single day.” It was not necessary
to consider whether or not the brotherhoods as agents of the mem
bers had made a binding agreement for their benefit, since, what
ever the facts might be, a court of equity may not by mandatory
injunction direct the employment of one man in preference to
another or require the discharge of a workman that another may
be supplied with opportunity to labor. “ I f A has a contract with

LABOR ORGANIZATIONS

157

the employer, which is breached, the court of law is always open
to him to recover the damages occasioned him by its breach.” But a
court of equity may not interfere and compel a displacement and
substitution.
This disposed of the case against the company, the bill against
which “ should have been dismissed.” A s to the brotherhoods, it
was shown by correspondence and resolutions that the questions in
volved had been duly submitted to the executive officers by the action
of the unions themselves, and the railway company had acquiesced
in that ruling, which would have been put in force but for the tem
porary injunction issued by the court below. The findings arrived
at by the executives were said to be the result of “ the broad view.”
Furthermore, “ running through the entire structure o f the brother
hoods is the thought that the brotherhoods themselves provide the
tribunals for the final settlement of the rights of the members.”
In view of this authority, and being “ satisfied that the language of
the agreement was susceptible of the construction placed upon it by
:he two executive officers, and that their interpretation of it was a
proper one,” the decree of the court below was reversed and one
entered dismissing the bill.

L abor O rganizations— C ollective A greements— M onopolies—
C onstruction of S tatute— Campbell v. P eop le , Suprem e Court o f
Colorado (D ecem ber* J, 1 92 2), 210 Pacific R eporter , page 81^1.—
James M . Campbell and others were convicted of violating the
statute prohibiting trusts, and brought error. It appeared that the
defendants entered into an agreement whereby all members of the
Colorado Springs Master Plumbers’ Association could employ only
members in good standing of the U . A . Local Union No. 58 and
members of the local union could work only for members of the
Master Plumbers’ Association. It was further agreed that not more
than two members of any firm would be allowed to work with tools
and no two members of the same firm would be permitted to work
with tools on any job at the same time.
The indictment was held by the supreme court to be sufficient
under the statute, though it was claimed by the defendants that it
did not show how the combination charged was a restriction on
the full and free pursuit of the plumbers’ trade, or that it was un
reasonable or an unreasonable restraint of trade or business com
petition.
The statute defining and prohibiting trusts says:
S ection 1. A trust is a combination o f capital, skill, or acts by
two or more persons, firms, corporations, or associations o f per

158

DECISIONS OF COURTS AFFECTING LABOR

sons, or by any two or more of them, for either any or all o f the
following purposes:
First. To create or carry out restrictions in trade or commerce,
or aids to commerce, or to carry out restrictions in the full and free
pursuit of any business authorized or permitted by the laws of this
State.
Second. To increase or reduce the price of * * * commodi
ties. * * *
Fifth. * * * And all such combinations are hereby declared
to be against public policy, unlawful, and void * * * and pro
vided rarther that labor, whether skilled or unskilled, is not a com
modity within the meaning of this act.
It was contended that since the combination charged in the indict
ment related solely to labor it was not within the scope of the stat
ute, but was expressly excepted by the clause referring to labor.
As to the first contention the court arrived at the conclusion that—
The agreement o f the members of the Master Plumbers’ Associa
tion and the members of the local union that they should neither
employ nor be employed by anyone except each other was a restric
tion on “ the full and free pursuit” of the business of plumbing.
I f the pursuit of the business is, by reason of the restriction, not full
or not free in any respect, the combination to “ create or tarry out ”
the restriction is unlawful. That the business under the restriction
is not full or free seems clear.
The court regarded the provisions of the agreement as clearly a
restriction of the business. “ Its purpose and intent must be learned
from its obvious and natural tendency, which would be to put every
body not a member o f that association out of the business of plumb
ing, and thus achieve a monopoly.” The monopoly which would be
created by the- success of the combination would be a monopoly in
the business of plumbing. The agreement was not a contract for
labor alone, but aimed to control the plumbing business, and the
prohibition of such control was the object and purpose o f the
statute.
The contract of agreement was admitted as evidence tending to
prove a combination to restrict business, even though the contract
was not properly executed, and the judgment was affirmed.
L abor O rganizations— C ollective A greements— M onopolies—
E estraint of T rade— A ntitrust A ct— C layton A ct— United
States v. National A ssn . o f W in d ow Glass M anufacturers, United
States D istrict Court, N orthern D istrict o f Ohio (.February 2, 1923),
287 Federal R eporter, page 2 2 8 ; case on appeal United States
Supreme Court (.Decem ber 1 0 ,1 9 2 3 ) , 44 Suprem e Court R eporter,
page 148 .—The

National Assn, o f Window Glass Manufacturers,
through its wage committee, on or about September 16,1922, entered

LABOR ORGANIZATIONS

159

into an agreement with the wage committee acting for and on be
half of the National Assn, o f Window Glass Workers. The manu
facturers5 group comprised practically all producers of hand-blown
window glass, while the workers5 association was said to be a union
of all the skilled workmen in the hand-blown window-glass industry.
The factories involved were located in various States of the Union,
the bulk of their product being sold and shipped in interstate com
merce. Besides agreements as to wages and working conditions,
the contract divided all factories into two groups, A and B. Group
A factories were to run for 16 weeks, from September 25, 1922, to
January 27,1923, while group B factories were to run from January
29, 1923, to June 11, 1923. This established what was called a twoperiod system. No factory that ran in the fall could run in the
spring; no manufacturer could run throughout the year unless iie
had two separate factories, one of which should be placed in group
A and the other in group B. Under a similar agreement of the
preceding year “ an operator who desired to equip a second factory
so that he might continue production during the second period,
was compelled to build an entirely independent factory and not
merely an additional furnace and equipment, at a cost of $75,000.55
The United States brought suit for the purpose of dissolving and
enjoining an agreement in restraint of interstate trade or commerce
as curtailing the production of window glass, restricting its dis
tribution in interstate trade, and limiting the opportunity of work
ers to follow their normal occupation. When the bill was filed a
motion was made for a preliminary injunction, but as all the de
fendants appeared and answered, the “ motion was by agreement
converted into a final hearing, and the case submitted for a final
decree on the merits.”
The associations cited certain cases in support of their contention
that interference with manufacture or production alone is not in
terference with interstate trade or commerce. (Hammer v. Dagenhart, 247 U. S. 251, 38 Sup. Ct. 581 [see Bui. No. 258, p. 96], and
others.) Admitting the correctness of the principle within its field,
it was said to be inapplicable in the situation shown by the facts
set forth in the instant case. The purpose of the agreement and of
the activity under it was not to secure rates of wages or working
conditions, but there was an “ interference with interstate com
merce, not merely ancillary and incidental” to the execution of a
purpose and outside of the real intent of the parties entering into
the agreement. Their action has a “ direct, material, and substan
tial effect upon the production, distribution, and price of hand-blown
window glass in interstate trade or commerce,55 so that an intent
to effect these ends “ must be inferred.55 The agreement “ purposely
44915°—25----- 12

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DECISIONS OF COURTS AFFECTING LABOR

and intentionally made” must be regarded as representing the in
tention of the parties to produce the consequences that necessarily
follow.
The Clayton Act was held not to grant any exemption in the case,
its exemptions as regards labor organizations applying to the more
restricted field of mutual help and welfare, sought by legitimate
ends. Cases were cited construing the antitrust act in its applica
tion to labor organizations, leading to the finding that the rule
laid down by these cases is that “ a combination or agreement hay
ing for its object and purpose the restraint of or undue interference
with interstate trade or commerce is not a legitimate object of a
labor organization nor a lawful means of carrying out its objects.”
The activities of the workers’ association were chiefly responsible
for the conditions found. “ They seem to have assumed the entire
burden of enforcing vigorously and relentlessly” the terms of the
agreement.
The clear purpose and effect of the agreement was to keep onehalf of the furnaces idle during the first period while the others
were working, the situation being reversed during the second period.
The idea came into being during the war, owing to the restraint
placed by the United States Government upon nonessential indus
tries, with a view to conserving fuel and labor. This restraint on
production was found to be advantageous to “ the workers if not
to the manufacturers,” and representatives of the former moved
successfully to secure its continuance after the war. Arguments
were advanced to support the claim that production is not diminished
nor prices enhanced, and that both the manufacturers and the
workers are benefited without injury to the public. However, Judge
Westenhaver, who delivered the opinion o f the court, regarded it
as inevitably true that this method of operation results necessarily
in restraint o f the production of hand-blown window glass. “ This
is so obvious that testimony to prove it would not strengthen one’s
conviction.” Besides limiting the output, it is obvious that the
profits for the periods o f 16 weeks and 18 weeks, respectively, for
the two groups must be great enough to pay overhead expenses and
yield returns on the capital invested. “ The inherent and inevit
able tendency of this situation is to induce manufacturers to market
this limited quantity at a price higher than would otherwise be
required if the output were larger.” A third conclusion, though
vigorously disputed, was that this restraint of manufacture and
production would necessarily restrain interstate commerce, not
merely incidentally and indirectly, but necessarily and directly.
The facts set forth above were said to bring the case “ within
the authorities which hold that interstate trade and commerce are
unreasonably restrained and do not leave it within those authorities

LABOR ORGANIZATIONS

16]

which hold that manufacture only is directly affected.” A num
ber of cases were then cited, with excerpts showing the application
of the principle to the case in hand, the conclusion being reached
that “ the present case falls clearly within the principles announced
in the foregoing cases.” Not only was the restraint found to be
unreasonable and illegal, but “ the necessary and inevitable effect
was unduly to restrain trade and commerce not only within but
between the several States of the Union.”
The contention that the restraints were reasonable, in view of the
conditions in the industry, was then considered. It was said to
be a dying industry since the invention of machines for blowing
window glass, the present number of skilled workmen not being
sufficient to run all plants continuously; and since the number o f
men actually qualified can be employed during both periods, it
was said there was no unreasonable interference with production.
The argument along this line was said by Judge Westenhaver to
show conclusively, as it seemed to him, “ that this method of opera
tion drives workers from the industry.” It required removal from
place to place instead of affording a fixed abode where a fam ily
could be maintained without the expense of removal or the alterna
tive o f separation for a part of the year. Reference was made to
a vote taken by the membership of the workers’ organization “ urg
ing the officials and committees of their association to procure a
return to one continuous period o f operation. The vote was two
to one in its fa v o r” ; while a somewhat later ballot showed a pro
portion of four to one of the workers in favor of abandoning the
two-period system. The argument of economic justification or non
interference therefore was rejected. Other considerations were
brought forward, but nothing affected the conclusions reached as
already indicated, and a decree for the Government was authorized,
the decree to allow for a reasonable adjustment period before be
coming effective.
However, when the case came to the Supreme Court on appeal,
that body was unanimous in reversing the decree for an injunction
U . S. 403, 44 Sup. Ct. 148), and leaving the parties to the
collective agreement free to carry on the industry according to the
regulations formulated by themselves and without interference by
the courts. It was pointed out that the agreement did not “ con
cern sales or distributions; it is directed only to the way in which
union labor, the only labor obtainable it is true, shall be employed
in production.” Conceding that such an agreement might be
within the antitrust act, the question of legality turned on the
consideration o f particular facte.

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DECISIONS OF COURTS AFFECTING LABOR

It was developed in the case at its first hearing that the hand-blown
glass industry is in competition with the manufacture o f glass by
machine process, and that “ the hand-blown glass industry is not
capable normally o f meeting this competition.” As stated by Mr.
Justice Holmes, who delivered the opinion o f the Supreme Court,
“ The dominant fact in this case is that in the last quarter o f a
century machines have been brought into use that dispense with the
employment o f the highly trained blowers and the trained gatherers
needed for the handmade glass and in that and other ways have
enabled the factories using machines to produce window glass at half
the cost of the handmade.” The price for the two products is the
same, the result being that the machine manufacturers fix the price,
and as they make by far the larger part o f the glass, it follows that
the hand-blown glass industry exists apparently on sufferance only.
The effect of this agreement, therefore, on the price of glass would be
nil, since the manufacturers in the hand-blown glass industry “ obvi
ously are not able to do more than struggle to survive a little longer
before they disappear, as human effort always disappears when it
is not needed to direct the force that can be got more cheaply from
water or coal.”
The Supreme Court regarded the alleged dying condition o f the
industry not to be due to the union, as claimed by the Government
in its prosecution, but to “ the inevitable coming to pass.” There
were not men enough to permit continuous operations, while to
work with factories undermanned would involve wasteful use of
fuel and overhead expenses. Under this agreement factories would
run at normal capacity, and the men would be secure in their em
ployment during the whole of the two seasons by shifting from the
one group to the other as the seasons of operation alternate. The
court, therefore, found no combination in unreasonable restraint of
trade in the arrangements entered into by the two organizations to
meet the short supply o f men.

L abor

O rganizations— C ollective A greements— S trikes— I n
v. Sigm on, Suprem e Court o f N ew Y o r k , Special

junction — M aisel

Term , 205 N ew Y o r k Supplem ent, page 807 .—The defendant Inter
national Ladies’ Garment Workers’ Union is an international labor
union affiliated with the American Federation o f Labor. The de
fendant Joint Board o f Cloak, Skirt, Dress, and Reefer Makers’
Unions is a subordinate organization of the international, and a
delegated body composed of representatives of all local unions in the
city o f New York. These constitute about 95 per cent of the total
number o f cloak workers in the city of New York. The defendant

LABOR OR GA NIZATIO NS

163

Morris Sigman was president of the international union. The
plaintiffs were members of the Cloak, Suit, and Skirt Manufac
turers’ Protective Association until April, 1923. They were manu
facturing jobbers of ladies coats, and until November 1, 1923, they
conducted a manufacturing establishment at their premises in con
junction with their jobbing business. The association had entered
into an agreement with the union about 1910, which with various
modifications had been renewed from time to time, and at the time
of this action was still in force. In April, 1923, the plaintiffs de
cided to reorganize their business by reducing their manufacturing
establishment and to have their work done outside by other con
cerns, this reorganization decreasing their jemployees from about
350 to 65 or 70. The union claimed that this plan “ did not come
within the term of 4a reorganization in good faith ’ contemplated by
the collective agreement between the parties,” and refused to con
sent to it. The plaintiffs then resigned from the association, to re
lieve themselves of the obligations of the agreement, and thereupon
attempted to discontinue manufacturing in their own shop. The
plaintiffs’ employees then went on strike against the reorganiza
tion. After several weeks, Charles Maisel, the senior partner of the
plaintiffs, and representatives of the employees and the union in
formally discussed the situation. The union prepared a draft of an
agreement, but it was criticized by the plaintiffs on the ground that
it 44did not provide for arbitration of disputes,” and because it
44contained a requirement for the execution of a bond on the part of
the plaintiffs conditioned upon their faithful performance of the
agreement.” A change was made to include arbitration, and instead
of a bond, the union’s damages were set at $3,000 in case of breach
on part of the plaintiffs. After execution of the agreement the work
was resumed until October, 1923, when several disputes arose as to
the plaintiffs’ failure to inform the union of 44the submanufacturers
and contractors employed by them in addition to those stipulated
in the contract.” An examination disclosed that the 44plaintiffs em
ployed 18 submanufacturers, instead of the stipulated 5,” and that
44at least 6 of them conducted nonunion shops.” The union then re
quested the plaintiffs to 44discontinue violating the said agreement
and to pay it the liquidated damages of $3,000 provided for in the
agreement.” The plaintiffs agreed to the first but asked for arbi
tration on the question of damage. The award was in favor of the
union and the plaintiffs refused to comply, so the employees went
on strike. The plaintiffs then brought suit to set aside the contract,
to limit the defendants’ right to strike, and for damages. The sole
question was 44whether the agreement between the parties is valid.”
The plaintiff contended that the contract was procured by duress;

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D ECISIONS OF COURTS A F F E C T IN G LABOR

that it violated the antimonopoly statute and the penal law; that it
was against public policy and that it lacked mutuality.
The supreme court was of the opinion that such an agreement
limiting the amount of work which could be done in outside plants
and fixing minimum wages and working conditions was valid, and
that it did not violate any existing State or Federal law. As said by
the court:
Workingmen are at liberty to withhold or to give their labor upon
such terms as to them seem proper, so long as they do not violate an
express contract or statute, and so long as their primary object is not
the gratification of personal malice. And whenever such strike is
declared * * * it devolves upon those who attack the validity
of such strike to prove that it comes within an express exception of
the general right of workers to strike.
An action of a combination of workers is lawful so long as the
combination of workers is merely taking measures to secure its own
legitimate advantage or economic advancement, although harm may
incidentally result to the employer.
A threat to do that which a party has a legal right to do does not
constitute duress, so as to invalidate the contract.
As to the right of the workers to strike to enforce their demands
the court said that “ it is an organic part of the general right of
workers to strike for proper causes and to invoke the support of their
fellow workers in such a strike.” And further:
The union has a legal right to take the position that none of its
members will work for the plaintiffs if some of the latter’s work is
done by strike breakers. This is an inevitable corollary of the wellrecognized principle that members of a union have a right to refuse
working with nonunion men, and even to strike for the discharge of
such nonunion men.
The union and the plaintiffs entered into an agreement giving the
union the right to call a strike in order to prevent the employer from
doing work for or giving work to another employer against whom a
strike is pending. The Supreme Court was of the opinion that this
agreement was valid and that the parties could enter into such a
contract. The agreement was considered as not tending to “ create a
monopoly in the production of cloaks and suits or to restrain or pre
vent competition in such commodities.” The contention that the
union as such constituted a monopoly of labor was not supported by
the court, even though 95 per cent of the workers in the particular
line were members of the union. Parties dealing with commodities,
as long as they are not engaged in public service, “ have a right to fix
the prices of their commodities and to refuse to sell them to the
public for less.” This principle was held to apply “ even in a higher
degree to the right of workers, acting singly or in concert, to sell
their labor at fixed prices and on other stipulated terms.”

LABOR O R GANIZATIONS

165

The provision for liquidated damages in the contract was held
valid. It but liquidated a liability implied by law; nor was there
anything in the contract exempting the union from liability if it
should breach the contract.
The complaint of the plaintiffs was therefore dismissed and judg
ment was granted for the defendants.

L abor O rganizations— C ompulsory A rbitration— P enalty for
C alling S trike — K ansas C ourt of I ndustrial R elations— D orchy

v. Kansas, Suprem e Court o f the United States {March 1 0 ,1 9 2 4 ), H
Supreme Court R eporter, page 323.—August Dorchy was an official
of a labor organization in the State of Kansas, and was found guilty
of violating the industrial relations act of the State by inciting a
strike among coal miners. Judgment was affirmed by the supreme
court of the State (112 Kan. 235, 210 Pac. 352), and Dorchy brought
error to-the Supreme Court of the United States. The* judgment
of the court below was vacated and the case remanded for further
proceedings in order to give the supreme court of the State oppor
tunity to consider the effect of an intervening decision by the
Supreme Court of the United States on the law in question. Sub
sequent to the affirmation by the supreme court of the State, the
Supreme Court of the United States had decided that the packing
industry was not so affected with a public interest that a system
of compulsory arbitration such as that contemplated by the indus
trial court act could apply thereto. As the statute makes its differ
ent sections severable so far as possible, and since the section under
which the present action was brought (sec. 19) had not received spe
cific consideration in the State courts, the Supreme Court remanded
the case for the action of the State courts in construing their law.
The concluding paragraph of the opinion, as delivered by Mr.
Justice Brandeis, is as follows:
The Supreme Court of Kansas has already dealt, to some extent,
with the effect of our decision upon other sections of the act. When
a motion was made there in the Wolff Packing Co. case to spread
the mandate of this court upon its record, the State court held that
the order of the court of industrial relations under review remains
in force in so far as it regulates hours of labor and weekly rest
periods. (114 Kan. 304, 219 Pac. 259 [p.332].) The judgment then
entered was modified November 10, 1923, upon a rehearing. The
relation of section 19 to the provisions held invalid is a different
matter. So far as appears, the State court has not passed upon the
question whether section 19, being an intimate part of the system
of compulsory arbitration held to be invalid, falls with it. In order
that the State court may pass upon this question, its judgment in
this case, which was rendered before our decision in the Wolff Pack
ing Co. case, should be vacated.
To this end the judgment is reversed.

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DECISIONS OF COURTS AFFECTING LABOR

In accordance with the foregoing decision the case went again to
the Supreme Court of Kansas, where the point submitted was acted
upon (State v. Howat (1924), 227 Pac. 752). The history of the
act was briefly reviewed, particularly with reference to the occasion
, for its enactment on account of conditions in the mining industry.
Judge Burch, who delivered the opinion of the court, quoted from
the governor’s message and the proclamation for the special session,
and said:
The court of industrial relations act undertook to provide a
method of settling industrial disputes in essential industries, by a
scheme which the Supreme Court of the United States miscalls com
pulsory arbitration. Justice was to be done between employer and
employee, but protection of the public interest was to be paramount,
and the public interest is not a subject of arbitration. Besides that,
the Constitution and functions of the tribunal forbade its classifica
tion as an arbitral body.
Its application to the clothing industry was regarded as doubtful,
but—
The legislature did know that strikes in the coal mines closed pub
lic institutions, stopped public and private business, caused suffering
in homes, and threatened death to patients in hospitals. In addi
tion to providing a method of settling disputes affecting production
of coal, striking and picketing were dealt with in sections 17 and 18.
The right of any individual worker, however, to leave his employ
ment at any time and for any reason was expressly recognized.
To free labor union members from tyrannical domination by ruth
less labor leaders, prevent meddlesome interference with the relation
between employer and employee, and to secure continuity in produc
tion of coal, section 19 was inserted in the law.
The precise question here involved is whether it was intended that
the provision against using official power to call strikes in the enu
merated industries should stand, even if the provisions relating to
regulation of wages be held unconstitutional.
It was then pointed out that the legislature had declared the
severability of the various sections of the act, and if this provision is
not to be carried out it would be because there was an assumption
“ of the intimate relation between forbidding strikes and furnishing
another remedy for the wrongs against which they might be
directed.” The conclusion was reached that section 19, penalizing
labor officials who used their influence to incite strikes, is to be
regarded as “ an independent statute.” The judgment imposing the
penalty at the prior hearing was therefore reaffirmed.
There was a dissent by two judges who took the view that the
decision in the Wolff Packing Co. case (262 U. S. 522, 43 Sup. Ct.
630) invalidated the doctrine of an impression with the public
interest, with which section 19 was so closely involved that it could
not stand. In the words of Judge Harvey:

.LABOR OR GA NIZATIO NS

167

I f the doctrine upon which the act is based and the parts o f the
act as to employers are invalid, it should necessarily follow that the
parts of the act as to employees should be held invalid. This act did
not seek to destroy labor organizations, but they were specifically
recognized, encouraged but not required to incorporate, and their
right to bargain collectively for their members was recognized. The
calling of a strike, not previously an offense in this State, was made
an offense, with punishments, only because a court or commission
was created which could hear their grievances and make reasonable
orders which could be enforced.

L abor O rganizations— C onspiracy— E vidence— A cceptance of
M oney from C ontractor—People v. S eefeld t , Suprem e Court o f
Illinois (D ecem ber 19 , 1923 ), H I Northeastern R eporter , page 829 .—

Otto Seefeldt and William Brims were convicted in the criminal
court of Cook County on the charge of conspiracy. Judgment was
affirmed in the appellate court, and the case was brought to the
supreme court on writs of error. The cases were originally separate,
but were subsequently consolidated and disposed of in a single
opinion.
Seefeldt and Brims were officials connected with a carpenters’
labor union, and the charges against them arose out of incidents con
nected with the calling and settlement of a strike on a building being
constructed in the city of Chicago. The Henry Bosch Co. was hav
ing a building erected for its business, employing as architects the
firm of Mundie & Jensen. One McCumber contracted for the car
penter work, being a member of the Carpenter Contractors’ Associa
tion. This association had a contract with the carpenters’ district
council of which Brims was president. Seefeldt was business agent
of one of the local unions.
The agreement stated what parts of the building construction
should be considered as carpentry, and operations continued without
interruption until a question arose as to the hanging of certain doors.
These were “ cross-folding jackknife doors, made of wood but hinged
to metal jambs.” McCumber sublet a part of the work calling for
such doors to a concern which manufactured them, this subcontractor
employing ironworkers to install them. After part of this installa
tion had been completed Seefeldt asked a carpenter on the job to let
him know when any more such doors came, which he did. Seefeldt
then told McCumber that the hanging of the doors belonged to the
carpenters, but McCumber testified that he had an understanding
with Seefeldt that “ if the carpenters were allowed to apply the hard
ware to the doors, Seefeldt would permit the ironworkers to do the
rest.” Seefeldt admitted this, but said that his supervisors over
ruled him, and that the carpenters had to hang the doors. The iron

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DECISIONS OF COURTS AFFECTING LABOR

workers, however, later arrived and began to hang the doors, ap
parently before McCumber knew of it, and as soon as he learned of
their presence he sent a special delivery letter asking them to stop to
avoid trouble between them and the carpenters. They refused to do
this, and McCumber then arranged for a meeting with Brims and
Seefeldt and a representative of the ironworkers. No agreement
was arrived at, and Brims directed Seefeldt to call a strike, which he
did. A meeting was then arranged by McCumber with Brims and
Seefeldt at the office of the architects, but without settling the diffi
culty. After some talk Brims said: “ Is that all you have got us
over here fo r ? ” Mundie replied that if anything was implied in
that remark, “ he wished to say that his office had never paid a penny
tribute and never would.” Brims then stood up and reached for
his hat and said: “ I f that is all you have to say, let’s go,” and then
went out.
McCumber went down the elevator with them and asked what
would have to be done to get the carpenters back to work, to which
Brims replied: “ Mr. Seefeldt will call over to your office and see
you about it, and I think you can get it settled.” This occurred,
and Seefeldt told McCumber “ that the men would have to be paid
waiting time, whatever they had lost, and that they would have to
have about $400—perhaps a little more—what he termed as pay for
the amount of time that the ironworkers put in on the job.” There
was some discussion, but Seefeldt said that was the only way to get
it settled. McCumber then calculated the wage loss to have been
but $225, which Seefeldt acceded to and received this amount,
promising that the men should be back at work next morning, and
they were.
McCumber testified that Seefeldt had said to him that he did not
“ approve of this sort of thing at all; I don’t like it, but I have to
do it; I am made the goat by the higher ups,” and charged McCum
ber to keep the matter to himself.
It was claimed by the plaintiffs in error that they had had pre
vious difficulty with McCumber for permitting laborers to do cer. tain form work instead of carpenters, so that when “ the violation
of the agreement as to hanging the doors occurred there was nothing
to do but call the strike.” They further claimed that nothing had
been done as an unlawful act, nor in an unlawful manner, and that
there was nothing to connect Brims with the money transaction.
The court, speaking by Judge Carter, stated that in setting forth the
object of a conspiracy the same certainty and strictness are not re
quired as would be required in an indictment in which such matter
was charged as a substantive crime.
There was sufficient testimony as to the party affected, but no
evidence was offered at any time to show that the workmen or any

LABOR ORGANIZATIONS

169

of the members of the union had received any part of the $225
alleged to have been paid on account of the time they lost—a pro
cedure which, if it had been possible, was said by the court to be
“ one of the first things which doubtless would have been done by
plaintiffs in error ” if used in some legitimate connection with the
union or its members. In the absence of any showing that the
strike was called for the benefit of the union or its members, “ the
testimony, though it be largely circumstantial to the effect that the
strike was called in pursuance of the conspiracy charged, must be
held to be sufficient.”
The sanction of the joint conference board had not been secured,
though it was required under the terms of the agreement. However,
there was an attempt to distinguish as to Brims’s part in calling the
strike and also to show that he did not receive any of the money or
even know that it was paid. As to this Judge Carter stated that
the trial judge in such proceedings is allowed great latitude in the
admission of circumstantial evidence, “ as the conspiracy often can
be shown only by isolated facts and inferences drawn therefrom.”
The jury had passed upon the disputed testimony and Seefeldt’s
statement referring to “ the higher ups.” The testimony relative to
the giving of the $225 was admissible to prove the motive, “ and was
material as to both Seefeldt and Brims.” Another significant fact
testified to is that afterwards ironworkers were permitted to do the
same work as that which was the cause of the strike, but without any
jurisdictional question being raised.
Taking into consideration the facts and principles above set forth
and finding no reversible error in other matters submitted, the
judgment of the appellate court was affirmed.

L abor O rganizations— C onspiracy— E vidence — P aym ent for
S trike S ettlement—P eople v. M ader, Supreme Court o f Illinois
{O ctober 28, 1 92 4), 145 Northeastern Reporter, page 187 .—Fred
Mader, O. C. Foster, and others were indicted by the grand jury of
Cook County, 111., for conspiracy. The charge was that they had
fraudulently conspired to obtain $1,400 from the Woman’s Exchange
of Chicago by false pretenses, boycott, strike, etc.
Foster was the superintendent of construction of the Drake Hotel
and Mader was at that time business agent of the Fixture Hangers’
Union. The building was to be erected by the employment of union
labor. The Woman’s Exchange of Chicago, a charitable organiza
tion of which one Mrs. Thorne was vice president, was given the
contract of furnishing about 2,000 lamps with shades for the hotel.
Of these about 609 were bedside lamps. The Woman’s Exchange
had the lamps made by a company which employed nonunion labor

170

D ECISIONS OF COURT'S A F F E C T IN G LABOR

and the shades were made by women in their homes under employ
ment arrangements with the Woman’s Exchange. On complaint
that the lamps were “ unfair/5 Mader called a strike of the Fixture
Hangers’ Union, suspending the installation of the lamps for nearly
three weeks.
Some time prior to this strike, Foster called up Mrs. Thorne and
informed her that the bedside lamps were faulty in construction and
that complaint had been made that all the lamps were “ unfair,” and
that a strike would be called on that account. Foster had nothing
to do with the union and had no power to call a strike. He took
two of the lamps to show them to Mrs. Thorne and explain the
matter. It appeared that the wiring passed through the wood in a
way contrary to the building regulations, and Mrs. Thorne told
Foster that she would have the lamps rewired by union labor at her
own expense. She also said that the shades had been made by the
labor of women, “ and that any fine or anything that had to be
paid would be a hardship on the Woman’s Exchange” ; however,
she was willing to and would pay for the actual work of rewiring the
lamps. Mader was present at this interview but said nothing and
walked away. “ Foster made every effort to help her get the matter
adjusted.” Nothing was said at the time as to any money or fine
because of the lamps being unfair or manufactured by nonunion
labor.
Mader called a strike and Mrs. Thorne asked an attorney, a friend
of her husband, to help adjust the matter, which was finally done
by the payment of $1,418, of which $668 was for the work of rewiring
and $750 “ for clearance of 1,460 lamps from union labor prohibi
tion.” Mader had arranged for this in an interview with the lamp
company that made the changes, saying that Mrs. Thorne would pay
his company the sum of $1,418 for the work to be done on the lamps
and that he (Mader) wanted $750 out of the amount, and that Best,
of the company repairing the lamps, could tell Mrs. Thorne that the
strike would be called off as soon as she paid the money. This ar
rangement was carried through, Mader appearing shortly after the
money was paid and taking the money, the strike being called off
and work resumed the next day.
On the face of this testimony it was contended that there was no
proof of conspiracy between Mader and Foster or any other per
sons as charged in the indictment. The trial court had found con
spiracy, and Mader was convicted and the judgment affirmed by the
appellate court.
The case was then taken to the supreme court on a writ of error,
where the judgment below was reversed. It was found that nothing
appeared to implicate Foster, who was apparently only concerned
in settling the difficulty and securing a continuation of the building

LABOR ORGANIZATIONS

171

operations. The lamp company had only retained money for actual
services rendered in rewiring and repairing the lamps, and Foster
seems to have had no knowledge of the terms of the settlement or
any part in bringing it about. Neither he nor any person unknown
can be traced as having conspired with Mader in securing the set
tlement money insisted on as a condition of removing the strike ban.
In order to prove a person guilty of the crime of conspiracy it is
not sufficient to show a passive acquiescence on his part with an
illegal act. It is necessary to show a bad design or criminal intent
between two or more persons to accomplish an unlawful result. To
constitute the crime of conspiracy there must be more than one
person guilty thereof, and before a defendant can be convicted of
conspiracy the evidence must show that there are two or more per
sons guilty of such conspiracy. It is not sufficient to sustain a con
viction on a particular charge to prove that the defendant is guilty
of some other charge or of generally bad and criminal conduct, but
the proof must establish his guilt of the particular charge in the
indictment.
However, the court could not “ agree with the contention of the
defendant [Mader] that the record evidence shows that he merely
entered into a legal contract for services rendered the Woman’s Ex
change. We have declined to discuss a great deal of the evidence
bearing on that subject which tends to show otherwise and because
of the fact that the case may be further tried in the court below.”
For the reasons given the judgment of the courts below was re
versed and the cause remanded to the criminal court.

L abor O rganizations— C onspiracy— M ember D efrauding A sso
ciation—A u to W ork ers ’ Tem ple A ssn .

v. Janson , Suprem e Court o f
Michigan {June 2, 1924,), 198 N orthwestern R eporter, page 992.—The
plaintiff association decided to erect a temple in Detroit for the use of
its members, and the defendant Janson, a member of the organization,
was appointed one of a committee to select a location for that purpose.
Janson took the lead in the matter of buying land on which to erect
the temple, as he was acquainted with real-estate values. He and
the defendant Weiss, a real-estate operator, discovered a suitable lot
and learned from the owner that it could be purchased for $32,000.
Janson gave $100 for an option and reported to the committee that
it could be purchased for $36,000. The location was examined by
the committee and later purchased by the association. It appeared
in evidence that Janson and Weiss were to split the commission of
$4,000, but they fell out and Weiss claimed it all. Janson sued Weiss
and recovered judgment for $2,000, of which he collected $1,000 by
garnishing the vendor. Through the legal proceedings some of the
members of the association learned that the defendants had made a

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D ECISIONS

OF COURTS AFFECTING LABOR

profit on the transaction, and an action of tort was begun against them.
Weiss was acquitted, but Janson was found guilty and a verdict
returned of $4,000. Janson appealed, contending that an acquittal
of one of the parties “ ipso facto acquits the other defendant.” The
supreme court held otherwise, that the acquittal of one did not
require the acquittal of the other, “ since one member alone could
have perpetrated the fraud.” The defendant further contended
that “ even if there were a conspiracy there was no damage; that the
land purchased was worth the money; that the jury found Weiss
was entitled to all the commission, and therefore no damage ensued
to plaintiff by reason of the conspiracy.” The court added:
We are not in accord with this reasoning. It is true in civil cases
involving conspiracy it is immaterial how diabolical the conspiracy
is if no damage results. But in this case some damage did result.
Plaintiff paid $36,000 for what it should have purchased for $32,000.
Janson was held liable to the association for the difference be
tween the price paid and the price for which the land could have
been purchased by the association, and the court added as a further
conclusion that “ he acted as an agent for the plaintiff, and what
ever he may have wrongfully made in the transaction of the property
belonged to his principal.”
The verdict was affirmed.
L abor O rganizations— C onspiracy— M onopoly— C ombination in
R estraint of I nterstate C ommerce— Charles A . Ram say Go. v.
Associated B ill P osters , Suprem e Court o f the United States ( Janu
ary 2, 1 9 2 3 ), IfS Suprem e Court R eporter , page 167.—Separate

actions were brought by the Charles A. Ramsay Co. and the William
H. Rankin Co. against the Associated Bill Posters, charging con
spiracy to restrain interstate commerce. The plaintiff companies
were solicitors of advertising, and designed, manufactured, and sold
posters for display on bill boards, etc. The Associated Bill Posters
united into a combination to monopolize the business throughout the
United States and Canada, at first organizing a voluntary associa
tion in 1891 and afterwards becoming incorporated. The member
ship is very large and dominates the field, so that “ it is now prac
tically impossible for an advertiser to utilize posters except by
employing members of the association and upon terms arbitrarily
fixed.”
The methods followed are the restriction of membership in the
association to one employing billposter in each town or city, com
petition between members being prohibited; the furnishing of funds
to buy out competitors; the prohibition of accepting work from an

LABOR ORGANIZATIONS

173

advertiser who has given business to a nonmember; establishment of
a schedule of prices and the prohibition of the acceptance of work
from other than arbitrarily selected and licensed solicitors, who are
forbidden to patronize a nonmember in any place where any member
does business; and the use of threats of withdrawal of patronage to
prevent manufacturers from furnishing posters to independent bill
posters or others desiring to do business with independents, “ except
upon prohibitive terms.” The usual method, where freedom is per
mitted, is for advertisers to contract with a lithographer either
directly or through such soliciting agents as the plaintiff companies
direct, to procure the manufacture or purchase of such posters as are
desired. These are then made and shipped frequently into different
States, so that interstate commerce is a feature of the distribution.
By reason of the association’s refusal to license the plaintiffs and
the consequent cutting off of opportunities for business a formerly
profitable business has now become restricted and unprofitable.
An action was brought by these companies in the district and
circuit courts to recover damages against the Associated Bill Posters
for the violation of the Sherman Antitrust Act (act of July 2, 1890,
Comp. Stat., secs. 8820-8830). The district court and the circuit
court of appeals were as one in dismissing the complaints on the
ground that the acts complained of were not an interference with
interstate commerce (same case, 271 Fed. 140; see Bui. No. 309,
p. 144), since, though they were shipped in interstate commerce,
“ after the posters have arrived at destination the posting of them
by the billposters is a purely local service, not directly affecting but
merely indidental to interstate commerce.”
Justice McReynolds, who delivered the opinion of the Supreme
Court, having stated the facts and quoted the above from the opinion
of the circuit court of appeals, said:
We can not accept this view. The alleged combination is nation
wide ; members of the association are bound by agreement to pursue
a certain course of business designed and probably adequate mate
rially to interfere with the free flow of commerce among the States
and with Canada. As a direct result of defendants’ joint acts plain
tiff’s interstate and foreign business has been greatly limited or
destroyed. Hopkins v. United States, 171 U. S. 578,19 Sup. Ct. 40,
is not applicable. There the holding was that the rules, regulations,
and practices of the association directly affected local business only.
The purpose of the combination here challenged is to destroy com
petition and secure a monopoly by limiting and restricting com
merce in posters to channels dictated by the confederates, to exclude
from such trade the undesired, including the plaintiffs, and to enrich
the members by demanding noncompetitive prices. The allegations
clearly show the result has been as designed, that the statute has been
violated, and plaintiff’s business has suffered*

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DECISIONS OF COURTS A F F E C T IN G LABOR

Since the Sherman Act was designed to “ secure equality of
opportunity and to protect the public against evils commonly inci
dent to destruction of competition through monopolies and combi
nations in restraint of trade,” it was found that an offense against
this act had been committed and the judgment of the court below was
reversed.
L abor O rganizations— C onspiracy— R ules of U nion — Loss of
E mployment —R ya n v. H a y es, Suprem e Judicial Court o f Massa
chusetts (N ovem ber 29, 1922), 137 Northeastern R eporter, page
344 One Adams carried on a business of sponging cotton and
woolen cloth. He had in his employ men called “ spongers ” and also
“ teamsters.”
John G. Ryan, by occupation a teamster, applied to Adams for
work and was temporarily hired as a sponger upon the condition
that after he had obtained some knowledge of the business he would
be permanently employed. Adams told Ryan that he must make
application to the union to which the other employees belonged, and
to this condition of the employment Ryan consented.
Soon after the employment of Ryan, Local Union No. 181 of the
Amalgamated Clothing Workers of America held a meeting and in
structed one Hayes to take up with the employer the matter of the
employment of a nonunion man. Ryan subsequently made applica
tion for admission to the union as a teamster. As the union had no
such classification as that of teamster the word “ sponger ” was sub
stituted therefor. After a vote of the local union Ryan was admitted
to membership and placed on the bottom of the list for work. He
was then notified that he would have to take his turn in the order
of the list before he could be placed.
Ryan brought a suit for an injunction and damages because of an
alleged conspiracy to prevent him from obtaining and holding em
ployment. It was found that no conspiracy existed and the proceed
ings were dismissed. Ryan, however, took the case to the Supreme
Judicial Court of Massachusetts. The supreme court in affirming the
action of the lower court in dismissing the bill pointed out that Ryan
was under no obligation to enter Adams’s service on condition that he
become a union man, but having voluntarily entered into the con
tract, which was not unlawful, he was bound by its terms. (United
Shoe Machinery Corporation v . Fitzgerald, 237 Mass. 537, 130 N. E.
86; Bui. No. 309, p. 177.) The court further pointed out that no
strike had been threatened nor any intimidation practiced, and that
the action of the union “ under the circumstances described can not
be considered as a concerted and successful scheme to prevent the
plaintiff from securing employment.” (W. A. Snow Iron Works v.

-—

LABOR ORGANIZATIONS

175

Chadwick, 227 Mass. 382, 116 N. E. 801; Bui. No. 246, p. 171;
Shinsky v. O’Neil, 232 Mass. 99, 121 N. E. 790; Bui. No. 290, p.
187.) It was further pointed out that when Ryan joined the union
he “ engaged to be bound by its rules” and subjected himself to its
discipline. (Shinsky v. Tracey, 226 Mass. 21,114 N. E. 957.)
The court pointed out that the master’s conclusion in his original
report, which stated that “ I find as a fact that there was no con
spiracy on the part of the officers or members of the defendant
* * * to prevent the plaintiff from working,” is conclusive and
should be affirmed.
L abor O rganizations— E mployers’ A ssociation— C onspiracy—
I nterference w it h E mployment — D amages— Carlson v. Carpenter
Contractors ’ A ssn,

Chicago

{tw o

cases), Supreme

Court o f

Illinois {O ctober 2 1 ,1 9 2 2 ), 137 Northeastern R eporter , page 222 .—

John Carlson was a journeyman carpenter and a member of the
carpenters’ union. On July 18, 1919, and for a long time prior
thereto he was in the employ of one Simon Hill, a contractor who
did not belong to a contractors’ association. An agreement between
the union and the Carpenter Contractors’ Association existed in 1919,
and did not expire until 1921. The minimum rate of wages fixed was
80 cents an hour, and it was agreed that no strike or lockout would
be called without the sanction of a joint conference board composed
of representatives of both parties. Notwithstanding this agreement
an increase to $1 per hour was demanded by the union and refused
by the contractors. A general strike was called in violation of the
working agreement. Those contractors who were willing to pay $1
per hour were allowed to proceed with their work without molesta
tion. Hill agreed to pay Carlson $1 an hour and their employment
contract continued. A week after the strike was called the Carpenter
Contractors’ Association declared a lockout of all union workmen in
the building trades throughout Lake and Cook Counties, 111. Con
tractors not members of the association and new contractors con
tinued to employ union labor at $1 per hour. In order to make the
lockout effective the contractors’ association sought and secured the
aid of the dealers in building material. It was agreed that inde
pendent contractors, private builders, and members of the general
public would be refused material for the purpose of erecting or re
pairing buildings. As a result of this action all workmen in the
building trades were discharged, although the workmen were willing
to work and the employers willing to pay them the wages they de
manded. Hill was forced to discharge Carlson because of this action
of the dealers in the building material.
44915°—25-----13

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DECISIONS OE COURTS AEEECTING LABOR

Oscar Carlson was a private owner, engaged in erecting a build
ing for himself. He employed union carpenters and paid the wages
demanded, but when he could no longer procure materials he had to
stop work, and the use of his building was delayed.
John Carlson brought an action to recover damages against the
contractors’ association and others. After stating the above facts
he contended that by reason of the conspiracy he was deprived of
employment for a period of nine weeks, and that he was entitled to
damages accordingly. The trial court denied damages to John
Carlson because he was a member of the carpenters’ union which
violated its working agreement and thereby brought about the con
ditions which caused him to suffer. An appeal was taken, and the
appellate court reversed the judgment against John Carlson, hold
ing that the lower court erred in applying the law, resting its
decision upon the maxim that one wrong does not right another.
Oscar Carlson sued for damages for loss of use of his property and
was awarded judgment, which the appellate court affirmed.
The cases were then taken to the Supreme Court of Illinois, and
that court reduced the questions to whether “ (1) a legal right of
plaintiffs (2) has been invaded (3) by defendants (4) to the injury
of plaintiffs.” The court said that “ The right of employees to
organize and to quit their employment singly or as a group; the
right of employers to organize and to discharge their employees
singly or to lock them out as a body; the right of dealers to or
ganize and to refuse to sell merchandise to a particular individual,
to a group of individuals, or to the public at large; the presence of
a few crooked business agents in the ranks of labor and of a few
criminal profiteers in the ranks of employers and dealers; and the
obligation of employers and employees to respect their working
agreements, are all subjects full of interests, but which have no bear
ing whatever on the issues involved in these cases, and a discussion
of any of the subjects would be entirely out of place.”
The court then took up the sole question of the liability of the
defendants to the Carlsons and upheld their contentions. In arriv
ing at this conclusion the court said, in part:
The trial and appellate courts having determined the fact that
the combination was formed and the acts pursuant thereto were
done by the defendants for the purpose of maliciously injuring
plaintiffs, and that in carrying out this purpose they actually caused
direct and immediate injury to each o f them, the sole question for
this court is whether plaintiffs are, under the law established in this
State, entitled to recover. John Carlson has a right, under the law,
as between himself and others to full freedom in disposing of his
own labor according to his own will. He had the right to contract
with Simon Hill to work for an agreed wage and under agreed con
ditions. He was under no contractual relations with any of the

LABOR ORGANIZATIONS

177

defendants which limited this right. He had a right to receive for
his services $1 an hour or any other amount to which he and his
employer could agree. Oscar Carlson had the right, under the law,
to full freedom in investing his capital in the building which he
was erecting and in employing any person free to accept employ
ment from him at a wage and under conditions agreeable to him.
He had the right to a free and open market in which to purchase
materials with which to complete his building. These rights, being
clear, anyone who invades them without lawful cause or justifica
tion commits a legal wrong and, the wrong being followed by an
injury in consequence thereof, plaintiffs have a right of action for
such wrong. Damage inflicted by the use of intimidation, obstruc
tion, or molestation with malice is without excuse. The law seeks
to protect every person against the wrongful acts of others, whether
committed alone or by combination, and an action may be had for
injuries done which cause another loss in the enjoyment of any right
of privilege or property. No persons, individually or by combina
tion, have the right to directly or indirectly interfere with or dis
turb another in his lawful business or occupation or for the sake of
compelling him to do some act which in his own judgment his own
interest does not require. Losses willfully caused by another from
motives of malice to one who seeks to exercise and enjoy the fruits
and advantages of his own enterprise, industry, skill, or credit will
sustain an action.
The judgments of the appellate court awarding damages to each
plaintiff were accordingly affirmed.

L abor O rganizations— E mployers5 A ssociations— M onopolies—
C ollective A greements— C onspiracy— D amages— Overland P u b
lishing Go . v. H . JS. Crocker Go ., Suprem e Court o f California ( Janu
ary SO, 192Ip), 222 Pacific R eporter , page 812 .—This is a continuation

of a protracted struggle by the plaintiff against a combination of
printers, publishers, and stationery dealers, known as the Printers5
Board of Trade of the city and county of San Francisco. The con
troversy was before the Circuit Court of Appeal of California in
1922, under the title Overland Publishing Co. v. Union Lithograph
Co. (207 Pac. 412; see Bui. No. 344, p. 79).
Alleged unlawful practices were engaged in by the board of trade,
by which it unreasonably increased prices for the sale of stationery
and other work done, as printing, ruling, binding, etc. The method
of distributing contracts, under which it sought to exclude from
business all persons not in their association, was described. How
ever, it had been found in the case above cited that its system of
charging excessive prices afforded no ground for complaint to one
not in the organization, since he was “ at liberty to bid for printing
work freely and without limit as to the price to be charged therefor.55
He would therefore be benefited rather than injured by the high

178

DECISIONS OF COURTS A F F E C T IN G LABOR

prices charged by the board, so that in this respect no relief was
available through the courts, no damages being shown. I f in fact a
conspiracy against trade did exist, an action could be brought only
by the attorney general or district attorney.
Other grounds of complaint, however, were apparently valid,
Judge Kerrigan, speaking for the court, saying:
The most important of plaintiff’s allegations is, substantially, that
all the journeymen printers, pressmen, and bookbinders in San
Francisco are members of their respective unions, and that it is im
possible to secure competent employees in the printing and stationery
business without employing members of said unions. Further, it is
alleged that in pursuance of the unlawful combination and con
spiracy, and for the purpose of utterly destroying the business of all
nonmembers of their associations, or, as the alternative, of forcing
all nonmembers engaged in said business to join said organizations,
the defendants, on November 23, 1920, entered into agreements with
said unions whereby the unions agreed that their members should
work for only such printing, ruling, or binding concerns as belong
to and are members of the associations of the defendants, and that
the members of said unions should not work for any concern not a
member of the associations of the defendants.
The effect of such an agreement would be to drive away the cus
tomers of nonmembers for fear that their orders would not be fillecf
by reason of the calling out of their union employees, and such an
incident had actually taken place. The case against the Union
Lithograph Co. had failed, in part at least, because no causal con
nection was shown between acts charged and consequences claimed.
“ The complaint in the case now before us does allege the neces
sary causal connection. It alleges the agreement between the 6Print
ers’ Board of Trade’ and the labor unions. Then it alleges that
the defendants, in order to force the plaintiff into its association
(and it had previously been alleged that this association constituted
a conspiracy against trade), ordered the unions to call out the union
men in plaintiff’s employ.” In consequence of these allegations
specifically made, “ it becomes necessary to pass upon the legality
of the agreement between the ‘ Printers’ Board of Trade’ and the
labor unions.” There was said to be no question “ but that the
primary purpose of this agreement was to create or carry out re
strictions in trade or commerce, and as such was tainted with
illegality.”
The action was under the Cartwright Act of California (acts of
1907, ch. 530, amended 1909, ch. 362), the antitrust act of the State,
containing the rather common provision that labor is not to be re
garded as a commodity under the act. Cases construing similar
laws of New York (Brescia Construction Co. v. Stone Masons’
Contractors’ Association, 195 App. Div. 647, 187 N. Y. Supp. 77;

LABOR ORGANIZATION'S

179

see Bui. No. 309, p. 138; Standard Engraving Co. v. Volz, 200 App.
Div. 758, 193 N. Y. Supp. 831; see Bui. No. 344, p. 179), and of
Colorado (Campbell v. People, 72 Colo. 213,210 Pac. 841; see p. 157),
were cited as indicating the illegality of such agreements under the
laws of those States. The instant case was also distinguished from
earlier decisions of the California courts. (Parkinson Co. v. Build
ing Trades Council, 154 Cal. 581, 98 Pac. 1027; see Bui. No. 81, p.
438; Pierce v. Stablemen’s Union, 156 Cal. 70,103 Pac. 324; see Bui.
No. 86, p. 334.) These opinions held “ that it is the right of every
man to engage to work for or to deal with or to refuse to work for
or to deal with any man or class of men as he sees fit, whatever his
motive or whatever the resulting injury, without being held in any
way accountable therefore.” But this “ only applies where the em
ployees are pursuing lawful means to secure a betterment of their
working conditions, or where they have in fact a grievance against
the employer.”
Taking up next the provision of the act that “ labor, skilled or un
skilled, is not a commodity,” it was said that this does not authorize
any such agreement as was here made between employers and em
ployees, citing Duplex Printing Press Co. v . Deering (254 U. S.
433, 41 Sup. Ct. 172; see Bui. No. 290, p. 174), construing the
Clayton Act, which contains a similar provision. It was there said
that “ there is nothing in the section to exempt such an organization
or its members from accountability where it or they depart from its
normal and legitimate objects and engage in an actual combination
or conspiracy in restraint of trade.” The present agreement could
therefore not be regarded as protected by this provision of the
Cartwright Act, and “ plaintiff, by alleging that it has been damaged
by reason of the union men in its employ being called out in pursu
ance of this alleged agreement, stated a cause of action under this
act for twofold damages.”
Another grievance alleged was the discrimination practiced
against the plaintiff in certain customary practices among printers.
Not all establishments are equipped with machinery, etc., to do
certain kinds of printing work, so that it is the custom for such
printers to send work to establishments having the required equip
ment. It was in evidence that members of the defendant association
are charged “ much lower prices for such work and materials than
are charged the plaintiff and other nonmembers.” The prices actu
ally charged were said to be “ unreasonable and exorbitant prices
for such work, all for the purpose of destroying the business of
plaintiff and other nonmembers, or, as the alternative, of forcing
plaintiff and other nonmembers to join said associations.”
Another practice was for members of the association to “ solicit
customers of plaintiff and other nonmembers and offer to do work

180

DECISIONS OF COURTS AFFECTING LABOR

for such customers at prices below the cost of production.” The
court found it to be a plain inference from these various allegations
that the acts were done for the purpose of “ forcing the plaintiff into
the alleged unlawful combination and thus strengthening theiy il
legal organization and its potentialities for accomplishing its alleged
objects.” Granting that these various acts might be innocent and
lawful in themselves, as for instance the solicitation of trade, taking
all the acts together, done as they were “ by the members of a trust
as defined by the Cartwright Act in pursuance of their unlawful
conspiracy and to effectuate its legal objects,” it was stated that they
may become unlawful. In support of this view, citation was made
from the following language by the Supreme Court:
It is suggested that the several acts charged are lawful and that
intent can make no difference. But they are bound together as the
parts of a single plan. The plan may make the parts unlawful.
(Swift & Co. v . United States, 196 U. S. 375, 25 Sup. Ct. 276).
Continuing, the court said:
It is the contention of the defendants that so long as they were
doing lawful acts their motives in so doing these acts were imma
terial. This court has often expressed the fundamental rule that bad
motives do not of themselves make an otherwise legal act illegal.
But, as pointed out by Mr. Justice Holmes in Swift & Co. v . United
States, supra, if various acts are done in pursuance of a plan or
scheme, the apparently lawful acts become so interwoven with the
clearly illegal acts as to render them indistinguishable. This we
believe is the situation here presented, assuming, o f course, that
plaintiff’s allegations are true, and it would in effect emasculate
the antitrust law to say that various acts done by the members of an
alleged trust, in pursuance of the conspiracy against trade, do not
lose their innocent character and become illegal.
In other words, acts having a direct causal connection or relation
to the existence ox a trust, when done by such a trust may lose their
legal character and become illegal. And it is the theory of the plain
tiff, and it so alleges, that the defendants constitute a trust, as
defined by the Cartwright Act, with its dominant purpose to sell its
goods at increased prices, and that all o f the acts alleged to have
been done by the defendants were done by them as members of this
alleged trust, and to further the illegal object of the alleged trust.
We are of the opinion that in these allegations the plaintiff has
brought itself within the purview of the Cartwright Act.
Granting that it was necessary for the plaintiff to show actual
damages, in order to recover under the act, “ damages in some amount
which are susceptible of expression in figures and not dependent
upon the conjecture of a jury,” this was said to be a question of proof,
and “ we see no reason why the plaintiff in this action should be
required to itemize its damages in its complaint.”

LABOR ORGANIZATIONS

181

The judgment of the court below sustaining the demurrer of the
defendants was therefore reversed, with directions to the trial court
to overrule the demurrer, thus permitting the trial to proceed.

L abor O rganizations— E mployers’ A ssociations— M onopolies—
C onstruction of S tatute— Johnson v. People, Supreme Court o f
Colorado {Decem ber h 1 92 2), 210 Pacific Reporter, page 848 .—
J. W. E. Johnson was convicted of unlawful combination under the
acts of 1913, chapter 161. All the points made except one are sub
stantially determined against him in Campbell v. People (210 Pac.
841), decided the same day. (See p. 157.)
An agreement was made among dealers in electrical appliances
who also made installations, by which they pooled, combined and
united their interests so as to increase the price of the manufacturers’
supplies and also the cost of installation. It was contended that in
stallation was labor and as such was exempted from the statute,
which says:
And provided further, that labor, whether skilled or unskilled, is
not a commodity within the meaning of this act.
The supreme court said on this point:
Since electric apparatus is generally sold with installation, to
control the price of the installation would be to practically control
the price of the apparatus and to defeat the law. While labor is not
a commodity under this act, yet electric apparatus is. The control
of the commodity price is forbidden, and any sort of combination to
control or establish its price is unlawful. It is unlawful, then, to
control the price of electric apparatus by means of the control of
the price of labor, and, so holding, we do not treat labor as a com
modity.
There is nothing in what we say or decide here to prevent labor
ers, skilled or unskilled, from combining to get better wages.
The judgment was affirmed in this case, as in Campbell v. People,
supra.

L abor O rganizations— E mployers’ A ssociations— M onopolies—
B estraint of I nterstate C ommerce— C ontrol of S ale of B uilding
M aterials— United States v. Industrial Assn, o f San Francisco,
U. S . D istrict Cowrt, Northern District o f California {N ovem ber 9,
192 8), 298 Federal Reporter, page 925 .—This

was a proceeding in
equity brought by the United States to secure an injunction against
about 40 defendants, among them the Industrial Association of San
Francisco and the Builders’ Exchange of that State, the latter with a
membership of more than 1,000 building contractors and dealers in
building materials. These groups were organized for the purpose

182

DECISIONS OF COURTS AFFECTING LABOR

of putting into operation what they designated the “ American plan ”
in the building industry in San Francisco and some of its neigh
boring counties. Fundamentally this plan provided against dis
crimination for or against any workman on the ground of member
ship or nonmembership in a labor union; in other words, the “ open
shop ” was to prevail. This requirement was to be enforced by the
obligation on the part of anyone engaging in a building operation
to secure a permit from the Builders’ Exchange, specifying the ma
terials to be furnished and the particular job on which they were to
be used. California products were for the most part designated, with
the avowed intent of avoiding interference with interstate commerce,
but it was on the grounds of such alleged interference that the pro
ceedings against the organizations were begun.
Judge Dooling, before whom the case was tried, announced that
the court was not concerned “ with the merits or demerits of the
plan,” nor with the recurring conflicts between employers and labor
unions. “ It is only when either side contravenes some Federal law
that the power of the court may be invoked, and then only to such
extent as may be necessary to prevent such contravention or to pun
ish those involved in it.”
On a review of the evidence Judge Dooling decided that there had
been such contravention, warranting the issuance of an injunction
against the requirement of any permit for the purchase of materials
or supplies produced without the State, or making as a condition for
the issuance of a permit any regulation that would interfere with the
free movement of supplies produced without the State.
From the injunctive orders thus secured the association and its
allies appealed to the Supreme Court of the United States, securing
a reversal. (Industrial Assn, of San Francisco et al. v . United States
(Apr. 13, 1925), 45 Sup. Ct. 403.)
Mr. Justice Sutherland, speaking for the court, developed the back
ground of the situation by setting forth the degree to which the
Building Trades Council of San Francisco, an organization of the
building trades-union of the city, had enforced its regulations upon
the industry. The closed shop was rigidly maintained, the number
of apprentices limited, output restricted, and the use of labor-saving
devices limited or forbidden. As an example, no plumber could
work on nonunion material, and if he set more than the standard
number of fixtures per day he was disciplined. “ The time which
any employer was permitted to stay on a job was limited to two
hours a day; as many men as the union saw fit could be ordered on a
job regardless of the wishes of the employer.” The painters’ union
forbade the use of wide brushes with long handles for roof painting,
“ and it was required that all such work should be done with a
small brush.” These and other like restrictions came to be regarded

tABOfc ORGANIZATIONS

183

“ by the employers and a large body of other citizens ” as being “ un
reasonable, uneconomic, and injurious to the building industries,”
decreasing production, increasing costs, and retarding progress gener
ally. An effort to reduce wages in 1921 resulted in strikes and the
practical stopping o f building operations in the city. Mass meetings
of citizens were held, the conclusion being reached that some means
must be devised for continuing building operations. A committee
of the chamber of commerce was designated to act, but subsequently
the Industrial Association was organized to carry on the work.
Justice Sutherland, after making the foregoing findings of fact,
took up the permit system, naming the materials listed for control
thereby. “ Substantially all of these were California productions
and were deliberately selected for that reason, in order to avoid
interference with interstate commerce.” Plaster was a “ material
exception,” being brought from outside, but consigned to manu
facturers’ representatives or local dealers in San Francisco, “ and
brought to rest in salesrooms and storehouses and commingled with
other goods and property, before being subjected to the permit rule.”
The association was diligent in inspection methods and other steps
to procure the enforcement o f the plan. “ Permits were extensively
withheld in respect o f buildings where the ‘American plan ’ was not
adopted or not enforced.” Fines and expulsions, and other meth
ods, “ in part persuasive and in part coersive, were adopted and
enforced in order to secure a thorough-going maintenance of the
plan.” Continuing Justice Sutherland said:
With the conflict between the policy o f the “ closed shop” and
that of the “ open shop,;’ or with the “American plan,” per se, we
have nothing to do. And since it clearly appears that the object
of the plan was one entirely apart from any purpose to affect inter
state commerce, the sole inquiry we are called upon to make is
whether the means employed to effectuate it constituted a violation
of the antitrust act; and, in the light of the evidence adduced, that
inquiry need be pursued little beyond a consideration of the nature
of the permit system, what was done under it, and the effect thereof
upon interstate commerce.
The bases of the decree, which, in the opinion of the court below,
were established, may be briefly and categorically stated as follow s:
1. Permits were required for the purchase of building materials
and supplies produced in and brought from other States into Cali
fornia.
2. Permits, even if limited to California produced materials,
nevertheless interfered with and prevented the free movement of
building materials and supplies from other States into California.
3. Persons in other States were directly prevented or discouraged
from shipping building materials and supplies into California.
Emphasis was placed by the opinion of the Supreme Court on the
desire of the association not to interfere with interstate trade, but

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DECISIONS OP COURTS AFFECTING LABOR

rather to avoid it. 44The thing aimed at and sought to be attained
was not restraint of the interstate sale or shipment of commodities,
but was purely a local matter, namely, regulation o f building opera
tions within a limited local area, so as to prevent their domination
by the labor unions.” It was recognized, however, that it was not
enough that the object of any combination or conspiracy be outside
the purview o f the act, if the means adopted to carry it out actually,
directly, and unduly obstructed the free flow of interstate commerce.
Not merely those combinations that contemplate restraint, but those
which in fact do restrain are covered by the law.
Taking up the first point on which the decree below was based, it
was admitted that other materials than those in the enumerated
list had been mentioned as 44necessary to add to the permit system.”
However, no permits were issued for others than the originally
listed materials, according to 44positive, uncontradicted evidence.”
Plaster, already referred to, before being subjected to the permit
system had lost its interstate commercial status by the ending of
interstate movement. 44What next was done with it was the result
of new and independent arrangements.”
On the second point it was said that the extent of interference
with the free movement o f materials and supplies from other States,
44being neither shown nor perhaps capable o f being shown, is a
matter of surmise.” Whatever its extent it was not within the
design of the association, but was 44purely incident to the accom
plishment o f a different purpose.” Special stress had been laid on
the matter o f plumbing supplies. An indirect effect would follow
from the inability of a builder not following the American plan
to procure essential building materials, as it would, o f course, make
it undesirable for him to purchase plumbing supplies, since he would
have no use for them. However, there was no direct interference
with the freedom o f the manufacturer to sell or the local contractor
to buy, the process only removing the incentive to purchase. This
44incidental, indirect, and remote” effect was within the doctrine
of cases recently decided, and particularly o f the case of United
Leather Workers v. Herkert & Meisel (p. 212). In that case em
ployers sought recovery against striking leather workers by whose
conduct manufacture was prevented, thus interfering with interstate
shipment. It was there said that the Federal jurisdiction did not
reach to obstructions o f manufacture, since that was not in itself
commerce, the antitrust law having regard only to matters of com
merce and not to the production of materials for shipment there
under. Other cases relied upon by the Government were Loewe v.
Lawlor (208 U. S. 274, 28 Sup. Ct. 301), where labor organizations
carried on a country-wide boycott against hats manufactured under

LABOR ORGANIZATIONS

185

nonunion conditions; and Duplex Co. v . Deering (254 U. S. 443, 41
Sup. Ct. 172; see Bui. No. 290, p. 171), where a similar endeavor
was directed against the use o f printing presses manufactured by
the Duplex Co. The court found these cases not in line, but rather
illustrative o f the vital difference between “ a direct, substantial, and
intentional interference with interstate commerce and an inter
ference which is incidental, indirect, remote, and outside the pur
poses of those causing it.”
The third point considered was as to the prevention or discour
agement of shipments into California from other States. “ The
evidence is conflicting,” but, taking the cases one by one, “ the inter
ferences which may have been unlawful are reduced to some three
or four sporadic and doubtful instances during a period o f nearly
two years.” Measuring their importance, amounting to, “ at the
utmost, a few thousand dollars, compared with an estimated ex
penditure of $100,000,000 in the construction of buildings in San
Francisco during the same time,” such interference “ becomes so
insignificant” as to pass out of the purview of the court. “ To
extend a statute intended to reach and suppress real interferences
with the free flow o f commerce among the States to a situation so
equivocal and so lacking in substance would be to cast doubt upon
the serious purpose with which it was framed.”
The decree below was therefore unanimously reversed and the
cause remanded, with instructions to dismiss the bill.

L abor O rganizations— E mployers’ A ssociations— O pen -S hop
C ontract— C onspiracy— I njunction — Trade Press Publishing Co.

v. M oore , Suprem e Court o f W isconsin {M a y 7, 1 9 2 3 ), 193 N orth
western R eporter , page 507 .—The Trade Press Publishing Co. and
nine other employing printers of Milwaukee were the plaintiffs in
this case, seeking an injunction against Raymond T. Moore and
others, members of the Milwaukee Typographical Union, No. 23.
The employers had all been in business for a number of years and
together employed about 125 compositors. In 1918 an employers’
association, unincorporated, of which all the plaintiffs were mem
bers, had made a contract with the typographical union for a term
of three years, establishing a closed shop, wages, etc., and a standard
work week of 48 hours. Near the end of this contract the local
union, carrying out the policy of the international, sought a new
agreement, to be effective at the close of the existing one, maintain
ing the closed shop, and among other provisions calling for a 44hour standard week with increased wages. The plaintiff em
ployers agreed not to enter into this contract, and so informed the
local union.

386

DECISIONS OF COURTS AFFECTING LABOR

On the day following the expiration o f the original contract a
strike of the compositors was called, and the plaintiffs’ workmen of
this class left their service. This was on July 1, 1921. About
August 9 the plaintiffs and other employing firms agreed to operate
on an open-shop basis and not to make any contract, directly or
indirectly, with the union. Through the newspapers and by letter
to the union information was given that individual contracts should
be made with the workmen, that the open shop would be maintained,
and that a 48-hour week would be the standard. Employees so
hired agreed not to participate in any strike or boycott during
the period of their employment. On October 25 the union was
informed in writing o f the above arrangements, and it was requested
to cease its attempts to interfere with the contract relations between
the plaintiffs and their workmen thus employed.
The employers declared that they were united in this action and
that all had an interest in it and all were affected by the efforts of
the union to interfere with their chosen course of conduct. It was
alleged that their employees had been illegally interfered with by
threats, the use o f vile names, assaults and wounds; that large num
bers had gathered about the plaintiff’s places o f business and free
passage to and from their premises had been obstructed, so that
intimidation had resulted. An injunction was therefore desired to
perpetually restrain the union and its sympathizers and agents from
carrying out the conspiracy which resulted in the illegal acts com
plained o f; also an accounting for damages and for other and
further relief.
Affidavits in support o f the charges of illegal acts were submitted,
and on them and the complaint a temporary injunction was issued
on November 4, which was, on hearing, subsequently modified to
some extent and continued. At this hearing it appeared that the
plaintiff corporations were not financially interested in one another’s
business; that there were some 33 signers to the prior contract
terminating June 30; and that the demands made by the local union
were regarded as harsh and unjust, designed to strengthen the con
trol o f the union over the employers’ businesses, with resulting in
creased cost o f production. It was also said that the employers
wished the composing departments to afford equal opportunities to
all, with a wage commensurate with efficiency and ability, and that
the employers desired to stand on an equal footing so that none o f
them should be preferred or discriminated against by organized
labor. The employers believed that unfair labor unions had in
dulged in unlawful practices, but by combining they would be able
to ward off injuries; while if one or other o f the employers should
yield, the unions would be able to turn destructive forces against

LABO& ORGANIZATIONS

187

such employers as declined to accept their terms. The plaintiffs had
therefore agreed to stand together as a unit, promising to pay into a
common fund 5 per cent of their mechanical pay roll for the year
1920 as liquidated damages in case any employer failed to hold to his
agreement, this sum to be distributed among the employers holding
thereto. Provision was made for release and for the general termi
nation of the contract, but it was binding on heirs, executives, suc
cessors, and assigns unless a release as provided for was obtained.
The individual defendants demurred to the foregoing complaint,
alleging that several causes of action had been improperly united;
that no sufficient cause of action had been stated; that the court had
no jurisdiction over the persons of the defendants; and that it had
no jurisdiction over the subject of the action. This demurrer was
overruled on hearing, and the order continued except as to four of
the plaintiffs.
Judge Eschweiler stated the foregoing facts, and then took up the
various contentions offered. A State law provides that several per
sons having a common interest in an action and in obtaining the
relief demanded may be joined as plaintiffs, and that one or more
may sue or defend for the benefit of the whole. The plaintiff em
ployers were found to come within the terms of this section o f the
law, the complaint being a proceeding in equity to protect them all
as a class from interference by the members of the union by carry
ing out the alleged conspiracy which was directed to the employing
printers as such rather than as individuals.
Other questions of procedure were disposed of, likewise in favor
o f the complaint as made; nor was the prayer for relief by an
award of damages so improperly joined with the other parts of the
petition as to invalidate them. In conclusion the court said:
Defendants insist that the agreement between the plaintiffs and
other printing establishments o f August 9, the substance of which
is set forth in the statement o f facts supra, shows upon its face a
violation of either section 1747e, Stats., prohibiting contracts or
combinations in restraint of trade or commerce, or section 4466a,
Stats., prohibiting combinations for the purpose of injuring anyone
in his trade or business, or section 4466b, prohibiting blacklisting or
coercion, or section 4568, Stats., relating to common-law conspiracy,
or, finally, that the purpose o f such contract is contrary to good
public policy, and that for any and all of such reasons the plaintiffs
ought not to be heard in a court of equity to obtain reliei against
defendants charged with a conspiracy to mjure plaintiffs when the
plaintiffs themselves are parties to a contract which should equally
merit the condemnation or the court.
O f possible constructions o f such contracts, that must be adopted
which would make it lawful rather than one making it unlawful.
We can find nothing on the face of the contract here presented which
can be reasonably construed to be a violation of any one of the spe

188

DECISIONS OF COURTS AFFECTING LABOR

cific statutes just above cited. It is in effect an agreement that there
shall be by the employers no individual but only collective bargain
ing with the union or other labor unions. On its face it does not
show a purpose to unlawfully interfere with, impair, or impede the
individual defendants or other individual workmen so as to require a
holding that it is a violation of public policy.
It follows from what has been said that each of the orders ap
pealed from must be affirmed.
Two justices dissented, Judge Crownhart submitting a dissenting
opinion, in the beginning o f which he said:
I regret I can not concur in the opinion of the court. It seems to
me*that we have here a judicial sanction by a court of equity of an
unlawful boycott in an aggravated form. It is a universal rule of
equity that the plaintiff must come into a court of equity—a court of
conscience—with clean hands. The plaintiff must be able to appeal
to the conscience of the court because he is free from wrong himself
and has right and justice on his side. It is in such cases, and such
cases only, that this court, under its equity jurisdiction, will grant
relief.
Without being called upon to approve the acts of the union, the
question was considered as to the nature and purpose of the associ
ation of employers, of which Judge Crownhart said:
I f we look back of the pretentious recitals preceding the agree
ment, the purposes o f the combine can not be mistaken. It is to
utterly destroy the workmen’s union, which is a lawful organization,
and force the employees to deal with the combine as individuals. It
has long been recognized that in such a position the workman is
forced to accept his employer’s terms. No individual workman can
bargain on an equal footing with organized capital.
The effect of the unlawful agreement made by the employing com
bine is: To prevent the workmen from collective bargaining; to re
duce them to the position of individual bargaining, which is recog
nized by law and by sound economic principles as inadequate to the
welfare of workmen or society as a whole; and to destroy the union
of workmen, which is undoubtedly the prime purpose o f the illegal
combine.
The result o f this action was held by Judge Crownhart to bring
the employers’ association within the condemnation of the antiboy
cotting statute o f the State (sec. 4466a, Wisconsin Stats.), which
makes it unlawful for any two or more persons to combine, agree,
etc., “ for the purpose of willfully or maliciously injuring another
in his reputation, trade, business, or profession by any means what
ever, or for the purpose o f maliciously compelling another to do or
perform any act against his will, or preventing or hindering another
from doing or performing any lawful act.” Since it seemed clear to
Judge Crownhart “ that the combine of employers is illegal and
criminal,” he was of the opinion that the court should refuse to
recognize the petition offered and should dismiss the action.

LABOR ORGANIZATIONS

189

L abor O rganizations— E xpulsion of L ocal from I nternational
U nion — R ules— I njunction — Sim ons v. B e r r y Sv/preme Court o f

New

Y o r k , A ppellate Division (J uly 8 ,1 9 8 4 ) , ®05 N ew Y o r k S u p

plement, page $ . —The plaintiff, David Simons, was a member of
Web Printing Pressman’s Union, Local No. 25, at the time that the
international union revoked its charter for violation of the laws of
the international union. After the revocation, an agreement was
entered into between the officers of the former local and the inter
national union whereby the affairs of the local were wound up and
the property turned over to the international union. The agreement
also contained provisions for the admission of the former local mem
bers into the international union, with the exception of the plaintiff.
Some time thereafter the plaintiff, under a covenant with it, made
written application for membership in the international union. The
board of directors was the authority empowered to act upon the ap
plication, but pending a meeting of the board the plaintiff applied
for a “ mandamus order to compel the directors of the defendant
union to issue to him a membership card.” After a hearing, in com
pliance with the judicial direction, the board rejected the applica
tion. The plaintiff then commenced an action to compel the inter
national union to admit him to membership. The complaint in
that action was dismissed “ upon the ground that the court can not
compel a voluntary unincorporated association to admit the plaintiff
to membership, and that the plaintiff had a remedy within the
organization itself, which he must exhaust before the courts would
extend relief.” This action, commenced after the dismissal referred
to, does not refer to the application for membership, but alleges that
the plaintiff was a member of the defendant union, that no charges
were presented, and that he was notified that “ his application for
reinstatement as a member of the union was rejected.” The supreme
court held that the proof showed that the plaintiff’s membership
was in the local union, and that his application was for membership
in the international union and not for reinstatement.
Mr. Justice McAvoy, speaking for the supreme court, said:
There is no rule of law anywhere which gives power to a court
to compel a membership corporation or a voluntary association to
accept an applicant as a member of such bodies, and there is no doubt
that defendant was within its legal rights in rejecting plaintiff’s
application for membership.
The charter of the local was revoked and the question of the
legality of that revocation was not raised; however, the plaintiff
“ acquiesced in such revocation by joining in the agreement.” In
conclusion, Mr. Justice McAvoy said:
The application can not be considered as one for reinstatement but
must be regarded as one for membership. Plaintiff’s status before

190

DECISIONS OF COURTS AFFECTING LABOR

the court is that o f a new applicant seeking to compel the defendant
union to admit him. Whether to grant or refuse membership in a
voluntary association is a matter under complete control of the
organization itself, and the ruling is not subject to review by the
courts.
The injunction pendente lite restraining the association from stat
ing that the plaintiff was not a member of the union in good stand
ing and enjoining the defendants from interfering with him in any
employment he might obtain as a pressman, and from calling out any
member from any place where the plaintiff might be employed be
cause of his employment therein, which was granted at the begin
ning of the action, was reversed and the motion was denied.

L abor O rganizations— E xpulsion of L ocal from N ational
U nion — R elation to N ational O rganization— C onspiracy— M usi
cal Mutual Protective TJmon v. W eber, Supreme Court o f New Y ork
County (A pril 1 , 1921), 205 New Y ork Supplement, page 599 .—In

June, 1920, a wage controversy arose between musicians who were
members of the plaintiff union and the theaters in which they
played. Not being able to settle the affair satisfactorily, the Ameri
can Federation of Musicians, the national body, was appealed to,
and it settled it but not to the entire satisfaction of the local union.
The settlement was ratified by the plaintiff under protest, one ele
ment especially bitterly opposing the terms o f settlement. This
element organized to fight those who had favored the settlement
and, having control of the board of directors, suspended the presi
dent for refusing to recognize an attorney appointed by them. The
president received from the national body a stay of the judgment
suspending him, and this element, called the “ Quorum Club,” re
fused to recognize the stay o f suspension. As a result the presi
dent o f the federation suspended the eight directors concerned.
They were afterwards reinstated by the order of the supreme court,
it being held that “ the American Federation of Musicians had no
right to interfere with the internal control of Local 310.” On August
27, 1921, Local No. 802 was organized by the American Federation
of Musicians, many o f its members having been members o f the
plaintiff. The plaintiff, Local No. 310, recognized the organization
of Local No. 802 and allowed its members to join. But in June,
1921, four members of the federation from other locals presented
membership cards and asked Local No. 310 for local membership
cards, and upon being refused they filed charges against the local
for violating the laws of the federation. The plaintiff was notified
but asked for postponement of the hearing, which request was not
replied to. A t the time o f the hearing the plaintiff did not appear

LABOR ORGANIZATION'S

191

and was accordingly suspended. The charter and other federation
property were demanded. The plaintiff presented an appeal to the
national convention some eight months later but it was refused.
Most of the members of the plaintiff union finally joined Local
No. 802. The plaintiff union then brought an action against the
president of the federation to reinstate the local in the national
union, alleging that there was a conspiracy to deprive the plaintiff
of its affiliation with the national organization. Mr. Justice Black,
speaking for the supreme court, said:
I do not believe there was proved at the trial any illegal con
spiracy by defendants. This belief is greatly strengthened by the
fact that the acts complained of were acquiesced in by some of the
very members who are named officers o f plaintiff. There are in
evidence notices served by the plaintiff upon persons charged with
infractions o f its rules which give no more time, in fact, much less,
than that allowed by the American Federation of Musicians to
plaintiff upon the hearing o f the charges regarding transfer cards.
The learned justice then set forth nine points:
Every local incorporated under the laws of New York has a
perfect right to govern its own internal affairs.
I f a local such as 310 becomes affiliated with the national body,
the charter granted by the American Federation of Musicians be
comes a contract with the local, and if the local wishes to avail
itself of the advantages of the national body it must obey the rules
of the national body.
It can violate these rules by a majority vote of its organization.
But i f it does violate such rules it incurs the penalties prescribed
by the by-laws of the American Federation of Musicians.
One o f these by-laws authorized the suspension of Local 310 by the
executive committeew>f the American Federation of Musicians.
In the attempted enforcement of the by-laws of the American
Federation of Musicians the method of procedure must be regular
and legal.
There was nothing illegal or unreasonable in the method em
ployed * * * in attempting to enforce its by-laws by suspend
ing Local 310.
The suspension o f Local 310 did not illegally deprive the great
mass of its members of the opportunity to earn their livelihood.
I do not believe that the action of defendant has illegally injured
or will illegally injure the real estate of the plaintiff.
The application for an injunction was therefore denied and the
complaint was dismissed because the plaintiff did not sustain the
allegations contained therein.
See also Taussig v . Weber, following.

L abor O rganizations— E xpulsion of L ocal from N ational
U nion — R ules— E ffect upon M embers of L ocal U nion — Taussig

44915°—25----14

192

DECISIONS OF COURTS AFFECTING LABOR

W eb er, Suprem e Court o f N ew Y o r k , N ew Y o r k C oun ty (A p r il
1,1921^), 205 N ew Y o r k Supplem ent, page 605 .—Leo Taussig was a

member of the Musical Mutual Protective Union, which was local
No. 310 o f the American Federation of Musicians. The local was
expelled and the plaintiff claimed that by the expulsion of local No.
310, which deprived him o f his membership in the American Fed
eration of Musicians, “ he was deprived of his valuable status as a
member without due process of law, was injured in his professional
standing as a musician, and became the victim o f a malicious boycott
in restraint of trade.” He asked that he and others similarly situ
ated be reinstated as members o f the American Federation o f Musi
cians, and that defendants, the president of the federation and an
other, be restrained from boycotting him and others similarly situ
ated. The plaintiff contended that members by reason of their mem
bership in locals of the American Federation o f Musicians become
members of the American Federation o f Musicians, the parent or
national body, and that membership continued despite the expulsion
o f the local. Mr. Justice Black, speaking for the court, said:
As long as a local is in good standing its members are members of
the American Federation o f Musicians; but when a local is expelled
its members cease to be members of the parent or national body. The
expulsion of Local 310 carried with it the loss by its members of
membership in the American Federation of Musicians. I f a local
could be expelled without affecting its members, the expulsion would
amount to" nothing, because it could not be enforced.
The complaint was therefore dismissed upon the merits.
See also Musical Mutual Protective Union v. Weber, above.

L abor O rganizations— E xpulsion of M ember— L iability for
D amages— S uability — C onstitutionality of S tatute— Grand I n
ternational Brotherhood o f Locom otive Engineers

Green, Suprem e

Court o f Alabama (N ovem ber 2 9 ,1 9 2 3 ), 98 Southern R eporter, page
569 .—J. W. Green sued the Grand International Brotherhood of
Locomotive Engineers to recover damages “ for his wrongful and
malicious expulsion from the order.” Judgment had been in his
favor in the circuit court of Dallas County, and on this appeal there
was a conditional reversal. This amounted, however, to an affirm
ance on condition of a remittitur o f a portion of the damages
awarded.
The case had previously been before the supreme court, when a
judgment against the brotherhood had been reversed on the ground
that an unincorporated association, as this was, could not properly
“ be sued as such, nor in the name o f the association, without more.”
(Same case, 206 Ala. 196; 89 So. 435.)

LABOR ORGANIZATION'S

193

Subsequent to the rendition of the foregoing decision the legis
lature enacted a law (Acts of 1921, No. 13) providing for procedure
against unincorporated organizations or associations. The action
against the brotherhood was later renewed and a judgment again
rendered against it. On this appeal it was contended that the former
judgment holding that the unincorporated association could not be
sued was erroneous, citing the decision of the Supreme Court in the
Coronado case (259 U. S. 344; 43 Sup. Ct. 570; see Bui. No. 344, p.
157), where it was held that unincorporated labor unions were suable
as such in the Federal courts, on account of their having been rec
ognized as distinct entities by numerous acts of Congress and on
other grounds. As to this Judge Sayre, who delivered the opinion,
said: “ This places liability, so far as the Federal courts are con
cerned, upon the statute law governing those courts, and in no wise
impairs the integrity of our decision on the former appeal in this
cause.”
Taking up then the act of 1921 it was found to declare that any
“ organization or association shall be suable in any action now pend
ing or any cause of action now existing or hereafter arising.” As
to this statute Judge Sayre further said:
This act—certainly in so far as it applies to causes of action subse
quently arising—impairs no obligation of contracts, affects no vested
rights, and was within the competency of the legislature. It is a
remedial statute, and must be liberally construed to advance the com
petent legislative purpose. As applied to transactions past at the
time of its enactment it impaired no vested rights; it merely affects
the mode of judicial procedure. Executions on judgments rendered
in pursuance of the act are now leviable upon the property of the
defendant organization or association and are thus made to reach
property which, prior to the act, could not so be reached, nor at all
except by a circuitous action through the individual members; but
the ownership of any property or funds acquired by the association
vests in the members jointly, and the act affects only the remedy by
providing more direct access to such property. The act is therefore
remedial in character, and its application to proceedings pending at
the time of its enactment works no hardship or injustice, but, rather,
protects and secures the existing rights of parties. O f the com
petency of the legislature, in general, to enact such law there can be
no doubt.
As to the contention that the statute was retrospective and in so
far without constitutional validity, the court found the rule to be
established that “ remedial statutes, in regulation of judicial pro
ceedings,” may properly operate retrospectively; that is, upon pend
ing actions and causes of action. No new substantive rights were
created and no vested rights impaired, as was the case in the cases
cited by the appellants, so the law must be held valid in this respect
also.

194

DECISIONS OF COtJRTS AFFECTING LABOtt

Another plea was that Green had no standing in court since he had
not exhausted the remedies provided by the association. What had
happened was that Green had been expelled from membership be
cause, “ when the strike of the railway brotherhood was being dis
cussed just prior to the declaration of a state of war between the
United States and Germany, plaintiff declared his personal allegiance
to his country.” The expulsion caused the loss of the benefits of two
insurance policies which Green had long held in an adjunctive cor
poration, which was an element of the damages sought.
The bearing of these facts on the contention that recourse had not
been had to the association was indicated in the statement by Judge
Sayre that if he had simply sought restoration to membership it
would have been necessary to pursue the course prescribed by the
association, since “ the remedy in the courts is of such nature that
it is allowed as a last resort.” But the present action is not for rein
statement but for damages for the injury done to person and
property by the wrongful expulsion from the brotherhood. While
authorities differ, the court regarded it as the better view that no
allegation need be made of appeals to avoid the decree of expul
sion, since “ a reversal of the decree would not afford full redress for
the injury to his property rights and other damages suffered on
account of his expulsion from the brotherhood.”
The next point taken up is thus discussed by Judge Sayre:
It is also suggested that the grand international brotherhood
should not he held answerable for what was done by the local branch
at Selma in the absence of averment and proof that the parent
organization actually participated in or ratified plaintiff’s expul
sion. That is precisely what the act intends to accomplish, subject,
of course, to the rule affirmed in Supreme Lodge v. Kenny (198 Ala.
332; 73 South. 519; L. R. A. 1917C, 469), where it is held that the
parent organization is liable for the torts of its local branches done
in the line and scope of its duties. Its effect is that the privilege
of association must be accepted with the burden of liability for the
acts of local branches, a liability which reaches only the funds of
the association, not those of its individual members, unless individual
members are sued. It may be admitted that the constitution, laws,
and regulations of the brotherhood are in the nature of a contract
between its members, and they, as well as the brotherhood, are bound
thereby; that the courts are not disposed to interfere with the in
ternal management of such associations; that the expulsion of a
member, if for cause within the jurisdiction of the tribunal of the
association by which it is pronounced, after notice and an oppor
tunity to be heard and a trial conducted in accordance with the con
stitution, laws, and regulations of the association, is conclusive upon
the civil courts; but the courts hold that such associations must act
in good faith and must not violate the laws of the land or any in
alienable right of their members.

LABOR ORGANIZATIONS

195

The actual reason for the expulsion was said not to tje just or
sufficient under any law of the brotherhood or of the land.
The final consideration related to the amount of damages. The
jury’s award was regarded as excessive by the court below, and a
judgment was entered for $17,500. The supreme court considered
the amount still excessive, saying that the jury had evidently added
punitive damages to the substantial damages found in an amount
above that regarded by the court as warranted.
The judgment was therefore reversed unless the plaintiff would
within 30 days remit all damages in excess of $12,500; but if the
amount should be remitted, the judgment as then reduced would be
affirmed.
L abor O r g a n iza t io n s — E x p u l s io n of M em ber — R ules — 'Whitney

K in g , Suprem e Court o f N ew Y o r k , A ppellate Division (S eptem

ber 26, 192 4), 206 N ew Y o r k Supplem ent, page 194 •
—Kelley

W.
Whitney was a beneficiary member of the Brotherhood of Railroad
Trainmen, an unincorporated association, being a participant in the
association insurance fund. He was charged with violating an ob
ligation of the order, having “ coupled an air hose on a train in the
Delaware & Hudson yard while working as a special officer.” He
was notified of the charges and answered by letter stating that he
was not guilty o f the charge, but stated that he declined to appear,,
because, “ as the case stood, he would be found guilty ” ; he further
said, “ So you can take any action you care to do in this case.” He
was then expelled and thereafter he did not pay any dues or assess
ments which “ were required to be paid by beneficiary members,” nor
did he take any action to be reinstated. He was expelled in August,
1922, and died on February 8, 1923. Phoebe Whitney, adminis
tratrix of his estate, brought an action claiming that she was en
titled to the amount of the beneficiary certificate, as the alleged ex
pulsion “ was a nullity.” The court below at the trial term directed
a verdict and gave judgment for the plaintiff. The defendant, treas
urer of the grand lodge of the brotherhood, appealed.
The supreme court on review said:
When the plaintiff’s intestate declined to appear and answer the
charges, and informed the lodge that it could take such action as it
saw fit to take in his case, and after notice of his expulsion took no
steps to review the action or to procure reinstatement, he aban
doned all his claims as a member of the order, and waived all
notices and formalities in its procedure following the serving of the
charges upon him. The beneficiary certificate became invalid when
he was expelled.
The judgment was reversed and the complaint was dismissed.

196

DECISIONS OB' COURTS AEB'ECUNG LABOB

L abor O r g a n iza t io n s — I n d u s t r ia l W orkers oe t h e W orld C r i m i n a l S y n d ic a l is m — S abotage — C o n s t it u t io n a l it y oe S t a t
u t e — E vidence —State v. D ingm an , Suprem e Court o f Idaho ( M a y
30) 1923)) 219 Pacific R eporter , page 760.—William Dingman was

convicted in the district court of Bonner County o f a violation o f
the criminal syndicalism act of Idaho, and appealed. The judg
ment o f the court below was reversed because of the admission of
certain evidence offered, and a new trial was awarded, two of the
five judges dissenting. Dingman, with 22 others, was, in December,
1919, charged with having violated the law that forbids organiza
tions and assemblages which advocate the doctrine o f criminal syndi
calism, to wit, “ the doctrines which advocate crime, sabotage, vio
lence, and unlawful means of terrorism as a means of accomplish
ing industrial and political reform.”
On the appeal various assignments were made, some going to the
constitutionality of the law, others to the sufficiency of the informs**
tion, others to admission or exclusion of evidence, etc. As to the
question of constitutionality Judge William A. Lee, who delivered
the opinion of the court, found the objections raised invalid. The
first was that the statute (act of March 14, 1917, C. S., secs. 8580,
8581) was vague, indefinite, and uncertain in its terms; that it was
class legislation; that it provides cruel and unusual punishments;
and it invades the personal liberties of citizens in attempting to
make unlawful mere association.
It was stated that prior to the date of the enactment o f this law
the words “ syndicalism” and “ sabotage” had been defined in
various dictionaries and encyclopedias so that there was a clearly
Understood significance attached thereto. It may be safely con
cluded therefore that the legislature “ had used the terms advisedly,
und in the sense in which they had been used by other legislatures
and standard works, and by courts in the administration of similar
laws in other jurisdictions.”
Furthermore, the statute would be clear as to the offense prohibited
even if the word “ sabotage ” were eliminated, as it specifies crime,
violence, and unlawful methods of terrorism. The objection based
on class distinction was likewise found ineffective, nor was there any
cruel or unusual punishment involved contrary to the Constitution,
nor does the law make mere association unlawful. The statute was
therefore sustained as valid.
In the next assignment the charges were that the defendant had
advocated the prohibited doctrine; had organized and helped to
organize assemblages in the name o f the Industrial Workers o f the
W orld; had himself become a member of such society and had re
tained such membership. These acts were forbidden by section 8581;
while to participate in an assemblage of persons advocating or teach

LABOR ORGAtfIZATIOHS

197

ing such doctrines was also charged, such offense being classified as a
felony. The court found that it was merely the purpose of the legis
lature to “ define the offense of criminal syndicalism, and make clear
what specific acts, if committed, would constitute criminal syndical
ism,” taking the position that if the facts charged constitute but a
single offense, the indictment was in proper form, acts of omission
and commission being taken to represent steps of a single transac
tion.
Evidence was Submitted in the form o f books, pamphlets, member
ship cards, newspaper publications, etc., purporting to set forth the
teachings, doctrines, purposes, and objects of the organization.
“ Much of it is of a highly inflammatory character, well calculated to
incite lawlessness.” Most of these publications were published by the
“ I. W. W. Publishing Bureau,” but it was urged that there was no
evidence that this exhibit constituted the teachings of the organiza
tion, nor were the authors brought into court and there cross-exam
ined as to the correctness of the views expressed as representing the
ideas of the organization; hence they should be excluded on the
ground o f their being hearsay. This contention the court rejected,
saying o f these publications that—
They have been so frequently referred to in the current literature
o f the day, including the reported decisions, that they have become a
part o f the current political history of the times, and are clearly
admissible for the purpose o f showing the character and teachings of
this order.
The State offered the testimony of a large number of witnesses
who were permitted to testify as to conversations had with various
persons in widely scattered localities at widely different times, who
were not in any manner connected with the case nor any of the
parties to it, but who professed to expound the teachings, doctrines,
and purposes of the order on the basis of these conversations. Some
200 pages of the record were taken up with testimony o f this char
acter, the nature of which was said to be “ so clearly hearsay evidence
that unless some reason can be advanced or some authority found to
show that the age-old rule which excludes hearsay evidence and
makes its admission reversible error can not be invoked in the de
fense of an I. W. W., the admission o f this testimony was reversible
error, for it can not be denied that it is hearsay of the clearest and
most pronounced character.” The court could find no reason, nor
had any authority been cited in favor of admitting hearsay evidence
in “ prosecution for this class of offenses.” A number of the state
ments introduced and admitted were reproduced in print, but the
court found nothing to connect the parties in the alleged conversa
tions with the instant case, nor were the witnesses testifying doing
anything other than giving their conclusions as to what this or that

198

DECISIONS OF COURTS AFFECTING LABOR

person said were the doctrines and teachings o f the I. W. W. The
statements were of persons unknown to witnesses, whose conversa
tions were “ in this indirect manner put into the record against the
defendant, thus violating the constitutional right o f the defendant
to be confronted by the witnesses against him, and to have an oppor
tunity to appear and cross-examine them.” The defendant’s attor
neys objected to the admission o f such evidence, and after it was
admitted a motion was made to strike it out, which was denied.
On the other hand, a witness for the defense who announced himself
as a member of the I. W. W., secretary and treasurer of the defense
committee, a delegate to the eleventh I. W. W. convention at Chicago,
and a student of its literature, was not permitted to testify “ on the
ground that a member o f the organization can not testify what are
the purposes of the organization.” This witness was further asked
by the defense as to the discussion in the convention, what was the
attitude of the organization as expressed by its members with regard
to the subject of violence, etc., all of which counsel for the State
objected to, as calling for a conclusion of the witness, and because
“ the position of the organization could not be shown by the indi
vidual opinion of its members,” which objection the court sustained.
Another question was as to whether or not the organization advo
cated violence, to which the witness was not allowed to answer on
the ground that he had not been shown competent to testify. O f
these admissions and exclusions, the court said:
Notwithstanding the official character of the witness and the show
ing made with regard to his special qualifications^ which would tend
to acquaint him with the objects of the organization, it may be that,
under a strict application or the rule of hearsay and the rule calling
for the best evidence, the testimony was properly excluded. But we
are unable to conjecture why or upon what conceivable theory counsel
for the State could contend that this testimony was not admissible
and maintain that the character of testimony above related, offered
by the State and received over defendant’s objection, was competent.
Surely it can not be that the State may successfully offer this class
o f testimony in the prosecution o f persons charged with a felony,
and then insist that such persons are prohibited from meeting this
class of testimony by witnesses who show themselves in some degree
at least qualified to speak concerning the objects and teachings of
the order.
Certain exhibits were also rejected which were “ of the same gen
eral character as exhibits offered by the State,” such exhibits being
offered for the purpose of showing that this organization did not
approve, or had modified its position with regard to, the doctrines
promulgated by some of the exhibits of earlier date offered by the
State. I f such were the facts, the exclusion o f this testimony was
erroneous, since if the State can offer evidence charging membership
in an organization that teaches certain practices, the defendant’s

LABOR ORGANIZATIONS

199

ought not to be debarred from offering similar exhibits tending to
rebut the State’s evidence.
The contention was made that notwithstanding errors committed
in admission of this hearsay evidence, there was still sufficient com
petent evidence to sustain the conviction, so that the error, if any,
was without prejudice. O f this Judge Lee said, “ Where a convic
tion follows the admission o f incompetent evidence, it is never
possible for the court to say to what extent its admission influenced
the verdict.” Moreover, no sanction should be given by the court
to the making of an exception disregarding and setting aside the
fundamental and important rules as to admission of hearsay evi
dence, but it must maintain settled principles and act under the
limitations and restrictions imposed by law.
I f it were otherwise, they would exercise a mere autocratic power
to arbitrarily uphold or set aside a conviction for crime, irrespective
of the settled rules of procedure. They are not clothed with that
power, but must extend to every p* rson charged with crime the
equal protection of the law. The judgment should be reversed and
a new trial awarded.
L abor

O r g a n iza t io n s — I n j u n c t io n — C o n t e m p t — “ C iv il ” —

“ C r i m i n a l ” — P rocedure —R eeder

M orton-G regson G o .; P y le

Sam e, United States Circuit Court o f A ppeals, E ig h th

Circuit

(February 29, 1 92 4), 296 Federal Reporter, page 785.—Jay Reeder
and Arthur Pyle had been found guilty of violating an injunction
secured by the Morton-Gregson Co., restricting the picketing of its
plant and of the approaches thereto. One C. M. Aldrich had pre
sented an affidavit to the district judge to the effect that Reeder and
Pyle .and others with them had engaged in conduct prohibited by
the injunction. On the presentation of this affidavit the judge or
dered them to appear and show cause, if any they had, why they
should not be punished for contempt. They appeared in person and
by counsel, submitted evidence and their own testimony, and were
found guilty and sentenced to jail for 60 days each.
Writs of error were sued out, alleging 19 errors, but on the bear
ing all these alleged errors were abandoned, and the only question
presented was whether the district judge had the right to commit
them to jail. They claim that he had not, because the proceeding
was in the nature of a civil contempt, though they admitted that if
it were a criminal case the judge was within his rights. As to this
Judge Sanborn said:
A civil contempt is a refusal to do an act commanded, and is
remedied by imprisonment or like coercion until the party performs
the act. A criminal contempt is the doing o f an act forbidden. It
is a past act. It is a thing done, and imprisonment therefor is

200

DECISIONS OF COURTS AFFECTING LABOR

punitive, not coercive, inflicted solely as punishment for the com
pleted act of disobedience.
It was said that the affidavit of Aldrich had the same legal effect
as an information of the district attorney and charged an act of
disobedience, which “ could not be remedied by any coercive im
prisonment, and which, therefore, could not be a civil contempt, and
which invoked none other than punitive imprisonment, which un
avoidably made the proceeding to impose it a proceeding for a
criminal contempt.”
Various complaints were submitted by the defendants “ for the
first time,” to the effect that the judge had not done certain things
now alleged to have been his duty. Since these had not been brought
to the attention of the judge and were not presented to him nor
decided by him, the matter is not open to consideration on a writ of
error, since “ he can not be guilty of an error in a ruling he never
made, upon an issue to which his attention was never called.” No
review can be had of procedure or evidence that was not challenged
and properly excepted to, the exceptions being recorded at the time,
and all embodied in a bill.of exceptions signed by the trial judge.
These steps had not been taken in the instant case, and “ for that
reason the complaints and objections now made are not cognizable
in this appellate court.”
The opinion concludes:
The substantial rights of the parties in these cases are conditioned
by the evidence upon the issue whether or not Reeder and Pyle were
guilty of the charge of violating on December 31,1921, the restrain
ing order of December 16, 1921. The district judge who tried the
cases found that the evidence sustained the charge. Out of an
abundance of caution we have carefully read and considered all this
evidence, and are of the> same opinion, and our conclusion is* that,
disregarding technical errors, defects, or exceptions, which do not
affect the substantial rights 6f the parties, the judgments in these
cases should be and they are affirmed, and the motion of Reeder
and Pyle to tax the costs of the transcript against Morton-Gregson
Co. is denied.
L abor O r g a n iza t io n s — I n j u n c t io n — C o n t e m p t — C r i m i n a l
fe n s e —

J ury

T r ia l —Michaelson

United States;

O f

Sandefur

Canoe Creek Coal G o ., United States Suprem e Court ( October 20,

1 92 4), 45 Suprem e Court R eporter, page 18, 266 U. S .
.—These
two cases were considered together by the Supreme Court, though
involving distinct parties and before the court on different bases.
Michaelson and others associated with him were employees of the
Chicago, St. Paul, Minneapolis & Omaha Railway Co., and had
been enjoined from interfering with interstate commerce by picket
ing, the use of force and violence^ etc. Subsequently proceedings

LABOR ORGANIZATIONS

201

for contempt were brought, and the offenders asked for a jury trial
under section 22 of the Clayton* Act. This was denied and they
were adjudged guilty and penalties assessed. The court of appeals
affirmed the judgment (291 Fed. 940), whereupon the case was
brought to the Supreme Court on a writ of certiorari.
In the Sandefur case striking employees and their associates had
been enjoined from interfering with the operations of a coal com
pany in the State of Kentucky. Sandefur was charged with con
tempt, found guilty, and fined, the district court refusing the de
mand for a jury trial. The case came to the circuit court of ap
peals on a writ of error, claiming that sections 21 and 22 of the
Clayton Act granted the right to a jury trial in such cases. In the
circuit court of appeals a contrary opinion was expressed, but the
court certified to the Supreme Court the question as to whether or
not the statute granting the right to trial by jury imposed a valid
restriction upon the inherent judicial power of the United States
district courts. This case was therefore before the Supreme Court
on certificate.
The sections of law under consideration are part of what is known
as the Clayton Act (38 Stat. 730); section 20 relates to the issue of
injunctions in cases between the employers and employees. Sections
21 and 22 relate to procedure in district courts in punishing con
tempts -for violations of orders where the act constituting the con
tempt is also a criminal offense. The reference to employer and
employee is omitted, the provision reading that “ any person who
shall willfully disobey” shall have the rights provided by the
statute; while section 22 authorizes a trial by jury on the demand
of the accused in all cases “ within the purview of this act.” Ques
tions involved were whether or not the provision regulating proceed
ings in the punishment of contempt in certain kinds of cases is con
stitutional, inasmuch as it is a limitation upon the power of the
courts; also whether the parties in the Michaelson case were or must
be “ employees” within the meaning of section 20 of the Clayton
Act to claim the benefits o f section 22; also whether the acts com
plained of were criminal offenses under the law, and whether the
provision for a jury is mandatory or permissive.
The opinion in this case was delivered by Mr. Justice Sutherland,
who spoke for the undivided court. The first question considered
was whether the grant of the right of trial by jury is constitutional.
The decision of the court below in the Michaelson case had been to
the contrary, on the ground that the statute deprives it of a part of
its judicial power which was derived from the Constitution, with
which Congress could not interfere. Justice Sutherland summarized
the provisions of the law as follows:

202

DECISIONS OF DOUBTS AFFECTING LABOB

Shortly stated, the statute provides that willful disobedience of
any lawful writ, process, order, rule, decree, or command o f any
district court of the United States or any court of the District of
Columbia by doing any act or thing forbidden, if such act or thing
be of such character as to constitute also a criminal offense under
any statute of the United States or law of any State in which the
act is committed, shall be proceeded against as in the statute pro
vided. In all such cases the “ trial may be by the court, or upon the
demand of the accused, by a jury ” and “ such trial shall conform, as
near as may be, to the practice in criminal cases prosecuted on indict
ment or on information.” Upon conviction the accused is to be pun
ished “ by fine or imprisonment, or both, the fine to be paid to the
United States or to the complainant or other party injured by the act
constituting the contempt, and where more than one is so damaged
divided among them as the court may direct.”
A preliminary question for decision is whether or not “ the pro
ceeding contemplated by the statute is for a civil or criminal con
tempt,” since if it be the latter no doubt remains as to the authority
o f Congress to set aside the established rule as to the power of an
equity court to act without a jury. The opinion continues:
We think the statute, reasonably construed, relates exclusively to
criminal contempts. The act or thing charged must be of such char
acter as also to constitute a crime. Prosecution must be in conformity
with the practice in criminal cases. Upon conviction the accused
is to be punished by fine or imprisonment, or both. True, the fine
may be paid to the United States or to the complainant or-divided
among the parties injured by the act, as the court may direct; but
that does not alter the essential nature o f the proceeding contem
plated by the statute. The discretion given the court in this respect
is incidental and subordinate to the dominating purpose of the pro
ceeding which is punitive to vindicate the authority of the court and
punish the act of disobedience as a public wrong.
It is stated that the power of courts to punish for contempt is
inherent.
So far as the inferior Federal courts are concerned, however, it is
not beyond the authority o f Congress. But the attributes which
inhere in that power and are inseparable from it can neither be abro
gated nor rendered practically inoperative. That it may be regu
lated within limits not precisely defined may not be doubted. The
statute now under review is of the latter character. It is of narrow
scope, dealing with the single class where the act or thing constitut
ing the contempt is also a crime in the ordinary case. It does not
interfere with the power to deal summarily with contempts com
mitted in the presence o f the court or so near thereto as to obstruct
the administration o f justice, and is in express terms carefully lim
ited to the cases of contempt specifically defined. Neither do we
think it purports to reach cases o f failure or refusal to comply
affirmatively with a decree—that is, to do something which a decree
commands—which may be enforced by coercive means or remedied
by purely compensatory relief. I f the reach of the statute had ex
tended to the cases which are excluded a different and more serious

LABOR ORGANIZATIONS

203

question would arise. But the simple question presented is whether
Congress may require a trial by jury upon the demand of the accused
in an independent proceeding at law for a criminal contempt which
is also a crime. In criminal contempts, as in criminal cases, the pre
sumption of innocence obtains. Proof of guilt must be beyond
reasonable doubt and the defendant may not be compelled to be a
witness against himself. The fundamental characteristics o f both
are the same. Contempts of the kind within the terms of the statute
partake of the nature of crimes in all essential particulars.
The proceeding is not between the parties to the original suit but
between the public and the defendant. The only substantial differ
ence between such a proceeding as we have here and a criminal prose
cution by indictment or information is that in the latter the act com
plained of is the violation of a law and in the former the violation of
a decree. In the case of the latter, the accused has a constitutional
right of trial by jury, while in the former he has not. The statutory
extension of this constitutional right to a class of contempts which
are properly described as “ criminal offenses ” does not, in our opin
ion, invade the powers of the courts as intended by the Constitution
or violate that instrument in any other way.
The next question discussed was whether or not the parties in
the Michaelson case were “ employees” within the meaning o f the
act, since they had been out on strike and the relation o f employer
and employee had come to an end. The dispute in the case was one
as to wages, and had been submitted to the Railroad Labor Board,
which had rendered a decision. The employees rejected the terms
and went on strike, conspiring together and committing various un~
lawful acts in restraint of interstate commerce. The facts were said
to make the case “ obviously within the provisions of section 20 in
respect of injunctions.” Holding that that would ordinarily be the
case, the lower court had rejected this view in this instance—
Because (1) the employer was a railroad company bound to con
tinue its operations in the public interest and therefore not on an
equal footing with its employees; and (2) that, since the scale of
wages had been fixed by the Railroad Labor Board, the strike, in
effect, was against the board, a governmental instrumentality, “ to
be classed with the insurrection of the Boston policemen.”
Mr. Justice Sutherland said as to this that classing railroad em
ployees as outside the provisions o f the act “ is not to construe the
statute, but to ingraft upon it an exception not warranted by its
terms.” Congress made no such exceptions, but used language and
terms which were plain and inclusive of all classes of employment.
The reasoning of the court below really does not present a ques
tion of statutory construction, but rather an argument justifying the
supposititious exception on the ground of necessity or of policy—a
matter addressed to the legislative and not the judicial authority.
Neither was the strike one against the labor board. It was a strike
notwithstanding the action of the board, but against the respondent.
The policemen’s strike was against a governmental employer. The

204

DECISIONS OP COURTS AFFECTING LABOR

labor board was not an employer, but an arbitrator, whose deter
mination, moreover, had only the force of moral suasion. (Pennsyl
vania R. R. Co. v . Labor Board, 261 U. S. 72, 84 ; 43 Sup. Ct. 278;
see Bui. No. 344, p. 148.)
It was then pointed out that sections 21 and 22, dealing with con
tempt procedure, are not limited to “ employees ” but to “ any per
sons 55 held for criminal contempt.
Whether the general language of section 21 should be limited by
construction because it forms a part of an act dealing with unlawful
restraints and monopolies, or for any other reason, we need not
now stop to inquire. It is enough to say that in a controversy, such
as we have here at least, it does not require the existence of the status
o f employment at the time the acts constituting the contempt are
committed in order to bring into operation the provision for a trial
by jury.
The question of whether the acts alleged were criminal was not;
considered. As described they prima facie violated the law of Wis
consin, which was sufficient to bring them within the terms of the
act.
The question of whether the provision as to a jury trial was man
datory or permissive was disposed o f by a brief reference to the his
tory o f the act as illuminating the language used, the conclusion be
ing that it was mandatory upon the courts to grant a jury trial if
demanded by the accused, provided other conditions as to the nature
o f the contempt, etc., are met.
The intent of Congress in adopting the provision was to give to
the accused a right of trial by jury, not merely to vest authority in
the judge to call a jury at his discretion.
In accordance with the conclusions thus set forth, the judgment
in the Michaelson case was reversed, and that case remanded tcf the
district court for further proceedings in conformity with this opin
ion; while the question in the Sandefur case was answered in the
affirmative, the status being held to be a valid restriction upon the
power of the district courts.

L abor O rganizations— I njunction — Contempt— PuNiSHkENT—
J ury T rial— Patton v. United States, United States Circuit Court
o f A ppea ls, F ou rth Circuit (M arch 3 1 ,1 9 2 3 ), 288 Federal R eporter,
page 812.—The

South Side Coal Co. and other coal companies
secured an injunction against the international organization, United
Mine Workers o f America, its officers and members, restraining
them—
from interfering with the employees of the plaintiffs or with men
seeking employment at their mines by menaces, threats * * *
or from counseling or advising that, these plaintiffs should in any

205

LABOR ORGANIZATIONS

way or manner be injured in the conduct and management o f their
business and in the enjoyment of their properties and property
rights.
And further restraining the defendants—
from trespassing upon the properties of the plaintiffs or either of
them, or by themselves or in cooperation with others from inciting,
inducing, or persuading the employees o f the plaintiffs to break
their contracts of employment with the plaintiffs.
Joe Patton, an officer of the United Mine Workers of America,
made a speech on the property of the South Side Co. to about 20
miners under contract with the company. The language of the
speech was not defied, and the court held that it was used in viola
tion of the injunction for the purpose of getting the men to break
their contracts by stopping work. After the speech only two of the
miners who heard it reported for work the next day.
Patton contended that the men were employed at will, and there
fore he could not have induced them to break a contract of employ
ment, but the order of injunction was held to import that contracts
were judicially found to exist between the miners and the company.
The lower court refused a jury trial on the ground that the bill
of particulars charged a civil and not a criminal offense. This view
the appeals court upheld, no charge o f force, threats, menaces, or
other act to sustain a criminal charge having been made.
As “ the undisputed evidence showed that plaintiff in error had
violated the injunction order,” his conviction was affirmed.
L

abor

r g a n iz a t io n s —

c r im in a t io n

H ass {In c.)

g a in s t

nterference

u t s id e

w it h

C ontractors— I

m ploym ent—
n j u n c t io n

— J.

Local Union N o. 17 o f Brotherhood o f Painters , etc.,

United States D istrict Court , District o f Connecticut
1 92 4), 800 Federal R eporter, page 894*—The

{J uly 11,

plaintiff in this case is
a New Jersey corporation engaged in the business of painting and
decorating in New Jersey and other States. It had secured a contract
to paint and decorate certain buildings at Greenwich, Conn., agreeing
to pay the union scale there prevailing and to employ union workmen.
A number of men applied and were accepted, but subsequently re
fused to go to work except on the terms prevalent in Jersey City, the
home of the corporation employer. The national union has a rule,
adopted in 1922, that a contractor taking on jobs outside of his home
territory, as defined by the union, shall pay either the local rates of
the job or the local rates of his home territory, whichever is more
favorable to the workmen. The plaintiff prayed that this rule be
declared illegal, unjust, and discriminatory, and an unlawful re
straint of trade. The answer o f the local was a motion to dismiss,

206

LECIStOtfS OE COURTS AEEECTING LABOR

claiming that the allegations set forth in the declaration were insuf
ficient. As to this Judge Adams, who delivered the opinion, said:
The allegations o f the bill clearly show that the effect of the rule
in question is to make it difficult, if not impossible, for an outside
contractor to compete with a local contractor in the business o f paint
ing and decorating wherever the rate of wages, etc., is more favor
able to the workman in the contractor’s home territory than at-the
place where the work is to be done, to the injury o f not only the
outside contractor but also of the public of the place where the work
is to be done. This result has been accomplished by a combination
of the defendants to prevent, by means o f threats and intimidations,
persons who otherwise would be willing to do so from working for
such outside contractor, except on terms that make it difficult, if not
impossible, for them to compete with local contractors. That no
threats o f force have been used is immaterial, for threats o f fine and
expulsion from the defendant union are just as effectual as threats
o f force, where, as here, expulsion would mean the loss by the person
expelled o f the opportunity to make a living at his trade.
No justification existed for the injury inflicted on the outside con
tractor, the rule being “ clearly designed for the sole purpose of ex
cluding outside competition in the home market,” and since injury
was inflicted on the plaintiff he was entitled to an injunction re
straining the defendants from enforcing the rule in question. The
motion to dismiss was therefore denied.

L abor O rganizations— I nterference w it h E mployment— D is
A gainst O utside C ontractors— I njunction — N ew

crimination

Jersey Painting Co.

Local N o. 26, B rotherhood o f Painters, D ec

orators, and P aper H angers o f Am erica, Court o f E rrors and A p
peals o f N ew J ersey ( October 2 0 ,1 9 2 4 ), 126 Atlantic Reporter, page
899. —In January, 1922, at a convention of the International Paper

Hangers held at Dallas, Tex., the convention passed a; rule that,
where a contractor took work away from his home town, he should
pay the rate of wages and observe the union conditions prevailing
in his home city, if that rate of wages or working conditions were
more favorable to the workmen than the union scale prevailing in
the district in which the work was to be done; otherwise he should
pay the union scale, and observe the union conditions prevailing in
the place in which the work was to be done. The New Jersey Paint
ing Co., a New York company, secured a contract for painting in
Newark and in Atlantic City, N. J. The union scale was the same in
both these cities, $8 a day for eight hours’ work, five and a half days
a week. On May 4,1922, the business representative of District No.
10 o f the defendant union ordered the employees working on the job
in Newark to cease work unless the New York scale of $9 a day for
eight hours’ work, five days a week, was observed. The men were

LABOR ORGANIZATIONS

207

ordered to strike and did so. The same thing occurred on the other
job, in Atlantic City. The plaintiff sought an injunction, and from
a decree for the plaintiff (122 Atl. 622) the defendants appealed.
The vice chancellor in the court below put his decree upon the
grounds that “ such discrimination in the scale of wages is an unfair
restraint of trade, inimical to the public welfare, and in violation of
public policy; that the operation of such rules and regulations by
the union is illegal.” The court of errors and appeals pointed out
that since the passage of the statute in New Jersey in 1883 (3 Comp.
Stat. of N. J., p. 3051, sec. 128) authorizing combinations of two or
more persons, “ the common law has been greatly modified in this
country, in its application to labor unions and labor disputes.” The
weight of authority was held to be that an act “ lawful, if done by
one, is not necessarily rendered unlawful by the mere fact of con
certed action,” and further that “ the mere combination of action is
not the element which gives an illegal character to the act. It is the
illegality of the purpose to be accomplished, or the illegal means
used separately or in furtherance of the purpose, which makes the
act illegal.” In holding that the clause providing that the employer
shall pay the higher of two wage scales in different cities was not
illegal as an unfair discrimination or restraint of trade the court
said:
The rule adopted and promulgated by the defendants is not aimed
at and does not apply to the complainant solely. It does not seek to
establish arbitrary discriminations between one person or corpora
tion and another. It applies to all employing painters within the
whole territory of the United States who undertake to do work out
side of their home districts. It applies to all alike, automatically,
who come within the prescribed rule. Cooperation in some form
now seems to be an economic necessity in all business, trades, and
occupations throughout the United States, if not throughout the
entire world.
Economically, the conclusion reached by the lower court confuses
the possible or probable effect of the defendants’ action upon the
employers with the defendants’ rights. The law gives the defend
ants a right to sell their labor to whom they please, when and under
such conditions as they may fix, individually or in combination.
They may make rules and regulations passed in good faith, pro
viding for what they deem to be an economic advantage to them
selves. I f in the enforcement of such rules and regulations they
violate no law, but act solely for the declared purpose, the courts
ought not and can not legally enjoin them from such concerted action
simply because such action may affect some employers. I f the law
gives the workers such rights, it must protect them in their enjoy
ment. They can not be enjoined from their use or interfered with
by the courts. Employers have no vested interest in the labor of
workers. We think the defendants, by the terms of the statute of
1883, both its letter and spirit, are within its protection.
44915°—25----- 15

208

DECISIONS OE. COURTS APEECTING LABOR

The decree was therefore reversed and the bill of complaint
ordered dismissed, five members o f the court dissenting.
Judge White submitted a dissenting opinion, in which he said:
I agree that the act o f 1883 (P. L., p. 36) legalizes the combined
action (the strike) here sought to be enjoined, if the purpose o f that
combined action is a lawful purpose. My difficulty is that I think
the discrimination enforced by this strike is (as pointed out by the
learned vice chancellor) an unlawful discrimination, because it is
not founded upon any subject properly germane to the wage scale*
or rather the difference in wage scales, here involved. This is a
point not touched upon in the majority opinion. That opinion
bases its reasoning upon the assumption that the prime object of
this discrimination is to establish a standard o f wages, whereas,
in fact, a standard wage of $8 per day for Newark and of $9
per day for New York was definitely established by the defendant
labor organizations themselves, and the only effect o f their rule
here involved is to destroy such standard wage so fixed by pro
viding that if the contractor lives in a city having a higher wage
scale the latter shall prevail, although the work and all the work
men are o f the city o f the lower wage scale. The place o f residence
o f the contractor is not in any way germane to the wage scale he
should be required to pay.
I f he attempts to do work where there is no established wage
scale, his employees, or their organization for them, may fix the
wages at which they are willing to work, and he can not complain;
but where, as here, his employees’ organization has fixed the wage
scale for the locality involved, they may not, it seems to me, boycott
him by providing that because he does not personally live in that
locality, but, as here, lives in some other city or State, he shall
because o f that reason alone be required to pay a higher wage scale.
The place o f residence o f the contractor not being germane to the
subject of the wage scale he may be required to pay, any discrimina
tion made against him founded upon such place of residence alone is
in principle a boycott, and is unlawful.
This principle was thought so important by the framers of our
Federal Constitution that they provided in that instrument against
any such discrimination by any State against the citizens of any
other State, and it seems to me a curious condition which, while
denying to the sovereign States themselves this privilege of invading
the equal rights of the citizens, should accord such right of invasion
to the star chamber ex parte committee which met in Dallas, Tex.,
in the year 1922 and promulgated the rule here in question for the
ovemment (under penalty o f strike) o f all the citizens o f all o f the
tates.

Attention is caUed to the decision in J. I. Hass (In c.) v. Local Union No. 17
o f Brotherhood o f Painters, etc., 300 Fed. Rep. 894 (C onn.), see p. 205, and
in a case decided A pril 8, 1924, by the Supreme Court o f the D istrict o f
Columbia in which the rule o f the Brotherhood of Painters, Decorators, etc.,
was declared invalid. (See Monthly Labor Review, July, 1924, p. 215.)

LABOR ORGANIZATIONS
L

abor

r g a n iz a t io n s —

e g is l a t iv e

n v e s t ig a t io n —

209
C r im

in a l

—People v. F oster ,
Suprem e Court o f N ew Y ork , Appellate D ivision {January 2 6 ,1 9 2 8 ),
198 N ew Y o r k Supplem ent, page 7 .—A resolution of the Legislature
of New York provided for the creation of a committee to investigate
housing conditions and whether the construction of new buildings
was affected by the existence of combinations, associations, or agree
ments, and to investigate other matters deemed by the committee
relevant to the question of providing housing accommodations for
the people of the cities of the State.
A committee was created which became known as the Lockwood
Committee. Walter Drew was a representative of certain associa
tions which had adopted the open-shop policy in antagonism to the
unions. It appeared that these associations refused to sell their
products to contractors who employed members of the unions to
erect the steel in the buildings being erected in the city of New York.
Robert J. Foster was employed by Walter Drew to investigate con
ditions under which the steel work was being erected in the city of
New York. He was a detective and had others under his direction
called “ operatives.” It appeared that these operatives became mem
bers of the union, attended their meetings, and acted as spies. The
men made reports to Foster. He was directed by the chairman of
the investigating committee to produce the reports from his subordi
nates, which he refused to do on the ground that it would endanger
their lives.
Foster was convicted under section 1330 of the penal law of the
State of New York, which makes it an offense for a witness to with
hold documents from a legislative investigating committee, and he
appealed to the appellate division. The court pointed out that the
indictment under which Foster was convicted charged that all of
the reports were material, and that he willfully refused to produce
any of them. The trial court held as a matter of law that the reports
were material. The appellate court said that a witness is not allowed
to determine for himself what is material so as to relieve him from
a conviction for a violation of the statute, and that the committee
itself would not be allowed to determine the question of materiality
for a contrary purpose, but that the question of materiality is for
the court; and while it was difficult to see how the reports in ques
tion were material, no narrow rule of interpretation should apply,
which would prevent a thorough investigation of any material sub
ject of inquiry.
It was pointed out that the “ statute makes criminal a ‘ w illful’
refusal to produce any documents material to the inquiry.” The
court held that the ruling of the trial judge that the term “ will
fully ” meant “ intentionally ” was error.
s p o n s ib il it y fo r

e fu sa l to

roduce

ocum ents

210

DECISIONS OF COURTS AFFECTING LABOR

Judge Smith, speaking for the court, said:
His refusal to produce these documents was based by himself,
when before the committee, upon two grounds. One was that the
disclosure of the reports from his subordinates acting as spies would
endanger the lives of his subordinates, and further that such reports
were not pertinent to the inquiry. His manner before the com
mittee can hardly be shown upon the record, but is stated to have
been insolent and to have indicated that his refusal was willful.
The record, however, shows very clearly that he was of the opinion
that these reports were not pertinent to the inquiry, and there is
nothing to indicate that that opinion was not honestly entertained,
and his attitude before the committee might well have been ex
plained by the attitude of the examining counsel. There is nothing
in the record to show that his refusal to produce his reports was not
prompted by an honest belief on his part that they were not material
to the inquiry. The fact that he intended not to answer is not
disputed, and if an intentional refusal to produce documents be
deemed, as charged by the trial court, a willful refusal, there was
little left for the jury to determine.
The interpretation given to the statute by the learned trial justice
is not only a harsh interpretation, but would be a most unjust inter
pretation to a witness called before an investigating committee.
The powers allowed to such a committee are necessarily exceedingly
broad. They necessarily include a search into the subject matter
o f the investigation far beyond the scope of a judicial trial. They
are not confined to evidence such as would be required upon a trial
at law. But their powers are not unlimited. Their inquiry is
confined to facts relevant to the inquiry. The relevancy of the inquiry
may be adjudged in a contempt proceedings, wherein the witness may
be allowed to purge a contempt by giving the evidence adjudged in
that proceeding to be relevant. A statute making it a crime to
refuse to answer a question determined only by a committee to be
relevant would be subject to the challenge of unconstitutionality.
The constitutional rights of a witness have here been sought to be
protected by the requirement that the evidence sought must be mate
rial and also must be willfully withheld. It is a well-settled rule
that a criminal statute must be strictly construed. This construction
is not satisfied by a construction o f the word “ willful ” as meaning
only an “ intentional ” refusal. That intention must be based upon
an intention to evade the law and whether such an intent exists must
be determined by the jury as a matter of fact. Such a refusal to
answer, based upon an honest conviction of the irrelevancy of the
examination, is not willful. Nor can it be so ruled as matter o f
law or fact in a prosecution under this statute. The same rule ob
tains in a prosecution for a refusal to produce documents.
Without passing, therefore, upon other questions raised the in
terpretation given to the penal law under which this defendant has
been convicted, that an intentional violation of an act is of itself a
willful violation of the act, requires a reversal of the judgment and
the granting of a new trial.
Judgment should be so ordered.

211

LABOR ORGANIZATIONS
L

abor

r g a n iz a t io n s —

ib e l —

S tatu s

n in c o r p o r a t e d

sso

— Tucker v.

Eatough, Suprem e Court o f N orth Carolina
{N ovem ber 21, 1 92 3), 120 Southeastern R eporter, page 57.—Henry

c ia t io n

Eatough, agent of the United Textile Workers of America, was
proceeded against in an action by the issuance of summons against
him individually and as agent and organizer of and representing
the members of the United Textile Workers of America, an unin
corporated association. It appeared that the purpose of the plain
tiff, one Tucker, was to sue the association and Eatough for $10,000
for an alleged libel. The plaintiff contended that Eatough had
issued a printed circular that was libelous and reflected on him
and that as the latter was the agent of the association, the associa
tion was responsible without naming any of the members, or service
on them, and naming or serving no one but Eatough.
From an order sustaining a demurrer to the complaint, Tucker
appealed. The superior court dismissed the summons against H.
Eatough individually, and as agent and organizer of its own accord,
because the association was unincorporated and could not be served.
The supreme court said:
The United Textile Workers of America did not appear, and
could not, for they had no legal or actual existence, and there was
and could be no service on anyone as to them. The demurrer by
whomsoever filed was not and could not be an acknowledgment o f
service by anyone, and the court could act ex mero motu [of its own
accord] upon the allegation of the plaintiff in the summons and in
the complaint that the party attempted to be used was unincorpo
rated, and the return of the sheriff that there had been no service
upon anyone except Henry Eatough.
It has been held by our court that unincorporated associations can
not be sued in the manner attempted in this case, and it has been held
by various other courts also that voluntary unincorporated associa
tions have no separate legal existence; that they can not make con
tracts or be sued as an association except through the individuals
who compose its membership.
Here Eatough is sued as an individual and as agent of the United
Textile Workers. No member of the union is in court or even named
as a defendant. Eatough alone is sued, first, as an individual, and
second, as alleged “ agent or organizer of the union;” but it is not
even alleged that he is a member, and, on the contrary, the com
plaint avers that the union is composed of a large number of in
dividuals who are not incorporated. It does not appear that anyone
is authorized to represent them.
It was clear in the complaint that the association was being sued;
but the Supreme Court held that it could not be sued because “ only
natural or artificial persons can ba brought into court upon summons.
The defendant, United Textile Workers of America, not being in
corporated, is without capacity to sue or be sued, and the court
properly dismissed the action ex mero motu.”

212

DECISIONS OP COURTS AFFECTING LABOR

The court reviewed the Coronado Coal Case (259 U. S. 344, 42
Sup. Ct. 570; see Bui. No. 344, p. 157) in which Chief Justice Taft
held that the United Mine Workers could sue and be sued in courts
of law even though unincorporated.1 Chief Justice Taft in his
opinion in that case said:
There is no principle better settled than that an unincorporated
association can not, in the absence of a statute authorizing it, be
sued in the association or company name, but all the members must
be made parties, since such bodies, in the absence of statute, have no
legal entity distinct from that of its members. (5 C. J. 1369; 20 B.
C. L. 672, and many other cases.)
The supreme court observed, however, that in North Carolina,
there was no legislation changing the common law, and that the
legislature had refused to authorize unincorporated associations to
hold property in their association name.
In conclusion the court said:
The defendant Eatough is liable for any libel that he may be
proven to have issued, and any individuals or corporations who
aided and abetted him in issuing a libel can be made parties defend
ant, but not an unincorporated body of men.
In accordance with the foregoing conclusion, the demurrer was
sustained.
L

abor

r g a n iz a t io n s —

o n o p o l ie s —

S t r ik e — I

nterference

Wit h

Leather 'Workers'* International
Union v. H erb ert <& M eisel Trunk G o ., United States Suprem e Court
(June 9 , 1 9 2 4 ),
Suprem e Court R eporter, page 623 , 265 U. S .
4S7 .—The Herkert & Meisel Trunk Co. and four others joining in
I

n terstate

C o m m e r c e — United

the suit were Missouri corporations engaged in making trunks and
leather goods in St. Louis. A union of workers sought to compel
these employers to unionize their shops and to conduct them as closed
shops, the bill averring that they threatened to “ ruin the interstate
commerce business o f each of them55 if they failed to comply. Noncompliance was followed by a strike, during which it was charged
that assaults and threats intimidated the complainants’ employees
so that they were forced against their will to cease work and the
1 The quotation next cited does not appear in the report of the Coronado Case. On
the other hand, the union there defendant was declared suable, the Chief Justice say
ing : “ Equitable procedure adapting itself to modem needs has grown to recognize
the need of representation by one person of many, too numerous to sue or to be sued;
and this has had its influence upon the law side of litigation, so that, out of the very
necessities of the existing conditions and the utter impossibility o f doing justice other
wise, the suable character of such an organization as this has come to be recognized in
some jurisdictions, and. many suits for and against labor unions are reported in which
no question has been raised as to the right to treat them in their closely united action
and functions as artificial persons capable o f suing and being sued. * * * Our con
clusion as to the suability o f the defendants is confirmed in the case at bar by the
words of sections 7 and 8 o f the antitrust law.” (259 U. S. 387, 388, 392.)

LABOR ORGANIZATIONS

213

manufacturers were prevented from carrying on their interstate
business by the interference and obstruction of manufacture and the
shipment of their trunks. Massed picketing and intentional and
malicious interference with the complainants’ interstate commerce
were charged. An injunction to restrain the continuance of such
acts was sought, and damages were charged exceeding $8,000 in the
case of each complainant.
The district court had granted an injunction, from which an ap
peal had been affirmed by the circuit court of appeals (284 Fed. 446).
Evidence in the district court showed a strike and an “ illegal picket
ing campaign of intimidation” ; also that 90 per cent of the goods
manufactured entered interstate commerce, so “ that the illegal strike
campaign of defendants thus interfered with and obstructed com
plainants’ interstate commerce business to their great loss.” The
destination of the manufactured products was known to the strikers,
but no evidence indicated that the transportation of goods ready to
ship or of materials from other States was in any way obstructed;
nor was there any evidence of an attempt to boycott the sale of their
products in other States or elsewhere.
Mr. Chief Justice Taft, who delivered the opinion o f the court,
having stated the facts as above said:
The sole question here is whether a strike against manufacturers
by their employees, intended by the strikers to prevent, through
illegal picketing and intimidation, continued manufacture, and
having such effect, was a conspiracy to restrain interstate commerce
under the antitrust act, because such products when made were, to
the knowledge of the strikers, to be shipped in interstate commerce
to fill orders given and accepted by would-be purchasers in other
States, in the absence of evidence that the strikers interfered or at
tempted to interfere with the free transport and delivery of the
products when manufactured from the factories to their destinction
in other States, or with their sale in those States.
We think that this question has already been answered in the neg
ative by this court.
Reference was then made to the case of United Mine Workers v.
Coronado Coal Co. (259 U. S. 344, 42 Sup. Ct. 570; see Bui. No. 344,
p. 157). Here the union had interfered with employment so as to
reduce largely the output of the mines affected, reducing interstate
shipments accordingly. It was there said that mining is not inter
state commerce, and that obstruction thereto was not a direct ob
struction to interstate commerce, though affecting it by reducing the
amount of coal to be carried in that commerce.
On this view the injunction below could not be sustained, and the
judgments of the district and .circuit courts were accordingly re
versed.

214

DECISIONS OF COURTS AFFECTING LABOR

Chief Justice Taft continued at some length to consider the cases
adduced by the circuit court of appeals as sustaining the position
taken by it, distinguishing them, and pointing out their inapplica
bility to the case in hand, saying in conclusion of this consideration:
We concur with the dissenting judge in the circuit court o f appeals
when, in speaking of the conclusion of the majority, he said:
“ The natural, logical, and inevitable result will be that every strike
in any industry or even in any single factory will be within the Sher
man Act and subject to Federal jurisdiction provided any appreci
able amount of its product enters into interstate commerce.” (284
Fed. 446, 464.)
We can not think that Congress intended any such result in the
enactment o f the antitrust act or that the decisions of this court
warrant such construction. Decree reversed.
Three justices dissented, but without opinion.

L abor O rganizations— P icketing — I njunction — E xclusion of
S trikers from W harf— K eegan v. Board o f Commissioners o f P o rt
o f N ew Orleans , Suprem e Court o f Louisiana ( October 31 , 1 9 2 3 ) , 98
Southern R eporter , page 50.—During a strike o f longshoremen em

ployed at the port o f New Orleans the commissioners of the port
issued an order prohibiting all persons from entering or using the
public wharves during the strike, “ unless it be on business in connec
tion with the commerce and navigation o f the port.” With knowl
edge of this order Keegan and others, members o f the striking or
ganizations, undertook to go upon the docks, peaceably, as they
alleged, and were prevented by the harbor police employed by the
board o f commissioners. After protesting the order, Keegan and
his associates sought an injunction to prevent its enforcement and
against interfering with the petitioners in “ approaching, entering,
going upon, circulating around and through, and otherwise exercis
ing their lawful rights in and upon the docks, wharves, sheds, or
other public property under the administration o f the said board of
port commissioners.”
An injunction was granted by the judge o f the circuit court,
whereupon the commissioners brought the case to the supreme court,
where the action of the judge was reversed. It was found that the
authority of the commissioners under the law o f the State was the
same as the police power of the municipal council o f a city, and that
the police regulation complained of, “ being enforced only during
the strike on the river front, is not an abuse o f the police power o f
the board of commissioners of the port.” Apart from the order
issued, “ it would not be unlawful or improper for the strikers or
their sympathizers to go upon the wharves peaceably, to observe
who are yet working on the ships in port, to communicate with them,

LABOR ORGANIZATIONS

215

and to persuade them to join the ranks of the strikers in this eco
nomic struggle.”
However, it was said that this was not the question, but whether
or not the board of commissioners had exceeded or abused its police
power in enacting this emergency regulation. “ The complaint of
the plaintiffs in that respect is that the order prevents their going
upon the wharves for the purpose o f picketing.”
Citation was made of the Supreme Court decisions in American
Steel Foundries v. Tri-City Central Trades Council (257 U. S. 184,
42 Sup. Ct. 72; see Bui. No. 309, p. 181) and Truax v. Corrigan (257
U. S. 340, 42 Sup. Ct. 124; see Bui. No. 309, p. 191). These decisions,
while recognizing peaceful picketing, do not recognize obstruction by
violence, annoyance, or importunity or interference with employers
and their workmen in the conduct of the employer’s business.
The opinion concludes:
The responsibility of determining what precautions should be
taken to avoid the danger of allowing men arrayed on opposite sides
o f a labor strike to assemble on the wharves and docks along the
river front, in close proximity to the ships in port, is not on the
courts, but on the board of commissioners o f the port. So long as
that department does not exceed its authority or abuse its trust, the
courts would better not interfere. Our opinion is that the board did
not exceed its authority or abuse its trust in this instance and that
therefore the injunction should not have issued.
The injunctive order directed against the board was therefore
annulled, costs being charged against the plaintiffs, representatives
o f the striking organizations.

L abor O rganizations— P icketing — I nterference w it h C onduct
B usiness— C oercion to H ire U nion H elpers— E vidence— Y a b

lonowitz v. K o r n , Supreme Court o f N ew Y o r k , Appellate Division
(M a y 18 , 1 92 3), 199 N ew Y o r k Supplem ent , page 769.—The plain

tiff, Yablonowitz, conducted a little meat market in the city o f New
York. He was formerly a member of the Hebrew Butcher Workers’
Union, of which the defendant, Korn, was an organizer, but for some
reason withdrew therefrom. For some time he had two employees,
nonunion men, who afterwards joined the union and then weht on
strike. Yablonowitz proceeded to conduct the business alone, with
the aid of his son and his wife. The union thereupon proceeded to
picket the shop, “ and have been intimidating customers from com
ing there, and by their acts and words threatened to ruin his busi
ness.” An injunction was therefore sought to prevent picketing
and interference with the plaintiff’s business. The injunction was
denied in the court below on the ground that there had been no clear
proof of acts of violence, and that under recognized principles of

216

D M S10N S OB' COURTS AFFECTING LABOR

law the defendants had the right to picket a shop if done in a peace
ful manner without intimidating any of the employees who were
there working.
Judge Smith took a different view from the above, three other
judges concurring and one dissenting. The case was said to be
“ different from the ordinary case. The plaintiff has attempted to
employ no more men to work for him since the two men were taken
away by the union, and says he does not intend to, but this picket
ing is still kept up with the avowed purpose o f either compelling
him to employ helpers or of ruining the plaintiff’s business.” There
was evidence of interference, many customers swearing to acts of
interference and violence against them. Korn also produced affi
davits to the effect that the makers “ did not see any interference or
disturbance.” As to this Judge Smith said that “ proof of actual
occurrences is o f great weight, while proof that affiants did not see
is of little weight.” It was said to be a matter o f common knowl
edge that picketing does constitute intimidation, especially to
women, who deal with the plaintiff.
In any event, if the defendants are not engaged in this picketing
and are not committing these offenses, they nave nothing o f which
to complain if an injunction be granted. Under the authorities, as
well as under common sense, a man has the right to conduct his
business in such way as he desires, and he shall not be driven out of
business by any combination of persons, especially where he employs
no workmen and his family are the only ones who help him in the
business.
In conclusion he stated:
This is purely a high-handed attempt to run this man’s business,
and all sense of fair play is outraged in allowing this picketing to
continue. It is not for the purpose of assisting the employees, be
cause those who were before employed had lext and no new ones
were employed. It is simply for the purpose of intimidating and
coercing this plaintiff to hire union men. There is abundant proof
of their misrepresenting the quality o f meat sold by the plaintiff
and of their approaching the customers o f the plaintiff in a way
not only to intimidate them but to persuade them not to buy meat
o f the plaintiff, and that they have no right to do. The defendants
should be enjoined from picketing this place in any way or from
addressing any of the customers of the plaintiff for the purpose of
diverting their trade.

L abor O rganizations— P icketing — P rim ary and S econdary
B oycott— I n ju n c tio n — R elation of P roprietors of U nion
S hops—E llis v. Journeym en Barbers’ International Union o f A m e r
ica* Local Union N o. 52, Suprem e Court o f Iow a ( D ecem ber 15 ,
1922), 191 Northw estern R eporter , page 111 .—The

plaintiff, Ellis,

LABOR ORGANIZATIONS

217

was a barber in business for himself, working and employing two or
three journeymen barbers. He had been a member of the defendant
union when a journeyman, but on becoming an employing barber
was required by the rules of the union to take a “ retiring card.”
This recognized his former membership and his right to reinstate
ment if at any time he should cease to be an employer and again be
come a journeyman barber. This card also established a contract to
maintain a union shop and observe all the rules and regulations of
the union. After operating about a year under this agreement Ellis
decided that the scale of prices fixed by the union was too high for
his particular trade, “ which was made up largely of laboring men ” ;
also that the hours of labor were too short for his customers. Ellis
had consulted with his employees, who were union members, and
“ this course was approved and agreed to ” by them.
In pursuance of his plan Ellis surrendered the card, declaring his
shop to be a nonunion shop, and put the reduced prices and length
ened hours into effect. The union thereupon persuaded his former
employees to leave him, one of them becoming a picket at a wage of
$30 a week, or $5 more than his guaranteed earnings at a chair under
the union rules. Two pickets were employed, relieving each other,
so that one would be on duty carrying a banner the length of a man’s
body containing front and back the words: “ This place is unfair to
organized labor. Journeymen Barbers No. 52.” The pickets were
told to stand near the curb and not talk. However, there were nu
merous altercations with Ellis’s employees, and the pickets also
attempted to dissuade by argument customers who were entering.
The district court of Woodbury County issued an injunction against
the defendant union and its members, but declined to issue one
against other employing barbers, whom Ellis had joined as defend
ants in his action.
The union appealed from the injunction against it, and Ellis ap
pealed against the omission of the employing barbers. However, the
supreme court affirmed the decree as it was issued, Judge Evans
saying:
It will be noted that this is not a case of conflict between capital
and labor or between employer and employee. It is not a strike for
higher wages. Plaintiff paid the union scale of wages. The em
ployees had no grievance. They had agreed in advance to the course
adopted by plaintiff. It is simply a cause where a powerful organi
zation ana its officers bring to bear its power upon an ordinary indi
vidual who is seeking to engage in and to carry on legitimately a
humble business in his own way. There is a fair field of competition
and of persuasion and of publicity wherein the defendant may law
fully bring to bear such power. There is also a limitation upon the
defendant in that regard beyond which it may not lawfully go. The
method adopted in this case presents a clear case of attempted boy
cotting, both primary and secondary* The purpose of a secondary

218

DECISIONS OF COURTS AFFECTING LABOR

boycott is to bring to bear a duress upon the customers o f the person
under attack by threatening them directly or indirectly with a boy
cott if they persist in trading with such person. One evident pur
pose o f maintaining a picket, rather than to display mere banners
upon standards, is to make observation and discovery of the identity
o f the persons who persist in trading with the plaintiff in defiance
o f defendant’s warning. This is the impression naturally created
upon the minds of customers. That some of the customers were thus
intimidated in this case is shown.
The law puts no limit upon the right of defendant to exercise fair
persuasion through publicity, but it can not countenance any display
that is the equivalent of force and intimidation, or of a disturbance
(of the peace, or of aggressive interference with the right of peaceful
ingress and egress to and from the plaintiff’s shop. Force threatened
is the equivalent o f force exercised, because it amounts to intimida
tion and duress in either event.
Lengthy citations were made from various cases sustaining the
view that “ picketing is usually an invitation to violence,” and that
its purpose to destroy its victim was necessarily a challenge to the
efforts to avoid such results. The union had relied on the Minnesota
case, Steffes v. Motion Picture, etc. (136 Minn. 200, 161 N. W. 524;
B'ul. No. 246, p. 125), and the case of Truax v. Bisbee (19 Ariz. 379,
171 Pac. 121; Bui. No. 258, p. 121). However, Judge Evans found
that the Minnesota case cited was not a precedent, and that a later
case, Roraback v. Motion Picture, etc. (140 Minn. 481, 168 N. W.
766; Bui. No. 258, p. 123), was in line with the present case both in
facts and in the conclusions reached. The Truax case also was, sub
sequent to its citation by the attorneys, reversed by the United States
Supreme Court, the statute of that State on which the judgment
below was based being declared unconstitutional.
After quoting from the opinion in Truax v. Corrigan (257 U. S.
312, 42 Sup. Ct. 124; see Bui. 309, p. 191), in which the Supreme
Court reversed the Arizona decision, Judge Evans said:
It will be seen from the foregoing excerpts that there is little
room for dispute as to the general state of the law on the question
before us. The maintenance of a picket in the manner indicated
in this record was an unlawful interference with the legal rights
o f the plaintiff, and partook of the nature both of a private nuisance
and o f a conspiracy. It was subject to injunction as such. The
trade-union could act only through its officers. The concerted
action of the officers in carrying out these punitive regulations.of
the union was in legal effect a conspiracy to injure the plaintiff
in his business and to deprive him of his lawful rights, and to
intimidate and coerce him to submission to the demands of the
union. This is not saying that the law looks with disfavor upon
trade organizations as such. It does not. But it does frown upon
^oppression and intimidation, and upon those abuses of power in
which frail men sometimes delight when backed by a strong organi
zation. Trade organization has a wide and legitimate field of
^activity which it may lawfully exercise in favor of its membership.

LABOR ORGANIZATION’S

219

Within that field it commands the full protection of the law. But
tyranny through the exercise of sheer power is not one of its pre
rogatives. Nor may its officers exercise such a prerogative under
any cover, official or otherwise. I f they do so, they are amenable
to the law of nuisance and of conspiracy as other citizens are, and
without any exemption therefrom because of their official cloak.
It follows that the district court properly entered the injunction
decree herein.
L abor O rganizations— P icketing — V iolation of I ndustrial
C ourt A ct— I nterstate C ommerce—State v. Personett , Suprem e
Court o f Kansas (N ovem ber 10 , 192 3), 220 Pacific R eporter , page
520.—T.

L. Personett was convicted of violating the industrial court
act of Kansas and appealed. There was a strike of the railroad
employees in the summer of 1922, during which certain men at the
Ottawa shops of the Atchison, Topeka & Santa Fe Railway Co.,
came out, others remaining at work. A. L. Smith was one of the
latter, and on July 4, when the shops were closed for the holiday,
he was signaled on the street while riding with his son-in-law in
an automobile and addressed by Personett as to what he was doing.
The conversation was in ordinary language, Personett assuring
Smith that the strike would succeed and that “ he didn’t know
what the feeling of the boys would be that went out toward those
that remained.” It is contended that this does not sustain a con
viction for picketing, Personett offering definitions which suggest
posting of persons at approaches to the works struck against, and
similar hostile demonstrations.
After the statement of facts, the opinion continued:
It is clear from the evidence in this case that appellant and his
two companions were putting in some time that afternoon calling
on influential members of the carmen’s union who had not gone
out on the strike and endeavoring to induce them to quit work and
join the strikers; and it would seem to be just as offensive, and
possibly more effective to hunt them up on the street or at their
homes as it would be to stand in line on their approach to the shops
and observe them or talk with them. Furthermore, the evidence
in this case might be construed as intimidating and threatening.
Among other things, appellant said to Smith that “ He didn’t
know what the feeling of the boys would be that went out toward
those that remained.”
When this is taken in connection with other assertions of appel
lant to the effect that the strikers were sure to win, and the general
setting of the entire situation, it might properly be regarded as an
effort to intimidate Smith by intimating that he would not have
good standing among his fellow workmen, or possibly as a threat
that other workmen who went out on the strike would not permit
him to work in the event their strike was a success. The jury had
the right to interpret this remark in view of all that was said, and

220

DECISIONS OF COURTS AFFECTING LABOR

in view of all the facts and circumstances o f the case as disclosed
by the evidence. Their verdict, in effect, found that the appellant
did intimidate and threaten Smith. So, in either light we view it, it
would seem there was ample evidence to support the verdict.
Inasmuch as the charges had been that Personett had picketed,
threatened, and intimidated, all of which are made offenses by the
industrial court act (Laws of 1920), the finding was in accord with
the statute. It was said to be—
especially provided in the act that its provisions shall be liberally
interpreted for the purpose of promoting its object. It may be
noted that a strike is not a quitting o f employment. The man who
goes out on a strike does not profess to quit his employment. He
still lays claim to his position and asserts a right to go back and
take it at more advantageous terms. One of the things this statute
was aimed at was to make it possible for the man who wants to work
to do so without hindrance or molestation. The instructions given
are in accordance with the purposes and intent o f the act.
The judgment was therefore affirmed, Judge Harvey dissenting,
basing his dissent on the definition of picketing as found in various
cases and in the dictionaries, that picketing involves watching and
annoying or posting members at approaches, etc.

L abor O rganizations— P rotection of E mployees as M embers—
C onstitutionality of S tatute — I nterference w it h E mploy
m ent — I njunction — C layton A ct—M on tgom ery v. Pacific Electric
R y . Co., United States Circuit Court o f A ppeals , N inth Circuit
(N ovem ber IS , 1 9 2 3 ), 298 Federal R eporter , page 680 .—The Pacific

Electric Railway Co. was a corporation operating an intrastate
electric systen* in the southern part o f California. There were
urban and interurban lines in four counties, carrying both passen
gers and freight, thereby reaching interstate service. The road had
operated for a number of years under individual contracts with its
employees, a clause of which agreed to nonmembership in any
union as a condition of employment. In July, 1918, a strike was
called by representatives of the Brotherhood of Railroad Trainmen
and the Brotherhood of Locomotive Engineers who had been
actively engaged during the three months preceding in organizing
the company’s employees. Those engaged therein were M. E.
Montgomery, assistant grand chief of the engineers’ union, and
J. A. Farquharson, vice president of the trainmen. The former
was a resident of San Jose, Calif., and the latter o f Muskogee, Okla.;
neither was ever in the employ of the company. These men arrived
about June 21, 1918, and took charge of the organization, and on
June 25 wrote to the president of the company requesting a con
ference to discuss matters pertaining to the company’s employees.

LABOR ORGANIZATIONS

221

They proposed to be accompanied by committees representing motormen, trainmen, and yardmen. The president, Mr. Shoup, replied
that no benefit could be derived from such a conference, as the
organizations named had never been recognized, “ or any other
organizations in connection with its relation with its employees,
which had been agreeably maintained for many years.” Mr. Shoup
also sent a circular stating the position of the company. This set
forth that the employees had received the increased wages awarded
generally by the* Railroad Wage Commission, although the lines
were not under Federal control. The financial condition of the road
Tjras also presented, showing that it was in debt and not able to earn
either interest or dividends. It was also said that there was no need
for such organization, as employees could at any time discuss ques
tions of interest with the proper officers and “ be assured of a square
deal.”
A subsequent communication from Montgomery and Farquharson
announced that a strike had been voted and that the employees of
the classes named would be withdrawn from service at 7 p. m., July 2,
unless the company would discontinue its opposition to the organi
zation. This letter was received by Mr. Shoup about 1.30 p. m.
of the same day. He immediately replied that the United States
Department of Labor had a conciliator at work on matters of dis
pute and suggested that their action was one involving grave re
sponsibility as interfering with “ the local transportation service,
street car and interurban, of four southern California counties, in
cluding passenger service in connection with shipbuilding plants,
Army and Navy bases, aerial plants, and war industries.” He did
not accede to the demands made, and the strike was initiated as
threatened. A bill of complaint was immediately filed in the dis
trict court and a temporary injunction issued.
Mr. Shoup further replied to the parties that there had been no
labor difficulty or “ suggestion of a strike ” on the road for 10 years
until outsiders had appeared and instigated such action. It was
also pointed out that the steps taken were in the face of the Presi
dent’s proclamation that there should be no strike during the war,
and “ when the slogan of the country is ‘ work or fight.’ ”
A temporary injunction then issued had been sustained by this
court in a case bearing the same title reported in 258 Fed. 382, 169
C„ C. A. 398; see Bui. No. 290, p. 245. This affirmance was in May,
1919, but in August of the same year the company’s employees again
went on strike. Complaints, answers, and amendments followed
until the award of a permanent injunction in the United States dis
trict court, from which this appeal was taken, resulting again in an
affirmance,

222

DECISIONS OF COURTS AFFECTING LABOR

Circuit Judge Morrow, delivering the opinion of the court, hav
ing narrated the course of the proceedings, asked: “ Was it within
the legal right of the plaintiff to insist that its employees should
deal with it exclusively upon matters pertaining to such employ
ment?” An affirmative answer was found in the opinion of the
Supreme Court in Hitchman Coal & Coke Co. v . Mitchell (245 U. S.
229, 38 Sup. Ct. 65; see Bui. No. 246, p. 145). It was here held that
the coal company “ was acting within its lawful rights in employing
its men only upon terms of continuing nonmembership in the
United Mine Workers of America.” This freedom was as actual and
absolute as that o f the workingmen to join a union, or of either party
to terminate contracts o f employment at will.
It was contended that section 679 of the Penal Code of California,
which makes it a misdemeanor for any employer to require an
agreement not to join or become a member of a labor organization
as a condition o f employment, prohibits such contracts, but Judge
Morrow pointed out that the Supreme Court of the United States had
held a similar statute of Kansas “ repugnant to the due process clause
of the fourteenth amendment, and therefore void.” (Coppage v.
Kansas, 236 U. S. 1, 35 Sup. Ct. 240; see Bui. No. 169, p. 147.) This
opinion was held controlling, so that the statute was void and with
out effect.
The question was then taken up as to the effect of that provision
o f the Clayton Act which restricts the issue of injunctions in cases
o f dispute between employers and employees. This restriction was
held not to apply in the instant case, since the defendant parties
were not employees o f the company, and so not within the terms of
the law. “ The right of the employee to strike does not give the out
sider the right to instigate a strike.”
The persuasion was directed by the defendants, who were neither
employees nor strikers, but were intruders in the controversy, and
were engaged without excuse in an unlawful conspiracy and in an
unlawful manner, enticing plaintiff’s employees to leave their em
ployment. The activities of the defendants in promoting a strike
without lawful excuse, and in drawing plaintiff’s employees into a
controversy in which they had no substantial cause of complaint, is
fully disclosed in the record.^ These activities interrupted plaintiff’s
business in intrastate and interstate commerce to its irreparable
damage.
The admission of evidence had been objected to, but that sub
mitted was found to be properly received, the correspondence be
tween the parties being a part of the res gestae, so that the court
below had committed no error in admitting them during the trial
of the case. The decree was therefore affirmed.

LABOR ORGANIZATIONS

223

L abor O r g a n iza t io n s — R ailroad L abor B oard — J u r isd ic tio n P owers — Pennsylvania S ystem B oard o f A dju stm en t o f B rother
hood o f Railw ay and Steamship Clerks, etc.,

v. Pennsylvania

R . C o .;

Pennsylvania Railroad S ystem and A llied Lines Federation N o. 90

Sam e , United States Circuit Court o f A ppeals, Third Circuit (Ju ly
H , 1 92 4), 1 Federal R eporter {2d), page 171 .—The plaintiff associa

tions named in these cases comprised a large number of employees
of the Pennsylvania Railroad Co., who sought to secure certain rights
claimed by them under findings of the Railroad Labor Board, and
an injunction against the company and its officials from continuing
a course of action which they regarded as injurious to themselves.
The dispute as to wages and other employment conditions was an
inheritance from the period of Federal control, which ended with
the coming into effect of the transportation act of 1920, on March 1
of that year. The conflict in so far as it involved strife between the
company and the labor organizations had a longer history.
Before the assumption of control by the Government the Pennsyl
vania System had operated on the open-shop basis; “ many men of
all crafts were members of labor unions and many were not.” Com
plete unionization was resisted by the company, which refused to
recognize and deal with the organizations of shopmen, clerks, freight
handlers, etc., though it had collective agreements with the “ Big
Four,” i. e., the trainmen’s brotherhoods. When the Government
took control an order was issued which prohibited discrimination on
account of membership or nonmembership in labor organizations.
The union organization thereupon became active, and Federation
No. 90, a plaintiff in this case, was organized, and established con
nections with the American Federation of Labor. This federation
was united with the national body in the “ national agreement ”
under which the roads were operated at the time of the termination
of Federal control.
The transportation act of 1920 provided for a method of adjust
ing disputes between railroad companies engaged in interstate com
merce and their employees. This included employee representation
and the adjustment of disputes as far as possible in conferences be
tween employers and their workmen through representatives chosen
by the latter; but in case this should fail then hearings are to be
had by boards of adjustment, and finally an appeal to the Railroad
Labor Board, a body of nine Federal officials.
The scope of the powers of the Labor Board was the subject of
litigation, and a decision was arrived at in the case of United States
Railroad Labor Board v .. Pennsylvania Railroad (282 Fed. 701);
affirmed in Pennsylvania Railroad Co. v. United States Railroad
Labor Board (261 U. S. 72, 43 Sup. Ct. 278; see Bui. No. 344, pp
44915°—25----16

224

DECISIONS OF COURTS AFFECTING LABOR

142-148). It was there held that the decisions o f the board are not
enforceable as judgments of law, but that the board was “ to give
expression to its view of the moral obligation of each side [to a labor
dispute], as members o f society, to agree upon a basis for coopera
tion in the work o f running the railroad in the public interest.”
The parties are not penally bound, as “ under the act there is no
restraint upon them to do what the board decides, except the moral
constraint, already mentioned, of publication of its decisions.”
System Federation No. 90 undertook to represent the employees,
but the company declined, questioning whether it spoke for the ma
jority of its shop employees, and for lack o f proof thereof refused
to confer with its representatives. The company added further that
it would recognize organizations of its own employees, but that rep
resentatives must be persons actually employed by the company and
at work at the time in its service. An election of representatives
showed 5,226 employees actually at work who voted the company’s
ballots, while 37,245 employees, including men at work and men on
strike, supported the federation. The agreement on employment
conditions entered into between the company and the representatives
chosen on its ballot was repudiated by the federation, and an in
junction was issued against the company to secure the carrying out
o f the decisions of the Labor Board as to the election of representa
tives and the observance of the findings of the decisions of the board.
As already stated the judgment o f the courts was adverse.
The Labor Board then requested the company to comply with its
decision, which the latter declined to do, and a new decision was
rendered, asserting that the company had violated the board’s earlier
decision, No. 218, despite the Supreme Court’s assertion of the right
o f the board to render such .a decision, “ and has thereby denied to its
shop employees essential rights as laboring men to which Congress
has declared them entitled.” It was then asked by the unions that
employees on strike who had been refused reemployment, and those
discharged “ for refusing to waive their rights under the transporta
tion act,” be given damages for loss o f employment; also that mem
bers who had continued at work should be reimbursed for the
difference between the wages fixed by the company and this organi
zation and those that would have been paid if the national agreement
of 1920 had remained in force.
An injunction was sought restraining the company from enforcing
the provisions o f its agreement respecting wages and working con
ditions as established by the national agreement, from continuing to
deal with persons chosen on company ballots, from supporting or
controlling organizations of employees for the purposes set forth
in the transportation act, and from refusing to confer and deal with
System Federation No. 90. Damages were alsp asked for on the

lABOE ORGANISATIONS

225

grounds above stated. As to these points Judge Woolley, delivering
the opinion of the court, said:
The theory of these cases is both negative and affirmative. It is
negative in the sense that the complainants do not expressly ask
the court to enforce any of the decisions which the Labor Board
made in this dispute. Obviously, this is for the reason that the
Supreme Court, in Pennsylvania Railroad Co. v. United States
Railroad Labor Board (261 U. S. 72; 43 Sup. Ct. 278; 67 L. Ed.
536), decided that orders of the board are not enforceable by the
courts. Going a step further, they say their position is entirely
independent of decisions Nos. 119 and 218 of the Labor Board pre
scribing rules and form of ballot for choice of representatives by the
employees, and of decision No. 1829, declaring that the company
had violated its decision, although the practical effect of a decree
granting the prayers of their bills would be the enforcement of
these orders. The theory is affirmative in the sense that the com
plainants stand upon what they describe as their “ civil and statu
tory rights,” and, averring a conspiracy to deprive them of these
rights, they invoke the injunctive remedy of a court of equity in
the absence of an adequate remedy at law, to restrain the respond
ents from continuing and completing .such conspiracy to their
injury.
The question was found to be reduced to a single one: “ What are
the civil and statutory rights of the complainants in the premises? ”
It was said that civil rights had not been affected. The right to
organize, the right to bargain collectively, and the right to strike
were unimpaired. As to the statutory rights involved, they appear
to be such as are grounded on the transportation act of 1920. O f
this the court said:
It is evident that in enacting the transportation act of 1920 and
through it affording means by which to prevent interruption of
interstate commerce by labor disputes and strikes the Congress
had the public interest first in mind. It was more concerned in
protecting the public than in conferring rights upon railroad em
ployers and employees. To this end it set up machinery which
these contending forces could invoke to compose their differences, or
which could be invoked against them. This machinery was novel
in character and was intended to function not by ordinary process
but by the force of public opinion. It did not disturb many of the
rights which theretofore admittedly belonged to an interstate car
rier and to its employees. The carrier’s right to de.al .with indi
vidual representatives of its employees remained. The right of em
ployees who are members of labor unions to select their own con
ference representatives without the right of their employer to re
strict their selection to its own employees and exclude officers o f
labor unions was not abridged. Moreover, the “ statute does not
require [the carrier] to recognize or to deal with or confer with
labor unions. It does not require employees to deal with their em
ployers through their fellow employees.” (Pennsylvania Railroad
Co. v . Labor Board, supra.) With such rights preserved to these

226

DECISIONS OF COURTS AFFECTING LABOR

opposing forces and with no new rights of the kind here in issue
expressly given them, the statute imposes certain duties and con
fers certain powers upon the Labor Board. One of these is the
power to decide a labor dispute between a carrier employer and its
employees. This power of decision, however, does not carry with
it a power of execution. Obedience to decisions of the Labor Board
is not compulsory; enforcement of its decisions rests solely upon
public opinion marshaled on publication of the conduct o f the
offending party. This is as true of interlocutory decisions as of
final decisions. Though a decision be in favor of employees, we can
not find anything in the statute which gives them a right to its
enforcement by the courts.
^
Having power to decide a dispute which has either been submitted
to it or of which it has taken control of its own motion, the Labor
Board also has the power to decide beforehand who may properly
represent the parties and to prescribe rules by which to ascertain
their will in this regard. This power can not be defeated by the
nonaction of a party; nor can its power to proceed to final decision
be defeated by refusal of either party to obey its order. The action
of the Labor Board by decision No. 218 in finding the election of
representatives by the company’s employees in the cases at bar void
and prescribing a method and form of ballot for a new election was
held by the Supreme Court to be within its power. But this was the
assertion of a right which the statute confers upon the Labor Board,
not upon the parties to the dispute. A right of employer or em
ployees to insist that the other proceed to a hearing pursuant to such
rules as the Labor Board may have prescribed is not conferred upon
either party to a dispute unless the statute makes it compulsory upon
them. I f compulsory, and if, as in this instance, the employer should
refuse to obey the rules which the Labor Board has prescribed for an
election of representatives and otherwise should fail to submit itself
to the Labor Board, then by implication the statute might raise a
right in the employees to have the dispute heard in the manner the
Labor Board has provided, and, conceivably, they might obtain
enforcement of that right by legal process. But we find nothing in
the statute which makes it compulsory upon the employer to confer
with the representatives of the employees or further to contest the
matter before the Labor Board. Though liable to such punishment
as public opinion may inflict, the employer (and likewise, in a re
verse situation, the employees) may, for any reason, or no reason at
all, decline further to engage in the dispute. As obedience to the
mandate of decision No. 218 of the Labor Board respecting a new
election of representatives was not compulsory upon the company, its
refusal to obey the decision violated no legal or equitable rights of
the complaining employees. This is an instance where the machin
ery which the Congress set up did not work through to final de
cision and resulted in no punishment except that of public opinion
directed against the company by the announcement of the Labor
Board’s decision No. 1829. As the transportation act of 1920 makes
no provision for a situation where one of the parties defaults, it
does not provide the other party (in this instance the employees)
with means to coerce the defaulting party.
%

I/ABOR ORGANIZATIONS

227

The complainants also set forth that the company and its officers
were guilty of conspiracy, subjecting them to punishment under the
criminal code by reason of their actions preventing the free exercise
and enjoyment of rights and privileges secured by the laws of the
United States. As to this it was said that to incur the penalty “ a
thing which is done or is threatened must in itself be unlawful, or,
if lawful, it must be carried out by unlawful means.” As the re
fusal to accept the orders of the Railroad Labor Board was not an
unlawful act as construed by the Supreme Court, nor had any un
lawful means been employed to carry out their purpose, “ it follows
that in their conspiracy charge the complainants are not aided by a
statutory right.”
The result was therefore affirmance of the decrees of the district
court dismissing the bills.
A case in which the complainants sought and were denied a pre
liminary injunction was reported in 294 Federal Reporter, at page
556. Other cases involving the same or related incidents are Fenstemacher v. Pennsylvania Railroad Co. (296 Fed. 210, 213); Brother
hood o f Railway, etc., Employees v. Pennsylvania Railroad Co.
(296 Fed. 218); Pennsylvania Railroad System and Allied Lines
Federation No. 90 v. Pennsylvania Railroad Co. (296 Fed. 220).
The last-named case (Feb. 5,1924) is the one on which the appeal
discussed above was taken. The other three cases were earlier de
velopments, having been decided in 1922. The first and second cases
involved the validity of the employees’ organization with which the
company chose to deal, and an attempt to secure an injunction
against its recognition. The third was the effort of the brotherhood
to enjoin the company against changing the scale of wages that had
been ordered by the Labor Board. The principles on which the re
lief sought was found unavailable were indicated in the opinion
above quoted.
Following the adverse decision above set forth, the complainant
organizations brought the case to the Supreme Court, where a de
cision was rendered March 2, 1925, (45 Sup. Ct. 307). Mr. Chief
Justice Taft delivered the opinion of the court, which was without
dissent, affirming the findings below. It was said that the “ whole
issue is whether the provisions o f Title III [creating the Labor
Board] in pointing out what Congress wished the parties to the
dispute to do was intended by Congress to be a positive, obligatory
law, creating an enforceable duty such that a combination by the
company and its officials to violate it is a conspiracy.”
The title bears the heading: “ Disputes between carriers and their
employees and subordinate officials.” The Chief Justice recited the
essential provisions of the statute, quoting from the earlier opinion
already noted, together with the construction there put upon thq

228

DECISIONS OF COURTS AFFECTING LABOR

title. As stated above, that decision was to the effect “ that there is
nothing compulsory in the provision of the statute as against either
the company or the employees upon the basis o f which either acquired
additional rights against the other which can be enforced in a court
o f law.” What was set forth was the jurisdiction o f the Labor
Board and its duty in attempting to settle a controversy between
the railroad employer and its employees.
There are certain sections (310, 311) “ which do furnish instances
o f judicial compulsion in the matter of securing evidence and the
production of records to promote the efficient administration o f the
functions vested in the Labor Board by the title.” As to the ac
ceptance of the conclusions of the board, no compulsion is found
“ except through the effect of adverse public opinion.” At the
earlier hearing before the Supreme Court preliminary questions
were up as to the method of selecting representatives, but no differ
ence exists between the sanction there available and that as regards
final decisions “ with respect to wages and ultimate working condi
tions.” What is available is the same sanction o f publication and
public opinion and nothing else.
As to the nature of the conduct of the railroad company the Chief
Justice said:
The Pennsylvania Co. is using every endeavor to avoid compliance
with the judgment and principles o f the Labor Board as to the
proper method o f securing representatives of the whole body o f its
employees; it is seeking to control its employees by agreements'free
from the influence o f an independent trade-union; it is, so far as its
dealings with its employees go, refusing to comply with the de
cisions of the Labor Board and is thus defeating the purpose o f
Congress. Appellants charge that the company is attempting by
threats to discharge its employees to secure their consent to the agree
ment of July 1, 1921, as to wages and working conditions agreed to
by the representatives o f its employees it declared elected. This is
denied, though there is some evidence tending to support the charge.
A ll these things it might do and remain within its strict legal rights
after it came fully into control o f its railroad property subsequent
to September 1, 1920. We do not think Congress, while it would
deprecate such action, intended to make it criminal or legally action
able. Therefore the bill of complaint does not aver a conspiracy,
and without that equitable relief can not be granted.
There were other items in the complaint, particularly as to dam
ages on account of wages lost and difference in wages between the
company scale and the scale claimed by the organization. With re
gard to these the opinion concludes:
We do not find it necessary to consider these claims on their merits..
Even if the Federation No. 90 and its members as representatives in
a class suit in equity could recover such claims as damages incidental
to granting the main equitable relief prayed for, the denial o f the
prayer for the equitable relief and the dismissal of the main part of

LABOR ORGANIZATIONS

229

the bill carries with it such incidental claims without prejudice to
their prosecution at law by individual claimants as they may be
advised. Our conclusions on the merits o f the main issue and the
damage claims have made it unnecessary for us to consider objections
made to the representative capacity of the complainants to maintain
the bill.
The decree below was therefore affirmed.

L abor O r g a n iza t io n s — R ailroads — E ffe c t of S t r ik e o n L i a
b i l it y of

C o m m o n C arrier — Gage

v. Arkansas

Central Railroad C o.,

Supreme Court o f Arkansas ( Oct. 1 5 ,1 9 2 3 ) , 254, Southwestern R e
porter, page 665.—Claude

Gage brought an action to recover dam
ages because of the defendant railroad company’s refusal to receive
for shipment certain hogs. The Arkansas Central Railroad Co.
operates a line of railroad between Paris and Fort Smith, Ark. The
plaintiff made application at Ratcliff, Ark., for cars to ship 148 hogs
to Kansas City, Mo. The hogs were ready, but the defendant de
clined to receive them, giving as a reason therefor that there “ was
an embargo placed by the railroad running into Kansas City on all
kinds of freight consigned to that place.” The embargo was due to
a switchmen’s strike which began on April 8,1920, the same day that
the plaintiff had the hogs ready for shipment. The embargo was
not lifted until April 30,1920, and on the following day, May 1,1920,
freight cars were placed for the use o f the plaintiff and the hogs then
shipped to Kansas City, Mo. The circuit court directed a verdict for
the defendant, and the plaintiff brought an appeal. After an exami
nation of the facts Mr. Justice Hart, speaking for the Supreme Court
of Arkansas, affirmed the judgment, saying, in part:
It is true that railroad companies are bound to have all reasonable
and necessary facilities and appliances for conducting and carrying
on their business in a prompt, skillful, and careful manner; but they
are not bound to be prepared for unusual contingencies, which no
ordinary prudence or foresight could reasonably foresee or antici
pate. So that it has been held in this State that, where an Unusual
contingency has arisen, which unexpectedly increases the business of
a railroad company, it will be excused for delaying shipping, or even
in receiving goods for shipment, until such goods can in the regular
and usual course of business be removed.
In the application of the rule, if the railroad, as in this case, is
prevented from handling of freight in a prompt and expeditious
manner by unforeseen conditions, such as a strike, over which it had
no control, and over which, in the nature of things, it could have no
control, it will likewise be excused from receiving freight for ship
ment.
It appeared from the evidence that the defendant was in no way
responsible for the strike; the embargo prevented it from accepting

230

DECISIONS OF COURTS AFFECTING LABOR

the hogs for shipment. The strike caused all railroads entering
Kansas City, Mo., to refrain from receiving freight from connecting
carriers, and this action affected the ability o f the defendant to serve
the plaintiff.
The judgment of the circuit court in directing a verdict for the
defendant was therefore affirmed.

L abor O r g a n iza t io n s — R evocation of C h a r t e r — “ S t r ik e 55— Loss
of

B e n e f ic ia r ie s 5 C e r tifica te s — P o w e B O ver S u b ordin ate L odges—

Jennings

v. L e e ;

Sullivan

v. Sam e ,

United States District Court , D is

trict o f N ew Y o r k (June 5 , 1 92 3). 295 Federal R eporter, page 561 .—

Bryan T. Jennings and George H. Sullivan had been members of
subordinate lodge No. 417 of the Brotherhood of Railroad Trainmen,
and sued to recover dues and assessments paid by them to the brother:hood on account of membership and a fraternal life insurance plan
which the brotherhood maintained. Lee, the defendant, was presi
dent of the general brotherhood, and had suspended the local for in
subordination for engaging in an unauthorized strike. “ The con
stitution and rules concededly confer the right of revocation of the
charter granted to subordinate lodges and of the expulsion of mem
bers for inciting a strike or engaging in an unauthorized strike.55
Locals are required to prefer charges within 10 days against any of
their members engaged in or inciting an unauthorized strike. Lodge
No. 417 had failed to do this, and it was required by President Lee
to appear and show cause why its charter should not be revoked for
disobeying the constitution and general rules. No appearance was
made, and the charter was canceled and revoked, and the bene
ficiaries5 certificates held by its members were discontinued. A pro
vision is made for transferring beneficiary memberships to other
lodges in such cases, but the plaintiffs did not avail themselves of this
provision. One made no request; the other asked fGr a transfer but
refused to sign the blanks submitted under the rules of the union,
“ which embodied an avowal on his pan that he had not participated
in an illegal strike.55
Judge Hazel, before whom the case was heard, found three princi
pal questions involved: First, as to the propriety, under the brother
hood constitution, of the revocation of the charter; second, whether
plaintiffs could recover the dues and assessments paid on their insur
ance without proving that the revocation of the charter of the sub
ordinate lodge was illegal; and third, whether they were not estopped
from equitable relief on the ground that they and the lodge to which
they belonged failed to conform with the laws and rules o f the
organization.

LABOR ORGANIZATIONS

231

Judge Hazel found that-President Lee had received information of
an unauthorized strike and of no action thereon by the lodge, and
that he notified the lodge in good faith as to its duty to appear and
show cause why its charter should not be revoked. This was “ with-,
in the reserved right of the defendant brotherhood, and the rule in
relation thereto was designed to discipline subordinate lodges for
their violations of the laws of their organization.” Associations
which are creatures of convention between members may transact
their business in the manner agreed upon so long as no illegal act or
one opposed to public policy is engaged in, and regularity of proceed
ings will be presumed. Plaintiffs and others testified that there was
no strike on the New York Central at the time cited; “ yet their
testimony clearly shows that many trainmen and members quit work
about the same time, and refrained from working until later in April,
when by unanimous action they returned to duty in a body and
concertedly quit work again just prior to May 1.” This action was
taken “ with a view of enforcing compliance with their demands on
their common employer, the railroad company,” and the court found
that this might reasonably be classed as a strike, “ as that term is de
fined in law.”
But whether or not there was a strike or whether plaintiffs them
selves were engaged therein, the fact remains that they “ did not
avail themselves of their right under the constitution and rules of
the brotherhood to transference to another existing lodge.” These
rules were neither unreasonable nor oppressive, and a refusal to con
form therewith, “ operated to deprive them of the benefits to which
they were entitled under their certificates.”
No grounds appearing to support their claims, the bill “ must be
dismissed with costs.”
L abor O r g a n iza t io n s — R ules — I n t e r v e n tio n b y C ourt — Carey

International Brotherhood o f Paper Mahers , Suprem e Court o f
N ew Y o rk (>Septem ber 20, 1921^), 206 N ew Y o r k Supplem ent , page
73 .—Jeremiah T. Carey, individually and as president of the Inter
national Brotherhood of Paper Makers, and another brought an action
against the International Brotherhood of Paper Makers to set aside
a report of the international board of canvassers, for a recanvass,
and for judicial declaration that the plaintiff was elected president,
and for an injunction to restrain Matthew M. Parker, declared presi
dent by the canvassing board, from performing the duties of the
office. Carey, who had been president of the association for some
18 years, Parker, and one Grosse were candidates for the office of
president, and Carey and Parker were candidates for delegates to a
labor convention. The election was held, but due to the action of

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DECISIONS OF COURTS AFFECTING LABOR

the counters in charge, a large number of votes were thrown out.
and instead o f Carey being elected as at first appeared, Parker was
elected. Carey brought this action to have the election declared
null and void. The supreme court first set down some principles
governing trade-unions and associations of this character.
In the election o f officers the votes o f locals failing to comply with
the rules o f the international body were held as properly rejected.
It was not considered improper for the canvassing board to employ
an attorney to advise on the questions respecting protested votes,
where one candidate was represented by an attorney. As to the
manner of casting ballots the local union could not adopt any man
ner or method that would conflict with the organization’s constitu
tion. The action o f the canvassing board in throwing out many
of the votes was considered by the court as being proper. The court
pointed out other reasons why the complaint should be dismissed:
The court will intervene in the affairs o f voluntary associations
when civil or property rights are involved, but where such rights are
involved and are determined according to the rules and regulations
o f the association (there being no question of public policy involved)
the court will not intervene, on the theory that the constitution and
by-laws o f the association constitute the contract between the asso
ciation and the members of it, and that until their provisions are
violated there is no ground upon which to invoke the jurisdiction of
the court.
Furthermore, where, under the rules and regulations governing
the association, a tribunal has been set up to pass upon questions
arising within the association, the court will not interfere with the
determination of such a quasi judicial tribunal set up by the organi
zation unless bad faith or fraudulent purpose in its conduct in pass
ing upon the particular question is found as a matter of fact.
The salary o f president was $5,000 a year, and the plaintiff con
tended that a property right was involved. The supreme court
said:
The holdings o f the courts are uniform to the effect that the
salary attached to a public office is not a property right. I f an
officer were elected and became entitled to his salary, he would haver
a right to collect it as earned. This would be a property right.
Mr. Carey’s term had expired, and he would not be entitled to
salary unless reelected. The court further said that:
. It is clearly established as a part o f the law of contract that one
employed for. a definite period may not, excepting in accordance
with the terms of the contract, * * * be discharged from an
employment without making the employer liable with certain limi
tations for the compensation for the full term o f the employment.
I know of no case where the question in this form has arisen, but
it seems to me to go a little too far to hold that a question involving
the right to employment does not involve a property right where the

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233

question is whether or not the contract of employment was actually
made.
The candidates were bound “ by the action of the international
canvassing board, acting as it does in a quasi-judicial capacity, unless
it be shown that there was bad faith or fraud in the performance of
its official duties.” The action of the board was final and there
was no appeal, so that—
I f any rights of the plaintiff had been invaded, all remedies had
been exhausted within the brotherhood, and he had no adequate
remedy at law; in this respect the action was properly brought.
However, no legal grievance was found to exist. The same de
cision was held to apply to the election of delegates to the labor
convention.
The complaint was accordingly dismissed and the temporary in
junction which had been granted was dissolved.

L abor O rganizations— R ules— I ntervention by C ourts—Stivers
v. Blethen et al Supreme Court of 'Washington (May 1 1923), 215
Pacifle Reporter page 7.—W. H. Stivers, a union employee in the
composing room of the Times Printing Co., of Seattle, was dis
charged by G. W. Jeffs, foreman of the composing room. The
members of Seattle Typographical Union employed by the Times
decided that Stivers had not violated the office rules, but Jeffs de
clined to accept their decision. The executive committee of the
Seattle union began an investigation, but Jeffs informed them that
even though they affirmed the decision of the members employed by
the Times, Stivers would not be reinstated. Jeffs held that the
executive council of the international union, sitting at Indianapolis,
had exclusive jurisdiction of the case.
The Seattle union, after consideration, decided Stivers had been
wrongfully discharged, and the Times appealed to the executive
council. While appeal was pending Stivers was paid his regular
wages, amounting to $848.30, but was not allowed to return to work.
The executive council heard the case, decided that it had jurisdic
tion, and that the discharge of Stivers was justified; and the Seattle
union was ordered to refund to the Times the amount of wages paid
to Stivers during the time of appeal. The refund was made as a
necessary condition precedent to appeal, and appeal was taken by
the Seattle union to the 1920 convention of the International Typo
graphical Union. The International Typographical Union sus
tained the decision of the executive council. Stivers then sued cer
tain individuals and the Times to recover the sum of $848.30 for
his own hse and the use and benefit of the other members of the

.,
,

234

DECISIONS OF COURTS AFFECTING LABOR

union. The trial court dismissed the complaint, and Stivers ap
pealed. On this appeal the court said, in part :
This action was brought for “ judgment setting aside and an
nulling the order of the executive council of the International Typo
graphical Union requiring Seattle union to reimburse the defendant
corporation in the sum o f $848.30, impressing a trust upon the said
sum of $848.30 in the hands of said corporation, decreeing the said
corporation to be a trustee thereof for the benefit of the members o f
Seattle union, and ordering the said corporation forthwith to return
the said sum to the secretary-treasurer of the said Seattle Typo
graphical Union, No. 202, and for his costs and disbursements
herein.”
The question of the jurisdiction of the courts was then taken up,
and Chief Justice Main, in the course of his opinion, said:
The courts in cases of this kind will not interfere with the inter
nal affairs of an unincorporated association so as to settle disputes
between the members, or questions of policy, discipline, or internal
government, so long as the government of the society is fairly and
honestly administered in conformity with its laws and the laws of
the land and no property or civil rights are involved. (5 C. J.
1364; Kelly v. Grand Circle, Women of Woodcraft, 40 Wash. 695,
82 Pac. 1007.)
The executive council having decided this question of procedure,
and the international convention having sustained the decision, it
is a matter with reference to which the court will not interfere.
The matter of requiring the Seattle union to reimburse the Times
before it could appeal to the convention of the international was
likewise a matter which involved procedure with reference to the
internal affairs or government of the association. It is said in the
complaint that the decision of the executive council was arbitrary
and fraudulent, but we find no facts stated which would justify the
court in finding such to be the case. As already said, the matter
was one within the internal affairs or government of the union, and
with this the court does not interfere.
The judgment of the court below was therefore affirmed.

L abor O rganizations— S eniority R ights— R ules— I ndividual
R ights N ot E xtinguished by M embership— P iercy v. Louisville &
Nashville B y . C o ., Court o f Appeals o f K en tu ck y (March 2 3 ,1 9 2 3 )

24.8 Southwestern

R eporter , page 101$.—One Stanfill had for 15
years or more been employed as passenger conductor on a fast day
light train, running between Cincinnati, Ohio, and Knoxville, Tenn.,
on the lines of the Louisville & Nashville Railway Co. He had been
assigned to this fast daylight train for many years before seniority
fights were recognized by the railroad or its employees. In 1916
certain seniority rights were recognized, and in 1920 full seniority
rights were provided for during the time of Federal control, and

LABOR ORGANIZATIONS

235

they were also accepted by the company after that period.
Seniority districts were made coextensive with the regular divisions
of the railroads, there being two passenger divisions between Knox
ville and Cincinnati. On each passenger train there were provided
three conductors, two from the Cincinnati and one from the Knox
ville division, the Cincinnati division being the longer one. Stanfill
was the senior conductor of the Knoxville division, and when he
was placed on the through run from Knoxville to Cincinnati on the
same daylight train his lay-over periods were at Cincinnati, so he
moved his family there so that his rest periods might be with them.
In 1921 agitation arose in the Order of Railroad Conductors,
Knoxville branch, to make such a change that the lay-over period
would occur in Knoxville for those conductors who came from there.
Stanfill objected to this, but in 1922 the change was made and Stan
fill was placed on a night train with his rest period occurring in
Knoxville.
Stanfill objected on the ground that it deprived him of his
seniority rights to the daylight train, and he brought an action
against the railroad company and the other conductors involved
under the declaratory judgment act (Acts 1922, ch. 83). In the
lower court there was held to be a binding contract between the com
pany and Stanfill entitling him to be restored to the daylight run,
but the judgment was held not to affect the right of the company
to determine in the future the question of fitness or ability of Stanfill
or any of its employees. The company did not except to the judg
ment, but certain of the conductors appealed.
The court of appeals on reviewing the judgment held that the
order of the company, in compliance with the request of the Knox
ville division, did not impair the prior contract of seniority rights
in any way. It further held that the contract for seniority rights
was ambiguous and it was decided to give to it such meaning as
the parties had given to it at the time it was made. Taking that
view the court held that the plaintiff was one of those who con
tended for the interdivisional rule as to runs. But the three senior
Knoxville men were all put on night runs, while all the day runs
went to the Cincinnati men, without reference to the rule of
seniority.
The court said,, in part:
It is argued by appellants that Stanfill, who was a member of the
Order of Railroad Conductors, as a loyal member of that organiza
tion must be bound by its action in requesting the railroad com
pany to make the order changing the assignments. This contention
ignores the fact that such agreements between organizations of em
ployees and their employer are designed primarily for the individual
benefit of the members of the organization, and not to place it within

236

DECISIONS OF COURTS A F F E C T IN G LABOR

the power of the organization to change or modify the contract at
its pleasure, so as to affect the individual rights of its members
theretofore secured by the agreement. The officers of such organiza
tions are, as to the individual rights of its members, not to be
deemed as their agents. Here there was no general change of the
contract, nor was there an attempt to make a general or any change.
The order, in fact, did not attempt even to change the individual
rights of Stanfill as to this run; but merely requested the company
to ignore those rights, and the company, for the sole purpose of
pleasing the organization, undertook to do so.
The primary purpose in the organization of labor unions and kin
dred organizations is to protect their individual members and to se
cure for them a fair and just remuneration for their labor and fav
orable conditions under which to perform it. Their agreements
with employers look always to the securing of some right or privilege
for their individual members, and the right or privilege so secured
by agreement is the individual right of the individual member, and
such organization can no more by its arbitrary act deprive that
individual member of his right so secured than can any other per
son. The organization is not the agent of the member for the pur
pose of waiving any personal right he may have, but is only his
representative for the limited purpose of securing for him, together
with all other members, fair and just wages and good working con
ditions. (Hudson v. C., N. O. & T. P. Ry. Co., 152 Ky. 711, 154,
S. W. 47, 45 L. R. A. (N. S.) 184.)
I f the right of seniority may be changed or waived or otherwise
dispensed with by the act of a bare majority of an organization, to
which the one entitled thereto is a member, it would be builded
upon a flimsy foundation of sand, which might slip from under him
at anytime by the arbitrary action of the members, possibly to serve
their own selfish ends in displacing him.
To the argument that Stanfill, being a member of the Knoxville
organization, must bow to the order, the court said:
In the first place Stanfill protested at all times and at all stages of
the controversy in the organization against this action, upon the
ground that it interfered with his right of seniority, and, in the next
place, his agreement did not contemplate the submission by him to
that body of the determination of any question involving his per
sonal rights. Doubtless, under the terms of his agreement as a loyal
member, it was his duty to acquiesce in the will of a majority inside
the order under any question of policy or any difference of opinion
that might have arisen affecting the welfare of the organization.
But here we have a personal right acquired by him as against the
railroad company under contract, and we have the Order of Rail
road Conductors asserting the right to waive for him the benefits
of that contract. It could not have been in comtemplation by a
member of such organization that he agreed when* he entered to
submit to the order for decision a controversy involving his rights
as against a third party.
The judgment was therefore affirmed.

LABOR ORGANIZATIONS

237

L abor O rganizations— S ervice on R epresentative— “ D oing
B usiness ”— S ympathetic S trike—Pacific T ypesetting C o . v. I n
ternational Typographical Union , Suprem e Court o f W ashington
{June 5, 1923) , 216 Pacific R eporter , page 358.—The Pacific Type
setting Co. was the owner of a printing plant which had contracts
with a number of employing printers in the city of Seattle for
linotyping and monotyping. The International Typographical
Union is, as its name implies, an association of workmen of inter
national scope, and had local branches in various localities. Such a
branch exists in the city of Seattle, and is known as Typographical
Union No. 202.
The parent association and its branch were made up of numerous
members, were voluntary associations, and therefore not subject to
process as corporations. One Philo Howard was an organizer and
executive agent of the International Union, residing in Seattle.
Both the international and the local union, as well as Howard and
other individuals, were made respondents in proceedings by the
Typesetting Co. to prevent their interference with the company in
the conduct of its business.
In May, 1921, the union called out its members on a strike to
secure from the various printing establishments of the State a 44hour week. For the purpose of compelling and forcing these print
ing establishments whose employees had been called out on strike
to grant the demands of the union, the employees of the Typesetting
Co. were likewise called out, and those who belonged to the local
union obeyed the call and ceased employment. The employees of the
Typesetting Co. were represented as not desiring to cease work, but
did so for fear of suspension, fine, or reprimand from the local union
to which they belonged, there being no controversy between them
and their employers, nor any desire to improve hours, wages, or
working conditions.
The purpose alleged by the plaintiff was that the union and its
officers desired to injure and embarrass the printing establishments
with which it had contracts in carrying on their business so as to
coerce them into yielding to the demands of the union as to the
44-hour week. Damages in the sum of $20,000 were prayed for.
The International Typographical Union represented that its
agent, Howard, was not authorized to accept or receive legal service
so that it was not properly before the court, his only authority
being “ to employ all lawful means to secure and induce the employ
ing printers to adopt the 44-hour scale of employment.” The local
defendants demurred on the ground that the complaint did not state
facts sufficient to constitute a cause of action.
In the superior court of King County orders were issued dismiss
ing the service against Howard as representative of the international

238

DECISIONS OE COURTS A F F E C T IN G LABOR

union, and sustained the demurrer offered by the local defendants,
from which the company appealed.
Judge Mackintosh, speaking for the court, stated two questions
which required answers: First, whether the service upon Howard
was sufficient to bring the international union into the case; and
second, whether the complaint stated a cause of action. As to the
first it was stated that it was necessary to determine whether the
association (the International Typographical Union) was doing
business within the State of Washington. It was stated that the
activities of the association were the securing of satisfactory work
ing conditions, including pay and proper hours of labor. Judge
Mackintosh then said:
These constitute the major purposes and the principal activities
of such organizations. They are created primarily to attain these
results, and the effort in any community to secure from their em
ployers the adoption of any or all of these beneficent standards of
employment is engaging in the very business for which they con
tinue their existence. Therefore, when the International Typo
graphical Union authorized Howard to employ all lawful means to
secure the adoption of the 44-hour week in the printing trade in
Seattle, it authorized him to carry on the business of the association
to that important extent.
I f Howard was a mere servant or employee, service or process on
him would not suffice, but—
As far as that association was doing business within the State,
he had the entire direction and control of it; his authority was co
extensive with the association’s activity. The standard laid down in
many cases of commercial organizations requiring the agent to have
authority to enter into contracts, make binding agreements, and so
forth, can have little weight in determining the questions of the ex
tent of Howard’s authority. For this was not a commercial organ
ization. Its lines of endeavor were restricted, but within those lines
Howard exercised full authority and control.
It was therefore held that service upon him was properly service
upon the union, so that it was before the court for whatever pro
ceedings were in order.
The next question, as to the complaint stating a cause of action,
involved a discussion of the circumstances of the strike. “ The
strike against the printing establishments was a lawful strike, in
volving as it did the question of hours of labor.” However, the case
brought by the complaint was u one in tort against an outsider who,
it is alleged, interfered with the business of the appellant” (the
typesetting company), so that the only question is of the invasion
of the company’s rights without regard to good or bad motives or
peaceful or violent acts. There was here a conflict between em
ployers and employees involving hours of labor. The typesettingcompany was a noncombatant who prior to the conflict had been

LABOR ORGANIZATIONS

239

furnishing its output to the employers, the parties to the present
struggle. It had continued to do so during the conflict, taking no
part therein, and assisting neither, but was attacked for the reason
that the continuance of its services resulted in making it more diffi
cult for the employees successfully to wage their contest with their
employers. “ The respondents’ (the strikers) efforts are to con
script the noncombatant appellant into their service in the conflict,
and use it as an active agency in the respondents’ behalf.” The com
pany was said to be “ in a helpless situation. There was no demand
made upon it with which it could comply; there were no terms im
posed upon it which it could meet.” It was in no dispute with its
own employees, but was being forcibly and unwillingly brought
into the conflict by one party to accomplish the defeat of the other
contestant.
Recognizing the great mass of discussion and decisions on the
point, Judge Mackintosh said that “ the elementary principle invoked
to sustain the appellant’s position is that which is inscribed on the
old landmark of the law (Lumley v. Guy, 2 El. & Bl. 216) that a
third party is liable in tort for his persuasion of one to break his
contract with another, a principle which has received continual
sanction.” A number of cases were cited, with a discussion of the
boycotting of products of noncombatants who were furnishing prod
ucts to employers against whom a strike was in operation. Refer
ence was made also to the statutes of the State and the United States
as to the issue of injunctions in cases of dispute between employers
and employees. It was recognized that if the printing company
had newly become an active participant in the situation by taking
over work from the employers against whom the strike was directed
it would be a party to the conflict by reason of such intervention;
but as there appeared to be simply continuing previously existing
relations, this situation did not exist. It is recognized, as quoted
from Ruling Case Law, vol. 16, page 448, that:
Striking employees can not be enjoined from inducing employees
in factories by which their former employer is attempting to get
the work done to fill his contracts, to ref use to work on it, although
it resulted in the owner of such factory breaking its contracts.
However, as the only action by the plaintiff had been continuing
its service, there was a necessity for the trial court to proceed to a
hearing on the merits, a cause of action having been stated in the
petition. The judgment below was therefore reversed, and the case
remanded with directions to the trial court to overrule the demurrer
which it had allowed, thus giving the company its opportunity to
present its grounds for claiming the damages allowed.
449^°—25---- 17

240

DECISIONS OF COURTS AFFECTING LABOR

L abor O rganizations— S tatus— “ C it ize n sh ip ”— Russell v. Cen
tral Labor Union , United States D istrict Court , Eastern D istrict o f
Illinois ( October 1, 1924) , 1 Federal R eporter (2 d ), page 412.—Isa

bel Russell undertook to sue six labor unions and certain other de
fendants to recover damages for an alleged tort. The nature of the
injury claimed is not indicated in the report of the case, the entire
discussion being confined to the point of the status of the unions and
their nature as citizens or not. The opinion was given by District
Judge Lindley.
It was first stated that the plaintiff was a citizen of the State of
Missouri and that the defendant unions were voluntary associations
in the State of Illinois, declared to be citizens of that State and its
members also citizens. The suable character of the associations was
also asserted. To her declaration the associations replied alleging
that not all their members were citizens of the State of Illinois, and
that in each instance there were members citizens of other States.
In meeting these pleas the plaintiff alleged that the associations were
all domiciled within the State of Illinois, had their offices therein,
and confined their activities entirely to that State, saying further
that the citizenship of the individual members was immaterial. To
these replies the associations demurred, which placed the case before the court for a determination of the sufficiency of the plaintiff’s
declaration and reply.
Judge Lindley recognized that the Supreme Court, by its decision
in United Mine Workers v. Coronado Coal Co. (259 U. S. 344, 42
Sup. Ct. 570; see Bui. No. 344, p. 157), had “ distinctly and definitely
held that such voluntary organizations are suable in the Federal
court,” so that such organizations might be regarded as distinct and
separate legal entities entirely apart from the entities of their indi
vidual members. The question follows: “ Can we go a step further
and say that it follows logically that such a distinct legal entity is a
citizen within the meaning of that word as recognized by the Supreme
Court of the United States in its various definitions of that term in
cases involving jurisdiction? ”
Various cases were cited, beginning with Lafayette Insurance Co.
v. French (18 How. 404,15 L. Ed. 451). In the course of its opinion
in that case it was said: “ This court does not hold that either a
voluntary association of persons, or an association into a body politic,
created by law, is a citizen of a State within the meaning of the Con
stitution.” Also in the case, Great Southern Fire Proof Hotel Co. v.
Jones (177 U. S. 449,20 Sup. Ct. 690, 44 L. Ed. 842), it was held that
a limited partnership association created under Pennsylvania laws,
although declared by the State statute to be a citizen of the State
and held by the State courts to have the right to sue and to be sub
ject to suit, was not to be held a citizen of the State within tfie mean

LABOR ORGANIZATIO NS

241

ing of the clause of the Federal Constitution which extends the judi
cial powers of the United States to controversies between citizens of
different States, but that the citizenship of the individual members
of the association must be alleged in the suit to give jurisdiction on
the grounds of diverse citizenship.
Other cases were cited, with quotations of like tenor. The opinion
continued:
It appears, therefore, that the Supreme Court of the United States
has announced the law as being that a voluntary association, under
such circumstances as existed in the Coronado case, is suable in the
United States courts, but that no legal entity, though suable, may
invoke the jurisdiction of the court upon the ground of diverse citi
zenship, unless it appears that the individual members comprising
this entity are citizens of States other than those of the opposing
parties, except that corporations created by statute of the various
States, and of such character that the individual stockholders thereof
have only participating interests in capital stock, and have no legal
title to the property of the corporation, are to be treated as citizens.
The Coronado case was a step m advance of prior decisions, in that
it definitely decided that voluntary, unincorporated associations may
be sued. It may be that the logical conclusion from guch a holding is
that such an association possesses the attributes of citizenship sepa
rate and apart from its members, to the extent that such citizenship
may be invoked as a ground for jurisdiction of the United States
court upon the ground of diversity of citizenship; but, if that is to be
the law,- it is plain that it can become the law only by a modification
of its former holdings by the Supreme Court.
The conclusion was reached that the demurrer must be sustained,
and it was so ordered.
L abor O rganizations— “ S trike ”— P rovision of C ontract as to
E xtension of T im e — “ L ockout ” — P am ieri-H oga n Go. v. B en der,
Supreme Court o f N ew Y o r k , Appellate Division (M a y 16, 1 92 3),
199 Neto Y o r k Supplement, page 887.—The plaintiff company

named had a contract with Harry H. Bender for the construction
of a building in the city of Albany, wages thereunder being fixed in
accordance with an agreement between contracting employers of the
city in effect at the time. The company was a member of the Albany
Builders5 Exchange, and during the period of the contract in
question an agreement was made by this exchange that it would
reduce the scale of wages at the conclusion of its contract with the
union. The assent of the union to this reduction was not obtained,
but the employees of the company continued their work up to the
expiration of the prior existing agreement, April 30, 1921. On the
next day, when the reduced schedule was to become effective, a gen
eral strike in the building trades of the city set in and continued
until the latter part of July. The plaintiff company was unable

242

DECISIONS OF COURTS AFFECTING LABOR

to obtain workmen for some days, but gradually built up a force
and completed the work July 26, paying the wages offered by other
contractors in the city and which were the same that prevailed at
the time of the trial. Prior to this, however, the company had
requested the labor unions to furnish men, offering to pay the wages
then being offered by the other contractors and any amount addi
tional which might be adjusted later when the strike was settled.
This the unions refused to do, declining to enter upon any work
unless the old schedule should be continued for another year by
signed agreement.
The foregoing facts were not in dispute. The present action was
to recover from the owner of the building an unpaid balance of
$2,011.17, which amount was conceded as remaining unpaid on the
contract. However, the owner presented a counterclaim that,
through the failure of the plaintiff to complete the building within
the stipulated time, he had suffered damages through loss of rents
to an amount equivalent to this unpaid balance. There was a pro
vision in the contract that if delay should be occasioned by reason
of strikes on the part of the workmen or employees the period of
delay occasioned by such strike should be counted out of the time
allowed for the completion of the work. The construction company
claimed that its delay was occasioned by the strike, relieving it from
liability under this provision of its contract. Bender, on the other
hand, claimed that it was a lockout, and that the strike clause was
no defense.
Judge Hinman, who delivered the opinion of the court, quoted
Webster’s definition of a strike, a part of which is “ a stopping of
work by workmen in order to obtain or resist a change in condition
of employment.” The same authority defines lockout as “ refusal
of employer to furnish work to employees, used as a means of co
ercion.” Judge Hinman regarded the case as one of a strike rather
than of a lockout, saying:
They stopped work in order to obtain these higher wages, or to
resist the change in the condition of their employment as to wages,
which the plaintiff required of them as the condition of their con
tinuance in its employ. It was not a refusal of the plaintiff to fur
nish work within the meaning of a “ lockout.” The plaintiff urged
them to work, but under a changed condition, which the men re
sisted. We can not see why this was not such a strike as was con
templated by the building contract. The provision of the contract is
general in its terms, ana not limited to any particular kind of a
strike. It does not by its terms purport to make any distinction
between a strike provoked by the voluntary act of the employer and
one instituted by the workmen without such provocation.
A quotation was then made from the case of Delaware, Lacka
wanna & Western Railroad Co. v. Bowns (58 N. Y. 573), in which

LABOR ORGANIZATIONS

243

the headnote states that “ in consequence of a reduction of wages, a
strike of the miners and other employees in plaintiff’s employ oc
curred, interrupting its business and preventing it from obtaining
all the coal called for.” In this case a strike clause existed in the
contract and was held'to be an adequate defense, “ it appearing that
the plaintiff acted in good faith and upon just and reasonable busi
ness principles in reducing the wages.” This opinion was said to
be decisive of the question raised, “ unless the law as there laid down
lias been modified by what was said by the court of appeals in the
case of McGovern v. City of New York (234 N. Y. 377,138 N. E. 26;
see p. 13). Distinguishing between the two cases, Judge Hinman
found that the McGovern case interpreted a strike clause expressly
limited in scope, and that the doctrine of the Bowns case had not
been overruled. In conclusion Judge Hinman said:
It is immaterial that the effect of the proposed reduction in wages
had for its result a benefit to the employer and detriment to the
defendant. The uncontradicted proof in the case indicates that the
proposed reduction in wages was a matter of the general conduct and
management of the plaintiff’s affairs upon general principles by
which it would have been governed had the contract with the de
fendant not been made. The act of the plaintiff, in joining with
the other employers in the same line of business to fix a wage scale in
the community at the end of a period over which the wage scale
had previously been fixed in a similar manner, can not be challenged
as an act of bad faith so far as this defendant was concerned. The
plaintiff made no effort to abandon its contract, but, on the con
trary, made every effort to conclude it within the shortest time
available to it within the circumstances. It offered to its former
employees the payment of whatever wage was finally agreed upon
between ‘the contending forces upon the final outcome of the strike.
This offer was refused by the men. The plaintiff paid to the men
it was able to employ the prevailing market rates in the community
at the time, and the same scale as paid for similar work at the time
of the trial.
A dissenting opinion was submitted by Judge Kiley, who took the
view that it was immaterial whether the incident was called a strike
or a lockout, since whichever it was it was caused by the plaintiff’s
acts.
Plaintiff agreed to do this work within a certain time. It was
bound by its contract to fulfill or pay defendant’s damage. Default
was made because plaintiff refused to pay the wages the workmen
were receiving when the job was commenced. It could have averted
the strike or lockout by paying the going rate of wage when the
work was commenced. The failure to do so was the cause of de
fendant’s loss. Failure to perform is not excused.
Judge Kiley’s conclusion, therefore, was that the owner’s claim of
damages was a proper counterclaim and offset the plaintiff’s claim
for the unpaid balance.

244

DECISIONS OP COURTS AFFECTING LABOR

L abor O rganizations— S trikes— C onspiracy— I nterstate C o m
merce—I njunction — United States

R ailw ay Em ployees* D epart

m ent o f the Am erican Federation o f Labor et al., U nited States
District Court, Northern District o f Illinois (J u ly 12, 1 9 2 8 ), 290
Federal R eporter, page 978 .—On

June 5, 1922, the Railroad Labor
Board published its decision (No. 1036) fixing the wages and
salaries of members of what is known as the Federated Shop Crafts,
the same to be effective July 1, 1922. The employees affected were
dissatisfied with the wages fixed in the decision and as a result a
strike order was issued on June 29, 1922, by the Federated Shop
Crafts, directing its members to quit their employment in a body
on July 1,1922, at 10 o’clock a. m. About 90 per cent of the 400,000
members of the Federated Shop Crafts were reported as having
left their employment and the strike was only partially settled on
September 1, 1922, when application was made for a temporary re
straining order against the Railway Employees’ Department of the
American Federation of Labor. The petition was granted and the
restraining order issued the .same day.
The United States brought the proceeding on which the injunction
was granted under the general equity jurisdiction of the district
court and under the antitrust act of July 2, 1890 (26 Stat. 209).
The grounds of the action were that there was an unlawful combina
tion and conspiracy to obstruct and restrain interstate trade and
commerce and the transportation of the mails over the lines of rail
road affected by the action of the strikers.
The strike leaders issued a bulletin at the outset of the strike,
declaring that their act in quitting their work en masse was the
“ only recourse left after two years of negotiations and ‘ buck pass
ing ’ on the part of the railroad managers, and a series of ‘ injuries
and usurpations ’ by the United States Railroad Labor Board.” The
strike at once took an aggressive, belligerent, and violent course. The
50 railroads which furnished evidence showed that they had been
compelled to house and feed employees on company property at
1,055 points scattered throughout the country.
The evidence shows 19 deaths due to assaults and violence by
strikers; 1,500 instances of various kinds of assaults by strikers on
employees of the respective railroad companies and those seeking
employment with them; 65 cases of kidnaping, with accompanying
brutal assaults; 8 cases of tarring and feathering of new employees
by strikers; 50 instances of burning and dynamiting, or attempting
to burn and dynamite, bridges over which trains engaged in inter
state commerce and carriage of the United States mails passed; 250
cases of burning or dynamiting, or attempting to burn or dynamite,
property of the railroads and homes and property of the employees;
50 cases of derailment, or attempts to derail or wreck trains engaged
in interstate commerce by greasing tracks, placing obstructions on
tracks, removing spikes, interfering with frogs and switches, cutting

LABOR ORGANIZATIONS

245

wires, signal apparatus, etc. The‘cutting of air hose, throwing of
stones, firing of shots, placing foreign substances such as blue vitriol,
gaskets, soap, and slugs in pipes, cylinders, and other parts of loco
motives, tampering with electrical equipment, removal of cotter
pins and other necessary parts of locomotives, and placing of emery,
sand, and other foreign substances in journal boxes, occurred so gen
erally and frequently throughout the country on all railroads from
which proof was taken, that it is impossible to compile the exact
number of such cases.
Millions of dollars were expended on account of the strike aside
from the damages to property, losses to business, etc., while the
Department of Justice expended almost $2,000,000 for additional
United States deputies and other expenses. The Eailway Mail
Service was curtailed to such an extent that 706 mail trains were
discontinued.
The hearing on the continuance of the temporary injunction was
on September 11, 1922. The decision granting the injunction ap
pears in 283 Federal Reporter, page 479 (see Bui. No. 344, p. 208),
while the decision overruling the employees5 motion to dissolve the
injunction was reproduced in 286 Federal Reporter, page 228. No
appeal was taken from these decisions, and depositions were pro
cured between June 5, 1923, and May 2, 1923, for the securing of
evidence as to the course and nature of the strike. The trial was set
for May 2, but on May 1, 1923, counsel for the striking associations
withdrew their appearance. The defendant union offered no evi
dence at the trial. Under the proceedings had, a final decision and
decree were arrived at, and announced by Judge Wilkerson on July
12,1923 (the instant case).
In announcing his decision at this time, Judge Wilkerson re
ferred to the earlier discussions as setting forth the questions of law
involved, adding “ I find no reason to modify the views there ex
pressed.55
While the strike had somewhat subsided at the time of the final
hearing in May, it was still in existence against 62 per cent of all
the railroads in the United States engaged in interstate commerce,
representing a mileage of more than 140,000 miles. After the grant
ing of the temporary injunction the acts of violence, assault, etc.,
diminished in number, but the evidence was said clearly to indicate
the necessity of continuing the injunction to prevent u fresh out
bursts of lawlessness and a recurrence of the depredations committed
in 1922.55 The strike was said to be manifestly more than a con
troversy between employer and employees, and had as its purpose,
as shown by the evidence, the destruction of interstate commerce
and the creation of public, open hostility toward decisions of the
Railroad Labor Board. “ The primary purpose of the combination,
therefore, is unlawful, and it may not be carried out by means that

246

DECISIONS OP COURTS AFFECTING LABOR

otherwise would be legal.” It would not be sufficient merely to en
join acts oi violence which are done in secret, but the open en
couragement by words and deeds in themselves apparently peaceful
and lawful must also be restrained, as they are an encouragement
to injury to persons and property. Moreover, “ the peaceful words
of the strikers and pickets, the peaceful exhortations of the strike
leaders, take on, by virtue of the atmosphere of lawlessness and vio
lence in which they are spoken, a force not inhering in the words
themselves* and therefore transcending any possible right of free
speech.”
A decree was therefore granted with provisions essentially the
same as those contained in the temporary injunction. (See Monthly
Labor Review, October, 1922, pp. 177, 178.) The language of the
final decree varies somewhat from that of the temporary injunction,
as, for instance, omitting the prohibition of “ persuasion,” and ex
tending the prohibition of picketing so as to include such action
“ along the ways traveled by such employees ” to or from their places
of work. But nothing in the injunction was to be construed to
prohibit the use of the funds of the union for any lawful purpose,
nor to restrain the expression of opinion or argument not intended
to aid or encourage the doing of the prohibited acts or not calculated
to prolong a conspiracy to restrain interstate commerce for the car
riage of the mails.
L abor O rganizations— S trikes— D u ty of C it y to P rotect O per
S treet C ars— A ttempt to P revent O peration— I nju n c
tion — Schenectady R y . Go . v. W h itm yer , Suprem e Court o f N ew
ations of

Y o r k (M a y 19 , 1 9 2 3 ), 199 N ew Y o r k Supplem ent , page 827.—The

Schenectady Railway Co. sought an injunction against Clarence A.
Whitmyer, as mayor of the city of Schenectady, and others, to re
strain them from interfering with the operation of the plaintiff’s
street-car system in the city of Schenectady. The employees of the
company were on strike, and the city authorities took the view that an
attempt to operate the cars would result in disaster and sought to
prevent such operation. A temporary injunction had been granted
against the city’s efforts to prevent operations of the cars, and this
suit was prosecuted in an attempt to secure a modification of this in
junction.
Judge Angell denied the motion to modify the injunction, saying
in part:
It is contended on behalf of defendants that such action was neces
sary to preserve law and order. Anything more subversive of law,
of property rights, and of orderly government, it is impossible to
conceive. It is in fact contrary to all law, and antagonistic to every

LABOR ORGANIZATIONS

247

applicable principle thereof, under which we have lived and pros
pered as a people since the foundation of our Government. It is,
likewise, the first time in history, so far as my reading or observa
tion goes, that any such action has ever been taken, or thought of be
ing taken, by the responsible officials of any municipality under any
system of government in which the common law prevails. With the
merits of the strike, with the wisdom or unwisdom of the policies
on the part of the plaintiff, or its employees that brought it about,
with the wisdom or unwisdom of the employees in declaring it, the
court has nothing to do. Such considerations are entirely irrelevant
to the matter presented to me. What is relevant is this: The officials
of the city declare that the railway company shall not be allowed
to operate its cars; that is, that it shall not be allowed to use its
property in the only way that can make that property of any
benefit to the company or to the public. The city officials would
thus take away and destroy, at least for the time being, valuable
property rights. This, it seems absurdly obvious to state, they have
no authority to do.
It is urged by counsel for the city that the injunction interferes
with the police authorities in their duty of maintaining peace and
order. Quite the contrary. It is the duty of the police and the de
partment of public safety to preserve order and protect the property
of the citizens, individual and corporate. It is their duty to pro
tect the railway company in running its cars, just as it is their duty
to protect the people o f the city in their rights to drive upon the
streets and to walk peacefully upon the sidewalks. I f anyone at
tempts to interfere with the railway company in operating its cars,
the police authorities must invoke the strong arm of the law to sup
press such interference, just as they would if the rights of citizens to
walk or drive lawfully upon the streets were being interfered with.
To say that peace and order can be maintained only by preventing
the company from exercising its legal right to operate its cars would
be a lamentable confession of weakness and failure.
In determining thus, the court recognizes the right of any man to
quit work when he wants to. That has been called an inalienable
right. But the right of any other man to work if he wants to is
equally inalienable. One man has no more right to prevent another
from working when he wants to than some one else has to make the
first man work when he wants to quit. I f this is not true, then we
are of all men the most miserable. In fact, this is a part of our
fundamental law, so axiomatic that it seems futile to attempt to
restate it. But the continued reiteration of old truths seems some
times advisable.
L abor O rganizations — S trikes — I ncitement — V iolation oe
S tatute— P eople v. Fontuccio , Suprem e Court o f Colorado {M a y 7,
1923 ), 215 Pacific R eporter , 145.—The

industrial commission act of
Colorado makes it unlawful for employers to declare lockouts or
employees to go on strike on account of a labor dispute prior to
or during investigation, hearing, or arbitration of a dispute by the
industrial commission. It also makes it a misdemeanor for any per

248

DECISIONS OF COURTS AFFECTING LABOR

son to incite, encourage, or aid employers to declare lockouts or
employees to go on or continue strikes contrary to the provisions
of the act.
Nicholas Fontuccio was charged with inciting a strike in violation
of the act, the information charging that he had “ willfully and un
lawfully incited, encouraged, and aided certain employees * * *
to go on strike prior to an investigation, hearing, or arbitration of
the dispute.” This information was held insufficient, because it con
tained no allegation that there was a dispute, and on this representa
tion the complaint had been quashed in the district court of El Paso
County. The case was before the Supreme Court on a writ of error,
where the action of the court of appeal was reversed, leaving the
matter subject to further proceedings in the court.
It was recognized that the record was unsatisfactory, and the
grounds upon which the motion to quash was made and sustained
were not shown. However, as the information had practically quoted
the statute in its reference to “ investigation, hearing, or arbitration
of a dispute between said employers and employees,” such language
clearly implied that there was a dispute.
The jury would naturally and almost inevitably infer that a dis
pute existed from the fact that employees had gone on strike or had
been incited to go on strike. The information was sufficient, and the
court erred in sustaining a motion to quash it.

L abor O rganizations— S trikes— I njunction — A ct of T hird
P arty as V iolation— Taliaferro v. United States , United States C ir
cuit Court o f A ppeals , F ou rth Circuit (M a y 21, 1 9 2 8 ) , 290 Federal
R eporter, page 906 .—The Chesapeake & Ohio Eailroad Co. filed two

bills in the district court, upon which restraining orders were issued
against about a dozen unions of railway shopmen and clerks. On
August 5, 1922, the restraining orders were replaced by temporary
injunctions prohibiting, among other things, the unions and the indi
vidual members thereof and their associates and agents from annoy
ing, insulting, or interfering with those in the employ of the
company.
L. A. Taliaferro was a barber operating his own shop. Many of
his customers were strikers, and when two union men asked him to
display a placard he did so. It had printed on it the words “ No
scabs wanted in here,” and he hung it in his window facing the street
so that those using the street could see it. Some United States deputy
marshals told him that in their opinion the exhibition of the sign
was a breach of the court order. Upon their request that he remove
it he refused to do so, and a few days later was served with-a copy

LABOR ORGANIZATIONS

249

of the injunction. He still insisted on his right to display the
placard, and proceedings were instituted against him. A demand for
a jury trial was refused, and upon being found guilty Taliaferro was
sentenced to be fined. A writ of error was sued out.
To the assertion of the defendant that everyone has the “ absolute
right to have within the boundaries of his own property any written
or printed matter he chooses, irrespective of its character,” and that
to punish him for so doing is an “ attack on the rights of property
and the freedoih of speech,” the court said:
I f that were true, the most libelous, obscene, blasphemous, or other
wise offensive posters might be publicly displayed without risk of
punishment. The courts may enjoin intimidation by insult, and
whether the offending epithet is shouted or exhibited in any particu
lar place makes no legal difference. In the instant case there can be
no question that the display of the placard was an insult to every one
of plaintiff’s employees who refused to join the strike, and there is as
little doubt that it was intended as such. In its literal meaning no
more offensive epithet can well be imagined, nor, in view of many
tragic incidents, was there any other more likely to alarm those at
whom it was directed. The defendant brought himself within the
class of persons to whom the injunction applied. He put up the
placard at the request of the two members of the union who brought
it to him. He thereby associated himself with them in the forbidden
intimidation and insult.
A further contention was to the effect that the defendant, Tali
aferro, was not within the injunction unless he had also joined in
the alleged conspiracy; and if he had so joined he was charged with
a criminal offense. However, the court stated that a charge of con
tempt for violation of an injunction is not a charge of conspiracy,
but merely of doing certain acts forbidden by the injunction, which
may or may not be crimes. Continuing, the court said:
It is true that, as he was not one of the original defendants, it was
incumbent "upon the Government to show that he had associated him
self with them; that is to say, if there was a conspiracy to which
they were parties, he had united in it, but that is not trying him for
the conspiracy. It is merely putting him in the same class with the
first defendants. Any one of them, charged with doing what he did,
would, like him, have been tried for the forbidden thing he did, and,
if convicted, it would have been for that he would have been pun
ished and not for conspiracy.
The sentence was therefore affirmed.

L abor O rganization — S trikes — I njunction — C layton A ct—
F oss

Portland Terminal C o ., United States Circuit Court o f A p

peals , F irst Circuit
page 33.—The

(February 13, 1 92 3), 287 Federal R eporter,

defendants, members of an organization known as
Local No. 15 of the Brotherhood of Railroad Station Employees,

250

DECISIONS OP COURTS AFFECTING LABOR

by a vote of the brotherhood at a meeting held on July 14, 1922,
authorized their chairman (with the approval of the grand presi
dent) to call a strike unless the Portland Terminal Co. management
granted, at a conference on July 17, 1922, “ immediate reconsidera
tion of reduction in wages and of decision doing away with time and
one-half for Sundays, holidays, and overtime, and a satisfactory
settlement made.” The complainants and defendants had previously
in 1921, under the transportation act of 1920 (41 Stat 456), agreed
to arbitrate their differences.
The district court found that the strike order, if issued, would
seriously interrupt the operations of the company and therefore that
“ an irreparable injury would be done to the complainant and the
public by the issuing and carrying out of the strike order ” (283 Fed.
204; see Bui. No. 344, p. 213); saying further:
“ The Clayton Act provides that no injunction shall be granted by
courts of the United States involving any dispute concerning terms
cr conditions of employment ‘ unless necessary to prevent irreparable
injury to property or to property rights.’ ”
Having found that irreparable injury would result if the strike
order were issued, and concluding that the Clayton Act did not pro
hibit the injunction, the judge ordered it issued.
The circuit court of appeals in reviewing the case on appeal said:
I f it be assumed that the action taken by the defendants in their
vote of July 14, if carried out, would be a breach of their contract
to confer and to arbitrate their differences, it does not follow that the
complainant is entitled to injunctive reliei.
The first paragraph of section 20 of the Clayton Act contemplates
that conditions may arise out of a dispute between employer and
employees as to terms and conditions of employment where an in
junction may be necessary to prevent irreparable injury to property
or a property right of a complainant, but the second paragraph of
that section makes it plain that no such restraining order or in
junction, if issued, “ shall prohibit any person or persons, whether
singly or in concert, from terminating any relation of employment,
or from ceasing to perform any work or labor, or from recommend
ing, advising, or persuading others by peaceful means so to do.”
The second paragraph, when read in connection with the first
paragraph, would also seem to indicate that the damage occasioned
by employees in peaceably leaving the service of their employer, be
cause of a dispute as to terms and conditions of employment, if not
damnum absque injuria, would not constitute irreparable injury
within the meaning of the first paragraph, and that such damage
could not be found to result therefrom.
The injunction was therefore dissolved and the case remanded to
the court below with directions to dismiss.

251

LABOR ORGANIZATIONS

L abor

O rganizations— S trikes— I njunction — Clayton

“ I rreparable I nju ry .” — Great

N orthern B y . Co.

A ct—

Brosseau et al.,

United States District Court, D istrict o f N orth Dakota (January 8,
1923), 286 Federal Reporter, page b H .—The

Great Northern Rail
way Co. brought an action in equity in the United States district
court for the purpose of enjoining the action of the chairman and
secretary of the Brotherhood of Carmen at Grand Forks, N. Dak.,
and others, in connection with the railway shop crafts’ strike of
1922. A temporary restraining order was issued and was continued
in force after a full hearing until a preliminary injunction was
issued. A large number of affidavits and a considerable body of oral
evidence was introduced upon the question of the railway company’s
right to a preliminary injunction, and upon the several hearings in
contempt proceedings for violation of the temporary restraining
order. During the three months that the case was pending, questions
concerning the law applicable to strikes in cases of this kind were in
vestigated.
District Judge Amidon in granting the preliminary injunction dis
cussed at considerable length the development of the use of the in
junction in labor disputes in the United States, comparing it with the
practice in Great Britain.
Continuing, he said:
I have had occasion to make a careful study of section 20 o f the
Clayton Act (Comp. Stat., sec. 1243d) and section 2 of the English
trades dispute act of 1906. The reports of the judicial committee
both of the House and the Senate state that the section of our
statute referred to was copied from the English section. The form
in which they are framed differs, but their legal effect is the same.
The English statute says that “ it shall be lawful ” to do the specific
acts mentioned in each of the statutes. This, as a necessary infer
ence, forbade the courts to issue injunctions restraining workmen
from doing those acts. The American statute reverses the order.
It expressly forbids courts to issue injunctions or restraining orders
forbidding workmen to do the acts specified in section 20, and then in
its last clause declares as follows:
“ Nor shall any of the acts specified in this paragraph be con
sidered or held to be violations ox any law of the United States.”
Our statute forbids expressly the issuing of injunctions against the
doing of the acts and also declares that the doing of the same shall
not be construed or held to be a violation of Federal law. The Eng
lish act, without expressly dealing with the subject by forbidding
injunctions, does so impliedly by conferring upon employees in the
case of a trade dispute the right to do the acts. The only difference
in the two statutes is that our law is express on the subject of for
bidding injunctions in the cases specified, while the English statute
accomplishes the same result by implication.
I am convinced that the American statute does not authorize
strikers to go upon the property of the company without its consent
for the purpose “ of attending at any place ” where new employees

252

DECISIONS OF COURTS AFFECTING LABOR

may be “ for the purpose of peacefully obtaining or communicating
information, or peacefully persuading such new employees to abstain
from working.” That is the natural interpretation of the statute,
and had been placed upon it before its adoption here. (Slesser &
Baker, “ The [British] Law of Trade-Unions,” p. 217.)
In American Steel Foundries Co. v. Tri-State Central Trades
Council (257 U. S. 184, 42 Sup. Ct. 72 [Bui. No. 309, p. 181]), the
number of pickets at any single point was limited to one. The court,
however, is careful to state that no mathematical formula was in
tended for the purpose of all cases. Each case must ^depend to some
extent upon the local situation. The danger of intimidation and
attack is not confined to aggressions by strikers. The impartial his
tory of strikes teaches that there is as much danger to strikers on the
picket line from private detectives and sometimes from new em
ployees as there is of the same kind of wrong on the part of strikers
against new employees. My experience in the present strike clearly
confirms that view. The strikers on the picket line are entitled to
have enough present to shield them against the temptation of their
adversaries to resort to violent methods. They also need the same
protection against trumped-up charges or unfair evidence relative to
any assaults that may occur on either side. * * * The place of
union men to meet for conference or in any considerable numbers is
at their union hall. I limited the number of pickets at points of
ingress and egress to three, and experience has justified that limita
tion as fair to both sides.
The Clayton Act, in both sections 17 and 20 (Comp. Stat., secs.
1243a, 1243d), uses the words “ irreparable injury ” and declares that
such injury is necessary to support injunctive relief. What is the
meaning of these words as used in the statute? Every strike as its
natural consequence causes irreparable injury to the employer, and
if the employment is quasi public, it causes the same kind of injury
to the public. That is the purpose of the strike, and the only sanc
tion which gives it force. Notwithstanding this injury, Congress in
express terms grants to employees the right to strike and to in
flict such injuries. The Clayton Act was passed in 1914. Congress
acted with a full knowledge of the disastrous consequences resulting
from strikes, particularly in the case of coal mining and transporta
tion. Notwithstanding these natural and inevitable injuries, the
right of laboring men to strike has been fully maintained in statutes
and is a part of our equity jurisprudence, where that is not mis
interpreted by the courts.
It must result from the foregoing that the irreparable injury
referred to in the Clayton Act is something other and different
from the irreparable injury to which I have referred above, and
which is the natural result of a strike, and the sanction which
gives it force. The history of trade disputes shows that these
words are intended to embrace direct injuries to new employees,
or to the property of the employer, by acts of trespass or violence,
and also obstruction of the employer in obtaining new employees
by means of threats, abuse, or violence—in a word, conduct which
prevents by means of violence or duress the employer from carry
ing on his business.
These are the only legitimate fields for injunctive relief, and to
gather up the natural and inevitable consequences of the strike,

LABOR ORGANIZATIONS

253

and use them as the basis of injunctive relief, is simply to proceed
in a mental circle.
The right to do the acts specified in section 20 of the Clayton
law is conditioned upon the existence of such a controversy as the
statute mentions. I f railway employees quit the service in the
absence of such controversy, and with the malevolent purpose of
obstructing interstate commerce or the mails, this would be a vio
lation of the antitrust act, and the conspiracy statute. Such a
malevolent purpose, however, would have to be shown to be the
primary intent of the strike. Given the existence of such a con
troversy as the law specifies, then the doing of the acts named in
it is rightful, notwithstanding such conduct causes obstruction to
commerce and the mails, and inflicts irreparable injury upon the
company and the public. This must be true; otherwise, the right
to do the acts would be wholly taken away as to employees on
interstate railways. It is also true that, when such a controversy
exists, the doing of the acts mentioned in section 20 ought to be
presumed to have as their primary purpose the promotion of the
employees’ side of the controversy, and not the obstruction of the
mails and interstate commerce. Nor can the doing of wrongful or
criminal acts by single members or local groups be used to show
a conspiracy on the part of the union or its officers to carry on
the strike by such unlawful means. Such a conspiracy could only
be shown either by clear proof of an agreement on the part of the
union or its officers to use such means, or the abetting by them of
those who were guilty of the unlawful conduct. In the absence
of such proof, such unlawful deeds should be treated as showing the
intent only of those using such wrongful means. Any other reason
ing belies human experience, and nullifies the presumption against
tortious or criminal conduct.
The text of the restraining part of the injunction was appended.

L abor O r g a n iza tio n s — S tr ik e s — I n j u n c t io n — C o n t e m p t — M cCourtney et al. v. United States, United States Circuit Court o f
A ppeals, E igh th Circuit (J u ly 9, 1923), 291 Federal Reporter, page
497 .—The St. Louis & San Francisco Kail way Co. secured an in

junction against the International Association of Machinists and
others, restraining them from committing any acts of violence or
interfering with employees during strike.
It was alleged that the defendants inveigled some employees into
an automobile, took them to a remote place and assaulted and beat
them with switches and further threatened them, to cause them to
leave their employment. The lower court convicted the defendants
of contempt of court, whereupon they sued out a writ of error.
The court issuing the injimetion restraining interference with
employees was held to have had jurisdiction to punish violation as
criminal contempt though it was committed in another division

254

DECISIONS OF COURTS AFFECTING DABOR

of the same district. The court also held that criminal contempts
were only quasi crimes or offenses.
McCourtney, one of the defendants, was the taxi driver who
drove the automobile, and pleaded noncomplicity. As to this the
court said in part:
The fact that McCourtney was not a striker is immaterial, if
with full knowledge of the injunction, and that was established
beyond doubt, he aided others, who were enjoined, in the acts
charged. To review all the evidence would serve no useful pur
pose, as it will settle no question of law. It is sufficient to call
attention, to the testimony of Leonard Camer and Clarence Carner.
Leonard Carner, one of the railway employees whipped, testified
that after he and the other employees with him had been taken
out of the car they were in, they were searched and abused as scabs,
for accepting employment from the railway company while the
strike was on, McCourtney being present.
The court [below] in its charge instructed the jury:
“ I f you believe that McCourtney started out innocently and con
tinued as a mere bystander, and what he did was not done with any
purpose of assisting or abetting this outrage, then you will say so by
your verdict. I f you believe the contrary, you will say he is guilty.
The whole matter is left to your consideration with respect to him
and the remaining defendants in this case.”
The jury found him guilty, and the verdict is conclusive in this
court.
The judgment against the defendants was affirmed.

L abor
O r g a n iz a t io n s — S t r i k e s — I n j u n c t io n — C o n t e m p t —
W inkle v. United States , United States Circuit Court o f A p p ea ls ,
E ig h th Circuit (J u ly 9, 1 9 2 3 ), 291 Federal R eporter , page IfiS.—

The Chicago & Alton Railway Co. secured an injunction against the
International Association of Machinists and others forbidding all
acts by the strikers except peaceful persuasion. The defendants
were charged with violating the terms of the injunction by having
assaulted one G. H. Gifford, who was an employee of the railway
company at Slater, Mo., and were found guilty by the trial court.
Gifford was on his way to Kansas City, having obtained five days’
leave of absence. He drew $35 from a deposit of money he had
with the company, and on the way to the depot he was stopped by
a picket and questioned, taken in an automobile and driven toward
Marshall, Mo., assaulted, and robbed. Gifford was still in the em
ploy of the company, though, to avoid the assault, he told the
defendants he was not.
The defendants brought error, contending that as Gifford had
told them he was no longer an employee, the assault was not in vio
lation of the injunction. As to this the court said:

LABOR ORGANIZATIONS

255

But even if it were true that he had left the employment, the
assault by reason of the fact that he had before then accepted
employment from the company in place of a striker was just as
much a violation of the injunction as if he were still employed there.
The effect would be the same, as it would prevent others from taking
employment in place of those who had left on the strike.
The defendants committed a brutal assault on Gifford, robbed
him of his money on the public highway, for no other reason than
because he had accepted employment to provide a means of liveli
hood for himself and family, all of it in violation of the letter and
spirit of the injunction.
Other points raised were disposed of adversely, and the judgment
of the court below was affirmed.

L abor

O r g a n iza t io n s — S tr ik e s — I n j u n c t io n — C o n t e m p t —

N ew spaper P u b l ic a t io n — Cohen

United States, United States

Circuit Court o f A ppeals, S ixth Circuit (February 13, 192If), 295
Federal R eporter, page 633 .—This

case was upon a writ of error to
the District Court of the United States for the Western District of
Tennessee, where one J. Cohen had been convicted of criminal
contempt.
An injunction had been issued during the railway shopmen’s strike
of 1922 forbidding interference with or obstruction of the railroad’s
business by trespassing on the premises, by acts or threats of vio
lence, by picketing, etc., and by 44jeering at or insulting employees
of plaintiff or molesting them.”
Cohen was the owner, editor, and publisher of the Labor Review,
a newspaper published in Memphis. He had personal knowledge of
the injunctions issued and was admittedly in sympathy with the
strikers. “ The alleged contempt.consisted solely in the publication
in an issue of the Labor Review, during the strike and after the
issue of the injunction, of an article in effect characterizing the
strike breakers as4dirty scabs,’ 4scavengers,’ 4snakes,’ and 4traitors.’ ”
There was no reference to specific parties, but to 44scabs generally,”
and the publication was said to be made, 44as respondent thought,
lawfully in the interest and behoof of organized labor.” Cohen
denied that by such publication he had intended to violate the in
junction, 44and asserted the greatest respect for the court below and
all the courts of the land.”
The charge made was that the purpose of the article was to
influence and prevent continuance in employment or the acceptance
of employment, and so cripple and hinder the operation of the road
in transporting interstate commerce and the United States mails.
It was also said that the article was a 44jeer and insult to the em
ployees, known as strike breakers, and so intended.” Particular
44915°—25-----18

256

DECISIONS OF COURTS AFFECTING LABOR

stress was laid upon the point last noted as violating that provision
of the injunction which related to “ jeering at* or insulting the
employees of the plaintiff.”
The question, then, was as to whether the publication constituted
a violation of this provision of the injunction. The per curiam
opinion reads on this point:
We think this question must be answered in the negative. Not
only do we find nothing in the bills of complaint, or in either order
or writ of injunction, suggesting that the court, in using the term
“ jeering at or insulting” (even if thought broad enough to embrace
such threats or intimidation as might thereby be implied), had in
mind a newspaper publication issued far from the scene or action,
but we think the natural construction of the language used is dis
tinctly to the contrary. The language, by its setting, used as it was
in connection with personal and “ direct ” action by strikers and their
sympathizers, such as attacking, accosting, and dogging the steps of
employees, going to their homes, and preceded (as it is immediately)
by the words, “ from coercing in any manner whatever, persons will
ing to enter the service of the plaintiff, with the object of preventing
said parties from entering said service,” and followed, as it was, by
“ from in any way hindering, obstructing, or impeding the operation
of the trains of the plaintiff, or the performance by the plaintiffs of
their business in the usual and normal way,” and even more by
using the words “ jeering at or insulting,” in the same clause with
and immediately precedmg the word “ molesting,” naturally sug
gests an action by people on the ground, or, as expressed by counsel
for plaintiff in error, “ personal insults personally offered,” and only
by what we think an unwarranted construction can it be stretched to
include a newspaper publication such as that involved here.
This conclusion necessitated a reversal of the conviction and judg
ment, “ and as, under these conclusions no conviction could be had, a
new trial will not be ordered.”

L abor O r g a n iza t io n s — S tr ik e s — I n j u n c t io n — C o n t e m p t — N e w s
paper

P u b lic a t io n — Cornish

United States , United States C ir

cuit Court o f A ppeals , S ixth Circuit {M a y

7, 1 92 4), 299 Federal
R. Cornish was adjudged in contempt
of court on account of a newspaper article published by him regard
ing an injunction issued in connection with a railroad strike, and
brought error. The appeals court reversed the judgment below,
basing its action on the following principles:
R eporter , page 283.—Edwin

Where there is a prosecution, as for contempt, under section 268,
Judicial Code (Comp. Stat. sec. 1245), and where it is not claimed
that the alleged misbehavior was committed in the physical presence
of the court or constituted disobedience to an order, it is essential
that the misbehavior shall have been “ so near thereto as to obstruct
the administration of justice.” When the conduct complained of is

LABOR ORGANIZATIONS

257

a newspaper publication, defamatory of the trial judge, it is also
necessary that the publication relate to a matter pending and not to
one that is past.
It did not appear that the publication complained of was “ obvi
ously and certainly within the forbidden field in view of these par
ticulars.” While this might not be accurate, the information was
not sufficient to decide otherwise. A newspaper publication might
have the tendency to incite disobedience to a court order, so that it
might require punishment therefor. But the petition was not suffi
ciently detailed as to facts, presenting rather conclusions, so that the
connection between the -publication and any probable resistance or
disobedience was not sufficiently obvious. The proceedings should
be dismissed “ unless an amended and sufficient petition or informa
tion be filed in its continuation.”
The matter of frequent condemnation from other sources was
touched upon by the appeals court in the concluding paragraph,
which reads, in part, as follows:
Another matter should be mentioned. The publication claimed
to be contemptuous was dominantly a libel upon the individual judge
who had issued the injunction. In such a case, and where there is
no impelling necessity or exigency, we greatly deprecate the prosecu
tion of contempt proceedings before that same judge.
The judgment was therefore reversed and the case remanded.

L abor

O r g a n iza t io n s — S t r ik e s — I n j u n c t io n — C o n t e m p t P ro
L ia b il it y of U n io n — Anderson & Lind Manufacturing Go .
v. Carpenters' District Council, Supreme Court o f Illinois {June 20,
1923), 139 Northeastern R eporter, page 887 .—The Anderson & Lind
c e e d in g s —

Manufacturing Co., a corporation engaged in manufacturing sash,
doors, and building materials, known as “ carpenter trim,” had
always operated an open shop, employing workmen without regard
to their labor affiliations.
In the summer of 1918, W. Brims, president of the carpenters’
district council, and one Church, a business agent of the union, en
deavored to induce the company to operate a closed shop, employ
ing only union laborers, stating that if it did not agree a contractor
could not use its material in buildings in Chicago. Brims caused
R. A. Pottinger, a builder, considerable annoyance and expense by
calling off union carpenters because Pottinger was using Anderson
& Lind material. Pottinger asked Anderson & Lind for assistance,
after which request the carpenters returned to work. Early in 1920
Pottinger again contracted with Anderson & Lind for materials to
be used in another building, but as the defendants, Brims and

258

DECISIONS OF COURTS AFFECTING LABOR

Church, called out the union carpenters he had to discard the mate
rials and make arrangements with a union mill for the rest of the
millwork.
Brims was not a party to the original suit brought in 1920,
wherein the council, Church, and others were perpetually enjoined
from all acts of coercion, intimidation, boycotting, or otherwise in
terfering with the work and products of Anderson & Lind Co. Peti
tions alleging a violation of the previous perpetual injunction were
filed and referred to a master in chancery, who found that the de
fendants had violated the injunction, with the exception of the
council. Church and Brims were fined $500 each with costs.
Appeals were taken to the appellate court and the decree was
affirmed against Church and Brims, but reversed regarding the
council, which was also held to be guilty and liable to a fine. The
entire cause was brought to the supreme court.
Mr. Justice Cartwright spoke for the supreme court, sustaining
the findings of the appellate court, saying in part:
The argument is that what one workman may do a number may
do; that courts have no power to restrain the exercise of the right;
that persons who join a voluntary association accept and voluntarily
agree to be bound by the constitution, by-laws, and regulations of
the association and to submit to its prescribed discipline; that the
officers of such an association are the agents of the members, and the
acts of such officers within the scope of their authority are the acts
of the members themselves; that what the workmen had a right to
do the defendants had a right to require them to do in accordance
with the rules of the carpenters’ district council, or the organiza
tion of which it is a part. I f these propositions were applicable to
the proceedings for contempt, it would be necessary to consider
whether the injunction decree was in accordance with the law or was
erroneous; but they are of no importance and in no manner affect
the question whether there was a violation of the injunction. I f
they are to have any influence at all it can only be in determining
whether the court, in granting the injunction, intended to prohibit
the acts of the persons charged with the contempt, and that must
be determined from the language of the decree.
I f the court has jurisdiction, an injunction granted in the exercise
of such jurisdiction must be obeyed, and in proceedings for contempt
the only issue involved is whether the injunction has been violated.
It is alleged that there was error in taking all the evidence before
the master relating to the acts of the defendants together at the same
time; but there was no error in that, since all the evidence related
to the same matter and the same injunction.
The purpose of the injunction was to put a stop to acts of the
district council or'its agents in applying pressure to customers of
the complainant to induce them not to trade with it or buy its prod
uct. The right of the complainant to carry on its business was
absolute, and not qualified by any right of the defendants to compel
it to operate a closed shop and employ only union labor. The acts

259

LABOR ORGANIZATIONS

of the defendants were prohibited by the injunction, and they were
guilty,of contempt in violating it.
The suggestion that the voluntary organization composing the
district council could not be held guilty of contempt was settled
when the injunction was granted. I f it could be enjoined, it could
be punished for failure to obey the injunction. The question could
not arise in the proceeding for contempt and would have been
unavailing if it could have arisen.
In accordance with these conclusions, the judgment of the appel
late court was affirmed.
L abor O r g a n iza t io n s — S t r ik e s — I n terferen ce w i t h T rade —
W aiver of S t r ik e C la u se —Normandie Shirt Go.

J. H . & 0

E agle , Court o f A ppeals o f N ew Y o r k {M a y 20, 192b ), lJ+b N orth
eastern R eporter , page 507.—The Normandie Shirt Co. contracted

with the defendants, manufacturers of silk, for the sale and deliv
ery of certain merchandise to be manufactured by the latter. Prices
and dates were fixed, the contract containing a clause to the effect
that, among other things, strikes preventing the delivery of mer
chandise in accordance with the terms of the contract “ shall absolve
the seller from any liability hereunder.”
Before the completion of the contract a strike was called, com
pelling the mill to close down. The court found this so effective
that it “ prevented the manufacture of any portion of plaintiff’s
order, with possibly a small exception, within the months ” specified
by the contract. The silk company offered certain pieces of goods
on hand, not complying with the specifications of the contract, in
lieu of those ordered, stating specifically, however, that it acknowl
edged no liability on the contract for failure to deliver the balance.
The shirt company insisted that there had been a waiver of certain
terms of the original contract by this action, so that it was entitled
to insist on the delivery of the entire amount of the goods or dam
ages for failure. The court below accepted this contention, but the
court of appeals took a different view.
The strike clause in the contract absolved the manufacturer from
46any liability hereunder.” This did not mean merely liability for
delay but it exempted “ from any liability, which shall include failure
to deliver at all.” The clause had been expressed in various lan
guages and litigated in numerous cases. “ Out of them has developed
a general rule or principle of law,” which the court embodied in the
following language:
When deliveries according to contract have been prevented by
strikes of a substantial nature, or other like excepted causes, the
party is relieved altogether, not only from liability for failure to
make such deliveries but also from the obligation to make them
thereafter. As to the installments not delivered according to con

260

DECISION'S OF COURTS AFFECTING LABOR

tract, the contract is terminated. Whether this termination would
extend to separable installments falling due after the strike, which
it would then be within the capacity of the seller to deliver within
the contract term, we do not need to consider. At least as to the
installments falling due within the period of disability the obliga
tion would be ended. As to such installments, if it be the intention
of the parties that the strike clause is merely to delay delivery, so
that goods which could not be made or delivered because of a strike
must be subsequently made or delivered within a reasonable time
thereafter, the contract must clearly so provide.
It was said that the judge below had erred in assuming that the
shirt company could make a new contract by electing to take dif
ferent patterns from those previously ordered. This ignored the
defendant’s right to stand upon the contract made, and a specific
disclaimer of waiver when partial delivery had been made could
not be construed to give the plaintiff any such right as was claimed
in the case.
The judgment below was therefore reversed and a new trial or
dered.
L abor O r g a n iza t io n s — S t r ik e s — I n t im id a t io n — C r i m i n a l C o n

v. State , Supreme Court o f Arkansas (January 22,
1 92 3), 21fi Southwestern R eporter, page 860.—A strike had been

s p ir a c y —

called on the Missouri & North Arkansas Railroad on February 26,
1921, by certain unions of railroad employees. The Order of Rail
way Conductors was one of the labor unions participating in the
strike. The strike was being conducted continuously and systemati
cally by the unions to which the strikers belonged. Strike benefits
were being paid at regular intervals. One Pete Venable was in
charge of the administration of some of the work connected with
the strike and had an office in which to carry out his work. On
June 26, 1922, three men, other than Venable, left Harrison, Ark.,
about which the strike centered, and drove to Springfield, Mo., in an
automobile, where they arrived about sunrise. After arriving in
Springfield they went to a wholesale hardware store and purchased
cartridges, shells, and chilled shot, one of the men claiming to be a
merchant in the retail hardware business. The total bill for the
purchase of the material amounted to $66.58. The sales manager
of the wholesale store in Springfield at which the purchase was
made became suspicious of the men and the purpose for which they
were to use the material purchased. He thereupon called the sheriff
at Harrison on the telephone and advised that officer of the pur
chase. The sheriff swore out a warrant, and went out upon the road
between Springfield and Harrison and arrested the men late in the
afternoon when they wex e returning to their home city. Pete Ven

LABOR ORGANIZATIONS

261

able was indicted for having conspired with certain other persons to
commit a felony, to wit, to murder certain employees of the Missouri
& North Arkansas Railroad, and that in furtherance of the con
spiracy he transported and caused to be transported into Boone
County, Ark., large and unusual amounts of ammunition and fire
arms with which to carry into effect the unlawful conspiracy. A
search of his premises also disclosed the presence of dynamite caps
and fuse. He was convicted and fined $100. He then appealed to
the supreme court of the State. That court, however, found no
error in the judgment of the trial court and affirmed the judgment.
The court said, speaking through Judge Smith:
It is, of course, settled law that, in order to establish a conspiracy,
it is necessary to prove the unlawful agreement between the parties
by direct and positive evidence, but the unlawful concert of action
may be shown by circumstailces. (Sims v . State, 131 Ark. 185, 198
S. W. 883.)
In the case of Chapline v . State (77 Ark. 444, 95 S. W. 477) the
court said:
“ The existence of the assent of minds which is involved in a con
spiracy may be, and, from the secrecy of the crime, usually must be,
inferred by the jury from proof of facts and circumstances which,
taken together, apparently indicate that they are merely parts of
some complete whole.”
*
Under this test we think a case was made which we can not over
turn as being unsupported by legally sufficient evidence. There was
concert of action for some purpose; but for what purpose? What
meant all this ammunition under the circumstances under which It
was purchased ? For whom was it intended ? What inference more
reasonable than it was intended for the persons whose employment
by the railroad company, notwithstanding the strike, prevented the
strike from being successful? Did appellant participate in the un
lawful purpose? We think the jury was warranted in finding that
if there was an unlawful purpose appellant was a party to it. He
appears to have been the custodian of instrumentalities adapted to
sabotage; and something beside sabotage must have been contem
plated in the purchase of the ammunition; otherwise the dynamite
would have sufficed. We know, without proof, that cartridges and
shells are not as well adapted to sabotage as dynamite. Then why
have both if only sabotage was contemplated. We think the jury
did not exceed its prerogative, under the law, in finding from this tes
timony that the conspirators, of whom appellant was one, intended
to use the ammunition for the purpose stated in the indictment.

L abor O r g a n iza t io n s — S t r ik e s — L ia b il it y of E m pl o y e r for A cts
E m ployees o n S t r ik e — The N o, “ 6 - 4 , ” United States D istrict
Court, Southern District o f N ew Y o r k {Decem ber 31 , 192 3), 300
Federal Reporter, page 757,—The New York Central Railroad Co.
owned a car float, the C -b , which was moored at the end of its pier

at Weehawken, N. J.

Early on the morning of April 8, the float

262

DECISIONS OP COURTS AFFECTING LABOR

parted from its moorings and went adrift, and impelled by wind
and tide it struck a stake' boat and a barge anchored in the North
itiver. The owners of these properties sought to recover damages
for the injuries caused by this collision. As the boats named were
at anchor, “ where they had the right to be,” they were without
blame. No one was on board the C -4 when she went adrift, and
“ it is quite apparent from the evidence that it was neither wind
nor tide which caused her to go adrift.” The forward mooring line
was found “ not stranded as if parted from a strain, or the ends
frayed by wearing, but showed a clean cut across all strands, in
dicating that it had been cut by a sharp instrument, like an ax.
The aft line had apparently been lifted off the mooring post on
the pier “ by some human agency.” The conclusion of intentional
action by some person or persons “ is inevitable.”
One of four classes of persons might have been guilty of com
mitting the act?—an employee with proper authority, an employee
without authority, a former employee on strike, or a stranger. The
evidence was against any member of the first class having acted,
while if one of the second class had acted the owner was not re
sponsible, since “ the principal is not liable for the acts of an em
ployee outside the scope of his authority.” As to the other con
tingencies, Judge Goddard, who delivered the opinion in this case,
said:
I f the C -4 was cast adrift by a striker with malicious intent,
the claimant is not responsible. An employee going on a strike im
mediately ceases to be an employee. In this case the marine strike
began a week before this, so that the connection of the strikers with
the company had been terminated for about a week; that strikers ipso
facto ceased to be employees or agents of their former employer is
the rule adopted by this circuit.
There is really no ground for considering strikers on any basis
different from the persons included in class 4—that is, malicious
strangers—unless the existence of a strike required the claimants to
maintain a special guard to prevent malicious acts on the part of the
strikers. It can not be said that there was an anticipated danger
that a malicious striker would cut the lines and cast the boat adrift.
The strike had been in effect about one week, and apparently there
had been no violence by strikers, nor was there anything to indicate
that there would be. tinder such circumstances, it does not seem to
me that the railroad conipany was called upon to station a guard
upon the boat. There are authorities holding to the effect that if the
railroad company had knowledge of a special danger, or that there
was cause for it to anticipate violence, it should act accordingly.
But in this case I see no reason why it was bound to anticipate and
prevent a criminal act on the part of another.
The decree was accordingly directed to be entered in favor of the
railroad company, and against the libelants, owners of the damaged
craft.

LABOR ORGANIZATIONS

268

L abor O rganizations — S trikes — M onopolies — I njunctions —
C ombination in R estraint of I nterstate C ommerce— Silverstein v.
Local N o. 280 o f Journeym en Tailors Union o f Am erica, United
States Circuit Court o f A ppeals, E igh th Circuit ( October 1 9 ,1 9 2 2 ),
284 Federal Reporter, page 838 .—Local

No. 280 of the Journeymen
Tailors’ Union of America was an unincorporated society of jour
neymen tailors and a labor organization located in the city of St.
Louis, Mo. Jacob W. Silverstein operated in the city of St. Louis a
tailor shop for finishing clothes for merchant tailors. He con
ducted his business as a corporation for over a year, the corpora
tion being dissolved in July, 1921. After the dissolution of the cor
poration Silverstein left the city, but a few months later returned
and again engaged in the tailoring business, this time as an indi
vidual. The work consisted of taking unfinished clothing from
merchant tailors and making the finished product therefrom. He
employed in his establishment about 50 men and women. With the
exception of a few shipments to him from a tailor in the city of
Little Rock, Ark., all the manufacturing by him was for tailors
located in the city of St. Louis.
A controversy arose between Silverstein and the local tailors’
union, and Silverstein brought a suit in the Federal district court
seeking an injunction against the union and its officers and mem
bers. As there was no diversity of citizenship, the injunction could
be granted by the Federal court only upon the grounds that there
had been a violation of the Sherman Antitrust Act by an unlawful
interference with interstate commerce.
A trial was had and an injunction refused on the ground that
Silverstein was not engaged in interstate commerce and that the
acts of the union did not constitute an interference with such com
merce. An appeal was taken to the United States circuit court of
appeals. That court affirmed the order denying the injunction.
In the course of the opinion Judge Trieber said that Silverstein
“ had not been for a long time sending a continuous stream of
interstate commerce through its channels, and the evidence fails to
show that the appellees’ obstruction to the appellant’s tailoring was
intended by them to restrain his alleged interstate commerce, or
that it necessarily had such a direct, material, and substantial effect
to restrain it that the appellees’ intent so to do reasonably must be
inferred.”
L abor O rganizations — S trikes — M onopolies — I nterference
I nterstate C ommerce— F in ley v. United M ine W orkers o f

w ith

America, United States Circuit Court o f Appeals, E igh th Circuit
( J u ly 1 2 ,1 9 2 4 ), 300 Federal R eporter, page 972 .—This

was a step in

264

DECISIONS OP COURTS AFFECTING LABOR

the well-known Coronado case, being, as stated by Circuit Judge
Kenyon, the third appearance in this court of this case. The first
time the case was before the court was for determination of the cor
rectness of the ruling of the district court below in sustaining a de
murrer to a complaint against the defendants (Dowd v. United Mine
Workers of America, 235 Fed. 1, 148 C. C. A. 495; see Bui. No. 224,
p. 168). The second time was on a writ of error to review a
judgment of the court below, secured by the coal company against
the union, which was affirmed (United Mine Workers of America v.
Coronado Coal Co., 258 Fed. 829,169 C. C. A. 549; see Bui. No. 290,
p. 192). The case then went to the Supreme Court, where the judg
ment of this court was reversed and the case remanded to the dis
trict court. (Same case, 259 U. S. 344, 42 Sup. Ct. 570; see Bui.
No. 344, p. 157.) The Coronado Coal Co. is now in the hands of a
receiver, Clyde H. Finley, hence the action is prosecuted in his name.
Judge Kenyon did not enter into a discussion of the facts in the
case, as they had been set out in previous decisions. “ They relate
to the alleged actions of defendants in error in destroying plaintiff
in error’s property.” The company had insisted that the damage
inflicted was an attempt to interfere with interstate commerce and
to monopolize the same subjecting it to the control of the union, all
in violation of the Sherman Antitrust Act. In its dissent, the Su
preme Court had found the strike a local one, in so far as the inter
national union was concerned, and that the union could not be held
responsible for the acts done in the course of the strike.
As to the local organization, District No. 21, it was held that in
order to make it liable under the antitrust act there must be an
obvious intent to injure, obstruct, or restrain interstate commerce,
or such obstruction must be the obvious consequence of the things
done, or such interference must be shown by direct evidence or other
circumstances. The mining of coal is not in itself interstate com
merce, and while there might be a common-law liability as to
District No. 21 for the acts of its members, it did not appear that
there was a direct intent to restrain interstate commerce, nor that
the amount of coal produced was sufficient to affect such commerce.
No substantial change in the evidence, sufficient to make this a
new case from that previously decided, appeared. Speeches made
by officials of the international association were personal, and did
not involve the action of the board, which the Supreme Court had
found necessary to make the national a party to the strike activities.
Considerable detail of evidence was discussed by Judge Kenyon,
but nothing was found to take the case outside of the field of the
decision of the Supreme Court, already cited.
In conclusion Judge Kenyon said:

LABOR ORGANIZATIONS

265

We think the trial court was correct when he said, in summing up
this case and holding that the alleged conspiracy was for the purpose
of unionizing the mines and of preventing Mr. Bache from working
his mines nonunion:
“ I don’t think it can ever be a different case; but, while I think
the conspiracy, at least to a certain point, is amply established, I
don’t think that there is evidence here that it was the direct pur
pose to interfere with or monopolize interstate commerce. It was
for a different purpose, and that was a mere incident to it.”
We are satisfied there is no such substantial change in the proof
here from that of the former case determined by the Supreme Court
as to constitute a new case. It is the same case, and the law an
nounced there is the law of this case. Even granting the record here
to be stronger than in the previous trial on the question of the intent
of the alleged conspiracy; yet in the light of the decision there it fails
to change the status of the international organization as to liability,
and fails to show that the direct intent of the conspiracy as to
District No. 21 and its officers and subsidiary unions was to restrain
or monopolize interstate commerce.
The judgment of the trial court is affirmed.
On the same day that the above decision was handed down, Judge Kenyon
also delivered an opinion in a very similar case—United Mine Workers of
America v. Pennsylvania Mining Co., 300 Fed. 965. The Pennsylvania Mining
Co. was a Delaware corporation mining coal in Johnson County, Ark. More
than 80 per cent of its product entered interstate commerce. It was an openshop mine and was engaged in the same general controversy as set forth in the
Coronado case. Little difference appears in the incidents of assault, destruc
tion, inflammatory speeches and actions, etc., a single point o f emphasis being
the attempted blowing up of a bridge on a spur track leading to a mine over
which the cars of coal must pass in interstate commerce. The court found
this is no more suggestive as an attempt to interrupt interstate commerce than
the burning of a carload of coal billed to a Louisiana point, in the Coronado
case. The Supreme Court had found this a part of the general destruction and
without particular significance as regards the question of interstate commerce.
A similar conclusion was reached as to this incident, and on the same
grounds as in the Finley case, that there was no such interference with inter
state commerce directly intended, so far as the evidence disclosed, as to sus
tain the judgment of the court below in its award of damages to the plaintiff
company. The judgment was therefore reversed and the case remanded with
directions to grant a new trial.

L abor O rganizations— S trikes— O pen -S hop C ontract— I nter
w ith E mployment — I njunction — M oore D rop F orging

ference

C o . v. M cC arthy et al., Supreme Judicial Court o f Massachusetts
(January 9 , 1923 ), 137 Northeastern Reporter\ page 919 .—The

Moore Drop Forging Co. was engaged in the manufacturing busi
ness in Springfield, Mass., and in October, 1920, notified its em
ployees that, owing to business conditions, it would be necessary to
reduce wages 10 per cent. All the skilled employees of the factory
were union men, though there was no agreement or understanding

266

DECISIONS OF COURTS AFFECTING LABOR

to that effect; in other words, the plant was not at that time a closed
shop. Four crafts were involved in the wage reduction, and their
respective unions consulted and refused to accept the proposed re
duction, and so notified the employer on October 11, 1920. The
manager of the company thereupon notified the union that in 30 days
all agreements between the company and any and all unions would
cease. The only existing agreement at the time was with the
blacksmiths and drop forgers, and this was subject to cancellation
on 30 days’ notice.
On October 20 the manager, at the request of the unions, met with
a committee to discuss the possibility of reducing the cost of pro
duction, so as to avoid, if possible, the reduction in wages. At this
time the manager suggested that they submit m writing their propo
sitions at a meeting to be held October 27. Written suggestions
were prepared, but the manager notified the unions that he would
be out of the city on that date and could not meet them until later.
No subsequent meeting was held, nor was there any apparent effortmade by either party to hold such meeting. The 30-days’ notice
expired November 11, but the men continued at work without
change of conditions or wage rates for another month. On Decem
ber 9 all employees were requested to apply for employment, using
a form which recited that employment would be “ upon a strictly
nonunion basis, and I agree that while retained in employment I
will not be or become a member of any trade-union.” There was
also a promise to notify the employer in case of becoming a union
member, and also, on the termination of employment for any reason,
not to interfere in any way with the business of the employer.
Fifty-eight men refused to sign this application and were dis
charged on December 11; 120 who had signed left work, and during
the next month a joint committee of four unions “ engaged in vari
ous activities against the plaintiff for the purpose of compelling it to
abolish its newly established system of employment and to return to
the former working conditions with its former employees.”
No strike benefits were paid after December 15, 1921, and most
of the workers who left the company’s service found employment
elsewhere. The company secured other employees, and in August,
1921, was operating “ in a normal and usual manner,” the places of
the union men who had left service having been filled.
In January, 1919, a committee to combat the individual contract
system had been formed in the city by the Central Labor Union.
In January, 1922, this committee was reorganized and entered upon
a campaign by the use of newspaper publications and circular letters
mailed to various unions throughout the United States and else
where. The plaintiff company’s premises were picketed, and efforts
were made to take with a motion-picture camera the pictures of

LABOR ORGANIZATIONS

267

employees leaving the plant. Placards were paraded calling atten
tion to opportunities of employment elsewhere, and other measures
were taken to induce defection among the company’s employees.
The master to whom the subject was referred found among other
things that the committee of the Central Labor Union “ did by its
acts and doings intentionally attempt to interfere with the plaintiff
and its business by endeavoring to influence persons not to use its
goods and by acts which annoyed and disturbed its employees” ;
and that shch conduct, if continued, was “ likely to result in sub
stantial damage to this plaintiff.”
A decree restraining certain activities of the union was granted
by the judicial court of Hampden County, from which both parties
appealed. On this hearing the injunction as given, restraining the
defendant McCarthy and other officers and members of the union,
was sustained, Judge Crosby delivering the opinion. Having re
cited the foregoing facts and findings, Judge Crosby said:
It is obvious that the acts of the committee were for the purpose
of endeavoring to influence persons not to use the plaintiff’s goods;
they were calculated to annoy and disturb its employees, and were
intended to injure the plaintiff in the sale of its products, and to
cause its workmen to leave its employ, to its substantial damage.
The contention of the defendants that* the acts of the committee
were in the furtherance of an educational campaign against the in
dividual contract form of employment, and were not directed against
the plaintiff, can not be sustained in the light of the facts as found
by the master.
The plaintiff was entitled to make it a condition that those enter
ing its employment should not be or remain members of a labor
union, and is entitled to be protected by the law and to receive
whatever benefits may accrue from such a contract.
Inasmuch as the business was operating normally in August, 1921,
and no strike benefits had been paid since December, 1921, it was
said to be evident that the strike was over at that time.
But if the strike was still pending, the members of the Central
Labor Union had no right to interfere with the plaintiff’s business
for the illegal purpose of forcing it to abandon the making of in
dividual contracts with its employees.
The findings of the master were that the individual contract com
mittee by its acts intentionally attempted to interfere with the plain
tiff in its business, that such acts were calculated to injure the plain
tiff in the sale of its products, and were without lawful justification;
the acts above recited were in substance a boycott and illegal.
The claim was made that the manager had fraudulently failed to
carry out the agreements made before the final breach of the rela
tions between the two parties. It was held, however, that nothing
occurred to warrant the belief that the notice of the termination of
existing conditions within 30 days had been withdrawn, nor was
there any ground to expect or believe that it would be withdrawn

268

DECISIONS OP COURTS AFFECTING LABOR

unless the disputed question of wages was adjusted. The failure to
meet with the workers on the date set was not shown to be inten
tional or that the manager “ did not propose to keep the appoint
ment in good faith.” His absence from the city-prevented the meet
ing on that date, but neither party moved for a further conference.
“ The case of Walton Lunch Co. v. Kearney (236 Mass. 310, 128
N. E. 429 [Bui. No. 290, p. 255]) is plainly distinguishable from the
present case.”
The present acts by the Central Labor Union “ were entirely apart
and distinct from the controversy which in December, 1920, had
arisen between the plaintiff and its employees.” That was a wage
dispute; this was a suit “ to prevent unjustifiable interference with
the plaintiff’s employees and with its business.” The acts now
complained of have no direct relation to the original controversy.
The final decree was found to be warranted, and sufficient to pro
tect the company’s rights. “ It follows that neither the plaintiff’s
nor the defendants’ appeal can be sustained.”
L abor O rganizations— S trikes— “ O utlaw S trike ”— I nterfer
T ranspoltation- t-C ontract W aiving L iability — A m e ri

ence w it h

can R y . E xpress Go.

Johnson , Suprem e Court o f Florida {M a y

<5,
April, 1920, Johnson
Brothers shipped to towns in New York and adjacent States a quan
tity of beans from Deerfield, Fla., through the agency of the Amer
ican Bailway Express Co. During the course of transportation an
outlaw strike occurred among the switchmen on the railroads, de
laying shipments, so that the company, in order to prevent total
loss, sold the beans as best it could, giving an account of the proceeds
to the shipper. A contract had been made providing against the
liability of the company for loss, damage, or delay caused by strikes,
and certain other events.
A variety of conditions were’ passed upon by the courts, judgment
for damages being given in the trial court. The supreme court re
versed this judgment with certain instructions. The only item in
interest from a labor standpoint was as to the effect of the contract
. waiving liability for delay due to strikes. It was found that such a
contract was valid as a general proposition, but counsel for the
shippers contended that the term “ strike ” used in the contract was
not such a strike as that which actually took place. This was de
scribed as an “ outlaw strike ” confined to switchmen; but the court
found that it was impossible to deliver the goods by any routing, and
as the goods were perishable it was necessary to sell them to prevent
total loss. In discussing the contention noted, Judge Ellis, speaking
for the court, said:
1 9 2 4 ), 100 Southern R eporter , page 743.—In

LABOR ORGANIZATIONS

269

Counsel for the defendants in error undertake to draw a distinc
tion between strikes authorized b y labor unions and strikes not
so authorized so as to affect the liability of the carrier. In one
case, the former, they say a carrier is relieved by its contract from
the damages resulting from delays in the transportation of goods
occasioned thereby, while in the other they are not.
For purposes affecting the affairs of labor organizations, such
a distinction may be, and doubtless is, permissible, and does exist,
but to make the legal liability of a carrier depend upon the consent
of a “ grand chief55of a labor organization would be to substitute the
will of an individual or a committee for the reason of the rule on
which the exemption rests. When the employees of a carrier by
agreement and concert of action refuse to perform their duties to
the public which their several occupations require of them, and thus
prevent the corporation from functioning, it is none the less a con
dition over which the corporation has no control, and against the
consequences of which it seeks by contract with the shipper to protect
itself. And employees in the latter situation, thus withdrawing their
services from the public, can with no more reason be said to be acting
within the scope of their employment than when they refuse such
services upon the authority of their chief, in the labor organization
of which they may be members. The situation described by the pleas
can not be compared with the case of one employee who upon his
own initiative refuses to work, where his place can be filled by an
other, with sufficient diligence by the corporation to prevent delays
in the performance of the carrier’s duty. Here was a strike, the
quitting of work by a body of workmen done by mutual understand
ing, in order to obtain or resist a change in conditions of employment.
Whether sanctioned or not by the organization of which they were
members, their act in withholding their services from the public
service was as effective in preventing the carrier to perform its duty
as if their conduct had been agreed to by their chief, and produced
a condition just as effectively over which the carrier has no control.
The situation described was said to bring the company within the
protection of the clause in its contract relative to strike delays, so
that the judgment was reversed.

L abor

O rganizations— S trikes— P icketing— I njunction —P a

cific Coast Coal C o .

D istrict N o. 10, United M ine W orkers o f

Am erica et al., Supreme Court o f W ashington {D ecem ber 6, 1922),
210 Pacific R eporter , page 953 .—The

Pacific Coast Coal Co., plaintiff,
sought an injunction against District No. 10 and Newcastle Local No.
2362 of the United Mine Workers of America, and others, restraining
them from picketing the plaintiff’s mine. A temporary restraining
order was issued, but on hearing to show cause, the trial court refused
to continue the temporary injunction pending trial and also found
the defendants to be insolvent. On account of the refusal of the
injunction, the company appealed.

270

DECISIONS OF COURTS AFFECTING LABOR

After numerous wage disagreements during the period from 1917
to 1921, the defendant unions refused about August 5, 1921, to ac
cept a new wage scale and went on a strike. The plaintiff sought to
open its Newcastle mine about the 9th of August, and the defendants
commenced picketing. Mass picketing, hissing, jeering, shouting,
and the use of epithets were complained of.
The supreme court had jurisdiction of the case under a statute
(Rem. Code, 1915, sec. 1716, subd. 3) because of the insolvency of
the defendants and their consequent incapacity to respond in dam
ages in an action at law, and the court refused to go beyond the trial
court’s finding that they were insolvent.
The trial court having allowed and fixed supersedeas on appeal,
the matter stood before the court as though the temporary restrain
ing order were still in force. The court recognized the right of labor
to organize, to strike, and in a peaceful way to do all things neces
sary to attain the purposes of the organization or of the strike; but
the law legalizing labor unions does not legalize unlawful acts and
the courts may enjoin such acts.
It does not forbid injunctions against unlawful acts, but expressly
permits them in cases where necessary to prevent irreparable dam
age to property or to personal or property rights, for which injury
there is no adequate remedy at law.
Mr. Justice Holcomb, who delivered the opinion, on reviewing the
American Steel Foundries Co. v. Tri-City C. T. Council case (257
U. S. 184, 42 Sup. Ct. 72; Bui. No. 309, p. 181), said:
It is also held [there] that the extent to which picketing in an in
dustrial dispute should be enjoined is a question for the judgment of
the judge who has heard the witnesses, familiarized himself with the
locus in quo, and observed the tendencies.to disturbance and conflict.
The purpose should be to prevent the inevitable intimidation by the
presence of large groups of pickets, but to allow missionaries. In
this case [Pacific Coast Coal Co. v. District No. 10] no witness has
been heard. All that has been done is to read affidavits of divers
persons without testing their knowledge, or intelligence, or credi
bility, by cross-examination, and by observing their conduct and
demeanor. What should have been done in this case was to have
required respondents to answer the complaint, formulate issues, and
go to trial upon the merits.
The public is vitally interested in this controversy both from
economic and civic considerations. As it is, we have before us a
situation which appears to be threatening, and to be to some extent
lawless and disorderly. Such a condition could not be permitted,
and no harm could come to anyone from preventing lawless acts by
a restraining order or temporary injunction and by trying the case
fully on the merits.
The court further observed that to deny injunction against
picketing, where the plaintiff’s rights had been violated, would be a

LABOR ORGANIZATIONS

271

denial of the equal protection of the law within the meaning of the
fourteenth amendment.
The judgment was reversed and cause remanded.

L abor O rganizations — S trikes— P icketing— I njunction — A c
A gainst U nincorporated U nions— Citizens ’ Co. v. A sheville

tion

Typographical Union N o. 263, Suprem e Court o f N orth Carolina
(January 22,1921^), 121 Southeastern R eporter, page 31.—The Citi
zens’ Co. was a corporation engaged in printing and publishing,
against which a strike had been declared by Asheville Typographical
Union No. 263. Picketing and interference with its activities fol
lowed, by reason of which the company applied for an injunction.
This was granted by the superior court of Buncombe County, but a
finding was Subsequently made that “ the complaint did not state facts
sufficient to constitute a cause of action for injunctive relief, so that
the injunction heretofore issued would be dissolved.” The company
appealed, and the court continued the injunction until the appeal
could be heard in the supreme court on condition that a bond be exe
cuted by the company to protect the rights of the parties enjoined.
The action had been begun against the union and certain named
defendants, officers, and members thereof. The superior court pro
posed to dissolve the injunction as to all, on the ground, as stated,
that the complaint does not set forth sufficient facts.
The complaint alleged actual injuries to the employees of the
plaintiff company and to the company itself, the use of opprobrious
epithets and insulting language, threats of assault and killing, throw
ing of bricks and other missiles into, upon, and against the building
occupied by the company, and other intimidating and violent acts.
The court, speaking by Judge Clarkson, recognized the freedom
of individuals to organize for the protection of their rights and
interests, which included the quitting of work individually or in
combination, and also peaceable persuasion and argument; but “ no
individual or group of individuals in carrying out their idea of
right and justice as they consider them to be, can resort to any illegal
means to accomplish their purpose—violence, assault, unlawful con
spiracy, trespass, or any other actionable wrong.” The probative
value of the facts alleged was not before the court for final deter
mination, but “ for the purposes of this action they are admitted to
be true.” The complaint alleged with “ certainty and definiteness”
much that is unlawful, and admitting the right to have a reason
able number for peaceful picketing, this does not involve such con
duct as was recorded in the complaint. However, since the rule of
law of the State does not permit action against unincorporated
44915°—25----- 19

272

DECISIONS OF COURTS AFFECTING LABOR

associations as such, the judgment of the court below was affirmed
as to the union, but against the individuals set out in the complaint
it was reversed, the injunction to stand, to be modified in accordance
with this opinion, i. e., permitting peaceful picketing, without “ dis
order, intimidation or obstruction, but only by observation, watch
ing, and persuasion.”
L abor O rganizations— S trikes— P icketing— I njunction — P ow
E quity C ourt—A dam s et al. v. Local N o . lfiO o f Cooks and

ers of

H elpers, W aiters, and W aitresses o f Spokane et al., Suprem e Court
o f W ashington {M a y If, 1 92 3), 215 Pacific R eporter, page 19.—O. L.
Adams, doing business as the Golden Star Cafe, applied for an in
junction against Local No. 400 of Cooks and Helpers, Waiters, and
Waitresses, of Spokane, whose members were on strike over a wage
dispute. The injunction was granted, restraining defendants and
others from “ picketing, attempting to dissuade plaintiff’s patrons
from patronizing them, from selling or distributing copies of the
Labor World containing articles mentioned in the complaint or
articles of a similar character, and from otherwise interfering with
the plaintiffs in the lawful conduct of their business with [within] a
radius of 100 feet from the front entrance of each and every of the
plaintiffs’ respective places of business on any public street or alley.”
Appeal was taken by the plaintiffs, the cafe proprietors, to have the
decree modified to enjoin defendants from doing the things men
tioned within the whole of the city rather than the limited area de
scribed in the judgment. The court issued a temporary injunction
in accordance with the application.
Regarding the right of an equity court to change a decree once
issued, the supreme court stated:
The Supreme Court of the United States, in the case of American
Steel Foundries v. Tri-City Central Trades Council (42 Sup. Ct. 72,
66 L. Ed. — ), has elaborately discussed this subject of injunction in
industrial disputes. It speaks with clearness of the rights and obli
gations of the contesting parties in such controversies, and as a gen
eral guide announces the following rhle:
“ Each case must turn on its own circumstances. It is a case for
the flexible remedial power of a court of equity which may try one
mode of restraint, and if it fails or proves to be too drastic may
change it.”
The argument on behalf of the appellants here is that the fixing of
a limited area is arbitrary. But it is not arbitrary in the sense that
it is inconsistent with the flexible remedial power of a court of equity
as applied to this case. An examination of the record satisfies us
that the judgment of the trial court, so far as the rights of the appel
lants are concerned, recognizes this principle and that they have no
just cause of complaint on their appeal.
The judgment was accordingly affirmed.

LABOR ORGANIZATIONS

273

L abor O r g a n iza t io n s — S tr ik e s — P ic k e t in g — S ta tu s of W o r k
S t r ik e — I n j u n c t io n — L a France Electrical Construction &

m e n on

S u p p ly Co.

International Brotherhood o f Electrical W orkers ,

Local N o. 8 et al., Supreme Court o f Ohio ( M a y %9, 192S), lift
Northeastern R eporter , page 899.—The

plaintiff corporation was en
gaged in electrical construction work and the instant case arose
while it was doing electrical work upon Inverness Club in Lucas
County, Ohio. The defendants, members of a local union of an un
incorporated voluntary association of electrical workers., were his
employees. The plaintiff also had several other electrical contracts
in and about Toledo and Lucas County upon which union men were
employed.
During the period from May 1, 1919, to April 30, 1920, there was
in effect in the city of Toledo an agreement between Local No. 8 and
certain electrical contractors, including the plaintiff, governing
wages, overtime pay, and working conditions, and providing that
so long as Local No. 8 could furnish union men or “ permit men55
(nonmembers holding permit cards from the union temporarily
until accepted as members) no nonunion men should be hired by
said contractors, and in the event that any such nonunion men were
hired at any time, Local No. 8 should induce them to become mem
bers of the local. There had been several conferences after April 30,
1920, but no agreement was ever reached between the contractors and
the local.
The plaintiff paid off all its men on Thursday, April 29, 1920, the
day before the ending of the old agreement, and terminated all ex
isting contracts with them. When the men returned on the follow
ing Monday, May 3, to apply for work, the plaintiff handed each of
them a written agreement to sign before he could go to work. This
agreement recited the hours, wages, and conditions of employment,
among which were that the agreement should continue until either
party thereto should give two days5 written notice of the intention
to terminate the same, except in case of misbehavior or incompe
tency ; that the employer should maintain an open shop, employing
nonunion and union men without discrimination; and that the em
ployee would not at any time take any action to try to unionize
the employees or to make the shop a closed (union) shop.
The defendants refused to sign, and a strike was called on all
contracts of the plaintiff on which union electric men were working..
Picketing was done, persuasion was resorted to, and in some cases
there were threats, intimidation, and violence.
The plaintiff prayed for an injunction, and one was granted by
the circuit court restraining the defendant from uttering threats or
doing acts of violence and intimidation, and specifically restraining
a certain four of the defendants from going into the plaintiff’s shop,

274

DECISIONS OF COURTS AFFECTING LABOR

or to any place in which plaintiff’s employees might be engaged in
work, “ for the purpose of speaking to, interviewing, persuading,
following, or in any manner communicating with any person in the
plaintiff’s employ,” but peaceable persuasion and picketing were per
mitted, whereupon the plaintiff appealed. The court o f appeals
affirmed the action of the court below, and the plaintiff then sued out
a writ of error.
The main question arising in the case was said to be whether or
not men who have left their employment temporarily for the pur
pose of bringing pressure in the interest o f their own working con
ditions may peaceably picket and. persuade men who are in their
former employer’s service to cease their work and may also per
suade other men from entering such service; or are such acts, though
done in pursuance of the strike purpose, illegal and subject to in
junction.
Mr. Justice Allen, having stated the question thus, said that peace
ful picketing had frequently been held lawful in Ohio; that many o f
the lower courts had held that in the prosecution of a strike work
men may “ legally place pickets or patrols within a reasonable dis
tance of the employer’s place of business for the purpose of observa
tion as to the progress o f the strike. Also that peaceful persuasion
is lawful during the continuance of such strike.” However, the
judge added:
This court has never passed upon the specific questions here pre
sented, except in an affirmance without opmion of a nisi prius case.
In attempting to secure a more comprehensive injunction here
the plaintiff urged that there was no legitimate trade dispute, “ for
the reason that employer and employees had completely ended their
connection before the suit was begun.” This defense, if proven,
would go to show that the defendants were no longer in the position
of employees, that the relation o f employer and employee was ended,
and without that relation the defendants would have no right to
picket or otherwise prosecute a strike. The court said in this con
nection :
These individual contracts the company sought to secure, not
merely from men who had never worked for it before, but also from
old employees, and it was this demand which brought about the
strike.
Upon the record with regard to this point there can be little doubt
that a legitimate trade dispute existed in this case, in which former
employees o f the plaintiff company were seeking to secure the right
to work with the company under terms of employment different from
those which their employer was at the time requesting. That being
the case, the methods open to use in a legitimate trade dispute were
open to the strikers here.

LABOR ORGANIZATIONS

275

The plaintiff also attempted to show that it had a property right
in its contracts with its employees and that the defendants destroyed
these property rights by inducing the workmen to break their con
tracts of employment and that such persuasion should be enjoined
whether or not the persuasion was peaceful.
The court, however, held this contention valueless by showing the
employment to be at will.
It was an employment which might be for a month, a year, several
years, or for any time, depending upon the will of the parties; and
it was a contract which could be terminated, not by mutual consent,
but at the wish of either one of the parties. The two days’ period
did not establish a term for the duration of the contract, but merely
a period of convenient notice. The employment was, in other words,
an employment at will.
Plaintiff strenuously insists that any persuasion to break a con
tract, whether for a term or at will, is illegal and enjoinable, citing
the cases of Hitchman Coal & Coke Co. v . Mitchell (245 U. S. 229,
38 Sup. Ct. 65 [see Bui. No. 246, p. 145]), and Truax v. Raich (239
U. S. 33, 36 Sup. Ct. 7 [see Bui. No. 189, p. 53]). These cases do,
upon a superficial view, seem to support plaintiff’s contention.
On the facts, however, neither the Hitchman case nor the Truax
case controls the decision o f this question. In the Hitchman case the
members of a coal miners’ union had notice that the employees of a
certain mine were under contract with their employer not to remain
in his employment after joining the union. They sought to induce
the employees to join the union and to remain at work until enough
new members could be obtained to bring about a strike, thus uniting
with the union in a plan to subvert the system of employment upon
which they had voluntarily agreed with their employer. There were
no such facts in the present case. No effort was made to induce
the employees still in the employ of the LaFrance Electrical Con
struction & Supply Co. to join the union and remain in the company.
The effort was made to have them leave their employment, which was
at will.
In conclusion, Mr. Justice Allen said:
It is difficult upon principle to see how persuading a man to do a
thing, which he may himself do with perfect legality, can be illegal.
I f it is legal for a workman to leave his employment at any time,
how can it be illegal for a person to suggest to the workman or dis
cuss with him the advisability of leaving his employment at any
time ? It would not be legal for a workman, if he had agreed to con
tinue in employment for a year, to break that contract and terminate;
it without justification after six months. It would, therefore, in the
absence of some special justification, not be legal for another person
to persuade the workman to leave his employment before the year
was over, because he would be persuading the workman to do an
illegal thing.. But how can the persuasion of one to do a legal thing
be in itself illegal? Surely there is nothing in the nature of per
suasion per se which makes the use of it illegal.
I f in the case here the workman who struck persuaded or induced
the employees of the plaintiff company to terminate their contract

276

DECISIONS OF COURTS AFFECTING LABOR

immediately, without 48 hours’ notice as required by the contract,
that might under some circumstances be illegal. I f the strikers per
suaded the employees to give 48 hours’ notice and terminate the
employment after the 2 days, that obviously was not illegal, because
they were advising the employees to do what they might with per
fect right do for themselves.
The findings of fact by the court o f common pleas show that four
individual defendants aid in this case induce employees of the
plaintiff company to terminate their contracts immediately. The
court enjoined those four individual defendants from going to
plaintiff’s shop, or the vicinity thereof, or to any place where plain
tiff’s employees might be engaged in work, for the purpose of speak
ing to, interviewing, persuading, following, or in any manner com
municating with any person in plaintiff’s employ. With the excep
tion of the solicitation by these particular defendants, the evidence
does not show that the solicitation was to cease work immediately,
before giving the proper notice. The denial of the injunction prayed
for, against peaceful persuasion, did not, therefore, constitute error.
The judgment was accordingly affirmed.

L abor O r g a n iza t io n s — S t r ik e to C o m p e l C losed S h o p — M is r e p
r e s e n t a tio n —

I n j u n c t io n —H o tel <& Railroad N ew s Go.

L evers

thal, Supreme Judicial Court o f Massachusetts {Decem ber 20, 1 9 2 2 ),
137 Northeastern R eporter , page 53h.—The

Hotel & Railroad News
Co., plaintiff in this case, was engaged in the sale and distribution of
newspapers to retail dealers and through its own leased stands in the
city of Boston and vicinity. At these stands it employed about 175
girls, and did a large business, necessarily dependent upon the pub
lic for its patronage. On May 1, 1920, the company began to dis
charge some of its employees for reasons set forth in a circular, a
copy of which was sent to each employee. The reasons for the
discharge were said to be violation of the rules o f the company. In
about five months 102 girls were dismissed. They were not members
of any union, but the discharges and the issuance of the circular
caused the organization of a union known as the News Stand Girls’
Union No. 1323, A. F. of L., organized for the purpose of securing
the reinstatement of the discharged girls and the establishment o f a
closed shop. In the superior court o f Suffolk County a decree had
been issued against one Theresa Clark individually and as presi
dent of the union, which had the following injunctive provisions:
(a) From interfering with delivery o f newspapers by plaintiff;
(&) from compelling or endeavoring to compel plaintiff to enter into
any agreement with the union or its members; ( c ) from compelling
or endeavoring to compel plaintiff to unionize or place its business
on a closed-shop basis; (d ) from calling, conducting, continuing, or
supporting any strike or concerted action to accomplish the objects
described in the bill; (e) from interfering with or intimidating any

LABOR ORGANIZATIONS

277

of plaintiff’s employees, or persons desirous of entering its employ,
for the purpose of compelling them to join the union, etc.; ( /) from
compelling or endeavoring to compel plaintiff to reinstate or employ
its former employees; and (g ) from creating, uttering, or publishing
any statement, letter, or document containing matter injurious to
plaintiff’s business, or intended to interfere therewith, or calculated
to interfere with or intimidate its employees, or to deter customers
from patronizing plaintiff.
The foregoing injunction was based on the findings of a master
whose report had been confirmed after modification in one particu
lar. An appeal was taken from this injunction on the ground that
the plaintiff company had failed to sustain its material allegations;
but Judge Braley, who delivered the opinion of the supreme court,
found that in the main the decree was correct.
Various interviews were granted the committee of the girls’ union,
and the president of the company was warned that a failure to re
instate the girls and recognize the union would result in a reference
of the matter to the Central Labor Union of the city, which “ is
waiting for our report, and it will be taken up by the Central Labor
Union and our committee.” The president declined to reinstate the
girls, who “ were not discharged for joining the union, but were dis
charged for breaking the rules of the company.” He further refused
to accept the closed shop, or otherwise conform with the demands of
the union. As to this Judge Braley said:
The refusal o f the president to enter into the agreement or to re
instate the girls was lawful. The company could hire employees at
will, and the members of the union who were under no contractual
obligations to it could seek for work elsewhere. The master states
that at none of the conferences was any complaint made concerning
wages, or the hours and conditions of work. The demands primarily
were that the girls discharged should be reinstated, the union recog
nized, and a closed shop established.
The propriety of an anticipatory action by the company instead of
waiting until the union could take coercive measures was justified,
there being no contention on the part of the company that it can
compel the defendants “ to take any action for the plaintiff’s benefit,
but that it can have them enjoined from intentionally and in com
bination doing anything to its injury unless legally justifiable.”
In the course of the controversy the union, through one Anna Weinstock, acting as its agent, prepared and distributed a circular en
titled the “ Story o f the News Stand Girls,” which “ purported to
give a full history of everything that had taken place.” This
charged unfair and unlawful action by the president and manager of
the company, and appealed to the public “ in the principle of fair
play” actively to support the union in its contention. O f this the
court said:

278

DECISION'S OP COURTS AFFECTING LABOR

It is enough to say o f this publication, which the master finds was
inaccurate, misleading, and unwarranted in many material par
ticulars, that it was intended to disparage the plaintiff by charging
the company with unjust treatment of its employees, and with hav
ing acted arbitrarily and without justification m refusing to take
them back, or to negotiate for their return as members of the union.
The opinion concludes:
We do not deem it useful to make further reference to the sub
ordinate findings reported. The master’s conclusion is :
“ That by the means heretofore enumerated the defendants in
tended to compel the plaintiff to reinstate the discharged girls, and
to establish a closed shop and accede to their other demands.”
The “ means” employed to which we have sufficiently referred
were intended to hold the plaintiff up to public condemnation by use
of unfair, and to a large degree misleading, statements of the origin
and scope of the controversy between it and the union, and thereby
force the plaintiff to yield, or else take the risk o f the impairment or
loss of the good will and patronage of customers on which the com
pany’s business to an appreciable extent necessarily rested. It was
a wrong intentionally inflicted, for which a court of equity will grant
redress.
The decree, however, is too sweeping. The defendants are not
shown to have threatened to inaugurate a strike, and paragraph (d)
is to be eliminated. Paragraph (g) is to be so recast as to read:
“ From publishing and circulating any statement in whole or in
part of the nature and character o f the ‘ Story of the News Stand
G irls’ as set forth in the record, for the purpose of coercing the
plaintiff to reinstate its discharged employees and to employ only
union labor.”
The decree as thus modified is affirmed, with costs of the appeal.

L abor
O r g a n iza t io n s — S u s p e n s io n
of
M em bers — I n t e r n a l
O r g a n iz a t io n —Jose v. Savage, Suprem e Court o f N ew Y o r k ,
Special T erm , N ew Y o r k Cminty {June 2 ,1 9 2 4 ) , 204 N ew Y o r k S u p
plement, page 6 .—The plaintiffs were members of a local union of
the United Brotherhood of Carpenters and Joiners of America, an
unincorporated association. At one o f their meetings they filed
charges of misconduct against the president and other officers. The
president “ forbade the reading of the charges, threatened retalia
tion, and immediately thereafter filed charges against the plaintiffs,”
basing them on general provisions of the by-laws regarding “ con
duct prejudicial to harmony, or slander of an officer.” The consti
tution of the union provided for trials by the local or the district
council. The defendants proceeded to try the plaintiffs before the
district council. After the “ so-called trial ” the plaintiffs were sus
pended for a year and fined $50. “ The only proof against them was
the filing of the charges against their officers.”

LICENSING OF OCCUPATIONS

279

The court pointed out that “ the great importance of labor unions
in contemporary economic life requires that, for the sake of the
public, of their own members, and o f the institution itself, their
affairs should be conducted with decent regard for the rights of
their members.”
Instead of meeting the charges against themselves, they tried to
destroy these plaintiffs for their temerity in making the charges.
It was shown that the district council could act only in strict ac
cordance with the by-laws of the union, and as three o f the members
of the council sat as successors of delegates whose terms had ex
pired, but were not elected, that the council had no valid existence,
and it was without authority to discipline members.
The defendants contended that the plaintiffs should have appealed
from the decision of the council, but the court said that “ there was
nothing from which to appeal.” The proceeding was void.
Judgment was for plaintiffs.

L ic e n s in g

O ccu pation s — B arber

S h ops — B e a u t y

P arlor —

K eith v. State Barber Board et al., Suprem e Court o f Kansas {F e b
ruary 22 y 1928 ), 212 Pacific R eporter , page 871 .—Mary E. Keith

operated in Wichita, Kans., a place which she styled “ Ladies’ H air
dressing and Beauty Parlors.” The State barber board attempted to
require her to comply with the regulations imposed upon barbers.
A suit was brought to prevent the interference of the State barber
board and others, and relief was refused in the trial court. Miss
Keith thereupon appealed to the supreme court of the State. The
question involved was whether the business conducted by her made
her a barber within the meaning of the term in the statute regulating
the practice of that calling. The State law provided that it was un
lawful to follow the occupation of a barber in the State unless a
certificate of registration had first been obtained. It was provided in
the. act that an applicant for a certificate must show among other
things that he is free from disease and that he has the skill properly
to perform all the duties of a barber.
The contention upheld in the trial court was that the work done
in the beauty parlor was the same kind of work which barbers in
general do. The barber board contended that if a person confined
his activities to shaving or even to cutting hair he might neverthe
less be subject to the regulating power of the board, and in this case
the work in the beauty parlor was o f a particular class within the
provisions of the act.
The supreme court said that the argument was plausible, but as
the statute was a penal one its provisions were to be construed with

280

DECISIONS OF COURTS AFFECTING LABOR

some degree of strictness. It was pointed out that the term “ barber
shop” used in the statute did not suggest the kind o f place kept
by Miss Keith, and “ if the legislature had intended to include such
establishments within the operation of the law the strong probability
is that specific reference would have been made to them.” The
court further pointed out that “ the long omission of those charged
with the administration of these laws to undertake their enforce
ment against persons in the plaintiff’s situation amounts to such an
operative construction as the courts generally respect,” and it was
held that “ if persons who do work similar to that of barbers, but
do not undertake to shave customers, are to be brought within the
discipline of a regulating board, it should be by virtue of new legis
lation rather than by an extension of the scope of the existing law
by interpretation.”
Judgment was therefore directed for the plaintiff.

L ic e n s in g of O cc u p a tio n s — E l e c t r ic ia n s — P owers of M u n i c i
v. C ity o f Chicago , Suprem e Court o f Illinois ( O cto
ber 28, 1921^), H 5 Northeastern R eporter , page
—The city of

p a l it y —A rm s

Chicago, through its proper governmental agencies, established in
1922 regulations as to the installation of wires or other electrical
apparatus and the licensing of electricians. Qualifications of appli
cants were prescribed and a board of examiners provided for.
Harry Arms and others contested the constitutionality o f these
provisions, and from a judgment adverse to them they appealed.
The supreme court examined the statutes of the State defining the
powers of municipalities, and found nothing that specifically author
ized the enactment o f the ordinance in question. Many detailed
authorizations were set forth, giving room for the application o f the
rule that “ the express enumeration of certain subjects and occupa
tions is * * * the exclusion of all other subjects and occupa
tions.” No authorization having been made to license electricians or
to exact fees for electrical construction work, the provisions objected
to by the plaintiffs below were held to be void for want of authority
to make the enactment.
The general provisions of health and safety were not adequate to
sustain the regulations in question, and the decree of the court below
was reversed and the cause remanded.

L ic e n s in g of O c c u p a tio n s — F is h e r m e n — C o n s t it u t io n a l it y of
L a w of A l a s k a —H aavik v. Alaska Packers ’ Association , United
States Supreme Court (January 7, 192J^), 1^ Suprem e Court R e
porter, page 177 .—An

act o f the Alaska Legislature of 1919 (ch. 29)

LICENSING OF OCCUPATIONS

281

imposes an annual poll tax of $5 upon every male person within the
Territory or the waters thereof, the same to be used for school pur
poses, while in 1921 (ch. 31) a law was passed imposing an annual
license tax of $5 upon every nonresident fisherman, including all per
sons employed on a boat engaged in fishing.
While resident in California, Haavik was employed as a seaman
and fisherman for work in Alaska, serving there from the middle of
May until the middle of September, 1921. His employer paid the
taxes indicated and deducted them from his wages on final settle
ment. This was an action to recover the sum thus paid. Judgment
had been against the plaintiff in the District Court of the United
States for the Northern District of California, and it was here
affirmed. Haavik was not a mere sightseer or tourist, but for at least
four months was within the jurisdiction of the local government,
enjoying its protection, and “ to require him to contribute something
toward its support did not deprive him of property without due
process of law.”
Neither could it be said that the license tax conflicted with the pro
vision of the Constitution granting to the citizens of each State all
privileges and immunities of citizens in the several States. As to
the licensing provision it was said that—
It applies only to nonresident fishermen; citizens of every State
are treated alike. Only residents of the Territory are preferred.
This is not wholly arbitrary or unreasonable, and we find nothing in
the Constitution which prohibits Congress from favoring those who
have acquired a local residence and upon whose efforts the future
development of the Territory must largely depend.
A ll points of the contention being ruled against, the decree below
was affirmed.
L ic e n s in g of O c c u patio n s — O pe r a tin g P u b l ic C o n ve y an ce s —
C i t y O r d in a n c e — I n j u n c t io n — C ity o f Tulsa v. Thom as , Suprem e
Court o f Oklahoma {A p r il 2h 192S)^ 211^ Pacific R eporter , page
1070 .—The plaintiff sought an injunction against the city of Tulsa

and others enjoining the defendants from enforcing ordinance No.
2344 of the city against the plaintiffs as to operating “ jitneys”
within the city of Tulsa. The ordinance complained of gave wide
and unlimited powers as to rates, licenses, fees, examinations, and
routes to those in charge of enforcing it, and it was complained that
the ordinance was invalid as well as in violation of Compiled Stat
utes, 1921, sections 4531-33, enacted in 1919, and the fourteenth
amendment to the Constitution.
As to the validity o f the ordinance, the court decided that the act
o f 1919 (ch. 129) gave a vested right to the use of the public streets
o f any municipality for the purpose of conducting the business of

DECISIONS OF COURTS AFFECTING LABOR

282

carrying passengers for hire, subject to the right of reasonable regu
lation, and that the ordinance complained o f violated this vested
right, and that the city commission o f Tulsa exceeded its authority
as granted to it by the legislature.
In referring to the case of Yick Wo v . Hopkins, 118 U. S. 356, 6
Sup. Ct. 1064, 30 L. Ed. 220, the court quoted:
“ The^very idea that one man may be compelled to hold his life
or the means of living, or any material right essential to the enjoy
ment of life, at the mere will o f another, seems to be intolerable in
any country where freedom prevails as being the essence o f slavery
itself.”
The ordinance gave to the city commission arbitrary powers
all without any limitation or direction in the manner in which these
powers should be exercised * * * far more power than was
ever intended by the legislature or than can be justified under the
fourteenth amendment to the Federal Constitution.
To say that the broad power of passing upon the right o f a person
to conduct a certain business of a legitimate nature should be left
to the whim and fancy of any individual or group of individuals
is contrary to every canon and foundation stone of our form o f
government.
The ordinance was held not to be valid, and the order of the dis
trict court of Tulsa granting the injunction was affirmed.

L ic e n s in g of O cc u p a tio n s — P lu m ber s — C o n s t it u t io n a l it y of
S t a t u t e — P eople v. R ogers , Suprem e Court o f Colorado {N ovem ber
5 , 1 9 2 3 ), 219 Pacific R eporter , page 1076 .—James E. Rogers was a

plumber in the State of Colorado, acting without having secured a
license from the State board of health, as required by law. No of
fense resulting from any violation o f the rules of the board of health
was charged, but simply that the statutory requirement that a license
should be secured had been violated.
The contention was made that the statute was unconstitutional,
which the court overruled, saying that “ it does not violate the nat
ural rights of the defendant to engage in a lawful occupation.”
Numerous decisions were cited to sustain the conclusion that the
plumbing trade is subject to a regulation in the interest of public
health. *
The court below ruled to the contrary, sustaining the defendant’s
objection to the opinion lodged against him. That ruling was dis
approved by the supreme court for the reasons stated.

M e c h a n ic s ’ L ie n s — C h a t t e l M ortgage — R a n k — M etropolitan S e
curities Co.

Orlow et al., Suprem e Court o f Ohio {M a y 15 , 1923 ),

l l f i Northeastern R eporter , page 306 .—The

Metropolitan Securities

MECHANICS * LIENS

283

Co. owned by assignment a chattel mortgage for the purchase price
of an automobile, executed by Martin Orlow and duly filed. By its
terms Orlow was to use the machine and keep it in first-class condi
tion at all times at his own expense and was not to encumber the
machine without the written consent of the mortgagee. The ma
chine later became damaged, and Orlow left it with J. J. McGuire,
a mechanic, with orders to repair it. The mortgagee had no knowl
edge of the repairs and had given no consent. The repairs not
having been paid for, McGuire held the automobile until it was sold
under order of the court of appeals. The amount due the mortgagee
was $451.70, with interest from October 29, 1921; the amount due
J. J. McGuire was $355.20, with interest from October 1, 1921. The
mortgage was of prior date to the mechanic’s lien. The car sold
for $280, and the question arose as to who was entitled to the money.
Mr. Chief Justice Marshall, in giving the majority opinion, said:
The right [of artisans to a common-law lien] is an ancient one,
based upon immemorial custom, and, so far as we have been able to
learn, has been recognized by every jurisdiction that has ever had
occasion to consider the question.
The Legislature of Ohio has never created a lien in favor of an
artisan for labor and materials rendered and furnished upon chattel
property2 but by the well-settled provisions of the common law,
which will be fully recognized by this court, an artisan who per
forms labor, lends skill, or furnishes material for the building or
repair of chattel property has a lien upon the chattel to which he
has contributed his labor, skill, or material while he retains such
chattel property in his possession. McGuire, by his contributions
of labor and material and his continued possession of the machine,
acquired a valid and subsisting lien upon it from the date the labor
and materials were furnished.
By the provisions of sections 8560 and 8561, General Code, a
chattel mortgage may be deposited with the county recorder of the
county where the mortgagor resided at the time of the execution of
the mortgage. I f such compliance with the statutory provisions
constitutes constructive notice, then that notice is binding upon all
persons, including McGuire, the artisan, who has made the repairs
upon this machine.
The court held to be erroneous the contention that as the machine
needed repairs consent would be implied, saying:
It can not reasonably be doubted that the machine had a very
substantial value before any of the repairs were made, and it was
this value which the mortgagee was entitled to have undiminished
by being subordinated to a claim of a repair man whose labor and
materials might or might not increase the value of the injured ma
chine by the amount of his charges, however reasonable such charges
might be.
It has further been urged that the mortgagee gave express consent,
and that this claim is borne out by the provision o f the mortgage
above quoted to the effect that the mortgagor would keep the prop

284

DECISIONS OE COURTS AEEECTIKG LABOR

erty in first class condition at his own expense. We are of the opin
ion that the correct interpretation of this clause does not justify the
assumption that the mortgagor was constituted the agent of the
mortgagee.
McGuire was held to have had constructive notice o f the existence
and validity of the mortgage and that his lien attached only to the
interest of Orlow in the car.
Judgment was for the mortgagee, three judges dissenting.
In his dissenting opinion Mr. Justice Wanamaker said, in part:
The right to a mechanic’s lien antedates all constitutions and stat
utes. A new emphasis was given this common-law right by a con
stitutional declaration made in 1912, as follow s:
Article 2, section 33: “ Laws may be passed to secure to mechanics,
artisans, laborers, subcontractors, and material men, their just dues
by direct lien upon the property, upon which they have bestowed
labor or for which they have furnished material. No other provision
of the constitution shall impair or limit this power.” (Adopted Sep
tember 3,1912.)
The State of Ohio has thus redeclared this primary and paramount
doctrine in favor of the mechanic, the workman.
It is urged in the majority opinion that this constitutional doctrine
contemplates only lien upon “ real property.” I find no such limita
tion in the language of the constitution. Upon the contrary, the
language is “ the property upon which they have bestowed labor or
for which they have furnished material,” clearly comprehending
both real property and personal property.
In this case there is not only implied authority “ to have repairs
made ” but express authority. There is in the mortgage an obliga
tion placed upon the owner to keep the automobile in repair.
That obligation imposed by the mortgagee upon the mortgagor
carries with it the law applicable to such contract, to wit, the law
giving to any repairer, rebuilder, or mechanic the right to the fair
and reasonable value of his work and material in doing such repair
ing and rebuilding. As between the mortgagor and mortgagee, they
might well contract as to who should pay, but that can not in any
wise affect the right of the mechanic to his pay before surrendering
possession.
The automobile subsequently sold for less than the cost of the re
pairs. One conclusion is obvious, and that is the state of the auto
mobile after the collision must have been such that its identity,
utility, and value as an automobile had been entirely lost, and the
record so clearly shows. It was junk.
The most that could be claimed in equity for the mortgage holder,
and all liens are founded in equity, would be a first lien upon the fair
value of the automobile as junked by the collision; and how in
equity and justice can it be said that the mortgagee who had a lien
upon the original car, which was destroyed, could transfer that lien
to the rebuilt car and deprive the rebuilder o f the fair and reason
able value of his time, labor, skill, and materials necessary for such
rebuilding? It sounds neither in reason, equity, or justice. Why,
in principle, should the mechanic who works upon the ship, who

MECHANICS* LIENS

285

works on a machine of the sea, be more favored than the mechanic
who works upon the machine of the land ?
It is suggested that there is a distinction so far as public needs are
concerned, and that therefore there is greater necessity for imme
diate repairs for the ship in order that it may pursue its journey
upon the sea and be kept all the while seaworthy. This suggestion,
however, overlooks the fact that the equity doctrine involved in the
common-law lien of the mechanic is not founded upon any rights
other than the mechanic’s rights.
The doctrine in this case denies reward to the workman, but makes
him donate his labor and materials to the chattel-mortgage man.

M echanic ’ s L iens — L aborers’ L iens —H ille y v. L un sford, Court
o f A ppeals o f Georgia (January 17, 1 92 3), 115 Southeastern R e
porter, page 667.—C. L. Hilley performed manual labor and fur
nished material in repairing an automobile for one Lunsford. Pro
ceedings were brought in a justice’s court to foreclose a laborer’s
lien. Lunsford defended on the ground that the only remedy upon
which recovery could be had was a mechanic’s lien. Judgment was
rendered in favor of Hilley, but the superior court sustained Luns
ford when the questions were brought before it. The case was then
taken to the court of appeals, which held that if a mechanic actually
performed manual labor upon some property of his employer he
would not be limited to a mechanic’s lien under the Civil Code of
Georgia but may at his option assert a laborer’s lien. It was held
that while a mechanic’s lien may include not only work done but
material furnished and labor performed, “ it is not contemplated by
the statutes creating a laborer’s lien that such a claimant can assert
the lien either for material furnished or for work done by employee
or a partner.” As this laborer’s lien attempted to cover material
furnished and labor done by Hilley and also Hilley’s brother without
disclosing the relative proportion of the work so done, the decision
of the superior court should be affirmed.

M echanics ’ L iens — T est B ore
W estern W e ll W o rk s (In c .)

“ W e l l ”— S cope

L ien —

California Farm s Co., District Court

o f California ( February 13, 192 3), 211f Pacific R eporter, page lt91
{hearing denied b y Suprem e Court A p r il 12, 1923). —The Western
Well Works (Inc.) contracted with the California Farms Co. to dig
a test bore, with a provision in the contract that if, when within
1,000 feet from the surface, there was apparent water-bearing strata
which by mutual agreement would justify the completion of the well,
then the Western Well Works was to ream out the bore and complete
the well.

286

DECISIONS OF COURTS AFFECTING LABOR

The land was owned by the California Land Co., the sections
around and on which the well was dug being under an option held
by the California Farms Co.
No money had been paid by the California Farms Co., except $500
on account, and in due course the plaintiff filed a lien on tUvo sections
of land under option and brought suit to foreclose in an action join
ing both companies and several individuals connected with said
companies.
The trial court found that the test bore was not a well and did not
come within the definition of any matters for which a lien is granted
under the statutes; also that the California Land Co. had no notice
and did not give any notice that it would be responsible for work,
labor, and materials, etc. A personal judgment was given against
the California Farms Co. and Sherwood Green, defendants, but as
to the California Land Co. it was held that the lien did not attach.
On appeal the court held that the test bore was a “ well ” within
the meaning of the statute and that the lien would apply. As to
notice the court said:
From this uncontradicted evidence but one conclusion can reason
ably be drawn. It is that the California Land Co., through its officers
* * * was informed * * * that work in the nature of drill
ing a well or wells was then proceeding upon its said land.
As to the finding of the lower court “ that none of said premises is
necessary for the convenient use and occupation of the improvements
placed thereon by the plaintiff save and except a circle of ground 100
feet in diameter, including the land upon which the derrick hereafter
mentioned was erected, in such manner that said derrick is in the
center of said piece of ground,” the court said:
It seems to us that this is altogether too narrow an interpretation
to place upon the provisions of the statute permitting a lien to be
claimed upon the land upon which the building improvement, well,
or structure is to be constructed. Section 1185 of the Code of Civil
Procedure, in providing for the extent of such lien allows, not only
the immediate land occupied by the structure itself, but also “ a con
venient space about the same, or so much as may be required for the
convenient use and occupation thereof.”
In determining the amount of land to be subjected to the lien of
the plaintiff in the instant case, the trial court should take into
account the fact that the mechanic’s lien law is to be liberally con
strued, with a view to effecting its purpose. The legislature expressly
so declared in the statute amending section 1183 of the Code of Civil
Procedure into its present form (Stats. 1911, pp. 1313-1320), and
the courts of both this and other jurisdictions have consistently fol
lowed the rule of construction thus laid down.
Judgment was therefore reversed.

MONOPOLIES

287

M ine R egulations— S hot F irers— C onstitutionality of S tat
Goal Go. v. Douglas , Suprem e Court o f Indiana

ute — Glendale

(January 2, 1 9 2 3 ), 137 Northeastern R eporter , page 615.—An act of
the Indiana Legislature of 1919 (ch. 30) requires the operator of any
coal mine where more than 10 men are employed and where more
than 2 pounds of powder are used in any one blast, and also in gasproducing mines, to employ shot firers to inspect and fire all blasts.
Other provisions are laid down in the detailed statute, including
provisions for penalties of fine and imprisonment. The coal com
pany above named was prosecuted for a violation of this statute and
sought an injunction to prevent the following up of the action. The
company was unsuccessful in the circuit court of Sullivan County,
and appealed. The judgment of the supreme court was to the effect
that the statute is invalid for various reasons set forth in the opinion,
and the judgment of the court below was reversed.
Judge Ewbank delivered the opinion of the court. After stating
the facts and the allegations of the company, Judge Ewbank said:
The provision that “ a sufficient number of practical, experienced
miners55 shall be employed by the mine operator, of whose qualifi
cations the employer shall be the judge, makes the statute too indefi
nite for enforcement by proceedings under the criminal law. Only
“ practical, experienced miners55 are permitted to work as miners in
coal mines of this State.
The statute does not forbid the employment of men who have
planted the shots to fire them. What wohld be a “ sufficient num
ber 55 to be thus employed is a question on which the employer and
the miners might differ, and no basis for deciding it is given by
the statute. And if the employer should devise a method of re
quiring the miners to fire their own shots, or to take turns at firing
them, for which he should be prosecuted, a court would have no
basis from which to determine whether or not “ a sufficient number
of practical, experienced miners55 were so employed. In order to
be enforceable, a penal statute must be general in its scope, but so
specific and certain in its provisions that any man may know with
certainty when he does or omits to do an act, whether he is thereby
committing a crime. Obviously, the statute under consideration
does not do this. It is therefore invalid, and a criminal prosecution
for failure of the employer operating a coal mine to comply with its
provisions could not be maintained.
Other contentions of the company were not considered, since the
point noted above is decisive.
The judgment of the lower court was therefore reversed.

M onopolies— “ P ublic B usiness 55— P ower of C orporation C om
Fix R ates— P enalty — C onstitutionality of S tatute—

mission to

Oklahoma Operating Go.
44915°—25----- 20

L o v e et al., United States Supreme

288

DECISIONS OP COURTS AFFECTING LABOR

Court (D ecem ber 22, 1920 ), 252 U. JS. SS I? —Section 8235 of the
Revised Laws o f Oklahoma (1910) provides that the corporation
commission o f the State may regulate any business which “ by rea
son o f its nature, extent, or the existence o f a virtual monopoly
therein, is such that the public must use the same, or its services.”
This regulation extends “ to all its practices, prices, rates, and
charges.”
In the exercise o f the power thus presumably conferred, the com
mission entered an order in 1913, declaring the Oklahoma Operating
Co., a company engaged in laundry work, “ a monopoly, and its
business a public one, and directed it not to increase the rates then
being charged except upon application to and permission of the
commission.” Costs increased subsequently so that the rates of 1913
“ have become noncompensatory.” The company moved in January,
1918, to have the order set aside, claiming that the business was not
within the purview o f the statute, that the company was not a
monopoly within its meaning, and that the provision itself was void.
This motion being denied, the company proceeded to fix higher
rates, and was threatened with proceedings for contempt. The com
pany was summoned before the commission to give information as
to the cost o f laundry service and connected data, whereupon it
sought an injunction to restrain the commission from entertaining
complaints as to its violations of the orders and from proceeding
with its inquiry as to the cost of service. This was denied by the
United States District Court for Oklahoma, and an appeal was
taken to the Supreme Court.
Mr. Justice Brandeis delivered the opinion of the Supreme Court,
setting forth the construction of the statute in the Oklahoma courts
and the provisions o f the law and the constitution of the State,
by which no review could be had of any action of the commission
within its authority except by way o f appeal to the supreme court of
the State. Disobedience o f an order establishing rates entailed
punishment as for contempt, with a penalty not exceeding $500 for
each violation, each day’s continuance o f failure or refusal consti
tuting a separate offense. O f this Justice Brandeis said:

So it appears that the only judicial review o f an order fixing rates
possible under the laws o f the State was that arising in proceedings
to punish for contempt. The constitution endows the commission
with the powers of a court to enforce its orders by such proceedings.
(Article IX , secs. 18, 19.) By boldly violating an order a party
against whom it was directed may provoke a complaint; and if the
complaint results in a citation to show cause why he should not be
punished for contempt he may justify before the commission by
2 This case does not involve the relationship of employer and employee, but it repre
sents an attempt to regulate industry in a manner suggestive of minimum wage and like
legislation. It was overlooked in the bulletin for the year, hut is reproduced on account
of its outstanding importance in its field.

PROTECTION OP EMPLOYEES AS VOTERS

289

showing that the order violated was invalid, unjust, or unreasonable.
I f he fails to satisfy the commission that it erred in this respect, a
judicial review is opened to him by way of appeal on the whole rec
ord to the supreme court. But the penalties, which may possibly be
imposed, if he pursues this course without success, are such as might
well deter even the boldest and most confident.
A case was then cited in which the fuH penalty of $500 had been
imposed in each of three complaints, although they were merely
different instances of charges in excess o f a single prescribed rate.
Continuing, Justice Brandeis said:
Obviously a judicial review beset by such deterrents does not
satisfy the constitutional requirements, even if otherwise adequate,
and therefore the provisions of the acts relating to the enforcement
of the rates by penalties are unconstitutional without regard to the
question of the insufficiency of those rates.
The conclusion was reached that the plaintiff was entitled to a tem
porary injunction restraining the commission from enforcing the
penalties provided in the law. The legislature had amended the
statute since the commencement of this suit so as to give a right of
direct appeal to the supreme court of the State, but it was held that
the plaintiff had a right to such relief as a Federal court o f equity
might give, since he had been obliged to resort thereto.
The suit should, therefore, proceed for the purpose of determining
whether the maximum rates fixed *by the commission are, under pres
ent conditions, confiscatory. I f they are found to be so, .a permanent
injunction should issue to restrain their enforcement either by means
o f penalties or otherwise, as through an assertion by customers o f
alleged rights arising out of the commission’s orders. I f upon final
hearing the maximum rates fixed should be found not to be confis
catory, a permanent injunction should, nevertheless, issue to restrain
enforcement of penalties accrued pendente lite, provided that it
also be found that the plaintiff had reasonable ground to contest
them as being confiscatory.
It does not follow that the commission need be restrained from
proceeding with an investigation of plaintiff’s rates and practices,
so long as its findings and conclusions are subjected to the review
of the district court herein. Indeed, such investigation and the
results of it might with appropriateness be made a part of the final
proofs in the cause.
These conclusions require that the decree of the district court be
reversed and that the case be remanded for further proceedings in
conformity with this opinion.

P rotection of E mployees as V oters— T im e to V ote— P aym ent
W ages D uring T im e L ost— C onstitutionality of S tatute—

People v. Chicago, M ilwaukee <& S t. Paul R ailw ay Co., Suprem e
Court o f Illinois (February 21, 1 92 3), 138 Northeastern R eporter,
page 155.—The

Chicago, Milwaukee & St. Paul Railway Co. was con

290

DECISIONS OF COURTS AFFECTING LABOR

victed o f violating an act o f June 22, 1891 (Hurd’s Stat. 1917, p.
1341), which provides that workmen be allowed two hours off as time
to vote, no loss o f pay to be charged on account o f the absence. The
facts recited are not determining, the question being purely one of
the constitutionality of the law. However, it appears that the em
ployee on whose account the action was brought regularly began
work at 8 a. m. and was paid 85 cents an hour. On election day he
asked for the two hours’ absence provided by the law, which was
permitted, and he was off duty from beginning time until 10 a. m.
The polls were opened at 6 a. m. and he lived within a block of the
polling place. His place of employment was about 45 minutes dis
tant from the polling place. The company offered to prove it
had more than 2,000 men in its employ, each of whom was entitled
to equal rights with the complaining employee, but the court refused
to admit this, ruling it was not material to the decision.
In the county court of Cook County the company was found
guilty of a violation of the law, and the company brought the case
to the supreme court on a writ o f error, where the decision was
reversed. The opinion was delivered by Judge Duncan, who recited
the above facts, and also commented on the fact that the cost to the
company in which those services were rendered “ would no doubt
not be less than $3,500 if all of its employees were to vote on that
day, and were to receive pay for* two hours’ work while voting.”
Reference was then made to the provisions of the State and Federal
constitutions which guaranteed “ equal protection of the law in tjie
right to own, use, and enjoy property.” As to the opportunity to
vote, Judge Duncan said:
The provisions of said' statute that gave him the right to absent
himself for two hours on election day and to cast his vote, and which
required his employer, plaintiff in error, to give him this oppor
tunity o f attending the election for such purpose, are wholesome
provisions of the statute, and are valid and binding.
However, the requirement of paying the employee during the
exercise o f his privilege could not be regarded other than as an
infringement upon the right of the employer to make contracts with
his employees as to terms and conditions of the employment.
The contention was made that in the exercise of the police power
the legislature might enact such a law; but the court held that the
act in question “ does not in any way, so far as we are able to see,
tend to promote the health, safety, or morals o f such employees.” It
was therefore not sustainable as an exercise o f the police power, and
being an unconstitutional interference with the rights o f the parties
to contract, the provision requiring pay for time of absence was de
clared void, and the judgment of the court below reversed.

RAILROADS

291

R ailroads— S afety A ppliances— S trike as J ustification of
F ailure to R epair— I nspection— United States v. W estern & A t
lantic Railroad, United States District Court , N orthern D istrict o f
Georgia (A p ril 10, 1921/), 297 Federal R eporter, page 482.—This
was an action to enforce penalties incurred by the defendant com
pany for using three cars with defective safety appliances on August
8, 1922. The answer was set up that the defects were due to the
shopmen’s strike of July and August, 1922, which had wholly de
prived the company of power either to inspect the cars or to repair
them. It was therefore forced to use some cars out of repair, “ but
not dangerously so,” or else to cease to run its trains, which would
result in stopping the mails and the transportation of food, which
would cause suffering to many. The unlawful conspiracy was na
tionwide, “ accompanied with violence that amounted to a state of
war,” and it was claimed that “ Congress did not intend the act to
apply in such a situation.”
Judge Sibley, who delivered the opinion, admitted the possibility
of Congress not contemplating a situation such as that described.
However, its enactments had been made, the terms being absolute,
and, as construed by the Supreme Court, to be observed without
question of diligence or equivalent precautions.
A state o f violence approaching to war neither suspends the stat
ute nor changes its terms. Whatever the cause that prevents the
making of repairs, the carrier must cease to use the cars, though its
trains stop, or must suffer the consequences fixed by law. I f under
the unusual circumstances the penalties incurred by the letter of the
law ought not to be exacted, the Executive probably has the power to
remit them under the provisions of Revised Statutes, sec. 5292
(Comp. Stat. sec. 10130). The carrier must seek a remedy there.
It was claimed that such a rigid construction amounts to the taking
o f the carriers’ property without due process of law, since it is
deprived of the use of such property by reason of the acts of others
over whom it has no control, the consequences of which it can not
“ by any diligence or effort on its part escape.” The court pointed
out that there was no penalty for having defective cars, but only
for using them, and that by the diligence of the agents engaged in
using the cars, if they were careful to inspect and lay aside those
found defective, the penalty for such use might be avoided. A tem
porary withdrawal from use is necessary under the statute, but this
is “ a regulation made for the public good, which is not a taking
of property for public use without compensation, nor a deprivation
o f it without due process o f law. The regulations by Congress,
properly made under the commerce clause o f the Constitution, are
comparable to the-exercise of the police power by the States.”
Another objection offered was that the corporation is penalized but
its servants, who should have inspected and repaired the equipment,

292

DECISIONS OF COURTS AFFECTING LABOR

are let go free, so that there is not equal protection of the law.
The answer to this was that Congress deemed that enforcement could
be best secured by holding the employer liable, “ leaving it to him
to locate the agent or employee who might be at fault and to dis
cipline him. I f an employee willfully or negligently causes his
master loss, contrary to his duty, the master is not without recourse.”
Another point urged was that the information was secured by
inspectors “ by unlawful search, in that they went, without invitation
or permission, on the premises o f the defendant, with no purpose to
secure the repair o f the defective appliances, but only to procure evi
dence on which to prosecute for penalties, and after discovering the
defects did not report them to the defendant but only to the com
mission.” The court found no illegality in the method used, since it
might be thought that a general observance of the law could best be
secured by unexpected checkings, leaving the carrier to rely on his
own inspections, while the Government inspectors report to the
Interstate Commerce Commission, as directed. No private place seems
to have been entered nor any secreted or hidden object searched out.
The inspectors went only upon the open tracks where the cars are
used and looked at them. I f such an examination be a search, “ it
is certainly not an unreasonable one. The law has required that
certain equipment be on cars in order to prevent injuries to em
ployees and others” and, as the law of enforcement devolves on
public officials, “ it is more reasonable to see from time to time if
the required precautions are being observed than to wait for viola
tions to be disclosed by an injury having occurred. To this end
inspectors are provided. No paper or property has been here seized,
no house or even private place has been entered; no unlawfulness
appears in the obtaining o f the information.”
The motion to suppress such information was therefore denied,
and the portions of the company’s answer above considered were
ordered stricken out.
S abotage— Crim inal S yndicalism — C onstruction

S tatute ^-

E x fo r t e M oore , Suprem e Court o f Idaho (<January 1 1 ,1 9 2 % ), 22%
Pacific R eporter , page 662 .—Richard Moore was convicted o f viola
tion o f the criminal syndicalism statute of Idaho and sued out a
writ o f habeas corpus, claiming that “ he was committed without
reasonable or probable cause.” The statute under which Moore was
prosecuted (C. S., secs. 8580, 8581) defined criminal syndicalism as
“ the doctrine which advocates crime, sabotage, violence, or unlaw
ful methods of terrorism as a means o f accomplishing industrial or
political reform.” Membership in an organization which teaches
or advocates the doctrine of criminal syndicalism is a felony.

SABOTAGE

298

It was stipulated that the evidence showed that Moore was a mem
ber of the I. W. W., and the proof that this organization teaches
the doctrine o f criminal syndicalism consisted in certain exhibits,
the only one o f importance being a leaflet describing “ three kinds
of strikes.” The leaflet set forth the ordinary industrial strike as
one method, the intermittent strike—in which the same organization
selects new crews to take the place of the strikers, the new crew to
strike presently for the same purpose, until the end is gained—as
another, and the “ strike on the job ” as the third. The “ strike on
the jo b ” is described as having for its purpose that “ the entire
crew or as many of the crew as are organized to cooperate to do just
as little work as they can possibly get by with.” This system is
elaborated, but the gist of the matter is stated in the sentence quoted.
On one side of the leaflet is the well-known preamble o f the I. W. W.,
beginning “ The working class and the employing class have nothing
in common,” and going on to indicate that the purpose of the or
ganization is the “ abolition o f the wage system ” and “ to do away
with capitalism.”
Judge Dunn, who delivered the opinion of the supreme court,
stated that:
The concrete question to be answered is whether slowing down on
the job, or doing the smallest amount of work possible, is sabotage
within the meaning of our statute, the advocacy o f which for the
urposes denounced by the statute constitutes criminal syndicalism.
f so, then we think it is not to be doubted that this leaflet teaches
the doctrine o f criminal syndicalism by teaching and advocating
sabotage.
The definitions of sabotage some of which include “ slack work”
or “ loitering at work,” were then discussed. However, the more
common usage involves actual malicious waste or destruction of prop
erty or poor or scamped work. In view of the uncertainty o f the pur
pose of the legislature in adopting the word without full definition,
the court was unable to give the proper meaning to the term, so that
it “ must follow the rule recognized as to criminal offenses, which is
that before an act may be held by the courts to be a crime it must
clearly and unmistakably appear that the legislature has made it so.”
There is no such thing in the criminal law as a constructive of
fense. “An offense is not punishable unless it falls within the con
demnation of some penal statute. I f it is not plainly and specifically
within the act, it is not against law, and no conviction can be had
thereunder. Its provisions are not to be extended by implication,
and the act charged as an offense must be unmistakably within the
letter as well as the spirit of the law.”
It was not to be implied that the legislature had not the power
“ to make criminal the teaching of such reprehensible practice as
striking on the job, or to adopt as the meaning of sabotage the most

294

DECISIONS OP COURTS AFFECTING LABOR

comprehensive definition given by dictionaries or cyclopedias,” the
only question being whether or not this statute had done so. In the
absence o f definite and exact classification, inferences could not be
drawn. “ Before the petitioner can legally be held for trial before
the district court, it must appear that the acts shown by the record
and on which the State relies constitute a crime.5’
On this view, “ no reasonable or probable cause was shown for
holding the petitioner,55 and he was ordered discharged, two judges
dissenting.
S trike I nsurance—Loss— C omputation
Printing & Publishing Go.

P rofits—Standard

B rothw ell , Court o f A ppeals o f M a r y

land (.June 25, 1923 ), 122 Atlantic R eporter , page 195 .—James

C.
Brothwell et al. were receivers of the Employers5 Mutual Insurance
& Service Co. of Maryland, which had been*incorporated to write
strike insurance under the laws o f the State. The company began
business August, 1920, but operated less than a year on account of
serious and extensive labor difficulties occurring all over the United
States and particularly in the printing industry. Being a mutual
company its policyholders and members were subject to an assess
ment equal to the deposit premium if such assessment was required
for the payment of losses. Such assessments were made on account
of the losses and numerous claims, but only a small part of the
policy holders paid their assessment, either in whole or in part, the
outstanding amount being approximately $500,000. To prevent fur
ther losses the outstanding policies were canceled. As a result claims
were filed for unearned premiums claimed to be due by reason of
such cancellation. While this condition prevailed a receivership
was established with assets of $500,000 in cash and $1,000,000 owing
by policyholders and insurance companies. Against this sum claims
were filed aggregating about $7,000,000. In determining the claims
it was necessary to construe the provisions of the policy as to the
liability assumed by the insurance contract.
The indemnity proposed was in p a rt/4against direct, actual loss
of average daily fixed charges and/or net profits caused by a strike
of all or part of the employees of the assured,” with certain quali
fications as to duration and amount. The first question considered
was “ how is the actual loss of average daily fixed charges and/or
net profits insured against to be ascertained?55 The necessity of
determining net profits called for the establishment of some period
of time during which they could be considered. No unvarying gen
eral rule was said to be possible of establishment because of varying
circumstances and conditions. The general conditions of the trade
and the influence o f the strike both affected the net profits, and in

STRIKE INSURANCE

295

the face of conflicting contentions the court rejected the periods fixed
upon by both parties, and selected a term of one year beginning
May 1, 1920, and ending April 30, 1921, the latter date immediately
preceding the strike.
The court of appeals found that the trial court “ in selecting the
period mentioned largely avoided the apprehended unfair result
which the parties said would follow if the period suggested by the
other were adopted.” The four months immediately preceding the
strike showed too low an average of daily profits on account of
abnormal conditions, while to have made use of the 16 months’
period claimed by the employer would have embraced a term of
abnormally high profits. The court approved, therefore, the selec
tion of a period embracing the varying conditions so as to produce
a fair average rating.
The next point was as to what should properly be construed as
fixed charges, 80 per cent of which would be compensated under the
insurance policy while loss in excess of such 80 per cent continues.
Here again there was conflict of views, though necessarily certain
items were mutually selected. Thus rent, office and officers’ salaries,
taxes, heat, light, and insurance were found in both schedules. The
receivers’ schedule had certain other items, such as power, salesmen’s
salaries, and depreciation, while -the claimant’s schedule embraced
interest, miscellaneous expenses, traveling expenses, etc., not found
in the receivers’ schedule.
“ Fixed charges” were defined by an authority as being those
“ which spread over the entire establishment, such as rent, insurance,
taxes, mortgage interest, depreciation, and the like,” arising out of
the existence of the plant, and continuing whether or not the business
is being operated. But one case was cited or found after diligent
research in which the courts had sought to define the term, and it
was said to be “ those expenses necessarily incurred in maintaining
the organization in such a state of efficiency as would enable it to
resume normal production without substantial delay after the strike
was ended, or as the strike might be broken by a gradual return of
employees.” In the absence of a well-defined meaning, the court
found it necessary to take into consideration the object and inten
tion of the parties by whom the term was employed. As to the
salaried employees the court said:
The insured, no doubt, had in its employment, at the time of the
strike, officers and employees whose term of office or employment was
of much longer duration than the usual period of the strike, and
whose services the insured could not have dispensed with without
loss to it, and without rendering it unable to resume promptly normal
production at the end of the strike, or to continue the business during
the period o f partial production.

296

DECISIONS OP COURTS AFFECTING LABOR

The salaries o f such officials and employees should, we think, be\
included in the “ fixed charges55provided for in the policy. But the +
compensation paid to other employees who were hired by the day,
or the week, or by piecework, whose services went into the actual
production of the article produced or manufactured, and whose
services could have been dispensed with without impairing the effi
ciency o f the organization by rendering it unable to resume normal
production without substantial delay, or to continue the business
through the period of partial production, should not, we think, be
included among the “ fixed charges.”
Depreciation would have to be limited to depreciation of the plant ;
and not to the value of manufactured articles. The term o f lia
bility under the policy is fixed by three contingencies: (1) After
the strike has lasted 300 working days within the time for which the
policy was issued; (2) when the maximum amount named in the
policy as payable thereunder has been paid to the insured; (3) when
the average daily production has been restored to 80 per cent o f the
average daily normal production. O f these three provisions o f the
policy only the third was involved, and this called for a decision
o f the question as to how the average daily normal production could
be ascertained.
The court found that “ the answer to this question is that such
average daily production may be ascertained by the method that
we have suggested should be employed in estimating the average
daily net profits during the same period; the period of comparison
to be the same.” The liability o f the insurer would terminate when
the resumption of business had been sufficiently stable to “ indicate
that the strike in effect was abating, and that the business o f the
company would not again be diminished because o f it.” The policy
did not fix any time, but the court below had assumed that a 30-day
period was sufficient, and this the court of appeals approved, saying
that upon the facts this was long enough to indicate that there was
a more or less permanent revival o f business without the probability
of subsequent diminution on account of the strike.
Another question raised was as to the right o f the policyholders
against whom assessment had been made to set off against such
assessment any claims that they may have against the company.
The court found that no such right existed, saying:
The fund, o f which the assessment against the claimant when col
lected will iorm a part, is a common fund, in which the claimant
has only a qualified interest in common with other policyholders.
The fund, or no part of it, is subject to its control, but is to be
paid ratably to those policyholders who have suffered loss within
the meaning o f their policies. To allow the claimant to set off a
loss against what it is owing upon its assessment when others have
wholly or partially paid theirs into a fund which in part will be
applied to the payment o f the claimant’s claim in whole or in part,

STRIKE INSURANCE

297

would not only be very unjust to other policyholders, but it would
be giving him an unwarranted preference. We therefore agree with
the court below, that such set-off should not be allowed to the
claimant.
The final question for consideration was as to the status of the
unearned or returned premium, i. e., whether it should be added to
the claim of the policy or should remain in the fund in which it was
placed and be applied to the payment o f the losses suffered by the
policyholders generally.
The court below held that the returned premiums, as it called
them, could be added to the claim under the policy. In this finding
we think the court was in error, as in our opinion they should re
main in the fund and be applied to the payment of the claims of
the policyholders suffering loss under their policies.
The case was before the court of appeals on appeal and cross
appeal from Circuit Court No. 2 of Baltimore City. In accordance
with the finding above indicated, the order appealed from was
affirmed in part and reversed in part, and the case remanded that
the auditor might be directed to distribute the funds in accordance
with the findings made.
S trike I nsurance—Loss— I nability to M ake P rofits U nder
N ew O rganization— F le e t-M c G w le y Go. v. Brothw ell , Court o f A p
peals o f Maryland (June 25, 1923), 122 Atlantic R eporter, page
202.—This

case arose out of the same set of circumstances as that of
the Standard Printing & Publishing Co., above, and most of the
points raised were settled on the basis of the consideration given that
case. There was, however, a distinct question involved in the present
case which relates to a contract made by the claimant in the case
for the publication of the Manufacturers’ Record. This had been
printed by the Fleet-McGinley Co. for a number of years, “ with
much profit to the company,” but when the strike arose it was com
pelled to discontinue the publication for some time, but about
August 1, 1921, again secured the work. The company reported
that it had a sufficient number of men to do the work, but its costs
were more than formerly because of the inefficiency of the men and
their inability to do the work in the same time it had been done
by former workmen to whom it had paid the same wages. This,
of course, reduced its profits, and they made a claim under their
policy for such loss. This claim was denied, Judge Pattison, speak
ing for the court, saying:
The company, as we have said, had been doing this^ work for a
long time and had been making a good profit in doing it. It knew,
when it took the work back, that conditions were not as favorable
as they had been, yet it again resumed the work at a price at which
they knew, or should have known, there was no profit. It may have

DECISIONS OF COURTS AFFECTING LABOR

298

been that it did not wish to lose the job, and was apprehensive
about it, but it was not for that reason justified in doing the work
at a losing price, expecting to put the burden of the loss upon the
insurance company under the supposed terms o f the policy.
The loss, it would seem, resulted from the misguided judgment o f
the company, or from its willingness to take the work at a loss,
because of the apprehension that it might go elsewhere. I f not a
consequential loss, against which the insured was not indemnified
by the express provisions of the policy, it was not, as claimed by
the insured, a ‘‘ fixed charge” under any proper definition o f that
term.
S unday L abor— S erving M eals— C onstruction

O rdinance—

( Decern ordinance
of the town of Landis, N. C., prohibited the keeping open of any
place o f business for the sale of goods, wares, or merchandise on the
Lord’s Day, commonly known as Sunday. The order was said to
“ include stores, restaurants and other places of business from which
goods, wares or merchandise are sold.” Cases of absolute emergency
or charity were excepted.
L. J. Blackwelder and Roy Deal were proprietors of a restaurant,
which they opened for a part o f the day, “ at stated hours reasonably
adapted to the sale and service of regular meals.” A midday meal
was served at a stipulated price on Sunday, May 27, 1923, where
upon prosecution was brought, resulting in a dismissal of the case.
The State appealed, but the supreme court affirmed the judgment
of the court below, classing the service rendered as a work of neces
sity. This exception did not exist in the ordinance in question, but
it is a usual one in regulations affecting Sunday labor, and among
such exceptions is generally listed the keeping open of hotels, restau
rants, and dining rooms. (McAfee v. Com., 173 Ky. 83, !90 S. W.
671, L. R. A. 1917C, 377, and authorities there collected.)
The judgment dismissing the suit was therefore affirmed.

State

Blackwelder, Suprem e Court o f N orth Carolina

her 5, 1923), 120 Southeastern R eporter, page 196 .—An

S unday L abor— W orks of N ecessity— M anufacture of C arbon
B lack — Natural Gas Products C o . v. Thurman, C ourt o f A ppeals
o f K en tu ck y ( October 17, 1 9 2 4 ), 265 Southwestern R eporter, page
475 .—This

was a proceeding by the Natural Gas Products Co. to
secure a writ of prohibition against Judge I. H. Thurman to pre
vent his entertaining actions against the company for alleged viola
tions of the Sunday rest law. Section 1321 of the Kentucky Statutes
provides for a suspension of ordinary labor and business operations,
works o f necessity being excepted.

SUNDAY LABOR

299

The company is engaged in the manufacture o f a product from
natural gas known as “ carbon black,” which is used in various com
mercial articles, no effectual substitute being known for this sub
stance. Judge Thurman had found against the company and
assessed the maximum fine, and it was alleged that he had announced
the intention to try 23 other indictments for similar offenses, inflict
ing the maximum penalty in each case. It was to secure a restraint
o f these proceedings that this action was taken.
Judge Thomas, speaking for the court of appeals, found that the
methods of manufacture used made it “ imperatively necessary that
the plant should be kept in continuous operation.” The cooling of
the equipment damages the value of the product not only for the
time but for two or three days after renewing operations. The evi
dence of witnesses to this effect indicated the “ necessity ” o f unin
terrupted process if the product was to have commercial value. As
to the use of the word “ necessity” in the statutes, Judge Thomas
said:
In construing and applying the word “ necessity” in such statutes,
it is not meant “ a physical and absolute necessity,” and “ the question
must be determined according to the particular circumstances of
each case, having regard also to the changing conditions o f civiliza
tion.”
An earlier decision was also referred to in which it was said that
necessity “ need not be a physical necessity or an imperative or over
powering necessity. It need be only a reasonable necessity. * * *
It must be something that not to do would work severe hardship or
loss or unusual discomfort or inconvenience either to the individual
who does the thing complained of or to the person or persons for
whom he does it.” (McAfee v. Commonwealth, 173 Ky. 83, 190
S. W. 671.)
Applying this principle to the case in hand it was found that
severe hardship or loss would be incurred by stopping operations.
The petition for a writ o f prohibition was therefore sustained.

S unday L abor— W
son

v. State,

orks of

N ecessity— O perating G arage—John

Court o f Criminal A ppeals o f Texas (January 1 0 ,1 9 2 8 ),

21f6 Southwestern R eporter, page 1033 .—X .

Y. Z. Johnson was con
victed of violating the Sunday law of Texas, and appealed from
the judgment to the Court of Criminal Appeals of Texas. It ap
peared that Johnson kept his garage open and sold gasoline on Sun
day. He was arrested and at the trial he defended upon the ground
that he sold only to such persons as*were in need o f it in order that
they might reach their destination. He stated at the trial that he

DECISIONS OP COURTS AFFECTING LABOR

300

had been informed by a prosecuting officer that under the circum
stances it was not unlawful to make the sale. Upon this informa
tion he believed that he was not violating the law. It also appeared
that on week days he sold gasoline to from 50 to 100 cars, while on
Sunday he sold to only from 8 to 12 cars. The Penal Code of the
State of Texas which makes it unlawful for any merchant to sell
his wares or to permit his place to remain open for business on Sun
day excepts from its provisions persons engaged in certain classes
of business, but the exemption did not include the owner of a garage,
nor name gasoline as an article which might be sold.
The Court of Criminal Appeals affirmed the judgment, quoting
from Cyc., volume 37, page 548, as follow s: “ Where the statute con
tains no exceptions, the nature o f the business of a defendant is im
material, and the fact that it is a work of necessity, or charity, or
that it is not unlawful in itself, constitutes no defense. In con
struing the statutory exceptions, the ordinary signification of the
words used controls.”
W
al.

ages— A ssignment — C onstitutionality of

S tatute— W e st et

Jefferson W oolen M ills et al., Suprem e Court o f Tennessee

(D ecem ber 1 3 ,1 9 2 2 ) , 21$ Southwestern R eporter, page 51$.—Chap
ter 21 of the Acts of 1903 of the State of Tennessee, as amended by
chapter 453 of the Acts of 1903 and as carried into Shannon’s Code
as section 4341al, reads as follow s:
No action shall be brought whereby to charge any employer upon
any assignment by any clerk, servant, or employee of such em
ployer to any person, persons, firm, or corporation of any wages or
salaries unearned at the time of such assignment, unless such assign
ment at the time o f the execution thereof shall have been assented
to in writing by such employer.
On December 2, 1919, Kay H. Lord while in the employ of the
Jefferson Woolen Mills, on a salary of $200 per month, made an
assignment of his wages to several persons, amounting in all to
nearly $2,000. The assignment was presented to one of the officers
of the Jefferson Woolen Mills but was not assented to by him either
verbally or in writing. As no money was due Lord at the time the
instrument was an attempt to assign his future earnings. It ap
peared that the wife of Lord was about to institute a suit against
him for alimony and that that was the reason the instrument was
made. It appeared further that he compromised with his wife by
paying her $1,000, and about 17 days after the execution of the
assignment he undertook to annul it. The company continued to
pay him his salary more than two years after the making of the
instrument, when two of the assignees brought suit against the em-

301

W A GES

pioyer, the Jefferson Woolen Mills, to recover the sums which the in
strument directed the company to pay them. The company set up
the defense that it had not assented to the assignment in writing
as the State law provided. The assignees then contended that the
statute was unconstitutional because it contravened section 20, article
1, of the State constitution which provided that “ no retrospective
law, or law impairing the obligations of contracts, shall be made.”
Judgment was rendered in favor of the company and the assignees
took the case to the supreme court. That court held the statute in
question constitutional, saying that it was not retrospective, and as
it dealt solely with contracts to be made in the future, it impaired
no obligations. It therefore affirmed the action of the lower court,
referring to the cases of Massie v. Cessna (111.), 88 N. E. 152, 28
L. R. A. (N. S.) 1108, and Mutual Loan Co. v. Martell (Mass.) 43
L. R. A. (N. S.) 746, 222 U. S. 225, and Heller v. Lutz, 254 Mo. 704,
164 S. W. 123, L. R. A. 1915B, 191. As to the contention of the
assignees that there was a distinction between wages and salaries,
the court said that it was the intention of the State legislature in
enacting the statute to protect those who worked for a fixed sum
per week or per month, whether it be denominated “ wages” or
“ salary,” and the act was sustained as a valid exercise of the police
power of the State.
W

ages— A ssignment — C onstitutionality

U nearned W

ages— W ig h t

S tatute— E arned

Baltim ore <& Ohio Railroad Go .,
Court o f Appeals o f M aryland (June 7, 192If), 125 Atlantic R e

and

porter, page 881.—Edward

L. Wright and another, trading as the
Baltimore Finance Co., purchased from William L. Miller, an em
ployee of the Baltimore & Ohio Railroad Co., his claim o f $21.50
in earned wages against the railroad company. Miller assigned the
claim to them and received $20 in full payment. The company
was notified of the assignment but refused to recognize it, and in
formed the plaintiffs that it would pay Miller the whole amount due
him as though the assignment had not been made. A bill of com
plaint was filed in the Circuit Court of Baltimore and from a judg
ment for the company an appeal was taken. The company con
tended that the assignment was not made in accordance with the
requirements of sections 11 to 17 of article 8, Code of Public Gen
eral Laws of Maryland, and was consequently void. The only
question considered by the court of appeals was as to the con
stitutionality of the statute in question. The court first held that
the act was remedial in character, and that its apparent purpose was
to “ throw around transactions such as that involved in this case such

302

DECISIONS OF COURTS AFFECTING LABOR

safeguards as will protect the wage earner who may be a party to
them from the greed and the rapacity o f unscrupulous persons, who
might exploit his necessities and misfortunes to his loss and their
profit. That purpose is certainly within the police power o f the
State.” The sections of the statute referred to required that as
signments of wages be acknowledged by the assignor and his wife
and entered on the books of a justice o f the peace, that a copy be
served on the employer, that proof of service be by employer’s ad
mission indorsed on certificate, and that the assignor make an oath
that he has not paid and will not pay more than 6 per cent interest.
The first concrete objection to the act was that “ it deprives the ap
pellants of their property without due process of law.” The court
said, to this objection:
But the force of that objection is not apparent. The act took
from the appellants no property, unless the business of buying with
out regulation or restraint wages at a discount is property. And
while, under the facts of this case, we know of no definition of
“ property ” which could include that privilege, yet if that privilege
could be considered property the appellants were not deprived o f it
without due process of law, whether we assume that the word
“ property” relates to the particular assignment involved in this
case or to the privilege of buying such assignments generally as a
business, because there is nothing in the act which purports to affect
rights acquired in transactions prior to its passage, and all trans
actions after its passage were carried on with knowledge and notice
of its existence and subject to its terms.
These principles are in accord with the general trend of judicial
authority and may be regarded as established; for, while the right
to pursue any lawful occupation or calling is generally recognized as
property within the “ due process” clause of the Federal Constitu
tion, yet, on the other hand, the right of the State to regulate such
a business, when its unregulated operation may injuriously affect
the welfare of others is equally well settled.
The business of money lending and of buying assignments of
wages was considered by the court in its nature as appropriate for
State regulation under its police power. To the contention that the
regulations of the statute “ unreasonably restrain the freedom of
contract, guaranteed by the 6due-process ’ clause o f the Federal
Constitution,” the court said:
While it is true as a general rule that all competent persons are
free to make any contracts they please which are not contrary to
public policy or positive law, that rule is subject to the qualification
that the State, in the exercise of its police power, and in the interest
of the public welfare, may regulate and limit that right.
The requirements of the statute under consideration was held by
the court as not being unreasonable as respects due process.

303

WAGES

Some o f the cases cited showed a distinction between statutes
which deal with earned and those which relate to unearned wages.
The court was of the opinion that—
There is no logical reason for such a distinction, because the right
to earn wages is just as much property, and just as much within the
protection of the “ due-process ” clause of the Federal Constitution
as earned wages.
The decree was therefore affirmed.
W

ages— B onus— P remiums — Johnson

F u ller & Johnson M anu

facturing Go ., Suprem e C ourt o f W isconsin (F ebru ary 1 2 ,1 9 2 4 ) ? 1 ^
N orthw estern R ep orter , page 241 .—The

defendant is a corporation
engaged in the manufacture of internal-combustion engines, and at
the time of the difficulties culminating in the present action em
ployed a large amount of skilled and unskilled labor. In the spring
o f 1918 the employees of the defendant became unionized and ap
pointed a committee to meet with the defendant with a view to ob
taining a classification of employees similar to that o f the Great
Lakes ship yards, an eight-hour day, with extra pay for overtime
and double pay for Sundays and certain holidays, additional com
pensation for night shifts, collective bargaining, and abolition of the
bonus and premium system then in force. The employees having
threatened to strike, the War Labor Board intervened, and through
its efforts the employer and employees entered into an arbitration
agreement by which both parties agreed to submit the matters in
dispute to the board, its decision to be retroactive to August 1, 1918.
The board met and under an award provided that the employees
should receive back pay and certain other considerations. The dis
pute then arose as to “ whether the basis of the computation should
include not only the hourly rate paid on August 1, but in addition
thereto any premium or bonus then paid,” or “ whether the basis
consists o f the flat hourly rate paid August 1, exclusive of bonus
or premiums.” The trial court found that the plaintiff was entitled
to recover for the amount earned between August 1,1918, and April
1, 1919, “ based upon the wages paid at the beginning of such
period, and taking into consideration any increases subsequently
granted, and computed upon the provision o f the award establishing
an eight-hour day” ; and that “ the defendant was not entitled to
any credits for the amounts paid as bonuses or premiums.” Judg
ment was entered and the defendant appealed.
The supreme court took a different view from that o f the trial
court, saying:
Where an employer pays a bonus he has in view a benefit accruing
to him, consisting of an inducement to continuous service and of
44915°—25---- 21

DECISIONS OP COURTS AFFECTING LABOR

304

loyalty on the part o f the employee. The employee does not receive
the bonus as a gift, as the literal meaning of the term would indi
cate, but, on the contrary, as a part o f his wage.
The award definitely fixed the basis upon which the back pay was
to be determined and limited the computation to the flat hourly
wage received. A telegram from the labor board also expressly
excluded the bonus from consideration in determining the amount
o f back pay; In view o f these facts—
We are forced to the inevitable conclusion that the defendant is
entitled to credit upon the amount o f back pay ascertained, to the
extent of the actual amount paid by way of a bonus. This conclu
sion becomes all the more certain in view of the recitals o f the War
Labor Board where it is said, “ No piecework or bonus payments are
made, although the former bonus system was formerly operative.”
The bonuses, therefore, having been paid in consideration o f serv
ices actually rendered by the employee, the amount paid as such
becomes a proper item of credit on the part of the employer.
With regard to the premium system the court took the opposite
view. “ No obligation rested upon any employee, under his contract,
to earn a premium.” It was not given to “ the ordinary skillful and
diligent employee,” but if the employee exerted himself and worked
faster than the average, performing extraordinary services, he cre
ated something o f value for his employer and he himself received
additional reward.*
To permit the employer to offset as against back pay under the
award the amount of premiums actually earned and paid would in
effect operate as a fraud on the employee. The efforts o f the em
ployee were expressly stimulated by the inducement under this sys
tem held out by the employer, and the employer can not be permitted
to claim that tne amount is a proper offset. The trial court held that
the amount accruing under the award for back pay to the employee
can not be. offset by the amount the employer paid under the pre
mium system, and we fully agree with his conclusions in that respect.
The judgment of the lower court was therefore reversed and the
* cause was remanded with directions to arrive at the amount due the
plaintiff as assignee of the three claims, and when the amount should
have been ascertained judgment was to be entered in the lower
court to that effect.
W

ages—

C ontract

E mployment — “ S traight T im e ”— L in d sey

L ee, C ourt o f C ivil A p p ea ls o f Texas (F ebru a ry 10 , 1923 ), 251

Southw estern R ep orter , pa ge 562 .—H.

M. Lee was employed by
R. W. Lindsey to assist in drilling an oil well. Lee worked 20 days
between February 7 and April 6, 1921, and claimed 58 days of
service at $15 a day straight time. Lindsey contended that he was
hired by the day and was entitled to only 20 days’ pay. In an actior

WAGES

305

in the district court Lee received judgment for straight time and
the defendant Lindsey appealed.
The only issue in the case was as to the contract o f employment.
The plaintiff, while testifying in his own behalf, stated in response
to a question of his counsel that during the time of his employment
he could have “ secured work of the same kind and character from
other contractors in the field there.” The defendant objected to this
testimony on the ground that it was immaterial, the question being
“ whether or not plaintiff had a contract to work for the defendant
at straight time.”
The court, in looking over the record, said:
It will be observed that the answer of the witness did not contain
the specific statement that he could have secured work from others
at straight time; yet we are of the opinion that it is likely that the
jury so understood the answer. At all events, we are of the opinion
that the court erred in overruling the objection, since it was upon
an issue foreign to the case.
Whether or not plaintiff in the present suit could have secured em
ployment from others at the time for which he claimed to be in the
service of defendant and upon what terms was an issue entirely
collateral and foreign to the issue presented in the case, and to
admit such proof would open the door for the introduction o f per
haps much testimony involving the question of ability of those to
pay the contract price, the ability of plaintiff to perform the services,
how long the employment would have continued, etc., which would
have clouded the issue on trial before the jury, to say nothing of the
probable injurious consequences to the defense urged.
For the error committed and also for the admission o f new evi
dence which was not available during the trial, the judgment was
reversed.
W

ages—

C ontract U nder D uress— S eamen — $ hartley v. United

States , U nited States Circuit C ourt o f A p p ea ls , Second Circuit
(.N ovem ber J, 1923 ), 294 Federal R ep orter , page 502 .—Joseph F.

Shanley and others sued in admiralty to recover wages alleged to be
due them under contract made at Accra, West Africa. The crew had
shipped at Philadelphia, August 28, 1919, for a term not exceeding
six calendar months, for a trip by steamer, the L ib erty Land , destined
to foreign ports and return to the final port of discharge in the
United States, north o f Cape Hatteras.
The vessel was a new one, and following a required trial trip was
found to be in need of repairs. These were promptly made and the
boat found seaworthy, leaving New York September 23 and arriving
on the western coast o f Africa in October. While still on the coast
the boat suffered injury through an error of one o f the crew, necessi
tating repairs which required six weeks for accomplishment. Later

306

DECISIONS OF COURTS AFFECTING LABOR

other repairs became necessary, and upon the completion thereof
the vessel proceeded to Accra for cargo. While at this port the six
months named in the shipping articles expired, and the entire crew
except the officers refused to continue under the old contract, de
manding their wages and free transportation to the United States.
A t a meeting o f the crew held on February 28, the date the contract
expired, most of the members decided to demand double pay as the
price o f handling the ship back to America. “ There is testimony
that there were no threats made, but that must be construed as mean
ing merely that violent or unpleasant language was not used. The
conduct and demands of the crew were equivalent to a threat.”
There was no American consul at Accra, so the master of the
vessel sent for the British supervisor of customs. He advised the
crew to return to work, but they refused to do so and demanded
either double pay or to be sent home as passengers. “ In these cir
cumstances the master promised to pay the libelants double wages,
and informed them that the matter would be settled by the United
States shipping commissioner in the final port of discharge.” To
meet the demands of the men the master signed and delivered a
memorandum, witnessed by the British supervisor, to the effect that
he had agreed to pay double wages from the time the former con
tract expired until arrival at the final port of discharge in the
United States. “ In his log the master noted that this promise
was granted ‘ under protest,’ and we have no doubt of the truth of
the entry thus made.”
The vessel then sailed promptly and arrived in New York about
five weeks after the lapse o f the six months’ contract. The men were
paid the ordinary rate o f wages and discharged before the shipping
commissioner. The men were told that the Shipping Board, which
operated the vessel, had refused to grant their demands for the addi
tional pay, whereupon this proceeding was brought. The court
below had granted the additional allowance, but on appeal the cir
cuit court of appeals reversed this judgment. Both courts found
that the new contract had been made under duress, in view of which
Judge Mayer, speaking for the circuit court of appeals, said, “ the
legal result is that there was no new contract, and in order to deter
mine the rights of the parties we must turn to the original shipping
articles. The delay occasioned to the vessel was not due to any fault
of the master or the owner. The events which caused the delay were
o f a nature incident to navigation, over which, on the evidence in this
case, neither the master nor the owner had control. One delay was
due to the error o f a seaman and the other to an unexpected leaking
in an article of the ship’s machinery.” “ The fundamental principle
involved” was expressed in a well-known rule which reads: “ Sea

WAGES

307

men are bound to serve until the voyage ends in the port of destina
tion, unless there has been a breach of the contract by the master as
to the time of the voyage or in some other material particular.”
(Hamilton v . United States (C. C. A .), 268 Fed. 15.)
The master had used his utmost diligence to minimize the extra
time consumed by the ship, and the delays were not due to any fault
of the vessel or the owner or the master. “ The result is that the
contract embodied in the shipping articles remained unimpaired
until the vessel reached New York, the final port of discharge.”

W ages— H ours of L abor— P ublic W orks— O vertime— P ower of
S tate— T u rn ey v. J . H Tillm an Go ., Suprem e C ourt o f O regon

>#05 Pacific R ep orter, page 933 .—Carl F. Tur
ney brought an action against the defendant company to recover the
value of services rendered, and also on an assigned claim o f one
Smith for the recovery for like services. The defendant was engaged
in work under a State contract and, in accordance with the State
law, there was a provision in the contract that fixed eight hours as a
day’s work. The plaintiff contended that he worked 643 hours over
time and that Smith worked 260 hours overtime, for which work
they were not paid the overtime rate provided for. The statute
(Laws, sec. 6721) provided for double pay for work in excess of
eight hours a day. The plaintiff claimed $643 on his own claim and
$260 on the assigned claim. The defendant contended that it had
made a full settlement with the plaintiff and objected to the intro
duction of any testimony, for the reason “ that the facts stated in the
complaint do not constitute a cause of action and only recite the
commission of a crime against the laws of the State o f Oregon.”
The court sustained the objection and the plaintiff appealed.
Section 6722 o f the Oregon Laws provide that eight hours shall
constitute a day’s work where the State or a subdivision is the em
ployer. Section 6723 provides that a violation on the part o f con
tractors, etc., “ shall be deemed a misdemeanor ” and on conviction
the offender shall be fined, imprisoned, or both.
The supreme court on review said:
It is settled that this State has the power to prescribe for itself
such rules of conduct as it deems best suited for the particular work
in which it is engaged. It may dictate rules for its own guidance
which might be intolerable if applied to private persons in the prose
cution of their private activities.
It was pointed out that the act in question “ was passed to dis
courage employers in arbitrarily working laborers overtime on public
works under penalty of discharge if objection is made to so work
{S eptem ber 2 3 ,1 9 2 4 )

308

DECISIONS OF COURTS AFFECTING LABOR

ing.” It was obviously to “ preserve the health and efficiency of
laborers on public works, and also to provide employment in the
event o f any ‘ necessity, emergency, or public policy ’ in case o f such
necessity when 6other labor o f like skill and efficiency which has not
been employed full time is available.’ ” There was a provision in
the statute providing that overtime could be required where the
public necessity demanded it; however, the rate of pay was doubled
for such overtime, evidently “ to check an employer requiring such
laborers to work overtime.”
There was no allegation that the defendant violated the statute
in question; there was also no evidence that there was no public
necessity, and the court considered the defendant innocent until
proven guilty. As to the wisdom o f the statute the supreme court
said:
We have nothing to do with the question o f the wisdom or un
wisdom of the enactment. It is for the court to carry out the intent
of the lawmakers as expressed in the statute. The remedy, if the
law in practical affairs is not salutary, is to be found in the law
making forum o f the State.
The supreme court held, therefore, that the lower court “ erred in
excluding the testimony o f the plaintiff, on account o f the insuffi
ciency o f the complaint.”
The judgment was therefore reversed and the cause remanded for
further proceedings.
W ages— M in im u m

age

L a w — C onstitutionality — F old in g

Furniture W o rk s (In c.) v. Industrial Com m ission o f W iscon sin ,
U nited States D istrict C ourt, W estern D istrict o f W isconsin (A u
gust 1 5 , 19&b), 300 F ederal R ep orter, page 991.—The plaintiff com

pany, employing labor in the State o f Wisconsin, alleged facts which
would bring it within the scope and operation o f the minimum wage
law of that State and attacked the constitutionality o f the act so far
as it relates to the determination of a minimum wage for adult
females. The order under the law fixed a minimum o f 25 cents per
hour, while the plaintiff “ was able to employ adult women, not
physically or mentally handicapped,” at a lower rate. The case
was argued before three judges, who found that the sole question
was the constitutionality o f the act, which was said to be determined
by the decision in the case Adkins v . Children’s Hospital (261 U. S.
525 ; 48 Sup. Ct. 394; see Bui. No. 344, p. 249), if applicable; and a
careful comparison o f the two statutes “ has failed to bring out any
vital, or in fact substantial, difference between them,” so that the
court was constrained to accept the law as announced in the majority

WAGES

309

decision in the Adkins case. An injunctional order affecting women
only was therefore directed to issue.
It may be noted further that this order was issued solely at the
motion and for the benefit of the plaintiff company.

W ages— M in im u m W age L aw — P ublication of P roceedings—
D u t y of N ewspapers— C onstitutionality of S tatute—Com m on
w ealth

B oston Transcript C o S u p r e m e Judicial C ourt o f M asses

chusetts (June l h 1 9 0 4 ), 144 N ortheastern R eporter , page IfiO.—

The minimum wage law o f Massachusetts is not compulsory in re
spect to the enforcement of the rate fixed by the minimum wage
commission. However, it does undertake to require newspapers to
publish the names of employers who decline to accept the standards
prescribed by the commission, failure to publish the lists furnished
entailing a fine of not less than $100. There is a provision of the act
declaring nonliability of the commission and of the newspaper pub
lishers for publishing the names of employers in the absence of
“ some willful misrepresentation.”
The Boston Transcript Co. declined to accept for publication an
advertisement offered by the minimum wage commission stating that
a certain employer was not complying with the order fixing specified
wages for women. The question was before the supreme court on the
point of constitutionality o f the statute making publication com
pulsory and subjecting to penalty for noncompliance. This was
answered adversely under that court’s findings.
The statute made publication by any newspaper mandatory “at
its regular rates for the space taken,” the publisher having no
option, though “ it may not be for his business advantage so to print
it. He may not want to print it at any price. His preferences,
desires, or financial advantage or detriment are entitled to no con
sideration under the statute. This class of advertising may be
peculiarly onerous. It may be especially disagreeable from a busi
ness standpoint” ; but under the statute none of these conditions
“ or others of kindred nature can be weighed.” He may suffer
practical loss, and the protection proposed against liability for libel
“ is of uncertain nature.” How far the legislature can go in depriv
ing “ one altogether of his right of action against the publisher of
a libel may well be open to doubt.” Without determining the
actual effectiveness of the section professing to shield the publisher
from liability, “ it is at least plain that such publisher may be in
volved in expensive litigation which he would not invite or risk
if left to his own volition. The power to impose contracts involving

310

DECISIONS OP COURTS AFFECTING LABOR

consequences of that kind can not in any event be rested upon con
siderations the exigent nature of which is not plain.”
The right o f the publisher to contract about his own affairs is
obviously curtailed. Freedom of contract is protected by the Con
stitution as an item of personal liberty and private property. The
Supreme Court has decided in various cases that the legislative
authority to abridge this freedom can be justified only by excep
tional circumstances. Such circumstances do not appear in connec
tion with the statute under consideration. The board might print
its own notices or find an outlet through other newspapers. There is
no apparent combination to prevent publicity or to charge undue
rates. Newspaper publishers and other citizens are subject to rea
sonable legislative regulation, but they stand on no less favorable
ground than the ordinary person.
For this and other reasons it is found impossible to sustain the
statute, though “ the invalidity of this section does not affect the
rest of that chapter, which stands as a valid exercise of legislative
power,” under an earlier decision by this court. A verdict of not
guilty should therefore have been directed, according to the motion
o f the defendant in the court below.

W ages — P aym ent — C ompany S tores — C onstitutionality of
S tatute—P eople v. H eirs o f Serralles , Suprem e C ourt o f P orto R ico
( A p ril 17 , 1 9 2 3 ), 31 P orto R ico R ep orts , page 699.—The defendants,
heirs of J. Serralles, were found guilty of paying wages otherwise
than in cash and were fined therefor. An appeal was taken on the
ground that the statute in the case was unconstitutional and that
the evidence did not support the charges made in the complaint.
Act No. 91, Acts of 1919, directs that “ in all contracts entered
into with laborers their wages shall be paid exclusively in legal ten
der of the United States.” Advance payments in cash may be dis
counted, but stipulations for the payment o f any part o f the wages
otherwise than in cash are null. In the case in hand a laborer was
engaged for agricultural work and earned $2.60 for the week ending
December 15, 1921. From this amount his employer deducted $2.55
for goods bought at a store on the plantation, nominally conducted
by a third person. It was for this charged offense that the penalty
was assessed.
In discussing the constitutionality o f the statute the court reviewed
the history of the British truck act and the American statutes for
bidding the payment o f wages in merchandise at company stores.
The decisions o f State and United States courts were found to sus

WAGES

311

tain the laws as valid legislation, and following this precedent the
law of Porto Rico was sustained, the court saying, in part:
The point, therefore, from the acts charged, is not whether the
laborer has been coerced to purchase goods at the stores maintained
by the defendants by using the ticket of the factory, which was
punched to show the time the laborer had worked and the amount he
had earned.
The law assumes that these acts are voluntary and as such pro
hibits them so as to avoid that fraud may be committed, directly or
indirectly, in reducing the wages so hardly earned by the laborer,
and to reestablish the freedom of contracting by putting the laborer
in a condition to spend his wages where he may obtain the best values
for his money.
As to the question o f evidence, the facts were said to show that
the laborer had worked as alleged and that the ticket received had
been used in the manner indicated, so that the judgment o f the
court below was affirmed, one justice dissenting.

W ages— P a y m e n t — T rading S tamps — C onstitutionality of
S tatute—L aw ton et al. v. Stew art D r y G oods Go. and three other
cases, C ourt o f A ppea ls o f K en tu ck y (January 2 3 ,1 9 2 3 ), 21fl Sou th
w estern R ep orter, page H . —The

Legislature of Kentucky, by chap
ter 131 of the Acts o f 1922, passed an antitrading stamp act which
generally forbade the distribution of trading stamps in Kentucky.
There was a provision in the law against the issue, use, or distribu
tion o f trading stamps for u work, labor, or service rendered or per
formed for reward or compensation by such person.”
Four separate actions were brought to test the validity of the anti
trading stamp act. The act was challenged on the ground that it
was not a valid exercise of the police power. The lower court held
the statute unconstitutional and an appeal was taken to the court of
appeals. That court.affirmed the judgment below.
The reasons of the court were stated by Judge Clay, in part, as
follow s:
Clearly the right o f acquiring property is not confined to cases of
gift or inheritance, but carries with it as a necessary and inseparable
incident the right to engage in any business or occupation that is not
injurious to the public weal. Therefore, when it is sought, as in this
case, not merely to regulate by reasonable restrictions, but absolutely
to prohibit, a particular business, the act can not be sustained, ir,
after the ingenuity o f man has been strained to the utmost, it appears
that all reasons assigned for the exercise of the power are merely
fanciful, and such that if the doctrine be carried to its logical extent,
no business will be safe from legislative interference.
After discussing the various points raised, the court continued:

DECISIONS OF COURTS AFFECTING LABOR

312

But perhaps the main argument in support of the act is that we
must presume that the legislature had before it sufficient facts to
justify its action, and that something must be wrong with the trad
ing stamp or premium system because the legislatures o f so many
States have enacted similar statutes. It is true that every act of
the legislature is presumed to be valid, but the ^presumption is not
conclusive. I f it were, the constitution could not [?] be violated
with impunity. These cases have been well prepared and ably
argued. Every fact, every argument, every reason, every objection,
and every suggestion that could be urged against the trading-stamp
or premium system has been laid before us. Our information,
therefore, is quite as complete as that possessed by our own legisla
ture, or the legislature of any other State. That being true, we can
not shut our eyes and give effect to a mere presumption or assume
the existence o f some “ potential evil55 that astute counsel failed to
mention. After a careful consideration of every phase o f the ques
tion, we see no reason to depart from the rule announced in Sperry
& Hutchinson v . City o f Owensboro, 151 Ky. 389, 151 S. W. 932,
* * * and hold that the act can not be sustained as a lawful
exercise o f the police power.
The judgment o f the court below was accordingly affirmed.

ages— P aym ent — W eekly

ties — C onstitutionality of

P a y D a y — Classification— P enal
S tatute— L ivin g ston v. Susquehanna

OH G o ., Suprem e C ourt o f Kansas (June 9 , 1923 ), 216 Pacific
R ep orter, p . 296.—R. B. Livingston was a foreman driller employed

by the Susquehanna Oil Co. at a wage rate of $200 per month. He
was discharged on the last day of February, 1921, with a month’s
wages due him. Action was brought to recover this amount and a
small item of expense, and a second cause o f action pursued for a
much larger sum, claiming $200 per month as statutory penalty
since his discharge up to the time of bringing the action.
The statute o f 1893 (ch. 187), codified as sections 5873-5879
o f the General Statutes o f 1915, was claimed as the basis for this
suit. This act required “ all private corporations doing business
within this State, except all steam surface railways and corporations
engaged in the production o f farm and dairy products,” to pay the
wage scale prescribed and also a penalty o f 5 per cent per month
as liquidated damages, to continue in force until the time o f final
payment. The amendment of 1919 continued the full wages in force
at the same rate as he had been earning until full payment.
The concluding section provided for the recovery of an attorney’s
fee where action at law was necessary for the collection o f wages
due. This last section had been found unconstitutional in an earlier
case (Anderson v . Oil Co., 106 Kans. 483, 186 Pac. 198) for want
of uniformity and because it violated the fourteenth amendment.

WAGES

313

In the trial court Livingston had recovered judgment for his wages
and expenses, but the second cause of action was not sustained, on
constitutional grounds. The case was then taken to the supreme
court, and that court decided that the act of 1893, supra (as amended,
1919, ch. 221), was unconstitutional, being an unreasonable classifica
tion of corporations, denying them the equal protection of the law,
and therefore violative of the fourteenth amendment. A further
ground o f objection to the act inhered in the penalties prescribed. In
section 3 of the act of 1893 penalties were provided to be paid to a
private person which, under the constitution (art. 6, sec. 6), should
have been paid into the school fund. As to the act of 1893 and its
amendment of 1919, the court said:
They are altogether void and furnish no basis for plaintiffs
second cause of action.
The court proceeded to inquire as to whether the action might not
be well founded under an act of 1911, which applies to all firms and
corporations and directs payment of all wages on termination of
employment, under penalty of their continuance for not over 60
days.
While the statute does not say that the continued allowance of
wages after discharge is a penalty, we think it is essentially com
pensatory in its nature, as discussed above. It is a private wrong
to turn off a workman without his pay. It is particularly a grievous
thing for a corporation to do so. A corporation is an intangible
entity, with many officials ana functionaries. A laborer is ofttimes
mystified in attempting to deal with its numerous responsible heads.
He may go from superintendent to manager and from manager to
president, if these can be reached, only to be put off or sent on tedious
or fruitless journeys to see other functionaries o f the corporation
before he can get his pay. With an individual employer the ordi
nary case is different. The latter with whom the contract of em
ployment was made is the individual who discharges the employee,
and so is ordinarily at hand or readily accessible to pay when the
employee is discharged, and if the laborer’s wages are not forth
coming with his discharge, the employee knows at once that he must
invoke the aid o f the law to collect his due.
Such legislation does not trench on our local constitution, nor
does it violate the fourteenth amendment or any other provision of
the Federal Constitution. The Federal Supreme Court has sustained
such statutes which apply only to railway corporations (Kailway
Co. v . Paul, 173 U. S. 404,19 Sup. Ct. 419, 43 L. Ed. 746), and cer
tainly a statute of this character which includes all corporations is
less open to possible objection under the Federal Constitution than
one which only affects a limited and special class of corporations.
No constitutional infirmity inheres in the act of 1911 (Gen. Stat.
1915, secs. 5880, 5881), so far as the rights of the defendant are con
cerned; and the judgment is therefore reversed and remanded for
further proceedings.

314

W
W

DECISIONS OF COURTS AFFECTING LABOR
ages— P aym en t on

aiver by

D ischarge— C onstruction of S tatute—
C ontract— B urdette v. B road view D a iry C o., Suprem e

C ourt o f 'W ashington (January 1 8 ,1 9 2 3 ), 212 Pacific R ep orter, page
181.—Frank

Burdette with three others were as a crew engaged in
filling and cleaning bottles of milk at a dairy. Three o f the men
arrived late one morning and were reproved for tardiness and told
they must report promptly. Within a few minutes they quit work
and demanded their pay. The law of the State (Code 1915, sec.
6560), requires that wages must be paid at once to laborers ceasing
work whether by discharge or by voluntary withdrawal. However,
payment was refused at this time on the ground that under their
contract, in case they quit without notice, they should not be paid
for 30 days. Lien claims were filed within a day or two in accord
ance with the statute, and shortly thereafter two o f the claimants
assigned their claims to Burdette, who brought action to foreclose
the liens. Recovery was had for the wages, costs, and fees, from
which the employer appealed.
Various contentions were made, among them one that the assign
ments were made after the commencement o f the action; another
that it was not alleged that the employer was a manufacturing com
pany, or was carrying on any business which made its property sub
ject to labor liens under the statute. The first was disposed of by
finding that the evidence was not against the findings o f the trial
court that the assignments had been timely made. As to the second,
the clarification, pasteurization, and bottling of milk might well
have been held not to be manufacturing if the question had been
raised in the trial court; but it had not, “ and we may not now con
sider it.”
The important question remained as to whether a contract pro
viding for notice could be invoked to waive the law which required
immediate payment. As to this Judge Tolman, who delivered the
opinion of the court, stated that former decisions had construed the
statute so that “ its meaning is no longer in doubt.” Indeed, a
similar question as to the effect of the contract had been raised and
decided in favor o f the statute.
The opinion concludes:
It is clear that the statute establishes a*rule of public policy, and
that the natural right of the employer and the employee to contract
between themselves must yield to what the legislature has established
as the law. To hold otherwise would put it within the power of
every corporation employing labor, by exacting a contract before
employing, to set at naught the plain provisions of the statute.
The judgment appealed from is affirmed.

WAGES

W ages— P aym ent

D ischarge— P enalty — C onstruction

315
of

S tatute— G oodell v. P ope-Sh enon M inin g C o., Suprem e Court o f
Idaho {D ecem ber 2 2 ,1 9 2 2 ), 212 Pacific R eporter, page 31$.—Albert

R. Goodell was employed by the Pope-Shenon Mining Co. in the ca
pacity of foreman. On February 2, 1919, he was instructed to mine
and send certain ore samples to Salt Lake City, which he did. On
February 25 a new foreman was put in charge, Goodell being re
tained as an employee at $5 per day until April 8, when he vol
untarily resigned.
The company paid employees by vouchers which contained an
itemized statement o f the time and work for which same were issued.
A further provision instructed the employee not to indorse the
voucher unless all entries were correct because the receipted voucher
would be used as a receipt in full. Goodell received and signed
a voucher on February 20, which stated: “ In full to date, footage,
getting out logs, etc.” This covered the period from February 2 to
February 25, the time he acted as foreman and for which he claimed
he was not paid. On April 8 he received a second check for $394.60,
which contained the items: “ February to March pay roll, $167.20;
board, $227.40.” After leaving the company on April 8, Goodell
made no claim for unpaid wages until May 22, when he claimed $6
a day for services as foreman from February 2 to February 25 and
a penalty of $5 per day under C. S., section 7381, which requires,
under penalty, that wages be paid in full on discharge, and also for
attorney’s fees.
Judgment was for the plaintiff in the lower court, but on appeal
by the defendant the court observed that—
It was not the intention of the legislature, in enacting this statute,
to penalize an employer for failing to pay an unjust debt, or for a
failure to pay when the discharged laborer, after demanding pay
ment, prevents a compliance with the demand by his own conduct,
or to deny or preclude the right of an employer to interpose any
valid counterclaim or defense to the claim or such laborer. * * *
The purpose of this statute is to impose a penalty upon an em
ployer in case of his failure to pay an employee wages earned when
due, after a proper demand therefor has been made.
We think that respondent, with regard to his fourth cause of
action, has wholly failed to show that this claim for a penalty is
within the purview o f this section o f the statute. Entirely aside
from his having indorsed these several voucher checks referred to,
when they instructed him not to do so if the same were incorrect,
he continued in the service of the company drawing $5 per day
during March and a part of April following, and then appears to
have voluntarily quit its service, and not to have made any further
demand until that made through his attorney in the latter part of
May.

316

DECISIONS OF COURTS AFFECTING LABOR

The plaintiff was ordered to remit all o f the judgment in excess of
$156.90 and costs in the court below, this amount being due plaintiff
on personal property sold to the company. The other items, in
cluding attorney’s fees, costs, and penalty, were denied.

W ages— P a ym e n t on T ermination of E mployment — P enalty —
C onstitutionality of S tatute— State v. M artin, Suprem e C ourt o f
Indiana (A p r il 17, 1 9 2 3 ), 139 N ortheastern R ep orter, page 283 .—

An act o f the Indiana Legislature required the payment o f wages
within 72 hours after the termination of employment, whether
voluntary or by discharge. Failure to pay on demand obligated
the employer to pay a day’s wage for each day of delay, not exceed
ing the amount o f the original debt. Failure to pay was also a mis
demeanor punishable by a fine o f not less than $100 nor more than
$500. An employer was charged with violation o f the law, and
moved to quash the proceedings on the ground that the statute was
unconstitutional. The motion to quash was sustained in the trial
court, and on appeal by the State in the supreme court.
In discussing the provisions of the act under consideration, Judge
Myers, who delivered the opinion o f the court, reviewed a quite
extensive list o f laws enacted by the Indiana Legislature on the sub
ject o f wages, noting also the decisions by which a number of them
had been declared void. Als to the general principle involved Judge
Myers said:
The far-reaching power o f the legislature to enact laws that will
prevent fraud and oppression, and promote the general welfare, is
well known. Hence the plausible argument of the State, persuasive
o f the view that the legislative intention to prevent oppression of
the wage-earner, a matter of general interest, is clear from the lan
guage employed in the exercise of a wide discretion .affecting a
public interest and o f the measures necessary for the protection of
that interest. This contention is based upon what is known as the
police power. But it will serve no useful purpose for us at this time
to enter into a discussion of what the legislature might or might
not do under that power. However, it has been well said that “ the
State is bound to recognize, even in the exercise o f its police power,
the right of all persons to the equal protection of the laws, and to
the security afforded by due process of law.” (Republic Iron &
Steel Co. v . State, 160 Ind. 384, 66 N. E. 1005, 62 L. R. A. 136.)
So that, while the judiciary, in passing upon the constitutional
validity o f a statute, is not concerned with its purpose, yet its effect
determines its validity, which is a judicial question.
The principle involved was practically the same as in the case
Superior Laundry Co. v . Rose (below), particularly with regard
to severe penalties liable to be incurred by an employer found guilty
of a violation of the law. Continuing Judge Myers said:

WAGES

317

The fourteenth amendment to the Federal Constitution expressly
prohibits every State from passing any law that will deprive any
person of life, liberty, or property without due process of law, or
that will deny to any person within its jurisdiction the equal protec
tion of the laws. It may be said that the statutes now m question
operates upon all alike situated, but that is not enough to take them
without the constitutional inhibition. They must not subject an
individual to an arbitrary and unreasonable exercise of the powers
of government by assessing penalties greatly out o f proportion to
the actual damages sustained, whereby he may be unduly oppressed
by virtue of such authority. While States have a wide latitude of
discretion in matters of this character, yet, “ where the penalty pre
scribed is so severe and oppressive as to be wholly disproportioned
to the offense and obviously unreasonable,” the provision prescrib
ing it must yield to the charge of denying constitutional liberty.
Concluding that the law in question had the effect described by
the quotation last made, the action of the court below in denying
the relief sought was affirmed.
W

ages— P enalty for

N onpayment — C onstitutionality

ute—Superior Laundry C o .

S tat

R ose, Suprem e C ourt o f Indiana

(January 2 6 ,1 9 2 3 ), 137 N ortheastern R ep orter, page 761 .—The In
diana Legislature of 1913 (ch. 27) required the payment twice per
month of wages due employees, including earnings to date not more
than 10 days prior to the time of such payment. For failure to pay
the employer was assessed as liquidated damages 10 per cent of the
amount due for each day that it remained unpaid.
Angel Rose was a driver of a laundry wagon for the company
named and was discharged by it, as was alleged, with an unpaid
wage debt of $72.16, which the company refused to pay. On the
trial the circuit judge for Lake County instructed the jury that,
under the above statute, if Kose was found entitled to the wages
claimed, he was also entitled to 10 per cent thereof for each day
since the wages became due down to the date of the trial. Judgment
was in his favor, his damages being assessed at $315.76, or more than
four times the amount of the wages claimed. The company ap
pealed from this judgment, securing a reversal on the ground that
the statute was unconstitutional.
In asserting the unconstitutionality of the act, Judge Ewbank,
who delivered the opinion of the court, referred to the weekly wage
law o f 1899 (ch. 124), which had been held unconstitutional because
of its absolute requirement of weekly payments, with no option to
the employer and employee to contract for payment at other times
or at longer intervals, thus interfering with the freedom of con
tract. (Republic I. & S. Co. v . State, 160 Ind. 379, 66 N, E. 1005.)

318

DECISIONS OF COURTS AFFECTING LABOR

The present statute was found to be equally absolute in its require
ment for payments twice a month, and “ the objections to the statute
now under consideration are supported by the reasoning” in that
case. Another statute provided for biweekly payments “ if de
manded ” by the employee, and this was said to be a valid law be
cause of the option given to the employee to make or not to make the
demand upon which the statute would become mandatory upon the
employer.
However, chief emphasis was placed upon the penal provision of
the statute under consideration, which adds 10 per cent daily to the
demand as “ liquidated damages” for failure to pay at the time
prescribed by law. The effect of this provision is pointed out in the
following language:
The fact, if it be a fact, that the employee has demanded more
than is due him will not prevent the actual debt from doubling.
Neither will a good-faith belief on the part o f the employer that he
has paid all that was due. I f he should delay payment for 90 days,
he would owe 10 times the original debt, under the provisions of the
statute, even though suit had not yet been commenced.
Continuing Judge Ewbank said:
The penalty is not proportioned to the amount o f wages withheld,
but is without limit as to the time during which it shall continue to
accumulate, or as to the total amount. This is not “ equal protection
of the law,” nor does it afford the employer “ due process o f law,”
but .arbitrarily deprives him of property by threatening such dire
consequences if he shall litigate a claim for wages and not be entirely
successful that he may fear to refuse a demand, even though con
vinced that it is unfounded and unjust.
The situation is not comparable to one in which a penalty of $1
per day was fixed as the incurred liability, limited to double the
amount of the wages due and a reasonable attorney fee, so that the
validity o f a law couched in these terms was no precedent for sus
taining the statute under consideration in the instant case. For the
reasons stated, the statute was declared “ unconstitutional so far as
it seeks to impose a penalty for the nonpayment o f wages.”

ages— P enalty for

struction of

N onpayment — Crim inal L iability — C on
S tatute— E x parte M orse , Suprem e C ourt o f A rizon a

{June 0 , 1 9 2 b ), 226 Pacific R ep orter , page 637.— Chester Merrill, the
owner and driver of an automobile, was hired by H. A. Morse to
drive him around day by day. The arrangement was changed later,
and for the month o f April Morse was to pay $400 to Merrill, and
for May the contract was that $600 was to be the compensation.
Morse failed to pay Merrill and upon a criminal complaint was held

WAGES

319

to answer to the superior court for trial as for a felony. Morse
secured his discharge upon a writ of habeas corpus, and the county
attorney, representing the State, appealed. The complaint charged
that Morse failed to pay what was due the employee, but there was
no evidence that Morse made any false representations to secure the
services of the prosecutor. Section 524, chapter 8, title 14, part 1,
Penal Code, as amended by chapter 163, Acts of 1919, and chapter
26, Acts of 1921, stated, in effect, that any person who should employ
another for wages and who should not have sufficient assets within
the county in which the work was to be performed to cover the
amount of the wages for the term of two weeks, and who should
make any false representations as to having such assets, and (“ o r ”
in later amendments), who should not pay such wages within five
days after they became due should be deemed 44guilty of obtaining
money under false pretenses55 and on conviction should be punished
by imprisonment not to exceed one year, or fined not exceeding three
times the amount of the wages due. There was no evidence that the
employer did not have sufficient assets in the county. Morse con
tended that the law clearly 44indicates that it was the intention o f the
legislature to make it a criminal offense for any person or corpora
tion to obtain 4labor under false pretenses ’ and not to make it crimi
nal to fail or neglect to pay a debt when due.” The court said:
We think the position of the respondent is unassailable. I f it was
the purpose of the legislature to authorize the imprisonment of an
employer because he was either unable or unwilling to pay a debt he
owed for wages, it would run counter to the above provisions of the
constitution [section 18 of article 2 of the State constitution, which
provides: 44There shall be no imprisonment for debt, except in cases
of fraud” ].
I f the legislature intended, as contended by the prosecution, to
make it a crime for the debtor simply to fail to pay when the debt
is due and to accomplish that purpose inserted the word 44o r ” for
the word 44and,” the result would be most disastrous. As it would
nullify and render unconstitutional an otherwise valid statute, we
would prefer to adopt a construction that would sustain the law,
and therefore must assume that the substitution of the disjunctive
for the conjunctive was inadvertent or clerical.
The supreme court was firmly convinced that any statute making
it a crime punishable by imprisonment to fail to pay a d ebt44is in
violation of our constitution.” It was held that this statute in ques
tion 44does not make it a crime merely to neglect to pay a debt,” but
that it does 44reach those cases where false representations and pre
tenses o f the kind described in the statute are practiced.”
The order of the superior court in discharging Morse was affirmed.
44915°—25-----22

320

DECISIONS OF COURTS AFFECTING LABOR

W ages— P referred Claims — B ankruptcy — “ L aborers ”— Cava
naugh y. A r t H ardw are <& M anufacturing Go ., Suprem e C ourt o f
'W ashington (A p r il 4, 1 9 2 3 ), 21%, Pacific R ep orter, page 152 .—Rem

ington’s Compiled Statutes, section 1149, gives to persons perform
ing labor a prior lien on the property o f the employer in cases of
insolvency, wages for the six months next preceding the filing of the
claim being protected. In the case in hand the claims involved were,
one, of the president o f the corporation who also rendered services
as bookkeeper; another, of the trustee who acted as manager and
general superintendent and also worked on the lathes as an ordinary
mechanic; and the third, of the secretary who also acted as salesman.
The county court allowed preference rights for all three. The
only point o f interest involved is the determination by the supreme
court of the classification of these claimants as performing labor.
Other statutes of the State were considered in which administra
tive terms as to specific operations were named. O f the statute under
which suit was brought it was said that the express language o f the
act gives a lien when performing “ labor,” so that the question must
be settled by the definition of that term. The authorities were said
to be not altogether harmonious, but to have sustained the position
that the term “ labor” implies “ manual exertion of a toilsome nature,
exertion of muscular force producing weariness, and is without
application to those performing clerical services, or services requir
ing skill rather than muscular effort.”
Summing up a number of citations, the court said:
In the statute now before us it will be remembered the lien is con
fined to those performing labor, and it is our conclusion that the
term should be given its common meaning. This conclusion will
exclude the bookkeeper and the claimant who performed services as
a salesman. The claimant who acted as foreman of the shop and
worked as a laborer therein, we think, stands upon a different foot
ing. As we understand the record, he was not paid for his services
as foreman, but only for the manual labor performed by him. For
these services we think he is entitled to a preferred lien.
Judgment was therefore reversed, and the cause remanded with
instructions to proceed in harmony with above findings.

W ages— R ailroad in H ands of R eceiver— R eduction by C ourt—
U nited S tates L abor B oard— C offee v. G ra y , Suprem e C ourt of
G eorgia (A p r il 29 , 1 9 2 4 ),
Southeastern R ep orter , page 687 .—
G. W. Gray and others brought action against the receiver of the
Atlanta & Charlotte Air Line Railway, to prevent a reduction ot
wages by the court without a determination by the United States
Railroad Labor Board. The railway was insolvent, and had been
operated at a loss for a number of years. Following proceedings

W AGES

321

to appoint a receiver, the appointment was made, and on his recom
mendation it was proposed to reduce wages in an effort to balance
receipts and expenses. The employees, Cook and others, sought to
intervene as parties defendant, denying the jurisdiction of the court
over the subject o f wages and working conditions, under the terms
of the transportation act of 1920. The judge of the court denied
the motion of the employees to be made parties, setting forth the
reasons necessary for his action in reducing wages, and announcing
the rates to be paid. The employees excepted to the refusal to make
them parties defendant, the refusal to sustain their demurrer to the
receiver’s petition, and the refusal to hold that the court was without
jurisdiction on account of the terms of the transportation act.
These questions having come to the supreme court of the State,
Judge Hines, speaking for the court, stated that “ We think the
employees had such an interest in this proceeding as entitled them
to be made formal parties.” However, as the chancellor had per
mitted them to be heard upon their demurrer which raised the ques
tion as to jurisdiction, and since that was the only point involved in
their opposition to the receiver’s application for reduction of their
wages, the chancellor’s consideration of this question and decision
upon it made it unnecessary to reverse the judgment in the case.
This left the question open as to the authority of the judge to reduce
the wages independently of action by the United States Labor Board.
It was recognized that “ one who devotes his properly to public
use subjects it to public regulation ” ; but this does not give the public
power to compel the continuance o f a business at a loss.
Apart from statute or express contract, people who have put their
money into a railroad are not bound to go on with it at a loss if
there is no reasonable prospect of profitable operation in the future.
(Bullock v . Florida, 254 U. S. 513, 41 Sup. Ct. 193, 65 L. Ed. 380.)
Nor can a railroad company or a receiver o f such company be re
quired to operate a railway on a scale of wages which produces con
tinual loss, and which will finally eat up the corpus of the property.
Under our constitutional system o f government there is no power
in or out of Congress, in a State, or in the judiciary to compel those
who devote their property to the use of the public to operate the same
at rates o f wages which occasion loss. In good morals neither the
public nor the employees should demand such sacrifice. So, while
the Adamson law was held constitutional (Wilson v . New, 243 U. S.
332, 37 Sup. Ct. 298; see Bui. No. 224, p. 144), the Supreme Court
of the United States held that this law, “ although by its general
terms purporting to apply to all railroads and railroad employees
subject to the act to regulate commerce, was not intended to govern
the exceptional case o f an insolvent railroad operating at a loss under
an agreement with its men, which they desired to keep, allowing
them less wages than the act prescribed.” (Ft. Smith etc. R. Co.
Mills, 253 IT. S. 206, 40 Sup. Ct. 526, 64 L. Ed. 862; see Bui. No.
290, p. 156)

322

DECISIONS OF COURTS AFFECTING LABOR

Under the circumstances of this case the transportation act
can not be applied consistent’
*';h the fifth amendment to the
Constitution of the United
We should give that act a
construction which will not infringe that amendment. Under that
amendment, Congress can not require a railroad company to pay
wages which the company does not earn, and payment of which will
consume its property.
The conclusion was reached that the transportation act was not
intended to apply to a situation such as that in the instant case, when
the earnings of the road were not sufficient “ to pay operating ex
penses, including the scale of wages which was in force at the time
of his [the receiver’s] appointment, and where by a reduction of
wages an entire suspension of operation and the destruction o f the
property may be prevented.” The employees can not be compelled
to accept the reduction, though the property must be operated or the
owners will lose it.
With this conclusion the judgment of the court below, awarding
reduced wages, was affirmed.

ages— R ates— C ity

G eneral e x r e l. Lennane

O rdinance— C onstitutionality — A tto rn ey

C ity o f D etro it, Suprem e C ourt o f M ich i

gan ( D ecem ber 19, 1 9 2 3 ), 196 N orthw estern R ep orter, page 391 .—

The attorney general filed a bill in equity on relation o f several
contractors o f the city o f Detroit, engaged in the performance o f
public contracts, to restrain the city from enforcing the provisions
of chapter 2, title 9, of its charter, and an ordinance o f the city to
the same purport. The ordinance, which closely resembled the
charter provision, provided that the service day for all employees
of the city should be 8 hours; that no employee should be re
quired to work more than six days a week; that on Sunday and
other holidays the wage should be double, and for overtime the
rate should be time and one-half; that the minimum wage should
be $2.75 a day for 8 hours; and that skilled mechanics should get
the highest prevailing wage in “ that particular grade o f work.” A
penal provision was attached.
The supreme court stated that the police power “ rests in the
State” and that neither the general language o f the statute “ nor
any other provision o f the home rule act delegates to municipalities
the general exercise o f all of such police power.” In the provisions
under review the city had undertaken to exercise “ the police power
not only over matters of municipal concern, but also over matters of
State concern.” It had undertaken to fix a policy for local activities
and State activities as well.

WAGES

323

I f we assume, as we have for the purposes o f the case, without
deciding, the question that the city possesses such o f the police power
of the State as may be necessary to permit it to legislate upon
matters of municipal concern, it does not follow that it possesses all
the police power of the sovereign so as to enable it to legislate gen
erally in fixing a public policy in matters of State concern. This
power has not been given it either by the constitution or the home
rule act.
We are persuaded here that the entire provision under considera
tion must rail.
The decree in favor of the plaintiff was affirmed.

W ages— R ates — C i t t

O r d in a n c e — C o n s t it u t io n a l it y — W agner

C ity o f Milwaukee, Supreme Court o f W isconsin (A p ril 3 ,1 9 2 3 ) ,
192 N orthwestern R eporter, page 991±.—Herman A. Wagner, a resi

dent taxpayer o f the city of Milwaukee, brought an action in equity
to have a city ordinance declared null and void and the defendants
restrained from enforcing said ordinance.
The ordinance in question was passed on July 24, 1922, by the
city council, and provided a minimum wage scale to be paid all city
employees engaged upon public work and by contractors and subcon
tractors to their employees on public work. The purpose o f the
ordinance was declared to be “ to insure a living wage to all laborers
employed on all city work.” A penalty of a $25 fine was provided
for violations, and, in default of payment, imprisonment for not
over 90 days. The scale of wages ranged from 55 cents to $1.25
per hour for workmen and from 85 cents to $1.37^ per hour for
foremen.
The plaintiff alleged that the minimum scale was the same as that
of the labor unions in the city, and that in many of the trades
many workmen are called skilled laborers, and therefore entitled
to a higher rate of pay, when in fact they do only common labor
work; that the city and its contractors must pay “ at least 70 per
cent higher wages than common labor of equal efficiency could be
employed except for such ordinance” ; and that the city and its
contractors must pay “ over 50 per cent more for common unskilled
labor than such could be obtained but for such ordinance.” There
was an ordinance already in effect limiting the hours o f labor on
public contracts to 8 per day, and in the charter of the city it was
provided that “ all work done, materials or supplies purchased ex
ceeding in cost $200 shall be let by contract to the lowest bidder.”
It was contended by the plaintiff that the ordinance and wage
scale in connection with the 8-hour ordinance and lowest-bidder
provision rendered the charter provision nugatory by “ excluding
bidders who but for such ordinances would be the lowest bidders.”

324

DECISIONS OF COURTS AFFECTING LABOR

It was also contended that the ordinance interfered with the
right o f contract as to labor and deprived the plaintiff and other
taxpayers of property without due process of law in violation of
the fourteenth amendment and of the State constitution, and that
it was class legislation.
The case presented a question reserved from the determination
of the supreme court in Wagner v. Milwaukee (177 Wis. 410, 188
N. W. 487; see Bui. No. 344, p. 262), in reference to which the court
said that—
An ordinance fixing a substantially similar scale of minimum wage
was [there] declared invalid because held to be an express delegation
by the common council of its right and power to determine such
question, if such right and power it had, to an outside body or
bodies, namely, the labor unions o f the city of Milwaukee. For that
reason, and that reason alone, as there stated, the former ordinance
was declared invalid.
In the main case the supreme court pointed out that under prior
decisions—
The charter provision that work shall be let to the lowest respon
sible bidder does not mean or require that the common council is
bound to have such work done at the lowest possible cost. While it
is true, as stated in the former Wagner case, the common council is
but the trustee of the public, yet there is necessarily vested in it a
wide field of discretion in the carrying out of its duties, and it, and
not the courts, have the power, and the corresponding responsibility,
of determining the questions of legitimate general public policy in
matters that affect the community as a whole.
There is no charter provision or rule of law which binds it to
select the cheaper rather than the higher priced or valued material
for public work, and we can see no ground for judicial interference
with the exercise o f the same discretionary power by the common
council in determining as to what shall be the grade as measured by
the cost, as to the labor to be employed, any more than as to the
cost or price of material.
Mr. Justice Eschweiler, speaking for the supreme court, made it
clear that as long as a legislative body acted within its powers, its
motives were not subject to review by the courts, and that if an
ordinance resulted in the imposition of improper burdens on tax
payers the remedy was by ballot and not by recourse to the courts.
He then referred to a New York case (People v . Crane, 214 N. Y.
154, 175, 108 N. E. 434; Bui. No. 169, p. 52), wherein it was held
with regard to the power to exclude aliens from being employed on
public work:
“ The statute is nothing more, in effect, than a resolve by an em
ployer as to the character of his employees.”
Being thus the voluntary act of the city subject to change at will
as to subsequent contracts by change in personnel or views, or both,

WAGES

325

of its governing body, the common council, we can not say as a mat
ter of law that it is so unreasonable as to be void.
Finding no invasion of constitutionally secured rights of the plain
tiff or other taxpayers under the ordinance here challenged^ the
demurrer to the complaint was properly sustained.
The judgment for the defendant city was therefore sustained.

W ages — R ates — R ailroads — P orter A c t in g as B r a k e m a n — C o n
trac t oe

R y . Go.

E m p l o y m e n t — P r e su m ptio n s —Pittsbu rgh , G., 0 . & S t. L .

v. Marable,

AppeUate Court o f Indiana (June 2 6 ,1 9 2 3 ), 11+0

Northeastern R eporter, page 1+1+3.—Nathaniel

Marable, employed as
a porter by the defendant railroad company, sought to recover addi
tional compensation for services rendered as brakeman during a
period of time when he was regularly employed and paid as a porter
on a passenger train. Marable acted as brakeman from 1908 to 1915,
but was never paid as such, but as a porter. It was found by the
jury that he had informed the company that he expected brakeman’s
wages, but it was also found that he had never requested the com
pany to pay him the difference between the wage he received and a
brakeman’s wages. The verdict in the lower court was for the plain
tiff Marable and an appeal was taken, securing a reversal.
In the course of his opinion Chief Justice McMahon said:
It is insisted that the court erred in giving instruction No. 7, which
reads as follows:
“ I instruct that, where a servant performs extra duties for the
master, outside the scope of his employment, at the master’s request
and that the master accepts said services, then I instruct you that
the servant has the right to presume that the master will pay the rea
sonable value for said services rendered, and this is true, even though
there was no express agreement on the part of the master to pay for
said services.”
It is elementary that no one can be held to pay for services or
property unless there is an express or implied promise.
“ In such a case,” as was said by the court on the former appeal of
this cause, “ the request of the employer does not justify the infer
ence o f an offer to pay anything in addition to the compensation
provided by the contract, for the reason that it is assumed that such
services were requested and performed under the contract of employ
ment. * * * In a case o f this kind it is not sufficient to establish
merely that services outside of the ordinary emplfiyment were
requested by the employer and performed by the employee. The
plaintiff must go further and prove that the services requested were
of such a character and were rendered under such circumstances as
would lead to the conclusion that a servant performing such services
would be reasonably justified in the belief that he would be allowed
additional compensation therefor, and that an employer making such
request would be reasonably expected to know that additional com
pensation would be expected. * * * ”

326

DECISIONS OF COURTS AFFECTING LABOR

This instruction was not applicable to the facts in this case, and
should not have been given. Its tendency was to mislead the jury
into assuming that, if defendant requested plaintiff to perform serv
ices ordinarily performed by a brakeman, and if plaintiff in com
pliance with that request performed such services, he was entitled
to recover without proof of an implied agreement on the part of
defendant to pay for such services, or that the rendition o f the
services by plaintiff in response to a request of defendant was suf
ficient to authorize it in finding an implied agreement on the part of
defendant to pay the reasonable value of such additional services.
Plaintiff never mentioned the question of wages except on one
occasion, when in the latter part or 1913 he asked one of defendant’s
assistant train dispatchers if he did not think defendant would give
him more money, since defendant had made a “ standard ” man out
of him.
This inquiry can not be contorted into a demand or into a notice
that plaintiff expected or claimed that he was entitled to additional
compensation for any services performed by him, and which were
ordinarily performed by a brakeman. The evidence conclusively
shows that plaintiff received his compensation during the entire time
he worked for defendant with full knowledge that the amount
received by him was all defendant intended to pay him. The evi
dence fails to show any agreement express or implied, on the part of
defendant to pay plaintiff any additional compensation, or to show
that he performed any service that he might not ordinarily be
expected to perform under his contract with defendant.
The acts and conduct of the parties in this case are such as to
raise a conclusive presumption that the compensation paid by
defendant to and accepted by plaintiff was accepted by plaintiff in
full payment of all that was due him.
The judgment was accordingly reversed with directions for a new
trial.
W ages — R ates — R ailroads — P orter A c t in g a s B r a k e m a n — R eg
O rder — C o n tr ac t — Dick v . Davis , Court o f Appeals o f
the District o f Columbia (March 5 , 1923), 51 Washington Law Re
porter , page 278 .—On May 25, 1918, the Director General o f Rail
u l a t io n b y

roads issued a regulation known as General Order 27. Article V I
of this order became effective June 1, 1918, and provided that
colored men employed as firemen, trainmen, and switchmen were
to be paid the same rates of wages as was paid white men in the
same capacities. On December 2, 1918, Supplement 12 to General
Order 27 was issued to carry out the intent of said Article V I, and
was retroactive to June 1, 1918. The supplemental order provided
that certain employees in a passenger-train crew, except the con
ductor, collector, and baggagemaster, qualified and regularly re
quired to perform certain duties connected with the operation of the
train, were to be designated as passenger brakemen or flagmen and
paid accordingly.

WAGES

327

Arthur Dick, a colored man in the employ of the Southern Rail
way under the designation of train porter, was in fact regularly
performing the duties of a passenger brakeman while that railroad
was under Federal control. Believing that he was entitled to back
pay in accordance with Supplemental Order 12, he asked the pay
master whether he had some back pay coming to him. The pay
master replied that he had the checks, but he was without orders to
issue them. Dick continued to receive the pay of porter.
An action was instituted by Dick to recover the difference between
the pay of porter and that of brakeman in the municipal court of the
District of Columbia. Under certain erroneous instructions by the
trial court the jury entered a verdict in favor of the defendant;
judgment was rendered accordingly, and the case was taken on a
writ of error to the Court of Appeals of the District of Columbia.
It was contended that the court was without jurisdiction over the
controversy, as it was claimed that the decision of the Director
General of Railroads as to Dick’s wages and the amount due him
therefor was final and conclusive. The court pointed out with ref
erence to this contention that it did not appear that the question
of plaintiff’s wages was ever actually passed upon by the Director
General during the time of Dick’s employment. The contention was
overruled on the authority of Missouri Pacific R. Co. v . Ault (256
U. S. 554, 41 Sup. Ct. 593; see Bui. No. 309, p. 216), and section
206(a) of the transportation act of 1920. (41 U. S. Stat. 461.)
In the appellate court Dick attacked the charge of the trial court
to the jury which suggested a possible accord and satisfaction be
tween the parties. The court said that the sums paid Dick were not
determined by an agreement entered into by way of a compromise
and that “ they were simply a porter’s wages, which were delivered
to plaintiff in ordinary course by the paymaster; and there is no
evidence whatever tending to show that the plaintiff, when he re
ceived the money, understood it to be in full settlement of his claim
for pay as a brakeman.”
The decision of the lower court was accordingly reversed and the
case remanded for further proceedings not inconsistent with the
opinion.
W ages — R ates — W o r k in g
t r ia l

C o n d itio n s — J u r isd ic tio n of I n d u s

C ourt — C o n s t it u t io n a l it y of S t a tu te — Court o f Industrial

Relations

Chas. "Wolff Packing C o ., Suprem e Court o f the United

States {June 1 1 ,1 9 2 3 ), 262 U. S. 622 , Jf3 Supreme Court R eporter ,
page 630.—This decision reversed a decision of the Supreme Court
o f Kansas, June 10, 1922 (207 Pac. 806; Bui. No. 344, p.258), and

828

DECISIONS OF COURTS AFFECTING LABOR

its mandate was carried out in a later proceeding by the Supreme
Court o f Kansas, October 6,1923 (219 Pac. 259. See p.— ).
The Court of Industrial Relations of the State o f Kansas had
fixed a wage scale for the employees o f the Chas. W olff Packing Co.
in advance of the amount fixed by the company itself, though the
company had operated at a loss of $100,000 the previous year. This
action was sustained by the State supreme court and the statute held
constitutional as conferring wage-fixing powers upon the court.
(Court o f Industrial Relations v. Chas. W olff Packing Co. (1921),
109 Kans. 629, 201 Pac. 418; Bui. No. 309, p. 128. Same v. Same
(1922), 111 Kans. 501, 207 Pac. 806; Bui. No. 344, p. 258.)
The act (Acts of 1920, Spec. Sess., ch. 29) declared certain activi
ties, including the manufacture and preparation of food, the produc
tion of fuel, transportation, etc., to be affected with a public interest.
Power to adjust labor disputes in these industries and to fix wages
and other terms of employment was conferred upon a court o f three
judges, who might act either on complaint or on their own initiative.
The company involved in this case was engaged in the preparation
o f meat for sale and shipment, selling more than half of its products
beyond the State. It had about 300 employees, which constituted a
small establishment, as compared with others in the State. Its prod
ucts were sold in business association with what were called “ the
Allied Packers,” in competition with the so-called “ Big Five.”
The head of the W olff Co. stated that he was able to secure all the
labor desired at the reduced rates offered, though at the same time a
strike was threatened in the packing houses of the “ Big Five.” The
industrial court conceded that the W olff Co. could not pay the wages
prescribed without a loss, but “ relied on the statement by its presi
dent that he hoped for more prosperous times,”
The opinion of the Supreme Court was delivered by Mr. Justice
Taft, and there was no dissent. The single feature involved was the
constitutionality o f the law under the terms of the fourteenth amend
ment, which declares that no State shall deprive any person of lib
erty or property without due process of law. The Chief Justice
first stated the facts as above and then announced the “ necessary
postulate of the industrial court act” as being the interest o f the
people in the production of food, fuel, etc., so that the State may
order its continuance on terms fixed by an agency of the State if
owners and workers can not agree, though the court may permit the
owner to go out o f business if he shows that collapse will follow its
continuance on the terms fixed—a privilege characterized as “ under
the circumstances generally illusory.” Also a workman may quit
individually, but can not agree with others to do so.* It was said
that these qualifications do not change the essence of the act, which
curtails the rights of both employers and employees to contract

WAGES

329

about their affairs. This right of contract “ is part of the liberty
of the individual protected by the guaranty of the due process clause
of the fourteenth amendment. While there is no such thing as abso
lute freedom of contract and it is subject to a variety of restraints,
they must not be arbitrary or unreasonable. The legislative author
ity to abridge can be justified only by exceptional circumstances.”
It was contended by the State that such exceptional circumstances
existed, since the preparation of human food is declared by the
legislature to be affected with a public interest, and this being the
case the power to fix wages and terms of employment to secure con
tinuity of operation is within the power of regulation. Three classes
o f business were said to be clothed with a public interest, justifying
some public regulation: Those carried on under the authority of a
public grant of privilege, implying the duty of rendering a public
service, such as railroads; the keeping of inns, cabs, and grist mills,
which have long been subject to control on account of exceptional
public interest attaching; and those which have risen to the nature
of a public interest by reason of the peculiar relation to the public,
the business being devoted by the owner to the public use, by which
he subjects himself to public regulation, as warehouses, waterworks,
banking, etc. “ The mere declaration by a legislature that a business
is affected with a public interest is not conclusive of the question,”
but the subject would be one of judicial inquiry. The public is con
cerned in “ all lawful business because it contributes to the pros
perity and well-being of the people,” but “ it is very difficult under
the cases to lay down a working rule by which readily to determine
when a business has become clothed with a public interest.” How
ever, even if the preparation of food could be put in the third class
o f quasi-public business, it would not be subject to such regulations
as the law attempts.
Continuing, the court said:
To say that a business is clothed with a public interest is not to
determine what regulation may be permissible in view of the private
rights of the owner. The extent to which an inn or a cab system may
be regulated may differ widely from that allowable as to a railroad
or other common carrier. It is not a matter of legislative discretion
solely. It depends on the nature of the business, on the feature
which touches the public, and on the abuses reasonably to be feared.
To say that a business is clothed with a public interest is not to
import that the public may take over its entire management and run
it at the expense o f the owner. The extent to which regulation may
reasonably go varies with different kinds of business. The regula
tion of rates to avoid monopoly is one thing. The regulation of
wages is another. A business may be of such character that only
the first is permissible, while another may involve such a possible
danger of monopoly on the one hand, and such disaster from stop

330

DECISIONS OF COURTS AFFECTING LABOR

page on the other, that both come within the public concern and
power of regulation.
The act in question, in carrying out its purpose to secure con
tinuity o f food, clothing, and fuel supply, binds the employer to
pay the wages fixed, and forbids the workman to strike against
them, though he is not required to work. This requires the worker
“ to give up that means of putting himself on an equality with his
employer which action in concert with his fellows gives him.” A
case strongly relied upon to sustain the law in question was that
of Munn v. Illinois (94 U. S. 103), but the theory that business can
be required to continue even at a loss was said not to be sustained
by this decision, as shown by the following quotation therefrom:
“ Property does become clothed with a public interest when used
in a manner to make it of public consequence and affect the com
munity at large. When, therefore, one devotes his property to a
use in which the public has an interest, he in effect grants to the
public an interest in that use, and must submit to be controlled by
the public for the common good the extent o f the interest he has
thus created. He may withdraw his grant by discontinuing the use;
but so long as he maintains the use, he must submit to the control.”
The owner has made at most a revocable grant. This principle
affects not only the owner or employer, but even more strongly the
status o f the employee.
The opinion continued:
It involves a more drastic exercise o f control to impose limitations
o f continuity growing out o f the public character o f the business
upon the employee than upon the employer; and without saying that
such limitations upon both may not be sometimes justified, it must
be where the obligation to the public o f continuous service is direct*
clear and mandatory and arises as a contractual condition express or
implied of entering the business either as owner or worker. It can
only arise when investment by the owner and entering the employ
ment by the worker create a conventional relation to the public
somewhat equivalent to the appointment of officers and the enlist
ment o f soldiers and sailors in military service.
We are considering the validity o f the act as compelling the em
ployer to pay the adjudged wages, and as forbidding the employees
to combine against working and receiving them. The penalties of
the act are directed against effort of either side to interfere with the
settlement by arbitration. Without this joint compulsion, the whole
theory and purpose o f the act would fail. The State can not be
heard to say therefore, that upon complaint of the employer, the
effect upon the employee should not be a factor in our judgment.
Justification for such regulation was said by the State to be found
in the case o f Wilson v. New (243 U. S. 332, 37 Sup. Ct. 298), in
which the law establishing a basic eight-hour working-day and a
wage rate for railroad employees was upheld. However, this was a
business o f a public nature, which Congress might regulate under the

WAGES

331

commerce power, and the wages prescribed were “ not confiscatory,
but obligatory on both for a reasonable time to enable them to agree.”
In conclusion Mr. Chief Justice Taft said:
It is urged that under this act the existence o f the power of com
pulsory arbitration rests upon the existence o f a temporary emer
gency, as in Wilson v. New. I f that is a real factor here as in W il
son v. New, and in Block v. Hirsh (256 U. S. 135, 157, 41 Sup. Ct.
458; see Pennsylvania Coal Co. v. Mahon, 260 U. S. 393, 43 Sup. Ct.
158, decided December 11, 1922), it is enough to say that the great
temporary public exigencies recognized by all and declared by Con
gress were very different from that upon which the control under
this act is asserted. Here it is said to be the danger that a strike in
one establishment may spread to all the other similar establishments
of the State and county and thence to all the national sources of
food supply so as to produce a shortage. Whether such danger
exists has not been determined by the legislature but is determined
under the law by a subordinate agency, and on its findings and
prophecy owners and employers are to be deprived of freedom of
contract and workers of a most important element of their freedom
of labor. The small extent of the injury to the food supply of
Kansas to be inflicted by strike and suspension of this packing com
pany’s plant is shown in the language of the Kansas Supreme Court
in this case (Court of Industrial Relations v. Packing Co., I l l Kans.
501, 207 Pac. 806):
“ The defendant’s plant is a small one and it may be admitted that
if it should cease to operate, the effect on the supply of meat and
food in this State would not greatly inconvenience the people of
Kansas; yet the plant manufactures food products and supplies meat
to a part of the people of this State and if it should cease to operate
that source of supply would be cut off.”
The supreme court’s construction of the operation and effect of
the act is controlling. The language quoted shows how drastic and
all-inclusive it is.
But the chief and conclusive distinction between Wilson v . New
and the case before us is that already referred to. The power of a
legislature to compel continuity in a business can only arise where
the obligation of continued service by the owner and its employees
is direct and is assumed when the business is entered upon. A com
mon carrier which accepts a railroad franchise is not free to with
draw the use of that which it has granted to the public. It is true
that if operation is impossible without continuous loss, it may give
up its franchise and enterprise, but short o f this it must continue.
Not so the owner when by mere changed conditions his business be
comes clothed with a public interest. He may stop at will whether
the business be losing or profitable.
The minutely detailed Government supervision, including that of
their relations to their employees, to which the railroads of the
country have been gradually subjected by Congress through its
power over interstate commerce, furnishes no precedent for regula
tion of the business of the plaintiff in error whose classification as
public is at the best doubtful. It is not too much to say that the
ruling in Wilson v. New went to the border line, although it con
cerned an interstate common carrier in the presence of a nation-wide

332

DECISIONS OF COURTS AFFECTING LABOR

emergency and the possibility o f great disaster. Certainly there is
nothing to justify extending the drastic regulation sustained in that
exceptional case to the one before us.
We think the industrial court act, in so far as it permit

Full text of Decisions of Courts and Opinions Affecting Labor : Decisions of Courts Affecting Labor: 1923 - 1924 : Bulletin of the United States Bureau of Labor Statistics, No. 391

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