The full text on this page is automatically extracted from the file linked above and may contain errors and inconsistencies.
U. S. DEPARTMENT OF LABOR
JAMES J. DAVIS, Secretary
BUREAU OF LABOR STATISTICS
ETHELBERT STEWART, Commissioner
BULLETIN OF THE UNITED STATES\
BUREAU OF LABOR STA TISTIC S/
L A B O R LA WS OF T HE U N I T E D
{No. 309
STATES
SERIES
D E C IS IO N S O F C O U R T S A N D
O P IN IO N S A F F E C T I N G L A B O R
1921
LINDLEY D. CLARK
AND
DANIEL F. CALLAHAN
SEPTEMBER, 1922
WASHINGTON
GOVERNMENT PRINTING OFFICE
1922
A D D IT IO N A L C O P IE S
OF THIS PUBLICATION MAT BE PROCURED FROM
THE SUPERINTENDENT OF DOCUMENTS
GOVERNMENT PRINTING OFFICE
WASHINGTON, D. C.
AT
40 C E N T S P E R C O PY
CONTENTS.
Beview of decisions of courts aM pinions mS&c&mg luber, W21,
Page.
Introduction_____________________________ :---------------------------------------------- 1,2
Opinions of the Attorney General_______________________________________ 2,3
Decisions of the courts_________________________________________________ 4-50
Aliens______________________________________________________________
4
Contract of employment----------------------------------------------------------------— 4-7
Enforcement____________________________________________________
4
5
B reach______________________________________________
Interference with employment____________________________ —----- 6 , 7
Seam en--------------------------------------------------------------------7
Compulsory labor__________________________________________________
7
State regulation of employment, etc------------------------------------------------ 7, 8
Wages______________ — __________________________
8-11
Minimum-wage law ____________________________________________ 8 , 9
Rates__________________________________________________________ 9,10
Penalty for nonpayment_______________________________________ 10,11
Misuse of funds by contractor------- --------------- :-------------------------- 11
Hours of labor----------------------------------------------------------------------------------11,12
W om en--------------------------------- ---------------------------------------------->
—
II
Railroads---------------------------------------------------------------------------------- 11
General employments-------------------------------------------------------------------11,12
Sunday labor----------------------------------------------------------------------------------12
Mine regulations—----------------12
Employers’ liability--------------------------------------------------------------*12-20
Assumption of risk---------------------------------------------------------------------12,13
Negligence------------------------------------------------------------------- —---------13
Vice principals________________________________ ________________ 13,14
Injuries to third persons---------------------14
Safe place and appliances-----------------------------------------------------------14,15
Contractors__— —-----------~ ------------------------------------------------------- 15
Volunteers----------------------------------------------------------------------------— 15,16
Unlawful employment of children--------------------------------------------- 16
Adm iralty--------------------------------------------------------------------------------- 17,18
Railroads—Federal statute____________________________________ 18-20
Assumption of risk-------------------18
D am ages__________________________________________________
18
Place of suit----------------------------------------------------------------------18,19
Interstate commerce-------------------------------------19
Safety-appliance acts-----------------------------------------------------------19, 20
(i)
II
CONTENTS,
Decisions of the courts—Concluded.
Page.
Workmen’s compensation______________ ______ ______ _______________ 20-42
Constitutionality_______________________________________________ 20,21
Injuries compensated----------------------------------------------------- — ____21-23
Employment status________________________ _____________________ 23-25
Public employees------------------------------___________________________ 25,26
Hazardous employments________________________________________ 26,27
E xtraterritoriality_________
27
Interstate or intrastate commerce______________________________27, 28
Adm iralty_______________________
28
Jurisdiction_____________________________________________________ 28, 29
Nonresident aliens_______ ■_______.______________________________ 29
Injury arising out of and in course of employment____________ 29-33
Election_______________________________________________ ________ 33,34
Injury due to third persons_____________ _______________________ 34,35
Awards____________.____________________________________________ 35-38
Dependency__________ ____________________________ _____________ 38,39
D isability---------------------------------------------------------------------------------39,40
Medical and surgical treatment________________________________ 40,41
Insurance--------------------------------------------------------------41
Notice and claim----------------------------------------------------------------------- 41
Minors illegally employed------------------42
Labor organizations------------------------- ---------------------------------------------- 42-50
Strikes__________ - _____________________________________________ 42-46
Monopoly--------------------------------------------------------------------------46,47
Rules of unions------------------------------------------------------------------------- 47,48
Picketing_____________ — ---------------------------------------------------------- 48
Adjustment of disputes__________________________
49
Restraint of injunctions-------------------------------------------- --------------- 49, 50
50
Industrial Workers of the World------------------------------Decisions of courts affecting labor.
Aliens:
Contract labor—encouragement of migration (United States v. In
ternational Silver Co.)—---------------------------------------------------------------51,52
Taxation—Constitutionality of statute (Ex parte Kotta)___________ 52,53
Compulsory labor—vagrancy—ordinance forbidding idleness, sabotage,
etc.—constitutionality (Ex parte T a ft)___ :___________________________ 53-55
Conspiracy—jnob violence—attack on minstrel show to prevent attrac
tion of laborers (Calcutt et al. v. Gerig)_____________ ________________55,56
Contract of employment:
Agreement for life—not terminable as indefinite hiring—damages
for breach (Southern Cotton Oil Co. v. Yarborough)_____________ 56,57
Agreement not to engage in similar business—trade secrets—injunc
tion (Kaumagraph Co. v. Stampagraph Co. (In c .))-----------------— 57-59
Agreement to treat with trade-union—abandonment of employment
(In re Division 132 of Amalgamated Association of Street and
Electric Railway Employees of America et a l.)------------------------------ 59, 60
Breach—
evidence—burden of proof (Crayton v. S tate)--------------------------- 60
intent to defraud (Smith v. S tate)------------ .------------------------------ 60,61
right to discharge—damages (Golden Rod Mills v . Green)--------- 61
settlement—satisfactory service (American Trading Co. v.
Steele)________________________ __________ ____________________61-63
CONTENTS.
Ill
Contract of employment—Concluded.
Page.
Discharge—effect on tenancy—share cropper (Woodson et ux. v.
McLaughlin et a l.) _______________________________________________63,64
Employees’ invention—rights of employer (Ingle v. Landis Tool Co.
et al.) ------------------------------------------------------------------------------------------- 64
Enforcement of injunction— Sunday labor (Shubert Theatrical Co.
v. Rath et al.) ---------------------------‘________________________________ 64, 65
Enticing employees—
breached contract (Beale v. Yazoo Yarn M ill)__________________ 65,66
indictment (Holt v. State)_____________________________________ 66,67
Interference—act of insurance agent—damages (United States F i
delity and Guaranty Co. v.M illonas)_____________________________ 67
Rescission—new contract before old one had expired ( Schwartzreich
v. Bauman-Bascli (In c.))----------------------------------------------------------- 67-69
Seamen—
contract term (Shanley et al. v. United States)______________ 69,70
discharge—transportation to home port (Jenkins et al. v. United
States Emergency Fleet Corporation)________________________ 70,71
wrongful discharge—penalty {The Inland)________
71,72
Cost of living:
Food control—Lever Act—constitutionality (United States v. L.
Cohen Grocery Co.)______________________________________________ 72-74
Production and distribution of coal—prices—State control—constitu
tionality (American Coal Co. v. Special Coal and Food Commission). 74, 75
P ro d ^ io n and distribution of coal—shipments—State control—con
stitutionality (Vandalia Coal Co. et al. v* Special Coal and Food
C om m ission)-----------------------------------------------------------------------75,76
Employer and employee:
Bribery of officer of the United States—baggage porter (Krichman v.
United S ta te s)----------------------------------------------------------------------------- 76
Clearance cards—blacklisting—proof of damage (Cleary v. Great
Northern Ry. Co.)________________________________________________ 76,77
Employers’ liability:
Admiralty—
jurisdiction—foreign contracts {The Hanna N ielsen)___________ 77,78
jurisdiction—longshoreman injured on board ship (Kennedy v.
Cunard S. S. Co. (L td .))___________________ _________________78-81
jurisdiction—remedy (Crane v. PacificSteamship Co.)___________ 81,82
jurisdiction—remedy (White v. John W. Cowper Co.)__________ 82,83
jurisdiction—workmen’s compensation—injury causing death
(Western Fuel Co. v. Garcia)_________________________________ 83-85
Assault by employer’s representative—Exemplary damages (Schmidt
v. Minor et a l.)____________________________________________________85,86
Assault by foreman—willful injury (Nash v. Longville Lumber Co.)_ 86,87
Assault by subforeman—-fellow servants—course of employment (Pe
troleum Iron Works v. B ailey)__________________________________
87
Assumption of risk—
safe place—experienced employee—contributory negligence (Ad
dington v. Guests River Coal Co.)____________________________
88
safe place—inexperienced employee—contributory negligence
(Clinchfield Coal Corp. v. H aw kins)__________________________ 89
voluntary overexertion (Hines, agent, v.R oss)_________________ 89,90
CONTENTS,
IV
Employers’ liability—Continued.
Page.
Employee—
independent contractors (Gammage v. International Agricultural
C orporation)___________________________ _____________________ 90, 91
loaned employee (King v. Atchison, T. & S. F. Ry. Co.)________91,92
volunteer—right to recover (Kalmich W hite)______.__________ 92,93
Employment of children—
constitutionality of statute—negligence, per se—defenses—mis
representation of age (Terry Dairy Co. v. N alley)__________ 93-95
hours of labor—forbidden employments—proximate cause (B ir
mingham News Co. v. Andrews)_______________________________95-97
workmen’s compensation—“ m ine” (Mangus v. Proctor-Eagle
Coal G o .)_________________________________________________— 97,98
Hazardous occupations—inherent risks—conditions of employment
(Consolidated Arizona Smelting Co. v. E gich)----------------------— ™ 98-100
Injury to third person—
acts of strike guards—scope of employment (Mclnerney v. United
Railroads of San Francisco et aL)_________ ____ _______ - ____100-103
negligence of employee (City o f Indianapolis L ee)_________ — 103
Negligence—
contributory negligence—ordinary care (Egan Trenton Gas &
Electric Co.) --------------------------------------------------------------------- 103,104
employee going to work—transportation by employer (Phillips
Armour & Co.)----------------------------------.------------ ------— ~---------104.105
obligation to employer to care for sick employee (Carey u, Davis
et aL )__________________________ _______________________ __ 105,106
volunteer—reasonable care (Rook v. Schultz et al.) __________ 106,107
Railroad companies:
Federal statutes—
assumption of risk—engineer injured by mail crane (South
ern Pacific Co. i?. Berkshire)___________________________ 107,108
damages—chance of promotion (Payne, agent, v, Allen)__108,109
express messenger—waiver (W ells Fargo & Co. Taylor) 109-111
Interstate commerce—
car inspector—negligence (Hines, Director General of
Railroads v. Logan)_______________________________111, 112
engineer injured while getting oil (Hines, Director Gen
eral of Railroads Burns’ Admx.)__________________ 112
repairs (Koons et al. Philadelphia and Reading Ry.
Co.) „_______________________________________________ 113
returning from work (Director General of Railroads
Bennett) ---------------------- ----------- ------ ------—----------------- 114
steam supplied to State and interstate commerce (Gruszewsky t?. Director General of Railroads)__________ _ 115
negligence—fellow service—assumption of risk (BeBaur
Lehigh Valley R. Co.)__________ ________ _____________ .116,117
place of suit (Chicago, M. and St. P. Ry. Co, «?. M cG inley)-H 7,118
safety appliance act—causal relation of injury (Lang
New York Cent. R. Co.)___________________ ____________ 118-121
safety appliance act—workmen’s compensation act—remedy
(Ward Erie R. Co.)_____._______________ - _____- _____121-123
v.
v.
v.
v.
v.
v.
v.
v.
v,
v.
v.
CONTENTS,
V
Employers’ liability—Concluded. ,
1>ageSafe place—
compliance with statute (Central Coal and Coke Co. v. Barnes)_ 123
guards for dangerous machinery—negligence (Standard Portland
Cement Co. v. F oley)_______________________________________ 123,124
scaffold—statutory standard—assumed risks (Ross v. Dela
ware, L. & W. Ry. Co.)-------------------------------------------------------- 124,125
warning—injury from defective water gauge (Naylor v. HollandSt. Louis Sugar Co. et al.) ________________________________ 125,126
Seamen—safe appliances—fellow servant (George Leary Construc
tion Co. v. M atson)______________________________
126,127
Employment of children—constitutionality of statute—taxation as mode
of regulation—State and Federal powers (George v. B ailey)________127,128
Hours of labor:
Wages—regulation—constitutionality of Kansas statute (Court of
Industrial Relations v. Chas. Wolff Packing C o.)________________ 128-131
Women—manufacturing and mechanical establishments—newspaper
company (State v. Crounse)------------------------------------------------------ 132,133
Hours of service:
Railroads—
telegraph offices continuously operated—day and night offices—
meal times (United States v. Cornwall & L. R. Co.)________133,134
telegraph operators—“ on duty ” (United States v. New York,
N. H. and H. R. Co.)_______________________________________134,135
Housing—regulation of rents—constitutionality of rent law—public inter
est (Block v. Ilirsh )_______________________________________________ 135-137
Insurance of employees—powers of municipalities—life insurance
(People ex rel. Terbush & Powell (Inc.) v. Dibble)--------------------------- 137
Labor organizations:
Boycott—conspiracy—closed-shop agreement — monopoly—injunction
(Brescia Const. Co. v. Stone Masons’ Contractors’ Assn, et a l.)__ 138,139
Boycott—conspiracy—interference with interstate commerce—injunc
tion (Burgess Bros. Co. (Inc.) v. Stewart et a l.)_______________ 139-141
Conspiracy—
“ check o ff” system—unionization of mines—injunction (Gasaway et al. v. Borderland Coal Corp.)_______________________ 141-144
monopoly—combination in restraint of commerce (Charles A.
Ramsey Co. v. Associated Bill Posters of the United States and
Canada et a l.) ------------------------------------------------------------------- 144-146
monopoly—combination in restraint of commerce (Sullivan et al.
v. Associated Billposters and Distributors of the United States
et a l.)------- ------------------------------------------------------------------------- 146,147
strike to compel contract—destruction of property (People v.
Raymond et a l.)----------------------------------------------------------------- 147-149
Industrial Workers of the World—
criminal syndicalism—membership as violation of law (State v.
H ennessy)-------------------------------------------------------------------------- 149,150
sabotage—interference with government (Haywood et al. v.
United States)___________________________________ _________ 150-152
Interference with incorporated local union by federation—injunction
(Kunze et al. v. Weber et a l.)---------------------------------------------------- 152-154
CONTENTS.
VI
Labor organizations—Continued.
Page.
Interference with interstate commerce—picketing-r-eonspiraey—in
junction (Herket & Meisel Trunk Co. v. United Leather Workers’
Int. U n ion )_________ ___________________________________________154-156
Picketing—
interference with contract of employment—injunction (Cyrus
Currier & Sons v. International Molders’ Union of North
A m erica)________________________________
156,157
secondary boycott—lawfulness of purpose—attempt to cause
breach of contract—injunction (Parker Paint & Wall Paper
Co. v. Local Union No. 813)_________________________________ 158-160
Protection of employees as members—constitutionality of statute
( People v. Western Union Telegraph Co. et a l.)___________________ 160
Rules—
expulsion of members—restoration by equity court (Burke v.
Monumental D iv ision )-----------------------160-162
right of members to petition—reinstatement of expelled mem
ber (Spayd v. Ringing Rock Lodge No. 665)_______________ 162-164
Strikes—
acts of violence—injunction (Charleston Dry Dock & Machine
Co. v. O’Rourke et a l.)____ _____________________________ __164,165
conciliation and arbitration—constitutionality of statute (Moore
Drop Forging Co. v. Fisher et a l.)____________ :_____________165,166
effect on contract of employment—status of employees (Birming
ham Trust and Savings Co. v. Atlanta, B. & A. Ry. Co.)___ 166-168
injunction^—contempt of court—felony- (State ex rel. Hopkins,
Atty. Gen. et al. v. Ho watt et al.) __________ ___________ ___168-171
interference with contracts—“ check o ff”—strike to compel col
lective agreement—injunction (Kinloch Telephone Co. et al. v.
Local Union No. 2 )_________*_____________ _______________ -171-173
interference with contracts—persuasion by proper argument—
injunction (McMichael et al. v. Atlanta Envelope Co. et a l.).173,174
picketing—
illegal acts—injunction (Densten Hair Co. v. United Leather
Workers’ International Union of America et a l.)_______174-176
interference with contracts—injunction—Clayton Act—
status of employees on strike (Quinlivan et al. DailOverland C o.)------------------------------------------------------------------- 176
interference with contracts—collective bargaining—injunc
tion (United Shoe Machinery Corp. Fitzgerald et al.). 177,178
interference with contracts—strike to compel collective agree
ment—injunction (Floersheimer Schlesinger et a l.)— 178,179
intimidation—injunction (Southern California Iron and
Steel Co.
Amalgamated Association of Iron, Steel &
Tin W orkers)—________________________________________180,181
open-shop dispute—injunction (American Steel Foundries
The Tri-City Central TradesCouncil et a l.)____ _______ 181-187
open-shop dispute—injunction (Marks Arnheim (Inc.)
H illm an)___________________________ ___________________187,188
reinstatement of discharged employee—injunction (W alter
A. Wood Mowing & Reaping Machine Co. Toohey et al. 188-190
reinstatement of discharged employees—injunction (Benito
Rovira Co. (Inc.) Yampolsky et al.)
190
v.
v.
v.
v.
v.
v.
v.
v.
CONTENTS,
VII
Labor organizations—Concluded.
Strikes—Concluded.
picketing—concluded.
Page,
secondary boycotts — injunctions prohibited — constitution
ality of statute (Truax et al. v. Corrigan et a l.)________191-196
strike to compel continuance of a department of employer’s
business—injunction (Welinsky v. Hillman et a l.)______ 196,197
strike to renew contract—injunction (Cooks’, Waiters’, and
W aitresses’ Local Union et al. v. Papageorge et al.)_.____ 197,198
unlawful acts—injunction (United Traction Co. v/D roogan
et a l.) ______:___________________________________________198,199
reinstatement of discharged employee—injunction (Mechanics’
Foundry & Machine Co. v. Lynch et a l.)___________________ _ 199, 200
restriction—constitutionality of statute (People v. United Mine
Workers of America)_______________________________________ 200,201
street meetings—constitutionality of ordinance—permits (City of
Duquesne v. Fincke)____________________________________ ___ 201, 202
Licensing of occupations—barbers—system of examination—constitution
ality (Timmons v. M orris)__________________________________________ 202,203
Mine regulations—washhouse—employer’s liability for clothing destroyed
therein (Prince v. King Coal Co.)_____________
203,204
State engaging in business—constitutionality of statute—cement manu
facture—“ public purpose” (In re Opinion of the Judges)___________204,205
Sunday labor—service labor—moving pictures (State v. Sm ith)_______ 205,206
Wages:
Compensation in absence of specific agreement—concurrent employ
ments (Demonstration Plantation Co. v. K earney)_________ ._____ 206,207
Minimum wage law—
constitutionality—hearings—form of order—value of room and
board (Spokane Hotel Co. v. Younger et al., Hotel Co. of Ta
coma v. Sam e)______________________________
207,208
contract of employment—statute forbidding discharge—constitu
tionality (Poye v. State)------------------------------------------------------- 209
criminal prosecution—publication of orders (State v. AJlyn) — 209, 210
injunction to restrain orders of industrial commission (North
western Telephone Exchange Co. v. Workmen’s Compensation
Bureau et a l.)__________________________ ___________________ 211,212
Misuse of funds by contractor—constitutionality of statute (People
v. H old er)_____________________________________________________ 212,213
Month to month employment—bonus offer—gratuity (Russell v.
H. W. Johns-Manville Co. of California)________________________ 213, 214
Overtime pay—contract of employment (Robinette v. Hubbard Coal
Mining Co.) ------------------------------------------------------------------------------ 214, 215
Penalty for nonpayment—
demand—attorney’s fee (Marrs v. Oregon Short Line Ry. Co.). 215, 216
federal railroad control (Missouri Pacific R. Co. et al. v. Ault)__ 216
place of contract (Klaffki v. Kaufman et a l.)_________________ 216,217
Rates—
railroads—
control by statute—United States Railroad Labor Board (St.
Louis Union Trust Co. v. Missouri & N. A. R. Co.) ______ 217-219
effect of statute—powers of receiver—status of employees on
strike (Birmingham Trust and Savings Co. v. Atlanta,
R. & A. Ry. Co.)___________ ____________________________ 219-221
VIII
CONTENTS,
Wages—Concluded.
p age.
Seamen—disease due to vice (Franco et al. v. Seas Shipping Corp.
( I n c .) )__________________________________________________ ___r_. 221, 222
Workmen’s compensation:
Accident—
death from pneumonia (Delso et al. v. Crucible Steel Co. of
America ) _____________________________________________________ 222
death from pneumonia (Dumbluskey t>. Philadelphia & Reading
Coal & Iron Co.)______________________________________
222,223
fighting fire— common hazard—frozen neck (Savage et al. v.
City of P ontiac)-----------------------------------------223,224
freezing of hand (Quick v. Fred E. IlM on Ice Co. et a l.)________ 224
Admiralty—
driver of truck injured by barge (McBride v. Standard Oil Co.
of New York)____________________________________
224,225
employers* liability—double compensation (Rorvik v. North Pa
cific Lumber Co. et aL )------------------------------ ---------------------------225, 226
stevedoring—longshoreman’s rights under elective law (Berry
v. M. F. Donovan & Sons (Inc.) et a l.)_______ . ____________ 226-229
Alien beneficiaries—equal protection of the laws (V ietti et al. v.
George K. Mackie Fuel Co.)________________ .____________ _______229, 230
Awards—
apportionment—lump sum—review (Texas Employers* Ins. Assn.
v, Rourdreaux et a l.)-------— -------------------— ----------------- _230-232
basis—business conditions (Capone’s case)___________________ 232,233
basis—earnings (Centralia Coal Co. v. Industrial Commission
et al.) ___________________________________ _—
233, 234
deductions—voluntary payments (Mercury Aviation Co. v. Indus
trial Accident Commission)_________________ _______________ 234, 235
impaired function—loss of use of eye—partial loss of use—
“ member ” (Chiovitte v. Zenith Furnace Co.) _____________ 235, 236
loss of several fingers—method of computation (North Beck Min
ing Co. et al. v. Industrial Commission of U tah)____________ 236,237
permanent partial disability—loss of use of arm—temporary par
tial disability (Wrenn v. Connecticut Brass Co. et a l.)____ 237,238
proximate cause—evidence—surgical operation not required by
injury (Dulac v. Proctor & Bowie Co. et a l.)_______________ 238, 239
remarriage of widow—child’s rights—subsequent legislation
(Riggs v. Lehigh Portland Cement Co.)___________________ 239,240
review—
change in condition (Lambert et al. tJ. P ow ers)._________ 240,241
discount for early payments—refusal to submit to opera
tion (Western Indemnity Co. i>. M ilam )________________ 241, 242
effect of supervening insanity (Ward v. Hetb Bros, et al.)_ 242
refusal to permit surgical operation (Strong v. SonkenGalamba Iron & Metal Co.) ____________________________242, 243
Casual employment—purpose of employer’s trade or business (Oliphant v. H awkinson)---------------------------- ---------- --------------------------- 243,244
Choice of remedies—effect of suit for damages (Hutton v. Link
Oil C o .)________________________________________________________244,245
Choice of remedies—rights strictly constructed (Poe v. Continental
Oil and Cotton Co. et a l.)------- ------------- *-----------------------------------245,246
CONTENTS.
IX
Workmen’s compensation—Continued.
Page.
Claim—voluntary payments—medical aid (Petraska v. National
Acme Co. et al.)__________________ ________ _____________________246,247
Compulsory application to coal mines—taking property without com-,
pensation—constitutionality (Lower Vein Coal Co, v. Industrial
Board of Indiana et al.)__________________________________
247,248
Decedent without beneficiaries—industrial rehabilitation fund—
State and Federal cooperation—constitutionality (Watkinson v.
Hotel Pennsylvania)__________________
248-250
Decedent without beneficiaries—payment to second injury fund—
constitutionality (Salt Lake City •«?. Industrial Commission of
U ta h )__________________________________________________________ 250,251
Dependency—
child living apart from divorced father (Stephens v. Stephens
et a l.)______________________________________________________251,252
member of household—assumption of guardianship in good faith
(Moore Shipbuilding Corp. et al. v. Industrial Accident Com
mission et al.)—----------------------------------------- :-----------------------252,253
method of measurement (Harris et ux. v. Calcasieu Long Leaf
Lumber Co.)________ '_________________________________ _____253,254
when determined (Employers’ Mutual Ins. Co. et al. v. Industrial
Commission of Colorado et a l.)____________________________ 254
of parents—test .{Hancock et al. v. Industrial Commission)___254,255
of sister—test (Driscoll v. Jewell Belting Co. et a l.)_________ 255
Disability—
impaired function—loss of both hands—loss of use—permanent
total disability (Ballou v. Industrial Commission et al.)___256,257
incapacity for former employment—increased wages (Geis v.
Packard Motor Car Co.)__________________________________ 257,258
loss of eye (Stammers v. Banner Coal Co. et aL )---------------------- 258
loss of eye—use of glasses (Butch
Shaver)________________ 259
Election—
rejection of law—defenses abrogated—Federal employers’ lia
bility act—interstate commerce (Foley v. Hines, Director Gen
eral of Bailroads)___________________________________
259,260
written acceptance—temporary suspension of work (MeOune v.
W m B. Pell and Bro.) ------------------------------------------------------- 261, 262
Election of remedies before injury—constitutionality (Industrial
Commission et al. v. Crisman)_________________________________ 262,263
Employee—
agricultural worker—contract of hiring (M atis v. Schaeffer
et al.) ------------------------------------------------------------------------------- 263,264
city firemen (Krug v, Gity of New York)---------------------------------264, 265
employer’s knowledge—volunteer (Burke v. Industrial Com
mission et a l.)------------------------------------------------------------------- 265,266
exclusion by amount of salary (Kelley's Dependents i\ Hoosac
Lumber Co.)-------------------- ------------------------------------- -------------266,267
general and special employer (Knudson et aL Jackson)_____ 267,268
independent contractor (Coppes Bros. & Zook v. P ontius)_____ 268
independent contractor—supervision (Helton
Tall Timber
Lumber Co.)-------------------- -------------------------------------------------- 268,269
policeman (Mann v.City of Lynchburg)_______________________ 269,270
policeman (Shelmadine City of Elkhart et aL)_____________270,271
X
CONTENTS.
Workmen’s compensation—Continued.
Employee—Concluded.
Page,
regular term of office—policeman—employment not for gain
(Rooney v. City of Omaha)_______________________________ _271,272
school janitor—employment not for gain (Ray v. School District
of Lincoln) ________________________ __________ ____________ 272, 278
soldier working in civilian occupation—suit for damages (Rector
v. Cherry Valley Timber Co.)______________________________ 273-275
subcontractor—liability of city for injuries to employee of a con
tractor (City of Chicago v. Industrial Commission et a l.)__ 275,276
voluntary worker on percentage basis (Rockefeller v. Industrial
Commission of U tah)_________
276,277
Employer—
business not for pecuniary gain—cook for golf club (Francisco
v. Oakland Golf Club et al.)____________ ___________ ______277,278
employee of State—payment by State ( Smith v. State Highway
Commission of Virginia et a l.)------------ --------------------------------- 278
grave digging—religious society—pecuniary gain (Dillon v.
Trustees of St. Patrick’s Cathedral)-_______________________ 278,279
longshoreman engaged by trade-union—employee (Hines v. Henry
I. Stetler (In c .))__________
279,280
number and place of employees (Vantrease v. Smith et a l.)__ 280,281
stockbrokers—messengers—workmen (Westbay v. Curtis &
Sanger et a l.)______________ _----------------------------- ------------- 281,282
Extraterritoriality—
acts of third parties—subrogation of rights (Anderson v. Miller
Scrap Iron Co. et a l.)_____________________.__________________ 282, 283
compensation act part of contract of employment (Crane v, Leon
ard, Crossette & Riley et a l.)------------.--------------- ------------------- 283,284
Hazardous employment—
common hazard (Illinois Publishing & Printing Co. V. Indus
trial Commission)----------------------------------------------------------------- 284,285
constitutionality of classification of employments (Europe Addi
son Amusements (Inc.) et al.)__— --------------------- :_________ 285,286
dependency—death of claimant—vested rights (East St. Louis
Board of Education v. Industrial Commission)___ __________ 286,287
power of commission (State v. Eyres Storage & Distributing
C o .)____________________________ - __________________________ 287,288
Injury—
accident—
arising out of and in course of employment—preexisting con
dition (Patrick v. J. B. Ham Co. et al.) __________________ 288, 289
causal connection—preexisting condition—evidence (Fink v.
Sheldon Axle & Spring Co.) ------------------------------- ----------289,290
heart disease—inhaling impure air (Utilities Coal Co. v. Herr
et a l.)__________________________________________________ 290,291
occupational disease—caisson disease—arising out of employ
ment (W illiams v. Missouri Bridge & Iron Co. et a l.)— 291,292
occupational disease—“ housemaid’s knee”—permanent par
tial disability (Standard Cabinet Co. v. Landgrave)------- 292,293
occupational disease—inhaling impure air (Prouse v. Indus
trial Commission of Colorado et a l.)------------------------------- 293,295
proximate cause—heart disease caused by dust-laden air
(Carroll et al. v. Industrial Commission)----------------------- 295,296
CONTENTS,
XI
Workmen’s compensation—Continued.
Pafie
Injury arising in course of employment—scuffling (Industrial Com
mission of Ohio v. W eigandt)________ ____________ ___________296, 297
Injury arising out of and in course of employment—
accident—evidence—epileptic drowned in water tank (Miller et
al. v . Beil et al.)________________________________________ 297,298
accidental shooting by employer (General Accident, Fire and Life
Assurance Corporation et al. v . Industrial Accident Commission
et al.)__________________________________________________ 298, 299
assault by assistant foreman (Stasmos v . State Industrial Com
mission et al.)--------- :_____________________________ _____ 299-301
assault by fellow employee—dispute over work (Payne, Director
General of Railroads, v . W all)______________________________ 301
assault by foreman (Knocks v . Metal Package Corp. et al.)_____301,302
burns received while extinguishing fire (Associated Employers’
Reciprocal et al. v . State Industrial Commission et al.) ____302,303
electrocution while going from work (Kowalek et al. v . New York
Consol. R. Co.)_________________________ ________________ 303,304
going from work—death while boarding train (Fisher v . Tide
water Building Co.)____________________ ____ ___ ________ 304,305
going to work—miner killed by train (Western Coal & Mining Co.
v . Industrial Commission et al.) ___________________________305,306
horseplay (Federal Mutual Liability Insurance Co. v. Industrial
Accident Commission of California et al.)__________________ 306
horseplay—injury by air hose (Socha v . Cudahy Packing Co.)_. 306,307
hotel fire—extraterritoriality (Stansberry et al. v . Monitor
Stove C o.)________________________________________— — 307,308
injury after working hours—act of striker (Rourke’s case)___308,309
lunch-hour accidents—injury in elevator—suit for damages (Mar
tin v . Metropolitan Life Ins. Co.)_________________________ 309, 310
night watchman killed by policeman (Heidemann v . American
District Telegraph Co.)-------------------------------------------------- 310
personal errand (Clark v. Yoorhees et al.)___________________ 311
violation of employer’s rules—work for fellow-employee (Hinton
Laundry Co. v . DeLozier)-----------------------------------------------311,312
violation of law (Union Colliery Co. v. Industrial Commission et
al.)__ ___________________________________________________ 312
Injury arising out of employment—
“ common hazards’’—employee not at hearing—evidence (Em
pire Health & Accident Insurance Co. v . Purcell)________ 313,314
death from lightning—“ common hazard” (Hassell Iron Works
Co. et al. v . Industrial Commission)______________________ 314,315
minor doing forbidden act (Radtke Bros, et al. v . Industrial
Commission of Wisconsin et al.)________________________ 315,316
proximate cause—preexisting idiopathic condition (Rockford
Hotel Co. v . Industrial Commission et al.)________________316, 317
returning from work—injury by third party—action for damages
(Koubek v . Gerens)______________________________________ 317, 318
Injury by third party—
choice of remedies (Leva v . Utah Fuel Co. et al.)____________318,319
choice of remedies—effect of suit—evidence (Bennett v . Page
Bros, et al.)_____________________________________________319, 320
effect of settlement (Renner v . Model Laundry Cleaning and
Dyeing Co. et al.)_________________________ ______________ 320,321
XII
CONTENTS.
Workmen’s compensation—Concluded.
Injury by third party—Concluded.
Page,
subrogation of insurer (Henderson Telephono & Telegraph
Co. (Inc.) et al. v . Owensboro Home Telephone & Telegraph
Co. et al.)____ __________________________________________322,323
Injury not covered by act—multiple injuries—exclusiveness of remedy
(Hyett v , Northwestern Hospital for Women and Children)____323, 324
Insurance—self-insurance—power of courts to determine employer’s
solvency—constitutionality (In re Southern Cotton Oil Co.)____324,325
Interstate commerce—oil for engines (Lindway v . Pennsylvania
Co.)________________________ ____ —________________________ 325,326
Jurisdiction of courts—lump sum settlements (Employers’ Indemnity
Corporation v . Woods et al.)______ .____________________ _______326, 327
Medical services—massage independent of treatment by physician
(Golden’s case)__________________ _______ ______________________ 327
Minor illegally em ployedinsurance (Edward Stern & Co. v . Liberty Mut. Ins. Co.)______327-329
suit for dam ag^ (Lincoln et al. v . National Tube Co.)_______ 329
suit for damages (Noreen v . William Vogel and Bros. (Inc.) 329-330
JN-otiee—first aid treatment—progressive disability—negative decision
final (Conley v , Upson Co. et al.)___ ______________ _________ 330-332
Permanent partial disability—disfigurement—single injury (Chicago
Home for the Friendless v. Industrial Commission et al.)__ ___332,333
Powers of commission—decision—findings of fact (Lorchitsky v.
Gotham Folding Box Co.)____________________________________333, 334
Railroad companies—
interstate commerce—employee on freight train—presumptions
(Philadelphia & Reading Ry. Co. u. Polk)___________ _ 334,335
interstate commerce—flagman (Philadelphia & Reading Ry. Co.
v. Di Donato)_______________________ ____________________
335
Second injury—
permanent partial disabilities—loss of eye and arm (Klippert
v . Industrial Ins. D ept of Washington)------------------------------336, 337
total disability—loss of one eye (Combination Rubber Mfg. Co.
v . Court of Common Pleas)_____ _______________________ 337, 338
Security of payments—violation a misdemeanor (People v . Don
nelly) _____________________________________________________ 338,339
Surgical treatment—
hernia—submission to operation (O. W. Rosenthal & Co. v . In
dustrial Commission)__________________________ :_________ 339, 340
refusing operation—reasonable ground (Grant v . State Industrial
Accident Commission)-----------------------------------------------------340,341
refusing operation—suspension of compensation (Myers v . Wads
worth Mfg. Co.)_____________________
341,342
Temporary total disability—permanent partial disability—submission
to operation—loss of use of hand (M t Olive Coal Co. v . Industrial
Commission)--------------------------------------------------------- ----------- - 342,343
Territories—power to supersede Federal statute (Camunas et al. v .
Porto Rico Ry. Light & Power Co.)________________________ 344,345
Total disability—release—intermittent disability (Fort Branch Coal
Co. v . Farley)______________________________
__.345,346
BULLETIN OF THE
U. S. BUREAU OF LABOR STATISTICS
no.
309
W A S H IN G T O N
august,
1922
REVIEW OF DECISIONS OF COURTS AND OPINIONS
AFFECTING LABOR, 1921.
IN T R O D U C T IO N .
Prior to the year 1912 the series of bimonthly bulletins of the
Bureau (earlier tjre Department of Labor, now the Bureau of Labor
Statistics) carried court decisions as a part of their contents. Be
ginning with that year, annual bulletins have be’en published, devoted
exclusively to the presentation of the decisions of courts and the
opinions of the Attorney General of the United States bearing on
various phases of labor. These bulletins are numbered 112, 152, 169,
189, 224, 246, 258, and 290. The last number named carries decisions
for 1919 and 1920, the material for these two years having been com
bined for a variety of reasons.
It is not attempted to present a complete list of cases of the classes
used, but rather to present illustrative cases embodying the principles
under consideration from time to tin^e. No bulletin is therefore a
complete treatise of the law of labor, but, taking the series together,
practically every form of legal question within the field is passed
upon. The cases used are in the main from the State courts of last
resort and the Federal courts, though in some instances cases from
courts of appellate but not final jurisdiction are taken. This is
notably true with regard to the Supreme Court of New York, which
furnishes a number of important cases affecting labor organizations,
the appellate court of Indiana determining many compensation cases,
and a few other courts of secondary rank for which decisions are
published by the West Publishing Co. in the National Eeporter
System. This system of reports is depended upon in the main for
the cases presented, the Washington Law Eeporter furnishing ma
terial for the District of Columbia, and advance sheets of the opinions
of the Attorney General for the Department of Justice.
The material is abridged, the statement of facts being in the lan
guage of the editors, usually with quotations from the language of
1
2
REVIEW OE OPINIONS AND DECISIONS OF COURTS.
the court setting forth the conclusions of law, though occasionally
the findings are stated in a briefer form by the editors without quo
tations. The decisions used are for the most part those appearing
in the publications named during the calendar year covered. The
present bulletin presents material as follows:
Opinions of the Attorney General, volume 32, page 369 to volume
33, page 106.
Supreme Court Reporter, volume 41, page 65 to volume 42, page 70.
Federal Reporter, volume 268, page 97 to volume 275, page 880,
Northeastern Reporter, volume 128, page 801 to volume 132, page
927.
Northwestern Reporter, volume 180, page 1 to volume 185, page 352.
Pacific Reporter, volume 193, page 561 to volume 201, page 1119.
Atlantic Reporter, volume 111, page 689 to volume 115, page 368.
Southwestern Reporter, volume 225, page 289 to volume 234, page
720.
Southeastern Reporter, volume 104, page 785 to volume 109, page
624.
Southern Reporter; volume 86, page 449 to volume 89, page 927.
New York Supplement, volume 184, page 833 to volume 190, page
864.
Washington Law Reporter, volume 49.
OPINIONS OF THE ATTORNEY GENERAL.
The Attorney General of the United States renders opinions on
request of the President and certain other officers of the Govern
ment, usually referring to a specific case, though in some instances
a general principle is considered. No case involving the question
of employment relations or other phase of labor was passed upon
during the year 1921, unless the retirement law for Federal em
ployees be regarded as an exception. The law became operative in
August, 1920, and some rulings under it were noted in Bulletin No.
290. The act applies to “ all employees in the classified civil service,”
providing retirement benefits for those who have reached the pre
scribed age (70 years for the great majority of employees) who have
rendered at least 15 years of service.
The question of status was involved in the case of a plate printer of
long experience and service in the Bureau of Engraving and Print
ing, who had resigned in 1914. During the war emergency, appoint
ments without examination were authorized, and the employee was
reinstated. On reaching the age of 70 years he was automatically
dropped, but was denied an annuity on the ground that he did not
possess a classified status. This ruling of the Commissioner of
Pensions, who is charged with the general administration of the act,
was approved by the Attorney General (Bradford case, 33 Op. A. G.
OPINIONS OF TH E ATTORNEY GENERAL.
3
93). Similarly, a disabled employee, wishing retirement on account
of disability prior to the attainment of the statutory age limit was
regarded by the Civil Service Commission as not eligible to an an
nuity because he had been appointed without examination. This,
too, was submitted to the Attorney General, and approved (Shelley
case, 33 Op. A. G. 106). The definition of the “ classified civil serv
ice ” was held to include “ only those positions to which appointment
must be made from lists certified by the Civil Service Commission
after examination, and to those persons only who are thus appointed.”
A broader inclusion indicated by the language of a rule of the
commission quoted in the opinion was said to refer only “ to the
potentiality, not the actuality, of classification.” If the President
excepts any position from the requirements for examination and cer
tification by the Civil Service Commission, “ the effect, in law, is to
withdraw the said positions and persons from the classified service,
and to leave them in the same situation as if, to that extent, no classifi
cation whatsoever had been made.”
This, of course, resulted in a denial of the application for a retire
ment annuity in both cases.
It may be noted that on March 27, 1922, following the foregoing
opinions, Congress enacted an interpretative law, construing the re
tirement act “ to include all persons who have been heretofore or
who may hereafter be given a competitive status in the classified civil
service with or without competitive examination,” thus enlarging the
act somewhat, as compared with the foregoing opinions.
Benefits accruing but not paid on account of the procedure required
between the time of application and the death of the applicant were
held to belong to the estate of the deceased claimant. (Weller Case,
32 Op. A. G. 552.) “ The annuity granted under the provisions of
this act, while partaking of the nature of a reward for faithful serv
ice, is not to be construed as a pure gratuity.” The contributions
made by the employee differentiate this annuity from Army and Navy
pensions.
An employee on protracted leave without pay on account of sick
ness was held entitled to compensation though she had rendered no
service from July 12, 1918, to the date the act became effective in
August, 1920. The status of the employee was of one on furlough
without separation from the service, and she retained the rights con
ferred by the law upon employees to whom the law applies. (Heth
case, 32 Op. A. G. 424.) However, where one has been separated
from the service and is beyond the retirement age he can not be
reinstated nor can a person beyond retirement age be employed after
the taking effect of the act. (McCammon case, 32 Op. A. G. 553.)
101296°—22---- 2
4
REVIEW OF OPINIONS AND DECISIONS OF COURTS.
D E C IS IO N S O F T H E C O U R T S .
ALIENS.
The Federal contract labor law, so called, also forbids encourage
ment of immigration u in any way.” The United States Circuit Court
of Appeals found an employer guilty of a violation of this statute
where in the course of correspondence he informed a citizen of Nova
Scotia that he had a place for him and would keep one open for his
wife when she might be able to come (U. S. v. International Silver
Co., p. 51), reversing the court below. {See Bui. No. 290, p. 71.)
An attempt by the State of California to tax unnaturalized aliens,
making employers liable for the annual poll tax, was held unconsti
tutional by the Supreme Court of the State (Ex parte Kotta, p. 52),
as denying persons within the jurisdiction of the State equal protec
tion of the laws.
CONTRACT OF EMPLOYMENT.
ENFORCEMENT.
A theatrical company was held entitled to an injunction against
certain performers who undertook to repudiate a contract for one
year, which gave the employer an option for a second year’s service.
(Shubert Theatrical Co. v. Rath, p. 64.) ‘The court held that a con
tract for exclusive services would sustain the injunction against a
contract with a rival manager. The fact that the contract called for
the performance of acrobatic feats on Sunday was held not to in
validate the law, since it was not shown that such exhibitions as were
contemplated were unlawful.
Another case involving the enforcement of an alleged agreement
as to engaging in competitive business was before the Supreme Court
of New” York, Appellate Division. (Kaumagraph Co. v. Stampagraph Co., p. 57.) Here the question involved was one of trade
secrets, and the court below granted a perpetual injunction against
former employees of the plaintiff company, forbidding their ever en
gaging in a similar business. The appellate division reversed this,
saying there was no evidence that there was a secret process involved
or that the plaintiff had exclusive rights in the process used.
The enforcement of an agreement to arbitrate was attempted in
In re Division 132 of Amalgamated Association of Street and Electric
Railway Employees of America (p. 59). The court found, however,
that the petitioners themselves had unjustifiably abandoned the em
ployment and had no status as employees, even if there had been a
valid agreement to arbitrate, which was not found in the contract
under consideration.
CONTRACT OF EMPLOYM ENT.
5
BREACH.
A Georgia statute provides penalties for the acceptance of ad
vances and failure to perform the services contracted for where
fraud is shown to exist. In Crayton v . State (p. 60) an alleged
offender was discharged where it appeared that there was not suffi
cient evidence of a lack of good cause for the failure to carry out the
contract, the burden of doing so resting on the State. Much the same
situation is discussed in Smith v . State (p. 60), where the same
statute was involved. The court of appeals reversed a judgment of
the court below, holding that the fraudulent intent must exist at the
time the contract is made, and that this was not proved.
Breach by an employer was the ground of* an action by a dis
charged employee who had a contract for 5 years’ service and was
discharged at the end of one year. (Golden Bod Mills v. Green, p.
61.) The right to discharge for unsatisfactory service was not spe
cifically retained, and the question of the nature of the service ren
dered was held properly one for a jury. The same question as to
right of discharge was involved in the case, American Trading Com
pany v. Steele (p. 61). The discharged employee was under a con
tract to do his work “ in an efficient and satisfactory way,” which
was held not to be the same as “ satisfactory to the employer.”
The nature of an agreement for employment for the remainder of
one’s life was passed upon by the Court of Appeals of Georgia. The
right to recover damages for unwarranted discharge was sustained
as against the contention that a contract for life was indefinite and
could be terminated at the option of either party. However, recov
ery was from the date of discharge to the date of the filing of the suit,
and not for the life expectancy as originally sued for. (Southern
Cotton Oil Co. v. Yarborough, p. 56.)
Not involving breach, but related thereto in an indirect way, was
the case of Woodson v. McLaughlin (p. 63). A share cropper occu
pying a house of his employer during the time of his employment
on the farm was held not entitled to occupancy of the premises after
the termination of his employment relation, the occupancy being
simply an incident of the employment. A second case that may
be noted here involved the question of making a new contract be
fore the old one had expired. (Sehwartzreieh v. Bauman-Basch
(Inc.), p. 67.) An employee was given a new contract at an increased
rate of pay to retain his services over the competition of a rival
bidder. It was decided that the prior contract was canceled at the
time of the making of the new one, so that a valid contract at a
higher rate was in force at the time that the employer discharged
the workman after but a few weeks’ service.
6
EE VIEW OF OPINIONS AND DECISIONS OF COURTS.
INTERFERENCE WITH EMPLOYMENT.
A statute of Mississippi provides penalties for willfully interfer
ing with or enticing away an employee under contract with and
actually in the service of another. In the case in hand (Beale v.
Yazoo Yarn Mill, p. 65), the employee had left the service of the
original employer, assuming that he had been discharged when he
refused to abide by a condition named as essential to continuing in
employment. Conviction in the lower court was reversed when it
appeared that the new employment, though begun during the term
of the original contract, was not entered into until the workman had
justifiably abandoned his employment.
A similar statute of Georgia was involved in Holt v. State (p. 66),
a conviction being reversed for failure to show that there was an
inducement offered for the employee “ to leave his employer during
the term of service.” A different aspect of the subject of interference
was considered in United States Fidelity & Guaranty Co. v. Millonas
(p. 67). Here an insurance agent found an employee retained in
the service of his employer, who was a policyholder in the com
pany, after having submitted a claim for compensation for injuries.
The agent procured the discharge of the workman because of his
having brought the claim. The suit for damages for procuring the
discharge was successful, the insurance company being held liable
for the conduct complained of in maliciously and wrongfully pro
curing the discharge. The prevention of reemployment by a workman
given an unsatisfactory clearance card was held not to sustain a judg
ment for damages in Cleary v. Great Northern E. Co. (p. 76). The
plaintiff was a railway employee and could secure no other employ
ment after his discharge because of the statement made on the clear
ance card, which he claimed was false. The employer had entered
the cause of discharge as being unsatisfactory service, and the clear
ance card contained the same statement. However, there was no
proof that this information had been given by the employer to any
other railroad company, so that the offense of blacklisting had not
been shown to have been committed.
Two cases of difficult classification are noted here, one involving
the status of a baggage porter on a railroad during the period of
control and operation by the United States. A bribe offered a bag
gage porter was held no.t to be an offense against the criminal code,
which penalizes bribing an official of the United States. (Krichman v. U. S., p. 76.)
A novel case, and lying on the border line of labor decisions, was one
involving the charge of conspiracy to prevent a minstrel performance
in a Tennessee city, the motive being to avoid the interruption of
farm work. (Calcutt v . Gerig, p. 55.) It was claimed that if the
STATE REGULATION OF EMPLOYM ENT.
7
exhibition took place farm laborers would attend it to the neglect of
the harvest, and the proprietor of the show was subjected to mob
violence and the exhibition prevented. A judgment for damages was
affirmed.
SEAMEN.
Seamen stand in a peculiar contract relation as compared with
other employees, and special laws regulate their discharge. In Jen
kins v. U. S. Emergency Fleet Corporation (p. 70), seamen shipped
at the port of New York for a trip to various places and back to the
final port of discharge in the United States north of Cape Hatteras.
It was held that a discharge at Tacoma, Wash., was not warranted
under the contract, that not being the port of final discharge, so that
the men were entitled to wages during time lost, and transportation to
New York if they desired to go. In The Inland (p. 71), it was held
that seamen signed for a voyage could not be required to accept a
lay off while the ship was undergoing unexpected repairs, but that
wages must be paid for one month under the statute. Where a con
tract was for six months, during which time it was considered that a
round trip would be completed, but owing to delay- the ship was on
the African coast at the expiration of this time, it was held that the
old contract had expired, and that a new contract entered into by
the captain under protest was nevertheless binding. (Shanley v.
U. S.5p. 69.)
COMPULSORY LABOR.
Kansas City, Mo., adopted an ordinance penalizing vagrancy, idle
ness, opposition to the war, sabotage, etc. The ordinance was held
unconstitutional in the case of Ex parte Taft (p. 53), in which the con
flict between the ordinance and State laws, as well as its assumption
of Federal powers, was condemned.
STATE REGULATION OF EMPLOYMENT, ETC.
Under this head may be noted a group of cases each representing a
separate form of intervention by the State in regard to employment
or the conduct of business. The first (Timmons v. Morris, p. 202)
relates to the constitutionality of a statute of a type quite generally
found, providing for the licensing of barbers. The law had been
upheld by the State supreme court, but the Federal court found that
the arbitrary exercise of power by the board of examiners was such
as to vitiate the law as a health measure, which was the only ground
for sustaining it. The act was therefore declared void.
The second case discussed the power of a city to authorize by ordi
nance group life insurance for its employees. (People ex rel. Ter
8
REVIEW OE OPINIONS AND DECISIONS OE COURTS.
bush & Powell (Inc.) v. Dibble, p. 137.) The Supreme Court of New
York held that the State possessed no such power, as the objects oi
insurance did not relate to those interests to which the activities of
the city government must be limited.
The Supreme Court of South Dakota furnished the governor of
the State an opinion upholding the constitutionality of a law author
izing the State to engage in the manufacture, distribution, and sale
of cement and cement products, taking the view that such action was
for a public purpose. (In re Opinion of the Judges, p. 204.) Not
authorizing a direct entrance into business, but providing for an
unusual degree of regulation of business conduct is an act of Con
gress authorizing the control and regulation of rentals, ejectments,
etc., in the District of Columbia. This statute was held constitu
tional on the ground that the letting of buildings in the District
was clothed with a public interest so great as to justify regulation,
in view of the existing circumstances. (Block v. Hirsh, p. 135.) On
the other hand, the so-called Lever Act, undertaking to regulate the
cost of food, was declared unconstitutional, the statute being so vague
and indefinite as to be repugnant to the Constitution of the United
States. (U. S. v. L. Cohen Grocery Co., p. 72.) The abstract right
of a State to regulate the coal-mining industry was upheld in Ameri
can Coal Mining Co. v. Special Coal and Food Commission (p. 74);
however, a temporary injunction restraining proposed regulations
was granted, apparently largely subtracting from the value of the
first opinion. (Yandalia Coal Co. v . Commission, p. 75.)
WAGES.
MINZMTFU-WAGE LAW.
Despite an unbroken line of affirmations, so far as State supreme
courts are concerned, the constitutionality of the minimum-wage law
of Washington was challenged in Spokane Hotel Co. v. Younger
(p. 207). Various points were raised as to conflict with State and
Federal constitutions, procedure, and the powers of the commission.
All were resolved in favor of the statute, and the act was upheld.
One point raised in this case was as to the necessity of personal
notice to all employers before the rate should become binding. The
court denied this, holding that the fixing of rates as provided by
the statute put the employer on notice. A contrary view was taken
by the Supreme Court of Minnesota, which held that criminal prose
cution for a violation of the law would not lie in the absence of an
affirmative showing that notice had been given employers of the
establishment of the rates. (State v. Allyn, p. 209.) It was said
that the order taken in connection with the statute amounts, in effect,
to a penal law, but added that the court would not take judicial
WAGES.
9
notice of such order—a position that does not commend itself as
quite congruous, as a knowledge of the law is presumed.
The constitutionality of orders issued under the minimum wage
law of North Dakota was questioned in Northwestern Telephone
Exchange Co. v. Workmen’s Compensation Bureau (p. 211). The
defendant bureau was charged with the administration of the act,
and the decision turned on technical points with regard to organi
zation, etc., so that the fundamental questions involved were not
discussed, but an injunction suspending the operation of the orders
was affirmed. New orders have since been issued.
The minimum wage law of Texas, in common with other laws of
like nature, contained a provision prohibiting the discharge of em
ployees for appearing before the administrative commission. An
employer convicted for violating this provision claimed that the act
was unconstitutional, violating due process of law, and impairing
the obligation of contracts. The court of criminal appeals of the
State rejected this contention and the conviction was affirmed. (Poye
v. State, p. 209.) No execution was had, however, because on motion
for rehearing the case was dismissed, the statute having been repealed
in the meantime.
HATES.
Minimum wage laws regulate the rates of wages for women and
minors only; for adult males the question of rates has usually been
left to open contract, but of late years the tendency to resort to arbi
tral boards is apparent. In St. Louis Union Trust Co. v . Missouri &
N. A. R. Co. (p. 217) it was held that the financial condition of the
road, rendering it impossible to continue business and pay the stand
ard scale fixed by the United States Railway Labor Board, warranted
the receiver in making contracts with the workmen at a lower rate.
A similar finding was made in the case of Birmingham Trust & Sav
ings Co. v . Atlanta, B. & A. R. Co. (p. 219), though with an excep
tion as to employees engaged in operating trains, as to whom a fixed
period must elapse under the statutes before a change can be effective;
an interesting point in this case was as to the status of employees
who had gone on strike, the court holding that there was a sufficient
interest in the order so that striking employees had standing in the
court in order to protect their rights during the period that they
had continued to work. Overtime pay was claimed by a workman
whose contract called for 8J hours’ work per day, but whose duties
actually required 12 hours’ service; after 17 months he sued for
overtime, but in the absence of an express contract, or circumstances
implying a contract for additional pay, and also in view of the ac
ceptance of the wages without protest, it was held that no claim
1 0
REVIEW OF OPINIONS AND DECISIONS OF COURTS.
for overtime would be sustained. (Robinette v. Hubbard Goal Min
ing Co., p. 214.)
An offer of a bonus for all employees in service throughout the
year was held not to sustain a claim for such bonus where a work
man was discharged before the year expired, there having been no
consideration to render the employer’s offer binding in law. (Rus
sell v. H. W. Johns-Manville Co., p. 213.)
Mentioned here for lack of a better classification is a case involv
ing concurrent employments. (Demonstration Plantation Co. v. Kearney, p. 206.) A bookkeeper serving one corporation was asked to
take charge of the books of another company controlled by the same
men that controlled the employing company. It was said that the
matter of compensation would be fixed later, but after two years
payment for services was denied. Suit resulted in a judgment for
the bookkeeper, as the service had been rendered with the knowledge
and consent and on the request of the responsible parties.
PENALTY FOR NONPAYMENT.
Statutes are found in a number of States providing for the con
tinuance of wages after service ceases where settlement is not made
on the termination of employment. The law of Idaho provides
for continuance for not more than 30 days, and also an attorney’s
fee, where the demand is found on trial to be justified. In Marrs
v. Oregon Short Line Ry. Co. (p. 215), judgment for the wages
was upheld, but the allowance for the attorney’s fee was stricken
out by the supreme court because the demand had exceeded the
amount found due as earnings. The California law on this subject
was construed by the State district court of appeal. (Klaffki v.
Kaufman, p. 216.) Failure to plead properly the place of the con
tract and of the performance of the work necessitated a new trial;
the trial court had awarded penalties, but the court of appeal found
a lack of compliance with necessary requirements to sustain judg
ment. There was a reversal and final determination in a case before
the United States Supreme Court (Missouri Pacific R. Co. v. Ault,
216), where the State courts had awarded recovery with penalties
under a statute of Arkansas. The railroad was at the time under
Federal control, and the Supreme Court held that the Government
had-permitted itself to be sued only for compensation for actual
services and not for punishment.
The right to a penalty was denied in Franco v. Seas Shipping
Corp. (Inc.) (p. 221), the claim being one of alien seamen who had
been found to be diseased, and were required to be sent to a hospital
for treatment, under a statute of the United States. Wages were
held to be due for the time in the hospital, as the statute required it,
p .
HOURS OF LABOR.
1 1
even though the sickness was due to vice, but the circumstances war
ranted the withholding of any penalty.
MISUSE OF FUNDS BY CONTRACTOR.
A* statute of California declares a contractor who appropriates
money for other use than that for which it was paid to him to be
guilty of embezzlement. This statute was declared unconstitutional,
since money paid to a contractor under his contract is his own, and
not for the use of any other person, so that it could not be made
criminal for him to dispose of it according to his own will. (People
v. Holder, p. 212.) It was also pointed out that the State constitution
does not permit imprisonment for debt, except in cases of fraud.
HOURS OF LABOR.
WOMEN.
A Nebraska statute limiting the hours of labor prohibited night
work for women after 10 p. m. in manufacturing, mechanical and
mercantile establishments. It was held (State v. Crounse, p. 132)
that the law was not violated by employing women in a newspaper
office at night, the establishment not coming within the classification
named in the law.
RAILROADS.
The employment of telegraph operators, limited to 9 hours per
day in offices continuously operated, but allowing 13 hours in offices
operated only during the daytime, was the subject of discussion by
a Federal court in United States v. Cornwall & L. R. Co. (p. 133).
An office remaining open from 6 a. m. to 9 p. m. in winter and to
10.30 in summer was held not to be “ operated only during the day
time,” so that an operator on duty for 11 hours, from 6 a. m. to 5
p. m., was held to be employed in violation of the law. In another
case (United States v. N. Y., N. H. & H. R. Co., p. 134) an employee
working from 5 to 7 hours within a 12-hour period, but relieved for
definite times during which he was not subject to call, was held not
to be continuously on duty for 12 hours, so that there was no viola
tion of the law in his case.
GENERAL EMPLOYMENTS.
The Kansas law creating a court of industrial relations gives this
body control over industries affected with a public interest, authoriz
ing the fixing of wages and hours of labor. In the case, Court of
Industrial Relations v. Chas. Wolff Packing Co. (p. 128), the Supreme
Court of Kansas upheld the law as constitutional and declared the
schedule of wages and hours binding upon the defendant company.
1 2
REVIEW OF OPINIONS AND DECISIONS OF COURTS.
Not involving specific work time, but taking into consideration the
right of the employer to all the products of the workman, is a case
(Ingle v. Landis Tool Go., p. 64) in which the right of the employer
to inventions by the employee was discussed. In the absence of any
contract to assign inventions to the employer, it was held that the
company had no right to the invention, and a judgment ordering an
assignment of the patent to the employer was reversed.
SUNDAY LABOR.
An Oklahoma statute forbids work on the first day of the week,
including “ servile labor, except works of necessity or charity.” A
ticket seller for a moving-picture theater was arrested under this
statute, but the prosecution failed on the ground that the work in
which he was engaged was not “ servile labor ” within the contem
plation of the law. (State v. Smith, p. 205.)
MINE REGULATIONS.
The laws of a number of States require the establishment of wash
houses at coal mines and other places where the employee is ex
posed to dirt, grease, and grime. The question of the responsibility
of the operator for clothing left by the employees in such washhouse
was passed upon by the Supreme Court of Oklahoma in the case,
Prince v. King Coal Co. (p. 203). The washhouse was supplied in
compliance with the law of the State, but through the negligence of
the company the building was destroyed by fire, together with its
contents, while the miners were in the mine. The provision of the
statute exempting the employer from liability for the destruction of
property left in the bathhouse was held by the supreme court of the
State not to relieve it from liability for losses due to its lack of
ordinary care.
EMPLOYERS’ LIABILITY.
ASSUMPTION OP RISE.
Perhaps the most deeply rooted of the common-law defenses
against suits by employees for the recovery of damages for in
juries during employment is that of assumption of risk. Naturally
the intelligence and experience of the employee is a factor in de
termining whether or not the risk is assumed. This point is brought
out in two cases decided on the same day by the same (Virginia
Supreme) court, and involving quite similar physical circumstances.
In one case. (Addington v. Guests Kiver Coal Co., p. 88) an ex
perienced miner was killed by a large piece of rock falling on him
e m p l o y e r s ’ l ia b il it y .
13
at his work place. It was his duty to place his own props, which had
]been duly supplied. The court found that he had assumed the risk,
being familiar with the conditions and requirements of his employ
ment, and his failure to use the props was also contributory negli
gence. On the other hand, a young man without previous experience
in the mine, sent with an experienced miner to load coal into the
cars, was held entitled to recover for an injury received from falling
slate, the court finding that he had not been instructed as to the
dangers of the situation and was unacquainted with them. (Clinchfield Coal Corp. v. Hawkins, p. 89.) The Court of Civil Appeals of
Texas held that a worker had assumed the risk where he needlessly
overexerted himself, knowing that assistance was readily available.
(Hines v. Ross, p. 89.)
NEGLIGENCE.
The negligence of the employer in failing to cut off the current
from electrical connections at the working place of an employee was
held by the trial court in Egan v . Trenton Gas & Electric Co. (p. 103)
to warrant a judgment for damages, but the Supreme Court of Mis
souri, while recognizing the hazardous nature of this business, found
that the workman had failed to take reasonable precaution for his
own safety, knowing the dangers, and could not recover because of
contributory negligence.
Negligence of a quite different form was involved in the case,
Carey v. Davis (p. 105), determined by the Supreme Court of Iowa.
Here the plaintiff was a farm laborer, overcome by heat while work
ing in a gravel pit. No sufficient care was taken to provide for his
comfort, and the resultant exposure led to illness on account of which
it was held that he was entitled to sue for damages.
The responsibility of an employer for the negligent act of the
driver of a truck transporting employees to their place of work was
asserted in Phillips v. Armour & Co. (p. 104).
VICE PRINCIPALS.
The fact that a foreman was supposed to retain and direct em
ployees under him will sustain a judgment for damages for an assault
committed in anger at an employee who refused to obey orders or
to continue service. (Nash v. Longville Lumber Co., p. 86.) This
principle was held, however, not to extend to a subforeman who got
into an altercation with a workman engaged with him, the Supreme
Court of Mississippi holding that the parties to the dispute were
fellow servants, and further that neither was acting within the
course of his employment. (Petroleum Iron Works v. Bailey, p. 87.)
14
REVIEW OF OPINIONS AND DECISIONS OF COURTS.
A case lying between the above was one in which the son of the
proprietor of a hotel was employed to assist his father and look
after his interests. A disagreement with an employee as to terms
led to the latter’s leaving employment, whereupon the son engaged
in a dispute and an assault. A judgment for damages and exemplary
damages was affirmed by the Supreme Court of Minnesota, the mas
ter being said to be charged with responsibility of knowing what sort
of person he invests with authority to act for him. (Schmidt v .
Minor, p. 85.)
INJURIES TO THIRD PERSONS.
The liability of an employer to third persons for the injurious
acts of his employees was affirmed in the case of City of Indianapolis
v. Lee (p. 103), the rule carrying so far as to entail responsibility
where the immediate employee has directed an outsider to operate the
employer’s instrumentality through which the injury occurred. This
principle was held to make an employer of strike guards responsible
for their acts in assaulting and arresting an innocent bystander under
the assumption that he was one of a party engaged in attacking the
employer’s property. (Mclnerney v. United Railroads of San
Francisco, p. 100.) However, exemplary damages would not be al
lowed unless the act was done with the knowledge and approval of
the employer.
SAFE PLACE AND APPLIANCES.
The mining law of Arkansas requires a circulation of 200 cubic
feet of air per minute at all working places. A suit for damages, fol
lowing an explosion of gas, due to insufficient ventilation, was de
cided in the plaintiff’s favor over evidence that it was not practical
to comply with the statute. The common-law defenses had been
submitted, and disallowed by the jury, while the question of prac
ticability was said to be one for the legislature and not for the court.
(Central Coal & Coke Co. v . Barnes, p. 123.)
Building operations are regulated by a New York statute which
devolves upon the employer the responsibility of supplying an
adequate scaffold. The court of appeals of the State held that a tem
porary flooring upon crossbeams of a coal trestle in process of con
struction was a scaffold within the purview of the act, reversing the
trial court on this point. (Ross v. Delaware, L. & W. R. Co., p. 124.)
Inasmuch as the employer has a positive duty with regard to
scaffolds, the defense of assumed risk would not be available.
Failure to guard a projecting set screw on a revolving shaft was
held by the United States Circuit Court of Appeals to violate
the employers’ liability law of Alabama with regard to defective con
ditions of machinery, etc., entitling an injured man to a judgment
e m p l o y e r s ’ l ia b il it y .
15
for damages for injuries. (Standard Portland Cement Co. v. Foley,
p. 123.) The employee was said to have a right to a safe place to
work, without being required to make an investigation for himself.
Factory conditions were also involved in the case, Naylor v. Holland-St. Louis Sugar Co. (p. 125), decided by the appellate court
of Indiana. In this case a workman was installing a coal con2
veyor near some boilers on which were defective and unguarded
water gauges, of which fact he was ignorant, though it was known
to the defendants. An injury resulting from the explosion of one of
the water gauges was held to entitle him to sue for damages.
Approximating the situation in which the construction of a scaffold
was involved is the case, George Leary Construction Co. v. Matson
(p. 126), in which the United States Circuit Court of Appeals affirmed
a judgment in favor of a workman injured by defective timbers while
driving piles. The selection of the timbers was made by a foreman,
and the work being done on a scow, the employee was held to be a
seaman, entitled to recover under the provisions of the Federal law
classifying employees on vessels.
The construction of the employers’ liability law in Arizona was in
volved in Consolidated Arizona Smelting Co. ivEgich (p. 98). The
liability created by this act is not to be evaded by furnishing a safe
place and safe tools or implements, if nevertheless the condition or
conditions of the occupation are responsible for an injury. The
danger need not be inherent in the occupation, but the conditions
may be responsible for the injury, and under the law the only risk
the employee assumes is that of his own negligence.
CONTRACTORS.
An independent contractor has no claim on his principal where
the control of the mode of work rests in his own hands; but where
the method employed by the contractor is changed by the principal
and he assumes control and direction thereof the ordinary relation
of master and servant follows, with a corresponding liability for
any injuries that may occur. (Gammage v. International Agricul
tural Corp., p. 90.) The rule was also applicable where an em
ployee of the principal was turned over to an independent contractor
without any knowledge on his part of the transfer, his act being
merely one of obedience to the directions of the person whom he was
accustomed to expect instructions from. (King v. Atchison, T. & S.
F. R. R. Co., p. 91.)
VOLUNTEERS.
A volunteer, by which is meant a person engaged in employment
without the request or assent of the employer, has no claim on the
16
REVIEW OF OPINIONS AND DECISIONS OF COURTS.
person for whom he is rendering service, occupying practically the
position of a trespasser. However, even a trespasser must not be
recklessly imperiled* so that one volunteering to assist the driver of
a wagon was held entitled to recover damages for injury caused
by a sudden turn of which no warning was given. (Book t>.
Schultz, p. 106.) The same rule was applied in a Connecticut case
(Kalmich v. White* p. 92) in which a nine-year-old boy had been
requested by the driver of a truck to assist in some work that he was
doing. The circumstances of the injury were identical with those
in the Rook case noted above, and the denial of any remedy by the
trial court was said by the supreme court of errors to be unjustified,
and a new trial was ordered.
UNLAWFUL EMPLOYMENT OF CHILDREN.
The statute of Arkansas forbidding the employment of children un
der 14 years of age was held valid and to bar defenses of assumed risk
and contributory negligence when a boy was employed in violation
of the act. Unlawful employment was said to constitute negligence
per se (Terry Dairy Co. v. Nalley, p. 93.) However, since the lad had
misrepresented his age, and the employer had been denied permission
to introduce evidence, as to his actual age, a new trial was ordered.
The doctrine that prohibited employment is negligence per se was
limited by the Supreme Court of Alabama. (Birmingham News Co.
ti. Andrews, p. 95.) The court held that if the violation merely fur
nished a causal condition and was not the proximate cause of the in
jury, it did not entail liability. The injured boy was at work at night
in violation of the law, but not in a prohibited place of employment.
The injury was received in the course of a playful diversion from
employment, and a judgment for damages was reversed and the cause
remanded for a determination of the liability without reference to
the statute prohibiting night work.
Employment in a coal mine is forbidden by a West Virginia statute
for children under 14 years of age. A boy under 14 was injured
while switching loaded cars in and about the tipple of the mine, and
this was held by the trial court not to be within the prohibition of the
law. The supreme court of appeals of this State, however, took the
opposite view, and held that the place where he was employed was
covered by the statute, so that a verdict rendered by the jury should
be made the judgment of the court. (Mangus v. Proctor-Eagle Coal
Co., p. 97.) In this case the employer had contributed to the work
men’s compensation fund of the State, but this was held to be no bar
to a suit for damages, as where employment is unlawful, neither
party to the contract is protected by the workmen’s compensation act.
e m p l o y e e s 7 l ia b il it y .
ADIOKALTY.
17
The right of employees in and about vessels to recover damages for
injuries is involved in much difficulty. The Supreme Court of the
United States had before it recently a case (Western Fuel Co. v.
Garcia, p. 83) involving a variety of uncertainties, the final outcome
being an entire loss of recovery for a fatal accident. A stevedore
who worked in the hold of a vessel was killed, and a claim for com
pensation was allowed by the State industrial commission, but an
nulled by the supreme court of the State a year and a day after the
death. Action for damages was then brought in admiralty, relying
on the State law giving the right to sue for fatal accidents. Judgment
was in plaintiff’s favor in the district court, but the supreme court
held that as the statute giving the right to sue contained the limitation
of one year, no action could be brought at the time of the beginning
of the present suit, and the case was dismissed. It was recognized
in the foregoing ease that actions for death based upon the statutes of
the States could be brought in maritime cases, and the United States
Circuit Court of Appeals for the Second Circuit affirmed a judgment
made in accordance with this principle in White v. John W. Cowper
Co. (p. 82). This case arose under the New York law, no recovery
for death being provided by maritime law, but the State law is con
strued to apply when the injury takes place within its territorial
waters.
The question of what law applies was involved in a rather con
flicting fashion in The Hanna Nielsen (p. 77), the injured man being
a Norwegian on board a ship of Norwegian nationality. He signed
on at Portland, Me., and was injured in British territorial waters
at Gibraltar. A judgment allowing for cure and maintenance was
reversed by the circuit court of appeals on the ground that the ship
had complied with the obligations of the Norwegian law, holding
also that the American law had no application, and if any claim
was based on British law it should have been proved.
A case that covers an interesting portion of history is one in
which suit was brought on account of the death of a longshoreman
in 1918. {Kennedy v. Cunard S, S. Co., p. 78.) At the time of this
injury the New York compensation law was supposed to cover the
accident, and benefits had been awarded. On the finding by the
Supreme Court of the United States that this provision of the law
was unconstitutional, the payment of compensation was stopped and
this action brought. The case was dismissed in the trial court, but
the apellate division reversed that decision and ordered a new trial,
discussing at considerable length the status of maritime injuries.
A point of interest, in view of the finding in Berry v, M. F. Dono
van & Sons (p. 226) is the statement in the Kennedy case that as
18
REVIEW OF OPINIONS AND DECISIONS OF COURTS.
the contract was a maritime one the State statute can not be read
into it; in the Berry case the opposite was held.
The remaining case under this head is one classifying the employ
ment of an employer loading freight on a ship at a dock, the injury
being declared to be maritime (Crane v. Pac. Steamship Co., p. 81);
however, this was held not sufficient ground for removing the case
from the common law to the admiralty docket.
RAILROADS— FEDERAL STATUTE.
! ssumption of risk .—Though modifying in a large degree the
A
common-law defenses, the Federal employers’ liability act applicable
to railroad companies permits the defense of assumption of risk.
This was applied by the Supreme Court of the United States, though
with a strong dissent, to a case in which a locomotive engineer was
held to have assumed the risk of the position of a mail crane by
which he was struck while leaning out of a cab to examine the en
gine while it was running. (So. Pac. Co. v. Berkshire, p. 107.) A
similar finding was made in DeBaur v. Lehigh Valley R. Co. (p. 116).
In this case a flagman sent back to give warning of a work train
was struck by another train and killed. No recovery was allowed
on the failure to prove negligence on the part of the company, the
doctrine of assumption of risk being operative.
Damages .—State practice was said to warrant the introduction
of evidence as to the prospects of promotion of a fireman killed
by accident in Texas. (Payne v. Allen, p. 108.) Damages were al
lowed under the Federal liability law, using as a basis the increased
earnings that would have accrued if the anticipated promotion had
taken place. This finding was approved by the State court of
appeals as permissible under Texas procedure, ruling that the evi
dence should not be refused simply because a Federal law was
being applied.
W aiver .—The Supreme Court of the United States sustained the
validity of a contract by an express messenger waiving all rights
to sue either his employer or the carrier railroad in case of personal
injury. (Wells Fargo & Co. v. Taylor, p. 109.) A, State court had
given damages despite the contract, while a Federal (district) court
enjoined the recovery of the judgment. On appeal to the Circuit
Court of Appeals, this decision was reversed, leaving the suitor
free to collect the judgment, but on further appeal, the Supreme
Court made the ruling indicated; i. e., that no recovery could be had.
Place of suit .—An attempt was made in Chicago, M. & St. P.
R. Co. v . McGrinley (p. 117) to compel the bringing of a suit within
the State where the injury was received. The action was under the
Federal employers’ liability act, under which State and Federal
e m p l o y e r s ’ l ia b il it y .
19
courts have concurrent jurisdiction. The railroad company secured
an injunction preventing suit outside of the State of Wisconsin,
where the injury occurred, but the supreme court of that State held
the injunction granted too broad, saying that it should have been
worded so as merely to restrain further action in the county in which
the suit was brought.
Interstate commerce .—The difficulties attendant upon determin
ing under which law to bring an action for railroad injuries continue
to perplex suitors seeking the determination of their rights in the
courts. The Court of Appeals of Kentucky ruled that a locomotive
engineer procuring oil for his engine which he was preparing for an
interstate trip was engaged in interstate commerce, reversing the
court below, which had awarded damage under the State law.
(Hines v. Burns’ Admx., p. 112.) The Federal law was also held to
apply in case of a fatal injury to a locomotive engineer who was on
his way to the roundhouse to put up his engine after having com
pleted an interstate run. (Director General of Railroads v. Ben
nett, p. 114.) The statute was also held to apply to a car inspector
and repairman whose work was executed on interstate and intrastate
cars indiscriminately, and who was killed wT passing through
hile
the yard in the course of his duty. (Hines v. Logan, p. 111.) A step
more remote was held not to remove a laborer in a car shop from the
scope of the Federal statute. (Koons v. Phila. & Reading R. Co.,
p. 113.) Suit had been brought under the State law, but judgment
was for the company on the ground that the wrong remedy was at
tempted, death having resulted from a mishap while unloading a
portion of a car wrecked in interstate commerce from a gondola on
which it was brought into the shop. Since more than two years
had elapsed from the date of the injury, the limitation fixed by the
Federal law barred recovery under it, so that no relief could be
obtained.
Furnishing steam at a heating plant to supply both interstate and
intrastate cars was held to be interstate employment so as to bar
proceedings under the workmen’s compensation law of Connecticut.
(Gruszewsky v . Director General of Railroads, p. 115.)
Safety appliance acts .—The Supreme Court of the United States
denied the right of recovery in the case of the fatal injury of a brakeman whose death resulted from the defective condition of a crippled
car standing on a railroad siding, which was not supposed to be
touched or moved in the process of the brakeman’s work. The ma
jority of the court held that since the defective car had no place in
the performance of the work, its condition was not the proximate
cause of the accident (Lang v. N. Y. Central R. Co., p. 118) ; there was
101296°—22-----l3
2 0
REVIEW OE OPINIONS AND DECISIONS OF COURTS.
a vigorous dissenting opinion. A switchman injured by reason of
defects in cars, in violation of the safety appliance act, was held
to be employed in a line of service bringing him within the benefit of
the statute. The question of interstate commerce was not involved,
and the employer claimed that the workmen’s compensation act of
the State controlled. The trial court gave judgment under the statu
tory liability doctrine of the safety appliance act, but the appellate
division reversed this decision, sustaining the contention that the
workmen’s compensation act governed. Further appeals to the
court of appeals affirmed the trial court’s decision rejecting the
State remedy for that provided by the Federal enactment. (Ward
v. Erie B. Co., p. 121.)
WORKMEN’S COMPENSATION.
CONSTITUTIONALITY.
The cases arising under the headingConstitutionality ” are not ad
dressed to the general principles of compensation legislation, which
are thoroughly established, but rather to specific provisions or inci
dents of the various laws. The nearest approach to an exception to
this statement is the action of the Supreme Court of Arizona declaring
unconstitutional the act of 1921, intended to supersede an earlier law.
The State constitution secures to injured employees the option to
choose a damage suit or compensation under any law that the legis
lature might enact, which the earlier law allowed. The act of 1921,
however, required prior election, which was held to violate the con
stitution, and being an essential feature of the act, invalidated the
whole. (Industrial Commission v. Crisman, p. 263.) The act being
void ab initio, it did not effect a repeal of the earlier act.
A case coming to the Supreme Court of the United States passed
upon an amendment to the Indiana compensation law by which the
legislature of 1919 made the act of 1915 compulsory as to employment
in and about coal mines, leaving it optional as to other employments.
A mining company sought to reject the law, as before the amendment
it might, claiming that the amendment was an unreasonable and
arbitrary exercise of power. The District Court of the United States
had refused to enjoin the State authorities from enforcing the law,
and the Supreme Court took the same position, holding that the
nature of the work was so distinctive as to warrant the difference
in legislative action. (Lower Vein Coal Co. v. Industrial Board,
p. 247.)
The Supreme Court of Utah held constitutional a provision of the
compensation law of that State which authorized the payment of a
fixed sum into the State treasury in cases in which the deceased em
ployee, on account of whose death compensation would ordinarily
w o r k m e n ’s c o m p e n s a t io n .
2 1
be due, left no dependents. (Salt Lake City v. Industrial Commis
sion, p. 250.) The object of this agreement was to create a special
fund to compensate employees suffering a second injury, a similar
provision of law having been rejected by the Supreme Court of New
Jersey (see Bui. No. 290, p. 844), but upheld by the Court of Ap
peals of New York (Bui. No. 258, p. 228).
The action of the New York court as to the second injury fund may
be said to indicate the position to be taken with regard to a rehabili
tation fund, provided for by an amendment of 1920. This authorized
a contribution of $900 to such a fund in cases where no dependents
survived. The act was held constitutional, (Watkinson v. Hotel
Pennsylvania, p. 248). Involved in the discussion was the question of
the constitutionality of the act accepting the provisions of the Fed
eral statute providing for State and Federal cooperation in the mat
ter of rehabilitation. The State law on rehabilitation was held to
be an independent enactment, but the acceptance of cooperation was
held also to be constitutional, so that the legality of the whole system
was affirmed.
A provision of the Louisiana law requires employers to file with
the district court of the parish of their domicile proof of their ability
to make payments under the statute. The duty of passing on this
subject was held not to be properly a function of the judges, and
the provision was declared invalid. (In re Southern Cotton Oil
Co., 824.)
The authority of the legislature of Porto Rico to enact a com
pensation law for the island was upheld in Camunas v. Porto Rico
Ry., Light & Power Co. (p. 844), over a contention that the Federal
statute as to railroads could not be superseded by such action.
p.
INJURIES COMPENSATED.
Compensation laws as a rule are applicable to accidental injuries.
Sunstroke is so classed in a Pennsylvania case, the labor inducing it
having taken place during employment at farm work but under
a contract for work at a coal yard. (Matis v. Schaeffer, p. 268.) In
Quick v . Fred E. Illston Ice Co. (p. 224), the freezing of a workman’s
hands while harvesting ice on a cold day was held to-be such an
injury as the New York law would regard as an accident within the
meaning of the statute. Quite different was the position taken by the
Supreme Court of Michigan in Savage v. City of Pontiac (p. 223).
Here a city fireman at work for 6 hours on an intensely cold and
windy day incurred injuries resulting in his death. The court held,
two justices dissenting, that there was no accidental injury, and that
an injury received in the course of employment through natural
causes involving a common hazard was not compensate under the
Michigan statute.
22
REVIEW OF OPINIONS AND DECISIONS OF COURTS.
Death from pneumonia gave rise to compensation payments under
a decision of the Supreme Court of New York (Delso v. Crucible
Steel Co., 222) and in Pennsylvania (Dumbluskey v. Philadelphia
& Reading Coal & Iron Co., p. 222). In the first case the dece
dent received a heavy blow on his chest while at work, dying of pneu
monia on the fifth day thereafter; while in the second a squeeze or
blow by a heavy timber was held to be the occasion of traumatic
pleurisy or influenza, a fatal case of pneumonia following.
The foregoing cases of disease are entirely distinct from any
classification as occupational diseases, which are compensable under
the laws of a few States. Among those commonly so classed is
caisson sickness, caused by work under excessive air pressure. How
ever, the Supreme Court of Michigan declined to class the disease
as occupational, and permitted an award for accidental death in a
case in which the workman was affected with dizziness and partial
paralysis as the result of caisson sickness, by reason of which he
fell and sustained fatal injuries- (Williams v. Missouri Bridge &
Iron Co., p. 291.) A carpenter suffering from “ housemaid’s knee,”
usually classed as an occupational disease, was allowed compensa
tion by the Appellate Court of Indiana (Standard Cabinet Co. v.
Landgrave, p. 292), the court ruling that even if so classed, if it was
contracted under conditions constituting accidental injury, it was
compensable.
A workman employed in an alfalfa mill where the air was very
dusty developed an attack of heart trouble which caused his instant
death. He had organic heart trouble, and the industrial commission
refused an award, holding that the death had not been the proximate
result of an accident. The Supreme Court of Colorado, however,
took the view that the dust-laden condition of the air was the prox
imate cause of the death, the result being unexpected and unintended,
therefore accidental. In accordance with this conclusion the com
mission was directed to enter an award allowing compensation.
(Carroll v. Industrial Commission, p. 295.) On the same day the
same court rendered a decision over a vigorous dissent taking a
view so apparently contradictory to the foregoing that it is difficult to
account for the conclusion reached. A miner died from blood poison
ing, due to the inhalation of foul air and dioxide gas. The industrial
commission had denied compensation; and the district and supreme
courts adopted the same position, the latter holding that no accident
could be charged as a definite time was lacking, nor could it be un
expected since bad air was a continuing condition of which the de
ceased was aware, so that the element of unexpectedness could not
be considered as present. (Prouse v. Industrial Commission, p. 293.)
The Appellate Court of Indiana passed upon a case -combining ele
ments of both the above Colorado cases in that the injury was the
p .
WORKMEN 7S COMPENSATION.
23
result of inhaling impure air in a mine, and the person affected died
of heart disease, which the autopsy showed to have been serious and
chronic. The court held that the fatal culmination was due to
accident and approved the award made by the industrial board.
(Utilities Goal Co. v. Herr, p. 290.)
The aggravation of a preexisting condition was said by the Su
preme Court of Maine to warrant the allowance of an award where
cerebral hemorrhage followed exertion by a workman suffering from
diseased arteries. (Patrick v. J. B. Ham Co., p. 288.) Failure to
establish causal connection led to the rejection of a claim where
a workman suffering from arteriosclerosis claimed that his being
knocked down by a swinging door was the cause of paralysis from
which he was suffering. (Fink v. Sheldon Axle & Spring Co., p. 289.)
EMPLOYMENT STATUS.
The rule as to the employment relation is fundamentally not dif
ferent under workmen’s compensation laws and other laws having
to do with employer and employee. However, a number of com
pensation laws established limitations or tests of eligibility for
persons claiming to be employees thereunder. Turning on the gen
eral doctrine of relationship, the Supreme Court of Louisiana af
firmed a decision of the court below denying compensation where a
workman was held to be an independent contractor, since he was
paid merely for the amount of his product without restriction as
to the time and method of performing his work. (Helton v. Tall
Timber Lumber Co., p. 268.) The circumstances surrounding the case
of Coppes Bros. & Zook v. Pontius (p. 268) led the Appellate Court
of Indiana to take an opposite view where a workman was paid by
the amount of work done and not by days worked, but was subject
to such control as the employer saw fit to exercise.
The Illinois law is applicable to public employees, and provides
that the principal is liable for the employees of his contractor unless
such contractor insures his liabilities under the law. This was held
to sustain an award against the city where an employee of a sub
contractor was injured and his immediate employer was not insured.
(City of Chicago v. Industrial Commission, p. 275.)
Authorities differ as to the party responsible where a general
employer loans an employee to a third party as special employer for
the time. In Knudson v. Jackson (p. 267) the Supreme Court of
Iowa held that the general employer was the responsible party, the
relationship with the employee having been entered into with them,
while the employee had made no arrangement of his own with the
special employer to whom he had been assigned by his original
employer.
24
REVIEW OF OPINIONS AND DECISIONS OF COURTS.
An unusual situation is presented in a case passed upon by the
Supreme Court of New York, Appellate Division, in which the
status of a labor organization as employer was involved. (Hines v.
Henry I. Stetler (Inc.), p. 279.) The claimant was a longshoreman,
and the docks were distributed by the longshoremen’s union among
themselves, and a rate for loading and unloading was fixed. Per
sons desiring service paid the agent of the organization the rate
charged, while the latter assigned the workmen and gave them their
directions, the result being that the agent of the organization was an
independent contractor, and an injured workman could not look to
the owner of the truck or the goods for compensation.
A variety of questions were involved in Hector v. Cherry Valley
Timber Co. (p. 273), a case decided by the Supreme Court of Wash
ington. The claimant was an enlisted soldier, detailed for work at
logging with which he was familiar. On the receipt of personal
injuries he sued for damages, claiming that as his employment was
involuntary the State compensation law did not apply. The court
rejected this contention, holding that enlistment could not be classed
as involuntary servitude, regardless of the mode of induction there
into; nor could the present relationship be regarded as other than
voluntary employment, even though done under military assignment.
The compensation act therefore applied and a judgment for damages
recovered in the court below was reversed.
The status of a voluntary worker on a percentage basis was con
sidered in Rockefeller v. Industrial Commission (p. 276). The worker
drove a taxi at such times as he chose, keeping as compensation a
percentage of the charges. It was held that he was not an employee
within the meaning of the act but a bailee and excluded from com
pensation benefits. A somewhat similar case was before the Supreme
Court of Colorado, in which it was held that the driver of a tourist
automobile, who had been discharged by his employer on the day
preceding his fatal injury received while taking a party of tourists
in disobedience to orders, was outside the law. (Burke v. Industrial
Commission, p. 265.)
Statutes defining what employees come under the act usually ex
clude agricultural labor, but the Supreme Court of Pennsylvania
affirmed an award in the case of a laborer hired to work in a coal yard
and sent by his employer to assist in the harvest work during a slack
time at the coal yard. (Matis v. Schaeffer, p. 263.) It was said that
the general character of the work for which he was hired determined
the status of the employee rather than the nature of the work that he
was doing when the fatal injury was received.
Statutory inclusions and exclusions are based on a variety of tests.
The law of Tennessee is not applicable unless the employer has at
w o r k m e n ' s c o m p e n s a t io n .
25
least 10 persons in his employ. The supreme court held, however,
that it was not necessary thgtt these should all be at the same place,
but if the aggregate of the employer's servants exceeded 10 in num
ber he was entitled to accept the provisions of the law. (Vantrease
v. Smith, p. 280.)
The Few York statute is applicable to classified employments
where four or more “ workmen or operatives” are regularly em
ployed. Clerks, salesmen, and stenographers in a stockbroker’s office
were said by the supreme court of the State not to be classifiable as
workmen, so that a fatal injury to a messenger was held to involve
no right to a claim for compensation under the law. (Westbay v.
Curtis & Sanger, p. 281.)
The exclusion of casual employments was held by the Supreme
Court of Iowa to bar the claim of a carpenter who was engaged to
build a corncrib on the farm of a retired farmer. (Oliphant v.
Hawkinson, p. 248.) Not only was the employment casual but it was
said that if the employer was in any “ trade or business ” it was that
of farming, and assuming that the building of the crib was in line
with such business, it would be classed as agricultural work and
would be excluded on that account.
Employments not for pecuniary gain are excluded from the New
York statute. However, this provision was held not to bar the claim
of a gravedigger where profit was made on some graves in the
cemetery, such sums as accrued being expended for charity. (Dillon
v. Trustees of St. Patrick’s Cathedral, p. 278.) The employment was
hazardous, and it was said to be of no importance to what purpose
the pecuniary gain was devoted. Less successful was the case of a
cook of a golf club, the same court holding that since the restaurant
was operated at a loss, and entirely for the convenience of the mem
bers of the club, it was not a business for gain and an award to the
widow must be reversed. (Francisco v. Oakland Golf Club, p. 277.)
Under the law of Vermont an employee receiving remuneration in
excess of $2,000 per year is not under the law in the absence of special
agreement. The fact that a deceased laborer had during the pre
vious year received remuneration slightly above $2,000 was held not
to bar the claim of his dependents, since there was no definite agree
ment to the effect that he should receive wages in excess of $2,000.
(Kelley’s Dependents v. Hoosac Lumber Co., p. 266.)
PUBLIC EMPLOYEES.
A city fireman in New York was held not to be within the pro
visions of the law of the State, the court holding that the constitu
tion limited the scope of the law to those businesses in which the
expenses of the compensation could be met “ by a proper charge in
26
REVIEW OF OPINIONS AND DECISIONS OF COURTS.
the cost of operating the business of the employer.” (Krug v. City
of New York, 264.)
The fact that the services of a school janitor in Nebraska are in a
line of employment in which the city was engaged for no, pecuniary
gain or profit led to the reversal of a determination in favor of the
injured man. (Kay v. School District of Lincoln, p. 272.) The same
principle was held to apply in the case of a policeman. (Rooney v.
City of Omaha, p. 271.) It was also claimed that there was no re
sponsibility attached because of the exemption as to employees hold
ing office for a regular term, but as their tenure is during good be
havior, the court disallowed this ground. Other cases involving the
status of policemen were decided in the Supreme Court of Vir
ginia (Mann v. City of Lynchburg, p. 269) and the Appellate Court
of Indiana (Shelmadine v. City of Elkhart, p. 270). The Virginia
case turned on the nature of the accidents to which the law was
intended to apply, i. e., industrial accidents in which the relation
ship of master and servant was involved, not extending therefore to
the case of a city fireman. The argument in the Indiana case was
on the ground that the policeman was a public officer subject to im
peachment if he should fail to perform his official duties, and not. a
servant or employee of the city under the contract of hire.
The Virginia statute is applicable to employees of the State, and
a quarry foreman employed by the State highway commission was
held to be within the scope of the law. (Smith v. State Highway
Commission, p. 278.) No fund was available under any existing
legislation for the payment of awards, but the court expressed con
fidence that suitable provision would be made where the industrial
commission found the obligation to be due.
p.
HAZARDOUS EMPLOYMENTS.
The nature of the employment as hazardous or nonhazardous is
made the criterion in some States as to the application or nonapplica
tion of the law. The Court of Appeals of New York affirmed an award
for the death of the director and leader of a band of 65 pieces, with 4
or more workmen regularly accompanying the band. The fact that
these workmen were a part of the organization was held to bring
the entire band under the law, so that an award in favor of the
leader’s widow was sustained. (Europe v. Addison Amusements
(Inc.), p. 285.) The case of a school janitor before the Supreme
Court of Illinois might have been placed under public employments,
and brought into direct contrast with the Kay case (p. 272). How
ever, the case turned on the nature of the employment as hazardous,
the building in which he was employed being heated by a steam boiler
which was subject to city and insurance inspection. This is one of the
27
w o r k m e n ’s c o m p e n s a t io n .
tests of the Illinois statute, and the existence of the condition indi
cated was held to bring the employment within the law so that com
pensation should be allowed. (East St. Louis Board of Education v.
Industrial Commission, p. 286.)
The Illinois law applies automatically to all enterprises and
businesses classed as hazardous, this including the business of print
ing and publishing. An advertising solicitor using his own auto
mobile in going from place to place was killed by a collision with
another car. The supreme court held that the nature of his employ
ment was such as to expose him to the hazard which resulted in his
death, and the employment being hazardous he was within the act.
(Illinois Publishing & Printing Co. v. Industrial Commission, 284.)
A determination that the general storage business is extrahazardous was reversed by the Supreme Court of Washington with the
finding that the industrial commission of the State had exceeded its
powers under the law in classifying it as such. (State v. Eyres
Storage & Distributing Co., p. 287.)
p.
EXTRATERRITORIALITY.
The Supreme Court of Michigan construed the compensation law
of that State as a part of the contract of employment with a work
man whose injury occurred outside the State boundaries (Crane v.
Leonard, Crossette & Riley, p. 283); so also in Minnesota (Stans
berry v. Monitor Stove Co., p. 307). The same view was taken of
the Wisconsin statute by the Supreme Court of that State. (Ander
son v. Miller Scrap Iron Co., p. 282.) This latter case involved the
question of the subrogation of rights where the injury was due to
the acts of a third party, the proceeding involving this subrogation
having been begun under a Michigan statute allowing suit in case
of death by negligence. The court held that the Wisconsin statute
could not control the rights arising under the Michigan law, this
being a form of extraterritorial control that could not be recognized.
INTERSTATE OR INTRASTATE COMMERCE.
The Pennsylvania courts, from common pleas to supreme, uni
formly sustained an award in behalf of the widow of a member of
a train crew handling commodities in part of an interstate nature.
The case was taken to the Supreme Court of the United States,
where it was reversed, the position being taken that presumptions in
such cases are in favor of interstate commerce, since if there is an
element of such commerce in the employment that fact determines
the remedy of the employee. (Philadelphia & Reading R. Co. v.
Polk, p. 334.) Another case (Philadelphia & Reading R. Co. v.
Di Donato, p. 335) had a similar history, coming from the same
28
REVIEW OF OPINIONS AND DECISIONS OF COURTS.
State. Here a crossing watchman was held by the Supreme Court
to have been engaged in interstate commerce, a contrary finding of
the Supreme Court of Pennsylvania being reversed. The third case
under this head is also a decision of the Pennsylvania Supreme
Court, holding that a workman in charge of an oil tank from which
oil was taken for both interstate and intrastate commerce was under
the Federal law, reversing the finding of the court of common pleas
affirming an award by the workmen’s compensation board. (Lind
way v. Pennsylvania Co., p. 325.)
ADMIRALTY.
The complications affecting maritime employees have been adverted
to in the cases reported under employers’ liability. Thus far compen
sation legislation has embarrassed rather than simplified the situa
tion. In Rorvik v . Northern Pacific Lumber Co. (p. 225) the Supreme
Court of Oregon awarded damages in a suit under the State liability
act for the death of a steamship captain in the waters of the State.
The employing company was a California corporation, and the widow
had secured an award under the California compensation act for the
death of her husband. Contests and appeals had delayed payments,
so that no money had been received under this award. This award
was held not to bar a recovery under the Oregon liability act, though
the court assumed that recovery could not be had under both statutes.
The Supreme Court of Maine decided in Berry v. M. F. Donovan
& Sons (Inc.) (p. 226) that the compensation law of that State, being
of an elective nature, formed a part of the contracts of employment
made within the State, reaching even to the case of a longshoreman
engaged in unloading a vessel. The employer was under the act, and
though the work was of a maritime nature it was held to be within
the compensation law.
The claim that the driver of a truck transporting freight from a
bridge to various points along the shore had suffered a maritime in
jury was denied in McBride v. Standard Oil Co. (p. 224). The cir
cumstance that he was injured by being caught between the back end
of his truck and the side of the barge did not change his status as a
land employee, and a compensation award was affirmed.
JURISDICTION.
The authority of a court to render a final decision in a compensa
tion case was passed upon by a Texas court in Employers’ Indemnity
Corp. v. Woods (p. 326). An agreement with the insurer to accept a
lump-sum settlement had been ratified by the judgment of a justice
court. The industrial accident board disapproved and ordered a
much larger payment to be made. Over the contention that the jus
w o r k m e n ’s c o m p e n s a t io n .
29
tice court had jurisdiction, the award of the board was affirmed in the
court of civil appeals. The original agreement was for a lump sum,
while the award was for weekly payments. The court held that the
terms of the law controlled both the jurisdiction of the board and the
preference for weekly payments.
The powers of the industrial commission of New York were dis
cussed by the court of appeals of that State in Lorchitsky v. Gotham
Folding Box Go. (p. 3343). An award based on alternative findings
was held to be insufficiently grounded, the commission not being war
ranted in conclusions on so general and inadequate a basis as appeared
in this case. The action of the appellate division in affirming the
award was therefore reversed and a new hearing granted.
The exclusiveness of control of the workmen’s compensation act,
where applicable, was held in Hyett v. Northwestern Hospital for
Women and Children (p. 323) to bar the right of an injured workman
to sue for additional injuries other than those for which compensation
was payable under the act.
NONRESIDENT ALIENS.
A few States bar nonresident alien beneficiaries from any benefits
under the compensation laws, while others permit benefits, but in re
duced amounts. The law of Kansas is in the latter class, but the
supreme court of that State held, in the case of an Italian miner
killed in the State, that the treaty of the United States with Italy,
calling for equal treatment of the nationals of the two nations made
it necessary to disregard this limitation, and pay the full amount
that would be due in the case of residents of the United States.
The discrimination was said also to conflict with the equal protection
clause of the fourteenth amendment, and was therefore unconstitu
tional. (Vietti v. George K. Mackie Fuel Co., p. 229.)
INJURY ARISING OUT OF AND IN COURSE OF EEtPLOYlIENT.
The common limitation on compensable injuries, that they shall
arise out of and in course of employment, is the one most fruitful
of dispute and litigation. In the great majority of laws the con
junction “ and” is used, though in a few the disjunctive “ or” ap
pears; while in a still smaller number the provision is simply that
the injury shall be received in the course of employment. Where
the word “ and ” is used, both conditions must be present, the fact
that the injury occurred while employed not being conclusive of a
right to an award. In Miller v. Beil (p. 297) the Appellate Court
of Indiana held that the drowning of a man by falling into a tank
of water, probably during an epileptic fit, was nevertheless an acci
dent arising out of the employment, so that an award in his depend
30
REVIEW OE OPINIONS AND DECISIONS OE COURTS.
ents’ favor was affirmed. Similar reasoning prevailed in a case be
fore the Supreme Court of Illinois (Rockford Hotel Co. v. Indus
trial Commission, p. 316), the case being that of a laborer falling
into an ash pit and receiving injuries from which he died. The
preexisting condition would not lead to fatality, nor was the fall
fatal in itself, but the employment about the pit furnished the
setting for the fatal result. An award by the commission, reversed
by the circuit court, was therefore affirmed by the supreme court.
Departure from the line of duty in violation of instructions was
a basis for reversing the court below and the industrial commis
sion of Wisconsin in a case in which a boy of 14 undertook to use
a machine for liis own purposes, although strictly instructed against
such action. (Radtke Bros. v. Industrial Commission, p. 315.) The
same principle applied in the case of a laundry worker injured
while doing the personal laundry of another employee on a day
when such work was forbidden. (Hinton Laundry Co. v. DeLozier,
p. 311.) The employer’s entire lack of interest in the results of her
work was said to take it out of the course of her employment.
While the foregoing cases involve violations of employers’ regu
lations, the Supreme Court of Illinois had before it an instance of a
violation of the law. (Union Colliery Co. v. Industrial Commission,
p. 312.) A statute of this State forbids riding on loaded cars in
mines, and the injury in this case was due to a violation of the law,
the result being fatal. The industrial commission, however, awarded
compensation, which the circuit court disallowed but the supreme
court affirmed. The injury was said to arise out of and in the course
of the employment, and the violation of the law was not a departure
from the employment but was at the most contributory negligence,
not defeating the right of recovery. The distinguishing mark, of
course, is that in the first two cases the claimants were not doing
that for which they were employed, while in the last case the in
jury was received in the line of employer’s service even though there
was a departure from the established method.
The fact that an injury was received while doing other work than
that for which specifically employed will not bar a claim where the
new employment is such as any interested workman would engage
in on behalf of his employer. Thus a roustabout engaged in pulling
rods from an oil well, finding the grass on fire near the well, was
not outside the law while attempting to extinguish the fire to pre
vent damage to his employer’s property. (Associated Employers’
Reciprocal v. State Industrial Commission, p. 302.)
An injury occurring at lunch time by reason of the negligence of
the operator of an elevator which the employees were supposed to
use was held to be within the compensation law of New York, since
the act in which the employee was engaged was incidental to the
31
employment. (Martin v. Metropolitan Life Ins. Co., p. 309.) This
fact barred a suit for damages, and a judgment of the court below
awarding damages was reversed.
Going to and from work is also a necessary incident to employ
ment, and where transportation is furnished by the employer as a
part of its agreement, an injury arising out of the transportation
conditions is compensable. This rule applied in Fisher v. Tidewater
Building Co. (p. 304) in which the Supreme Court of New Jersey
affirmed an award in favor of a workman who was killed while at
tempting to board a train to go to his home, though off his employer’s
premises. Gn the other hand the Court of Appeals of New York
found that a flagman permitted to ride to and from work free of
charge was not in the course of his employment where the transporta
tion was merely a permissive grant, and not a term of the contract.
(Kowalek v. New York Consolidated R. Co., p. 303.)
Where a miner was run down by a train while on his way to work,
and had reached his employer’s premises, an award for his death was
sustained on the ground that his presence was a necessary incident of
his employment, even though he had not yet begun his actual work
for the day. (Western Coal & Mining Co. v. Industrial Commission,
p. 305.)
Two factors combined to defeat the claim of a man injured by
striking workmen after hours. (Rourke’s case, p. 308.) The work
man knew that he was taking the place of strikers and was promised
protection. He was injured while at a lunch room off the premises
and after the conclusion of the day’s work, the injury being due to an
assault by a striker. The Supreme Court of Massachusetts reversed
an award of the industrial board on the ground that the employment
for the day had ceased. Similarly a foreman who had completed his
shift was not in the course of employment when injured while in
specting the operations of machinery for which he was not respon
sible during the off shift. (Koubek v. Gerens, p. 317.)
The course of employment was held to be broken by turning aside
on a personal errand where an employee on duty for a number of:
hours was killed while crossing the street from his work place to get
a cup of coffee. This was said to be the custom under the circum
stances, and the industrial commission made an award in his favor,
which was upheld by the Appellate Division of the Supreme Court
of New York, but on further appeal the court of appeals reversed
this judgment, saying that going to a restaurant was not an incident
of his employment. (Clark v. Yoorhees, p. 311.)
The continuing liability of an employer in a case in which the
nature of the employment controls the entire time of the employee
is illustrated in Stansberry v. Monitor Stove Co. (p. 307). In this
WORKMEN *S COMPENSATION.
32
REVIEW OF OPINIONS AND DECISIONS OF COURTS.
case a salesman lost his life in a hotel fire, and as bis employment
required him to be in hotels the injury arose out of and in the course
of his employment.
Whether or not recovery will be had for injuries due to what are
known as “ common hazardsn depends upon the circumstances of
the individual case. Thus a workman who carried needed tools on
his person was struck by lightning while working on an iron bridge,
and the Supreme Court of Colorado affirmed an award in his favor
on the ground that his exposure was increased over that of the or
dinary citizen, so that the injury arose out of the employment (Has
sell Iron Works Co. v. Industrial Commission, p. 314); so also of a
night watchman who was accidentally shot and killed by a policeman
in pursuit of burglars, the Court of Appeals of New York holding
that while others might be similarly exposed, the nature of his em
ployment multiplied the opportunities for accidental injury of this
nature so that his case would come within the law (Heideman v.
American District Telegraph Co., p. 310).
Involving elements of uncertainty as to the actual hazards to which
the injury was due was a case (Empire Health & Accident Ins. Co. t?.
Purcell, p. 313) in which the Appellate Court of Indiana sustained
an award for injury to an insurance solicitor and collector. Whether
the injury upon which the claim was based was due to an assault by
persons from whom he had sought to make collections, or whether
it was for the purpose of robbery, or whether it was a street injury
could not be determined, though the circumstances pointed to an
assault. The employment was said to expose the claimant to in
creased hazards above those of the public generally, so that his injury
might properly be said to arise out of it, and an award in his behalf
was affirmed. Much the same rule applied in General Accident
Fire & Life Assurance Corporation v. Industrial Accident Commis
sion (p. 298), in a decision by the Supreme Court of California. The
proprietor of a garage in resisting an attack by strangers with whom
he had a dispute fired a shot which struck an employee. The fact
that the injured man was required to be constantly present at the
place where the incident occurred exposed him to all the dangers
arising in the conduct of such a business, differentiating him from
the chance attendant at the placfe, so that the injury was compen
sated.
Scuffling, horseplay, and quarreling are not infrequent incidents
where numbers of workmen are brought together. An employee in
jured while passing two other employees engaged in a playful scuffle
was held by the Supreme Court of Ohio to be entitled to benefits,
on the ground that the injury was received at a time and place
governed by his employment, the incident being not unlikely to
WORKMEN *S COMPENSATION.
33
occur in such circumstances. The statute is not based on fault or
neglect, but applies to the conditions and circumstances of factory
life. (Industrial Commission of Ohio v. Weigandt, p. 296.) The
same rule was applied by the Supreme Court of Nebraska in a fatal
injury, due to the constantly recurring criminal stupidity in the
alleged playful use of compressed air. (Socha v. Cudahy Packing
Co., p . 806.) In contrast with the foregoing is the position taken by
the Supreme Court of California in a case in which a workman’s eye
was injured by being struck by a grape thrown at another employee
in a packing house. (Federal Mutual Liability Insurance Co. v. In
dustrial Accident Commission, p. 305.) The fact that such incidents
are common and perhaps inevitable is said to be recognized by some
courts as sustaining the right to an award, but it is regarded by
this court as 6 an unwarranted extension ” of the law.
4
An intent to injure must be assumed where assaults are committed
in anger, but the incident may, nevertheless, be classed as an ac
cident arising out of and in the course of employment. Such is the
position taken by the Court of Appeals of New York where a fore
man struck a workman, following a short dispute, resulting in
serious injury to one eye. The immediate connection between the
incidents of discipline and the blow were said to warrant the con
clusion that the injury arose out of and in the course of employment,
and the employer being responsible for the foreman’s acts, an award
of compensation would be affirmed. (Knocks v. Metal Package
Corp., p. 301.) This doctrine was applied by the Supreme Court of
Oklahoma to a similar case where an assistant foreman struck a
miner because he resented an insult, the employer being responsible
for the assault committed by his representative. (Stasmos v. State
Industrial Commission, p. 299.) The Appellate Court of Indiana
again applied the doctrine of the responsibility of the employer not
only for his own acts or those of his representatives but for those of
fellow employees in Payne v. Wall (p. 301). Here a dispute between
workmen led to one of them being injured by the other, and on the
ground that such incidents are not unusual, and that the dispute
related to the work,* the injury was said to have arisen out of the
employment.
ELECTION.
Under the provisions of the elective laws, the choice of an action
for damages by proceedings in compensation is available, if timely
made. Failure to elect is usually penalized by depriving the em
ployer of his common-law defenses. This rule applied in a case in
which a coal trimmer was injured while assisting to unload a vessel
in Portland, Me. The failure of the employer to elect made possible
a suit for damages without the defenses of contributory negligence,
34
REVIEW OF OPINIONS AND DECISIONS OP COURTS.
fellow service or assumption of risks. An appeal from a judgment
developed claims that the work was in interstate commerce, governed
by the Federal statute, and not subject to the provisions of the com
pensation act. As the coal handled had in no way been designated
for use in commerce, either interstate or intrastate, and the work
was for one of these purposes, it was held that the Federal statute
had no application, and the decision under the terms of the compensa
tion act was affirmed. (Foley v. Hines, p. 259.)
The Kentucky statute requires voluntary acceptance expressed in
writing. The court of appeals of the State held that the definite
termination of employment, during which the employee was under
the compensation act, followed by several months of work elsewhere
predicated a new contract on return to work for the same employer, so
that a new acceptance in the form prescribed by the act was neces
sary, and a mere oral agreement would not suffice. (McCune v.
Wm. B. Pell & Bro., p. 261.)
The law of Texas requires employers to give notice that their in
dustry is to be operated under the compensation act, failing which
suits for damages may be brought. In Poe v. Continental Oil &
Cotton Co. (p. 245) notice had not been given. However, the in
jured man asked a determination of his rights under the act, but only
after the time limit provided for filing the claim had expired. He
then brought suit for damages, but failed on the ground that he had
made an election to accept compensation. The court of appeals
reversed this, holding that an election of an unenforceable right could
not be accepted as a waiver of a valid one, and a new trial was or
dered. In Hutton v. Link Gil Co. (p. 244) the injured workman took
the precaution of entering a claim for compensation and at the
same time asked for damages under the common law, Kansas being
one of the small number of States in which the compensation act
is administered by the courts. A judgment for- damages was re
covered, and the employer appealed, contending that the claimant
should have been required to elect one remedy to the exclusion of the
other. The court denied this, holding that a joinder of causes of
action could properly be made under the State laws.
INJURY DUE TO THIRD PERSONS.
A compromise with a third party without complying with the
terms of the compensation law was held by the Supreme Court of
Utah to prevent the injured man from asking further benefits from
his employer, since the terms of the act must be complied with to
give the commission jurisdiction. (Leva v. Utah Fuel Co., p. 318.)
A quite similar situation was passed upon by the Supreme Court of
Iowa. (Renner v. Model Laundry, Cleaning & Dyeing Co., p. 320.)
35
Here a laundry employee injured by a collision with a street car
made a settlement with the railway company, releasing it from
any action for damages by himself. Compensation payments were
thereupon stopped, the employer’s insurer claiming that the state
ment released it from further payment. 'The Supreme Court ruled
that the contract with the company not to sue was legitimate, but had
no effect on the employer’s rights, as no proof of legal liability was
involved. Compensation awards were also required to be paid.
The question of the employer’s rights where a third party caused
the injury was involved in a Kentucky case. (Henderson Telephone
& Telegraph Co. (Inc.) v. Owensboro Home Telephone & Telegraph
Co., p. 322.) The statute gives an employer paying compensation the
right to recover in his own name from the third party responsible
for the injury. Here the employer was insured, and it was held
that since payments had been made by the insurance company the
employer had no right to sue, nor did the statute give an insurance
company such a right. The third party was therefore released from
any obligation.
A question of waiver was raised in a New York case (Bennett v.
Page Bros., p. 319), involving the action of different parties. The
injury was fatal, and the parents first filed notice with the State
industrial commission that they would sue the third party involved,
for damages on a negligence basis. After a time this suit was dis
continued, and the mother secured an award of compensation. The
employer contested this on the ground that an election to sue had
relieved the employer of his compensation liability, which contention
the court rejected, and affirmed the award.
w o r k m e n ’s c o m p e n s a t i o n .
AWARDS.
The question of the computation of earnings of a miner was
involved in the case, Centralia Coal Co. v. Industrial Commission
(p. 233), decided by the Supreme Court of Illinois. A rate per ton
had produced low average earnings on account of the large amount
of labor involved in removing slate. An award for an injury was
based, not on the actual earnings of the individual, but, on account
of the circumstances, on the average earnings of other miners in the
company’s employ—a procedure which the court approved.
The effect on the child’s rights of the remarriage of a widow was
considered in an Indiana case. (Biggs v. Lehigh Portland Cement
Co., p. 239.) As the law stood at the time of the fatal injury to the
husband and father, compensation payments were terminated by the
remarriage of the widow. The law was changed in 1919 so as to
permit a continuance of payments to a dependent child, and subse101296°—22-----4
36
REVIEW OF OPINIONS AND DECISIONS OF COURTS.
quent to the enactment of this amendment the widow remarried. It
was held that the status at the time of the death determined the
situation, the law operating only to benefit subsequent happenings, so
that the child got nothing.
An award on a weekly basis was made in a Texas case (Texas
Employers’ Insurance Association v. Bourdreaux, p. 230), in which a
widow and two minor children were the beneficiaries. The award was
contested, and a lump-sum commutation was determined on by the
court, one-third to the attorneys and two-thirds to the beneficiaries.
Of the latter, one-half wT to go to the widow and the remainder to
as
the two children in equal parts. On appeal, the court of appeals held
that it had no power to inquire into the propriety of a lump-sum
award, which, however, the supreme court overruled, and remanded
the case as to the determination of the appropriateness of a lump-sum
settlement in the circumstances of the case. The propriety of the ap
portionment depended upon the nature of the fund, which was said to
be comparable to wages and so distributed as community property,
which would be in accord with the distribution above indicated.
In a Kansas case (Strong v. Sonken-Galamba Iron & Metal Co.,
p. 242), the trial court modified the award made by an arbitrator,
and directed that the claimant submit to an operation. If he re
fused, the term of payment should be limited to 25 weeks instead of
the 8 years which the arbitrator allowed. This finding was affirmed
by the supreme court, which held that the employee was bound to do
whatever was necessary and reasonably possible to restore himself
to a condition of physical ability.
The effect of changing conditions was considered in Lambert v.
Powers (p. 240), the insurer claiming that changes warranted such
action; they also stopped payments. Review can be had under the
law within a year after compensation was fixed by the original award.
This provision had been disregarded and the arbitrary cessation of
payments led the court not only to affirm the award as originally
named, but also to add a penalty for the default, according to the
terms of the law.
Voluntary payments of full wages do not entitle the employer to
a right to withhold an equal sum from subsequent benefit payments
made under an award by the industrial commission, where there is
no agreement or finding in regard thereto. (Mercury Aviation Co. v.
Industrial Accident Commission of California, p. 234.)
A Texas court permitted a discount in the total amount of benefits
to be paid under an award where the weekly payments were in
creased in amount, and the term thereof decreased, the court holding
that such discount was proper in analogy with the discount allowed
in lump sum settlements. (Western Indemnity Co. v. Milam, p .
w o r k m e n ’s c o m p e n s a t i o n .
37
241.) A contention in this case that refusal to submit to a surgical
operation should bar payment was disallowed, as it was shown that
skillful physicians in attendance had advised the injured man against
the operation, so that he could not be said to have refused to accept
or receive medical'treatment.
A review of an award with a request for release from further pay
ments was made in a Michigan case (Ward v. Heth Bros., p. 242), the
ground being that the beneficiary had become insane and was com
mitted to an asylum. The accident board refused to accept this as
a ground for terminating payments—a position which the court af
firmed.
A claim for fatal injuries in a case in which an award for disability
involved a surgical operation at the employer’s expense was denied
in a case in which the injured man requested that at the time of the
operation he be operated on for an additional and independent cause.
(Dulae v. Proctor & Bowie Co., p. 288.) Following the double and
necessarily prolonged operation death ensued from postoperative
shock. The evidence was held inadequate to sustain a claim for
death benefits, since it was impossible to determine the effect of the
one operation as distinct from the other.
The computation of an award for the loss of three fingers was con
tested before the Supreme Court of Utah. (North Beck Mining Co. v.
Industrial Commission, p. 236.) The employer insisted on the mere
addition of the award for individual fingers, while the industrial
commission awarded as for the aggregate disability entailed. The
court sustained this view, since the question was not of the loss of
individual fingers but of the usability of the hand in its mutilated
condition.
The date from which an award for permanent partial disability
should run was involved in Wrenn v. Connecticut Brass Co. (p. 237).
Surgeons made protracted efforts to preserve a fractured arm by
means of a bone graft, but failed, finally leaving the arm in a use
less condition. The Connecticut statute makes specific compensation
for the loss of use of an arm, but the compensation commissioner
held that this began at the date of final determination of disability,
and that compensation during the period of treatment should not
be deducted therefrom, a position which was approved by the su
preme court over the employer’s contention to the contrary. The
Minnesota Supreme Court considered the period of healing as a part
of the compensation period in a case involving an award for impaired
vision of one eye. (Chiovitte v. Zenith Furnace Co., p. 235.) The
schedule benefit is a payment of the percentage of the wages for
100 weeks, and a 68 per cent loss was held to call for 68 weeks’ pay
ments. An award of benefits for 60 weeks after returning to work
following 8 weeks’ disability was approved, the court sustaining the
38
BEVIEW OF OPINIONS AND DECISIONS OF COTJBTS.
determination to this effect, and disregarding the fact that the in
jured man was employed at higher wages than before the injury.
The factors to be considered in determining the amount of an
award for permanent partial disability were discussed in Capone’s
case (p. 232), the Supreme Court of Massachusetts recommitting the
case to the board for further consideration because it was not clear
to what extent the award was based on depressed business conditions
and how far on the disability resulting from the injury.
DEPENDENCY.
A child living with its mother, who had obtained a divorce from
her husband some years before his accidental death, was held not to
be a dependent upon the father where it was shown that for 5 years
he gave nothing for the child’s support and for the next 5 years not
more than $50 per year. (Stephens v. Stephens, p. 251.) The con
verse is also true, that parents are not dependent on a son who had
lived away from home for 10 years and had sent them only occasional
and irregular gifts of money and provisions (Hancock v. Industrial
Commission, p. 254) ; but where a sister has been receiving regular
contributions in partial support, which were relied upon, an award
in her behalf is warranted in the case of the death of the contributing
brother (Driscoll v. Jewell Belting Co., p. 255).
A California statute provides not only for relatives as such, but for
“ a person or persons wholly dependent ” on the decedent. In Moore
Shipbuilding Corp. v. Industrial Accident Commission (p. 252), it was
held that the child of a woman deserted by her husband, the father
of the child, who was living with a man in illegal relationship, was
entitled to benefits as a member of his household, such child being
totally dependent on the man who was the practical head of the
establishment.
A Louisiana case involves a determination of the method of meas
urement of dependency, the case being one of the death of a minor.
The son’s contributions to the family were substantial, but were
not equal to the entire cost of living of the family. An award of
the full amount for the statutory period was affirmed by the supreme
court, as the fact of dependency was the test, and not its extent.
(Harris v. Calcasieu Long Leaf Lumber Co., p. 253.) Another "case
involved the question of when the dependency is determined. Some
months after the father’s accidental death one of the children was
adopted by a third party, and the insurance company contended
that as the adopted child was not now a dependent he should be ex
cluded from any benefits. The Supreme Court of Colorado, however,
took the view that the status of dependency existing at the time of
39
the father’s death controlled the award, and that the possibility of
two benefits in case the adopted father should be killed by accident
was not a matter for the court to consider. (Employers’ Mut. Ins.
Co. v. Industrial Commission, p. 254.)
w o r k m e n ’s c o m p e n s a t i o n .
DISABILITY.
An injury apparently involving the loss of use of both hands was
made the subject of am award as for the complete and total loss of
both hands, or permanent total disability, under the Illinois statute.
The employer contended that the reading of the law, a “ loss of both
hands,” did not warrant such an award where there was no amputa
tion, and the supreme court of the State adopted this position, re
manding the case for further consideration. (Ballou v . Industrial
Commission, p. 256.)
A loss of 95 per cent of the vision of an eye was compensated by the
industrial accident board of Michigan as for the loss of sight of an
eye. The claimant was receiving the same wages at the same employ
ment as before the injury, but the supreme court ruled that the award
as for the loss of the eye was in accordance with the law, and it was
affirmed (Stammers v. Banner Coal Co., p. 258) ; weekly payments
made between the accident and the resultant definite stage of blind
ness were not allowed to be deducted from the award for the loss of
an eye. The fact that vision might be partially restored by the use
of properly fitted glasses was held not to bar recovery in a case in
which the eye was practically useless without the glasses, the law
contemplating actual results and not a partial remedy by the use
of artificial means (Butch v. Shaver, p. 259).
Inability to return to the former employment was made the basis
of an award where an employer gave the injured man other employ
ment at an increased wage, the fact remaining that the injured man
was entirely unable to resume the occupation in which he was en
gaged at the time of the accident. (Geis v. Packard Motor Car
Co., p. 257.)
Lameness caused by adhesion of tendons following the fracture of
an arm near the wrist was found by the Supreme Court of Illinois to
be the cause of permanent disability, the accident being chargeable
only with a temporary disability. (Mount Olive Coal Co. v. Indus
trial Commission, p. 342.) An award as for permanent partial disa
bility was therefore disallowed, and the claimant barred from further
benefits unless he would consent to a simple operation “ under a mild
and entirely safe anaesthetic.”
Another case before the same court as the above involved claims
for disability and for disfigurement arising out of the same injury.
The law of Illinois allows compensation for disfigurement, but not
40
REVIEW OF OPINIONS AND DECISIONS OF COURTS.
where a compensable disability is suffered at the same time. An
award for both results of the accident was therefore modified by
eliminating the amount provided for disfigurement. (Chicago Home
for the Friendless v. Industrial Commission, p. 332.)
An agreement signed by the injured man that his disability had
ceased, leading to termination of weekly benefits, was held by the
Appellate Court of Indiana not to be effective where it was shown
that facts were contrary thereto. (Fort Branch Coal Co. v. Farley,
p. 345.) A reopening of the case was contested by the employer on
the ground that a year had elapsed since the end of the prior com
pensation period, but since the period had not actually elapsed, the
contention was rejected and the new award approved.
The Supreme Court of Washington had before it the case of a
workman who had lost an eye for which he received compensation
on the schedule basis. While at work afterwards he suffered the
loss of an arm. The commission undertook to deduct the amount
allowed for the eye from the schedule benefit for the arm, or rather
from the maximum award for unscheduled injuries, so that the
second injury would be compensated at only about 40 per cent of the
schedule rate. The court reversed this, holding that the loss of the
arm should receive the schedule award regardless of any previous
awards for other injuries. (Klippert v . Industrial Insurance Dept.,
p . 336.) A second injury case was also passed upon by the Court of
Errors and Appeals of New Jersey, though the first injury involved
no question of compensation. An employee blind in one eye suffered
the loss of the second eye. Blindness is under the State law a perma
nent total disability, and an award was made on this basis. The
employer contended that as the accident while in its employment
caused the loss of but one eye it was not responsible for the total
disability, but an award was affirmed on the ground that there had
been a total loss of function as a result of the accident. (Combina
tion Rubber Mfg. Co. v . Court of Common Pleas, p. 337.)
MEDICAL AND SURGICAL TREATMENT.
The employer was held not responsible for the expense of treat
ment of an injured arm in addition to that prescribed by the physi
cian in a Massachusetts case decided by the Supreme Court of that
State. The treatment consisted of massaging the arm, which was
done at the employee’s request, without being prescribed by the
physician, and was said not to be medical services within the stat
ute. (Golden’s case, p. 327.) The effect of refusing an operation has
already been noted in disability cases. (Mount Olive Coal Co. y. In
dustrial Commission, Strong v. Sonken-Galamba Iron & Metal Co.,
W O RK M EN’S c o m p e n s a t i o n -.
41
and Western Indemnity Co. v. Milam.) In Myers v. Wadsworth Mfg.
Co. (p. 341) the Supreme Court of Michigan directed the termination
of payments until an injured man should accept an operation of a
minor character with reasonable prospect of restoration of ability to
work. On the other hand is a finding by a jury that there was a risk
of inducing a serious condition without sufficient probability of im
provement, so that a refusal to submit to the operation proposed was
held to be reasonable. (Grant v. State Industrial Accident Commis
sion, p. 340.) A hernia operation of a “ comparatively superficial
nature,” as indicated by the testimony of physicians, was directed by
the Illinois commission as a condition to further payments in the
case, O. W. Eosenthal & Co. v. Industrial Commission (p. 339), a posi
tion which the Supreme Court affirmed.
INSURANCE.
The law of New York provides penalties for employers under the
act who fail properly to secure the payment of compensation that
may become due. In attempting to enforce this penalty the Supreme
Court of New York, Appellate Division, ruled against the contention
of the commission as to the construction of the statute. The declara
tion that the failure to secure compensation shall constitute a mis
demeanor is coupled with the abrogation of defenses in a suit for
damages, and the court took the position that there was no fine or
imprisonment contemplated, the penalty being simply the loss of
the defenses. (People v. Donnelly, p. 328.)
NOTICE AND CLAIM.
The fact that an injured man had received first aid treatment was
not acceptable as notice of an accident where the employer had no
knowledge of any disability following from the apparently slight
injury. (Conley v. Upson Co., p. 330.) There was in this case a
progressive eye trouble resulting in the blindness of one eye, and
the claim was made that disability was not incurred until the loss
of vision was an established fact, which was 8 months after the acci
dent. The court held, however, that the employer was entitled to
know of the condition of the injury in time to secure proper treat
ment, and that no sufficient notice had been given. Similarly the pay
ment of medical expenses during the first fourteen days of disability
is not to be construed as a voluntary case of compensation under the
Vermont statute. The law requires claims in six months in the ab
sence of voluntary payments, and the failure to make a claim within
the specified time was under the circumstances held to cut off any
possibility of benefits. (Petraska v. National Acme Co., p. 246.)
42
REVIEW OF OPINIONS AND DECISIONS OF COURTS.
MINORS ILLEGALLY EMPLOYED.
The laws of various States contain different provisions with regard
to the status of minors at work in contravention of the laws. In some
States they are regarded as employees within the provisions of the
compensation acts; by others such acts are said to apply only to per
sons who are eligible under the laws governing employment. Thus
in Pennsylvania a minor operating a hoisting machine was held en
titled to a suit for damages over the employer’s contention that the
compensation act governed the situation. (Lincoln v. National Tube
Co., p. 329.) The same (Pennsylvania Supreme) court considered the
case of an insured employer against whom a judgment for damages
had been brought for the unlawful employment of a minor at danger
ous machinery. (Edward Stern & Co. v. Liberty Mutual Ins. Co.,
p. 327.) The court found that the insurer must reimburse the em
ployer because the policy covered his liability in general, and was not
limited to claims arising under the compensation act.
The New York doctrine on the status of the minor unlawfully em
ployed is that in any case he is an employee, and that the determina
tion of his rights depends upon the law governing that status. The
trial and appellate courts had taken the view that a damage suit was
the proper remedy, but the court of appeals reversed these decisions
on the ground that the workmen’s compensation act was exclusive as
determining the relief available to an injured employee, and a suit by
one claiming that status could not be brought. (Noreen v. Vogel &
Bros. (Inc.), p. 329.)
LABOR ORGANIZATIONS.
While there is a considerable variety of incidents in the cases in
volving the activities of labor organizations, and differences on ac
count of general or local legislation involved in some cases, the very
general recourse to the strike, with the customary picketing, tends to
give an appearance of similarity to the great majority of cases coming
before the courts. The struggle to retain the closed shop on the one
hand and to secure independence thereof on the other is reflected in
many cases, from which only a selection can be made use of.
STRIKES.
In the clothing industry in New York a case was decided by the
appellate division of the supreme court involving the nature of the
Amalgamated Clothing Workers of America. (Marks Arnheim
(Inc.) v. Hillman, p. 187.) An injunction was sought against Hill
man individually and as president of the organization, and also a dis
solution of the association as mischievous and disloyal. The evidence
43
did not sustain the contention as to the last point, and an injunction
was granted pending final adjudication on a showing that picketing
accompanied by violence and intimidation was maintained under cir
cumstances that indicated the complicity of the organization. A
rival union in the same industry was found to be implicated in a strike
with similar picketing for the purpose of compelling a collective
agreement in the face of known individual contracts binding the em
ployees not to join the union, the situation being held to warrant the
issue of an injunction. (Floersheimer v. Schlesinger, p. 178.) Quite
similar conditions existed in a case involving restaurant workers,
passed upon by the Court of Civil Appeals of Texas. (Cooks’,
Waiters’ and Waitresses’ Local Union v. Papageorge, p. 197.) A
closed-shop agreement had expired, and a renewal was demanded, but
the court held that no coercion could be legally brought, and further
that the antitrust law of the State was a bar to the purposes of the
union.
The United States District Court for South Carolina considered the
propriety of an injunction as restraining unlawful acts. (Charleston
Dry Dock & Machinery Co. v. O’Rourke, p. 164.) The fact that acts
of interference with an employment might be themselves an offense
against the criminal laws was said not to be a reason against the issue
of an injunction on a proper showing. Quite similar wras the position
taken by the Supreme Court of New York in continuing a temporary
injunction where it appeared that the disorders and interference with
the operation of street and interurban cars by violence had practically
ceased since the issue of the injunction. (United Traction Co. v.
Droogan, p. 198.)
That intimidation resulting in coercion may be unlawfully present
without actual deeds of violence was held by the Supreme Court of
California in Southern California Iron & Steel Co. v. Amalgamated
Association (p. 180). An injunction was therefore issued on a show
ing of combination and conspiracy leading to unlawful restraint of
freedom of action by the placing of pickets in numbers about the em
ployer’s plant.
Attempts to secure the reinstatement of a discharged employee were
considered in New York and Massachusetts cases. In the latter (Me
chanics’ Foundry & Machine Co. v. Lynch, p. 199) a strike concerning
shop conditions had been adjusted and work resumed, but one em
ployee who had been particularly offensive during the strike was not
reemployed, and a strike to secure his reemployment was held to be
for an unlawful purpose and subject to an injunction, since to hold
otherwise would be to interfere with the freedom of employers and
employees in making their contracts with each other. In contrast
with this was the decision in Walter A. Wood Mowing & Reaping Ma
LABOR ORGANIZATIONS.
44
REVIEW OF OPINIONS AND DECISIONS OF COURTS.
chine Co. v. Toohey.(p. 188), in which the Supreme Court of New York
annulled an injunction against a strike to compel the reinstatement
of a discharged member. There was picketing, but no acts of vio
lence or threats were indulged in, and the court held that under the
law as construed in that State a union may rightfully strike to secure
the reemployment of a member whom they regard as having been
improperly discharged. It may be noted that in this case the court
emphasizes the supposed protection of the right of picketing by the
Clayton Act, a position that is not borne out by the construction of
that act by Chief Justice Taft in American Steel Foundries v. TriCity Central Trades Council (p. 181). A third case based on reinstate
ment was also passed upon by the Supreme Court of New York, in
volving the right of workmen to demand the reinstatement of their
entire force, when the employer required the services of but a minor
fraction. (Benito Bovira Co. (Inc.) v. Yampolsky, p. 190.) The at
tempt to interfere with the general conduct of business in this manner
was held to be illegal, and an injunction was awarded. No right ex
ists on the part of employees or former employees, or of an associa
tion with which they may be affiliated to compel the continuance of a
business against the proprietor’s wish. (Welinsky v. Hillman, p. 196.)
Conflicting interpretations of the Clayton Act led to the refusal
and subsequent issue of an injunction by a United States district
court and a circuit court of appeals, respectively. Telephone com
panies operating under a contract with their employees which estab
lished an open-shop basis were called upon during the life of the
contract to adopt the check-off system, by which the dues of their
employees who were members of unions should be turned over to the
union by the employer. The district court regarded the resultant
strike as properly subject to an injunction, except for the presumed
prohibitions of the Clayton Act. Upon appeal, however, the circuit
court of appeals found the dispute not one between the employees
proper and the companies, and directed the issue of an injunction,
basing its action on decisions of the Supreme Court. (Kinloch
Telephone Co. v. Local Union, p. 171.)
Perhaps the most important decision in this field for some years
is one by the Supreme Court of the United States construing the socalled Clayton Act in its application to the issue of injunctions.
(American Steel Foundries v. Tri-City Central Trades Council,
p. 181.) The case was one of long standing, the difficulty dating from
April, 1914, when, owing to depressed business conditions, the mill
resumed employment after a shutdown with a reduced working force
and reduced wages. Violence characterized the acts of picketers who
undertook to make effective the strike that ensued, and an injunction
was issued by the district court. The circuit court of ..appeals modi
LABOR ORGANIZATIONS.
45
fied this in certain respects, and the case was taken to the Supreme
Court. Here the modification was again modified, and picketing was
restricted to a form that would permit only the securing of informa
tion and acts of persuasion by a single representative at each point
of ingress or egress, without abuse or threats or the following of any
unwilling listener. It was pointed out in this case that Congress
had “ carefully refrained ” from the use of the term “ picketing ” in
the Clayton Act.
The right of employees under individual contracts, and of their
employers, to be free from interference in their relations and a con
tinuance of their employment was affirmed by the Supreme Court of
Massachusetts. (United Shoe Machinery Corp. v. Fitzgerald, p. 177.)
There was no dispute as to the general conditions of labor, including
wages and hours, but a demand for a “ collective bargain.” The
court pointed out that a coerced bargain was not a bargain at law,
and that mass picketing and the use of intimidating language were
illegal, as was the strike itself, so that the State statute allowing
peaceful persuasion had no application, and the issue of an injunction
was affirmed.
Emphasizing the doctrine that the right to continue his business
is a property right under the Clayton Act, the United States Circuit
Court of Appeals sustained a permanent injunction forbidding all
picketing in a case of long-standing interference by unlawful means
with the business of the plaintiff. (Quinlivan v. Dial-Overland Co.,
p. 176.) It was pointed out that the strike proper had long ceased to
exist, the places of strikers having been filled, and the disturbers being
without status entitling them to consideration as in any way related
to the industry. This latter point was held to be decisive in a case
before the United States District Court, in which railroad employees
had broken the employment relation, and subsequently claimed the
right to be held as employees. The court ruled that this could not be
done, as when the contract was abandoned all rights under it were
likewise abandoned. (Birmingham Trust & Savings Co. v. Atlanta, >
B. & A. B. Co., p. 166.) The strike was orderly, and without bit
terness, but the right of reemployment was held to be nonexistent
so far as any demand or preference over empolyees taken in to fill the
deserted places was concerned.
Involving the same principles as the foregoing is a case decided
by the Supreme Court of Georgia (McMichael v. Atlanta Envelope
Co., p. 173) in which striking employees had been superseded by non
union workers who had made individual contracts to the effect that
their employment would cease if they became members of the union.
An injunction issued by the court below was affirmed, the court hold-<
ing that the persuasion attempted had gone beyond the proper limits,
46
REVIEW O F OPINIONS AND DECISIONS OF COURTS.
and further that there was an attempt to interfere with existing
contracts. In Densten Hair Co. v. United Leather Workers’ In
ternational Union (p. 174), it was found that a substantial working
force had come into existence at the termination of a brief shutdown
which anticipated a strike that had been decided upon by the former
employees. Under the circumstances all picketing was held enjoinable, the evidence showing that acts of violence and intimidation
had been indulged in following the resumption of work.
In view of the foregoing decisions it would follow as a matter of
course that where strikers employed outside agents to conduct a
campaign of violence they would be subject to liability. Thus in
People v. Raymond (p. 147), the Supreme Court of Illinois affirmed
a conviction for conspiracy where officers and members of a barbers’
union were found to have employed bomb throwers and window
smashers in an endeavor to compel the renewal of a working agree
ment with the employers’ union.
Likewise going outside the field of employment relation was the
situation that arose in the case of City of Duquesne v. Fincke (p. 201),
decided by the Supreme Court of Pennsylvania. The point in issue
was the right of strikers to assemble in street meetings for a discus
sion of their grievances. An ordinance of the city of Duquesne
directed that a permit be procured before any street meeting could
be held, and on the failure of the mayor to respond to a request, a
meeting was held, the leaders claiming a right so to act as a consti
tutional privilege. The supreme court rejected this contention,
MONOPOLY.
The prolonged struggle to secure the unionization of West Virginia
mines gave rise to a case passed upon by the United States Circuit
Court of Appeals, in which charges of conspiracy and monopoly were
brought. (Gasaway v. Border Line Coal Corp., p. 141.) The case
involved the legality of a check-off system, so called, by which funds
were procured for the maintenance of the campaign for unionizing
the coal-mine area of West Virginia. A broad injunction was issued
by the district court, but on appeal this was recast so as to limit
the effect of the injunction to the actual parties to the proceeding and
to the immediate acts set forth in the bill and affidavits. A request
that the United Mine Workers be dissolved as a seditious organiza
tion was rejected by both the district and circuit courts.
Two cases under this head relate to an association of bill posters.
In one of these the District Court of the United States for the
Southern District of New York found that the plaintiffs had no
cause of action in the circumstances set forth because there was no
clear showing of injury to them, though the plan of the association
47
was such as would constitute a violation of the Federal antitrust law.
(Sullivan v. Associated Bill Posters and Distributors, p. 146.) Like
wise unsuccessful was the plaintiff in Chas. A. Eamsey Co. v. Associ
ated Bill Posters (p. 144) in a case before the Circuit Court of Ap
peals. It was shown that the association was not itself engaged in
business, but was made up of members who conduct their business
according to the rules adopted. There was no direct effect upon
interstate commerce in violation of (he Sherman Act, and no com
bination alleged that would be unlawful at common law.
The situation is otherwise when interstate commerce is directly
affected by the refusal of unions to handle nonunion goods. A com
bination of longshoremen and steamship companies interfering with
the transportation of export lumber was held to violate both the
shipping act and the Criminal Code of the United States. (Burgess
Bros. Co. (Inc.) t*. Stewart, p. 139.)
Another case involving interstate commerce, but in another aspect,
was one in which it was held that the prevention of the manufacture
of goods customarily shipped, for the most part, in interstate com
merce, was a restraint of trade condemned by the Federal antitrust
law. (Herket & Meisel Trunk Co. v. United Leather Workers, p. 154.)
A local monopoly was condemned in Brescia Construction Co. v.
Stone Masons’ Contractors’ Association (p. 138) , the Supreme Court
of New York, Appellate Division, granting an injunction where a
contractor has been cut off from his labor supply as a result of an
agreement between the unions and an employers’ association.
LABOR ORGANIZATIONS.
RULES OF UNIONS.
As a general proposition the rights of members are determined by
the rules adopted by the unions. However, in Burke v. Monumental
Division, No. 52, Brotherhood of Locomotive Engineers (p. 160), the
United States District Court for Maryland granted a mandatory
injunction restoring to membership the plaintiff who had been ex
pelled for the exercise of a constitutional right. A similar result
followed the appeal to the courts of Pennsylvania for reinstatement
where the expulsion of a member followed his exercise of the right
of petition with regard to legislation. (Spayd v. Ringing Rock
Lodge No. 665, p. 162.) It was claimed that the right to petition
was controlled by the union of which Spayd was a member, but the
court disallowed this contention. It was also pointed out that the
plaintiff had substantial property rights which they could not com
pel him to forfeit without due procedure and substantial grounds of
action.
The relation of a local union and a federation of unions was con
sidered by the Supreme Court of New York, Appellate Division, in
REVIEW OF OPINIONS AND DECISIONS OF COURTS.
48
Kunze v. Weber (p. 152). In this case a local union preferred charges
against its president and suspended him, giving notice of a hearing.
He then appealed to the president of the federation, who undertook
to take charge of the situation, forbidding the local officials to act.
The local officials then sought and obtained an injunction against
such interference on the ground that the local had acted in accordance
with its by-laws, and that no arbitrary interference by the officers of
the federation could supersede the procedure provided for by the
constitution and by-laws of the union.
The protection of the rights of members of unions by statute has
been attempted in a number of States, by laws proposing to secure
members of unions against discharge by reason of their membership.
These laws have with great uniformity been declared unconstitutional,
and such was the finding of the Supreme Court of Colorado in People
v . Western Union Telegraph Co. (p. 160) in passing upon the socalled anticoercion act of the State (ch. 5, Laws of 1911).
PICKETING.
Many of the cases above noted discuss picketing as a feature of
strike activities. In the two cases here noted there was no strike,
but picketing was engaged in for the purpose of interfering with
the conduct of business by nonunion employees. In Cyrus Currier &
Sons v . International Holders (p. 156) there had been a strike in
1917, but an injunction had stopped picketing, and work had been
resumed on the open-shop plan, employees being under contract not
to join the union. The Court of Chancery of New Jersey granted
an injunction to prevent picketing engaged in for the purpose of
securing the defection of workers and violation of their contracts,
threats of violence and actual violence being indulged in. The court
in this case pointed out the reciprocal rights and privileges of em
ployers and employees, and although granting the injunction, sug
gested that the employers’ movement against organized labor was
extending an invitation to the unions to ask for legal protection such
as the employers themselves were seeking in the present case.
The Supreme Court of Appeals of West Virginia had before it a
case involving much the same principles, with the additional feature
of a secondary boycott. (Parker Paint & Wall Paper Co. v. Local
Union No. 818, p. 158.) The company named had been a member of an
employers’ association, which had formerly been in contract relations
with the union. This had been disrupted and nonunion workers had
been employed. Picketing establishments employing the master
painters, and boycotting their business, were held to be enjoinable
on two counts, one an attempt to procure a breach of contract, and
the other a secondary boycott.
LABOR ORGANIZATIONS.
49
ADJUSTMENT OF DISPUTES.
A board of conciliation and arbitration formed under the provi
sions of the law of Massachusetts was defendant in a suit in Moore
Drop Forging Co. v. Fisher (p. 165), the object being to prevent the
board from taking any action in the case of a strike against the
plaintiff company. It was claimed that the statute purporting to
authorize the intervention of the board was unconstitutional, but
the supreme court of the State ruled that the public had a just in
terest in labor disputes, so that the law should be sustained.
An attack on constitutionality was also the form of procedure in
a Colorado case. (People v. United Mine Workers of America,
p. 200.) The law of that State makes strikes and lockouts unlawful
prior to or during an investigation by the industrial commission of
the State. Claims of unconstitutionality were rejected, the proper
freedom of action being unhindered by the law, which was based on
the public interest with which the business in hand (coal mining)
was said to be affected.
Similar to the Colorado law, but going beyond it in its restrictions,
is the industrial relations law of Kansas, creating a so-called court
with powers of supervision over industries affected with a public
interest. An injunction by the district court forbidding certain ac
tivities of union officials in violation of this law was disregarded,
and a sentence for contempt followed. This was affirmed on appeal
to the supreme court, the law being sustained as constitutional.
(State v. Howat, p. 168.) This and another case involving the
nature and validity of the industrial court law were taken to the
Supreme Court of the United States on writs of error, where they
were heard together and the cases dismissed in an opinion delivered
March 13, 1922, no Federal question being found involved in
the cases as disposed of by the Kansas courts. (Howat v. Kansas,
p. 170.)
RESTRAINT OF INJUNCTIONS.
Reference has been made in various cases in which the issue of in
junctions was involved to the amendment to the Federal antitrust
law known as the Clayton Act. The legislature of Arizona some
years ago enacted a law in practically identical language in so far
as the provisions relating to the issue of injunctions is concerned,
and the constitutionality of this statute, as construed by the Supreme
Court of Arizona, was before the Supreme Court of United States
in Truax v. Corrigan (p. 191). Picketing, boycotting, and secondary
boycotts had been engaged in, and the Arizona courts had refused
an injunction under their construction of the law in question. Rec
ognizing the identity in language, the opinion of the Supreme Court
50
REVIEW OF OPINIONS AND DECISIONS OF COURTS.
was to the effect that the statute was unconstitutional by reason of
its meaning as interpreted by the Arizona courts, as it would legalize
acts of interference, and a denial of rights which the Constitution of
the United States guarantees.
INDUSTRIAL WORKERS OF THE WORLD.
The Supreme Court of Washington sustained a conviction under
the provisions of an act of that State which makes criminal syn
dicalism a felony. Membership in the Industrial Workers of the
World was held to be an offense on account of its purposes, which
are condemned by the law in question, which was held to be con
stitutional and not a restriction on the right of labor organizations
to discuss industrial questions. (State v. Hennessey, p. 149.)
Involving both industrial and political questions was the case
of Haywood v. United States (p. 150), decided by the United States
Circuit Court of Appeals. Of the four counts on which conviction
had been adjudged in the court below, two involved labor features,
while the third and fourth were political. The interference with in
dustry claimed as the basis of the convictions under the first two
counts was held not to be a proper subject for action by the court
in view of the interrelation of the offenses charged, the court hold
ing that Congress did not intend to inflict punishment twice for the
same offense ; while if any local law had been violated, that was a
matter for State and not for Federal cognizance. The political of
fenses charged were found to have been committed, and sentence
therefor was affirmed.
DECISIONS OF COURTS AFFECTING LABOR: 1921
A liens — Contract L abor — E ncouragement of M igration—United States v. International Silver Go ., United States Circuit
Court of A ppeals, Second Circuit {March 21, 1921), 271 Federal
Reporter, page 925 .—Mrs. Pearson, a citizen of Great Britain, living
in Nova Scotia, wrote to the defendant company seeking employment.
What followed is thus stated by the court:
March 9, 1916, the defendant answered this letter as follows:
“ D ear M adam : Referring to yours of the 29th ult., we are in need
of hand burnishers that have had experience on the general line of
hollow ware, such as tea ware, waiters, meat dishes, cake baskets,
sandwich trays, nut bowls, etc., made of German or nickel silver,
also white enamel. We are also looking for unskilled men. Our
female help in the burnishing line average from- 12^0 per hour to 200
per hour; unskilled labor 17^0 to 250 per hour. The girl’s mini
mum wages is 12J0 per hour. If you were in the States, and ap
plied to us for a position, we could place you.”
March 15 George C. Pearson answered the defendant’s letter to
the effect that his wife was unable to accept employment, but that
he and his son were ready to start at once, if assured of employment
by the defendant. March 20, 1916, the defendant replied as follows:
“ D ear S ir : Referring to yours of the 15th, will say the conditions
stated in your letter are satisfactory and we will keep a place open
for Mrs. Pearson. Kindly advise when you will report for duty.”
Pearson and his son came in April, and a complaint was made
of a violation of the immigration laws. The law makes it an offense
to induce or solicit immigration by offers or promises of employment,
or to knowingly encourage or solicit immigration “ in any way.” The
District Court gave judgment for the defendant on a demurrer on
the ground that the complaint did not allege that Pearson was a
contract laborer or that defendant knew that he was a contract
laborer. (255 Fed. 694; see Bui. No. 290, p. 71.) The Circuit Court
of Appeals, speaking through Judge Ward, reversed the lower court,
and held the law violated, saying in part:
It seems to us quite plain that the defendant’s answer of March 9,
1916, to Mrs. Pearson’s letter of February 29 was an implied offer of
employment to both Mrs. Pearson and her husband and son and a
solicitation to them to migrate to this country to perform labor here.
101296°—22---- 5
51
52
TEXT AND SUMMARIES OF DECISIONS.
They were consequently contract laborers within section 2 of the act.
Furthermore, the defendant’s reply of March 20, 1916, to George C.
Pearson’s letter of March 15 was an encouragement to both Pear
son and his son to migrate to the United States within section 4 of
the act. That section extends to encouragement “ in any way.” Ask
ing contract laborers, who said they were ready to start at once if
assured of employment by the defendant, when they will report for
duty is a manifest encouragement. Both these contract laborers did
migrate to the United States after receiving the letter.
A liens—T axation—Constitutionality of S tatute—Ex parte
K otta, Supreme Court of California {Septem ber 1%, 19%1) ,*800 P acify
R eporter , page 957 .—Pursuant to the provisions of section 12 of
article 13 of the State constitution, added at the regular election of
November 2, 1920, chapter 424 of the Statutes of California for 1921
was passed and was approved May 25,1921. It provided that certain
alien inhabitants of the State of California must annually pay a
poll tax of $10, and on failure to do so prior to the date fixed, “ such
delinquency shall, ipso facto, render all debts owing to such delin
quent, including wages due or to become due for personal service,
subject to garnishment and seizure in payment of such taxes and
penalties, together with any interest which may have accrued there
on.” It is further .provided that on failure to pay the tax the as
sessor shall notify the employer of such person, who must withhold
money due for personal service or otherwise to an amount sufficient
to pay such delinquent tax and penalties. The petitioner, an alien
male inhabitant of the State of California and a citizen of Mexico,
was held by the chief of police of the city of San Francisco under a
complaint charging him with failure to register as required by the
terms of the alien poll-tax law of 1921. Kotta sued out a writ of
habeas corpus, claiming that the act was null and void as to all alien
inhabitants of the State in that it denied to persons within the juris
diction of the State the equal protection of the laws, in violation of
a provision of section 1 of Article 14, amendments to the Constitu
tion of the United States. The supreme court of the State, speaking
by Chief Justice Angellotti, upheld this view and declared the law
unconstitutional. In his opinion he said:
The law was enacted solely in the exercise of the power of taxa
tion for the purpose of raising revenue for State purposes, contain
ing no provision whatever attributable to the exercise of the police
power of regulation, and it imposes on alien inhabitants of the
State between certain ages, solely because of their alien character,
a tax different in kind from and additional to the taxes required to
be paid by all inhabitants, citizens, and aliens, alike. No such tax
or its equivalent is imposed by our laws on any except alien in
habitants. The law thus imposes an additional burden in thq matter
53
of taxation upon such aliens solely because of their alien character,
and in this wav discriminates against them.
This being the situation, in view of the decisions of the Supreme
Court of the United States, there is no escape from the conclusion
that the alien poll tax law can not be enforced, for the reason that
by its enforcement the State of California would deny to persons
within its jurisdiction the equal protection of its laws, in violation
of the provision of section 1 of the fourteenth amendment that no
State shall “ deny to any person within its jurisdiction the equal pro
tection of the laws.”
It is settled that the word “ person ” as used in this amendment in
cludes aliens.
COMPULSORY LABOR.
Compulsory L abor—V agrancy—O rdinance
ness , S abotage, etc.—Constitutionality —E x
F orbidding I dle
parte T aft , Su
preme Court of Missouri {November 20, 1920), 225 Southwestern
Reporter , page %57.—Philip Taft was convicted for the violation of
an ordinance (No. 33205) of Kansas City and fined $500. In de
fault of the fine he was imprisoned at the municipal farm. The ordi
nance for the violation of which he was fined defines vagrancy and
declares that all able-bodied persons not working and without any
visible means of support, all persons opposing the United States in
the prosecution of the war, all persons who hinder the United States
in the exercise of its war powers, all persons who utter seditious
sentiments against the United States, and all persons promoting
sabotage, incendiarism, etc., shall be regarded as vagrants and pun
ished. Taft was convicted of idleness, refusal to work, and of mem
bership in an organization opposed to the war, and brought pro
ceedings for a writ of habeas corpus, on the ground that the ordi
nance was invalid as being unconstitutional. In holding that the
ordinance was unconstitutional and invalid the court said in part:
There can be no question as to the right of the State, or the mu
nicipality as the agency of the State, under the police power, to
punish vagrancy or a person guilty of vagrancy. Counsel are not
apart upon this general question. Counsel do differ as to what con
stitutes vagrancy and as to the power of either the State or the mu
nicipality to make some of the things in this ordinance named acts
of vagrancy. To get a thorough view of this matter the ordinance
before us must be separated into its component parts. When we do
this it will be seen that there are five distinct classes of commission
or omissions, considered sufficient to constitute a person a vagrant,
and thereby under the ban of the ordinance. These classes we have
indicated by the figures in the parentheses which follow below:
“(1) Any person who, in this city, lives idly, has no visible means
of support, who is physically able to perform mental or manual
labor, and who has no regular employment, and is not able to show
reasonable effort and in good faith to secure some lawful employ
ment, and who neglects or refuses to accept and engage in some law-
TEXT AND SUMMARIES OE DECISIONS.
54
ful trade or occupation to support himself; (2) or who shall become
a member of any organization or association of individuals who1are
opposed to the United States prosecuting the present war; (3) or
who shall circulate or aid and abet in circulating literature directly
intended to hinder the United States Government in the exercise of
its war powers: (4) or who utters seditious sentiments against the
United States Government ; (5) or who aids or abets any person in
the circulation of any writing, posters, or circulars of any kind, in
tended to promote sedition, disloyalty to the Government, or sabo
tage, or incendiarism.”
Now of these in their order. The first clause makes a vagrant out
of a person when he lives idly, having no visible means of support,
and has no regular employment, when such person is physically able
to perform mental or manual labor, and neglects to engage in some
lawful trade or occupation to support himself, and is not able to
show reasonable effort in good faith, to secure some lawful employ
ment.
We should, before discussing the several portions of this ordi
nance, further say that when the different provisions of an ordinance
are severable, and not dependent upon each other, as is clearly the
case here, in the five provisions of this ordinance, a part may be
upheld and other parts declared invalid.
Defining and punishing vagrancy is the exercise of the police
>ower of the State, which is a very broad power, but not an unimited one. By this we mean that there is a limit to things which
may be done in the name of the police power. This portion of this
ordinance makes one a vagrant who lives idly and has no visible
means of support, and who is without regular employment, and has
failed to make any reasonable effort to secure employment.
This does not strictly comport to our measure of the common-law
definition of “ vagrant.”
Ordinances may be bad for vagueness and indefiniteness. It is
urged that the terms “ visible means of support” and “ reasonable
effort ” as used in the ordinance make it bad. There is no substance
in the objection to the first clause quoted, supra. “ Visible means of
support ” is a term well understood, and has a definite and fixed mean
ing. The term “ reasonable effort ” is more objectionable. Statutes
and ordinances which fix crimes, or quasi crimes, should so fix them
that there could be no uncertainty. They should be so worded that
one could read them, and know whether or not he was violating law.
They should not be so worded as to leave their substantive elements
to the caprices of either judge or jury. In other words, the law should
be complete and definite. What would be “ reasonable effort ” under
this law is left a question for the court or jury. What in the minds
of one court or jury might be “ reasonable effort ” might not be so con
sidered by another court or jury. Each trial tribunal would be mak
ing its own ordinance. This will not do for a law or ordinance crimi
nal in character. In the instant case the petitioner might have in good
faith thought that his efforts amounted to “ reasonable effort,” but
the trial tribunal thought otherwise. The whole fabric of this clause
turns, or might turn, upon the words “ reasonable effort ” and in our
judgment they are too indefinite to make a good ordinance of the
character here involved.
{
55
CONSPIRACY.
We are forced to the conclusion that this first clause of the ordi
nance before us is bad for the reasons above suggested.
By section 4789, R. S. 1909, the State has defined 6 vagrants.” No
4
municipality in the State can lessen or broaden that definition. The
definition of 4 vagrant ” as found in the first clause of the ordinance
4
fails to measure up to the definition of the statute. These differences
make conflicts between the ordinance and the statute, and for this fur^
ther reason the first clause of the ordinance under consideration is
void.
The second, third, fourth and fifth clauses of the ordinance are
clearly void, and for two substantial reasons: First, they cover mat
ters of Federal rather than State cognizance. In the second place,
these definitions of a vagrant conflict with section 4789, R. S. 1909,
mentioned and discussed in a previous portion of this opinion. The
only clause in this statute which would furnish even an excuse for the
second, third, fourth and fifth clauses of this ordinance is the clause
which says,4 or shall be engaged in any unlawful calling whatever.”
4
The unlawful callings in the statute has reference to such under State
laws, and not under Federal laws. So these clauses of the ordinance
must likewise fall. We therefore rule that the whole of the ordinance
is void. In such case it becomes our duty to discharge the peti
tioner from his illegal and unlawful confinement. The petitioner is
discharged.
C o n s p ir a c y — M ob
V io l e n c e — A t t a c k
on
M in s t r e l
S how
to
—Calcutt et al v. Gerig , United
States Circuit Court of A ppeals , S ixth Circuit (February 18, 1921),
271 Federal R eporter, page 220.—Gerig was the operator and man
ager of a minstrel show known as the 4 Old Kentucky Minstrels.”
4
The show was billed some weeks in advance to appear in the city
of Dyersburg, Tenn., on the night of June 21, 1918. When this
date arrived Gerig set up his tent, sold his tickets, and made
all preparations for presenting the performance. It seems that
labor conditions were such in and around Dyersburg that the presen
tation of this show would attract many of the farm laborers in the
vicinity and this would seriously disturb the harvesting of the crop.
Whereupon Calcutt and the other defendants entered into a con
spiracy to drive Gerig and his show from the town. He and the
others went to the show place and forcibly seized Gerig and his
ticket seller, who was his wife, and after scattering their money
and tickets took them to the mayor’s office. Here under threats
of death by hanging, Gerig was forced to receive back the money
he had paid for city, county, and State license fees and later
his tent was torn down and he was prevented from giving his
performance in Dyersburg. He brought suit for $50,000 dam
ages for conspiracy and recovered a judgment for $5,000. The
P rev en t
A t t r a c t io n
of
L abo rers.
56
TEXT AND SUMMARIES OF DECISIONS.
defendants appealed but the judgment was affirmed. A part of the
decision of the circuit court of appeals is as follows:
While perhaps there is no proof in this record of any preliminary
meeting of these plaintiffs in error, or of a definite plan or agreement
entered into by them to injure plaintiff in his person or property
or deprive him of his lawful rights as an American citizen, yet such
proof is not essential to the establishing of a conspiracy, and in
deed would be wholly impossible in the great majority of cases
of this character for the evident reason that conspirators do not,
as a rule, invite the public into their confidence or advise the con
templated victim or victims in reference to such preliminary mat
ters. {Alaska S. S. Co. v. International Longshoremen’s Assn.
(D. C.), 236 Fed. 964.) It is sufficient if the proof shows such a
concert of action in the commission of the unlawful act or such other
facts and circumstances from which the natural inference arises
that the unlawful overt act was in furtherance of a common design,
intention, and purpose of the alleged conspirators to commit the
same. (Farmer v. U. S., 223 Fed. 903-907,139 C. C. A. 341.)
It is further insisted upon the part of the plaintiff in error that
the court erred in refusing to permit the witnesses Green and Calcutt to explain to the jury the labor conditions in and around Dyersburg which caused the farmers to object to Gerig’s show on the
grounds that it disturbed the harvesting of the crop. Such a defense
can not be permitted. It could in no way justify or excuse acts of
violence of the kind and character charged in the amended declara
tion and which the evidence offered by plaintiff tended to establish.
If this plaintiff was violating any legal rights of the farmers, or
of any other class of citizens, they had a remedy at law or in equity;
but the law does not tolerate mob violence, no matter how offensive
the show might have been to some or all of the citizens of Dyersburg.
C o n tra ct o f E m p l o y m e n t — A g r e e m e n t fo r L if e — N ot T e r m in
I
H
— D
B
.— Southern Cot
ton O il Co. v. Yarborough , Court of A ppeals of Georgia {M ay 2,
1821), 107 Southeastern R eporter , page 866.—This was an action
able
as
n d e f in it e
ir in g
am ages
fo r
reach
by James Yarborough on a contract of employment for the re
mainder of. his natural life, to act as salesman for a stipulated com
mission payable monthly, so long as he obtained the minimum amount
of business specified. This wage amounted to $210 including his
expenses. He had a life expectancy of 23 years. The company
at the end of 5 years discharged him from its employment without
legal right to do so. He asked damages on the basis of life ex
pectancy. The lower court sustained a demurrer to his pleadings,
requiring him to reduce his claim to the amount due from the date
of discharge to the date of filing suit. Yarborough amended his
petition and judgment was rendered in his favor. The defendant
appealed to this court, which affirmed the lower court on condition
CONTRACT OF EMPLOYMENT.
57
that the traveling expenses, which amounted to $110 a month, be
deducted from the amount awarded. Judge Hill in giving the
opinion of the court said in part :
The defendant claimed the right to discharge the plaintiff on the
ground that the contract, being for an indefinite time, to wit, for the
life of the plaintiff, was terminable at the will of either party.
Whether a contract for life is an indefinite contract under the law, in
view of the amendments to the pleadings in this case, need not be
determined.
In passing, however, we do not agree with the contention that a
contract for life is such an indefinite contract as to be terminated
at the option of either party, and we do not think that the code sec
tion relied upon (Civil Code of 1910, sec. 3133), which states that
“an indefinite hiring may be terminated at the will of either party,”
is applicable to a contract for life. The amendment in effect sub
stituted for a contract for life a lawful contract for the period be
tween the discharge and the filing of the suit; and we think there
can be no doubt, under the evidence, that the plaintiff did have a
valid, enforceable contract.
The judgment was therefore affirmed, conditioned on the remit
titur of the amount of the plaintiff’s expenses included therein in
the court below.
C o n t r a c t o f E m p l o y m e n t — A g r e e m e n t N o t to E n g a g e i n
S im i
—Kaum agraph Co. v.
Stam pagraph Co. (Inc.) et al ., Supreme Court of New Y ork , A ppel
late Division (M ay 27,1921), 188 N ew Y ork Supplem ent , page 678 .—
The Kaumagraph Co. had been granted a decree, perpetually en
joining and restraining the defendants from engaging in a business
similar to that of the plaintiff. The reasons given for the decision
granting the decree were twofold: First, that two of the defendants
had made contracts of employment with the Kaumagraph Co. in
which there were negative covenants against engaging in a similar
occupation; and, second, that the plaintiff was engaged in manufac
turing under a secret process and that defendants, former employees
of the plaintiff company, had organized and incorporated for the
purpose of manufacturing and selling some of the same articles made
by the same process as that used by the plaintiff. The appellate
division reversed the decision of the lower court, holding that the
plaintiff did not prove the use of any secret process or that it had
acquired exclusive rights in the process. The opinion of the court
was written by Judge Page, from which the following is quoted :
There remains the question of the plaintiff’s right to enjoin the
defendants George Chadwick and Arthur Turner by virtue of the
negative covenants in their contracts. The first agreement with
George Chadwick contained a covenant that under no circumstances
lar
B u s in e s s — T ra d e
S ec r et s— I n ju n c t io n
TEXT AND SUMMARIES OF DECISIONS.
58
nor at any time would Chadwick “ engage in any business similar
to or conflicting with the business of the Kaumagraph Co., or pro
duce dies, trade-mark stamps, embroidery designs, or indelible letters,
by said Kaumagraph process or any similar process, except as here
inbefore provided, without the written consent of the ” plaintiff.
On February 1, 1909, six years before this contract expired, the
plaintiff insisted on a new contract for a term of ten years from that
date. To this Chadwick objected, and a new contract was prepared
for the unexpired term of the first, which Chadwick signed. This
provided for payment of a salary of $35 per week for the first year
and $40 per week thereafter, and further provided:
“ In consideration of the foregoing the party of the second part
agrees that he will remain in the employ of the party of the first
part for a period of six years from the date hereof and in considera
tion of the agreements hereinbefore set forth, party of the second
part agrees that he will not at any time engage in any business sim
ilar to or conflicting with the business of the said Kaumagraph Co.,
or produce dies, trade-mark stamps, embroidery designs, or indelible
letters by any one or more of the processes employed by the said
Kaumagraph Co. or by any similar processes or manufacture or pro
duce such articles or engage in such processes in any way, by sale
'or otherwise, connected with the trade within the territory of the
United States east of the'Mississippi River, or in the Dominion of
Canada, without first securing the written consent of the party of
the first part.”
The contract further provided that it should “ continue in full
force as to all its stipulations for an indefinite period after the date
of its expiration, until terminated by notice in writing by either
party one year in advance.”
In the latter part of the year 1918 George Chadwick was reduced
from the position of superintendent and a man with no previous
experience in the business was put over him, and on January 13,
1919, he gave the plaintiff one year’s notice in writing of the termina
tion of the contract. He did no act in violation of his agreement,
nor, so far as the proof shows, was he disloyal to his employer. The
sole justification for enjoining him was his statement that when he
left the plaintiff’s employ he should go into a similar business.
It must be borne in mind that Chadwick, for 13 or 14 years before
he entered into the plaintiff’s employ, had worked for the William
Briggs & Co. (Ltd.). It was because of his knowledge of and skill
in the business that plaintiff employed him. He worked for the
plaintiff for about 16 years. Thus 30 years of his life had been spent
in this one employment. While he worked for plaintiff his salary
ranged from $15 to $40 per week. The judgment goes beyond even
the terms of the negative covenant; it is unlimited as to time or space.
George Chadwick by the decree is perpetually enjoined from ever
again in any place working at the only trade he knows. Under this
decree he could not return to England and engage again with Wil
liam Briggs & Co. (Ltd.). He must work hereafter for the plaintiff,
or not work at all at the only trade he knows. The books will be
searched in vain for a precedent for so unjust and oppressive a
decree. As has been well said:
59
“ Such a restraint savors of servitude, unrelieved by an obligation
of support on the part of the master.”
Covenants ancillary to a contract of employment restricting the
employees’ right to labor along the same line, either for themselves or
others, upon the termination of their employment, are not favored
by the law, and will not be enforced, unless there are special circum
stances that render the restriction a reasonable protection to the
employer’s business, to prevent the employee from using knowledge
that he has acquired in the course of his employment, of the secrets
of the trade, methods, or processes of the employer.
Where, however, the employee brings to the employment skill
previously acquired, and does not obtain, in the course of his employ
ment, knowledge of methods and processes which are exclusively
within his employer’s control and right to use, it can not be said that
such a restraint is reasonably necessary to the employer’s protection.
Contracts by employees, unreasonably limiting their right to pursue
their trade or occupation in the future, are held to violate public
policy, because the employees’ means for procuring a livelihood for
themselves and family are thereby diminished. They are deprived
of the power of usefulness, and the public is deprived of the benefit
of the exercise by them of their knowledge and skill.
The judgment and findings inconsistent with this opinion should
be reversed.
CONTRACT OF EMPLOYMENT.
C ontract
of
E m plo ym en t— A g reem en t
to
T reat
w it h
T rad e-
In re Division IS2 of
Am algam ated Association of Street and Electric R ailw ay Employees
of Am erica , et al ., Supreme Court of New Y ork , A ppellate Division
{M ay 17 , 1921) , 188 New Y ork Supplem ent , page 353 — The petition
U n io n — A b a n d o n m e n t
of
E m p l o y m e n t .—
ers above sought an order directing the United Traction Co. to pro
ceed to arbitration in accordance with the terms of a certain con
tract. This contract set forth that the officers of the company would
treat with the officers of the union on all grievances and in con
sideration the members of the union would continue their labor.
The contract ran from July 1, 1920, to June 30, 1921, with a pro
vision that the scale of wages would continue in force after Novem
ber, 1920, if the company was permitted to charge increased fares.
The privilege of such increase was not allowed, and the company
gave notice of a decrease in wages in January, 1921, which resulted
in members of the association leaving their employment.
The petition on appeal was dismissed by the appellate court, hold
ing that the contract was not an agreement to arbitrate and that if
there had been a valid agreement to arbitrate, the traction company
had been relieved of their obligation by the action of the members
of the association. The following extracts are taken from the de
cision :
Assuming for the purposes of this discussion that the petitioners
have a standing in court as the representatives of the members of
60
TEXT AND SUMMARIES OF DECISIONS.
their respective unincorporated associations as though the latter
were incorporated, which is obviously as far as any assumptions
may fairly go in the premises, we find that on the 1st day of July,
1920, the petitioners and the United Traction Co. entered into an
agreement by the terms of which the traction company agreed
“ through its properly accredited officers to treat with the properly
accredited officers and committee of the association on all grievances
that may arise,” which is clearly not an agreement to arbitrate.
The consideration for this agreement is lacking the moment the
employees abandon their work, and the corporation is no longer
bound to accept a determination of arbitrators.
The former employees, represented by the petitioners, have aban
doned the contract; they have committeed an anticipatory breach
of the provision for arbitration, by destroying its consideration be
fore it had an opportunity to come into operation, and they have
no ground for complaint, because they are no longer employees, and
because the time fixed by the contract for its operation in any event
has not yet.arrived.
C ontract
of
E m p l o y m e n t — B r e a c h — E v id e n c e — B u r d e n
of
—Crayton v. S tate, Court of Appeals of Georgia, D ivision No.
1 (March 8, 1921), 106 Southeastern Reporter, page 919.-—Mack
Crayton was charged with violation of the labor contract act of
1903 and was convicted. It seems that he received $3 advance money
and entered into a contract to perform certain services, which were
not rendered. He moved for a new trial on the ground of improper
instructions to the jury, but his motion was overruled and he ap
pealed. In reversing the decision of the trial court, the court of ap
peals said in part:
In a prosecution for violation of the “ labor contract act” of 1903
(Penal Code 1910, sec. 715), the burden of proving that the accused
did not have good cause for his failure to carry out his contract is
upon the State; and this burden is not carried by the testimony of
the hirer that the accused had no good and sufficient reason for not
performing the services agreed upon, or for not returning the articles
of value advanced by the hirer upon the strength of the contract.
Such testimony amounts to a mere opinion or conclusion of the wit
ness, and is worthless, unless supported by proof of sufficient facts
to give it probative value. (Ashley v. State, 22 Ga. App. 626, 97
S. E. 82.) Under this ruling, and the facts of the instant case, the
verdict was not authorized by the evidence, and the court erred in
overruling the motion for a new trial.
Judgment reversed.
P roof
C o n t r a c t o f E m p l o y m e n t — B r e a c h — I n t e n t to D e fr a u d
—Sm ith
v. State, Court of Appeals of Georgia (Ju ly 26, 1921), 108 South
eastern R eporter , page 180 .—Ben Smith was convicted of a viola
CONTRACT OF EMPLOYMENT.
61
tion of the * labor contract act” of 1903 (Penal Code 1910, sec. 715),
which reads as follows:
Sec. 715. Procuring money on contract for services fraudulently .—
If any person shall contract with another to perform for him ser
vices of any kind, with intent to procure money or other thing of
value thereby, and not to perform the service contracted for, to the
loss and damage of the hirer, or, after having so contracted, shall
procure from the hirer money, or other thing of value, with intent
not to perform such service, to the loss and damage of the hirer,
he shall be deemed a common cheat and swindler, and upon convic
tion shall be punished as for a misdemeanor.
The defendant appealed to the court of appeals, which reversed
the decision of the lower court. The court held that to authorize a
conviction it was not sufficient to prove that Smith had formed a
fraudulent intent after advances were made. It must be proved that
the accused had formed the intent to defraud at the time of the
execution of the contract.
C o n t r a c t o f E m p l o y m e n t — B r e a c h — B ig h t to D is c h a r g e — D a m
Golden Rod M ills v . Green , Court of C ivil Appeals of Texas
(A pril IS , 1921), 2S0 Southwestern Reporter , page 1089.—A. H.
a g es—
Green had a contract to work for the plaintiff in error for five years.
He worked for one year and was discharged. He found other em
ployment, but brought this action because of his wrongful discharge,
the issue being whether or not the claim that his service had been un
satisfactory was made in good faith. Judgment was rendered in his
favor, and the defendant appealed to the civil court of appeals, in
which the judgment was affirmed. The court spoke in part as fol
lows:
Where the master, contractor, or employer retains no absolute
right to discharge an employee for unsatisfactory work to him, but
the employee merely contracts to give satisfaction in his work, and
no absolute right of discharge is reserved, under the very nature of
the contract such right can be made an issue of fact. Indeed, when
ever, in the exercise of the right to discharge, the employer acts
fraudulently, or so arbitrarily as to amount to a fraud, the employee
is entitled to have the good faith of such act determined through the
intervention of the courts.
C o n t r a c t o f E m p l o y m e n t — B r e a c h — S e t t l e m e n t — S a t is f a c t o r y
S
—American Trading Co. v . Steele , United States Circuit Court
of A ppeals , N inth Circuit (August 7, 1921), 27If, Federal Reporter ,
page 77If,.—A. T. Steele brought an action in the United States Court
e r v ic e
for China against the American Trading Co. because of the breach of
contract of employment. Steele agreed to work for three years in
a
62
TEXT AND SUMMARIES OF DECISIONS.
Shanghai under certain conditions, One of which was that Steele
would have to do his work in an efficient and satisfactory way. The
contract was made in California. Before reaching his destination a
new supplementary agreement was entered into, the place of work
being Tokyo instead of Shanghai, with a little higher compensation.
At the Expiration of a year Steele was notified that his services were
no longer required. There was a sort of arbitration, but Steele later
brought an action for damages. Judgment was granted in his favor,
and the defendant appealed to the circuit court of appeals, where the
judgment was affirmed. The court in a decision rendered by Judge
Wolverton said:
There seems to be a practical concurrence of opinion that, in con
tracts involving matters of fancy, taste, or judgment, when one party
agrees to perform to the satisfaction of the other, he renders the
other party sole judge of such satisfaction, without regard to the
justice or reasonableness of his decision, and a court or jury can not
say that the party should have been satisfied where he asserts that
he is not.
In the case at bar the employment was conditioned upon the work
being done “ in an efficient and satisfactory way ”—not to the satis
faction of the employer. The services to be performed were those
of an accountant. They were not of a character personal to the em
ployer, unless made so by apt stipulation; nor were they addressed
to the judgment of a particular person or to the employer solely.
They were such, considering the end to be accomplished, that others
could as well judge of the character of performance as the em
ployer. The expression “efficient and satisfactory way ” is by no
means the equivalent of “ satisfactory to the employer,” and, if the
parties had desired that the latter meaning should be incorporated
in the contract, it would have taken but a stroke of the pen so to
express it. That not having been done, we must take it that the plain
meaning of the expression used was the one intended. The trial court
was therefore not in error in its construction of this clause in the
contract. Its finding that plaintiff has not breached the contract in
the light of this clause is one of fact, which it is not in the province
of this court to disturb; the evidence being such as tends to support it.
The next question presented relates to the alleged arbitration. Is
it a bar to plaintiff’s recovery? The agreement for submission is
singularly brief. It is:
“ We, the undersigned, agree to the arbitration of our differences
by the honorable Mr. Potter.”
This makes it necessary that we examine the negotiations of the
parties looking to the arbitration, to ascertain what their differences
were, and what was to be submitted for adjustment.
The controversy submitted thereon was the amount of compensa
tion to be paid plaintiff in full settlement of all his claims against the
company under the two agreements between the parties. Each party
submitted to the arbitrator a statement of the case. The arbitrator
by his decision found:
First, “ that the matter of the three-year contract should be re
ferred to Mr. Ward in San Francisco for settlement,” and, second,
CONTRACT OF EMPLOYMENT.
63
“ that Mr. Blake should pay Mr. Steele in full, until such time as Mr.
Steele can secure first-class passage back to San Francisco, less any
indebtedness that may be proved that Mr. Steele owes Mr. Blake.”
There is nothing definite in either finding; nor is there any adjustment or settlement of the matters referred for arbitration. In
other words, the award settles practically nothing of the controversy
submitted by the parties for adjustment. The disposition under
the award must be sufficiently definite and exact that nothing further
remains to fix the rights and obligations of the parties under the sub
mission, and that the party against whom it is made can perform or
pay it without further ascertainment of rights or duties; otherwise,
it is void. The award of the arbitrator is therefore not a bar to the
present action.
C ontract
of
E m p l o y m e n t — D is c h a r g e — E f f e c t
on
T enancy—
—Woodson et ux. v. McLaughlin et al ., Supreme Court
of Arkansas ( October 31 , 1921), 231^ Southwestern R eporter , page
185 .—J. F. Woodson in 1919 was a share cropper on the farm of one
McLaughlin. McLaughlin furnished Woodson the land and a tenant
house to live in while he cultivated and gathered the crop, and Woodson was to receive one-half of the crop in payment for his services in
cultivating and gathering it. Because of excessive rains in the fall
of the year Woodson was delayed in gathering his cotton. Woodson
was discharged from his employment and was requested to move out
of the house so that McLaughlin could move it to another part of the
farm. He refused. McLaughlin hired M. W. Davis to move the
house. Under McLaughlin’s directions he tore the kitchen away
from the main part of the house and rolled it some distance away.
It rained and snowed after this had been done, and by reason of the
opening the rain and snow beat into the main dwelling house, caus
ing Woodson’s wife to become ill. They then moved out and brought
an action for damages, stating that they had wrongfully been com
pelled to move. In the circuit court judgment was in favor of the
defendants and Woodson appealed. In the supreme court the judg
ment was affirmed. It was held that the relationship was landlord
and laborer, not that of landlord and tenant. The title of the crop
was in McLaughlin until he divided it. Woodson’s occupation of
the house was ancillary to his employment and was part payment
for his services. When his employment was terminated his right to
occupy the premises ceased. Judge Hart speaking for the court said:
The complaint does not allege a violation of the contract of hiring
on the part of McLaughlin, but it alleges a trespass. Hence in this
case it does not make any difference whether the discharge of Woodson by McLaughlin was lawful or not. It is sufficient that McLaugh
lin discharged him.
S h a r e C ro pper.
64
TEXT AND SUMMARIES OF DECISIONS.
If Woodson was wrongfully discharged, his remedy was to sue
McLaughlin for a breach of contract. Where one, having con
tracted with another to allow him to cultivate his farm on the shares
for a year, orders him off the farm before the end of the year, and
refuses to let him gather the crop, the cropper may maintain an
action at once against the landowner, and recover as damages the
value of such cropping contract. (Jewett v. Brooks, 134 Mass. 505,
and Tignor v. Toney, 13 Tex. Civ. App. 518, 35 S. W. 881.) In such
cases the damages like the contract of hiring are entire and accrue
on the day when the contract is repudiated. They are measured by
the value of the contract on which the cropper is deprived and not by
any injury done his person or that of his wife.
It follows that the judgment must be affirmed.
C ontract
of
E m p l o y m e n t — E m p l o y e e ’s
I n v e n t io n — R ig h t s
of
—Ingle v. Landis Tool Go. et al ., United States Circuit
Court of A ppeals, T hird Circuit (March 8, 1921), 272 Federal R e
porter, pdge
—William R. Carey was an inventor in the em
E m plo yer
ploy of the Ingle Machine Co., at a salary of $35 per week. His
work consisted of making drawings for machines built by that com
pany, but he was under no contract to assign to his employer any
invention he might make. He made the invention that was sub
sequently embodied in the patent in suit. The Ingle Machine Co.
went into bankruptcy" and its assets were sold by the trustee to the
Landis Tool Co. The Landis Tool Co. entered into an agreement
with the Gurney Electric Elevator Co. to have machines embodying
the alleged invention built for the Landis Tool Co. Ingle brought
suit upon the Carey patent, which had been transferred to him,
charging said companies with infringement. The court below or
dered that Ingle execute an assignment of the patent to the Landis
Tool Co. The circuit court of appeals held that as between Carey
and the Ingle Machine Co. the invention never became the property
of the machine company and therefore no title passed. The court
quoted from the case of Dalzell v. Dueber Mfg. Co., 149 U. S. 315, 13
Sup. Ct. 886, as follows:
But ^manufacturing corporation, which has employed a skilled
workman, for a stated compensation, to take charge of its works,
and to devote his time and services to devising and making im
provements in articles there manufactured, is not entitled to a con
veyance of patents obtained for inventions made by him while so
employed, in the absence of express agreement to that effect.
C o n tr a c t o f E m p l o y m e n t — E n fo r c e m e n t b y I n ju n c t io n — S u n
L
— Shubert Theatrical Co . v . R ath et al., U nited Stales
Circuit Court of Appeals, Second Circuit {February 16, 1921), 271
Federal R eporter , page 827 .—George and Richard Rath agreed to
day
abor
CONTRACT OF EMPLOYMENT.
65
work for the plaintiff for one year, with an option on their services •
for the following year. The company exercised its rights under the
option and so notified the Rath brothers. Defendants refused to
perform under the agreement and made a new contract with a rival
manager. Action was brought to restrain the brothers from ap
pearing under the new contract, which resulted in an injunction, and
they appealed. The district court was affirmed by the circuit court
of appeals in its decision that the contract was binding and would
be enforced by injunction. The court, speaking through Judge
Rogers, said in part:
These services were to be given to the plaintiffs exclusively, and
the contract contains an express negative covenant that they would
not be given under any other management during the period named.
By a negative covenant the covenantor promises that something shall
not be done. The relief appropriate to a breach of such a contract is
an injunction.
The basis upon which the decisions rest in all such cases is that the
damages for the breach of such contracts can not be estimated with
any certainty, and the employer can not by means of any damages
purchase the same services from others. The injury in such cases
is irreparable. Damages which can be estimated in cases of this class
only by conjecture, and not by any accurate standard, constitute
such an irreparable injury as courts of equity will restrain by
injunction.
It was further contended that the contract in question was illegal,
in that it called for the performance of acrobatic feats on Sunday,
in violation of the law of the State. As to this the court said:
We assume that, in the absence of a statute, participation in in
nocent amusements on Sunday is lawful. We also assume that con
tracts to perform on Sunday something prohibited by statute are void.
It has been held that, where a contract provides for the performance
on Sunday of acts prohibited by the statute, the entire contract is
void, and no recovery can be had for the part performed on a
secular day.
In Zenatello v. Hammerstein, 231 Pa. 56, 79 Atl. 922, the plaintiff
had bound himself to sing certain operas “ each day of the week ”
in New York and elsewhere in the United States. The court said the
law would not presume that the parties intended an unlawful thing.
The presumption was that the plaintiff would not be required to sing
on Sundays, except in places where such singing was permittedand
in the instant case it can not be said that the contract in any way
violates the Sunday observance law of the State of New York.
Decree affirmed.
C ontract
of
E m p l o y m e n t — E n t ic in g
E m plo yees — B reached
Beale v . Yazoo Y a m M ill, Supreme Court of M ississippi
{Ma.y 23,1921), 88 Southern Reporter, page 1^11.—The Yazoo Yarn
C o ntract—
Mill was awarded a judgment against R. M. Beale in the circuit court
TEXT AND SUMMARIES OF DECISIONS.
66
of Yazoo County for knowingly employing, willfully interfering
with, and enticing away employees of the plaintiff. It appears that
J. S. Porter, a laborer, agreed for himself and family to work for the
plaintiff company until May, 1919, at current wages. His son was
subsequently discharged. Porter told Beale that he had notified the
foreman of the mill that he could not work unless his family was
employed, and that the foreman had replied that the son would not
be taken back at the mill. Beale accepted this as indicating a breach
of the contract at the mill, and employed Porter.
Beale appealed from his conviction, securing a reversal and new
trial.
The court, speaking through Judge Ethridge, said in part :
The statute is criminal and highly penal, and its terms are not to
be extended by construction.
Giving the statute a reasonable interpretation, it must be held that
if the employer breached the contract himself he could not hold Beale
for employing a laborer during the time which the contract would
have to run had it not been breached.
The Supreme Court of the United States, in the Bailey case, 219
U. S. 219, 31 Sup. Ct. 145, placed such construction upon the thir
teenth and fourteenth amendments, as gives to a laborer the right
to terminate a contract for personal service, subject only to damages
for its breach. Under the decisidn of this court, if Porter was justi
fied in abandoning his contract for any default on the part of the
mill, the employer, such would exonerate appellant in thereafter hir
ing Porter, though the original term or period,-of the contract had not
expired. In interpreting and administering a statute the court should
not construe the law or administer it so as to endanger its constitution
ality.
Reversed and remanded.
C o n t r a c t o f E m p l o y m e n t — E n t i c i n g E m p l o y e e s — I n d i c t m e n t -—
H olt v. S tate , Supreme Court of Georgia {March 16 , 1921 ), 106 South eastern Reporter, page 548,— M. H. Holt was convicted of the viola
tion of Penal Code, section 125, of Georgia, which prohibited the
enticing away and employment by an employer of the servant of
another employer working under a contract. The defendant ap
pealed, and the decision was reversed. The decision is as follows:
Penal Code, section 125, declares:
4 If any person shall, by offering higher wages or in any other way,
4
entice, persuade, or decoy, or attempt to entice, persuade, or decoy
any servant, cropper, or farm laborer, whether under a written oy
parol contract, after he shall have actually entered the service of his
employer, to leave his employer during the term of service, knowing
that said servant, cropper, or farm laborer was so employed, he shall
be guilty of a misdemeanor.”
An indictment for a violation of this section, which omitted the es
sential part thereof, viz, 44to leave his employer during the term of
67
CONTRACT OF EMPLOYMENT.
service,” failed to charge any penal offense, and the court erred in
overruling the general demurrer attacking the indictment on that
ground.
In view of this ruling, the grounds of the demurrer urging the un
constitutionality of the statute upon which the indictment was
founded will not be considered.
C ontract
of
E m plo ym en t— I n ter fer en c e— A ct
of
I n su ra n ce
— United States F idelity and Guaranty Go. v . Millonas, Supreme Court of Alabama {M ay 12, 1921), 89 Southern-Re
porter, page 782.—John Millonas was in the employ of Diniaco &
A g en t— D am ages
JBro., a construction firm, as a sheeter, earning $11 a day. While at
Work during July, 1918, in Birmingham, Ala., he suffered an injury
to his eye. Because of this injury he was incapacitated for 30 days.
tThe employer was insured in the defendant company. One Smith
Was the claim adjuster for the casualty company in Alabama. Mil
lonas applied to him for compensation for his injury, but without
result. Millonas then consulted an attorney named Charlton. Smith
had a conference with Charlton for the purpose of adjusting the
claim if possible. During the conversation Charlton mentioned the
fact that Millonas was still in the employ of the firm. Smith ex
pressed surprise when this fact was mentioned, and in substance told
Charlton that Millonas could not work for Diniaco and sue the in
surance company at the same time, and that he would be discharged.
Millonas was discharged that day. He was a specially trained man,
and could not find work for two months. He brought suit against
the insurance company for damages for willfully, maliciously, and
wrongfully procuring his discharge from employment. Judgment
was rendered for $25,000. On appeal judgment was reversed, but
would be affirmed on condition that Millonas would accept a judg
ment for $6,000 with interest. The court said that the company is
liable “ because of the conduct of the agent acting within the line
and scope of his employment,” but “ neither justice nor the public
welfare call for the infliction of so heavy a penalty.”
C o n t r a c t o f E m p l o y m e n t — R e s c is s io n — N e w
C ontract
B efo r e
—Schwartzreich v. Bauman-Basch (Inc.),
Court of Appeals of New Y ork (M ay 10,1921 ), 181 Northeasterm Re
porter, page 887.—Louis Schwartzreich brought an action for dam
ages on a contract of employment dated October 17, 1917. The
facts are that plaintiff on August 31, 1917, made a contract with the
defendant company to work for one year, commencing November 22,
O ld
O ne
H ad
E x p ir e d
101296°—22-----6
6 8
TEXT AKD SITMMAEIES OF DECISIONS.
1917, at a salary of $90 per week; that in October plaintiff was
offered $115 by another concern; that plaintiff notified the defendant
company of the offer and as a result the defendant company drew
up a new contract in identical terms, but at a salary of $100 per
week. Louis Schwartzreich remained in the employ of the defend
ant company until the following December, when he was discharged.
The court permitted the jury to find that the prior contract may
have been canceled simultaneously with the execution of the new
agreement. The jury rendered a verdict for the plaintiff on the
view that the former contract was rescinded, and a new one made;
but the trial justice set it aside and dismissed the complaint on the
ground that there was not sufficient evidence that the first contract
was canceled to warrant the jury’s findings. Upon appeal to the
appellate term the judgment was reversed and verdict and judgment
in plaintiff’s favor reinstated. The appellate division affirmed this
judgment and the court of appeals also affirmed it. Judge Crane,
speaking for the court of appeals, said:
Any change in an existing contract, such as a modification of the
rate of compensation or a supplemental agreement, must have a new
consideration to support it. In such a case the contract is continued,
not ended. Where, however, an existing contract is terminated by
consent of both parties and a new one executed in its place and stead,
we have a different situation and the mutual promises are again a
consideration. Very little difference may appear in a mere change
of compensation in an existing and continuing contract and a ter
mination of one contract and the making of a new one for the same
time and work, but at an increased compensation. There is, however,
a marked difference in principle. Where the new contract gives any
new privilege or advantage to the promisee, a consideration has been
recognized, though in the main it is the same contract. (Triangle
Waist Co. (Inc.) v. Todd, 223 N. Y. 27,119 N. E. 85.)
If this which we are now holding were not the rule, parties having
once made a contract would be prevented from changing it no matter
how willing and desirous they might be to do so, unless the terms con
ferred an additional benefit to the promisee.
The decisions are numerous and divergent where one of the parties
to a contract refuses to perform unless paid an additional amount.
Some States hold the hew promise to pay the demand binding though
there be no rescission. It is said that the new promise is given to
secure performance in place of an action for damages for not per
forming (Parrot v. Mexican Central Railway, 207 Mass. 184, 93 N. E.
590), or that the new contract is evidence of the rescission of the old
one^nd it is the same as if no previous contract had been made (Coyner v. Lynde, 10 Ind. 282; Connelly v. Devoe, 37 Conn. 570; Goebel v.
Linn, 47 Mich. 489,11 N. W. 284); or that unforeseen difficulties and
hardships modify the rule (King v. Duluth etc. Ry. Co., 61 Minn.
482, 63 N. W. 1105), or that the new contract is an attempt to miti
gate the damages which may flow from the breach of the first (Enariss v. Belle Isle Ice Co., 49 Mich. 279,13 N. W. 590).
69
CONTRACT OF EMPLOYMENT.
The contrary has been held in such cases as Carpenter ». Taylor,
164 N. Y. 171, 68 N. E. 53; Davis & Co. v. Morgan, 117 Ga. 504, 43
S. E. 732, Alaska Packers’ Association v. Domenico, 117 Fed. 99 ; 54
C. C. A. 485 (etc.). In none of these cases, however, was there a full
and complete rescission of the old contract and it is this with which
we are dealing in this case. Rescission is not presumed; it is ex
pressed; the old contract is not continued with modifications; it is
ended and a new one made.
The efforts of the courts to give a legal reason for holding good a
promise to pay an additional compensation for the fulfillment of a
preexisting contract is commented upon in note upon Abbott v.
Doane (163 Mass. 433, 40 N. E. 197) in 34 L. R. A. 33, 39, and the
result reached is stated as follows:
“The almost universal rule is that without any express rescission
of the old contract the promise is made simply for additional com
pensation, making the new promise a mere nudum pactum.”
As before stated, in this case we have an express rescission and a
new contract.
Judgment affirmed.
C
E
— S
— C
T
—Shanley et
at. v. Tlmied States, United States D istrict Court, Eastern D istrict
o f New Y ork (June 27., 1921 ), 274 Federal Reporter, page 69L —
ontract of
m plo ym en t
eam en
ontract
erm
Joseph S. Shanley and others, libelants in this suit, were members
of the crew of the L iberty Land (a boat owned by the United States
Emergency Fleet Corporation), who shipped at Philadelphia for a
voyage to an African port and return to the United States. The
articles signed by the crew were for six months, but because of delay
the ship was on the African coast at the expiration of the six months.
The captain desired the crew to continue under the old articles. The
crew insisted on new articles and demanded double pay for the bal
ance of the voyage. The captain agreed under protest, with claim of
duress and illegal demand. The captain had obtained authority to
extend the ship’s articles. On return to the United States the crew
demanded wages under the new agreement, which was refused and
they brought this suit. Judgment was given in favor of the plaintiffs
on the ground that “ if the voyage can not be completed, or is ended
by mutual agreement, the former articles are of no effect upon the
future status of the crew who are free to make a new agreement
with the captain if he has the authority to do so.” In the course of
the decision Judge Chatfield said:
In the case at bar the captain evidently anticipated delay. He
cabled for instructions and authority and received directions to do
that which he had the power to do without express direction. If the
crew had been willing to sign new articles, extending the period of the
voyage on the same terms, no question eould have arisen. If they
were not willing to do this and insisted upon a termination of the
voyage, they were bound to stand by their vessel until it reached a
TEXT AND SUMMARIES OF DECISIONS.
70
point where the voyage could properly be considered at an end, and
where they could be properly released from their obligations.
This court has no power to make a new contract if the original
contract was invalid. It is impossible to determine what solution
the parties would have worked out as a basis of agreement, but,
inasmuch as the crew were bound to stick to their contract and to their
vessel, at least as far as Gibraltar, and as upon reaching that port,
they could have insisted upon making a contract like that forced on
the captain at Accra; in other words, inasmuch as the element of
duress depends upon the exercise of compulsion prematurely, and
inasmuch as the captain of the L iberty Land agreed to pay wages at
the rate demanded, rather than to lose his crew, and then proceeded to
New York instead of to a port like Gibraltar, where the matter could
have been terminated, it would seem that the new contract was invalid
only in part or during that period wherein the crew mistakenly as
sumed that the new contract could be put in force. The captain of
the L iberty Land did not have the right to demand that his crew
continue to sail with him, according to his wishes and until he
should reach the United States, no matter how long the voyage
might take.
The testimony of the shipping commissioner is that at the time of
the discharge, when a great majority of the crew were present, they
were informed by the shipping commissioner that “ by signing clear,
if they could show cause in the future, they could collect their wages
if the court rules so,” and the understanding was that they were
signing under protest.
Under these circumstances the release can not be used as a receipt
in full, under section 4552, R. S.
C ontract
of
E m p l o y m e n t — S e a m e n — D is c h a r g e — T r a n s p o r t a
—Jenkins et al. v. United States Em ergency
Fleet Corporation , United States D istrict Court , W estern D istrict
of W ashington (June 29 , 1920 ), 268 Federal R eporter , page 870 .—
t io n
to
H ome
P ort
I. W. Jenkins and his coplaintiffs were seamen. In the port of
New York they signed shipping articles with the master of the ship
Lake Flynus in which the voyage was declared to be:
From the port of New York to one or more ports in South Amer
ica, via coastwise ports and such other ports or places in any parts
of the world as the master may direct, and back to a final port of
discharge in the United States, north of Cape Hatteras.
The vessel sailed to South American ports and then to Tacoma,
Wash., where it discharged the entire cargo and was laid up for
repairs. When the vessel was ready to sail again the men were
requested to sign for a voyage to Cuba. This they refused to do
and were thereupon instructed to report to the shipping commis
sioner’s office to receive their wages. They reported at the office but
refused to accept their wages unless transportation was furnished
CONTRACT OF EMPLOYMENT.
71
them to New York. In awarding a decree for libelants (the plaintiff
seamen) the court said in part:
It is contended on the part of the libelants that the port of Tacoma,
where the entire cargo was discharged, was the final port of dis
charge, or at any rate the discharging of the entire cargo, and the
taking of the new cargo for the port of Cuba was such a deviation
from the voyage as abrogated the shipping articles and relieved the
seamen from further service. The respondent contends that under
the articles the ship had the right to call at the port of Tacoma
or Seattle, to discharge or take cargo as it saw fit, inasmuch as the
shipping articles provided that the ship may go to any port in the
world, and the port of final discharge was definitely stated in the
articles as north of Cape Hatteras, which all of the evidence shows
means on the Atlantic coast, and that while the respondents agreed
to the discharge of the libelants who so desired, it is not willing to
pay transportation to New York.
It is shown that the libelants were requested to sign “ new arti
cles ” and refused. The shipping commissioner, on request of the
agent of the respondent for a decision found that the seamen were
entitled to transportation to New York. This fact, though, is not
material here, except to show what the relation of the seamen to
the voyage was considered to be by all parties. The vessel consid
ered the voyage ended, or it would not have required the signing of
the shipping articles as testified to by libelants, and not denied. The
master, who, it is said, made this request, was not called, nor was his
absence explained. The men were discharged through no act of com
mission or omission which would warrant such discharge. This was
not the port of final discharge, and the men were not requested to
continue on the voyage under the articles, but were requested to sign
new articles for a new voyage. ^The vessel by its own conduct fixed
the status of the men with relation to this proceeding, and they were
entitled to their wages and board during detention, and transporta
tion to New York, to such as desire to go to New York.
C ontract
of
E m plo ym en t — S e a m e n — W ro n g fu l
D is c h a r g e —
The Inland, United States D istrict Court, Eastern D is
trict of New York {March 10, 1921), £71 Federal Reporter, page
1008.—This was an action in admiralty, a libel of the ship Inland,
P en alty—
to recover a penalty for the wrongful discharge of several seamen.
The men had signed up for a voyage. It was found necessary, after
starting the trip, to go into dry dock. The chief engineer in order to
economize attempted to lay off the men until the ship was ready to
go to sea. The men refused to sign off and demanded extra pay for
one month in accordance with the Revised Statutes of the United
States, section 4527. The matter was taken up with the shipping
commissioner who held that the men should go back to work and
that the vessel must retain them for the voyage. The following day
the men left the ship, and the captain, acting upon advice from the
72
TEXT AND SUMMARIES OF DECISIONS.
commissioner, marked them off as deserters. The libel was dis
missed by the court, Judge Chatfield saying in part;
The captain has authority under section 4511 (Comp. St. sec. 8300)
to hire and to discharge his men. If there could be no discharge of
any kind except before a shipping commissioner, then a seaman,
wrongfully discharged and left stranded in a foreign port, might
upon his return to the United States be confronted with the proposi
tion that he had not been discharged and had deserted, inasmuch as
the shipping commissioner had not passed upon his case.
In the present case, the matter which was taken before the ship
ping commissioner was whether, upon a proposed discharge, ad
mittedly irregular in procedure, the men had become entitled to a
penalty. The shipping commissioner evidently determined that the
situation was not one where any penalty should be inflicted, and
attempted to work out a compromise, by having the captain retain
the men with full pay. This the men refused to accept, and thereby
lost any right, except to receive the wages due, if they consented to
discharge before the commissioner.
C o st
of
L iv i n g — F ood
C o ntrol— L ev er
A c t — C o n s t it u t io n
—United States v. L. Cohen Grocery Co ., U nited States Su
prem e Court (February 28,1921), fyl Suprem e Cowrt Reporter , page
298 .—The L. Cohen Grocery Co. was prosecuted by the United
States f03L* the violation of section 4 of the Lever Act as reenacted
in 1919 (41 Stat. 297, tit. 1, ch. 80, Oct. 22, 1919), which reads in
part as follows:
That it is hereby made unlawful for any person willfully * * *
to make, any unjust or unreasonable rate or charge in handling
or dealing in or with any necessaries, to conspire, combine, agree,
or arrange with any other person * * * (e) to exact excessive
prices for any necessities * * *. Any person violating any of
the provisions of this section upon conviction thereof shall be fined
not exceeding $5,000 or be imprisoned for not more than two years
or both * *
The Cohen Co. was charged with selling in one instance 50 pounds
of sugar for $10.07 and in •another instance 100 pounds for $19.50.
The company demurred to the bill on the grounds, first, that it was
too vague to inform it of the accusation; second, that the act on which
the accusation was based was so vague and uncertain as to be uncon
stitutional; and third, that as the country was no longer at war,
Congress had no power to legislate on the subject dealt with in the
law. The district court quashed the indictment and sustained de
fendant’s demurrer and the United States appealed. In affirming
the decision of the district court Mr. Chief Justice White in render
ing the opinion of the court declared the law to be unconstitutional.
The opinion is in part as follows;
a l it y
COST OF LIVING.
73
In oases submitted at about the same time with the one before us,
and involving identical questions with those here in issue, it is con
tended that the section does not embrace the matters charged. We
come, therefore, on our own motion in this case to dispose of that
subject, since, if well founded, the contention would render a con
sideration of the constitutional questions unnecessary. The basis
upon which the contention rests is that the words of the section do
not embrace the price at which a commodity is sold, and, at any rate,
the receipt of such price is not thereby intended to be penalized.
We are of opinion, however, that these propositions are without
merit, first, because the words of the section, as reenacted, are broad
enough to embrace the price for which a commodity is sold; and,
second, because as the amended section plainly imposes a penalty
for the acts which it includes when committed after its passage,
the fact that the section before its reenactment contained no penalty
is of no moment. This must be the case unless it can be said that
the failure at one time to impose a penalty for a forbidden act
furnishes an adequate ground for preventing the subsequent enforce
ment of a penalty which is specifically and unmistakably provided.
We are of opinion that the court below was clearly right in ruling
that the decisions of this court indisputably establish that the mere
existence of a state of war could not suspend or change the operation
upon the power of Congress of the guaranties and limitations of the
fifth and sixth amendments as to questions such as we are here pass
ing upon.
It follows that in testing the operation of the Constitution upon
the subject here involved the question of the existence or nonex
istence of a state of war becomes negligible, and we put it out of
view.
The sole remaining inquiry, therefore, is the certainty or uncer
tainty of the text in question; that is, whether the words “ that it
is hereby made unlawful for any person willfully * * * to
make any unjust or unreasonable rate or charge in handling or
dealing in or with any necessaries,” constituted a fixing by Congress
of an ascertainable standard of guilt and are adequate to inform per
sons accused of violation thereof of the nature and cause of the
accusation against them. That they are not, we are of opinion, so
clearly results from their mere statement as to render elaboration
on the subject wholly unnecessary. Observe that the section forbids
no specific or definite act. It confines the subject matter of the
investigation which it authorizes to no element essentially inhering
in the transaction as to which it provides. It leaves open, therefore,
the widest conceivable inquiry, the scope of which no one can foresee
and the result of which no one can foreshadow or adequately guard
against.
That it results from the consideration which we have stated that
the section before us was void for repugnancy to the Constitution is
not open to question.
It follows from what we have said that, not forgetful of our duty
to sustain the constitutionality of the statute if ground can possibly
be found to do so, we are nevertheless compelled in this case to say
that we think the court below was clearly right in holding the
statute void for repugnancy to the Constitution, and its judgment
74
TEXT AND SUMMARIES OF DECISIONS.
quashing the indictment on that ground must be, and it is, hereby
affirmed.
Mr. Justice Pitney concurred in the decision and rendered a
separate opinion. His reason, briefly stated, was as follows:
I am convinced that the exacting of excessive prices upon the sale
of merchandise is not within the meaning of that provision of the
act which is cited as denouncing it; that the act does not make it a
criminal offense; that for this reason the demurrer to the indictment
was properly sustained; and that whether the provision is in conflict
with .the fifth or sixth amendment is a question not necessarily raised,
and which ought not to be passed upon.
C o s t o f L iv in g — P r o d u c t io n a n d D i s t r i b u t i o n o f C o a l — - P r i c e s —
—American Coal M ining Co.
v, Special Coal and Food Commission of Indiana, United States D is
trict Court, D istrict of Indiana (October 2, 1920), 268 Federal R e
porter, page 563.—The Legislature of Indiana at its special session of
1920 passed a law (ch. 44) creating a commission with power to fix
the price of coal at the mine, the charges of jobbers and wholesalers,
and to procure the production and distribution of coal for intrastate
shipment and consumption. The American Coal Mining Co., on
September 6, 1920, sought an injunction restraining the commission
from putting the act into effect, anticipating that existing contracts
might be interfered with, that interstate commerce might be inter
rupted, and that the orders of the commission might deprive the com
pany of its rights as a business corporation. The court held that
there was no reason to anticipate that the acts of the commission
would be either illegal or oppressive, so that no emergency calling
for the issue of an injunction existed for these reasons. The pay
ment of the license tax provided for by the act could be recovered
if on trial it was shown to be levied in violation of the Constitution,
so that this, too, did not call for an injunction.
The 46foundational question” was as to 44the right of the State to
touch at all the coal-mining business.” Judge Baker, who spoke for
the court, said that the legislature exercised the poweT of the people
of the State as an absolute sovereignty, which the State possessed
except in so far as surrendered to the Federal Government. Control
of affairs within the State having never been surrendered, the police
power of the State, exercised by its legislature, is without other
limitation than that imposed by the Federal Constitution. The only
Federal question was that arising as to the effect of the fourteenth
amendment, adopted in 1868. Various laws were noted which had
affected freedom of contract, enacted subsequent to the adoption of the
S tate
C o n tr o l— C o n s t it u t io n a l it y
75
COST OF LIVING.
amendment, and the conclusion was reached that there was in the act
in question no apparent conflict with its provisions.
The bill will be dismissed without prejudice, and the record may
show affirmatively that there is absolutely nothing decided, except
the one question that the State, under its police power, can lay its
hand upon the coal-mining industry.
C o st o f L iv in g — P r o d u c t io n
and
D is t r ib u t io n
of
C o al— S h ip
Vandalia Coal Co.
et al. v. Special Coal and Food Commission of Indiana , United States
D istrict Court , D istrict of Indiana (Novem ber 27,1920), 268 Federal
Reporter , page 572.—Arising under the same statute as the case of
m ents—
S tate
C o n tr o l— C o n s t it u t io n a l it y —
the American Coal Mining Co., above, this case was before the court
to secure an injunction against the defendant commission, to restrain
it from undertaking to regulate the complainants’ business under
the terms of the act. The court granted an interlocutory injunction,
Judge Baker speaking for the court. His opening statement was:
Conceding to the State the general power to take control, from time
to time, of businesses which, prior to such times, have been purely
private, by reason of change of circumstances, by reason of the ex
istence of facts showing that such a state of wrong has arisen in
that business that the safety and welfare of the people of the State
demand intervention by way of regulation, and granting also to the
State the benefit of the presumption that a statute is valid until the
contrary is shown, we will pass to the final hearing any considera
tions that may be advanced by the complainants to show that no
facts existed which justified the finding of necessity of intervention
on the part of the State; the State being free, of course, to meet and
combat such a showing.
On the question whether the remedy prescribed by the legislature
has any proper bearing on the supposed evil, we will grant to the
State the benefit of assuming that on the face of the statute the
remedy proposed has the necessary connection with the supposed evil.
As to the real facts of the operation of such remedy, whether it is
workable, we will pass that matter, also, until the full facts can be
developed on final hearing.
On the showing that has been made to-day we are all of the opin
ion that an interlocutor injunction should be issued, for the fol
lowing reasons.
The reasons given are five in number: First, that coal severed
from the ground is an article of commerce, which the owner may
dispose of without regard to State lines, so that control of its sale
is an interference with interstate commerce. In the case in hand,
the output of three of the five mines of the company was contracted
for by an interstate carrier. The second ground was the impair
ment of preexisting contracts; the third, the practical compulsion
TEXT AND SUMMARIES OF DECISIONS.
76
involved in the plan, forcing the owner to sever the coal from his
soil, thus infringing upon a purely private title to property. The
fourth reason is the nature of the coal, requiring prompt and efficient
handling and prompt consumption by the users, on account of its
tendency to deteriorate. The commission gave orders for shipment,
but supplied no cars therefor; furthermore, the parties to whom
shipments might be directed were of unknown credit, interfering
with the ordinary methods of collections and the transaction of
business generally. The fifth ground was the threats of the commis
sion to enforce penalties without awaiting final adjudication by
appeals to. higher courts. This appeared from the reading of the
law rather than from the interpretation put upon it by the commis
sion, but the court found the statute lacking in what it regarded a
proper protection of the operator^ rights, and allowed this as an
added reason for the granting of an injunction. A temporary re
straining order was therefore issued.
E
m plo yee a n d
E m p l o y e e — B r ib e r y
P o r t e r — K rich m a n
of
O f f ic e r
of t h e
U
n it e d
v. U n ited S ta te s , S u prem e
C o u rt o f the U n ited S ta tes (M ay 16 , 1921), 41 S u prem e C ourt
R ep o rter , page 514 .—Harry Krichman, petitioner, was convicted
upon an indictment which charged that while the Pennsylvania
Bailroad was under the control of and being operated by the United
States, he offered to bribe a baggage porter to do an act in violation
of his duty and contrary to section 39 of the Criminal Code which
makes it an offense ^to bribe an officer to influence his action. The
Supreme Court reversed the decision of the district court, affirmed
by the circuit court of appeals. Speaking through Justice Day the
court said in part:
The point to be decided depends upon whether, when the bribe was
offered to the porter, he was acting for the United States in an official
function.
We are constrained to the conclusion that the construction given
in the courts below, and insisted upon by the Government, practically
recasts the statute from one embracing officials, and those discharg
ing official functions, into one including every person discharging
any sort of duty while the Government is in control of the work.
The Government admits that the statute is ambiguous. While
criminal statutes are to be given a reasonable construction, am
biguities are not to be solved so as to embrace offenses not clearly
within the law.
S
tates—
E
B
aggage
m plo yer
and
E
m plo yee—
Clearance
C ards— B
l a c k l is t in g —
C leary v . G reat N o rth ern R y . Co ., S u prem e
C ourt o f M innesota (D ecem ber 24, 1920 ), ISO N orth w estern R ep o rter ,
P
roof of
D
am age—
EMPLOYEE AND EMPLOYEE.
77
'page 545 .—Frank
Cleary had been employed by the Great Northern
Railway Co. as assistant roadmaster until April 12, 1916, when he
was discharged. The reason for his dismissal as entered on the
records of the employment bureau was: “ Relieved, on account un
able to properly handle work assigned and men.” He was given a
clearance card which bore this same information. He wrote a
number of letters to other railroads requesting employment but
received no reply. Alleging that this entry was false and that because
of it he could not secure a position from other railroad companies he
brought suit for $15,000 damages. A verdict was directed for
defendant and Cleary appealed. In affirming the decision the
court said in part:
It is very doubtful whether the evidence would sustain a finding
that Sesser was not warranted in causing defendant’s employment
bureau to make the record that was made as to plaintiff. But,
assuming it would, plaintiff failed to adduce any proof to carry other
essential issues to the fury. There was no testimony that any other
railroad had received information in respect to the record mentioned
from this defendant. It must be conceded that defendant had the
right to discharge plaintiff, even if no cause therefor existed. It
could also make a record for its own use as to the reason for the
discharge. So long as this record was not furnished to others, or
made use of to prevent plaintiff from securing work, it could not
injure or damage plaintiff, though false. There is an entire absence
of proof that plaintiff was denied any work or place whatever, on
account of the record made by defendant’s employment bureau, or
because of defendant’s interference or statements. It would be
working inferences beyond reason to hold that from the general
knowledge of the scarcity of labor at that time, and the proof that
plaintiff received no response to his letters for work, the jury could
rightfully infer that the railroad companies addressed had at their
disposal such a position as plaintiff applied for, which was not
given him because of what he wrote concerning his clearance.
There was no violation of section 8890, G. S. [penalizing black
listing], shown. Merely placing upon its own records the cause
of such a discharge, as was here done, can not come within any defini
tion of wblacklisting ” contemplated by that statute. And no testi
mony was offered tending to prove that defendant made any attempt
whatever to prevent or hinder plaintiff from obtaining employment
elsewhere. There was no publication of any list by defendant; so
far as the evidence goes, the publication, if made, was by plaintiff.
Nor, as before stated, was there proof that plaintiff had been placed
on any list which contained names of persons who might be objec
tionable railroad employees, either in defendant’s employment bureau,
or through defendant’s procurement or connivance, in the employ
ment bureau of any other railroad.
E
m plo yers’
tracts
L
ia b il it y —
A
d m ir a l t y —
J
u r is d ic t io n —
F o r e ig n C o n
— The Hanna Nielsen , United Stales Circuit Court of A ppeals ,
78
TEXT AND SUMMARIES OF DECISIONS.
Second C ircuit (A p r il 18, 1921), 278 F ed eral R ep o rter, page 171 .—
Ole Tolo, a Norwegian, brought this action in admiralty. The ship
libeled was of Norwegian nationality. The libelant signed as an
oiler on the ship at Portland, Maine. He was injured by the ex
plosion of a steam gauge at Gibraltar. The libel alleged that the
injury occurred in British territorial waters, that the action was
based on British and American maritime laws, and that the Nor
wegian law did not apply. The district court allowed libelant an
allowance for cure and maintenance. The libelant appealed, and
the circuit court of appeals modified the decree so as to dismiss the
libel. The court held that the right to the award for cure and
maintenance grows out of the nature of the seaman’s contract, and
that the ship had complied with all the obligations of the Norwegian
law which governed the contract. It also held that claimant should
have proved the nature and extent of his right under British law if
he deemed that law applicable. In reference to jurisdiction, the
court,-through Judge Hough, said:
If the claim advanced herein be regarded as in contract, the breach
being the shipowner’s failure properly and reasonably to provide for
the safety of libelant, Norwegian law, and that alone, governs the
right of recovery; for “ whoever engages voluntarily to serve on
board a foreign ship necessarily.undertakes to be bound by the law
of the country to which the ship belongs.” (The Belgenland, 114
U. S. 365, 5 Sup. Ct. 860.) The seaman’s contract in this instance
was a Norwegian contract, and so remained throughout. The place
where libelant shipped or reshipped is of no moment whatever.
If the suit be regarded as sounding in tort, then the trial court
had no jurisdiction, unless the tort were maritime, and the lex loci
delicti applies. Whether the locus is to be regarded as on a Nor
wegian ship, and therefore Norwegian, or in Gibraltar Harbor, and
therefore British, is a question into which it is not necessary to go,
further than to note that under no circumstances shown here can
the law of the United States apply. The sole function of our courts
is to furnish a remedy while enforcing by comity the substantially
applicable law. As pointed out above, libelant repudiates Norwegian
law as furnishing any ground for recovery; that he was right in so
doing the evidence conclusively proved.
E
m an
m plo yers’
L
I n ju r ed
on
ia b il it y —
B
oard
A d m ir a l t y — J u r is d ic t io N — L o n g s h o r e
S h i p — K en n ed y
C unard S . S . Co. (L td .),
v.
Suprem e C ourt o f N ew Y o rk , A p p ella te D ivisio n (J u ly 1, 1921),
189 N ew Y o rk S u pplem en t, page lfi2 .—Richard Kennedy, a long
shoreman, brought an action for damages because of injuries re
ceived by him while in the employ of the defendant company. On
September 23, 1916, after finishing his day’s work in the hold of
the steamship A n dan ia, lying in New York Harbor, he was proceed
EMPLOYERS’ LIABILITY.
79
ing to the upper deck intending to leave the ship. Before reaching
the bulkhead door through which it was necessary to pass to get
on deck, the hatches were unexpectedly closed, shutting out all light.
He continued cautiously towards the door, but fell into an open
hatch and received injuries for which this action is brought.
From a judgment dismissing the complaint at the trial term the
claimant appealed. The appellate division of the supreme court
reversed that decision and ordered a new trial. Judge Page in
the course of his opinion made the following statements:
The danger of injury to a man, left in utter darkness in the ship
with its open hatchway, was obvious. It was a duty that the master
owed to the employees to take reasonable precautions to see that all
the men had come up from the hold, and not to close down the
hatches until all the men had a reasonable opportunity to reach the
upper deck. This was a duty that the master could discharge
through another; but it was the master’s duty that the other was
performing and for a failure to discharge it the master was liable.
Whether the plaintiff, placed in the situation that he was by the
closing of the hatch, and failing to get any response to his outeries}
was chargeable with contributory negligence in going forward in
the manner he did, was clearly a question of fact for the jury. The
plaintiff did not assume the risk.
Involved in this case are questions of great importance, which
have not been determined by our court of appeals, and are presented
for the first time to this court on this appeal. They were suggested
in the opening of counsel at the trial; but as the case was tried on
the theory of common-law liability, and so disposed of by the trial
justice, we have not considered these questions in disposing of the
case before us. As, however, we have ordered a new trial, and
these questions have been presented by the counsel for the plaintiff,
we feel it incumbent on us to give them careful consideration in ad
vance of that trial, for the assistance of the trial court.
The plaintiff was a longshoreman, employed in stowing a cargo
upon a vessel engaged ip foreign commerce, and sustained injuries
upon the vessel, when it was tied to a dock in the Harbor of New
York City. The workmen’s compensation law (Consol. Laws, c. 67;
Laws 19i4, c. 41) classified longshore work, including the loading
and unloading of cargoes or parts of cargoes, as among the hazardous
employments covered by the act.
The defendants had complied with the requirements of the work
men’s compensation law of this State, and the commission made an
award of compensation for the plaintiff’s injuries, which was being
paid. The Supreme Court of the United States reversed Matter of
Jensen v. Southern Pacific Co., 215 N. Y. 514, 109 N. E. 600 [Bui.
189, p. 221], holding that:
“ The work of a stevedore, in which the deceased was engaging, is
maritime in its nature; his employment was a maritime contract; the
injuries which he received were likewise maritime; and the righfs and
liabilities of the parties in connection therewith were matters clearly
within the admiralty jurisdiction * * *. The legislature clearly
exceeded its authority in attempting to extend the statute under con
TEXT AND SUMMAKIES OE DECISIONS.
80
sideration to conditions like those here disclosed. So applied, it
conflicts with the Constitution, and to that extent is invalid.” (South
ern Pacific Co. v . Jensen, 244 U. S. 205, 217, 87 Sup. Ct. 524, 529
[Bui. 246, p. 208].)
The payment of the compensation by the defendant was stopped,
and this action was brought. After the decision in the Jensen ease,
Congress amended section 9 of the judiciary act of 1789, which had
been continued by Judicial Code, sec. 24, 256 (U. S. Comp. St., sec.
991, 1283), which vested in the Federal courts “ exclusive original
cognizance of all civil causes of admiralty and maritime jurisdic
tion * * * saving to suitors, in all cases, the right of a commonlaw remedy where the common law is competent to give it, ” by add
ing thereto, “ and to claimants the rights and remedies under the
workmen’s compensation law of any State. ” The court of appeals
assumed that Congress-acted within its powers, and had confided to
the States the power to enact and enforce workmen’s compensation
acts in respect of injuries received in the course of maritime employ
ment. {Matter of Stewart v. Knickerbocker Ice Co., 226 N. Y.
302,123 N. E. 382.) But on writ of error the United States Supreme
Court reversed this case, holding the attempted amendment uncon
stitutional, as a delegation of the legislative power of Congress, tod
as defeating the purposes of the Constitution respecting the harmony
and uniformity of the maritime law. (Knickerbocker Ice Co, v.
Stewart, 253 U. S. 149, 40 Sup. Ct. 438 [Bui. 290, p. 302].) There
fore, although both of these cases were decided by a closely divided
court, five to four, it may be accepted as settled that this plaintiff is
not entitled to compensation under the workmen’s compensation law
(Matter of Doey v. Howland Co., 224 N. Y. 30, 120 N. E. 53), and is
entitled to enforce whatever other remedy he has for the injuries sus
tained.
An award under the workmen’s compensation law is not made on
the theory of a tort committed; compensation is given whether the in
jury was sustained with or without negligence; it is given upon the
theory that the statute providing for the award is read into and be
comes a part of the contract. {Matter of Doey v. Howland Co., supra.)
The test, therefore, applied in the above cases, was whether the con
tract of employment was of a maritime nature; the true test being
the subject matter of the contract, the nature and character of the
work to be done. But, as the maritime contracts relate to a subject
of exclusive Federal jurisdiction' a State statute can not be read into
the contract.
Article 3, sec. 2, of the Constitution of the United States, extends
the judicial power of the United States to all cases of admiralty and
maritime jurisdiction. Article 1, sec. 8, subd. 18, gives Congress the
power to make all laws necessary for the execution of the powers
granted. By section 9 of the judiciary act of 1789 the district courts
of the United States were given “ exclusive original cognizance of all
civil causes of admiralty and maritime jurisdiction * * * saving
to suitors, in all cases, the right of a common-law remedy, where the
common law is competent to give it.” This grant was continued by
Judicial Code, secs. 24 and 256. There have been numerous decisions
construing this section. [Cases cited.]
These cases settle the law to be that actions in rem, whether arising
under the general maritime law or to enforce liens given by the United
81
EMPLOYERS 9 LIABILITY.
States, or local State statutes, must be prosecuted in admiralty in the
United States courts; while actions in personam, arising out of mari
time contracts or torts, may be brought in admiralty or on the law side
of the United States court, or in a State court haying an appropriate
common-law remedy. It is the right sanctioned by the maritime law
that may be enforced by any court having jurisdiction of the parties
or the res by the common-law remedies appropriate thereto.
This clause gives a right of election of a forum for the enforcement
of the maritime right or to remedy the maritime wrong, and thereby
allows election of the procedure, whereby the matter may be decided.
But the complaining party has no right of election to determine
whether the defendant’s liability shall be measured by common-law
standards rather than by those of the maritime law. (Chelentis v.
Luekenbach S. S. Co., 247 U. S. 372, 383 Sup. Ct. 501 [Bui. No. 258,
p. 139.]) The maritime law as fixed and determined by the acts of
Congress, and the general maritime law’ as accepted by the Federal
courts, constitutes part of the national law applicable to matters
within the admiralty and maritime jurisdiction. The rights and
liabilities arising out of maritime contracts or maritime torts as
recognized and declared by the maritime law can not be changed by
State statute, nor by substitution of a common-law right or liability.
The instant case is an action for damage for personal injuries, for
which there exists in this State a common-law remedy. Therefore the
action may be brought in our supreme court, the rules of practice,
pleading, and evidence of our courts apply, and the cause will be
tried in conformity therewith; but the rules relating to contributory
negligence, acts of fellow servants, and the measure of recovery must
be determined by the maritime law, and not by the common law.
In maritime law contributory negligence or the injured party does
not defeat a recovery, but goes to a reduction, or, more appropriately,
an apportionment of the damage. The general rule of the common
law exempting the master from liability for injury to a servant by
a fellow servant is not fully applied by the maritime law; and the
rules applicable to the recovery, whether of full indemnity, or wages,
maintenance, and cure, must be taken into consideration, and the re
lief given according to the rules of maritime rather than common law.
If the case is retried, it should be tried with reference to the rules of
maritime law applicable to maritime torts.
Judgment reversed and a new trial ordered.
E
m plo yers’
L ia b il it y — A
d m ir a l t y
— J
u r is d ic t io n
— R
em edy—
Crane v. Pacific Steam ship Co., United States D istrict Court , D istrict
of Oregon {March 14 , 1921), 272 Federal Reporter, page 2 0 —Harry
Crane was an employee of the defendant company. He was injured
while loading freight on the steamship C ity of Topeka, berthed at
one of the docks in the city of Portland, Oreg., on the navigable
waters of the State. Crane brought an action in personam against his
employer. The company moved to have the action put on the admi
ralty docket. The court, deciding on this motion, held that the work
in which the plaintiff was engaged at the time of his injury was mari
82
TEXT AND SUMMARIES OF DECISIONS.
time in its nature, and his injury was likewise maritime, but denied
the motion on the following grounds:
The statute conferring jurisdiction on the district court of all civil
causes of admiralty and maritime jurisdistion saves “ to suitors in all
cases the right of a common-law renfedy where the common law is
competent to give it.” Section 24, subd. 3, Judicial Code (Comp. St.
sec. 991 [3]). And Judge Holmes, speaking for the court in The
H am ilton , 207 U. S. 404, 28 Sup. Ct. 133, says that the saving clause
“ leaves open th^ common-law jurisdiction of the State, courts over
torts committed at sea. This, we believe, has always been admitted ”■—
citing authorities. It is a remedy in the common-law courts which
is saved to suitors, but not a common-law remedy ( The Moses Taylor ,
4 Wall. 411, 18 L. Ed. 397), and hence it was held in Chelentis v .
Luckenbach, 247 U. S. 372, 38 Sup. Ct. 501 [Bui. No. 258, p. 139],
that, in an action by a seaman to recover damages for an injury
caused by the negligence of a member of the crew in a common-law
court, the defendant’s liability should be measured by the standards
of the maritime law rather than by those of the common law.
E
m plo yers’
L
ia b il it y
— A
d m ir a l t y
—
J u r is d ic t io n —
R
em edy
—
W hite v. John W . Gowper Go., Circuit Court of Appeals , SecoTul
Circuit (February 9, 1921), 271 Federal Reporter , page J$3.—-Calo-
gero Falzone on May 24, 1916, was a laborer in the employ of the
defendant company. On the day in question he was engaged in haul
ing sand by means of a wheelbarrow from a scow on the Erie Canal
in the city of Buffalo. The evidence showed: That there was no
landing, so that it was necessary to go from the sand scow over
another scow and then by a plank to the shore; that on the morning
of the accident the two scows were level but during the day as the
outside scow was being unloaded it became lighter and rose out of
the water; that during the afternoon heavy pile-driving machinery
was loaded on the inside scow which then made a difference in the
level of the boats of about four or five feet; that the gang plank
was very springy with a movement up and down when the men
pushed their wheelbarrows over it. Falzone in rolling a wheelbarrow
of sand down the steep incline of this springy gangplank, lost control
of the wheelbarrow and fell into the water, and was drowned.
Charles A. White, administrator of the estate of Falzone, brought
suit in admiralty for damages. He obtained a decree and the de
fendant appealed. The circuit court affirmed the decision, Judge
Rogers saying in part:
In cases of tort, the jurisdiction in admiralty depends entirely on
locality, and it is now settled that the admiralty has jurisdiction of a
suit to recover damages for a maritime tort that occurs on the high
seas or public navigable water, whether it be a wrongful act or a
wrongful omission.
83
In the present case the libel is filed to recover for the death of one
who was at the time of his death engaged in unloading a boat under
the control of the respondent while lying in the navigable waters
of the Erie Canal.
In the absence of a Federal or a State statute giving a right of
action therefor, a suit in admiralty can not be maintained to recover
damages for death caused by wrongful act or negligence on the high
seas or navigable waters.
But such a statute exists in the State of New York, and a right
of action so given is enforceable in the admiralty courts of the United
States, if the facts are such as would bring the case within the mari
time jurisdiction if death had not resulted.
The employer’s duty as to safe place and appliances was discussed,
with a conclusion that he had “failed to exercise the degree of care
which the circumstances required.”
As to the claim that the risk had been assumed, the court said:
When he [Falzone] accepted his employment to unload the boat,
he assumed all the ordinary and usual risks and perils incident to
such work. But the danger to which he was subsequently exposed was
not one of the ordinary and usual risks incident to such work, but
was due to the exceptional conditions which subsequently developed,
and to the negligence of the master in the improper construction of
the gangplank.
In view of the foregoing the decree in favor of the administrator
was affirmed.
e m p l o y e r s ’ l ia b il it y .
E m p l o y e r s ’ L i a b i l i t y — A d m i r a l t y — J u r i s d i c t i o n — W o r k m e n ’s
C o m p e n s a t i o n — I n j u r y C a u s i n g - D e a t h — W estern Fuel Co. v .
Garcia, United States Supreme Court (December 5, 1921), 4%
Supreme Court Reporter, page 89.—Manuel Sousa, a citizen and
resident of California, was instantly killed, August 5,1916, while em
ployed as a stevedore by the petitioner and at work in the hold of
the Tancred, a Norwegian vessel, under charter to it. At the time
of the accident the vessel was anchored in San Francisco Bay dis
charging her cargo. The industrial accident commission granted an
award in favor of the widow and children, which the Supreme Court
of California annulled August 6, 1917, a year and a day subsequent
to the death. On August 21, 1917, the widow and children began
an admiralty suit for damages against the Western Fuel Co., the em
ployer, in the United States District Court, Northern District of
California, under the State statute allowing recovery for injuries
causing death. Later one Garcia, having been appointed adminis
trator, filed an amended libel. The employer denied liability, and
relied upon section 340, subsection 3, of the California Code of Civil
Procedure, which requires that an action for damages consequent
upon death caused by wrongful act, or negligence shall be brought
101296°—22-----7
84
TEXT AND SUMMARIES OF DECISIONS.
within one year. The district court awarded damages to the plain
tiff, holding that the State law gave the right, but could not limit
an admiralty court in applying it. The case was appealed to the
circuit court of appeals, which sent the whole cause to the Supreme
Court under direction. The judgment of the district court was re
versed upon the grounds that the defense of the employer was valid.
Mr. Justice McReynolds delivered the opinion of the court, in which
he said:
It is established doctrine that no suit to recover damages for the
death of a human being caused by negligence, may be maintained
in the admiralty courts of the United States under the general
maritime law. At the common law no civil action lies for an injury
resulting from death. The maritime law as generally accepted by
maritime nations leaves the matter untouched and in practice each of
them has applied the same rule for the sea which it maintains on
land.
In Cooley v. Board of Wardens, 12 How. 299, IB L. Ed. 996, and
Ex parte McNiel, 13 Wall, 236, 20 L. Ed. 624, the power of a State
to legislate concerning subjects maritime in their nature was under
discussion, and it was pointed out that as to certain local matters a
State statute may grant rights which will be enforced in an admiralty
court.
The inferior Federal courts on the admiralty side have enforced
rights of action based upon death statutes holding they had jurisdic
tion as the claims grew out of torts on navigable waters and were
maritime in their nature.
We have recently discussed the theory under which the general
maritime law became a part of our national law and pointed out the
inability of the States to change its general features so as to defeat
uniformity, but the power of a State to make some modifications
or supplements was affirmed. And we further held that rights and
liabilities in respect of torts upon the sea ordinarily depend upon
the rules accepted and applied in admiralty courts which are con
trolling wherever suit may, be instituted.
As the logical result of prior decisions we think it follows that
where death upon such waters follows from a maritime tort com
mitted on navigable waters within a State whose statutes give a
right of action on account of death by wrongful act, the admiralty
courts will entertain a libel in personam for the damages sustained by
those to whom such right is given. The subject is maritime and
local in character and the specified modification of or supplement to
the rule applied in admiralty courts when following the common
law, will not work material prejudice to the characteristic features
of the general maritime law, nor interfere with the proper harmony
and uniformity of that law in its international and interstate rela
tions.
The California Code of Civil Procedure^ section 340, prescribes
one year as the period within which an action for death caused by
wrongful action or negligence shall be brought. It is admitted that
under the circumstances here presented suit against petitioner if
instituted in a court of that State would have teen barred, and we
85
e m p l o y e r s ’ l ia b il it y .
are of opinion that the same limitation must be enforced in respect
of the admiralty proceeding.
An act relating to the maintenance of actions for death on the
high seas and other navigable waters, approved March 30, 1920
(ch. Ill, 41 Stat. 537), gives a right of action for damages resulting
from death caused by wrongful act, neglect or default occurring on
the high seas beyond one marine league from the shore. It expressly
directs:
“ That the provisions of any State statute giving or regulating
rights of action or remedies for death shall not be affected by this
act. Nor shall this act apply to the Great Lakes or to any waters
within the territorial limits of any State, or to any navigable waters
in the Panama Canal Zone.” (Sec. 7.)
In the present cause the district court rightly assumed jurisdiction
of the proceedings, but erred in holding the right of action was not
barred under the State statute of limitation. Accordingly, its judg
ment must be reversed and the cause remanded there, with instruc
tions to dismiss the libel.
E
m plo yers’
L
ia b il it y —
A
ssa u lt b y
E
m p l o y e r ’s
R
e p r e s e n t a t iv e —
Schm idt v. Minor et al ., Supreme Court of
Minnesota (November C 1921), 184 Northwestern R eporter , page
964 •—C. J. Minor was the owner and proprietor of the Aberdeen
E
xem plary
D
am a g es—
Hotel in the city of St. Paul. Reid Minor was the son of the owner
and was employed by him in the hotel to look after his father’s in
terests generally. His duties included the supervision of employees,
and he occasionally hired and discharged help. On August 26, 1919,
Emil H. Schmidt began work at the hotel as a second cook, supposing
that he was to receive $4 and work eight hours a day. The chief cook
told him he was to work on a split shift of nine hours a day. He
was dissatisfied and gave notice that he would not stay after the
second day. Reid Minor, having learned that Schmidt was going to
leave, went to the kitchen to persuade him to stay until after the State
fair, which was to be held a week later. He was unsuccessful. An
exchange of abusive language followed, and Schmidt was ordered to
leave the premises. Schmidt left for the dressing room to change his
clothes and while there Reid Minor assaulted him. Schmidt brought
an action for damages against the father and son and received a judg
ment of $550. Defendants appealed from an order denying a new
trial, contending that C. J. Minor was not answerable for the acts
charged to his son; that the instruction to the jury that they might
award exemplary damages was error; and that the damages are ex
cessive and were given under the influence of passion and prejudice.
The judgment of the district court was affirmed in the following
language:
The facts outlined bring the case within the rule that a master is
responsible for the torts of his servant in the course and within the
86
TEXT AND SUMMARIES OF DECISIONS.
scope of his employment with a view to the furtherance of the mas
ter’s business and not for a purpose personal to himself.
The rule is that if the agent or servant is liable for exemplary dam
ages such damages may be recovered from the principal or master,
even though the* acts of the agent or servant were not authorized or
ratified, provided of course they were done by the agent or servant
in the course of the performance of the duties of his employment and
were within its scope. The alignment of the States on opposite sides
of the question is given in Voves v. G. N. Ry. Co., 26 N. D. 110, 143
N. W. 760. It was remarked in that case that the rule permitting the
award of exemplary damages in any case is an anomaly in the law
with no sound reason behind it—“ a hybrid between a display of ethi
cal indignation and the' imposition of a fine.” Be that as it may, the
doctrine is too deeply implanted in the law to be uprooted for no bet
ter reason than that it is illogical. The master selects his servants
and ought to know what sort of persons he is investing with authority
to act for him. A business of any considerable proportions is for the
most part conducted through agents and servants, and if the principal
or master can not be held for exemplary damages, in many instances
it would be equivalent to abolishing that character of damages, for
a judgment against an employee is often uncollectible and no punish
ment to the wrongdoer.
E
m plo yers’
L ia b il it y — A
ssa u lt b y
F
orem an—
W
il l f u l
I n ju r y —
Nash v. Long mile Lumber Co.} Supreme Court of Louisiana (A p ril
4, 1981), 88 Southern R eporter , page 226.—Simm Nash acted as
“ top loader ” in a crew loading a train with logs. His duty was
to be on the top of the car being loaded and see that the logs were
properly placed on the car. The foreman, on the day of the injury,
was operating the loading apparatus in a careless manner, endan
gering the plaintiff’s life. Nash complained several times. When
the car vT almost completely loaded plaintiff signaled to send in a
as
big log to fill in a space left for the top log. The foreman swung a
small log, that was liable to slip from the tongs, so swiftly to the
top of the car that plaintiff had to jump from the car to escape
being hit. Plaintiff then walked away from the car, putting on
his coat and intending to look for employment elsewhere. The fore
man picked up an ax and demanded that Nash return to work,
which he refused to do. The foreman then struck at Nash, cutting
the back of his hand, for which he sued. The trial court denied
that Nash had any right of action on the ground that the foreman
was acting outside the scope of his employment, but this was re
versed by the supreme court (83 So. 771), and a new trial was had.
On this trial the company claimed that the workmen’s compensation
act governed the case, but this exception was overruled and a judg
ment for $4,500 damages was given the plaintiff. Defendants ap
87
EMPLOYERS ’ LIABILITY.
pealed to the supreme court, where the judgment was affirmed, the
court saying in part:
The ruling [on the former appeal] was that, according to the alle
gations of the petition, the foreman was acting within the scope of
his employment, in this sense, that he was performing in an impru
dent, violent, and unlawful manner a service which he was employed
to perform in a prudent, careful, and lawful manner, and that the em
ployer was responsible for the injury inflicted by the foreman in do
ing unlawfully that which he was employed to do lawfully; that is, to
employ laborers and persuade them to remain at their work, or to re
turn to it if they quit. But the ruling that defendant was responsible
for the injury inflicted by the foreman under the doctrine respondeat
superior had nothing to do with the question whether the party
injured was acting within the scope of his employment, or was
performing a service arising out of or incidental to his employment,
at the time he was injured. The responsibility of an employer
for an injury committed by his employee while acting within the
scope of his employment, under the doctrine respondeat superior,
extends to injuries inflicted upon strangers as well as employees.
This was said to give a right of action under article 2315 of the
Civil Code, which fixes responsibility for torts, and the action being
based on this, the compensation law had no application.
E
m plo yers’
L
ia b il it y —
A
ssa u lt by
S ubforem an— F
ellow
S erv
—Petrolewn Iron W orks v. B ailey ,
Supreme Court of M ississippi , Division A (January 3 , 1321 ), 86
Southern R eporter , page 6 ^ . —The general foreman of the Petro
leum Iron Works v/as one Dougherty, who had a brother also work
ing for the iron works as a sort of subforeman. The latter and
Bailey were fitting some pipes on the roof of a building. Bailey
left his work momentarily and when he returned he declared that
some one had moved his pipe line. Dougherty, the subforeman, said
nobody had moved his pipe line, and that he, Bailey, did not know
his business. An altercation resulted between the two men, and
Dougherty, the general foreman, separated them. Bailey sued his
employer for damages for assault and battery, recovering a ver
dict of $500. The employer appealed and the decision was reversed.
The opinion of the supreme court is as follows:
Under this testimony the peremptory instruction requested by the
defendant in the court below should have been given. In this case
the fellow-servant rule applies, and these two men were fellow
servants.
Another reason why the peremptory instruction should have been
given is that in this quairrel which resulted in the difficulty neither
employee was acting within the course of his employment with a
view to the master’s busihess. (Hines v. Cole, 85 So. 199.)
Reversed, and judgment here for appellant.
ants—
C o urse
of
E
m plo ym ent
88
TEXT AND SUMMARIES OF DECISIONS.
E m pl o y e r s’ L ia b il it y - A s s u m p t io n o p R is k — S a f e
p e r ie n c e d E m p l o y e e — C o n t r ib u t o r y N e g l ig e n c e —
P
lace—
Addington v.
Guests R iver Coal Co ., Supreme Court of A ppeals of Virginia
(>Septem ber 22, 1921), 108 Southeastern Reporter, page 695,—Some
E
x
time during the year 1918, John M. Sparks secured employment as
a miner with the defendant company. He was 35 years of age and
in complete possession of his faculties. He was assigned to dig and
load coal in the mine, and while engaged in this work in August,
1918, a large piece of rock fell upon him, inflicting injuries which
caused his death. W. B. Addington, administrator, brought this
action to recover damages for personal injuries to Sparks. The evi
dence showed that Sparks had acquired experience as a miner by
working about coal mines for several years. At the time of his death
he was working in a place where, as his work progressed, he con
stantly changed the character of the place for safety. It was his
duty to place his own props. He had been supplied on his request
with props necessary to support the very rock that fell and killed him.
Weeks, the superintendent of the mine, and Hinton, a colored man
who was hauling coal for Sparks, had warned him of the danger of
the rock. Judgment was rendered in favor of the coal company, and
the plaintiff appealed to the supreme court of appeals. That court
affirmed the judgment of the lower court, stating that the rules con
cerning contributory negligence, assumption of risk, and safe place
to work were applicable. The decision of the court is in part as fol
lows :
A servant must “ provide for his own safety from such dangers as
are known to him, or which are discernible by ordinary care on his
part, and * * * this duty is as obligatory upon him as the duty
of the master is upon the master to provide for him.”
“ The rule that it is the master’s duty to inform his servant of
dangers ordinarily incident to the service * * * only applies
where there is a danger known, or which ought to be known, to the
master, of which the servant, on account of his youth or inexperience,
is ignorant, and which he can not reasonably be expected to discover
by the exercise of ordinary care.”
Ordinary prudence .and natural good sense brought to bear upon
such a situation imperatively indicate that the miner should have
removed, or propped, the rock, or withdrawn himself from danger.
It may be that the superintendent did not think that the rock would
fall at once, it may be that decedent concurred in that view, but lie
did think that it was likely that it would fall that night. With that
thought in mind, he took the risk of its falling sooner, and of the
danger to his life when he continued to work under a loose and un
propped slab of draw slate. He can not be relieved from the charge
of contributory negligence proximately contributing to his death.
89
e m p l o y e r s ’ l ia b il it y .
E
m plo yers’
e x p e r ie n c e d
L ia b il it y — A s s u m p t io n o f S is k — S a f e P l a c e — I n
E m p l o y e e — C o n t r ib u t o r y N e g l ig e n c e
Clim hfield
—
Coal Corp . v. H awkins, Supreme Court of A ppeals of Virginia
{Septem ber 22,1921), 10S Southeastern Reporter, page 704 .—Edgar
Hawkins, a young man under 21 years of age, had worked on a farm,
on a railroad grade, and cutting timber previous to his employment
by the appellant corporation. His employer put him under the
direction of an experienced miner named Dickenson, as he had no
knowledge of mine work. Dickenson assigned his work to him,
which consisted of loading coal into the mine cars. About two
weeks after he had been employed he was injured. On the morning
of the accident he went to a place in the mine known as room 15
with Dickenson who “ shot the coal ” for him by placing a charge
of dynamite in holes drilled on top of the coal seam next to the roof
of the mine so as to spring the coal loose from the top. Hawkins
stood by and saw Dickenson prepare the shot, and they both with
drew to a place of safety until the shot went off. Dickenson did not
go back to investigate the result of the explosion, but assigned Haw
kins to load the coal into the mine cars. Hawkins returned without
instructions and had been working an hour or two when a piece of
“ draw slate ” fell from the roof and injured him. He brought the
present suit for damages and received a judgment in his favor. An
appeal was taken to the supreme court, which affirmed the judgment.
The basis of the decision was that Hawkins did not assume the risk
because of the breach of a statutory duty on the part of the employer
to notify him of the ordinary dangers incident to the work by giving
him immediate personal direction. He was not guilty of contribu
tory negligence if he had not had reasonable opportunity to under
stand when and ho# to render his place safe by the use of props.
The company can not defend on the ground that it had published a
rule forbidding work after a shot had been fired until the roof was
safe. Employees must obey all reasonable rules, but the employee
must have adequate opportunity to understand the purpose and mean
ing of the rules before he is bound by them.
E m plo yers’
e x e r t io n
L ia b il it y — A
s s u m p t io n o f
R
is k —
V
oluntary
O ver
—H ines, A gent v. Ross, Court of C ivil Appeals of Texas
{M ay 9, 1921), 230 Southwestern Reporter, page 1066.—Seaborn J.
Ross was employed as a “ fire knocker.” It was his duty to open and
close the ash pans on locomotives while they were standing in the
railroad yards. This was done by moving a lever that extended out
from under the fire box of the engine. On February 21, 1919, in
trying to close the ash pan he injured his back by reason of the
90
TEXT AND SUMMARIES OF DECISIONS.
twisted position it was necessary for him to take. The task is a
heavy one, and the fire knockers usually worked in pairs. Evidence
showed that Ross knew it required the strength of two men to move
the ash pan, and that he could have secured assistance on request.
Ross obtained a judgment for damages in the district court of Hunt
County, and the employer sued out a writ of error. The court of
civil appeals reversed the decision of the lower court, stating that in
its opinion it was evident that the injury to defendant in error re
sulted, not from any negligence on the part of the railway company,
but from the voluntary overexertion of his own strength.
E
m plo yers’
L ia b il it y — E
m plo yee—
I n d e p e n d e n t C o n tr a c to r s—
Gammage v. International Agricultural Corporation, United States
Circuit Court of A ppeals, F ifth Circuit (October 18,1920), 268 Fed
eral Reporter, page 21^6.—C. R. Gammage contracted with the de
fendant to paint the latter’s building in the State of Georgia, and
agreed to furnish the necessary tackle and equipment. Gammage
and his men painted one side of the building by using a platform sus
pended by ropes from hooks attached to the roof of the building.
When they proceeded to attach the hooks to the roof on the other
side of the building, one Parker, the superintendent of the de
fendant, objected and required Gammage to support his platform
on one end from a beam extending out from the building and on
the other end from a rope extending into the building. Gammage'
had no rope suitable for this purpose and was provided with a rope
by Parker. While using the platform rigged up in this fashion the
rope supplied by Parker, which had been exposed to acid fumes,
parted and Gammage and his workmen were thrown 80 feet to the
ground. The contract between plaintiff and defendant contained a
paragraph as follows:
Party of the second part [plaintiff] agrees to assume all liability
for injury to himself, or damage to property.
Plaintiff sued for damages, and judgment was rendered in favor
of the defendant. The plaintiff brought a writ of error and the
decision of the lower court was reversed on the ground that Parker
in changing plaintiff’s mode of doing the work had become plaintiff’s
employer and the relation of independent contractor ceased.
The decision is in part as follows:
The argument of defendant in error is to the effect that the release
from liability is valid, except as against criminal negligence, unless
it is prohibited by statute. It is then asserted that criminal negli
gence is not alleged, and that in Georgia there is no statutory pro
hibition against the release relied upon. These contentions need
not be denied. However, it is our opinion that the petition alleges
e m p l o y e r s ’ l ia b il it y .
91
facts which changed the relation of owner and independent con
tractor to that of master and servant. Doubtless the defendant could
have objected to the particular method adopted by plaintiff, with
out effecting a change in the contract between them; but when it
assumed to require the adoption of a particular method, to the exclu
sion of all others, that liberty of action which the independent con
tractor is entitled to assert ceased to exist, and the ordinary relation
of master and servant was created.
The effect of this interference, as to Gam mage's employee, Slappey,
who was killed in the same accident in which Gammage was injured,
was before this court in the case of International Agricultural Cor
poration v. Slappey, 261 Fed. 279, where the right of recovery was
upheld. Of course, Gammage’s case was not then before the court;
but now that it is we quote with approval the following from the
opinion by Judge Grubb in the Slappey case:
“ If the jury believed the plaintiff’s evidence, they were author
ized to find from it that Parker interfered with the means and method
of doing the painting in a way that would establish the relation of
employer and employees between the defendant and Gammage and
his men, at least to the extent of the interference, and notwithstand
ing the terms of the written contract, and that to this interference
the accident that killed decedent was traceable.”
The judgment is therefore reversed.
E m p l o y e r s ’ L i a b i l i t y — E m p l o y e e — L o a n e d E m p l o y e e — K ing v .
Atchison , T . dk S. F. R y . Co., Supreme Court of Kansas (February
12 , 1921 ), 195 Pacific R eporter , page 622.—C. E. King was employed
by the defendant railway company and was injured wT at work
hile
at a place where some new car sheds were being constructed by an
independent contractor. King was a member of a crane crew which
was loaned along with the crane to the independent contractor.
The railway’s superintendent told the crane crew to report to the
contractor’s superintendent and do what he instructed them to do.
The latter told them to hoist a large beam or “ bent” upon which
several large washers weighing about 4 or 5 pounds had negligently
been left. One of these washers fell off and struck King upon the
head fracturing his skull and seriously and permanently injuring
him. He sued the defendant railway company for damages and
recovered a verdict. The railway company appealed on the ground
that it had loaned King to the independent contractor and there
fore at the time of the injury he was not in its employ but in that
of the contractor, and that the railway company was not liable.
The court held, however, that a servant who is loaned without being
informed of the change of employers remains the employee of the
loaning employer. In affirming the judgment in favor of plaintiff
the court said in part:
An elaborate brief, virtually a treatise, is presented for defendant
showing—if this court had any doubt on the subject—that a master
92
TEXT AND SUMMARIES OF DECISIONS.
ig not liable for an injury to his servant when the servant is loaned
to another master, and that the injured servant must look to his
special employer for the time being for his damages. (Note in 37
L. B. A. 33 et seq.; 1 Labatt’s Master and Servant, sec. 52 et seq.)
But here we have to consider a case where the plaintiff did not
know that his services were being loaned to an independent con
tractor. He was in the defendant’s service. The defendant’s super
intendent, his superior, told him to go with the crane and the other
men of the crane crew to the new railway sheds under construction
and that a m$n named Swanson would tell him what to do. Like
a dutiful servant, he obeyed. He obeyed his master, the only master
he knew anything about. What were the relations of Swanson or
Swanson Bros, to his master meant nothing to him. Whoever plain
tiff’s superintendent directed him to report to and obey—Swanson
or another—was his properly constituted boss or overseer, and plain
tiff’s obedience and service was to the defendant so far as plaintiff
was concerned. No intimation was given to plaintiff that he was
about to change his employer, nor was anything disclosed which
would have put him on inquiry. The railway company and Swanson
Bros, were all one employer under the circumstances. A workman
certainly does not change his employer without being aware of it.
Termination of employment, like its inception, is a matter of agree
ment, understanding, or notice, express or implied.
By the authorities and by sound reasoning also, the complementary
rule of law to the one contended for by defendant is that where a
master loans his employee to an independent contractor, but the
employee is not informed of that arrangement, and works for the
independent contractor in obedience to his master’s orders, and upon
the understanding that he is still in his master’s service, an act of
negligence of the independent contractor causing such injury to the
workman while so employed is attributable to his own master and
his own master is liable in damages therefor. If the enforcement
of this rule works any hardship, that is a matter of adjustment
between the two masters.
E
m plo yers’
L ia b il it y — E
m plo yee
— V
olunteer
— E
ig h t to
E e-
K'almich v. TFKite, Supreme Court of Errors of Connecticut
{December 22,1920), 111 A tlantic Reporter, page 81^5.—Michael Kal.-
cover—
mich, a boy 9 years of age, while plajdng in the New York, New Haven
and Hartford Bailway freight yards, was requested by the driver of
defendant White’s motor truck to assist in unloading the scrap iron
the truck contained. After the truck had been unloaded Kalmich
rode on the truck back to White’s place of business, and there the truck
was reloaded. When the second load was finally unloaded Kalmich
again proceeded to ride on the truck. He was sitting in the front seat
between the driver and another employee, when, because his pres
ence interfered with the steering gear, he was asked to get down and
ride on the running board. While so riding the truck was driven
around a corner at such a high rate of speed that Kalmich was thrown
off, sustaining the injuries for which he brought this action for dam
e m p l o y e e s ’ l ia b il it y .
93
ages. The superior court rendered a judgment of nonsuit against
plaintiff on the ground that he was a “ volunteer ” and not an em
ployee of defendant. Kalmich appealed, and the decision was re
versed, and a new trial ordered, although the court upheld the decision
of the lower court that plaintiff was a mere volunteer. The opinion
of the court on this point is as follows:
At the time of the accident the driver of the truck was on his mas
ter’s business and in the ordinary course of his employment, and since
there was some evidence from which the jury might have found that
the minor plaintiff’s injuries were caused by lack of ordinary care in
turning a sharp corner at so high a rate of speed while the boy was
riding on the running board, the defendants’ contention is and must
be that the respondeat superior rule does not apply, because the de
fendant owed no duty to the minor plaintiff. This claim of immu
nity is put on the ground that the plaintiff was a mere volunteer. A
“ volunteer,” in this sense, is one who, without the assent of the master
and without justification arising from a legitimate personal interest,
unnecessarily assists a servant in the performance of the master’s
business. In England such a volunteer is held to be, in some respects,
in the position of a servant. But the general American doctrine is
that a volunteer is not at all in the position of a servant because the
master has not assented to his employment. The American rule rests
on the sound premise that a servant has no authority as such to change
existing legal relations between the master and third persons. This
being so, the minor plaintiff while riding on the truck was a mere
tresspasser because the driver had no authority to take on passengers.
Independently of authority, the duty to avoid injuring one whose
presence and peril are known is so imperative that it must apply to
trespassers; and in the performance of so elemental a duty it is hard
to draw any distinctions between the degree of care which ought to
be exercised toward trespassers and that which is owing to other per
sons. Of course, the duty to a trespasser lies within comparatively
narrow limits, because the owner of property is not ordinarily bound
to anticipate and provide for the presence of trespassers.
Applying these conclusions to the case at bar without expressing
any opinion on the issues of fact involved, we think there was some
evidence from which the jury might have found that the driver’s act
in directing the minor to ride on the running board placed him in a
position of peril known to the driver, that the driver in afterward
operating the car on his master’s business did not use ordinary care
to avoid injuring the minor plaintiff, and that the minor plaintiff him
self was in the exercise of such care as might reasonably be expected
from a boy of his age and experience.
E m p l o y e r s ’ L ia b il it y — E m p l o y m e n t
t io n a l it y o p S t a t u t e — N e g l ig e n c e P e r
o p O m LD R EN — C o n s t it u
S e — D e f e n s e s — M is r e p r e
s e n t a t i o n o f A g e —Terry D airy Co. v. N alley y Supreme Court of
A rkansas (December IS , 1920), 225 Southwestern Reporter, page
887 .—Charles Nalley, a boy under 14 years of age, was employed by
94
TEXT AND SUMMARIES OF DECISIONS.
the Terry Dairy Co. to drive a delivery wagon drawn by a mule.
While engaged at this work he was thrown from the wagon by a sud
den lunge forward of the mule and his right foot and leg caught in
the spokes of a wheel, causing his leg to be broken. He sued for
damages and recovered a verdict of $1,000. The employer appealed,
declaring that the child labor law forbidding the employment of
children under 14 years of age was unconstitutional, that the unlawful
employment of a minor child under 14 years is not negligence per se,
that it was wrongfully denied the defenses of contributory negligence
and assumption of risk; that when it employed Nalley he represented
his age as being over 16 years. The court, after considering each
of these arguments in order resolved them all against the employer,
but reversed the decision of the lower court and ordered a new trial
on the ground that the employer was improperly refused permission
to introduce evidence as to the boy’s age. The opinion is in part as
follows:
It is first contended by counsel for the defendant that the judgment
should be reversed because the act under which the suit was brought
is unconstitutional. Child labor laws have been enacted in most of
the States and in Canada. They have been uniformly upheld as
being within the police power of the State, and it has been said that
the legislative judgment in regard to such regulations will not be
interferred with by the court. It is specially insisted that the present
act is unconstitutional because it prohibts children under 14 years
of age from engaging in any occupation, except that during the school
vacation children under 14 years may be employed by their parents
or guardians in occupations owned or controlled by them. The con
stitutional guaranty of the liberty of contract does not apply to
children of tender years, nor prevent legislation for their protection.
Therefore we are of the opinion that the statute is not unconstitu
tional.
It is next contended that the trial court erred in holding that the
employment of a minor under 14 years of age is contrary to the pro
visions of section 1 of the act and constituted negligence per se.
The authorities on this point are in decided conflict. It has been
said that the violation of a statute forbidding the employment of
children under a certain age, or their employment at certain kinds
of work or without complying with certain conditions, is held by the
weight of authority to be negligence as a matter of law, in an action
by the child for injuries received during the course of the employment.
We think that the view that the unlawful employment is negligence
per se is in accord with the better reasoning on the subject, and we
adopt it.
Again, it is insisted that the judgment should be reversed because
the defenses of assumption of risk and of contributory negligence are
still open to the defendant, and that on this account the court erred
in directing a verdict for the plaintiff. There is great conflict in the
authorities on these points, but we are inclined to the view that the
defenses of assumption of risk and of contributory negligence are
not available to the defendant.
EMPLOYERS? LIABILITY.
95
As we have already seen, the evident purpose of the statute is to
protect the lives and limbs of children by prohibiting their employ
ment altogether under a certain age and by prohibiting their em
ployment in certain occupations under another prescribed age and
in regulating their employment in other occupations under a desig
nated age. If the defenses of assumed risk and contributory negli
gence were still available to the defendant, the purpose of the statute
would be in large measure defeated.
It is next contended by counsel for the defendant that it offered to
prove that the plaintiff misrepresented his age to the defendant at
the time he was empk^ed and that such testimony was competent.
They contend that the representation of the plaintiff that he was over
the prescribed age would absolve the defendant from liability while
the child was at work for it.
We take the view that the right of the child to maintain an action
for injuries under the statute is not affected by the fact that he ob
tained employment by misrepresenting his age. Section 1 of the act
under which the case at bar was brought contains an absolute pro
hibition against the employment of children under 14 years of age.
They were considered by the legislature as being too young and in
experienced to work for anyone except their parents and guardians
during the vacation. The prohibition extends to all children within
the prescribed age. The good faith of the employer or his knowledge
of the age of the child is not material. The defendant was by the
statute permitted to employ only children above the age of 14 years.
It must ascertain at its peril that the boys that it employs are of
the class that it may lawfully employ.
For another reason, however, the judgment must be reversed and
the cause remanded for a new trial. The defendant offered to prove
that the plaintiff represented to it that he was 16 years of age at the
time he was employed and that it would not have employed him
unless it had thought he was over 14 years of age. This testimony
was competent. The plaintiff’s right to recover depended upon the
fact that he was under 14 years of age. His father testified as to
his age, and it was competent for the defendant to introduce in
evidence his declaration as to his age.
Therefore, we are of the opinion that the excluded evidence would
have tended to contradict the evidence adduced by the plaintiff at the
trial as to his age. The age of the plaintiff was material, and the
exclusion of testimony which tended to contradict the evidence ad
duced by him on that point was necessarily prejudicial.
For the error in excluding the evidence offered by the defendant
as to the plaintiff’s age, the judgment must be reversed, and the
cause will be remanded for a new trial.
E
L
m p l o y e r ’s
abor—
F
L ia b il it y — E m p l o y m e n t o f C h il d r e n — H o u r s of
E m p l o y m e n t s — P r o x i m a t e C a u s e — Birmingham.
o r b id d e n
News Co . v. A ndrew s , Supreme Court of Alabama ( October 1 4,
1920), 87 Southern R eporter , page
Herman Andrews, a boy
under 16 years of age, was employed by the Birmingham News Co. in
96
TEXT AND SUMMARIES OF DECISIONS.
its publishing and printing plant. His duty was to pull papers from
the press or from the packer. After being engaged in play with sev
eral boys he went to his work at 2 o’clock in the morning on the day
in question. A Mr. Mongol, another employee, continuing the play,
attempted to seize him. Andrews avoided him but in so doing he
stumbled over-a bench and fell through a delivery chute severely in
juring his ankle. He brought suit for damages for personal injuries,
setting up the child labor law as negligence on the part of the
defendant company. Judgment was rendered in favor of the plain
tiff and the defendant appealed. In reversing the decision and send
ing the case back for a new trial, the court through Judge Somer
ville said in part as follows:
The complaint charges a violation by the defendant company of a
provision of section 2, as italicized below, of the child labor act
(Gen. Acts 1915, p. 193), which is as follows:
“ No child under sixteen years of age shall be employed, permitted
or suffered to work in any gainful occupation except agriculture, or
domestic service for more than six days in any one week, or more
than sixty hours in any one week, or more than eleven hours in any
one day, or before the hour of six o'clock in the (morning, or after the
hour of six o'clock in the evening .”
These several inhibitions are obviously intended to protect the
physical health of children against the evils of excessive and un
seasonable hours of work at an age when they are unfit to bear such
burdens, and the prevention of physical injuries in occupations and
at places not inherently dangerous to children within the prohibited
age was not within the apparent purpose of the enactment.
Other provisions of the act inhibit absolutely the employment of
children under 16 years of age in occupations and at places which
are regarded as inherently dangerous or hurtful to them. Their pres
ence at such places being forbidden and unlawful, an employer is
held liable for any injury suffered by a child in the course of its em
ployment, whether such injury is the result of performing the serv
ice, or of contact with some agency associated with the employer’s
business, or inherent in its environment.
Injuries from such sources it is the purpose of the statute to pre
vent, and they are regarded as the proximate result of the wrongful
employment whether suffered at work or in irrelevant and forbidden
play. Many authorities are cited in brief of counsel which support
and establish this view.
Several cases involving similar legislation were then discussed,
and Judge Somerville continued:
We have thus reviewed at some length the scope and application
of those statutory provisions which forbid the employment of young
children in certain pursuits and at certain places which are regarded
as inherently dangerous to them, in order to emphasize the distinction
which we think must be recognized as between such pursuits and
places and those in and at which such children m ay be law fully em
97
EMPLOYERS LIABILITY.
ployed , with regulations and
hours of their employment.
restraints only as to the periods and
If a newspaper mailing or circulation department were a forbidden
place for the employment of children, we think it would at least be a
question for the jury to determine, upon the several aspects of the
evidence here exhibited, and under the authorities noted, whether or
not the unlawful employment of plaintiff was the proximate cause
of his injury.
But defendant’s newspaper plant, so far as it is here involved,
was not a place of danger, and was not a forbidden place under the
provisions of the child labor act.
Although the employment of a child in violation of the statute
is negligence per se, the authorities all hold, and correctly so, that
civil liability does not follow unless the child suffers some injury
which is, in a legal sense, the proximate result of the violation of
the statute, and therefore within its protective purposes. If the vio
lation of the law, whether statutory or common, furnishes merely
the causal condition attendant upon the injury suffered, and is not
an indispensable agent cooperating directly in its production, it is
not the proximate cause of the injury, and there is no liability. This
distinction was carefully stated in the case of Garrett v. L. & N.
E, E. Co. 196 Ala. 52, 71 So. 685.
If, as plaintiff’s testimony tends to show, defendant’s servant Mon
gol was playing with plaintiff, and slipped up on him and grabbed
him, just as he was going to work, causing him to stumble backward
into the chute in the effort to escape; or if, as defendant’s testimony
tends to show, plaintiff in play intentionally jumped into the chute,
in either case that act and the resulting injury can not, upon sound
principle or sound logic, be referred to defendant’s breach of the
statute as their proximate cause.
Judgment was reversed and the cause remanded.
E m p l o y e r s ’ L i a b i l i t y — E m p l o y m e n t o f C h i l d r e n — W o r k m e n ’s
C o m p e n s a t i o n — “ M i n e ” — Mangus
Proctor-Eagle Goal Co Su
v.
.,
preme Cou/rt of Appeals of W est Virginia (February 15 , 1921),
105 Southeastern R eporter , page 909 .—Mangus was a minor under 14
years of age and was injured while engaged in switching loaded coal
cars in defendant’s coal mine. His work required him to work on
and about the tipple of the mine. The law of West Virginia pro
hibits the employment of any boy under 14 years of age in any coal
mine. He brought suit for damages and recovered a verdict of
$3,000, which the court set aside on the ground that the case was
covered by the workmen’s compensation law. The workmen’s com
pensation law expressly excludes from its provisions minors who
are unlawfully employed, but the court held that in working on and
about the tipple of the mine Mangus was not working in the mine,
and therefore the law prohibiting his employment in a coal mine
did not apply. Mangus appealed and the decision was reversed and
TEXT AND SUMMARIES OF DECISIONS.
98
a judgment was rendered on the verdict in his favor. The opinion,
in part, is as follows:
In scope, the statutory definition of “ mine” clearly includes the
incline on which the plaintiff was working when hurt. In express
terms it embraces the “ drifts or incline planes connected with exca
vations.” Drift and incline plane are used in the same general
sense, Each is the way provided for bringing the coal from the
mouth of the mine to the tipple. The cars may drift by gravity or
they may be drawn up an incline plane, or they may reach the tipple
partly by drift and partly by draft. Ordinarily, the cars go down
grade from the mouth of the mine to the tipple.
This interpretation of the statute results in the conclusion that the
ground upon which the court set aside the verdict is untenable. As
the employment of the plaintiff was unlawful, the defendant’s sub
scription to the workmen’s compensation fund afforded it no immu
nity from liability for injury to him by its negligence. In the case
of an unlawful employment, neither party to the contract is pro
tected by the workmen’s compensation act. (Code, c. 15P, sec. 9.)
The unlawfulness of the employment and injury of the employee
in the course thereof make out a prima facie case of injury by negli
gence of the employer. There is no claim in argument that such
case was overcome or repelled by proof, and we perceive nothing
in the evidence that precludes right of recovery on the ground of
such negligence.
Upon these principles and conclusions, the judgment complained of
will be reversed, the verdict reinstated, and judgment for the plain
tiff rendered thereon.
E m p l o y e r s’ L ia b il it y — H a za r d o u s
i s k s -— C o n d i t i o n s o f E m p l o y m e n t —
O c c u p a t io n s — I n h e r e n t
Consolidated Arizona Sm elt
ing Co, v. E gich , Supreme Court o f Arizona (May 3 , 1920), 199 P a
cific R eporter , page 132,—John Egich was employed as a miner by
R
the defendant company. He was working in defendant’s mine on
February 8, 1918. While standing on a grizzly breaking rocks with
a hammer, as instructed, the head of the hammer flew off the handle
and struck his right foot, breaking a toe. The grizzly consisted of
railroad rails placed parallel to each other and about 6 inches apart.
The sudden shock caused his foot to slip, and he fell between the
rails, wrenching and twisting the muscles, ligaments, and bones of
his foot and ankle. Egich brought an action against the defendant
and was awarded judgment. The defendant appeals from the
order overruling a motion for a new trial. The supreme court
reversed the decision, with directions to grant a new trial because of
the erroneous instructions given to the jury on the question of dam
ages. The supreme court overruled many of its former decisions in
holding that liability arises when injury or death is caused by an
accident due to a condition or conditions of the occupation, and that
99
the accident need not necessarily happen by reason of an inherent
risk or danger, but that it may arise from the manner in ‘which the
business is carried on. As stated by Judge Eoss, who delivered the
opinion of the court, the company’s proposition was understood
to be:
The proximate cause of the accident being the negligence of de
fendant in furnishing plaintiff with a defective hammer to do his
work, the injury arose from an ordinary risk and not an inherent or
hazardous risk, it being the contention that the employers’ liability
law covers only the latter kind of risk; that is, risks that are inherent
in the occupation.
Judge Eoss also quoted from the defendant’s brief, as follows:
Before an injured workman can recover under the employers’
liability act it must affirmatively appear that the accident causing
the injury was due to an inherent risk or hazard of the occupation,
and was unavoidable by the workman. This excludes accidents due
to the employer’s negligence.
He then said :
Section 7, article 18, of the Constitution is the fountainhead and
source of the employers’ liability law. It creates and defines a new
liability of the employer to the employee. It names and points out
the circumstances and conditions under which the liability may arise.
It defines the rights that may accrue to an injured or killed em
ployee, and directs the legislature to enact a law providing a method
of procedure for the enforcement of those rights.
If the relation of employer and employee exists, if the latter suffers
injury or death in a named hazardous occupation caused by an acci
dent due to a condition or conditions of the occupation, and not the
negligence of the employee, all of the constitutional facts are present,
and constitute a right of action in favor of the employee against the
employer.
The legislative statement that in the occupation named the means
used and provided for doing the work are dangerous and hazardous,
and the risks and hazards therein inherent and unavoidable, may
be taken for granted, but at that it is not a declaration that the acci
dent causing the injury or death must have occurred from an inherent
danger, or have been unavoidable, before a recovery could be had.
The definition of the right is that the injury or death must have been
“ caused by an accident due to a condition or conditions of the occu
pation.” The legislature had no power to add to or take from this
definition.
We are of the opinion that the rights of the employer and employee
under this law, when submitted to a court for adjudication, must be
determined and settled in accordance with the constitutional defini
tion ; that is, the injury or death must have been “ caused by an acci
dent due to a condition or conditions of the occupation ” and “ shall
not have been caused by the negligence of the employee killed or
injured.”
EMPLOYERS*
101296°—22-----8
l ia b il it y .
100
TEXT AND SUMMARIES OF DECISIONS.
It follows, therefore, that the negligence of the employer in failing
to furnish the employee a safe place to work, or safe tools and imis not
fdementsiswith which to work, is liablethe ground upon which his
iability based, inasmuch as he
even though he may furnish
the employee a safe place to work and safe tools and implements with
which to work, if, notwithstanding, the employee is injured or killed
by an accident due to a condition or conditions of the occupation.
In the former case accidents will be more frequent; more employees
will be killed or injured, and the business will have to bear a greater
burden became of the negligence, but that does not change the
principle upon which the right of action is based.
The condition or conditions that cause the accident resulting in
injury or death may be inherent in the occupation, or they may arise
from the manner in which the business is carried on. The conditions
of the occupation in which the employee does his work involves, not
only the place he works, but the tools with which he works, the one
as much as the other. He can not perform his work without tools,
nor without being in the place assigned to him.
The employer can not negligently create nor permit a condition,
and, when an accident results therefrom, plead it as a bar to the
action, any more than he can claim exemption because the conditions
were perfect. We conclude that the contention of defendant that the
injury must have been caused by a risk or hazard inherent in the
occupation before a recovery could be had is without merit. And it is
equally clear the defendant can not avail itself of its own negligence
to defeat the action.
The only thing that will defeat the action and absolve the em
ployer from liability is the negligence of the employee. If the in
jury or death be not caused by an accident due to a condition or con
ditions of the occupation, but is caused by the negligence of the
employee, he can not recover, nor can his personal representative or
beneficiary. The only risk or hazard the employee assumes is his own
negligence.
E m plo yers’ L
G u a r d s— S cope
ia b il it y —
I n ju r y
to
T
h ir d
P
erso n—
A
cts of
S t r ik e
—M clnerney v. United Railroads
of San Francisco et al ., D istrict Court of A ppeal of California
{D e c e m b e r 1 Q W ),1 9 5 Pacific R eporter , page 958 .—The employees
of the United Bailroads of San Francisco went on a strike. The
company refused to accede to the demands of the trade-unions and
hired other workmen to operate the cars. Much violence was in
dulged in, and persons were assaulted on both sides. Often cars
would be attacked and stones and bricks tossed through the windows,
smashing the glass, injuring passengers and employees, and other
wise doing damage. To protect itself the company engaged patrol
men and guards, who either rode on the cars or moved along the
street in their vicinity for the purpose of protecting the property of
the company and the crews who were running the cars. These men
were all under the direction of a Mr. Fitch, who was foreman of
of
E
m plo ym ent
e m p l o y e r s ’ l ia b il it y .
101
the stables and garages of the company. Acting under instructions
of Mr. Ewing, his immediate supervisor, who was superintendent of
construction and equipment, Mr. Fitch sent out an automobile load of
guards and patrolmen to a place on Haight Street where an assault
had been made on one of the company’s cars. His instructions to
these men were that they were “ to do patrol work on the street, to
try and protect the property in any way they could.” They proceeded
to Haight Street, where Mclnerney was walking with several friends
on their way to the rooms of some of their number for a social even
ing. They drew up to the curb opposite Mclnerney and assaulted
him by striking him over the head. He was put into the automobile
and taken to the stables, where he succeeded in calling to some police
men. He had been severely battered up and injured on the way to
the stables. The men who brought him to the stable accused him
of throwing a brick through the window of a car, and at Mr. Fitch’s
request he was put in jail after having been treated at a hospital.
When his case came up it was found that no complaint had been
lodged against him, and the company’s attorney who was present
in court said he was not ready with his proofs and asked for a con
tinuance of one week, which was granted, and when the case came up
again another continuance was granted. Later the case was dropped
because of no complaint and Mclnerney proceeded to sue for damages
of assault and battery and false arrest by defendant’s employees.
He was awarded a verdict of $2,000 damages and $500 exemplary
damages and the company appealed. In affirming the decision with
a modified judgment the court of appeal spoke in part as follows:
The first contention urged by the appellant is that the evidence is
insufficient to show that the United Railroads ever authorized the
occupants of the machine or any of them to assault or imprison the
plaintiff. We are unable to sustain this contention. The time of the
duration of the railroad strike, which had been in progress for some
11 days prior to the date of the plaintiff’s injuries, was, as we have
said, a time of violence, during which the employees of the railroad
were being frequently attacked, and its cars were being fired upon
and struck with stones and other missiles, to their great damage, in
some eases well-nigh destruction. In resisting a strike attended with
violent acts of this character it became necessary for the railroad to
employ many persons to act as patrolmen and guards for the protec
tion of their nonstriking employees and such of the traveling pub
lic as might have the hardihood to become its passengers, and of their
cars and other property from destruction. It may be said incident
ally that the employment of these persons for the above express
purposes had also as its more or less essential purpose that of dis
couraging and rendering ineffectual the strike itself. Under these
conditions and with these objects in view the president of the cor
poration issued the general order to his subordinates above set forth.
The object of thus dispatching this body of men to the scene of exist
ing or impending turmoil is a matter of easy inference. They were
102
TEXT AND SUMMARIES OF DECISIONS.
sent there by Mr. Fitch, under the most favorable statement of his in
structions as testified to by himself, “ to do anything they reasonably
could to stop windows from being broken, crews pulled off; to help
them out.” It can not be conceived that under these instructions
those men arriving at the scene of disorderly action would be ex
pected by their superior to confine themselves to merely remonstrat
ing with the strikers or their sympathizers, to the use of moral sua
sion as the most reasonable means of preventing violent attacks upon
the railroad’s employees or property. The objects of their engage
ment and presence at the point of disturbance could not thus have
been attained. * * * They proceeded, therefore, to take him
[Mclnerney] into custody. It is true that they were utterly mis
taken in regarding him as one of the strikers or as one of their sym
pathizers or allies in the attack. It is true also that their methods
of achievement of their object and their method of arrest were ruf
fianly and inexcusable, but they were, nevertheless, acting within the
scope of their authority regardless of the fact that they were mis
taken as to the identity and guilt of their victim.
So in the case at bar we think that if these employees of the rail
road had come upon the plaintiff while in the act of stoning their
employer’s cars, or immediately thereafter, they would have been
authorized by the nature of their employment to put a stop by force,
if necessary, to his pernicious activity, and take him into custody for
the purpose of turning him over to the authorities; and, this being
so, the fact that they were mistaken in his identity as a wrongdoer
does not affect their employer’s liability for their acts.
What we have said above applies also to the appellant’s next two
contentions, since wT are satisfied that the evidence sufficiently shows
e
that the arrest and detention of the plaintiff by his captors at Scott
Street, and by the police officers within the appellant’s quarters on
Turk Street, were authorized and ratified by the action and direction
of the appellant’s foreman, Mr. Fitch, under the belief that the
plaintiff had been guilty of stoning the cars of his employer.
It is to be remembered that this appellant is a corporation, and
while it is undoubtedly the law that a corporation may become liable
in exemplary damages where an act of one of its employees, done in
ill will or in actual malice or under circumstances of fraud or op
pression, is done with the knowledge or under the express direction
of its superior officials, having power to bind the corporation, or,
if done without such knowledge or direction, is thereafter ratified
by such officials, with full knowledge as to the willful and malicious
quality of such acts, no such conditions are presented by the evidence
in the case at bar.
It follows that the judgment must be modified by striking there
from the specific portion thereof which awards exemplary damages
to the respondent.
This brings us to the final contention urged by the appellant,
which is that, since the jury by its verdict in favor of the appel
lant’s codefendant Fitch exonerated the latter from liability for the
injuries of which the plaintiff complains, it must necessarily be held
to have also exonerated the appellant as the employer of Fitch from
liability for his acts as its employee. The defendant Fitch, in send
ing forth patrolmen and guards, who wrongfully assaulted and
EMPLOYERS ’ LIABILITY.
103
falsely imprisoned the plaintiff, was acting under the general direc
tions of the superior officials of the appellant, which directions,
under the circumstances attending their issuance, were broad enough
to contemplate the use of force and violence if necessary in repelling
the assaults of strikers or their sympathizers upon those operating
the appellant’s cars, or in arresting such of these as were injuring or
destroying its property. In carrying into effect these instructions
Fitch and his underlings were but obeying orders, and if they ex
ceeded their duty in so doing through a mistaken excess of zeal
their principal would be liable not merely under the doctrine of re
spondeat superior, but as a joint participant in their wrongful acts.
The judgment will be modified by striking therefrom the item
$500 assessed as exemplary damages, but as to the other items thereof
will be and is hereby affirmed; each party to pay its costs upon this
appeal.
E
m p l o y e r ’s
L
ia b il it y —
I n ju r y
to
T
h ir d
P
er so n —
N
e g l ig e n c e
o f E m p l o y e e — C ity of Indianapolis v. Lee, Appellate Court of
Indiana ( October 28, 1921), 182 Northeastern. Reporter, page 605 .—
Sam Neff was in the employ of the city of Indianapolis as a truck
driver. He had been instructed by his employer not to permit any
person to operate the truck without permission in writing. On
April 26,1918, he was ordered to take some freight to another part of
the city. While executing that order he came upon one Claude Mor
rill, who was having trouble with his automobile. Neff in attempt
ing to help Merrill told Merrill to drive the city truck and he took
Merrill’s car and proceeded up the street. One of the wheels of the
city’s truck ran into a depression in the street. This caused the
truck to turn and run up on the sidewalk striking and injuring Mrs.
Pearl Lee. She brought this suit for damages and judgment was
rendered in her favor.
The city appealed, but the appellate court affirmed the judgment.
The*court said that it was clear that the relation of master and serv
ant did not exist between the city and Merrill and therefore the city
could not be held liable for Merrill’s conduct. But Neff, in violation
of orders, directed Merrill to operate the truck, and while working
together, Merrill under the immediate supervision and control of
Neff, they were doing the work which the master had intrusted to
Neff. Upon these facts the court held the city to be liable for the
negligence of Neff.
E
m plo yers’
O r d in a r y
L i a b i l i t y — N e g l i g e n c e — C o n t r i b u t o r y N e g l i g e n c e ___
C a r e Egan v . Trenton Gas and Electric Co Supreme
—
.,
Court of Missouri (June 28,1921), 288 S out hives tern Reporter, page
289 .—Samuel Egan had been in the employ of the defendant com
pany for 10 years. He had assisted in the building and construction
104
TEXT AND SUMMARIES OF DECISIONS.
of defendant’s electric supply system. On the day in question Egan
was acting under orders of the president of the company to wchange
the leads entering the old electric plant to the new oil engine house.”
He was working on a tower through which the distributing wires
carried the current of electricity generated in the plant. During the
morning Egan had caused the current to be cut off. Before going
to his midday lunch he# had the current turned on again. In the
afternoon he resumed his work without cutting off the current or
giving orders to others to cut it off. While attempting to put a wire
through a, hole in the wall of the tower the dead wire which he held
came in contact with a live wire and as a result he was instantly
killed. Ida Egan, widow of deceased, brought a suit to recover
damages for the death of her husband. The suit resulted in a ver
dict for $8,000, from which the defendant company appealed. The
supreme court reversed the judgment of the lower court on the
ground that Egan was guilty of contributory negligence. The court
held that 4 while the character of the defendant’s business was haz
4
ardous and a high degree of care was required in conducting it, this
did not lessen the duty of the deceased to exercise ordinary care,”
and after reviewing some authorities the court concludes:
The deceased knew of his danger; he was not instructed to do the
work as he did it, and the inevitable conclusion is he neglected to
take a reasonable and sensible precaution for his own safety, and by
bis neglect he lost his life. This, without more, is sufficient to show
that the deceased was guilty of neglect as a matter of law and hence
the case should be reversed.
E m p l o y e r s ’ L ia b il it y — N e g l ig e n c e — E m p l o y e e G o in g t o W o r k —
T r a n s p o r t a t i o n b y E m p l o y e r — Phillips v . Arm our <& Co ,, Supreme
Court of Kansas (March 12,1921), 196 Pacific R eporterr page 21(6.—
Fred Phillips was employed by Armour & Co. Because of a street
car strike the company undertook to transport its employees to its
plant. To do this it hired a motor truck from the A. T. Powell
Transfer Co., which also furnished the chauffeur. In collecting em
ployees the truck arrived at Phillips’ home at 5.45 a. m,—before
daylight—and was then already crowded. Phillips was forced to
sit on the tail gate with two other employees. While the truck was
being driven over rough streets at a dangerous rate of speed the
chains supporting the tail gate broke and Phillips was violently
thrown to the pavement and seriously injured. He brought suit for
damages on the theory that the driver of the truck was in fact
defendant’s employee. Judgment was rendered in favor of Phil
lips, and the defendant appealed to the Supreme Court of Kansas
on the ground that the truck was owned and operated by an inde
105
pendent contractor and therefore it could not be held liable. The
decision in favor of Phillips was affirmed. The opinion, in part, is
as follows:
There was manifest negligence in the transportation of the plain
tiff to his work, and the question which divides the parties is, What
was the duty and obligation of the defendant towards him? Can
the defendant escape liability for the negligence because it had em
ployed the transfer company to transport its employees to their
work? The company assumed the responsibility of carrying the
plaintiff and other employees to and from their work, and it pro
vided the instrumentalities by which they should be carried. The
plaintiff had nothing to do with the selection of the persons who
drove the vehicles, nor of the instrumentalities of transportation.
These selections were made by the defendant. While the vehicles
and the drivers were furnished to the defendant by the transfer
company, the latter had no control over either from the time they
went to the packing plant until they returned after the work was
done. Under the arrangement the drivers reported to the defendant,
and it gave them instructions as to the loading and transportation
of employees. Upon arrival at the plant the foreman of the defend
ant took charge of the vehicles, marked them with the name of the
defendant, and gave the drivers orders what to do and where to
drive. The drivers were therefore the agents of the defendant, and
the vehicles were its instrumentalities, and, having thus assumed
the duty of carrying the employees to their work, the latter had the
right to assume that the company would select instrumentalities that
were reasonably safe, and that the drivers would exercise reasonable
care in carrying out the duties assumed by the company. Having
taken upon itself the responsibility of the transportation, the defend
ant owed its employees the duty to inspect the instrumentalities
used in it, and to see that the traffic was as carefully conducted as if
the vehicles had been owned by it or been driven by its foreman or
other employees. The relation of master and servant existed, and
the defendant could not rid itself of responsibility for the safety of
employees because the vehicles in which they were carried were
owned by another.
e m p l o y e r s ’ l ia b il it y .
E m p l o y e r s ’ L ia b il it y — N e g l ig e n c e — O b l ig a t io n o f E m p l o y e r
C a r e f o r S i c k E m p l o y e e Carey
B aris et al., Supreme Court
to
—
v.
of
Iowa (January 12, 1921), 180 Northwestern R eporter , page 889.—
The plaintiff, Carey, was employed as a farm laborer by the defend
ants and was detailed to work in an open gravel pit. While work
ing in the gravel pit he was overcome by heat and fainted. When
he was revived he resumed his work, but he again had an attack of
the same nature, and while in an unconscious condition defendants
had him placed in an open wagon box. He was left to lie in the
wagon for four hours, when he sufficiently recovered to make his
way home with great difficulty. He became sick, was confined to
his bed, and wholly incapacitated for labor. He sued defendants,
106
TEXT AND SUMMARIES OF DECISIONS.
charging them with negligence in their care of him in his sick and
helpless condition, alleging that their careless treatment aggravated
his sickness. The district court sustained a demurrer to the com
plaint, and plaintiff refused to amend, and when judgment was en
tered against him he appealed. In reversing the order sustaining
the demurrer and remanding the case for trial the supreme court
said in part:
* There is no allegation or claim that the faintness or prostration
of the plaintiff was caused or in any manner produced by the neglect
or misconduct of the defendants. So far as the pleading goes, the
cause of his ailment is entirely unknown, a misfortune for which
damages are recoverable from no one. If there be any failure of
legal duty alleged, it is in the charge that plaintiff, being stricken
down and rendered helpless while in the defendants’ service, and
upon their premises and in their presence, it became their duty to
render him the needed aid and relief. Did such legal duty arise
under the alleged circumstances? It is unquestionably the wellsettled general rule that, in the absence of any agreement or con
tract therefor, the master is under no legal duty to care for a sick
or injured servant for whose illness or injury he is not at fault.
Though not unjust in principle, this rule, if carried unflinchingly
and without exception to its logical extreme, is sometimes produc
tive of shocking results. To avoid this criticism there is a tendency
of the courts to hold that, where in the course of his employment a
servant suffers serious injury or is suddenly stricken down in a
manner indicating the immediate and emergent need of aid to save
him from death or serious harm, the master, if present, is in duty
bound to take such reasonable measures or make such reasonable
effort as may be practicable to relieve him, even though such master
be not chargeable with fault in bringing about the emergency.
It is argued in his behalf that even if it is held that defendants
would otherwise not be liable, yet, having assumed to pick him up
in his unconscious condition and remove him from the place where
he had fallen, it then became their duty to use reasonable care in so
doing not to aggravate his misfortune, and for failure in this respect
with resulting injury to him an action for damages will lie. This
proposition is quite in accord with the reasons and principles which
underlie the law of negligence. One person seeing another in dis
tress may or may not be under legal obligation to afford him relief,
but, if he does undertake it, he is, of course, bound to act with rea
sonable prudence and care to the end that, if his effort be unavail
ing, it shall at least not operate to increase the injury which he
seeks to alleviate.
The judgment below is reversed, and cause remanded, with direc
tion to the district court to overrule the demurrer.
Reversed and remanded.
E m ployers ’ L ia b il ity — N egligence — V olunteer — R easonable
C are —Rook v. Schultz et al ., Supreme Court of Oregon {M ay 24
,
1921), 198 Pacific R eporter, page 234-—Antone
Kook acting as a
107
volunteer, was assisting a driver of the plaintiff company in distrib
uting milk. The facts appear to be that Rook was standing on the
running board when the driver made a sudden turn from one street
into a cross street without warning the plaintiff of his intention,
with the result that Rook was thrown to the ground and badly in
jured. The lower eourt allowed a recovery from the employer, and
the supreme court upheld the judgment. The court quoted from
the decision in the case of Evarts v. St. Paul etc. Ry. Co., 56 Minn.
141, 57 N. W. 459, which laid down the doctrine as follows:
“ But if, after discovering that such volunteer has placed himself
in a position of danger, even through his own negligence, the serv
ants fail to exercise reasonable care to avert the danger, the master
will be liable. * * * This liability does not rest on any contract
obligation, but on the general duty not to inflict a wanton or willful
injury on another. As respects this duty, a volunteer can not occupy
a less favorable position than a trespasser.”
e m p l o y e r s ’ l ia b il it y .
E
A
m plo yers’
L
s s u m p t io n of
ia b il it y —
R
is k —
E
R a il r o a d C o m p a n i e s — F e d e r a l S t a t u t e —
I n j u r e d b y M a i l C r a n e — South
n g in e e r
ern Pacific Go. v. Berkshire , United States Supreme Court (January
8, 1921), Ifl Supreme Court Reporter , page 162.—W.
A. Linder was
employed as an engineer in operating a passenger train from El
Paso, Tex., to Deming, N. Mex. While leaning out of the cab of
the engine to examine the main driving pin, which had been getting
hot, he was struck on the head by a mail crane and rendered uncon
scious. A short while later he died, and Berkshire, the administrator
of his estate, brought this action against the railroad company under
the Federal employers’ liability act to recover damages. Judgment
was rendered in favor of the plaintiff, and the railway company
brought a writ of certiorari to the Supreme Court. In reversing
the decision the court held that the railway company had not been
negligent in maintaining mail cranes along its road, and that de
ceased Linder had assumed the risk of the injury which resulted in
his death.
Mr. Justice Holmes delivered the opinion of the majority of the
court. After speaking of Linder’s experience on the road, and his
presumed acquaintance with conditions, the structure and uses of
mail cranes were considered, for which the Post Office Department
fixes a standard for the sake of uniformity. He then said:
The railroad is required and presumed to know its duty in the
matter, and it would seem that the court ought to be equally well
informed. It can not be that the theory of the law requires it to be
left to the uncertain judgment of a jury in every case.
It would be impossible to use the contrivance with the absolute
certainty that no accident would happen if a man put his head out
TEXT AND SUMMARIES OF DECISIONS.
108
at the wrong moment. It is equally impossible to condemn railroads
as wrongdoers simply for adopting the device with the conditions
imposed by the Post Office Department. On the common lawTprin
ciples of tort the adoption of an improvement in the public interest
does not throw the risk of all incidental damage upon those who
adopted it, however fair it may be to put the expense of insurance
upon those who use it. It is going very far to leave it open to a
jury to attach liability in tort to a system by which the end of the
arms of postal cranes come to fourteen inches from the car.
An experienced railroad man can not be supposed to have been
ignorant that such a projection threatened danger and, knowing so
much, he assumed the risk that obviously would attend taking the
chances of leaning well out from the train. The probability is that
the distance of the crane was somewhat greater than the minimum
that we have assumed, but that we lay on one side. Confining our
selves to the case of postal cranes we are of opinion that to allow the
jury to find a verdict for the plaintiff was to allow them to substitute
sympathy for evidence and to impose a standard of conduct that
had no warrant in the common law. (Butler v. Frazee, 211 U. S.
459, 465-467, 29 Sup. Ct. 136, 53 L. Ed. 281; Kenney v. Meddaugh,
118, Fed. 209, 55 C. C. A. 115.)
Judgment reversed.
In a strong dissenting opinion, in which Justices Day and Pitney
joined, after citing authoritative cases on assumption of risk, Mr.
Justice Clarke continued in part:
It is “a strong thing” to hold, on the indefinite evidence in this
record, which I have attempted accurately to detail, that a mail crane
arm is such a permanent and conspicuous source of danger to a freight
engineer as to bring this case within the scope of the decisions cited,
and it is a yet stronger thing to reverse the finding of a jury properly
instructed, and the judgments, on a question of fact, of two State
courts, which the record shows acted with full appreciation of, and
with a desire to follow, the decisions of this court with respect to
assumption of risk.
In practice certainly, and I think in theory, the decision of the
court in this case will introduce a new and unfortunate standard into
the law of assumption of risk, which will confuse the doctrine as it
has been worked out in the cases cited, will render railway companies
careless in placing obstructions near to their tracks, and will result
in the injury and death of many innocent and careful men, if the effect
of it is not promptly corrected by the State and National statutes,
and therefore I can not consent to join in it.
E
D
m plo yers’
a m ag es—
L i a b i l i t y — R a il r o a d C o m p a n i e s — F e d e r a l S t a t u t e — ■
C h a n c e o f P r o m o t i o n —Payne , A gent , v . A llen , Court of
C ivil A pfeeds of Texas (M ay 2 4, 1921)^ 281 Southwestern R eporter ,
page H 8. —T. O. Allen was a locomotive fireman killed by the derail
ment of the engine that was hauling an interstate train on the Texas
and Pacific Railway. Mrs. Clara Allen, administratrix, brought
e m p l o y e r s ’ l ia b il it y .
109
this action under the Federal law for damages resulting to her as
widow and to her children by reason of the death of Allen. Judg
ment was rendered in favor of Mrs. Allen and the defendants ap
pealed. The appellants assigned as error the fact that Allen was
allowed to prove in the trial over objection that the deceased was in
line of promotion from fireman to engineer. The appellants stated
that “ the chance of a locomotive fireman 45 years old to a promotion
to a position with a better salary is too speculative, remote, and un
certain to be the basis for increasing the damages to be found by the
jury caused by his death.” The court of civil appeals upheld the
lower court, saying that this evidence would be permitted in Texas
and it should not be refused simply because the action arose under a
law of Congress.
E m p l o y e e s ’ L i a b i l i t y — R a il r o a d C o m p a n i e s — F e d e r a l S t a t u t e —
M
— W
—W ells Fargo & Go. v . Taylor , Su
preme Court of the United States {December 6, 1920), 1^1 Supreme
Court R eporter , page 93.— Wells Fargo & Co. is a Colorado cor
E xpress
essen g er
a iv e r
poration organized for the purpose of conducting an express busi
ness. It entered into a contract with the St. Louis & San Francisco
Railroad Co. by which it was given the exclusive privilege of main
taining an express service over the lines of the railroad. The rail
road was to provide suitable cars for carrying express packages, to
attach them to passenger trains and to permit employees of the
express company to accompany express matter as passengers. The
express company among other things agreed u (c) to assume all
risk and damage to its agents and employees while engaged in its
business on the trains or property of the railroad company.” It
also agreed to indemnify the railroad company for all claims for
damages suffered by its agents. When the express company em
ployed Taylor as its messenger it made him sign a contract in which
he agreed not to hold the express company or the railroad company
liable for any injuries sustained by him while in its employ and that
he assumed every risk incident to his employment. The car in
which Taylor was traveling as a messenger in charge of the express
company’s property became derailed and he was injured. He sued
the railroad company in Mississippi for damages and recovered a
judgment for $4,000. The express company after having been re
fused permission to be made a defendant in that suit brought this
action in the Federal court for an injunction to prevent Taylor
from recovering this judgment, because if he did so it would have
to indemnify the railroad, and in view of the contract with Taylor
this would be inequitable and unjust. The district court granted
the injunction and upon appeal the decision was reversed by the
1 1 0
TEXT AND SUMMARIES OF DECISIONS.
circuit court of appeals. The express company appealed and the
decision was again reversed and the injunction made effective and
final. The opinion of the court as expressed by Justice Yan
Devanter is in part as follows:
Does the employers’ liability act affect the validity of the messen
ger’s agreement?
The act provides that “ every common carrier by railroad ” shall be
liable in damages for the injury or death of any of its employees
occurring while it is engaged and he is employed in interstate com
merce and resulting in whole or in part from the negligence of any
of its officers, agents, or employees, or, from any defect or insuffi
ciency, due to its negligence, “ in its cars, engines, appliances, ma
chinery, track, roadbed,” etc.; and in section 5 it declares that any
contract whereby a common carrier exempts itself from “ any liabil
ity created by this act ” shall to that extent be void.
In his declaration in the State court Taylor did not claim that he
was in the employ of the railroad company, and his judgment was
not obtained on that theory. Here it is shown with certainty that he
was not in that company’s employ. True he urges that the contract
between the two companies shows a coproprietorship or sort of part
nership between them which made him an employee of both; but the
contract discloses no basis for the claim or for distinguishing his
case from that of the Pullman porter recently before us. (Robinson
v. Baltimore & Ohio R. R. Co., 237 U. S. 84, 35 Sup. Ct. 491 [Bui.
No. 152, p. 95].) The messenger here, like the porter there, was on the
train as an employee, not of the railroad company, but of another by
whom he was employed, directed and paid, and at whose will he was
to continue in service or be discharged.
As respects the express company, it appears not merely that Tay
lor was in its employ, but also that the injuries were received while it
was engaged and he was employed in interstate commerce; and so the
question is presented whether the act embraces a common carrier by
express which neither owns nor operates a railroad, but uses and pays
for railroad transportation in the manner before shown. The district
court answered the question in the negative and the circuit court of
appeals in the affirmative. A negative answer also has been given
in a like situation by the Court of Errors and Appeals of New Jersey
(Higgins v. Erie R. R. Co., 89 N. J. Law, 629, 99 Atl. 98), and a
recent decision by the Supreme Court of Minnesota makes per
suasively for that view (State ex rel. v. District Court, 142 Minn.
410,172 N. W. 310).
In our opinion the words “ common carrier by railroad,” as used
in the act, mean one who operates a railroad as a means of carrying
for the public—that is to say, a railroad company acting as a common
carrier.
As Taylor was not an employee of the railroad company and the
express company was not within the employers’ liability act, it fol
lows that the act has no bearing on the liability of either company
or on the validity of the messenger’s agreement.
There being no statute regulating the subject, it is settled by the
decisions of this court, and is recognized in other jurisdictions that
the messenger’s agreement was a valid and binding contract whereby
EMPLOYERS ’ LIABILITY.
I ll
Taylor agreed to assume all risk of injury incident to his employ
ment, from whatever cause arising, assented to the contractual ar
rangement between the two companies in respect of such injuries, and
became obligated to the express company to refrain from asserting
any liability against it or the railroad company on account of any
such injuries. [Cases cited.]
E m p l o y e r s ’ L i a b i l i t y — R a il r o a d C o m p a n i e s — F e d e r a l S t a t u t e —
C
— Car I
— N
— H ines , D i
rector General of Railroads , v. Logan , United States Circuit Court
of A ppeals , F ifth Circuit (December 7,1920), 269 Federal R eporter ,
page 105 .—Logan was employed by the Alabama Great Southern
I n terstate
o m m erce
n s p e c t io n
e g l ig e n c e
Railway Co. in its terminal station at Birmingham, Ala. He was
on his way to inspect or repair a number of cars, some of which were
being used in interstate commerce and some in intrastate commerce,
when he found it necessary to pass through an opening of about
three feet in another train of cars. This opening was purposely
left to afford passageway for employees about the yards. As Logan
was going through the opening some m oving cars were thrown
against the standing ones, causing them to come together and catch
him between them. No warning as required by custom was given.
Logan died as the result of his injuries, and his widow brought suit
for damages under the Federal employers’ liability act. She re
covered a judgment, and the employer appealed on the ground that
Logan was not at the time of his death engaged in interstate com
merce and that there was no proof of negligence on its part. In
affirming the judgment of the district court in favor of plaintiff the
court said in part:
At the time of his death Logan was on his way either to inspect
or repair cars, some of which were admittedly being used in inter
state commerce, and he was therefore engaged in the performance of
a duty that was required of defendant. He was inspecting, and,
wherever necessary, repairing, cars which were being made ready for
departure to several States, and was none the less engaged in inter
state commerce, although it was also his duty to inspect and repair
cars which were being used wholly within the State of Alabama.
Defendant moved for a peremptory instruction in his favor upon
the ground that there was insufficient evidence of negligence to war
rant the submission of the case to the jury. The trial court would
have committed plain error if it had refused to submit that issue.
There was evidence to show that a custom existed to give warning,
either by ringing the bell or blowing the whistle, of the approach
of the train of cars to the point on the track where Logan was killed.
Several witnesses testified they heard no warning, and no witness
testified that any was given. There was also evidence that the space
or opening, the closing of which resulted in Logan’s death, was left
1 1 2
TEXT ANB SUMMARIES OW DECISIONS.
there for the convenience of employees such as he was, and that there
was a custom never to close it without warning. The jury was
amply justified in finding for plaintiff from this circumstance, taken
in connection with the admitted knowledge of the switching crew
that the opening existed for the purpose already stated.
E m p l o y e r s ’ L i a b i l i t y — R a il r o a d C o m p a n i e s — F e d e r a l S t a t u t e — ■
I n terstate
C o m m e r c e — E n g in e e r
I n ju r e d
W h il e
G e t t in g
O il —
Hines, Director General of Railroads v. Burns ’ Admw., Court of A p
peals of K entucky (December 8, 1920) , 226 Southwestern Reporter,
page 109 .—Robbie Burns was employed as a locomotive engineer on
a train on the Louisville & Nashville Railroad system which ran from
Cincinnati, Ohio, to Knoxville, Tenn. While at Corbin, Ky., Burns
was ordered to make the trip as engineer. He went to the locomotive,
and finding that he needed some oil, he crossed the railroad yards to
the oil house, got his supply, and proceeded to return to his engine.
While making the return trip he was run into by an engine and
killed. His administratrix brought suit for damages under the
State employers’ liability act and was awarded a judgment. The em
ployer appealed, making as his chief contention that when Burns
was killed he was engaged in interstate commerce, and that therefore
the suit should have been brought under the Federal employers’ lia
bility act. The court accepted this view and reversed the decision
on the ground that the suit should have been brought under the
Federal statute. The opinion in part is as follows:
Taking up reason (a) in support of the motion for a directed ver
dict in favor of defendant, the uncontradicted evidence clearly es
tablishes that decedent at the time he received the injuries complained
of was in the employ of an interstate carrier, and that he himself was
engaged in intestate commerce.
The petition alleges (and which fact is not denied) that at the time
he received his injury he was engaged in procuring oil to use upon
his engine while making the interstate trip, and it is shown by other
witnesses whose testimony is not disputed that j ust before the accident
the decedent came to the oil house and had his oil cans filled, and that
he stated at the time that he was doing so to use the oil on his engine.
The oil cans were found where it is claimed by plaintiff the injury
occurred, which shows that decedent had them in his possession at
the time he was injured. There is no testimony in the record, nor
proven circumstances, contradicting the above-related facts.
It has been thoroughly settled in a number of cases from the Su
preme Court that under the facts here appearing the servant was
engaged in interstate commerce, and that a suit by him to recover
damages for injuries while thus employed, or by his administrator
to recover damages for his death, if he was killed, should be pros
ecuted under the Federal liability act, supra, and not under the laws
of the State where the accident occurred.
e m p l o y e e s ’ l ia b il it y .
113
E m p l o y e r s ’ L i a b i l i t y — R a il r o a d C o m p a n i e s — F e d e r a l S t a t u t e —
—R
— Koons et al . v. Philadelphia and
Reading R y. Go., Supreme Court of Pennsylvania (July 1 , 1921), 114
A tlantic R eporter , page 262 .—One Koons, deceased, was a laborer
I n tersta te C o m m erce
e p a ir s
at the car shops of the defendant company. While engaged in un
loading a portion of a wrecked car from a gondola, a hook attached
to the hoisting device slipped, allowing the load to fall, causing the
death of Koons. The car had been wrecked while moving in inter
state commerce, and was sent to the railroad shops to be repaired;
while at the shops the accident occurred. John L. Koons and an
other brought an action for damages because of the death. Judg
ment was for the defendant, as it was found that deceased was en
gaged in interstate commerce and that the Federal employer’s liabil
ity act would apply, the court holding that the interstate quality of
the car inhered while in the shop. This act requires actions to be
brought within two years from the time of the injury, which was
not done in this case. Plaintiffs appealed, but the supreme court
affirmed the lower court. Judge Kephart’s decision is in part as
follows:
Appellant’s position is that deceased was not engaged in interstate
commerce at the time of the accident that resulted in his death. The
test seems to be: In what was defendant company’s instrumentality
of transportation engaged at the time the employee received his in
jury? There are no degrees of such interstate engagements; one car
in such service makes the whole train subject thereto. “ One element
of interstate commerce * * * determines the remedy.” (Rail
road v. Polk, 41 Sup. Ct. 518.) As the Federal law supersedes the
State law, so do acts done thereunder, and where intrastate and inter
state acts are mingled, or at times alternate, there is no separation.
The interstate feature predominates, and by it must the questioned
act be judged. “ To separate duties by moments of time or particular
incidents of its exertion would be to destroy its unity. * * *
This service and the other service can not be separated in duty and
responsibility.” (Philadelphia & Reading Ry. Co. v. DiDonato, 41
Sup. Ct. 516.) Employment follows interstate transportation and
begins when the workman, on a carrier’s premises, makes a forward
move to serve in that traffic or employment, and ends only after he
has completely dissociated himself therefrom. Interstate employ
ment follows such character of commerce if the instrumentality is
wholly or partly engaged therein.
What was it [the car] engaged in at the time it was disabled ? If
at that time it was in an interstate movement, its disablement does
not suspend nor destroy that interstate character. The employment
follows the kind of instrumentality through the delay in the repair
shop until it returns to the transportation indicated. This seems to
be the doctrine in Great Northern R. Co. v . Otos, 239 U. S. 349, 36
Sup. Ct. 124 [Bui. No. 224, p. 110] ; Minneapolis etc. R. Co. v . Winters,
242 U. S. 353, 37 Sup. Ct. 170 [Bui. No. 246, p. 94], etc. We need not
here determine what might control if the instrumentality was di
verted to intrastate service after it left the repair shop.
114
TEXT AND SUMMARIES OE DECISIONS.
E m plo yers’
L i a b i l i t y — R a il r o a d
C o m p a n ie s — F e d e r a l
S tat
D irector
General of Railroads v. Bennett, United States Circuit Court of
A ppeals, Third Circuit (November 12, 1920), 268 Federal Reporter,
page 767.—Bennett was employed by a railroad as an engineer. He
u t e
- I
n terstate
C o m m e r c e — R e t u r n in g
fro m
W ork—
went out from the roundhouse and engaged in interstate commerce.
Upon the completion of the work he proceeded to return to the
roundhouse to put up his engine and go home, and while passing
a train on an adjoining track his engine struck a bulging car of
the other train. The impact tore off the safety valve of the engine
and Bennett was killed by escaping steam. His administratrix
brought suit for damages under the Federal employers’ liability act,
and recovered judgment. The employer appealed on the ground
that in returning to the roundhouse Bennett was not at that time en
gaged in interstate commerce and that his engine was not at the
time of the accident an instrumentality used in furtherance of inter
state commerce. The court held that Bennett was engaged in inter
state commerce and affirmed the decision. The opinion is in part as
follows:
Considering the question as it bears on the employment of the
engineer, it was shown that he was either on his way home after a
movement of interstate traffic or on his way to a place at which he
might receive orders for further movements, either interstate or in
trastate. The interstate movement just completed was not shown
to have been merely a yard shifting movement but was, so far as the
evidence discloses, a movement in actual furtherance of interstate
commerce. Putting out of view the remote possibility of future
employment as not determinative of the character of his wo>rk at
the time of his injury, the day’s work of the engineer, so far as the
evidence shows, had ended and his movement was homeward. An
employee’s “ trip through the yard to his engine in the morning”
has been held to be a necessary incident to his day’s wprk and necessa
rily to partake of the character of that work. If the first train
movement the decedent engineer was ordered to make in his day’s
work had been of an interstate train, the trip of the engine from
roundhouse to train would for like reason have been an incident
to interstate commerce, and if injured in making the trip, he would
have been entitled to the protection of the Federal employers’ lia
bility act. Similarly, on leaving his day’s work, his last train move
ment having been of an interstate train, his movement homeward
bound would be regarded as a necessary incident to the commerce he
had just completed. On both reason and authority we are of opin
ion that when Bennett was injured while leaving his job at the end
of the day, notwithstanding the movement might have been, but
actually was not, interrupted by an order to proceed elsewhere on
overtime, he was but discharging a duty of his employment in a
manner necessarily incident to the interstate movement he had just
completed.
em ployers’
l ia b il it y
.
115
E m p l o y e r s ’ L i a b i l i t y — R a il r o a d C o m p a n i e s — F e d e r a l S t a t u t e —
I n terstate
C o m m erce— S tea m
S u p p l ie d
to
S tate and
I n terstate
—Gruszewsky v. Director General of Railroads , Supreme
Court of Errors of Connecticut (A pril 5 , 1921), 118 A tlantic Reporter\
page 160.—Gruszewsky was employed by the New York, New Haven
&Hartford Railroad Co. It was his duty to generate steam at a heat
ing plant in the yards of the company. He was obliged to feed the
fires from coal cars standing near the boiler house. The ground was
covered with snow, and he was compelled to keep a passageway open
between the boiler house and the coal cars. The exposure resultant
from alternately working in the hot boiler room and the cold yard
caused him to contract lobar pneumonia from which he died. The
steam generated in the heating plant was used to heat both interstate
and intrastate cars standing in the yards. Gruszewsky’s widow
brought proceedings for compensation under the workmen’s compen
sation act, but the compensation commissioner refused to make an
award on the ground that Gruszewsky, when he incurred the injury
from which he died, had been engaged in interstate commerce. Upon
the widow’s appeal to the superior court the latter asked the advice
of the supreme court. The opinion was adverse to the widow’s claim,
and is in part as follows:
The Supreme Court of the United States has made the test of
whether an employee was at the time of his injury engaged in inter
state commerce depend upon answering in the affirmative the question:
“ Was the employee at the time of the injury engaged in interstate
transportation or in work so closely related to it as to be practically
a part of it? ” (Chicago, B. & Q. R. Co. v. Harrington, 241 U. S. 177,
36 Sup. Ct. 517, 60 L. Ed. 941 [Bui. No. 225, p. 105].)
Several cases were then cited, showing the results of the application
of this test. Continuing, the court said:
Gruszewsky, the deceased, was engaged in the operation of generat
ing steam by means of a heating plant in a railroad yard from whence
the steam was transmitted in pipes to cars standing on a track of the
railroad, and by means of steam plugs connection was made with the
cars and the steam supplied. The generation of the steam and its
transmission to the cars was one process, more so even than the pump
ing of the water to the tanks and the supply therefrom to the engines,
as in the Collins case. There was no separable part of this entire
process. All of its instrumentalities and facilities were for the one
end, the supply of heat for use in both kinds of commerce.
The superior court is advised that Gruszewsky, the deceased, was
at the time he contracted pneumonia as described in the finding en
gaged in interstate commerce and subject to the provisions of the act
of Congress of April 22,1908 (U. S. Comp. St., secs. 8657-8665), and
that the claimant is not entitled to compensation under chapter 284
of the General Statutes.
101296°—22---9
C o m m erce
116
TEXT AND SUMMARIES OF DECISIONS.
E m p l o y e r s ’ L i a b i l i t y — R a il r o a d C o m p a n i e s — F e d e r a l S t a t u t e —
S
— A
R
—DeBaur v.
Lehigh Valley R. Go ., United States Circuit Court of Appeals,
Second Circuit {Deceiriber 15, 1920), 269 Federal R eporter, page
96Jf.—DeBaur was a member of a crew of a work train which was
N e g l ig e n c e — F e l l o w
e r v ic e
s s u m p t io n
of
is k
engaged in grading for an extension of a siding between Rush Sta
tion and Rochester Junction, N. Y. His duty was that of a flagman,
and he was required to take a position to the rear of the work train
to give warning of its presence. At the time he was struck he was
1,500 feet to the rear of the work train on a curve and was seated
on a rail with his feet between the tracks, his arms on his knees and
his head bent as if asleep. The defendant company operated a local
train from Manchester to the P. & L. junction. There were no turn
tables at the latter place, so the train was required to return with
the tender running before the engine. As the train approached Rush
Station it stopped for a block signal and whistled. Then it pro
ceeded at about 15 or 16 miles an hour and again whistled at a sign
post. From his position in the cab and because of the curve the
engineer was unable to see DeBaur seated on the track. A brakeman who was seated on the tender, however, did see him when the
train was about six or seven car lengths away. At the brakeman’s
signal the engineer whistled and when DeBaur showed no sign of
having heard the whistle he signaled for a stop, but it was too late
and DeBaur was run down and killed. His administratrix brought
suit for damages, but after she had introduced her evidence the
United States District Court dismissed the complaint on the ground
that she had failed to prove negligence on the part of the defendant.
She appealed, but the judgment was affirmed. The decision in part
is as follows:
The action is brought under the Federal employers’ liability act
(Comp. St., secs. 8657-8665), and it is conceded that the plaintiff
below is entitled to the benefit of the provisions of this act If the
defendant below was negligent, it ynust be predicated upon fault
or neglect on the part of the engineer in charge of the train which
struck the deceased. The statute permits a recovery against the
carrier for death resulting in whole or in part from the negligence
of its officers, agents or employees. It abrogates the common-law
rule, known as the fellow-servant doctrine, by placing the negligence
of a coemployee upon the same basis as the negligence of an em
ployer. It, however, saves the defense of assumption of risk in cases'
other than those where the violation by the railroad company of
the statute enacted for the safety of employees may contribute to
the injury or death of the employee.
Upon what evidence here could negligent operation be predicated?
The duty which was owed by those in charge of the train which
struck the deceased was that, when the deceased was first seen sitting
on the tracks, the engineer was obliged to use all means at his com
117
mand to stop the train. If he discovered the deceased in his posi
tion of peril, it was incumbent upon him to exercise ordinary care
to stop his train and prevent the accident; but from the f oregoing
facts it is apparent that the engineer did all that could be expected
of a reasonably prudent man under similar circumstances.
This testimony is offered solely as the plaintiff’s evidence. There
is no evidence to show that the deceased was, in fact, sick. We are
only asked to infer that solely from his sitting, apparently uncon
scious of the approaching danger. Nor is there evidence to indicate
that the engineer from his position, if exercising due care, could
have seen the deceased in his position sooner than he did.
The defendant below is liable if it could have avoided the death
by the exercise of ordinary care after actually discovering his peril
ous situation. We think the engineer here did all that could be ex
pected of him under the circumstances, and that the plaintiff below
has failed to sustain the burden of proof of establishing negligence
on the part of the defendant below, which would require the district
judge submitting this case to the jury.
Judgment affirmed.
EMPLOYERS ’ LIABILITY.
E m p l o y e r s ’ L i a b i l i t y — R a il r o a d C o m p a n ie s — F e d e r a l S t a t u t e —
—Chicago , M. and S t . P. R y Co. v. M cGinley , Supreme
Court of Wisconsin (Novem ber 15 , 1921), 185 Northwestern R e
porter, page 218 .—Clarence S. McGinley was injured in an accident
P la c e o f S u it
about June 12, 1920, while in the employ of the C. M. and St. P. Ry.
Co. as a box packer and oiler in the city of Janesville, Rock County,
Wis. A suit for damages was instituted by him against his employer
in Renville County, Minn., some 500 miles from Janesville. The
action was based on the Federal employers’ liability act. The rail
road company was granted a restraining order by the circuit court
of Rock County, perpetually restraining and enjoining McGinley
from maintaining, carrying on, or prosecuting any action in any
court outside or beyond the limits of the State of Wisconsin, for
personal injuries sustained by him in the city of Janesville, Wis.
McGinley appealed from the order, the supreme court reversing the
lower court, with directions to dismiss the complaint. It was stated
in the course of the opinion that under the Federal employers’ lia
bility act the State courts have concurrent jurisdiction with the
Federal courts. Equity may enjoin a citizen of one State from
prosecuting a personal injury suit against a railroad company under
the Federal act in the courts of another State where necessary to pre
vent hardship, oppression, or fraud. But in this case, simply be
cause the witnesses do not live near by, or that under the Minnesota
law, a verdict on the agreement of 10 or more jurors will be sufficient
for a judgment, or that the jury will be prevented from viewing
the premises, the broad relief granted by the trial court will not be
sustained.
118
TEXT AlSTD SUMMARIES OE DECISIONS.
There was a charge that the suitor’s attorney was an “ ambulance
chaser.” As to wT the court said in part :
hich
Had it been made to appear in this case that counsel had been
guilty of such practices, and that the defendant herein had materially
cooperated with counsel in regard to the same, we wrould seriously
consider this charge in connection with the other reasons assigned
upon which the application for injunction was based.
We consider the relief granted by the trial court too broad, and
such relief should have been confined, assuming that a proper case
for injunction had been presented, in the instant case, to the injunc
tion with respect to the further prosecution of defendant’s action in
the county of Renville.
E m p l o y e r s ’ L i a b i l i t y — R a il r o a d C o m p a n i e s — F e d e r a l S t a t u t e —
Lang v.
New Y ork Cent. R . Co ., United States Supreme Court (March 28,
1921), 1^1 Supreme Court R eporter , page 381 .—Lang was employed
S a fety
A p p l ia n c e
A ct— C a u sa l
R e l a t io n
of
I n ju r y —
as a brakemanby the New York Central Railway Co. on its railroad.
A car with a defective coupler was standing on a siding in the com
pany’s yard at Silver Creek, N. Y. In making a switching opera
tion several cars were kicked onto the siding. It was not intended to
touch or in any way move the crippled car at that time. Lang was
riding on one of the cars which were kicked onto the siding and be
fore he applied the brake to stop them they bumped into the crippled
car. The crippled car had no drawbar nor coupler apparatus on that
end, so that when the cars came together their roofs touched and
Lang’s leg was crushed between them. He later died from his in
juries and suit was brought for damages under the safety-appliance
act, Comp. St., secs. 8605-8612. A verdict for $18,000 was granted,
which was affirmed by the appellate division of the New York
Supreme Court but was reversed by the Court of Appeals of New
York. Plaintiff brought a writ of certiorari to the United States
Supreme Court which affirmed the decision of the court of appeals
and reversed that of the New York Supreme Court. Mr. Justice
McKenna, who delivered the opinion of the court, said in part:
The statement that “ owing to the absence of the coupler attach
ment and bumpers on the crippled car intestate’s leg was caught be
tween the ends of the two cars ” is disputed as a consequence or as
element of decision independently of what Lang was to do and did—
indeed, it is the dispute in the case. Based on it, however, and the
facts recited, the contention of petitioner is that they demonstrate a
violation of the safety appliance act, and justify the judgment of
the trial court, and its affirmance by the appellate division.
The opposing contention of respondent is that—
“ The proximate cause of the accident was the failure of the de
ceased to stop the cars before they came in collison with the defective
car. The absence of the coupler and drawbar was not the proximate
cause of the injury, nor was it a concurring cause.”
e m p l o y e r s ’ l ia b il it y .
119
To support the contention St. Louis & S. F. R. Co. v. Conarty,
238 U. S. 243, 35 Sup. Ct. T85 [Bui. No. 189, p. 117], is adduced.
But necessarily there must be a casual relation between the fact of
delinquency and the fact of injury and so the case declares. Its con
cluding words are, expressing the condition of liability, “ that car
riers are liable to employees in damages whenever the failure to obey
these safety appliance laws is the proximate cause of injury to them
when engaged in the discharge of duty.” The plaintiff recovered
because the case came, it was said, within that interpretation of the
statute.
We need not comment further upon the case, nor consider the cases
which it cites. There is no doubt of the duty of a carrier under the
statute, and its imperative requirement, or of the consequences of its
omission. But the inquiry necessarily occurs to what situation, and
when, and to what employees do they apply ?
The court of appeals was of the view that it was the declaration of
the Conarty case that section 2 of the safety appliance act “ was in
tended to provide against the risk of coupling and uncoupling and
to obviate the necessity of men going between the ends of the cars.
It was not to provide a place of safety between colliding cars and
that “ the absence of coupler and drawbar was not a breach of duty
toward a servant in that situation.” It further decided that Lang
was in “ that situation” and he “ was not one of the persons for
whose benefit the safety appliance act was passed.”
Two questions are hence presented for solution: (1) Was the court
of appeals’ estimate of the Conarty case correct ? (2) Was it prop
erly applied to Lang’s situation ?
The court’s conclusion that the requirement of the safety-appliance
act “ was intended to provide against the risk of coupling cars ” is
the explicit declaration of the Conarty case.
That case, therefore, declares the same principle of decision as the
court of appeals declared in this and, while there is some difference
in the facts, the difference does not exclude the principle. In neither
case was the movement of the colliding car directed to a movement
of the defective car. In that case the movement of the colliding car
Avas at night, and it may be inferred that there Avas no knowledge of
the situation of the defective car. In this case the moA^ement of the
colliding car was in the daytime and the situation of the defective
car Avas not only known and visible, but its defect was knoAvn by
Lang. He therefore kneAv that his attention and efforts were to be
directed to prevent contact with it. He had no other concern with
it than to avoid it. “ It was not,” the trial court said, “ the intention
of any of the crew [of the colliding car] to disturb, couple onto, or
move the crippled car.” It Avas the duty of the crew, Are repeat, and
A
immediately the duty of Lang, to stop the colliding car and to set
the brakes upon it “ so as not to come into contact with the crippled
car,” to quote again from the trial court. That duty he failed to
perform and, if it may be said that notAvithstanding he would not
haA^e been injured if the car collided with had been equipped with
drawbar and coupler, we answer, as the court of appeals answered,
“ still the collision was not the proximate result of the defect ” or, in
other words and as expressed in effect in the Conarty case, that the
collision under the evidence can not be attributable to a violation of
im
TEXT AND SUMMARIES OF DECISIONS.
the provisions of the law, “ but only that, had they been complied
with, it [the collision] would not have resulted in injury to the de
ceased.”
Judgment affirmed,
A vigorous dissenting opinion was prepared by Mr. Justice Clarke,
Mr. Justice Day concurring. The reasons for stating the grounds of
dissent were said by Justice Clarke to be “ because I think that the
court’s decision of this case will result in seriously confusing the
law applicable to the safety appliance acts of Congress.”
The defective car, though not intended to be removed or coupled
to, was nevertheless standing on the track on which shifting was
going on, having been left there some days for unloading. The
unloading had been begun, and was completed on the day of the
accident, so that “ as a matter of fact, the defective car was actually
in use in a most real and f amiliar way on the very day of the acci
dent.7’ Various opinions of the Supreme Court were cited, giving its
^construction of the purpose of Congress in the enactment of the
safety appliance acts, starting from St. L., I. M, & S. B. Co. v.
Taylor, 210 U, S. 281, 28 Sup. Ct. 616 (Bui. No. 78, p. 578) in which
it was said that “ the use of cars which do not comply with the
standard, violates the plain prohibition of the law, and there arises
from that violation the liability to make compensation to one who is
injured by it.” Chief reliance was placed on fee decision in the
case, Louisville & N. It. Co. v. Layton, 246 U. S. 617, 37 Sup. Ct.
456 {Bui. No. 246, p. 99). Here a switchman was injured through a
defect of the coupling apparatus, and recovery in his behalf was
affirmed, although at the time of the injury he was not himself
engaged in the work of coupling, the court saying:
While it is undoubtedly true that the immediate occasion for
passing the laws requiring automatic couplers was the great number
of deaths and injuries caused to employees who were obliged to go
between cars to couple and uncouple them, yet these laws as written
are by no means confined in their terms to the protection of em
ployees only when so engaged. The language of the acts and the
authorities we have cited make it entirely clear that the liability in
damages to employees for failure to comply with the law springs
from its being made unlawful to use cars not equipped as required,
not from the position the employee may be in or the work which he
may be doing at the moment when he is injured. This effect can be
given to the acts and their wise and humane purpose can be accom
plished only by holding, as we do, that carriers are liable to em
ployees in damages whenever the failure to obey these safety appli
ance laws is the proximate cause of injury to them when engaged
in the discharge of duty.
Quite similar conditions existed in another case cited, Minneapolis
& St. Louis R. R. Co. v. Gotschall, 244 U. S. 66, 37 Sup. Ct. 598
{Bui. No. 246, p. 100).
e m p l o y e e s ' l ia b il it y .
121
Tiie last two decisions cited are subsequent to the decision in the
Gonarty case cited by Mr. Justice McKenna, and were relied upon by
the New York Court of Appeals in its reversal of the judgment in be
half of the plaintiff. This case restricted liability for damages to
those cases in which “ the failure to obey these safety appliances laws
is the proximate cause of injury to them [the employees] when en
gaged in the discharge of duty.” The Layton and Gotschall cases
coming later follow a divergent if not contradictory principle. The
opinion concludes:
Neither of the men injured in the Layton or Gotschall cases was
engaged in coupling or uncoupling cars when the accident occurred,
but each was injured because of defective coupling appliances when
he was going over the cars of his train in the discharge of his duty.
Here Lang was injured, when in the discharge of his duty because a
defective car had been placed upon a much-used track in a busy
yard in such a position that it was impossible for him in the exercise
of due care, to prevent the cars he was seeking to control from coming
in contact with it.
It would be difficult to conceive of a case in which the negligence
of the master could be a more immediate and proximate cause of
injury to a servant than it was in this case.
Having regard to the extent to which this case must be accepted by
other courts as a rule of decision, it would seem that the orderly and
intelligible administration of justice required that the principle of
Layton and Gotschall cases should be disavowed or overruled, for
that principle is so plainly in conflict with the opinion in this case
that courts and advising counsel will otherwise be left without any
rule to guide them in the disposition of the many similar cases con
stantly pressing for disposition.
For the reasons thus stated, I think the judgment of the court of
appeals entered by the Supreme Court of New York should be re
versed, and the original judgment of the supreme court affirmed.
E m p l o y e e s ’ L i a b i l i t y — R a il r o a d C o m p a n i e s — F e d e r a l S t a t u t e —
S a f e t y A p p l i a n c e A c t — W o r k m e n ’s C o m p e n s a t i o n A c t — R e m e d y —
W ard v. E rie R. Co ., Court o f Appeals of New York (January //,
1921 ), 129 Northeastern, Reporter , page 886 .—Ward was employed as
switchman by the Erie Railroad Co. in its yard at Elmira. While
engaged in a switching operation the car on which he was standing
came into contact with another car which had no drawhead or end
sill, and he was caught between the roofs. The car in this condition
was a violation of the Federal safety appliance act. The switching
operation was not in any interstate commerce movement. Ward
brought an action for damages against the Erie Railroad Co. and
recovered a verdict upon which judgment in his favor was rendered.
The employer appealed and the appellate division reversed the de
cision of the trial court and set aside the verdict on the ground that,
a
1 2 2
TEXT AND SUMMARIES OF DEUISIONS.
because the accident had not been suffered in interstate commerce,
the case was governed by the workmen’s compensation act and an
action for damages would not lie. Ward appealed to the court of
appeals which reversed the decision of the appellate division and
affirmed the decision of the trial court in his favor. The decision in
part is as follows :
The switching of the cars was not in aid of any interstate move
ment. There is no remedy, therefore, under the employers’ liability
act of Congress (U. S. Comp. St., secs. 8657-8665) which limits its
protection to employees engaged in interstate commerce when in
jury is suffered. But the absence of the drawhead or end sill was
a violation of another statute. The defendant, being an interstate
carrier, was subject to the provisions of the safety appliance act
(act March 2, 1893, c. 196, 27 Stat. L. 532), which gives protection
to travelers and employees, whether the transit at the moment of
the injury is interstate or local. The plaintiff has a remedy under
that act, unless the workmen’s compensation act of New York (Con
sol. Laws, c. 67) has taken it away from him. The defendant con
cedes that this could not be done if the remedy as well as the right
was the creation of the Federal statute. The argument is, however,
that all that Congress did was to clothe the employee with a right
and the carrier with a duty, leaving the remedy, in case of infringe
ment, to the law of the locality. It is a rule of the^common law
that a member of the class for whose benefit a statute has been
enacted has a right of action against the offender for the damages
sustained. The remedy for violation of the Federal statute is given,
it is said, not by the statute, but by the common law of the locality,
and what the locality has given the locality may change. This
argument, rejected by the trial court, was sustained at the appellate
division, and the complaint dismissed.
We reach a different conclusion. We find the inference irresistible
that the plaintiff’s remedy, like his right, has a statutory origin.
If the purpose was, however, not merely to impose a duty, but also
to create or to preserve a right of action for the damages, the right
of action so established is immune from impairment except by act
of Congress.
Here there are two provisions that unmistakably reveal the pur
pose to give to the right of action for damages then attaching at
common law a statutory confirmation and a statutory sanction. The
act provides (27 Stat. 532, act March 2, 1893, ch. 196, sec. 8) that
any employee injured by any locomotive, car, or train in use contrary
to the statute “ shall not be deemed thereby to have assumed the risk
thereby occasioned, although continuing in the employment of such
carrier after the unlawful use of such locomotive, car, or train had
been brought to his knowledge.” This provision assumes the exist
ence of a remedy and limits the available defenses. The regulation
of the remedy is equivalent to a declaration that a remedy there shall
be. The States were without power, with that statute on the books,
to make assumption of risk through continuance in employment an
answer to a suit.
The will of Congress is expressed in abbreviated signs and sym
bols, but none the less it is expressed. Enough is there to forbid
123
EMPLOYERS9 LIABILITY.
the imputation of a willingness that an act, described in its title as
one to promote the safety of employees and travelers, should be de
pendent for its efficacy upon the pleasure of the States. It is written
there in substance: Anyone for whose benefit this statute is enacted
shall have, in case of violation, a right of action for his damages,
and it shall no longer be a defense that there was service with
knowledge of the risk.
The judgment of the appellate division should be reversed, and
that of the trial term affirmed, with costs in the appellate division
and in this court.
E
m plo yers’
L
ia b il it y —
S afe
P i ,a c e — C o m p l i a n c e
w it h
S tat
Central Goal & Coke Co. Barnes , Supreme Court of Arkan
sas (July 11, 1921), 233 Southwestern Reporter , page 683.—Tom
ute—
y
.
Barnes was an experienced mine shot firer in the employ of the
Central Coal & Coke Co. On the day in question he went to work
at 4.30 p. m. He went directly to the fourth south entry, where he
found shots prepared for firing. He tamped the shots and went
back to the air course. He opened the crosscut and found gas in it,
which he brushed out and tamped a shot. He went back to the other
side and fired the shot that he had first tamped, after which he
returned to the crosscut and in an attempt to fire that shot with his
open lamp there was an explosion caused by the accumulation of gas,
which severely injured him. He knew that the gas was feeding in
there, but did not know that it was coming in so rapidly. Barnes
brought an action for damages because of his injury. The State
mine inspector testified that under the law 200 cubic feet of air
jier minute was required to be circulated in all working places in
the mine. In the evidence for the employer it was claimed that it
was not practical to provide 200 cubic feet of air each minute in the
crosscuts. There was a judgment in favor of Barnes, and the com
pany appealed to the supreme court, which affirmed the low^er court,
declaring that the lower court had properly submitted the issue of
negligence, on the part of the company, and assumption of risk, on
the part of Barnes, to the jury. Judge Hart, speaking for the court
on the question of compliance with the statute, said:
The testimony on the part of the defendant itself tended to show
that the latter section of the statute had not been complied with.
Counsel seek to justify the neglect on the ground that it was not
practical to comply with the statute. This is a matter that addresses
itself to the legislature, and does not furnish a defense to an action
for negligence based on a noncompliance with the statute.
E
m plo yers’
c h in e r y —
N
L
ia b il it y —
e g l ig e n c e —
S afe P
lace—
G uards
for
D
angerous
Standard Portland Cement Go.
v.
M a
Foley ,
124
TEXT AND SUMMARIES OF DECISIONS.
United States Circuit Court of Appeals («January 27,1921), 270 F ed
eral Reporter 203,—Foley was employed as an electrician by the
cement company at its cement plant in Alabama, in which was a
large electrically driven crane. It became necessary for Foley to get
upon a very small platform to examine and, if necessary, repair the
motor which ran the crane. A revolving shaft upon which was a
collar with a projecting set screw was in close proximity to the motor.
While making repairs to the motor in the restricted space of the
platform Foley’s right arm was caught by the set screw and wound
around the shaft arid severely injured. He brought suit for damages
for personal injuries and recovered a judgment. The employer ap
pealed but the decision was affirmed. The opinion in part is as fol
lows :
This action is based upon the employers’ liability act of Alabama,
which provides in substance that, when a personal injury is received
by an employee, the employer is liable as if the employee were a
stranger, if the injury is caused by a defect in the condition of the
ways, works, machinery, or plant of il\e employer. (Sec. 3910, Civil
Code of Alabama of 1907.) The projecting set screw was the defect
plaintiff relied on at the trial.
Error is assigned upon the refusal of the court to direct a verdict
for defendant. To sustain this assignment it is argued that a pro
jecting set screw is not a defect, but that it merely enhances the risk
of injury in an employment that is inherently dangerous. While
this view seems to prevail in some jurisdictions, it has been rejected
by the Supreme Court of Alabama, which, in construing the act above
cited, has held that it can not be asserted as a matter of law that an
employer is not liable for injury to an employee caused by a projecting
set screw on a revolving shaft, and the question of liability of the
employer was properly left to the jury. (Prattville Cotton Mills Co.
v. McKinney, 178 Ala. 554, 59 So. 498.)
The trial court allowed the jury to determine whether the pro
jecting set screw constituted a defect. The place of work provided
for plaintiff was dangerous at best. The platform was small, a goodly
portion of it was taken up by the tool box, and the breaker coil,
heavily charged with electricity, further contracted the space avail
able. It appears to us that there was evidence to support the verdict
that it was negligence on the part of the defendant to leave the set
screw exposed and projecting at this point.
It is further contended that defendant was entitled to a peremptory
instruction in its favor, because plaintiff failed to show that he had
exercised reasonable care to discover the defect complained of. Plain
tiff had the right to rely upon defendant to furnish him a safe place
to work, and was under no duty to make an investigation.
E m p l o y e r s’ L ia b il it y — S a f e P
S t a n d a r d — A s s u m e d R i s k s —Ross v .
lace
— S caffold — S ta tu to r y
Delaware, L. & W. R y Co.,
Court of A ppeals of New Y ork {M ay 31,1921), 132 Northeastern R e
porter, page 108 .—Stanley Ross was an employee of the defendant
e m p l o y e e s ' l ia b il it y .
125
company and was assisting in the construction of a coal trestle. It
was necessary that he work about sixteen feet above the ground on
planks laid as a temporary flooring upon several crossbeams. While
he was carrying a heavy beam, one of the planks fell. For the in
juries that resulted he sought to recover damages. At the trial the
court, in its instruction to the jury, charged that the planks did not
constitute a scaffold, and that section 18 of the labor law did not
apply, with the result that the jury found a verdict for the defendant.
The plaintiff appealed to the court of appeals, which held the charge
erroneous and granted a new trial. The court declared that the
planks constituted a scaffold, as they were temporarily laid for a
temporary object and raised the workmen high above the ground.
Continuing, the court said that the planks being considered a scaffold,
section 18 of the labor law applied. Under this section the master
is no longer permitted to delegate the duty of construction, as he is
responsible, no matter who does the actual work, and “ it requires
that scaffold to be so safe as to give proper protection to the workmen
engaged in their duty” and “ however careful the master, he is re
sponsible unless the scaffold is, in fact, a proper one—proper to pro
tect the workman in his work.” The principle of assumed risk would
not be applicable, as the structure is held to be a.scaffold.
E m p l o y e e s ’ L ia b il it y — S a f e P l a c e — W a r n l n g — I n ju r y fr o m
.D e f e c t i v e W a t e r G a u g e —N aylor v . H olland-St. Louis Sugar Go.
et-al.) A ppellate Court of Indiana , D ivision No. 1 (March 1 /, 1921),
ISO Northeastern R eporter , page 152.— Naylor was employed b y the
Holland-St. Louis Sugar Co., which was having constructed a large
beet sugar factory. The factory was to have a row of steam boilers
on its first floor. The Larrowe Construction Co. (also designated as
the Engineering Co.), which was building the factory, sublet the con
tract for installing the boilers to McNaul Boiler Manufacturing Co.
The Holland-St. Louis Co. also agreed with the Engineering Co. to
have the latter install a coal conveyor along the boilers, and as part of
its agreement the Sugar Co. supplied Naylor to the Engineering Co.
to act as its superintendent. The boilers which had been installed had
defective and unguarded water gauges, and this was known to the
defendants. Without warning, Naylor was sent to work on the con
veyor about the boilers when a hydrostatic test of said boilers was
being made. One of the water gauges burst and a piece of glass was
thrown into Naylor’s right eye, destroying its sight. Naylor brought
suit for damages* against the Sugar Co. and the Engineering Co.,
but failed to recover. He appealed and the judgment was affirmed as
to the Sugar Co. because he was not its employee at the time of the
126
TEXT AND SUMMARIES OF DECISIONS.
injury, but was reversed as to the Engineering Co. The opinion is in
part as follows:
The negligence charged in the complaint against appellee Engineer
ing Co. is that it assigned appellant, its employee, to work in close
proximity to the defective water gauges, well knowing the danger, and
knowing that appellant was ignorant of such danger. The complaint
also charged negligence on the part of the McNaul Boiler Manufactur
ing Co. in putting in the water gauges. It is apparent from the record
that, in holding the complaint insufficient as against the Engineering
Co., the theory of the trial court was that the averments of the com
plaint showed the proximate cause of appellant’s injuries to have been
the said negligence of the McNaul Boiler Manufacturing Co. In this
the court was in error. Even though the McNaul Boiler Manufactur
ing Co., an independent contractor, had been negligent in putting in
the water gauges, such fact would not relieve the Engineering Co.
from liability to its employee whom, without warning, it had assigned
to the dangerous place of work when it knew of the dangers, and knew
that its employee was ignorant thereof, as is alleged in the complaint.
The judgment is affirmed as to appellee Holland-St. Louis Sugar
Co., but, as to appellee Engineering Co. the judgment is reversed, with
instructions to overrule the separate demurrer of said company to
the complaint, and for further proceedings not inconsistent with this
opinion. Costs taxed against appellee Engineering Co.
E m p l o y e r s’ L ia b il it y — S e a m a n — S a f e A
S e r v a n t George Leary Construction Co
—
p p l ia n c e s
— F
e l l o w
. v. Matson , United States
Circuit Court of Appeals , Fourth Circuit (February i, 1921), 272 Fed
eral Reporter , page 461.—Charles Matson was an employee of the
appellant company. He was one of a number of men working on
a scow under the direction of Martin, a foreman. The scow was
equipped with a mast, boom, and engine. At the time of the injury
the men were engaged in placing pile-driver leads in a permanent
position at the forward end of the scow. To do this it was necessary
to use certain pieces of timber. The planks selected could not stand
the strain and broke, injuring Matson. By sufficient care in selec
tion, pieces could have been found adequate to stand the strain.
Matson brought an action for personal damages and was awarded
judgment. The construction company appealed but the circuit
court affirmed the district court, stating:
Under Federal statutes, Martin was not a fellow servant of Matson, but a representative of the master. Revised Statutes, section
3 (Comp. Stats., section 3), gives this general definition:
“The word 4vessel ’ includes every * * * water craft or other
artificial contrivance used, or capable of being used, as a means of
transportation on water.”
Under title 53, section 4612, Revised Statutes, as amended by act
o f December 21, 1898, c. 28, section 23 (Comp. Stats., section 8392),
the statutory definition of “ vessels ” and “ seamen ” are as follow s:
EMPLOYERS9 LIABILITY.
127
“ In the construction of this title, every person having the com
mand of any vessel belonging to any citizen of the United States
shall be deemed to be the 4master5 thereof ; and every person (ap
prentices excepted) who shall be employed or engaged to serve in
any capacity on board the same shall be deemed and taken to be a
‘seaman’; and the term ‘vessel’ shall be understood to comprehend
every description of vessel navigating on any sea or channel, lake
or river, to which the provisions of this title may be applicable, and
the term ‘owner’ shall be taken and understood to comprehend all
the several persons, if more than one, to whom the vessel shall be
long.”
Under these definitions, “ scows ” and “ pile drivers ” are “ vessels ”
and Matson was a “ seaman.”
By act March 15, 1915, c. 153, paragraph 20 (Comp. Stats., sec
tion 8337a), it is provided:
“ In any suit to recover damages for injuries sustained on board
vessel or in its service seamen having command shall not be held
to be fellow servants with those under their authority.”
Martin was a seaman having direct command of the work in hand
and of the men performing it. Matson was a seaman under his au
thority. Martin was therefore not a fellow servant of Matson, but
a representative of the owmer of the vessel.
For an injury due to accident, or to the mere negligence of the
master of the vessel in giving orders, even if he be regarded as the
representative of the owner, a seaman has been held not to be entitled
to recover indemnity, but only for maintenance and cure. (The
Qsecola, 189 U. S. 158-175, 23 Sup. Ct. 483.) And it may be this
rule is unaffected by section 20 of the seamen’s act above quoted,
as was held in Chelentis v. Luckenbach S. C. Co., 243 Fed. 536, 156
C. C. A. 234, and John A. Boebling’s Sons Co. v. Erickson (C. C. A.),
261 Fed. 986, and intimated in Chelentis v. Luckenbach, 247 U. S.
372, 38 Sup. Ct. 501 [Bui. No. 258, p . 139]. But -since under the
statute the master of the vessel, or seaman in command, is not a
fellow servant of those under his authority, his selection and supply
of the appliance and appurtenances used for the service on the ship
under his direction is the selection and supply of the owner, and for
injury to a seaman due to negligence in such selection and supply
the owner is liable for full indemnity for the injury. (The Baron
Napier (4th Circuit), 249 Fed. 126, 161 C. C. A. 178; The Colusa,
248 Fed. 21, 160 C. C. A. 161.)
or
E m plo ym ent
C h il d r e n — C o n s t it u t io n a l it y o f S t a t u t e —
T a x a t io n a s M e t h o d o f B e g u l a t io n — S t a t e a n d F e d e r a l P o w e r s—
George v. Bailey , United States District Court, Western District of
North Carolina ( A ug . 22, 1921), 274 Federal Reporter, page 639.—
Congress attempted to meet the objections raised in the decision of
the Supreme Court in the case of Hammer v. Dagenhart (Bui. No. 258,
p. 96) by placing a tax of 10 per cent on the net income derived from
the operation of establishments employing child labor contrary to
the provision of the statute. Suit was brought for an injunction to
128
TEXT AND Sim M A M ES OF DECISIONS.
restrain the collection of the tax. A temporary restraining order
was granted and later it was made permanent, on the ground that the
law was unconstitutional. The opinion of the court rendered by
District Judge Boyd is in part as follows:
The question which suggests itself in the outset is whether the
last act is intended to raise revenue. It will scarcely be insisted that
such is its object. It is more reasonable to conclude that the purpose
of the tax feature is to impose a penalty in order to deter the viola
tion of the child labor provision. It would be a rather nonproduc
tive revenue system which imposed taxes, the effect of which would
be to annihilate the subject of taxation, or to prohibit the exercise of
the privilege for which the tax is levied.
Upon consideration of the prime question in this case and the
authorities bearing upon it, the conclusion seems to be irresistible that
the National Legislature can not do indirectly that which it is for
bidden by the Constitution to do directly ; and it being definitely
determined by the highest court of the land that the right to regulate
labor is inherent in the States, then Congress can not intervene to
control it, either by way of interstate commerce, efforts to levy taxes,
or by any other method.
In the presentation of this case counsel for the defendant moved
to dismiss complainant’s bill, relying upon section 3224 of the Revised
Statutes (Comp. SU, sec. 5947), which is in the following language:
u No suit for the purpose of restraining the assessment or collection
of any tax shall be maintained in any court.”
It is insisted that this statute renders the courts powerless to in
tervene where the Government is proceeding under assessments to
collect taxes, no matter whether the tax is legal or illegal, wellfounded or erroneous, constitutional or unconstitutional. I f this
position can be maintained, then Congress, under the guise of raising
revenue by taxation, can overcome all constitutional barriers.
The conclusion is that the defendants’ motion to dismiss for the
want of jurisdiction should be denied; that in passing the act in
question Congress exceeded the powers delegated to the United
States by the Constitution; that the assessment against the com
plainant is unwarranted, and is not a tax such as contemplated by
law to raise revenue, but may be termed a penalty to prevent the
violation of the provisions of the act, which could not be enforced by
assessment and warrant of distraint, even if the act was valid; that
he is entitled to the relief prayed for in this bill; and that the tem
porary restraint heretofore granted should be made permanent.
H
K
ours
ansas
o f L a b o r — W a g e s— R e g u l a t io n — C o n s t it u t io n a l it y o f
S t a t u t e — Court of Industrial Rotations v . Chas, Wolff
Packing Co ., Supreme Court of Kcmsas ( October 8,1921) , 201 Pacific
R eporter , page 1^18*—The court of industrial relations ordered the
Chas. Wolff Packing Co. to establish certain hours of labor and to
put into effect a prescribed scale of wages, which they refused to do.
The plaintiff brought original proceedings in the Supreme Court of
Kansas to compel the defendant company to comply with its orders.
The company answered the proceedings and presented a number of
HOURS OF LABOR.
129
questions of law. The plaintiff stated that the company did not
show a good defense in law. On the plaintiff’s request that the ques
tions of law be disposed of in advance of the final hearing, this pro
cedure was followed by a decision in favor of the plaintiff. On the
question of the authority of the plaintiff to sue in its own name and
prosecute actions in the supreme court, that court said:
The industrial court law is a remedial statute, and should be liber
ally construed to promote its object. A liberal construction is that
the statute gives to the court authority to prosecute in its own name
actions of this character. The statute expressly authorizes the court
of industrial relations to bring proper proceedings to compel com
pliance with its orders. Mandamus is a proper proceeding, and the
court can bring it. The industrial court is not directly interested in
the result of this action; the State is the party that is interested, but
the State has authorized the court to bring the action. This is at
least one of the ways in which it may be brought.
The contention was made that proceedings could only be brought
by the party injured. The decision stated that the action was not
brought to compel the payment of definite wages to certain employees,
but to compel the company to obey an order of the plaintiff fixing a
scale of wages and establishing hours of labor. The defendant in
sisted that the orders of the plaintiff were not effective until approved
by the supreme court, but it was held otherwise. The supreme court
in deciding on the constitutional questions involved said:
The defendant contends that the industrial court law and the
orders sought to be enforced in this action violate the fourteenth
amendment of the Constitution of the United States, in that the law
and the orders made thereunder deprive the defendant of its liberty
and property without due process of law, and deny to it the equal
protection of the laws. To support this contention the defendant
argues that employees can not be governed by the orders of the in
dustrial court; that the wages of the defendant’s employees are not
affected with a public interest so as to subject such wages to regulation
by the State; that the law and orders made by the industrial court
deprive the defendant and its employees of the freedom of contract
concerning wages; and that the classification of the businesses to
which the law applies is arbitrary and unjust. These matters will be
discussed in the order named.
The statute must be construed so as to uphold its validity, if
possible.
The basis of the contention that the defendant’s employees can not
be governed by the industrial court is that those employees can not
be compelled to work for the wages fixed, while the defendant is com
pelled to operate its plant and to pay those wages.
The defendant is not, by the law, compelled to operate its plant
at a loss, nor is it prohibited from changing its business, nor from
quitting the business, if it desires to do either of these things in
good faith, not intending thereby to violate any provision of the act.
The authorities lead to this conclusion that public utilities can be
compelled to operate but not at a loss. Control of public service
TEXT AND SUMMARIES OF DECISIONS.
ISO
corporations is justified by the fact that they are affected with a
public interest. The defendant is operating a packing plant. It is
not a public service corporation, but the legislature has declared that
its business is effected with a public interest, and for that reason has
assumed to exercise control over it.
If the defendant is conducting a business that is affected with a
public interest, it ought to be subject to legislative control the same
as if it were conducting a waterworks system, an electric-light plant,
or a railroad. When the defendant’s business became affected with a
public interest, the public had the right to say something about the
manner in which it should be conducted.
The question argued is not that the business of the defendant is
not affected with a public interest, but is that the wages of the de
fendant’s employees is not affected with a public interest. The State
may control the rates to be charged by those who are engaged in a
business affected with a public interest. Wages is one of the largest
factors that go to make up the expense of conducting a business, and
must be considered in determining what the rate shall be. In many
instances wages can not be increased unless rates or charges are in
creased, and in many instances rates or charges can not be decreased
unless wages are decreased. In all business enterprises affected with
a public interest rates or charges and wages are so bound together
that they can not be separated. Rates can not be completely con
trolled unless wages are controlled, and wages can not be controlled
unless charges are controlled.
The compensation paid to workingmen for their labor is the most
fruitful cause of industrial unrest and of the conditions produced
thereby. The State is not powerless to regulate the wages to be paid
for labor in those enterprises without the continuance of which the
people must suffer. Hours of labor have been the subject of legisla
tive action, and a number of laws fixing hours of labor have been
upheld.
Laws fixing minimum w^ages and hours of labor for women are
justified on moral and physical grounds; law-s fixing wages for men
may be justified on similar, although not the same, ground. Sex is a
proper basis for classification of the subjects of this kind of legisla
tion, but it does not answer constitutional-objections. The dangers to
a man while working should be reduced to a minimum; the condi
tions under which he labors, so far as possible should be conducive to
health and comfort. Intensive work of either mind or body, or both,
should not be continued beyond his powers. A laboring man with a
family, for honest work, should receive wages sufficient to enable him
to feed, clothe, and shelter his family and educate his children. If
the wages received by him are not sufficient to do these things, he
becomes discontented, and the evil consequences that flow from such
discontent may follow. The State should—it does—have power to
protect laboring men to the same extent that it protects working
women.
In 1916 a general strike of railroad employees in the United States
was threatened. To avoid that strike Congress passed the Adamson
Law (U. S. Comp. St., secs. 8680a-8680d) which fixed 8 hours as a
day’s work, and fixed the wages that should be paid at not less than
the then standard per day and a pro rata wage for overtime. That
law was upheld in Wilson v. New, 243 U. S. 332, 37 Sup. Ct. 298
HOLRS OF LABOR.
131
[Bui. No. 224, p. 144], ^here the court declared that Congress had
authority to pass the law under the commerce clause of the Consti
tution. If under the commerce clause of the Federal Constitution
Congress can regulate wages and hours of labor of those working on
railroads, the State under the police power should be able to regu
late the wages and hours of labor of those working in a packing
jflant operating wholly within the State. The powers of Congress
under the commerce clause of the Constitution are no greater than
the authority of the State under the police power. Congress is
controlled by the fifth amendment to the Constitution, which pro
vides that no person shall be deprived of life, liberty, or property
without due process of law, while the State is bound by the four
teenth amendment, which provides that no State shall deprive any
person of life, liberty, or property without due process of law. Con
gress in it's entire field of legislation must be obedient to the fifth
amendment the same as the States in their field of legislation must
be obedient to the fourteenth amendment to the Federal Consti
tution.
Legislation to meet emergencies arising in the State similar to
those arising in the Nation ought’to be upheld for reasons the same
or similar to those given in Wilson v. New. The duty of the Federal
Government to protect from suffering the people of the Nation is no
more binding than that of the government of the State to protect its
people from suffering. If the Adamson law was compelled by an
emergency, the Kansas industrial court law was likewise compelled
by an emergency. The purpose of the latter law is to meet such
emergencies as will prevent a suspension or interference with the
operation of the several kinds of business named in that law. This
purpose is revealed by the entire act.
A part of the subject that has just been discussed and inseparably
connected with it is the defendant’s contention that the law deprives
employers and employees of the freedom of contract concerning
wages. Practically every law regulating the conduct of men restricts
their freedom of action, and practically every law regulating business
affected with a public interest restricts the freedom of contract.
Every law that has been passed regulating wages or the hours of
labor has been a law restricting the freedom of contract. A large
number of these have been upheld, and they must continue to be
upheld if the State is to perform its governmental functions and
prevent violence caused by controversies between employers and
employees over these questions. If the State can make regulations
for the government of a business affected with a public interest, it
ought to be able to extend that regulation to the wages paid to the
employees of that business. The flow of food supply from producer
to consumer should not be stopped by conditions produced by indus
trial unrest arising out of wage problems. If that flow is threatened
and the State under its police power can remove the danger, that
should be done. That and that alone the Kansas industrial court law
attempts to do.
The legislature had power to enact the industrial court law and
to make it apply to the classes of business named therein, without
including any other class.
101296°—-22-----10
182
TEXT AND m m & A M m OF DECISIONS.
H ours of L abor— W oMEN^MANUFACTutfiNG and M ech a n ica l E s -
TABLmHMENm--M®wslAF®aE C cm TA ^r^State v. Crmmse , Buprenm
Court o f Nebraska (February 10,1981), 181 N orthwestern Reporter,
page 562 .—In Nebraska there is a law prohibiting the employment
of women (Laws 1919,. Oh. 190) in any manufacturing, mechanical,
or mercantile establishment for more than 9 hours a day, or in the
nighttime after 10 p. m. Crounse was superintendent of the World
Publishing Co., which was engaged in publishing a daily and
Sunday newspaper. He required eight women who were employed in
the mailing room to work after 10 p. m. and before 6 a. m. He was
charged with the violation of the act above mentioned, but the pros
ecution was dismissed by the district court on the ground that the
publishing company, not being a manufacturing, mechanical, or mer
cantile establishment, did not come within the provisions of the law.
The county attorney took exception to this decision. The supreme
court in affirming the decision of the lower court said in part:
The courts are not in entire accord on the question of whether or
not such a publishing company is a manufacturing establishment
within the commonly understood meaning of that term.
The work which characterizes the business of publishing a news
paper is the gathering and disseminating of news, the furnishing to
subscribers of various kinds of information, the carrying of adver
tisements, and the writing of editorials and articles on matters of
public interest. Machinery and mechanical labor are indispensable,
but are only incidental to the carrying on of the main purpose of
the business. A newspaper is the product of intellectual effort, not
of mechanical labor.
A#newspaper publishing house not being, then, a manufacturing
establishment, can it be said to be a mechanical establishment within
the purview of the law ?
The statute is not directed specifically at mechanical labor wher
ever the same may be performed, but at all labor performed by
women in those institutions only which are to be classed as mechan
ical establishments. For the general purpose of the law, it was
evidently deemed best by the lawmakers to describe in what estab
lishments female labor should be regulated, rather than to attempt to
regulate certain kinds of labor in all establishments. Almost all
business establishments employ some mechanical element in their
operations. The mere fact that machinery or mechanical appliances,
or mechanical or manual labor, is used, or found to be employed, does
not necessarily characterize the establishment as a mechanical estab
lishment.
What has been said with regard to manufacturing has also some
bearing in the interpretation of the word u mechanical,” as applied
to establishments. A newspaper can not be said to be the product
of mechanical effort any more than it can be said to be a manufac
tured article, nor can it be said that a newspaper publishing house,
taken as an entirety, is a mechanical establishment within the mean
ing of the law.
HOURS OF SERVICE*
133
It is our opinion, therefore, that a newspaper publishing house, such
as the one here before us, is not one of the institutions where the leg
islature intended to regulate the hours of employment of women.
H o u r s o f S e r v i c e — R a il r o a d s — T e l e g r a p h O f f i c e s C o n t i n u o u s l y
N
O
— M
— United States v .
Cornwall db L . R . Co., United States D istrict Court for Pennsyl
vania (November 29, 1920 ), 268 Federal Reporter , page 680.—'The
O pera ted — D a y
and
ig h t
f f ic e s
e a l t im e
United States brought suit against the Cornwall & Lebanon Rail
road Co. for the violation of the federal “ hours of service” act of
March 4,1907 (Comp. St., sec. 8678) which provides in part:
That no operator, train dispatcher, or other employee who by the
use of the telegraph or telephone dispatches, reports, transmits, re
ceives, or delivers orders pertaining to or affecting train movements
shall be required or permitted to be or remain on duty for a longer
period than nine hours in any twenty-four-hour period in all towers,
offices, places, and stations continuously operated night and day, nor
for a longer period than thirteen hours in all towers, offices, places,
and stations operated only during the daytime.
The railroad company operated a telegraph office in Lebanon, Pa.
The hours during which it remained open were from 6 a. m. to 9 p. m.
in winter, and from 6 a. m. to 10.30 p. m. in summer. Killinger, one
of the telegraphers, was required to remain on duty from 6 a. m. to 5
p. m., a period of 11 hours, when he was succeeded by another oper
ator who worked until closing time. In holding that this was a vio
lation of the law the court said in part:
The sole question presented as to Killinger, therefore, is whether
he was employed in a “ daytime ” office or a “ day and night ” office.
In determining the question, the nature and purpose of the act must
be borne in mind. In interpreting the proviso, it must be given such
reasonable, sensible construction as will promote its beneficial pur
pose, and effect the intention of the Congress that enacted it.
It is reasonable to suppose that Congress intended in general to
include in the “ daytime ” class such offices as had the lighter business,
which could be readily handled by one operator, and to include in the
“ night and day ” class those offices which had such amount of busi
ness as would require several operators, in which case only would it
be practical to have a 9-hour limit. Therefore, in the former class the
13-hour period was allowed; in the latter, only a 9-hour period.
In the case of Killinger, his hours were from 6 a. m. until 5 p. m., or
11 hours, when he was succeeded by another operator, who served
from 5. p. m. until 9 p. m. or 10.30 p. m. The office itself was open
15 hours in winter and 16J hours in summer. It was not such an
office as was contemplated by Congress in the term “ operated only
during the daytime,” and the Government’s contention is conse
quently correct, that defendant violated the act in requiring Killinger
to remain on duty more than 9 hours.
In the last five counts the railroad company was charged with the
violation of that part of the law that prohibits the employment of
134
TEXT AND SUMMARIES OF DECISIONS.
a telegrapher for more than 13 hours in a 24-hour period in a “ day
time ” office. The company required Garman, its telegraph operator
at Bellaire, Pa., to remain on duty from 6.40 a. m. to 9 p. m., a
total period of 14 hours and 20 minutes. Of that period the office
was temporarily closed 50 minutes in the morning, and 30 and 40
minutes at noon and in the evening, respectively, when Garman got
his meals. The railroad company contended that these periods
should be deducted from the total hours of service. The court, how
ever, refused to allow this deduction, saying in part:
It is contended by defendant that, if the period of 30 or 40 minutes
for meals at noon and in the evening be deducted, together with a50-minute period in the morning, it would bring the time Garman
was on duty within the 13 hours. This presents a question, there
fore, not arising in the case of Killinger, viz: Is a respite granted
the operator during the period for meals to be deducted from his
hours of duty? In the Atchison case the Supreme Court said: “ A
trifling interruption would not be considered.” (220 U. S. 37, 31
Sup. Ct. 362.) It has been practically held, in the cases to which
reference has already been made, that the defendant can not break
th& continuity of working hours by closing the office for small periods
of 30 or 40 minutes during the day, and in this manner avoid the
statute. (U. S. v. St. Louis Southwestern Railway Co. of Texas
(D. C.), 189 Fed. 954.)
The statute was intended to promote the safety of employees and
the traveling public by affording sufficient time for recreation and
rest, so that small periods during their hours of duty for meals would
not offer any opportunity for rest as contemplated. Such intermis
sion must be counted as a part of the continuous service. Brief
periods allowed for meals should not be deducted from the time of
service; they are “ trifling interruptions,” in the language used by
the Supreme Court in the Atchison case. It follows that Garman
remained on duty more than 13 hours in a 24-hour period, in viola
tion of that statute.
Defendant must accordingly be found guilty upon each of the 11
counts. In none of the cases does the violation appear aggravated;
hence judgment will be entered against defendant for the minimum
fine of $100 on each of the counts, being a total of $1,100. Defendant
to pay the costs.
S
— R
— T
O
— “ On
— United States v. New Y ork, N . H. and H . R. Go ., United
States Circuit Court of A ppeals, F irst Circuit (June 29, 1921), 274
Federal Reporter, page 321 .—Charles W. Crane was employed by
H ours
of
e r v ic e
a il r o a d s
eleg ra ph
pera to rs
D u t y ”
the defendant company as a telegraph operator at its station at
Marlboro Junction, in the State of Massachusetts. He was paid for
12 hours’ service out of 24-hour periods, but was actually on duty
between 5 and 7 hours. His hours were 4 p. m. to 4 a. m., but he was
relieved several times during the night by the train dispatcher, and
135
HOUSING.
during these periods of relief he could go and come as he pleased, as
he was not subject to any call. The United States brought an action
against the employer to recover penalties provided for violations of
the Federal hours of service act of March 4,1907 (see case above).
The district court found in part as follows :
That the release periods allowed to the operator should be de
ducted from his total hours of service, and that when he was re
leased for a definite time by the train dispatcher he was not “ on
duty.”
An appeal was taken to the circuit court of appeals, which affirmed
the judgment of the district court. Judge Johnson, in the course of
the opinion, said:
The controlling purpose of Congress in the enactment of this
statute was the protection of the lives of the traveling public, by
preventing the employment of men charged with responsible duties
as to movements of trains by telegraph or telephone for so long a
time as to render them incapable of performing their duties effi
ciently.
The act applies to all stations “ continuously operated night and
day” and provides that a telegraph operator shall not “ be required
or permitted to be or remain on duty for a longer period than nine
hours in any twenty-four hour period” in such stations except in
case of emergency.
The Supreme Court of the United States having decided that the
9 hours of service in 24 in which a telegraph operator is employed
need not be continuous, but that the aggregate of his employment
within the 24-hour period determines whether he has been employed
more than 9 hours in contravention of the act, the test which has
since been applied by the courts in the construction of this act has
been whether the release periods were of such substantial length and
at such a time as to afford rest and release from the strain of labor.
In the present case the operator had three release periods, each of
them of more than an hour in length, and knew each day when he
came to work, as he testified, that he would receive these release
periods at substantially the same time and for the same duration as
on previous days. He was notified by the train dispatcher at the
close of each period of actual service when he might leave and when
he should return to his post and during these intervals he was free
to employ himself as he saw fit.
H o u s in g — R e g u l a t io n
or
R e n t s — C o n s t it u t io n a l it y
of
R ent
—Bloch v. H irsh , United States Supreme
Court (A p ril 18 , 1921) , 41 Supreme Court Reporter , page 458 .—
L a w — P u b l ic
I n terest
Julius Block was in possession of a house in the city of Washington,
D. C., under a lease. Before the expiration of the term of the lease
Hirsh bought the house and gave Block notice to vacate when the
lease expired. Upon the expiration of the lease Block refused to sur
136
TEXT AND SU M H A H IS OE DECISIONS.
render possession on the ground that under act of (Detober 22* lM 9f
chapter 80*. TitleII,...41:Stfcfe. 207, he was notrequired tifcd&so> The
act cited was passed to relieve employees of the Federal Government
from excessive rentals for homes* and provided that tenants of dwell
ings could not be ejected for refusal to pay increased rentals* nor,
when a lease under which they have been holding possession expired,
could they be required to either vacate or pay a higher rental. Hirsh
sued for possession* and Block set up the law as a defense. The Court
of Appeals of the District of Columbia declared the law unconstitu
tional, and the case was brought to the United States Supreme Court
cm an application for a writ of error. In reversing the decision of
the District of Columbia court, and declaring the law constitutional,
Mr. Justice Holmes, delivering the opinion of the court, said in part;
The question is whether the statute is constitutional or, as held by
the Court of Appeals* an attempt to authorize the taking of property
not for public use and without due process of law, and for this and
other reasons void.
No doubt it is true that a legislative declaration of facts that are
material only as the ground for enacting a rule of law, for instance,
that a certain use is a public one, may not be held conclusive by the
courts. But a declaration by a legislature concerning public condi
tions that by necessity and duty it must know, is entitled at least to
great respect. In this instance Congress stated a publicly notorious
and almost world-wide fact. That the emergency declared by the
statute did exist must be assumed, and the question is whether Conress was incompetent to meet it in the way in which it has been met
y most of the civilized countries of the world.
The general proposition to be maintained is that circumstances Rave
clothed the letting of buildings in the District of Columbia with a
public interest great as to justify regulation by law. Plainly cir
cumstances may so change in time or so differ in space as to clothe
with such an interest what at other times or in other places would be
a matter of purely private concern.
Decisions sustaining laws regulating the construction, etc., of
buildings were noted, and the court continued:
But if to answer one need the legislature may limit height to answer
another it may limit rent. We do not perceive any reason for deny
ing the justification held good in the foregoing eases to a law limit
ing the property rights now in question if the public exigency requires
that. The reasons are of a different nature, but they certainly are
not less pressing. Congress has stated the unquestionable embarrass
ment of Government and danger to the public health in the existing
condition of things; The space in Washington is necessarily monopo
lized in comparatively few hands* and letting portions of it is as much
a business m any other. Housing is a necessary of life. All the ele
ments of a public interest justifying some degree of public control
are present. The only matter that seems to us open to debate is
whether the statute goes too far. For just as there comes a point at
which the police power ceases and leaves only that of eminent domain,
f
INSURANCE OF EMPLOYEES.
137
it may be conceded that regulations of the present sort pressed to a
certain height might amount to a taking without due process of law.
Noting that the act was of only temporary effect, and that pro
vision was made to secure to the landlord a reasonable rent, the act
was sustained.
There was a vigorous dissenting opinion by Mr. Justice McKenna,
concurred in by three others, claiming that the act was in violation of
the fifth amendment. This forbids the enactment by Congress of any
law depriving of life, liberty, or property without due process, or
taking private property for public use without just compensation.
I n su ra n ce
of
E m plo yees— P o w er
of
M u n ic ip a l it ie s — -L if e
I n
—People ex rel . Terbush and Pow ell {Inc.) v . D ibble, C ity
Com ptroller, Supreme Court of New York, Special Term {February
19, 1921), 189 New Y ork Supplem ent, page 29.—The city of Sche
suran ce
nectady, N. Y., by an ordinance authorized and directed its mayor
to enter into a contract for group life insurance, insuring the lives
of city officers and employees other than those whose salaries were
fixed by law. A policy had been issued to the city, under the terms
of which one death claim had been paid. The comptroller refused
to pay the premium, claiming that the city had no authority in law
to make such a contract of insurance. A writ of mandamus was
sued for against the comptroller to compel the payment of the
premiums due.
The application for a mandamus was denied, Judge Borst stating
the reasons as follows:
A search for authority conferred by the legislature does not reveal
any enactment granting power, express or implied, within the ac
cepted provisions of law laid down by Mr. Dillon, authorizing the
taking of the policy in question by the city and incurring liability
therefor. The workmen’s compensation law (Consol. Laws, c. 67)
does not authorize it, for that insurance only relates to hazardous
employments, while the employees [are] actually engaged in the serv
ice of the employer, while the insurance in question is general life and
permanent disability insurance to the employee, insuring him against
loss from death or such disability, irrespective of whether such death
or disability occurred from any act in the course of his employment.
Neither in the charter of second-class cities nor in General City
Law (Consol. Laws, c. 21), art. 2-a, added by chapter 247, Laws of
1913, known as the home-rule law, can be found any provision
authorizing the power claimed on the part of the city to take the in
surance in question. This insurance has no relation to the public
health, public morals, nor the public safety, nor any of the other ob
jects which come within the scope of the city’s power. Attention is
called to the granting of pensions to city employees, but it will be
noted that in such cases the action of the city authorities is provided
for by legislative enactment.
138
L abo r
TEXT AND SUMMARIES OF DECISIONS.
O r g a n iz a t io n s — B o y c o t t — C o n s p ir a c y — C l o s e d - S h o p
—Brescia Const. Co. v . Stone
Masons ’ Contractors ’ Association et al., Supreme Court of New Y ork ,.
Appellate D ivision {March 1921), 187 New Y ork Supplem ent ,
page 77.— The plaintiff is a company almost entirely owned by Bres
A g r e e m e n t — M o n o po ly— I n ju n c t io n
cia, and is engaged in the business of doing stone and brick construc
tion work. The defendants are an association of employers who are
also engaged in a contracting construction business in stone and
brick, known as the Stone Masons" Contractors’ Association, and
various labor unions, composed of members who are engaged in brick
laying and stone masonry work. The defendant employers’ associa
tion had an agreement with the defendant union whereby the em
ployers undertook, to employ none but union labor on their jobs, and
the unions agreed to refuse to permit any of their members to work
for contractors who were not members of the association or who were
not in good standing. Brescia had been a member of the employers’
association, but owing to a difference of opinion on the subject of
dues he was expelled. The William Phelan Realty Co. had under
way a building project in the Bronx and contracted with Brescia for
the construction of the stone and mason work of the foundations.
After Brescia got started with this work the employers’ association
brought pressure to bear oh the unions to compel the latter to call off
the men working on Brescia’s job. Brescia got other men, but again
the unions called the men off the work. Brescia brought suit for
damages and for an injunction against all the parties. The defend
ants set up their agreement in defense, and the complaint was dis
missed upon the merits. The plaintiff appealed, and the decision was
reversed. In granting the injunction prayed for the court said in
part:
Assuming that Brescia was justly expelled by the Contractors’ As
sociation from its membership, its jurisdiction over him ceased with
his expulsion. The difference between him and that association did
not justify the means it adopted in depriving the plaintiff of its work
men and driving it out of business. It resorted to unlawful methods
in punishing the plaintiff because its, president may have offended
the officers of the association or refused to comply with its mandates.
The defendant Contractors’ Association being ivithout lawful war
rant to destroy plaintiff’s business, it follows that those who actually
aided and abetted it in effectuating these illegal acts are equally cul
pable with it.
The defendant unions, in acting as the tools or instrumentalities of
the Contractors’ Association for meting out punishment to the plain
tiff corporation, thus also became wrongdoers. As has been observed,
the labor unions had no grievance of their own against the plaintiff,
and yet they carried out the behests of the Contractors’ Association
to ruin the lawful occupation of the plaintiff. The acts of the com
bined associations were malicious, wanton interferences with the
LABOR ORGANIZATIONS.
139
rights of the plaintiff, which contravened the provisions of section
580 of the penal law (Consol. Laws, c. 40), which declared that:
“ If two or more persons conspire * * * 5. To prevent an
other from exercising a lawful trade or calling, or doing any other
lawful act by force, threats, intimidation, * * * each of them is
guilty of a misdemeanor.”
It seems to us clear that the provisions of the agreement between
the defendants which obligated the members of the union to work ex
clusively for members of the Stone Masons’ Contractors’ Association,
with the unimportant exception therein mentioned, as well as that
provision of the agreement which requires the members of the de
fendant unions not to do any work “ for or under any contractor,
builder, corporation or persons owing money to any member of the
Stone Masons’ Contractors’ Association, for work performed or ma
terials furnished,” are illegal and against public policy. The effect
of such a contract is to force by intimidation, threats, and coercive
measures one who is unwilling to become a,member of the Contrac
tors’ Association to join it, or, upon his failing so to do, to deprive
him of the labor which he may require and to interfere with his
pursuit of his lawful vocation; and in case any debt is claimed to be
due to any member of the Contractors’ Association, the agreement
contemplates that the labor unions will assist in collecting by
arbitrary and oppressive measures claims thus asserted. In other
words, instead of according alleged debtors the right to have their
disputes determined by the legal tribunals established for that pur
pose, the defendant associations have constituted themselves the
judges of the facts and the law and the agencies for enforcing their
unauthorized decrees. „
Another grave objection to the agreement is that it tends and is
calculated to create a virtual monopoly of the stone and mason
foundation work in the borough of the Bronx. Under the agree
ment the Stone Masons’ Contractors’ Association has it within its
power to throttle competition, to fix prices at excessive rates against
the welfare and interest of the community, to dictate terms, and to
assume practical control of all the foundation masonry work in its
district.
The vice of the agreement lies in this: That it is calculated not
only to be oppressive to nonunion workmen, but also to contractors
and builders who are not members of the Contractors’ Association.
The disagreement between the plaintiff’s president and the Contrac
tors’ Association furnished no legal justification for its acts of op
pression.
The judgment should therefore be reversed with costs, and judg
ment rendered in favor of the plaintiff for the injunctive relief de
manded in the complaint, and if a judgment for damages as prayed
for be desired, a reference will be ordered to compute the same, with
costs. Settle order on notice, reversing findings inconsistent with
this decision and containing new findings. All concur.
L abo r
w it h
{Inc.)
O r g a n iz a t io n s — B o y c o t t — C o n s p ir a c y — I n t e r f e r e n c e
Burgess Bros . Co .
v. Stew art et al ., Supreme Court of New Y ork , Trial Term %
I n terstate
C o m m er c e— I n ju n c t io n —
140
TEXT AND SUMMABIES OE DECISIONS.
K ing’s County (March 5, 19%1), 187 New Y ork Supplem ent, page
873.—The plaintiff company is a large exporter of lumber. It had
some difficulties with its union teamsters and lumber handlers, whose
unions demanded that it maintain a closed shop and employ no one
but members of the unions. This the company refused to do, but
stated that its employees could become members of the union if they
so desired. Being unsuccessful in securing their demands, the Team
sters’ Union and the Lumber Handlers’ Union then called on the In
ternational Longshoremen’s Union to cooperate. This union, which
is composed of the checkers, weighers, and handlers of %
freight em
ployed on the docks by the steamship companies, ordered its members
to refuse to handle any freight offered for shipment by the plaintiff
until it acceded to the demands of the Teamsters’ Union. The long
shoremen were so solidly organized that the plaintiff was unable to
ship any lumber. It therefore brought an action against the steam
ship companies that refused to handle its lumber and against the
union for an injunction. In granting the injunction the court said
in part :
The conditions prevailing in the port of New York at the time in
question were and are a matter of common knowledge. There was a
great shortage of labor, due to the then existing abnormal conditions.
Steamship owners were at the mercy of the labor unions, and they
felt, no doubt, that it was more profitable to tolerate, and, in fact,
to openly countenance, the unjust and illegal acts of the unions, than
to discharge those of their employees who refused to handle plain
tiff’s lumber.
It would be strange2indeed, if the law is so impotent as to furnish
no relief from a condition forced upon it, which, if continued must
inevitably bring financial ruin upon the plaintiff. Plaintiff has been
guilty of no wrongdoing, but is engaged in a lawful pursuit, The
plaintiff is not required to await the result of criminal proceedings,
and allow its business to be ruined in the meantime, but may proceed
by civil action to prevent the continuance of a wrong when the
wrong is the result of a conspiracy in violation of the criminal law.
It is the purest sort of sophistry to argue that a decision here ad
verse to the labor unions is a violation of the Federal Constitution, in
that it imposes involuntary servitude upon the employees of various
of the defendants. There is no suggestion that any oi the employees
are compelled to work for these defendants. Their right to work for
whom they please, and when they please, is inalienable, and any
judgment of the court to the contrary could not stand; but it would
be absurd to permit the employees to continue on a course of con
duct which makes the steamship owners guilty of a violation of the
statute in discriminating unlawfully against the shippers of goods.
If such a course of conduct is countenanced, it must, if carried" to a
logical conclusion, result in destroying all who do not employ union
men—coercion greater, in fact, than that of which some of the de
fendants are now complaining.
Those defendants, who were owners or agents of steamships, were
required to serve the public without discrimination, and if their em
LABOR O m AM IZA TlO M S,
MI
ployees continued voluntarily in their service the same obligation
rested also upon the employees. This record is barren of any evidence
which would indicate a desire on the part of the steamships’ repre
sentatives to receive or handle plaintiffs lumber. They did not dis
charge or reprimand any of their employees for discriminating
against plaintiff, but openly sanctioned such conduct and connived
at it, on the theory, no doubt, that it was better that plaintiff should
suffer than that the movement of freight in the port be “ tied up.’*
The concerted action both of the employer and employees leads to the
accomplishment of an unlawful act; i. e., that of violating both the
United States shipping act (39 Statutes at Large, 728 [U. S. Comp.
St., secs. 8146a-8146r]) and the United States Criminal Code, sec.
37 (U. S. Comp. St., sec. 10201).
This statute is declaratory of the common law, which placed an
obligation upon the common carrier to serve the public without dis
crimination. A carrier can not avoid this responsibility. It is no
answer to a charge of misconduct, amounting to a discrimination to
say that the unlawful act is that of an employee. It was the duty
of the employers to find those who would handle all goods offered
for shipment, and if those employed to do that work refused there
could be no other alternative but to discharge such employees, e on
though it may have led to a great financial loss to the steamship
owners and inconvenience to the public. The employee is the alter
ego of the principal, and any act of the employee in violation of the
common law, or of the statute, is the act of the principal, for which
the principal is liable.
It is apparent that plaintiff will suffer irreparable damage, for
which it has no proper or adequate remedy at law, unless an injunc
tion issue, and as the shipping act (sec. 16, shipping act) is broad
enough to include agents, stevedores, receiving clerks, etc., the injunc
tion will run against all the defendants.
L abor
O r g a n iz a t io n s — C o n s p ir a c y — “ C h e c k - o f f ”
S ystem —
Gasaway et al. v. Border
land Coal Corp ., U nited States Circuit Court of A ppeals , Seventh
Circuit (Dee. IS , 1921), 278 Federal Reporter , page 56.—Suit was
U n io n iz a t io n
of
M in e s — I n ju n c t io n —
brought by the mining corporation against the United Mine Work
ers of America and others for an injunction. It was averred on an
application for a temporary injunction and the proof showed a
combination and working arrangement, a conspiracy, between the
United Mine Workers of America and the coal operators in the
so-called “ Central Competitive Field,” to destroy what some of the
conspirators called the “ vicious competition” of the West Virginia
mines. The business of the coal corporation was shown to be inter
state. The evidence showed that the competition sought to be de
stroyed was competition in the sale of bituminous coal throughout
the several States. The method adopted by the conspirators to thus
destroy competition was to unionize the West Virginia field, so as to
142
TEX^ A^D SUMMARIES OF DECISIONS.
compel operators to run upon a union basis, which would result in
raising the price of the West Virginia product so that it could not
compete with the 4 Central Competitive Field.” Violence followed
4
the attempt to unionize the mines, developing into a, state of war
which continued until the President sent troops into the State. By
an arrangement between the mine workers’ union and the operators,
fines and assessments are withheld from the wages of the workers
and are paid over to the organization. This is the 4 check-off ” sys
4
tem. The United Mine Workers sent more than two and a half
million dollars to unionize West Virginia. Ammunition and arms
were purchased, and money was used for feeding and furnishing sup
plies to those union miners who had been evicted from their homes
or deprived of a living or put to a disadvantage in carrying on the
struggle.
At the close of the hearing, the miners asked for time to procure
further evidence. Mr. John L. Lewis, the president of the United
Mine Workers of America, being in court at the hearing, was asked
by the court whether he would agree to cease efforts to unionize the
mines in West Virginia until the evidence could be obtained and
the court have time thoroughly to investigate the matter. This he
refused to do, and a temporary injunction was issued by Judge
Anderson against the use of the 4 check-off system ” by certain em
4
ployers resident in the State of Indiana, further conspiracy, or aid
ing in the attempted unionization of the nonunion mines in Mingo
County, W. Va., and Pike County, Ky. Actual necessities were
permitted to be sent to members out of employment or living in
tents in these two counties. But two of the union officials named in
the bill were within the jurisdiction of the court, and the names of
all the others were on motion stricken out. The two defendant
officials, Ora Gasaway and W. D. Van Horn, prosecuted an appeal
to the United States Circuit Court of Appeals for the Seventh Cir
cuit. That court remanded the cause to the district court with
directions to enter a preliminary injunctional decree in consonance
with the opinion of the court. The opinion, written by Judge Baker,
is, in part, as follows:
Because the bill states a good cause of action, and because the
decree is merely interlocutory, nothing is now involved but the
question whether the decree clearly discloses an improvident ex
ercise of judicial discretion.
In examining that question, we accept as conclusive the district
court’s findings of fact based on appellee’s verified bill and affidavits.
Appellee asked that the United Mine Workers be dissolved or
enjoined from functioning, on the ground that it is a seditious and
otherwise unlawful organization. The district court declined to
find that the union is an unlawful body. But, as wie have already
indicated, appellee must stand solely on its own private rights;
LABOR ORGANIZATIONS.
143
appellee is not the guardian of others; appellee is not tile vindicator
of the public’s rights, criminal or civil; and it was not the con
spiracy, but the trespasses of joint tortfeasors, who are liable inde
pendently of the conspiracy as a ground of action, that inflicted
the injury upon appellee’s property.
Appellee sought and obtained a decree restraining “ the unioniza
tion or attempted unionization of the nonunion mines ” in the Wil
liamson district. Appellants, and their agents and representatives
in West Virginia, are thus enjoined from publishing lawful union
arguments and making lawful union speeches in the closed district;
from making lawful appeals to those in the pool of unemployed
labor to join the union rather than the nonunion ranks; and from
using lawful persuasion to induce any one of appellee’s employees
to join the union and thereupon instantly and openly to sever his
relationship with appellee, not in violation of, but in exact accord
ance with, his contract with appellee.
If the arguments of the owners of closed nonunion shops should be
universally accepted, labor unions would have no ground of com
plaint, either legal or equitable, for their decline and fall. If the
arguments of the advocates of the closed union shop should prevail,
then similarly their opponents would have no legal or equitable cause
of action. In either case the outcome would be due to the exercise
of reason and free will. In this as in every other instance of
antinomy, of conflicting interests and mutually restricting rights,
the rule of conduct is that each side shall so exercise its rights as
not to injure the rights of the other. In the present state of the law,
and without a constitutional exercise of the legislative power of
regulation, appellee had no greater right to a decree suppressing
lawful action (such as the publications, speeches, and personal per
suasions, heretofore mentioned in this paragraph) in support of the
closed-union shop program than appellants had to a similar decree
suppressing similar lawful action in support of the closed nonunion
shop program. Neither side had any such right.
Appellee sought and obtained a decree enjoining the performance
of existing contracts between the operators and their union employees
in the Central Competitive Field with respect to what is called the
check-off provision. So far as the contracts themselves and this
record disclose, the check-off is the voluntary assignment by the
employee of so much of his wages as may be necessary to meet his
union dues and his direction to his employer to pay the amount to
the treasurer of his union. In that aspect the contract provision is
legal; and quite evidently there are many lawful purposes for which
dues may be used. If in truth the bargaining with respect to the
contract was not free, if either'the employee or the employer put
the other under duress, the injured party might have cause to seek
cancellation. (But if he had nothing to urge in the way of duress
except “ economic necessity,” he might not succeed.) If in bargain
ing one of the parties was not free by reason of the greatly pre
ponderant power of the other, the legislatures of these Central States
and the Congress might consider whether public interest required
or justified the limitation of the otherwise existent freedom of con
tract by abolishing the check-off as a subject-matter of contract, in
similitude to the legislative abolition of truck stores, dangerous appli
144
TEXT
AND &UM.MA111 fiS OF DIVISIONS.
ances. unsanitary working places, exhausting hours, etc., as permissi
ble subject-matters of contract. But appellee is not & party to the
contract, is not the attorney of either contracting party, and is not the
agency to establish the public welfare.
Appellee insists that it is entitled to have the performance of the
existent check-off contracts enjoined, because the check-off is the
“ heart” of the United Mine Workers organization. Appellee is
confusing a series of remote causations with the proximate cause of:
the injury. The only property that was injured was appellee’s free
dom in operating its mine and in putting its coal onto cars in West
Virginia to he shipped in interstate commerce. The proximate cause
of the injury was the described interferences in the Williamson dis
trict with appellee’s aforesaid right to freedom. Without the direct
and immediate interfering acts, the desires and intents of the con
spirators in the Central Competitive Field would have been innocu
ous. In the series of causations the check-off’ provision was undoubt
edly one of the elements. Manifestly unless money was collected,
the union's executive officers could not send it into West Virginia to
aid or promote the interfering acts. But in the same contracts that
contain the check-off feature were provisions for the payment- of
wages and the recognition of the miners as human linings with the
physical capacity to labor. On a parity with appellee’s contention
respecting the check-off element, all the1other elements in the series
of causation leading up to the proximate cause should also be en
joined. Money could not be sent into West- Virginia by the executive
officers, unless it was collected from the miners’ wages; nor unless
the miners earned wages: nor unless the miners were human beings
having the capacity to labor.
From the record as it now stands we are convinced that the district
court committed substantial errors in exercising its judicial discre
tion in the following particulars: (1) In not confining the grant of
relief to appellee: (2) in not limiting the prohibition of the union
ization or attempted unionization of appellee's-mine to the threatened
direct and immediate interfering acts shown by the bill and affida
vits; Os) in not limiting the prohibition of the sending of money
into West Virginia to the use thereof in aiding or promoting the
interfering acts; and (4) in enjoining the performance of tlio ex
istent check-off contracts in the Central Competitive Field.
The decree should be recast.
L abor Orcanizations —■Conspiracy — Monopoly — Comiunationin R estraint of Commerce—Charles A. Ramsey Co. v. Associated
Billposters of the United States and Canada et ah. United States
Circuit Court, of Appeals* Second Circuit (December 29. 1920), 271
Federal R eporter , page Ufi,—The Charles A. Ramsey Co., a com
pany engaged in the advertising business, brought suit against the
defendant for treble damages for the violation of the Sherman Anti
trust Act of July 2.1890 (Comp. St., secs. 882‘0--88tt0). The defendant
is an association of men who are engaged in the business of posting
bills upon billboards. They license solicitors who may secure ad
LABOR ORGANIZATIONS.
145
vertising by means of bill posters and refuse to post any bills not
procured by their licensed solicitors. The plaintiff claims that this
is an unlawful conspiracy in restraint of interstate commerce. The
defendants demurred to the complaint and moved for judgments
on the pleadings, which were granted. The plaintiffs appealed, but
the judgments were affirmed. In rendering the opinion of the court,
Circuit Judge Ward said in part:
The defendant Associated Billposters of the United States and
Canada, a corporation of the State of New York, does no business
itself , but is composed of members who are engaged in the business
of billposters, only one being admitted to membership in each town
or city. The other defendants are solicitors of advertising.
The rules of the association defendant prohibit its members from
accepting from any advertising solicitor, other than one licensed by
the association, national work ; i. e., billposting in a different town
or city in the same State from that in which the advertiser resides,
or in any town or city in a different State. The rules also regulate
the prices for billposting in various places and prohibit the licensed
solicitors from employing any billposter not a member of the asso
ciation in any town or city where there is one.
It is also alleged that the association has prevented manufactur
ers of certain posters—that is, lithographers—from furnishing them
to customers other than members of the association, by the refusal
of such members to deal with them if they do so. This is another
way of saying that the members of the association will post bills
only for such advertisers as send their bills through its licensed
solicitors. Even if it means more than this, it does not avail the
plaintiffs, because they are not lithographers, and can not sustain in
jury thereby. It will be seen from the foregoing that there is no com
bination between the advertisers, and that competition in their busi
ness is quite unrestrained.
The plaintiffs had been licensed as solicitors by the association,
but their licenses were canceled in 1911, as the result of which their
profits have been greatly diminished. If the combination is an ille
gal one under the Sherman Act, the plaintiffs have a right to main
tain the actions, even though they are not themselves engaged in
interstate commerce.
The business of the solicitors is to send their customers’ adver
tisements to be posted on billboards in various towns and cities
throughout the country. Assuming that this business is, as between
them and their customers, interstate commerce, we are clear that,
after the posters have arrived at destination, the posting of them by
the billposters is a purely local service, not directly affecting, but
merely incidental to, interstate commerce. We think this follows
from the decision of the Supreme Court in Hopkins v. United States,
171 U. S. 578, 19 Sup. Ct. 40.
The Supreme Court held that the business of the members of the
exchange was not interstate commerce, that the association affected
interstate commerce not directly, but incidentally, and accordingly
that it was not within the prohibition of the Sherman Act. We
think it follows from this decision that the regulations of the associa
tion defendant in this case, both as they affect their own members,
TEXT AND SUMMARIES OF DECISIONS.
146
and also the advertising solicitors licensed by it, is not interstate
commerce, and therefore not obnoxious to the act.
There is an intimation in the complaint of jurisdiction because
of a diversity of citizenship between the plaintiffs and nearly all
the defendants, even if there be no jurisdiction under the Sherman
Act. But no, combination is alleged which would be unlawful at
common law.
The judgments are affirmed.
L a b o r O r g a n iz a t io n s — C o n s p ir a c y — M o n o p o l y — C o m b in a t io n i n
C
—Sullivan et al. v. Associated Billposters
and D istributors of the United States et al ., United States D istrict
Court , Southern D istrict of New Y ork (Septem ber SO, 1919 ), 272
Federal R eporter , page 323.—In 1891 a number of billposters com
R e s t r a in t
of
o m m erce
bined to monopolize and control the billposting business throughout
the United States and Canada, and formed an association, which
was incorporated in 1902. The measures adopted by this association
to control interstate and foreign trade and commerce were: (a)
Membership confined to one billposter in each town: (b) rules pre
venting members of the association from dealing with any adver
tiser who furnishes business to a nonmember ; (c) agreed schedules
of prices for billposting; (d) furnishing members with funds to buy
competing plants; (e) since July, 1911, prohibiting members from
accepting work from advertisers direct, and permitting them only
to accept work licensed by the association; (f) threatening to dis
criminate against lithographers who furnished sample posters to
independent billposters or to advertisers desiring to employ inde
pendents, by refusing to deal with such lithographers. The plain
tiffs were engaged in soliciting billposting business, and were alleged
to have been injured in their business by the conduct of the defend
ants. Plaintiffs sued to recover treble damages under the Sherman
Antitrust Act. Defendants contended that the plaintiffs had no
cause of action against them. The court decided in favor of the
defendants. Judge Hand wrote the decision of the court, part of
which is as follows:
It is strongly urged by the defendants that they have merely fur
nished additional facilities for advertising and have been neither
engaged in interstate commerce nor have directly affected it. The
direct result and intended purpose of the alleged combination, how
ever, was to prevent posters from being transported from State to
State, except for erection on billboards by the defendants or their
agents. Lithographers wffio dealt with any independent billposter
could not deal with them. As a result, the defendants in the bill
posting business caused a continuous transmission of billposters
from State to State, to be placed by members of the association in
their respective localities. No advertiser could place his poster,
except through their agency. The members of the association were
147
LABOR ORGANIZATIONS.
freed from the competition of independent billposters, for, if the
advertiser, or the lithographer, dealt with an independent bill
poster, he could not deal with defendants. Lithographers who
allowed their posters to be placed by independents would lose the
privilege of having their posters placed by the defendants, and
could only have their posters handled by independent billposters,
who had become few in number and consequently offered limited
facilities. The advertiser can not have his billposters delivered for
placing in the various States, unless he arranges his billposting
through one of the defendants’ solicitors. He can not even buy his
posters from the lithographer, unless he deals with the billposters in
the defendant association, for the lithographers can not allow their
posters to be placed by independent posting concerns, because of the
risk of boycott by the association. The scheme is not only so devised
as to define the agencies which must be employed in placing posters,
but is so arranged as to prevent the possibility of purchasing posters
from the leading lithographers unless the requisites of the association
are met.
Within the doctrine laid down by the Supreme Court in the case of
Hopkins v. United States, 171 U. S. 578, 19 Sup. Ct. 40, this arrange
ment would not constitute a restraint of interstate commerce, in
violation of the Sherman Act, if it was limited to preventing mem
bers of the association who had purchased posters from the lith
ographers from being employed by advertisers to post their bills
who did not give all their billposting business to such members.
But in the complaints under consideration it is stated that bill
posters not only put up posters for advertisers, but at times them
selves purchased sample posters and sold them to, as well as placed
them for, advertisers. An agreement among the defendants to
purchase from no lithographer who sold sample posters to an inde
pendent billposter would clearly be in restraint of interstate com
merce. It would be a direct interference with the sale and transmis
sion of posters from one State to another and would violate the
Sherman Act.
The question remains, however, whether the plaintiffs are shown
to have been injured by any restraint of commerce disclosed by the
complaints. Various decisions have held that a plaintiff who had
been injured may recover damages, though he has not himself been
engaged in interstate commerce. (United Copper Securities Co. v.
Amalgamated Copper Co., 232 Fed. at page 577, 146 C. C. A. 532.)
There must, however, be a direct relation between the restraint and
the injury.
Nothing in the decree or opinion of Judge Landis [in a suit to
dissolve the Associated Billposters] tends to show that Sullivan
suffered injury arising out of any agreement in restraint of com
merce, and for this reason the general demurrer to the Sullivan
complaint must be sustained.
L abo r
O r g a n iz a t io n s — C o n s p ir a c y — S t r i k e
to
C o m pel
C on
People v . Raymond et ail., Su
preme Court of Illinois (February 15 , 1921), ISO Northeastern Re tract—
D e s t r u c t io n
101296°—22-----11
of
P ro perty—
148
TEXT AND SUMMARIES OF DECISIONS.
porter, page 329.— A. B. Raymond, R. H. Williams, and the other de
fendants, were officers and members of a Journeymen Barbers’ Union.
They had a working agreement relating to hours and working con
ditions with the Master Barbers’ Union which expired in April, 1918..
In February and March the Journeymen Barbers’ Union attempted
to arrive at a new agreement with the Master Barbers’ Union but
were unsuccessful. The members of the Journeymen Barbers’ Union
went on a strike to induce the signing of the contract, in furtherance
of which Raymond and other defendants engaged in a campaign of
window smashing and bomb throwing. The defendants were ap
prehended and charged with conspiracy to destroy property and were
convicted. They brought a writ of error, but the decision was
affirmed. In discussing the case Judge Farmer of the supreme court
said in part :
There was evidence that pending the negotiations between the two
organizations, some statements of a threatening character were made
by defendants to induce the acceptance of the agreement by the
master barbers. They declined to accept it, however, and immediately
on the strike being called by defendants’ organization a campaign of
smashing windows of barber shops began. Bricks and u stink bombs ”
were thrown through the plate-glass windows of about 150 shops.
Attacks were of almost nightly occurrence for about a month, and the
shops thus attacked were located in various sections of the city.
Tesch and Donnawell were arrested first. They were in the act of
placing a bomb at a barber shop. They made confessions. Neither
of them was a barber, but they said they were employed by Freiheit,
whose arrest followed next day. He was a barber, and also confessed,
and testified he was employed and paid by Raymond and Williams
so much per window for each window smashed, and that they gave
him the location of the shops to attack. He secured assistance in
carrying out the work, which was done by throwing the missiles
from an automobile they had procured, while driving by the shops
late at night. These depredations ceased when the arrests were
made.
Our conclusion from the testimony is that the competent testi
mony abundantly warranted the verdict, and if no prejudicial error
was committed on the trial there is no justifiable reason for reversing
the judgment. We have examined the complaints made, and are
satisfied the errors, if any, in this respect were so trivial in character
that they did not prejudice defendants. The indictment charges the
conspiracy was entered into May 18, 1918, but, of course* that was
not controlling. It was proper to show the conspiracy had been
formed at any time within 18 months before the indictment was
returned. It is contended the evidence shows that whatever con
spiracy was proven was entered into early in May. The evidence of
acts and declarations prior to May 1, when the Journeymen Barbers’
Union went out on a strike and the work of smashing windows began,
tends to show that defendants contemplated resort to violence and
trouble if their terms were not accepted. It was not necessary that
it be shown just what the character of the acts they proposed or had
in view would be. If they intended by acts of violence and damage
149
LABOR ORGANIZATIONS.
to force an agreement to their terms the evidence was competent.
It is sufficient to say we agree with the conclusion of the appellate
court that there was no error so prejudicial, either in the rulings on
the evidence or in giving and refusing instructions or in the conduct
of the court or State’s attorney, as to justify a reversal of the
judgment.
The judgment is affirmed.
L abo r
O r g a n iz a t io n s — I n d u s t r ia l
W o rkers
of
C r i m i n a l S y n d ic a l is m — M e m b e r s h i p a s V io l a t io n
th e
W o rld —
L aw —
State
v. Hennessy, Supreme Court of WasMngton {January 25,1921), 195
Pacific Reporter, page 211.—Mike Hennessy became a member of
the Industrial Workers of the World, said to be an organization de
signed to bring about industrial, economic, social, and political
changes in the Government by means of 4 crime, sedition, violence,
4
intimidation, and injury.” Such organizations are prohibited by a
law of the State of Washington (ch. 174, acts of 1919) which makes
4 criminal syndicalism ” a felony. Hennessy was convicted under
4
this act, appealed on the ground, among many others, that the statute
was unconstitutional; first, because it purported to punish construc
tive treason, and, second, because it was class legislation in that it
was intended to restrict the right of labor organizations to discuss
industrial questions. The judgment of conviction was affirmed.
The court in rendering its opinion on the two points above mentioned
said:
It is the general rule, that, where a single offense may be com
mitted in different ways or by different means., it may be charged
in the information to have been committed by more than one of the
ways or means.
To meet the charge of unconstitutionality the court cited Fox v.
State of Washington, 236 U. S. 273, 35 Sup. Ct. 383, in which a law
of like nature was upheld as constitutional, and continued:
The fact that treason is defined in the Federal Constitution does
not deprive the State legislature of the power to enact the statute
which is intended to prevent the teaching of crime, sedition, violence,
or intimidation as a means of overcoming or destroying the present
social order.
The fourth point is that the statute is class legislation. The argu
ment here seems to be based on the assumption that it was 44intended
to restrict the discussion of economic and industrial questions among
labor organizations.” There is nothing, however, on the face of
the act to justify this assumption, and the court in considering the
question is governed by its terms. The legislature has power to pass
all needful police regulations, and so long as such regulations bear
with equal weight upon all in like situation or of the same class,
they are upheld by the courts. The act is general in its terms and
provides that 44whoever ” shall do the things there prohibited shall
be guilty of a felony. Under this language any one, no matter what
of
TEXT AND SUMMARIES OF DECISIONS.
150
his business associations or professional calling might be, who did
the things prohibited by the act, would be subject to its provisions.
Various other contentions were rejected, the law was upheld, and
the conviction affirmed*
L abo r
O r g a n iz a t io n s — I n d u s t r ia l
W o rk ers
of
th e
W o rld —
H aywood et oil. v.
United States , United States Circuit Court of A ppeals , Seventh Cir
cuit (Oct. 5, 1920), 268 Federal R eporter , page 795.—Wm. D. Hay
S abo tag e— I n t e r f e r e n c e
w it h
G o v ern m en t—
wood, as president, and others as members of the Industrial Workers
of the World were charged on four counts of an indictment for con
spiracy to violate or obstruct the execution of certain laws of the
United States. They were convicted on each of the four counts, and
they brought a writ of error. The convictions under counts 1 and 2
were reversed, but the convictions under counts 3 and 4 were affirmed.
Counts 1 and 2 referred to activities of the defendants in con
spiring to commit sabotage, to interfere with the production of war
munitions, to break machinery, to spoil materials, to strike, and to
use force in preventing strike breakers from taking their places. In
reversing the convictions under these counts the court said in part:
How was the execution of these various laws to be prevented by
force ? Defendants were officers and agents of the Industrial Work
ers of the World. That organization was opposed to capitalism and
the wage system, believed that, the “ workers ” should seize the “ tools
of industry,” was hostile to our system of Government, denounced
our entry into the war as the result of the influence and desire of
the “ ruling, capitalistic classes,” and undertook to block our efforts
to win. Defendants, having control of that organization as an instru
ment, conspired to have their members, who were workmen in facto
ries engaged in producing war munitions and supplies, break ma
chinery, spoil materials, strike, and use force to prevent other work
men from taking their places; also to have.their members refrain
from registering in obedience to the selective-service act (Comp. St.
1918, Comp. St. Ann. Supp. 1919, secs. 2044a-2044k), to have them
desert, if brought into registration offices, and to rescue them by
force, if caught; and also, in defiance of the espionage act, to cause
all whom they could influence by speeches, pamphlets, and news
papers to keep out of the military service.
Those parts of the case under the first count that have to do with
violations of the selective-service act and the espionage act must here
be eliminated, for the following reasons: Count 3 is for conspiracy
to violate the selective-service act. Count 4 is for conspiracy to
violate the espionage act. Granting that section 6 of the Penal Code,
on which count 1 is predicated, is broad enough in its terms to cover
conspiracies to use force in preventing, hindering, or delaying the
execution of the selective-service act and the espionage act, the penal
provisions of these last-named acts constitute the specific directions
of Congress for the punishment of all obstructions, forcible or other
wise, of the recruiting and enlistment service. Congress did not in
LABOR ORGANIZATIONS.
151
tend, in the face of the constitutional prohibition, to inflict punish
ment twice for the same offense.
There remains, then, the question whether forcible interference
with the operations of producers from whom the Government was
expecting to buy or had contracted to buy war munitions and sup
plies constituted a forcible prevention of the execution of the acts
of Congress in declaring war and making appropriations therefor.
Undoubtedly Congress, under the war power, could have pro
tected by legislation the operations of such producers from all in
terference, forcible or otherwise, and as the war progressed vari
ous strengthening laws were enacted. But the question now before
us concerns the true meaning of section 6 [of the Penal Code],
This was enacted long before the war. It must be enforced after
the war is officially ended. Manifestly in each period, before, dur
ing, and after, it must be given the same meaning and effect.
So the question under section 6 covers not only war supplies, but
also any peace-time supplies which the Government might intend
to buy or had contracted to buy. The Government Printing Office
is conducted under laws directing and making appropriations for
its operations. Any direct interference by force with its operations
might possibly be held to be a forcible prevention of the execution
of laws of the United States. * * * Producers who have con
tracts to furnish the Government with supplies, are not thereby
made officials of the Government. Defendants’ force was exerted
only against producers in various localities. Defendants there may
have violated local laws. With that we have nothing to do. Federal
crimes exist only by virtue of Federal statutes ; and the lawmakers
owe the duty to citizens and subjects of making unmistakably clear
those acts for the commission of which the citizen or subject may
lose his life or liberty. Section 6 should not be enlarged by con
struction. Its prima facie meaning condemns force only when a
conspiracy exists to use it against some person who has authority
to execute and who is immediately engaged in executing a law of
the United States.
We conclude that no case was made under count 1.
Similar attacks were made upon the case under count 2.
This count is based on section 19 of the Penal Code (Comp. St.,
sec. 10183), which denounces conspiracies to injure citizens of the
United States in the exercise of any “ right or privilege secured to
him by the Constitution and laws of the United States.”
Defendants were charged with conspiring to prevent by strikes
and sabotage such of the producers described in count 1 as were
citizens from fulfilling their contracts with the Government for
war munitions and supplies. To produce, to sell, to contract to sell
to any buyer, are not rights or privileges conferred by the Con
stitution and laws of the United States. If the buyer is an agent
of the United States, he needs a Federal law to qualify him as a
buyer; but the producer and seller is exercising only such rights as
antedated Federal law, were not included in the grants of power in
the Constitution (except to the extent that his product comes under
Federal taxation, regulation of interstate commerce, and the like),
and were expressly reserved by the tenth amendment. Foreign
governments, foreign and domestic corporations, individuals, who
TEXT AND SUMMARIES OF DECISIONS.
152
were not citizens, all sold war supplies to our Government, equally
with citizens. No case was made under count 2.
. Counts 3 and 4 involved no question of labor, but of conspiracies
to hinder the enlistment and military service of the members of
the I. W. W. by persuasion, etc., and call for no consideration in
this compilation.
L abor
O r g a n iz a t io n s — I n t e r f e r e n c e
I n co rpo rated
L ocal
—Kunze et ol. v . W eber et al .,
Supreme Court of New Y ork, A ppellate Division {M ay 27, 1921 ),
188 New Y ork Supplem ent, page 61^.—The plaintiffs were eight
O n io n
by
w it h
F e d e r a t io n — I n j u n c t i o n
directors of the Musical Mutual Protective Union, a membership cor
poration organized under the laws of New York, and affiliated with
the American Federation of Musicians, an unincorporated association.
The members of local unions become members of the federation
ipso facto when the local union is organized under or affiliated with
the federation, and the existence of the local unions as members is
simply an administrative factor to accomplish the purposes sought to
be accomplished by the federation.
A Mr. Finkelstein had been elected president of the Protective
Union. There arose a difference in the union over the acts of Finkel
stein, and as a result eight members of the board of directors preferred
charges against him, suspending him as president and giving him
notice of a hearing. Finkelstein then went to Joseph N. Weber, who
was president of the American Federation, and who issued an order
staying all proceedings for the presentation or consideration of
charges against Finkelstein and f orbidding the eight officials to act as
directors of the Protective Union. Arthur Kunze and others brought
this action to procure a permanent injunction against Weber. From
an order granting a temporary injunction, defendants appealed.
The appellate division affirmed the decision of the lower court, and
through Judge Smith said:
This Protective Union is a corporation with a statute regulating
its affairs. It was authorized to make by-laws, and the by-laws
adopted provided, how the president could be removed. The directors
took proceedings for the removal of the president by making charges
and giving him notice of a hearing, and meantime they suspended
him from acting as president. Then came the order from Weber. It
seems clear that the mere fact that this Protective Union was affiliated
with the American Federation neither gives to the federation nor to
the president thereof the power to interfere with the internal manage
ment of the corporation. If the union itself had committed any act
which was repugnant to the purposes of the federation, the right of
affiliation might have been withdrawn. The power, however, to
regulate the internal affairs of this corporate union is given under the
laws of the State, and is not subject to interference from this unincor
porated association.
LABOR ORGANIZATIONS.
153
In this respect the rights of the members of this union materially
differ from the rights of members of a union organized under the
federation itself, wherein the federation might itself make laws
which defined and designated those rights. The right to suspend an
officer of the corporation, given to the majority of the board of direc
tors under the by-laws passed in pursuance of the laws of the State,
is not subject to review by this president of the Federation. Under the
orders which wT disregarded by these directors, and for which these
ere
directors have been expelled, the president of this federation assumed
to take the power given by law to the directors of the Protective Union
away from those directors. This was in excess of the president’s au
thority.
Having suspended this president of the Protective Union, as might
be lawfully done under their by-laws, neither the American Federa
tion nor the president of the federation had the right to reinstate
him and enjoin the members from interfering with his acting as
president while he was so suspended. Nor had the federation or
its president the right to enjoin the trial of the charges made against
the president of the Protective Union. The remedy of the presi
dent of the Protective Union was through the corporation and its
own by-laws, and not by appeal to the American Federation, except
so far as the right of appeal was given by the by-laws of the Protec
tive Union itself. When the eight directors disregarded this order
of the president staying the action of the local union, the president
made another order, in which he first made all members of any
affiliated union members of the federation, and by a later order ex
pelled these eight members. Of course, if these men were not mem
bers of the federation, he could not make them members of the fed
eration merely for the purpose of expelling them. It was not neces
sary to make them members of the federation. They were already
members.
But, even if this corporation had not been incorporated, this presi
dent had no authority to expel these members thus summarily with
out giving them a hearing, even if he had the right to expel them at
all. But he has expelled them, and notified the employers of
musicians that they were expelled as members, which has resulted
in their being thrown out of employment. The emergency clause
in the constitution and by-laws of the federation, in which powers
are given the president in emergencies, will not be construed by the
courts to give him any further power than are necessary to preserve
the status quo, or to protect the federation until action can be taken by
the executive council or the federation in convention. The power to
expel is given to the executive board of the federation, and not to
the president. Otherwise, if the executive board were not in actual
session, the president would have the power to expel anyone and call
it an emergency matter, which would hold until the next meeting of
the convention, which might be a year off. This would be true, even
if the union were not a corporation. Such a power involving prop
erty rights is denied, because inequitable. This order was clearly
in excess of any powers, emergency or otherwise, and an injunction
was properly granted to prevent this president exercising any such
powers. That these by-laws can not authorize this president to de
prive plaintiffs of their rights as members of the corporation by any
154
TEXT AND' -SUMMARIES OF DECISIONS.
emergency clause comes directly within the ruling of the Court of
Appeals in the matter of Brown v. Supreme Court, I. O. O. F., 176
N. Y. 132, 68 N. E. 145.
It is claimed, however, that these respondents have no right to ap
peal to the courts until they have exhausted their remedies within the
corporation. As a general proposition this is true. But here these
men have been expelled, and notice of their expulsion given, and
they have been deprived of their livelihood, without a hearing.
There is no provision under the by-laws of the American Federa
tion for any appeal from any emergency order of the president, ex
cept to bring the matter up at the next convention. If there were
any such provision for review, it must be prompt in its action; other
wise, the power to expel a member as an emergency act would be un
reasonable and invalid.
The order should therefore be affirmed.
L abo r
O r g a n iz a t io n s — I n t e r f e r e n c e
w it h
I n terstate
C om
H erket & Meisel
Trunk Go. et al . v. United Leather W orkers International Union ,
United States D istrict Court , Eastern D istrict of Missouri (Novem
ber £6, 1920), 268 Federal Reporter , page 662.— The plaintiff com
m erce-
P
ic k e t in g
— C o n s p ir a c y — I n ju n c t io n —
pany named and others engaged in similar lines of manufacture
had procured a temporary injunction against the leather workers’
union to prevent picketing and other interference with the conduct
of business. A strike had been called by the union, involving prac
tically all of the employees of the plaintiff companies, following a
failure to agree on a new contract between the employers and the
union. Picketing by numbers, accompanied by threats and intimida
tion and the use of abusive and opprobrious terms, prevented the em
ployment of other workmen and led to a large reduction in the out
put of the factories affected.
The first question disposed of, after a statement of the “ unpeaceful
and unlawful ” methods used by the pickets, was that of jurisdiction.
There was no diversity of citizenship involved, the only ground for a
Federal court to take cognizance of the case being a claim that there
had been a violation of the Sherman antitrust law, so called. The
pertinent provision of this law (sec. 1, 26 Stat. 209) declares illegal
“ every contract, combination in the form of a trust or otherwise, or
conspiracy, in restraint of trade or commerce among the several
States, or with foreign nations.” The major part of the goods cus
tomarily manufactured by the plaintiff companies went into inter
state commerce and interstate orders were on hand at the time of fhe
strike. The strike, therefore, interfered with the production of goods
to fill interstate orders or to meet such orders as might be obtained
from time to time. Otherwise there was no interference by the plain
tiffs with shipments in interstate commerce, such goods as were actu
LABOR ORGANIZATIONS.
155
ally made for interstate shipment haying been forwarded without let
or hindrance by the strikers.
It was the contention of the union that the terms of the antitrust
act did not apply until interstate commerce actually began by the
delivery of the goods to a common carrier for transportation, or the
actual commencement of their transfer to another State, citing In re
Greene, 52 Fed. 113. This definition had been applied in Hammer v.
Dagenhart (247 U. S. 251, 38 Sup. Ct. 529, Bui. No. 258, p. 96), where
it was said, u If it were otherwise, all manufacture intended for inter
state shipment would be brought under Federal control, to the prac
tical exclusion of the authority of the State”—a result not contem
plated by the framers of the Constitution.
Judge Faris, who delivered the opinion of the court, admitted that
the point was 6 at least, on principle, a close and difficult one.” Rec
6
ognizing the force and effect of the citations offered, he said that if
the matter were one of first impression in the circuit within which the
State of Missouri lies he would feel constrained to agree that these
statements were final. However, the question had been passed upon
by the Circuit Court of Appeals of the Eighth Circuit in Dowd v.
United Mine Workers (235 Fed. 1, 148 C. C. A. 495, Bui. No. 224,
p. 168) and United Mine Workers of America v. Coronado Coal Co.
(258 Fed. 829, 169 C. C. A. 549, Bui. No. 290, p. 192). These cases
involved the same parties, though under somewhat different title. In
the former the finding in the case, Pennsylvania Sugar Refining Co.
v. American Sugar Refining Co. (166 Fed. 254, 92 C. C. A. 318) that
a conspiracy to prevent the production of goods by a manufacturer
who procures the supplies and disposes of his products by means of
interstate commerce, preventing him from engaging in business at
all, necessarily places restriction upon such commerce, was quoted
with approval. The cases of Loewe v. Lawlor (208 U. S. 274, 28 Sup.
Ct. 301, Bui. No. 75, p. 622) and Lawlor v. Loewe (235 U. S. 522, 35
Sup. Ct. 170, Bui. No. 169, p. 140) were also cited in support of the
position that interference with manufacture, the products of which
were for interstate shipment, was an interference with commerce
within the terms of the antitrust law. In the second case the defend
ants undertook to reopen the question, but the point was said to have
been decided in the Dowd case, and a reexamination was refused.
In the Dowd case, the coal, or much of it, which was intended for
interstate commerce, but which was prevented from flowing therein
by the unlawful acts of the defendants there, had not been mined,
and therefore was not in existence as a commodity of any sort of com
merce for transportation.
The situation so closely paralleled that existing in the instant case
that Judge Faris felt himself constrained “ as in duty bound, regard
156
TEXT AND SUMMARIES OF DECISIONS.
less of my own views,” to hold that the plaintiffs here were engaged
in interstate commerce within the purview of the first section of the
Sherman Antitrust Act.
The question of the conspiracy was disposed of “ more briefly and
with less difficulty.” Following the call for a general strike practi
cally all the employees of the plaintiffs quit work and many of them
became pickets. “ Picketing was done in a way that was not lawful,
and which is not legally permissible, even under the broad provisions
of the Clayton Act.” Committees of the defendant unions managed
the strike, “ which, of course, largely meant to manage the pickets who
were engaged in picketing the shops of plaintiffs.” The pickets and
other striking employees received strike benefits, but there was no
extra compensation for doing picket duty, which was voluntarily
engaged in.
If these pickets committed unpeaceful and unlawful acts, there
fore, absent any protest or disciplinary action by the local unions,
the latter are liable for such acts. Neither is it necessary to prove
the conspiracy alleged in the complaint by direct evidence. Such
conspiracy may be shown by circumstantial evidence. If the rule
were otherwise, it would ordinarily be impossible to establish a con
spiracy in any case; a fortiori, in a labor dispute.
The conclusion was reached that the facts and circumstances dis
closed a conspiracy within the meaning of the law, hurtful and in
jurious to “the interstate commerce of the plaintiffs as that commerce
has been defined in this circuit.” A permanent injunction as prayed
for was therefore directed to be drawn.
L a b o r O r g a n iz a t io n s — P ic k e t in g — I n t e r f e r e n c e w i t h C o n t r a c t ,
E
— I
—Cyrus Currier and Sons v. Inter
national H olders ’ Union of N orth Am erica, Local No, Jfi, et al .,
Court of Chancery of New Jersey (Ju ly 23, 1921), 115 A tlantic Re
porter, page 66.—This suit was to restrain the defendant union, its
of
m plo ym en t
n ju n c t io n
officers and agents, from picketing the complainant’s foundry and
interfering with its employees and from soliciting them to join the
union in violation of their contract of employment. A strike in
which pickets were employed about the complainant’s plant in 1917
had been stopped by an injunction. Thereafter the company adopted
a policy of excluding all union men from its service, and made this
a condition of employment. In 1920 the union again picketed the
complainant’s plant to persuade the core makers and molders to join
the union in breach of the conditions of their employment. The
solicitations to join the union were accompanied by threats of violence
and sometimes with actual violence against the reluctant and un
willing, with the result that complainant was greatly hampered in
carrying on its business. The defendant knew the conditions of em
LABOR ORGANIZATIONS.
157
ployment. The new members of the union were enjoined to secrecy
with the aim eventually to unionize the complainant’s shop. An in
junction was granted by the court in an opinion which quotes freely
from the case of the Hitchman Coal and Coke Co. v. Mitchell, 245
U. S. 229, 38 Sup. Ct. 65 (Bui. No. 246, p. 145). The court com
pared Stevenson, the financial secretary of the defendant union, with
Hughes in the Hitchman case above. In the opinion Vice Chancellor
Backes for the court said:
As to Stevenson’s guilt of intimidation, violence, and seduction of
the complainant’s employees, I have no doubt, notwithstanding his
denial. He professes to have acted as an individual unionist, and
not as a representative of his local; but this is idle evasion. The
defendant local is an unincorporated organization of men—a co
partnership—bound together for the attainment of worthy objects,
mutually beneficial, sometimes, unfortunately, sought to be obtained
by unworthy means, and in the prosecution of their common object
the action of any one member is binding upon all; and so the con
duct of Stevenson in behalf of the organization, and his methods,
though obnoxious in the eyes of the law, are chargeable to the de
fendant local, and, indeed, as I read the answer of the defendants,
the local, while specifically denying the representative capacity of
Stevenson, does not shirk or seek to evade responsibility for his ac
tivities in its behalf. The joint answer of the union and its officers
specifically denies the charges of intimidation and violence, but col
lectively they admit, with argumentative modification, the charges
of picketing and the solicitation of the complainant’s employees to
membership in the organization, and implicity adopt all of Steven
son’s efforts, charged and proved, lawful and unlawful, as their
community efforts. Stevenson embodied the union.
It is the complainant’s legal right to hire men unaffiliated with
labor unions, and to make continuance of unaffiliation a condition
of the employment. That is as assured to the employer as is the
right of the unions to make it a condition of membership that their
members shall not work in shops where nonunion men are employed.
And it is the master’s legal right to have his servants abide with him,
free from interference of the union, as it is the right of the union
to prosper unmolested by the employer. The right of each to law
fully prosecute his affairs is equally within the protection of the law,
and if in their competition for labor harm falls to one from the law
ful promotion of the other’s business, the injury is an inevitable inci
dent, legitimately inflicted and excusable. So long as each keeps
advancing his interest without purposely intending to harm the
other, there is no room for complaint or cause for action; but when
either converges the line of advance in assault upon the other, then
the law, through its courts, calls a halt by injunction. In other
words, in their progress they must not step on the other’s toes with
intent to injure.
Labor has not as yet appealed to the courts, but if the present
“ employer’s closed-shop ” movement has for its ultimate object the
overthrow and destruction of organized labor—an ulterior and un
lawful object—and, by means as unworthy as those here reprehended,
capital is certainly extending the invitation.
158
TEXT AND SUMMARIES OF DECISIONS.
L a bo r O r g a n iz a t io n s — P i c k e t i n g —
fu ln ess
of
S eco n d ary B oycott — L a w
P u r p o s e — A t t e m p t to C a u s e B r e a c h o f C o n t r a c t —
In
—Parker P aint & 'Wall Paper Co. v. Local Union No. 813
et al.jSuprem e Court of Appeals of W est Virginia (February 8 , 1921 ),
105 Southeastern R eporter , page 911.—The plaintiff company was
engaged in the painting, papering, and decorating business in the city
of Huntington, W. Va., and employed 5 to 10 men. It became a
member of an association of employers known as the Master Painters’
Association of the City of Huntington. The members of this associa
tion were operating under a wage contract with the defendant, Local
Union No. 813, and maintained a “ closed shop.” The defendant was
a branch of the Brotherhood of Painters, Decorators, and Paper
Hangers of America. In January, 1920, friction arose between the
union and those of its members who composed the Master Painters’
Association, and the latter were refused permission to sit in the meet
ings of the local union or participate in its affairs. After attempts
to adjust the differences had failed, the local union refused to allow
its members to work for members of the Master Painters’ Association.
In order to fulfill their contracts the Master Painters employed non
union men. The local union then adopted the plan of “ bannering”
or picketing the places at which members of the Master Painters were
engaged at work. Plaintiff had a contract to paint a 5 and 10 cent
store, and proceeded with his work with nonunion men. The local
union proceeded to picket the store, and banners bearing the inscrip
tions “ This Store is Unfair to Union Painters,” “ This Store is Un
friendly to Union Labor,” were carried up and down before the store.
The manager of the store became intimidated and ordered plaintiff
to stop work. He then negotiated with the union, which stated that
plaintiff would never be permitted to complete the work, and that he
should give the work to the union to be completed. The manager re
fused, and plaintiff resumed its painting of the store, whereupon the
union again proceeded to picket and banner the store. The manager
of the store fearing a loss of his trade again ordered plaintiff to stop
work. Plaintiff also had a contract to paint the Cammack house;
and, while its men were at work on the house, the union induced them
to cease work, and otherwise interfered with and hindered the work so
that Cammack canceled his contract with the plaintiff; and, in order
to get his house painted, permitted the union to complete the work.
Other instances of a like nature occurred to the plaintiff, and he
brought this action for an injunction to restrain the activities of the
union in picketing his business and interfering with its work. The
circuit court refused to grant the injunction, but on appeal the su
preme court granted the injunction prayed for. The circuit court dis
solved the injunction and plaintiff appealed. In reversing the de«
ju n c t io n
LABOR ORGANIZATIONS,
159
cision and in reinstating the injunction the supreme court rendered
in part the following decision:
There are two legal propositions which are applicable to this case:
(1) A lawful purpose can not be carried out by the use of unlawful
means; (2) If the purpose be unlawful, it may not be accomplished
even by means that would otherwise be legal.
What was the purpose of these various acts of the defendants?
They affirm that their purpose was a lawful one, and was for the
maintenance of their organization; that their acts were peaceful and
persuasive. But it is manifest that the means by which this end was
sought to be attained was the destruction of plaintiff’s business by
bringing combined pressure upon the persons with whom plaintiff
had contracted for the sale of its labor, and causing them to abrogate
those contracts. There can be no question of the right of the de
fendants to form a union for their mutual protection and advantage,
and enlarge their union by inducing others to join for this legitimate
and proper object; but there can be no question, on the other hand,
that this right must be so used as not wantonly to conflict with the
rights of others. The same is true of the master painters’ organiza
tion. A person can use the highway in his automobile, but he must
not forget that others have the same right, and he must not damage
them wantonly or unwittingly. If one person wantonly or mali
ciously, whether for his own benefit or not, induces a person to violate
his contract with a third person to the injury of that third person, an
action will lie.
Martin on Modern Law of Labor Unions asserts that the great
weight of authority is to the effect that organized labor’s right of
coercion and compulsion by strikes or withholding labor or threats
thereof is limited to strikes or withholding of labor or threats thereof
against persons with whom the union has trade disputes. And the
use of such means against one’s customers in order to coerce them to
compel him to comply with demands made on him by the union is
an unjustifiable interference with the rights of such customers.
Martin’s Mod. Law of Labor Unions, sec. 77.
It is not clear just what reasons dictated the acts complained of in
the bill. If for the purpose of compelling plaintiff to withdraw
from membership in the Master Painters, it is unlawful. Plaintiff
is as free to join an organization for the lawful furtherance and pro
tection of its affairs as are the members of the Local Union No. 813
to become members of that organization, designed for their protec
tion. If for the purpose of preventing a member of the Master
Painters from laboring with his hands in performing his own con
tracts, it is unlawful.
It would be cumbersome and serve no purpose here to review the
various decisions and textbooks on boycott, primary and secondary,
or on the subject of picketing. The decisions are legion, and some
of the niceties and distinctions found in them are difficult to appre
hend and are not very instructive. It is sufficient to say that the
secondary boycott, where A is brought into a labor dispute between
B and C, A having no difference with either, is generally con
demned. This “ secondary boycott ” contemplates that A upon the
request of B, and under the moral intimidation lest B boycott him,
TEXT AND SUMMARIES OF DECISIONS.
160
may thus be constrained to withdraw his contracts or patronage
from C, with whom he has no dispute, the controversy being only
between B and C. The English courts, and the Federal courts of
this country, vigorously condemn it.
Even some of the State courts which hold that a reasonable boycott
is lawful condemn 44picketing,” holding that the end to be attained
thereby, however artful may be the means employed, is the injury of
the boycotted business through physical molestation and physical
fear caused to the employer and his employed, or who may seek his
employment, and to the general public.
L a b o r O r g a n iz a t io n s — P r o t e c t io n
of
E m plo yees as M em bers—
People v. W estern Union Tele
graph Go. ei ahj Supreme Court of Colorado {A p ril h 1921), 198
Pacific R eporter , page 140.—The Western Union Telegraph Co. and
C o n s t it u t io n a l it y
of
S tatute—
others were charged with a violation of the anticoercion act of
Colorado (ch. 5, Laws 1911). The above company as a condition
to the continued employment of one Holson required of him a con
tract that he sever his connection with the Commercial Telegraphers’
Uilion of America, and upon his refusal to comply, discharged him,
which the statute mentioned above undertook to penalize. Judg
ment was given releasing them from liability. The State appealed
to the supreme court but the judgment was affirmed. The court in
deciding this issue said:
That this act is a plain violation of the Federal Constitution has
been clearly determined by the Supreme Court of the United States.
(Coppage v. Kansas, 236 U. S. 1, 35 Sup. Ct. 240 [Bui. 169, p. 147].)
In that case a decision of the Supreme Court of Kansas was reversed,
and a statute of that State, in all material particulars identical with
the one here under consideration, was declared a violation of the
44due process ” clause of the United States Constitution.
L a b o r O r g a n iz a t io n s — B u l b s — E x p u l s io n o f M e m b e r — R e s t o r a
E
C
— 5 urke v. Monumental D wism n, No. 52,
Brotherhood o f Locomotive Engineers, e t ah, United States D is
trict Court, D istrict of M aryland {August 12, 1919), 273 Federal
R eporter 707 .—Plaintiff, Dominic J. Burke, was a member of the
t io n
by
q u it y
ourt
Brotherhood of Locomotive Engineers. Affiliated with the brother
hood was a mutual aid and benefit association, and a life and
accident association. Burke, in the event of sickness, accident, or
death was entitled to payments from them, the aggregate value of
the right being upwards of $3,000. This amount would be lost if his
membership had been taken from him. In June, 1916, the train em
ployees authorized their brotherhood executives to call a strike in the
event of failure to secure a basic eight-hour day with pay at the rate
161
of time and a half for all overtime. The railroads and the train
men could not agree, and the executives united in calling a nation
wide strike, to begin on Labor Day, 1916. Congress passed the
Adamson bill, and the strike order was recalled. The railroads
claimed that the law was unconstitutional, and a test case was ap
pealed to the Supreme Court. Pending the decision much was said
in favor of compulsory arbitration, and the brotherhoods, which
were strongly opposed to such a plan, wished to force the eighthour day before Congress could act. The brotherhood executives,
who believed that the strike vote made in June, 1916, still authorized
them to act, called a strike to begin March 17, 1917. Burke believed
that the strike vote had expired when the strike order of September,
1916, was rescinded, and so when asked his opinion on the strike by
his foreman he stated he was against it and was ready to go into
court to prevent it. A bill of complaint was drawn up by the rail
road’s legal department, praying that the strike be enjoined, and it
was signed by Burke on March 17. March 19 the railroads con
ceded to the demands of the trainmen, and the issues raised by
Burke’s bill became moot questions. Plaintiff’s fellow-workers, how/
ever, learned what he had done, and in consequence preferred a
charge against him which resulted in his expulsion. The plaintiff
sought to compel defendants to restore him to membership. The
court held that the plaintiff was entitled to the relief for which he
asked. It was held that the district court had jurisdiction because
Burke alleged that he had been expelled for the reason that he ex
ercised his constitutional right to bring a suit in a court of the United
States. The defendants made a motion to dismiss, stating that Burke
should have gone into a law court and asked for mandamus, but the
court held that as the brotherhoods were unincorporated associations
mandamus could not lie and that the relief was in a court of equity.
A decree was ordered for the plaintiff. Judge Rose speaking for the
court' said in part:
The charge upon which plaintiff was expelled was that in bringing
the Philadelphia suit he had violated section 35 of the standing rules
of the brotherhood, which imposes the penalty of expulsion upon any
member who, by verbal or written communication to railroad officials
or others, interferes with a grievance that is in the hands of a com
mittee, or at any other time makes any suggestion to any official that
may cause discord in any division. There is here no mention of legal
proceedings. The place in which this section appears among the rules
does not suggest that it had reference to them. The language em
ployed does not give the impression that the framer of it had them
in mind. An intention to deny all access to the courts of the land will
not be presumed. If it be enforceable at all, it must be unmistakably
expressed.
At the hearing something was said as to section 54 of the rules.
That does prohibit resort to the courts in any controversy arising
LABOR ORGANIZATIONS.
162
TEXT AND SUMMARIES OE DECISIONS.
within the organization, and for which the laws of the brotherhood
provide a means of settlement, without having previously exhausted
all remedies within the brotherhood. Nothing which plaintiff is
charged with having done offends against this rule. The grand chief
ordered a strike to begin in a few days. The only possible appeal
within the order was to the next triennial convention, which would
not meet for 14 months. Plaintiff says he believed that in giving
such an order the grand chief was doing something that under the
laws of the brotherhood he had no right to do. Under the circum
stances, there was nothing the plaintiff could do within the order,
and there would have been nothing he could do had he been absolutely
right in his contention that the authority given 9 months before was
at an end. The rule by the clearest implication sanctions a resort to
the courts when a remedy within the brotherhood does not exist.
The learned and zealous counsel for the defendants at the hearing
frankly conceded that one of the recognized limitations upon the
very broad powers of discipline over their members, possessed by
voluntary unincorporated societies, is that they may not be exercised
to punish one for seeking aid of the courts where the machinery of
the organization can not give it. Yet the only charge upon which
the plaintiff was put upon trial was that he had gone into court. This,
of course, is admitted. The charge was in writing and speaks for
itself.
This would end the case were it not that the defendants contend
that plaintiff was expelled, not for suing, but because he sued at the
instance, under the direction, and at the expense of one of the rail
roads, the opposing parties to the controversy in which the brother
hood was engaged. There is no charge that in what was done there
was aught of champerty or of maintenance. The complaint is not
that the railroad, with the assistance of the plaintiff, was interfering
in something which did not concern it, but that it, on the other hand,
was vitally interested on a side of it upon which plaintiff, had he
been a loyal member of the brotherhood, would not have been found.
All of which he was accused was the bringing of the suit. If that
was sufficient ground for expulsion, there could be no defense because
the fact was so; but if the gravamen of his offense was his cooperation
with the railroad, he should have been told so, in order that he might
have made such explanation as he could. The rules of the brother
hood themselves require that the charges upon which a member is
brought to trial shall be in writing.
It follows that the plaintiff is entitled to the relief for which he asks.
L a b o r O r g a n iz a t io n s — R u l e s — R ig h t o f M e m b e r s to P e t it io n —
E
M
—Spayd v . Ringing Rock
Lodge No. 665 , Brotherhood of R ailw ay Trainmen of P ottstow n ,
et al ., Supreme Court of Pennsylvania {March 21,1921), 113 A tlan
tic R eporter, page HO.—H. F. Spayd was a member of the Ringing
R e in s t a t e m e n t
of
xpelled
em ber
Rock Lodge No. 665 of the Brotherhood of Railway Trainmen. Rule
23 of the by-laws of the union provided that :
Any member of the brotherhood using his influence to defeat any
action taken by the national legislative representative or any action
LABOR ORGANIZATIONS.
163
regularly taken by the legislative representatives in meeting assem
bled, or of legislative boards under their proper authorities, shall,
upon conviction thereof, be expelled.
The legislature of the State of Pennsylvania passed an act on June
19, 1911, known as the full-crew law (P. L. 1053). This law was
attacked in the courts, but was upheld by the supreme court in the
case of Penn. R. R. Co. v. Ewing, 241 Pa. 581, 88 Atl. 775 (Bui.
No. 152, p. 156). Since this decision several efforts have been made to
secure the repeal of the law. Spayd was expelled from the union as
having violated the above rule 23 because he subscribed to 'a petition
to the legislature to reconsider this statute. He brought suit against
the union to require it to reinstate him, but the common pleas court
dismissed the bill. On appeal the superior court reversed the deci
sion and ordered Spayd reinstated, whereupon the union appealed
to the supreme court. In affirming the decision of the superior court,
a decision was rendered from which the following is quoted:
Defendants contend plaintiff confined his case to “ the ground that
rule 23 was void, and not that he had not infringed it ” ; and,
although the superior court considered other additional matters,
since we are of one mind that the rule, as construed by defendants,
breaches the fundamental law of the State, wT shall accept their
e
suggestion as to the limits of the controversy, and rest our decision
on constitutional points alone.
The Pennsylvania bill of rights, sec. 7, says:
“ The free communication of thoughts and opinions is one of the
invaluable rights of man, and every citizen may freely speak, write,
and print on any subject, being responsible for the abuse of that
liberty”; that the citizens shall have the right to petition “ those
invested with the powers of government for redress of grievances
or other proper purposes”; finally, that such prerogatives of the
individual citizen are 6 excepted out of the general powers of gov
6
ernment and shall forever remain inviolate.”
The present case turns on a consideration of these fundamental
principles; we shall first express our general view concerning their
application, and then consider the subject of the right of petition
more particularly. The rights above noted can not lawfully be
infringed, even momentarily, by individuals, any more than by the
State itself; and least of all can they be breached by corporations
and unincorporated associations, which function only by grace of
the State, and the “ supervision and control ” of which are specifi
cally vested in courts of equity by the act of June 16, 1836 (P. L.
784, sec. 13, par. 5; Pa. St. 1920, sec. 4562). We have often said
that the by-laws, rules, and regulations of these artificial bodies
will be enforced only when they are reasonable, and they can never
be adjudged reasonable when, as here, they would compel the citizen
to lose his property rights in accumulated assets, or forego the ex
ercise of other rights, which are constitutionally inviolable. De
fendant lodge is part of a beneficial organization, and there is a
101296°—22-----12
164
TEXT AND SUMMARIES OF DECISIONS.
finding that plaintiff has a substantial property interest therein.
Under these circumstances, it will not do to say that he can freely
regain full liberty of action, at any time, by disassociating himself
from the order; but, even if he could, the rule, as construed by
defendants, would still be discountenanced, and void in law.
When plaintiff signed the petition to the legislature to repeal the
full-crew la^v, he was communicating his “ thoughts and opinions”
to that body and seeking at its hands redress of what he con
sidered a public “ grievance ”—relief which the lawmakers alone
could grant. Since plaintiff viewed the statute petitioned against
as such a grievance, the course of conduct pursued by him was not
only within his legal rights, but accorded with his solemn duty as
a citizen, for the exercise of which he can under no circumstances
be penalized.
Appellants’ contention that the application of rule 23 to plaintiff
does not deprive the latter of his right of petition, but merely dele
gates it to defendant order during his association therewith, can
not be sustained. Any agreement or contract handing over to others
such a prerogative, to be exercised on the citizen’s behalf, is against
public policy and void. The right here involved, and the voting
franchise, are the only means by which peaceful changes in our
laws and institutions may be sought or brought about, and they can
not, with safety to the State or the whole body of the people, be
gathered into the hands of the few for any purpose whatsoever.
Therefore, on principle, the law will not sanction their delegation.
We may add that a temporary giving up or denial of an inalienable
right such as the one in hand is as void as though permanent in
character ; that portion of rule 23 hereinbefore quoted, as construed
by defendants—denying plaintiff the right to petition the legisla
ture—has no binding force; hence Spayd was improperly expelled
for a violation thereof.
L
abor
O r g a n iz a t io n s — S t r ik e s — A
cts
of
V
io l e n c e —
I n ju n c
—Charleston D ry Dock and Machine Co . v . O^Rourke et al .,
U nited States D istrict Court , Eastern D istrict of South Carolina
(August 11, 1921), 27Ip Federal Reporter, page 811 .—A suit was
brought against the defendants, who were members of unions that
had called a strike in the plaintiff’s yard. The court granted a mo
tion for a preliminary injunction against the defendants to restrain
them from doing unlawful acts in connection with the strike, be
cause, said the court, “ It may be impossible to identify any particu
lar individual as the one who shot out the lights, or committed the
other acts against the property of the complainant, calculated to in
jure its property and harass and obstruct it in its operations, yet it
is manifest that these acts, as well as the acts of violence upon the
persons of its employees and the threats extended to them, are the
sequence of the strike and are in pursuance of the intentions, threats,
and acts of the defendants.” Judge Smith continued:
The fundamental basis of this free Government is that its citizens
shall be free—free to own their own property, and perform their
t io n
LABOR ORGANIZATIONS.
165
own tasks, and follow their own lives, in pursuit of their own happi
ness, as each sees it, provided only that the laws of.the Eepublic are
observed. The moment any number of citizens, relying on greater
physical strength, assume to themselves, by violence or intimidation,
to prevent another citizen from exercising his legal rights, or by un
lawful coercion, inducement, or persuasion attempt to put an end to
the freedom of another citizen, by depriving him of the power to use
his own labor and enjoy his own property as allowed by law, at that
momept the ordered freedom of the Eepublic is destroyed and the
despotism of a lawless mob substituted.
The difference between a mob of lynchers, who put a helpless cap
tive to death without trial, and a mob of so-called strikers, who beat
a helpless fellow workman because he differs from them in opinion
as to how he shall exercise his undoubted legal rights, is one of degree
and not of kind. In either case, it is an essential law of a free people
that is violated. Nothing may be more base and cowardly than the
assault of a number, relying on the strength of their numbers, upon
an unprotected individual, whose helplessness is taken advantage of
to compel him, by physical maltreatment, to yield up his legal rights,
unless it be the willful failure of the guardians of the peace to afford
protection to the weak, or of the courts to award the shield of the
law’s enforcement.
Whatever may have been supposed to be the ancient rule that an
injunction could not issue from a court of equity to restrain the com
mission of a crime, it may be regarded as settled in this country, since
the decision in the case of In re Debs, 158 U. S. 564, 593, 15 Sup. Ct.
900, that the fact that the threatened invasion of plaintiff’s rights
will amount at the same time to an offense against the criminal laws
is no bar to relief by injunction at the instance of a private party.
L a bo r O r g a n iz a t io n s — S t r ik e s — C o n c il ia t io n a n d A r b it r a t io n —
S
—Moore Drop Forging Co . v .
Fisher et al ., Supreme Judicial Court of Massachusetts (September
16 , 1921 ), 132 Northeastern Reporter , page 169 .—The Moore Drop
C o n s t it u t io n a l it y
of
tatute
Forging Company in December, 1920, discharged from its employ 58
men. Thereafter 120 men left its service and combined to maintain
and carry on a strike against the plaintiff. The defendants in this
action comprised the board of conciliation and arbitration, who, on
January 18, 1921, gave notice that they intended to hold a public
meeting to investigate the strike. On January 19, 1921, the plaintiff
filed a suit in equity to enjoin the officers and members of various
unions carrying on the strike, alleging that the strike was unlawful
and was carried on by unlawful means. The plaintiffs asked for a
temporary injunction against the holding of a public meeting of the
board, pending the outcome of the litigation, claiming that the ac
tion of the board would prejudice their rights in their suit for in
junction against the strikers.
The suit against the board was dismissed, and the plaintiffs ap
pealed to the supreme court. That court affirmed the action of the
166
TEXT AND SUMMARIES OF DECISIONS.
lower court, holding that a statute authorizing investigation of
strikes was valid,' and that the administrative investigation of strikes
pending a suit for an injunction was not an intereference with the
functions of the judicial department. Chief Justice Rugg, speaking
for the court said:
The public has a just interest in the causes of strikes and in plac
ing responsibility and blame for their instigation, prosecution, and
continuance. The disorder and violence which frequently accom
pany strikes are matters of common knowledge and often have been
adverted to in decisions. The economic waste and immediate finan
cial loss both to employers and employees arising from strikes are too
well known to require discussion. Where a strike exists involving
more than 25 employees, the public concern in the matter is sufficient
to justify an impartial investigation by an unbiased board of public
officers within the bounds set forth in the statute. Legislation such
as is here assailed is authorized by the general welfare clause of chap
ter 1, section 1, article 4, part 2, of our Constitution. It has direct
connection with the public safety, health, and welfare, the recognized
foundations for the exercise of the police power. It is within the
class of statutes upheld in many cases reviewed in Holcombe v.
Creamer, 231 Mass. 99,120 N. E. 354 [Bui. No. 258, p. 144], and is sup
ported by the principle of that decision which need not be here fur
ther amplified.
It must be presumed that the defendants will proceed in accord
ance with law and will not violate constitutional guaranties of per
sonal liberty and individual freedom.
L a b o r O r g a n iz a t io n s — S t r i k e — E f f e c t o n C o n t r a c t o f E m p l o y
— S
E
— Birmingham Trust <& Savings Co. v.
A tlan ta , B. & A . B y. Co ., United States D istrict Court , Northern
D istrict of Georgia {M arch 26, 1921), 271 Federal Reporter, page
71$.—This was a suit in equity in which a receiver was appointed
m en t
tatus
of
m plo yees
for the defendant company. N. H. Evans and others for them
selves and as representatives of several unions moved for a declara
tion of the status of striking employees at a hearing on the question
of wages to be paid by the receiver to the employees. (See p. 219.)
Judge Sibley, speaking for the court, said, in part:
Aside from statutory uses, employment means, in common-law
language, the existence of the relation of master and servant. This
may consist either in a binding contract for service or in actual
service without a definite contract. One or the other is necessary.
The right (with well-known exceptions) of one to refuse to serve,
even though under a binding contract to do so, is a part of the
constitutional personal liberty of the land. The failure or refusal
to perform a contract of service may create a liability in damages,
but no court will enforce the service.
A lawful strike, whether the employment consists in a definite con^
tract or is merely an existing relation, involves generally an aban
donment of the employment and a termination by the strikers of the
167
employment so far as they are concerned. It may be a strategic
move to force at last a better employment, but it definitely destroys
the present one, so far as the employees can destroy it. In this
case the motion itself admits that there was a complete strike—a
concerted refusal of all employees represented to do their customary
work wT summoned by the receiver. He accepted the situation
hen
and employed others to the number of 900, as many as he is at pres
ent able to pay. Evidently these and not the old men are now the
employees.
But it is said that as to the trainmen the receiver had improperly
announced a reduction of pay, and this is true. But the rights of
the trainmen, under the Newlands Act (Comp. St., secs. 8666-8676),
may be analogized to those that would exist under a definite contract
to serve for the 20 days involved, at the fixed wage. As in the case
of a contract, the benefit of the act may be waived by the trainmen.
(Fort Smith Bailway Co. v. Mills, 253 U. S. 206, 40 Sup. Ct. 526.)
The wages here were not payable in advance of service, but were not
due until about April 1st. The receiver’s announcement was no more
than an anticipatory breach of his duty to pay, like an anticipatory
breach of a contract to pay, which gave the other party the choice
of treating the relation as broken and abandoning it without incurring
liability, or of denying the right to terminate it and performing or
tending the service and claiming the pay.
Both things may not be done. A contract could not be treated as
broken and abandoned, and also treated as unbreakable and to be
performed.
In this case, after the receiver announced his wage reduction, the
trainmen, with the others, conferred with him and insisted on the
sole jurisdiction of the Labor Board, but made no mention of the
Newlands Act; and as to the question discussed they were referred
by the receiver to the provision in the court’s order for a hearing at
any time before the court. The men remained at work under pro
test. This was, as has been ruled, sufficient to reserve all rights, in
cluding those under the Newlands Act, and rebutted any inference
of consent to the reduction.
The refusal to work further on March 5th, when summoned by
the receiver, no matter what the reason or justification, terminated
the employment. The invitation to present any contention to the
court was extended by the original order of February 28th. A
definite time for a hearing was set in advance of the next pay day
on March 26th, without withdrawing the original invitation, which
was open for any time. After the strike had commenced on March
5th, an order was made emphasizing the right to a hearing, and
warning of this very complication, if the service should be aban
doned.
A strike, though a lawful and a valuable economic Weapon, is
not a substitute for orderly procedure in court and can not be allowed
as a legal remedy for legal rights as against a receiver, without
asserting that our courts can not or will not do justice, which is to
announce the failure of orderly government. Although the strike
vote was taken January 28th, weeks before the receivership, and
involved only a demand for a decision by the Labor Board, which
it has held itself without authority to make, and although this only
LABOR ORGANIZATIONS.
TEXT AND SUMMARIES OF DECISIONS.
168
was agitated in the conference with the receiver, and as to this ques
tion the men have been held to be in the wrong, yet there was the
aggravation of the oversight of the Newlands Act, and reason, per
haps, for misunderstanding about the hearing. The strike has been
conducted without violence connected with the striking employees
and without personal bitterness between them and the receiver and
no reason appears why they should not be reemployed, so far as the
receiver has employment for them. He testifies that he will be glad
to give it to them. We do not, however, think it right to direct him
to reemploy them in a body, not only because he has not now sufficient
business, but also because it would not be right to discharge those
who have taken some of the places and are proving acceptable and
contented employees. Reemployment must be treated as an admin
istrative detail and to be taken up with the receiver.
L abor
O r g a n iz a t io n s — S t r ik e s — I n j u n c t i o n — C o n t e m p t o f
C o u r t — F e l o n y —State ex rel. H opkins, A tty. Gen., et al. v . H owat
et al., Supreme Court of Kansas (June 11, 1921), 198 Pacific R e
porter, page 686.—The defendants were officers and members of the
district board of District No. 14, United Mine Workers of America.
The Legislature of Kansas at the special session of January, 1920,
passed a law creating a court of industrial relations for the super
vision of and to secure the continuous operation of industries affected
with a public interest. This court had taken jurisdiction of a con
troversy between employers and miners, and in the exercise of such
jurisdiction had subpoenaed Howat and others to testify as witnesses.
They had refused to obey these subpoenas and other subpoenas for
like purpose issued by the district court, and had been committed to
j ail for contempt of court. The attorney general filed a petition for
an injunction against the United Mine Workers of America and the
officers and members of local unions of District No. 14 to enjoin them
from interfering with the operation of coal mines in the mining
districts of the State of Kansas. The petition alleged that the de
fendants were conspiring and confederating among themselves and
with others to violate the act creating the court of industrial rela
tions. The injunction was granted. In February, 1921, the officers
of the district board of District No. 14 ordered a strike. The mem
bers of the union obeyed the order. Howat and the other defendants
were accused of contempt, and after a hearing, the court, without a
jury, found them guilty of violation of the injunction and of con
tempt of court. It was ordered that they be confined to jail for
a period of one year and pay the costs of the prosecution. The de
fendants appealed to the supreme court. The assignments of error
presented questions relating to the validity of the violated injunction
and the validity of the act creating the court of industrial relations.
The supreme court affirmed the judgment of the district court in a
LABOR ORGANIZATIONS.
169
lengthy decision which cited many authorities, set forth several
industrial and economic facts, and as a note included chapter 29,
Special Laws of 1920, creating the court of industrial relations. The
following quotations are taken from the opinion written by Judge
Burch:
The power of a court in any case to grant an injunction for any
purpose is not statutory. In the absence of statute, power exists
in courts to grant injunctions for numerous purposes. The power
not being statutory, and not being in derogation of the common
law, is not strictly construed. If the power were statutory, it
would be liberally construed, to accomplish just and equitable pur
poses, because of an express statute of this State.
It is said the injunction was invalid, as an attempt to enjoin a
crime. If so, the injunction order was not void, and the defendants
are precluded from attacking it in this proceeding.
The purpose of the injunction was not to enjoin crime, and bore
no other relation to administration of the criminal law. The pur
pose was to prevent the irreparable injury which the petition for
injunction alleged would occur, and which the court found would
occur, unless the defendants were restrained from executing their
designs. It might be the defendants would incur sentences to the
penitentiary or to jail, but the imposition of those penalties would
not fulfill the obligation of the State of Kansas to protect its people
from the calamitous consequences of the defendants’ wrongdoing,
and for which there was no redress.
Nor is there in this any invasion of the constitutional right of
trial by jury. * * * The power of a court to make an order
carries with it the equal power to punish for a disobedience of
that order, and the inquiry as to the question of disobedience has
been, from time immemorial, the special function of the court. (In re
Debs, 158 U. S. p. 594, 15 Sup. Ct. 910.)
It is contended the act creating the court of industrial relations
contravenes section 16 of article 2 of the constitution of the State,
in that it contains more than one subject, and the subjects are not
clearly expressed in the title.
In a certain sense, the act embraces two subjects: Regulation of
public utilities, and regulation of those industries which have to do
with supplying the people with necessaries of life. In the same
sense, the second subject is doubly triple. It embraces food, cloth
ing, and fuel, and it embraces production, manufacture, and dis
tribution. According to the same method, the act might be con
ceived as divided into as many subjects as a carefully prepared
index of its contents would disclose. That, however, is not the
method by which to determine the scope of a statute. The question
in any case is, Are the particulars so diverse that they may not be
connoted in a single generic concept? In this instance the general
concept is enterprise affected with a public interest, and the group
ing is not only natural, but consistent and harmonious.
Employers and employees disagree about how the product of their
joint contributions to industry shall be divided. In the last analysis,
hours, working conditions, recognition of union, etc., revolve about
this fundamental subject of grievance. The subject is of great im
170
TEXT AND SUMMARIES OF DECISIONS.
portance to the employer. It is of even greater importance to the
employee, because on wages depend food, clothing, and shelter;
recreation, and the details of daily living; the value of the worker
to the community in which he lives; and even the length of time he
will live. Disagreements become acute, the contestants become hos
tile to each other, sometimes each one resorts to force, and the public,
the great employer of both labor and capital, suffers grievously.
The court concludes the business of producing coal bears an inti
mate relation to the public peace, good order, health, and welfare;
that such business is affected with a public interest; and that such
business may be regulated, to the end that reasonable continuity and
efficiency of production may be maintained.
It is said the act of 1920 is void because it trenches on personal
liberty. The personal liberty contended for is liberty to leave the
employer’s service. All the leading cases in which the principle in
volved have been discussed are cited. It is not necessary to review
them. The statute expressly guards the privilege of any employee
to quit his employment at any time. He may quit before controversy
arises, when controversy arises, while controversy is raging, and
after controversy has been adjusted. As many others as desire may
do likewise, and they may do so as the result of mutual interest con
sultations. No employee may, however, transgress the limits of his
personal privilege, as defined earlier in this opinion, for the pur
pose of limiting or suspending production, contrary to the provisions
of the act.
The foregoing case together with another case of the same title
(107 Kans. 423, 191 Pac. 585; see Bui. No. 290, p . 170) came to the
Supreme Court of the United States on writs of error. The earlier
case involved the power of a district court of the State to punish
by imprisonment persons who refused to comply with the subpoenas
and summons of the court of industrial relations.
The writs of error were for the purpose of testing the constitu
tionality of the laws creating the court of industrial relations, but
Chief Justice Taft, speaking for the court, found that the State
courts had disposed of the questions before them on principles of
general law, no Federal questions being involved (Howat v. Kansas,
42 Sup. Ct. 277). The Kansas Supreme Court had cited Interstate
Commerce Commission v. Brimson, 154 U. S, 447, 14 Sup. Ct. 1125,
as authority for the power of a properly constituted court to enforce
the investigative features of the industrial relations act. This was
approved, and an added citation given by Chief Justice Taft in sup
port of the position taken, adding that even if the features of this
law which were complained of had been void, the power to punish
for contempt had been sustained on general law.
Passing to the second case, set forth above, much the same situa
tion was found to exist. . An injunction issued by a constitutional
court of general jurisdiction with power to issue injunctions, and
having the parties within its jurisdiction must be obeyed, and can
171
LABOR ORGANIZATIONS.
not be attacked in a collateral proceeding. “ It is for the court of
first instance to determine the question of the validity of the law,
and until its decision is reversed for error by orderly review, either
by itself or by a higher court, its orders based on this decision are
to be respected, and disobedience of them is contempt of its lawful
authority, to be punished.” No Federal question being involved, this
writ also was dismissed.
L abor
O r g a n i z a t i o n s — S t r i k e s -— I n t e r f e r e n c e
tracts—
“ C h e c k -o f f ”— S t r ik e
m en t
C o m pel
w it h
C o l l e c t iv e
C on
n ju n c t io n
to
A g ree
—I
— Kinloch Telephone Go . et al. v. Local Union
No, 2 of International Brotherhood of Electrical W orkers et al .,
United States Circuit Court of Appeals, E ighth Circuit (June 27,
1921), 275 Federal Reporter, page 2^1,—The complainant telephone
companies operate a telephone system in the States of Illinois and
Missouri. The defendants are the union, certain of its officers and
all of its members. The companies had a contract with their em
ployees dated July 3, 1919, which was to be effective for one year.
It provided that complainants’ business would be operated on an
open-shop basis, that the complainants would not interfere with the
union affiliations of their employees, and that, in the event of a dis
agreement, a committee of employees and other persons on com
plainants’ part would act as a board of arbitration, whose decision
would be binding.
During January and February, 1920, a demand was made by'the
union that the complainants pay the union dues of certain,of their
employees or see that such dues were paid or discharge men who
did not pay such dues. The demand was refused. A strike was
then called. Complainants filed suit for the purpose of enjoining
defendants from inducing their employees to break their contract.
A motion for a temporary injunction was denied in the district
court because of section 20 of the Clayton Act.
An appeal was made to the circuit court of appeals. That court
reversed the order appealed from and remanded the case to the
court below with instructions to issue a temporary injunction, upon
the authority of Hitchman Coal and Coke Co. v, Mitchell and Duplex
Printing Press Co. v, Deering et al. Judge Carland, speaking for
the court, said:
We agree with, the trial court that the contract between the appel
lants and their employees required arbitration of any dispute which
the evidence may show existed, between the appellants and their
employees, and that the committee referred to in the contract was
intended to be a committee on the part of the employees composed
of employees of appellants, and not a committee of the local union to
which said union employees of appellants might belong, or a commit
172
TEXT AND SUMMARIES OE DECISIONS.
tee composed of the members of the conference board of local unions,
and that neither [on] a proper construction of the contract nor in
common fairness or reason is there any obligation on the part of ap
pellants to pay the union dues of their employees, or to see that such
dues are paid, or to discharge men who do not pay such dues,
although it is clear that this is one of the chief ostensible reasons for
calling the strike. We also agree with the trial court in finding
that the strike was called in a studied and concerted effort on the
part of appellees to unionize the business of appellants, or, in other
words, to compel them to convert their business from an open shop
into a closed shop. We further agree with the trial court that
appellees, as members, officers, and agents of the International
Brotherhood of Electrical Workers and as individuals, are causing,
maintaining, and supporting the strike in question upon wholly
feigned and insufficient grievances, with the aim and intent to compel
appellants to unionize their business; that the result of such action
upon the part of appellees has been to cause the contract existing
between appellants and its employees to be breached by such em
ployees without sufficient reason or excuse in law or in fact, and,
further, that appellees threaten to cause other of appellants’ em
ployees to break their contract with them; and that appellees are
seeking to attain the results above stated by advice, persuasion, and
inducements, bottomed upon labor unionization and union obliga
tions. The trial court was of the opinion upon the facts as stated
that, laying aside section 20 of the Clayton Act (38 Stat. 738), the
case of Hitchman Coal & Coke Co. v. Mitchell (245 U. S. 229, 38
Sup. Ct. 65 [Bui. No. 246, p. 145]) clearly entitled the appellants to a
temporary injunction, but it was of the opinion that the Clayton
Act did not pass under judgment in the Hitchman case, as that case,
although decided three years after the Clayton Act took effect, was
commenced seven years before that time. The form of relief asked
for in the Hitchman case, however, operates only in futuro, and
the right to it must be determined as of the time of the hearing.
(Duplex Printing Press Co. v . Deering et al., 254 U. S. 443, 41 Sup.
Ct. 172 [Bui. No. 290, p, 174] decided by the Supreme Court, January
3,1921, and since the decision of the court below in the present case.)
Therefore the Supreme Court in the Hitchman case must have con
sidered the effect of the Clayton Act on that case. Light is thrown
upon the Hitchman case by the language used by Justice Brandeis in
his dissenting opinion in the Duplex case. He said:
“ Unlike Hitchman Coal & Coke Co. v. Mitchell, there is here no
charge that defendants are inducing employees to break their con
tracts, nor is it now urged that defendants threaten'acts of violence.”
. The only inference to be drawn from this language is that the
Hitchman case established the law on the facts appearing therein,
notwithstanding section 20 of the Clayton Act. We are therefore
of the opinion in view of the decision of the Supreme Court in
the Duplex case, that the trial court erred in holding that section
20 of the Clayton Act forbids the issuance of an injunction in the
present case. In the Duplex case it was decided that section 20 is
limited to the employees affected regarding their own employment,
and does not confer privileges upon all members of a labor organi
zation to which they might belong. It was also decided in the same
173
LABOR ORGANIZATIONS.
case, if we interpret the decision correctly, that while anyone may
quit their employment even though a contract exists, yet they may
not peacefully persuade others to break their contracts in order to
gain their ends, and the Clayton Act does not legalize such inter
ference. The appellees, who were not employees of appellants,
persuaded some of the employees under contract to break same, were
attempting to persuade others to do likewise, and threatened to have
the telephone operators break their contract. The employees testi
fied in this case that they had no dispute with their employers, and
especially is this true in regard to the women, who had a separate
contract which appellees threatened that they would cause to be
broken. The object and purpose of a temporary injunction is to
maintain the status quo. The issuance of such an injunction gen
erally rests in the sound discretion of the trial court, and that dis
cretion will not be interferred with by an appellate court as to the
facts, unless there has been a serious error committed in the consider
ation of the same.
The law, however, as at present established when applied to the
facts herein stated, fully warrants the issuance of a temporary in
junction. It is therefore ordered that the order appealed from be
reversed, and the case remanded to the court below, with instruc
tions to issue a temporary injunction in accordance with the views
herein expressed.
L abo r
tracts—
O r g a n iz a t io n s — S t r ik e s — I n t e r f e r e n c e
P e r s u a s io n
P ro per
w it h
A r g u m e n t — I n ju n c t io n
C on
—Mc-
Michael et al. v. A tlanta Envelope Go. et al., Same v. Webb & Vary
(Inc.), Supreme Court of Georgia (August 10, 1921), 108 South
eastern R eporter , page 226.—The two cases were heard together in
by
the trial court upon the same evidence, which resulted in a temporary
injunction being issued against the defendants, McMichael and
others, individually and as representatives of Atlanta Printing
Pressmen and Assistants* Union No. 8, enjoining their interference
with the employees of the plaintiff companies. It was alleged that
the defendants made a demand upon the plaintiffs that they contract
to give to all the pressmen and feedmen employed by them at that
time a large increase in wages, to reduce the working hours, and
also to “ close” the shop. Upon refusal of the demands all of the
pressmen and feedmen then employed by plaintiffs walked out, mak
ing it necessary for plaintiffs to secure nonunion pressmen and feedmen or yield to the demands which they claimed would cause bank
ruptcy. The plaintiffs had at great expense made contracts of em
ployment with nonunion men upon the understanding that such em
ployment would immediately cease if the employee should join the
said union. The allegations further declared that the defendants
had approached the nonunion men employed by plaintiffs and sought
by threats, menaces, intimidation, coercion, and persuasion to induce
them to breach their contracts of employment with plaintiffs and
leave their employment.
174
TEXT AND SUMMARIES OF DECISIONS.
The defendants appealed to the supreme court, but that court,
speaking through Judge Gilbert, upheld the judgment of the lower
court, saying in part:
The question to be determined is whether the plaintiffs in error
in this case exceed their lawful rights. Plaintiffs in error rely upon
the case of Jones v. Van Winkle Gin & Machine Works, 131 Ga. 336,
62 S. E. 236, where this court held that—
“ Equity will not enjoin employees who have quit the service of
their employer from attempting by proper argument to persuade
others from taking their places, so long as they do not resort to force
or intimidation, or obstruct the public thoroughfares.”
We find no fault with that decision, and think that it is sound in
principle; and if striking employees do no more than to attempt, by
“ proper argument,” to persuade others from taking their places,
and do not resort to force and intimidation, that a court of equity
would not be authorized to interfere. We are equally sure that
where such former employees attempt by improper argument to dis
suade others from taking their places, and do resort to force, coer
cion, or intimidation, it would equally be the duty of a court of
equity, in a proper case, to interfere by injunction.
The persuasion that the law permits in these circumstances is such
as appeals to the judgment, reason, or sentiment, and leaves the mind
free to act of its own volition. Where there is no such freedom of
action, more than mere persuasion has been exercised, and it amounts
to duress, intimidation, coercion, or other like influence.
In each instance the object sought by the defendants undeniably
was to bring about a severance of the relation of employer and em
ployee between the printing establishments and their new employees.
Whether the object was stated in plain terms or not, if successful
the effect was to cause a breach of the contract. Whether the evi
dence in regard to interference with some of the printing shops and
as to some of the defendants, considered alone as if in a separate case,
would not authorize the grant of an interlocutory injunction, the
judgment will not be reversed where the evidence authorized the
judgment in behalf of some of the plaintiffs against some of the
defendants. The exception is to the judgment as a whole. The
plaintiffs brought the actions together against the defendants, the
Pressmen’s Union acting through their members and officials, charg
ing that the latter were conspiring and acting together against the
plaintiffs as a whole.
Judgment affirmed.
L abor
O r g a n iz a t io n s — S t r i k e s — P ic k e t i n g — I l l e g a l
A cts —
Densten H air Co. v . United Leather Workers' Inter
national Union of Am erica et al ., Supreme Judicial Court of Massa
chusetts (January 7,1921), 129 Northeastern Reporter, page 430 .—
I n ju n c t io n —
The employees of the Densten Hair Co., the Farmers’ Product Co.,
and two glue companies organized themselves during the summer of
1919 into Local No. 10 of the United Leather Workers’ International
Union of America. Shortly afterwards the union demanded that the
LABOR ORGANIZATIONS.
175
hours be reduced from 55 to 48 per week without a corresponding
reduction in pay. This demand was granted. Later the union de
manded a 15 per cent increase in wages, but this was refused, and
after a strike of 2 weeks in July and August, a compromise was
arrived at. In January, 1920, the union again demanded a 15 per
cent increase in wages but the employers refused to answer. On the
evening of Wednesday, February 18, 1920, the members of the union
voted to go on a strike in the morning of the following Friday. No
notice was given the employers of this proposed action, but they,
having heard of the strike vote, assembled their employees on Thurs
day evening and informed them that the factory would shut down
until the following Monday, and that those who were satisfied with
the prevailing wages could return, but those who were not satisfied
were discharged. The union members proceeded to picket the plants
of the employers and indulge in acts of violence and intimidation,
whereupon the employers procured decrees of injunction to restrain
such acts and the union appealed. In afiirming the decrees the
court said in part:
As respects the action of the employees, the master finds that they
“ did not intend to return to work next day, and that their attitude
and belief is that they are on strike against the plaintiffs for an in
crease of wages * * * that the only demand made was for an
increase in wages, and that there was no implied requirement that
the plaintiffs should conduct closed shops.”
The master also specifically finds:
“ That the plaintiffs have obtained a substantially complete work
ing force and are not desirous that the former union employees shall
return; and that after the closing of the factories on February 19
they made no attempt to procure the return of the old employees. ”
We assume in favor of the defendants, as did the master and the
judge in the superior court, that the “ discharge ” of the men was
not intended nor understood to be a complete severance of the rela
tion between the employers and their employees, but was a means
adopted by the employers to counteract the force of the strike which
they knew was scheduled to take place the following morning. We
also assume in favor of the defendants that the “ mass5 action of
5
the employees at its inception was legal because it was taken with a
lawful purpose to force the employers to raise the wages of their
employees as they had been requested to do, and as they, at least
impliedly, had refused to do.
The question argued by the defendants whether a strike instituted
for a lawful purpose can be determined and made illegal, without
the knowledge and consent of the striking employees, by filling their
positions with permanent new employees, upon the facts of these
cases is a moot question, which calls for no decision because the acts
of the defendants were illegal even if the strike continued until the
filing of the bill and the entry of the final decree. (See M. Steinert
& Sons Co. v. Tagen, 207 Mass. 394, 93 N. E. 584.) The illegal
acts of the defendants in aid of the strike and of those persons and
176
TEXT AND SUMMARIES OF DECISIONS.
unions that were induced and persuaded by the defendants to act In
sympathy with the efforts of the defendants, as found by the master,
consisted of picketing, the throwing of a snowball with a stone in
it against the wind shield of a truck of one of the plaintiffs, and the
intimidation of employees of the plaintiffs by the use of unpleasant
language spoken to them, by the throwing of stones at them and by
jostling and crowding them, as such persons went to and from their
work. (Folsom Engraving Co. v. McNeil, 235 Mass. 269, 126 N. E.
479.) It results that the decree is affirmed with costs.
Ordered accordingly.
L a bo r O r g a n iz a t io n s — S t r i k e s — P ic k e t in g — I n t e r f e r e n c e w i t h
C o n tr a c ts— I n ju n c t io n — C l a y t o n
A ct— S ta tu s o f E m plo y e es on
Quirdivan et al. v. D ail-0 verland Go . et al ., United States
Circuit Court of A ppeals, S ixth Circuit {July 19 , 1921), 271± Federal
Reporter, page 56 .—A bill for an injunction was filed by a North
S t r ik e —
Carolina corporation against the Willys-Overland Co., an Ohio manu
facturing corporation, certain union and labor men, and a distribut
ing corporation organized under the laws of Virginia for the pur
pose of distributing the Willys-Overland automobile. The Virginia
and Ohio corporations admit the facts set forth in the plaintiffs’ bill
and pray for an injunction against the union and labor men, who
were conducting a strike against the manufacturing corporation.
A temporary injunction was granted allowing picketing. Later a
permanent injunction was granted without the right to picket.
From this order the union and labor men appealed. The circuit
court of appeals held that the district court had jurisdiction. As to
the merits of the case the court held that “ the allegations of the
original bill, as well as those of both crossbills (which must be re
garded as admitted by appellants), state a flagrant case of unlaw
ful interference with the operation of the Overland plant, and of
long-existing conditions of intimidation, violence, and bloodshed,
justifying relief so far as the court below had jurisdiction to give
it.” The court said that it was “ settled that the right of an em
ployer to keep his business running is a property right under section
20 of the Clayton Act, notwithstanding the existence of a strike.”
On the objection that peaceful persuasion and peaceful picketing
were improperly forbidden the court said “ that there was no longer
a controversy between the Overland Co. and its employees respecting
terms and conditions of employment; that the plant was then run
ning at full capacity and full production; that the strike had then
long ceased to exist, except for certain annoying manifestations on
the part of a comparatively few people; and that none of those could
longer be regarded as employees. ”
LABOR ORGANIZATIONS.
177
L a b o r O r g a n iz a t io n s — S t r ik e s — P ic k e t in g — I n t e r f e r e n c e w i t h
B
— I
— United
Shoe
Machinery C orporation v. F itzgerald et al ., Supreme Judicial Court
of Massachusetts (March
1921), ISO Northeastern R eporter ,
page 86.—The United Shoe Machinery Corporation employed about
C o n t r a c t s — C o l l e c t iv e
a r g a in in g
n ju n c t io n
6,000 employees, most of whom were machinists. In order to prevent
machinists who had been trained by the company at considerable
expense from leaving its employ' the company entered into indi
vidual contracts with each machinist good for one year, in which
the hours and rates of wages were fixed. The defendants are the
officers and members of trade-unions composed of machinists. The
union at first protested against these 4 individual contracts ” ; then
6
it presented an agreement by which the company would have to agree
to employ none but union men in its plant and to recognize the
union’s shop committees. The company declined to accept the agree
ment and continued making the individual contracts. The union
withdrew the proposed agreement and went on a strike, employing
the usual tactics, including picketing, to compel the company to
submit to its terms. The company then brought proceedings to
secure relief, and obtained an injunction. The defendants appealed,
but the decree was affirmed. The opinion of the supreme court is in
part as follows:
The means being legitimate, the company could protect itself from
the interruption of its business and consequent damage from the
action of discontented employees hired in the mass, and controlled
at all times in their contractual relations, by the union of which
they were members.
The union also was under no obligation whatever to recognize the
4 individual contracts,” and its members who had not thus obligated
4
themselves could retire at will from the company’s service, leaving
it to go into the labor market and obtain competent workmen if
any could be found. But the defendants, as the master states, were
not satisfied to take this course, or any other action short of organ
izing and precipitating a strike which should so cripple the industrial
powers of the company as to compel it to abandon its policy of
selecting and hiring employees whenever and wherever it pleased.
The situation very likely was becoming critical as the contracts were
being steadily adopted by considerable numbers of the machinists
until on March 5, 1920, 2,222 employees of a total of about 6,000
had signed.
It is expressly found that there was no dispute concerning wages,
hours of employment, or general conditions of labor. The master re
ports that the union claimed before him that the strike was called in
defense of 4 collective bargaining,” while the plaintiff as alleged in
4
the bill contended that it was ordered to compel the abandonment of
the 4 individual contracts.” The question whether the strike was
4
lawful does not depend upon t«Jie choice of descriptive words. If the
company surrendered to the union it must of necessity give up in the
future the 44individual contracts” as applied to employees of the
TEXT AND SUMMARIES OE DECISIONS.
178
machine department; and the demands, even in modified form, were
not limited to “ collective bargaining” but included an irrevocable
abandonment of the “ individual contracts.”
The defendant’s answer to all of the essential allegations of the bill
is nothing more than a general denial; and, on the master’s findings
with such material inferences of fact as properly could be drawn, the
single justice as shown by the decree could determine that the strike
was for the purpose of compelling the company to do away with “ in
dividual contracts” and to recognize the rights of the union as stated
by their representative; and this conclusion, not being plainly wrong,
should not be reversed.
But if, notwithstanding the unequivocal and positive statements to
the contrary appearing in the circulars it sent out broadcast, the con
tention of the union that the strike was solely to compel the company
to adopt “ collective bargaining ” the decree should stand. - “ What
ever may be the advantages of 4collective bargaining,’ it is not bar
gaining at all, in any just sense, unless it is voluntary on both sides.
The same liberty which enables men to form unions, and through them
to enter into agreements with employers willing to agree, entitles other
men to remain independent of the union, and other employers to agree
with them to employ no man who owes any allegiance or obligation to
the union. In the latter case, as in the former, the parties are entitled
to be protected by the law in the enjoyment of the benefits of any
lawful agreement they mav make.” (Hitchman Coal & Coke Co. v.
Mitchell, 245 U. S. 229, 38^Sup. Ct. 65 [Bui. No. 246, p. 145].) The
strike being illegal, St. 1913, c. 690 [protecting persuasion in certain
circumstances], is not applicable, and the maintenance by the union
of relays of pickets from 25 to 75 in number patrolling the streets in
the vicinity, and at the main entrance of the company’s factory call
ing out at various times the epithets recited in the report, while not
sufficient as the master finds to frighten or coerce other employees,
was unjustifiable. The action taken also was intended to be an inter
ference with existing contracts. Before the vote to strike was taken
the union appointed committees who were instructed to investigate
and report the names of members who had signed existing contracts
in order that charges could be preferred against them, and some 49
members whp had signed contracts joined the strikers, of whom 5
wT in the ranks of the picketers. The circulars which were dis
ere
tributed, as we have said, directly and indirectly assailed the indi
vidual contract system; and the assaults, even if confined to single
instances by individual member's, were all committed upon men who
were under contract. It is plain on the entire report that what was
done was the outgrowth of concerted action manifested in various
forms, but all for the single purpose of forcing compliance with the
terms of the union. We are accordingly of opinion that the injunc
tive relief granted is supported by the record, and the decree should
be affirmed with costs.
L a b o r O r g a n iz a t io n s — S t r ik e s — P ic k e t in g — I n t e r f e r e n c e w i t h
C o n tra cts— S t r ik e
to
C o m pel
C o l l e c t iv e
A g r eem en t— I n ju n c
FloersJteim er v . S ch lesin ger et* al., S u prem e C ourt o f N ew
Y o r k , S pecial T erm , N ew Y o rk C ounty (M arch 2 3 ,1 9 2 1 ) , 187 N ew
t io n
—
LABOR ORGANIZATIONS.
Y ork Supplem ent , page 891 .—Floersheimer
179
is a manufacturer of
dresses and is a member of the Dress and Waist Manufacturers’
Association. The defendants are the International Ladies’ Garment
Workers’ Union and its officers and members. The plaintiff and
other members of his association had entered into a collective agree
ment with the union which expired on December 31, T920. The
plaintiff refused to renew the collective agreement, but instead con
tracted with his employees individually, requiring in each case that
the employees agree not to become members of or become affiliated
with the defendant union. The union thereupon declared a strike
to require plaintiff to eliminate this feature from the individual
contracts. Picketing was resorted to and various acts of violence
were indulged in. The plaintiff brought an action for an injunction,
which was granted. The decision is in part as follows:
The plaintiff, in view of that situation, elected to conduct his
business with his employees, and upon the express agreement with
them that during the continuance of their employment they should
at all times refrain from joining or becoming members in any way
or affiliated with the defendant International Ladies’ Garment
Workers’ Union, or in any other union, and that written agreements
with such employees were made. It is charged that the defendants
have entered into a conspiracy and are conducting a strike against
plaintiff’s business, and causing pickets to congregate about plain
tiff’s factory, and threatening them with physical violence and in
timidating such workers, and inflicting violence upon them in
visiting their homes and attempting to persuade the workers to join
the defendant union, and threatening such workers with bodily harm
if they fail to join such union, and that the defendants are attempt
ing to carry out their plans and purposes by the use of threats, in
timidation, violence, and direct action. Attached to the moving
papers are a number of affidavits of employees of the plaintiff show
ing that threats have been made by some of the defendants against
them, and in a number of cases such employees were assaulted.
Attached to the complaint is a copy of agreements signed by a large
number of plaintiff’s employees, agreeing not to belong to the union.
The amended complaint sets forth a good cause of action. Th$
objection thereto made by defendants that it omitted to allege,
first, that the defendant union had notice of the employment con
tracts, is met by the allegation in paragraph 13:
“ That all of the workers engaged by the plaintiff were and still
are employed pursuant to contracts of employment, all of which
defendant union had notice of.”
It is clear from a reading of the amended complaint that it sets
out a cause of action against all of the members of the union, in
charging them with forming a conspiracy to cause plaintiff’s factory
to shut down and are wrongfully instigating his employees to
quit work. The objections to the sufficiency of the amended com
plaint must be overruled.
Upon all the facts and authorities cited, the motion for an in
junction pendente lite will be granted. Settle order on notice.
101296°—22---- 13
180
L abor
TEXT AND SUMMARIES OF DECISION'S.
O r g a n iz a t io n s — S t r ik e s — P ic k e t in g — I n t im id a t io n — I n
junction—Southern California Iron and Steel Co. v. Am algam ated
Association of Iron, Steel and Tin W orkers, Golden State Lodge,
Local No. 3, et al ., Supreme Court of California (August If, 1921),
200 Pacific Reporter, page 1 .—A permanent injunction was granted
to the plaintiff company restraining the defendant union from inter
fering with plaintiff’s business, intimidating its employees, and plac
ing pickets near its place of business. The defendants appealed, claim
ing that the evidence in the case was insufficient to sustain any of
the material findings as found by the trial court. The company in
sisted that there was ample evidence to sustain a finding of con
spiracy and acts done in furtherance thereof. Judge Lawler wrote
the opinion modifying the decree of the lower court. After quoting
from’several cases, principally United States v. Kane (C. C.), 23
Fed. 748, he said:
In the absence of contract, the right of a workman to quit his
employment is as absolute as the right of a fellow employee to
remain in the employment, or of another workman to take the place
vacated by the one who has quit, or the right of the employer to
dispense with an employee’s services. Furthermore, it is lawful for
the employee who has quit to peaceably persuade a fellow employee
to leave his position. Moreover, if there are a number of employ
ees who had left a common employer, they are within their legal
rights if and when they attempt as a group to persuade other em
ployees, who continue to work, to quit, provided there be no force,
violence, or intimidation, physical or moral, used—that is, the mere
fact of numbers does not necessarily make such persuasion illegal.
But where violence, threats, or intimidation are used in an effort to
induce another to quit his employment, then the acts of an indi
vidual or a, number of individuals, are unlawful, and may be en
joined. However, it is not necessary to the enjoining of such acts
that it be shown there was actual force or expressed threats of physi
cal violence used. It was said in Allis-Chalmers Co. Iron Molders Union (C. C.), 150 Fed. 155, 173, that—
“ Intimidation * * * includes persuasion by or on behalf of
combination of persons, * * * resulting in coercion of the
will from the mere force of numbers.”
After reviewing the conflicting evidence, he continued:
We think it clear from the foregoing summary of the evidence
that the trial court could have found that the union and its members
entered into a “ combination, confederation, and conspiracy” with
the design and for the purposes alleged and found. There was an
abundance of evidence that in carrying out the plan the strikers
used unlawful means, and this evidence amply supports the findings
of threats and intimidation. As to the responsibility of the union
and all its members for the acts of individual strikers, it has been
shown that the strike itself was authorized and directed by the vote
of the union, and at a subsequent meeting it was voted to direct the
strikers to visit the vicinity of the plant in order to persuade the
employees to quit. If the acts of the strikers in congregating around
LABOR ORGANIZATIONS.
181
the respondent’s mill were unlawful, under the rule governing the
liability of coconspirators, each of the strikers, “ by virtue of uniting
in that preconceived purpose, * * * makes himself responsible
for what any one does.” (U. S. v. Kane, supra.)
The judgment as entered, however, is too broad in its terms, in
that it purports to prohibit acts which may or may not be unlawful,
according to the purpose for which they are done, and it does not
clearly couple the acts with the unlawful purpose. Thus, for exam
ple, the placing of pickets near respondent’s place of business for a
purpose not at all connected with said business, and not for the pur
pose of intimidating employees of respondent, so as to coerce them
to quit that employment, nor for the purpose of intimidating persons
intending to become employees of respondent, so as to prevent them
from doing so, could not appropriately be enjoined, since such an
act would not be wrongful as against the respondent, and would not
be calculated to injure the respondent’s business. The judgment is
not clearly expressed in other respects, and it is therefore liable to
be misunderstood in the enforcement thereof if it should be violated.
Consequently it should be modified in these particulars.
L a bo r O r g a n iz a t io n s — S t r ik e s — P ic k e t in g — O p e n - S h o p D is
—I
—American Steel Foundries v. The T ri-C ity Cen
tral Trades Council et al ., United States Supreme Court (December
5 , 1921), 1$ Supreme Court R eporter , page 72 .—The American Steel
pute
n ju n c t io n
Foundries is a New Jersey corporation operating a large plant for
the manufacture of steel products in Granite City, 111. In May,
1914, it filed a bill in the district court for the southern district of
Illinois to enjoin the defendants, the Tri-City Central Trades Council,
and 14 individual defendants from carrying on a conspiracy to pre
vent complainant from retaining and obtaining skilled laborers to
operate its plant.
The Tri-City Central Trades Council is a labor organization com
posed of 37 trade-unions. Complainant’s plant, which ordinarily em
ployed 1,600 men, closed down in November, 1913, but resumed oper
ations in April, 1914, with about 350 of its regular men. When
business was resumed in April the skilled workmen were given
wages at rates from 2 to 10 cents an hour below those paid before
the plant shut down. A committee representing the Trades Council,
in an attempt to secure reinstatement of the previous wage scale,
were told by the manager of the complainant that he ran an open
shop, did not recognize organized labor, and would not deal with
the committee, but would entertain any complaint by an employee.
The council then declared a strike on complainant’s plant. Only
two men, Churchill, a member of the Machinists’ Union, and Cook,
who was not a member of any union, acted upon the order to strike.
The Council then established a picket, which was carried on for
182
TEXT AND SUMMARIES OF DECISIONS.
three or four weeks without intermission until the bill for an in
junction was filed on May 18. Violent methods were pursued from
time to time in such a way as to characterize the attitude of the
picketers as continuously threatening. The defendants in their
answer to the bill in the district court, admitted that the Council had
established a picket upon the streets leading to the plant, with in
structions to notify all persons entering it that a strike had been
called because of reduction of wages, and to use all honorable means
to persuade such persons not to take the places of the men on strike;
but denied threats of injury or violence or responsibility for the
violence that admittedly had occurred. A restraining order was
issued on the filing of the bill, and a final decree was entered by
which the strikers were forbidden to interfere with employees or
would-be employees by persuasion, violence, or threats; picketing at
or near the premises of the employer, or in the streets leading thereto
was also forbidden.
These restrictions were challenged on appeal to the Circuit Court
of Appeals, which modified the final decree by striking out the word
“ persuasion5 in the four places in which it occurred and by insert
5
ing after the clause restraining picketing the following: “ in a threat
ening or intimidating manner.” (238 Fed. Rep. 728. See Bui. No.
246, p. 158.)
The case was then brought to the Supreme Court of the United
States for review. Mr. Chief Justice Taft delivered the opinion of
the court.
It was first decided that, though the Clayton Act was passed after
the commission of the acts of violence above noted, it must control
any decision rendered after its enactment. Section 20 of the act was
quoted, and its provisions forbidding injunctions in labor disputes
“ unless necessary to prevent irreparable injury to property, or to a
property right,” and forbidding injunctions against striking, per
suasion, or attending where one might lawfully be, for purposes of
giving or obtaining information were discussed as follows:
It has been determined by this court that the irreparable injury to
property or to a property right, in the first paragraph of section 20,
includes injury to the business of an employer, and that the second
paragraph applies only in cases growing out of a dispute concerning
terms or conditions of employment between an employer and em
ployee, between employers and employees, or between employees,
or between persons employed and persons seeking employment,
and not to such dispute between an employer and persons who
are neither ex-employees nor seeking employment. (Duplex Print
ing Press Co. v. Deering, 254 U. S. 443, 41 Sup. Ct. 172 [Bui. No.
290, p. 174].) Only two of the defendants, Cook and Churchill, who
left at the time of the strike, can invoke in their behalf section 20.
We must, therefore, first consider the propriety of the decree as
against them, and then as against the other defendants.
LABOR ORGANIZATIONS.
183
The prohibitions of section 20, material here, are those which forbid
an injunction against, first, recommending, advising, or persuading
others by peaceful means to cease employment and labor; second,
attending at any place where such person or persons may lawfully
be for the purpose of peacefully obtaining or communicating infor
mation, or peacefully persuading any person to work or to abstain
from working; third, peaceably assembling in a lawful manner and
for lawful purposes. This court has already called attention in the
Duplex case to the emphasis upon the words “ peaceable ” and “ law
ful ” in this section. (254 U. S. 443, 473.) It is clear that Congress
wished to forbid the use by the Federal courts of their equity arm to
prevent peaceable persuasion by employees, discharged or expectant,
in promotion of their side of the dispute, and to secure them against
judicial restraint in obtaining or communicating information in any
place where they might lawfully be. This introduces no new prin
ciple into the equity jurisprudence of those courts. It is merely
declaratory of what was the best practice always. Congress thought
it wise to stabilize this rule of action and render it uniform.
Continuing, the Chief Justice said:
The object and problem of Congress in section 20, and indeed of
courts of equity before its enactment, was to reconcile the rights of
the employer in his business and in the access of his employees to his
place of business and egress therefrom without intimidation or ob
struction on the one hand and the right of the employee, recent or
expectant, to use peaceable and lawful means to induce present em
ployees and would-be employees to join their ranks on the other.
If in their attempts at persuasion or communication with those
whom they would enlist with them those of the labor side adopt
methods which however lawful in their announced purpose in
evitably lead to intimidation and obstruction, then it is the court’s
duty, which the terms of section 20 do not modify, so to limit
what the propagandists do as to time, manner, and place as shall
prevent infractions of the law and violations of the right of the
employees and of the employer for whom they wish to work.
How far may men go in persuasion and communication and still
not violate the right of those whom they would influence ? In going
to and from work men have a right to as free a passage without ob
struction as the streets afford consistent with the right of others to
enjoy the same privilege. We are a social people, and the accosting
by one of another in an inoffensive way and an offer by one to com
municate and discuss information with a view to influencing the
other’s action are not regarded as aggression or a violation of that
other’s rights. If, however, the offer is declined, as it may right
fully be, then persistence, importunity, following and dogging be
come unjustifiable annoyance and obstruction which is likely soon
to savor of intimidation. From all of this the person sought to be
influenced has a right to be free and his employer has a right to
have him free.
The nearer this importunate intercepting of employees or wouldbe employees is to the place of business the greater the obstruction
and interference with the business, and especially with the property
right of access of the employer. Attempted discussion and argument
184
TEXT AND SUMMARIES OF DECISIONS.
of this kind in such proximity is certain to attract attention and con
gregation of the curious or, it may be, interested bystanders and
thus to increase the obstruction as well as the aspect of intimidation
which the situation quickly assumes. In the present case the three
or four groups of picketers were made up from four to twelve in a
group. They constituted the picket line. Each union interested,
electricians, cranemen, machinists, and blacksmiths, had several rep
resentatives on the picket line, and assaults and violence ensued.
They began early and continued from time to time during the three
weeks of the strike after the picketing began. All information
tendered, all arguments advanced, and all persuasion used under
such circumstances were intimidation. They could not be otherwise.
It is idle to talk of peaceful communication in such a place and under
such conditions. The numbers of the pickets in the groups consti
tuted intimidation. The name “ picket” indicated a militant pur
pose, inconsistent with peaceable persuasion. The crowds they drew
made the passage of the employees to and from the place of work
one of running the gauntlet. Persuasion or communication at
tempted in such a presence and under such conditions was anything
but peaceable and lawful. When one or more assaults or disturb
ances ensued they characterized the whole campaign, which became
effective because of its intimidating character in spite of the admoni
tions given by the leaders to their followers as to lawful methods to
be pursued, however sincere. Our conclusion is that picketing thus
instituted is unlawful and can not be peaceable and may be prop
erly enjoined by the specific term because its meaning is clearly un
derstood in the sphere of the controversy by those who are parties
to it. We are supported in that view by many well-reasoned authori
ties, although there has been contrariety of view. [State and Federal
cases cited.]
A restraining order against picketing will advise earnest advo
cates of labor’s cause that the law does not look with favor on
an enforced discussion of the merits of the issue between indi
viduals who wish to work, and groups of those who do not, under
conditions which subject the individuals who wish to work to a
severe test of their nerve and physical strength and courage.
But while this is so, we must have every regard to the congres
sional intention manifested in the act and to the principle of
existing law which it declared, that ex-employees and others prop
erly acting with them shall have an opportunity, so far as is
consistent with peace and law, to observe who are still working
for the employer, to communicate with them and to persuade them
to join the ranks of his opponents in a lawful economic struggle.
Regarding as primary the rights of the employees to work for
whom they will, and, undisturbed by annoying importunity or
intimidation of numbers, to go freely to and from their place
of labor, and keeping in mind the right of the employer incident
to his property and business to free access of such employees, what
can be done to reconcile the conflicting interests ?
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. We think that the strikers and their sympathizers
engaged in the economic struggle should be limited to one representa
LAROR ORGANIZATIONS.
185
tiye for each point of ingress and egress in the plant or place of
business and tliat all others be enjoined from congregating or loitering
at the plant or in the neighboring streets by which access is had to
the plant, that such representatives should have the right of observa
tion, communication and persuasion but with special admonition that
their communication, arguments and appeals shall not be abusive,
libelous or threatening, and that they shall not approach individuals
together but singly, and shall not in their single efforts at communica
tion or persuasion obstruct an unwilling listener by importunate fol
lowing or dogging his steps. This is not laid down as a rigid rule,
but only as one which should apply to this case under the circum
stances disclosed by the evidence and which may be varied in other
cases. It becomes a question for the judgment of the chancellor 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 of the presence of
groups of pickets, but to allow missionaries.
With these views, it is apparent that we can not sustain the
qualification of the order of the district court which the circuit
court of appeals made. That court followed the case of Iron
Molders Union v. Allis-Chalmers Co., 166 Fed. Eep. 45 [Bui. No.
83, p. 15T], and modified the order of the district court which en
joined defendants “ from picketing or maintaining at or near the
premises of the complainant or on the streets leading to the premises
of said complainant, any pickets and picketing ” by adding the words
“ in a threatening or intimidating manner.” This qualification
seems to us to be inadequate. In actual result, it leaves compliance
largely to the discretion of the pickets. It ignores the necessary ele
ment of intimidation in the presence of groups as pickets. It does
not secure practically that which the court must secure and to which
the complainant and his workmen are entitled. The phrase really
recognizes as legal that which bears the sinister name of u picketing ”
which it is to be observed Congress carefully refrained from using in
section 20.
There remains to consider, so far as defendants Churchill and
Cook, the ex-employees, are concerned, the part of the decree of
the district court which forbade them by persuasion to induce em
ployees, or would-be employees to leave, or stay out of, complainant’s
employ. The effect of it is to enjoin persuasion by them at any
time or place. This certainly conflicts with section 20 of the Clayton
Act. The decree must be modified as to these two defendants by
striking out the word “ persuasion.”
The second important question in the case is as to the form of
decree against the Tri-City Trades Council and the other defendants.
What has been said as to picketing applies to them, of course, as
fully as to the ex-employees, but how as to the injunction against
persuasion ?
The argument made on behalf of the American Foundries in sup
port of enjoining persuasion is that the Tri-City Central Trades
Council and the other defendants being neither employees nor strikers
were intruders into the controversy, and were engaged without excuse
in an unlawful conspiracy to injure the American Foundries by entic
ing its employees, and, therefore, should be enjoined.
186
TEXT AND SUMMARIES OF DECISIONS.
It is to be noted, that while there was only one member of the
unions of the Trades Council who went out in the strike, the number
of skilled employees then engaged by the Foundries was not onequarter of the whole number of men who would be engaged when it
was in full operation. The works manager said that 80 or 90 per
cent of the employees were old men and that he assumed these men
were members of various organizations. Other witnesses, members
of the unions, testified that they had been employees of complainant
in the previous fall. It is thus probable that members of the local
unions were looking forward to employment when complainant
should resume full operation, and even though they were not ex
employees within the Clayton Act, they were directly interested in
the wages which were to be paid.
Is interference of a labor organization by persuasion and appeal to
induce a strike against low wages, under such circumstances without
lawful excuse and malicious? We think not. Labor unioi>s are
recognized by the Clayton Act as legal when instituted for mutual
help and lawfully carrying out their legitimate objects. They have
long been thus recognized by the courts. They were organized out
of the necessities of the situation. A single employee was helpless in
dealing with an employer. He was dependent ordinarily on his
daily wage for the maintenance of himself and family. If the em
ployer refused to pay him the wages that he thought fair, he was
nevertheless unable to leave the employ and to resist arbitrary and
unfair treatment. Union was essential to give laborers opportunity
to deal on equality with their employer. They united to exert in
fluence upon him and to leave him in a body in order by this incon
venience to induce him to make better terms with them. They were
withholding their labor of economic value to make him pay what
they thought it was worth. The right to combine for such a lawful
purpose has in many years not been denied by any court. The strike
became a lawful instrument in a lawful economic struggle or compe
tition between employer and employees as to the share or division be
tween them of the joint product of labor and capital. To render this
combination at all effective, employees must make their combination
extend beyond one shop. It is helpful to have as many as may be in
the same trade in the same community united, because in the com
petition between employers they are bound to be affected by the stand
ard of wages of their trade in the neighborhood. Therefore, they
may use all lawful propaganda to enlarge their membership and
especially among those whose labor at lower wages will injure their
whole guild. It is impossible to hold such persuasion and propoganda, without more, to be without excuse and malicious. The
principle of the unlawfulness of maliciously enticing laborers still
remains and action may be maintained therefor in proper cases,
but to make it applicable to local labor unions, in such a case as this,
seems to us to be unreasonable.
The elements essential to sustain actions for persuading employees
to leave an employer are first, the malice or absence of lawful excuse,
and, second, the actual injury. The effect of cases cited as authority
must be determined by an examination of the pleadings and facts to
see how the malice or lack of lawful excuse was established, and
whether there was not illegality present in the means used.
LABOR ORGANIZATIONS.
187
Gases were then cited and distinguished from the present case,
among them that of Hitchman Coal & Coke Co. v. Mitchell (245
U. S. 229, 38 Sup. Ct. 65, Bui. No. 246, p. 145), and the Duplex
case (Bui. No. 290, p. 174), and the opinion concluded:
The Hitchman case was cited in the Duplex case, but there is
nothing in the ratio decidendi of either which limits our conclusion
here or which requires us to hold that the members of a local labor
union and the union itself do not have sufficient interest in the wages
paid to the employees of any employer in the community to justify
their use of lawful and peaceable persuasion to induce those em
ployees to refuse to accept such reduced wages and to quit their
employment. For this reason, we think that the restraint from
persuasion included within the injunction of the district court was
improper, and in that regard the decree must also be modified. In
this we agree with the circuit court of appeals.
The decree of the circuit court of appeals is reversed in part and
affirmed in part and the case is remanded to the district court for
modification of its decree in conformity with this opinion.
Mr. Justice Brandeis concurs in substance in the opinion and the
judgment of the court.
Mr. Justice Clarke dissents.
L abo r
O r g a n iz a t io n s — S t r ik e s — P ic k e t in g — O p e n - S h o p
D is
Marks Arnheim ,{Inc.) v. H illm an et al ., Supreme
Court of Ne%o York, A ppellate Division {July 25, 1921), 189Neio
Y ork Supplem ent, page 369 .—Action was brought by Marks Arn-
pute
— I n ju n c t io n —
heim (Inc.) against Sidney Hillman individually and as general
president of the Amalgamated Clothing Workers of America and
others for a permanent injunction to restrain the defendants from
picketing the plaintiff’s place of business, for the dissolution of
the defendant associations, and for money damages. A motion
was made for a temporary injunction fading the outcome of
the litigation. From an order denying this motion the plaintiff
appealed to the appellate division of the supreme court. The lower
court was reversed and the motion for an injunction granted, Judge
Greenbaum stating the opinion of the court, in part as follows:
It is apparent that the court is not in a position upon the record
before it to determine whether the defendant Amalgamated Clothing
Workers of America is a mischievous, disloyal, and un-American
organization. The proper forum for threshing out the matter of its
character and aims would be upon the trial of the action. We shall
therefore, on this appeal, disregard the serious accusation against
the Amalgamated Clothing Workers of America, and assume that it
is a loyal American association, and consider the question before us
upon other features of the case.
Upwards of 40 affidavits were submitted by plaintiff, which, read
in connection with the opposing affidavits, disclose a persistent and
organized campaign of unlawful acts of assault, abuse, threats, and
188
TEXT AND SUMMARIES OF DECISIONS.
intimidation towards the employees of the plaintiff, and also towards
the contractors to whom plaintiff was sending the work. The moving
affidavits set forth with sufficient detail the matters to which they
refer, and in a large number of cases the names of those who are
charged with lawlessness and misconduct are given. There were 6
convictions for assault.
The answering affidavits indicate clearly that troublous incidents
occurred, in which the plaintiff’s employees and members of the
defendants’ union were involved. The defendants admit the
methods pursued by them in visiting the various shops of plain
tiff’s contractors for the purpose of ascertaining whether they were
engaged in doing work for the plaintiff.
Direct proof of a conspiracy is rarely available. Conspiracies are
ordinarily hatched in secret. The incriminating circumstances sur
rounding the acts of conspirators, the cumulative testimony of many
witnesses, who have no apparent reasons for inventing occurrences
or falsely testifying, and the strong probabilities that the incidents
narrated took place, justifying the conclusion that the members of
defendants’ union were guilty of many acts of lawlessness and un
justifiable interferences with the plaintiff’s business, and that the
picketing was not peacefully nor legally conducted.
The order denying the motion for an injunction pendente lite
should be reversed, with $10 costs and disbursements, and the de
fendants enjoined from further picketing in front of the plaintiff’s
place of business, and from interfering with the conduct of the free
dispatch of the plaintiff’s business, or in any manner hampering,
hindering, or harassing plaintiff’s employees.
L abo r
O r g a n iz a t io n s — S t r ik e s — P ic k e t in g — R e in s t a t e m e n t
of
W alter A . W ood M owing <&
Reading Machine Co. v. Toohey et al ., Supreme Court of New Y ork ,
Special Term (January £4, 1921), 186 New Y ork Supplem ent , page
96.—The plaintiff company discharged Toohey, one of its union em
D is c h a r g e d
E m p l o y e e — I n ju n c t io n —
ployees. The union, holding that Toohey’s discharge was an un
just discrimination against him, called a strike of the union em
ployees of the plaintiff company for the purpose of compelling his re
employment. Picketing was indulged in to prevent nonunion men
from working for plaintiff. No acts of violence, threats, or in
timidation were indulged in. The employer sued for an injunction
and was granted a temporary injunction which the defendant union
members now seek to vacate. In annulling the injunction the court
said in part:
If discrimination was the reason why the men went out the strike
was lawful, for a labor union has a right to strike “ to secure the
reemployment of a member they regard as having been improperly
discharged.” (Nat. Pro. Assn. v. Cumming, 170 N. Y. 315, 63 N. E.
370, 58 L. R. A. 135, 88 Am. St. Rep. 648.) Workingmen have an
absolute right to strike. That is settled beyond peradventure in this
LABOR ORGANIZATIONS.
189
State. They may state their reasons or not, just as they please, and
their reasons, if they do state them, “ may seem inadequate to others,
but if it seems to be in their interest as members of an organization
to refuse longer to work, it is their legal right to stop.”
And laboring men not only have the right to strike—that is, to
quit work—but they have the right to persuade others to strike and
to attempt to persuade others not to take their places. In order to
do this the strikers must, of course, be permitted to talk to their
fellow workmen and to the men who are about to take their places;
otherwise there could be no persuasion, for how can one man per
suade another unless he talks to him ? The strikers must not, how
ever, resort to violence or intimidation; for the nonunion man has
as much right to work as the union man has to strike. These are
axioms. They are principles which have long been embedded in the
law.
The strikers are accused of “picketing”; in fact, that is the one
great grievance set forth in the complaint. But suppose they are
picketing. What of that? They have as much right to picket as
to strike, providing that they do not resort to threats or violence.
Picketing simply means standing along the highways of approach,
or near the entrances to the plant, in time of strike, for the purpose
of observing who is working and of attempting to persuade them
to quit. Nonunion laboring men have a right to work and to go to
and come from the shop unmolested, and corporations have a right
to employ them, and any attempt on the part of strikers to interfere
with these rights by coercion or intimidation, or by blockading the
roads, or by compelling the nonunion men to run the gauntlet, is
unlawful; but I find nothing here which amounts to any such con
dition.
It is the law of this State, so far as the question has been settled,
that strikers may employ persuasion and peaceable means to keep
nonunion men from taking their places; and the fact that the plain
tiff is irreparably damaged as an incident of the picketing, and that
it has no adequate remedy at law, does not deprive the defendants of
the right to picket, providing there is no malice and no violence.
This rule, which must, I believe, at last everywhere prevail, has just
recently been firmly planted in the statutes of the United States. In
other words picketing has been legalized by Congress. The right to
picket is, therefore, no longer a debatable question in the Federal
jurisdiction. The Clayton Act, so called, enacted October 15, 1914, in
section 20 (U. S. Comp. St. sec. 1243d), provided that no injunction
order “ shall prohibit any person or persons, whether singly or in
concert, from ceasing to perform any work or labor, or from recom
mending, advising or persuading others by peacable means so to do;
or from attending at any place where any such person or persons may
lawfully be, for the purpose of * * * peaceably persuading any
person to work or to abstaiir from working; * * * nor shall any
of* the acts specified in this paragraph be considered or held to be
violations of any law of the United States.”
In an evenly balanced, bitter, long-drawn out labor struggle, an
edict of the court, leveled at the strikers, shakes the morale of the
workingmen. This is not the purpose of an injunction, although it
190
TEXT AND SUMMARIES OF DECISIONS.
is frequently, and perhaps generally, the purpose of the employer
who seeks it. The function of an injunction order in a labor dispute
is to restrain lawlessness, when there is lawlessness, and when this is
likely to cause irreparable damage. When there is no lawlessness, and
no proper grounds to apprehend it, there should be no injunction.
The courts do not take sides in this ceaseless struggle between capital
and labor. They stand indifferent. They intervene only when the
law is trampled upon. They interpose the arm of authority only to
restrain those who invade the rights of others.
L abor
O r g a n iz a t io n s — S t r ik e s — P ic k e t in g — R e in s t a t e m e n t
Benito Rovira Go . {Inc.) v .
Yam polsky et ad., Supreme Court of New Y ork , Special Term , New
Y ork County {March 21, 1921), 187 Neto Y ork Supplem ent, page
89If,.—The Benito Rovira Co. (Inc.) conducted a factory for the
of
D is c h a r g e d E m p l o y e e s — I n j u n c t i o n —
manufacture of cigars and employed between 200 and 250 employees.
Owing to lack of work it laid off from 200 to 235 employees on De
cember 17, 1920, but upon receiving some orders reemployed 50 of
them on January 15, 1921. When the employees were laid off they
agreed not to return to work unless all of them were reemployed.
Therefore when only 50 were reemployed they declared a strike on
plaintiffs’ plant and proceeded to picket it. The plaintiff brought
suit for an injunction to restrain the picketing and was awarded
judgment. The decision is in part as follows:
Immediately a number of the defendants gathered in front of
plaintiff’s premises and began picketing, and a number of employees
who were anxious to work were assaulted and a number of arrests
were made, resulting in the police magistrate finding such aggressors
guilty, and it is not denied that the defendant Yampolsky and scgne
of the defendants were in court at the time. Plaintiff claims to have
an open shop, and no question of unionism is involved. The defend
ants do not claim any authority from any organization, but are act
ing as a committee of the employees of plaintiff. A number of the em
ployees who were desirous of working have been threatened and
assaulted, as appears by their affidavits. There is no claim that the
plaintiff attempted to discriminate against anyone belonging to
union, nor is there any evidence that any attempt to reduce wages was
made. The evidence is clear that the object of the strike is to force
plaintiff to employ more people than it feels that the present condi
tion will warrant. This act on the part of the defendants is illegal.
While picketing may be lawful under certain circumstances, it be
comes unlawful when the purpose is1to interfere with another’s busi
ness or vocation.
The motion will be granted to the extent of preventing the defend
ants from picketing in front of plaintiff’s place of business or instigat
ing others to do so, or from directing or coercing anyone attempting
to enter plaintiff’s premises without its consent. Settle order on
notice.
LABOR ORGANIZATIONS.
L a b o r O r g a n iz a t io n s — S t r ik e s — P ic k e t in g — S e c o n d a r y
co tts—
191
B o y
I n ju n c t io n s P r o h ib it e d — C o n s t it u t io n a l it y o f S t a t u t e —
Truax et al. v. Corrigan et al ., United States Supreme Court (Decem
ber 19 , 1921), 1$ Supreme Court Reporter , page 12 Jf.—Truax and
others owned and maintained a restaurant in the city of Bisbee, Ariz.
In April, 1916, a dispute arose between them and the local cooks and
waiters’ union concerning the terms and conditions of employment
of members of the union. They could not agree, and as a result the
members of the union employed in the restaurant were ordered to
strike. Truax and the other plaintiffs asked for a temporary and
a permanent injunction against the cooks and waiters formerly in
their employ, and against the labor union and the trades assembly
of which they were members. In their complaint to the court they
state that the defendants, to win the strike and to coerce and com
pel the plaintiffs to comply with the demands of the union, entered
into a conspiracy to boycott and injure plaintiffs in their restaurant
business, by inducing plaintiffs’ customers and others theretofore
well and favorably disposed to cease to patronize or trade with the
plaintiffs. The method of inducing included picketing, displaying
banners, advertising the strike, denouncing plaintiffs as unfair to
the union, and the circulation of handbills containing abusive and
libelous charges against plaintiffs, their employees, and their patrons,
and intimations of injury to future patrons. The defendants re
lied for immunity on paragraph 1464 of the Bevised Statutes of
Arizona of 1913, which is in part as follows:
No restraining order or injunction shall be granted by any court
of this State, or a judge or the judges thereof, in any case between
an employer and employees, or between employers and employees, or
between employees, or between persons employed and persons seek
ing employment, involving or growing out of a dispute concerning
terms or conditions of employment, unless necessary to prevent irre
parable injury to property or to a property right of the party mak
ing the application, for which injury there is no adequate remedy
at law, and such property or property right must be described with
particularity in the application, which must be in writing and sworn
to by the applicant or by his agent or attorney.
And no such restraining order or injunction shall prohibit any per
son or persons from terminating any relation of employment, or
from ceasing to perform any work or labor, or from recommending,
advising, or persuading others by peaceful means so to do; or from
attending at or near a house or place where any person resides or
works, or carries on business, or happens to be for the purpose of
peacefully obtaining or communicating information, or of peace
fully persuading any person, to work or to abstain from working;
or from ceasing to patronize or to employ any party to such dispute;
or from recommending, advising, or persuading others by peaceful
means so to do. * '* *
192
TEXT A m ) SUMMARIES OF DECISIONS.
The plaintiffs alleged that this paragraph, if it made lawful the de
fendants’ acts, contravened the fourteenth amendment of the Con
stitution of the United States by depriving plaintiffs of their prop
erty without due process, and by denying to plaintiffs the equal pro
tection of the laws, and was therefore void and of no effect. The
defendants demurred to the complaint, stating that no cause of action
was set forth and that the complaint on its face showed a want of
equity. The complaint was dismissed in the superior court and this
judgment was affirmed by the Supreme Court of Arizona. The
plaintiffs brought the matter to the Supreme Court of the United
States. That court held section 1464 invalid and reversed and re
manded the case for further proceedings not inconsistent with the
opinion of the court. The bench was divided five to four. Mr.
Chief Justice Taft gave the opinion of the court. Mr. Justice Brandeis, Mr. Justice Holmes, and Mr. Justice Pitney wrote separate dis
senting opinions. Mr. Justice Clark, dissenting, concurred with the
latter. The opinion of the court is in part as follows:
Plaintiffs’ business is a property right, and free access for em
ployees, owner, and customers to his place of business is incident to
such right. Intentional injury caused to either right or both by a
conspiracy is a tort. Concert of action is a conspiracy, if its object
is unlawful or if the means used are unlawful. Intention to in
flict the loss and the actual loss caused are clear. The real question
here is: Were the means used illegal? The above recital of what the
defendants did can leave no doubt of that. It was not lawful pursuasion or inducing. It was not a mere appeal to the sympathetic
aid of would-be customers by a simple statement of the fact of the
strike and a request to withhold patronage. It was compelling every
customer or would-be customer to run the gauntlet of most uncom
fortable publicity, aggressive and annoying importunity, libelous at
tacks, and fear of injurious consequences, illegally inflicted, to his
reputation and standing in the community. No wonder that a busi
ness of $50,000 was reduced to only one-fourth of its former extent.
Violence could not have been more effective. It was moral coercion
by illegal annoyance and obstruction, and it thus was plainly a con
spiracy.
A law which operates to make lawful such a wrong as is described
in plaintiffs’ complaint deprives the owner of the business and the
premises of his property without due process, and can not be held
valid under the fourteenth amendment.
The broad distinction between one’s right to protection against a
direct injury to one’s fundamental property right by another who
has no special relation to him, and one’s liabinty to another with
whom he establishes a voluntary relation under a statute is manifest
upon its statement. It is true that no one has a vested right in any
particular rule of the common law, but it is also true that the legis
lative power of a State can only be exerted in subordination to the
fundamental principles of right and justice which the guaranty of
due process in the fourteenth amendment is intended to preserve,
LABOR ORGANIZATIONS.
193
and that a purely arbitrary or capricious exercise of that power
whereby a wrongful and highly injurious invasion of property
rights, as here, is practically sanctioned and the owner stripped of
all real remedy, is wholly at variance with those principles.
It is to be observed that this is not the mere case of a peaceful
secondary boycott as to the illegality of which courts have differed
and States have adopted different statutory provisions. A secondary
boycott of this kind is where many combine to injure one in his busi
ness by coercing third persons against their will to cease patronizing
him by threats of similar injury. In such a case the many have a
legal right to withdraw their trade from the one, they have the legal
right to withdraw their trade from third persons, and they have the
right to advise third persons of their intention to do so when each
act is considered singly. The question in such cases is whether the
moral coercion exercised over a stranger to the original controversy
by steps in themselves legal becomes a legal wrong. But here the
illegality of the means used is without doubt and fundamental.
This brings us to consider the effect in this case of that provision
of the fourteenth amendment which forbids any State to deny to any
person the equal protection of the laws. The clause is associated in
the amendment with the due-process clause, and it is customary to
consider them together. The due-process clause requires that every
man shall have the protection of his day in court, and the benefit of
the general law, a law which hears before it condemns, which pro
ceeds not arbitrarily or capriciously, but upon inquiry, and renders
judgment only after trial, so that every citizen shall hold his life,
liberty, property, and immunities under the protection of the gen
eral rules which govern society. The framers and adopters of this
amendment were not content to depend on a mere minimum secured
by the due-process clause, or upon the spirit of equality which might
not be insisted on by local public opinion. They therefore embodied
that spirit in a specific guaranty.
The guaranty was aimed at undue favor and individual or class
privilege, on the one hand, and at hostile discrimination or the op
pression of inequality, on the other. It sought an equality of treat
ment of all persons, even though all enjoyed the protection of due
process.
The guaranty was intended to secure equality of protection not
only for all but against all similarly situated. Indeed, protection is
not protection unless it does so. Immunity granted to a class how
ever limited, having the effect to deprive another class however lim
ited of a personal or property right, is just as clearly a denial of
equal protection of the laws to the latter class as if the immunity
were in favor of, or 'the deprivation of right permitted worked
against, a larger class.
It is beside the point to say that plaintiffs had no vested right in
equity relief, and that taking it away does not deprive them of due
process of law. If, as is asserted, the granting of equitable remedies
falls within the police power, and is a matter which the legislature
may vary as its judgment and discretion shall dictate, this does not
meet the objection under the equality clause which forbids the grant
ing of equitable relief to one man and the denying of it to another
under like circumstances and in the same territorial jurisdiction.
194
TEXT AND SUMMARIES OF DECISIONS.
To sustain the distinction here between the ex-employees and other
tort-feasors in the matter of remedies against them, it is Contended
that the legislature may establish a class of such ex-employees for
special legislative treatment. In adjusting legislation to the need of
the people of a State, the legislature has a wide discretion, and it
may be fully conceded that perfect uniformity of treatment of all
persons is neither practical nor desirable, that classification of per
sons is constantly necessary, and that questions of proper classifi
cation are not free from difficulty.
#
But we venture to think that not in any of the cases in this court
has classification of persons of sound mind and full responsibility,
having no special relation to each other, in respect of remedial pro
cedure for an admitted tort been sustained.
Classification is the most inveterate of our reasoning processes.
We can scarcely think or speak without consciously or unconsciously
exercising it. It must therefore obtain in and determine legislation;
but it must regard real resemblances and real differences between
things and persons, and class them in accordance with their perti
nence to the purpose in hand. Classification like the one with which
we are here dealing is said to be the development of the philosophic
thought of the world and is opening the door to legalized experiment.
When fundamental rights are thus attempted to be taken away, how
ever, we may well subject such experiment to attentive judgment.
The Constitution was intended—its very purpose was—to prevent
experimentation with the fundamental rights of the individual.
It is urged that this court has frequently recognized the special
classification of the relations of employees and employers as proper
and necessary for the welfare of the community and requiring special
treatment. This is undoubtedly true, but those cases [cases cited],
as we have already pointed out in discussing the due process clause,
were cases of the responsibility of the employer for injuries sustained
by employees in the course of their employment. The general end of
such legislation is that the employer shall become the insurer of the
employee against injuries from the employment without regard to
the negligence, if any, through which it occurred, leaving to the em
ployer to protect himself by insurance and to compensate himself for
the additional cost of production by adding to the prices he charges
for his products. It seems a far cry from classification on the basis
of the -relation of employer and employee, in respect of injuries re
ceived in course of employment to classification based on the rela
tion of an employer, not to an employee, but to one who has ceased
to be so, in respect of torts thereafter committed by such ex-employee
on the business and property right of the employer.
The provisions of the Arizona statute under consideration corre
spond to those of section 20 of the Clayton Act. Adverting to this
fact, Chief Justice Taft said:
It is urged that in holding paragraph 1464 invalid, we are in effect
holding invalid section 20 of the Clayton Act. Of course, we are not
doing so. In the first place, the equity clause of the fourteenth
amendment does not apply to congressional, but only to State, ac
tion. In the second place, section 20 of the Clayton Act never has
been construed or applied as the Supreme Court of Arizona has con
strued and applied paragraph 1464 in this case.
LABOR ORGANIZATIONS.
195
The application of the Clayton Act to “ picketing,” in .the case
American Steel Foundries v. Tri-City Trades Council, page 181, was
noted and contrasted.
The construction put upon the same words by the Arizona
Supreme Court makes these clauses of paragraph 1464 as far from
those of section 20 of the Clayton Act in meaning as if they were
in wholly different language.
We conclude that the demurrer in this case should have been over
ruled, the defendants required to answer, and that if the evidence
sustain the averments of the complaint, an injunction should issue
as prayed.
Mr. Justice Brandeis in his dissenting opinion said:
The Supreme Court of Arizona having held as a rule of substan
tive law that the boycott as here practiced was legal at common
law, and that the picketing was peaceful, and hence legal under
the statute (wdiether or not it was legal at common law), necessarily
denied the injuntion, since, in its opinion, the defendants had com
mitted no legal wrong and were threatening none. But even if this
court should hold that an employer has a constitutional right to be
free from interference by such a boycott, or that the picketing prac
ticed was not in fact peaceful, it does not follow that Arizona would
lack the power to refuse to protect that right by injunction. For it
is clear that the refusal of an equitable remedy for a tort is not
necessarily a denial of due process of law. And it seems to be equally
clear that such refusal is not necessarily arbitrary and unreasonable
when applied to incidents of the relation of employer and employee.
Mr. Justice Pitney also wrote a dissenting opinion from which the
following is quoted :
Paragraph 1464 does not modify any substantive rule of law, but
only restricts the processes of the courts of equity. Ordinary legal
remedies remain; and I can not believe that the use of the injunc
tion in such cases—-however important—is so essential to the right of
acquiring, possessing, and enjoying property that its restriction or
elimination amounts to a deprivation of liberty or property without
due process of law, within the meaning of the fourteenth amendment.
Secondly, it is said that paragraph 1464, Arizona Civil Code, de
nies to plaintiffs in error the “ equal protection of the laws ”; but it
seems to me evident that it does not offend in this regard. Examina
tion shows that it does not discriminate against the class to which
plaintiffs belong in favor of any other. It applies not only to cases
between employers and employees, irrespective of who is plaintiff and
who is defendant, but to cases between employees, and between per
sons employed and those seeking employment. And it applies equally
to all persons coming within its reach.
Mr. Justice Holmes dissented, stating his reasons, in part as
follows:
The dangers of a delusive exactness in the application of the four
teenth amendment have been adverted to before now. Delusive ex
actness is a source of fallacy throughout the law. By calling a busi101296°—22-----14
196
TEXT AND SUMMARIES GE DECISIONS.
aess “ property you make it seem like land, and lead up to the con
clusion that a statute can not substantially cut down the advantages
of ownership existing before the statute was passed. An established
business no doubt may have a pecuniary value, and commonly is pro
tected by law against various, unjustified -injuries^ But you can not
give it definiteness of contour by calling it a thing. It is a course of
conduct, and like other conduct is subject to substantial modification
according to time and circumstances, both in itself and in regard to
what shall justify doing it a harm. I can mot understand the notion
that it would be unconstitutional to authorize boycotts and the like
in aid of the employees’ or the employers’ interest by statute when the
same result has been reached constitutionally without statute by courts
with whom I agree. (See The Hamilton^ 207 U. S. 398, 404, 28 Sup.
Ct. 133.) In this case it does not even appear that the business was
not created under the laws as they now are.
I think further that the selection of the class of employers and em
ployees for special treatment, dealing with both sides alike, is beyond
criticism on principles often asserted by this court. And especially
I think that without legalizing the conduct complained of the extraor
dinary relief by injunction may be denied to the class. Legislation
may begin where am evil begins. If, as many intelligent people be
lieve, there is more danger that the injunction will be abused in labor
cases than elsewhere I can feel no doubt of the power of the legisla
ture to deny it in such cases.
I must add one general consideration. There is nothing I more
deprecate than the use of the fourteenth amendment beyond the ab
solute compulsion of its words to prevent the making of social experi
ments that am important part of the community desires, in the insu
lated chambers afforded by the several States, even though the experi
ments may seem futile or even noxious to me and to those whose judg
ment I most respect.
L abo r
O r g a n iz a t io n s * S t r i k e s — P ic k e t in g — S t r i k e
—
to
C o m pel
C o n t i n u a n c e o f a D e p a r t m e n t o f E m p l o y e r ’s B u s i n e s s — I n j u n c
—W elinsky v . H illm an et ah, Suprem e Court o f N ew York,
Special Term. (December 17, 1920), 185 New Y ork Supplem ent,
page 257 .—Max Welinsky decided to abandon the manufacturing
t io n
department of his establishment. When he had done so the em
ployees in other departments of his business went on a strike to
compel him to continue the abandoned department. In the course
of the strike the strikers resorted to picketing and materially inter
fered with Welinsky’s business. He thereupon brought proceedings
to secure an injunction. In granting the injunction the court ren
dered the following decision:
It is quite clear from the papers, and I do not understand it to
be disputed, that the purpose of the strike and of the picketing and
other interference with plaintiff’s business is not to secure any
advance in wages or any improvement in working conditions, but
to induce the plaintiff to continue the manufacturing department of
his establishment, which he has determined to abandon. Of course,
LABOR ORGANIZATIONS.
197
tine right of the employees in other departments of the business to
cease work for this or any other reason can not be questioned; but
neither they, nor the other employees, nor the union to which they
belong, can be permitted to take affirmative action injurious to the
plaintiff’s business, for the purpose of compelling him to continue
a department of the business which he wishes to abandon. To hold
otherwise would be to sanction coercion in support of a demand
which the employees had no right to make. I am not insensible of the
hardship to old employees thus suddenly thrown out of work, or of
the loyalty of their fellow workers, who seek to come to their rescue;
but I see no justification under the law for their present attempt, or
the attempt of their union, to compel the plaintiff to continue their
empolyment.
Such situations may very well suggest doubts and problems to the
student of social science, but in the present state of our law, which
is adapted to prevailing conceptions of individual rights, I think
there is no doubt about the decision which must' be given here. I
think it sufficiently appears from the complaint that the injuries
complained of are such that the remedy at law would not be
adequate.
The motion for an injunction will be granted, upon the plaintiff
giving an undertaking in a sum to be fixed on settlement of the
order. Settle order on notice.
L a bo r O r g a n iz a t io n s — S t r ik e s — P ic k e t in g — S t r ik e to R e n e w
C o n t r a c t — I n j u n c t i o n Cooks\ W aiters’ and W aitresses’ Local
—
Union et at. v. Papageorge et al., Court of C ivil A ppeals of Texas
{M ay 11 , 1921 ) , 230 Southwestern R eporter , page 1086 .—The owners
of the Mecca Cafe instituted this action to restrain the appellant
union from picketing their place of business. The Mecca Cafe had
been conducted under a “ elosed-shop ” agreement which fixed the
wages and hours of work, but expired on June 21, 1920. The union
demanded a renewal of the contract on the same terms, but was
refused, The union ordered a strike and placed pickets about the
cafe. The pickets carried signs and verbally attempted to influence
patrons. The owners of the cafe were granted an injunction, and
the union appealed to the court of civil appeals. Judgment was
affirmed by that court, taking the decision of Webb v. Cooks’,
Waiters’ and Waitresses’ Union No, 748, 205 S. W. 465 (Bui. No.
258, p. 125), as a guiding precedent. This decision went against the
same organization, which was now acting u in absolute contempt of
the law as applied to them directly ” by the supreme court. It was
also said that the union “ acted in the face of direct statutes on the
subject of trusts in this State, articles 7796-7799.” The following
extracts are taken from the opinion:
No power exists in our Government to curtail the liberty of
speech or of the press, and no such attempt was made in this case. It
TEXT AND SUMMARIES OF DECISIONS.
198
is recognized that every person has the absolute right to express his
opinion and speak his mind on any subject, and no one has the au
thority to declare what any man may think or speak. It is recog
nized by every American that without freedom of speech the Gov
ernment could not exist as a people’s government. But, as said by
the supreme court in Ex parte George Tucker, 110 Tex. 335, 220 &
W. 75:
“ Equity will protect the exercise of natural and contractual
rights from interference by attempts at intimidation or coercion.
Verbal or written threats may assume that character. When they
do, they amount to conduct, or threatened conduct, and for that
reason may * * ■ * be restrained.”
The Constitution grants to every man, under the protection of
the American flag, the right to make contracts for his personal
services, free from hindrance or obstruction by his fellow men, and
he has the inalienable right to freely use his hands for whom he
pleases, upon such terms as he pleases. These rights include both
the right to sell and the right to purchase labor, and no law would
be upheld that would deprive the laborer and employer of the right
to contract with one another. Whenever these rights are sought to
be invaded, a court of equity will restrain such unlawful acts.
L a bo r O r g a n iz a t io n s — S t r ik e s — P ic k e t in g — U n l a w f u l A c t s—
I n j u n c t i o n United Traction Co.
Droogan et ad., Supreme Court
—
v.
of New York, Special Term (June 27,1921), 189 New Y ork Supple•
m ent, page 89.—The United Traction Co. brought this action against
Joseph S. Droogan individually and as president of Division 148
of the Amalgamated Association of Street and Electric Railway Em
ployees of America and others, to continue a temporary injunction
pending the outcome of litigation. The court granted the motion for
the reasons set forth in the opinion of Judge Hinman, which is in
part as follows:
The present injunction restrains only unlawful acts which the
courts have thoroughly condemned in the conduct of a strike, and
this strike has been attended by such prolonged and notorious and
general disorders of the character sought to be restrained that the
necessity for the exercise of the restraining power of the court is
plainly indicated.
The sole question is as to whether responsibility should attach to
the defendants. This, however, becomes relatively unimportant,
since this injunction restrains only that which is unlawful. It is
not apparent, therefore, why its vacation or substantial modification
would be of any benefit to the defendants. I am unwilling to believe
that, in their desire to embarrass the plaintiff, the members of these
unions, except, perhaps, a comparatively small percentage of them,
desire to commit such acts as will subject themselves to prosecution
for violation of the criminal laws. It is a matter of common knowl
edge and popular significance that, since the issuance of the present
restraining order against the unions and the other defendants, the
lawlessness complained of has practically ceased. If such a result
LABOR ORGANIZATIONS.
199
can be obtained out of respect for the authority of a court of equity
seeking to preserve the rights of both parties by enforcing lawful
conduct, it is much better, much kinder, more humane, than to resort
to the club of the policeman or the bayonet of the militia, or to re
sort to criminal prosecution only after the commission of the offense
and after the injury has been done.
It can not be denied that the notorious conditions of lawlessness
which had existed had been carried on to further the purpose of the
unions and the strikers, whether committed by the strikers or by law
less strangers who gathered to look on, to sympathize, and to aid.
It was an incident of the strike which they were conducting. Several
newspaper clippings have been presented to me by counsel for the
unions in an attempt to show that McLoughlin, president of the
Troy union, urged the members to refrain from lawless acts; but the
only one containing any date reveals a date subsequent to the time
when this court undertook to exercise its powers in behalf of law and
order. If they did not exercise their influence or power to correct the
irregularities or disavow the acts until such action of the supreme
court, wT overt acts practically ceased, that, considered with what
hen
defendants did do, confirms the conclusion that the lawless acts were
within the control of the defendants, even if not done with their
authority.
I have no doubt whatever that the great majority of strikers in
volved here are worthy, well-disposed, law-abiding citizens; but un
lawful acts of any of the members of either union were committed
for the purpose of carrying out successfully the object of the union—
that is, to secure a successful strike—and every member of the unions
is responsible for the acts of the others, and particularly for the acts
of any officer.
L a bo r O r g a n iz a t io n s — S t r ik e s — R
I n j u n c t i o n Mechanics
m plo yee—
—
e in s t a t e m e n t o f
D
is c h a r g e d
’ Foundry & Machine Go. v.
Lynch et al., Supreme Judicial Court of Massachusetts (November
30 , 1920) , 128 Northeastern R eporter , page 877.—Thirty of the plain
tiff’s employees went on a strike over a controversy concerning shop
conditions. During the strike Lynch, one of the striking employees,
took a prominent part and eventually he and the company’s man
ager “ became personal ” in their discussion. The shop conditions
were satisfactorily adjusted and the employees went back to work.
A few days later Lynch was discharged for the attitude assumed by
him when the strike was under discussion. Thereupon the other
employees again struck—this time to compel the reemployment of
Lynch by the plaintiff. The plaintiff brought an action for an
injunction to restrain the strike and was granted a decree. From
this decree the defendants appealed. In affirming the decree award
ing plaintiff an injunction Judge Carroll declared that the second
strike was for an illegal purpose. The decision is in part as follows:
Every person has a legal right to dispose of his own labor as he
wishes, and to work for whom he pleases. He may refuse to work
E
TEXT AND SUMMARIES OF DECISIONS.
200
with another because that person is distasteful to him, or for any
other reason. (Plant v. Woods, 176 Mass. 492, 57 N. E. 1011.)
While the individual employee may refuse for any cause to con
tinue in the plaintiff’s service, the defendants could not conspire and
combine to quit and enforce a strike because the plaintiff refused
employment to a fellow workman. The plaintiff had the right in
law to do what he did, and the combination of employees to bring
about a strike for the cause alleged is unlawful in the end it sought,
even if no illegal meahs were used to carry it into effect. (Pickett
v. Walsh, supra; Martell v. White, 185 Mass. 255, 69 N. E. 1085.)
A strike because a fellow workman is discharged stands on the same
ground and is governed by the same principle, and while a body
of men may lawfully strike to better their conditions, the mere
refusal to continue the employment of one of their number is not
such a condition as to justify them in combining to enforce a strike.
When Lynch was discharged there was no dispute about wages
or hours of labor, the dispute concerning working conditions had
been settled to the satisfaction of all the parties; and the only reason
for the strike was the discharge of Lynch and the refusal to employ
him. As the strike was for an unlawful purpose, it was properly
restrained.
Decree affirmed.
L
abor
a l it y
of
O r g a n iz a t io n s — S t r ik e s — R e s t r ic t io n — C o n s t it u t io n
S t a t u t e — People, by K eyes, A tt Gen v . United Mine
.
.
W orkers o f America, Diet. 15, et al., Supreme G o w t o f Colorado
(A p ril It, 1921), 201 Pacific Reporter, page 51^.—This suit was brought
by the people to enjoin coal miners from going out on strike before or
during the consideration of their grievances by the industrial com
mission. The bill was based upon section 30 of chapter 180 of the
Acts of 1915, which provides:
It shall be unlawful for any employer to declare or cause a lockout,
or for any employee to go on strike, on account of any dispute prior
to or during an investigation, hearing, or arbitration of such dispute
by the commission or the board, under the provisions of this act.
Provided, that nothing in this act shall prohibit the suspension or
discontinuance * * * of any industry or of the working of any
persons therein which industry is not affected with a public interest.
The defense set up by the miners was that the act violated the
provisions of the constitutions of the State of Colorado and the
United States. The lower court dismissed the bill, for the reason
that coal mining was not an industry u affected with a public inter
est,” and therefore was not within the terms of the act. The people
brought the matter before the supreme court, where the judgment of
the district court was reversed. Judge Denison in the course of his
decision said:
Unless coal mining may be said to be affected with a public interest,
its regulation by statutes to the extent attempted by said chapter is
unconstitutional. The words “ affected with a public interest ” were
LABOR ORGANIZATIONS.
201
no doubt used by the general assembly to keep the statute within
constitutional limits. It becomes necessary, then, not only in order to
construe the statute, but to decide whether it is constitutional, to de
termine whether coal mining is so affected, and it seems self-evident
that it is. We must take judicial notice of what has taken place in
this and other States, and that the coal industry is vitally related not
only to all other industries, but to the health and even the life of
the people. Food, shelter, and heat, before all others, are the great
necessities of life, and, in modern life, heat means coal.
There is no involuntary servitude under this act. Any individual
workman may quit at will for any reason or no reason. There is not
even prohibition of strike. The only thing forbidden is a strike
before or during the commission’s action.
It is objected that section 33 of the act in question, forbidding in
citement to lockout or strike, violates article 2, sec. 10, of the State
constitution, concerning freedom of speech; but, if the legislature
has power to forbid anything, it has power to forbid incitement
thereto. See E. S. 1908, sec. 1620, on accessories.
The judgment should be reversed.
L abor
O r g a n iz a t io n s — S t r ik e s — S t r e e t M e e t in g s — C o n s t it u
O r d i n a n c e — P e r m i t s — C ity of Duquesne Fincke , Su
t io n a l it y o f
v.
preme Court of Pennsylvania (December SI , 1920), 112 A tlantic
R eporter , page ISO.—A strike was in progress in the city of Du
quesne, Pa., and various factions within the ranks of the employees
were unable to agree. It was desired to hold a public meeting in
the streets to address the workmen in an effort to influence their
actions. An ordinance of the city required that before a meeting
such as this could be held a permit must first be obtained from the
mayor. A permit was applied for, but the mayor, for reasons of his
own, refused to take action one way or another, neither refusing nor
granting the permit. Fincke accordingly proceeded to hold the
meeting notwithstanding the fact he had no permit. He was ar
rested, charged with a violation of the ordinance, and convicted.
From this conviction he appealed, declaring that under the four
teenth amendment to the Constitution of the United States and sec
tion 7 of the bill of rights of Pennsylvania he had full legal right
to hold the meeting. The conviction was affirmed. The opinion is,
in part, as follows:
A strike was on which divided even the workingmen into opposing
factions and thus gave to those agitators who are the enemies of all
government the opportunity, which they eagerly seized, to stir up
strife and disorder by distributing anonymous and seditious pam
phlets throughout the city; and hence, as the mayor was responsible
for the maintenance of peace and good order, he was justified, if he
believed the public good required it, as he says he did, to refuse an
open-air meeting at this particular time. This being so, a courteous
reply so stating would have removed all just cause of complaint, for
202
TEXT AND SUMMARIES OF DECISIONS.
it would have sent the applicant to the courts for redress if he still
thought he was being discriminated against. Though not so de
signed, the failure to reply tended to bring the administration of
the law in the city of Duquesne, and through it our entire system of
government by law, into disfavor. In all matters our public officials,
from the highest to the lowest, but especially the executives of our
municipalities with whom the citizens most frequently come in con
tact, should carefully avoid even the appearance of favoritism lest a
semblance of justification should be given to the untrue statement,
now too often heard in the centers of population, that our Govern
ment (as well as those of the Old World) is being administered for
the advantage of the few and not for the benefit of all.
So far as the fourteenth amendment is concerned the Supreme
Court of the United States—whose judgments are final in the inter
pretation of the Federal Constitution—has expressly ruled against
the claim now made by appellant, in Davis v. Massachusetts, 167
-U.-S. 43, 17 Sup. Ct. 731.
Our bill of rights no more prevents regulation in the use of the
streets than does the fourteenth amendment to the Constitution of
the United States; and as these questions were the only ones argued
before us we might well close our opinion at this point.
It follows that defendant and those associated with him had no
right, upon any ground, to hold a meeting in the streets without a
permit. If they thought the city had power to authorize the meet
ing, but the mayor "was acting arbitrarily in refusing the permit,
their remedy was not by violating the ordinance, but by mandamus
to compel a proper obedience to it, in which proceeding the courts
would have overturned u arbitrary and intentional unfair discrim
ination in the administration of the ordinance.”
What has been said covers all the questions within the line of ap
pellant’s claim and we only need add, in order to avoid any mis
understanding as to the scope of the opinion, that it is limited to the
negation of the contention that he had any constitutional, inherent,
or statutory right to hold a meeting in the streets of the city; all
other matters which may arise under the statute and ordinance are
beside this inquiry and will be determined when, if ever, they reach
us on appeal.
L ic e n s in g o f O c c u p a t io n s — B a r b e r s — S y s t e m o f E x a m in a t io n C o n s t i t u t i o n a l i t y — Timmons v . M orris, Sheriff , United States D is
trict Court , W estern D istrict of W ashington (February Ilf, 1921),
271 Federal R eporter , page 721.—- Frank Timmons, who had prac
ticed his trade as barber for 17 years, was imprisoned for practicing
without a license. Habeas corpus proceedings were brought against
the sheriff to obtain his discharge from such imprisonment. The
petition attacked the constitutionality of the law of Washington re
quiring a person to obtain a license. The law had been upheld in
previous cases in the Supreme Court of the State of Washington on
the ground that it was a health measure. The board of examiners
acting under the statute had made the following system of grading
MIKE REGULATIONS.
203
in examination: Haircut, 24; shaving, 24; cleanliness, 8; razor hon
ing, 12; condition of tools, 8; deportment, 6; time, 10; written ex
amination, 8. Of this system of marking the court said:
If it be conceded that, in this method of examination and scale of
" rating upon such examination, the written examination provided for
has solely to do with matters affecting the public health, and that
such regulation was made under that subdivision of section 10 re
quiring the board to examine and determine whether the applicant
had sufficient knowledge concerning the common diseases of the skin
to avoid the aggravation and spreading thereof in the practice of his
trade, it comes to this: That, in the ratings provided for, only 24
points out of 100 have to do with the public health.
It is possible, under this scale, for a man to pass and be licensed,
though he has only got 4 points out of the 24 in those subjects affect
ing the public health, provided he is excellent in the nonessentials,
in so far as health is concerned; while the applicant who is perfect
in so far as matters affecting health are concerned, and yet “ poor ”
in deportment, razor honing, and time taken in work—matters that
can in no sense be held to touch the public health or safety—would
be deprived of the right to practice barbering.
The court held the regulations unconstitutional in the following
language:
The effect of the foregoing is not only to aver the unconstitution
ality of the statute, but the arbitrary exercise by the board of barber
examiners created by it of the power conferred upon them under
the act. Regulations and examinations of the board must be re
stricted within the limits of that having to do with health and
safety; it can not be and it has not been contended that the public
morals are affected by such trade.
The court is convinced that, in so far as the practice of barbering
is concerned, the public welfare and comfort—outside of, and be
yond what is included in its health and safety—are so insignificant
as not to lend color to any right claimed under the police power of
the State.
It is therefore palpably clear that these regulations have no real
or substantial relation to the public health, but are rather designed
to defeat those statutory provisions in the barber law for the pro
tection of the public health, to subordinate essentials to nonessentials,
and to allow the board scope for purely arbitrary action. Under
these regulations, any purpose to protect the public health, mani
festly, has become so highly attenuated “ that nothing lives ’twixt it
and perfect silence.”
M i n e R e g u l a t i o n s — W a s h h o u s e — E m p l o y e r ’s L i a b i l i t y f o r
C l o t h i n g D e s t r o y e d T h e r e i n — Prince v . K in g Goal Co Supreme
.,
Court of OMaho\ma {February 8 , 1921), 198 Pacific R eporter , page
298.—Section 1 of chapter 125 of the Session Laws of Oklahoma, for
1913 made it mandatory upon any corporation or company owning
or operating or operating as lessee any mine wherein 10 or more min
204
TEXT AND SUMMARIES OF DECISIONS.
ers were employed to provide a washhouse. Section 2 of this act
provided a penalty for failure to comply with the provisions of sec
tion 1.. The defendant company supplied a washhouse, but it was
destroyed by fire which was negligently permitted to be communi
cated from a waste dump near by while the miners were in the mine.
Clothes to the value of $1,246.42 were destroyed, and by agreement
Prince made his case a test of the right to recover. The court below
had held that no right of recovery was shown, but the supreme court
held that the plaintiff had a good cause of action.
Section 2 of chapter 125 reads:
HTo person, corporation or company, its agents, officers or repre
sentatives, maintaining such a bathhouse at * * * its mines as
required in section 1 hereof, shall be legally liable for the loss or
destruction of any property left at or in said bathhouse.
But this provision was held subject to construction in connection
with sections 998 and 2845 of the Revised Laws, which respectively
provide that:
Everyone is responsible, not only for the result of his willful acts,
but also for an injury occasioned to another by his want of ordinary
care or skill in the management of his property or person, except so
far as the latter has, willfully or by want of ordinary care, brought
the injury upon himself.
Any person who suffers detriment from the unlawful act or omis
sion of another, may recover from the person in fault a compensation
therefor in money, which is called damages.
Judge Johnson in his opinion said that section 2 of chapter 125
“ was only intended to grant relief from liability for the loss or
destruction of any property left at or in such bathhouse not occa
sioned through the act or omission of such firm, association, corpora
tion, person, or parties required to perform the duties of maintain
ing such bathhouse,” and did not operate to relieve the company
where it had negligently permitted a fire that 4 destroyed the plain
4
tiff’s property situated where it had a right to be.”
S t a t e E n g a g in g i n B u s in e s s — C o n s t it u t io n a l it y o f S t a t u t e —
C e m e n t M a n u f a c t u r e — 44 P u b l i c P u r p o s e — In re Opinion of the
”
Judges , Supreme Court of South Dakota (December 29y 1920 ), 180
Northwestern R eporter , page 957.—The Legislature of South Dakota
passed a law, chapter 324, Acts of 1919, relating to the manufacture,
distribution, and sale of cement and cement products by the State.
The law authorized the issuance and sale of $250,000 bonds to provide
funds for the enterprise. The governor, Peter Norbeck, being in
doubt as to the constitutionality of the act and desiring to have this
point settled before he issued the bonds, called upon the judges of the
SUNDAY LABOR.
205
supreme court of the State to give their opinion as to its validity.
The following is the concluding portion of the opinion of the judges,
after disposing of other points:
There remains one constitutional inquiry and that is whether the
purpose of chapter 324, Laws 1919, is a public purpose. In view of
the provision of const, art. 11, sec. 2, that taxes shall be levied and
collected for public purposes only, it might have been doubtful
whether the purpose of said chapter 324 was a public purpose if that
act had rested upon legislative definition alone. But, in the language
of the immortal Lincoln, ours is a government “ of the people, by the
people, and for the people.” When, therefore, the people of this State,
by solemn amendment to the constitution, declared that “ the manu
facture, distribution, and sale of cement and cement products are
hereby declared to be works of public necessity and importance in
which the State may engage” (const, art. 13, sec. 10), we are of the
opinion that the taxation authorized by said chapter is for a public
purpose, and that it is not open to the courts to say otherwise.
Thus far we have considered your inquiry in the light of the pro
visions of our State constitution. It might be urged, as was urged
in Green r. Frazier, 253 U. S., 233, 40 Sup. Ct. 2, 499, 64 L. Ed. 233,
that the act in question violates the fourteenth amendment to the
Federal Constitution. From a careful study of the decision in that
case we are of the opinion, and we believe that the Supreme Court
of the United States would be of the opinion if the question came
before it, that the act in question does not violate such fourteenth
amendment.
No other grounds occur to us upon which the bonds in question
might be assailed as unconstitutional.
S u n d a y L a b o r — S e r v ic e L a b o r — M o v i n g P i c t u r e s — State v.
Sm ith, Criminal Court of Appeals of Oklahoma (June 16, 1921),
198 Pacific Reporter, page 879 ,—Clint Smith was charged with the
crime of Sabbath breaking because he performed certain servile
labor; that is, he sold tickets for a moving-picture performance, on a
Sunday. He admitted the facts as alleged to be true, but declared
that he was not guilty under the law. The section of the law under
construction reads as follows:
S e c t i o n 2405 (as amended). The following are the acts forbidden
to be done on the first day of the week, the doing of any of which
is Sabbath breaking.
First. Servile labor, *except works of necessity or* charity. *
*
*
*
*
The criminal court of appeals sustained the order of the court
below dismissing the action, after reaching the conclusion that the
operation of a moving-picture show is not “servile labor ” and not
prohibited by the law.
The opinion concludes:
At the time our legislature amended the Sunday law of this State
(act of May 17,1913), adding to the prohibitions then existing, horse
206
TEXT AND SUMMARIES OE DECISIONS.
racing, hunting, and gaming, and providing that the public selling
of commodities should be restricted, moving-picture shows were
flourishing in all parts of the State, and in many places movingpicture exhibits were being held on Sunday. We think it is fair to
assume that if it was the desire of the legislature to prohibit such
exhibitions on Sunday it would have then said so in specific terms.
W a g e s— C o m p e n s a t io n i n A b s e n c e o f S p e c if ic A g r e e m e n t —
C o n c u r r e n t E m p l o y m e n t s — Demonstration Plantation Go
K ear
. v.
ney, United States Circuit Court of Appeals, Third Circuit (Feb
ruary H , 1921), 270 Federal Reporter, page 772.—Kearney was em
ployed as an assistant bookkeeper by the Alvarado Construction Co.,
a New Jersey company engaged in promoting banana raising in
Mexico. Two of the men, Roberts and Bain, who owned and con
trolled this company, also controlled the Demonstration Plantation
Co., which was an Alabama corporation engaged in selling farms
in that State. The offices of both companies were located in Pitts
burgh—the former on Fourth Avenue and the latter on Fifth Ave
nue. Mr. Roberts, who represented the defendant company, called
Kearney over from the Alvarado office and told him he wanted him
(Kearney) to put some system into the defendant’s book's, which
were poorly kept, and keep them. Roberts explained that the com
pany was poor at the time, but that the matter of compensation would
be fixed later. At Kearney’s request Roberts called Bain at the
Alvarado office and informed him of the arrangement. Kearney
took the defendant’s books to the Alvarado office and reruled them
and kept them for two years, performing during this time the duties
of a bookkeeper for both companies with their knowledge and con
sent. The defendant refused to pay Kearney for his work on the
books, and he brought suit for $75 per week, or the aggregate amount
of $7,800. He recovered a verdict of $1,818.66, and the employer
brought error. In affirming the decision of the district court the fol
lowing opinion, in part, was rendered:
The defendant further contends that the verdict should not stand,
because the plaintiff was acting in a dual capacity, as a servant of
two separate employers. A servant may not recover double com
pensation from two employers, except upon clear proof of the con
sent of both employers to double compensation. (Pennsylvania
Railroad Co. v. Flanigan, 112 Pa. 558, 4 Atl. 364.) According^ to
plaintiff’s testimony, the dominant officers of both corporations knew
of his services, to be rendered to the defendant, and consented to the
terms thereof; that for two years; while it was being performed,
no objection was raised. The court submitted this question under
proper instructions to the jury, which found for the plaintiff, and
his testimony, which must have been believed by the jury, was suffi
cient, if believed, to establish consent. The plaintiff also testified
207
that it was the understanding and agreement between him and the
Alvarado Go. that he was not to devote his entire time to its work,
but that he was to keep the books of that company only; that he
kept the books as above stated, and that with the knowledge of, and
without objection by, the Alvarado Co., he carried on several lines
of business outside of his employment with that company are ad
mitted in the testimony of said officers of both companies.
The verdict of the jury settled the fact that W. A. Roberts em
ployed the plaintiff to keep the books, not for himself and on his
own account, as defendant contended, but for the defendant companjr. The fact of the employment, however, is raised here, and not
the authority of Mr. Roberts. The verdict of the jury has settled
the fact, and the defendant corporation, having had the benefit, may
not now repudiate the burden of plaintiff’s services.
WAGES.
W
F
ag es—
orm of
M in im u m W
O rder— V a l u e
age
of
L a w — C o n s t it u t io n a l it y — H e a r in g s —
R o o m a n d B o a r d — Spokane H otel Co.
v.
Younger et al ., H otel Co. of Tacoma v. Sam e , Supreme Court of
W ashington (December 11 , 1920), 191^ Pacific R eporter , page
595.—The Industrial Welfare Commission of Washington, pursuant
to authority granted to it by law (ch. 174, Acts of 1913) , determined
what in its judgment the minimum wage of female cooks, bus girls,
waitresses, chambermaids, and other female hotel workers should be,
and issued an order declaring among other things that said minimum
wT should be $13.50 per week. After holding three public hear
age
ings and conducting separate investigations by questionnaires, the
commission issued another order on June 20, 1920, fixing the mini
mum wage at $18 per week, or $3 per day or 37J cents per hour,
and fixing the value of board and lodging when supplied by the
employer. The plaintiffs brought action for injunctions against the
members of the commission and upon their dismissal by the trial
court appealed. In affirming the decision dismissing the suits the
supreme court said in part:
The appellants argue that the statute under which the industrial
welfare commission acted is unconstitutional: (1) Because it vio
lates section 3, article 1, of the constitution of this State, and section
1 of the fourteenth amendment of the Constitution of the United
States; (2) because public hearings were not held by the commis
sion; (3) because the commission was without authority to fix a
weekly wage of six days or to fix a rate of room and board. We
shall consider these points in the order stated.
The appellants argue that this statute is void because it violates
the constitutional provision that “ no person shall be deprived of life,
liberty, or property without due process of law.” In Larsen v.
Rice, 100 Wash. 642, 171 Pac. 1037 [Bui. No. 258, p. 145], the con
stitutionality of this act was attacked. The provisions of the act
are there summarized, and need not be repeated here. It was there
held that the act was a valid act.
TEXT AND SUMMARIES OF DECISIONS.
208
The act in question by sections 6, 9, 10, and 11 authorizes the in
dustrial welfare commission to ascertain the facts and based thereon
to specify the minimum wage and conditions of labor for women
and minors and thereupon by writing notify the employers of such
labor. In short, the legislature, instead of fixing the minimum wage
and the conditions of labor for women and minors as it would clearly
have the right to without any notice whatever to persons affected
thereby, has authorized a commission to examine into and determine
the facts upon which the act may become operative. This, we are
satisfied, may be done without any notice, unless notice is required
by the act governing the commission. If the legislature may pass
a law fixing a minimum wage and labor conditions for women and
minors, it follows as a matter of course that the legislature may au
thorize the commission to determine the facts upon which such law
may become operative. If personal notice must be given to em
ployers before a minimum wage and working conditions for women
or minors may be established by the legislature or by a commission
appointed for that purpose, then such law could not be made, because
it would be almost if not utterly impossible to notify every employer
of such labor within the State. We are of the opinion that em
ployers have no vested right to employ women or minors, and there
fore "are not entitled to notice as a matter of right.1 The legislature
in the exercise of its police power may take away whatever rights
the employer has in that respect.
It is next argued that public hearings were not had, as required by
section 9 of the act. It is sufficient to say upon this question that the
record shows that at least three public hearings were had before the
order of the industrial welfare commission was made. One of these
hearings was a conference attended by three representatives of
hotels, by three employees, and by three representing the public.
Counsel who now represent appellants were present at all of these
hearings. It is true the commission made independent inquiries
through letters in form of questionnaires, which the commission
clearly had a right to do.
Appellants argue that the commission exceeded its authority by
fixing a weekly wage rate at six days. The statute at section 11 pro
vides that the commission shall specify the minimum wage and
standard conditions for labor for women. This is clearly broad
enough to justify the commission in fixing six days a week as a
standard condition.
Appellants finally argue that the commission was without author
ity to say what amount should be deducted for room and board. We
think that question is not in the case, because it does not appear that
appellants are interested in it. But, assuming they are interested in
it, that paragraph of the order numbered 8 leaves the matter wholly
discretionary to the parties. The employer may or may not, as he
chooses, furnish room and board at the prices stated. If be does not
so agree, the straight wage schedule shall prevail.
We find no error in the record. The judgment of the lower court
is therefore affirmed.
Bat see State
v.
Allyn, p, 209.
WAGES.
W ag es— M i n im u m
W age
L a w — C ontract
209
of
E m ploym ent—
—P oye v. S tate,
Court of Criminal Appeals of Texas (October IS, 1920), 2S0 South
western"Reporter, page 161.—J. Poye was convicted of discharging
an employee, a Miss Lee, because she testified before the industrial
welfare commission regarding the terms and conditions of her em
ployment, and he appealed to this court, claiming that the act under
which he was convicted was unconstitutional. The court held that
the law making this act a misdemeanor did not violate the due process
of law clause or impair the obligation of contract, and was valid.
In affirming the lower court, Judge Lattimore said in part:
It must be borne in mind that every contract entered into between
our citizens includes, as necessary part thereof, the written law of
the land; and that such contracts are viewed and construed as
embodying not only the expressed will of the parties, but also the
provisions of such laws.
We have no doubt that the passage of such laws for the welfare
and betterment of the conditions of working men, women, and chil
dren is matter well within the province of the legislature; and there
seems to us to be nothing of difference except degree, in the exercise of
such power by direct legislation for such purpose and the exercise
thereof in the creation of agencies which shall investigate, aid,
and assist in the accomplishment of such purpose. Eight-hour laws
have been upheld. Pure food laws have been upheld. Child labor
laws have been upheld, and many others which affect the character
of contract which parties may make, but such laws do not impair the
obligation of contracts.
On motion for rehearing the decision was reversed and the cause
dismissed because, pending the decision, the law under which prose
cution was had, was repealed. The Penal Code exempts from punish
ment all persons who have been prosecuted for violating the terms
of any law which has been repealed, provided the case against such
offenders is pending at the time of the repeal of the law.
S t a t u t e F o r b id d in g D is c h a r g e — C o n s t i t u t i o n a l i t y
W ages— M i n i m u m
W age
L a w — C r im in a l
P r o s e c u t io n — P u b l i
—State v. A lign, Supreme Court of Minnesota
(<October IJf, 1921), 184 Northwestern Reporter, page 787.—George
W. Allyn was convicted in the municipal court of the city of Man
kato, Minn., of employing a minor of ordinary ability as a clerk
in a mercantile business at a weekly wage of less than $10.25 in a
village of less than 5,000 population, contrary to an order of the
minimum wage commission of the State. He appealed to the su
preme court from an order denying his motion for a new trial.
Chapter 517, Laws of 1913, created a minimum wage commission.
The statute provides for an investigation by the commission of wages
paid to women and minors and the making of an order fixing a
c a t io n
of
O rders
210
TEXT AND SUMMARIES OF DECISIONS.
minimum wage to be effective 30 days after issuance, making the
wages thus determined the minimum wage in said occupation
throughout the State. Sec. 6 provides in part as follows
A copy of said order shall be mailed, so far as practicable, to each
employer affected; and each such employer shall be required to
post such a reasonable number of copies as the commission may
determine in each building or other work place in which affected
workers are employed.
On July 5, 1919, the commission issued order No. 10, fixing the
minimum wage for women, and minors of ordinary ability in any
occupation; while order No. 11, defining learners and apprentices,
fixed the minimum wage for such employees, and determined who
was a worker of ordinary ability. The trial court was reversed be
cause of errors in admission of evidence, and a new trial granted.
Judge Quinn speaking for the court, said:
Upon the trial copies of the orders referred to were placed in
evidence by the prosecution, but no proof as to any investigation or
other acts of the commission was offered. There was no showing
that such orders were ever published or copies thereof mailed to par
ties affected thereby. Defendant offered proof that he had never
received copies of either of such orders, or heard of the same either
by mail or otherwise. These offers were objected to and excluded.
Without notice of such orders an employer could hardly know of the
wages thus established, much less post copies thereof in his place of
business. While the law presumes that public officials properly
perform their official acts in connection with their duties, yet such
presumption may be rebutted by competent proof. The presumption
of due receipt of a letter may be rebutted by evidence that it was
not in fact received. (16 Cyc. 1070.) The proof should have been
received.
The purpose of the statute seems clear. No other mode of pub
lication is provided for. The order, when considered in connection
with the statute, amounts in effect to a penal law. To enforce such
an order without notice would be to subject every employer to
prosecution, though innocent of any intent to evade the law. Such
was not the intent of the legislature. We hold that under this
statute the orders referred to do not become effective until 30 days
after issue by the commission and the mailing of copies thereof,
so far as practicable, to the employers affected. To render the orders
admissible to evidence, compliance with the provisions of section 6
must be affirmatively shown. Courts will not take judicial notice
of such orders. It then becomes the duty of such employer to post
copies thereof as determined by the commission. The statute is
mandatory as to the mailing and posting of copies of such orders.
The statute is silent as to the power of the commission to deter
mine and define who shall be deemed workers of ordinary ability.
It leaves those matters for the courts, especially in a criminal pro
ceeding like this. It was therefore error on the part of the trial
court to exclude the testimony bearing upon that phase of the case.
For these reasons a new trial should be granted. Reversed.
WAGES.
211
W a g e s— M i n i m u m W a g e L a w s — I n j u n c t i o n to R e s t r a in O rders
I
C
— Northwestern
Telephone Exchange
Co. v. Workrnen's Compensation Bureau et al ., Grand Forks Steam
Laundry Co. et al. v. Same , Supreme Court of North Dakota (March
21, 1921), 182 Northwestern R eporter, page 269.—In 1919 the legis
of
n d u s t r ia l
o m m is s io n
lature passed a workmen’s compensation law (ch. 174) by which
a minimum wage department was created. In accordance with the
requirements of the law the minimum wage department issued sev
eral orders fixing the minimum wages, among others, in telephone
exchanges and in laundries. The industries thus affected brought
suits challenging the validity and constitutionality of the orders,
and the regularity of the proceedings in issuing them. Pending
the trial of the case, a temporary injunction to stay the operation
of the orders was asked for and granted. The complainant com
panies were required to put up bonds in various amounts pending
the result of the trial of the case on the merits. The minimum wage
department appealed from the order entering a temporary restrain
ing order against the going into effect of the orders. In affirming
the decision granting the injunction the supreme court said in part:
The issues in these cases, as appears from the pleadings, present
important and • far-reaching principles and questions of law, the
determination of which will affect many kinds and classes of em
ployers and employees.
The questions are not only of transcendent importance, but are in
this State presented for the first time. As will be seen by the com
pensation act, it is of very recent origin.
What has been done by and under authority of that law, by the
minimum wage department, as well as by the commissioners of the
bureau, is presented in those cases for consideration, and the legality
thereof in many respects is directly challenged.
As we view the matter, the issues and matters involved in these
cases should not be discussed in this opinion, as it seems to us any
such discussion here would be merely obiter dicta. The lower court,
in continuing the restraining orders, took precaution to protect the
interested parties. It would seem the plaintiffs were required to,
and did, execute bonds which the trial court thought sufficient for
the protection of employees interested or affected, or which might
become affected, by a determination in favor of the defendants. Pre
caution was also taken to provide for additional bonds in case neces
sity should require.
The only real question presented in this appeal is: Did the lower
court abuse its discretion in continuing in force the temporary re
straining orders, until the final disposition of the cases upon their
merits in the trial court?1 This question, in all the circumstances
of these cases, we are certain, must be answered in the negative.
1 No trial on the merits was ever had. The question being purely jurisdictional, the
matter was disposed of by calling new conferences and issuing a new set of orders in
proceedings of unquestioned regularity.
101296°—22------15
212
TEXT AND SUMMARIES OF DECISIONS.
In thecireumstances of these cases, it is unnecessary to cite author
ity for the conclusion at which we have arrived. This opinion is
intended to, and does, dispose of the appeal in each of said cases
above entitled, so far as the questions presented in those appeals are
here presented. We refrain entirely from expressing any opinion
with reference to the merits of either case.
The order appealed from is affirmed.
W ag es— M is u s e o f F u n d s b y C o n t r a c t o r — C o n s t it u t io n a l it y o f
People v. H older, D istrict Court of A ppeal of California
{June 3, 1921), 199 Pacific Reporter, page 832.—W. H. Holder, a
S tatute—
contractor, entered into a building contract with each of two lot
owners for the construction of a house. Certain sums were advanced
as parts of the stipulated contract price, but instead of expending
the money for labor and materials, Holder appropriated it to the
payment of his own debts. He was convicted of embezzlement under
amendments of 1907 and 1919 to section 506 of the Penal Code which,
respectively, provide that:
Any contractor who appropriates money paid to him for any use
or purpose, other than for that which he received it, is guilty oi em
bezzlement.
The payment of laborers and material men for work performed
or material furnished in the performance of any contract is hereby
declared to be the use and purpose to which the contract price of
such contract, or any part thereof, received by the contractor shall
be applied.
Holder appealed from the judgment on the ground that the statute
under which he was convicted was unconstitutional; also from an
order denying his motion for a new trial. He was sustained in his
contentions by the district court, in the following language:
Since the money, when paid to him, was paid to and received by
him under his contract with the lot owner—it was so stated, without
contradiction, by the witnesses on both sides—the money was not
property intrusted to him or in his control “ for the use of any other
person.” By his contract with each lot owner he did, it is true, ex
pressly agree to “ pay all claims of all persons performing labor
upon, or furnishing materials for, said work or buildings.” And at
the time when the several sums were paid to him he orally agreed
to use them in the payment of labor and material bills. But there is
no claim that appellant procured the payment of these sums by
fraudulent misrepresentations.
Any legislation that makes it a crime for one to use his own money
for any purpose other than the payment of his debts is violative of
section 15 of Article I of the constitution of this State, which ex
pressly inhibits imprisonment for debt except in cases of fraud.
The sole remaining theory upon which the people may attempt liji
justify appellant’s conviction is that, by reason of the amendment of
1919, the statute itself so enters into and becomes a part of every
WAGES.
213
building contract, that, the provisions of the contract to the contrary
notwithstanding, the absolute, unconditional title to money paid to
the contractor under his contract does not pass to him, but is re
ceived by him in trust for certain uses. A statute that consummates
such a result abridges the privileges of citizens of the United States
and deprives them of property without due process of law.
It is well settled that the police power can not be made a cloak
under which to overthrow or disregard constitutional rights. It is
only when the general welfare, the interests of the public as dis
tinguished from those of individuals, will be protected that the right
of contract may be limited by a general exercise of the police power.
In view of this principle, impregnably established in our juris
prudence, it can not successfully be contended that the amendment in
question is a valid police regulation. The payment of debts that may
be due laborers or material men is not calculated to conserve the
safety, health, or general welfare of the community. There can be
nothing so injurious to the public welfare in the failure of a debtor
to pay his just debts as to require an exercise of the police power.
In all free governments the good sense of mankind, since the day
when imprisonment for debt was abolished, has condemned and
frowned down any attempt to coerce the performance of civil obliga
tions by criminal penalties.
For these reason we hold that the amendment of 1907 is an un
warranted invasion of the rights guaranteed by our State and Fed
eral constitutions, and that therefore the clause added to section 506
by the amendment of 1919 is void and wholly ineffective.
W ag es— M o n t h to M o n t h E m p l o y m e n t — B o n u s O ffer — G r a t u
—Russell v. H . W . Johns-Manville Go. of California , D istrict
Court of A ppeal of California (July 16 , 1921), 200 Pacific Reporter ,
page 668 .—The defendant company on October 15, 1918, notified its
it y
employees that the company would give a 20 per cent bonus to all
salaried employees who had been in the employment of the company
for the calendar year 1918, Samuel P. Russell had been a salaried
employee from January, 1918, to November 16, 1918, when he was
discharged without cause. His salary was paid in full up to No
vember 30, 1918. He thereafter commenced a suit to recover $600
alleged to have become due by virtue of the notice. In the trial court
judgment was given in favor of Russell, and the company appealed
to the district court of appeal. This court reversed the decision of
the lower court on the grounds that there was no consideration to
render the employer’s offer binding in law. Judge Richards, speak
ing for the court, said:
We are unable to perceive upon what theory this judgment in the
plaintiff’s favor can be sustained. The written notice issued to its
salaried employees was in form and upon its face a voluntary gratu
ity to such of said employees as might be in its service during the
entire year 1918. It did not purport to change the terms of their
TEXT AND SUMMARIES OF DECISIONS.
214
past, present, or future employment, nor in the case of month-tomonth employees did it purport to bind the corporation issuing it to
a different term of employment than that already existing; nor did
it exact or require of such employees that they should make any sur
render of their right to quit the corporation service at the close of any
month thereafter. The respondent himself does not here contend
that he was either required to make, or did in fact make, any such
surrender, his utmost claim and proof being that he was willing to
remain, and did in fact remain, in the employ of the defendant after
receipt of said notice and up to the time of his discharge; but he
neither pleaded nor testified, nor did the trial court find, that he was
legally bound to so remain or that he in so remaining, did anything
other or further than that which he was willing to do and would
have done if such notice had never been issued by his employer qr
received by himself.
W ag es— O v e r t im e
P a y — C ontract
of
E m ploym ent—
Robinette
v. H ubbard Coal M ining Co ., Supreme Court of Appeals of W est
Virginia (A pril 26, 1921), 107 Southeastern Reporter , page 285 .—
John H. Robinette entered into an agreement to work for defendant
company as manager of one of its plants. The plants generated elec
tricity for the mines and the mining village near by. He was to work
8^ hours a day and receive $180 per month as wages. His duties,
however, required him to work 12 hours a day. As a result of a
proposed enlargement of his contractual duties, which he declined
to perform, he was discharged. Robinette brings this action to re
cover for the overtime he worked during the 17 months he was em
ployed. The lower court decided he was not entitled to the amount
claimed and was upheld by the supreme court in an opinion given
by Judge Lynch, which reads in part as follows:
Undoubtedly there are circumstances under which a person em
ployed to perform services for a stated remuneration during a speci
fied period may be entitled to recover extra compensation from his
employer for additional services rendered at the request of the lat
ter. But the right to enforce such a claim depends upon the exist
ence of a contract therefor, either express or implied.
Here no express contract for additional remuneration was proved,
or even attempted to be proved, and plaintiff’s right, therefore, if
any, depends upon the existence of an implied contract created by
the very circumstances of the case.
Ordinarily, when one requests another to perform services for him,
there is an implied promise to render reasonable and just compensa
tion therefor. But the application of this rule generally is limited
and restricted, subject to an exception hereafter to be noted, to situ
ations where the person performing the service was not already in
the employ of the one requesting it. If he is already employed by
the latter, the mere request for the additional service, in the absence
of an express special agreement in regard thereto, generally does not
justify the inference of an offer to pay anything in addition to th$
compensation specified in the contract of employment, it being as
WAGES.
215
sumed that the extra services were requested and performed under
such contract as an incident thereof.
Where an employee voluntarily continues in a position under such
conditions, known to him from the first day he undertook the work,
receives the compensation agreed upon as a monthly salary, wholly
fails to insist upon a definite understanding with regard to additional
remuneration for such overtime, and protests but weakly against it,
he will be deemed to have treated such overtime work as a mere in
cident of his usual duties, and to have waived any right to demand
additional remuneration therefor.
W a g es— P e n a l t y fo r N o n p a y m e n t — D e m a n d — A t t o r n e y ’s F e e —
Marrs v. Oregon Short Line R y . Go., Supreme Court of Idaho (M ay
21, 1921), 198 Pacific Reporter, page 1^68.—Dock Marrs brought an
action against the defendant company to recover wages as an employee
and recovered a judgment for wages, attorney’s fees, and a statutory
penalty. Marrs had made a written demand for $33.90. The com
pany admitted that $24.01 was due. The company appealed from
the decision to the supreme court, which reversed the decision of
the lower court and remanded the case with instructions to modify
the judgment so as to eliminate the item for the attorney’s fee, be
cause Marrs had demanded more than was found to be due as wages.
The statute on this point provides for an allowance of -an attorney’s
fee if a proper demand is made of an amount not in excess of the
amount found due. (C. S., sec. 7380.)
Marrs had recovered his wages and a penalty under section 7381,
C. S., .which requires the payment on demand of the wages due an
employee, under penalty of a continuance of the wages for a term
not exceeding 30 days, the court holding, one judge dissenting, that
the demand of an amount in excess of the sum actually found due did
not invalidate the right to the penalty.
After reviewing several opinions Judge Rice speaking for the
court said:
The statute we are considering is designed for the protection of
laborers and mechanics and to prevent the necessity of their being
delayed in the collection of wages due upon ceasing their employ
ment and the consequent loss of time while awaiting settlement for
services rendered. It provides that, upon failure of an employer on
demand to pay any wages or salary due to his employee under a con
tract of employment, he shall be liable as therein provided. The
liability arises, not from failure to pay the amount demanded
but from failure to pay any wages or salary due upon demand.
(Hindman v. O. S. L. R. Co., 32 Idaho, 133, 140,178, Pac. 837, 839.)
We think the statute is within the police power of the State and
is constitutional, even though the claimant demand a greater amount
than is due, unless the circumstances are such as to excuse a tender
216
TEXT AND SUMMARIES OF DECISIONS.
of the correct amount;. In the case at bar the record does not in
dicate that an offer to pay the amount actually due would have been
refused.
W a g es— P e n a l t y
fo r
N o n pa ym en t— F ed eral
R a il r o a d
C on
M issouri P acific R . Go. et al. v . A u lt, U n ited S ta tes S uprem e
C ourt (June 1, 1921), 1±1 Suprem e C ourt R ep o rter, page 59S.—H. A.
tro l—
F. Ault had been employed by the Pacific Railroad Co. in Arkansas
at the rate of $2.50 per day. On July 29, 1918, he was discharged.
On this date $50 wages was due him but remained unpaid for some
time thereafter. Ault brought suit before a justice of the peace
against the Missouri Pacific Railroad Co. for wages due and a pen
alty for nonpayment. A statute of Arkansas provides that when
ever a railroad company, or a receiver operating a railroad, shall dis
charge an employee, with or without cause, it shall pay him his full
wages within seven days thereafter, and that if payment is not duly
made “then as a penalty for such nonpayment the wages of such
servant or employee shall continue from the date of the discharge or
refusal to further employ at the same rate until paid.” Ault re
covered judgment by default. The company appealed to the circuit
court, and there made a motion to substitute the Director General of
Railroads. Substitution was refused, but the director was joined as
defendant and judgment rendered against both for $440. The Su
preme Court of Arkansas affirmed this judgment. The Supreme
Court of the United States on writ of error reversed the judgment
of the lower court. Justice Brandeis, for the court, said that the
corporations were completely separated from the control and man
agement of their railroads, and therefore the application of the rail
road to be dismissed from this action should have been granted.
On the question of the liability for the penalty the court said:
The purpose for which the Government permitted itself to be
sued was compensation, not punishment. The amount recovered in
the present base over and above the wages due and unpaid with
interest is in the nature of a punishment. Congress has not given its
consent that suits of this character be brought against the United
States. The judgment against the director general, so far as it pro
vided for recovery of the penalty, was erroneous.
W ag es— P e n a l t y
fo r
N o n pa ym en t— P lace
of
C o ntract—
K la ffh i v . K a u fm a n et al ., D istric t C ourt o f A p p ea l o f C aliforn ia
(M arch 21±, 1921), 198 P acific R ep o rter, page 86.—Roy H. Klaffki
brought this action upon his own claim and certain other claims as
signed to him by his fellow laborers, for wages due for work per
formed for the defendants. He did not allege in his pleadings where
217
WAGES.
the contract of employment had been made, where the work had been
performed or where he was discharged. He claimed a penalty for the
nonpayment of wages under a statute of California in substance as
follows: When discharged an employee’s wages become due at once
and in case of nonpayment within 5 days after they become due, they
continue from the date due until paid but not more than 30 days.
Judgment was in favor of plaintiffs and the defendants appealed.
The district court of appeals reversed the judgment and remanded
the cause to the superior court with directions to allow the plaintiff
to allege facts showing his right to recover penalties under the Cali
fornia statute. The court said in part:
An actionable wrong, to be redressed by the recovery of a penalty,
depends upon the law of the place where the work was contracted
for or where it was made payable, or possibly, upon the law of the
place where the work was performed, or where the employee quit or
was discharged.
In cases arising under the act of 1911 there are two substantive
rights. There is the employee’s common-law right to the wages
earned by him under his contract of employment; and there is also
the employee’s statutory right to the unearned wages which the stat
ute awards him as a penalty for his employer’s conduct in continuing
to withhold his earned wages after they are due. So also there are
two separate and independent wrongs. There is the wrongful
violation of the employee’s right to receive, when due, the wages
earned by him; and there is also the statutory wrong, visited by the
imposition of a penalty, which consists in the continued withholding
of the wages after the expiration of the five days.
W a g e s — R a t e s — R a il r o a d s — C o n t r o l
by
S t a t u t e — U n it e d
—S t . L ouis U nion T ru st Co.
v . M is
souri & N . A . R . C o., U n ited S ta tes D istric t C ou rt, E a stern D istric t
o f A rkan sas (F eb. 21, 1921), 270 F ederal R ep orter, page 796.—The
S t a t e s R a il r o a d L a b o r B o a rd
Missouri and North Arkansas Railroad was built in 1907. From that
date up to the present time the road never paid dividends and never
even paid interest on its bonds. It was placed in the hands of a
receiver, who found the condition of the road so deteriorated as to be
unsafe for operation. The court authorized the issuance of receiver’s
certificates to the extent of $2,000,000. The road was unable to earn
the interest on these certificates and more had to be sold to pay the
interest. It has been found practically impossible to dispose of any
more of the receiver’s certificates at any price. On February 1,1921,
after a consultation with the judge, the receiver reduced the scale
wages of all the officers and employees to the basis in effect April 30,
1920. Certain employees through their representatives protested
against the reduction and asked the receiver to establish the scale
wages existing direction of the United States Railroad Labor
of
of
by
218
TEXT AND SUMMARIES OF DECISIONS.
Board in its decision No. 2, which became effective May 1,1920. The
receiver petitioned the court for instructions and advice. The deter
minations of the court are in part as follows:
Courts must be just as honest as corporations and individuals, and
if it incurs a debt, it must see its way clear to be able to pay at least
the interest on it. To do otherwise would be practicing a fraud on
the lenders. For this reason to attempt to borrow money on addi
tional receiver’s certificates, assuming they could be sold, is out of
the question.
Only one of two remedies is left: To stop the operation of the road,
or to cut down expenses wherever it is possible. To cease operating
the road ought only to be restorted to, if no other remedy is left.
Industries have been established along the road in reliance on the
operation of the railway. These industries are entirely dependent on
this road, to obtain raw material and to ship to the market the fin
ished material. Without this road being operated, the investments in
these industries would be absolutely destroyed. Many of the farmers
residing along the road, and large numbers of others who have pur
chased lands and settled along the road, have planted valuable apple
orchards and have no other means of sending their product to market
except this road. To deprive them of the means of marketing the fruit
means the destruction of the orchards. The court would therefore
not be justified to stop the operation of the road, if it is at all possible
to continue its operation. Therefore the only other remedy left is to
reduce the salaries and wages of the employees at the same time, if
it can be done without reducing them below a level which will enable
them to provide for themselves and their families. The salary of the
receiver, who is also the general manager of the road, has been
reduced by the court 20 per cent, and has been accepted by the
receiver.
The important question is whether, in view of these facts which are
indisputable, the receiver would be subject to punishment under the
provisions of section 812 of the transportation act of February 28,
1920, c. 91, 41 Stat. p. 473. It may be conceded that the act is a con
stitutional exercise of the powers granted by the Constitution to Con
gress. But it is not conclusive that a carrier, whose earnings are
insufficient to pay the wages established by the Railroad Labor Board,
and unable to obtain by loans the money necessary to comply with its
order, can be punished for failing to comply with the order.
To require it to continue in business at a loss is beyond the power
of Congress or a State. In Brooks-Scanlon Co. v. Railroad Commis
sion of Louisiana, 251 U. S. 396, 40 Sup. Ct. 183, the act of the State
of Louisiana requiring a carrier to continue the operation of a road
at a loss was held to be unconstitutional, as depriving the carrier of
its property. While the opinion fails to state that the invalidity is
by reason of the fourteenth amendment to the Constitution of the
United States, it could rest on no other ground.
In this case, the transportation act having been enacted by Con
gress, the fourteenth amendment would not apply; but the fifth
amendment to the Constitution does apply to acts of Congress. As
the language used in both of these amendments is the same the same
rule of construction must be applied to one as to the other.
WAGES.
219
In the instant ease some of the employees have quit work, and others
are protesting against the reduction of their wages. But the places
of those who have declined to continue their employment have been
filled by others equally competent and efficient, who are willing to
receive the wages offered by the receiver; and, should the other em
ployees see proper to quit, the receiver assures the court that he can
fill their places, having many applications from competent men who
are willing to accept employment at the wages offered.
In the opinion of the court the receiver is authorized and directed
to pay the wages in force prior to April 30,1920.
W a g e s — B a t e s — B a il r o a d s — E f f e c t o f S t a t u t e — P o w e r s o f B e -
— S
E
S
—Birmingham Trust and
Savings Co. v. A tlanta, B. <& A. R y. Co., United States D istrict Court,
Northern D istrict of Georgia (March 26,1921), 271 Federal Reporter,
page 781.—This was a suit in equity in which a receiver had been
c e iv e r
tatus
of
m plo yees
on
t r ik e
appointed for the defendant railway company. On February 28,
1921, the receiver reported to the court that he had money available
to pay the current pay roll, but that he would be unable to meet an
other similar pay roll; that the railway was not earning operating
expenses; that the payment of greater wages than were earned by
the company would be to take property without due process of law;
and that the wages of unskilled labor should be reduced. An order
of the court authorizing a reduction in wages was granted, to take
effect March 1. N. H. Evans and others for themselves and as rep
resentatives of several unions made a motion to rescind the order,
claiming also that under the transportation act only the Labor Board
could reduce wages. The court modified its previous order by except
ing therefrom train employees, but did not concede the jurisdiction
of the Labor Board. The court, in its decision, speaking through
Judge Sibley, said in part:
The existence in this case of some sort of contracts between the rail
way company and the labor unions is referred to in the pleadings,
but the contracts are not themselves exhibited nor put in evidence.
Since the order of the court authorizing the receiver to operate the
railroad expressly provided that no contracts of the company were
to be considered adopted by him without authority from the court;
and, since the receiver’s action on the matter of wages was taken
within three days of his appointment, there can be no contention here
that these contracts, whatever they were, had been adopted. Being
unhindered by contracts the receiver made a showing, the accuracy of
which has not yet been contested, which indicated that only by reduc
ing his wage scale could he escape suspension of operation. There
upon he was authorized to establish a reduced scale of wages and
salaries, whereby all persons of all ranks should receive compensation
on a basis of their pay December 31, 1917, plus one-half of increases
since made, with the right to any and all employees to be heard on
application.
220
TEXT AND SUMMARIES OF DECISIONS.
Where an administrative order may affect numerous persons not
parties to the cause, it is a common practice to grant such order as ap
pears to be proper, with leave to bring on a hearing thereafter.
Receivers are not expressly mentioned in the portion of the trans
portation act establishing the Labor Board, but its definition of the
carriers dealt with as including “ any carrier by railroad, subject to
the interstate commerce act, except a street, interurban, or suburban
electric railway not operating as a part of a general steam railroad
system of transportation” (41 Stat. 469), is sufficiently broad to
cover a receiver operating an interstate railroad.
But where, as is the case here, there is no dispute as to conditions
of employment, nor as to the just and reasonable wage normally to
be paid, but only a question as to the ability of the receiver to pay
the wage that has been established, without violating the Constitu
tion, it is not seen how a decision of the Labor Board would be
helpful.
Moreover, in this case the Labor Board has apparently held itself
without jurisdiction of the subject-matter.
Section 9 of the Newlands Act [requiring hearings after 20 days’
notice, before a reduction of wages] seems to restrict its application
to those actually engaged in train operation and train service, and
indicates that they were persons only who are “ employed upon or in
cars.” The common meaning in railroad circles of “ train opera
tives ” and “ train-service men ” includes only engineers, firemen,
conductors, switchmen, train hands, and porters, and these alone are
intended to be covered by this act.
The “ employees of such employers ” therefore clearly includes all
persons operating the railroad trains at the time receiver takes
charge, and a reduction of their wages is clearly dealt with by sec
tion 9. It must be held, therefore, that the order of February 28th,
as to employees dealt with by the Newlands Act, was in violation
of said act and to that extent illegal.
As a statute of procedure in Federal courts it is justified by the
constitutional power of Congress to establish inferior courts with
the implied power to define their jurisdiction and regulate their exer
cise of it. But if it be admitted that in practical operation it fixes
wages for 20 days, a law so doing in avoidance of strikes, even where
a classification is made of the employees, is a valid regulation of
commerce.
It is urged that, when a wage is compelled to be paid even for 20
days, which is beyond the power of the road to earn, the statute
can not be constitutionally applied, because it would take property
without due process of law and for public purposes without just
compensation. As a last resort the operation of the road might have
been stopped for the period, since it could not be constitutionally
compelled. It does not sufficiently appear in this case that the appli
cation of the statute necessarily would have been confiscatory.
The order of February 28 was therefore modified so as to except
employees engaged in operating trains.
The contention is made that the petitioners here have no standing
in the court, because they are no longer employees, having on March
5th voluntarily ceased to work. It appears from the evidence that
221
WAGES.
after the order of February 28th was acted upon by the receiver, and
his purpose of paying reduced wages to all employees after March 1st
was announced by him, the employees at first continued at work
under protest. This action on their part prevented any contention
that they had agreed to the reduction, and, so long as they continued
at work, those affected by the Newlands Act were entitled, notwith
standing the receiver’s action to claim the compensation previously
paid them. Unquestionably they have a substantial interest in the
correction of the court’s order, which would otherwise operate to
control the receiver in his payments to them; and by the express
terms of the order all employees, whether protected by the Newlands
Act or not, had a right to make a showing to the court upon the
question of reduction. Their present showing did not cover the
necessity of the reduction or any matter of fact, but did properly
bring in question the exclusive jurisdiction of the Labor Board.
All these parties had a standing in court to make the points they
did under the express provisions of the order and in protection of
their rights during the period that they continued at work.
W
— S
— D
D
V
— Frcmco et al. v. Seas
Shipping 0 orporation (Inc .), U. S. D istrict Court, D istrict of M ary
land {A pril 15 , 1921), 272 Federal Reporter 51$.—The libelants were
ag es
eam en
is e a s e
u e
to
ic e
alien seamen who were employed as part of the crew of the American
steamer Robin Hood. On arrival in the United States each of them
was found to be suffering from a venereal disease. They were
ordered to a hospital in compliance with the act of December 26,1920
(41 Stat. 1082), and were there treated. Upon their discharge from
the hospital they demanded their full wages, but the ship insisted
upon deducting the hospital expenses. In this libel they seek to
recover their wages without deduction and also a penalty for delay
in payment. The district court decided that, under the law, the sea
men were entitled to their full wages but not the penalty, saying in
part:
It is suggested on behalf of the ship that the act in question is
nothing but an amendment to the earlier immigration act of 1917
(Comp. St. 1918; Comp. St. Ann. Supp. 1919, sections 959, 960,
4289^a-4289|u), which was by its terms limited to passenger vessels,
which the Robin Hood was not. I can see nothing in the terms of
the act of December 26, 1920, to sustain this contention. It is true
that, without explanation of the reasons for such legislation, it may
seem unfair for the Congress to impose upon the owners of ships the
duty of paying hospital bills to cure alien seamen of diseases due to
their own vices, but the courts may not substitute their judgment for
that of Congress.
The act declares that all expenses connected with the hospital
treatment, as well as some other things, shall be borne by the owner,
agent, consignee, or master of the vessel “ and not to be deducted from
the seamen’s wages. ” Such language is too clear to require construc
tion.
222
TEXT AND SUMMARIES OF DECISIONS.
On the other hand, in this c&se, the imposition upon the ship of
what is in fact a penalty for delay in payment would be a hard
measure for the vessel owner. The requirement that it, rather than
the seamen, should pay such charges naturally seems to it against
common right. The Shipping Board itself has officially held that a
limited construction should be put upon the statute.
Under such circumstances, the owner, before making payment, was
justified in asking for a judicial determination. It united with the
libelants in bringing the question to the attention of the court at
the earliest possible moment.
W o r k m e n ’s
C o m p e n s a t io n — A c c id e n t — D e a t h
fro m
P n eu m o
—Delso et al. v. Crucible Steel Co. of Am erica , Supreme Court of
New Y ork , A ppellate D ivision (February 28, 1921), 187 New Y ork
Supplem ent , page 66,—Delso while working in the employ of the
Crucible Steel Co. received during the course of his employment a
heavy blow upon his chest as he was reeling and drawing wire. The
next day, Thursday, he became incapacitated for work and went
home and to bed. On the following Sunday evening he died from
pneumonia. Proceedings were brought for compensation and the
industrial commission allowed an award on the theory that the acci
dent caused the pneumonia. The employer appealed, but the award
was affirmed. The decision is in part as follows:
A reading of all the evidence in the case leaves in the mind a
strain of uncertainty; but there was competent evidence that the
injury was the inciting cause of the pneumonia; there was a sudden
development and a quick termination in the progress of the disease
after the injury. There are many circumstances corroborating the
opinion of those experts who trace the pneumonia to the injury.
The commission has found that the injury was the cause of the pneu
monia. This court is not at liberty, under the evidence and the rules
which govern in these cases, to interfere with this finding.
n ia
W o r k m e n ’s
C o m p e n s a t io n — A c c id e n t — D e a t h
fro m
P n eu
—Dumbl/mkey Philadelphia & Reading Coal Iron Co .,
Supreme Court of Pennsylvania (March 7, 1921), 112 A tlan tic R e
porter, page 745.—Dumbluskey was employed in the defendant’s coal
mine. While engaged in putting in place a heavy piece of timber
known as a collar he was squeezed or bumped by the collar. He im
mediately complained to his fellow workmen of pain and left the
mine. He went to his home and found a doctor who found a slight
abrasion like a scratch, a discoloration of about 2 or 3 inches in
diameter. The illness continued and developed into pneumonia,
from which he died. His widow brought proceedings for compensa
tion, and hearings were held before a referee, who found that:
The injury that decedent sustained on February 24, 1920, while in
the course of his employment, decreased the vitality and resisting
m o n ia
v.
cfe
WORKMENS COMPENSATION.
223
power of the pleura and lung tissue; that pneumonia and influenza
developed as a secondary infection which caused his death. We find
here a direct connection between the injury to the man and his death.
The commission approved the finding and made an award of com
pensation, which on appeal was affirmed by the court of common
pleas. The employer appealed again, but the award was again af
firmed. The opinion of the State Supreme Court is in part as fol
lows:
The question before us is the sufficiency of the testimony to sustain
the findings. During the illness of deceased four doctors were called
from time to time. The family doctor was of the opinion the injury
received by deceased caused traumatic pleurisy which later developed
into pneumonia. All the physicians agree that death was the result
of pneumonia which followed either traumatic pleurisy or influenza,
the latter being prevalent at the time. None, however, testified that
the development of traumatic pneumonia from an injury such as
was indicated by the mark on the body of deceased was improbable
or impossible.
The testimony before the referee and compensation board, referred
to above, was clearly competent and ample to sustain the findings of
fact and conclusions of law set out in the award.
W o r k m a n ’s C o m p e n s a t i o n — A c c i d e n t — F i g h t i n g F i r e — C o m m o n
—F
N
—Savage et al. v. C ity of Pontiac , Supreme
Court of Michigan (July 19 , 192i), 183 Northwestern R eporter , page
798.—Ray Savage was a fireman in the employ of the city of Pontiac.
H azard
ro zen
eck
On January 31,1920, he was called out to fight a fire at 9 a. m., and he
remained on duty until about 3.30 p. m., during which time he at
tended two fires. It was very cold and a high wind was blowing,
which sent sprays of water over the firemen. A layer of ice an inch
thick had formed on his neck behind his right ear. He was confined
to his bed till February 21,1920, the date of his death. Amy Savage
and others brought proceedings under the workmen’s compensation
act and received an award. The supreme court on writ of certiorari
reviewed and reversed the award made by the industrial accident
board, two justices dissenting. The supreme court held that the
death was not due to accidental injury, even though there was ex
pert evidence that the ice which froze on his neck had injured his
spinal cord by pressing on the vertebrae. It held further that injury
received in the course of employment through natural causes where
the employee was no more subject to the injury than others similarly
employed was not compensable under the Michigan statute, sustain
ing the contention of the city “ that the wetting and exposure received
by deceased at the fires was an incident which, from the very nature
o f the employment, every fireman is subjected to in Michigan during
the severe winter weather,” so that there was no accident. In other
224
TEXT AND SUMMARIES OF, DECISIONS.
words, it would seem that if injury is only sufficiently probable, no
compensation will be paid under the construction of the law by the
Supreme Court of Michigan.
W o r k m e n ’s
C o m p e n s a t io n — A c c id e n t — F r e e z in g
of
H an ds—
Quick v .F re d E. Illston Ice Co. et al ., Supreme Court of New Y ork ,
A ppellate D ivision {March 2, 1921), 186 New Y ork Supplem ent ,
page 690.—Henry Quick was employed by the Fred B. Illston Ice
Co. in a hazardous occupation, and during the course of his employ
ment he suffered injuries to his hands from freezing. He brought
proceedings for compensation under the workmen’s compensation
act and was granted an award. The employer appealed but the
award was affirmed. The decision is, in part, as follows:
The claimant suffered injuries to both his hands while engaged in
floating ice by the aid of a pike pole on the 31st day of January,
1920. The thermometer at the time of the injury registered 14
degrees below zero, and the accident is found to have been due to the
necessity of holding onto the pike pole in such a manner as to expose
the claimant to an added hazard. His fingers were frozen, and the
commission has allowed an award for a period of 10J weeks. This
court is committed to the proposition that the freezing of one’s hands
while engaged in a hazardous employment is an accident within the
meaning of the statute.
W o r k m e n ’s
C o m p e n s a t io n — A d m ir a i/ t y — D r iv e r
of
T ruck
I n
M cBride v . Standard Oil Co. of New Y ork ,
Suprem e Court of New ork, A ppellate Division {M ay 1921 ),
188 New Y ork Supplem ent , page 90.—William McBride, the hus
ju r e d
by
B arg e—
band of claimant, was employed as chauffeur for the defendant com
pany which was engaged in distributing petroleum and its products.
The State industrial commission gave an award, because of the death
of McBride, to the claimant, stating:
While standing on the side of the barge, while making the barrels
safe at the end of his truck, the brake on said truck was released,
and car slid back and caught the left leg of deceased between the
tail of truck and side of boat.
The company appealed alleging that the death was a tort of a
maritime nature and that the industrial commission had no jurisdic
tion. The appellate court affirmed the finding of the commission.
Judge Cochrane, in stating the opinion of the court, said:
The appellant says in its report of injury that the occupation of
McBride, “ when injured,” was that of a chauffeur. The duties of a
chauffeur in the nature of things pertain to the land and not to water.
The work of the deceased at the barge was merely incidental to his
WORKMEN ?S COMPENSATION.
225
general duties as such chauffeur, and had nothing otherwise to do
with the barge. His employer had nothing to do therewith, except
to receive its merchandise therefrom.
If there was any tort in this case, it consisted in negligently per
mitting the brake on the truck to be released. That was the initial
wrong, if there was a wrong. No tort or wrongful act was com
mitted on the barge. The fact that McBride was standing on the
side of the boat while securing the loaded gasoline on the truck was
merely air incident, and quite insufficient to confer jurisdiction on a
court of admiralty, nothing having occurred on the barge or in
connection therewith to contribute in any way to the accident.
W o r k m e n ’s C o m p e n s a t i o n — A d m i r a l t y — E m p l o y e r s ’ L i a b i l i t y —
—R orvik v. North Pacific Lumber Co. et al
Supreme Court of Oregon (January 25,1921), 195 Pacific Reporter,
page 16S.—Captain Rorvik was in the employ of a steamship com
D o u b l e C o m p e n s a t io n
pany and at the time of the accident was engaged in superintending
the loading of the Steamship Klam ath, which was lying in the
Willamette River, Oreg., at the wharf of the North Pacific Lumber
Co. The steamship company was a California corporation. A
portion of a pile of lumber on the wharf was suddenly shoved forward
striking Captain Rorvik and knocking him from the wharf against
the side of the ship and thence upon some logs lying in the river.
The fall broke his back and he died shortly afterwards. His widow
brought proceedings in California against the steamship company
for compensation under the workmen’s compensation act and re
covered an award of $5,000. This award was contested and re
peatedly appealed from by the steamship company so that the widow,
one year and a half after the death of her husband, had received no
money. She also brought suit against the North Pacific Lumber
Co. for damages under the Oregon employers’ liability act and re
covered a judgment for $12,500. The lumber company appealed
from this decision but the judgment was affirmed. The opinion is
in part as follows:
The theory has been advanced that the tort was a maritime tort,
for the reason that Rorvik was engaged in a maritime contract. The
test for determining whether a tort is a land or maritime tort is not
the same as the test for determining whether a contract is a land or a
maritime contract. The character of a tort is determined by the
locality of the act; and consequently the fact that a person is injured
while performing a maritime contract does not necessarily determine
the character of the tort.
Thus it appears not only that we can not say as a matter of law
that the tort was a maritime rather than a land tort, but it also ap
pears that the defendants themselves concede, and, indeed, insistently
contend, that it was a land tort; and consequently we must agree
226
TEXT AND SUMMARIES OE DECISIONS.
with the contention of the defendants that we can not say that the
tort was a maritime tort. From this conclusion it follows as a
natural sequence that there was nothing in the character and nature
of the tort to prevent the workmen’s compensation act of California
(St. 1913, p. 279) from operating. By the same token we must also
conclude that there was nothing in the character or nature of the
tort to prevent the plaintiff from invoking our employers’ liability
act or to deprive the trial court of authority to award damages, unless
some reason, other than the character of the tort, can be ppinted out.
(See The Albion (D. C.), 123 Fed. 1$9; The Strabo , 98 Fed. 998,
39 C. C. A. 375.) In short, the character of the tort does not render
the California compensation act inoperative, nor does it prevent
the enforcement of our employers’ liability act.
The second point urged by the defendants involves the contention
that the award made under the provisions of the workmen’s compen
sation insurance and safety act of California precludes the plaintiff
from prosecuting or maintaining this action.
It affirmatively appears from the uncontradicted testimony of the
plaintiff that the California proceeding has been sufficiently stayed
to prevent her from obtaining any money. No payments have been
made to her, for thus far she has not been able to compel any pay
ment ; and, moreover, the defendants have made no attempt to show
that the award made by the California industrial accident commission
is final so that it is even now enforceable.
The status of the California award, however, can not affect the
judgment rendered in the Oregon action, for in our view the result
is the same whether we treat the record as a proceeding which is still
pending or as an enforceable finality.
We may assume for the purposes of the discussion that the plain
tiff can not have two satisfactions, one in California and another in
Oregon; and hence a satisfaction of the Oregon judgment would
operate as a satisfaction of the California award.
W o r k m e n ’s
C o m p e n s a t io n — A d m ir a l t y —
S t e v e d o r in g — L o n g
—B erry v. M . F. Dono
van and Sons (Ine.) et al ., Supreme Judicial Court of Maine (No
vem ber 10,1921), 115 A tlantic Reporter, page 250.—M. F. Donovan
and Sons (Inc.), a stevedoring corporation, contracted to discharge a
cargo of railroad ties from a vessel tied to a Portland wharf. Isaiah
W. Berry, a longshoreman, was employed by them to assist in the
unloading. In performing his duties, the plaintiff stood on a plat
form on the wharf. A sling operated by a traveling derrick on the
vessel in bringing one of its loads of ties from the vessel knocked
Berry from the platform to the wharf, incapacitating him tempora
rily for work. The company was an assenting employer under the
workmen’s compensation act. The employee believing himself to
be within the act made an application for an allowance of com
pensation. An award was granted, from which an appeal was taken.
The supreme judicial court dismissed the appeal and affirmed the
s h o r e m a n ’s
R ig h t s
U n d er
E l e c t iv e
L aw
WORKMEN*S COMPENSATION
227
award. Judge Dunn wrote the opinion of the court from which the
following is quoted:
The power of Congress to legislate respecting maritime contracts
is paramount.
Admiralty and maritime jurisdiction, as these terms are used in
this country, extend not only to all things done upon and relating
to the sea, to transactions relating to commerce and navigation, to
damages and injuries upon the sea, and all maritime contracts, torts,
and injuries, but still beyond the high seas to waters navigable
therefrom.
It seems almost superfluous to say that a State may neither broaden
nor narrow the limits of maritime law and admiralty jurisdiction.
State laws can not exclude a maritime contract from the domain of
admiralty jurisdiction; they can not alter the limits of that juris
diction. A State can only authorize the enforcement of rights by
common-law remedies, “ or such remedies as are equivalent thereto.”
Under the judiciary act it is open to a suitor to proceed in rem in
the admiralty or in personam in the same jurisdiction, or, at his
election, in the stead of going into admiralty, he may resort to his
common-law remedy either in the Federal or in the State courts. Of
course, he may not for the one thing properly prevail in both juris
dictions. But personal suits on maritime contracts or for maritime
torts are maintainable in the State courts. If, as a general propo
sition, no remedy is sought against the vessel itself, the case is not
within the exclusive jurisdiction of the Federal courts, but the State
courts, administering common-law remedies, have concurrent juris
diction.
fn the case in hand, the plaintiff is not assuming to enforce a suit
in rem against the vessel, nor is he attempting to prosecute a suit in
personam against her master or her owner; nor to extend a con
tractual relationship born of State legislation beyond an immediate
party, or the insurance carrier of the immediate party, to the con
tract. His attitude is that he and his employer, enjoying constitu
tional freedom to contract, voluntarily put aside rights and obliga
tions otherwise vouchsafed them, and therefore substituted the new
form of compensating industrial injuries which the legislature of
their State has provided. Having done this and injury having be
fallen the plaintiff out of and in the course of his employment, he
insists that this court make their contract to square with the de
mands of real justice and plain common sense, that his rights in the
dual citizenship of State and nation may not be unjustly infringed,
and that the remedial legislation out of which the contract sprang
may be judged by what it achieves in satisfying the righteous de
mand of society for a justice that is exact, equal, and full.
The presented situation, as we see it and understand it, is this:
First, a contract between a stevedoring corporation and a vessel to dis
charge her cargo; the contract being of maritime nature. Next, a
contract between that stevedoring corporation and the plaintiff, hav
ing to do with his employment in the unloading; this too may be
regarded as a maritime contract. Finally, between the same steve
dore and the same longshoreman, a contract about the contract that
101296°—22-----16
228
TEXT AND SUMMARIES 0 T DECISIONS.
they already had made; the latest contract touching ttie employer’s
responsibility for possible injuries to the employee. This contract
arose out of and by force of the State’s statute, immediately upon the
consummation of that contract made next before, but not without
the express assent of the one and the implied assent of the other of
the contracting parties. The contract relates to a maritime con
tract. It springs from an existing maritime contract. Plainly, if the
longshoreman were entitled to enforce against his employer an action
of tort for personal injuries, it would seem that a common-law
remedy in personam would be available, whether the accident hapened on the high seas or near shore in the navigable waters of the
tate. As also admiralty would have jurisdiction. The stevedore
and its longshoreman, when the making of their original contract of
hire was complete, must be held to have voluntarily agreed that if,
in the course of the latter’s employment, disabling or fatal injury
should come to him, a compensation would be made in manner and
amount as defined by a statute of their State to the exclusion of
liability therefor otherwise. Without such voluntary adoption the
statute would be of no effect between the parties. Such voluntary
adoption afforded a peculiar remedy, entitled to recognition onl^ in
the State granting it, though it might apply to injury occurring else
where. No reason is perceived why it would not be quite as com
petent for them to fix upon a mode for determining when, where, and
the extent to which money relief or compensation should be forth
coming in the event of accident, as it would be for them, after the
happening of an accident, amicably to make adjustment of damages
or to submit the question to the determination of a common-law
arbitration, or for the injured one to waive his right to damages, or
for the other to make him an award therefor—no legal liability ex
isting. There is neither change, nor attempt to change, the contract
to which the vessel is party; that remains the same in every court,
maritime or common-law. Employer and employee mutually sub
stitute for rights and liabilities which the law would imply from the
contract of hiring other rights and liabilities made effective by a
State-sanctioned contract of their own making, entered into to re
move the uncertainties of possible lawsuits. In this rigorous climate,
where the winds of common sense blow free and strong, that con
tract seems anchored secure within a safe legal haven.
The prevailing opinion in the case of Knickerbocker Ice Co. v.
Stewart, 253 U. S. 149, 40 Sup. Ct. 438 [Bui. No. 290, p. 302], is ad
vanced by the defendants as of relation to the issue as presented
here. The light to be got from that decision of the highest court in
the land, speaking the last word on the question involved, is that
the Congress exceeded its power to legislate in attempting, as against
the owner of a barge, and in defiance of that owner’s will, to permit
the application of a compulsory Compensation law of New York
State to injuries sustained within the admiralty and maritime juris
diction, by the owner’s employee, on the theory that such legislation
is destructive of the essential harmony and uniformity that it was
meant in the adoption of the Constitution that the Federal Govern
ment should provide and preserve in the rules concerning .matters
maritime. The decision must be accepted as conclusive. But that
decision does not indicate the course of the present case. Under a
g
w o r k m e n ’s co m pensa tio n .
229
compulsory statute, the rights and liabilities of parties arbitrarily
arise from the law. Under an elective statute they come into ex
istence from contract. The distinction and the difference are too
clear for exposition. And, what is the more, undoubtedly an
independent contractor might be liable to his own employee, re
gardless of whether the vessel or her owner would be or not. A
State legislature has no power to modify or abrogate the maritime
law; that being of the law of the United States. (Workman v.
New York, 179 U. S. 552, 21 Sup. Ct. 212.) The legislature of the
State of Maine has not presumed to encroach or trench upon a
power which the people of the United States conferred upon the
nation. The legislature has confined itself to the enactment of a
law intended to operate only in those instances where its provisions
are, voluntarily contractually adopted, and operative solely by the
procedure of the statute on which the adoption is bottomed. A
contract founded on that law is of right entitled to the rights of a
contract universally.
The Doey case [224 N. Y. 30, 120 N. E. 53], and the concomitant
ones from New York, involve the question of a State legislature as
suming to read a compensatory contract into another contract,
whether the contracting parties of their volition would or not.
Upon the contractual phase of the situation, the final arbiter of
Federal questions has not yet said. Until it shall, say otherwise, if,
indeed it ever shall, our ideas of the nature of contracts readily lead
us to the conclusion that the decision of the chairman of the accident
commission in this plaintiff’s case is invulnerable to attack.
W o r k m e n ’s
C o m p e n s a t io n — A l ie n
B e n e f ic ia r ie s — E q u a l
P ro
—V ietti et al. v. George K . Mackie Fuel Go.,
Supreme Court of Kansas (M ay 7, 1921), 197 Pacific R eporter , page
881 .—Victor Vietti was employed as a miner for the defendant com
pany. During the course of his employment a rock fell from the
roof of the mine, resulting in instant death. The only question that
arose was as to the amount of the damages. The plaintiffs, depend
ents of deceased, are aliens but reside in Kansas. The contention
is on the following provision of the compensation law:
* * * And provided, however, that if the workman does not
leave any dependents, citizens of and residing at the time of the acci
dent and injury in the United States or the Dominion of Canada,
the amount of compensation shall not exceed in any case the sum of
$750.
The lower court upheld an award of $3,435.12 by substituting the
word “ or ” for “ and ” before the word “ residing.” The supreme
court affirmed the finding of the lower court, but on different
grounds, stating in part:
Sometimes-the word 4 and ” in a statute may be construed as 4 or,”
6
4
but the substitution is not permissible unless the manifest intention
of the legislature requires it. Nothing in the context of the act nor
in the reason or spirit of it appears to warrant such robust treatment.
t e c t io n
of
th e
L aw s
TEXT AND SUMMARIES OF DECISIONS.
230
Referring to the treaty between the United States and Italy,
which calls for equal treatment of nationals, the following is quoted
from the opinion:
The treaty is not only binding on the contracting parties, but must
be regarded as a part of our own law, effective and binding upon
legislatures and courts.
If there is a conflict between the treaty and the statutory provi
sion in question, the treaty must control, and the statute give way
during the existence of the treaty. It will be observed that the
treaty plainly purports to place citizens of the two nations upon an
equality in respect to their persons and properly rights where citi
zens of one country are domiciled in the other, and there is also a
stipulation that the relatives and heirs of an injured party shall be
given a right of action which shall not be restricted on account of
the nationality of such relatives or heirs.
Regarding the constitutionality of the provision, the court said:
It may be added that the statutory limitation is also in contraven
tion of the fourteenth amendment of the Federal Constitution, which
provides that no State shall “ deny to any person within its jurisdic
tion the equal protection of the laws.” Aliens lawfully resident in
the State are within the protection of this clause. The plaintiffs
were lawful inhabitants of Kansas, and therefore had a right to
invoke the protection of the amendment. The equality clauses of the
amendment, it has been determined, “ are universal in their appli
cation, to all persons within the territorial jurisdiction, without
regard to any difference of race, of color, or of nationality; and the
equal protection of equal laws is a pledge of the protection of equal
laws.” (Vick VVo v. Hopkins, 118 u. S. 356, 6 Sup. Ct. 1064.)
W orkmen’s Compensation — Awards — Apportionm ent — Lr mp
S ums—R eview— Texas Em ployers' Ins. Assn. v. Bourdreaux et a /.,
Commission of Appeals of Texas (June 7, 1021 ), 231 Southwestern
Reporter , page 7o(>.—Israel Bourdreaux was an employee of the Gulf
Production Co., which company was a subscriber to 1be employers’
liability act and carried a policy of insurance with the Texas Em
ployers’ Insurance Association. Bourdreaux while employed by the
company sustained injuries which resulted in his death, leaving a
wife and two minor children. The industrial accident board found
that the wife and two children were emit led to compensation and
made an award. This was fixed on a weekly basis, and made a
percentage allowance to the claimants’ attorneys. The insurance
company contested the award, which was set aside and a new award
made, of a lump sum. the court holding the case to be a special one,
warranting commutation. One-third of the award was to be paid
to the attorneys, and two-thirds to the beneficiaries. Onehalf of the two-thirds was to be paid to the widow of the de
ceased employee and the other half to the two children in equal parts.
w o r k m e n ’s c o m p e n s a t io n .
231
The case was then taken to the court of civil appeals on the ground
that the lump sum was not justifiable, nor was the award properly
distributed. However, the award was affirmed, the court of appeals
holding that it had no power to inquire into the propriety of a lump
sum award on an appeal. The insurance association again contested
the case, claiming error on both points. Chief Justice Phillips of
the supreme court adopted and entered as the judgment of the court
the judgment recommended in the report of the commission of
appeals. The decision affirmed the lower court on the method of
distributing the compensation, but reversed the decision of the court
of appeals in so far as it held that the findings of the trial court
upon the issue of a lump-sum settlement were not subject to review in
the court of appeals. The decision is in part as follows:
The statutes of descent and distribution furnished one rule for
distributing the community estate of a deceased husband to his sur
viving wife and children, and another for distributing among them
his separate estate. (Article 2469 and 2462, R. S. 1911.) The com
pensation awarded in this case is neither the community nor sep
arate property of the deceased. It does “ not pass to the estate of
the deceased to be administered upon,” but is payable directly to
those to whom it is awarded.
The compensation provided by the act arises out of the contractual
relation between the employer and the deceased employee. When
awarded for death of the employee, it is in substitution for damages
ordinarily recovered by statute because of the death of the employee
due to the negligence of the employer. (Middleton v. Texas Power
& Light Co., 108 Tex. 96, 185 S. W. 556.) It is measured by the
current wages of the deceased, and is to all practical purposes to
supply to his beneficiaries the means of support which were afforded
by his wages prior to his death. Its payment is provided for “ from
week to week as it accrues,” except in special cases. The right of
the deceased to have compensation paid his beneficiaries in case of
his death was acquired by him during coverture. His wages flow
ing from his contract of employment under which he was working
at the time of his death were community property. The compensa
tion measured by his community wages and having its source, as it
were, in the same contract of employment, partake more nearly of
the nature of community than of separate property; and it should
be distributed, in our opinion, according to the statute of descent
and distribution applicable in distributing community property.
Under this statute the apportionment provided is one-half to the
wife and one-half to the children. (Article 2469, R. S. 1911.) Only
two of the children being beneficiaries, the proportion should be, as
between the wife and children, one-half to the former and one-fourth
each to the latter.
The conclusion that this apportionment of the compensation should
be made was reached by the industrial accident board, the trial court
and the court of civil appeals, and we concur therein.
Were the findings of the trial court with respect to whether the
case was one calling for a lump sum settlement subject to review
by the court of civil appeals?
232
TEXT AND SUMMARIES OF DECISIONS.
The trial court heard the case de novo, and made its findings upon
all the issues, including the issue with respect to a lump-sum award.
We see no reason why these findings are not subject to the same
character of review on appeal to which findings upon other fact
issues are subject. The court of civil appeals, in our opinion, has
power to review, and should review, the findings upon the issue of
a lump sum settlement.
We recommend that the judgment of the court of civil appeals
be reversed, and that the cause be remanded to that court for a re
view of the findings and conclusion of the trial court with respect
to whether the case was one calling for a lump sum award, and for
further orders.
Workmen’s Compensatton^-A wards—Basis—B usiness Condi
tions—Capone's case , Supreme Judicial Court of Massachusetts (July
5 , 1921), 132 Northeastern Reporter , page 32.—Dominick Capone
brought proceedings under the workmen’s compensation act against
tiie A. & J. M. Anderson Mfg. Co., his employer, and the insurance
carrier, for compensation for injuries. The industrial accident board
granted an award of two-thirds of the difference between the salary
formerly earned and his salary at the time of the award. The su
perior court affirmed the finding, but upon appeal to the supreme
court the case was recommitted to the industrial accident board for
further hearing. Judge Carroll said:
When the employee was injured his work was that of operating
a milling machine. If on December 3, 1920 (from which time he
was found to be partially incapacitated for labor), he was in fact
able to operate such a machine and could secure employment at this
work, then there was no incapacity to labor resulting from the in
jury. But if his injured finger prevented his pursuing his former
employment, or if by reason of business conditions he could not
secure work at this occupation and his ability to labor in other pur
suits was impaired by his injuries, this circumstance was important
in determining the amount of wages he could earn and should be
taken into account in deciding what compensation should be awarded
him because of his diminished capacity to work. Reduction in earn
ing capacity occasioned by general business conditions and not due
to the injury could not be considered. The statute contemplates that
compensation is to be paid for diminished capacity to earn wages ;
and the employee, in common with others, must bear the loss resulting
from business depression. (Durney’s case, 222 Mass. 461, 111 N. E.
166 [Bui. No. 224, p. 228].) If, however, the employee could not
return to his former employment because of business conditions and
sought for or secured employment elsewhere which he could per
form, if it were not for his inability because of his injury, his earn
ing power and labor efficiency were lessened within the meaning of
the statute, and he was entitled to the compensation provided. (Sul
livan’s case, 218 Mass. 141,105 N. E. 463 [Bui. No. 169, p. 241] ; Duprey’s case, 219 Mass. 189,106 N. E. 686 [Bui. No. 169, p. 268].) In
Barry’s case, 235 Mass. 408,126 N. E. 894, it was found that the em
w o r k m e n ’s c o m p e n s a t io n .
233
ployee was no longer able to do the work at which he was employed
when injured; that in the general labor market his capability to earn
wages was diminished ; and the decree awarding compensation on this
ground was affirmed. (Septimo’s case, 219 Mass. 430, 107 N. E. 63
[Bui. No. 189, p. 290].) In the case at bar it has been found that be
cause of the employee’s injury his earning capacity was reduced;
but the record does not show that he failed to secure work at his
former employment, or that his efficiency in that work was in any
way impaired. In our opinion the case should be recommitted to the
industrial accident board for further hearing on this point.
Workmen’s Compensation—Awards—Basis — E arnings — Gentralia Goal Go. v. Industrial Commission et al ., Supreme Court of
Illinois (A p ril 21, 1921), 130 Northeastern Reporter, page 725.—
Ernest Sundermeyer was injured while employed as a miner by the
Centralia Coal Co. in its mine. His injuries rendered him perma
nently wholly incapacitated for work. Previous to his injury Sun
dermeyer, who had been paid 80 cents per ton for digging and load
ing coal, had been assigned to a driving room where the coal lay
beneath a roof of slate 3 feet thick. In order to get at the coal
he was required to devote much time and effort to removing the
slate. This resulted in materially reducing the rate of his earnings.
In awarding him compensation the industrial commission computed
his average weekly wages, not on the basis of his actual earnings,
but, owing to the circumstances of his case, on the basis of the aver
age earnings of other miners in the company’s employ. The em
ployer objected to this method of computation and appealed. The
circuit court affirmed the award and the employer again appealed,
but the decision was affirmed and the award allowed to stand as
rendered. The opinion in part is as follows :
Section 10 of the workmen’s compensation act provides the basis
for computing the compensation provided for in sections 7 and 8 of
the act. Paragraph (a) of section 10 provides that the compensation
shall be computed on the basis of the annual earnings which the
injured person received as salary or wages if in the employ of the
same employer during the year next preceding the injury. Employ
ment by the same employer is, by paragraph (b) of said section,
defined as “ employment by the same employer in the grade in which
the employee was employed at the time of the accident, uninterrupted
by absence from work due to illness or any other unavoidable cause.”
Paragraphs (d) and (e) provide for the method by which the daily
and weekly basis of the year’s work is computed. Paragraph (f)
provides for compensation for certain employees not subject to the
preceding paragraphs.
It can not be doubted in this case, from the facts shown in the
evidence, that Sundermeyer did not earn during the year preceding
the accident in question as much as the average miner employed in
‘this mine. It is also evident from the testimony that this was not
234
TEXT AND SUMMARIES OP DECISIONS.
due to any lack of industry or capability on his part, but was due
to the condition of the room in which he was required by his em
ployer to work. There appear to be no cases in this State where
this exact question has been presented, nor have counsel referred
us to any cases in other jurisdictions, and upon investigation we have
been unable to find any cases directly in point on the matter.
If Sundermeyer was unable to earn the average amount earned
by miners in the mine of plaintiff in error by reason of his own in
ability or lack of industry, he is not entitled to have his compensa
tion computed upon a basis of the average earnings of miners in that
mine. To hold him so entitled would be to place a premium upon
idleness and inefficiency. The case is different, however, where his
inability to earn as much as the average miner in the mine is not
due to his fault, or to the fact that he is below an average miner,
but is due to a condition under which he is put to work by his em
ployer, which is not a normal and recognized incident of the em
ployment. In such case it would appear to have been the intention
of the legislature that such employee should be entitled to compen
sation based upon the average wage of the adults employed in said
mine in the same class or grade of employment, i. e., that of miner.
We are of the opinion that the legislature intended by paragraph
(f) of section 10 to provide for cases of this character. The circuit
court therefore did not err in confirming the award.
The judgment of the circuit court will therefore be affirmed.
Workmen’s Compensation—Awards—Deductions—Volttntary
P ayments—M ercury A viation Go. v. Industrial Accident Commis
sion of California et al ., Supreme Court of California (June 28,
1921), 199 Pacific R eporter, page 508 .—George C. Freeman, em
ployed as a mechanic for the Mercury Aviation Co., received an
injury to his right arm while cranking an aeroplane motor in the
course of his employment. He was totally disabled for five weeks,
at the end of which time he returned to work. Because of his in
juries he performed only light work, but at the same rate of pay
until discharged six months later. After his discharge he was
awarded compensation. The commission deducted from its award
the money paid Freeman for four of the five weeks he was sick, but
did not give the employer credit for the difference in salary between
a mechanic’s wages and a “ light-work ” worker. The Mercury Avia
tion Co. brought the award before the supreme court for review on
the ground that a larger credit should have been allowed them on
account of the 100 per cent weekly payments it made to the employee
continuously from the date of injury to the time of discharge. That
court, through Judge Lennon, affirmed the award of the industrial
accident commission, holding:
An employer can not escape the payment of compensation for a
permanent partial disability solely upon the ground that the em
WORKMEN *S COMPENSATION.
235
ployee returned to work prior to the termination of the period cov
ered by the payments and for the same wages received by him before
the injury.
The reemployment of the injured employee was entirely optional
with petitioner, just as it was optional with the employee to continue
working, and likewise the amount of wages was a matter for the
determination of the parties. Inasmuch as petitioner chose to con
tinue full payments during the period of total disability in the ab
sence of any agreement and thereafter to accept services from the
employee and make regular payments to him without any under
standing that the services rendered were not worth the sums paid
and that some portion thereof was paid as compensation, it is not
entitled, as a matter of legal right, to insist upon the deduction of
the payments from the amount of the award.
Workmen’s Compensation—Awards—I mpaired F unction—Loss
of U se of E ye—P artial Loss of U se—“ Member”—Chiovitte v.
Zenith Furnace Go ., Supreme Court of Minnesota (February £5 ,
1921 ), 181 Northwestern Reporter , page 61$.—Tony Chiovitte, while
engaged in the performance of his duties, sustained an injury to his
right eye, which resulted in permanently impairing the sight of that
eye to the extent of 68 per centum of its usefulness. He was unable
to work for 8 weeks and received the maximum weekly compensation
of $15 per week for this period. He then returned to work, earn
ing higher wages than before he was injured. Chiovitte, after
bringing the necessary proceedings, was granted an award by the
district court of $15 per week for 60 additional weeks. This award
was made on the theory that as the schedule provided a fixed com
pensation of 100 weeks for the loss of the sight of an eye, and as
Chiovitte had lost 68 per cent of the sight of his eye, he should be
given 68 per cent of the compensation for the total loss of the vision
of the eye, or payments for 68 weeks. The defendant company
brought a writ of certiorari to the supreme court to review this
decision, contending that this was not an injury properly coming
under the schedule in the workmen’s compensation law, and as Chio
vitte was earning more money than he did before his injury he was
not entitled to further compensation. The court affirmed the award
and decision of the district court in an opinion of which the follow
ing is a part:
The compensation for the loss of one eye is a specified weekly
payment for a period of 100 weeks, but the compensation for the
partial loss of the sight of one eye is not specifically stated in the
schedule. The compensation for the total loss of the sight of both
eyes is a specified weekly payment for the period of 550 weeks, but
the compensation for the partial loss of the sight of both eyes is not
specifically stated in the schedule.
TEXT AND SUMMARIES OF DECISIONS.
236
Defendant contends that as the compensation for partial loss of
the sight of an eye is not specifically stated in the schedule, the case
is governed by the clause which provides that—
“ In all otner cases of permanent partial disability not above
enumerated the compensation shall be sixty-six and two-thirds per
centum of the difference between the wage of the workman at the time
of the injury and the wage he is able to earn in his partially disabled
condition,” and that consequently plaintiff is not entitled to further
compensation as he is receiving higher wages than he received at
the time of the injury.
The statute contains a lengthy schedule specifically prescribing
the compensation to be paid for the loss of various members of the
body therein named, and recognizes the loss of any such member as
constituting a permanent partial disability. For the injuries enu
merated in the schedule, the prescribed compensation is to be paid,
and the liability therefor is made absolute and is not dependent upon
an actual decrease in’earnings. After prescribing the compensation
for the injuries specifically named, the statute further provides
that—*
“ In cases of permanent partial disability due to injury to a mem
ber, resulting in less than total loss of such member not otherwise
compensated in this schedule, compensation shall be paid at the
prescribed rate during that part of the time specified in the schedule
for the total loss of the respective member, which the extent of
injury to the member bears to its total loss.”
This provision recognizes that an injury which results in less than
total loss of a member constitutes a permanent partial disability to
the extent which the “ injury to the member bears to its total loss,”
and prescribes as compensation therefor a like proportional part of
the compensation allowed for such total loss. (State ex rel. v. Dis
trict Court, 136 Minn. 147, 161 N. W. 391.) The obligation to pay
the prescribed compensation for such partial disability is not depend
ent upon an actual decrease in earnings but is made absolute.
The compensation for the loss of one eye is a specified weekly
payment for a period of 100 weeks. Plaintiff lost 68 per centum of
the sight of one eye and therefore became entitled to the specified
weekly payment for a period of 68 weeks. The trial court correctly
so held, and, as plaintiff had received compensation for only 8 weeks,
awarded it to him for the remaining 60 weeks.
A question is raised as to whether an eye is included in the term
“ member ” as used in the statute. An examination of the various
statutory provisions relating to the eye and of the manner in which
the term “ member ” is used in the statute leaves no doubt that this
term was intended to refer to and include the eye as well as the other
integral parts of the body named in the schedule.
W orkmen’s Compensation—Awards—Loss of Several F ingers—
Method of Computation—N orth Beck M ining Co . et al. v. Industrial
Commission of Utah , Supreme Court of Utah (Ju ly 27, 1921), 200
Pacifie Reporter, page 111 .—Arvid Erickson while employed as a
miner for the North Beck Joining Co. was injured, resulting in the
w o r k m e n ’s c o m p e n s a t io n .
% S1
amputation of the first three fingers of his right hand. The in
dustrial commission made an award, and the mining company had
the record transmitted to the supreme court for review. The prin
cipal question involved was the correctness of the award. The plain
tiffs argue that the compensation for the loss of each individual finger
should be added, which would amount to 55 weeks’ instead of 75
weeks’ compensation as awarded by the commission.
The supreme court through Judge Weber affirmed the award for
the following reasons:
It is a matter of common knowledge that if one finger on a hand
is amputated the adjoining fingers begin to function for the missing
member, and soon acquire the power, to a great extent, of taking the
place of the lost finger. It follows that the loss of two adjoining
fingers must necessarily be something more than the sum of the loss
of each finger separately. If all the fingers of a hand are ampu
tated, it would not amount to the total loss of the use of the hand,
because the palm of the hand would still be of some use. But it
would not be fair, and we do not think it was intended by the
statute as amended in 1919, to compensate for the loss of all the
fingers by adding the scheduled benefits for the loss of each finger.
In 1919 the law was amended by adding to the schedules for specific
losses this provision:
“ Any other disfigurement, or the loss of bodily function not other
wise provided for herein, such period of compensation as the com
mission shall deem equitable and in proportion to compensation in
other cases not exceeding two hundred weeks. ”
It seems plain and clear to us that this amendment was adopted
for the express purpose of providing fair and adequate compensa
tion in cases like the one before us. The majority of the commis
sion in making the award based it on the idea that where several
fingers are lost it is the loss of a “ bodily function not otherwise pro
vided for” in the schedule, and that, therefore, the compensation
must be awarded in proportion to the loss of use, to be ascertained
by evidence, which the loss bears to the total loss of the hand.
To allow for the decreased usability of the hand when more than
one finger is lost is, in our opinion, a fair method of compensa
tion, and is also the method contemplated by the legislature when
in 1919 it amended the industrial act.
Workmen’s Compensation—Awards—P ermanent P artial Disa
bility—Loss of U se of Arm—Temporary P artial Disability—
TVrenn v. Connecticut Brass Co. et al., Supreme Court of Errors of
Connecticut {February 21,1921), 112 A tlantic Reporter, page 638 .—
While working for the Connecticut Brass Co., Maurice Wrenn sus
tained a fracture of his left arm which left it in a twisted and un
natural position. This injury occurred on March 6, 1915. Sur
geons believed that the arm could be restored to normal by means
TEXT AND SUMMARIES OF DECISIONS.
238
of a bone graft. The operation was accordingly performed, but
unfortunately it proved unsuccessful and a suppurative process per
sisted, so that on June 26, 1916, all hope of restoring the arm to
normal was abandoned. The compensation commissioner held that
the arm was not finally determined to be useless until June 26, 1916,
and that the employee was entitled to compensation for the period
from the date of the injury (March 6, 1915) to the date the arm was
finally found to be useless, in addition to the specific compensation
for permanent partial disability resulting from the loss of the use
of the arm. The employer appealed to the superior court, which
dismissed the appeal and affirmed the award and the employer again
appealed. In affirming the award in favor of Wrenn the court said,
in part:
All reasonable efforts should be used to save an injured arm or
limb, and thus prevent the necessity for its amputation, or its com
plete loss of usefulness. Until the time for such effort has passed
professional skill should be directed to the attempt to effect a cure.
When competent professional opinion upon fair examination reaches
the conclusion, or should reach the conclusion, that it is not reason
able to expect to cure or improve the injured arm, it can then be said
for the first time that the loss of this member has occurred. Then,
unless something further must be done to improve or heal the
member, there exists the condition described in the statute, “ the
complete and permanent loss of the use of one arm,5 and the specific
5
compensation provided by statute is then due. But this does not
compensate the injured employee for the period between the date of
injury and the date of determination of the complete loss of use.
The incapacity during this period may have been total or partial
and our act provides compensation for this period of incapacity as
well as for the complete and permanent loss of the use of the arm.
The loss of the arm through amputation occurs when the ampu
tation takes place. The complete and permanent loss of the use of
the arm occurs when no reasonable prognosis for complete or partial
cure and no improvement in the physical condition or appearance
of the arm can be reasonably made. Until such time the specific
compensation for the loss or for the complete and permanent loss
of the use of the arm can not be made.
In this case the treatment of the arm was continued up to August
1, 1916, and as we understand the finding, ceased and the wound in
the arm finally healed at this time. Not until then did the period
of incapacity for which the injured employee was entitled to com
pensation cease and the condition of a complete and permanent loss
of the arm exist
W orkmen’s Compensation—Awards—P roximate Cause—E vi
dence—Surgical Operation not Bequired by I njury—Dulac v.
Proctor (& Bowie Go. et al ., Supreme Judicial Court of Maine (July
8 , 1921) , 11 If, A tlantic Reporter , page 298.—Joseph Dulac while in the
employ of the defendant company was injured, causing an epigastric
WORKMEN ’s COMPENSATION.
239
hernia. When the physician operated Dulac employed him indepen
dently to operate, under the same anesthetic, for an inguinal hernia of
long standing. The operation resulted in death from postoperative
surgical shock. Mrs. Joseph Dulac brought proceedings under the
workmen’s compensation act and obtained an award of compensation.
The employer and insurance carrier appealed. The supreme judicial
court sustained the appeal and dismissed the petition, because the
evidence left it uncertain whether the servant would have died from
the shock of the operation for the epigastric hernia alone. Judge
Spear speaking for the court said in part :
Inasmuch as the evidence fails to show that the injury affected the
inguinal hernia at all, the plaintiff then leaves it to uncertainty or
conjecture whether the decedent would have died from the shock of
the ventral hernia, and can not then recover, because she must prove
that fact. In Westman’s case, 118 Me. 138, 106 Atl. 535, it is said:
“ It is- undoubtedly true, and has been frequently so held, that the
burden of proof rests upon the claimant to prove the facts necessary
to establish a right to compensation under the compensation act.”
In Mailman’s case, 118 Me. 182,106 Atl. 606, it is said: 4 There must
4
be some competent evidence. It may be 4slender.’ It must be evi
dence, however, and not speculation, surmise, or conjecture.”
Both operations were performed. The patient did not survive.
The evidence leaves it in doubt whether the postoperative shock of
the ventral hernia caused the death, but without any doubt that the
operation upon the inguinal hernia contributed thereto. Under the
plaintiff’s legal contention, therefore, that the postoperative shock
of both operations contributed to the death, for one of which the
defendant was not responsible, it still remains in the realm of surmise,
guess, or conjecture whether the accident, which did not affect the
inguinal hernia, was the direct cause of the decedent’s death.
Workmen’s Compensation—Awards—Remarriage of Widow—Child’s R ights—Subsequent Legislation—Riggs v. Lehigh P ort
land Cement Co ., A ppellate Court of Indiana (M ay SI , 1921), 131
Northeastern R eporter , page 231.—Fred Riggs on November 15,1918,
while in the employment of the cement company received an injury
that resulted in his death. The industrial board of the State ap
proved of an agreement made on January 22, 1919, between Ida
Riggs, wife of the deceased, and the cement company, by the terms
of which the cement company agreed to pay the widow, for herself
and child, compensation at the rate of $13.20 per week for 300 weeks,
which, however, would terminate in case the mother remarried, in
accordance with the terms of the workmen’s compensation law. At
the 1919 session of the legislature the law was changed, providing that
the marriage of a widow shall terminate her own dependency but not
the dependency of her child. After the amendment became effective
the widow remarried. After the marriage the board, on application
240
TEXT AND SUMMARIES OF DECISIONS.
of the cement company, ordered that compensation cease from and
after the marriage. Ida Riggs Todd, as the next friend of her child,
Lelia Irene Riggs, filed an application'for the payment of compensa
tion notwithstanding her marriage. The board ordered that the child
would take nothing. From this order the case was appealed. The
appellate court held that the amendment of 1919 was of no effect,
saying that “ legislation should be given a prospective, rather than
a retroactive effect” and further:
It is the duty of the industrial board, when making an award, to
fix the rights of the parties in accordance with the law as it existed
at the time of the injury to the workman.
We are of the opinion that the rights of all concerned were fixed
by the act under which the award was made, and may not be modified
by subsequent legislation. If the legislature may increase awards,
it may also decrease awards. To permit subsequent legislation to
increase or diminish the compensation specified in awards would be to
strike down vested rights. Then no one would be secure. The re
sulting uncertainty, distrust^ and confusion would destroy the com
pensation plan itself. To give to the amendment the effect desired
by appellant would be to confer on the child a substantive right
which she did not possess at the time of the injury and death of her
father, and to impose on the employer a burden not imposed by the
law at that time, and would be giving an unwarranted retroactive
effect to the amendment.
Workmen’s Compensation—Awards—Review—Change in Con
dition—Lam bert et al. v. Powers , A ppellate Court of Indiana (June
9 , 1921) , 131 Northeastern R eporter , page 1$0.—An agreement be
tween Milton Powers, an employee of Edwin M. Lambert, for com
pensation for personal injuries was approved by the industrial board
and a judgment had been rendered against the employer in accordance
with such agreement and compensation was paid for a time. The
employer and the insurance carrier applied for a review on account
of changed conditions, in the meantime terminating payments. The
industrial board ordered the award on the basis of permanent partial
disability, and made an order denying the employer’s and insurance
carrier’s petition for review, holding that there had been no change
in conditions. The appellate court affirmed the award, with the
penalty fixed by statute, in an opinion by Judge McMahon in part as
follows:,
The provision of the statute is that no application for a review
on account of change of conditions shall be filed by either party after
the expiration of one year from the termination of the compensation
period fixed by the original award. Time for filing such application
does not run from the date of the award as claimed by appellee, but
from the end of the compensation period fixed by the award.
Appellee also contends that this cause should be dismissed for the
reason that the agreement for compensation and the award of the
WORKMEN’S COMPENSATION.
241
board approving the same have been merged into a judgment by the
Grant circuit court.
The right of the board to change or modify an award is expressly
recognized, and when an award is modified by the board, it becomes
the duty of the court on proper application to modify the judgment
theretofore rendered so as to correspond with the award as modified
by the board.
A decision of the questions thus presented requires that we weigh
conflicting evidence. . This we have refused to do so often that it
would seem that employers and insurance carriers should realize that
when there is any evidence to support the award, it does not show
proper respect for the law to prosecute an appeal when the only
question involved requires the court to weigh conflicting evidence.
This record also shows a striking illustration of the disposition of
employers or insurance carriers, or both, not only to prosecute need
less appeals, but also an utter disregard of their agreement to pay
compensation and the award of the board, by arbitrarily stopping
the weekly payments of compensation according to the award with
out first filing their application for a review on account of change in
the employee’s condition. At the time appellants filed their applica
tion herein, they were owing appellee approximately $750, and the
same was not paid until they were compelled to make such payment
or be denied a hearing on their application, and when they made
their payment it was at a time when they were over two years in
default. The time has come when employers and insurance carriers
should understand that they are entitled to no consideration when
they are in default in payment of compensation.
The award is affirmed with the penalty as fixed by statute.
W orkmen^
C o m p e n s a t io n — A w a r d s — R e v i e w — D is c o u n t
tor
Western In
demnity Co. v. MUam , Court of Civil Appeals of Texas (April 7,
1921), 230 Southwestern Reporter , page 825.—Henry M. Milam, an
E a r l y P a y m e n t s — R e f u s a l to S u b m it to O p e r a t io n —
employee of the Rutt Home Builders, sustained an injury on January
17, 1919, while in the course of his employment. The Rutt Home
Builders had a policy with the Western Indemnity Co.* which policy
insured the employees of the subscribers against injuries under the
workmen’s compensation act of Texas. The industrial accident
board made an award in favor of Milam, and the Western Indemnity
Co. filed a suit to set aside the award, but judgment was rendered in
favor of the defendant. The court increased the amount of the pay
ments by correspondingly decreasing the number of weeks. The In
demnity Co. appealed to the civil court of appeals which affirmed the
lower court. The decision upheld the action of the lower court on
the change in the plan of payments on testimony that showed that
Milam had a wife and seven children and did not have an independ
ent income. The court reformed the judgment of the lower court so
as to allow a discount as in the case of a lump sum settlement. In
242
TEXT AND SUMMARIES OF DECISIONS.
referring to Milam’s refusal to submit to a surgical operation the
court said that he was justified in doing so, rs he acted under the
advise of the skillful physicians who were treating him, and therefore
he did not refuse 66to accept or receive” medical treatment.
W o r k m e n ’s C o m p e n s a t io n — A w a r d s — R e v ie w — E f f e c t o f S u p e r
I
— W a rd v . H eth B ros, et al., Su prem e C ourt o f
M ichigan (D ec. 31 , 1920 ), 180 N o rth w estern R ep o rter , pa ge 21^5.—
v e n in g
n s a n it y
Herbert Ward sustained an injury to his right ankle while in the de
fendant’s employ. He made an agreement with defendant and its
insurer whereby he was to receive $7,425 per week for total disability.
Later when the disability ceased to be total and was yet partial an
other agreement was made whereby he was to receive $3,425 per week
during disability. Both agreements were approved by the industrial
accident board. About two years after this last agreement Ward be
came insane and was committed to an asylum. The employer and its
insurer petitioned to be relieved from making further compensation
payments by reason of Ward’s insanity. The petition was denied and
defendants appealed. In affirming the decision denying the petition
and in upholding the award the court said in part:
We doubt if defendants really claim that, simply, the intervening
insanity would relieve them from liability. We understand their real
position to be that the disability from which claimant has suffered
since April 23, 1919, was due to disease and not the injury of Feb
ruary 12,1916.
However, we are of the opinion that the position of claimant upon
that subject is fully sustained by the authorities cited. In other
words, that the supervening insanity of the claimant does not justify
defendants in stopping payment of compensation.
The order of the board in denying defendants’ petition is affirmed,
with costs.
W o r k m e n ’s C o m p e n s a t i o n — A w a r d s — R e v i e w — R e f u s a l t o P e r
S
O
—S tro n g v. Sonken-G alam ba Iro n & M etal
Go.j S u prem e C ourt o f K ansas (M ay 7, 1921), 198 P acific R ep o rter ,
page 182.—William J. Strong received an injury, resulting in hernia,
m it
u r g ic a l
p e r a t io n
that totally incapacitated him from work. An arbitrator awarded
plaintiff $500.26 as the amount due up to the time of the award and
a weekly payment for 8 years thereafter on the same basis, namely,
$10.65 per week. Defendant company paid the lump-sum amount
and on the same day filed a petition to review the award. The dis
trict court stated that Strong should submit to an operation, having
all expenses paid, and in case of refusal, his compensation would be
cut down to $7.50 per week for 25 weeks. Judgment was rendered
accordingly and the plaintiff appealed. In the supreme court the
w o r k m e n ’s c o m p e n s a t io n .
243
judgment was affirmed, the court, speaking through Judge Marshall,
saying in part:
If misfortune overtakes [a man] in any way, and that misfortune
detracts from his ability and renders him less able to work, men
tally or physically, and the effect of the misfortune can be removed,
it is his duty to do the thing that will restore him, even if there is
pain and danger. There is no law to compel a man to perform any
of these duties, but nevertheless they exist.
The plaintiff has been injured. The injury can be remedied, and
he can be restored to his former condition. It is his duty to do what
ever is necessary to restore him. If he refuses to perform that duty,
he should not ask the State nor any person to assist him in that re
fusal. He can not be compelled to undergo an operation, but he
can be told that if he refuses he shall not receive compensation for
that which he voluntarily continues.
The reasonableness of the refusal of an injured employee to sub
mit to an operation has been considered in most, if not all, the cases
where he has been denied compensation on account of such refusal.
That reasonableness has been disposed of in those cases as a question
of fact. It is a question of fact that must be determined by the trier
of facts, and when he has determined it, and his conclusion is sup
ported by evidence, that conclusion is binding on this court the same
as the determination of any other question of fact. In the present
case the district court tried the fact of the reasonableness of the re
fusal of the plaintiff to permit an operation. The court in substance
found that the plaintiff’s refusal was unreasonable.
Compensation for total disability, $10.65 a week, was awarded.
The court found that there was no total disability, and that the plain
tiff was entitled to recover $7.50 a week during partial disability.
This amounted to a finding that the award of the arbitrator was
grossly excessive, and brought the proceeding within the statute au
thorizing a review of the award by the district court.
W o r k m e n ’s
C o m p e n s a t io n — C a s u a l
E m p l o y m e n t — P u rpose
of
Oliphant v. Hawkinson, Supreme
Court of Iowa (June 25, 1921), 183 Northwestern Reporter, page
805 .—Jacob Wachal was a retired farmer. He owned a farm 2 miles
E m p l o y e r ’s T r a d e o r B u s i n e s s —
from Walker, Iowa, which was leased to a tenant. On July 25, 1916,
he hired Hawkinson, a carpenter, to build a corncrib on this farm.
In measuring some work on the foundation Hawkinson went behind
a fellow workman who was drawing a nail with a pinch bar, and the
end of the bar flew back, striking Hawkinson in the right eye, destroy
ing the sight. It is for this injury that compensation is claimed.
The industrial commission made an award to Hawkinson, which on
appeal to the district court was affirmed. Jacob Wachal died, and
the executor of his estate prosecuted an appeal to the supreme court.
That court reversed the judgment of the district court, holding that
the employment was purely casual and not for the purpose of the
101296°—22-----17
244
TEXT AND SUMMARIES OF DECISIONS.
employer’s trade or business. Judge Faville in the course of his
opinion said:
It is claimed, however, that a corncrib was a necessary adjunct to
the successful operation of the farm, that the owner received
“ pecuniary gain ” by having the same constructed, and therefore
causing the corncrib to be built was part of his “ business.” As be
fore stated, we do not believe the legislature ever intended any such
interpretation should be placed upon this act, and we so hold. But
if we should accept the construction contended for, then we are at
once brought face to face with the provisions of section 2477m, which
declares that the act “ shall not apply to any household or domestic
servant, farm, or other laborer engaged in agricultural pursuits.”
If Wachal was engaged in any “ trade or business” at all, it was
the care, upkeep, and improvement of his farm. If this is to be de
nominated “ a business ” or “ pursuit,” it was more nearly an agri
cultural pursuit ” than anything else. If the building of the corncrib was necessary for the proper conduct of the “ business ” of oper
ating the farm, then it may be said with much plausibility that it was
an “ agricultural pursuit.”
Workmen’s Compensation—Choice of R
— E ffect of Suit
for Damages—H utton v. Link OH Go., Suprem e Court of Kansas
{Jmmcery 8, 1981), 19b Pacific Reporter, page 985 .—The foreman
e m e d ie s
and another workman of the Link Oil Co. were removing some iron
casings from an oil well. They were using a derrick made of iron
pipes to which were attached three guy ropes. Only two ropes were
fastened, however, and during the course of the work the derrick
fell across the back of a horse which was being used to hoist the
casings. C. V. Hutton, a bystander, was called upon by the fore
man to aid in removing the derrick from the horse’s back and while
doing so he broke his leg. Hutton thereupon brought an action
on two counts, first, he asked for compensation under the compensa
tion law, and, secondly, he asked for damages under the common
law for his injuries sustained by reason of defendant’s negligence.
He was awarded a verdict of damages, and the employer appealed,
claiming that there was a misjoinder of causes of action and that
Hutton was required to elect under what remedy he would proceed.
The court affirmed the decision in favor of Hutton, finding the de
fendant negligent in failing to have the third guy rope fastened,
and saying in part:
There is no merit in the contention that it was the duty of the
court to require plaintiff to elect between the first and second causes
of aetion. In the first count of his petition, plaintiff stated facts
which, if established, would entitle him to recover under the work
men’s compensation act. But even though he was not able to show
that he was within the provisions of the compensation act, he claimed
that he was injured by negligence of the defendant, and that under
WORKMEN ’s COMPENSATION.
245
the facts stated defendant was liable. There was no misjoinder of
causes of action.
Suppose that the plaintiff had been in defendant’s employ, but*
was unable to prove that the latter had the specified number of
employees, and for that reason the provisions of the compensation
act did not apply, the fact that plaintiff had elected to begin his
action under the compensation law would not bar an action under
the common law. The plaintiff was not obliged to assume any risk
about the matter, but was entitled to state in his petition the facts
as he claimed they were, and maintain his action under the statute,
if that were applicable, and, if not, then under the common law.
The verdict is a denial of his right to recover under the compensa
tion law. (Laws 1911, c. 218, as amended by Laws 1913, c. 216.)
The court submitted both causes of action, but the jury rendered a
verdict in his favor for damages.
W o r k m e n ’s
C o m p e n s a t io n — C h o ic e
op
R e m e d ie s — R ig h t s
—Poe v. Continental Oil & Cotton Co . et al .,
Commission of Appeals of Texas (June 1 , 1921), 231 Southwestern
R eporter , page 717 .—C. C. Poe, while in the employ of John Guitar,
S t r ic t l y
C onstrued
doing business as the Continental Oil & Cotton Co., sustained per
sonal injuries on October 8, 1915, because of the negligence of the
company. Ten months later the attorneys for Poe made their first
attempt to obtain an adjudication before the accident board. A de
cree was handed down on January 17, 1917, releasing the defendants
because Poe had not filed his claim within six months after the ac
cident occurred. Poe filed this action for damages, but the trial
court abated the suit because of the decision of the industrial acci
dent board. On appeal the court of civil appeals affirmed the judg
ment of the lower court and Poe appealed to the supreme court.
The principal contention of the company was that the doctrine of
election of remedies applied, and that Poe’s claim for compensation
barred a suit for damages. Chief Justice Phillips adopted the judg
ment recommended in the report of the commission of appeals as
the judgment of the supreme court. This judgment, reversing the
lower courts, is in part as follows:
In disposing of the case, the court of civil appeals found that Guitar
had not given Poe the notice that his industry was being operated
under the workmen’s compensation act, as required by articles 5246x
and 5246xx, Vernon’s Sayles’ Revised Civil Statutes of Texas; that
said notice Was essential if Poe was to be denied the right to sue for
and recover damages for personal injuries, based upon common-law
liability; that the want of such notice can be waived by the injured
employee at his option. We think the court of civil appeals is cor
rect in all its rulings set out above.
Applying the above authorities to the instant case, we find that,
at the time Poe’s attorneys wrote their first letter to the accident
TEXT AND SUMMARIES OF DECISIONS.
246
board, he had no valid or enforceable remedy there. It had been
barred by the statute of limitation for almost four months. There
fore Poe can not be said to have elected a remedy he could not,
under the law, enforce.
We think what we have said should dispose of the controlling
point in this case; for it is equally as illogical to hold that a man
would waive a valid remedy for a nonenforceable one as it would be
to say that he elected an unenforceable remedy and waived a valid
right. To so charge a man is to reflect upon his sanity. Such a
waiver, if made at all, was at a time when it would have been with
out any consideration.
It is more reasonable to assume that Poe was willing to hold his
common-law suit in abeyance until he could ascertain the possibility
of getting an equitable adjustment before the accident board; He
probably thought such a settlement could be had promptly. If the
accident board can be said to be useful in any respect, it is largely
as an administrative board where interested parties can reach amica
ble adjustments quickly. It is a field for compromise. The Su
preme Court of Texas held that the board is not a court.
We are heartily in accord with the court of civil appeals at San
Antonio in its statement that “ laws depriving citizens of rights
possessed by them should be strictly construed.”
Not only was there no express waiver by Poe of his common-law
rights but in two instances, when agreeing upon dates for the hear
ing before the board, he reserved in writing the following: “ This
agreement is made without prejudice to any rights, claims, and de
fenses of any party.”
We think Poe still had his right to prosecute his common-law suit
against Guitar, if the want of notice is still apparent upon another
trial.
W o r k m e n ’s C o m p e n s a t io n — C l a im — V o l u n t a r y
P aym ents —
—P etra sk a v. N ation al A cm e Co. et dl ., S u prem e C ourt
o f V erm on t (M a y 3, 1921), 113 A tla n tic R ep o rter , page 536.—Mike
Petraska, the claimant, was injured May 2,1916, while in the employ
of the defendant corporation. A partial hearing was had before
the commissioner November 9,1917, but no order given. A hearing
on October 22, 1919, resulted in the order appealed from. Petraska
never made a claim for compensation. The supreme court set aside
the order and dismissed the proceeding because of the provisions of
the statute requiring claims to be made within six months after the
date of the injury, unless payments of compensation have been made
voluntarily.
The court said in part:
The whole scheme of the workmen’s compensation act is designed
to work out a speedy adjustment and payment of claims for indus
trial accidents in a summary and simple manner. To this end the
common law and statutory rules of procedure and evidence are done
away with in hearings before the commissioner. And the provisions
of the act are to be liberally construed. But we can not overlook
M e d i c a l A id
247
WORKMEN ?S COMPENSATION.
the fact that the rights of employers as well as the rights of em
ployees are safeguarded by its provisions; that the rights of both
are designed to be protected by it,' and that the provisions of the
law, as written, must be given force.
Full performance of the conditions of the ,act being essential pre
requisites to the jurisdiction of the commissioner, his authority, and
the statutory limitations upon the exercise of it, can not be enlarged,
diminished, or destroyed by express consent, or waived by acts of
estoppel.
The insurance company paid all or part of the claimant’s medical
expenses during the first 14 days of his disability. The defendants
were required by statute to pay such expenses, not to exceed $100.
Moreover, such payments are not compensation in the sense in which
the term is used in this act. The payments shown did not, there
fore, constitute 4 payments of compensation * * * made, vol
4
untarily.”
It not appearing that claim for compensation was made, or that
payments of compensation were made voluntarily, the commissioner
was without jurisdiction, and should have dismissed the proceedings.
W o r k m e n ’s
C o m p e n s a t io n — C o m p u l s o r y
M in e s — T a k in g
A p p l ic a t io n
to
C oal
P r o p e r ty w it h o u t C o m p e n s a t io n — C o n s t it u t io n
— Lower Vein Coal Co. v . Industrial Board of Indiana et al .,
V. S. Supreme Court (February 28, 1921), 1^1 Supreme Court Re
porter, page 252.—The State of Indiana passed a workmen’s com
a l it y
pensation law in 1915 which was elective and left to employers and
employees the option of rejecting its terms with certain restrictions.
By an amendment made in 1919 the privilege of election was with
drawn from coal mines and employees therein, and the acceptance of
the law was made compulsory as to them. The Lower Vein Coal Co.
decided, notwithstanding this amendment, to reject the law and
brought this proceeding to restrain the industrial board, the governorj and the attorney general of the State from enforcing the law
as against it on the ground that the law was unconstitutional under
both the Constitution of the United States and that of Indiana.
The District Court of the United States for the District of Indiana
dismissed the bill and the company appealed. In affirming the de
cision of the district court Mr. Justice McKenna delivered the
opinion of the court, in part, as follows:
There are facts of especial pertinence that make the principle
apply in the present case and justify the legislation of the State.
That coal mining has peculiar conditions has been quite universally
recognized and declared. It has been recognized and declared by
this court and is manifested in the laws of the States where coal
mining obtains. There is something in this universal sense and its
impulse to special legislation—enough certainly to .remove such leg
islation from the charge of being unreasonable or arbitrary exercise
of power.
TEXT AND SUMMARIES OF DECISIONS.
248
The action of the coal company indicates that it considered the
coal business distinctive. Other business, though according to the
coal company’s assertion as hazardous as coal mining, accepted the
law, the coal company and other coal companies rejected it. To this,
of course, the coal companies were induced by comparison of ad
vantages, but the inducements to reject the legislation might well
have been the inducement to make it compulsory. At any rate,
there is, taking that and all other matters into consideration, ground
for the legislative judgment expressed in the amendment of 1919
under consideration; that is, section 18 as amended. And the fact
is to be borne in mind that there are 30,000 employees in the State
engaged in coal mining.
The coal company further contends that the law includes within
its terms all the company’s employees whether engaged in the hazard
ous part of its business or not so engaged. In other words, it asserts
that the conditions of those who work underground may justify the
law, but do not justify its application to those who work above
ground. The contention has a certain speciousness, but can not be
entertained. It commits the law and its application to distinctions
that might be very confusing in its administration and subjects it
and the controversies that may arise under it to various tests of
facts, and this against the same company.
The contention only has strength by regarding employers’ liability
acts and workmen’s compensation acts as practically identical in
the public policy respectively involved in them and in effect upon
employer and employee. This we think is without foundation. They
both provided for reparation of injuries to employees, but differ in
manner and effect, and there is something more in a compensation
law than the element of hazard, something that gives room for the
power of classification which a legislature may exercise in its judg
ment of what is necessary for the public welfare, to which we have
adverted, and which can not be pronounced arbitrary because it may
be disputed and 44opposed by argument and opinion of serious
strength.”
W o r k m e n ’s C o m p e n s a t io n — D e c e d e n t W it h o u t B e n e f ic ia r ie s —
I n d u s t r ia l
R e h a b il it a t io n
F u nd — S tate
and
F ederal
C oopera
—W atkinson v. H otel Pennsylvania et al .,
Supreme Court of New York, A ppellate D ivision (February 28,
1921) , 187 New Y ork Supplem ent, page 278.—Watkinson was em
ployed as a bell boy by the Hotel Pennsylvania. His hours of duty
were from 12 midnight to 7 a. m. On the morning of May 23, 1920,
he was sent to room 1529 and later returned his card for this call. At
12.50 a. m. he was given another card to room 824, but he never re
turned from this call. The passenger elevator of shaft No. 8 was
closed at 1 o’clock and left at the fourth floor; it should have been
left at the main floor. Upon Watkinson’s disappearance a search for
him was instituted and at 1 p. m. of the same day he was found dead
t io n
— C o n s t it u t io n a l it y
WORKMEN *S COMPENSATION.
249
at the foot of shaft No. 8 with a mark upon his head indicating that
he had received a blow. He left no dependents. Compensation was
awarded by the State industrial commission in amounts of $100 for
funeral expenses, $100 for the special fund for second injuries, and
$900 for the industrial rehabilitation fund, in accordance with the
provisions of chapter 760, Acts of 1920. The employer and its in
surer, the Travelers Insurance Co., appealed on the ground that the
last two awards were unconstitutional and void. The court in
affirming the awards said in part:
We have in the evidence, from established facts and fair inference,
the framework of a valid claim under the workmen’s compensation
act (Consol. Laws, c. 67). It appears that Watkinson met his death
in the course of his employment; that the injury arose out of his em
ployment ; and it is a fair inference, from the known facts, that his
was an accidental injury. The award was justified.
The award is $100 for funeral expenses, and to the State treasurer
of the State of Newr York: (1) $100, pursuant to the provisions of
subdivision 7 of section 15 of the workmen’s compensation law; (2)
$900, pursuant to the provisions of subdivision 8 of section 15 of the
workmen’s compensation law, as added by Laws 1920, c. 760, sec. 1.
No question is raised as to the award for funeral expenses, or the
award under subdivision 7 of section 15, which is valid. (Industrial
Commission v. Newman, 222 N. Y. 363, 118 N. E. 794 [Bui. No. 258,
p. 223], etc.)
The $900 award under subdivision 8 is attacked upon two grounds:
(1) The rehabilitation law (Laws 1920, c. 760, sec. 2), adding a
new article (47) to education law (Consol. Laws, c. 16), conflicts
with article 3 of the State constitution, secs. 1 and 17, and subdivision
8 falls with it.
(2) Subdivision 8 of section 15 conflicts with article 1, sec. 6, of
the State constitution and the fourteenth amendment of the Federal
Constitution. Considering the second criticism first:
Article 1, sec. 6, of the State constitution, is the bill of rights, and
the due process of law clause and the just compensation clause are
invoked. Under the fourteenth amendment the equal protection
law clause is invoked. No question is open under the provisions of
the State and Federal constitutions, invoked after the decisions above
cited (particularly in Mountain Timber Co. v. Washington, 243 U.
S. 219, 37 Sup. Ct. 260 [Bui. No. 224, p . 252], and New York Cen
tral E. R. Co. v. White, 243 U. S. 188, 37 Sup. Ct. 247 [Bui. No.
224, p. 232] ), except whether or not the amount fixed in the stat
ute is unfair or unreasonable. There may be an extravagant and
arbitrary amount fixed. Is the amount here fixed such? All rea
sonable presumptions are in favor of the validity of the act, and the
burden of proof and argument is upon those who seek to overthrow
it. The sum fixed in the statute is not great, is not larger than could
readily be awarded had the deceased left dependents. There is no
evidence in this case showing that the sum fixed is so extravagant
or arbitrary as to constitute an abuse of power. The court can not
say that $900 is an unfair or unreasonable sum for the purposes in
tended.
TEXT AND SUMMARIES OF DECISIONS.
250
Then taking up the rehabilitation law, the court said:
The attack upon this law is formulated in this manner: The whole
chapter (the rehabilitation law) is built around section i210. This
is void, because based on the acceptance of the Federal statute, and
the whole act falls with section 1210.
This position is untenable. In the sections of the chapter prior
to section 1210 funds in this State are provided. The uses to which
these funds are put are defined, and a board is appointed for ad
ministering these funds, in compliance with the instructions in the
statute. Here is a complete act, entirely separable from section 1210,
maintainable and operative without it, and I can conceive no reason
why the legislature would not have wished the statute to be enforced
with section 1210 rejected.
We conclude that chapter 760, Laws of 1920, without section 1210
thereof, provides a complete and valid law for raising a rehabilita
tion fund in this State and administering that fund for the purpose
therein declared; that section 1210 provides for acceptance and ad
ministration of the Federal fund only, in accordance with the act of
Congress; and that such provision does not offend against our con
stitution and is valid.
The award should be affirmed.
W o r k m e n ’s C o m p e n s a t io n — D e c e d e n t w it h o u t
B e n e f ic ia r ie s —
S alt Lake
C ity v. Industrial Commission of Utah, Supreme Court of Utah
{June 11 , 1921), 199 Pacific Reporter , page 152 .—Proceedings were
P a y m e n t to S ec o n d I n j u r y F u n d — C o n s t it u t io n a l it y —
brought under the workmen’s compensation law by the father and
mother of Asa H. Hancock, who was accidentally killed in the course
of his employment as a member of the fire department of Salt Lake
City. The industrial commission found that Salt Lake City was an
employer and self-insurer, and that the deceased left no dependents.
The commission ordered that the city pay into the State treasury the
sum of $750, and reasonable funeral expenses not exceeding the sum
of $150. The case was brought to the supreme court, which affirmed
the action taken by the commission and held the following pro
vision of law constitutional:
If there be no dependents, the employer or insurance carrier shall
pay the burial expenses of the deceased, as provided herein, and shall
pay into the State treasury the sum of $750, unless the employer is
insured in the State insurance fund. Such payments shall be held in
a special fund for the purposes provided in subdivision 6 of this
section. The State treasury shall be the custodian of this special
fund and the commission shall direct the distribution thereof.
The act provides that the purpose of these payments is to provide
a fund to compensate employees suffering a second injury, for the
combined consequences of the two injuries.
251
w o r k m e n ’s c o m p e n s a t io n .
The court decided that the statute was not a denial of the equal
protection of the laws as discriminating in favor of the State in
surance fund and the employers insured thereby as against other in
surance carriers and employers within the act, that it was not a tak
ing of property without due process of law, and that inasmuch as the
State had the power to require all employers to insure in the State
insurance fund and not leave it optional, as under the workmen’s
compensation law, an employer exercising the option of private in
surance can not complain of the conditions upon which the option is
granted as being unconstitutional because discriminatory.
W o r k m e n ’s
C o m p e n s a t io n — D e p e n d e n c y — C h il d
L iv in g
A part
—S tep h en s v. S teph en s e t al ., A p p ella te
C ourt o f In dian a (N ovem ber 29 ^ 19%t) , 132 N orth eastern R ep o rter ,
page 74*7.—Shirley Stephens married the mother of Edith Stephens
F rom
D iv o r c e d
F ather
on May 22, 1909. Edith was born in 1910. The parents of Edith
were divorced in 1911, and she was placed in the custody of her
mother. The mother was granted $100 as alimony and for the sup
port and maintenance of the child, which was paid. For five years
after the divorce was granted, Shirley Stephens made no contri
bution for the support of the child. From 1916 to 1921 he con
tributed to the support of Edith, but not exceeding $50 per year.
While employed by the Essenbee Mines Co., he met his death. Fol
lowing an application therefor an award to Edith Stephens was
denied, and she appealed, contending that she must be conclusively
presumed to be wholly dependent for support upon her deceased
father. The workmen’s compensation act provides:
The following persons shall be conclusively presumed to be wholly
dependent for support upon a deceased employee: * * *
(c) A child under the age of eighteen years upon the parent with
whom he or she is living at the time of the death of such parent.
(d) A child under eighteen years upon the parent with whom he
or she may not be living at the time of the death of such parent, but
upon whom, at such time, the laws of the State impose the obligation
to support such child. (Acts 1919, p. 165.)
The appellate court affirmed the decision of the industrial board
denying the claim, using in part the following language:
Appellant contends that there are a number of statutes in this
State which impose a legal obligation upon a father to support his
minor child, and therefore she was entitled to share in the award of
compensation made in this case by reason of the death of her father,
as stated in the finding of facts, by virtue of said subdivision (d).
We can not agree that the mere fact of the existence of the statutes
to which appellant refers imposes an obligation upon a parent to
support his child, so as to bring said subdivision (d) into operation
252
TEXT AND SUMMARIES OF DECISIONS.
in every instance, where such parent meets his death under such
circumstances as to warrant an award of compensation against his
employer. If such were the case, there would be no occasion for the
limitations found in said subdivisions (c) and (d), but a general
provision that every child under the age of 18 years shall be con
clusively presumed to be wholly dependent for support upon his
or her parent, would have sufficed, and no doubt would have been
employed. We therefore conclude that the limitations found in said
subdivisions are significant.
While it is true, as appellant contends, that the several statutes of
our State impose a legal obligation on a father to support his minor
child, the existing facts may be such as to so far suspend such obli
gation that a failure to support such child will create neither a legal
nor a criminal liability against him. In such event said subdivision
(d) would have no application.
The facts fail to show that the laws of this State imposed any ob
ligation upon said Shirley Stephens to support said appellant, within
the meaning of said subdivision (d), at the time he met his death.
Circumstances may have existed, notwithstanding such decree and
the absence of any modification thereof, under which the law would
have imposed such an obligation, but the evidence is not in the record,
and its sufficiency to sustain the finding is not challenged.
W o r k m e n ’s
—
C o m p e n s a t io n — D e p e n d e n c y — M e m b e r
of
H ouse
—Moore S h ip building Corporation et al . v. Industrial Accident Commission et al .,
Supreme Court of California (February 25, 1921), 196 Pacific R e
porter , page 257 .—The husband of Lola Miller deserted her shortly
hold
A s s u m p t io n of G u a r d ia n s h ip in
G ood F a i t h
before the birth of his child, Ida Miller. Albert Bauer, as a friend,
undertook to support the child and sent remittances to her for one
year, when Lola Miller came to live with him. They lived in adul
terous cohabitation as man and wife. The daughter, Ida Miller, was
part of the household and was looked after by Bauer as his own child.
In the course of his employment with the Moore Shipbuilding Cor
poration, Bauer was killed and Lola Miller brought proceedings for
compensation for Ida Miller as the total dependent of Bauer. The
industrial accident commission granted an award of $3,400, where
upon the employer and its insurer brought a writ of certiorari to the
State Supreme Court. In affirming the award of compensation and
dismissing the petition, the court said in part:
The power of the legislature to extend the benefits of industrial
accident insurance beyond the wage earner himself being recognized
it is left to reasonable legislative discretion in the light of the general
purposes of these laws to determine what dependents shall become
the distributees of the indemnity assessed against the industry, and
we do not think we are compelled to look to analogies of the common
law, or to the limitations of compensation acts in force at the time our
constitutional provision was adopted, to fix the measure of the legis
lative power thus conferred.
w o r k m e n ’s c o m p e n s a t io n .
253
It only remains to determine whether Ida Miller, the claimant
here, comes within the terms of the California statute. Section 9, sub
division 11 (1) and (2) of the workmen’s compensation act provides
that “ in case a deceased employee leaves a person or persons wholly
dependent upon him for support ” such dependents shall be allowed
certain indemnity benefits. Section 14 (a) provides that the wife and
children under certain conditions are conclusively presumed to be
wholly dependent. Section 14 (b) provides that in all other cases the
questions of entire or partial dependency and questions as to who
constitute dependents, and the extent of their dependency, shall be
determined in accordance with the fact, “ as the fact may be at the
time of the injury to the employee” ; 14 (c) provides, that “ no per
son shall be considered a dependent of such employee unless in good
faith a member of the family or household of such employee or
unless such person bears to such employee the relation of husband or
wife, posthumous child, adopted child, or stepchild, father or mother,
father-in-law, mother-in-law, grandfather or grandmother, brother
or sister, uncle or aunt, brother-in-law, or sister-in-law, nephew or
niece.”
The two classifications here, one of persons who are in good faith
members of the employee’s'family or household, and the other of
persons having specific relations of kinship, are clearly used in the
alternative, and are to be separately considered. As Ida Miller be
longs to none of these degrees of relationship, either by birth, mar
riage, or adoption, we are only concerned with the first division.
There are three vital conditions required to establish dependency
in this case under the compensation act: First, was Ida Miller actu
ally dependent upon the decedent for her support; second, was she a
member of his family or household; third, was the relation or con
nection sustained in good faith.
It is true the child was too young to entertain either good or bad
faith, but if that is a legal obstacle it would apply as well if she had
been taken into the household as a homeless and abandoned waif.
We think that Ida Miller was a member in good faith of Bauer’s
household. The courts should not be called upon to visit the iniqui
ties of the parents upon the children, beyond the penalties inherent
under natural law.
The petition is denied.
W o r k m e n ’s C o m p e n s a t io n — D e p e n d e n c y — M e t h o d of M e a s u r e
—H arris et ux . v. Calcasieu Long Leaf Lumber Co ., Supreme
Court of Louisiana ( October SI , 1921), 89 Southern Reporter , page
885 .—A compensation award was made in favor of the parents of one
m ent
Harris, who was killed while in the employ of the defendant lumber
company. He was under 21 years of age and was the eldest of plain
tiff’s seven children. His average weekly wages were $26.14, but his
contribution to the support of the family was approximately $44 a
month. The compensation allowed amounted to 55 per cent of the
weekly wages for 300 weeks. The lumber company appealed from
the award on the ground that the amount was excessive, as the cost
254
TEXT AND SUMMARIES OF DECISIONS.
of maintenance was $22 a month for each of the family of nine, and
only one-half of the $44 contributed went to the support of the other
members of the family. The supreme court held that the statute ar
bitrarily fixed the liability at 53 per cent of the weekly wages for 300
weeks if the parents “ were actually dependent on the deceased em
ployee to any extent for support.” For this reason the award was
affirmed, the extent to which the parents were dependent being held
immaterial.
W o r k m e n ’s C o m p e n s a t io n — D e p e n d e n c y — W h e n
D e t e r m in e d —
Employers'* M utual Insurance Co. et ail. v. Industrial Corwrrdssion of
Colorado et al., Supreme Court of Colorado (July 5, 1921), 199
Pacific Reporter, page 483.—James A. Powell was killed January 28,
1920, by an accident arising out of and in the course of his employ
ment. He left minor children, among whom was Beverly L. Powell,
who was legally adopted on April 10,1920, by one Galley, and is now
known as Beverly L. Galley. An award was made to all the minor
children, including Beverly. The district court affirmed the award.
The Employers’ Mutual Insurance Co. took the decision to the su
preme court for review, claiming that Beverly was not a dependent
child, but it was again affirmed, Judge Denison giving a brief de
cision, in part as follows:
“ The question as to who constitute dependents and the extent of
the dependency shall be determined as of the date of the accident to
the insured employee and the right to death benefits shall become
fixed as of said date irrespective of any subsequent change in con
ditions.” [S. L. 1919, c. 210, sec. 57.]
Section 58 prescribes the conditions on which the right to death
benefit shall lapse, but the adoption of a minor dependent is not
among them.
The arguments that the adopted child has ceased to be dependent,
and that he would collect two death benefits at the same time if his
adopted father should be killed by accident in the course of employ
ment, would be forceful if addressed to the legislature, but the statute
is explicit, and we can not add to or take from it.
W o r k m e n ’s
C o m p e n s a t io n — D e p e n d e n c y
of
P a r e n t s — -T e s t —
Hancock et al. v. Industrial Commission > Supreme Court of Utah
(M ay 5, 1921), 198 Pacific Reporter, page 169.—R. J. Hancock and
wife brought proceedings under the workmen’s compensation act to
obtain compensation for the death of their son. There was an award
denying compensation because the facts showed that the deceased was
45 years of age, unmarried, and had boarded away from his parents’
home for 10 years; that the parents owned their own home; that he
gave them provisions and gifts of money often but not at regular
255
WORKMEN’s COMPENSATION.
stated intervals. The applicants brought an original proceeding to
have the findings of the commission annulled, but the court affirmed
the findings of the commission saying in part:
The question of dependency is, in the very nature of things, one of
fact. In a case such as this, however, where there is no dispute as to
the facts, manifestly the legal rights deducible or inferable from
such proven facts are questions of law.
The test seems to be whether the contributions made by the de
ceased to the dependents were necessary and needed to maintain the
claimants in the station in life in which they had been accustomed.
Alleged dependents, such as the plaintiffs, are required to show
facts upon which such dependency exists. The statute makes the wife
and certain minor children presumptively dependents. But depend
ency in other cases must be based upon proof of facts creating such
dependency. It is settled in this State, and the same is supported by
the authorities, that an occasional gift or contribution made at the
convenience or pleasure of the donor does not authorize an inference
of dependency.
W
’ C
— D
S
— T
—D ris
coll v. Jew ell Belting Go. et aZ., Supreme Court of Errors of Connecti
cut (June 1 , 1921), 111^ A tlantic R eporter , page 109.—Mary E. Dris
orkmen s
o m p e n s a t io n
ependency
of
is t e r
est
coll brought proceedings under the workmen’s compensation act
against the Jewell Belting Co. to recover compensation for the death
♦ of her brother, one Randall, who contributed $6 per week to the
support of his sister. On the question of dependency the supreme
court stated the test to be “ whether the contributions were relied
upon by the dependent for his or her means of living, judging this
by the class and position in life of the dependent.” Chief Justice
Wheeler, speaking for the court, said:
The purpose of the compensation act is to provide support to de
pendents of one injured in industry. A dependent is one who has
relied upon the decedent for support and who has a reasonable ex
pectation that such support will continue. (28 Ruling Case Law,
sec. 65.) A legal obligation can not be construed to be the equivalent
of a present support. When it has been enforced it becomes such
for the time. It does not follow that it will continue. A condition
of dependency presupposed contributions made to and relied upon by
,the dependent. Such condition under our law could be found only
when contributions had been in fact made, and there was a reasonable
probability that these would be continued, and that the contributions
so made and to be made were relied upon by the claimant-dependent.
If no contributions had been made, or if there was no reasonable
probability of the continuance of the contributions, the basis of de
pendency would be absent.
Contributions having been actually made and relied upon, the
superior court was said not to have erred in affirming the award of
the compensation commissioner.
256
TEXT AND SUMMARIES OF DECISIONS.
W o r k m e n ’s
Loss
of
C o m p e n s a t io n — D is a b il it y 1 I m p a ir e d
—
B o th H an ds—
Loss
of
F u n c t io n —
U se— P e r m a n e n t T o ta l D is a b il it y —
Ballou v. Industrial Commission et al.y Supreme Court of Illinois
(February 15 , 1921), 129 Northeastern R eporter , page 755.—Frank
Luther was injured while in the employ of Ballou and others by an
accident arising out of and in the course of his employment. Luther
was oiling some machinery and while so engaged his jacket was
caught by a revolving shaft and his hands were drawn into the ma
chine. As a result of his injuries he lost the use of both of his hands.
The industrial commission held that he had suffered the total and
complete loss of both hands, although his hands had not been am
putated, and allowed him an award for permanent total disability in
accordance with the following section of the workmen’s compensation
act:
For the loss of a hand, or the permanent and complete loss of its
use, fifty per centum of the average weekly wage during 150 weeks.
* * * The loss of both hands, or both arms, or both feet, or both
legs, or both eyes, or of any two thereof, shall constitute total and
permanent disability, to be compensated according to the compen
sation fixed by paragraph (f) of this section: P rovided , That these
specific cases of total and permanent disability shall not be con
strued as excluding other cases.
Paragraph (f) provides: “ In the case of complete disability, which
renders the employee wholly and permanently incapable of work,”certain payments of compensation shall be made, including pension
for the life of the applicant.
The employer appealed from the decision of the industrial com
mission, contending that the loss of use of both hands is not
equivalent to the loss of both hands, and that unless the injury should
actually amount to the loss of both hands the specific recovery for
permanent total disability can not be recovered. The supreme court
upheld this contention and reversed the decision of the circuit court,
which had upheld the compensation award. The opinion is in part
as follows:
Plaintiffs in error contend that under the act of 1915, in order to
bring the applicant under the provisions of the statute regarding
complete disability rendering the employee wholly and permanently
incapable of work, the injury to the hands must be the loss of both
hands and not the loss of the use of both hands. While in case of
loss of both hands the use of them would, of course, be likewise lost,
yet it does not follow that the loss of use of both hands is the same as
the loss of both hands. The expressions “loss” and “loss of the use,”
as used in the law, should be given their ordinary meaning. Inca
pacity to use a member need not, however, be tantamount to actual
severance of that member. It is enough if its normal use is entirely
taken away. (Mark Mfg. Co. v. Industrial Commission, 286 Ili.
620, 122 N. E. 84.) But it is evident under this act as it existed at
the time of the injury, that if there exists in this case a complete disa
w o r k m e n ’s c o m p e n s a t io n .
257
bility which renders the defendant in error wholly and permanently
incapable of work it must arise from other sources than those speci
fied m paragraph (e).
Defendant in error argues that as under the provisions of para
graph (e) the specific cases mentioned in said paragraph are not to
be construed as excluding other cases he is entitled to the award under
paragraph (f), for the reason that the evidence showed that he is, in
fact, totally and permanently disabled. It will be clearly seen that
situations other than those referred to in said paragraph may arise
which might result in total permanent disability.
The injury to the defendant in error was serious, and he should
receive the full amount of compensation to which he is entitled under
the law; but this court does not make the laws, but must construe
them as it finds them. We are of the opinion that there was no com
petent evidence in the record tending to show that for any cause de
fendant in error is totally permanently disabled, rendering him
wholly and permanently incapable of work.
The judgment of the circuit court must therefore be reversed and
the cause remanded to that court, with directions to remand the same
to the industrial commission for further proceedings not inconsistent
with this opinion.
W o r k m e n ’s C o m p e n s a t i o n — D i s a b i l i t y — I n c a p a c i t y f o r F o r m e r
Geis v . Packard M otor Gar Go .,
Supreme Court of Michigan {July 19, 1921), 183 Northwestern Re
porter, page 916.—On February 9, 1918, while working for the de
E m p l o y m e n t — I n c r e a se d W ages—
fendant company in the capacity of a motor tester Henry Geis re
ceived a fracture of his upper right arm. This fracture was never
mended, and has left his arm practically useless. He was paid com
pensation under an approved agreement until July 24, 1918, when
he returned to work, but, being unable on account of his injury to
perform the duties of a motor tester, he was given light messenger
work in the testing department, and paid 2 cents an hour more than
he was earning at the time of his injury. The defendant company
petitioned the industrial accident board to order payment of com
pensation stopped. The petition was denied and the defendant
brought the case to the supreme court for review. That court af
firmed the action of the board in a decision by Judge Wiest, in part
as follows:
Defendant asks us to place a meaning upon the occupation in
which an employee is injured commensurate with ability to turn his
skill, training, and knowledge acquired in one employment to use
in another closely related thereto. The argument is ingenious but
to accede to it would start the thin edge of the wedge to arriving
of the clear terms of the statute and open the field to equitable and
conjectural considerations now closed by the statute. We must stick
to the statute and leave defendant to present the equity of its posi
tion to the legislature.
TEXT AND SUMMARIES OF DECISIONS.
258
The defendant contends that plaintiff was not entitled to addi
tional compensation from February 9, 1918, the date of his injury,
to December 19, 1919. On July 24, 1918, plaintiff returned to work,
and was rated by defendant as a motor tester, but was not such in
fact, as he was given only light messenger work on account of his
injury. Defendant concedes that plaintiff was unable to perform
the duties of a motor tester, but says that rather than have him idle
and drawing compensation of only $10 a week under the agreement,
it philanthropieally employed him in his old position, giving him
only light messenger work to do, and paid him his former wage and
2 cents per hour added, or $24 per week.
Again we must hold that this raises an equitable question barred
from consideration as the law now stands, and we can not hold that
it was error for the board to award him compensation on the ground
that from the time of the accident he was wholly incapacitated from
earning any wages in the employment in which he was engaged at
the time of the accident.
—Loss or —Stam m ers
v. Banner Coal Co . et al ., Supreme Court of Michigan (June 6 , 1921) ,
18S Northwestern R eporter , page 21.—On April 29,1920, while work
ing as a miner for the Banner Coal Co., Henry Stammers met with an
accident resulting in injury to his left eye. It became infected, and an
ulcer developed, resulting in a permanent scar, which left the eye
with only 5 per cent vision. Stammers returned to work, taking
up the same employment, and earning as much as before the accident.
The industrial accident board made an award of compensation, and
the employer appealed from its decision, contending that Stammers
had not lost the sight of his eye within the meaning of the statute,
and that in any case, credit for compensation advanced should be
given in the award for the injury to the eye. The court, speaking
through Judge Wiest, affirmed the award, using the following lan
guage:
Has plaintiff lost his eye? The usefulness of the eye for all prac
tical purposes has been lost. A percentage of vision so slight as to
be cognizant of strong light only and to merely give impression of
large objects and door and window openings can be of no use in indus
trial pursuits or any other vocation. Without the help of his other
eye it would be impossible for him to work at all or to even go about
the streets. The injured eye has lent no aid to plaintiff in his work
since the accident.
We are of the opinion that appellee has lost his eye within the
meaning of our statute (Pub. Acts Ex. Sess. 1912, No. 10), and that
compensation was properly allowed during the course of the develop
ment of the injury to the permanent result, and the defendants are
not entitled to be credited upon the compensation allowed by law for
the loss of an eye with the weekly payments advanced from April
29th to July 8th.
W o r k m e n ’s C o m p e n s a t io n — D i s a b il it y
E ye
259
WORKMEN ’s COMPENSATION.
W o r k m e n ’s
C o m p e n s a t io n — D is a b il it y
—Loss
of
E ye
—
U se
of
—Butch v . Shaver, Supreme Court of Minnesota {October
7,1921), 181^ Northwestern Reporter, page 572 .—Helen A. Butch was
G lasses
employed by C. H. Shaver as a kitchen servant in a restaurant he
operated in Minneapolis. Her duties were to wash dishes, scrub
floors, prepare vegetables, wash dish towels, and other kinds of work
of this nature. On June 26, 1920, she was directed to wash the dish
towels and after doing so she undertook to replenish the laundry
stove, and while in the act of breaking a piece of kindling for the
fire a splinter struck her right eye “ irrecoverably destroying ” its
sight. r In proceedings under the workmen’s compensation act a
judgment was rendered in her favor by the district court allowing
compensation. The employer took the matter to the supreme court
and claimed that Mrs. Butch was not entitled to compensation for
the loss of an eye because with properly fitted glasses she would
have a two-thirds’ vision. The court affirmed the finding of the
lower court, holding that she was entitled to the full amount allowed
by the statute for the loss of an eye and that the compensation would
not be diminished by reason of the fact that the disability might in
a measure be overcome by artificial means.
W o r k m e n ’s C o m p e n s a t i o n — E l e c t io n — R e j e c t io n
fenses
A brogated— F e d er al
state
E m plo yers’
L ia b il it y
of
L aw—
De
A ct— I n te r
ommerce
C
—Foley v . Hines, Director General of Railroads
{Portland Terminal Col), Supreme Court of Maine {December 8,
1920), 111 A tlantic Reporter, page 715 .—Matthew Foley was em
ployed as a coal trimmer by the Portland Terminal Co. and was set
to work in assisting to unload a vessel loaded with coal which had
come from Baltimore. The coal was distributed from the dock
where it was unloaded, some of it being used in interstate business
and some of it in intrastate business. While he was working in the
hold of the vessel, the 3,000-pound bucket used in unloading the
coal descended and caught Foley by the leg, so injuring it that it
later had to be amputated. The employer had failed to accept the
Maine workmen’s compensation act, so that Foley, in accordance with
the terms of that act, brought an action for damages against the
terminal company to recover for his injuries. He was awarded a
verdict of $9,120.75. The employer appealed, claiming that Foley’s
work had been in interstate commerce and was governed by the Fed
eral employers’ liability act, and therefore no action could be brought
under the workmen’s compensation act. It was also claimed that
101296°—22-----18
TEXT AND SUMMARIES OP DECISIONS.
260
the damages were excessive. The court affirmed the decision, citing
many decisions relative to interstate commerce, and continuing:
Applying these principles and noting the clearly settled distinc
tion, it is obvious that the coal in question at the time of the plairn
tiff’s injury had not become an instrumentality of interstate com
merce, and therefore the plaintiff was not employed in that com
merce. He was at work assisting in the removal of coal in bulk from
the hold to the cars of the .consignee or to the general pile on the
wharf. No part of it had been appropriated or segregated for inter
state use. It might be used for that purpose, or it might be used
for intrastate locomotives or for both. At some time in the future
some other employee if engaged in coaling an interstate engine from
some portion of the stock would be within the act, as in Armbruster
v . Chicago etc. By. Co., 166 Iowa, 176, 147 N. W. 337, before cited,
but that time had not arrived and the plaintiff’s work was no more
directly and immediately connected with and a substantial incident
of interstate commerce than that of a workman loading a railroad
car at the mines. The cases so hold.
As the Federal employers’ liability act is not involved, the plaintiff
has a right of action at common law aided by E. S. c. 50, the work
men’s compensation act, so called. The defendant 5s not an assent
ing employer, and employs more than five workmen, so that it is
deprived of the defenses of contributory negligence, negligence of a
fellow servant, and assumption of risk.
The jury found negligence on the part of the defendant, and it is
the opinion of the court that their verdict on this point is not so
manifestly wrong as to require intervention. The plaintiff was set
at work by McDonough without any instructions or warnings what
ever. This is admitted by the foreman, who also testifies that the
other workmen had been instructed by his predecessor. And the
plaintiff had not worked sufficiently long to gain the necessarjr knowl
edge by experience.
The verdict was $9,120.75. The plaintiff is 41 years old. The
injury consisted of two broken bones of the ankle, the astragalus and
the cuboid, with an apparent crushing just below the ankle. Effort
was made to avoid amputation, but gangrene set in, and on Sep
tember 3 the leg was amputated above the ankle. The plaintiff
now wears an artificial limb, and his physician testifies that he is
and always will be incapable of hard physical labor. Yet he knows
no other kind. Lack of education prevents his filling a clerical
position, and he must rely for support upon his seriously diminished
capacity as a common laborer. His wages at the time of the accident
were 56 cents per hour, with 75 cents for overtime. His physical
suffering was at times intense. Upon this question of damages the
defendant offered no testimony. From the very nature of the case
the injury spoke for itself.
After studying the evidence and the situation carefully, and con
sidering all the elements which enter into it, it is the opinion of the
court that the damages, although large, are not grossly excessive.
WORKMEN *S COMPENSATION.
W
o r k m e n ’s
C o m p e n s a t io n — E l e c t io n
—W
k it t e n
261
A ccept a n ce—
McCune v. W m. B. P ell & B ro .,
Court of Appeals of Kentucky {June 1h 1921 ), 232 Southwestern
Reporter , page 1 $ — Richard McCune, a painter by occupation, had
worked at times during an interval of 10 years for Wm. B. Pell &
T e m p o r a r y S u s p e n s io n of W o r k —
Bro. On May 14, 1917, upon again beginning work for defendants
as a painter, he elected to work under the workmen’s compensation
act and signed the employers’ “ compensation register declaring such
election and purpose.” He left his employment on July 13, 1917,
and for 16 months continuously thereafter was employed in another
State. Upon his return to Kentucky he was employed agaii; by Wm.
B. Pell & Bro. under a new contract, different as to the amount of
wages from the previous contract, and without then or at any time
thereafter signing the “ compensation register.” While working
under this latter contract he fell from a scaffold and was killed. His
widow petitioned for compensation for the death of her husband.
The workmen’s compensation board refused compensation and the
circuit court affirmed their action in dismissing the petition, from
which decision the claimant appealed. The court of appeals affirmed
the judgment of the lower court, and adopted quotations from the
opinion of the circuit court as part of its own opinion, some of which
are as follows:
It is clear that the constitutionality of the present compensation
act is based upon the facts that the acceptance of the act is, under
its terms, a purely voluntary matter of election by the employer and
employee, and that each and all of the provisions of the act become
effective and binding upon employer and employee solely through
this voluntary acceptance, which, in effect, when made by both, be
comes an agreement or contract between the parties. Without this
acceptance by both employer and employee, the act can not, nor can
any of its provisions, apply to either.
After the election has been made by both, there are but two meth
ods of withdrawing the election. One is the method provided for in
the act itself (section 76), that is, by the written notice therein men
tioned, which evidently, so far as the employee is concerned, con
templates the continuance of the relation of employer and employee.
The other method is the one that necessarily grows out of the consti
tutional right of the parties to sever their relation of employer and
employee. As the act applies only to those who occupy the relation
of employer and employee, it necessarily follows, therefore, that
when that relation ceases to exist the act ceases to apply, except in
so far as may be necessary to enforce the rights thereof acquired
under the act.
He [McCune] could accept the act only in the manner provided by
the statute. Neither the act nor any other law of this State gave to
him or to the employer any right to waive that important provision
of the statute. Therefore any agreement between the parties that
their former signatures should be considered as an acceptance under
TEXT AND SUMMARIES OF DECISIONS.
262
the last employment was an absolute nullity* and can have no effect
in the case. If the requirement of the statute could be waived by an
oral agreement in this case, then it could be waived in any other case,
and the purpose of the statute concerning the preservation of this
important evidence would be destroyed.
or R
B
I n
-Industrial Commission et al . v. Crisman ,
Supreme Court of Arizona (July 18,1921), 199 Pacific Reporter, page
890 .—James L. Crisman brought an action as a taxpayer to restrain
W o r k m e n ’s
ju r y
C o m p e n s a t io n — E l e c t io n
e m e d ie s
efore
— C o n s t it u t io n a l it y —
the industrial commission and others from putting into operation
the workmen’s compensation act of 1921, upon the ground that it
violates the State constitution in requiring the employee to elect, be
fore he is injured, whether he will accept compensation under said
act or not. An injunction was issued enjoining defendants from
putting the act into operation. From this judgment the defendants
appealed. The supreme court affirmed the action of the lower court
because of section 8 of article 18 of the constitution which reads:
The Legislature shall enact a workmen’s compulsory compensation
law * * * by which compulsory compensation shall be required
to be paid to any such workman by his employer. * * * P ro
vided, That it shall be optional with said employee to settle for such
compensation, or retain the right to sue said employer as provided by
this constitution.
Section 90 of the compensation act of 1921 provides that if section
60, requiring the employee to elect his remedy before injury, should
be held invalid or unconstitutional, the entire act and every section
thereof should be invalidated. Chief Justice Ross in his opinion
said in part:
We realize that, if the employee may not be required to elect his
remedy before injury, it is not possible for the legislature to pass
a compensation law such as exists in nearly every State in the Union.
If he is permitted by the constitution to postpone his election until
after injury, and then elect to settle for compensation or retain his
right to sue the employer for negligence, or under the employers’
liability law (Civ. Code 1913, pars. 3153-3162), it is not a substitu
tionary remedy, but an additional remedy.
We have, however, come to the conclusion that the decision in the
Ujack case [15 Ariz. 382, 139-Pac. 465] is sound; that, as therein
stated, the employee may await his injury and then determiiie if he
will accept compensation or retain the right to sue his employer, and
that this right of choice is a constitutional right—one the legislature
can not take away from him by requiring that he elect his remedy
before injury.
Judge Baker (concurring) in his opinion declared:
I can not refrain from saying that it seems regrettable that* owing
to its constitutional restrictions, Arizona is barred from adopting
WORKMEN’S COMPENSATION.
263
a just and humane compensation law, such as exists in 43 or 44 States
of the Union.
Criticising the liability law as tending to .increase the evils which
wan equitable and just compensation law is well calculated to cure,”
Judge Baker continued:
While it is unfortunate that the evils referred to must continue to
exist and flourish, it is not our function to provide a remedy by
judicial legislation. The remedy lies with the people. Both Cali
fornia and New York were compelled to amend their constitutions
before they were able to adopt beneficial compensation laws.
Judge McAlister (concurring) also wrote an opinion stating his
views, part of which is as follows:
To my mind it is clear that the optional provision in section 8,
art. 18, was placed there entirely for the benefit of the injured em
ployee. It was intended to preserve his right to elect his remedy at
a time when he could do it to his best advantage. If such construction
renders it impossible to enact in this State a compensation law in the
true sense of that term, my answer is that the fundamental law is our
guide, and where it leads it is the duty of the court to follow. What
ever the consequences may be, the court has no alternative other than
to give effect to its plain mandates, and, if this stands in the way of
the enactment of a compensation law in harmony with those in other
States and it is thought best to have one of that kind, the appeal to
remove the barrier should be to the people who made the constitution,
and can remake it, and not to the courts, which possess only the power
to construe it. I am convinced, therefore, that the act is invalid be
cause it deprives employees of their constitutional right to choose
after injury between compensation and other remedies; and, since
it is provided in the act itself that in case the election before injury
provision can not stand the whole shall fail, I concur in the opinion of
the chief justice that the judgment of the trial court should be
affirmed
W o r k m e n ’s C o m p e n s a t i o n — E m p l o y e e — A g r i c u l t u r a l W o r k e r —
—M atis v. Schaeffer et al ., Supreme Court of
Pennsylvania (March 28 , 1921 ), 118 A tlantic Reporter , page 64 .—
C o n t r a c t o f H ir in g
The decedent, Matis, was employed as a laborer by Schaeffer to work
in his coal yard. Schaeffer also maintained a small farm on which
he raised food for his horses used in the coal business. When work
became slack at the coal yard it was customary to send the men to the
farm to do whatever work was necessary. Matis was sent during a
dull period at the coal yard to work on the farm. While at the farm
and engaged in pitching oats he suffered from sunstroke and died.
His widow brought proceedings for compensation under the work
men’s compensation act and secured an award. Upon appeal to the
court of common pleas on the ground that Matis’s work having been
agricultural labor he was not at the time of his injury under the
workmen’s compensation act, the award was affirmed and the em
264
TEXT AND SUMMARIES OF DECISIONS.
ployer appealed again. The decision of the supreme court of the
State in again affirming the award is in part as follows:
(1) Was decedent in the course of his employment at the time of
the sunstroke? Not much stress is laid upon this, and, indeed, but
little could be, for he was at that time and place doing the work
which defendant, as his employer, sent him to do. (2) Was he
“ engaged in * * * agriculture” within the meaning of the act
of June 3,1915 (P. L. 777; Pa. St. 1920, sec. 21920), which provides
that the workmen’s compensation act (Pa. St., sec. 21916 et seq.)
shall not “ apply to or in any way affect any person who, at the time
of injury, is engaged in domestic service or agriculture.” The board
and court below held that this applied to the general character of the
contract of hiring only, and did not refer to other casual or incidental
work performed at the request of the employer. We think this
conclusion is correct, especially as the title of the act is “ a supplement
to an act entitled 6the workmen’s compensation act of 1915,’ to ex
empt domestic servants and agricultural workers from the provisions
thereof.” This title must be taken into consideration in determining
the scope of the act. It would require a distortion of the plain
meaning of the words to call decedent an “ agricultural worker”
merely because he happened to be doing work which “ agricultural
workers” ordinarily do. We need only add that the workmen’s
compensation act covers cases of injury or death from sunstroke.
(Lane v. Horn & Hardart Baking Co., 261 Pa. 329, 104 Atl. 615
[Bui. No. 258, p. 156].)
The judgment of the court below is affirmed.
W
’ C
— E
—C F
— K rug v.
C ity of New Yorkj Suprem e Court of New York, A ppellate D ivi
sion {March 2,1921 ), 186 New York Supplem ent , page 727 .—Oscar
o rkm en s
o m p e n s a t io n
m plo yee
it y
ir e m e n
Krug was a uniformed fireman of the city of New York attached to
engine No. 7 of the city fire department. In May, 1918, while help
ing to extinguish a fire, he wrenched his knee. He was treated for
rheumatism and worked off and on until July, 19191when he under
went an operation upon his knee. He died from the effect of this
operation and his wife brought proceedings for compensation under
the workmen’s compensation act. The industrial commission al
lowed her an award but provided that it be held in abeyance because
she was receiving a pension from the city fire department pension
fund; the award was to be paid only if the pension should fail.
The city appealed from this award, and in reversing it a decision
was rendered in part as follows:
The amendment of the constitution upon which this class legisla
tion depends expressly authorizes the enactment of the statute:
“ Provided that all moneys paid by an employer to his employee
or their legal representatives, by re.ason of the enactment of any
of the laws herein authorized, shall be held to be a proper charge in
the cost of operating the business of the employer.” (State con
stitution, art. 1, sec. 19.)
WORKMEN ?S COMPENSATION.
265
Where there is no business upon which the compensation can be
come a charge, where there is no opportunity to charge the accidents
of the business to the product and thus distribute the burden over
the field of consumption, there is no warrant for the legislation.
The rule is well established that a proviso, such as is contained in the
constitutional provision above quoted, is in deeds and statutes a
limitation or exception to the grant made or authority conferred,
the effect of which is to declare that the one shall not operate, or
the other be exercised, unless in the case provided. It was the in
dustrial, the essentially dangerous, trades which were to be placed
under the provision of the law, and the constitution was amended to
permit of this, not to extend the operation to public officers.
We are clearly of the opinion that the decedent was not an em
ployee within the meaning of the statute. The word is defined by
the Century Dictionary, cited with approval in Palmer v. Yan Santvoord, 153, N. Y. 612, 614, 47 N. E. 915, as “ one who works for an
employer; a person working for salary or wages, applied to any one
so working, but usually only to clerks, workmen, laborers, etc., and
but rarely to the higher officers of a government or corporation or to
domestic servants,” and with all the agitation which preceded the
enactment of this statute it can not be presumed that the legislature
or the people in amending the constitution used the words in any
broader sense than that indicated. Nor can we subscribe to the
theory that a fireman in performing a public service is engaged in
salvaging buildings or their contents. He is performing a police
service for the State, operating for the benefit of the owner of the
property, and not in the carrying on of the business of salvaging
buildings or property.
The award should be reversed, and the claim dismissed. All
concur.
W o r k m e n ’s
C o m p e n s a t io n — E m p l o y e e — E m p l o y e r ^
K n o w l
Burke v . Industrial Commission et a lS u p re m e
Court of Colorado (November 7, 1921), 201 Pacifie R eporter , page
891.—John B. Chadwick was in the employ of John F. Burke, pro
edg e—
V o lu n teer—
prietor of a taxicab line, operating in and about the city of Denver.
While Chadwick was driving a party to Colorado Springs, a party
of Texas tourists arranged with Burke for a trip to Estes Park and
requested that Chadwick be sent as driver. Burke replied that he
would try to get Chadwick, but he would not guarantee to do so.
That evening because of complaints received by Burke of Chadwick^
careless and reckless driving on the trip to Colorado Springs he was
discharged and directed to report at the office in the morning for a
settlement. The next morning, Chadwick, instead of reporting as
directed, took the car he was accustomed to drive and left with the
party of tourists for Estes Park without the knowledge or consent
of Burke, and directly against his orders. While making the return
trip from Estes Park, Chadwick attempted to turn the car out of
a rut on a muddy road, when it upset, pinning him underneath, and
266
TEXT AND SUMMARIES OF DECISIONS.
resulting in injuries from which he died a few hours later. The
passengers were brought to Denver and paid Burke the regular fare
for the trip. An award of compensation was granted the widow and
minor children of Chadwick. The district court partly affirmed and
partly reversed the award. The case was appealed to the supreme
court, where the judgment was reversed and the cause remanded on
the grounds that Chadwick was not in the employ of Burke. The
court, speaking through Judge Bailey, said:
There is no conflict in the testimony upon the fact of Chadwick’s
discharge, and the question of his reinstatement is strictly one of
law and not of fact. The commission found that he was an em-»
ployee solely upon an alleged ratification by Burke of his act in
taking the car, without authority, as above noted. This view was
adopted by the district court.
It seems clear to us that the acceptance by Burke of pay for the
use of his automobile and equipment could have and did have no
effect whatever upon the status of Chadwick. Chadwick was either
an employee of Burke at the time of the accident or he was not. If
he was not, then we fail to see how any subsequent act of Burke
in dealing with third parties could change Chadwick’s relations to
him. Whatever the law may be upon the subjects of ratification and
estoppel, under the circumstances here shown, as applied to third
persons, manifestly, as between Burke and Chadwick, upon the un
disputed facts, neither the doctrine of ratification nor estoppel has
the slightest application, and both the commission and the district
court were in error in holding to the contrary. If Chadwick was
not in the employment of Burke when injured his heirs have no
standing under the workmen’s compensation act. (Laws 1919, p.
700.) It conclusively appears that when Chadwick was injured, he
had been discharged, and was a mere volunteer, wrongfully engaged
in driving the Burke car. The law must leave him where it finds
him, for since that situation was brought about by his own willful
and deliberate wrong, upon no possible theory is he or are his de
pendents in position to ask or receive compensation at the hands of
Burke.
W o r k m e n ’s
C o m p e n s a t io n — E m p l o y e e — E x c l u s io n
by
A mount
Kelley's Dependents v. Hoosae Lumber Go. et al ., Su
preme Court of Vermont (May 3, 1921), 113 A tlantic Reporter ,
page 818 .—Simon J. Kelley, while in the employ of and cutting logs
of
S a la ry—
for the defendant company was accidentally killed on February 22,
1919. His dependents brought proceedings under the workmen’s
compensation act to obtain compensation for his death. By the terms
of the General Laws of Vermont, section 5758, the act does not apply
to a workman whose remuneration exceeds $2,000 per year, unless
the agreement specified in the act is entered into. Kelley had not
entered into such agreement. The year previous to his death he actu
ally received as earnings slightly more than $2,000. There was an
267
WORKMEN ?S COMPENSATION.
award of compensation and the defendants appealed. In affirming
the award the court through Judge Powers said:
The whole question depends upon the construction of the statute.
The legislature has not pointed out the proper method of procedure
to ascertain the remuneration, and there are no decisions to give much
aid to the proper solution of that problem. In these circumstances,
we are at full liberty to ascribe to this provision a meaning which, in
our judgment, best accords with the general legislative intent, and
best carries into effect the beneficent purposes of the act. This re
quires us to adopt such a construction as will extend its provisions
to the largest possible class of employees, and to restrict those ex
cluded from its provisions to the smallest possible class. We ought
also to give it such a construction as will make its application as cer
tain as possible, to the end that both employer and workman may
know in advance whether it is to regulate their relations or not.
We hold, therefore, that the onl^ employees excluded from the act
under this section are those working under a contract the definite
term of which is one full year or more, and at a determined or deter
minable wage amounting to more than $2,000; and that all other em
ployees, regardless of the total amount earned, are within the act.
W o r k m e n ’s
C o m p e n s a t io n — E m p l o y e e — G e n e r a l
and
S p e c ia l
—Knudson et til. v. Jackson , Supreme Court of Iowa
{June 25 , 1921 ), 183 Northwestern Reporter , page 391 .—C. M.
E m plo yer
Knight was a team contractor in the city of Des Moines. One Jackson was employed by Knight as a driver of one of his teams, receiv
ing $3.50 a day for his services. A Mr. Knudson was a contractor
and builder. He made arrangements with Knight to have a man
and team furnished to haul rubbish in connection with his contract
work at the rate of $7 per day. Knudson had nothing to do with the
selection of the man or team for the work. Knight sent Jackson to do
the work for Knudson, whose foreman was to give Jackson instruc
tions as to the particular work he was to do. Jackson, while doing
his duties as directed, received an injury for which compensation was
sought. The industrial commission held that Jackson was in the
employ of Knight and that Knudson was not his employer. On
appeal to the district court this finding was reversed. The supreme
court reversed the district court and held that there was no contract
of service, express or implied, between Knudson and Jackson, and
that Jackson was not entitled to compensation from Knudson under
the provisions of the workmen’s compensation act. After consider
ing the two lines of authority on this subject, Judge Fayville, speak
ing for the court, said:
The foregoing cases represent the two lines of decisions. Because
of the difference between the statutes, the conflict in these decisions is
perhaps more apparent than real. The statutes of New York and of
268
TEXT AND SUMMARIES OF DECISIONS.
California differ from the statute in this State, and ours more nearly
conforms to the statutes of New Jersey and Massachusetts.
We recognize and adhere to the rule that this statute should be
liberally construed. This, however, does not permit us to enlarge the
express terms of the act. Our legislature has seen fit to define' who is
an employer and who is an employee within the meaning of this act.
The legislature has expressly said that an employee who is entitled
to compensation under this act is “ any person who has entered into
the employment of or works under a contract of service, express or
implied, for an employer.” In view of this definition and declaration
by the legislature, we can not enlarge the terms and provisions of this
statute, and apply to an employer and employee the rules and defini
tions of the common law as applicable to master and servant. The
legislature in enacting this statute was providing a remedy wholly
unknown to the common law, and it saw fit to place in the statute
definitions to which rules of the common law can have no application.
We are therefore in an entirely different situation than the supreme
court of California in declaring that the definitions of employer and
employee, under the workmen’s compensation law of that State, “ are
broad enough to include both the general and special employer.”
W o r k m e n ’s
C o m p e n s a t io n — E m p l o y e e — I n d e p e n d e n t
C ontrac
tor— Coppes Bros. & Zook v. Pontius, A ppellate Court of Indiana
(June 29, 1921), 1S1 Northeastern Reporter, page 843.—Ambrose
Pontius brought proceedings under the workmen’s compensation act
to obtain compensation for personal injuries. The industrial board
awarded him compensation and the employer appealed. The ques
tion before the court was whether Pontius was an employee or an
independent contractor. Pontius was hired to haul logs aqd load
them on a railroad car. He wras to supply his own team and was
paid $7 per thousand feet. He had not contracted to do a particular
piece of work as an entirety. The appellant did not actually exer
cise any control over the appellee, but the clear inference was that it
had the right to exercise unlimited control had it seen fit to do so.
For this reason the appellate court affirmed the decision of the
board, classing him as an employee and not a contractor.
W o r k m e n ’s
C o m p e n s a t io n — E m p l o y e e — I n d e p e n d e n t
C ontrac
—H elton v . Tall Tim ber Lumber Co. of Louisiana
{Inc.), Supreme Court of Louisiana {November 29,1920), 86 South
ern R eporter , page 729.—The decedent, Helton, was killed by a fall
tor—
S u p e r v is io n
ing branch while he and other men were at work clearing a right of
way for a railroad to be constructed by the defendant company.
The work consisted of felling trees and sawing them into logs.
Various numbers of men were at work at different times, all working
independently of each other. They were paid so much per thousand
WORKMEN ?S COMPENSATION.
269
feet of the lumber contents of the logs and were provided with saws
and axes. They were at liberty to quit work whenever they chose
and be paid for the work they accomplished. The right of way was
divided into sections of 100 feet. No control over the men was exer
cised except to indicate what section each man was to work upon.
Helton’s widow brought proceedings for compensation under the
workmen’s compensation act (Act No. 20 of 1914, p. 44), but was
denied an award on the ground that her husband had been an in
dependent contractor and not an employee of defendant. In affirm
ing the decision the court said, in part:
Though plaintiff’s husband’s contract was with an independent
contractor who had charge of this clearing, the defendant company
is liable (under section 6 of said act) if plaintiff’s husband was an
employee and not, as contended by defendant, an independent con
tractor.
Under the circumstances, we are clear that plaintiff’s husband was
not an employee. He had not hired his services (C. C., arts. 164,
2745), but was working as his own master. He was at liberty to do
the work when and as he pleased. He was not even being paid
wages, but only for whatever work he chose to accomplish. A work
man who in the manner of doing his work is under nobody’s direc
tion or control but his own can not be classed as an employee, but is
an independent contractor.
W o r k m e n ’ s C o m p e n s a t i o n — E m p l o y e e — P o l i c e m a n — Mann v .
City of Lynchburg,' Supreme Court of Appeals of Virginia (March
17, 1921), 106 Southeastern Reporter, page 871 .—Lee Arthur Mann
was employed by the city of Lynchburg as a policeman. He suffered
injuries in the course of his employment which resulted in his death,
and his widow and minor children brought proceedings for compen
sation under the Virginia workmen’s compensation law. The indus
trial commission was inclined to grant an award but question arose
as to whether the city of Lynchburg or the State was liable for the
payment of the compensation, and this question was certified to the
court of appeals. The court, because the case was not one between
private persons but against the government of the State, did not
confine itself to the determination of the question submitted. It was
accordingly held that a policeman is not an “ employee ” within the
meaning of the workmen’s compensation law and the plaintiffs were
denied compensation. The following is an extract from the decision :
The statute is to be liberally construed to the end that its wise and
humane purpose may be advanced; but we can not extend its provi
sions by construction, so as to cover persons or occupations not within
its scope and intent.
The act as its title shows relates to industrial accidents, and its
well-known purpose was to substitute for the unsatisfactory com
mon-law remedies a speedier and simpler and more equitable form of
270
TEXT AND SUMMARIES OF DECISIONS.
relief for personal injuries sustained by persons engaged in hazard
ous occupations. It would seem clear from the history and purposes
and general provisions of the act that the legislature did not have in
mind as beneficiaries any other persons than such as are commonly
understood as falling within a contractual relationship of master
and servant. It often happens that cities and towns employ large
forces of men in connection with municipal undertakings, such as
the construction of sewers, the building of streets, the operation of
rock quarries, and other similar and more or less hazardous occu
pations akin to those undertaken by individuals and industrial cor
porations. The legislature undertook to make an improvement upon
the remedies hitherto existing in cases of employees receiving per
sonal injuries, and who might or might not, according to the par
ticular facts of the case, have a cause of action against the employer
on the ground of negligence or breach of duty, and manifestly the
idea was that this remedy should be provided for those who thereto
fore stood in such a relationship as that there might be in cases of
negligence a liability on the employer. The case of a city policeman
does not, as we think, fall within the reason and purpose of the act,
and this conclusion is greatly strengthened by the language which
the legislature used in its enactment.
Of course, as already pointed out above, there is a sense in which
every officer is a servant, and in which every officer performs services
for pay, but this is no more true of policemen than of any of the
other officers of the State or municipality. If any such officers are to
be included within the provisions of the statute, the amendment
should be made by the legislature, and not by the tribunals called
upon to construe and enforce the law.
It follows that we are of opinion that neither the city of Lynch
burg nor the State of Virginia can lawfully be required to pay the
compensation claimed in this proceeding.
W o r k m e n ’s C o m p e n s a t i o n — E m p l o y e e — P o l i c e m a n
—Shelmadine
v. C ity of E lkhart et ad., A ppellate Court of Indiana (February 18 ,
1921), 129 Northeastern Reporter , page 878 .—Shelmadine was em
ployed by the city of Elkhart as a policeman. During the course of
his work he was killed, and his widow brought proceedings for com
pensation under the State workmen’s compensation act. The indus
trial board denied her compensation and she appealed. The order
denying the widow compensation was affirmed. The opinion is, in
part, as follows:
The court will take judicial notice that the city of Elkhart, at the
time of the injury and death of appellant’s decedent, was a city hav
ing a population of between 10,000 and 35,000, and that its police
force was established under and regulated by the act known as the
metropolitan police act of 1897. (Burns’ Ann. St. 1914, secs. 9033,
9046.) This act provides for a board of metropolitan police commis
sioners with power to appoint policemen and fix their compensation
within certain limitations; such appointees to serve during good be
WORKMEN *S COMPENSATION.
271
havior. The act also fixes the powers and duties of policemen so
appointed.
A public officer may be defined as a position to which a portion of
the sovereignty of the State attaches for the time being, and which
is exercised for the benefit of the public. The most important.char
acteristic which may be said to distinguish an office from an employ
ment is that the duties of the incumbent of an office must involve an
exercise of some portion of the sovereign power.
It is urged by appellant, however, that even if it be conceded that
appellant’s decedent was, at the time he met his death, a public offi
cer, and was discharging his duties as such, still he was an employee
of the city within the meaning of the word “ employee” as used
in the Indiana workmen’s compensation act. This contention of ap
pellant’s is without merit, as will be seen by an examination of the
definition of the word “ employee” as found in clause (b) of said
section 76 of said act.
It is clear that the term “ hire ” as used in this definition does not
relate to public officers elected or appointed and whose duties are
fixed by law. Appellant’s decedent, being a public officer whose
duties are specifically prescribed by statute, was, under his oath of
office, obligated faithfully to perform his official duties, and was
subject to impeachment for failure so to do; but he was not the
servant or' employee of the city under any “ contract of hire,” either
express or implied.
W o r k m e n ’s
C o m p e n s a t io n — E m p l o y e e — R e g u l a r
T erm
of
Rooney v. City
of Omaha, Supreme Court of Nebraska (December 23, 1920), 181
Northwestern Reporter, page 11^3.—Rooney was killed by an accident
O f f ic e — P o l ic e m a n — E m p l o y m e n t
N o t fo r G a in —
arising out of and in the course of his employment as a policeman
by the city of Omaha. His widow brought suit for compensation
under the workmen’s compensation act of the State, and recovered a
judgment. The employer appealed upon twa grounds: First, because
a police officer is appointed to hold office during good behavior, he
holds for a “ regular term of office ” and is thus one of the classes of
employees excluded from the act; and, second, because a policeman
is not engaged in an enterprise for the city for pecuniary gain or
profit he is not covered by the compensation act. The supreme court
held that a policeman is not appointed for a regular term of office
and that so far as this provision was concerned he was within the
act, but it also held that a policeman is not engaged in work for
the pecuniary gain or profit of the city and that therefore he was
not covered by the act. The opinion in part is as follows:
A police officer of the city of Omaha is appointed to serve during
good behavior. That means an indefinite period. No two officers
will hold for the same duration of time. The law has fixed no limi
tation on the tenure of office. One may hold for life or as long as
he desires, unless, through his own misconduct he is discharged for
cause. With such irregularity of duration, the period of tenure can
272
TEXT AND SUMMARIES OF DECISIONS.
hardly be denominated a “ regular term ” of office, within the mean
ing or the statute [citing a Minnesota case, State v. District Court,
134 Minn. 26, 158 N. W. 790, involving an identical situation}.
The defendant has raised a further question, that a policeman in
the city of Omaha is an employee of a governmental agency of the
State and is employed in the governmental capacity of the State and
not for the gain or profit of the.employer, and that, under section
3656, Rev. St. 1913, he is expressly exempted from the operation of
the compensation law. It is manifest that such a policeman, in the
general service of the city as a policeman, is not employed for the
pecuniary gain or profit of the city. This case is controlled by the
decision, just rendered in this court, Ray v. School District of Lincoln,
181 N. W. 140 [below] and, for the reasons therein set out, plaintiff
is not entitled, as we view it, to a recovery in this case.
W o r k m e n ’s
C o m p e n s a t io n — E m p l o y e e — S c h o o l
J a n it o r — E m -
—R ay v. School D istrict of Lincoln, Supreme
Court of Nebraska (December 23,1920), 181 Northwestern Reporter,
page llfi. —Ray was employed as a janitor in a school in Lincoln,
Nebr., b}^ the school district of the city. While engaged at his duties
he was injured by an accident arising out of and in the course of his
employment and he brought proceedings for compensation under the
workmen’s compensation act and recovered a judgment. The em
ployer appealed, contending that inasmuch as it was not engaged in
an enterprise for pecuniary gain or profit it was not covered by the
act. That section of the law (sec. 3656) which defines employees
concludes as follows:
(3) It shall not be construed to include any person whose employ
ment is casual, or not for the purpose of gain or profit by the em
ployer, or which is not in the usual course of the trade, business, pro
fession, or occupation of his employer.
The supreme court held that Ray was not an employee within the
meaning of the statute and reversed the judgment and dismissed the
case. The opinion in part is as follows:
By a literal reading of the provisions of the statute in connection
with subdivision (3) last above quoted, the term “ employee” covers
only such employees, whether in the service of private enterprises or
in that of the State, or of its subdivisions, as are employed for “ gain
or profit.”
The plaintiff contends that, should the literal wording of the act
confine the act, in its operation, to those employees only who are
employed for pecuniary gain or profit of the State and its sub
divisions, then the literal wording must be found to be in conflict
with the express purpose and intent of the act, and that such intent
must be allowed to prevail. By the earlier provision of the act, every
person in the service of the State, except officers holding for a regular
term of office, is mentioned as being included within its operation.
That provision, however, is not more general in its terms than the
plo ym en t
N ot fo r G a in
273
w o r k m e n ’s co m pensa tio n .
like provision covering private employments. It is necessary for
the court, then, first to determine from the language used, whether
there can be any logical reason for the exception, as applied to State
employees, or whether the exception is out of harmony with the act
and opposed to a clearly expressed intent to the contrary.
It must be remembered that the State and its governmental agen
cies could not be held liable under the common law for personal in
juries sustained by its servants in line of employment, though due to
its own negligence, nor could such a recovery be had under the law
as it existed in this State at the time of the enactment of the work
men’s compensation act. The State could, however, be held for
injuries to its employees resulting from its negligence, when such
employees were engaged in corporate enterprises, carried on for
profit. City water works and lighting plants, which furnish service
to individuals generally, are carried on for profit, and have been in
the past subjected to the same duties and liabilities towards their em
ployees as if they were privately owned enterprises of like nature.
For the reasons given, it is our opinion that the act does not cover
the plaintiff in this case, and the judgment of the lower court is there
fore reversed and the case dismissed.
W o r k m e n ’s
C o m p e n s a t i o n — E m p l o y e e — S o l d ie r
W o r k in g
in
—Rector v. Cherry Valley
Tim ber Co ., Supreme Court of W ashington (March 1^ 1921), 196
Pacific R eporter , page 653.—In the prosecution of the war against
Germany the United States Army formed a military unit known as
the Spruce Production Corps. Spruce lumber was necessary in the
production of aeroplanes and ships, and because the demands of the
military forces had drawn so heavily upon the labor supply of the
country it was found necessary to form the Spruce Production Corps
for the purpose of providing labor to cut the timber. Rector was
inducted into the military service through the draft under the
selective service act, and then because he was an experienced logger
he was transferred to the Spruce Production Corps and became a
member of a military company with a full line of officers. He was
then put to work at logging for the defendant company under whose
superintendent he worked. He was carried on the pay roll of the
company along with its civilian employees. During the course of his
employment in the capacity of a logger in the military service he was
injured and brought suit for damages against the company for whom
he was working at the time on the theory that he was injured while
engaged in involuntary servitude. He recovered judgment, but upon
the appeal of the defendant the decision was reversed. In delivering
the opinion of the supreme court Judge Mackintosh said in part:
It is the respondent’s contention that he was not a workman em
ployed by the appellant and is not compelled to look to the workmen’s
compensation law for his remuneration for his injury, but that he
C iv il ia n
O c c u p a t io n — S u i t f o r D a m a g e s
274
TEXT AND SUMMARIES OF DECISIONS.
could maintain this common-law action upon the theory that his
service was involuntary and the State compensation act had no appli
cation to him. The question, then, is to determine wheiher the
appellant’s relation to the respondent was that of a workman or that
of an involuntary servant.
It is abhorrent to every idea of our institutions and the methods
necessary for their preservation that a member of the Army should
be considered as being in involuntary servitude, and this is true
whether his entrance into the Army was by voluntary enlistment or
through the method adopted in the late war, under the selective serv
ice act. The mental attitude of a soldier does not affect the nature
of his service. In whatever way he views his presence in the Army,
it must be viewed by all others as voluntary service in the perform
ance of the duty which he owes to the Government,
The respondent, as a member of the Army, was not impressed into
involuntary servitude, and wherever he was. called upon to perform
service in the furtherance of the interest of his country in the at
tempt to prosecute the war successfully his status was the same,
whether he was called upon to work in the woods of Washington or
to fight in the fields of France, and when he was ordered to the
camp of the appellant his appearance there was voluntary. Being
voluntarily in the Army and under its discipline, all acts which were
done under military orders were voluntarily done, and when the re
spondent was ordered to the appellant’s camp, his appearance there
was as voluntary as though he had applied for employment at a
public employment agency and had been informed that there was a
position which he might obtain by going to the appellant’s works.
While in the case of the soldier by the voluntary act of joining the
Army he agreed to comply with every lawful order of his superior
officers, and when that order was to engage in work designed to
assist in the prosecution of the war, as provided by act of Congress,
his appearance was voluntary. In any event, the respondent comes
under the definition of a “ workman ” laid down by the statute in
relation to the compensation of workmen.
There seems little room for arguing that the respondent does not
fall within the scope of this act. It is true that in 1911 the legisla
ture, by its act, did not specifically cover a person in the respondent’s
position. But the legislature intended, and so stated, that after the
passage of that act all the common-law system covering the remedies
of workmen against employers for injuries should be abolished, and
the State, in the exercise of its sovereign power, removed all phases
of the matter from private controversy and afforded sure and certain
relief for workmen engaged in extrahazardous work, and, excluding
every other remedy, provided the compensation set out in the act.
(Rem. Code, sec. 6604-1.) It was the intention of the legislature to
protect every one engaged in work in any of the extrahazardous in
dustries of the State, whether he be soldier or civilian; that is, as to
matters outside of his employment as a workman, whether he be
subject to either the military or ordinary civil and criminal restraints
and regulations, and the act made it impossible for either the em
ployer or employee to exempt themselves from its operation.
The appellant would never have agreed to the employment of re
spondent on the basis of the nonapplicability of the workmen’s com
WORKMEN ?S COMPENSATION.
275
pensation act. To our minds it is clear that the respondent was a
“ workman ” within the definition of the act, and, as such, is not en
titled to prosecute this action.
The judgment is reversed and the action dismissed.
W orkmen’s Compensation—E mployee—S ubcontractor—L iabil
ity of City for I njuries to E mployee of a Contractor— C ity of
Chicago v. Industrial Commission et al ., Supreme Court of Illinois
(December 21, 1920), 129 Northeastern Reporter, page 112.—Tenie
Murray was injured by a collision between a city street car and the
ash wagon upon which he was riding while in the employ of Susan
Burns, to whom the ash wagon belonged. Susan Burns was a sub
contractor of the city of Chicago and had undertaken to remove the
city ashes and garbage. She had not come under the workmen’s com
pensation act and was not insured. Murray proceeded against the
city of Chicago to recover compensation under section 31 of the
compensation act, which provides that:
Anyone engaging in any business or enterprise referred to in
subsections 1 and 2 of paragraph (b) of section 3 of this act who un
dertakes to do any work enumerated therein shall be liable to pay
compensation to his own immediate employees in accordance with
the provisions of this act, and in addition thereto if he directly or
indirectly engages any contractor, whether principal or subcontractor
to do any such work, he shall be liable to pay compensation to the
employees of any such contractor or subcontractor unless such con
tractor or subcontractor shall have insured in any company or as
sociation authorized under the laws of this State to insure the lia
bility to pay compensation under this act, or guaranteed his liability
to pay such compensation. (Laws of 1917, p. 504.)
He was allowed an award of compensation by the industrial com
mission, which on appeal was affirmed by the circuit court. The city
of Chicago brought a writ of error alleging that Murray being an
employee of Susan Burns and not being an employee of the city he
could not recover compensation from it. The court, however, re
fused to take this view of the matter and affirmed the award, saying
in part:
The language of this section makes it applicable to a city engaged
in any business or enterprise of the kind mentioned. Section 5 of
the act defines the term “ employee ” so as to include every person
in the service of a city under appointment or contract of hire except
any official of the city, and contains the proviso that one employed
by a contractor who has contracted with the city shall not be con
sidered as an employee of the city which made the contract. The
contention of the plaintiff in error that this section excludes from
the provisions of the act the employee of a contractor can not be sus
tained. It simply declares that such employee shall not be con
sidered an employee of the city and by such provision excludes the
101296°—22-----19
27 6
TEXT AND SUMMARIES OE DECISIONS.
contractor of the employee from the general provisions of the act,
but section 31 expressly provides that the city shall be liable, in the
cases mentioned in that section, to pay compensation, not only to its
own employees in accordance with the provisions of the act but also
to the employees of the contractor, unless such contractor shall have
insured his liabilitj7to pay compensation or guaranteed his liability.
No claim is made that the city was not engaged in any business or
enterprise referred to in subsections 1 and 2 of section 3 or that
Susan Burns was not engaged to do any work enumerated in those
subsections. We held in City of Rock Island v. Industrial Com.,
287 111. 76, 122 N. E. 82, that a city in the sweeping and cleaning of
its improved public streets is engaged in the business of maintaining
a structure, and that the finding of the industrial commission in that
case that a person who was engaged in such work was engaged in an
extrahazardous occupation could not be said to have been unsup
ported by the evidence.
The judgment of the circuit court will be affirmed.
W orkmen’s Compensation—E mployee—V oluntary W orker on
P ercentage B asis—Rockefeller v. Industrial Commission of Utah,
Supreme Court of Utah {A p ril W , 1921) , 197 Pacific R eporter , page
1038 .—Jesse Y. Rockefeller and Ben Trobough were partners in a
taxi service in Ogden City, Utah. They employed one man on a
salary basis to clean and repair cars and another on a commission
basis to drive a taxi. Darrell E. Wilson was an extra man who
came and went as he pleased and was allowed 25 per cent of any
money he could make driving plaintiff’s car. He had no regular
shift and could answer a call for a taxi or refrain from doing so at
will. There was no agreement between the partners and Wilson
that obligated him to do any work. He was killed while driving
a car belonging to the plaintiff, and his widow was awarded com
pensation by the industrial commission, Rockefeller made an ap
plication to annul the order entered by the commission, on the
grounds that there was no contract of employment expressed or
implied, that the plaintiff did not have “ three or more workmen
regularly employed,” and that he had not elected to “ come under
the terms of the industrial act.” The supreme court annulled the
award, holding that the relationship was not that of employer and
employee, but bailor and bailee, i. e., that Wilson merely hired the
car for his own use, paying a part of his receipts therefor. The
decision is in part as follows:
W h ile it is clear, to our m inds a t least, th a t there was no contract
o f h ire and em ploym ent between p la in tiff and deceased, yet did
th ey n o t sustain some le g a l relationship in respect to each other
and the business? W e th in k th ey d id . W h a t relatio n s h ip was
th a t
W e th in k i t was th a t o f b a ilo r and bailee.
%
W0&&MEH ’S O0MEENSATION.
277
It has frequently been held that partners are not employees within
the purview of compensation acts.
The evidence in this case is without dispute that neither plaintiff
LKockefeller] nor Trobough received any other compensation than
that which they drew from the business after the expenses of con
ducting the same were paid. Neither, therefore, was engaged in
the capacity of an employer. The evidence was that Trobough had
the same power to direct the men engaged in the taxi service that
plaintiff had. The relationship of the plaintiff and Trobough was
therefore that of partners, generally speaking.
Nor were any others who upon occasion drove an automobile, as
hereinbefore stated, “ regularly employed in the same business ” as
provided by our industrial act. To so hold under the undisputed
evidence of this case would be to defeat the humane provisions of
the law, which is to preserve and devote the fund created by the
industrial act for the exclusive benefit of regular employees, and
not for mere volunteers as such, who for their own benefit or pleasure
drove an automobile in the taxi service business. In view, there
fore, that we make every possible allowance in favor of the applicant,
yet her deceased husband did not come within the provision of the
industrial act, and for that reason she is also excluded from its
provisions.
We do not wish to be understood by anything said or omitted herein
that one who is paid a commission for his services may not be
regularly employed within the purview of the industrial act. The
payment of a commission may be merely a convenient method of
fixing the compensation. At all events, it is not determinative of
the question of whether one who receives a commission for his serv
ices is or is not an employee within the provisions of the industrial
act. All that we now decide is that under the undisputed evidence
the deceased was not an employee of the plaintiff within the provi
sions of the industrial act.
W orkmen’s Compensation—E mployer—B usiness N ot for P e
cuniary (Sain—C ook for G ouf Glue—Franeiseo v. Oakland Golf
Club et al ., ‘ upreme Court of New Y ork , A ppellate Division (No
S
vember 10 , 1920), 185 New Y ork Supplem ent, page 97.—Francisco
was employed by the Oakland Golf Club as a cook. While engaged
in frying a chicken an alcohol stove exploded, burning him so
severely that he died. His widow was given an award of compensa
tion and the employer appealed on the ground that, feeing a member
ship corporation to provide social and other benefits to its members
without any effort to make pecuniary profits, it was not subject to
the compensation law. The club was maintained by the dues of its
members, and although it operated a restaurant it did so at a loss;
The court held that the club did not come within the provisions of
the compensation act. The opinion is in part as follows :
It is entirely clear, therefore, that the deceased employee was not
employed in a trade, business, or occupation carried on by his em
278
TEXT AND SUMMARIES OF DECISIONS.
ployer for pecuniary gain, within the meaning of subdivision 5 of
section 3 of the workmen’s compensation law (Consol. Law, c. 67).
An award for his death, therefore, should not have been made.
The award should be reversed and the claim dismissed. All
concur.
W orkmen’s Compensation—E mployer—E mployee of S tate—
P ayment by S tate—Sm ith v. State H ighw ay Commission of V ir
ginia et ah, Supreme Court of Appeals of Virginia (N ov ember 21,
1921), 109 Southeastern Reporter, page 312 .—William Oscar Smith,
a quarry foreman, in the direct employment of the State highway
commission of Virginia, died as a result of an injury which arose out
of and in the course of his employment. His wife, Grace Hillard
Smith, filed an application for a hearing before the industrial com
mission of Virginia. Questions of law arose as to whether the State
highway commission of the Commonwealth of Virginia was the
employer, who was liable as such, in what manner and against what
funds would the award of compensation be directed. The questions
were certified to the supreme court of appeals. The court there
held that the- State, municipal corporations, or any political divi
sion thereof are employers within the statute. The State highway
commission did not come under any of these heads, therefore the
State was to be considered the employer. The other questions the
court settled as follows:
As to the manner in which and the funds from which the compen
sation awarded by the industrial commission in such a case should
be paid, no order can be made directing the payment, but the same
must be provided for by special appropriation to be made by the
legislature.
While it is true that the compensation act contemplates employees
of the State, and expressly provides that they shall have the benefit
of the same, no provision has yet been made for the payment of
claims against the State, and section 2582 of the code provides that
no judgment or decree, unless otherwise provided, shall be paid with
out a special appropriation by law. Neither the court nor the
industrial commission can require the legislature to make an ap
propriation for cases of this character, but it is not to be doubted
for a moment that such appropriation will be made in every case
in which an order against it is made by the commission. The State
will not provide that its employees shall have the right to claim com
pensation under the workmen’s act, and then decline to give them
any means whereby they may collect the compensation allowed them
thereunder.
W orkmen’s Compensation—E mployer—Grave D igging—R eli
gious S ociety—P ecuniary Gain —Dillon v. Trustees of S t. P atrick’s
Cathedral in C ity of New York, Supreme Court of New Y ork, A p
w o r k m e n ’s c o m p e n s a t io n .
279
pellate D ivision {June 17 , 1921), 189 New York Supplem ent , page
594 .—The defendant is a charitable corporation which maintains a
cemetery. It sells burial privileges and devotes the money so raised
to the expenses of running the cemetery, and for religious and educa
tional work and for charity—primarily in providing graves for those
unable to pay for them. On April 26, 1918, the plaintiff, a grave
digger, was directed to make an excavation for a monument. When
he had reached a depth of 9 feet, the earth fell upon him and injured
him severely. The workmen’s compensation law classifies grave dig
ging as a hazardous employment, but compensation is provided for
“ employment only in a trade, business or occupation carried on by
the employer for pecuniary gain, or in connection therewith.” The
employment was hazardous, but the proceeds of the gain received by
selling burial privileges are devoted entirely to the purposes of the
cemetery and to charitable work. The court folloAved the decision of
Uhl v. Hartford Club, 116 N. E. 1000, and held that the injured grave
digger was entitled to compensation under the compensation act as
it was of no importance to what purpose the pecuniary gain was
devoted.
W orkmen’s Compensation—E mployer—L ongshoreman E ngaged
T rade-U nion —E mployee—Ilines v. H enry I. Stetler {Inc.) et
by
al ., Supreme Court of Neiv Y ork , Appellate Division {M ay 4,1921),
188 Neiv Y ork Supplem ent , page 73 .—John Hines was employed by
Joe Brosnan, an agent of the Longshoremen’s Union, under circum
stances indicated in the matter quoted below, to load trucks on the
water front of New York. While so employed he injured his finger
and was awarded $15 a week for 9 weeks by the State industrial com
mission. Henry I. Stetler (Inc.), the owner of the truck that was
being loaded when the injury occurred, was considered the employer.
The case was appealed to the appellate division, which reversed the
finding of the commission, holding that the corporation was not the
employer. In deciding this point Judge Woodward said in part:
The claimant was clearly not an employee of Henry I. Stetler
(Inc.). Joe Brosnan, or the labor organization which he repre
sented, took the job, or rather prevented anyone else taking the
job, at 3 cents per 100 pounds, to load and unload all trucks which
appeared upon the particular dock where this accident occurred.
Henry I. Stetler (Inc.) had no voice in the matter, beyond the
payment of the price arbitrarily fixed by the labor organization,
and neither the corporation not the runner had anything to do with
the claimant. His relations were all with the labor organization
or Joe Brosnan. Matter of Litts v. Eisley Lumber Co., 224 N. Y. 321,
324, 325,120 N. E. 730 [Bui. No. 258, p. 182], is a sufficient authority
for holding that Joe Brosnan was in the position of an independent
280
TEXT AND STT3&J&ARIISS OF DECISIONS.
contractor, and that the claimant was his employee at the time of
the accident and not the employee of Henry I. Stetler (Inc.).
Until some court of competent jurisdiction has overruled Wheels v.
Paul Smith’s Hotel Co., 195 App. Div. 39, 185 N. Y. Supp. 665 [re
lating to independent contractors] and the authorities therein cited
and relied upon, the award in the present case can not be permitted
to stand. The claimant does not pretend ever to have submitted to
the conditions incident to a contract of employment by Henry I.
Stetler (Inc.). He declares that he was employed by Joe Brosnan,
and there is no pretense that he owed any allegiance, except to
that person as the representative of a labor organization which has
assumed to control this branch of work in connection with all the
freight entering or leaving New York Harbor.
W orkmen’s Compensation—E mployer—N umber and P eace of
E mployees— Vantrease v. Sm ith et al,, Supreme Court of Tennessee
{February 26, 1921), 227 Southwestern Reporter, page 1023 .—Vantrease was injured while employed in the sawmill of the defendant
by having two of his fingers crushed. He brought suit for damages
for persona] injuries. Smith set up as a defense the workmen’s com
pensation law (ch. 123, Laws of 1919). The defendant Smith had
over 10 employees in its employ in the State, but at the place of the
plaintiff’s injury there were at the time fewer than 10 persons in its
employ. Smith undertook to bring himself under the provisions of
the law by taking out insurance and giving notice to the insurance
commissioner. He did not, however, give notice to the State factory
inspector of his election to come under the law, as required of per
sons employing less than 10 persons. Judgment was rendered in
favor of the defendants and plaintiff appealed,, contending that as
defendant’s 10 employees were not all employed at the place where
the injury occurred they did not come within the provisions of the
compensation law. The decision in favor of the defendants, how:
ever, was affirmed. The following is an excerpt from the opinion:
From the foregoing it appears that an “ employer ” is one who uses
the services of not less than 10 persons for hire, and that the act
shall not apply in cases 44where less than 10 persons are regularly
employed.”
The defendant was using the services of more than 10 persons,
and had more than 10 persons regularly in his employ, so that he
falls strictly within the letter of the statute. The idea that the em
ployment refers to a certain or fixed place is refuted by section 19
of the act, which provides that where an employee is injured while
out of the State he shall nevertheless be compensated if, at the time,
he were acting within the iscope ©f his employment under a contract
made in the State. It is manifest, therefore, that the legislature
intended that the-oontract of employment, and not -the place of the
accident, governs the recovery. Had the plaintiff been injured while
281
on a mission for the defendant to Wilson County, and while acting
within the scope of his employment, he would be entitled to recover
according to all of the authorities. This of itself is a refutation
of the place or group theory.
On the other hand it is very plausibly argued that the numerical
provision of the act can only be explained upon the theory that the
employees should work in conjunction, or at the same place. It is
also insisted that other acts of this character have been sustained
solely upon the ground that the classification was reasonable, be
cause it was more dangerous to have a large number of servants and
employees working together in the same group or establishment than
to have a less number of employees and servants so working together,
and authorities are cited to support this theory.
The act in question is not subject to an attack of this character
for the reason that it is elective in its nature, and hence can not
be discriminatory.
It is not necessary for us to determine the legislative intent in
limiting the application of the act to 10 or more employees. Suffice
it to say that the legislature said in plain and unequivocal terms that
where an employer has as many as 10 persons in his employ, the act
should apply, without attaching thereto any restriction as to place,
or any provision that such employees should work in conjunction.
The act in question is very broad and comprehensive in its scope,
and, under a liberal construction, should be given the interpretation
we have placed upon it.
WORKMEN 9S COMPENSATION.
W orkmen’s Compensation — E mployer — S tockbrokers — Mes
sengers—W orkmen— W estbay v. Curtis & Sanger et al., Supreme
Court of New Y ork , A ppelate Division (July 7, 19M ), 189 New
Y ork Supplem ent , page 539.—Robert Westbay was a messenger in
the employ of Curtis & Sanger, stockbrokers, occupying offices at
49 Wall Street, New York City. On September 16, 1920, while on
the street, in pursuance of his duties as a messenger, he was instantly
killed on the occasion of the mysterious explosion of that date.
Isabella Westbay proceeded under the workmen’s compensation law
and an award of compensation was granted her. The employer and
insurance carrier appealed to the appellate division. This court
reversed the award and dismissed the claim, the bench being divided
three to two, on the ground that neither the employer nor the
employee was covered by the act. Judge Woodward wrote the
opinion of the court, from which the following is quoted:
An 6 employer,” within the meaning of the workmen’s compensa
6
tion law, means “ a person * * * employing workmen in haz
ardous employments” (sec. 3, subd. 3), and an employee “ means
a person engaged in one of the occupations enumerated in section 2
or who is in the service of an employer whose principal business is
that of carrying on or conducting a hazardous employment upon the
premises or at the plant, or in the course of his employment away
from the plant of his employer.”
TEXT AND SUMMARIES OF DECISIONS.
282
The undisputed evidence before the commission was that Curtis
& Sanger had about 45 employees on an average; that these were
clerks and salesmen and stenographers.
There is an opinion by Commissioner Sayer in which he says that
there are 2 telephone and 2 telegraph operators, and that these em
ployments, if performed for a telephone or telegraph company,
would come under the named employments of Groups 5 and 6, and
that “ they are clearly operatives within the meaning of Group 45.”
The amendment to the constitution, under which the enactment
finds its justification in law, is made contingent upon the expense of
the system being held to be a proper charge in the cost of operating
the business of the employer (art. 1, sec. 19), and it was clearly under
stood and contemplated that the workmen’s compensation law should
be just what its name indicates—a special provision for the indus
trial workers of the State, as distinguished from clerks, stenog
raphers, errand boys, and the like.
Clearly the letter and the spirit of the law do not contemplate the
situation shown by this record. There are no workmen employed
by Curtis and Sanger within the meaning of the workmen’s com
pensation law; no employee in a mill or factory would recognize
one of these employees as a laboring man, and, if we are to have
class distinction, there is no .reason why one who would not have
recognition in the class, or who would not be willing to be so classi
fied in ordinary life (Bowne v. S. W. Bowne Co., 221 N. Y. 28, 33,
34? 116 N. E. 364), should be inducted into it for the purpose of
imposing a burden upon the insurance carrier which has never been
undertaken. The statute, and the constitutional innovation, proceed
upon the theory of an economic adjustment of the accident burden
of the productive industry of the State, not the insurance of in
dividuals against the accidents or crimes of those who are in no
manner connected with the commercial and productive life of the
community, and it is unthinkable that the legislature ever con
templated that an errand boy in a brokerage office should be pro
tected against a crime or an accident in the public streets of a city,
having no relation to any industrial pursuit.
W orkmen’s Compensation—E xtraterritoriality;—A cts of T hird
P arties—S ubrogation of R ights—Anderson v. M iller Scrap Iron
Vo . et al ., Supreme Court of Wisconsin (M ay 3, 1921), 182 N orth
western R eporter , page 852.—Katherine Anderson, as administratrix
of Joseph Boncher, brought an action for damages based on a, Mich
igan statute allowing suit in case of death by negligence. Joseph
Boncher was a resident of Wisconsin in the employ of the defendant
company, which was a Wisconsin corporation. He worked under a
contract of employment that was made in Wisconsin. While riding
to work in Michigan with Herman Miller, superintendent of the em
ploying company, who was driving an automobile, the car overturned,
through the negligence of Miller, and Boncher was fatally injured.
The action was against both the company and Miller and a verdict
WORKMEN ’s COMPENSATION.
283
was rendered in favor of Katherine Anderson. On appeal this judg
ment was reversed and remanded for further proceedings (170 N. W.
275), the court stating that the workmen’s compensation act of Wis
consin would apply. The widow put in a claim for compensation
and she was granted an award of $3,000. In Miller Scrap Iron Co.
et al. v KIndustrial Commission et al., 180 N. W. 726, the* a ward was
upheld, the court saying that Mrs. Boncher did not waive her right
to compensation because of the action taken by the administratrix
of the estate of deceased.
The original action was reversed as to Herman Miller upon)
Katherine Anderson’s request that if the judgment should be re
versed as to the Miller Scrap Iron Co. it should also be reversed as
to Herman Miller. Upon remittitur to the lower court a motion was
made on behalf of both defendants to dismiss the action on the merits.
No objection was made to the dismissal as to the Miller Scrap Iron Go.
The plaintiff, Anderson, and the Miller Scrap Iron Co. both objected
to the dismissal of the action as to the defendant, Herman Miller;
The motion to dismiss was granted, and from the order granting such
motion the Miller Scrap Iron Co. brought this appeal. The Miller
Scrap Iron Co. depended upon a statute of Wisconsin for its title to
the present action, which they claimed was theirs. The statute pro
vided, in effect, that the making of a claim under the workmen’s com
pensation act operated as an assignment to the employer of any
cause of action for tort.
The court held that the Miller Scrap Iron Co. had acquired no title
to the cause of action, because that action was predicated upon a
Michigan statute. In deciding this point Judge Owen said in part:
To recognize the right of the legislature of this State to say that
certain conditions shall operate as an assignment of that cause of
action, or that it shall inure to the benefit of any except those specified
by the law of Michigan, is to ascribe to the legislature of this State
extraterritorial power. To apply the provisions of the workmen’s
compensation act to the present cause of action is to take away from
some of the beneficiaries of that cause of action the benefits thereof
and confer them upon another. Neither the legislature nor the courts
of this State have power to interfere with a cause of action created
by the laws of a sister State.
W orkmen’s Compensation — E xtraterritoriality — Compensa
A ct P art of Contract of E mployment—Crane v. Leonard ,
tion
Crossette & R iley et al ., Supreme Court of Michigan (June 6 , 1921),
183 'Northwestern Reporter , page 20If,.—George M. Crane was em
ployed by the defendant company, a corporation organized under the
laws of Ohio and authorized to do business in the State of Michigan,
to travel with shipments of produce sent by his employer in inter
284
TEXT AND SUMMARIES OF DECISIONS.
state commerce. On December 11,1919, Crane left Greenville, Michi
gan, with a shipment of potatoes destined to Chicago, Illinois, for the
purpose of keeping up a fire to prevent freezing. On the morning
of December 13, he was found in the car with his skull badly crushed.
The evidence was convincing that he received his injuries in the
State of Illinois. The compensation board awarded compensation to
the widow for the death on the theory that the statute of Michigan
applied whether the death occurred within or without the State. The
defendants appealed from the decision of the board, but the supreme
court affirmed the award, giving as its reason that “ the contract of
employment was a Michigan contract, and the workmen’s compensa
tion act became and was a part of it.” The court, speaking through
Judge Fellows, continued:
Both parties agreed to be bound by its terms. The contract was to
be performed within and without the State. Deceased met his death
within the ambit of his employment. The rights, being contractual,
accompanied the employee wherever he went within the ambit of his
employment. This construction is within the legislative intent when
we consider the' purposes of the act. And this is the construction it
must receive at our hands.
W orkmen’s Compensation—H azardous E mployment—Common
H azarey—I llinois Publishing <& Printing Go. v. Industrial Commis
sion et al ., Supreme Court of Illinois (October 22, 1921), 132 N orth
eastern Reporter, page 511 .—Phillip A. Coates, deceased^ was em
ployed by the Illinois Publishing & Printing Co. as an advertising
solicitor. He used his own automobile, going from place to place in
the city of Chicago. He was paid $50 a week and allowed an expense
account, including a charge for automobile transportation. On Octo
ber 21, 1919, he started to make his calls after receiving directions
from the advertising manager to call on certain prospects. While he
Avas driving on the public streets of Chicago he was killed in a colli
sion between his own car, driven by himself, and another car driven
by Abraham Eubenstein. Compensation was claimed and awarded.
The award was affirmed in the circuit court, and on appeal to the
supreme court the award was again upheld. The supreme court based
its decision on paragraph 8, section 3, of the workmen’s compensation
act of 1919. This section provides that the provisions of the act
shall apply automatically and without election to all employers and
their employees engaged in any of the enterprises or businesses which
are declared by the act to be extrahazardous. The printing company
is engaged in an enterprise that is declared to be extrahazardous.
The company contends that the only employees covered by the act are
those directly exposed to the hazards peculiar to the enterprise and
WORKMENS COMPENSATION.
285
that it does not extend to salesmen who are not exposed to special
hazards. The contention in favor of upholding the award is that if
the industry is covered by the terms of a compulsory compensation
law based upon a hazardous classification, it is covered as to all the
employees therein, regardless of whether or not they are actually
exposed to the particular hazard of the business. Judge Thompson
upheld this latter view in his decision, which is in part as follows:
This compulsory compensation act is general in its application and
embraces all employers and their employees engaged in businesses
or enterprises declared by the statute to be extrahazardous. The
language of the act is clear and is not open to construction.
The theory and purpose of workmen’s compensation acts are to
provide speedy and equitable relief in case of injury to those exposed
to the peculiar hazards of certain businesses and enterprises gen
erally known to be hazardous, and at first thought it seems arbitrary
and unreasonable to extend the protection of the act to that group of
employees of a given industry that is not exposed to the hazards
peculiar to the industry. On the other hand, how difficult of admin
istration the act becomes when the courts must determine in each
case which employee is and which employee is not exposed to the
hazards of the business! In the case at bar it was the business of the
employer that brought deceased to the place where he was killed,
ancl the work in which he was engaged was just as essential to the
operation .of the employer’s business as the work of the linotype
operator or the pressmen. The authority of the State to classify
employees in groups identified by the business of the employer,
without regard to whether the employee is exposed to the special
hazards of the employer’s business, has been upheld by the Supreme
Court of the United States.
W o r k m e n ’s C o m p e n s a t io n — H a za r d o u s E m p l o y m e n t — C o n s t it u
C
E
— Europe v . Addison
Amusements (Inc.) et al ., Court of Appeals of New Y ork (A pril
19 , 1921) i 131 Northeastern Reporter, page 750..—The Addison
t io n a l it y
of
l a s s if ic a t io n
of
m ploym ents
Amusements (Inc.) was a company formed for the purpose of
supplying engagements for Europe’s Band. The band was com
posed of 65 pieces and had 4 or more workmen regularly accom
panying the band. Lieutenant James R. Europe was a musical
composer, director, and orchestra leader. He was employed with the
band. During an intermission in the program of a concert on May
9, 1919, in the city of Boston, Europe was stabbed and killed by a
drummer of the band. The industrial commission made an*award
to his widow Willie A. Europe. The employer and insurer appealed,
but the appellate division and later the court of appeals affirmed
the award. The basis for the allowance is section 2, second group
45, of the workmen’s compensation law, which reads as follows:
286
TEXT AND SUMMARIES OF DECISIONS.
S
2. Application. Compensation provided for in this
chapter shall be payable for injuries sustained or death incurred by
employees engaged in the following hazardous employments:
e c t io n
Group —All other employments not hereinbefore enumerated
carried on by any person, firm, or corporation in which there are
engaged or employed four or more workmen or operatives regularly,
in the same business or in or about the same establishment, either
upon the premises or at the plant or away from the plant of the
employer, under any contract of hire, express or implied, oral or
written, except farm laborers and domestic servants.
James R. Europe, although not himself engaged in hazardous
work, was engaged in a business classified by this law as a hazardous
employment. By subdivision 4, section 3, “ employee ” means—
A person engaged in one of the occupations enumerated in section
2, or who is in the service of an employer whose principal business
is that of carrying on or conducting a hazardous employment upon
the premises or at the plant, or in the course of his employment away
from the plant of his employer; and shall not include farm laborers
or domestic servants.
Judge Crane delivered the opinion of the court of appeals, from
which the following quotations are taken:
Group 45 as above quoted, was added by the Laws of 1918, c. 634,
paragraph 2. The legislature classified as hazardous employments
all those occupations in which there were regularly engaged four or
more workmen or operatives. It covered employments not speci
fied in the other subdivisions. No doubt it was considered a risk to
be in an employment where four or more manual laborers or opera
tives were engaged.
Europe, however, was an employee within the meaning of section
3, subdivision 4, employed in a business or enterprise classified as
hazardous, because it employed regularly four workmen or opera
tives.
Why the legislature should have extended by the second group of
subdivision 45 the hazardous employments to any employment hav
ing four workmen or operatives is not for us to say. The courts, in
construing statutes, are not concerned with the wisdom of the legis
lation. (Wilson v. C. Dorflinger & Sons, 218, N. Y. 84, 86, 112 N.
E. 567 [Bui. No. 224, p. 282].)
We do not think, however, that the legislature has exceeded its
powers of classification by this extension of hazardous employment.
It may be, as above intimated, that a business not ordinarily hazard
ous becomes such at times when manual work is done or machinery
operated in connection with its main purpose.
W o r k m e n ’s
C o m p e n s a t io n — H a za r d o u s
E m plo ym ent— D epend
—E ast Si. Louis Board
of Education v. Industrial Commission, Supreme Court of Illinois
(A pril 21, 1921), 1S1 Northeastern Reporter, page 123— Robert A.
ency—
D e a t h o f C l a i m a n t — V ested R ig h t s
Paschal was janitor of a school in the district named. While in the
287
WORKMEN’s COMPENSATION.
discharge of his duties, washing windows on the second floor, he
fell to the ground, receiving injuries which resulted in his death the
same day, October 27, 1917. The school was heated by steam gener
ated from a boiler. This boiler was subject to city and insurance
inspection, which fact was relied on to bring the employment under
the compensation law. Paschal was his wife’s sole support. She
made demand for compensation but died on October 16, 1919, before
the case was settled. Her administrator was awarded compensation
for the interval between the death of the husband and the wife. The
circuit court sustained the industrial commission and the case was
brought to the supreme courtly writ of error, and again affirmed.
This court followed the reasoning in the case of Hahnemann Hos
pital v. Industrial Board, 282 111. 316, 118 N. E. 767 (Bui. No.
258, p. 188), holding that the municipal regulations for the inspec
tion of the boilers brought this employment under subsection 8 of
section 3 of the workmen’s compensation act.
The court also held:
The workmen’s compensation act is intended for the benefit of
dependents, and the dependency of a wife is presumed. Dependency
and the award are determined by section 7 of the statute, and the
extinguishment of the award by the death of the beneficiary, under
section 21, is subject to the provisions of section 7, which deter
mines the right, and should not be construed as retroactive or as
abating the rights given under section 7, but only as abating the
right to receive the payments due after the death of the beneficiary.
Under statutes worded similarly to the one we are here construing,
it has been held that the right to compensation conferred upon the
dependents of a deceased workman is a right which vests in the de
pendent and is transmitted to his legal representatives on his death,
notwithstanding that the dependent has died before an award or
even without having made a claim for it.
The right to receive compensation was fixed as of the time of the
employee’s death, and we think a fair reading of section 21, includ
ing the proviso, justifies the conclusion that the death of the bene
ficiary stops any further right to payment but it is not retroactive
so as to extinguish the right to receive payments for the period from
the date of the injured employee’s death until the beneficiary’s death.
The fact that there may or may not have been an award at the time
of her death is an incident which does not decide whether she was
entitled to compensation. The proviso in section 7 shows clearly
that the right to go forward with the proceeding and receive com
pensation under the application, under the circumstances mentioned
in the proviso, continues after the death of the beneficiary.
W o r k m e n ’s C o m p e n s a t i o n — H a z a r d o u s E m p l o y m e n t — P o w e r o f
C o m m i s s i o n —State v . E yres Storage & D istributing Go Supreme
.,
Court of Washington (M ay 23, 1921), 198 Pacific Reporter, page
TEXT AND SUMMARIES GOT DECISIONS.
390 .—This action was brought by the industrial insurance commis
sion to recover from the defendant the contribution to the accident
fund provided for in the workmen’s compensation act. The commis
sion, after notice published as required by law and a hearing, had
made an order that the business of storage and wholesale warehouse
was extrahazardous. The court found that the Eyres Storage & Dis
tributing Co. was engaged in operating a general storage business
and that said business was not extrahazardous in character under
the workmen’s compensation act and that the commission’s order was
null and void. The State appealed from this decision, but the su
preme court affirmed the action of thj lower court. The act of 1911
(section 6604-2, Rev. Code) is in part as follows:
There is a hazard in all employment, but certain employments
have come to be, and to be recognized as being inherently constantly
dangerous. This act is intended to apply to all such inherently haz
ardous works and occupations, and it is the purpose to embrace all
of them which are within the legislative jurisdiction of the State
in the following enumeration, and they are intended to be embraced
within the term “ extrahazardous ” wherever used in this act, to wit:
* * * If there be or arise any extrahazardous occupation or work
other than those hereinabove enumerated, it shall come under this
act, and its rate of contribution to the accident fund hereinafter es
tablished shall be, until fixed by legislation, determined by the de
partment hereinafter created, upon the basis of the relation which
the risk involved bears to the risks classified in section 660T-4.
An amendment of 1919 reads:
The commission shall have power * * * to declare any ex
trahazardous occupation or work to be under this act.
The court, through Judge Mitchell, declared that if the legislature
intended that the commission should have the power they seek, its
“ language should have been that the commission shall have power to
determine any employment not plainly extrahazardous to be extrahazardous, in addition to the power to declare an extrahazardous
work to be under the act.” The court said:
Manifestly, the purpose of the amendment of 1919 was to place or
establish the power in the commission to declare any such plainly
extrahazardous occupation or work to be under the act, but not the
power to declare or determine any employment not enumerated in the
statute as extrahazardous, and not plainly extrahazardous to be ex
trahazardous, in addition to the power to declare it to be under the
act.
The legislature of 1921 specificaUy includes warehousing in the list
of employments covered by the act.
W
o r k m e n ’s
a n d in
C o m p e n s a t io n — I n j u r y — A c c id e n t — A r is in g O u t o f
C o u r s e o f E m p l o y m e n t — P r e e x i s t i n g C o n d i t i o n — Patrick
v. J. B . H am Go. et al.. Supreme Judicial Court of Maine (January
w o r k m e n 's c o m pen sa tio n *
289
18,1921), 111 A tlantic Reporter, page 912.—Patrick was engaged as
an employee of the defendant, in loading grain into a box car. The
grain was contained in sacks each containing 100 pounds, which were
brought into the car, two at a time, on a truck by a fellow em
ployee named Bailey. After lunch Patrick and Bailey lifted two
bags from the truck and stowed them in the car. Each time
Patrick lifted he lurched a little against the bag. When he at
tempted to aid Bailey unload the second truck he was unable to do so,
but fell across the bag. Bailey and some other men removed him to
the storehouse, where he became unconscious. He later died at a
hospital about 10 o’clock the same evening. The doctor declared
that the cause of the death was cerebral hemorrhage. The indus
trial accident commission allowed Patrick’s widow an award of com
pensation under the workmen's compensation act (Bev. St., ch. 50),
and the employer appealed on the ground that Patrick did not die
as the result of an accident. The supreme court, however, affirmed
the decision allowing the widow an award, saying, in part:
The chairman found from facts proved, and inferences from facts
proved, that the decedent's death was due to personal injury by acci
dent arising out of and in course of his employment.
We are asked to reverse the decision of the commission because, as
defendant’s counsel says, “ there is not even a scintilla of evidence to
support its finding.” We think there was sufficient evidence, though
slight, from the very nature of the case, to support the finding, and
that the inference of death from accidental cause was reasonable and
justifiable.
The petitioner claimed that Patrick’s death was due to injury
resulting from accident occurring while decedent was engaged in
lifting bags of grain. Appellant contended that there was no acci
dent, but that decedent died from natural causes.
That Patrick was suffering from diseased arteries predisposing
him to cerebral hemorrhage is of no consequence in the case. That
he might have died or would have died in his bed of cerebral hemor
rhage in a year or a week is immaterial.
The question before the commission was whether the work that
he was doing on the afternoon of October 13, 1919, caused the cere
bral hemorrhage to then occur. If so, we think it was an accident
arising out of and in the course of his employment.
This was a question of fact. The industrial accident commission,
through its chairman, has decided this question of fact in favor of
the claimant. The finding is, we believe, supported by rational and
natural inferences from proved facts.
Decree affirmed.
W o r k m e n ’s
C o m p e n s a t io n — I n j u r y — A c c id e n t — C a u s a l
Con
—FinTc v. Sheldon Axle
dc Spring Co., Supreme Court of Pennsylvania (M ay 9, 1921), 113
Atlantic Reporter, page 666.—Devi S. Fink, an employee of the de
fendant company, stated that as he approached a pair of swinging
n e c t io n —
P r e e x is t in g C o n d it io n — E v id e n c e
290
TEXT AND SUMMARIES OF DECISIONS.
doors in defendant’s establishment, one of them was opened, knock
ing him down and causing paralysis of one side of the body, for which
he brings the present action. It appeared that plaintiff had diabetes
before the accident and suffered from arteriosclerosis. The lower
court approved a decision of the board disallowing compensation, its
referee having found no proof that the claimant’s present condition
was due to the alleged injury. This was affirmed by the supreme
court, Judge Moschzisker, speaking for the court, saying in part:
Both the courts and the administrative authorities have, very prop
erly, been most liberal in construing the workmen’s compensation law
(Pa. St. 1920, sec. 21916 et seq.), holding that claims thereunder
need not be made out with the same exactness of proof required in
suits at common law. It must be understood, however, that when,
in cases of this class, expert testimony is relied on to show the con
nection between an alleged cause and a certain result, it is not enough
for the doctors to say simply that the ailment in question might have
resulted from the assigned cause, or that the one could have brought
about the other; they must go further and at least testify that, taking
into consideration all the attending data, it is their professional
opinion the result in question most probably came from the cause
alleged.
W o r k m e n ’ s C o m p e n s a t io n — I n j u r y — A c c id e n t — H e a r t
D is
A m — U tilities Goal Co, v. H err et al ., A p
pellate Court of Indiana ( October 4, 1921), 132 Northeastern R e
porter, page 262 ,—Eli A. Herr was employed by the.Utilities Coal
ease—
I n h a l in g I m p u r e
Co. as a miner. On June 26,1920, Herr and other miners went down
into the mine as usual, but found that it was full of smoke produced
by firing explosives early that morning for the purpose of loosening
the coal. The miners returned to the top of the mine as they could
not stay below with comfort or safety. Herr came up with the other
miners, walked a short distance to a stairway, sat down on one of the
steps and then fell over, dead. An autopsy disclosed the fact that
decedent had been afflicted with a serious chronic heart disease. An
award of compensation was made to Isabella Herr by the industrial
board. The employer appealed, but the award was affirmed by the
appellate court, on the grounds that even though two physicians
testify that death resulted from heart disease and not as a result of
inhaling the impure air of the mine, an occurrence which merely
hastens an existing disease to its final culmination will be deemed an
accident within the meaning of the workmen’s compensation act; and
where such occurrence arises out of and in the course of an employ
ment compensation will be awarded. It was within the province of
the industrial board to draw the inference that the elements in the
air of the mines which caused other workmen to become weak, dizzy,
291
WORKMEN ’s COMPENSATION.
blind, to have rapid pulsations, headache, and shortness of breath
so affected the decedent that death followed.
W o r k m e n ’s
C o m p e n s a t io n — I n j u r y — A c c id e n t — O c c u p a t io n a l
D
— A
E
—W il
liams v. Missouri Bridge & Iron Go. et al ., Supreme Court of M ichi
gan {December 21,1920) , 180 N orthwestern R eporter , page 857 .—The
Missouri Bridge & Iron Co. was engaged in constructing a bridge
D is e a s e — C a is s o n
is e a s e
r is in g
out
of
m ploym ent
over Rouge River for the Michigan Central Railroad Co., and in con
structing the concrete piers it was necessary to use a caisson. Claude
Williams was employed by the bridge company to work in the cais
son, which extended some 70 or 80 feet below the surface and sub
jected workmen in it to an atmospheric pressure of from 37 to 40
pounds. When the workmen left the caisson they climbed a ladder
into an air-tight locker where the air pressure was reduced at the
rate of 1 pound per minute. When the air pressure is reduced too
quickly the men become affected with “ caisson sickness,” which mani
fests itself by a dizziness accompanied with partial paralysis of the
limbs. Early one morning Williams and other workmen entered
the air locker from the caisson, and another employee proceeded to
reduce the air pressure. Instead, however, of reducing it at the rate
of 1 pound per minute, he permitted air to escape at the rate of 2
pounds per minute. The result was that Williams became afflicted
with the “ caisson disease ” and fell from the ladder upon the head
of the man below him, striking his chest and stomach and later strik
ing his head against the side of the shaft, receiving fatal injuries.
The employer appealed from an award of compensation to Williams’
widow on the ground that although the fall and death were caused
by accidental means, they were the result of a conditions peculiar
to the industry in which he was engaged.” It was also claimed
that the injury was the result of an occupational disease. The court
after considering both points affirmed the award in favor of the
widow, saying in part:
Effort is made to classify the present case among those cases, to
which Yan Gorder v. Packard Motor Co., 195 Mich. 588, 162 N. W.
107, belong. It is also sought to bring it within the “ occupational
disease ” cases, of which the lead poisoning case of Adams v . Acme
White Lead Co., 182 Mich. 164,148 N. W. 485, is an example. We are
not persuaded that the present case falls within the first class men
tioned.
The reason why recovery has been denied in the first class named
is because of some inherent physical defect which was the proximate
cause of the injury and which had no causal connection with the em
ployment. Such, however, was not the situation in the present case.
The thing which caused the death of plaintiff’s intestate was not
101296°—22-----20
TEXT AND SUMMABIES OF DECISIONS.
292
inherent. It was a condition which came on suddenly and was caused
by the inattention and neglect of a coemployee in permitting the air
to escape from the locker too rapidly. The locker was decompressed
at the rate of two pounds a minute, where it should have been done
at the rate of one pound a minute. This produced in Williams what
is termed “ caisson disease.” Herein lies the distinction between this
and the Van Gorder case. In that case epilepsy caused the fall. In
the present case caisson disease caused it. The epilepsy had no
causal connection with the employment. The caisson disease was
directly due to it It, therefore, arose out of the employment
Neitner are we persuaded that the case should be classed among the
occupational diseases. It is true the testimony establishes the fact
that caisson disease develops by the slow process, the same as occupa
tional diseases usually do. Had Williams contracted caisson dis
ease in this manner and his injury and death had resulted therefrom,
the argument of counsel would have great force, but the caisson
disease, which was responsible for this accident, developed in a few
moments as a result of the inattention and neglect of another. In
this inattention and neglect we find the unusual thing—the happen
ing—the accident.
Being impressed that the board reached the right conclusion, their
award will be affirmed, with costs to the plaintiff.
W o r k m e n ’ s C o m p e n s a t io n — A c c id e n t — O c c u p a t io n a l D is e a s e — >
P
D
— Standard
Cabinet Co. v. Landgrave, A ppellate Court of Indiana (November
7 , 1921), 182 Northeastern R eporter , page 661.—Philip D. Land
“ H o u s e m a i d ’s K n e e ” — P e r m a n e n t
a r t ia l
is a b il it y
grave Was a carpenter and had been in the employ of the Standard
Cabinet Co. for about 19 years as a general carpenter and repair
man. In April, 1919, he was sent to the home of the president of
the appellant company to scrape and polish floors. After working
there 3 or 4 days his knee became very painful and on April 23, 1919,
after working 7 days, he had a chill and had to go home. He was
wholly disabled from work for about 20 weeks. In proceedings for
compensation under the workmen’s compensation act his physician
testified that he treated his knee for bursitis, which is sometimes
called “ housemaid’s knee,” a name given to it because it is an injury
common to housemaids, resulting from being on their knees when
scrubbing floors. An award was granted. An appeal was had, which
was reversed and remanded for further-proceedings in an opinion re
ported in 128 N. E. 358. A new award was granted from which an
appeal was again taken. This award was reversed with instructions
to the industrial board to modify its award in harmony with this
opinion. It was reversed in part because the board erroneously
awarded compensation for 20 weeks for the time which he was to
tally disabled for work and 20 weeks for the permanent impairment
of his right leg. The contention of the company that the award for
WORKMEN ?S COMPENSATION.
2$3
permanent partial disability should he “ in lieu of all other com
pensation” was upheld as the positive mandate of the law. The re
covery for permanent partial disability was affirmed in an opinion
written by Judge Nichols, from which the following is quoted:
That his injury was caused by being on his knees and scraping
floors is a reasonable inference from the evidence, and justifies the
finding of the industrial board that on April 23,1919, appellee received
a personal injury by accident arising out of and in the course of his
employment. Appellant contends that appellee is suffering from an
occupational disease, and that his ailment can not be classed as an
injury resulting from an accident. But, we need not consider whether
such disease is or is not an occupational disease, for if it be conceded
that it is in the nature of such, compensation may nevertheless be
allowed, if it is contracted under such conditions as to constitute an
accidental injury, as found in this case. It has been repeatedly held
by this court that the words “ by accident arising out of and in the
course of employment,” as used in the workmen’s compensation act,
should be liberally construed in harmony with the humane purposes
of the act, and that the word “ accident ” means an unlooked for
mishap, or untoward event, not expected or designed. It can not be
contended that the injury suffered by the appellee was other than
an untoward event. For 19 years his occupation as a carpenter in
the employ of appellant had not developed the disease. The most
of his work had been, not scraping floors, but general carpentering
and repairing, but only a few days before he was finally disabled,
his knee began to pain. He had no warning of the approach of his
disability, and no knowledge that he had bursitis till his physician
informed him.
W o r k m e n ’s
C o m p e n s a t io n — I n j u r y — A c c id e n t — O c c u p a t io n a l
I
A
— Prouse v . Industrial Commission
of Colorado et al ., Supreme Court of Colorado (December 6 , 1920),
191 Pacific R eporter , page 625 .—George Prouse was employed as a
D is e a s e — I n h a l i n g
mpure
ir
miner in a coal mine of the Rocky Mountain Fuel Co. During the
course of their duties Prouse and some other miners broke into an old
entry, from which came foul air and dioxide gas. This bad air
flooded the mine and remained there several weeks. This happened
on the lath day of December, and on January 1 Prouse became sick
and called in his physician, who advised him to lay off work for a while,
but he continued to work and became much worse until about January
17, when he was removed to a hospital, where he died from septi
caemia or pyaemia, which are forms of blood poisoning. The testi
mony of the doctors seems to indicate that the bad air in the mine
so weakened Prouse’s condition as to render him highly susceptible
to infection and was the cause of his death. The industrial commis
sion refused to allow his widow an award of compensation, and on
appeal the district court confirmed this decision. She brought a writ
294
TEXT AND SUMMARIES OE DECISIONS.
of error to the supreme court, but her claim was again denied and
the decision of the commission affirmed, two judges dissenting. The
opinion of the majority of the court was in part as follows:
There are several reasons why this is not within the terms of the
statute above quoted: First. An accident, under the various work
men’s compensation acts, must be traceable to a definite time, place,
and cause. (Mattheissen etc. Co. v. Industrial Board, 284 111. 378,
120 N. E. 249 [Bui. No. 258, p. 159].) The occurrence shown in the
evidence is not traceable to a definite time. Second. The occur
rence constituting an accident must be unexpected. (1 Corp. Jur. 39;
Mattheissen v. Industrial Board, supra.) In the present case it was
not expected. Third. The occurrence must be the approximate cause
of the death or of the disease which produced the death. This oc
currence was not.
As to the first point: In the present case the time is indefinite. A
continued working in bad air for somewhere between two weeks and
two months depleted the system, and rendered it susceptible to a dis
ease or unable to resist a disease, the time, place, or manner of con
tracting which is not shown by the evidence, nor is anything shown
from which it can be determined.
Upon the second point: An accident must be unexpected. Bad air,
continued from day to day, is expected. The doctor expected it to
continue and advised a lay-off. Prouse knew it was bad, knew it
was continuing, or he could not have told the doctor about it. Prouse
continued to labor in the gas-contaminated air for some weeks, grow
ing constantly worse, so his doctor testified, because of the bad air.
This is no accident. Every definition or attempted definition of ac
cident includes the element of unexpectedness.
As to the third point: Prouse did not die of the poisonous gas; he
died of septicaemia or pyaemia, a disease caused by a definite infec
tion by a germ, which has been isolated by the bacteriologists and
classified. The only connection that the gas and bad air had with
this disease, according to the undisputed testimony of the physicians,
was that it depleted the patient’s system and rendered him more sus
ceptible or less resistant to it. They would not say that he would
not have contracted the disease if he had not worked in the gas, or
would not have died of it, nor do they express such opinions.
The judgment of the district court is affirmed.
Chief Justice Garrigues dissented without an opinion.
A strong dissenting opinion was rendered by Justice Scott, who
said in part:
I must earnestly dissent from the opinion of the majority.
A consideration of the majority opinion will disclose that the con
clusion is based solely upon the doctrine of assumed risk. Prouse
went back to work after the gas was discovered, which act was his
own fault, and by which he assumed the risk, and should not recover.
Such is the reasoning, and the opinion not only ignores the command
of the statute in this respect, but fails to comprehend the principle
and purpose of the legislative acts of the character involved.
It is as certain as human testimony can make it, positive and medi
cal expert, that Prouse died of a disease directly or indirectly due to
w o r k m e n ’s c o m p e n s a t io n .
295
the inhalation of gas and foul air while working in the mine of the
defendant company. It is held by the great weight of judicial au
thority that this constitutes an accident within the meaning of work
men’s compensation laws, and entitles the workman or his depend
ents to an award of compensation. Simple justice and sound reason
support this view.
W o r k m e n ’s C o m p e n s a t io n —
I n ju ry —
A c c i d e n t .—
P r o x im a t e
—Carroll et al. v.
Industrial Commission of Colorado et al ., Supreme Court of Colorado
{December 6 , 1920), 195 Pacific R eporter , page 1097 .—Carroll was
employed in an alfalfa mill. His duties were to pitch hay in the hay
shed, which was an inclosed building. The pitching of the hay was
hard physical labor. The air in which Carroll had to work was
heavily laden with dust stirred up by the handling of hay, alfalfa
meal, and machinery. He had organic heart trouble. The strenu
ous exertion of his work in the dust-laden atmosphere brought
on an attack of heart trouble causing his instaryt death. His widow
and minor children brought proceedings for compensation but the
industrial commission refused to grant an award on the ground
that Carroll’s death had not been the proximate result of an “ acci
dent. ” They appealed, but the district court affirmed the decision,
and they appealed again. In reversing the decision and ordering
the district court to order the industrial commission to grant the
plaintiff an award the court said in part:
The proximate cause of the death of Joseph Carroll was the con
dition of the air in his place of employment, or the fact that it was
dust laden. The question to be determined now takes this form:
Under the foregoing facts, must it be held, as a matter of law, that
the death was “ accidentally sustained ” or resulted from an “ injury
proximately caused by accident ” ?
The dust-laden condition of the air was the “ proximate cause ” of
the death, because had it not been for such condition the death would
not have occurred at the time. Such condition of the air which
decedent was required to breathe brought on an attack of heart
trouble, resulting in death. The dust-laden condition of the air was
the cause, and the fatal attack of heart failure was the result. The
result was unexpected and unintended, and therefore an “ accident. ”
The term “ accident ” is often used “ to denote any unintended and
unexpected loss or hurt apart from its cause. ” (i C. J. 395.)
Our statute uses the expressions “ personal injury or death ac
cidentally sustained” and “ injury proximately caused by accident”
in providing for what injuries or deaths compensation shall be al
lowed. By the term “ injury ” is meant, not only an injury the means
or cause of which is an accident, but also an injury which is itself an
accident. The expressions above quoted are the equivalent of “ in
jury by accident,” which is frequently used in the decisions. The
word “ by ” may mean “ through the means, act, or instrumentality
of. ” (9 C. J. 1109.) Therefore, “ injury by accident ” and “ injury
C a u s e — H e a r t D is e a s e C a u s e d b y D u s t L a d e n A ir
TEXT AND SUUMABIES OF DECISIONS.
zm
caused by accident ” are feraas or expressions which can be used in
terchangeably.
For the reasons above indicated, we are of the opinion that the
record -shows that the death of Joseph Carroll resulted from an “ in
jury proximately caused by accident, ” and that therefore his depend
ents are entitled to compensation.
The judgment of the district court is reversed, and the cause re
manded with directions to the district court to remand the case to the
industrial commission, with directions to enter an award allowing
compensation to the claimants.
Reversed.
W o r k m e n ’s C o m p e n s a t io n — I n j u r y
A r is in g
in
C o u rse
of
E m
Industrial Commission of Ohio v. W eigandt,
Supreme Court of Ohio (January 18, 1921), 130 Northeastern R e
porter, page 38.—Weigandt was an employee of the Sidney Tool
plo ym en t
— S c u f f l in g —
Co. He had arrived at his employer’s plant and punched the time
clock. While on his way to his work he passed two other employees
who were playfully Scuffling for the possession of a file. As Weigandt
came near them the file flew off the handle and struck him in liis left
eye, destroying its sight. He brought proceedings for compensation
under the workmen’s compensation act, but his claim was rejected
by the industrial commission on the ground that his injury did not
arise in the course of his employment. He appealed to the court
of common pleas, where his case was heard before a jury and a verdict
rendered in his favor, which on appeal was affirmed by the court of
appeals. The employers appealed to the Supreme Court of the
State, which affirmed the judgment in favor of Weigandt. The
opinion in part is as follows :
The decisive question is whether the facts, which are substantially
undisputed, bring the case within the workmen’s compensation law.
Was the defendant in error injured “ in the course of his employ
ment,” within its meaning ?
There has been divergence of judicial decision concerning the
scope of the quoted phrase and its application to different circum
stances. The Ohio law was passed pursuant to section 35, article 2
of the constitution, adopted in September, 1912. The act now in
force, under which defendant in error claims (103 O. L. 72-92),
was passed pursuant to the grant of power contained in the above
provision of the constitution, and provides (sec. 1465-68, General
Code) for compensation to “ every employee * * * who is in
jured * * * in the course of employment.”
It will be noted that the language of the amended section of the
constitution is “ for * * * injuries * * * occasioned in the
course of such workmen’s employment.” The language of the statute
is “ every employee * * * who is injured * * * in the
course of employment.” Of course the legislature would not have
the power to make any broader provision than the constitution
authorized it to make.
297
w o r k m e n 's c o m p e n s a t io n .
The rule is familiar that, where the language will permit, such con
struction will be given to a statute as will not render it obnoxious to
the State or Federal Constitution. We think it clear that the framers
of the constitution intended to provide that the employment should
have some causal connection, directly or indirectly, with the injury,
either through its activities, its conditions, or its environments. We
are likewise impressed that this law is intended to provide an in
expensive, humane remedy as a substitute for outworn and unsatis
factory methods, and it should be liberally construed in favor of
employees. Measured by these considerations, how stands this case ?
Were the employer and his enterprise in the line of causation? We
think they were. The claimant was in the plant of his employer,
proceeding to his machine in full compliance with his duty, when he
was injured. At the time he was engaged both parties knew and
understood the circumstances and conditions necessarily a part of
the factory life.
In this case the scuffle for the file between the other employees was
a thing not at all unlikely to occur. It was an event of the sort that
is of frequent occurrence between workmen. It must be remembered
that the claim or award is not based on any neglect or fault of the
employer or of any of his employees. The injury in this case was
caused by an occurrence occasioned in the environment, and it was
an injury “ occasioned in the course of the employment ” and because
of the employment.
For the reasons given, the judgment in this case will be affirmed.
W o r k m e n ’s C o m p e n s a t i o n — I n j u r y A r i s i n g O u t o f a n d i n C o u r s e
of
E m p l o y m e n t — A c c id e n t — E v id e n c e — E p i l e p t i c
D ro w ned
in
M iller et al. v. B eil et al ., A ppellate Court of
Indiana (January 28 , 1921 ), 129 Northeastern R eporter , page lfi3 .—
W ater
T ank—
Miller and Young were engaged in the business of threshing grain
and used steam power to operate their machinery. Carl Beil was
employed by them to haul water from a near-by reservoir in a water
tank drawn by horses. Beil was known to be subject to epileptic fits.
While filling the tank from the reservoir with a hose Beil fell into
the opening in the tank and was drowned? It was not known exactly
what caused Beil to fall into the tank; however, the industrial board
held that Beil died as the result of an accident arising out of and in
the course of the employment and allowed an award of compensa
tion. The employers appealed on the ground that Beil’s death was
not the result of an accident. In affirming the award the court said
in part:
Appellants have assigned as error that the findings and award are
not sustained by sufficient evidence, and are contrary to law. It is
urged by appellants that there is no evidence to show that the death
of the employee was the result of an injury arising out of his em
ployment ; but that u from all the evidence in the case it appears
conclusively that the death was the result of a disease to which de
TEXT AND SUMMARIES OR DECISIONS.
298
ceased was subject” ; and that under clause (d) of section 76 of the
workmen’s compensation act (Acts 1915, p . 416) the dependents are
not entitled to compensation.
There is no direct evidence that appellee’s decedent fell in the
tank as a result of an epileptic fit, and we can not say that the in
dustrial board found that appellee’s decedent, at the time of his
death, fell as a result of the disease of epilepsy. There is authority,
however, which would support the award even if the board had so
found. (Carroll v. What Cheer Stables Co., 38 R. I., 421, 96 Atl.
208; Vulcan Detinning Co. v. Industrial Commission, 295 111. 141,
128 N. E. 917.) The theory of the court in each of these decisions is
that an epileptic fit might not have caused injury or death, except
for the fact that the work of the employee required him, at the time,
to be at the particular place where he fell. It is stated by the court
in the Wicks case, above cited, that—
“An accident none the less arises out of the employment because
its remote cause is to be found in the employee’s physical condition.”
The .question as to whether or not the death of the employee was
the result of an accident arising out of his employment was a ques
tion of fact for the industrial board. (American Hominy Co. v .
Davis, 126 N. E. 703.) There was some evidence to support the
finding.
Judgment affirmed.
W o r k m e n ’s
C o urse
C o m p e n s a t io n — I n j u r y
E m p l o y m e n t — A c c id e n t a l
A r is in g
S h o o t in g
Out
of
and
in
E m plo yer—
General Accident , Fire and L ife Assurance Corporation et al. v.
Industrial Accident Commission et al ., Supreme Court of California
{August 15 , 1921), 200 Pacific R eporter , page 1^19.—Samuel Shrout
of
by
brought proceedings under the workmen’s compensation act because
of injuries received while in the employment of Fred Barr. He was
opposed by his employer and the insurance carrier. Shrout was
employed as an automobile tire repairer by Barr in the latter’s
garage. During the day upon which Shrout was injured, two
strangers drove their automobile into Barr’s garage and requested
him to supply them with gasoline. A dispute arose as to the method
of supply. One of the strangers in an attempted assault on Barr
was shot at by Barr. The bullet missed the stranger but hit Shrout,
who was working at the other end of the garage, and who was not
taking part in the altercation. Shrout was awarded compensation
and the defendants took the decision of the commission to the
supreme court for review. That court affirmed the award, saying
through Judge Shurtleff:
That the accident occurred in the course of the employment is
obvious and does not admit of discussion. It happened while Shrout
was actually engaged in performing work usual to and included
in his employment.
The serious question presented, and which is debatable, is: Was
the injury suffered by Shrout one “ arising out of the employment ”?
w o r k m e n ’s c o m p e n s a t io n .
299
Tlie act does not define this phrase, and no court has attempted to
do so. It seems to be universally conceded that no comprehensive
definition or unerring guide can be formulated which will determine
with certainty the accidents embraced within it, and that therefore
each case must be decided conformably to the specific facts it
presents.
In the present case the injury is largely, if not wholly, trace
able to the acts of the employer. The controversy in which it
was received arose out of an incident which concerned his business,
namely, an application to purchase gasoline. That it ultimately
resulted in a personal difference, or that the accident was an unusual
one, not likely to occur, does not deprive it of its business character
or establish that it did not arise out of the employment. That would,
indeed, be a severe rule to apply in a case where, as here, the injured
employee was blameless, and at the time he was injured was in his
accustomed place, pursuing his usual employment in the business of
his employer.
It is equally true that the fact that the injury to Shrout was not
an anticipated one, nor peculiar to the employment in which he was
then engaged, does not defeat his claim to compensation if otherwise
it is within the provisions of the act.
We think it can be said that Shrout was injured, not merely be
cause he happened to be in the garage at the time of the shooting,
but because he was there, regularly employed, and hence exposed
to all the dangers which might arise in the conduct and transaction
of the business of his employer, including the reasonable protection
of the latter’s property and right to transact his business in an
orderly manner.
When Barr began shooting, he voluntarily exposed Shrout as
well as all other employees to the danger of being shot, and the fact
that the injury which resulted was unintentional and purely acci
dental does not, in our opinion, prevent Shrout from recovering.
W o r k m e n ’s
C o m p e n s a t io n — I n ju r y
A r is in g
O ut
of
and
in
Stas
mos v. State Industrial Commission et al ., Supreme Court of Okla
homa (February 8, 1921), 195 Pacific Reporter, page 762 .—Adolf
C o u rse
of
E m plo y m en t — A ssa u lt
by
A s s is t a n t
F o rem a n —
Stasmos was employed as a miner by the Rock Island Coal Mining
Co. The company decided to shut down the mine, and all the miners
were notified to this effect. Stasmos along with the other miners
thereupon left his work and proceeded through the various entries
and passageways to the foot of the shaft, there to take the cage
which would take them to the surface. When Stasmos arrived at
the foot of the shaft the cage was not there. He asked Woods,
an assistant mine foreman, where the cage was, as he wanted to
go out of the mine. Woods became angry and applied an ugly
epithet to him adding that he might go up the air shaft. Upon
Stasmos resenting the insult, Woods picked up a 2 by 4 scantling
and struck him upon the head, knocking him unconscious and frac
800
TEXT AND SXJiM^MARIES o r DECISIONS,
luring his skull. Stasmos, who was completely disabled for 6 weeks
as the result of his injuries, brought proceedings for compensation
under the workmen’s compensation law, but the industrial commis
sion refused to allow him an award, declaring that his injuries were
not the result of an “ accidental personal injury, arising out of and
in the course of the employment.” Upon the employee’s appeal
the decision was reversed by the supreme court and the' ease re
manded to the industrial commission.
After stating the facts, the court quoted the section of the law
declaring the employer’s obligation to pay compensation for in
juries, and continued:
A casual reading of this section makes it fairly obvious that the
petitioner’s right to recover depends upon an affirmative answer to
two questions : (1} Were his disabilities the result of actual personal
injuries? (2) Did they arise out of and in the course of his em
ployment? It seems clear to us, in view of the rule of construction
many times announced by this and other courts, that the workmen’s
compensation law should be construed fairly, indeed, liberally, in
favor of the injured workman, that both of these questions must be
answered in the affirmative.
It is now well settled in these workmen’s compensation cases that
the fact that an injury is the result of the willful or criminal assault
of another does not prevent the injury from being accidental.
Accident in the legal signification is difficult to define. It is not
a technical legal term with a clearly defined meaning and is used
in more senses than one. [One definition is:] An event which under
the circumstances is unusual and unexpected by the person to whom
it happens. Under this definition we think the injury was “ ac
cidental” within the meaning of the statute. It was sudden and
unlooked for, and the purpose of the act is to insure the workmen
at the expense of their employers against personal injury not ex
pected or designed by the workman himself, provided such injuries
arise out of and in the course of employment.
It seems equally clear to us that the facts in this case show that
petitioner’s injury arose out of and in the course of his employ
ment. As we have seen from the brief statement of the case here
inbefore set out, the petitioner was in the act of leaving the mine
following the usual course of exit from his working place to the foot
of > shaft for the purpose of taking the cage to the top. Tom
the
Woods, the assistant foreman, was there directing the men, and
while the test of liability under the statute is not the dereliction of
the master, or that of his representative acting within the scope of
his authority, it seems to us that it was entirely proper for the
petitioner to complain to the mine foreman concerning the delay
in the arrival of the cage.
It is the decided weight of authority in Great Britain and the
United States that an assault by a third party, or an assault of the
employer arising out of and in the course of the employment, re
sulting in an injury and disability, is such an injury as comes within
the workmen’s compensation law (L. R. A. 1917B, 112* notes; Willis
v. State Industrial Commission, 78 Okl. 216, 190 Pac. 92; Willis v.
801
w o r k m e n ’s c o m p e n s a t io n .
Pilot Butte Mining Co. (Mont.), 190 Pae. 124, and many other
eases).
If we apply this test to the case at bar, it is obvious that the
State industrial commission erred in denying the petitioner com
pensation for his disabilities.
For the reasons stated, the judgment of the State industrial com
mission is reversed and the cause remanded, with directions to
proceed in accordance with the views herein expressed.
All the justices concur.
W o r k m e n ’s
C o m p e n s a t io n — I n j u r y
C o u rse o f E m plo y m e n t — A ssa u lt b y
A r is in g
F ello w
O ut
of
and
in
E m p l o y e e — D is p u t e
Payne, Director General of Railroads , v . W all, A p
pellate Court of Indiana (November 16,1921), 132 Northeastern Re
porter, page 707 .—Henry Wall was an employee of Payne. His
O v er
W ork—
work consisted of shoveling coal from a railroad car into certain
bents for use in connection with the operation of a railroad. There
were three shifts of eight hours each. Wall was preceded by one
Durham and was relieved by one Lape at 2 p. m. On the day in
question a controversy arose when Lape was going on duty and while
Wall was still in the car, as to whether each was doing his full share
of the work. Wall left the car and was filling in a card pertaining
to the work when the controversy was reopened. Both became very
angry and threats were made. Wall started to leave the premises,
and while going down a near-by stairway he was struck by a lump
of coal thrown by Lape and severely injured. An award of com
pensation was made. Defendant appealed to the appellate court, con
tending that the award was based on a mere conclusion and not the
finding of an ultimate fact, and that the evidence was insufficient
to sustain it. However, the appellate court sustained the award, on
the authority of Mueller v. Klingman, 125 N. E. 464 (Bui. No. 290,
p. 4:06).
The following is quoted from the case cited as setting forth the
rule followed by the court:
When the disagreement arises out of the employer’s work in which
two or more are engaged, and as a result of it one injures the other,
it may be inferred that the injury arose out of the employment.
W o r k m e n ’s
C o m p e n s a t io n — I n j u r y
A r is in g
O ut
of
and
in
—Knocks M etal
Package Corporation et al., Court of Appeals of New Y ork {A pril
19, 1921), 121 Northeastern Reporter, page 7%1.—Wiliam George
Knocks brought proceedings for compensation for injuries, under the
workmen’s compensation act, against his employer the defendant
C o urse
of
E m plo y m en t — A ssa u lt
by
F o rem a n
v.
302
TEXT AND SUMMARIES OF DECISIONS.
company and the insurance carrier. The claimant was an oiler in
the plant of the defendant company on June 11, 1919. On this date
a seaming* machine was running defectively because a super
abundance of oil had been supplied it. The foreman of the plant
noticed the machine, called the plaintiff and told him that he was
responsible for the machine’s defective operation. Answering the
accusation the claimant called his foreman a liar and immediately
his foreman struck plaintiff over the left eye. The blow resulted
in the total loss of useful vision of the eye. The industrial commis
sion found that the injuries sustained by the claimant were accidental
and arose out of and in the course of his employment. The case was
brought up to the appellate division which reversed the award, but
upon appeal to the court of appeals the award was affirmed, Judge
Chase saying:
Each seems, while performing his work and in discussing the em
ployer’s business, to have been equally hasty in becoming angry to
ward the other.
The claimant’s use of an irritating word in making his denial did
not, however, justify either in law or in fact an assault upon him
by the foreman. The foreman’s duty as such to exercise reasonable
discipline over the employees of the factory made possible a lack of
discretion in performing such duty. The assault by the foreman was
incidental to his employment as such. It grew out of his per
formance of his duty as foreman for the employer. It can not be
said as a matter of law or fact that the foreman who up to the mo
ment of the assault was properly engaged in the performance of his
duty to his employer at that moment abandoned his duty and in
dulged in the assault as an individual act.
The employer should be responsible for an excitable and violent
foreman in the prosecution of his duties as such, at least until there
is sufficient interruption in the performance of such duties as to
justify the conclusion that the foreman had abandoned his employ
ment and that the assault was an independent and individual act, as
distinguished from acts within the terms of his employment. There
was no intervening time between the acts and words of the assailed
and the injury in this case.
W o r k m e n ’s
C o u rse
of
C o m p e n s a t io n — I n j u r y
E m plo ym en t— B urns
A r is in g
R e c e iv e d
O ut
W h il e
of and
in
E x t in g u is h in g
Associated Employers'' Reciprocal et al. v . State Industrial
Commission et al ., Supreme Court of Oklahoma (July 12, 1921),
200 Pacific Reporter, page 17If.—The claimant, Basil D. McClain,
F ir e —
was employed by E. L. Robinson as a roustabout on an oil and gas
lease. On February 18, 1920, the claimant had been engaged in*
pulling rods from well No. 10. At noon he stopped work, ate his
midday lunch, and sat down to wait for other employees to bring him
WORKMEN’s COMPENSATION.
303
some tools, so that he could continue his work. While waiting he
dozed off to sleep. When he awakened he discovered that a fire had
developed in the grass near the well, and in an attempt to extinguish
the same he was badly burned. He was awarded compensation dur
ing disability by the State industrial commission. This was an
original action commenced in the supreme court, seeking to reverse
the award upon the ground that the award was contrary to the
evidence and the law. Judge Kennamar wrote the opinion of the
court affirming the award, which is in part as follows:
Counsel lor the petitioners in their brief filed herein contend that
the claimant is not entitled to compensation for the reason that the
claimant testified that his duties as roustabout consisted of fixing the
lines, pulling rods, fixing and starting the engine, and that his own
testimony shows that he was not acting in the course of his duties
or employment when injured. The substance of the contention is
that it was none of the duties of the claimant under his employment
to fight fire. A casual statement of the contention demonstrates the
absurdity of the contention. While it is true that he was not em
ployed to fight fire, it is obvious that he would be an unworthy
servant if he stood idly by and watched his employer’s property
destroyed by fire without making any effort to protect it.
It is undisputed in this cause that the claimant *vas on the lease,
where his duties required him to be; that the injuries of the claimant
resulted from trying to extinguish a fire that had accidentally de
veloped on the premises; and no contention is made that the injury
is the result of the willful or intentional conduct of the claimant,
and we have no hesitancy in saying that upon the facts as disclosed
by this record the award was properly made.
W o r k m e n ’s
C o u rse
of
C o m p e n s a t io n — I n j u r y
A r is in g
E m p l o y m e n t — E l e c t r o c u t io n
O ut
W h il e
of
G o in g
and
in
F rom
—Kowalek et al . v. New York Consol, R, C o C o u r t of A p
peals of New Y ork (November 16 , 1920 ), 128 Northeastern Reporter ,
page 888,—Max Gottesfeld was employed by the defendant company
W ork
as a flagman on its elevated electric railway trains. At times, as
overtime work, he performed service as a train guard. On the date
of his injuries he completed his service as a flagman and reported to
the train dispatcher for overtime work and was assigned as a guard on
a train. When he completed one trip he again reported to the train
dispatcher, but did not receive more work. He thereupon proceeded
to go to the passenger platform to take a train to his home. Tho
company permitted its employees to ride to and from work on its
trains free of charge. About 10 minutes after he left the train dis
patcher his dead body was found between the third rail and tho
running rail of the tracks. Ida Kowalek and another brought pro
ceedings for compensation for his death under the workmen’s com
304
TEXT AND SUMMARIES DP DECISIONS.
pensation law and were granted an award. Upon appeal the appel
late division unanimously affirmed the award. (179 N. Y . Supp.
637.) The employer appealed again, and the decision was reversed
and the award annulled. The opinion of the court of appeals is in
part as follows:
The death of Gottesfeld resulted from an accidental injury. In
ease the injury arose out of and in the course of the employment, the
determination of the industrial commission is right. We are thus
brought to the question whether or not, under the facts as found, the
injury arose out of and in the course of the employment. The de
cedent went, at the termination of his actual work for the day, from
the office of the train dispatcher upon the passenger platform at the
station. It is a general rule that if an employee is injured on the
premises of the employer in going, with reasonable dispatch and
method, to or from actual performance of the specific duties of the
employment, by a way provided by the employer, or reasonably used
by the employee, compensation must be awarded. The going to and
from the actual woi;k and the risk involved in it are reasonably inci
dental to the employment. The rule, however, is not applicable to
the facts in the instant case. The decedent went and was upon the
passenger platform with the intention and for the purpose of taking
a passenger train from it to his home. The company permitted him
to ride to and from his work upon the cars or trains without charge.
The contract of employment did not obligate the company to trans
port him. In enjoying or exercising the permission he adopted his
own will and choice and served his own convenience. The company
was indifferent as to the way or means by which he reached the place
where the day’s work began. It did not contract that he should ride
to and from work, or pay him for the time through which he was
riding.
W o r k m e n ’s C o m p e n s a t i o n — I n j u r y A r i s i n g O u t o f a n d i n C o u r s e
of
E m p l o y m e n t — G o in g
fro m
W ork— D ea t h
W h il e
B o a r d in g
Fisher v . Tidewater Building Co*, Supreme Court of New Jer
sey (June 7,1921) ,11 J A tlantic Reporter, page 150.—Abraham Fisher,
T r a in —
an employee of the defendant company, quit work as usual on Septem
ber 10,1918, and went to the railroad station to board a train on his way
to his home in Camden. While attempting to board the train he was
struck by a passing train and killed. The company supplied trans
portation to its employees. The workmen’s compensation bureau
made an award of compensation to Annie Fisher. The common
pleas court set the award aside, but on an appeal to the Supreme
Court of New Jersey the court reversed the judgment of the common
pleas and affirmed the award. The court followed the rule which
is as follows:
Where the workman is employed’to work at a certain place, and as
a part of his contract of employment there is an agreement that his
employer shall furnish him free transportation to or from this work,
805
w o r k m e n ’s c o m p e n s a t io n .
the period of services continues during the time of transportation,
and if an injury occurs during the course of transportation, it is held
to have arisen out of and in the course of the employment.
The court said that the injury in this case happened while in the
act of boarding the train and not while being transported, but that
that was a difference without a legal distinction.
W o r k m e n ’s
C o u rse
op
C o m p e n s a t io n — I n j u r y
E m p l o y m e n t — G o in g
to
A r is in g
O ut
W o r k — M in e r
op
and
in
K il l e d
by
W estern Coal <& M ining Co. v. Industrial Commission et al,9
Supreme Cou/rt of Illinois (February 15 , 1921) , 129 Northeastern
Reporter, page 779.—Frank Sergi was employed by the Western Coal
T r a in —
-& Mining Go. and lived in the town of Bush. While walking along
the railroad track on his way to work and after he had come upon
his employer’s premises he was run down by a train and killed. His
wife brought proceedings for compensation and was granted an
award by the indusfcrial commission. The employer appealed, con
tending that inasmuch as Sergi had not entered upon his duties but
was only on his way to work, although on the premises of the em
ployer, his death was not the result of an accident arising out of and
in the course of his employment. The circuit court affirmed the
award of the industrial commission, and upon appeal the award was
again affirmed by the supreme court. The decision is in part as
follows:
The going to work was necessarily incident of the decedent’s con
tract of employment and was necessary to its performance. He had
arrived on the premises of his employer and was engaged in the
course of his employment in going toward the washhouse preparatory
to entering the mine. There is reason to suppose that the accident
by which he lost his life was a risk growing out of the nature of his
employment. The premises of the employer, where the deceased had
to pass in going to his work, were occupied by railroad tracks on
which trains of cars were operated. The causal connection between
this condition and the resulting injury is apparent. The deceased
might reasonably be crossing the track or walking along it going to
the washhouse to change his clothes before going to work, and in so
doing might reasonably be regarded as doing something incidental
to his employment. lie was not compelled to use this track to get
to the washhouse, but he with all the other men were permitted to use
it, and the railroad tracks had apparently long been used habitually
for walking to and from the mine—in fact, from the commencement
of its operation. In an action at common law such use of the tracks
might have constituted contributory negligence, but contributory
negligence is not a bar to an award under the workmen’s compensa
tion act.
The transportation was not an incident of the employment. The
employment continues throughout the transportation in case the par
306
TEXT AND SUMMARIES OF DECISIONS.
ties by their contract of hiring positively or inferentially so stipulate.
If they do not so stipulate, the employee, when he enters into the
process of the transportation, is not under the hiring or control or
in the employment of the employer, and is not the employee. (Vick
v. N. Y. C. & H. E. E. B, Co., 95 N. Y. 267.)
W o r k m e n ’s
C o m p e n s a t io n — I n j u r y
A r is in g
Out
or
and
in
—Federal M utual L iability In
surance Co. v. Industrial Accident Commission of California et cd.,
Supreme Court of California (November 4, 1921), 701 Pacific Re
porter, page 920 .—Gus Farsais was in the employ of the San Joaquin
C o u rse o f E m p l o y m e n t — H o r sepla y
Packing Co., and at the time in question was engaged in sweeping
the premises on which other employees were putting grapes into a
machine as a part of their duty. While Farsais was at work, an em
ployee threw some grapes at another, and, his aim being bad, he
missed the other person and one of the grapes hit Farsais in the
eye, thereby causing the injury complained of. The industrial acci
dent commission granted an award of compensation. The employer
and insurer took the cause to the supreme court where the award was
annulled for the reason that the injury did not occur in the course of
and arise out of his employment. This case was distinguished from
General Accident Fire and Life Assurance Corporation v. Industrial
Accident Commission, 200 Pac. 419 (see page 298). In a per curiam
decision the court said:
There was nothing in the nature of the employment in which any
workmen present were engaged which required any of them to throw
grapes at another. The act was either a playful or malicious act of
one employee toward another, having no connection whatever with
the work in which he was engaged.
The argument is that in every establishment where a number of
workmen are required to be near to each other in the course of their
employment for hours at a time “ some frolicking is inevitable. It
occurs in every plant. The industry, by bringing workmen together in
numbers exposes its workmen to this hazard, which is just as much
a hazard incident to the employment and ‘ arising out of the employ
ment’ as the danger of slipping upon floors, colliding with other
workmen, falling down stairs,” and the like.
Although the line of reasoning has support in the decision of some
of the other States, it is contrary to our own, and it seems to us to
be an unwarranted extension of the meaning of the controlling lan
guage of the constitution and of the statute defining the character
of injuries that are to be compensated out of the earnings of the
business in which they occur.
W o r k m e n ’s
C o m p e n s a t io n — I n j u r y
A r is in g
O ut
of
and
v.
in
Socha
Cudahy Packing Go., Supreme Court of Nebraska (February 23,
C o u r se o f E m p l o y m e n t — H o r s e p l a y — I n j u r y b y A ir H o se—
307
WORKMEN’S COMPENSATION.
1921), 181 N orthwestern Reporter, page 706.—Albert
Socha was em
ployed by the Cudahy Packing Co. in one of its plants. He worked
in a room in which meat was cooked and trimmed. The cooked meat
was dumped upon a table, and it was Socha’s duty to push it across
this table to the trimmers on the other side. This work at times re
quired a stooping position. While engaged at this work a fellowemployee playfully applied the compressed air hose against his per
son. The assault caused a rupture of the intestines resulting in sep
ticaemia. Socha died from his injuries, and his widow brought action
for and recovered an award of compensation under the workmen’s
compensation act. The employer admitted that the injuries arose
in the course of employment, but denied that they arose out of the
employment, and appealed from the decision. The judgment and
award were affirmed, and a previous Nebraska case, Pierce v. BoyerVan Kuran Lumber Co., 99 Neb. 321, 156 N. W. 509 (Bui. No. 224, p.
309), refusing compensation to an employee who was injured while
“ skylarking ” was overruled. The opinion is in part as follows:
The very fact that injuries of this nature, resulting from the
sportive use of compressed air under like circumstances, have been
before the courts in a number of cases is worthy of note. Such a
combination of elements seems to present a situation attractive and
suggestive to a youthful, or to a rude and untutored, mind having
no knowledge of the serious or fatal consequences liable to result.
This combination of elements may arise out of the nature of the
occupation. The liability to perform such acts by the employees was
known to the employer, since, as we have seen, warning notices in a
language foreign to that of the workmen had been placed upon the
bulletin board; and the fact that the men had previously played with
the air hose, but not in this manner, was known to the foreman,
Schultze, Socha’s immediate superior. Though negligence is not
a necessary element in an award under the act, such knowledge af
fords light upon the question whether the injury may reasonably be
said to arise out of the employment. If a person familiar with the
whole situation could reasonably contemplate that such an accident
might result from the peculiar nature and circumstances of the em
ployment, and the nature of the place where the injured man was
required to work, then it may reasonably be said to arise out of it.
We are of the opinion that, under all the facts, such a happening
might reasonably have been foreseen, and, in fact, was anticipated by
the employer in this case, and that the accident arose out of the em
ployment. So far as the case of Pierce v. Boyer-Van Kuran Lumber
Co., supra, is in conflict with the principles herein announced, it is
overruled.
W o r k m e n ’s
C o u rse
of
C o m p e n s a t io n — I n j u r y
E m plo ym en t— H o tel
A r is in g
O ut
of
and
in
F ir e — E x t r a t e r r it o r ia l it y —
Stansberry et al. v. M onitor Stove Co., Supreme Court of Minne
sota (July 15, 1921), 183 Northwestern Reporter, page 977.— Frank
101296°—22----- 21
308
TEXT AND SUMMARIES OF DECISIONS.
J. Stansberry was a, traveling salesman in the employ of Monitor
Stove Co. He was employed by the Minneapolis branch and worked
under its direction. While in the Frederic Hotel at Grand Forks,
N. Dak., a fire broke out at night and Stansberry was killed while
attempting to escape. His widow and minor children made a claim
for compensation under the Minnesota workmen’s compensation act.
The claim was allowed, and the defendant appealed to the supreme
court. Judge Hallam wrote the opinion affirming the award, in
which he declared that “ for the purposes of this case the situation is
the same as though the head office, instead of a branch, were located
in Minnesota. The business in which Stansberry was employed had
a situs in this State.” In referring to the fact that Stansberry was
killed without the State, he said that the business was localized in
Minnesota and that the Minnesota, “ compensation act applies and
compensates for injuries in a service incident to its conduct, sus
tained beyond the borders of the State.” On the question as to
whether the death was due to an “ accident arising out of and in the
course of employment ” it was stated that “ as he was obliged to stop
at hotels in the course of his travels and to furnish the Minneapolis
office with a list of the cities on his itinerary and the names of the
hotels at which he was to stop and how long he was to be at each
hotel, and it was his duty to carry out such schedule,” it was an
injury within the terms of the law.
W o r k m e n ’s
C o m p e n s a t i o n -— I n j u r y
C o u rse of E m p lo y m e n t — I n ju r y
A r is in g
Out
A f t e r W o r k in g
of
and
in
H o urs— A ct of
RourJce’s Case , Supreme Judicial Court of Massachusetts
(Jam iary %Of 1920 ), 129 Northeastern Reporter^ page 60S .—A strike
S t r ik e r —
was in progress at the Holyoke Machine Co. in Worcester, Mass., and
the company advertised in a Boston newspaper for other workmen.
Bobert Bourke, in answer to the advertisement, applied for a job as
an iron molder and was employed. He was aware at the time
that a strike was in progress at the employer’s factory. Mr. White,
the company’s superintendent, assured Bourke that he would be pro
tected from injury; that he would be thoroughly taken care of; and
that he, White, would accompany him to his home in the evenings.
Bourke went to work for the Holyoke Machine Co. and at 5 o’clock
of the first day he dropped his tools, changedjiis street clothes, rang
in his time, and went out on the street with 12 other workmen in
the company of Mr. White, and proceeded to the lunch room where
they were to eat. On the way to the lunch room the party was ac
costed by pickets and strikers and Bourke was injured in the scuffle
that ensued. The industrial accident board allowed him compensa
309
WORKMEN ’S COMPENSATION.
tion for the injuries he thus sustained, and on appeal this decision
was upheld by the superior court. The. employers’ insurer again
appealed and the decision was reversed. The opinion of the supreme
cburt is, in part, as follows:
We can not agree with the reasoning or with the result arrived at
by the board. Unless the incidents of employment be exceptional
the relation between a master and his servant is suspended when the
servant leaves the place of his actual employment at the close of his
day’s work to go to his home, and again becomes active when after
the interval of rest the laborer puts himself in a position where he
can do the work of his employment at the place where it is to be
performed. (Langley v. Boston Elev. By., 223 Mass. 492, 496, 112
N. E. 79.)
In the case at bar the day’s work of the claimant came to an end
when he dropped his tools, rang in his time, left the place of his
employment, and entered upon the public highway. While not con
clusive in the determination of the incidents of the employment, it is
worthy of consideration that thereafter the employer under the con
tract of employment had no legal right to command the services of
the claimant, and he was under no duty of obedience thereto.
As bearing upon the question of the incidents of the employment,
we can perceive no resemblance between a contract of protection
against criminal acts of third persons who may seek to coerce a
hostile employer to grant their demands through the intimidation of
and assaults upon his servants and a contract of employment which
has regard to conditions and circumstances which are the natural and
not abnormal concomitants of the work to be performed under the
contract ; for example, agreements for transportation, when the place
of work is at a distance.
W o r k m e n ’s
C o m p e n s a t io n — I n j u r y
A r is in g
Out
of
and
in
C o u r se o f E m p l o y m e n t — L u n c h -H o u r A c c id e n t s — I n j u r y i n E l e
—S
D
—M artin v. M etropolitan L ife Ins. Co .,
Suprem e Court of N ew Y ork , A ppellate D ivision {July 1 , 1921 ), 189
New Y ork Supplem ent , page 467.—Catherine Martin was employed
vator
u it
fo r
am ages
by the defendant company on the eleventh floor of its building in
New York City. Elevator service was maintained for the use of
employees and others. Upon the twelfth floor there was a luncheon,
furnished free to all the employees. Thirty-five minutes were al
lowed for a lunch period. During this 35 minutes, on the day in
question, plaintiff walked to the twelfth floor, procured a lunch, and
started down the elevator. By reason of the negligence of the oper
ator of the elevator, as she was about to get out, the elevator started
up and caused her injuries for which she now brings an action for
damages. Plaintiff obtained a verdict in the supreme court, and the
defendant appealed to the appellate divirion. That court reversed
the order of the trial court and dismissed the complaint because the
310
TEXT AND SUMMARIES OF DECISIONS.
workmen’s compensation law was held to cover the. plaintiff, and
therefore she could not recover in an action for negligence. Judge
Smith stated in his opinion that the defendant company was covered
by the workmen’s compensation act as it employed more than foifr
people engaged in a hazardous employment, and therefore all of the
employees were brought within the protection of the act; that “ while
the statute requires that in order to come within the act the injury
must arise out of and in the course of the employment, it necessarily
covers any act done as incidental to that employment; that the de
fendant was bound to furnish a safe entrance and a safe exit at any
time that an employee’s service was not required.”
W o r k m e n ’s C o m p e n s a t i o n — I n j u r y A r i s i n g O u t o f a n d i n C o u r s e
E
— N
W
K
P
— H eide mann v. American D istrict Telegraph Co ., Court of Appeals of New
Y ork (March 1 , 1921) , ISO Northeastern R eporter , page 302.—Heideof
m plo ym en t
ig h t
atch m an
il l e d b y
o l ic e m a n
mann was employed by the American District Telegraph Co. as a
night watchman to patrol the streets in a given section of Brooklyn.
While engaged at his duties he was accidentally shot and killed by a
policeman in pursuit of burglars. Upon application his widow was
awarded compensation under the workmen’s compensation law, but
on appeal the award was reversed by the appellate division of the
supreme court and the widow appealed. In reversing the latter
judgment and reinstating the award the court of appeals said in
part:
An award under the workmen’s compensation law, in favor of his
widow, was reversed at the appellate division on the ground that
death, though occurring “ in the course of employment,” did not
arise “ out of” employment within the meaning of the statute.
We reach a different conclusion. Heidemann’s duties involved
exposure to something more than the ordinary perils of the street,
with its collisions, its pitfalls, and the like. His calling multiplied
the chance that he would be near when trouble came, and in multi
plying the chance increased exposure to the risk. He was brought
by the conditions of his work “ within the zone of special danger.”
The sudden brawl, the “ chance medley ” are dangers of the street,
confronting with steady menace the men who watch while others
sleep. Casual and irregular is the risk of the belated traveler,
hurrying to his home. Constant, through long hours, was the risk
for Heidemann, charged with a duty to seek, where others were free
to shun. The difference is no less real, because a difference of degree.
The night, too, has its own hazards, for watchman and for way
farer. Death came to Heidemann in the performance of his duty,
face to face with a peril to which the summons of that duty called
him.
The order of the appellate division should be reversed, and the
award confirmed, with costs, in the appellate division and in this
court.
WORKMEN ?S COMPENSATION.
W o r k m e n ’s
C o m p e n s a t io n — I n j u r y
A r is in g
311
Out
Clark v. Voorhees
et al ., Court of Appeals of New York (A pril 19, 1921), 131 N orth
eastern R eporter, page 553 .—John C. Clark prior to his death was
C o u rse
of
E m plo ym en t— P erso n al
of
and
in
E rrand—
employed as a salesman by William Voorhees, a wholesale dealer in
fruit and vegetables. Early in the morning of May 30, 1918, Clark
left his employer’s place of business for the purpose of going to a
restaurant between 400 and 500 feet away to get a cup of coffee.
While in a public street, going to such restaurant, and between 250
and 300 feet from the employer’s place of business, he was struck
by a motor truck and sustained injuries from which he died shortly
thereafter. Clark’s widow was awarded compensation. The defend
ants appealed, but the appellate division affirmed the award of the
State industrial commission. The defendants then appealed to the
court of appeals, which reversed the judgment and dismissed the
claim on the ground that the injury did not arise out of and in the
course of employment. In deciding the point Judge McLaughlin said:
When the decedent left the employer’s place of business for the
purpose stated, and while walking in the street, he was not doing any
thing which he was employed to do; nor was it anything incident to
or connected with the employment. It was no more a part of his
employment than it would have been had he started for his own home
for the purpose of getting breakfast. The business of the employer
ended when he got into the street.
W o r k m e n ’s
C o m p e n s a t io n — I n j u r y
C o u r s e o f E m p l o y m e n t — V io l a t io n
A r is in g
O ut
of
and
in
E m p l o y e r ’s R u l e s — W o r k
F
E
— H inton Laundry Co . v. D eLozier, Supreme
Court of Tennessee .{O ctober 25, 1920), 225 Southwestern R eporter ,
page 1037 .—The Hinton Laundry Co. permitted its employees to
fo r
ello w
of
m plo yee
have their personal laundry done free of charge on Monday of each
week. This privilege was not allowed on any other day. Florence
DeLozier was injured while pressing a skirt for another employee
after regular working hours on a Friday. She brought suit for
compensation under the workmen’s compensation act and recovered
an ward of $5 per week for 75 weeks. The employer appealed, claim
ing that the injury did not 4 arise out of and in the course of the
4
employment,” so as to come within the compensation act. The su
preme court took the employer’s view of the case and reversed the
decision. The opinion is in part as follows:
The question presented for determination by the court is whether
the service that was being performed by the petitioner was one con
templated by the employment, and one in which the employer had an
interest, or whether it was simply a voluntary service being per
312
TEXT AND SUMMARIES OF DECISIONS.
formed by petitioner as a matter of accommodation to one of her
fellow employees, and therefore was not in the course of her em
ployment
Her act of pressing the skirt for Margaret Bowling was purely a
voluntary one, and was being done by the petitioner as a matter of
accommodation to her fellow employee. The evidence is uncontra
dicted that the defendant had no interest whatever in the service
which was being performed by the petitioner at the time of her
injury.
The petitioner being injured in the manner and circumstances
herein stated, she can not recover of the defendant, because her injury
did not arise out of her employment, or while performing any service
for the defendant, or in any service in which it was interested. Upon
the other hand, the uncontradicted proof shows that the service
which petitioner undertook to perform, and which resulted in
her injury, was purely voluntary, and was being performed for the
accommodation of a fellow employee.
We do not think the workmen’s compensation act covers such in
jury. It results that the judgment of the court below will be re
versed, and the suit dismissed, with costs.
W o r k m e n ’s
C o m p e n s a t io n — I n j u r y
A r is in g
O ut
Union Colliery Co . v.
Industrial Commission et a lS u p r e m e Court o f Illinois (June 22,
1921), 132 Northeastern Reporter , page 209.—Leon Harnetiaux was
of
and
in
C o u r s e o f E m p l o y m e n t — V io l a t io n o f L a w —
employed as top eager on the night shift at the coal mine of the Union
Colliery Co. On May 8, 1919, he was called from his work on the
tipple to help load props which were to be carried into the mine. In
returning to the tipple he usually ascended a flight of stairs, but
this night, as lie had done on several previous occasions, he stopped
a car of eoal at the mouth of the mine and got on the cage, in viola
tion of law, to ride to the top of the tipple in order to be at his place
in time to dump the car. Just before reaching the top of the tipple
he was caught in some unknown manner and so injured that he died
before the parties present could get to him. The widow and children
of deceased were awarded compensation under the workmen’s com
pensation act. Upon appeal to the circuit court the record was
quashed, but upon appeal to the supreme court the award was af
firmed. This court held that the injury arose out of and was in the
course of his employment, and the fact that he was violating the
mining act by riding on the cage was at most contributory negligence
and not a departure from the scope of his employment. The courtquoted from an English decision as follows:
The sole question in this cause is whether the man was outside the
sphere of his employment. It does not matter in the slightest degree
how many orders he disobeys or how bad his conduct may have Seen
if he was still acting within the sphere of his employment and in the
course of it and if the accident arose out of it.
w o r k m e n ’s c o m p e n s a t i o n .
W o r k m e n ’s
m en t
C o m p e n s a t io n — I n j u r y
— “ C ommon
H azards ”— E m p l o y e e
A r is in g
N ot
313
Out
at
op
E m plo y
H e a r in g — E v i
—Em pire H ealth <& Accident Insurance Go, v. Purcell, A ppel
late Court of Indiana (November 2, 1921), 132 Northeastern R e
porter, page 66b.—On December 7, 1920, William F. Purcell was in
the employ of the Empire Health & Accident Insurance Co. as an
insurance solicitor and collector of premiums at an average weekly
wage exceeding $24. About 5 p. m. on said day in the course of his
employment he called at the home of one Williams, for the pur
pose of collecting a premium from Williams on a policy of his
employer. After making the collection from Williams, Purcell
asked one Charlie Wood, who lived with Williams, whether he
could pay the premiums which he owed the company. Wood re
plied that he could not pay anything as he had been sick and
not able to work. Wood and a friend named Mason left the
house with Purcell. As they were leaving, Wood and Purcell be
came engaged in conversation relative to a claim Wood had against
the insurance company. About five minutes later Purcell came back
into the house; his skull was fractured and his brain lacerated and
torn by bone fragments which had been driven into it. He was un
able to give any account of what had taken place, became unconscious,
and ever since that time has been unable to perform any labor and is
only at times seemingly rational. Wood and Mason disappeared in
the darkness without waiting to get their suppers, and have not been
seen since that time. No one was able to testify whether the injured
man was struck or fell.
On a claim for compensation, an award was made by the industrial
board. Purcell did not appear at the hearing in the case, and the
company contended that his absence raised a presumption that his
testimony would have been adverse to his interests, if it had been
given; also that there was no evidence on which to base an award.
The court overruled the first contention, saying that the physician’s
testimony as to the claimant’s physical condition was a sufficient ex
planation of his absence. The appeal was determined in the ap
pellee’s favor. The following is quoted from the opinion by Judge
McMahan:
The words “ by accident arising out of and in the course of the
employment,” as used in workmen’s compensation acts, should be
given a liberal construction in order that the humane purpose of
their enactment may be realized. An accident is said to arise out of
the employment when there is a causal connection between it and
the performance of some service of the employment. The causal
relation is established when the accident is shown to have arisen out
of a risk which a reasonable person might have comprehended as
incidental to the employment at the time of entering into the em
ployment, or when the evidence shows an incidental connection be
d en ce
314
TEXT AND SUMMARIES OF DECISIONS.
tween the conditions under which the employee works and his re
sulting injury.
In the instant case the duties of the appellee required him to travel
from place to place for the purpose of soliciting insurance and mak
ing collections. The localities to which he was required to go in the
course of the business constituted the place or places of his employ
ment. It was by reason of his employment that he was at the place
wT he was injured. He was where his employment took him.
here
The hazard of being injured as the result of an attempt to collect
money due appellant, the hazard of being assaulted or robbed on ac
count of his business, as wrell as the hazard of being injured by rea
son of accidentally falling while in the course of his employment,
were all hazards incidental to his employment. This proposition is
not changed by the fact that the public generally in that vicinity
was exposed to the same hazards. Appellee’s employment as a col
lector of money exposed him to increased hazards generally. The
evidence warrants the inference that his injury resulted from condi
tions brought about by reason of his employment and because he
was in that locality at the time in question.
While there must be some causal relation between the employ
ment and the injury, it is not necessary that the injury be one which
ought to have been foreseen or expected, but it must be one which,
after the event, may be seen to have had its origin in the nature of
the employment.
When one so situated and employed as was appellee receives an
injury by reason of the hazards and conditions surrounding him, it
is ordinarily a question of fact as to whether the employment of such
persons was or was not a contributing proximate cause of the injury.
We are of the opinion that the industrial board was justified in draw
ing the inference that appellee’s injury arose out of his employment.
W o r k m e n ’s
C o m p e n s a t io n — I n j u r y
A r is in g
Out
of
E m plo y
”— H assell Iro n
W orks C o . et a l . v. In d u stria l C om m ission , S u prem e C ourt of C olo
rado (N ovem ber 7, 1921\ , 201 PacifiG R ep o rter , page 89 h — John
m en t
— D e a t h fr o m L ig h t n in g — “ C o m m o n H a za rd
Hrutkai, was an oxyacetylene welder in the employ of the plaintiff
company. His employment required him to use several tools, which
he carried on his person. On the day in question he was working
on an iron bridge that had been wrecked in a flood, one end of
which was in the water and the other end was on an island near by.
The ground was damp, and an electrical storm was in progress. He
was struck by lightning, death resulting instantly. The tools he
carried on his clothes were over the spot on his body where burns
were found. The industrial commission made an award of com
pensation to decedent’s widow and minor children. The employer
and insurer brought proceedings in the district court to set aside
the award. Judgment favored the defendants, and an appeal was
taken to the supreme court where the award was again affirmed.
315
w o r k m e n ’s c o m p e n s a t i o n .
The question before the court was, on the facts stated, .Did the acci
dent of being struck by lightning arise out of the employment?
It was assumed on both sides that a correct statement of the law
relevant to this matter is found in 1 Honnold on Workmen’s Com
pensation, 428, as follows :
The employer can not ordinarily be held liable for compensation
for disability from sunstroke, freezing, and lightning. These are
forces of nature which he can not foresee and prevent, and the em
ployee is ordinarily no more subject to injury from such sources
than others. But where the work and the method of doing the
work exposes the employee to the forces of nature to a greater extent
than he would be if not so engaged the industry increased the danger
from such forces, and the employer is liable.
The plaintiffs contended that there was no evidence that deceased
was exposed to the danger of being struck by lightning to a greater
extent than he would be if not engaged in his employment. One
expert testified, in answer to a hypothetical question that the de
ceased would be exposed to a greater hazard from lightning because
of the place at which he was working and the conditions of his
employment.
The court held that the commission “ could have found as a rea
sonable inference to be drawn from the evidence that the steel in
the bridge and the water underneath caused an attraction for light
ning and was a conductor thereof to an extent much greater than
was common to other points elsewhere in the vicinity,” and that
“ the findings of the commissioners should not be disturbed where
there is any substantial basis for them in evidence.” There was
evidence to support the finding that the accident arose out of the
employment, and judgment was affirmed.
W o r k m e n ’s
C o m p e n s a t io n — I n j u r y
A r is in g
O ut
of
E m plo y
Radtke Bros . et al. v . Indus
trial Commission of Wisconsin et al ., Supreme Court of Wisconsin
(M ay 3 , 1921), 183 Northwestern Reporter, page 168 .—Herbert Rut-
m ent
— M in o r D o in g F o r b id d e n A c t —
zinski was a boy 14 years of age and employed by the Radtke Bros,
printing establishment with light duties such as running errands and
folding sheets of paper. His instructions were to keep away from all
machines. The boy had watched a man operate a paper-cutting
machine, and thinking he could do it himself, when he was not
observed by anyone in authority, he used the machine to cut the edges
of a tablet which he intended to take home. In doing this he cut
off the ends of two of his fingers. He brought proceedings under the
workmen’s compensation act and was awarded compensation.
Radtke Bros, and the insurance carrier brought an action to set
TEXT AND SUMMARIES OF DECISIONS.
316
aside the award and appealed to the supreme court for a reversal
of the action of the lower court in affirming the award of the
commission. The supreme court reversed the judgment and sent the
cause back to the lower court with instruction to set aside the award.
Judge Jones wrote the opinion of the court from which the follow
ing quotations are taken:
The crucial question in this case is whether at the time of the
accident the employee was “ performing service growing out of and
incidental to his employment.”
In determining this question we fully recognize that the act must
be given a broad liberal construction, to the end that its beneficent
purpose should be fully carried out. Although there was vigorous
opposition to the statute before its enactment, it has been so well
administered by the commission that it now meets with general
approval. This court has not applied technical rules in determining
whether in given cases the accident was incidental to the employment.
But we have found no reported case in this State or any other
where it has been held that an employee may recover under com
pensation acts for an injury received while doing work entirely dif
ferent from that assigned him, against orders, and for his own
benefit. Lack of precedent would not necessarily prevent us from
approving the award in this case; but it is very significant that in
the numberless cases which have arisen where this or similar statutes
have been construed there is so little authority for the position taken
by respondents’ counsel. ' In this State there have been several
decisions illustrating that the statute should not be construed to
cover accidents occurring outside the employment.
It is strongly urged upon us that boys of this age from natural
curiosity are apt to intermeddle with machinery, and that there
should be the most careful supervision to prevent accidents where
they are engaged to render a service wherever machinery is used.
It does not appear in this case that the claimant was led by curiosity
to operate the machine, but that after full warning of the danger
he undertook to use it to do work for his own benefit. Although, as
already indicated, the statute should be liberally construed, it should
not be so interpreted as to make employers insurers against all acci
dents happening to employees, even though they are minors.
Respondents’ counsel argue that the question involved is one of
fact, and that the finding of the commission is conclusive. The facts
are practically undisputed, and the construction of the statute is a
question of law on which the decision of the commission is not bind
ing upon us.
Judgment reversed and cause remanded, with instructions to set
aside the award.
W o r k m e n ’s
m e n t
C o m p e n s a t io n — I n j u r y
— P r o x im a t e
A r is in g
C a u s e — P r e e x is t in g
Out
I d io p a t h ic
of
E m plo y
C o n d it io n — >
Rockford H otel Co . v. Industrial Commission et al ., Supreme Court
of Illinois ( October 82, 1921), 132 Northeastern Reporter, page
759 .—Joseph Madison was employed by the Rockford Hotel Co. on
317
w o r k m e n ’s c o m p e n s a t i o n .
and prior to September 5, 1919. On that day, while in the discharge
of his duties, he fell into an ash pit, where hot coals and cinders
were thrown when removed by him from the furnace. The engineer,
just before the accident, saw Madison raising the cover from the pit
for the purpose of drawing into it ashes and cinders from the fur
nace. When he returned five minutes later Madison was lying on
his back in the pit on the hot cinders. He was unconscious, and be
fore he could be removed he was badly burned. He later regained
consciousness but died on December 15, 1919. His widow was
granted an a^vard of compensation, by an arbitrator, which award
was confirmed by the industrial commission. The company contends
that Madison’s injury did not arise out of his employment and that
the fall was not due to an incident of employment, but was caused
by Madison being seized with an epileptic fit. The circuit court set
aside the award, but upon appeal to the supreme court, the original
award was reinstated and the judgment of the circuit court was re
versed. Judge Farmer speaking for that court said:
The fact that we can not overlook or ignore is that Madison, by
reason of his falling into the pit while engaged in performing the
duties of his employment, was so severety injured that he died from
the injuries. He did not die from epilepsy or a preexisting disease,
but from the burns he received from falling into the pit.' Some
cases hold that where an employee is seized ivith a fit and falls to his
death, the employer is not liable because the injury did not arise out
of the employment, but a majority of the courts, American and
English, hold that, if the injury was due to the fall, the employer
is liable, even though the fall was caused by a preexisting idiopathic
condition.
W o r k m e n ’s
m en t
C o m p e n s a t io n — I n j u r y
— R e t u r n in g fr o m
W o rk— I n ju r y
A r is in g
by
O ut
T h ir d
of
E m plo y
P a r t y — A c t io n
D
— Koubek v. Gevens , Supreme Court of Minnesota (De
cember 1 7, 1920 ), 180 Northwestern R eporter , page 219 .—Frank Kou
fo r
am ages
bek was employed as a foreman in charge of a street-flushing crew by
the city of St. Paul. There were two crews, a night crew and a day
crew. Koubek, who was foreman of the day crew, worked on the day
of the accident from 7 o’clock in the morning to 4 in the afternoon.
After leaving his work he attended to various personal errands, and
about 5 o’clock, while on his way home, he stepped into the street to ex
amine the engine of a street flusher being operated by the night crew.
He had that day repaired the engine on the flusher and was desirous
of noting how it was working. While walking alongside the flusher
he was run into from the rear by an automobile of the defendant,
operated by one of defendant’s employees, sustaining a fracture of
his left leg above the knee. Koubek brought an action for damages
for redress for his injuries and recovered a verdict. The defendant
318
TEXT AND SUMMARIES OF DECISIONS.
appealed, declaring that the action should be governed by the work
men’s compensation act as he and the plaintiff and plaintiff’s em
ployer were all under the act and subject to its provisions. The
court, however, held that Koubek had left his work and was on his
way home; that what he was doing at the time of the injury merely
was a display of interest in his work; and that the injury did not arise
out of his employment. The decision in part is as follows:
The sole question here presented or argued is whether the plain
tiff’s injury arose out of and in the course of his employment, under
such circumstances that he is governed by the workmen’s compen
sation act.
It is not disputed but that an hour had elapsed after the plaintiff
had completed his day’s work when the accident occurred, unless his
mere stepping into the street and listening to the working of the
engine on the passing flusher renewed his duties and extended his
day’s work. We do not think so. Such an act could hardly be said
to amount to overtime, as suggested by appellant. It merely shows
the plaintiff’s interest in his work.
He had repaired the engine shortly before, and, as he explained, he
undertook, out of curiosity, to ascertain whether it was working well.
He was not duty bound so to do at that particular time. It was a
voluntary act on his part, for which he could not expect to be reim
bursed in wages. It could have required but a few seconds of time.
It is well settled by recent decisions of this court that an em
ployee is not, as a general rule, within the compensation act while
on his way home after completing his day’s work. We think that
the trial court was right; that under the circumstances in this case
the plaintiff was properly permitted to recover in this action.
W o r k m e n ’s
C o m p e n s a t io n — I n j u r y
T h ir d
P a r t y — C h o ic e
Leva v . TJtah Fuel Co . et al ., Supreme Court of Utah
{July i, 1921) 199 Pacific Reporter , page 659.—Charles Leva, an em
of
by
R e m e d ie s —
ployee of the Utah Fuel Co., left work on September 11, 1920, and
while walking on the right of way of the Denver and Rio Grande
Railway Co. was injured. He made a claim against the railroad be
cause of his injuries, which claim was compromised and he was paid
$1,500. Leva then claimed compensation from his employer under
the industrial commission act, based on the same injury. The indus
trial commission found “ that the applicant sustained injury by the
negligence or wrong of another, not his employer; that he did not
comply with section 3133 of title 49 in compromising and adjusting his
claim against the railway company and did so without securing the
written consent of the fuel company.” The commission decided that
for these reasons it had no jurisdiction, and the claim was denied.
The decision was reviewed by the supreme court on proceedings by
w o r k m e n ’s c o m p e n s a t io n .
319
Leva, and the order of the commission was affirmed. Judge Gideon,
speaking for the court, said in part:
It is the contention of the plaintiff that the provisions of the fore
going section denying the right to an injured employee to receive
compensation in the event of injury by the negligence or wrong
of any one except the employer unless such injured employee com
plies with the other provisions of the section are unconstitutional,
as being in contravention of article 1, section 10 of the Constitution
of the United States, prohibiting any State from enacting a law im
pairing the obligations of contracts; also of article 1, section 18, of
the State constitution, relating to the impairment of contracts.
The right of an employee to be awarded compensation under the
industrial commission act is not dependent upon the negligence or
wrong of his employer. The right is determined by the fact of his
employment at the time of the injury, or whether the injury arose in
the course of his employment. Moreover, the plaintiff is attacking
the constitutionality of the very law under which he claims com
pensation. This he is not in a position to do.
In this case the injury is in no way the result of the negligence or
wrong of the employer. The accident did not happen while the
plaintiff was upon the premises of the employer. Any right plaintiff
could have against his employer must result from a duty imposed
upon the employer by the terms of the industrial act. That act pre
scribes the procedure or method by which an award can be made
to the injured employee. It is therefore incumbent upon such em
ployee, under facts such as are disclosed by this record, to comply
with the provisions prescribed by which he can obtain relief. The
section quoted provides that before any suit or claim is made by a
claimant he must elect whether to take compensation under this title
or to pursue his remedy against such other. It appears without dis
pute that the applicant has not brought himself within the provisions
of the statute under which he claims.
W o r k m e n ’s C o m p e n s a t i o n — I n j u r y b y T h i r d P a r t y — C h o i c e o f
S
— E
—Bennett v . Page Bros . et
al ., Supreme Court of New Y ork, Appellate Division (July 7,1921),
189 New Y ork Supplem ent, page 529 .—Henry Bennett, an employee
R e m e d ie s — E f f e c t
of
u it
v id e n c e
of Page Bros., met with an accident upon the premises of the Metro
politan Tobacco Co. from which he received injuries resulting in his
death. Ellen Bennett and her husband filed a notice of election with
the State industrial commission to sue the Metropolitan Tobacco Co.
for the death of their son. An action was brought, but two and onehalf years after the cause of action accrued it was discontinued by
consent. The State industrial commission subsequently made an
award to the mother of the decedent on her claim as a dependent,
and the employers and insurers appealed to the appellate division.
That court decided:
The election on the part of dependents to bring an action against
a third party does not operate to relieve the employer or insurance
320
TEXT AND SUMMARIES OF DECISIONS.
carrier. The statute provides that the insurance carrier “ shall con
tribute only the deficiency, if any, between the amount of the recov
ery against such other person actually collected, and the compensa
tion provided or estimated by this chapter for such case.” (Sec. 9.)
The advantage to the dependents is to be found in the fact that, if
they succeed in recovering more than the amount of the compensa
tion, they are at liberty to retain the sum so recovered, with the
assurance that, if they recover less, the deficiency is to be made up
to them.
No rights of the appellants being sacrificed by reason of the dis
continuance of the action, we are of the opinion that the election to
sue the tobacco company, and the subsequent action on the part of
the claimant, do not operate to estop her from asserting a claim as
a dependent. We are thus brought to consider the further objection
that the evidence does not show dependence on the part of the
claimant.
While the evidence is unsatisfactory, we are of the opinion that
there is sufficient to show that the claimant was in some measure
dependent upon the decedent. The rule in compensation cases does
not require the highest degree of evidence ; it is satisfied if there is
some evidence of a probative character to support the findings of
the commission.
The award should be affirmed. All concur.
W o r k m e n ’s C o m p e n s a t i o n — I n j u r y b y T h i r d P a r t y — E f f e c t o f
Renner v. M odel Laundry Cleaning de D yeing Go .
et <d., Suprem e Court of Iowa {Septem ber 30, 1921), 18i N orth
western Reporter, page 611 .—On Jnly 25, 1917, A. B. Bodine, since
Settlem en t—
deceased, was an employee in the service of the defendant laundry
company, and in pursuance of such employment was driving a
laundry wagon in the streets of the city of Waterloo, Iowa. While
thus engaged, a collision occurred between the wagon and a street
car operated by the W. C. F. & N. By. Co. In this collision, Bodine
was severely injured. The laundry company’s insurer, the defend
ant Fidelity and Casualty Co., undertook to pay Bodine compensa
tion, which it did for about three months. Bodine was then visited
by a representative of the railway company, who made a settlement,
paying $750 for a release of Bodine’s right to sue for the injuries.
Thereafter the insurer refused to make further payments, claiming
that because of such settlement with the railway company the em
ployer and his insurer are both released from further liability. A
committee of arbitration appointed on the request of Bodine decided
that $750 should be deducted from the amount of the compensation
award to which he was entitled. The industrial commissioner re
viewed the decision and upheld it. Pending the review Bodine died,
and his administrator, W. C. Benner, was substituted as plaintiff.
Further appeal was made to the district court* which reversed the
WORKMEN ?S COMPENSATION*
821
decision of the commissioner, entering judgment for plaintiff for the
full amount of the unpaid statutory compensation which had accrued
up to the date of Bodine’s death, without any deduction on account
of the sum paid by the railway company. Defendants appealed to
the supreme court. The compensation statute provides that in
case of an injury to an employee caused under circumstances creating
a legal liability in some person other than the employer to pay
damages: (a) The employee may take proceedings against both
his employer and the third person, but his compensation shall be
reduced by the amount of damages recovered, (b) If the em
ployer pays compensation, he shall be entitled to indemnity from the
third person so liable. The laundry company and its insurer con
tended that the case fell within the above statute. The supreme court
in affirming the decision in favor of Benner held that the facts al
leged and proved must comply with the statute and show a 4 legal
6
liability ” in the third person, which was not done in this case, there
fore the company’s defense failed. The appellants stated that Bodine accepted money in payment of the damages he sustained, thereby
releasing the railway and depriving appellants of their rights of
subrogation. The court said that it was not within the power of
Bodine to deprive them of this right if they had it. It is no defense
that Bodine accepted money in payment of the damages he sustained,
as it is not shown that a legal liability for such damages existed.
The money here received is in consideration of a promise not to sue,
which is a legitimate contract. The court in conclusion said:
The right of Bodine to sue any person other than his employer was
a mere option. He could, if he chose, rest upon the allowance to him
of the statutory compensation, and his refusal to seek satisfaction
at common law would work no wrong to his employer. If he could
refuse to sue without affecting his right to receive compensation, how
can his mere agreement not to sue affect the relations of the parties,
even though as between him and the railway company it may be said
to operate as a release ? Had he elected to sue and had recovered and
collected judgment for damages then, as he could not be permitted
to receive more than one satisfaction, the appellants could require
him to account to them for their advancements upon his compensa
tion. But he did not sue, and there is no showing that in covenanting
not to do so he deprived the appellants of any right or advantage
they would have acquired or enjoyed had that covenant never been
made. If Bodine had no right to recover damages from the railway
company (and none has been shown), then the appellants could not
obtain any better or higher right by subrogation, even though the
covenant not to sue had never been made. And for appellants to be
allowed credit or deduction upon the compensation payable to the
claimant, it must affirmatively appear that the money received by him
was in legal effect a recovery of damages, a showing which has not
been made.
322
TEXT AND SUMMARIES OF DECISIONS.
W o r k m e n ’s C o m p e n s a t i o n — I n j u r y
by
T h ir d
P a r t y — S ubro g a
—Henderson Telephone & Telegraph Co . {Inc.) et
al . v. Otvensboro Home Telephone & Telegraph Co. et al ., Court o f
Appeals of Kentucky (June 2J), 1921), 233 Southwestern Reporter ,
page 74-3.—The Henderson Telephone & Telegraph Co. (Inc.) was
directed by the board of workmen’s compensation to pay an em
ployee named Graves about $800, in weekly installments of $12 each.
This company was insured with and by the Georgia Casualty Co.,
who paid the award to Graves. The Henderson T. & T. Co. then
brought this action against the Owensboro company and another,
to recover the amount of the award, upon the ground of gross negli
gence of the two defendant companies in leaving exposed a danger
ous explosive which was the proximate cause of the injury to Graves.
In the circuit court judgment favored the defendants and the plain
tiff appealed. The court of appeals held that there was no question
but that an employer who had paid or become obligated to pay an
award of the board of compensation to an injured employee has a
right of action against third persons whose negligence was the proxi
mate cause of the injury. But in this case the employer has neither
paid nor obligated himself to pay the award and therefore has no
right of action under the act. The language of the act is:
The employer, having paid the compensation or having become
liable therefor, shall have the right to recover in his own name.
Judge Sampson, speaking for the court, said:
The payment or obligation to pay the award on the part of the
employer is a condition precedent to his right to maintain the action
against a third party. The statute gives no right of action in such
case to the insurance company either in its own name, or that of
the employee to recover the amount paid on the award from the
negligent third person who caused the injury for which the award
was made. So if such right of action exists it is on equitable
grounds of subrogation and not by statute in this State. The
statutes on this subject are not the same in all the States. We can
conceive no equitable reason why the insurance company should
have such right of action against a third person. The employer in
conjunction with many others pays to the insurance company a sum
larger than that which is required to satisfy all such claims for in
demnity, and the insurance company only appropriates from such
fund such part as is necessary in the given case to satisfy the award.
It has lost nothing whatever.
But it is insisted that the employer, being at a constant expense
in providing or maintaining a fund for the payment of such claims,
is properly given by the statute a right of action against the tort
feasor to recoup the loss sustained. The employer by the statute has
the right only when he has paid or obligated himself to pay such
award, and in no other case. The mere fact that he has paid an
insurance premium does not operate to give to him the right to main
tain such action, and the statute can not be so construed.
t io n
of
I n su rer
WORKMEN’S COMPENSATION.
323
In States where the insurance companies are entitled to recover
against a negligent third party the statute is so worded as to confer
the right and not as in the Kentucky statute, which by implication
excludes the insurance company from the right.
W o r k m e n ’s C o m p e n s a t i o n — I n j u r y
not
C o v ered b y
A ct— M u l
—Hyett v. Northwestern
Hospital for Women and Children, Supreme Court of Minnesota,
(December 21f, 1920), 180 Northwestern Reporter, page 552.—Plain
tiff was injured while in the employ of the defendant hospital. He
was disabled for the performance of his duties for a brief period and
in adjustment thereof was given $44. At the same time of receiving
this injury he received another injury which? though of definite
functional effect, did not result in disability to work. Not being
able to find any provision in the workmen’s compensation act covering
an injury of this nature he brought this action for damages against
the employer, alleging negligence on the part of the latter. Plaintiff
demurred to defendant’s answer, and the demurrer was sustained.
The employer appealed, and the order sustaining the demurrer was
reversed. The opinion of the court is in part as follows :
The only question presented is whether an employee within the
compensation act, who suffers an injury in the course of his em
ployment which results (1) in a disability, temporary or permanent,
for which compensation may be had under the act; and (2) an asso
ciate injury not amounting to a disability, either temporary or other
wise and for which no compensation is provided, may maintain an
action at law for the latter injury on the ground that it was occasioned
by the negligence of the employer. We answer the question in the
negative.
The question is of first impression in this State, though it has come
before the courts of other jurisdictions. It is important, for a de
cision thereof will determine whether our workmen’s compensation
act, as heretofore generally understood, furnishes the exclusive relief
of an injured employee, or whether, in addition to the relief thus pro
vided, he may resort to a common-law action for injuries not amount
ing to a disability. Every personal injury causes pain and suffering,
measured in degree by the character of the injury; some result in the
disfigurement of the person—the loss of a hand or other member of
the body, an eye, scalds and burns upon the hands or face—all of
which must be carried through life, to the mental distress of the
victim. And in given cases, like that at bar, an injury, accidental or
otherwise, may impair and totally destroy some function of the
human body not of a character to incapacitate the employee from
his usual employment, or affect his earning capacity, therefore not
within the letter of the compensation act. Matters of that character
are proper elements of damage in the negligence action, but our com
pensation act makes no provision for a consideration thereof in the
t ip l e
I n ju r ie s — E x c l u s iv e n e s s o f R e m e d y
101296°—22---- 22
324
TEXT AND SUMMARIES OF DECISIONS.
award to an injured employee, even though they may constitute his
major or principal grievance.
That the remedy so given and provided is exclusive of all others
seems to be the prevailing opinion of the courts where the question
has received attention. If the compensation so provided is deemed
inadequate, or that the act should be made to include all, or any of the
common-law elements or ingredients of relief found in the negligence
law, the change should come about by legislation and not by rule of
court.
For the reasons stated the demurrer to the answer should have been
overruled, and the order sustaining it is accordingly reversed.
W o r k m e n ’s
C o m p e n s a t io n — I n s u r a n c e — S e l f - I n s u r a n c e —
P o w e r o f C o u r t s to, D e t e r m i n e E m p l o y e r ’ s S o l v e n c y — C o n s t i t u
In re Southern Cotton Oil Co ., Supreme Court of Lou
isiana {October 15 , 1920 ), 86 Southern R eporter , page 656.—Section
t io n a l it y —
22 of act No. 20 of Acts of 1914 as amended by act 247 of Acts of 1920,
known as the employers’ liability act (workmen’s compensation act)
requires employers to file with the district court of the parish of
their domicile proof of their ability to meet the obligations assumed
by them in coming under the provisions of the act. The district court
is charged with the duty of examining the books, records, and ac
counts of the employers to determine their solvency. If they are
found to be sufficiently sound financially, they are then exempt from
the requirement of insuring the payment of compensation under the
act and may carry their own insurance. Two judges of the 28th
judicial district court refused to receive or act on the Southern Cotton
Oil Co.’s petition for permission to carry its own insurance, where
upon the company brought this proceeding for a writ of mandamus
to compel said judges to comply with the provisions of the law,
and an alternative writ of mandamus was issued. In recalling the
alternative writ of mandamus and dismissing the application the
court declared that this section of the employers’ liability act was
unconstitutional, because it imposed nonjudicial functions upon the
judges of the district courts, contrary to article 96 of the constitution.1
The opinion is in part as follows:
The respondent judges have replied that relator is not entitled to
have the question of its solvency determined by them vel non in their
capacity as judges of the twenty-eighth judicial court, for the rea
son that article 96 of the constitution provides that no duties or
functions shall ever be attached to the district court or to the several
judges thereof, except such as are judicial; and respondents show
that the determination of the solvency vel non of relator for the
i Though the opinion makes no statement in reference to the matter, it is presumed
that the constitutionality of the law as a whole is unaffected by the finding of uncon
stitutionality as to this provision, section 41 of the act providing that such a finding
affecting any provision of the law shall not affect any other portion that can be given
reasonable effect without the invalid portion.
w o r k m e n ’s c o m p e n s a t io n .
325
purpose of the administration of the workmen’s compensation act
is an executive, and not a judicial, function; that it is beyond the
province of the court to examine or verify the books, records, accounts,
or statements of relator, and that the constitution and statutes of the
State have not provided the courts with the necessary machinery or
assistance for such work.
Article 96 says in part:
“ Except as herein provided, no duties or functions shall ever be
attached by law to the supreme court, courts of appeal, or district
courts, or to the several justices, or judges thereof, except such as
are judicial,” etc.
The determination of the solvency of the relator under the compen
sation act can not be said to be judicial in its nature, and the respond
ent judges are forbidden to perform such act.
W o r k m e n ’s
C o m p e n s a t io n — I n t e r s t a t e
C o m m e r c e — O il
for
—Lindw ay v. Pennsylvania Co ., Supreme Court of Penn
sylvania (December SI , 1920), 112 A tlantic R eporter , page Ifl.—
Lindway was employed by the defendant to look after its oil reser
voir tank and to make note who received oil and where it went. In
the performance of his duties he attempted to open the valve of a
tank car which he desired to drain into the reservoir tank from which
oil would be drawn for both interstate and intrastate commerce.
While attempting to do this an accident occurred by which he met
his death. His widow brought proceedings for compensation, but
the referee disallowed the claim on the ground that Lindway was
engaged in interstate commerce at the time of the accident which
caused his death. The decision was affirmed by the workmen’s com
pensation board and again by the court of common pleas, whereupon
the claimant entered an appeal to the supreme court which reversed
all the previous decisions and held that Lindway’s work was not in
interstate commerce. The opinion is in part as follows:
In this class of cases we must accept *the decisions of the Supreme
Court of the United States as our guide. The latest utterance from
that tribunal, on this branch of the law, dealing with facts which
at all approximate those at bar, is Chicago, B. & Q. R. R. Co. v.
Harrington, 241 U. S. 177, 179, 36 Sup. Ct. 517, 518 [Bui. No. 224,
p. 105]. There a member of a switching crew was killed while en
gaged in switching a car of defendant’s coal to a shed, where the
coal was to be stored, for the purpose of supplying, “ as needed,”
locomotives “ engaged or about to be engaged in interstate and
* * * intrastate traffic.” Justice Hughes, in deciding that,
under these circumstances, the deceased was not engaged in interstate
commerce, said:
“ The only ground for invoking the Federal act is that the coal
thus placed was to be used by locomotives in interstate hauls.”
E n g in e s
326
TEXT AND SUMMARIES OF DECISIONS.
After which he said that the work in question “ was nothing more
than the putting of the coal supply in a convenient place, from which
it could be taken as required for use,” and that this was not “ so
closely related ” to interstate commerce “ as to be practically a part
of it,” which he stated is the test.
It will be noted that in the matter above quoted, Justice Hughes
expressly states that the “ only ” ground for invoking the Federal
act was that the article being handled was intended for interstate
traffic. In view of this traffic statement, the sole distinction which
we can see between the case just cited and the one now before us, is
that in the present instance claimant’s husband was killed when
engaged in storing oil, which was to be subsequently used in both
interstate and intrastate commerce, while in the case cited the person
affected met his death when engaged in storing coal for like uses.
Of course, this is a distinction without a difference so far as the ques
tion of law here involved is concerned; therefore, the ruling authori
ties govern the facts at bar in favor of the appellant.
W o r k m e n ’s C o m p e n s a t io n — J u r is d ic t io n o f C o u r t s— L u m p - S u m
E m ployers ’ Indem nity Corporation v. Woods et al .,
Court of Civil Appeals of Texas (A p ril SO, 1921), 2S0 Southwestern
R eporter , page k61.—This was an action to set aside an award by the
S ettlem ents—
industrial accident board to Willie Woods, who accidentally injured
his right arm while in the discharge of his duties. Woods agreed
with the indemnity corporation to accept a lump-sum settlement of
$150, which was decided on by judgment of a justice court. The
industrial accident board did not approve of this settlement, but
made a separate settlement of $9 a week for 200 weeks. The trial
court upheld the findings of the industrial accident board. The
Employers’ Indemnity Corporation, on appeal to this court, claimed
that the justice court had jurisdiction, and that its judgment was
final as to all matters in this suit. The court of civil appeals af
firmed the action of the lower court and said in part, speaking
through Judge Walker:
It seems to us clear, from a reading of these sections, that it was
the intention of the legislature to provide for the payment of com
pensation in weekly payments, with certain definite exceptions, to
be approved by the industrial accident board, and to make void a
contract by a beneficiary to commute his compensation to a lump
sum without the board’s approval. If we are correct in this con
struction of this act, it follows that the contract of settlement be
tween Woods and appellant was void, as the board never approved
it.
Again, if there rests with the courts the power to decree lump-sum
settlements as a subject of original jurisdiction, it must be under
their general legislative or constitutional grant of power or the
power inherent in them under the common law, for such power is not
given them by the terms of the workmen’s compensation act. Under
327
WORKMEN 7S COMPENSATION.
their general jurisdiction we do not think they have the power to
decree such settlements.
This workmen’s compensation act is in derogation of the commonlaw rights of the parties, and proposes, within its own compass, to
provide for a speedy adjustment of all industrial accidents coming
within its terms.
Against the letter of the law, the justice court could not assume
jurisdiction, and thereby make its judgment res judicata of that
issue.
W o r k m e n ’s
C o m p e n s a t io n — M e d ic a l
S e r v i c e s -— M a s s a g e
I nde
Golden’s ease , Supreme Ju
dicial Court of Massachusetts (Novem ber 26,1921), 132 Northeastern
R eporter, page 726.—Newton Golden was an employee of the Wor
pendent
of
T r e a t m e n t b y P h y s ic ia n —
cester Electric Light Co. While at work on March 29, 1918, he re
ceived an injury to his shoulder resulting in complete atrophy of his
right hand and arm. He was awarded $500 for “ the loss of the use
of his hand.” He was also paid compensation for seven months
following the injury. From early in September, 1919, to the date of
the hearing he had been treated upon 303 days by Gertrude K. Doyle,
a masseuse. Her bill for services amounted to $909. The industrial
accident board approved of her fee for services. The employer and
its insurer appealed. The supreme judicial court reversed the award
and dismissed the petition, holding that an insurer was not liable
for services in massaging an injured arm solely upon the employee’s
request and not as a part of treatment by a physician, even though
the injury was an unusual case. Judge Jenny for the court said:
The statute provides for the payment of only physicians and hos
pitals. Under the procedure now considered, that which is to be
furnished is “adequate and reasonable medical and hospital services,
and medicines, where they are needed.” Detailed provisions as to
the selection of a physician are set forth. While the term “ medical
services,” if used without limitation, may be susceptible of a broad
construction, the statutes cited clearly indicate that those words, as
therein used, are restricted to medical assistance rendered by the
sician or under his direction and control.
he massage performed, so far as it appears solely upon the em
ployee’s request and not as a part of treatment by a physician, was
not medical services within the statute, and the insurer is not liable
therefor in this proceeding.
W o r k m e n ’s
C o m p e n s a t io n — M in o r
I llegally
E m ployed—
In
Edward Stern de Company v. Liberty Mut. Ins. Co., Su
preme Court of Pennsylvania (March 7, 1921), 112 Atlantic Reporter,
page 865.—Edward Stern & Co. operated under the workmen’s com
su rance
—
pensation act, and in accordance with its provisions had itself insured
against all liability for injuries sustained by its employees coming
328
TEXT AND SUMMARIES OF DECISIONS.
under the act, and “ where a liability is imposed upon the employer
by the laws of Pennsylvania for damages on account of such in
juries.” Edward Stern & Co. employed Edward Hair, a minor un
der the age of 16 years, to work about dangerous and unguarded
machinery. It was contrary to the State law to employ minors of
such age about such machinery (act of May 13, 1915, Pi L. 286), and
it was unlawful to maintain dangerous machinery in such an unsafe
and unguarded condition (sec. 11, act of May 2, 1905, P. L. 352).
Hair sustained an injury for which he brought -suit for damages.
By agreement the case was settled for an agreed sum. The employer
company then sued the insurance company for reimbursement under
the insurance contract for its loss. Judgment was rendered in favor
of the employer, and the insurance company appealed. In affirming
the decision the court said in part:
We have held in Lincoln v. National Tube Co., 112 Atl. 73, not yet
(officially) reported, that a minor so [illegally] employed, is not a
compensable employee under the workmen’s compensation act. The
risk under the policy in the present case was not limited solely to
liability as imposed by the workmen’s compensation act. Liability
under that act is (1) to pay elective compensation under article 3;
(2) to pay damages in cases where the employer or employee has
elected not to accept the provisions of article 3. But, under the
second paragraph of the policy, it indemnifies against loss for liabil
ity imposed by the laws of the State for damages on account of
personal injuries to employees. With these plain statements, we can
not limit its coverage to claims arising under the compensation act,
as it was manifestly intended to reach common-law liability, based
on employment not specifically within the terms of the compensation
act. When the policy was written, it may have been intended to
cover cases where the employer was imposed upon with respect to
the ages of some of its employees; but, had appellant desired to
limit its risk, it could*have easily written the limitation in the con
tract.
Nor is the policy a contract to indemnify against the consequences
of the violation of a penal statute, and therefore contrary to public
policy. It does not insure against penal violations, but in&emnifies
against loss through accidents to employees, resulting in physical
injury. Undoubtedly appellee was guilty of an offense for which
it might have been fined or some of its members imprisoned. The
policy did not insure against this. To make it civilly liable, an
accident must have happened, and, without the accident there would
be no cause for liability. The risk or hazard was loss by reason of
an accident, and whatever elements, whether of negligence or of
illegality, entered into the accident, are merely incidental to the
main question, namely, recovery under a hazard indemnifying an
employer against loss by reason of liability to employees, enforced
under the laws of the State. It was not necessary for plaintiff to
prove an unlawful act to make out its case.
The contract was, in itself, fair and legal, founded on a valid con
sideration, and is not to be declared void simply because there was,
w o r k m e n ’s c o m p e n s a t io n .
329
or might have been, a violation of the child-labor law. Appellant
forgets the business it is engaged in and the risk it took; the premium
is fixed on that risk, and the loss covered by it contemplated em
ployees generally, without qualification. The circumstances under
which the employment is made are merely incidental. To refuse to
sustain the contract would be to read into it an exemption not con
tained therein nor thought of at its inception.
The judgment is affirmed.
W o r k m e n ’s
C o m p e n s a t io n — M in o r
I lleg a lly
E m plo y ed — S u it
Lincoln et aZ. v . National Tube Co ., Supreme Court
of Pennsylvania (December SI , 1920) , 112 A tlantic Reporter , page
7 3 — Lincoln, a minor, was, contrary to the express provisions of the
fo r
D am ages—
statutes of the State of Pennsylvania, assigned to the duty of operat
ing a hoisting machine, and while so doing he was injured. He
brought action for damages for his injuries and recovered a judg
ment. The employer appealed, declaring that the case came under
the provisions of the workmen’s compensation law and that the
recovery should be governed by the provisions of that law. The
court affirmed the decision for plaintiff, saying in part:
Notwithstanding the able argument of the junior counsel for ap
pellant, we are not satisfied the court erred in deciding the former
act did not apply to the case of minors engaged in work for which,
by statute, their employment was expressly forbidden. Certain
clauses in it furnish opportunity for a plausible argument to the
contrary, but in terms it relates only to those employers who “ shall,
by agreement, either expressly or implied, * * * accept the
provisions” thereof. Since no legal contract could be made by or
for the minor to do this kind of work, and as such a contract could
not be legally “ renewed or extended by mutual consent, expressed
or implied,” it is clear the workmen’s compensation law does not
cover the case; and this conclusion is rendered still further necessary
by the fact that the two statutes were adopted at the same session
of the legislature, and if possible each must be given full effect
without one infringing upon the domain of the other.
W o r k m e n ’s
C o m p e n s a t io n — M in o r
I lleg a lly
E m plo y ed — S u it
—Noreen v. W illiam Vogel & Bros. (Inc.), Court of
Appeals of New York (M ay SI , 1921), 1S2 Northeastern Reporter,
page 102.—Leonard Noreen, an infant, by his guardian ad litem,
Oscar Noreen, brought an action against the defendant, his em
ployer, for damages on account of injuries received while in its
employ. The defendant urged that it had complied with the pro
visions of the workmen’s compensation act and that the compensa
tion commission had made an award of $369 for the injuries now
sued for, which amount had been paid before the commencement of
fo r
D am ages
330
TEXT AND SUMMARIES OE DECISIONS.
this suit. Noreen was employed on the representation that he was
17 years of age, but he actually was under 16, and had worked upon
a metal-stamping machine in violation of the provisions of the labor
law. The trial court gave a judgment in favor of the plaintiff,
which the appellate division of the supreme court affirmed. The ques
tion was whether an infant under 16 years at the time of the injury
could maintain an action to recover damages for such injury against
an employer who has complied with the requirements of the work
men’s compensation law, or is the remedy provided in the workmen’s
compensation law exclusive. The court of appeals reversed the deci
sions of the lower courts and dismissed the complaint. Judge
Hogan wrote the opinion of the court, in which he said:
In substance, we held that the legislature was clothed by the
constitution with the plenary power to extend or curtail the right
of an injured party to maintain an action to recover damages for
an injury sustained; that the statute provided compensation not
only for the employee, but as well for the family and dependents of
such employee, and likewise definite compensation for an accidental
injury occurring with or without fault imputable to the employer.
Irrespective of the fact that the plaintiff secured employment by
misrepresentation as to his age, and that defendant omitted the
exercise of due diligence to ascertain his age, when plaintiff entered
upon the service of the defendant in consideration of a compensation
to be paid him therefor the relation of employer and employee ex
isted between them. In the absence of the workmen’s compensation
law the plaintiff having been injured in such service, if he brought
a common-law action to recover damages for such injuries, would
seek a recovery upon the ground' that he was an employee, and as
such entitled to assert the applicability of the rules of law relating
to the duty imposed upon a master toward a servant. He could not
be an employee and defendant an employer in said common-law
action and. occupy a different position by reason of the existence of
the workmen’s compensation law. The method adopted by an indi
vidual to secure employment from an employer misled by the repre
sentations of the individual seeking service does not determine the
relationship existing between such persons. When the employment
is entered upon, the law determines the relations, rights, and remedies
of the parties.
W o r k m e n ’s
C o m p e n s a t i o n — N o t ic e — F i r s t - A id
T rea tm en t —
—Conley v. U p
son Co . et al ., Supreme Court of New Y ork , A ppellate Division
(Ju ly 7, 1921), 189 New Y ork Supplem ent , page lf7S.—Philip Con
ley, an employee of the defendant company, while at work upon a
pressing machine some time in the month of May, 1918, had some
paper shavings thrown into his left eye. He was sent to the first-aid
room, where the eye was washed with boracic acid. Fie finished his
day’s work and continued to work, making no complaint and giving
P r o g r e s s iv e D i s a b i l i t y — N e g a t iv e D e c is io n
F in a l
WORKMEN 7S COMPENSATION.
331
no notice of any serious trouble with his eye. He said that follow
ing the accident his eye became gradually worse, and in January,
1919, eight months after the accident, the sight was completely gone.
He had never consulted a physician, or asked the employer to fur
nish a physician, until after the eye had fully lost its sight. He
consulted a lawyer in January, but did not call a physician until
April, 1919. In October, 1919, Deputy Commissioner Lang denied
a claim for compensation because “ no date of accident fixed ” and
there was “ no notice of accident to employer in accordance with
provision of law.” The commission, upon the suggestion of its coun
sel, reversed its former decision and reopened the case, giving an
award in favor of claimant. The Upson Co. and the insurance car
rier appealed to the appellate division, which reversed the award
and dismissed the claim. Judge Woodward, speaking for the court,
said:
Giving the claimant the benefit of a technical construction of the
act, that the notice was not required until “ within 10 days after
disability,” he says that this eye had totally lost its sight in January,
1919, and certainly he was called upon to give the notice at that
time, if he was to come within the plain letter of the law. But if the
employer and the insurance carrier were not to be prejudiced by the
alleged serious consequences of this apparent trifling accident, they
were entitled to notice as soon as it became evident that the eye was
growing worse; they had a right to have the claimant treated for
the injury at a time when treatment was calculated to be of use in
preventing further injury. Such notice as was given by the washing
out of the eye at the first-aid station on the occasion of the accident
was. not notice that this eye was likely to become wholly useless
within a period of eight months. It was notice of a trifling injury,
such as the first-aid station was designed to provide for—nothing
more; and the fact that the claimant went back to his work, continu
ing the same for a considerable period, making no complaint, justi
fied the employer in concluding that the first aid had fulfilled its
legitimate purpose and that there was no occasion for further action.
It is true that where an award is made the commission is author
ized, upon its own motion or upon the application of any party in
interest, on the ground of a change in conditions, at any time to re
view any award, and, on such review^, may make an award ending,
diminishing, or increasing the compensation previously awarded;
but this is confined to an award previously made.
When, by its decision, it determines that there is no case, then it is
without jurisdiction. As it is not called upon to make findings upon
which an award is denied, so there is no authority for reviewing
such denial, except by an appeal in the manner prescribed by section
23. It is the “ finding or orders relating thereto,” which the com
mission is authorized to modify or change (sec. 74), and not the de
termination of the commission making or denying an award, for
this is declared to be “ final as to all questions of fact, and, except as
provided in section 23, as to all questions of law,” and the court of
appeals has “ always given literal effect to the words 6final and con
332
TEXT AND SUMMARIES OF DECISIONS.
elusive,’ and has sought to promote the policy upon which the statute
is founded.”
W o r k m e n ’s
C o m p e n s a t io n — P e r m a n e n t
P a r t ia l
D is a b il it y —
Chicago Home for the Friendless
v. Industrial Commission et al ., Supreme Court of Illinois {A pril 21,
1921) ISO Northeastern R eporter , page 756.—Kate Budnick was
D is f ig u r e m e n t — S in g l e I n j u r y —
employed by the Chicago Home for the Friendless. While at her
work she had her left hand caught in a mangle and so badly crushed
that the fingers had to be amputated. She developed a state of
tetanus, Which when it subsided left her face disfigured, and she was
unable fully to use her jaws. The compensation law of the State
provides (sec. 8) for compensation for disfigurement, but not where
the injury causing it also causes a permanent partial or total disability
forv hich compensation is awarded. The claimant was awarded com
w
pensation for the loss of her left hand and for disfigurement, wrhich
on appeal was affirmed by the circuit court. The employer appealed
again, alleging that the additional award for disfigurement was not
properly allowable. The supreme court accepted this view and
amended the award to eliminate this item. The decision is in part as
follows:
Plaintiff in error concedes its liability for the loss of the left hand,
and has voluntarily paid the installments arising out of that injury as
they fell due. It contends, however, that it is not liable under the
compensation act for any disfigurement of the face of defendant in
error. We have held that if an employee receives two injuries, one
that disables him and another that causes disfigurement of his hands,
face or head, he is entitled to compensation for the disability and the
disfigurement. (Wells Bros. Co. v. Industrial Com., 285 111. 647, 121
N. E. 256; International Coal Co. v. Industrial Com., 293 111. 524,
127 N. E. 703.) On the other hand, we have held that where an em
ployee is disabled and disfigured by the same injury he is not entitled
to recover compensation for the disfigurement. (Smith-Lohr Coal
Co. v. Ind. Com., 291 111. 355, 126 N. E. 164.) The only question
presented for decision is, therefore, whether defendant in error suf
fered one or two injuries. If at the time her hand was crushed in the
mangle she had fallen into the machinery and disfigured her face,
there would be no question but that she would be entitled to compen
sation for the injury to the hand and the disfigurement to the face;
but the facts here present a different situation. Defendant in error
suffered a single injury, which has resulted in a disability and a dis
figurement.
Compensation was payable and has been awarded under paragraph
(e) of section 8 for loss of the left hand—the only injury defendant
in error received. Compensation has been paid for the temporary
disability resulting from the sickness which followed this injury, and
the act does not authorize further compensation for a disfigurement
resulting from the same sickness. This case presents a meritorious
claim for which compensation is not provided by the terms of the
w o r k m e n ’s c o m p e n s a t io n .
333
act, but the courts are not authorized to write a provision into the
act in order to sustain this award. The remedy is with the legisla
ture.
In so far as the judgment of the circuit court confirms the award
of the industrial commission for disfigurement of the face of the de
fendant in error, it is reversed and the award set aside. In all other
respects the judgment of the circuit court is affirmed.
Reversed in part and affirmed in part.
W o r k m e n ’s C o m p e n s a t i o n — P o w e r s o f
C o m m is s io n — D e c is io n -
—Lorchitsky v. Gotham Folding Box Go., Court of
Appeals of New Y ork (November 16, 1920), 128 Northeastern R e
porter, page 899 .—While working for the box company an outsider
offered to help Lorchitsky, but the latter rejected the proffered aid.
The outsider, however, assisted and bungled the job, whereupon Lor
chitsky applied to him an opprobrious epithet and was assaulted
therefor by the outsider. Later Lorchitsky while at work fell to the
floor. It afterwards developed that he was injured, and upon apply
ing for compensation he was granted an award by the industrial
commission. The commission rendered a statement of facts and
included'an opinion in which both the assault and the fall were dis
cussed in an attempt to determine which caused the injuries, but
finally concluded that one or the other occurrence actually caused
them without definitely stating which. The appellate division unani
mously affirmed the award (179 N. Y. Supp. 932), and the employer
appealed again. In reversing the award and granting a new hearing
the court said, in part:
A substantial award was made to the claimant because of injuries
received by him while in the employ of the appellant box company.
It is insisted by appellants that while these injuries arose in the
course of his employment, they did not arise out of it. Since the
award has been unanimously affirmed, we are confined in a considera
tion of this claim to the facts as found by the commission.
The findings proper state that while claimant was in the regular
course of his employment he received certain injuries, and that these
injuries arose out of and in the course of his employment. This lat
ter statement is a mere conclusion, and an award ought not to rest
upon so general and inadequate a basis. But, further than this, the
findings then state that his injuries were sustained as set forth in
the opinion of the commissioner writing in the case, “ which is
adopted herein as if set forth in full.” We therefore are not only
permitted but required to turn to this opinion in the endeavor to
find out what did happen to the claimant and to ascertain how his
injuries arose.
The account of the accident is then rehearsed, and reference is
made to the commissioner’s discussion in his attempt to decide
whether the blows or the fall caused the injury.
F in d in g s o f F a c t
334
TEXT AND SUMMARIES OF DECISIONS.
In the end, however, he does not decide this question, but simply
reaches the conclusion that the injuries resulted from either one
cause qr the other, being of the opinion that it was unnecessary to
determine which was the cause, because where “ there is distinct
proof of an accident section 21 of the compensation law raises the
presumption that it arose out of and in the course of the employ
ment.”
This view of the law was erroneous and did not furnish any ex
cuse for not determining which of the two causes resulted in claim
ant’s injuries. It is not the law that mere proof of an accident with
out other evidence creates the presumption under section 21 of the
workmen’s compensation law that the accident arose out of and in
the course of the employment. On the contrary, it has been fre
quently held, directly and indirectly, that there must be some evi
dence from which the conclusion can be drawn that the injuries did
arise out of and in the course of the employment.
Therefore, treating this opinion as stating findings of fact, as we
are required to do by the action of the commission, we have it that it
has simply been found that the claimant’s injuries resulted from
one or the other of two causes, and it is too well settled to require
citation of authorities that such alternative findings are insufficient
to sustain the award which has been made unless each of the two
causes was of such a character as would authorize and justify it.
That is not the case
W o r k m e n ’s
C o m p e n s a t i o n — R a il r o a d
C o m p a n ie s — I n t e r s t a t e
P hila
delphia <& Reading B y. Co . v. P olk , Supreme Court of the United
.S tates (M ay 16 , 1921) , 41 Supreme Court Reporter , page 518 .—This
C o m m erce— E m plo yee
on
F r e ig h t
T r a in — P r e s u m p t io n s —
case was brought before the Supreme Court on a writ of certiorari.
Compensation had been awarded to the wife of John M. Polk under
the law of Pennsylvania, and the award was sustained by the court of
common pleas and the supreme court of the State. Polk had died
as the result of an accident on a freight train, occurring in the course
of his employment by the railroad company. The company was a
common carrier, by rail, engaged in interstate and intrastate com
merce. The train, on which Polk was a member of the crew, had
cars of various commodities coming from and consigned to places
in and outside of Pennsylvania. Judgment was reversed and the
cause remanded. Mr. Justice McKenna delivered the opinion of the
court, citing the case of Philadelphia & Reading Ry. Co. v. Di
Donato, 41 Sup. Ct. 516 (this bulletin, next case below), and held
that Polk was engaged in interstate commerce. The opinion reads
in part as follows:
The employment concerned both kinds of commerce and was to be
exercised as much on one as on the other. In other words, was as
much and as intimately directed to the interstate cars and freight
as to the intrastate cars and freight, and that there might have been
WORKMEN 7S COMPENSATION.
335
some duties directed to the latter, though there is no evidence of it,
is the suggestion of a speculation that has no tangible prompting in
the case.
Besides, we can not accede to the view that there is a presumption
that duties performed on a train constituted of interstate and intra
state commerce were performed in the latter commerce. The pre
sumption, indeed, might be the other way. It is to be remembered
that it is the declaration of the cases that if there is an element of
interstate commerce in a traffic or employment it determines the
remedy of the employee.
W o r k m e n ’s
C o m p e n s a t i o n — R a il r o a d
C o m p a n ie s — I n t e r s t a t e
—Philadelphia & Reading R y . Go. v. D i Do
nato , Supreme Court of the United States (M ay 16 , 1921) , 41 Supreme
Court R eporter , page 516 .—An award of compensation by the work
men’s compensation board for the death of Pasquale Di Donato was
affirmed by the court of common pleas and the Supreme Court of
Pennsylvania. Di Donato was employed as “ a crossing watchman,”
and while flagging a train was struck by another train and instantly
killed. The company contends that at the time of the occurrence of
the injury Di Donato was engaged in interstate commerce. The case
was brought up to the Supreme Court by writ of certiorari. The deci
sion of the Pennsylvania courts was overruled and the case remanded.
The court followed Pedersen ^. Delaware etc. R. R., 229 U. S. 146, 33
Sup. Ct. 648 (Bui. No. 152, p. 85), and Southern Pacific Co. v. Indus
trial Accident Commission of the State of California, 174 Cal. 8, 161
Pac. 1139 (Bui. No. 246, p. 93), and held that Di Donato was engaged
in interstate commerce. Mr. Justice McKenna, in stating the opinion
of the court, said in part:
The service of a flagman concerns the safety of both commerces,
and to separate his duties by moments of time or particular incidents
of its exertion would be to destroy its unity and commit it to con
fusing controversies.
Di Donato’s duty had other purpose than the prevention of a dis
aster to a particular train. It has purpose as well to the condition
of the tracks and their preservation from disorder and obstructions.
This service and the other service can not be separated in duty and
responsibility. It is to be remembered that not only the remedy of one
employee is involved in a particular duty but that other employees
and other remedies are to be considered as well, and the defenses to
them, and that behind them are the respective powers that may have
ordained them. Therefore, whether they be of State or congressional
power, there is an equal necessity for their accurate delimitation.
This case, therefore, has importance beyond the interest of the parties
to it. Its principle and example, reinforcing the Pedersen case and
the cases based upon it, make a test by which future cases may be
assigned to intrastate or interstate commerce and mark the power
and policies that may be necessary or convenient to either.
C o m m erce— F lag m an
336
TEXT AND SUMMARIES OF DECISIONS.
W o r k m e n ’s
C o m p e n s a t io n — S ec o n d
D is a b il it ie s
—Loss
I n ju r y — P e r m a n en t
P ar
K lipp ert v. Industrial Ins.
Departm ent of "Washington et al ., Supreme Court of Washington
{February 15,1921), 196 Pacific Reporter, page 17.— Fred Klippert,
t ia l
of
E y e and A rm —
while employed in an extrahazardous occupation, sustained injuries
which resulted in the loss of one of his eyes by enucleation. He
received compensation for this injury in the sum of $1,200, which is
the amount fixed in the schedule of permanent partial disabilities in
the workmen’s compensation law of the State. About a year and a
half later, while again engaged in an extrahazardous occupation, he
sustained further injuries which resulted in the loss of his major
arm at the shoulder. The industrial insurance commission found
that he was entitled to compensation, but decided that the amount
which he had previously received for the loss of an eye, $1,200, must
first be deducted from the amount allowable for the loss of a major
arm, $1,900; but since a maximum amount of $2,000 is allowable for
unscheduled injuries, he could have this sum minus the previously
awarded $1,200, or the sum of $800. Klippert appealed, and the
superior court reversed the decision of the commission and held that
he was entitled to an award of $1,900 for the loss of his major arm,
notwithstanding any previous awards of compensation for other
injuries. In sustaining the decision of the superior court the State
supreme court said in part:
The enactment of this specific schedule of awards certainly indi
cates that from experience in the operation of the industrial insur
ance compensation system it was found best to fix and make certain
specific amounts for specific injuries, and not leave injuries to be
classified by the commission with only the maximum for their guid
ance.
We have always endeavored to interpret the industrial insurance
act liberally, with a view of accomplishing the result intended, which
was, as stated in the first case we decided bearing upon the act and
upholding its constitutionality, to substitute for an unscientific and
burdensome system a system which will make an award in all cases
regardless of the cause or manner of infliction, limited in amount, it
is true, but commensurate in some degree with the disability suffered.
There is some uncertainty as to the meaning of subdivision (g)
of the amendment of 1919, providing that—
Where “ a further accident occurs to a workman who has been
previously the recipient of a lump-sum payment under this act, his
final compensation shall be adjudged according to the other pro
visions of this section and with regard to the combined effect of his
injuries and his past receipt of money under this act.”
Thus, under the last clause of the above subdivision, the commis
sion, acting with cautious discretion, thought that they were required
to deduct the amount already received from the maximum amount
possible to -be received by a disabled workman under the act. But
statutes must be construed as a whole, and that construction given,
WORKMEN *S COMPENSATION.
337
where possible, that will harmonize the entire statute and make it
sensible and effective. Applying these principles to the construction
of the statute before us, it is manifest that in enacting the schedules
provided in the acts of 1917 and 1919, materially changing the
phraseology and legal effect of the original act of 1911, the legislature
intended to provide for all cases ©f disability permanent in character
but partial in effect, and in adopting the schedule therein to provide
for definite amounts for those certain specified injuries, the amount
being graduated according to the magnitude of the injury. To the
extent of such specific provisions the law is mandatory and, being
mandatory, can not be enlarged or contracted beyond its express
terms.
W o r k m e n ’s C o m p e n s a t i o n — S e c o n d I n j u r y — T o t a l D i s a b i l i t y —
Loss
O
E
— Combination Rubber Mf g . Co. v. Court of Com
mon Pleas in and for Essex County et al ., Court of Errors and A p
peals of New Jersey {Septem ber 23, 1921), 115 A tlantic Reporter,
page 138.—Eichard Obser, a workman, having already lost one eye
of
ne
ye
at the time of entering the employment of the rubber company, sus
tained an injury that rendered him totally blind. The accident in
wdiich he was injured arose out of and in the course of his employ
ment. An award was made under the compensation law on the basis
of total and permanent disability. From this award the employer
brought the matter before the supreme court for review, but judg
ment was affirmed. Judge Parker wrote the opinion of the court,
which was adopted by the court of errors and appeals after the com
pany had again appealed. It is in part as follows:
It is claimed for prosecutor that what the employee lost by the
accident was “ an eye,” and inasmuch as the act prescribes specific
compensation for the loss of an eye, that clause should be applied.
But this we conceive to be too literal an application of the letter of
the statute, with results quite inconsistent with its spirit. That the
act is remedial in character appears by the entire trend of decision
in this State in cases arising under it. As a remedial act it should
be liberally construed; and, applying this rule, we are clear that as
respects major injuries, like the loss of an eye, an arm, or a leg, the
legislature was dealing with a situation in which the other eye, arm,
or leg would still be available. The case of Bateman Mfg. Co. v.
Smith, 85 N. J. Law, 409, 89 Atl. 979 [Bui. No. 169, p. 256], is not at
variance with this view, for in that case the claim was for loss of
one of two legs, plus nervous shock caused by the injury. We think
this is not parallel with a case in which a one-legged man is deprived
of his only remaining leg, or a one-eyed man of his sole eye. Such
cases come within the general clause of subdivision (c) of paragraph
11, as amended in 1913. “ In all other cases of this class, or where
* * * any physical function is permanently impaired.” The pe
titioner had eyesight when he entered on his employment. That eye
sight was a physical function; it was destroyed utterly. True, the
word “ impair,” taken literally, does not cover total destruction of
338
TEXT AND SUMMARIES OF DECISIONS.
a function, but here again the spirit should not be killed by the let
ter. The compensation proscribed by the clause is the same propor
tion of that provided for loss of both eyes (involving total blind
ness) as the disability produced by the injury in question (total
blindness) bears to that produced by the loss of both eyes, i. e., the
same.
The trial judge was manifestly entitled to find that petitioner had
suffered a total loss of the function of vision, and that this entitled
him to the same compensation as a disability produced by the loss
of both eyes.
W o r k m e n ’s
C o m p e n s a t io n — S e c u r it y
of
P a y m e n t s — V io l a t io n
—People v. Donnelly, Supreme Court of New Y ork,
A ppellate Division ( October 28, 1921) , 190 New Y ork Supplem ent,
page 502 .—Albert E. Donnelly was an employer of labor, engaged
in the business of painting, a hazardous employment as defined in
group 42 of section 2 of the workmen’s compensation law. He was
charged with and convicted for a violation of section 52 of the law,
which provides:
S ec . 52. Failure to secure the payment of compensation shall
constitute a misdemeanor and have the effect of enabling the injured
employee, or, in case of death, his dependents or legal representatives,
to maintain an action for damages in the courts, as prescribed by sec
tion eleven of this chapter.
From an order arresting judgment the people appealed. The
appellate division affirmed the order upon the grounds that the
words, “ shall constitute a misdemeanor and have the effect,” etc.,
penalized the employer to the extent of depriving him of his commonlaw defenses in a suit for damages, and did not authorize punish
ment under section 1937 of the penal law, which fixes a penalty of
fine or imprisonment, or both. Judge Rich, in rendering the opinion
of the court, said :
The statute provides that failure to secure the payment of com
pensation “ shall constitute a misdemeanor and shall have the effect
of” enabling the injured employee or, in case of death, his depend
ents or legal representatives, to maintain action for damages in the
courts, as prescribed by section 11 of the act. The present statute
does not provide that the penalty shall be fine and imprisonment, in
addition to the deprivation of the employer’s ordinary common-law
defenses in an action by the employee, and, as a penalty, an amount
equal to the pro rata premium which would have been payable for
insurance in the State fund for such period of noncompliance. (Sec.
51.) While it terms the act a “ misdemeanor,” the language imme
diately following, to which it is connected by the conjunction “ and,”
without punctuation, indicates, I think, that the failure to secure
compensation shall have the effect of enabling the injured employee
to maintain his action for damages as provided in section 11 of the
act, which section penalizes the employer to the extent of depriving
a
M is d e m e a n o r
339
WORKMEN *S COMPENSATION.
him of his common-law defenses. The statute created an offense
which was not such at common law; and the legislative intent was
to term it a misdemeanor and prescribe the penalties, viz, depriva
tion of the employer’s common-law defenses in the action which the
employee is permitted to bring in the event his employer fails to
secure compensation, and the monetary penalties recoverable under
section 51.
Judge Jaycox (dissenting) stated that section 52 of the work
men’s compensation law was amended in 1916 by adding the words
“ constitute a misdemeanor and,” and the words “ or representa
tives.” In his opinion he said:
The principal change made in this section was to declare that the
failure to secure compensation should constitute a misdemeanor. By
this amendment I think the legislature intended to make some
change in the law upon this subject. I can not believe that this
amendment was inserted in the statute for the mere purpose of de
nouncing the act for which it had previously prescribed penalties.
If a change was intended, then the only change possible was to
make the act complained of a misdemeanor punishable under section
1937 of the penal law.
The legislature, I think, intended to impose some punishment
upon a person offending against the statute; but if the prevailing
opinion in this case is correct, it signally failed to accomplish its
purpose. It declared the failure to secure compensation a mis
demeanor, but as long as no accident occurred the only penalty that
could be inflicted would be the recovery of an amount equal to the
amount the employer would have paid for insurance. This penalty
is to be recovered in an action brought by the commission, and the
commission is authorized for good cause shown to remit this penalty.
What shall constitute good cause rests entirely in the discretion of
the commission. Therefore we have this curious anomaly: That a
person may be guilty of a misdemeanor*, and his liability to punish
ment rests in the discretion of some governmental body. This is
contrary to the spirit of our laws and the ordinary methods pre
scribed for their enforcement.
W o r k m e n ’s
C o m p e n s a t io n — S u r g ic a l
T r e a t m e n t — H e r n ia —
—0 . IF. Rosenthal & Co . Industrial Com
mission, Supreme Court of Illinois (December 21 , 1920), 129 N orth
eastern Reporter, page 176.—Sylvester Bush, while in the employ of
the Kosenthal Co. became so injured that he sustained a hernia. He
received an award of compensation, which on appeal was set aside
by the circuit court. Upon being brought before the supreme court
the award was confirmed and the decision of the lower court was
reversed. (125 N. E. 250.) After the award was confirmed, the in
dustrial commission suspended payments under it until Bush submit
ted to an operation to cure the hernia. Bush refused to submit to the
operation and appealed, and the circuit court set aside the order of
S u b m is s io n to O p e r a t io n
101296°—22-----23
v.
340
TEXT AND SUMMARIES OE DECISIONS.
the commission modifying the award, whereupon the employer
brought a writ of error. The sole question seems to be, Was the
commission, which had found the operation to be reasonable and not
dangerous, justified in requiring Bush to submit to it. The supreme
court held that it was so justified, saying in part:
The testimony of the physicians was to the effect that it was a
comparatively superficial operation, though counsel for defendant in
error argues that it is a major operation, and one involving some
danger to life, and should not be required as a prerequisite to obtain
compensation for the injury.
This and similar questions have been before the courts quite fre
quently. Paragraph (d) of section 19 of the workmen’s compensa
tion act (Hurd’s Rev. St. 1917, c. 48, sec. 144) vests the industrial
commission with the right to suspend the conpensation of an injured
employee if he “ shall refuse to submit to such * * * surgical
treatment as is reasonably essential to promote his recovery.”
Whether the operation is reasonably essential is for the indus
trial commission to determine, based upon the evidence submit
ted to it, and it would only be in a case where the commission had
acted unreasonably or abused its discretion that the court could
interfere with its findings.
Naturally, each case must depend largely upon its special facts.
The hernia here was caused by the accident, but it appears that an
injury of this kind is not recovered from.in the ordinary process of
healing by allowing nature to take the ordinary course, as is the
case with many wounds. On the facts as found in this record, we
think the findings of the industrial commission suspending the award,
as stated above, were justified, and the courts are bound by the com
mission’s finding.
________
W orkmen’s Compensation:— S urgical T reatment—R efusing Op
eration—R easonable Ground— Grant v. State Industrial Accident
Commission , Supreme Court of Oregon (October 28, 1921), 201 P a cific R eporter , page 1$8.—C. Grant was employed by the Columbia
Shipbuilding Corporation as a riveter. While at work on September
23, 1919, a plank gave way, causing his left knee to strike against a
piece of steel, resulting in a floating semilunar cartilage of the knee
joint. He returned to work on October 4, 1919. An award of com
pensation for temporary total disability for nine days was made.
Grant later had trouble with his knee, and on October 29 an exam
iner of the accident commission advised him that he was free to go to
any doctor he wished. He consulted several doctors who advised
him to submit to an operation. One doctor told him to “ let it go
for a year and maybe it will come back and be all right. ” The opera
tion that was necessary is known as a major operation and would
have resulted in a cure or in a stiff knee. Grant was afraid that an
operation would not be successful and refused to submit to one. He
requested an award for permanent partial disability, which the com
WORKMEN ?S COMPENSATION.
341
mission refused. Grant appealed to the circuit court, which adjudged
that he was entitled to an award of 75 per cent disability. Judg
ment was based on the special finding of a jury that the plaintiff had
reasonable ground for his refusal to be operated upon. The com
mission, not satisfied with the result of the trial,, appealed to the
supreme court. The statute to be interpreted reads:
* * * For such period of time as any workman * * * shall
refuse to submit to such medical or surgical treatment as the com
mission deems reasonably essential to promote his recovery, his right
to compensation shall be suspended and no payment shall be made for
such period, and the commission may reduce the period during which
such workman would otherwise be entitled to compensation to such
an extent as they shall determine his disability shall have been in
creased by such refusal.
The supreme court affirmed the judgment of the circuit court in the
following language:
There are some operations to which a workman must submit or
else lose his right to compensation; and, so, too, there are cases
where the workman may refuse to be operated upon without losing
his right to compensation. The doctrine debarring the workman
from compensation in cases where his refusal operates as a bar
proceeds on the theory that continuance of his disability is due to
his own unreasonable conduct and not to the employment.
Our conclusion is that our statute should be construed to mean
that the workman’s right to compensation is to be suspended if he
refuses to submit to an operation to which an ordinarily reasonable
man would submit if similarly situated. Usually the conduct of a
workman is a question of fact to be decided by the triers of the facts.
If, in a given case, it can be said that the workman is refusing
to undergo a safe and simple operation, which, if performed by a
competent surgeon, is fairly certain to result in removal of the dis~
ability and is not attended by serious risk or extraordinary pain,
and one to which an ordinarily prudent and courageous person would
submit for his benefit and comfort, no question of compensation being
involved, then it can be said that the continued disability of the
workman is the direct result of his own unreasonable refusal. In
the instant case the operation is a major one, and there is a risk of
producing a result which some persons might deem worse than
Grant’s present condition. The jury decided that Grant’s refusal
was reasonable, and the court is bound by that decision of the jury.
W orkman’s Compensation — S urgical T reatment — R efusing
Operation—S uspension of Compensation—M yers v. W adsworth
M fg.. Co. et ol ., Supreme Court of Michigan (July 19 , 1921), 183
Northwestern R eporter , page 913.—W. H. Myers was employed by
the defendant Wadsworth Manufacturing Co. in the capacity of sub
foreman and final inspector of automobile bodies. Because of light
ing conditions it was necessary to turn the body of the car around,
342
TEXT AND SUMMARIES OF DECISIONS.
which had to be done by pushing the wind shield. On July 14, 1920,
in turning the body of a car, the wind shield broke and Myers’ arm
and wrist were severely cut and injured by the glass. He was
awarded compensation under an agreement made with the defendant
company and approved by the industrial accident board. On Octo
ber 13, 1920, the defendant company and its insurer petitioned the
board to be relieved from payment of further compensation to the
claimant because he had returned to work on September 18, 1920.
It was shown that the defendants had on August 21, 1920, offered
an operation to remedy the disability caused by the injury, which was
refused. The petition was denied. The defendants brought the
matter before the supreme court for review. That court reversed
the order of the board, and declared that the plaintiff should not be
allowed further compensation until he submitted to an operation.
Speaking through Judge Stone, who first reviewed the evidence, the
court said:
Is it reasonable to say that the refusal to submit to an operation,
which in all probability will in no way result in detriment to the
plaintiff, either physically or financially, is reasonable conduct of
the plaintiff? We think not. We think it can not be said in the light
of this uncontradicted testimony that there was no reasonable assur
ance that the proposed operation would result in lessening plaintiff’s
disability. When, as here, the employer offers to bear the cost of the
operation and hospital treatment, in an operation of minor character,
where there is a reasonable prospect of restoration of relief from
the incapacity from which the workman is suffering, it seems to us
it is the duty of the plaintiff either to submit to an operation, or
release his employers from the obligation to maintain him.
W orkmen’s Compensation—T emporary T otal D isability—P er
manent P artial D isability—S ubmission to Operation—Loss of
U se of H and—Mount Olive Coal Co. v. Industrial Commission, Su
preme Court of Illinois (December 21, 1920), 129 Northeastern Re
porter, page 108.—Daniel Ivers was 61 years old and was hurt while
in the employ of the coal company. He broke his arm about 1^ inches
above the wrist. The bone was set, and a solid union was made, so
that the bone knitted properly, and Ivers recovered in about 10 weeks.
He was unable, however, to flex the wrist more than 60 per cent and
the fingers only 50 per cent, having a general loss of the use of his
hand to the extent of about 80 per cent. Upon examination it was
declared to be the doctor’s opinion that the disability was merely the
result of nonuse of the hand and that it would improve with use.
He also said that Ivers could be given a harmless anaesthetic, and
that the wrist and fingers could be forcibly flexed and the adhesions
in the tendons could be broken away without pain. Ivers refused
WORKMEN 7S COMPENSATION.
343
to submit to this operation. The commission granted Ivers an award
of compensation for 54 weeks for temporary total disability, and for
120 weeks for permanent partial disability resulting from an 80 per
cent loss of the use of his hand. The employer appealed and the
circuit court affirmed the award, whereupon the employer brought a
writ of error. The court held that the temporary total disability
did not extend beyond 10 weeks, and that before compensation for
permanent partial disability could be had the proposed operation to
flex the fingers and wrist must be submitted to. The decision in part
is as follows:
The period of temporary total incapacity is that temporary period
immediately after the accident during which the injured employee
is totally incapacitated for work by reason of the illness attending
the injury. It might be described as the period of the healing proc
ess. Temporary, as distinguished from permanent, disability is a
condition that exists until the injured workman is as far restored as
the permanent character of the injuries will permit. (Vishney v.
Empire Steel & Iron Co., 87 N. J. Law, 481, 95 Atl. 143.) We find
no evidence in the record to justify the finding of the arbitrator that
the period of temporary total incapacity was 54 weeks. It is clear
from what we have said before that three-fourths or more of this
period was after the healing process was completed, and the dis
ability was therefore due to the permanent character of the injuries,
rather than the temporary illness following the accident.
The evidence here shows, without dispute, that there is a solid
union of the bone, and that the only thing the matter with defendant
in error is the adhesions in the tendons of his wrist and hand. The
operation is a simple one, attended with no danger whatever, and
with no pain under a mild and entirely safe anaesthetic. We must
therefore hold the permanent disability of defendant in error is due
to his refusal to submit to this simple operation, and not due to the
accident.
If the operation should be had and prove unsuccessful, plaintiff in
error would be liable for whatever loss of use of his hand defendant
in error suffers, as well as surgical and hospital services necessary
for the operation and for treatment already received, but if success
ful its liability would be for temporary loss of time and for treat
ments had and surgical and hospital expenses incurred in the opera
tion. Whatever time the commission finds from the evidence de
fendant in error has lost by his unreasonable refusal to submit to this
operation must be credited to plaintiff in error in awarding compen
sation. Such loss of time must be attributed to the voluntary act of
defendant in error in refusing to submit to proper medical treatment,
and must not be attributed to the accident.
The judgment is reversed, and the cause is remanded to the cir
cuit court, with directions to set aside the order of the industrial
commission, and for such further proceedings as are provided by
statute.
.Reversed and remanded with directions.
344
TEXT AND SUMMARIES OF DECISIONS.
W orkmen’s Compensation—T erritories—P ower to S upersede
F ederal S tatute— Oamunas et al. v. Porto Rico R y ., L ight & Power
Co., United States Circuit Court of Appeals, F irst Circuit {March
15,1921), 272 Federal Reporter, page 92k.—The Porto Rico Railway,
Light & Power Co. is a corporation owning and operating steam
railroad and electric lines in Porto Rico. It brought suit for an
injunction against the enforcement of the Porto Rican workmen’s
compensation act. A motion was made for a preliminary injunction
which was granted in the district court, and the defendants appealed.
Plaintiffs claim the compensation act is void by reason of conflict
with the Federal employers’ liability act and because of lack of due
process of law. The circuit court of appeals vacated the decree of
the district court and remanded the case to that court with directions
to enter a decree dismissing the bill. Judge Anderson delivered the
opinion of the court, holding that the legislature of Porto Rico
had the power to enact a workmen’s compensation law, that section
10 of the act passed superseded the Federal employers’ liability act as
to the railroads in Porto Rico, and that the requirements as to due
process of law were satisfied. The decision is in part as follows:
The main question is whether the Porto Rican compensation act
is applicable to Porto Rican railroads. As Porto Rico has in explicit
terms undertaken to include railroads, the problem is really whether
this act is ultra vires the organic act. We think it was not.
By section 87 (of the organic act) the legislature is given broad
and inclusive powers.
Manifestly this grant of power is nearly, perhaps quite, the equiva
lent of the power of a State legislature to enact all laws not incon
sistent with the Federal or the State constitution. The organic act
is the practical equivalent of a State constitution. The fact that it
remains subject to amendment or repeal by Congress is for present
purposes immaterial. In that regard Congress stands as to Porto
Kico in the place of the people of a State, acting directly or indi
rectly through a constitutional convention.
That Congress intended the Porto Rican legislature to have full
police powers is apparent, not only from the language of section 87,
but expressed in emphatic form in the following provision in sec
tion 2—the section containing the bill of rights.
Nothing contained in this act shall be construed to limit the power
of the legislature to enact laws for the protection of the lives, health,
or safety of employees.”
But plaintiff’s chief contention is that the Federal employers’
liability act was in force in Porto Rico.
In the States, interstate commerce arises in connection with the
operation of State-chartered railroads, running through many sepa
rate and differing jurisdictions. Thus interstate commerce, con
ducted by State agencies and subject to numerous conflicting laws, is
hampered and complicated in intolerable fashion. Hence the need
of one inclusive and exclusive rule of liability. But Porto Rico has
WORKMEN ’s COMPENSATION.
345
no interstate commerce—no railroad running out of its charter home
into quasi foreign jurisdictions.
Further support is given the view that Congress did not intend
to continue the liability act operative in Porto Rico by the provision,
in section 38 of the organic act, that the interstate commerce act
and the safety appliance act “ shall not apply to Porto Rico.” The
safety appliance act is an important, if not an essential, part of the
liability act. It was applicable to Porto Rico.
A majority of the court are of the opinion that the liability act and
the compensation act are inconsistent, and that therefore the com
pensation act is, and the liability act is not, applicable to railroads in
Porto Rico.
The present workman’s compensation act was enacted soon after
the decisions of the Supreme Court holding such acts constitutional.
As noted above, at the end of section 10 there is an express provision
making the act applicable to railroads. Under these circumstances
the presumption of congressional acquiescence obtains.
The various contentions as to lack of due process were disposed of
in favor of the law, and the district court was instructed to dismiss
the bill.
W orkmen’s Compensation—T otal D isability—R elease—I nter
mittent D isability—Fort Branch Coal Co . v. F arley , Appellate
Court of Indiana (June 8, 1921 ), 181 Northeastern Reporter , page
228.—William B. Farley on September 4, 1917, received an injury
arising out of and in the course of his employment with the Fort
Branch Coal Co. The industrial board approved of an agreement
between these parties in which the mining company agreed to pay
compensation to Farley at the rate of $10.40 per week during his
total disability, not exceeding 500 weeks. On October 15, 1917, the
payments were stopped and the employee signed a final receipt stat
ing that his disability ceased on October 15, 1917. From October
15, 1917,. to March 10, 1920, Farley was intermittently disabled for
work and on the date of hearing March 10, 1920, he was wholly dis
abled. The board on rehearing awarded compensation at the agreed
rate for the time he was unable to work after October 15, 1917. The
mining company appealed, claiming that the board was barred from
a consideration of the case by a provision of the law which limits
the time for action to one year after the end of the prior compensa
tion period.
The court affirmed the award (130 N. E. 132), holding that the
compensation period for total disability was not terminated by the
employee’s receipt stating that his disability had ceased; that the
industrial board could not properly determine the date of the ces
sation of total disability in such a case, and that an employee on the
recurrence of a total disability which inevitably followed exertion
was not required to apply for reinstatement within a year. The
346
TEXT AND SUMMARIES OF DECISIONS.
mining company petitioned for a rehearing, which was denied, the
court saying in part:
He signed the receipt and returned to his work in the mine. In less
than two weeks he was girt with bandages prepared for him by his
wife and because of his broken back he was working on his knees.
(This in a humane age!) The only rational inference is that he
was importuned to sign the receipt by the insurance carrier. No
court would be justified in holding that the signing of a receipt
under such circumstances amounts to a “ termination of a compensa
tion period,” even though the receipt contains a recital to the effect
that total disability has ceased.
Rehearing denied.
INDEX,
Alien contract laborers-----------------------------------------------------------Aliens, special taxes on-----------------------------------------------------------Barbers’ license law---------------------------------------------------------------Blacklisting----------------------------------------------------------------------------Bribery of officer of the United States-------------------------------------Children :
Hours of labor o f ------------------------------------------------------------Misrepresentation of age by--------------------------------------------State and Federal powers as to employment-------------- ------Unlawful employment of-------------------------------------------------Clearance cards----------------------------------------------------------------------Coal prices, etc., control of-----------------------------------------------------Collective agreements---- '--------------------------------------------------------Compulsory work la w ------------------------------------------------------------Conspiracy-----------------------------------------------------------------------------Constitutionality of law as to—
Alien beneficiaries under compensation laws--------------------Application of money paid contractors----------------------------Classification of employments------------------------------------------Compulsory compensation of coal miners-------------------------Conciliation and arbitration--------------------------------------------Control of prices, etc., of coal____________________________
Control of prices of food-------------------------------------------------Control of rents---------------------------------------------------------------Employment of children--------------------------------------------------Fund for rehabilitation of injured employees--------------------Fund for second injury compensation------------------------------Industrial court of Kansas----------------------------------------------Injunctions---------------------------------------------------------------------Licensing barbers-----------------------------------------------------------Minimum wages---------------------------------------------------------------Municipality insuring its em ployees--------------------------------Power of courts to determine solvency of self-insurers----Protection of employees as members of labor organizations.
State engaging in business----------------------------------------------Strikes___________________________________________________
Workmen’s compensation (Arizona)--------------------------------Contract of employment:
Breach----------------------------------------------------------------------------Discharge_________________________________________________
Effect of strike---------------------------------------------------------------Employee’s invention------------------------------------------------------Employment from month to month---------------------------------Intent to defraud________________________________________
Interference______________________________________________
Payment for extra services_______________________________
Rescission by new contract----------------------------------------------“ Satisfactory service ”----------------------------------------------------Seamen___________________________________________________
Criminal syndicalism-------------------------------------------------------------Employers’ liability :
Children unlawfully employed------------------------------------------Assault by employer’s representative--------------------------------Assumption of risk_______________________________________
Contributory negligence---------------------------------------------------Exemplary damages___________________ ___________________
Employee going to and from work----------------------------------Federal railroad statute—
Assumption of risk-------------------------------------------------Causal relation of injury___________________________
Damages-------------------------------------------------------------------Express m essenger------------------------------------- -------------Fellow service----------------------------------------------------------Interstate commerce________________________________
Negligence---------------------------------------------------------------Place of suit________________________________________
Safety-Appliance act_________________________________
W aiver--------------------------------------------------------------------Fellow service-----------------------------------------------------------------Foreign contracts________________________________________
Hazardous occupations___________________________________
Page.
_______________________ 5 1 , o2
_______________________ 5 2 ,5 3
____________________ 2 0 2 , 2 0 3
__________
7 6 ,7 7
_______________________
76
_______________________ 9 5 - 9 7
____________________ — 9 3 - 9 5
_____________ _______ 1 2 7 ,1 2 8
____________ 9 3 - 9 8 , 3 2 7 -3 3 0
_________________________7 6 ,7 7
_______________________ 7 4 - 7 6
_________________________5 9 ,6 0
______________________ 5 3 —55
5 5 ,” 5 6 , 1 3 8 - 1 4 9 , 1 5 4 -1 5 6
____________________ 2 2 9 ,2 3 0
____________________ 2 1 2 , 2 1 3
_________________ _ 2 8 5 , 2 8 6
____________________ 2 4 7 , 2 48
____________________ 1 6 5 , 166
____________
7 4 -7 6
-------------------7 2 -7 4
____________________ 1 3 5 -1 3 7
___________ 9 3 - 9 5 , 1 2 7 , 128
____________________ 2 4 8 -2 5 0
____________________ 2 5 0 ,2 5 1
________________
1 2 8 -1 3 1
__________________ 1 9 1 -1 9 6
____________________ 2 0 2 , 203
_______________
2 0 7 -2 0 9
_______________________
137
____________________ 3 2 4 , 3 2 5
_______________________
160
____________________ 2 0 4 , 2 0 5
_________________ 2 0 0 - 2 0 2
____________________ 2 6 2 , 2 6 3
_____________ 5 6 - 6 3 , 6 5 , 66
— 61, 63, 64, 7 0 -7 2 , 209
_________________ — 1 6 6 -1 6 8
----------------------------------64
______________________ 2 1 3 ,2 1 4
-----------------------------------6 0 ,6 1
---------------- 67-69
___________ 61-63
— 69-72, 221, 222
149-152
___________ 93-98
—
--85-87
. 88-90, 124, 125
88-90, 103, 104
-------------------85,86
— 104,105,114
107, 108, 116, 117
------------- 118-121
________ 108, 109
________ 109-111
------------ 116,117
------------ 111-115
-----I l l , 112, 116
________ 117,118
________ 118-123
________ 109-111
________ 126. 127
__________ 77,78
_________ 98-100
347
348
INDEX.
P j?ere.
Employers* liability— Concluded.
__________________ 9 0 ,0 1
Independent contractors___
Injuries causing death_____
__________________ 8 3 - 8 5
Injury to third person___
________________ 1 0 0 - 1 0 3
__________________ 8 3 - 8 5
Lim itations_______________
_____________________9 1 ,9 2
Loaned employee___________
__________________ 7 7 - 8 5
Maritime injuries __________
__________________ 9 7 ,9 8
“ Mine ” ___________________
• Negligence_________________
9 3 -9 5 , 97, 98, 1 0 3 -1 0 7
__________________ 9 5 - 9 7
Proximate cause---------------Safe place and appliances__________________________________ 88, 89, 98-100,123-127
Sick employee, care of______________ ______________________________________ 105, 106
Strike guards, acts of____________________________ _________________________100-103
Volunteers______________ !___________________________________________ 92, 93, 106,107
Willful injury__*____________________________
86,87
Workmen’s compensation law not applicable_________________ 83 -87,97 ,9 8,121 -123
Employers’ liability for workmen’s clothing in wash rooms___________________ 203, 204
Enticing employees_____________________________________
65-67
Examination, etc., of barbers__________________________________________________ 202, 203
Food prices, control of_______
72—
74
Hours of labor :
General employments_______________________________________________________ 128-131
W omen_________________________________________ ___________________________ 132, 133
Hours of service on railroads------------------------------------------------------------------------------133-135
Injunction to enforce contract of employment_________ :___________________ 57-60, 64, 65
Insurance of employees bymunicipalities__________________________________________ 137
Interference with employment-------------------------------------------------------------------------------55, 56
Inventions by employees.___________________________________________________________
64
Labor organizations :
Boycotts-;_____________ ___________________________________________ 138-141,158-160
“ Check-off ” system------------------------------------------------------------------------ 141-144, 171-173
Civil rights of members_____________________________________________________162-164
Clayton A ct-_________________________________________________ 176, 181-187, 191-196
Collective agreements________ 138, 139, 147-149, 171-174, 177-179, 181-188, 197,198
Contempt__________________________________________________________________ 168-171
Employment by_____________________________________ :-----------:--------------------- 279, 280
Enforcing continuance of business__________________________________________ 196, 197
Industrial Workers of the World___________________________________________ 149-152
Injunction_____ _________________________________________ 138-144, 152-165, 168-200
Interference with employment___________________________ 156-160, 171-174, 176-181
Interference with government________________________________________ 150-152
Interference with interstate commerce__________________________ 139-147, 154-156
Interference with local union by federation_________________________ 152-154
Membership_______________________________________
160-164
M onopoly_________________________________________________________ 138, 139, 144-147
Persuasion________________________________________________________ 173, 174, 180, 181
Picketing_____________________ ___________________________________ 154-160,174-199
Protection of employees as members------------------------------------------------- 1 ------------ 160
Reinstatement of discharged employee-------------------------------------------- 188-190, 199, 200
Secondary boycott------------------------------------------------------------------------- 158— 191—
160,
196
Status o.f employees on strike-------------------------------------------------------- 166-168, 219-221
Strikes____________________________________________________________ 147-149, 164-202
Unionization, acts to compel-------------.--------------- 139-144,147-149,177-179,181-188
Lever act------------------72-74
Longshoremen------------------------------------------------------------------------------------------------------- 78-82,226-229
Manufacture of cement by State_______________________ ________________________ 204, 205
Municipalities engaging in business----------------------------------------------------------------------- 137
Railroad employee as officer of the United States-------------------------------------------------76
Railroad Labor Board, powers of-------------------------------------------------------------- 217-221
Rehabilitation, State and Federal cooperation in ----------------------------------- 248-250
Rents, control of-----------------------------135-137
Retirement of civil employees------------------------------------------------------------------------------ 2, 3
Sabotage------------------150-152
Seam en:
__
Contracts of------,------------------------------------------------------69-72
Recovery for injuries_______________________________________________ 77-85, 126, 127
Wages during hospital treatment----------------------------------------------------------221, 222
Sunday labor----------------------------------------------------------------------------------------- 64, 65, 205. 206
Trade secrets--------------------------------------------57-59
W ages:
215, 216
Attorney’s fee---------------------------------------------------------------206, 207
Concurrent employm ents----------------------- :-----------------------2 0 7 -2 1 2
Minimum wage law—--------------------------------------------------2 1 3 ,2 1 4
Offer of bonus---------------------------------------------------------------214, 215
Overtime pay---------------------------------------------------------------Payment of, by contractors, law requiring-------------------212, 213
Penalty for nonpayment-----------------------------------------------2 1 5 -2 1 7
2 1 9 -2 2 1
Power of receiver as to-------------------------------------------------2 1 7 -2 2 1
Rates, determination of, by statute--------------------------------2 2 1 , 222
Seamen---------------------------------------------------------- ----------------Where no specific agreement as to amount--------------------206, 207
Wash rooms, liability of employer for workmen’s clothing in
203, 204
132, 133
Women, hours of labor of-----------------------------------------------------Workmen’s compensation:
2 2 2 -2 2 4 , 2 8 8 -3 0 1
Accident--------------------------------------------------------------------—
__________ 2 2 4 - 2 2 9
Admiralty____________________________________ __________
__________ 2 6 3 . 2 6 4
Agricultural workers----------------------------------------------------__________ 2 2 9 , 2 3 0
Alien beneficiaries_______________________________________
INDEX,
349
Page.
Workmen’s compensation— Concluded.
Arising out of and in course of employment-------------------- 288, 289, 291, 292, 2 9 6 - 3 1 8
Award as vested right-------------------------------------------------------------------------------- 2 8 6 , 2 8 7
Awards, apportionment of------------------------------------------------------------- 280-232, 2 3 9 , 2 4 0
Awards, basis, etc., of___________________________________________ 232-243, 2 5 7 ,2 5 8
3
Casual employment----------------------- -------------------------------------------------------------- 2 4 0 ,,2244 4
1
Change in condition after award_________________________________________ — 2 4 7 - 3 3 0
32
Children illegally employed------ -------------------- --------------------------------------------- 2 3 9 , 2 4 0
Child’s rights after mother’sremarriage-------------------------------— 3 1 8 -3 2 0
Choice of remedies---------------------------------------------------------- 244-246, 262, 263,
C laim -------------- ------------------------------------------------------------------------------------------- 2 4 6 .2 4 7
31
Common hazard____________________________________ 223, 224, 284, 285, 310, 3 1 3 -.2 4 5
Compulsory application to specific industry------------------------------------------------- 2 4 7 8
233, 234
Computation of earnings----------------------------------‘--------- •----------------------- -------Contractors---------------------------------------------------------------------------------- 268, 269, 2 7 5 , 2 7 6
2
7
Death of claimant before award------------------------------------------------------------------- .2 8 6 ,-2258 1
Death without dependents---------------------------------------------------------------------- ---- 4 8
Dependency______
251— 2 8 6 , 2 8 7
255,
D isability__________________________________________________________________ 2 5 6 - 2 5 9
2
Disease caused by accident------------------------------------------------------------------------- 2 3 22,,2323 3
Disfigurement__________________________________________________________ ___ 3 2 5 , 2 2 3
2
6
Double recovery------------------------------------------------------------------------------------------E lection----------------------------------------------------------------------------------------- ^---------- 2 5 9 -2 6 3
Employees, who are-------------------------264-277, 2 7 9 - 2 8 2
Employers, who are----------------------------------------------------------------------- 267, 268, 2 7 7 -2 8 2
Employments not for gain--------------------------------------------------------------- 271-273, 2 7 7 - 2 7 9
Evidence------------------------------------------------------------------------------------------------------ 3 1 3 , 314
Exclusion by amount of salary--------------------------------------------------------------------- 2 6 6 ,2 6 7
Exclusiveness of remedy ----------------------------------------------------------------------------- 3 2 3 ,3 2 4
Extraterritoriality__________________________________________
282— 3 0 7 , 3 0 8
284,
Firemen, city---------------------------------------------------------------------------------------------- 2 6 4 , 2 6 5
Freezing as accident---------------------------------------------------------------------------------- 2 2 3 , 2 2 4
Going to and from work____________________________________________ 303— 3 1 7 -3 1 9
306,
Hazardous employments--------------------------------------------------------------------— -— 2 8 4 - 2 8 8
Horseplay, quarrels, etc_________________________________ 296, 297, 299-302, 3 0 6 , 3 0 7
Impairment of function without wage loss_____________ 235, 236, 257, 258, 3 2 3 , 3 2 4
Injury by strike pickets___________________________________________________ 3 0 8 , 3 0 9
Intermittent disability------------------------------------------ ----------------------------------— 3 4 5 , 3 4 6
Interstate commerce------------------------------------------------------- 259, 260, 325, 326, 3 3 4 , 3 3 5
3
Janitor of school building--------------------------------------------------------------------------- 2 7 24,.3217 5
Lightning stroke---------------------------------------------------------------------- ------------------ 3 1
Loss of use__________________________________________ ___ 235— 256-259, 3 4 2 ,3 4 3
238,
Lump sum s_________________________________________________-—---- 230-232, 3 2 6 , 3 27
Lunch hour accidents____________________________________ __________________ 3 0 9 ,3 1 0
229
Maritime workers---------------------------------------------------------------------------------------- 2 2 4 --3 3 2
Medical services_____________________________________________ 246, 247, 327, 3 3 0
235, 236
“ Member ”------------------------------------------------------------------------------------------- —
Multiple injuries_________________________________________________ 236, 237 3 2 3 , 3 2 4
Negative decision final------------------------------------------------------------------------ -------- 3 3 0 -3 3 2
Notice--------------------------------------------------------------- ----------------------------------------- 3 3 0 -3 3 2
Number of employees as basis of coverage------------------------- -------------------------- 2 8 0 , 2 81
2 9 1 -2 9 5
Occupational disease------------------------------------------------------------------------------------ 2 3 8 .2 3 9
Operation not required by injury----------------------------------------------------------------- 3 4 2 , 3 4 3
Permanent partial disability---------------------------- 292,293,332* 333,336* 337,
311
Personal errand-------------------------------------------------------------------------------------------Policemen__________________________ ________________________________________ 2 6 9 - 2 7 2
Power of commission to classify occupations---------------- ----------------------------- 287-, 2 8 8
Power of Territory to supersede Federal statute________________________ 3 4 4 , 3 45
Preexisting condition___________________________________ 288-291, 297, 298, 3 1 6 , 3 1 7
Progressive disability______________________________________________________ 3 3 0 - 3 3 2
Proximate cause________________________________ 238, 239, 289-291, 295, 296, 3 1 6 ,3 1 7
Purpose of employer’s trade or business__________________________________ 2 4 3 , 2 4 4
Quarrels, horseplay, etc________________________________ 296, 297, 299-302, 3 06 ,-3 0 7
Refusal to submit to surgical operation____________________._____ 241— 3 3 9 -3 4 3
243,
Rehabilitation fund________________________________________________________ 2 4 8 -2 5 0
Rehabiliation, State and Federal cooperation________________ ______________ 2 4 8 - 2 5 0
Release------------------ --------------------------- :________________________:_____________ 3 4 5 , 3 4 6
Remarriage of widow, effect of, on child’s rights________ ________________ 2 3 9 .2 4 0
Review of awards_________________________________________________ 230-232, 2 4 0 - 2 4 3
Scheduled injuries_________________________________________________________ 2 3 5 -2 3 8
Second injury__ ______ ______________________________________________________ 3 3 6 - 3 3 8
Second injury fund--------------------------------------------------------- ._-----------------2 5 0 , 2 51
Security of payments_________________________________________________ _____ 3 3 8 , 3 3 9
Self-insurance, determining right to, as court function____________ ______ 3 2 4 , 3 2 5
Settlement of disputes____________________________________________ 326, 327, 3 3 0 - 3 3 4
Soldier working in civilian occupation_____________________ ________________ 2 7 3 -2 7 5
State employees_____________________________________________________________
278
Subrogation of rights_____________________________________________ 282. 283, 3 2 0 -3 2 3
Suits for damages as related to______ 225, 226, 244-246, 259, 260, 273-275, 3 1 7 - 3 2 0
Supervening insanity___________________________ _________ ___________________
242
Temporary and permanent disabilities________________ ___________________ 2 3 7 , 2 3 8
Third parties..-.---------------------------------------------------------------------------- 282, 283, 3 1 7 - 3 2 3
Total disability___________________ _____________________ 256, 257, 337, 338, 3 4 5 , 3 4 6
Trade union as employer___________________________________ ___________ ____ 2 7 9 , 2 8 0
Violation of rules, etc_______________________ •_____________________ 311, 312, 3 1 5 .3 1 6
Voluntary payments____________________ ______ ___________________ 234, 235, 2 4 6 , 2 4 7
Voluntary worker on percentage basis____________________________________ 2 7 6 , 2 7 7
Volunteers_________________________________________________ ______ 265, 266, 3 0 2 , 3 0 3
350
INDEX.
LIST OF CASES.
Page.
88
Addington v. Guests River Coal Co_____________________ ________________________
74
American Coal Mining Co. 17. Special* Coal and Food Commission__________________
181
American Steel Foundries v. The Tri-City Central Trades Council_______ ._____
American Trading Co. v. Steele__________________________________________ ______
61
Anderson v. Miller Scrap Iron C o ._______________________________ _______________ 282
Associated Employers’ Reciprocal 17. State Industrial Commission-____ :___________ 302
Ballou v. Industrial Commission__________________________ _______________________ 256
Beale v. Yazoo Yarn Mill__________________________________________________ ______
65
Benito Rovira Co. (Inc.) v. Yampolsky___________________________________________
190
Bennett v. Page Bros__________________________________________ '______ ____________ 319
Berry v. M. F. Donovan & Sons (Inc.)____________________________________________ 226
Birmingham News Co. v. Andrews________________________________________________
95
Birmingham Trust & Savings Co. v. Atlanta, Birmingham & Atlantic Ry. Co.
(effect of strike on contract of employment)____________________________________ 166
Birmingham Trust & Savings Co. v. Atlanta, Birmingham & Atlantic Ry. Co.
(wages of railroad employees)__________________________________________________ 219
Block 17. Hirsh_____________________________________________________________________
135
Brescia Construction Co. v. Stone Masons* Contractors’ Association______________
138
Burgess Bros. Co. (Inc.) v. Stewart_____________________________________________ 139
Burke v. Industrial Commission__________________________________________________ 265
160
Burke v. Monumental Division Brotherhood Locomotive Engineers.______________
Butch v. Shaver______________________________ :__________________ ._________________ 259
Calcutt v. Gerig--------------------------------------------------- ------------------------------------------------55
Camunas v. Porto Rice Railway, Licht & Power Co-------------------------------------------- 344
Capone’s C ase_____________________________________________________________________ 232
Carey v. Davis------------------------------------------------------------------------------------------------------ 305
Carroll 17. Industrial Commission-------------------------------------------------------------------------- 295
Central Coal & Coke Co. v. Barnes__________________________________._____________ 123
Centralia Coal Co. v. Industrial Commission____________________________________ 233
Chas. A. Ramsey Co. v. Associated Bill Posters of the United States and Canada. 144
Charleston Dry Dock & Machine Co. v. O’Rourke______________________ __________
164
Chicago Home for the Friendless v. Industrial Commission______________________
332
Chicago, Milwaukee & St. Pau’ Ry. Co. v. McGinley_____________________________
117
Chiovitte v. Zenith Furnace Co___________________________________________________
235
City of Chicago v. Industrial Commission________________________________________ 275
City of Duquesne v. Fincke______________________________________________________ 201
City of Indianapolis v. Lee_______________________________________________________ 103
Clark v. Voorhees__________ ________________________________________________ ___ 311
Cleary v. Great Northern Ry. Co_________________________________________________
76
89
Clinchfield Coal Corporation v. Hawkins__________________________________________
Combination Rubber Mfg. Co. v. Court of Common Pleas_________________________ 337
Conley v. Upson Co______________________________________________________________ 330
Consolidated Arizona Smelting Co. v. Egich_______________ _______________________
98
Cooks’, W aiters’, & W aitresses’ Local Union v. Papageorge________________________ 197
Coppes Bros. & Zook v. Pontius______ _____________________________________________ 268
Court of Industrial Relations v. Chas. Wolff Packing Co_________________________ 128
Crane v. Leonard, Crossette & Riley______________________________________________ 283
Crane v. Pacific Steamship Co_______________ ____________________________________
81
Crayton v. State--------------------------------------------------------------------------------------- ----------- 60
Cyrus Currier & Sons v. International Molders’ Union of North America__________ 156
DeBaur v. Lehigh Valley R. Co---------------------------------------------- ------------------------------- 116
Delso v. Crucible Steel Co. of America----------------------------------------------------------------- 222
Demonstration Plantation Co. v. Kearney--------------------------------------------------------------' 206
Densten Hair Co. v. United Leather Workers’ International Union of America____ 174
Dillon v. Trustees of St. Patrick’s Cathedral---------------------------------------------------------- 278
Director General of Railroads v. Bennett--------------------------------------------------------------- 114
Division 132 of Amalgamated Association of Street and Elec. Ry. Employees of
59
America, In re---------------------------------------------------------------------------------------------------Driscoll 17. .Jewell Belting C o--------------------------------------------------------------------------------- 255
Dulac 17. Proctor & Bowie Co-------------------------------------------------------------------------------- 238
Dumbluskey v. Philadelphia & Reading Coal & Iron Co------------------------------------------- 222
East St. Louis Board of Education 17. Industrial Commission_____________________ 286
Edward Stern & Co. v. Liberty Mutual Insurance Co---------------------------------------------- 327
Egan 1?. Trenton Gas & Electric Co—.----------------------------------------------- -------------------- 103
Empire Health & Accident Ins. Co. v. P urcell..,----------------------------------------------------- 313
Employers’ Indemnity Corporation v. Woods----------------- ---------------------------------------- 326
Employers* Mutual Ins. Co. 17. Industrial Commission of Colorado__________________ 254
Europe v. Addison Amusements (In c.)-------------------------------------------------------- ------------ 285
Federal Mutual Liability Ins. Co. 1?. Industrial Accident Commission of Calif---------- 306
Fink 17. Sheldon Axle & Spring Co-------------------------------------------------------------------------- 289
Fisher 17. Tidewater Building Co---------------------------------------------------------------------------- 304
Floersheimer v. Schlesinger---------------------------------------------------------------------------------- 178
Foley 17. Hines, Director General of Railroads-------------------------------------------------------- 259
Fort Branch Coal Co. 17. Farley--------------------------------------- '-------------------------------------- . 345
277
Francisco v. Oakland Golf Club (In c.)____________________________ 1_______________ 221
Franco v. Seas Shipping Corporation-------------------------------------------------------------------90
Gam mage 17. International Agricultural Corporation---------------------------------------------- 141
Gasaway 17. Borderland Coal Corporation--------------------------------------------------------------Geis 17. Packard Motor Car Co------------------------------------------------------------------------------- 257
General Accident, Fire & Life Assurance Corporation v. Industrial Accident Com
mission --------------------------------------------------------------------------------------------------------------- 298
George v. Bailey-------------------------------------------- ------------------------------------------ ------------ 127
George Leary Construction Co. v. M atson------------- ------------------------------------------------ 126
61
Golden Rod Mills v. Green--------------------:---------------------------------------------------------------Golden’s Case------------------------- -------------------- ------------------------------ --------------------------- 327
Grant 17. State Industrial Accident Commission----------------------- ------------------- --------- 340
Gruszewsky v. Director General of Railroads----------------------- ------------- ------------------ 115
INDEX.
H a n c o c k v . I n d u s tr ia l C o m m issio n -----------------------------------------------------------------------------------------H a n n a N ie ls o n , T h e ------------— - - --------------------------------------------------------------------------------------------H a r r is v . C a lc a sie u L o n g L e a f L u m b er C o-------------------------------------------------------------------------H a s s e ll Iro n W o rk s v . I n d u s tr ia l C o m m issio n -------------------------------------------------------------------H a y w o o d v . U n ite d S t a t e s ----------------------------------------------------------------------------------------------------------H eid em a n n v . A m e ric a n D is t. T e le g r a p h C o-------------------------------------------------------------------------H e lto n v . T a ll T im b er L u m b er C o------------------------------------------------------------------------------------------H e n d e r so n T e le p h o n e & T e le g r a p h Co. (I n c .) v. O w en sb o ro H om e T ele p h o n e &
Herket & Meisel Trunk Co. v. United Leather Workers’ Int. Union---------------Hines v. Henry I. Stetler (Inc.)------------------------------------------------------------------Hines, Agent, v. Ross-----------------------------------------------------------------------------------Hines, Director General of Railroads, v. Burns’ Adm’x-------------------------------Hines, Director General of Railroads, v. Logan---------------------------------------------Hinton Laundry Co. v. DeLozier------------------------------------------------------------------Holt v. S tate----------------------------------------------------------------------------------------------Howat v. Kansas-------------*---------------------------------------------------------------- ---------Hutton v. Link Oil Co---------------------------------------------------------------------------------Hyett v. Northwestern Hospital for Women and Children---------------------------Illinois Publishing & Printing Co. v. Industrial Commission.----------------------Industrial Commission v. Crisman—------------------------------------------------------ —
Industrial Commission of Ohio v. Weigandt------------------------------------------------Ingle v. Landis Tool Co------------------------------------------------------------------------------In land, T he _________________________________________________________________
Jenkins v . United States Emergency Fleet Corporation-------------------------------Kalmich v. White--------------------------------------------------------------------------------------Kaumagraph Co. v. Stampagrapli Co. (Inc.)------------------------------------------------Kelley’s Dependents v. Hoosac Lumber Co------------------------------------------------Kennedy v. Cunard S. S. Co. (L td.)------------------------------ ------------------------------King v. Atchison, T. & S. F. Ry. Co------------------------------ -------------------------------Kinloch Telephone Co. v. Local Union No. 2 — ------------------------------------------Klaffki v. Kaufman-------------------------------------------- ---------------------------------------Klippert v. Industrial Ins. Dept, of Washington---------------------------------------Knocks v. Metal Package Corporation_____________________________________
Knudson v. Jackson-------------------------------------------------------------------------------------Koons v. Philadelphia & Reading Ry. Co-------------------------------------------------Kotta, E x p arte ------------------------------------------------------------------------------------------Koubek v. Gerens-------------------------------------------- ---------------------------------------------Kowalek v. New York Consolidated R. Co------------------------------------- --------------Krichman v. United States----------------------------------------------------------—_---------Krug v. City of New York--------------------------------------------------------------------------Kunze v. Weber------------------------------------------------------------------------------------------Lambert v. Powers------------- -------------------------------------------------------------------------Lang v. New York Central R. Co-----------------------------------------------------------------Leva v. Utah Fuel Co---------------------------------------------------------------------------------Lincoln v. National Tube Co----------------------------------------------------------------------Lindway v. Pennsylvania Co------------------------------------------------------------- -------- Lorchitsky v. Gotham Folding Box Co--------------------------------- --------------------Lower Vein Coal Co. v. Industrial Board of Indiana------------------------------------McBride v. Standard Oil Co. of N. Y----------------------------------------------------------McCune v. Wm. B. Pell & Bro----------------------------------------------------- —;-----------Mclnerney v. United Railroads of San Francisco----------------------- — ----------McMichael v. Atlanta Envelope Co----------------------------------------------- -------------Mangus v. Proctor-Eagle Coal Co---------------------------------------------------------------Mann v. City of Lynchburg------------------------------------------------------------------------Marks Arnheim (Inc.) v. Hillman__________________________________________
Marrs v. Oregon Short Line Ry. Co-------------------------------------------------------------Martin v. Metropolitan Life Ins. Co-----------------------------------------------------------Matis v. Schaeffer--------------------------------------------------------------------------------------Mechanics’ Foundry & Machine Co. v. Lynch_______________________________
Mercury Aviation Co. v. Industrial Accident Commission__________________
Miller v. Beil----------------------------------------------------------------------------------------------Missouri Pac. R. Co. v. Ault-------------------------------------------------------- -------------Moore Drop Forging Co. v. Fisher------------------------------------------------- >----------Moore Shipbuilding Corporation v. Industrial Accident Commission-_______
Mount Olive Coal Co. v. Industrial Commission---- -------- -----------------------------Myers v. Wadsworth Mfg. Co-------------------------------------------------------------------Nash v. Longville Lumber Co---------------------------------------------------------------------Naylor v. Holland-St. Louis Sugar Co-------------------------- -----------------------------Noreen v. William Vogel & Bros. (In c.)----------------------------------— ----------------North Beck Mining Co. v. Industrial Commission of Utah--------- -----------------Northwestern Telephone Exchange Co. v. Workmen’s Compensation Bureau.
Oliphant v. Hawkinson-----------------------------------------------------------------— ------ Opinion of the Judges, In re (State engaging in manufacture of cement)
O. W. Rosenthal & Co. v. Industrial Commission----------------------------------------Parker Paint & Wall Paper Co. v. Local Union No. 813____________________
Patrick v. J. B. Ham Co------------------------------------------ ----------------------------------Payne, Agent, v. Allen------------------------------------------ -----------------------------------Payne, Director General of Railroads v. Wall___________________________ ___
People v. Donnelly---------------------------------------------------------- -—-----------------------People v. Holder-----------------------------------------------------------------------------------------People v. Raymond-----------------------------------------------------------------------------------People v. United Mine Workers of America__________——*--------------------------People v . Western Union Telegraph Co------------------------------------------------------People ex rel Terbush & Powell (Inc.) v. Dibble---------------------------------------Petraska v. National Acme Co--------------------------------------------------------------------Petroleum Iron Works v. Bailey---------------------------------- -----------------------------Philadelphia & Reading Ry. Co. v. Di Donato--------------------------------------------
351
Page.
254
77
253
314
150
310
268
322
154
279
89
112
111
311
66
170
244
323
284
262
296
64
71
70
92
57
266
78
91
171
216
336
301
267
113
52
317
303
76
264
152
240
118
318
329
325
333
247
224
261
100
173
97
269
187
215
309
263
199
234
297
216
165
252
342
341
86
125
329
236
211
243
204
339
158
288
108
301
338
212
147
200
160
137
246
87
835
352
INDEX.
Philadelphia & Reading Ry. Co. v. Polk_______________ ^_________________________
Phillips v. Armour & Co---------------------------------------------------------------------------------------Poe v. Continental Oil & Cotton Co____________________________________ __________
Poye v. State------------------------------------------------------------------------------------------------------Prince v. King Coal Co_______________________________ :___________________________
Prouse v. Industrial Commission of Colorado_____________________________________
Quick v. Fred E. Illston Ice Co___________________________________________________
Quinlivan V. Dail-Overland Co____________________________________________________
Radtke Bros. v. Industrial Commission of W isconsin_______________________________
Ray v. School District of Lincoln-------------------------------------------------------------------------Rector v. Cherry Valley Timber Co_______________________________________________
Renner v. Model Laundry Cleaning & Dyeing Co______________________________ ___
Riggs v. Lehigh Portland Cement Co--------------------------------------------------------------------Robinette v. Hubbard Coal Mining Co______________________ _____________________
Rockefeller v. Industrial Commission of Utah-----------------------------------------------------Rockford Hotel Co. v. Industrial Commission_____________________________________
Rook v. Schultz------------------------------------------------------------------------------------------------ --Rooney v. City of Omaha-------------------------------------------------------1 ---------------- -----------Rorvik v. Northern Pacific Lumber Co------------------------------------------------------------------Rosenthal & Co., O. W. v. Industrial Commission_____ ___________________________
Ross v. Delaware, L. & W. Ry. Co-------------------------------------------------------------------------Rourke’s Case--------------------------Russell v. H. W. Johns-Manville Co. of California---------------- :-------------------------------St. Louis Union Trust Co. v. Missouri & N. A. R. Co-------------------------------------------Salt Lake City v. Industrial Commission of Utah_________________________________
Savage v. City of Pontiac-------------------------------------------------------- -------- ---------------Schmidt v. Minor-----------------------------------------------------------------------------------------Schwartzreich v. Bauman-Basch (Inc.)___________________________________________
Shanley v. United States---------------------------,---------------------------------------------------------Shelmadine v. City of Elkhart------------------------------------------------------------------------------Shubert Theatrical Co. v. Rath----------------------------------------------------------------------------Smith v. State------------------------------------------------------------------------Smith v. State Highway Commission of Virginia------------------------- -----------------------Socha v. Cudahy Packing Co--------------------------------------------------------------------------------Southern California Iron & Steel Co. v. Amalgamated Ass’n of Iron, Steel & Tin
W orkers------------------------------------------------------------------------------------------------------------Southern Cotton Oil
Co., In re --------------------------------------------------------------Southern Cotton Oil
Co. v. Yarborough-------Southern Pacific Co.
v. Berkshire-----------------------------------------------------------Spayd v. Ringing Rock Lodge No. 665------------------------------------------------------------------Spokane Hotel Co. v. Younger ; Hotel Co. of Tacoma v. Same---------------- ------------Stammers v. Banner Coal Co-----------------------------------------------------:--------------------------Standard Cabinet Co. v. Landgrave---------------------------------------------------------------------Standard Portland Cement Co. v. Foley----------------------------------------------------------------Stansberry v. Monitor Stove Co---------------------------------------------------------------------------Stasmos v. State Industrial Commission------------------------------------.--------------------------State V. Allyn------------------------------------------------------------------------------------------------------State v. Crounse-------------------------------------------------State v . Eyres Storage & Distributing Co------------------------------------------------------------State V. Hennessy---- -—------ ----------------------------------------------------------------------------------State v. Smith-----------------------------------State em rel Hopkins, Atty. Gen. v. Howat----------- ----------------------------------------------Stephens v. Stephens------------------------------------------ ---------------- „-------------------------------Strong v. Sonken-Galamba Iron & Metal Co-----------------------------------------------------------Sullivan v. Associated Billposters and Distributors of the U. S---------------- ------------Taft, esc p a rte ------------------------------------------------------------------------------------------------------Terry Dairy Co. v. Nalley-------------------------------------------------------------------------------------Texas Employers’ Ins.Ass’n v. Bourdreaux-----------------------------------------------------------Timmons v. Morris----------- ----------------------------------------------------------------------------------Truax v. Corrigan------------------------------------------------------------------------------------------------Union Colliery Co. v. Industrial Commission-------------------------------------------------------United Shoe Machinery Corporation v. Fitzgerald---------------------------- *-------------------United States v. Cornwall & L. R. Co------------------------------------------------------------------United States v. International Silver Co------------------------------------------------------------—
United States v. L. Cohen Grocery Co------------------------------------------------------------------United States v. New York, N. H. & H. R. Co---------------------United States Fidelity & Guaranty Co. v. Millonas------------------------------------------------United Traction Co. v. Droogan--------------------Utilities Coal Co. v. Herr-------------------------------- -----------------------------------------------------Vandalia Coal Co. v. Special Coal & Food Commission----------------------------------------Vantrease v. Smith------------------------------------------------------------------------------------------------Vietti v. George K. Mackie Fuel Co-----------------------------------------------------------------------Walter A. Wood Mowing & Reaping Mach. Co. v. Toohey--------------------------------------Ward v. Erie R. Co----------------------------------------------------------------------------------------------Ward v. Heth Bros---- -------------------------------------------------------------------------------------------Watkinson v. Hotel Pennsylvania-------------------------------------------------------------------------Welinsky v. Hillman----------------------------------------------------------------------------------------------Wells Fargo & Co. v. Taylor------------------------------------------------------------------ -------------Westbay v. Curtis & Sanger----------------------------------------------------------------------------------Western Coal & Mining Co. v. Industrial Commission-------------------------------------------Western Fuel Co. v. Garcia-------------------------------------------- ------------------------ ------------Western Indemnity Co. v. Milam-------------------------------------------------------------------------White v. John W. Cowper Co--------------------------------------------------- ---------------------- -----Williams v. Missouri Bridge & Iron Co----------------------------------------------------------------Woodson et ux v. McLaughlin------------------------------------- ----------------------------------------Wrenn V, Connecticut Brass Co---------------------------------------------------------------------------
Page.
384
104
245
209
203
293
224
176
315
272
273
320
239
214
276
316
106
271
225
339
124
308
213
217
250
223
67
69
270
64
278
306
180
56
324
107
162
207
258
292
123
307
299
209
132
287
149
205
168
251
242
146
53
93
230
202
191
312
177
133
51
72
134
67
198
290
75
280
229
188
121
242
248
196
109
281
805
83
241
82
291
63
237
85
@FedFRASER