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

BUREAU OF LABOR STATISTICS
ETHELBERT STEWART, Commissioner

BULLETIN OF THE UNITED STATES \
BUREAU OF LABOR S T A T IS T IC S /
LABOR

LAWS

THE

UNITED

No. 344
STATES

SERIES

DECISIONS OF COURTS AND
OPINIONS AFFECTING LABOR
1922

LINDLEY D. CLARK
AND

DANIEL F. CALLAHAN

SEPTEMBER, 1923

WASHINGTON
GOVERNMENT PRINTING OFFICE
1923

CONTENTS,
R eview o f decisions o f courts and opinions affecting labor, 1922.
Page.

Introduction_____________________________________________________________
Opinions o f the Attorney General_______________________________________
Decisions o f the courts__________________________________________________
Aliens_______________________________________________________________ _
Contract o f employment___________________________________________
Enforcem ent____________________________________________________
Breach__________________________________________________________
Construction____________________________________________________
Clearance cards_________________________________________________
State regulation o f employment, etc------------------------------------------------Interference with employment_____________________________________ t.
W a g e s-----------------------------------------------------------------------------------------------Assignment__________________________ !----------------------------------------Mode and time o f payment--------------------------------------------------------Bankruptcy---------------------------------------------------------------------------------Bates____________________________________________ _______________
Minimum wage_________________________________________________
Garnishment____________________________________________________
Mechanics3 liens_______________________________________________
Seamen---------------------------------------------------------------------------------------Hours o f labor--------------------------------------------------------------------------------Municipality, etc., engaging in business-------------------------------------------Cost o f living_______________________________________________________
B elief associations_________________________ _________________________
Employment o f children____________________________________________
Mine regulations____________________________________________________
R a ilroa d s------------------------------------------------------------------------------------------'Employers’ liability--------------------------------------------------------------------------Assumption o f r is k --------------------------------------------------------------------N egligence---------------------------------------------------------------------------------Course o f employment---------------------------------------------------------------E m ployees_____________________________________________________
Children illegally employed-------------------------------------------------------A dm iralty----------------------------------------------------------------------------------R a ilroa d s----------------------------------------------------------------------------------Interstate commerce------------------------------------------------------------D efenses___________________________________________________
R elea se________________________________________________________
Occupational diseases---------------------------------------------------------------Liability o f State______________________________________________

toioyc

1,2

3
3-56
3
3-5
3
4
4
5
5
5
6-10
6
6 .7

7
7 .8

8
9
9
9 ,1 0

10
10

10,11
11
11
11
12
12-22
12 ,13
13-16
16
16,17
17-19
19
19-21
19, 20

20 , 21
21 , 22

22
22

CONTENTS,

Decisions of the courts—Concluded.
Pag©.
Workmen’s compensation---------------------------------------------------------------- 22-47
Coverage--------------------------------------------------------------------------- ------- 22-24
Extraterritoriality___________________________________- ____ ____
24
A liens______________________________________________ .luwi,-------- 24,25
Hazardous employments----------------------------------------------------------- 25,26
Admiralty-------------------------------------------------------------------------------- 26,27
Railroad service-----------------------------------------------------------------------27,28
28
Election______________________________ i ________________________
Notice and claim______________________________________________ 28-30
A w a rd s----------------------------------------------------------------------------------- 30-33
Review------------------------------------------------------------------------------33
A ccid en t----------------------------------------------------------------------------------33-35
Injury arising out of and in the course of employment_________ 35-39
Injury by third party--------------------------------------------------------------39
D isability--------------------------------------------- ----------------------------------- 40,41
Disfigurement-- ----------------------------------------------------;_____________ 41, 42
Minors illegally employed-------------------------------------------------------42
W illful a cts------------------------------------------------------------42-44
Dependency----------------------------------------------------------------------------- 44,45
Death without dependents-------------------------------------------------------45
Insurance-------------------------------------------------------------------------------- 45,46
Attorneys’ fees-----------------------------------------------------------------------46
Medical and surgical aid-------------------------------------------------------- 1 46,47
Labor organizations-----------------------------------------------------------47-56
Collective agreements--------------------------------------------------------------- 47,48
Conspiracy-----------------------------------------------------------------48
Strikes______*------------------------------------------------------------------ r------- 48-51
Picketing---------------------------------------------------------------51 •
Interference with employment-------------------------------------------------- 51, 52
Monopolies-----------------------------------------------------------------------------52
Injunction----------------------------------------------------------------------------------52, 53
Contempts----------------------------------------------------------------------------------53,54
Rules, e tc --------------------------------------------------------------------------------- 54, 55
Industrial Workers of the World, etc------------------------------------------55,56
Opinions of the Attorney General.
Child labor— child-labor tax law—effectiveness in Territories___________
57
Hours of labor of women—Federal law—public employees—female em
ployees in District--------------- ------------------------------------------------------------- 57,58
Decisions of courts affecting labor.
Aliens—contract laborers—draftsmen—learned professions (Ex parte
A ird )____________________________________________________________ _— 59, 60.
Child labor—child-labor tax law—constitutionality of statute—taxation—
regulation (Bailey v. Drexel Furniture C o.)___________________________ 69-62
Contract of employment:
Agreement between relatives—presumption(Baker v.L yell)__________62,63
Breach—
damages (Granow v. A dler)____________________________________ 63-65
damages (Safford v. Morris Metal ProductsCorp.)______________ 65,66
enforcement by injunction (Sherman v.Pfefferkom )____________ 66-68
injured workman—agreement for life employment (Fisher v.
John L. Roper Lumber Co.) __________________________________ 68,69
•‘ straight tim e”—sickness during employment (Red Cross Mfg.
Co. v. Stroop)________________________________________________
70

CONTENTS,

Contract of employment— Concluded.
Page.
Enforcement—power of courts—prior rights among employees (Cham
bers v. D avis)-------------------------------------------------- 1________________ 71,72
Engaging in similar business—injunction (Federal Laundry Co. v.
Zim m erm an)____________________________________________________ 72,73
Cost of living—production and distribution of coal—prices—Lever Act—
constitutionality (Ford v. United States)______________________________73,74
Employer and employee—service letter— constitutionality of statute
(Prudential Insurance Co. of America v. Cheek)____________________ 75-77
Employers’ associations:
Monopolies— antitrust laws— “ Commodity of common use ”—founda
tions for buildings (People v. Amanna)___________________________ 78,79
Monopolies—relief (Overland Publishing Co. v. Union Lithograph
C o .) --------------------------------------------------------------------------------------------- 79-81
Employers’ liability:
Admiralty—
hydroaeroplane a vessel within admiralty jurisdiction (Rein
hardt v. Newport Flying Service Corp. et a l.)__________ ______ 81,82
jurisdiction—lake fisherman (Foppen v. Peter J. Fase & Co.)__'__ 82,83
negligence—violation of statutory prohibition (Wilks v. United
Marine Contracting Corp.)------------------------------------------------------ J83-85
Assumption of risk—
contributory negligence (Belkin v. Skinner & Eddy Corp.)_______ 85,86
latent danger—duty of employer (Hines, Director General o f
Railroads, v. Thurman)______________________________________ 86,87
negligence—failure to provide safety devices—goggles (Emerson
Brantingham Co. v. G row e)----------------------------------------87,88
safe place (Bingham Mines Co. v. B ianco)_____________________88,89
safe place—impairment of health (Newberry v. Central of Geor
gia Ry. C o.)--------------------------------------------------------------------------- 89,90
safe place and appliances—interstate commerce— company pro
ducing and transporting gas (Smith v. United Fuel Gas Co.)__ 90-92
Course of employment—
accidental discharge of pistol (American Ry. Express Co. v.
Davis et a l.)_________________________________________________92,93
injury to third party by employee— duty of selecting employees
(Davis v. M errill)___________________________________________ 93,94
intentional injury by foreman to employee (Zaitz v. DrakeWilliams Mount C o.)____________________________________ ____94, 95
Employee—temporary assistant of employee (Baltimore & O. S. W.
R. R. Co. v. Burtch)_______________________________________________95-97
Employee—temporary assistant o f employee—volunteer (Early v.
Houser & Houser)_______________________________________________97,98
Employment of children—
interstate commerce— State regulation (St. Louis-San Francisco
Ry. Co. v. Conly)------------------------------------------------------------------ 98,99
misrepresentation o f age—contributory negligence— receipt of
compensation payments (Volpe v. Hammersley Mfg. C o.)__ 99,100
misrepresentation of age—recovery for death (International
street occupations— employment during school term (Cincinnati
violation o f statute— contributory negligence— independent contractor (W aldron v. Garland Pocahontas Coal C o .)----------------102,103

CONTENTS,

Employers’ liability—Continued.
Page.
Negligence—
charitable corporations—unlawful employment of minor (Emery
104,105
v. Jewish Hospital Assn.)_________
contributory negligence—duty of employer (Mackay TelegraphCable Co. v. Armstrong)__________________ t.____________ __ 105
contributory negligence—guarding dangerous machinery—viola
tion of ordinance (Unrein v. Oklahoma Hide Co.)_________ 106,107
contributory negligence—last clear chance <Miller v. Canadian
Northern Ry. Co.)----------------------------------------------------------- 107,108
dangerous instrumentalities—volunteer—minor employee (King
v. Smart et al.)__________________________________________ 108,109
dangerous machinery—statute requiring guards—“ other estab
lishment” (Stoll v. Frank Adam Electric Co.)____________ 109,110
effect of denial of compensation on suit for damages (Katzenmaier v. Doeren)------------------------------------------------------------- 110,111
employee of independent contractor—liability for injuries (Craig
v. Riter-Conley Mfg. Co.)---------------------------------------------------111,112
guard for dangerous machinery—injury to eye—purpose of stat
ute (Mansfield v. Wagner Electric Manufacturing Co.)______ 112,113
injury to employee of third party—joinder of subrogated em
ployer—workmen’s compensation (Gentile v. Philadelphia &
R. Ry. C o.)____________________________________________ 113,114
occupational disease—workmen’s compensation law (Trout v.
Wickwire Spencer Steel Corp.)----------------------------------------- 114,115
overexertion—rule of haste (Jirmasek v. Great Northern Ry.
C o.)___________________________________________________ 115,116
safe instrumentalities—safe place to work—youthful worker
<Sutton v. Melton-Rhodes Go. (Inc.))-------------------------------- 116,117
unguarded machinery—liability of landlord for injury to tenant’*
employee (Tomlinson v. Marshall et al.)-,_________________ 117-119
Railroad companies—
Federal statute—
assumption of risk—contributory negligence (Outcelt v.
Chicago, B. & Q. R. Co.)_____________________________119,120
assumption of risk—negligent act of fellow servant (Reed v.
Director General of Railroads)------------------------------------120,121
employees’ compensation act—alternative remedies—Panama
Railway (Panama R. R. Co. v. Minnix)------------------------- 121,122
fraud—limitation (Gauthier v. Atchison,T. &S, F.Ry. Co.) - 122,123
interstate commerce—car repairer (Richter v. Chicago, M. &
St P. By. Co.)_______________________________________
124
interstate commerce—going to work (Atlantic Coast Line
Ry. Co. v . Williams)_________________________________ 124,125
interstate commerce—installing electric transformers (Hal
ley v. Ohio Valley Electric Ry. Co.)----------------------------- 125,126
negligence—attempted rescue—contributory negligence (Ba
con w. Payne)------------------------------------------------------------- 126,127
Release—
infancy—effect (Robison v. Floesch Construction Co.)________ 127-129
infancy— fraud—question fo r ju ry (N eversweat M ining Co. v.

Ramsey)------ ------

129-131

jo in t tort feasors (M cN am ara « . Eastman K odak Co. et a l.) __ 131,132

CONTENTS,

VII

Em ployers’ liability— Concluded.
Page.
State’s liability— moral and equitable obligation— relief statute (F airfield, State Auditor, v. H u ntington)----------------------------------------------- 132,133
W orkm en’s compensation— negligence— injury by third person— par
ties to proceedings— railroads (Goldsm ith v . P a y n e)_____________ 134,135
Examination, licensing, etc., o f w orkm en:
Barbers— constitutionality o f statute (Cooper v. R o llin s )---------------- 135-137
Plumbers— constitutionality o f statute (T rew itt v. City o f D allas) - 137,138
Hours o f la b or:
D rug clerks— nine-hour day— penal statute construed (E x parte
T w in g )___________________________________________________________ 138,139
Public works— regulation o f wages— hours o f service act— constitu
tionality o f statute (State v. T ib b etts)-------------------------------------------139,140
Interference with employment— conspiracy— malice (Beardsley v. K il
m e r )___________________________________________________________________ 140-142
Labor disputes:
Industrial court— constitutionality o f statute (State ex rel. Hop
kins, Atty. Gen., et al., v. Howat et a l.)-------------------------------------------142
R ailroad labor- board— jurisdiction— powers (U nited States R. R.
Labor Board et al. v. Pennsylvania R. R. C o .)----------------------------- 142-148
Labor organizations:
Collective agreement— breach— injunction— application against em
ployer and employee (Schw artz et al. v. Cigar Makers’ Interna
tional Union et a l.)--------------------------------------------------------------------------148,149
Collective agreement— violation by employers— injunction (Schlesinger v. Q u in to)-----------------------------------------------------------------------------149-153
Conspiracy— interference with perform ance o f contract— injunction—
bond to pay damages (Central Metal Products Corp. v . O’Brien
et a l.)----------------------------------------------------------------------------------------------- 153-157
Conspiracy— liability fo r damages— torts o f members— relation o f
general and local organizations (United Mine W orkers o f Am erica
v. Coronado Coal C o .)---------------------------------------------------------------------- 157-165
Hostile attitude— anticipation o f violence— injunction— use o f army
(Consolidated Coal & Coke Co. v.B e a le )__________________________ 165-167
Industrial W orkers o f the W orld— crim inal syndicalism— membership
as violation o f law (People v.R o e )________________________________ 167-169
Injunction—
contempt— ju ry trial— Clayton A ct (Canoe Creek Coal Co. v.
C hristinson)___________________________________________________ 169,170
contempt— punishment (Campbell v. Motion Picture Machine
Operators et a l.)------------------------------------------------------------------------171,172
contempt— punishment— pardoning power (State ex rel. R odd v.
V e r a g e )------------------------------------------------------------------------------------- 172-175
parties— equitable rights and remedies (R . R. Kitchen & Co. v.
Local Union No. 141, International Brotherhood o f Electrical
W orkers) ----------------------------------------------------------------------------------175-177
Interference with employment— refusal to work fo r nonunion em
ployer (Sheehan v. Levy et a l.)-------------------------------------------------------177-179
Monopolies— fixing price o f products (Standard Engraving Co. v.
V o lz ) ______________________________________________________________ 179-181
Picketing—
injunction— acts o f union workers (K euffel & Esser v. Interna
tional Association o f M achinists)-------------------------------------------- 181-183
ordinance against display o f banner— constitutionality (W atters
v. City o f In dian apolis)_______________________________________ 183,184
termination o f strike— injunction (Y ates Hotel Co. v. M eyers) -184* 185

VIII

CONTENTS,

Labor organizations— Concluded.
Page.
Restraint o f trade— injunction (Campbell v. Motion Picture Machine
Operators’ Union o f Minneapolis, Local 2 1 9 )______________ ______ 185-187
Revocation o f charter— property rights (G rand Lodge o f interna
tional Association o f Machinists v . R e b a )____________ ___187,188
Rules—
effect o f waiver— status (Bruns v. Milk W agon Drivers’ Union,
Local 6 0 3 ) ____________________________________ ______________ 188,189
expulsion o f local from international union— injunction (B rick*
layers’, Masons’, and Plasterers’ International Union o f Amer
ica, Local No. 7, v. B o w e n ) ____ ________________ ____________ 189-192
expulsion o f members— right o f petition (Flynn v. Brotherhood
o f Railroad Trainm en) _________________________________ _______192,193
payment for work done for union (M oore v. Marine Firemen,
Oilers, and W atertenders’ Union o f the P a cific)______________ 194,195
Socialist party— workers’ educational association— restriction o f
membership (W orkers’ Educational Assn. v. Renner et a l.)_____ 195,196
Strikes—
advertisement fo r new employees— constitutionality o f statute
(B iersach & Neidermeyer Co. v. S ta te)_______________________196,197
advertisement fo r new employees— construction o f statute (W a l
ter W. Oeflein (In c.) v. S ta te)_______________________________197-199
“ breach o f good fa it h ” — persuasion to break contract (R ice,
Barton & Fales Machine & Iron Co. v . W illa rd )_____________200,201
injunction—
contempt— civil or crim inal procedure (F orrest v. United
States et a l.)_____________________________________ ______ 201-204
interference with interstate commerce (D anville Local Union
No.. 115 o f United Brick and Clay W orkers o f America et
al. v. Danville Brick C o .)_______________________________ 204,205
interference with interstate commerce (G reat Northern
R ailroad Co. v. Local Great Falls Lodge o f International
Association o f Machinists, No. 287, et a l.)______________ 205-208
interference with interstate commerce— Sherman A ct— Clay
ton A ct (United States v. R ailw ay Employees’ Department
o f American Federation o f Labor et a l.) ________________ 208-213
order o f railroad labor board (Portland Terminal Co. v.
Foss et a l.)----------------------------------------------------------------------- 213-216.
property rights— interference o f strikers (Crane & Co. v.
S now den)------------------------------------------------------------------------- 216-218
public w elfare— milk delivery (G ottlieb v. M atckin)________
218
surrender o f route books o f drivers (B orden’s Farm Prod
ucts Co. (In c.) v. Sterbinsky)_____________________________ 218-220
picketing—
injunction— Anti-injunction law o f Oregon— constitutionality
(Greenfield v . Central Labor Council o f Portland and
V icin ity) ________________________________________________
220-222
injunction— good w ill as property (R obison v. Hotel and
Restaurant Employees, Local No. 7 8 2 )___________________ 222-225
Mine
regulations— washroom— exercise
of
option— constitutionality
(Commonwealth v. Beaver Dam Coal C o .)____________________________ 225,226
M unicipality engaging in business— coal and w ood yard— constitutionality
o f statute— public purpose (Central Lumber Co. v. City o f W aseca
et a l . ) ------------------------------------------------------------------------------------------------------227

CONTENTS,

IX
P age.

Railroads— shelters fo r workmen— paint-spraying machines— constitution
ality o f statute— injunction— crim inal law (Chicago & N. W. Ry. Co. v.
R ailroad and Warehouse Commission o f M innesota)--------------------------- 227-231
, R elief associations— taxation— “ charitable purposes” (B oard o f County
Commissioners o f Chaffee County et al. v, Denver & R. G. R. Co.
Employees’ R elief Assn.) ------------------------------------------------------------------------231
State engaging in business— operation o f coal mines— emergency (D akota
Coal Co. v. F ra se r)___________________________________________________ 231-234
Trade secrets:
Right o f employees to engage in competitive business— injunction
(Fulton Grand Laundry Co. v. Joh nson)--------------------------------------- 234,235
Use o f list o f customers— interference with employment— procuring
breach o f contract— injunction (Shevers Ice Cream Co. v. Polar
Products C o .)---------------------------------------------------------------------------------- 235-237
W a g e s:
Assignment—
absolute sale— construction o f statute (Tollison v. G eorge)------237,238
constitutionality o f statute— presentation o f void assignment
causing discharge— damages (Alabam a Brokerage Co. v.
B oston )------------------------------------------------------------------------------------ 238, 239
usury laws— evasion by fraud (Tennessee Finance Co. v. Thomp
son) ------------------------------------------------------------------------------------------ 239,240
Bankruptcy — “ employee ” — “ mechanic ” — “ workingman ” — “ la
b o r e r ” (Van Vlaanderen v. Peyet Silk Dyeing C orp.)____________ 240,241
Bonus— rights o f discharged employee (R oberts v. Mays M ills)___ 241,242
Garnishment— public officers— salaries— constitutionality o f statute
(Cavender v. Hewitt et a l.)---------------------------------------------------------- 243,244
Mechanics’ liens— manual labor— use o f teams (Messerall v. D rey er)2 4 4 ,245
Minimum wage law— constitutionality o f statute— freedom o f con
tract (Children’s Hospital o f the District o f Columbia v. Adkins
et a l.)_____________________________________________________________ 245-254
Mode and time o f payment— deduction fo r advance payment (P rin ce
ton Coal Co. v . D o rth )-------------------------------------------------------------------254-256
Nonpayment— penalty— assignment (M artin v.G oin g )______________ 256,257
Nonpayment— penalty— effect o f tender (Robinson v. St. Maries
Lumber C o .)------------------------------------------------------------------------------------- 257,258
Rates—
basis— jurisdiction o f industrial court— enterprise operated at a
loss (Court o f Industrial Relations v. Charles W olff Packing
C o .)--------------------------------------------------------------------------------------------258-261
city ordinance— constitutionality (Jahn v . City o f S eattle)------- 261,262
power o f municipality— delegation o f powers— constitutionality
o f ordinance (W agner v. City o f Milwaukee et a l.)________ 262-264
power o f railroad labor board— constitutionality o f statute—
recovery o f wages (Rhodes v . New Orleans Great Northern
Ry. C o . ) ___ _________________________________ - ________________ 264-266
Seamen—
contract o f employment— fishermen— seaworthiness o f vessel—
labor certificates issued under duress (H eino v. Libby, McNeill
& L ib b y )______________________________________________________ 267-269
liability o f owner and master (Everett v. United S ta tes)_______ 269-271
release— good cause fo r setting aside (B row n et al. v. United
S ta tes)____________________________________________________ — 271,272
“ strik ers” — deserters— forfeiture o f wages by desertion (T he
M. &. Elliott) _______________
272,273

CONTENTS,

W orkmen’s com pensation:
Accident—
Pago,
death from shock— weakened condition caused by acid poison
ing— mental shock (K lein et al. v. Len H. D arling C o .)______273,274
heart disease (H elder v. Luce Furniture C o .)____________________
275
heart failure— findings o f fa ct by board conclusive (R usch v.
Louisville W ater Co. et a l.)____________________________________275,276
hernia— rules o f commission (Staker v. Industrial Commission
et aL)__________________________________________________________ 276,277
occupational disease— fumes from molten brass (General Am eri
can Tank C ar Corp. v. W e irick )-------------------------------------------- 277,278
overwork and strain (Y oung v . Melrose Granite C o .)__________ 278,279
poisoning— dipping hand in poisonous solution (Jeffreyes v.
Charles H. Sager Co. et a l.)----------------------------------------------------- 279,280
Adm iralty—
construction o f vessel (G rant Smith-Porter Ship Co. v . Rohde) 280,281
construction o f vessel— compulsory compensation statute (L os
Angeles Shipbuilding & D rydock Co. v. Industrial Accident
Commission) ___________________________________________________
282
diver laying submarine cable (D e Gaetano v. M erritt & Chap
man D errick & W recking C o .)_______________________________ 282,283
insurance in State fund— contract (W est v. K o z e r )___________ 283-285
longshoreman unloading vessel (State Industrial Commission v.
Nordenholt C orp.)__________________________________________ 285-287
Alien beneficiaries— treaty rights (F rasca v. City Coal C o .)_______ 287-289
Assault by forem an— w illfu l injury— damages (P erry v. Beverage) 289,290
A w ard—
basis— loss o f sight o f one eye— earning capacity (A bbott v.
Concord Ice C o .)____________________________________________ 290,291
basis— loss o f use o f right arm — earning capacity (K erw in v.
American Ry. Express C o .)__________________________________
291
basis o f computation (G eorgia Casualty Co. v. D a rn ell)-----------291,292
death o f beneficiary— vested rights (S tate Accident Fund v.
J a c o b s )_______________________________________________________ 292,293
* disability follow ed by death— deductions—payments to children
(N upp t>. Estep Bros. Coal Mining C o .)____________________ 293,294
lump sum— jurisdiction o f courts (Em ployers’ Indemnity Corp.
t?. W o o d s )____________________________________________________ 294-296
power to revoke— rights o f tw o wives— death o f claimant before
award (Industrial Commission o f Ohio v. D ell et a l.)_______ 296-299
reopening and review— power o f commission (T erry v. General
E lectric C o . ) _________________________________________________ 299,300
total weekly wages— tw o employers (Bam berger E lectric R . R.
Co. v . Industrial Commission o f U ta h )______________________ 300,301
A w ard fo r specific injury— death o f beneficiary— vested rights (W enning et al. v. Turk et a l.)------------------------------------------------------------- 301,302
Claim—
lim itation—
finding o f court (E x parte Sloss-Sheffield Steel & Iron Co.
[Steagall c a s e ])__________________________________________ 302,303
injury arising ou t o f and in course o f employment—assault—
second in ju ry— total disability {G uderiaa v. Sterling
Sugar & R y. Co. ( L t d .) ) _________________________________303,304

CONTENTS,

W orkm en’ s compensation— Continued.
Claim— Concluded.
limitation— Concluded.
Page,
mental incapacity (Lough v. State Industrial Accident Com
m ission) ______________________________________ i ___________
305
settlement (H opper v. W ilson & C o .)______________________ 305,300
notice—
absence o f prejudice (In re Troutman, In re K ir k )______ 306,307
actual knowledge— reasonable excuse (Patton Hotel Co. v.
M iln e r )__________________________________________________ 307, 308
prejudice— medical service (Lawson v. W allace & K een ey)308-311
reliance on promise to settle— liberal construction— estoppel
(M ulhall v. Nashua Mfg. C o .)___________________________ 311-312
Coverage—
business for gain— religious corporation— grave digging (D illon
v. Trustees o f St. Patrick’s C athedral)_______________________ 312,313
farm ers as miners (H anna et al. v. W a rren )___________________ 313,314
“ fou r or more w orkm en” — employee working separately (W ard
& Gow v. K rin sk y)__________________________________________ 314,315
policemen— public officers (M arlow v. M ayor and Aldermen o f
City o f Savannah)__________________________________________ 315,316
316
special officer— official (W alker v. City o f Port H u ron )-----------workmen regularly employed (Jurm an v. Hebrew National Sau
sage Factory et a l.)______ ^____________________________________ 316-318
Decedent without beneficiaries—
payment to State <Cook v. W est Side Trucking C o .)-----------------318
payment to State— constitutionality o f statute— powers o f com
mission (Yosem ite Lumber Co. v . Industrial Accident Com
mission o f C a liforn ia )_________________________________ :--------318,319
Dependency—
aged father— trustee (T in tic M illing Co. v. Industrial Commis
sion o f Utah) [Christensen ca se]----------------------------------------- 319,320
child living with grandmother— statutory presumption as to de
pendency (M adera Sugar Pine Co. v. Industrial Accident Com
mission o f C a liforn ia )_______________________________________ 320,321
member o f fam ily— absence o f marriage relationship (Federal
Mutual Liability Insurance Co. v. Industrial Accident Com
m ission) _____________________________________________________ 321,322
member o f fam ily— aliens (Passini v. Aberthaw Construction
C o . ) __________________________________________________________ 322, 323
member o f fam ily— cousins (H olm berg v. Cleveland-Cliffs Iron
C o . ) ----------------------------------------------------------------------------------------- 323,324
D isability— death—status o f claims— notice (H ill v. Ancram Paper
M il ls ) ____________________________________________ *________________324-326
D isability after return to work— business depression (Johnson’s
c a s e ) ---------------------------------------------------------------------------------------------- 326,327
Election—
notice to employees (Producers’ Oil Co. v. D an iels)___________ 327,328
original acceptance binding on subsequent employment (S ize
m ore v. Beattyville C o .)____________________________________ 328,329

X II

CONTENTS,

W orkmen’s compensation— Continued.
Employee—
Page,
domestic employment— hotel service (B arres v. W atterson
Hotel C o .)__________________________________________ f_L______ 329,330
officer o f corporation— stockholder (Southern Surety iCo. v.
C h ild e r s )____________________________________________ ^________330,331
partner— estoppel by contract (Em ployers’ Liability Assurance
Corp. (L td .) v. Industrial Accident Commission et a l.)_____ 331,332
volunteers (H ogan v. State Industrial Com m ission)--------------- 832,333
when relationship begins and ends— “ upon the premises ” (R oss
v. Howieson et a l.) ___________________________________________ 333,334
working director o f company— dual status (M illers’ Mutual Cas
ualty Co. v. H o o v e r)--------------------------------------------------------------- 334,335
Employers’ liability—
‘ ‘ law ful requirem ent” — construction o f statute (Patten v. Alu-*
minum Castings C o .)_________________________________________ 335-338
railroad companies— Federal statute— interstate commerce— re
pair o f locom otive (Industrial Accident Commission v, Payne) 338-340
railroad companies— Federal statute— option o f remedies (Dahn
v. D a v i s ) ____________________________________________________ 340,341
railroad companies— interstate and intrastate commerce— conelusiveness o f award (W illiam s v. Southern Pacific C o .)____ 341-343
Exclusiveness o f remedy— rights o f parents (W a ll v. Studebaker
C o r p .)______________________________.________________________________
843
Extraterritoriality—
what law controls—place o f making contract (D arsch v. Theavle
Duffield F ire W orks Display C o.) _____________________________343,344
what law controls— place o f making contract (H ulsw it V. Escanaba Mfg. C o .)______________________________________________344,345
Hazardous employment—
employee at logging camp (D ew ey v. Lutcher-Moor^ I>umber
C o . ) ____________________________________________________ ^____
345
janitor in printing establishment— notice— commutation to lump
sum (Okmulgee Dem ocrat Pub. Co. v. State Industrial Com
mission o f O klahom a)----------------------------------------------------------- 346,347
power o f commission to declare work extrahazardous— delega
tion o f legislative authority (State v. Bayles et a l.)________ 347-349
I n ju r y disease— typhoid fever (Industrial Commission v. C ross)______349,350
disease— typhoid fever (W asm uth-Endicott Co. o. K a r s t)______350,351
disfigurement— crooked finger (Frank W. W illiam s Co. v. Indus
trial Commission et a l.)__________________
351,352
disfigurement— independent compensated injury (Seneca Coal
Co. et al. v .'C arter et a l.)____________________________________
353
hernia— recurrence o f d isability- recourse against prior em
ployer (G aglione’s c a s e )---------------------------------------------------------- 353,354
preexisting disease (Centralia Coa? Co. v. Industrial Commis
sion et a l.)________________ ___________________________ :_______ 354,355
preexisting disease— excitement by inhaling gas (T in tic M illing
Co. et al. v . Industrial Commission o f Utah et al.) [Snyder
c a s e ] __________________________________________________________ 355-357
In ju ry arising out o f and in the course o f employment—
act o f humanity (Sichterm an v. Kent Storage Co. et a l.)______ 357,358
bite by mad dog (Chandler v. Industrial Commission o f U tah ). 358,359

CONTENTS,

XIII

W orkm en’s compensation— Continued.
In ju ry arising out o f and in the course o f employment— Concluded.
page.
- chief engineer doing other work (W ilson v. Dakota Light &
Power C o.) --------------------------------------------------------------------------------359
death by shooting— action without authority (Chicago & Alton
Railroad Co. v. Industrial Com m ission)____________________ 359,360
death from drowning in preparing to wash (Tennessee Chemical
Co. v. Smith et u x .) ___________ ,_____________________________ 360,361
drinking ice water while in heated condition (Gilliland v. Edgar
Zinc C o .)------------------------------------------------------------------------------------361
faint follow ing inoculation (Freedman v. Spicer Mfg. C orp .)___________ 362
fight between employees (T aylor Coal Co. v. Industrial Commis
s io n )----------------------------------------------------------------------------------------- 362,363
fight between employees— injury to innocent employee (G avros’
c a s e )-----------------------------------------------------------------------------------------363,364
going from work (C lifton v. Kroger Grocery & Baking Co. et a l.) _ 364,365
horseplay (L ee’s c a s e ) ---------------------------1___________- __________ 365,366
horseplay (Stark v . State Industrial Accident Com m ission)___ 366,367
injury by fire— disobedience o f orders (K ra ft v. W est Hotel Co.) 367,368
murder by employee ( Scholtzhauer v. C. & L. Lunch C o .)______
369
street risks— stabbing by madman (K atz v. Kadans & Co. et a l.;3 7 0 ,371
sudden impulse to save property (Sebo v. Libby, McNeill &
L ib b y )_____________________________________________ ^______ ____
371
violation o f rules (H am berg v. Flow er City Specialty C o.):___ 371,372
In ju ry arising out o f employment—
death by fa ll due to disease—proxim ate cause— w illfu l and se
rious misconduct (G onier v. Chase Com panies)---------------------- 372,373
death due to storm— negligence (M errill v, Penasco Lumber Co.
et a l.)________________________________________________________ 374,375
Injury by third party—
choice o f remedies (B ristol Telephone Co. v. W ea v er)_________ 375,376
employee’s right to sue (W halen v. A thol Mfg. C o .)___________ 376,377
subrogation— constitutionality o f statute— construction (C ity o f
Taylorville v. Central Illinois Public Service C o .)_____ ______377-379
subrogation o f insurer (H artford Accident & Indemnity Co. v .
E nglander)__:______ :_________ ________________________________ 379,380
Injury sustained in the course o f employment—
death from act o f robbers (Lumbermen’s Indemnity Exchange et
al. v. V iv ie r )_________________________________________________ 380,381
horseplay— unintentional shooting (U nited States Fidelity &
Guaranty Co. v. C assell)---------------------------------------------------------- 381,382
Insurance—
constitutionality o f statute— prescribing form o f insurance policy
(Travelers Insurance Co. v. Industrial Com m ission)_______ 382-384
failure to insure (People v. D on n elly)__________________________ 384,385
failure to insure— employers’ liability—presumptions (M artin v.
C hase)_________________________________________________________385,386
rates— retroactive operation o f law (B uilders’ Limited Mutual
Liability Insurance Co. v. Compensation Insurance B o a r d )__ 386,387
State fund— payment o f premiums— occupation enjoined— con
tempt o f court (State v.M cC oy )_____________________________ 387,388
Law yers’ fees— right to regulate (G ritta’s ca s e )____________________ 388-890

XIV

CONTENTS,

W orkmen’s compensation— Concluded.
Medical and surgical aid—
Page,
choice o f physician (Sm ith v. State Industrial Accident Commis
s io n )_____________________________________ r____________________ 390,391
contract with doctor— jurisdiction o f conanissioit (A ssociated
Employers’ R eciprocal t?. Slate Industrial Com m ission)_____ . 391,392
purposes o f industrial compensation (U nion Iron W orks v. In
dustrial Accident Commission o f C a liforn ia )_______________ 392,393
refusing operation (B ronson a. H arris Ice Cream C o .)________ 393,394
refusing operation (F rost v. United States Fidelity & Guaranty
G o.)___________________________________________________________ 394,395
refusing operation— choice ©f physician (N ew hall Land & Farm
ing Co. v . Industrial A ccident C om m ission)__________________ 395-397
Minor illegally employed—
“ em ployee” (G allow ay et al. v. Lumbermen’s Indemnity E x
change et a l . ) ------ -— ________________________________________ 397,398
“ employee ” (G rand R apids Trust Co. v. Petersen Beverage Co.) 398,399
“ em ployee” (In dian a Manufacturers’ R eciprocal Assn, et al. v.
D o lb y )-------------------------------------------------------------------------------------399
statute held applicable (G arcia *?. Salmen Brick & Lumber C o.) 399-401
suit fo r damages— compensation agreement (D elaney v. Phila
delphia & Reading C oal & Iron C o .)__________________________ 401,402
Partial disability—lump sum or periodical payments— amount (A n
derson v. Commonwealth O il & Refining C o .)____________________ 402, 403
Review—
condusiveness o f commission’s findings—lim itation— incompe
tents (W hitehead Coal M ining Co. p. State Industrial Com
mission) ---------------------------------------------------------------------------------- 403,404
power o f court—independence o f the judiciary—constitutionality
o f statute (O tis Elevator Co. v. Industrial Commission et al.) 404-406
‘Second injury—
loss o f second eye— “ permanent loss ” — total disability (H eaps v.
Industrial Commission e t aL) ________________________________ 406,407
loss o f second eye—specific and general provision (Stevens v.
Marten M achine Foundry & Supply C o .)_______________ 1____ 407,408
total or partial disability—notice o f in ju ry— constitutionality o f
statute (Chicago Journal Co. -v. Industrial C om m ission)____ 408-410
W illfu l cardessaiess— remedy exclu sive <DeOarli v. Associated O il
C o .)_________________________________________________________________410,411
W illfu l m isconduct—
intention to in ju re (D elthony «. Standard Furniture C o .) ____
411
violation o f law (F ortin et al. v. Beaver Coal C o .)____________ 411,412

BULLETIN OF THE

U. S. BUREAU OF LABOR STATISTICS
no

. 344

WASHINGTON

Se p t e m

ber

, 1923

REVIEW OF DECISIONS OF COURTS AND OPINIONS
AFFECTING LABOR, 1922.
INTRODUCTION.
Prior to the year 1912 the series of bimonthly bulletins of the
bureau (earlier the Department o f Labor, now the Bureau o f Labor
Statistics) carried court decisions as a part of their contents. Be
ginning with that year, separate bulletins have been published, de
voted exclusively to the presentation o f the decisions o f courts and
the opinions o f the Attorney General of the United States bearing
on various phases o f labor. These bulletins have been annual, ex
cept for the years 1919 and 1920, which were combined. They
are numbered 112, 152, 169, 189, 224, 246, 258, 290, and 309.
It is not attempted to reproduce all cases o f the classes used, but
rather to present illustrative cases embodying the principles under
consideration from time to time. No bulletin is therefore a complete
treatise o f the laws o f labor, but, taking the series together, prac
tically 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
o f appellate but not final jurisdiction are taken. This is notably
true with regard to the Supreme Court of New York, which fur
nishes a number of important cases affecting labor organizations, the
appellate court o f Indiana determining many compensation cases,
and a few other courts o f secondary rank for which decisions are
published by the West Publishing Co. in the National Reporter
System. This system of reports is depended upon in the main for
the cases presented, the Washington Law Reporter furnishing ma
terial for the District of Columbia, and advance sheets o f the
opinions o f the Attorney General for the Department of Justice.
The material is abridged, the statement of facts being in the
language o f the editors, usually with quotations from the language
1

REVIEW OF DECISIONS OF THE COURTS.

o f the court setting forth the conclusions o f law, though occasion-^
ally the findings are stated in a briefer form by the editors without
quotations. The decisions used are for the most part those appear
ing in the publications nam .i, during the calendar year covered.
The present bulletin presents material as follows:
Opinions o f the Attorney General, volume 33, page 107, to volume
34, page 395.
Supreme Court Reporter, volume 42, page 66, to volume 43,
page 99.
Federal Reporter, volume 275, page 881, to volume 284, page 304.
Northeastern Reporter, volume 133, page.l, to volume 137, page 176.
Northwestern Reporter, volume 185, page 353, to volume 190, page
784.
Pacific Reporter, volume 202, page 1, to volume 210, page 496.
Atlantic Reporter, volume 115, page 369, to volume 118, page 768.
Southwestern Reporter, volume 234, page 721, to volume 244. page
1119.
Southeastern Reporter, volume 109, page 625, to volume 114, page
624.
Southern Reporter, volume 90, page 1, to volume 93, page 927.
New York Supplement, volume 190, page 865, to volume 196, page
768.
Washington Law Reporter, volume 50.
The year has been unusually fruitful o f important decisions. The
Supreme Court o f the United States has had before it questions
involving the status and liability o f labor organizations, as in the
Coronado case; the powers o f the Railroad Labor Board have re
ceived their first authoritative definition in the case of the Pennsyl
vania Railroad v. The Railroad Labor Board; and the minimum
wage law o f the District o f Columbia and the child labor tax law
have been declared unconstitutional. The status of maritime and
quasi maritime workers continues to be a subject of discussion, while
that o f railroad employees affords an undiminished stream of cases
uncertainly moving between the boundaries o f interstate and intra
state determination. The upholding of the “ service letter ” laws o f
Missouri and Oklahoma sets at rest the power of the State to require
a statement o f the cause o f discharge on the termination of employ
ment— a point on which State courts of last resort have differed.
The accumulation o f precedents naturally suggests the settlement
o f certain principles and an indication of direction for legislation;
but an occasional reversion to authorities supposedly discredited
tends to disturb the course of this desirable attainment.

CONTRACT OF EMPLOYMENT.

OPINIONS OF THE ATTORNEY GENERAL.
Certain opinions o f the Attorney General of the United States
construing labor legislation, which »;^ould normally appear in the
current bulletin were noted in Bulletin No. 309. In addition there
were in 1922 a consideration of the applicability of the Federal child
labor tax law to the Territories and the District of Columbia, despite
its unconstitutionality in the States. The opinion was against the
recognition o f the law in any jurisdiction. (Child labor tax law, p.
57.) A second opinion related to the application of hours o f labor
law for women of the District of Columbia to Federal employments,
where again the answer was a negative. (Hours of labor law, p. 57.)
DECISIONS OF THE COURTS.
A L IE N S .

The only case presented under this head relates to the application
o f the contract labor law to a Scotch draftsman of expert qualifi
cations, who came to this country on promise of employment and
with his fare paid. He was found to be not a laborer but a man
o f technical attainments, exempt from the prohibitions o f the im
migration law. (E x parte Aird, p. 59.)
CONTRACT OF EM PLOYM ENT.
ENFORCEMENT.

Though the rule is, as commonly stated, that no contract for the
performance o f personal services can be enforced as such, the
effect may be indirectly produced by prohibiting an employee from
rendering similar services to any other party. One form of this
prohibition affects what are known as “ trade secrets” ; and the
question arose in Fulton Grand Laundry Co. v. Johnson (p. 234)
as to the right o f a driver and collector o f the laundry company to
use a list o f the former employer’s customers for a competitive busi
ness. The Maryland Court o f Appeals ruled that no prohibition
was warranted, declaring that anyone interested could discover the
patrons o f the company without difficulty. The Supreme Court of
Michigan took a very similar view in Federal Laundry Co. v. Zim
merman (p. 7 2 ); while the Supreme Judicial Court o f Massachusetts
(Sherman v. Pfeffercorn, p. 66) found a restrictive contract enforcible against a driver for a rival company. Fraud and misrep
resentation were involved in a case involving similar conditions,
passed upon by the Supreme Court o f New York (Shevers Ice Cream
Co. v. Polar Products Co., p. 235), so that an injunction against
certain practices was allowed.
49978°—23-----2

REVIEW OF DECISIONS OF TH E COURTS.
BREACH.

A salesman engaged for one year at a weekly salary plus commis
sion was allowed judgment for the entire year’s wages and estimated
commissions following his discharge after about one-third o f the
year had expired. (Granow v. Adler, p. 63.) Two conflicting meth
ods o f computing damages in such a case were discussed, with the
reasons for adopting that followed by the courts o f the State (A ri
zona). In Safford v. Morris Metal Products Corp. (p. 65) the Su
preme Court o f Errors o f Connecticut found a valid contract for
a fixed term and an unjustified breach by an employer, warranting
an award o f damages measured by the salary payable up to the date
o f bringing the suit.
A promise o f lifetime employment as consideration for injuries
was before the Supreme Court of North Carolina in Fisher v . John
L. Roper Lumber Co. (p. 68). The agreement to pay a living wage
was kept for a number o f years, but when the cost o f living advanced
the wage was not increased. The company’s denial of liability was
held not good, and damages for its failure to carry out the agreement
were allowed.
CONSTRUCTION.

The Appellate Court o f Indiana ruled that time lost by sickness
was not to be deducted where the contract called for a yearly wage
payable monthly for “ straight time ” (Red Cross Mfg. Co. v. Stroop,
p. 70), the matter being one within the power o f the parties to the
contract, and, while the term was ambiguous, it seemed apparent
that the loss by sickness was not to be deducted.
In another case (Chambers v. Davis, p. 71) the Supreme Court
o f Mississippi declined to construe a contract between a railroad
company and its employees as to prior rights, the majority holding
that it was not the proper function o f the court to arbitrate a labor
dispute, though one justice dissented strongly, welcoming the op
portunity to assist in the maintenance o f stable industrial conditions
by preventing disputes.
Under this head may also be noted a claim o f a woman and her
daughter for payment for domestic services rendered during several
years to an elderly sister and aunt. (Baker v. Lyell, p. 62.) Admit
ting that the presumption is against wages for services rendered
relatives, it was found that in the instant case a wage allowance
should be granted.

INTERFERENCE W ITH EMPLOYMENT.

CLEARANCE CARDS.

A regulation of the transactions involved in hiring and discharg
ing labor has been made in a number of States in regard to the fur
nishing o f a service letter or clearance card. The courts have taken
conflicting positions with regard to these laws, but that o f Missouri
sustained the statute of that State, the Supreme Court of the United
States taking a similar view. (Prudential Insurance Co. v . Cheek,
p. 75.) The law applies to corporations, and was said to have been
enacted to meet a practice developed by such corporations in the
conduct o f their business of hiring and discharging workmen. A
similar statute o f Oklahoma upheld by the courts of that State was
similarly sustained by the Supreme Court on the same day. (Chi
cago, E. I. & P. E. Co. v. Perry, p. 77.)
STATE REGULATION OF EMPLOYMENT, ETC.

The power o f the State to prescribe qualifications for persons
offering themselves as qualified to do certain kinds of work was
upheld in regard to barbers by the Supreme Court o f Georgia
(Cooper v. Eollins, p. 135) over the contention that the act* was dis
criminatory and a denial o f the equal protection o f the laws. Simi
lar approval was given to an ordinance o f the city o f Dallas, Tex.,
relating to examinations and licensing of plumbers. (Trewitt v.
City o f Dallas, p. 137.) Both pieces o f legislation were sustained on
account o f their relation to the public health.
INTERFERENCE WITH EMPLOYMENT.

A novel case was before the Appellate Division o f the Supreme
Court o f New York, involving an action for damages for loss o f em
ployment by a newspaper employee. (Beardsley v. Kilmer, p. 140.)
Kilmer, proprietor o f a patent medicine, had been a subject o f news
paper attacks, and in retaliation had published a rival newspaper
with such success as practically to drive the former publication out
o f existence, resulting in the loss o f employment complained of.
The court approved the dismissal of the complaint, finding nothing
unlawful or actionable in the methods used by Kilmer, even if there
was a “ conspiracy ” to carry out the end in view.
The Kansas Court of Industrial Eelations sought to prevent the
interruption o f production by adjusting labor controversies without
recourse to strikes. Violation of several injunctions issued in con
nection with the administration of this law was followed by punish
ment for contempt, whereupon the constitutionality of the act was
challenged, but it was sustained by the Supreme Court of Kansas on
the authority o f earlier decisions. (State v. Howat, p. 142.)

REVIEW OF DECISIONS OF THE COURTS.

WAGES.
ASSIGNMENTS.

The constitutionality o f an Oklahoma law regarding the loan of
money to be secured by assignment o f wages was upheld in Alabama
Brokerage Co. v. Boston (p. 238), and the company was mulcted in
damages for presenting an unlawful assignment to an employer,
resulting in the discharge o f the employee. A Tennessee law on this
subject was enforced against a lending company, whose methods
were found to be mere “ shams and frauds 55 to cover up evasions o f
the statute. (Tennessee Finance Co. v. Thompson, p. 239.) On the
other hand, the Supreme Court o f Georgia released an alleged
offender against the law o f that State, finding that there had been
an absolute sale o f wages already earned and not a loan secured by
future earnings. As no penalty existed for such a transaction, the
arrest had been unwarranted. (Tollison v. George, p. 237.)
MODE AND TIME OF PAYMENT.

An Indiana law prescribes semimonthly payment o f wages, another
law requiring weekly payments, if demanded. It was held (Prince
ton Coal Co. v . Dorth, p. 254) that where the later law was not availed
o f by the employee, the employer who regularly made semimonthly
payments might lawfully deduct 10 per cent from advances re
quested before the regular pay days. This deduction was said to be
consideration for payment in advance o f the date regularly ob
served, and the employee’s acceptance o f the reduced sum was bind
ing upon him as satisfaction for the wages due.
A California law makes wages payable within 72 hours after the
termination o f employment, with a penalty o f a continuation until
paid or sued upon, but for not more than 30 days. Several men had
assigned their wages to one man for collection, who sued for the
total amount plus continuances for 30 days. As the suit was brought
about 20 days after the debts accrued, the allowance o f a 30-day
penalty was held improper, and the legality of the assignments was
questioned for lack o f proof that they had been made in writing.
The date o f the assignment would also be o f the essence, as no pen
alty would accrue to the assignee after the assignment by the wageearner. (Martin v. Going, p. 256.) A penal statute o f Idaho rela
tive to the nonpayment o f wages was construed in the case of Robin
son v. St. Maries Lumber Co. (p. 257). Here there was a refusal
o f checks by a bank, but tender of the wages was made about a week
later. This was rejected because the penal additions were not also
tendered, and in a suit it was attempted to recover both wages and
penalty up to the current date. The supreme court of the State held

WAGES.

that the effect o f the tender o f the wages alone had been to stop the
accrual o f the penalty, but that the workmen were entitled to the
wages earned and to the penalty accruing up to the date o f the
original tender.
BANKRUPTCY.

It is quite generally provided that employees defined as workmen
or laborers shall be entitled to a preference o f the wages due them in
case o f the bankruptcy o f the employer. Such provision was held
not to avail the manager and supervisor o f an establishment who
with his wife was the sole owner o f the stock of the employing cor
poration and whose weekly salary of $200 might absorb the greater
part o f the assets to the exclusion of other creditors. (Van Vlaanderen v. Peyet Silk Dyeing Corp., p. 240.)
RATES.

The Kansas Court of Industrial Relations was authorized to deter
mine a suitable wage for the industries placed under its jurisdiction.
A packing company declined to accept a prescribed scale, claiming
that the court was without power to fix rates, and that the company
had been operating at a loss, so that it was unable to meet the ad
vances made by the order. The supreme court of the State found in
favor o f the validity of the order and that due process had been
observed in the matter of jurisdiction in respect of the wage rate,
but that certain employment conditions on which the industrial court
had acted were not within its power to fix under the existing circum
stances. (Court of Industrial Relations v. Charles W olff Packing
Co., p. 258.) As to the ability o f the company to pay the wages fixed
the court found the necessities of the employees to be of the first
consideration, and while employers are entitled to a fair return it
must not be at the expense of the worker.
An ordinance of the city of Seattle, Wash., directs the payment of
not less than the current rate of wage by contractors doing work
for the city, and in any event not less than $2.75 per day. Another
ordinance directed the city to pay fixed amounts as a maximum for
beginners and for those of some experience. Contractors were
found guilty o f paying less than the rate fixed by the city, but
contended that there had been an unreasonable and unlawful fixing
o f rates and delegation of power to heads o f departments. These
contentions were rejected by the supreme court o f the State and the
constitutionality of the ordinance upheld, so that the judgment
against the contractors was affirmed. (Jahn v. City o f Seattle,
p. 261.) Upon the other hand an unlawful delegation o f power
was found to be attempted by an ordinance of the city o f Milwaukee,

REVIEW OF DECISIONS OF THE COURTS*

which directed in effect that union rates should be paid; and while
the council had in form adopted a schedule by its own action, in
reality it had intrusted the matter to labor organizations. Such
conduct was declared to be an abdication o f legislative authority and
an unlawful attempt to delegate it to others. (Wagner v. City of
Milwaukee, p. 262.)
A decision which presumably led to a settlement o f the case
under consideration, but which would seem to be overruled by a later
decision o f the Supreme Court o f the United States (p. 148) is one in
which the Supreme Court o f Mississippi declared that the United
States Railroad Labor Board had the authority to fix wages, its
decision being binding upon the employing company. (Rhodes v.
New Orleans G. N. R. Co., p. 264.)
Though not falling strictly under this head, there may be con
sidered here a case in which the enforcibility o f a promise of a
bonus was before the court. (Roberts v . Mays Mills, p. 241.) A
cotton mill offered a 10 per cent bonus at the end o f a year for all
who would render continuous service from the date o f the offer. A
discharge without sufficient cause was held not to void the right
o f the workmen to claim the bonus for the period of the service
actually rendered, even though it did not extend to the date pro
posed for its payment.
MINIMUM WAGS.

The minimum wage laws o f the United States, some 15 in number,
relate to the employment o f women and minors. Several have been
upheld by the State courts o f last resort, but the Court o f Appeals
o f the District o f Columbia took the opposite view in Children’s
Hospital v. Adkins (p. 245). The act o f Congress creating a minimum
wage board for the District o f Columbia was said not to be a proper
exercise o f the police power and was a violation o f the fifth and four
teenth amendments protecting the freedom o f contracts. The case
was appealed to the Supreme Court, and the finding o f unconstitu
tionality was there upheld by five Justices. (Adkins v . Children’s Hos
pital, p. 249.) The reasons given in the Supreme Court were much
the same as below; the statement was also made that there was no
causal connection between the employers’ business and the require
ment for the payment o f the wages fixed by the board. Admitting
that the hours o f labor o f women might be regulated, it was held
that their contractual and political equality with men rendered in
appropriate any attempt to restrict the freedom o f contract in regard
to wages. Vigorous dissenting opinions were presented by three
justices.

WAGES.

GARNISHMENT.

A Tennessee statute placing municipal officers and employees on
the same basis as employees in private undertakings as to the gar
nishment o f their wages was passed upon by the supreme court of
the State. (Cavender v. Hewitt, p. 243.) Though the act was in
direct contravention o f the common law as previously construed in
the State, it was held to be valid as against various contentions o f
unconstitutionality offered.
MECHANICS’ LIENS.

Mechanics’ lien laws are enacted for the protection of the earnings
o f workers on practically all kinds o f chattel and real property. A
Minnesota statute gives a lien for “ manual labor or other personal
service ” in logging. This was construed to cover not only wages
but the contract earnings o f a man and his team used in performing
a piece o f work under a contract for the services o f team and
teamster. (Messerall v. Dreyer, p. 244.)
SEAMEN.

Special rules of law as well as special legislation apply to sea
men’s contracts. A ship libeled for salvage was subjected to inter
vening libels to secure the wages o f seamen. Their claims were
given preference, and when the proceeds o f the sale o f the ship were
not sufficient to pay their claims the owner and the master were held
to be liable in the order named. (Everett v. United States, p. 269.)
Where the employer refused to pay wages due unless a release was
signed for a statutory claim the court held that the release obtained
under compulsion was not valid, being made a condition precedent
to the receipt o f amounts indisputably owed. (Brown v. United
States, p. 271.) Leaving the service of a vessel at the solicitation of
strikers was found to be desertion in the case of a part o f a crew
which had failed to conform with the requirements of the law as to
demands for the payment of wages, the result being that they for
feited the balance of earnings which were to their credit before
leaving the service. (The M . 8. Elliott, p. 272.)
A situation contrasting with that in the Brown case above devel
oped in a crew of seamen and fishermen engaged for service in Alas
kan waters. The contract was for the season from Seattle and
return. The ship sprang a leak on the way out but was repaired,
and the trip was made in safety. However, the men agreed among
themselves that they would not sail the vessel back, and, though
it was certified to be safe by various inspectors, the refusal persisted.
A suit to recover the wages claimed resulted in their defeat, the men

REVIEW OF DECISIONS OF THE COURTS.

being found to have deserted and abandoned the ship without just
cause, thereby forfeiting the unpaid wages. (Heino v. Libby,
McNeill & Libby, p. 267.)
HOURS OF LABOR.

An Oklahoma statute fixes eight as the hours o f labor to constitute
a day’s work. On public works o f the State or municipality, wages
must be at the current rate in the vicinity. Parties convicted of
violating this law contended that it unlawfully interfered with the
right to contract, but it was held by the court o f criminal appeals to
be valid. (State v. Tibbetts, p. 139.)
A California law fixes the hours o f labor o f drug clerks, limiting
them to nine per day for persons engaged in selling at retail drugs
and medicines and in compounding prescriptions. An employer sen
tenced for a violation of thia act had his sentence reversed on the
ground that the employee had actually sold drugs and medicines and
compounded prescriptions for about two hours, the balance o f the
time being spent in selling cigars, candies, soft drinks, etc. The
court ruled that as a penal statute it must be strictly construed, and
if the employee was not engaged more than nine hours in the em
ployments named in the law, it was not violated. (E x parte Twing,
p. 138.)
MUNICIPALITY, ETC., ENGAGING IN BUSINESS.

The city o f Waseca, Minn., is authorized by its charter to establish
a municipal coal and wood yard for its citizens. The right to do so
was challenged on the ground that taxation for other than public
purposes would be involved in the maintenance o f the business. The
supreme court held that the objection was without force in view o f its
opinion that the establishment of the yard was a public purpose in
which the city might lawfully engage. (Central Lumber Co. v. City
o f Waseca, p. 227.)
The power o f a State to act in emergency induced by disputes be
tween owners and workmen in essential industries was challenged in
the case, Dakota Coal Co. v. Fraser (p. 231). The United States dis
trict court declined to intervene where the operation o f lignite mines
was undertaken by the State o f North Dakota as a means o f relief
from great and imminent suffering. After the question had become
moot by reason o f the termination o f the emergency, the denial of the
injunction was vacated by the circuit court o f appeals, leaving the
company free to prosecute the matter further if it desired.
COST OF LIVING.

The emergency war measure known as the Lever Act was invoked
in the case o f a dealer charged with selling coal at a price involving

MINE REGULATIONS.

profits in excess o f those allowed by the act. (Ford v. United
States, p. 73.) Conviction in the trial court was upheld by the
United States Court of Appeals over contentions that the act de
prived o f property without due process o f law and was not suffi
ciently explicit in its terms. This case was distinguished from the
Cohen case noted in Bulletin 309, page 72, in which one section o f
the above law was declared unconstitutional.
RELIEF ASSOCIATIONS.

The only case coming up for notice under this heading is one
involving the status of a relief association organized by a group of
railroad employees in the State of Colorado. The association owned
a hospital and about three acres o f land and claimed exemption from
taxation on this property on the ground that it was owned and
used for charitable purposes. This contention was not accepted by
the court, the association managing the property purely for the ad
vantage o f its members and not as a charity. (Board o f County
Commissioners v. Denver & R. G. R. Co. Employees’ Relief Associa
tion, p. 231.)
EMPLOYMENT OF CHILDREN.

Various phases of child-labor legislation were involved in cases
under employers’ liability and workmen’s compensation as incidental
to the redress o f accidental injuries. An important case on the
status o f child-labor legislation as such was before the Supreme
Court o f the United States on questions o f constitutionality. This
was the so-called child-labor tax law, by which a tax was to be levied
on the products o f child labor under certain circumstances. The
statute was declared unconstitutional as an attempt by the Federal
Government to regulate the employment o f children— a power that
belongs to the State exclusively. (Bailey v. Drexel Furniture Co.,
p. 60.)
MINE REGULATIONS.

A Kentucky statute o f 1920 requires certain employers to provide
wash rooms if 30 per cent o f the number of their employees request
the same. A mining company was indicted for failure to carry out
the provision of this act and raised the question o f its constitu
tionality. The contention was sustained by the Supreme Court on
the ground that the act was not in itself an enforceable requirement,
and delegated to groups of employees the right to call it into opera
tion, in contravention of a specific provision of the constitution of
the State. (Commonwealth v. Beaver Dam Coal Co., p. 225.)

REVIEW OF DECISIONS OF THE COURTS.

RAILROADS.

A number o f States have recently enacted laws prescribing the
erection o f shelters for employees doing repair work on railroad
cars, trucks, etc. Such a law- o f Minnesota was held unconstitu
tional in Chicago & North Western Ry. Co. v. Railroad and Ware
house Commission (p. 227). The basis of this finding was in part
the indefiniteness o f the act in its requirement as to standards of
protection against “ inclement weather ” ; also because the act con
tained a prohibition o f the use o f paint-spraying machines inside the
work sheds. This provision was said to be unreasonable and purely
arbitrary in view o f the present ingredients o f the paint used, and
also in view o f the fact that the State itself used such machines
inside buildings; other contentions o f the railroad company were
found to be without weight, but these were fatal.
EMPLOYERS’ LIABILITY.
ASSUMPTION OF RISK.

Despite the very general enactment o f compensation laws, a consid
erable number of cases still come before the courts, even in compensa
tion States, involving suits for damages, either under the common
law or its statutory modifications.
A riveter on construction work was given a staging narrower than
that to which he had been accustomed, and in placing his foot behind
him to brace his body against his riveting gun, he stepped off the
staging and fell. His suit for damages was contested on the ground
that his own carelessness had been the cause o f his injury; or, if the
staging should be found defective, he had assumed the risk. The
court refused the contention o f assumed risk, saying that the rapidity
o f the work and the concentration o f attention took the employee
out from under the rule o f assumed risk, and as the employer had
failed to furnish a safe place, he was liable in the case. (Belkin v.
Skinner & Eddy Corp., p. 85.)
The defense was effective in a case before the United States Cir
cuit Court o f Appeals, in which the death o f a mine worker was
caused by contact with an electric wire. It was said that his age
and experience were such that it must be presumed that he appre
ciated the conditions and assumed the risk, so that no recovery of
damages could be allowed. (Bingham Mines Co. v. Bianco, p. 88.)
A boiler maker’s helper, engaged in a class of work with which lie
was familiar, received an injury to his eye and sued for damages,
claiming that he did not receive proper instructions or warning o f the
danger. Goggles were sometimes used in such work, but none were
furnished at this time. The company contended that the injured

EMPLOYERS

LIABILITY.

man assumed the risks ordinarily incident to such work, and that it
had no duty o f warning o f its dangers. The judgment o f the Ken
tucky courts was to the contrary, damages being allowed. (Hines v.
Thurman, p. 86.) The injured man was less successful in a case
before the Supreme Court o f Indiana, involving very similar cir
cumstances, where a workman injured by a sliver of steel striking
his eye recovered damages in the trial and appellate courts, but the
judgment was reversed in the supreme court, the workman being
charged with an assumption o f the risks in the absence of specific
instructions given by the employer as to the method o f doing the
work. To the charge o f negligence against the employer for failing
to give warning of the danger, it was said that there was no knowl
edge o f the workman’s ignorance, and a mere general order to do a
piece o f work could not be regarded as negligence in the circum
stances. (Emerson Brantingham Co. v. Growe, p. 87.) Similarly
unsuccessful was the plaintiff in a case before the Supreme Court o f
Appeals o f West Virginia. (Smith v. United Fuel Gas Co., p. 90.)
This, too, was an eye injury, received by working with simple tools,
in a position of ordinary safety. The possibility o f the employer
providing different implements did not charge him with negligence,
as the implement furnished was one o f customary use. The defenses
o f assumed risk and contributory negligence were therefore said to
be available to the employer.
A very different phase o f the question of assumed risk was
involved in the case (Newberry <v. Central o f Georgia Railway Co.,
p. 89) in which the United States Circuit Court of Appeals ruled
in favor o f a telegraph operator whose health was impaired as the
result o f a night’s work in a leaky office car. The plaintiff entered
on his work in the night, without an opportunity to inspect his
surroundings, and suffered impairment of health on account o f
the resulting exposure. Under the circumstances, the defense of
assumed risk was held not to apply.
NEGLIGENCE.

In all cases in which the employer is held liable for damages,
negligence on his part must be shown. A few cases are noted under
this heading, indicating the nature of the act held negligent, and
the relation thereto of the customary defenses. In Mackey Tele
graph-Cable Co. v. Armstrong (p. 105), the Court of Civil Appeals
o f Texas affirmed a judgment in favor of a workman injured by
undertaking to lift a heavy box, on the assurance that two men
could handle it. The failure to furnish a sufficient number o f men,
or to sufficiently instruct those employed as to the dangers involved
in the work, was said to be such negligence as to charge the employer

REVIEW OF DECISIONS OF THE COURTS.

with responsibility. Also, in a case before the Supreme Court of
Missouri (Unrein v. Oklahoma Hide Co., p. 106), the failure to
comply with the statute requiring elevator shafts to be guarded was
held to support a judgment against the employer. The defense of
contributory negligence charged against the workman in this case
was not allowed in view o f the specific statutory provision which
had been violated. In another Missouri case, involving the con
struction o f the statute as to safety installations, certain establish
ments are specified, and the general term “ other establishments”
is added as indicating the places to which the law applies. An
electric wringer on display in a store was found not suitably pro
vided with guards, and the resulting injury was held to entail lia
bility, the mercantile establishment being classed as one o f the
“ other establishments ” to which the law was applicable. (Stoll v.
Frank Adam Electric Co., p. 109.)
Another case involving the construction o f a safety statute was
before the Supreme Court o f Missouri, an injury to the eye having
taken place, due, as was claimed, to the failure of the employer to
guard a polishing wheel. The law requires such wheels to be pro
vided with hoods to carry off the dust so as to prevent its inhalation.
No hood was provided, and particles from the wheel entered the
workman’s eyes. The failure to provide the hood was said not to be
a violation o f the statute, so far as the present injury was concerned,
the object o f the law being not to prevent eye injuries, but injurious
inhalations. (Mansfield v. Wagner Electric Manufacturing Co.,
p . 1 1 2 .)

That the owner and landlord was the responsible party for injury
resulting from an unguarded mangle was held in Tomlinson v.
Marshall (p. 117). The mangle caused injury to an employee em
ployed by the operator of a laundry taken over from the owner on
a so-called lease. The plant was taken as a going concern, and the
original operator and actual owner was held responsible for the
injury. Another case in this group applies common-law principles,
no applicable statute existing in the State. A pressure bar was
dangerously near a driving belt, and a 15-year-old boy was seriously
injured while using it. Damages were allowed because of the em
ployer’s negligence in furnishing an unsafe instrumentality for the
use o f a youthful workman. (Sutton v. Melton-Bhodes Co., p. 116.)
Less successful was a brakeman who carelessly threw the wrong
switch and walked down the track to which he had directed the
locomotive by this action, thinking that he was walking alongside
instead of on the track. His failure to exercise “ reasonable care ”
in the circumstances was held to be such contributory negligence that

EMPLOYEES 9 LIABILITY.

even if the employer could be said to be negligent no recovery could
be had. (Miller v. Canadian Northern Ry. Co., p. 107.)
The Supreme Court of Minnesota had before it a case in which
compensation had been claimed but denied on the ground that the
injury did not arise out of and in the course of employment. Claim
ing, nevertheless, that the employer was negligent, the injured work
man sued for damages, and his employer contended that the finding
in the compensation case was a bar to the action. It was held that
compensation and liability rested on different grounds, and that a
denial o f compensation was not a bar to an action based on negli
gence. (Katzenmaier v. Doeren, p. 110.)
The relationship of the employee of an independent contractor to
the plant in which he was at work was considered in Craig v, RiterConley Mfg. Co. (p. 111). An addition to the company’s factory
involved the employment o f a carpenter under conditions affected
by the principal’s conduct o f operations. A crane operator permitted
his crane to strike the carpenter, giving no warning of its ap
proach. This was held to be such negligence as to sustain a judg
ment in favor of the injured man, the defense of contributory negli
gence being disallowed.
Another case involving the relations of a third party was before
the Pennsylvania Supreme Court, involving also a provision of the
compensation law o f the State. An iron company’s employee was
injured by the negligence o f a railway company delivering stone
to the iron company’s plant. A compensation award against the
employer was followed by a suit against the railroad company, the
employer being joined in the action on account of his subrogation to
certain rights of the plaintiff under the compensation law of the
State. The railroad company objected, claiming that the provision
o f the compensation act was unconstitutional, but this the court dis
allowed, declaring that the railroad company was not concerned as
to the recipient of the damages recovered from it, its liability being
neither increased nor diminished by the terms of the compensation
act. (Gentile v. Philadelphia & R. Ry. Co., p. 113.)
In an Illinois case (Goldsmith v. Payne, p. 134), a workman was
injured by the negligence of a third person, and sued such third
person (a railroad company) for damages without recourse to his
employer. The railroad company contended that it, the employer,
and the workman were all three under the compensation act so that
no action for damages would lie. It was ruled that the compensa
tion act authorized action for damages where the injury was due
to the negligence of a third party, so that it would not be said that
the compensation law was the sole recourse o f the injured man.
Furthermore, though the workman was not engaged in interstate
commerce, the railroad was, so that it could not, in view o f the

REVIEW OF DECISIONS OF THE COURTS.

Federal liability statute, come under the compensation law o f the
State, and therefore must answer to the action in damages.
Somewhat similar to the Armstrong case above (p. 13) is one in
which the plaintiff claimed to have been injured by overexertion
induced by an order to hurry. The workman was handling mail,
and had an unusually heavy bag to load on an outgoing train. He
had received the bag earlier in the day, and it was held that he had
opportunity at that time to discover its excessive weight (about 35
pounds above standard). This charged him with such knowledge
o f the facts as would prevent the claim that the instructions to
“ hurry up” were responsible for his injury. (Jirmasek v. Great
Northern Ry. Co., p. 115.)
COURSE OF EMPLOYMENT.

The Supreme Court o f Arkansas denied the liability o f an em
ployer in a case in which a young helper to a depot agent w^s acci
dentally shot by a pistol furnished by the express company to its
agent, the shooting being a sequel to a series of playful acts in which
the agent and the boy had taken part. The agent was said to be
discharging no duty but acting voluntarily for purposes o f his own,
so that the employer would not be liable. (American Railway E x
press Co. v. Davis, p. 92.) Liability for intentional injury was also
denied in a Nebraska case where a foreman struck and injured a
discharged workman who in his anger at his discharge called the
foreman a vile name. The assault was said to be not within the
scope o f the foreman’s duties as disciplining workmen and maintain
ing order; so that while he himself might be held personally liable,
the employer was, under the circumstances, free from liability.
(Zaitz v. Drake-Williams Mount Co., p. 94.)
Under this heading, involving a variation from the above, may be
noted a case in which a workman inflicted fatal injuries on a mem
ber o f the public with whom his duties naturally brought him into
contact. The employee was a gatekeeper at a railroad crossing and
was said to suffer from a form of insanity which made him easily
incensed and dangerous while in such a condition. He opened the
railroad gates under protest, though no train was near, and imme
diately fired on the party for whom the gates were opened, killing
one member. The company was held liable on account o f its lack
o f care in selecting a suitable person for the position. (Davis v.
Merrill, p. 93.)
EMPLOYEES.

Whether or not the injured party was in the relation o f employee
was the decisive question in Baltimore & O. S. W. R. Co. v. Burtch
(p. 95), decided by the Supreme Court o f Indiana. The conductor

EMPLOYERS ’ LIABILITY.

o f a freight train undertook, with the aid o f his brakemen, to unload
a heavy machine at a way station. His force being insufficient, he
called on a bystander to assist, and in the course o f the latter’s com
pliance with the request he was injured. The company contended in
response to Burtch’s suit that he was not an employee, but the court
held that the conductor was the responsible representative of the
railroad, and that his action was binding, so that liability as to an
employee existed. An opposite conclusion was arrived at in a Geor
gia case in which the manager o f a cotton gin called on a patron to
assist him in replacing a belt that had slipped. Both the trial court
and the court o f appeals classed the helper as a volunteer, denying
that the employment relation existed in such a way as to create lia
bility for his injuries. (Early v. Houser & Houser, p. 97.)
The principles of law applicable to volunteers were held to apply
in the case o f a youthful employee going outside the scope o f his
employment and committing an act which inflicted serious injury.
The duties o f a 12-year-old boy required him to go in and out of
the tool shed o f his employer in which dynamite was stored. Seeing
a piece o f dynamite that looked to the boy like a tool, he thought it
needed polishing and applied it to a revolving grindstone, resulting
in an explosion and serious injury. The employer contended that as
the boy had undertaken a service outside the scope o f his employ
ment there was no liability, the boy being guilty o f contributory
negligence in his voluntary assumption o f duties not devolved upon
him. This contention the Supreme Court of Massachusetts upheld,
saying that the employer owed him no duty, in his departure from
the scope o f his employment, in the absence o f willful and wanton
disregard o f the employees’ safety. (King v. Smart, p. 108.)
CHILDREN ILLEGALLY EMPLOYED.

Injuries to children employed in violation of the law as a rule
result in judgments in favor o f the injured child. Thus in Waldron
v . Garland Pocahontas Coal Co. (p. 102), the Supreme Court o f West
Virginia held the company liable for the death of a 13-year-old boy
who had been employed in a mine, the statute fixing the minimum
age at 16 years. The boy had been employed but discharged, but
later returned on an errand for an alleged independent contractor.
He was told not to enter the mine, but did so, and in the course o f the
evening he received fatal injuries. The responsibility was held to be
on the company, in spite o f the warning, since it was a statutory duty
to see that no child is either employed or permitted to work in any
mine. A vigorously contested case in New Jersey likewise resulted
adversely to the employer who had violated the law in permitting
a minor to work at a cylinder printing press. The boy had misrep

REVIEW OF DECISIONS OF THE COURTS.

resented his age, presenting employment papers belonging to another,
but this was held not to be an excuse, since the employer must assure
himself o f the identity o f his employees and the person named in the
papers, at his own peril. (Volpe v. Hammersley Mfg. Co., p. 99.)
The defense o f contributory negligence was denied, since the legis
lature had given its judgment that children o f this age were too
young to enter into service o f this type. The fact that the boy had
received compensation payments was also said not to bar the suit
for damages, since to do so would be to override the legislative policy
o f the State in regard to such employments.
In a case in which fatal injuries resulted, misrepresentation o f age
played an important part. A lad o f unlawful age for employment
was in the service of the same employer with his father, the em
ployment having been entered upon on the father’s representation
that the boy was o f legal age. The fact that the father, who sued
for damages for his son’s death, would be the sole beneficiary o f any
judgment in the case was an essential one in leading to the court’s
decision that a judgment for damages must be reversed. The father
had been guilty o f a misdemeanor in permitting his son to be em
ployed, and o f fraud in misrepresenting his age, and could not be
allowed to profit by such conduct. (International Agriculture Corp.
v. Cobble, p. 100.)
The statute limiting the age o f employment was held not to be
applicable in a case before the Supreme Court o f Arkansas, where a
boy under age was injured while working for a railroad company
engaged in interstate commerce. (St. Louis-San Francisco By. Co. v.
Conly, p. 98.) It was held that the State child labor law could not
apply, since it would change the liability o f the railroad company,
which was fixed exclusively by the Federal liability statute, as the
injury occurred in interstate commerce. Construction of the child
labor law o f Kentucky also prevented recovery in a case in which a
father sued a newspaper company for the death of his son from
pneumonia said to have been incurred while unlawfully employed in
selling papers. It was ruled that the law did not apply, because,
though employment was during the term o f school, it was not during
the school hours; furthermore, the law as to street trades was not
applicable in a small place, but limited by its terms to cities o f the
first, second, and third classes. (Cincinnati Times-Star Co. v. Clay’s
Admr., p. 101.)
A difficult question involving unlawful employment of minors was
before the Court o f Appeals o f Kentucky, in a case of injury to a
boy operating an elevator in a hospital. (Emery v. Jewish Hospital
Assn., p. 104.) He was under the legal age and was injured by the
negligence o f the employer. However, under the construction of law
that exempts charities from liability for such injuries, no redress ex

e m p l o y e r s ' l ia b il it y .

isted against the association as such. The individual employer, how
ever, the agent of the association in hiring the boy, was said to be
personally liable, both civilly and criminally.
ADMIRALTY.
*

The difficulty of determining the boundary between maritime law
and legislation o f the States determining the liability o f employers
is comparable largely to the question of interstate and intrastate em
ployment in commerce. The New York Court of Appeals was called
upon in Reinhardt v. Newport Flying Service Corporation (p. 81)
to pass upon the status of a hydroplane. The plane was moored in
navigable waters in New York Harbor, and a workman injured by it
while it was there located put in a claim for compensation. This was
allowed and approved by the lower courts, but on appeal it was held
that the hydroplane while on the waters is a vessel, and the work
man’s rights are governed by maritime law rather than by State legis
lation. A similar conclusion was reached in regard to the claim of
a fisherman on Lake Michigan, the Supreme Court of Michigan re
versed an award o f compensation on the ground that the fisherman,
drowned 15 miles off shore, was engaged in maritime employment, so
that the workman’s compensation law did not apply. (Foppen v.
Peter J. Fase & Co., p. 82.)
A different conclusion was reached in a case before the Supreme
Court o f New York, Appellate Division, the case being one of a ves
sel moored to a dock in the city o f New York, which was being
painted. A scaffold furnished by the employers collapsed, and the
injured workman sued to recover damages, the action turning on the
question o f whether the State safety appliance law governed, or
whether the case was purely maritime. The court ruled that the em
ployment was not such as to disturb the general features of maritime
law, and that the State laws and judicial practices applied. (Wilks
v. United Marine Contracting Corp., p. 83.)
RAILROADS.

Interstate commerce.—The fact that Congress has enacted a lia
bility statute for interstate commerce takes injuries to railroad em
ployees outside the scope of the State compensation laws unless the
service is found to be intrastate. The question as to the nature of
the employment is frequently difficult to determine, but the number of
decisions rendered by the United States Supreme Court has aided to
clarify the situation. In Richter v. Chicago, M. & St. P. Ry. Co.
(p. 124), the Supreme Court of Wisconsin held that a car repairer
working on cars which had been brought from another State, situated
49978°—23----- 3

REVIEW OF DECISIONS OF THE COURTS.

on a repair track for needed repairs, was engaged in interstate com
merce, even though he had completed his work and was attempting
to board a train to return to his home. A similar view was taken of
a case in which the fireman o f a switch engine was injured while on
his way to work, which would involve the shifting of cars and mak
ing up and breaking up interstate freignt trains. (Atlantic Coast
Line Ey. Co. v. Williams, p. 124.)
A different set o f circumstances surrounded the case of a workman
engaged in installing electric transformers for an electric railway
engaged in interstate commerce. His work was said to be the repair
and maintenance of an instrumentality used in interstate commerce,
so that though he was not directly engaged in the movement of
trains, he was nevertheless within the terms o f the act. (Halley v.
Ohio Valley Electric Ey. Co., p. 125.)
Under what law the action may be brought is a question of serious
importance, as appeared in the case Gauthier v. Atchison, T. & S. F.
Ry. Co. (p. 122). A workman injured in California while in the
baggage room o f the company asked for compensation under the
State act, but the commission decided that it did not have jurisdic
tion, as the claimant was engaged in interstate commerce. Subse
quently, a suit for damages was begun, the plaintiff claiming that the
company had promised to settle and that he need not sue. When
action was brought it was more than two years from the date o f
injury, so that by the terms o f the Federal statute the right to sue
had expired. A contention also raised was that the company had
practiced fraud in causing the delay by its promise; but the court
found that there was not sufficient ground for this claim and the case
was dismissed.
More fortunate was the suitor in a case involving an employee o f
the Panama Railway. (Panama Ry. Co. v. Minnix, p. 121.) The
injured man sued the company and recovered a judgment for injury
caused by the employer’s negligence. The company contended that as
the United States employees’ compensation act was made applicable
it was exclusive; furthermore, that the railroad company could not
be sued, as the United States was the sole owner. The latter fact was
held not to bar the action, and the court held that Minnix had two
remedies, one by suit and another by claim under the compensation
law, either o f which he might avail himself.
Defenses.— The Federal statute modifies the customary defenses,
but does not abolish that o f assumed risk. In Outcelt v. Chicago,
B. & Q. R. Co. (p. 119) the defense was not allowed, however, where
the company attempted to apply it so as to cover a risk not so
obvious as to be readily observable, the question being one for the
jury to decide. Contributory negligence was also apparently sug
gested, but the court pointed out that this did not bar recovery, but

EMPLOYERS ’ LIABILITY.

merely reduced the damages if found to exist. The Supreme Court
o f the United States found it necessary to reverse a judgment o f the
Supreme Court o f Pennsylvania, which had applied the principle
o f assumed risks to a case in which the injury resulted from the
negligence o f a fellow servant. The defense o f fellow service
being abrogated completely by the act, it could not be said that the
workman had assumed the risk of a fellow servant’s negligence.
(Reed v. Director General o f Railroads, p. 120.)
A liability statute necessarily bases recovery on the negligence of
the employer. A section foreman who erroneously concluded that
one o f the workmen had thrown the wrong switch for an approach
ing train lost his life in an effort to reverse the switch so as to pre
vent a fast through train from being sidetracked, though it would
probably have resulted in no serious injury to the train. No recovery
was allowed, since though his life was lost in the effort to avoid
damage to property, the rule that might otherwise exonerate him
did not apply, as his conduct was rash and reckless. The improper
switching o f the train would not have injured him, and his conduct
in running too close to the track was held to be the sole cause of
his death. (Bacon v. Payne, p. 126.)
RELEASE.

The effect of a release signed by a minor was passed upon by
the Supreme Court o f Missouri in the case o f Robison v. Floesch Con
struction Co. (p. 127). An inexperienced youth undertook to move
about an unfamiliar piece o f machinery in the night and lost a limb.
A settlement was formulated and a “ friendly suit ” carried on before
a justice o f the peace, leading to an apparent settlement. On a
subsequent suit this was set aside, both because the minor had a
right to disaffirm such settlement and because the “ suit ” was found
to be merely a screen for an overreaching adjustment o f the injured
boy’s case. Minority was also involved in a case that came to the
Supreme Court o f Oklahoma, where the signature o f an injured
boy was secured while he was still suffering severely from the
mental and physical consequences of the accident. Here again both
minority and a total disregard by the company for the rights o f the
plaintiff led to a setting aside o f the release that had been signed.
(Neversweat Mining Co. v. Ramsey, p. 129.)
A third case under this heading involved joint wrongdoers, the
owner and the contractor of a building being held chargeable with
the responsibility o f the death o f a workman. The trials, reversals,
and retrials o f the case illustrate the difficulties that have attended
liability suits throughout their history, the final result being that a
paper signed on representation o f the receipt of a charitable grant

REVIEW OF DECISIONS OF THE COURTS.

and not a settlement o f the claim was construed as binding in the
sense claimed by the defendant company, and that a settlement with
one o f two joint tort-feasors barred action against the other. (M c
Namara v. Eastman Kodak Co., p. 131.)
OCCUPATIONAL DISEASES.

The New York workmen’s compensation act provides awards for
injuries due to certain designated diseases o f employment. In Trout
v. Wickwire Spencer Steel Corp. (p. 114) the supreme court o f
the State held that an occupational disease incurred by the negli
gence o f the employer, but not included in the list covered by the
compensation law, would support an action for damages, the remedy
being by common law, not affected by the statute mentioned.
LIABILITY OF STATE.

A specific appropriation to pay monthly pensions to an injured
employee o f the State was held by the Supreme Court of Arizona
to be a valid enactment as meeting a moral or equitable obligation
o f the State, and not a gratuitous present or special legislation for
a private purpose, over contentions to the contrary. (Fairfield v.
Huntington, p. 132.)
WORKMEN’S COMPENSATION.
COVERAGE.

The restriction o f the New York law to employments “ for pe
cuniary gain” was held to bar the claim o f a workman injured
while digging a grave for a religious corporation, whose income must
be expended only for charitable objects. (Dillon v. Trustees o f St.
Patrick’s Cathedral, p. 312.) The same (New York) law was con
strued by the Supreme Court of the United States in respect o f its
provision making the law applicable where four or more workmen
or operatives are in the service of the employer. This provision was
held to extend the benefits o f the law to all employees, including in
the instant case a newspaper salesman working alone, immediate
contact with the “ four or more workmen” not being essential to
inclusion (W ard & Gow v. Krinsky, p. 314). The same phrase was
construed by the appellate division o f the supreme court o f the
State, with particular consideration o f the qualifying adverb “ reg
ularly,” that court finding that a general utility man, who at times
was a waiter, at times cook, and at times counter man, was never
theless regularly employed and was a workman within the terms
o f the act. (Jurman v. Hebrew National Sausage Factory, p. 316.)

w o r k m e n ' s c o m p e n s a t io n .

The customary exclusion o f farmers from the operation o f com
pensation laws did not avail in a case in which the owners o f a farm
employed workmen to mine and load coal from an outcrop on their
farm, an injury in this undertaking being not “ farm labor ” as that
term is generally understood, so that the injured man was entitled to
compensation. (Hanna v . Warren, p. 313.)
The compensation law of Michigan excludes “ any official of any
city ” from its provisions; but a temporary employee, hired to per
form certain duties of the nature of a park policeman or watchman
for a time, was held to be not such an official even though he took
the constitutional oath required of all officers entering upon their
duties. In spite of this suggestion of official relation, the position
was found to be one created by contract, so that he was an employee
o f the city, and as such entitled to compensation for injury.
(Walker v. City of Port Huron, p. 316.) Where a policeman holds
his position under regular appointment the court of appeals of
Georgia ruled that he was a public officer and not under contract, so
that the relationship of employee necessary to a compensation claim
did not exist. (Marlow v. City of Savannah, p. 315.)
The Supreme Court o f Oklahoma ruled that the president and
major stockholder of a corporation, who spent a part of his time in
manual and mechanical labor o f the company, was an employee so
as to be entitled to the benefits of the insurance policy covering em
ployees o f the company. (Southern Surety Co. v. Childers, p. 330.)
On the other hand, where a partner drawing no wages but sharing
th? profits equally with his copartner was injured while at work in
a rock pit, it was held that the fact that he was named as the person
to whom the insurance policy in behalf o f employees should be paid
stopped him from making claim as an employee, so that no compen
sation under the policy could accrue for his injury. (Employers’
Liability Assurance Corporation v. Industrial Accident Commission,
p. 331.) The opposite conclusion was reached by the commission of
appeals o f Texas where the superintendent and head miller, also
one o f the board of directors of the company, was killed while work
ing in the mill. The rule was laid down that one occupying a dual
position as officer and employee was entitled to the coverage of the
act while acting as employee. (Millers’ Mutual Casualty Co. v.
Hoover, p. 334.)
The exclusion of domestic servants was pleaded in a case carried to
the Court o f Appeals of Kentucky in a case in which a maid in a
hotel was injured in an elevator accident. Hotel work was said to
be industrial rather than domestic, hotels being institutions of a
business nature in which the services of a domestic are a mere inci
dent. An action for damages would not lie therefore, but recourse

REVIEW OF DECISIONS OF THE COURTS.

must be had to the compensation act. (Barres v. Watterson Hotel
Go., p. 329.)
A question involved in the case last named arose from the fact that
the claimant was leaving the hotel to go home at the time that she
was injured in the elevator. The court ruled that as leaving the
hotel was a necessary part o f her duties, this did not cease until she
was off the premises o f the employer. This principle is o f general
application, but did not extend to an employee in a dressmaking
plant which occupied rooms in a large building. The employer was
held not to be responsible for conditions in a hall remote from his
workrooms, so that even if the employee was on her way to work
she was not yet upon the premises o f the employer so as to charge
him with responsibility for compensation for her injuries. (Ross v.
Howieson, p. 333.)
The loss o f an arm by a farmer while rendering services at the re
quest o f the manager o f a cotton gin did not justify an award of
compensation as for injury to an employee, according to a decision
o f the Supreme Court of Oklahoma. (Hogan v. State Industrial
Commission, p. 332.) The employment status did not exist, and the
rule as to volunteers barred the award.
EXTRATERRITORIALITY.

The Appellate Court o f Indiana had before it a case in which the
injured workman and his employer were residents o f another State,
the work being under a contract made in that State. The grant o f
an award was appealed from, and the appellate court ruled that the
Indiana law had no application, since “ the State o f Indiana can
not regulate the conduct o f citizens o f foreign States. (Darsch v.
Thearle Duffield Fireworks Display Co., p. 343.) However, where
a contract was made between a resident corporation and a citizen of
the State, compensation was payable in accordance with the law o f
the State, even though the entire service to be rendered was outside
its boundaries, according to a decision by the Supreme Court o f
Michigan. (Hulswit v . Escanaba Mfg. Co., p. 344.)
ALIENS.

A case came before the Supreme Court o f Errors o f Connecticut
involving the right o f aliens under the law as it existed before 1921,
which allowed nonresident alien dependents but one-half the normal
benefits. A claimant residing in Italy appealed from an award
made on this basis on the ground that the treaty between the United
States and Italy guaranteed equal consideration with the residents
o f the United States. The treaty was construed as affording pro
tection without regard to nationality, but not dealing with the ques

w o r k m e n 's

c o m p e n s a t io n .

tion o f nonresidence. A citizen’s beneficiaries residing abroad, if
aliens, would be entitled to exactly the same benefits that an alien’s
beneficiaries would receive, so that the discriminatory provision was
said not to violate the treaty as drawn. (Frasca v. City Coal Co.,
p. 287.) The same court construed the law of the State on this sub
ject where aliens were involved, but the beneficiary was a dependent
sister living in New York City. The attempt of the employer to
reduce the rate to one-half failed by reason of the court’s ruling that
the statutory reduction applied only to nonresident aliens, and not
to those within the bounds o f the United States. (Passini v. Aberthaw Construction Co., p. 322.)
HAZARDOUS EMPLOYMENTS.

The Oklahoma statute, as a number of others, is limited in its
application to employments designated as hazardous. This would
include manual or mechanical work in a plant where machinery is
used, but the employer of a janitor in a printing establishment
claimed that his employment, not involving work about the machin
ery, was not covered. The injury complained of was received while
cleaning up waste metal under a linotype machine for remelting and
further use, a finger receiving a puncture, infection following.
The court ruled that this work was an essential part o f the operation
o f the mechanical processes and must be regarded as within the law.
(Okmulgee Democrat Publishing Co. v. State Industrial Commis
sion, p. 346.) The workman in this case had furnished a substitute
and also asked for assistance during his disability, but the employer
both declined to render assistance or to consider that he had notice
o f the disability because not formally sent in. However, the court
ruled that under the circumstances the plea o f lack o f notice could
not avail. A third question involved the matter of a lump sum, the
commission having made commutation equal to the undiscounted
total o f the weekly payments. This, too, was upheld as within the
power o f the commission to determine.
The Legislature of Washington authorized the Department of
Labor to add to the list of hazardous employments named in the act,
various prior attempts having been unsuccessful, as determined by
the courts. The language finally used was held valid against the
contentions that it was an unlawful delegation o f legislative au
thority and that no standard was fixed by the act for the guidance
o f the department. (S ta tes. Bayles, p. 347.)
A conclusion was arrived at by the Supreme Court o f Louisiana
involving somewhat similar conditions as in the case o f the janitor
in a printing office, but reaching a diverse conclusion. Here a
a clean-up man ” at a lumber camp was held not to be engaged in
hazardous occupation under the statute, as his work was simply

REVIEW OF DECISIONS OF THE COURTS.

about the camp and in no way connected with logging operations.
A grant o f compensation in this case was reversed, the supreme court
regarding the particular duty of the workman as determinative
rather than the general occupation o f the employer. (Dewey v.
Lutcher-Moore Lumber Co., p. 345.)
ADMIRALTY.

The line between compensation and maritime laws received con
sideration by the Supreme Court o f the United States in the case
Grant Smith-Porter Ship Co. v. Rohde (p. 280). The claimant was
a ship carpenter at work on an incompleted vessel in navigable
waters, and it was held that his employment was not maritime so
as to exclude the jurisdiction of the State compensation law of
Oregon, distinguishing this from the Jensen case and the Knicker
bocker Ice Co. case, in which compensation statutes had been found
inapplicable on account o f conflict with admiralty rules. The same
conclusion was reached in Los Angeles Shipbuilding & Drydock
Co. v. Industrial Accident Commission (p. 282), where a machinist
was installing machinery on a launched vessel in Los Angeles Har
bor. The employer claimed that the law as to maritime torts con
trolled, but the court o f appeal held that the compensation law
applied, even though the law o f that State was compulsory, in
contrast with the elective law of Oregon. A diver laying a sub
marine cable in the Harlem River was found by the Appellate
Division o f the Supreme Court o f New York to be working under
a maritime contract, he being one o f the crew of a scow equipped as
a floating derrick and engaged generally in the wrecking business.
It was said that the nature of the employment was not material,
since his work on the vessel was under a maritime contract. (De
Gaetano v. Merritt & Chapman Derrick & Wrecking Co., p. 282.)
The Supreme Court o f the United States had a different question
before it in the case o f a longshoreman killed on the dock by the fall
ing o f a pile o f bags o f cement being taken off a vessel. Compensa
tion had been allowed by the commission, but the State courts
reversed the award. The Supreme Court in turn reversed the New
York courts, pointing out that they had drawn unwarranted deduc
tions from the Jensen and other cases, and that admiralty juris
diction need not be invoked in the case in hand. (State Industrial
Commission v. Nordenholt Corporation, p. 285.)
The Supreme Court o f Oregon was asked to determine a number
o f cases in which awards had been made from the State insurance
fund for injuries occurring on and about vessels. These involved
shipbuilding, ferry operation, stevedoring, operation of motor boat
in cannery work, and freight transportation work. The State indus

w o r k m e n ' s c o m p e n s a t io n .

trial commission had found each of these within its jurisdiction and
had made awards, but the secretary of state declined to issue war
rants for the payment of these awards from the State fund until an
authoritative determination should be made. This was done in the
instant case, instructions being issued for the issue of the warrants
for each claimant. (West v. Kozer, p. 283.)
RAILROAD SERVICE.

Commerce by railroad, like maritime shipping, gives rise to con
tinued difficulty on account of the relations of interstate and intra
state commerce and the two classes o f legislation governing. A case
was before the Supreme Court of the United States involving the
injury of a workman while repairing a locomotive in a repair shop.
The Industrial Accident Commission of California had awarded
benefits under the compensation law of the State, but this was set
aside by the State district court of appeal on the ground that the
engine was an interstate instrumentality. The question before the
Supreme Court was whether or not the previous use of the loco
motive in interstate commerce gave it a continuing quality during
its stay in the repair shop. The tests applicable were reviewed, and
the distinction drawn between rolling stock and way fixtures, the
court holding that the locomotive with its extended withdrawal from
service had lost its interstate quality and the State compensation law
would apply. (Industrial Accident Commission v. Payne, p. 338.)
Another case before the same court involved an injury to a rail
way mail clerk by the wrecking o f a car. Here the question of
interstate commerce wras not in question, but one as to the choice of
remedies. The injured man had received compensation as an em
ployee of the United States under the Federal employees’ compen
sation act, and his suit against the railroad company and the Director
General o f Railroads (then under Federal control) was said to be
barred by the fact of the compensation award. Grounds for dis
missing the case against the road itself had been found, and the right
o f the injured man to sue the Director General was said to have been
lost when he received compensation, though he might have chosen
the other remedy if the choice had been made in time. (Dahn v.
Davis, p. 340.)
A California claimant sought to safeguard the situation by suing
for damages under the Federal act, and, pending the decision, also
making claim under the State compensation law, fearing a deter
mination adverse to the interstate claim necessary under the Federal
statute. The commission proceeded to make an award on the as
sumption that it had jurisdiction, though requested to hold the
matter in abeyance until the suit should be decided. The court

REVIEW OF DECISIONS OF THE COURTS.

subsequently allowed damages. The employer opposed this judg
ment on the ground that the injured man was not engaged in inter
state commerce at the time of his death, supporting this claim by
evidence and by the proceedings before the State commission. This
position was upheld by the court o f appeal over contentions o f the
widow that she appeared as an individual in one case and as admin
istratrix in the other, so that one finding should not be made use o f
in the other proceeding. The court denied her right to present
conflicting evidence to support diverse claims based on the same
status and facts. (Williams v. Southern Pacific Co., p. 341.)
ELECTION.

The method by which an employer must notify his employees- of
his election to operate under the compensation act is not specified in
the Texas statute. A suit for damages was contested by an employer
on the ground that he had given suitable notice through signs and
posters, but the question was certified to the supreme court o f the
State as to whether this was adequate. In the absence o f specific
direction it was held that the presumption would be that personal
service would be necessary to bind both parties, such general pro
vision as the posting o f signs being insufficient. (Producers’ Oil
Co. v. Daniels, p. 327.) Under the Kentucky statute the employee
must sign an agreement to accept the act, and a case was before the
court o f appeals as to the effect o f a prior election on employment
resumed after repeated interruptions. The court held that the
original signing was binding upon the employee under the circum
stances, so that he could not recover damages, but must accept com
pensation under the terms o f the compensation act, the return to
work “ within a reasonable time ” permitting the acceptance to con
tinue in force. (Sizemore v. Beattyville Co., p. 328.)
NOTICE AND CLAIM.

The general requirement o f the presentation o f a claim within a
fixed time may be qualified by the factor o f the presence or absence
o f prejudicial results. Thus in an Indiana case (In re Troutman,
p. 306), the appellate court held that notice o f injury within 30 days
was a requirement subject to qualification under the law o f that
State, and that, no prejudice being shown, the employer could not
plead the lack o f notice as grounds for opposing the claim.
’"W here an injury developed only at a considerable time after the
occurrence o f the accident causing it, and further delay resulted from
incorrect diagnosis, the employer’s insistence on favorable action
after an original disallowance o f the claim on the ground that the
time for notice had expired led to a reopening o f the case. The in-

W O B K M E t f 's C O M P E N SA T IO N .

surance company, on the other hand, raised the point o f limitations,
but the State law (New York) was found to safeguard only the
employers’ interest, even though the insurance company was the only
party financially interested in raising the defense. (Lawson v. W al
lace & Keeney, p. 308.) This case involved a point of interest in con
nection with medical service, the insurer not being held liable for
service rendered prior to the notice to the employer.
The Kansas statute requires notice and claim within 6 months after
the death o f the party injured; the provision was held to be appli
cable in a case where a delay o f 10 months intervened, the fact that
a prior settlement for temporary disability had been made being
held to suggest the final disposition o f the case rather than that
further demands might arise. (Hopper v. Wilson & Co., p. 305.)
Mental incapacity was held not to be a justifiable excuse for delay in
presenting a claim of an injured workman under the law o f Oregon.
It was here held that the time began to run with the accident and
not with a subsequently developed injury, and though in the present
case the situation might be regarded “ as one of great misfortune,”
the terms o f the law were not subject to variation. (Lough v. State
Industrial Accident Commission, p. 305.)
A case o f peculiar hardship was one before the Supreme Court
o f Alabama, where a court administration exists. A defective peti
tion was rejected by the trial court, and on its presentation in
amended form the employer professed readiness to settle without
contest. The court thereupon dismissed the case as offering nothing
for it to determine, and no further action was taken until 18 months
later when the court was again asked to settle the case. The em
ployer’s demurrer that the claim was now outlawed was held by the
court to be valid, the supreme court affirming it though stating that
the court below should have made a final determination on the
presentation o f the amended claim. (E x parte Sloss-Sheffield Steel
& Iron Co., p. 302.) Somewhat in contrast with the allowance of the
employer’s plea of limitations is a case in which the promise of an
insurance company through its agent that compensation would be
paid without the injured party having to take any action was held
to bar the company from offering the limitation of 6 months as a
defense to a claim later submitted; the Supreme Court of New
Hampshire ruled that the law called for a liberal construction, and
that the reliance o f the plaintiff on the agent’s promise could not be
made to operate against her and in favor o f the promisor. (Mulhall
v. Nashua Mfg. Co., p. 311.)
Various points were involved in a case before the Supreme Court
o f Louisiana in which the right o f a foreman to recover for injuries
inflicted by a subordinate was considered. The injury resulted in
the ultimate and unanticipated loss of sight of the only useful eye

REVIEW OF DECISIONS OF THE COURTS.

the man had, so that a second injury resulting in total disability had
to be acted upon. Though the injury was due to assault, it was held
compensable; and in view o f the fact that blindness developed only
some months later than the blow causing it, it was ruled that the
blow itself gave no cause o f action at that time, and that until the
injurious effects developed the workman could not be expected to
give notice. The cause of action was therefore said to accrue at the
time vision was lost, so that the limitation ran from that later date.
As to the total disability produced by the loss of the one eye, it was
said that the compensation should be awarded according to the con
sequences o f the injury, which would be as for permanent total dis
ability. (Guderian v. Sterling Sugar & Railway Co. (L td.), p. 303.)
The plea that the limitation against claims would not run in the
case o f a minor until the appointment of his guardian, was rejected
by the Supreme Court of Tennessee, where the law provides for pay
ments to a widow for herself and dependent child, or children, so
that her failure to present a claim within the time prescribed cut
off all recovery in the absence of a showing of a “ reasonable excuse ”
for the failure to give the statutory notice. (Patton Hotel Co. v.
Milner, p. 307.)
AWARDS.

A case was before the Supreme Court of New Hampshire involving
the question o f the basis of an award to a man of two occupations.
Injured while in the employment of an ice company, his capacity to
work at a more remunerative employment as a mason was impaired,
though he could continue with the ice company as before. The court
ruled that compensation was based on the difference in the earning
capacity before and after the accident in the employment in which
he was engaged at the time o f the injury. Though he lost an eye, he
was out o f work but four days, and under the two weeks’ waiting
time rule o f New Hampshire, no compensation whatever was re
ceived. (Abbott v. Concord Ice Co., p. 290.)
The above ruling shows the effect o f the absence of any schedule
for specific injuries, the loss of an eye involving no compensation
unless resulting in wage loss. In a case before the Supreme Court of
Pennsylvania a more liberal doctrine was applied in the case of
Kerwin v. American Railway Express Co. (p. 291). Here a truck
driver suffered injury to his arm so that he could not engage in man
ual labor, though he could do clerical work under favorable circum
stances. The court held that he was entitled to compensation for
the loss o f use of his arm, even though he might be able to earn as
much as before in some different occupation.
Injury to a young workman was held by the Court of Civil Appeals
o f Texas to be compensable, not on the basis o f his earnings for the

w o r k m e n ' s c o m p e n s a t io n .

short period worked (six weeks) at the time of his death, but on the
basis of the average annual wages of an employee of the same class
in similar employment in the locality. (Georgia Casualty Co. v.
Darnell, p. 291.) This w^as over the contention that the award could
not be based on a higher wage than the beginner was earning, the
court holding that the presumption that he would not advance in
earning capacity would not be indulged in.
A few cases came before the courts involving the question of vested
rights in awards made where death occurred before payments were
completed. Thus in a Maryland case (State Accident Fund v.
Jacobs, p. 292), a mother died at the expiration of less than one-half
the period of compensation awarded on account of fhe death of her
son. Against the contention of the Fund that no further payments
were due under the award, the court of appeals affirmed the ruling of
the State accident commission that the remainder should be paid to
her estate. A similar ruling was applied by the Appellate Court of
Indiana in a case in which an injured workman was receiving com
pensation for a specified term o f weeks on account of the loss o f an
eye. About midway of this period the injured man died from an in
dependent cause and the heirs—his widow and child—asked that the
unpaid balance for the period be awarded them. The employer con
tended that no obligation existed beyond the term of the employee’s
life, but the court ruled that the balance o f the award which he
would have collected had he lived was payable to his heirs. (Wenning v. Turk, p. 301.)
A case complicated by an illegal marriage was before the Supreme
Court o f Ohio involving the power of the commission to revoke an
award made and to consider a claim after the death of the claimant.
On the death of the employee, his second wife (bigamous) was
granted an award; on the discovery of the existence of a legitimate
wife and children this was revoked, but the claim of the first wife was
denied on the ground that she was not a dependent. Both wives ap
pealed, the first one dying before the case was adjudicated. The
court ruled that the second wife was without rights, as not being
legally married, and that the board had power to revoke the award
originally made in her behalf. As to the first wife, whom the de
ceased had long deserted without furnishing support, it was held that
dependency rests on obligation and not on the question of its dis
charge. An award was therefore directed in behalf o f her estate,
running from the time of the employee’s death to that of the death of
his lawful wTife. (Industrial Commission of Ohio v. Dell, p. 296.)
The power o f an industrial commission to review an award re
ceived consideration also in a case before the Court o f Appeals of
New York, the employee in this case having received compensation
for temporary disability and returned to work. Subsequently he

REVIEW OF DECISIONS OF THE COURTS.

voluntarily left and took employment elsewhere, but died a few
months later. The commission voluntarily reopened the case and
made a finding that his death was due to the injuries received in the
first employment and awarded compensation for wages lost before
his death. The court o f appeals ruled that the commission was with
out power to take this action, holding that as compensation is pay
able only to employees, no award could be made after the death o f
the employee, while no claim for benefits to dependents was under
consideration. (Terry v. General Eleetric Co., p. 299.)
Continuing disability followed by death existed in a case passed
upon by the Supreme Court o f Pennsylvania, the injured workman
dying as a result o f his injuries after having received compensation
for 58 weeks. The law o f the State limits statutory benefits for the
widow to 800 weeks minus any period of prior compensation pay
ments. The insurance carrier offered a settlement to the widow on
this basis, also proposing to deduct 58 weeks from the amount pay
able to each child, the law providing for the continuance o f such
payments until the sixteenth birthday. The court ruled against this
last deduction, saying that the law requires payment to 16; while
under the proposed settlement they were stopped before they were
15, which would violate the statute. (Nupp v. Estep Bros. Coal
Mining Co., p. 298.)
A Texas statute requires commutation o f awards to lump-sum
payments to be approved by the industrial accident board. An in
jured employee desired such commutation, but undertook to antici
pate the approval o f the accident board by securing judgment in a
justice court, which the claimant’s attorney said would be binding.
Tlie insurer agreed to this, but the accident board refused to recog
nize the judgment and did not approve the lump-sum settlement.
On contest the case reached the Commission o f Appeals o f Texas,
where the justice court was said to be without jurisdiction, the pur
pose o f the legislature being to give the accident board power to
protect the public interest as well as that o f the employees them
selves. (Employer’s Indemnity Corp. v. Woods, p. 294.)
A case involving the relative obligation o f two employers was
decided by the Supreme Court o f Utah, reversing the action o f the
commission which charged both employers with responsibility,
though at the time o f his fatal injury the workman had entered
upon the service o f but one o f his employers for the day. The court
ruled that while the award should be based on the total amount o f
earnings received from both companies, only that employer in whose
service he was at the moment o f his fatal injury should be held
responsible for the payment. (Bamberger Electric By. Co. v. Indus
trial Commission, p. 300.)

W ORKMEN^

c o m p e n s a t io n .

The exclusive application o f the State compensation law was
affirmed in a Michigan case in which an injured minor received an
award for injuries, his father subsequently suing on his common-law
right to recover for the loss of wages o f his son. The father’s right
to recover was denied, the courts ruling that the boy, legally at work,
was under the compensation act and that the enactment o f this law
had abrogated all other rights o f recovery. (W all v. Studebaker
Corp., p. 343.)
REVIEW .

The Legislature o f Illinois provided for a review by the courts o f
the codes made by the State industrial commission, declaring that
the findings o f fact made by the industrial commission should not be
set aside unless contrary to the manifest weight o f the evidence.
This provision was said to be an attempt to prescribe a rule for the
courts which was beyond the power of the legislature to enact, so
that the limitation was void. The case was therefore sent back by
the supreme court to the circuit court for a review that would con
sider the facts as well as the law. (Otis Elevator Co. v. Industrial
Commission, p. 404.)
In contrast with the foregoing, the Supreme Court o f Oklahoma
refused to weigh the evidence after a determination made by the
industrial commission, so that an award made by the commission
was affirmed on the record showing that there was evidence support
ing it. (Whitehead Coal Mining Co. v. State Industrial Commis
sion, p. 403.) Another contention in this case was that the action
was barred by a limitation o f one year from the date o f the injury.
This limitation was said by the court to apply to the making of a
claim, which had been made in due time, and not to the present
proceedings for a review.
ACCIBENT.

The Supreme Court of Michigan construed the law of that State
as covering a death where a workman, in a nervous condition from
sulphuric acid poisoning, died from nervous shock. He inflicted an
accidental injury on a fellow workman, which he thought was fatal,
and became highly nervous and delirious, dying, as the accident board
found, as the result of the nervous and mental injuries suffered,
construing this as an accident under the law. (Klein v. Len H.
Darling Co., p. 273.) The same court approved an award where
death followed overexertion, causing acute dilation of the heart,
applying the principle of unexpected consequence o f an intended
act, classifying such result as accidental within the law. (Helder v.
Luce Furniture Co., p. 275.) The same rule is applied by the A p
pellate Court o f Indiana in the case, General American Tank Car

REVIEW OF DECISIONS OF THE COURTS.

Corp. v. Weirick (p. 277), death in this case following the inhalation
o f poisonous gas arising from molten brass; the court ruled that
an “ injury may be the result o f accidental means, though the act
involving the accident was intentional.”
Adverse decisions were rendered in cases closely comparable to
the above, as, for instance, where the Supreme Court of Minnesota
denied compensation to a workman who complained of injuries
chargeable to overwork and strain, resulting in atrophy o f the
muscles and degeneration of the nerves. The supreme court re
versed an award in the claimant’s favor, saying that injuries re
sulting “ from long continued effort without sudden or violent rup
ture or collapse o f some physical structure” were not covered by
the law. (Young v. Melrose Granite Co., p. 278.) The Court of
Appeals o f Kentucky also ruled against a claim where death fol
lowed the hasty act o f an employee who ascended a ladder and
closed an opening following the blowing out o f a steam valve. There
was said to be no traumatic injury, but merely excitement affecting
a diseased heart, which could not be classed as an injury under the
law. (Rusch v. Louisville Water Co., p. 275.)
Frequent and continuous exposure to injurious chemicals required
the amputation of a finger poisoned by the repeated contacts, but
the Appellate Division o f the Supreme Court o f New York, three
to two, reversed an award made by the industrial board in the
claimant’s favor, ruling that the injury was progressive and con
tinuous, and not an accident “ capable of being assigned to a par
ticular date.” (Jeffreyes v. Charles H. Sager Co., p. 279.)
The difficult question of compensation for hernia was before
the Supreme Court of Utah on appeal from a denial of compensa
tion by the industrial commission. The commission had adopted
rules governing claims of this nature, and the testimony o f phy
sicians was conflicting as to the class o f the case under the headings
framed by the commission. An injury claimed to be due to the
strain o f carrying a moderately heavy load was the basis o f the
action, and the court refused to reverse the commission’s findings,
since to do so would be to usurp its administrative authority,
there being also “ some substantial evidence ” to sustain the findings
made. (Staker v. Industrial Commission, p. 276.)
The factor of preexisting disease was to some extent involved
in two or three of the cases above mentioned. It was definilely
considered in a case (Tintic Milling Co. v. Industrial Commission,
p. 355) before the Supreme Court o f Utah, where a man suffering
with pulmonary tuberculosis became disabled following a violent
“ gassing ” from fumes from an ore roaster. The court ruled that
if his injury was due entirely to a preexisting disease, occupational

WORKMEN S COMPENSATION.

or otherwise, it did not come under the act; but if the injury re
ceived on the day of the unexpected inhalation of the fumes so
accelerated it as to entirely disable him for work, the injury was
accidental and compensable. A similar ruling was made by the
Supreme Court of Illinois where a man whose earning power had
been restricted by disease suffered accidental injury, entirely dis
abling him. The court held that an award could properly be made,
not based on, the effect of the disease as it existed prior to the
injury, but on the result o f the injury itself. (Centralia Coal Co. v.
Industrial Commission, p. 354.)
Where the preexisting condition is chargeable to an earlier injury,
its disabling recurrence while at work for a subsequent employer
was held to charge the original employer with the obligation o f
making compensation payments. It was said that any injury re
ceived during the second service was not sufficient to break the causal
action between the original injury and the recurrent disability (Gaglionet case, p. 353.)
A nonoccupational disease may be incurred during employment,
as in the case o f a workman drinking infected water supplied by the
employer. In such a case the Appellate Court of Indiana affirmed
an award made by the industrial board where typhoid fever had
followed the drinking of contaminated water supplied to factory
employees. The ailment was classed as an injury due to accident
or an unexpected mishap arising out of and in the course o f employ
ment (Wasmuth-Endicott Co. v. Karst, p. 351). The opposite posi
tion was taken by the Supreme Court o f Ohio in a very similar case
(Industrial Commission v. Cross, p. 349), the court ruling that occu
pational diseases were not classed as injuries under the law in this
State; it was said that much more nonoccupational diseases, as
typhoid fever, must be excluded.
IN JU R Y

A R ISIN G

OUT

OF AND

THE

COURSE

EM PLO YM EN T.

The phrase “ injury arising out o f and in the course o f employ
ment,” found in most of the compensation laws of the United States,
is apparently the one that causes the greatest amount of controversy
and the most frequent appeals to the courts. A departure fatal to
the claim was held by the Supreme Court of Michigan to have been
made where a traveling salesman was struck and killed by a passing
automobile while undertaking to render service to a third party, who
had been laid up by the road on account o f injury to his wagon.
The accident was said to be due “ to an act of humanity entirely dis
associated from the master’s work,” so that no compensation could
be allowed. (Sichterman v. Kent Storage Co., p. 357.)
49978°— 23------ i

REVIEW OF DECISIONS OF TH E COURTS.

An injury o f a different nature befell a delivery man while on his
way to his employers garage for a car to be used in his work. He
was attacked by a mad dog and died as the result o f the bite received.
The compensation commissioner denied the claim, as did the district
court, but the Supreme Court of Utah ruled in the widow’s favor,
the employee being regarded as performing his duty and receiving
the injury in the course o f his employment, the injury also arising
out o f the same. (Chandler v. Industrial Commission, p. 358.) The
manager of a store carrying home the money from late sales was
said to be injured in the course of his employment when struck on
the street by an automobile while on his way to take a car. (Clifton
v. Kroger Grocery & Baking Co., p. 364.) Another case coming
under this head was the subject of repeated appeals and affirmation
o f award by a divided court, the Court o f Appeals o f New York
sustaining the award by four to three. The case was one of a deliv
ery man stabbed on the street by an insane man who was being pur
sued, and was stabbing anyone who came near him. The occupation
o f the employee requiring him to be on the street was held to expose
him peculiarly to the risk from which he suffered, and the award of
the commission was sustained. (Katz v. Kadans & Co., p. 370.)
A volunteer going aside from the course o f his employment to do
other work not in his line was held to be injured other than in the
course o f his employment, so as to take him outside the compensation
law o f South Dakota. (Wilson v. Dakota Light & Power Co., p. 359.)
Similarly the custodian o f a pumping station not authorized to sell
gasoline placed himself outside the scope of the law in so doing, so
that no recovery could be had for his death that followed in an
altercation arising from the sale. (Chicago & Alton R. R. Co. %\
Industrial Commission, p. 359.)
A case involving a quarrel between employees was appealed to the
Supreme Court o f Illinois, the question in dispute being an alleged
improper docking o f wages by one o f the parties. The industrial
commission allowed compensation, and the court ruled that the
obligation to pay rested on the employer, inasmuch as the accident
arose out o f a dispute connected with the employment. (Taylor
Coal Co. v. Industrial Commission, p. 362.) In another case a fight
between employees resulted in injury to a third employee, the
“ innocent bystander” who had advised the participants to cease
fighting. Other employees thereupon struck him, inflicting injuries
for which he asked compensation, but without result. His interven
tion in the fight was no part o f his duties, nor was the injury one
normally incident to the employment, so that it was not compensable.
(Gavros* case, p. 363.)
The Industrial Board o f New York and the appellate division o f
the supreme court agreed in allowing compensation to the mother o f

w o r k m e n 's

c o m p e n s a t io n .

a girl shot by a fellow employee because of his anger at a statement
made by her. The court o f appeals reversed this award, saying
that while the accident occurred in the course of employment, it did
not arise out o f it, so that it was not compensable. (Scholtzhauer v.
C. & L. Lunch Co., p. 369.)
No less dangerous than anger is a form of alleged playfulness, the
results o f which have been noticed repeatedly in these bulletins. The
use o f compressed air is a constant temptation for alleged practical
joking with repeatedly fatal results. Such was the case in Stark v.
State Industrial Accident Commission (p. 366), in which the Supreme
Court o f Oregon approved an award made by the trial court in
behalf o f the dependents o f the workman killed, as, under the facts
in the case, the court held it a fair conclusion that the accident arose
out o f and in the course o f employment. A contrary ruling was
made in an injury case before the Supreme Court of Massachusetts,
where one workman was injured by another being pushed against
him as the result o f a playful scuffle. This court said that though
the injuries were received in the course of employment, they did no*
arise out o f it, the act, whether playful or malicious, having no rein
tion whatever to the employment. (Lee’s case, p. 365.)
Coming within the terms of the statute of Tennessee was said to h *
the case o f a workman in a fertilizer plant who was drowned while
attempting to procure water to wash with before going home. (Ten
nessee Chemical Co. v. Smith, p. 360.) Death from drinking ice water
while in a heated condition was also held to be an injury within the
similar terms o f the Kansas law. (Gilliland v. Edgar Zinc Co.,
p. 361.)
An unusual case was one of a workman who fainted after receiving
inoculation at the invitation of his employer during an epidemic of
influenza. The inoculated man fainted and fell, suffering fatal in
juries. The death was said by the Court of Error and Appeals of
New Jersey to arise out of and in the course o f employment. (Freed
man v. Spicer Mfg. Corp., p. 362.)
The Supreme Court of Iowa construed the law o f that State to
cover a case arising from a series of incidents, one of which involved
disobedience o f orders of the employer. A chambermaid in a hotel
was injured while extinguishing a fire in her room, the fire having
been occasioned by the use of an alcohol lamp, contrary to orders, for
the purpose o f curling her hair. The industrial commission denied
compensation, but the court ruled that the injury was received while
discharging a duty of putting out the fire, and though a negligent
act intervened, the injury was due to an attempt to discharge a duty
and was compensable. (K raft v. West Hotel Co., p. 367.)
Violation o f rules was found by the appellate division o f the Su
preme Court o f New York to bar a claim approved by the industrial

REVIEW OF DECISIONS OF THE COURTS.

commission in a case in which a 15-year-old girl undertook to operate
a freight elevator instead of walking to the fourth floor, where her
workroom was, and was fatally injured. (Hamberg v. Flower City
Specialty Co., p. 371.) The use of the elevator was said to be an effort
to favor herself and not to forward her employer’s interest, so that
the award must be reversed.
Exposing one’s self to hazard in an impulsive effort to save prop
erty was held by the Supreme Court o f Michigan not to take the in
jured man outside the scope of his employment in a case (Sebo v.
Libby, McNeill & Libby, p. 371), in which a gardener undertook to
stop a team which was unloading goods at his employer’s plant. The
injury was fatal, but the widow was entitled to an award because of
the evident purpose of her husband to forward his employer’s
business.
Injuries obviously received in the course o f employment but rais
ing the question as to whether or not they arose out o f it were con
sidered by the courts o f Connecticut and New Mexico, the first in
volving the case o f a painter whose physician had advised against
his working in high places on account o f his tendency to have faint
ing spells, due to indigestion. The advice was disregarded, and he
received a fatal fall. The Supreme Court of Errors o f Connecticut
approved an award on the ground that the death was due to the fall
and not to the vertigo, though the fall itself might be attributed to
his diseased condition. The contention that the man had been
guilty o f willful and serious misconduct in thus exposing himself
was refused, as it could not be said that he did what he did pur
posely, knowing o f the serious consequences that might follow.
(Gonier v. Chase Companies, p. 372.) The New Mexico case was one
o f a teamster killed by a windstorm while in the woods skidding
logfe for his employer. No act o f negligence could be charged, but
this is not involved in compensation legislation, and the workman’s
exposure to the danger being due to his employment, it was held
compensable. (Merrill v. Penasco Lumber Co., p. 374.)
The law o f Texas substitutes for the usual phrase the term “ in
jury sustained in the course of employment.” This is construed,
however, so as practically to measure up to the more usual limita
tion. Injuries inflicted by a third party for personal reasons and
not because o f employment were held by the court o f civil appeals
to bar a claim for the death of a night watchman. The accident
board had made an award in favor o f his widow on the assumption
that the duties o f the watchman as such furnished the occasion of
his death, while the court took the view that it was an assault for
purposes o f robbery, one justice dissenting; the majority view, there
fore, excluding the injury from the class o f those “ sustained in the
course o f employment,” even though obviously received while on

w orkm en 's

c o m p e n s a t io n .

duty. (Lumbermen’s Indemnity Exchange v. Vivier, p. 380.) The
same reason led to a similar reversal where a stage employee was
accidentally shot by a pistol in the hands of his superior, who was
snapping the pistol in sport and with no intention to injure. The
conduct was said to be foreign to his duty as vice principal, so that
the injured man had no redress unless against him personally.
(United States Fidelity & Guaranty Co. v. Cassell, p. 381.)
INJURY BY THIRD PARTY.

Specific provision for redress in case o f injury to a workman by the
negligence o f a third party is found in practically all compensation
laws. The death of an employee injured by the negligence of an
electric company, not an employer, was said to give rise to a right of
action against the company without limitation by the terms of the
workmen’s compensation act of Tennessee which apply only where
the relation o f employer and employee exist. The employee may
choose his remedy, but the negligent third parties have no voice in
the making o f the choice. (Bristol Telephone Co. v. Weaver, p. 375.)
In a Massachusetts case the injured man had exercised his option and
secured compensation from his employer. He wished the employer
then to exercise its right to sue the negligent third party, hoping
that excess recovery might accrue to his advantage. The employer
declined to sue and the injured man sought to bring action himself,
but the right to do so was denied, the court saying that the employee
having accepted compensation the right to sue rested with the em
ployer alone. (Whalen v. Athol Manufacturing Co., p. 376.)
The Illinois law on subrogation limits the amount that the em
ployer may recover to the amount of compensation payable under
the act to the injured workman. This provision was held constitu
tional, but the construction put on it by the trial court that the
amount recoverable by the employer was the full amount of the com
pensation award was held to be incorrect, the defendant being en
titled to offer proof in regard to its liability and against any liability
whatever if the evidence is favorable, the limitation being one of a
maximum and not of a fixed amount. (City of Taylorville v. Central
Illinois Public Service Co., p. 377.)
A different situation arose in a New Jersey case, the employee
having secured an award which the employer’s insurer proceeded to
pay. The employee also sued the negligent third party and secured
a settlement from it. The employer’s insurer thereupon ceased to
pay compensation and sued to recover payments previously made.
The bill was dismissed, the court ruling that the insurer was in no
relationship with the injured man allowing it to be benefited by any
right of action lying against the third party. (Hartford Accident &
Indemnity Co. v. Englander, p. 379.)

REVIEW OF DECISIONS OF THE COURTS.
DISABILITY.

The appellate division o f the Supreme Court o f New York had
before it a case o f a workman struck by a falling icicle, but incurring
no disability for several months. There had been an apparent injury
to the skull, and a claim for compensation was submitted, but re
jected on the ground that there were defects in the evidence connect
ing the accident and the alleged disability which could not be sup
plied (H ill v. Ancram Paper Mills, p. 324). Before the adjustment
of the above claim, the injured man had died, and the dependents
entered claim for death benefits, the cases being before the court at the
same time. It was held that the evidence in respect to the death was
sufficient to place this claim on such a foundation as to warrant its
allowance. There was, however, a challenge to the claim on the
ground that notice had not been given, but this was not allowed, as
the employers had full knowledge o f the course o f events, had par
ticipated in the proceedings in regard to disability, and knew of the
death by their own knowledge, so that they had not been prejudiced
by the failure to give notice in statutory form.
The Supreme Court of Massachusetts sustained a renewal o f pay
ments based on a recurrence of disability after return to work. The
claimant had earned as much or more than before his injury, working
for the same employer, but being discharged on account o f slack
work, he had subsequently been unable to find employment except at
reduced wages. The industrial board found that the physical condi
tion resulting from the accident was a factor in the matter o f secur
ing employment, and though nearly four years had intervened, the
wage loss should be compensated. (Johnson’s case, p. 326.)
Multiple injuries affected the arm, body, knee, and throat o f an
injured workman for which various awards were made covering tem
porary total and permanent partial disability, as well as medical
and hospital attention. The company contested the award on the
ground that the aggregate exceeded the allowance for total disability,
but the Supreme Court o f Kansas found that statutory rules for
computing the various disabilities had been followed, and if an
apparent injustice resulted it was for the legislature to change the
law, which had been properly applied. (Anderson v. Commonwealth
Oil & Refining Co., p. 402.) The question of commuting to a lump
sum was involved in this case, but the court ruled that the power to
decide rested with the trial court, so that its decision in that respect
would not be disturbed.
A second-injury case involving total blindness was before the
Appellate Court o f Indiana, the claimant being a man who had lost
one eye in childhood. The Indiana law in force at the time o f the
second accident made a specific grant o f 100 weeks’ compensation for

WORKMEN S COMPENSATION*

the loss o f sight o f one eye, and on this the employer stood in oppo
sition to the employee’s claim o f 500 weeks’ benefit for total dis
ability. The court sustained the employer, holding that the injury
had resulted in the loss of sight of one eye and nothing more, the
prior injury not being entitled to consideration in connection with
an industrial injury for which the compensation law makes specific
provision. (Stevens v. Marion Machine Foundry & Supply Co.,
p. 407.)1
The Supreme Court o f Illinois had before it a case o f technical
total disability, but of actual capacity to continue work without loss
o f wages. A subforeman whose work was supervisory had but one
eye, and in an accident in his employment lost a hand. By the
terms o f the law the combined injuries constitute permanent total
disability, but the man was in fact able to draw the same pay as
before with his own employer, and probably would be able to com
mand the same wages elsewhere. However, the commission awarded
total disability payments, construing the law to warrant such pro
ceeding. A lower court affirmed this, but the supreme court reversed
the decision and award, saying that the employer could not be re
quired to pay for total disability when the injury inflicted did not
in fact cause such disability. (Chicago Journal Co. v. Industrial
Commission, p. 408.) However, if total disability results from the
loss o f an essential organ, the employer at the time of the second
injury is chargeable with the full consequences, this being the ruling
o f the same court in the case of Heaps v. Industrial Commission
(p. 406). Here a man with one eye lost a second eye in an industrial
accident, and the court ruled that the effect of this injury was to
utterly destroy an existing capacity for work, for which the employer
must be responsible, distinguishing this case from the one above, and
also adopting a different view from that set forth by the Indiana
court in the Stevens case above.
DISFIGUREMENT.

While the compensation laws have for their general basis redress
for injuries causing physical disability, the industrial consequences
o f a disfiguring injury are regarded in many States as entitling the
victim to awards. This rule was applied last year by the Supreme
Court o f Oklahoma where a mine workman lost an eye and suffered
permanent disfigurement of his face by reason of an explosion.
Separate awards were given for the loss of the eye and for the dis
figurement, and this action was upheld by the supreme court, ruling
against the contention that where there was an award for disability
there could not be an additional one for disfigurement. (Seneca Coal*
* Compare the Guderian case, p. 303.

REVIEW OF DECISIONS OF THE COURTS.

Co. v. Carter, p. 353.) Injury to a finger involving disfigurement
rather than loss o f earning power was held compensable under the
law o f Illinois, the court saying that the statute does not require a
showing o f a loss o f earning power where disfigurement results from
an accident. (Frank W. Williams Co. v. Industrial Commission,
p. 352.)
MINORS ILLEGALLY EMPLOYED.

The compensation law of Texas was held by the commission o f
appeals o f that State not to apply in the case o f a minor employed
in violation o f the child labor law, so that an insurer under the
compensation act could not be required to pay for his death. (Gal
loway v. Lumbermen’s Indemnity Exchange, p. 397.) The Louisiana
Supreme Court on the other hand ruled that a boy employed at
general work at a brick and tile factory was still within the com
pensation act although transferred by his employer to other and more
dangerous employment; and while negligence might have been
chargeable under the common law the fact that the compensation act
was applicable barred any suit for damages. (Garcia v. Salmen
Brick & Lumber Co., p. 399.)
The Supreme Court o f Pennsylvania refused to set aside an agree
ment and settlement under the compensation law made by a minor
with the consent o f his father, so that suits based on the illegal
employment could not succeed. The case was distinguished from one
in which the employer sought to compel the acceptance of compensa
tion, while here it had been validly accepted by the injured boy
with the consent o f his father. (Delaney v. Philadelphia & Reading
Coal & Iron Co., p. 401.)
The Michigan law was held to exclude minors employed in vio
lation o f law, since they can make no valid contract o f employment,
and therefore can not elect to take a remedy under the compensation
statute. (Grand Rapids Trust Co. v. Petersen Beverage Co., p. 398.)
The same construction was given the Indiana law, and for a similar
reason, in the case o f a girl between the ages o f 14 and 18 employed
without a certificate. (Indiana Manufacturers’ Reciprocal Assn. v.
Dolby, p. 399.)
WILLEUL ACTS.

An assault by a foreman following a dispute as to a settlement on
the termination o f employment was followed by a suit for damages
against both the foreman and the company and a judgment in the
trial court. Affirming the judgment against the foreman, that
against the company was reversed, the supreme court holding that
the injury was covered by the compensation act, and while excess
o f damages over the amount receivable under the act might be

w o rk m en ’s

c o m p e n s a t io n .

recovered there was nothing in the evidence to show what this excess
was, so that further proceedings will be necessary in this respect.
(Perry v. Beverage, p. 289.)
The Washington compensation law exempts from its operation
cases in which a workman is injured by the deliberate intention of
his employer to produce an injury, giving to the injured man the
right to sue and make a possible larger recovery. This provision was
invoked by a man injured by the explosion of a boiler near which he
had worked, claiming that the company knew that the boiler was
dangerous. The court held that this contention could not be allowed,
as the act was at most one o f mere carelessness or negligence, but did
not show specific intent. (Delthony v. Standard Furniture Co., p.
411.) Somewhat similar was the contention of a suitor under the Cali
fornia law, who claimed that the negligence o f his employer in per
mitting the accident gave the right to sue. This the court denied,
pointing out that though there was originally a grant o f right to elect
between suits and compensation claims, the present law provides for
an increase in compensation if serious and willful misconduct o f the
employer is shown. (De Carli v. Associated Oil Co., p. 410.)
The converse o f the employer’s willful misconduct is the willful
disregard by the employee o f provisions for his own safety. A case
o f this kind was before the Supreme Court o f Michigan involving the
killing o f a mine worker by coal falling down a shaft while he was
attempting to jump across it at the bottom instead o f going around
by the traveling way. A statute required the construction o f such
a traveling way and directed its use; and the court held that as the
employer could not lawfully have directed the workman to do what
he did, and the law forbade his doing it, he had committed an act
o f a quasi criminal nature, and his death while engaged in it could
not be regarded as within the compensation act. (Fortin v. Beaver
Coal Co., p. 411.)
A vigorously contested question under the Ohio law has been con
sidered in a number of cases involving the application o f the com
pensation statute to cases in which safety appliances, etc., have been
found wanting or defective. The constitution of the State reserves
to an injured workman the right to sue when injured “ from failure
o f the employer to comply with any lawful requirement for the pro
tection ” o f workers. Alleging negligence in the construction o f a
scaffold, a workman sued for damages, securing a judgment, which
was reversed on the ground that the compensation law applied. The
supreme court was called upon to define the term “ lawful require
ment ” in its relation to the law regulating the erection of scaffolds.
The language o f the statute was said to be too vague to charge the
employer with a knowledge of his duties so as to bring it within the
exception as to the right to sue where the employer was under the

REVIEW* OF DECISIONS OF TH E COURTS.

compensation law (Patten v. Aluminum Castings Co., p. 335). A
similar finding was made by the same court on the same day in a
case involving injury on account o f the alleged improper guarding
o f a punching press (Toledo Cooker Co. v. Sniegowski, p. 338), and
was vigorously dissented to in both cases, a minority declaring that
such a construction practically did away with the safety code o f the
State.
DEPENDENCY.

The matter o f the dependence o f an aged father on a son not
living with him was before the Supreme Court o f Utah, the question
being whether the giving o f occasional gifts at the option o f the
giver would support a claim o f dependency. The court found that
for a number o f years the son had given his father about $300 an
nually, and ruled that it was not necessary to show gifts at the im
mediate time of injury or at regular intervals to support a claim
o f partial dependency. (Tintic Milling Co. v. Industrial Commis
sion, p. 319.)
A child living with its grandmother after the death o f its mother
was said to be presumably dependent upon the father, who did not
live in the household, but promised to make regular payments to the
grandmother for the boy’s care. The fact that the grandmother and
a younger son both had some earnings from which the household
was in part maintained was not allowed as proof o f the child’s lack
o f dependency on the father. (Madera Sugar Pine Co. v. Industrial
Accident Commission, p. 320.)
The Michigan law classes as dependents certain relatives, also
persons who are “ members o f the family.” A deserted wife with a
family o f small children asked her first cousin to give her aid, and
they thereafter made their home together until his death by accident.
The employer contended, against her claim as a member o f the
family, that she was but a housekeeper under contractual relations;
but the supreme court o f the State ruled that this was not supported
by the evidence, and that the kinship and the cooperative labor o f
the parties established a status o f a family, so that the award made
in response to her claim was affirmed. (Holmberg v. ClevelandCliffs Iron Co., p. 323.) The phrase “ member o f the family ” also
received construction in a Connecticut case (Passini v. Aberthaw
Construction Co., p. 322), the claimant being the sister o f a man in
jured in Connecticut, while her home was in New York. He had con
tributed regularly to her support, and the court affirmed an award
in her favor, saying that the term “ family ” was not restricted to
persons having a common residence in one household.
The child o f a woman living as the unlawful wife o f a workman
was held entitled to benefits as a member o f his family, regardless

w o r k m e n 's

c o m p e n s a t io n .

o f the fact that her father was living and that he and her mother had
never been divorced, the household status being an actual fact and
the child a dependent in good faith, regardless of the irregularity of
the mother’s relations to the deceased workman. (Federal Mutual
Liability Insurance Co. v. Industrial Accident Commission, p. 321.)
DEATH WITHOUT DEPENDENTS.

Special funds are provided for in a few States by payments from
employers in cases in which a deceased workman leaves no depend
ents. A law o f California undertook to establish a rehabilitation
fund from such a source for general administration by the State.
This act was held unconstitutional by the supreme court on the
ground that the power o f the legislature to enact a compensation
law was limited to benefits payable to employees o f the employer
making premium payments. To collect where no beneficiary existed
and to use the funds for other purposes was levying a tax and con
ferring authority upon the industrial commission which the con
stitution did not warrant. (Yosemite Lumber Co. v. Industrial
Accident Commission, p. 318.) The Court o f Appeals o f New York
has upheld legislation similar to the above in that State, and the
fact that there are beneficiaries is not a bar to the State’s collection
o f the specified sum in case the potential claimant fails to make use
o f the benefits granted by the law. (Cook v. West Side Trucking
Co., p. 318.)
INSURANCE.

The laws o f a number of States require insurance of the employer
obliged to pay compensation obligatory. Such provision exists in
the New York law, and the court o f appeals held that violation of the
statute by failure to insure constituted a criminal offense, reversing
the lower courts in this respect and holding the employer to be sub
ject to a criminal prosecution. (People v. Donnelly, p. 384.) The
Minnesota Legislature of 1921 provided for the fixing of rates to be
charged by insurance companies carrying compensation risks in the
State. The validity of this act, not only as to future contracts but
also as to those made before the law came into effect, was sustained
by the supreme court o f that State in Builders’ Limited Mutual
Liability Insurance Co. v. Compensation Insurance Board (p. 386).
The law o f Washington relative to the exclusive State fund in
force authorizes the industrial commission to require a bond cover
ing liability under the act in the case of any employer who is in
default in the matter o f premiums. An injunction may further be
issued forbidding the carrying on o f occupations covered until such
bond is furnished. An employer who undertook to proceed in utter
disregard o f these provisions o f law and o f the action o f the com

REVIEW OP DECISIONS OF THE COURTS.

mission was held in contempt o f court subject to enforcement
without service o f judgment, as it was apparent that he had know
ingly and willfully violated the order o f the court. (State v. McCoy,
p. 387.)
Under the law o f Iowa, failure o f an employer under the act to
provide insurance entails him to liability in damages, with the pre
sumption o f negligence against him if there is an injury to an
employee arising out of and in the course o f the employment. This
rule was applied in the case Martin v. Chase (p. 385), where a hotel
employee was injured by a drunken guest, and the employer carried
no compensation insurance, the presumed negligence not having
been disproved.
An insurance company in Colorado questioned the constitution
ality o f a provision o f a law o f that State which authorized the in
dustrial commission to prescribe forms for insurance policies.
The supreme court held the law constitutional, and that the insur
ance company must comply with State regulations if it wishes to
do business within the State. (Travelers5 Insurance Co. v. In
dustrial Commission, p. 382.)
ATTORNEYS’ FEES.

The law o f Massachusetts, in common with others, authorizes the
State board or commission administering compensation laws to regu
late legal and medical fees. An attorney in the State contested this
provision as violative o f his constitutional rights, but the supreme
court o f the State held that the act was a proper exercise of the
police power and that its intention to protect the interests o f parties
who were on an unequal footing was justified. (Gritta’s case, p. 388.)
MEDICAL AND SURGICAL AID.

The medical aid required by law to be furnished must be accepted,
as a rule, on penalty of losing the benefits provided by the law.
However, the rule is not absolute, and in Bronson v. Harris Ice
Cream Co. (p. 393) the Supreme Court of Louisiana refused to re
quire submission to an operation, the success of which was not very
certain, and which, if unsuccessful, would increase the disability. The
unwillingness of the employee to be operated upon was said not to
be so unreasonable as to warrant a forfeiture of the benefits to which
his injury entitled him. A similar conclusion was reached by the
Supreme Court of Nebraska, where doctors were not o f one mind
as to the probable results of the operation suggested, and where
conflicting diagnoses had been made. (Frost v. United States Fi
delity & Guaranty Co., p. 394.)

LABOR ORGANIZATIONS.

A temporary refusal to submit to an operation, and the subsequent
acceptance o f advice that one should be had, were held by the Dis
trict Court o f Appeal o f California not to occasion delay detri
mental to an employer’s interest so as to warrant a withholding of
benefits for any other period than the interval between the recom
mendation and final acceptance of the operation. The man’s choice
o f a physician, made in the failure o f the company to act, was said
not to make him responsible for the fees, since the employer had
not met his obligation to provide medical treatment when actually
needed. (Newhall Land & Farming Co. v. Industrial Accident Com
mission, p. 395.) Where the employer acts in good faith in securing
competent treatment, he will not be held liable for the charges of
another physician, to whom the injured workman has gone after
becoming dissatisfied with the service rendered, where the industrial
commission has decided against the making of a change. (Smith v.
State Industrial Accident Commission, p. 390.) It was said that
the selection o f a physician rests with the commission, whose dis
cretion, honestly exercised, could not be appealed from. The Su
preme Court o f Oklahoma, on the other hand, found the commission
o f that State without jurisdiction in a case in which the employer
had made a contract with the doctor for services, the court holding
that this controlled, so that the commission had no authority to
intervene. (Associated Employers’ Reciprocal v. State Industrial
Commission, p. 391.)
The Supreme Court of California found a change o f physicians
justifiable in a case where after four years o f treatment by the
employer’s physicians there was no prospect of recovery, and the
employee consulted other physicians, recommending a change of
treatment. Securing this different treatment on his own motion
resulted in complete recovery; and an award covering the costs was
made and approved, the court holding that the medical and surgical
services contemplated by the statute were such as would tend to
secure the return o f the workman to productive employment. I f
the treatment failed in this respect the employer could not be
regarded as having discharged his duty, and the workman might
justifiably secure other aid for which the employer would be respon
sible. (Union Iron Works v. Industrial Accident Commission, p.
392.)
LABOR ORGANIZATIONS.
COLLECTIVE AGREEMENTS.

An agreement entered into between an organization o f garment
workers and an employer in that business was the subject o f an ac
tion in the Supreme Court o f New York seeking to prevent the em
ployer from disregarding the terms of the collective contract before

REVIEW OF DECISION'S OF THE COURTS.

its expiration. (Schlesinger v. Quinto, p. 149.) The court issued an
injunction retraining the employer from violating his obligation—
an action which was sustained by the appellate division. The con
tention that the injunction was mandatory was met by saying that
it required the employer to do nothing that he had not agreed to do
and preserved his liberty o f contract, subject only to limits that he
bad voluntarily adopted in making the original agreement.
A somewhat similar case was before the Supreme Court o f Michi
gan, in which each party to a collective agreement sought redress
against the other, the employer seeking an injunction against picket
ing, etc., and the workmen one against the violation by the employer
of his agreement to employ only union men. The court found no
precedent for enforcing the fulfillment of a labor contract by em
ployees, and declined to attempt to compel the employer to carry
out the terms o f his agreement in the instant case. (Schwartz v.
Cigar Makers’ International Union, p. 148.) On the other hand, the
injunction against picketing, intimidation, etc., by the union was
allowed.
CONSPIRACY.

A case o f great prominence and importance under this head was
before the Supreme Court o f the United States, involving the lia
bility o f labor organizations for damages resulting from the acts o f
their members. (United Mine Workers o f America v. Coronado
Coal Co., p. 157.) Destructive acts by members o f the union were
fully established, but it was shown by the evidence that they and
the strike and boycott against the properties affected were not the
work o f the national body but o f the district and local unions in
the vicinity. The trial court had found responsibility general and
awarded damages, but this judgment was reversed, though the court
laid down the general principles of liability o f a union for the acts
o f its members in carrying out its avowed policies.
Conspiracy to prevent the carrying out o f a contract was the basis
o f a suit for an injunction against certain unions and their members.
A jurisdictional dispute lay at the foundation o f the difficulty, the
question being the one o f whether carpenters or sheet-metal workers
should install metal doors, sashes, etc. That an injunction would
lie to prevent interference with the completion o f the contract was
the ruling o f the United States district court. (Central Metal Prod
ucts Corporation v. O’Brien, p. 153.) Unlawfulness o f purpose was
found, as well as unlawful means, in attempting to carry out the
conspiracy.
STRIKES.

Though the right o f employees to strike is generally recognized,
the occasion may arise when it will be declared unlawful. Thus,

LABOR ORGANIZATIONS.

where a breach o f contract is involved and the striking organization
shows a lack o f good faith in its failure to seek agreement without
striking, an injunction would lie against activities furthering a strike.
(Rice, Barton & Fales Machine & Iron Co. v. Willard, p. 200.) The
claim that a strike was unlawful as interfering with interstate com
merce was denied by the United States Circuit Court of Appeals.
(Danville Local No. 115 v. Danville Brick Co., p. 204.) The mere fact
that part of the product of the company would be shipped across the
State line did not make the interference o f the strikers with produc
tion an interference with interstate commerce within the terms of the*
Federal antitrust act.
A Kansas statute was invoked by strikers against whom an injunc
tion was sought to prevent the continuance of a course of conduc
found by the court to be unlawful. The complainant compan,
charged that irreparable damage would be done by the intimidation
o f its employees by reason of the conduct of the strikers. The lav
provides that a restraining order shall not be issued unless irreparable
injury to property or a property right is involved; but as the cour.
found that the right to do business was being interfered with b\
persons financially irresponsible the statute was held not to prevent
the use o f an injunction. (Crane & Co. v. Snowden, p. 216.)
An Oregon case also involving the construction of an anti-injunc
tion statute was construed not to prevent the issue of an injunction
against picketers who were seeking to enforce a strike against a mer
chant. (Greenfield v. Central Labor Council, p. 220.) The fact that
damage was being done by parties against whom no valuable legal
recovery could be had was said to render them subject to an injunc
tion against acts of unlawful interference with the plaintiff’s busi
ness, the court saying that if the statute permitted such injury with
out redress it would fall under the same condemnation as the Arizon*
law in the case, Truax v . Corrigan.
The Supreme Court of Oregon ruled certain acts in connection
with a strike illegal and restricted the picketing of a going concern
generally as well as the specific acts o f pickets, particularly those in
volving misrepresentation and an intent to “ cause moral intimida
tion.” (Robinson v. Hotel & Restaurant Employees, p. 222.)
Preeminence o f the public welfare was said to warrant the use
o f an injunction against striking drivers of milk wagons in New
York City, disregarding “ the right or wrong of the present wage
controversy.” (Gottlieb v. Matckin, p. 218.)
The transportation act o f 1920 created a Railroad Labor Board
whose activities were the subject o f consideration in a case before
the District Court for the Northern District of Illinois. Strikes of
members o f the Federal Shop Crafts followed dissatisfaction with a
ruling as to wages, and an injunction was sought to restrain the

REVIEW OF DECISIONS OF THE COURTS.

strikers from conspiring in restraint o f interstate commerce. The
court found that the antitrust law applied to labor in combination
as well as to capital, and that the Clayton Act did not prevent the
issue o f an injunction in cases such as the present, in which violence
and the destruction o f property had endangered the lives o f pas
sengers and trainmen alike. (United States v. Railway Employees’
Department o f American Federation o f Labor, p. 208.)
A similar court in Montana granted an injunction in the same
situation as indicated above against conduct that •66hampers and
threatens to stop plaintiff’s interstate transportation.” The strike
itself was held to be lawful, and the parties were equally free to carry
on their respective contentions so long as they kept within the
bounds o f lawful activities as indicated by the Clayton A ct; but
an injunction was issued to restrain any trespass beyond those
bounds. (Great Northern R. R. Co. v. Local Great Falls Lodge, p.
205.)
The court in the foregoing case pronounced the functions and
orders o f the Railroad Labor Board “ advisory only, the teeth having
been drawn from the bill.” However, the district court o f Maine
took the position that where the parties to a dispute had submitted
the subject to the Railroad Labor Board, they were bound to abide
by its findings; so that a strike might be enjoined, not to interfere
with the right to quit work, but to restrain from engaging in con
duct in violation o f the agreement into which they had entered. It
was pointed out that the transportation act marks out no method for
its enforcement, but a bill in equity appeared to be an available
method so that a temporary injunction might be ordered, as was done
in this case. (Portland Terminal Co. v. Foss, p. 213.) (Compare
Rhodes v. New Orleans Great Northern Ry. Co., p. 264.)
In this connection may be noted the authoritative discussion as to
the jurisdiction and powers o f the Railroad Labor Board as it was
developed in connection with the conflict between this board and the
Pennsylvania Railroad Co. as to the formation o f a board o f con
ferees to consider disputes as to wages and working conditions.
(United States Railroad Labor Board v. Pennsylvania Railroad
Co., p. 142.) The United States Circuit Court o f Appeals ruled that
the board was authorized to issue directions as to the election o f
employees’ representatives, and to publish its decisions as a mode o f
influencing public opinion. Jurisdiction was not dependent upon
petition, nor could it be ousted by acts o f the railroad disregarding it.
The Supreme Court sustained this view, though emphasizing that
the board was a tribunal o f arbitration and not a court and that its
findings had moral but not coercive sanction.
A strike involving a peculiar advantage to the strikers was one
by the milk wagon drivers o f New York, who were necessarily sup

LABOR ORGANIZATIONS.

plied by their employers with route books. On entering the strike
the drivers retained the books listing the names of many customers
and large sums of money to be collected. Both parties were inter
ested in the collection, but the court ruled that their retention by the
drivers was unlawful and issued a mandatory injunction directing
the deposit o f the books in the court with right of access to both
parties. (Borden’s Farm Products Co. (Inc.) v. Sterbinsky, p. 218.)
An incidental regulation arising out of strike conditions is a law
found in a few States requiring advertisements for labor to carry a
statement of the existence of a strike in the plant, if such is the case.
Such a law was held constitutional by the Supreme Court of W is
consin against contentions of improper classification and class regu
lations. (Biersach & Niedermeyer v. State, p. 196.) In another case
involving the same statute it was ruled that the act, being criminal,
required a strict construction, so that a statement that no strike
existed was held not to be incorrect even though some disruption had
taken place. The statute was specific in its terms and the court held
that a conviction based on general conditions must be reversed.
(Walter W Oeflein, Inc., v. State, p. 197.)
PICKETING.

The use o f banners, placards, etc., on streets and in public places
is regulated by an ordinance of the city of Indianapolis, and this was
invoked in a case of the picketing of a barber shop in the city. A
picket wearing a shirt lettered with an inscription was arrested as
violating this ordinance, and a conviction was sustained against
charges o f unconstitutionality as interfering with freedom of speech.
(Watters v. City of Indianapolis, p. 183.) This decision obviously
does not go to the merits of the propriety of picketing but merely
sustains the ordinance forbidding this particular form o f display.
INTERFERENCE WITH EMPLOYMENT.

That a mere anticipation o f violence is not a sufficient ground for
declaring a state of insurrection and calling for Federal troops was
held in a case before the United States district court. (Consolidated
Coal & Coke Co. v. Beale, p. 165.) Furthermore, a Federal marshal
could not be ordered to police the district, and a district court is
without jurisdiction to certify that the administration o f justice re
quires the presence of such troops. An injunction had already been
issued and its violation would be contempt, but no anticipation of
such violation could authorize the court in taking the steps requested.
The Commission of Appeals of Texas found no ground for inter
fering in a case in which a single master plumber chose to stay out of
an association which had an agreement with the plumbers’ union of
49978°— 23----- 5

EEVIEW OF DECISIONS OF THE COURTS.

the city, his refusal to join resulting in Ms workmen leaving his serv
ice. ( Sheehan v. Levy, p. 177.) His right to remain nonunion did not
involve a right to demand the services o f union men, whose choice
lay in other directions, no malice appearing. Similarly without re
dress was a publishing company in California which sought an in
junction against an organization o f printers and publishers which
had in turn an agreement with the local working printers and press
men. (Overland Publishing Co. v.. Union Lithograph Co., p. 79.)
The agreement among the workmen was said not to offend against the
antitrust law o f the State, wMch excepts labor as being “ not a com
modity witMn the meaning o f this act.” I f the employers’ associa
tion established a monopoly, it was not injurious to the complainant
in the absence o f proof o f special damage, and the restriction o f
competition resulting from the organization’s agreement within itself
was not suggestive o f financial injury.
MONOPOLIES.

The last mentioned case may be referred to as one in which a charge
o f monopoly was raised but without avail so far as the relief sought
by the complainant is concerned. A prosecution for monopoly under
the New York statute was more successful, the case being one o f an
association o f stone mason contractors charged with monopolizing
the business o f building stone and concrete foundations. The con
tract included labor and materials, and a fixed price per cubic foot
was established, which had the effect o f controlling the production
o f an “ article or commodity o f common use.” The fact that labor
was an element in the construction did not remove the case from
the prohibition o f the law, the price being fixed for a completed
product, the result being an offense against the antitrust law o f the
State. (People v. Amanna, p. 78.) The same statute was up for
consideration in a case in which a photo-engraving company sought
redress against an employers’ association which had agreed with a
labor union, effecting a practical control o f the photo-engraving busi
ness o f New York City. The antitrust law forbids restraint of trade
in “ any article or product used in the conduct o f trade,” thus cover
ing the product o f the complainant. He was therefore held free to
disregard the rates fixed by the union without incurring their hos
tility expressed in the fomenting o f strikes, etc., and an injunction
was issued accordingly. (Standard Engraving Co. v. Yolz, p. 179.)
INJUNCTION.

The question o f proper party under an injunction proceeding
was before the West Virginia courts in R. R. Kitchen & Co. v. Local
Union No*. 141 (p. 175). Employers including practically all classes
o f building work united, charging conspiracy by labor unions to

LABOR ORGANIZATIONS.

prevent the execution of contracts. One of the defenses was that the
employers had not a sufficient unity o f interest to warrant their
appearing as a single party. It was found that the workers had
established complete “ unity and solidity” in their efforts to meet
the united action o f the employers, who were equally lawfully
joined. Both parties being within their rights, illegality would
exist only by the use of unlawful methods, as by threats, violence,
procuring breach of contract, etc. The conditions were found to
warrant the recognition of the parties as they had appeared and the
issuing o f an injunction against unlawful interference with the
rights o f the complainant.
Picketing was enjoined in a case in which numbers rather than
actual violence furnished the principal grounds for complaint.
(Keuffel & Esser v. International Association of Machinists, p. 181.)
An appeal was taken to decide the question as to whether “ peaceful
picketing” was subject to injunction, and while employees were
held to have the right to use peaceful and lawful means to effect
their purposes, the great numbers used as pickets in the instant case
were said to change what would otherwise be peaceful persuasion to
an actual system of terrorism. The injunction was therefore upheld,
though by a divided court.
The fact that a strike had practically terminated months before
the picketing complained of was indulged in was held by the Su
preme Court o f New York to warrant the issuing o f an injunction
forbidding any picketing o f the establishment of the complainant
in the case Yates Hotel Co. v. Meyers (p. 184). Several months
had elapsed since the strike had completely failed and the places of
the strikers had been filled, and the court held that the affair was a
“ dead issue ” and any further picketing amounted to a malicious in
terference with business.
The Supreme Court of Minnesota approved an injunction issued
by the lower courts against a picketing and boycott of a moving
picture house in which the owner operated his own machine. The
judgment construed the State antitrust law, which it regarded es
sential to interpret in harmony with Federal construction, and the
operators’ union was found to be acting outside its rights in* under
taking to force the employer to give up his method o f conducting
his business. (Campbell v. Motion Picture Machine Operators’
Union, p. 185.)
CONTEMPTS.

The nature o f proceedings for the punishment o f contempt was
discussed by the Circuit Court o f Appeals o f the United States in
a case involving disobedience of an injunction against an organiza
tion o f marine cooks and stewards. (Forrest v. United States, p. 201.)

REVIEW OF DECISIONS OF THE COURTS.

Violation o f the injunction was found, and the nature o f the case
showed that it was criminal contempt rather than civil. Among the
results o f this finding was a refusal to grant a jury trial asked for
by the defendant, and the enforcement of a punitive sentence for the
vindication o f the authority o f the court. A request for a jury trial
was also denied in the case Canoe Creek Coal Co. v. Christinson
(p. 169). The Clayton Act was referred to as sustaining the demands
for a trial by jury, but the court ruled that it was the purpose o f
this act to give the right of jury trial only in a limited class o f
contempt cases, as otherwise it would transform the entire practice
o f the courts and take out of their hands the power to enforce the
orders which centuries of experience had left within their control.
The nature o f contempts as civil or criminal was .considered in
another case (Campbell v. Motion Picture Machine Operators et al.,
p. 171) before the Supreme Court o f Minnesota. Disregard o f an
injunction had resulted in continued damage to the plaintiff, and a
fine had been imposed on the violators for his benefit. There was no
accurate showing o f the damages inflicted, and the court ruled that
there was no authority merely to impose an arbitrary penalty for the
benefit o f the injured party without proof o f the damage actually
sustained; however, the levying o f an attorney’s fee was said to be
valid even though it should result in the imprisonment o f the parties
for failure to pay, the conviction for contempt taking the case out
o f the prohibition o f imprisonment for debt.
An unusual situation arose in a case in which the Governor o f
Wisconsin undertook to enforce a pardon o f a man convicted o f
contempt and sentenced to four months’ imprisonment. The sheriff
o f the county disregarded the pardon, retaining the offender as a
prisoner. The governor thereupon removed the sheriff and ap
pointed a successor. This action was found by the supreme court
o f the State to be in excess o f the governor’s powers, the contempt
in this case being civil in its character and its punishment for the
protection o f civil rights with which the governor had no power to
interfere. (State ex rel. Rodd v. Verage, p. 172.)
RULES, ETC.

The principle generally applicable in cases involving internal dis
putes in labor organizations is that the parties must be governed
by the constitution and by-laws which they have adopted. However,
where valuable rights are jeopardized by insufficient provisions the
courts will intervene. Thus, in the case o f the expulsion o f a local
from an international union, and an attempt io organize a new local
to take the place o f the old one, the District Court o f the United
States for the Southern District o f Texas intervened to protect the

LABOR ORGANIZATIONS.

rights o f the members of the old local, the international executive
board having gone beyond its official powers, as found by the court,
and was acting with a conspicuous lack of judicial fairness. (Local
No. 7, Brickleyers’, etc., International Union v. Bowen, p. 189.)
Where, however, it is shown that a member has gone contrary to an
applicable specific rule and has failed to avail himself of the means
o f redress provided by the by-laws, the courts will not intervene to
prevent enforcement of the penalty provided. (Flynn v. Brother
hood o f Railroad Trainmen, p. 192.)
The relation o f a grand lodge to a local was considered in a case
before the Supreme Court of Errors of Connecticut in which the
charter of the local had been revoked and the possession o f property
was under consideration. The court ruled that the revocation o f the
charter, while severing the relation between the two bodies, did not
deprive the local lodge of the property in its possession in the absence
of a specific accepted provision in the constitution of the organization.
(Grand Lodge of International Association of Machinists v. Reba,
p. 187.)
Where a union had waived its rules as to the collection o f dues and
customarily received them though some weeks in arrears, it would not
be heard in a claim of lapse of membership where the beneficiaries
sought to recover a death benefit. (Bruns v. Milk Wagon Drivers’
Union, p. 188.) This case also involved the question o f the status
o f an unincorporated union in regard to actions at law, a statute
providing for suits by or against the union as a legal entity the same
as if incorporated.
An unusual claim was made against an incorporated union in the
State o f Washington, the main office being in the State o f incorpora
tion, California. A voluntary gathering o f a number of members in
Seattle resulted in an arrangement of a group of men to act on com
mittees, for which one of them claimed pay under a by-law which
provided for such payment where a member was appointed at a regu
lar meeting to perform work for the union. The fact that there was
an incorporated union with specific provisions governing its activities
was held by the supreme court of the State to bar the claim, as the
constitution and by-laws constitute the law for the union, and the
claimant must abide thereby. (Moore v. Marine Firemen’s, Oilers’ &
Watertenders’ Union, p. 194.)
INDUSTRIAL WORKERS OF THE WORLD, ETC.

A California court, in People v. Roe (p. 167), construed the law of
that State against criminal syndicalism to apply to members o f the
Industrial Workers o f the W orld on the basis of their membership as
such. The nature of the organization was held to be proved by vari

REVIEW OF DECISIONS OF THE COURTS.

ous testimonies as to acts committed by members other than the party
in the case, and his conviction followed on account o f association
rather than specific offenses o f his own.
The Socialist Party o f America undertook to establish certain
tests o f membership for State and local groups. A Michigan or
ganization, as a result, was practically expelled from the national
organization, but, being incorporated, continued to function as be
fore. The supreme court o f the State held that the local group
was authorized under State laws to maintain its identity, and that
the restrictive terms as to membership contained in the by-laws o f
the national association were void. (Workers’ Educational Assn. v.
Renner et al., p. 195.)

OPINIONS OF THE ATTORNEY GENERAL.
C h il d L abor — C h il d L abor T a x L a w — E ffectiveness i n T er ri
tories — Opinions

of Attorney General, volume 33, page 37b {De
cember 13, 1922).—The child labor tax law of 1919 (40 Stat. 1057,
1138) and o f 1921 (42 Stat. 227, 306) was made effective through
out the United States, which under the act included the Territories
o f Alaska and Hawaii and the District of Columbia. The act of 1919
was held unconstitutional in the Child Labor Tax case, 259 U. S. 20
(see p. 60). Question was raised by the Secretary of the Treasury
as to whether the act, notwithstanding this decision, was effective
in the Territories for which Congress had authority to legislate.
The Attorney General was o f the opinion that the acts were in
valid and inoperative within the Territories o f Alaska and Hawaii
and the District o f Columbia. It was pointed out in the opinion
that Congress endeavored to exercise its powers in both the Terri
tories and the States. Several cases were reviewed which tended
to show that an act o f Congress including both States and Terri
tories, held unconstitutional as to the States, would no+ ^ enforced
in the Territories.
The opinion reads in part as follow s:
Neither o f the saving clauses indicates an intention on the part
o f Congress to make the validity o f a statute bounded by geograph
ical subdivisions o f the country, which would be the effect if such
clauses were construed to save the child labor tax act as to the Terri
tories and the District o f Columbia, when it has been declared
unconstitutional within the States. These saving clauses indicate
an intention to retain all o f a statute that can be uniformly applied
as to classes o f persons and circumstances. Congress, however,
clearly did not intend that the act should be so interpreted, if neces
sary to save its constitutionality, as to restrict its operation to the
Territories and the District of Columbia. It follows, therefore,
that there are no persons or circumstances to which the act may
properly be applied.
H ours of L abor of W o m e n — F ederal L a w — P u b lic E m plo ye es —
F e m a l e E m plo y e es i n D istr ic t — Opinions of Attorney General,

volume 33, page 355 {October 30, 1922).—By an act o f February 24,
1914, Congress provided that “ no female shall be employed in any
manufacturing, mechanical, or mercantile establishment, laundry,
hotel, or restaurant, or telegraph or telephone establishment or office,
or by any express or transportation company in the District o f
Columbia more than 8 hours in any one day or more than 6 days or
more than 48 hours in any one week.” The act further provided
against night work and continuous work without a rest period. The

TEXT AND SUMMARIES OF OPINIONS.

question was raised by the Public Printer as to whether this act was
applicable to women employees o f the Government Printing Office.
The Attorney General in an opinion on this question held that as
the act made no references to the Government o f the United States
it was therefore not applicable to the employment o f female help by
the Government. In the opinion it was stated that the familiar
principle that “ the king is not bound by any act of Parliament
unless named therein by special and particular words ” would apply,
and it was accordingly held that “ the Government of the United
States is not affected by any act o f Congress which may tend to
restrain or diminish any o f its rights and interests, unless it clearly
appears from the context that the act is intended to apply to the
Government.” The act was held not applicable to female employees
o f the Government Printing Office.
A second question was raised as to whether the Public Printer
could employ women for more than 8 hours in any calendar day or
more than 6 days or more than 48 hours in any one week in cases
o f extraordinary emergency. The opinion referred to an act o f
August 1, 1892, chapter 352, 27 Stat. 340, which provided an 8-hour
day for laborers and mechanics employed by the Government o f
the United States, by the District o f Columbia* or by any contractor
or subcontractor upon any o f the public works of the United States
Or the District o f Columbia. This act was amended by the act o f
March 3, 1913, chapter 106, 37 Stat. 726, which extended the scope
o f the act to include laborers and mechanics employed on river and
harbor improvements. The Attorney General held that this act has
no application to clerical help or laborers o f the Government Print
ing Office, as they are not, strictly speaking, employees upon the
public works o f the United States. It was pointed out in the opinion
that the Public Printer was directed to enforce the provisions of the
then existing 8-hour law by an act o f March 30, 1888, chapter 47,
25 Stat. 57. But another act o f January 12, 1895, chapter 23, 28
Stat. 601, 607, section 47, provides that: “ The Public Printer shall
cause work to be done on the public printing in the Government
Printing Office at night, as well as through the day, when the
exigencies o f the public service require it, but the provisions of the
existing 8-hour law shall apply.” The Attorney General pointed
out that the law made no distinction between male and female em
ployees. It was stated that the Public Printer may not require
employees in the Government Printing Office, either male or female,
to render more than 8 hours’ service in any one day, except in cases
o f extraordinary emergency. This extraordinary emergency was
made the exception so as to “ excuse overtime work which must be
rendered to avert some sudden, unusual emergency unexpectedly
arising and calling for prompt action.”

DECISIONS OF COURTS AFFECTING LABOR.
A l ie n s — C o ntr ac t

L aborers — D r a f t sm e n — L earn ed

P rofes

sio n s —E x

parte A ird , United States District Court, Eastern District
of Pennsylvania ( December 15, 1921), 276 Federal Reporter, page
954 —David M. Aird was born at Edderton, Scotland, in May, 1888.
Ha was educated in the public schools, the Tain Royal Academy, and
the Glasgow Technical College. He obtained a certificate of pro
ficiency in various engineering subjects, taught engineering at a high
school, and was employed by several shipbuilding and engineering
companies to design marine steam turbines. During 1920 Aird
learned that men of his qualifications were needed by the Bethlehem
Shipbuilding Corporation, of Bethlehem, Pa., and communicated
with the London representative of that concern. He was informed
that he could probably obtain employment at Bethlehem, as there
were positions open for men of his class. Aird decided to come to
the United States, and his fare was paid by the London representative.
On arriving in the United States he was given employment as a
44class A draftsman ” at Bethlehem. Later he was arrested and held
for deportation under a warrant issued by the Assistant Secretary of
Labor upon the ground that he had been found in the United States
in violation o f the immigration act of February £, 1917, paragraph 3,
dealing with contract laborers. A writ o f habeas corpus was issued
by the District Court of the United States, and Aird was discharged.
Judge Thompson stated the reasons in part as follow s:
It is apparent that Aird was induced, assisted, encouraged, and
solicited to migrate to this country by an offer of employment. The
first question is whether he came here to perform either skilled or
unskilled labor within the intent o f the law, and, if that is answered
in the affirmative, whether he was outside of the classification of con
tract labor by reason o f belonging to a recognized learned profession.
The rightful exclusion of the relator from the United States
depends not upon his qualifications for performing certain kind of
employment but upon the kind of employment he was induced,
assisted, encouraged, or solicited to migrate to this country to per
form under an offer or promise of employment. It is apparent from
the evidence in the case that he came here to get work o f the sort
which he actually did obtain; that is, as a 44class A draftsman.”
That the words “ laborer ” or 44labor ” have a generally adopted,
accepted meaning as applying to manual labor is shown by the cases
collected through the industry of counsel for the relator, and cited
in his brief.

TEXT AND SUMMARIES OF DECISIONS.

It is clear that the relator, in the employment he entered this coun
try to perform, was not engaged in labor, skilled or unskilled, within
the accepted meaning o f those words. He was a “ brain toiler ” ; his
work required technical training, skill, and learning in various
branches o f science. What he did he did not perform with his hands
or merely as a skilled mechanic would through application o f mere
mechanical skill. His employment, in designing marine turbine en
gines or auxiliary machinery connected with them, is one in which
the planning and working out of the details must be originated in the
mind o f the designer.
Notwithstanding his designation as a draftsman, the relator, as a
“ class A draftsman ” in the Bethlehem Shipbuilding Corporation,
possessed and was required to apply learning and skill in marine, en
gineering, and thus comes within the special exemption to persons
belonging to a recognized learned profession. He should be dis
charged upon either ground.
It is ordered that he be discharged.

C h il d L abor — C h il d L abor T a x L a w — C o n s t it u t io n a l it y of
S t a t u t e — T a x a t i o n — R e g u l a t io n —Bailey v. Drexel Furniture Go.,

United States Supreme Court ( May 15, 1922), 259 U. S. 20, 42
Supreme Court Reporter, page 449.—The Drexel Furniture Co. was
engaged in the manufacture o f furniture in the western district o f
North Carolina. On September 20, 1921, it received a notice from
J. W. Bailey, United States collector o f internal revenue for the dis
trict, that it had been assessed $6,312.79 for having during the taxable
year 1919 employed and permitted to work in its factory a boy
under 14 years o f age, thus incurring the tax of 10 per cent on
its profits for the year. The company paid the tax under pro
test and filed a claim for a refund, but the claim was rejected.
They then brought suit in the United States District Court to re
cover the amount paid. The court being o f the opinion that the
statute was unconstitutional rendered judgment in favor o f the com
pany. Bailey took the case direct to the Supreme Court o f the
United States. The judgment of the lower court was affirmed, Mr.
Justice Clarke dissenting.
This law (act o f February 24,1919, 40 Stat. 1057) provided a tax
o f 10 per cent on the net profits for the year o f any establishment—
mine, mill, factory, etc.—in which children are employed in con
travention o f the age and hour limits set by the act, with certain
exemptions to avoid interference with canning clubs and employ
ment apparently legal. (See Bui. No. 277, pp. 357, 358, for text
o f law.)
Mr. Chief Justice Taft delivered the opinion o f the court. After
stating the facts and reviewing the law, he continued in part as
follow s:

CHILD LABOR.

The law is attacked on the ground that it is a regulation of the
employment o f child labor in the States—an exclusively State
function under the Federal Constitution and within the reserva
tions o f the tenth amendment. It is defended on the ground that
it is a mere excise tax levied by the Congress of the United States
under its broad power of taxation conferred by section 8, article
1, o f the Federal Constitution. We must construe the law and
interpret the intent and meaning of Congress from the language of
the act. The words are to be given their ordinary meaning unless
the context shows that they are differently used. Does this law
impose a tax with only that incidental restraint and regulation
which a tax must inevitably involve ? Or does it regulate by the use
o f the so-called tax as a penalty? I f a tax, it is clearly an excise.
I f it were an excise on a commodity or other thing of value, we
might not be permitted under previous decisions of this court to
infer solely from its heavy burden that the act intends a prohibition
instead o f a tax. But this act is more. It provides a heavy exaction
for a departure from a detailed and specified course o f conduct in
business. That course of business is that employers shall emplo^ in
mines and quarries children of an age greater than 16 years; in
mills and factories, children o f an age greater than 14 years, and
shall prevent children o f less than 16 years in mills and factories
from working more than 8 hours a day or 6 days in the week. I f
an employer departs from this prescribed course of business, he is
to pay to the Government one-tenth of his entire net income in the
business for a full year. The amount is not to be proportioned
in any degree to the extent or frequency o f the departures, but
is to be paid by the employer in full measure whether he employs
500 children for a year, or employs only 1 for a day. Moreover, if
he does not know the child is within the named age limit, he is not
to pay; that is to say, it is only where he knowingly departs from
the prescribed course that payment is to be exacted. Scienters are
associated with penalties, not with taxes. The employer’s factory is
to be subject to inspection at any time not only by the taxing
officers o f the Treasury, the Department normally charged with the
collection o f taxes, but also by the Secretary of Labor and his
subordinates, whose normal function is the advancement and pro
tection o f the welfare of the workers. In the light o f these features
o f the act, a court must be blind not to see that the so-called tax
is imposed to stop the employment of children within the age limits
prescribed. Its prohibitory and regulatory effect and purpose are
palpable. A ll others can see and understand this. How can we
properly shut our minds to it ?
It is the high duty and function of this court in cases regularly
brought to its bar to decline to recognize or enforce seeming laws
o f Congress dealing with subjects not intrusted to Congress, but
left or committed by the supreme law of the land to the control of
the States. We can not avoid the duty, even though it require us to
refuse to give effect to legislation designed to promote the highest
good. The good sought in unconstitutional legislation is an in
sidious feature, because it leads citizens and legislators o f good
purpose to promote it, without thought of the serious breach it will
make in the ark o f our covenant, or the harm which will come from
breaking down recognized standards. In the maintenance o f local

TEXT AND SUMMARIES OF DECISIONS.

self-government on the one hand and the national power on the#
other, our country has been able to endure and prosper for near
a century and a half.
The case before us can not be distinguished from that of Hammer v.
Dagenhart, 247 U. S. 251, 38 Sup. Ct. 529. (See Bui. No. ^258, p. 96.)
Congress there enacted a law to prohibit transportation in interstate
commerce o f goods made at a factory in which there was employ
ment o f children within the same ages and for the same number o f
hours a day and days in a week as are penalized by the act in this
case. This court held the law in that case to be void. It said:
“ In our view the necessary effect o f this act is, by means of a pro
hibition against the movement in interstate commerce o f ordinary
commercial commodities, to regulate the hours o f labor of children in
factories and mines within the States, a purely State authority.”
In the case at the bar, Congress in the name o f a tax which on the
face o f the act is a penalty seeks to do the same thing, and the effort
must be equally futile.
yhe analogy o f the Dagenhart case is clear. The congressional
power over interstate commerce is within its proper scope just as
complete and unlimited as the congressional power to tax, and the
legislative motive in its exercise is just as free from judicial sus
picion and injury. Yet when Congress threatened to stop interstate
commerce in ordinary and necessary commodities unobjectionable as
subjects o f transportation and to deny the same to the people of a
State in order to coerce them into compliance with Congress’s regula
tion o f State concerns, the court said this was not in fact regulation
o f interstate commerce, but rather that o f State concerns and was
invalid. So here the so-called tax is a penalty to coerce people o f a
State to act as Congress wishes them to act fti respect o f a matter
completely the business o f the State government under the Federal
Constitution.
Two other decisions on the same statute were delivered by the
court on the same day, in both of which the question o f unconstitu
tionality had been raised. In one (Bailey v. George, 42 Sup. Ct.
419) an injunction was sought restraining the collector o f taxes from
proceeding with the collection of the tax under the law. It was held
that there was no showing of an exhaustion o f legal remedies avail
able, so that no writ o f injunction would issue, and the case was dis
missed. In the second (Atherton Mills v. Johnson, 42 Sup. Ct. 422)
a father sought an injunction against the discharge o f his son under
the age fixed by the act, but as the son was at the time of this appeal
no longer under that age the question was said to be merely moot and
not subject to consideration in the court, so that this case, too, was
dismissed.
C o n tr a c t of E m p l o y m e n t — A g r e e m e n t b e t w e e n

R e lative s —

P r e s u m p t io n — Baker v . Lye ll, St. Louis Court of Appeals, Missouri

(June IS , 192%), 242 Southwestern Reporter, page 70S.—Mrs. Sarah
E. Cochran and Mrs. Nannie Baker were sisters. Mrs. Baker and

CONTRACT OF EMPLOYMENT.

her husband were separated about 40 years ago and Mrs. Baker, with
her infant child, went to live with Mrs. Cochran. In 1913 Mrs.
Baker and her daughter Sallie, on the advice o f their physician, went
to Montana on account of their health. In 1914 Mrs. Cochran, who
was 68 years o f age, wrote to them requesting them to return to Mis
souri, which they did. They lived with Mrs. Cochran on the farm
in Missouri, as they had done prior to 1913, rendering services in the
Cochran home and upon the farm. Mrs. Cochran died, without mak
ing a will, on May 6, 1919. Proceedings were taken in the probate
court to settle the estate. Sallie Baker, the niece o f Mrs. Cochran,
filed a bill for labor and services from 1914 to 1918. The adminis
trator o f the estate of the deceased opposed the bill and a trial was
held. Testimony was offered to the fact that it was understood that
Sallie Baker was to receive compensation for the work done. The
testimony o f the physician who treated Mrs. Cochran showed that
she asked him if she was competent to make a will, and that he told
her that she was not physically able to do so, and that she had told
him that she wanted to compensate the girl. A judgment was ren
dered in favor of the payment of the bill, and an appeal was taken.
The higher court affirmed the judgment below on the condition that
a $165 item would be remitted. The law upon the subject as to the
existence o f a contract under the conditions was stated by presiding
Judge Allen, speaking for the court, saying:
The law implies no promise to pay for services rendered by one
member o f a family to another, but, on the contrary, the presump
tion, prima facie, is that such services are rendered gratuitously, cast
ing upon the party claiming compensation therefor the burden o f
rebutting such presumption; and in order to recover therefor it de
volves upon the claimant to prove that there was an agreement or
understanding to pay for such services, either by direct testimony or
by adducing evidence from which it may be inferred that there was
a mutual understanding and intention to that effect. This rule has
been so often stated and applied by our courts as to make it unneces
sary to do more than refer thereto.
In the instant case we think that the facts and circumstances in
evidence are sufficient to take to the jury the issue as to whether
or not there was a mutual understanding or agreement that the serv
ices in question were not voluntary but that compensation was to be
made therefor. It is true, as contended by appellant, that the evi
dence in such cases should be such as to tend to establish the relation
of debtor and creditor between the parties, and the assumption by
the deceased o f a legal obligation capable of being enforced, and that
the mere expectation by the claimant o f a gift or gratuity, by will
or otherwise, is not sufficient to support a recovery.

C o ntr ac t
op
E m p l o y m e n t — B r e a c h — D am a g e s — Gmnow
v.
Adler, Supreme Court of Arizona (May 11, 1922), 206 Pacific Re

TEXT AND SUMMARIES OF DECISIONS.

porter, page 590.—Harry Adler was employed by D. Granow as
clerk, manager, and salesman in the latter’s dry goods store, to serve
for a period o f one year at a wage o f $35 per week plus 2 per cent
commissions on the gross sales made by Adler, amounts to be paid
weekly. A fter about 4 months Adler was discharged and further
opportunity for employment with Granow was refused. Claiming
that the discharge was wrongful, Adler sued for the amount o f the
wages for the remainder o f the year and a sum that would represent
the commissions at the rate shown by experience to be the probable
returns from this source.
In the superior court o f Maricopa County judgment was in Adler s
favor, and the employer appealed. Judge Flanigan, who delivered
the opinion o f the court, considered the two conflicting rules that
had been held to apply by different courts in similar cases. One of
these, following Gordon v. Brewster, 7 Wis. 355, is to the effect
that a suit before the expiration o f the term o f the contract war
rants recovery only up to the date o f the trial, deducting any wages
that the plaintiff might have received or might reasonably have
earned in the meantime. This rule has been followed in a number
o f cases, several o f which are noted in 6 L. R. A. (N. S .), page 111,
in connection with Howay v. Going-Northrup Co., 24 Wash. 88, 64
Pac. 135. In Labatt on Master and Servant (2d Ed., sec. 363) the
reason for this rule is said to be the contingent and uncertain nature
o f the damages which may accrue during an unexpired residue o f the
term; the employee might die or secure other and more profitable
employment, etc.
The* opposing view is that a wrongful breach entails an immediate
liability for the entire sum involved in the contract, and Judge
Flanigan adopted this view as “ founded upon the better reasoning
and announcing the more just and equitable rule,” saying:
To limit recovery to the damages accrued to the time o f trial, the
contractual term not having elapsed, and then to hold the employee
barred by such an award from any further recovery, seems to us to
. be at war with the general principle which imposes liability upon
the party who breaches a contract, to respond to the other party for
all damages which arise naturally from the breach, or such as may
reasonably be supposed to have been within the contemplation o f
the parties at the time o f making the contract, as a probable result of
the breach.
A considerable number o f cases allowing recovery to the end of
the contract period were cited, the opinion concluding:
W e hold that, upon the breach of the contract by his wrongful
discharge, the plaintiff had a cause o f action which he could assert
at any time within the period o f statutory limitation to recover all
damages he sustained. In such action he was entitled to a verdict

CONTRACT OF EMPLOYMENT.

in such sum as would compensate him for the injuries sustained not
only to the day of the trial but to the end of the contract period.
The estimation o f the damages to the time of trial should ordinarily
be a matter o f little difficulty. For the remainder of the period
the jury would properly have been instructed to consider the wages
agreed to be paid, the commissions which would probably have been
earned, and such other probabilities or uncertainties affecting the
continuance of the contract, or growing out of the terms thereof or
the plaintiff’s ability to perform on his part, as might be shown by
the evidence, and there should be allowed as a deduction whatever
amount the plaintiff would probably earn in other suitable employ
ment, by the use of reasonable diligence to find such employment.
The object sought to be attained by the allowance of damages being
to compensate the plaintiff for his actual loss, the verdict should be
for the present net value o f the benefits so estimated.
After disposing of some other matters, including objections to in
structions, the judgment was affirmed in accordance with the reasons
stated.
C o n tr a c t of E m p l o y m e n t — B r e a c h — D am ages —Safford v. M or
ris Metal Products Corp.y Supreme Court of Errors of Connecticut
(<January h 1922), 118 Atlantic Reporter, page 37.—The superior
court o f Fairfield County rendered judgment in favor of Kalph K.
Safford on account of a breach of contract on the part o f the cor
poration named, and the company appealed. The judgment of the
court below was affirmed. The contract involved was expressed in
a letter written by the then vice president o f the corporation, who
was employing a staff of employees- for the conduct o f the business.
This letter bore date of May 20, 1920, and was as follow s:

Pending the drawing of a more formal agreement, please accept
this letter as an agreement to engage you for a term o f at least three
years at a salary o f at least $6,000 as secretary o f the above company
or some superior capacity as may arise—you to report for duty be
fore July 1st, 1920.
Safford then moved from Springfield, Mass., where he was then
employed and lived, to the city o f Bridgeport, the place o f the com
pany’s business, and entered upon his duties on June 1st. A salary
o f $500 per month was paid for the months o f June, July, and
August, and no further or formal action was taken with regard to
th“- appointment o f Safford as secretary or other official o f the cor
poration, but he was assigned duties apparently satisfactory to him
self and the company. On October 5 Mr. Morris, now president of
the corporation, wrote a letter to Safford making certain charges
and giving notice o f discharge from further employment. “ The
charges made in this letter in justification o f the discharge, the
[trial] court found not proved.” Safford thereupon sued to recover

TEXT AND SUMMARIES OF DECISIONS.

damages for the breach o f the contract and salary up to the date of
the bringing o f the suit, which the court allowed.
It was found that Morris was acting with authority in making
contracts o f general employment, and that there was no claim by
Safford in regard to the nature o f his duties, or failure to appoint
him secretary, or for any other damages than those occasioned by
the breach o f the contract. The company admitted certain liabili
ties but claimed that an excessive allowance had been made.
In passing upon this contract, and in concluding the opinion in
affirmation o f the action of the court below, Judge Curtis, speaking
for the court, said:
The action was begun October 5, 1920, the day after his discharge.
The plaintiff was not paid anything for his services after September
1, 1920. After his discharge the plaintiff made diligent search for
employment but was not able to secure other employment until May
1, 1921, when he secured employment at $200 per month, and this
employment at that rate continued until the date o f the judgment
in this action, namely, February 5, 1922.
The court rendered judgment for damages for salary due at date
o f discharge and also for the breach o f contract. This was proper
under the complaint. (Yiall v. Lionel Mfg. Co., 90 Conn. 698, 98
Atl. 329.) The court arrived at the amount o f its judgment by
following the rule that prima facie the plaintiff was entitled to
recover damages equal to the balance of the stipulated salary for
the term o f his employment, and that the defendant was entitled to
mitigate or lessen such amount by showing what sum, if any, tho
plaintiff had earned or by the exercise o f due diligence could have
earned in some other employment. The defendant seems to claim
that the court could not so proceed but must confine its estimate of
damage to the period terminating at the date o f judgment. This
claim can not be sustained. The court followed the course estab
lished by the laws o f this State. (Grant v. New Departure Mfg.
Co., 85 Conn. 421, 83 Atl. 212; Yiall v . Lionel Mfg. Co., 90 Conn.
694, 98 Atl. 329.)
C o n tr a c t of E m p l o y m e n t — B r e a c h — E n f o r c e m e n t b y I n j u n c
t io n —Sherman

v. Pfefferhom et al., Supreme Judicial Court of
Massachusetts ( June 8, 1922) , 185 Northeastern Reporter, page
568.—Arthur F. Sherman was the owner o f a laundry in Weymouth,
Mass., and had laundry routes in Weymouth, Hingham, and Brain
tree. On August 7,1917, he entered into a contract with one Walter
E. Pfefferkorn under the terms of which the latter was to act as laun
dry solicitor, collector, and deliveryman for the former. The term of
the employment was to be at the will o f the parties. Among its con
tract provisions was an agreement not to disclose the names, ad
dresses, etc., o f customers nor to permit anyone to accompany him
on his route without the express permission o f the employer; also
not to do anything prejudicial to the interests o f the employer for a

CONTRACT OF EMPLOYMENT.

period o f three years after the termination of employment, nor to
engage in the laundry business in specified territory for a like period.
On November 17,1919, Pfefferkofn was discharged for a justifiable
cause. In the month of April, 1920, he became one of the incorpo
rators o f the South Shore Laundry (Inc.). He entered into an
arrangement by which he could become half owner of the stock of
the company. He gave information about customers to the com
pany which he had acquired in the employ of Sherman, and as a
result o f this information and because of the friendly acquaintance
between Pfefferkorn and the customers Sherman lost a large part of
his former business. Suit was brought for an injunction to restrain
Pfefferkorn from violating his contract and others from employing
him. An injunction was granted, and the defendants appealed. In
the Supreme Judicial Court the decree was modified and affirmed.
Judge Jenney rendered the opinion of the court, in the course of
which he said:
It long has been settled that contracts restraining freedom of em
ployment can be enforced only when they are reasonable and not
wider than is necessary for the protection to which the employer is
entitled and when not injurious to the public interest.
As stated by Lord Macnaghten in Nordenfeldt v. Mixim Nordenfelclt Guns & Ammunition Co. (1894), A. C. 535, 565:
“ The public have an interest in every person’s carrying on his
trade freely; so has the individual. A ll interference with individual
liberty o f action in trading, and all restraints of trade of themselves,
if there is nothing more, are contrary to public policy and therefore
void. That is the general rule. But there are exceptions: Re
straints o f trade and interference with individual liberty of action
may be justified by the special circumstances of a particular case.
It is a sufficient justification, and indeed it is the only justification, if
the restriction is reasonable—reasonable, that is, in reference to the
interest o f the parties concerned and reasonable in reference to the
interest o f the public, so framed and so guarded as to afford adequate
protection to the party in whose favor it is imposed, while at the
same time it is in no way injurious to the public. That, I think, is
the fair result of all the authorities.”
Considering the nature of the business and the conditions now ex
isting, the contract here considered was reasonable in limitations as
to time and space. It clearly follows that Pfefferkorn was rightly
enjoined from soliciting within the towns of Weymouth, Hingham,
and Braintree patronage of customers of the plaintiff, the names of
whom had become known to him in the course of and by reason of
his employment, and from disclosing the names or using, to the
detriment o f the plaintiff, information or knowledge regarding the
laundry business which had been confidentially gained by him in the
course o f his employment. The decree, however, did much more
than restrain him from doing any act or thing in derogation of his
written contract. It ordered Pfefferkorn to resign such offices as he
then held in the South Shore Co. and to dispose of any stock o f said
49978°—23---- 6

TEXT AND SUMMARIES OF DECISIONS.

company or other interest therein, either legal or equitable, which he
then owned.
In these respects the decree was wrong. 'The master found that
Pfefferkorn had ceased to hold office in the defendant company.
The requirement as to the sale of stock or other interest was not nec
essary to give the plaintiff all that he was entitled to receive. Not
withstanding his contract, the employee had the right to engage in
the same line o f business or to be interested therein, but not beyond
the bounds defined. The measure o f relief required must be deter
mined by the facts in each case.

C o n tr ac t

E m p l o y m e n t — B r e a c h — I n ju r e d

W orkm an— ■

A g ree m en t for L if e E m p l o y m e n t — Fisher v. John L . Roper Lu m

ber €o., Supreme Court of North Carolina ( May 10, 1922), 111
Southeastern Reporter, page 857.—In 1908 Frank Fisher was a strong
and vigorous young married man with one child. He was then em
ployed by the defendant company in one o f its lumber mills. In the
course o f his employment he received serious and permanent injuries;
two o f his ribs were broken and one of his arms was so injured that
it had to be amputated. When Fisher returned from the hospital,
after having his injuries cared for, he was preparing to bring a suit
for damages against his employer when he was called into an office o f
the company by Mr. W . G. Roberts, the company’s foreman in control
o f the employees and their work at the mill. Roberts told him that
the company always took care o f its men injured the way he was,
that there was no use to see a lawyer, and if he would not sue, the
company would employ him in such work as he could do about the
mill in his crippled condition, and for the balance of his life give him
a living wage, sufficient for the support o f himself and family.
Fisher agreed to the proposition, and in pursuance of the agreement
he was employed and received adequate wages for his work until
1920. In that year, owing to the cost of living, the sum paid him
would not keep him decently clothed nor his family from want. He
interviewed the superintendent and told him all the facts, but as no
increase in wages was granted as a result o f the interview he quit his
work, of. necessity, and sought and obtained employment elsewhere.
After working a few months there he was taken sick, and before he
recovered, the company for which he was working went out o f busi
ness. Suit was bror ht on the agreement made between Fisher and
the company, acting through Roberts. The company denied all lia
bility and defended on the ground that Fisher was negligent; that the
statute o f limitations had run; that the alleged contract was never
made, and if it was, Roberts did not have the power to make i t ; that
it was without valid consideration and was too indefinite to afford a

CONTRACT OF EMPLOYMENT.

basis for recovery. A judgment was rendered in favor of Fisher, and
the company appealed to the supreme court. Judge Hoke, speaking
for that court in an opinion setting forth the reasons for affirming
the judgment o f the lower court, answered the contentions of the
company in part as follow s:
The evidence as accepted by the jury all tended to show that the
contract, if made, was by way of compromise and adjustment of a
bona fide claim on the part of plaintiff against the company. Such
an adjustment will afford sufficient consideration for the agreement
whether the claim was well grounded or not.
Defendant insists further that there is no evidence of a valid agree
ment by anyone having authority to bind the company. It appeared
that this man having only one arm was on the employer’s pay roll at
the price o f a full hand for 12 years, and if the management did not
know o f the terms of plaintiff’s employment, their negligence in this
respect should be imputed to them for knowledge.
Again, it is very earnestly contended by appellant that the con
tract is too indefinite, and for this reason no recovery can be had
thereon. It will be noted that this exception assumes the existence of
the contract, and the jury has established it according to plaintiff’s
version. This being true, there is no uncertainty as to the terms
which the parties have selected in which to express their agreement
that plaintiff, during his life, would be given a living wage required
for the support of himself and family. The person, the purpose, and
the time o f the contract are clearly given, and the only objection at
all possible would be as to the difficulty in fixing upon the amount
to be paid or the value o f the contract to plaintiff in case o f breach.
It is said by an intelligent writer on the subject that the law does not
favor but leans against the destruction of contracts on account of
uncertainty; therefore the courts will, if possible, so construe the con
tract as to carry into effect the reasonable intent o f the parties, if it
can be ascertained. (6 E. C. L., p. 648.) And by another that this
intent may be determined at times by reference to extrinsic facts rele
vant to the inquiry. Applying these principles, and by reference to
the facts in evidence, the capacity of the plaintiff to earn wages, his
physical condition, the number of his family, the cost o f necessaries
for an ordinary livelihood, together with the mortuary tables, also
in evidence, would, with other facts, afford data, in our opinion, to
enable a jury to come to a reasonable estimate as to the value of the
contract held by plaintiff, reduced, of course, by the amount he would
be able to earn by diligent effort, and in this aspect the case was con
sidered by the jury and the damages awarded. Contracts not dissimi
lar have been upheld with us and other courts of approved authority.
(Rhyne v. Rhyne, 151 N. C. 400, 66 S. E. 348; Lumber Co. v. Lumber
Co., 165 Ala. 268, 51 So. 767; Henderson v . Spratlen, 44 Colo. 278, 98
Pac. 14.)
As to the statute of limitations, the suit is on the contract, and in
this instance the right of action did not accrue to plaintiff till a
breach o f same which occurred in 1920.
On careful consideration we find no reversible error and the judg
ment on the verdict is affirmed.

TEXT AND SUMMARIES OF DECISIONS.

C o n tr a c t of E m p l o y m e n t — B r e a c h — u S t r a ig h t T im e ” — S i c k
d u r in g
E m p l o y m e n t —Red Cross Manufacturing Co. v.
Stroop, Appellate Court of Indiana ( May 12, 1922), 135 North
eastern Reporter, page 351.—Jacob C. Stroop and the Red Cross.
Manufacturing Co. entered into an oral contract o f employment by
the terms o f which Stroop was to work in the company’s manufac
turing plant at Bluffton with wages at the rate o f $1,300 per year
for “ straight time,” payable monthly. It was agreed that either
party desiring to terminate the contract should give the other 60
days’ notice. Stroop undertook to carry out his part of the contract,
but became sick in November, before his discharge, and again in
February, March, and April. Because of this sickness he was not
able to and did not work during a large part o f the time. On the
14th o f April he was not working because o f his sickness, and was
discharged without the agreed 60 days’ notice. Stroop brought suit
against the company for damages occasioned by reason of the breach,
and a verdict was rendered in his favor. The parties disagreed as
to the effect o f the sickness on the contract, and the company ap
pealed to the appellate court, contending for the general rule “ that
the inability o f an employee by reason o f sickness to perform his
part o f the contract absolves both parties from liability to continue
performance.” Judge McMahon, speaking for the court in its de
cision affirming the judgment o f the lower court, answered the con
tention as follow s:
ness

But if the parties have contracted with reference to the possi
bility o f the employee becoming sick, and agree that in case he
becomes ill he shall be allowed pay for full time, the rule contended
for by appellant would not control. The rule applies in case there
is no agreement to the contrary. But courts can neither make,
modify, change, nor add to contracts made between parties in the
absence of fraud or mistake. Their duty is to interpret and enforce
them as the parties themselves have made them.
The court said that the term “ straight time ” was ambiguous, but
further said:
The evidence is sufficient, however, to justify us in saying that
the parties placed their own construction upon the meaning of this
expression and as to what they understood it to mean. During the
six months prior to appellee’s discharge he had been ill and unable
for several months to perform any labor. Between February 11 and
April 14, the date o f his discharge, he had worked but four days.
He received pay for full time, no deductions being made for time lost
by reason o f sickness. The inference might be drawn that appellant
understood that no deductions were to be made on account o f time
lost by reason of sickness. It was competent for the parties to enter
into an agreement, as claimed by appellee. Such an agreement is
not unlawful.

CONTRACT OF EMPLOYMENT.

C o n tr ac t of E m p l o y m e n t — E n f o r c e m e n t — P ow er of C ourts —
P rior E ig h t s a m o n g E m plo y e es — Chambers v. Davis, Supreme

Court of Mississippi (A p ril 17, 1922), 91 Southern Reporter, page
Sift.— C. S. Davis and others brought a suit in the equity court of
Mississippi for a decree enjoining the Mobile & Ohio Eailroad Co.
from replacing them as brakemen on one of the regular trains of the
company. The suit was based upon a contract existing between the
railroad company and its employees under which it was contended
that the company agreed to give preference, in assigning men to
trains, to the employees longest in the employ o f the company. The
plaintiffs contended that, in violation of its contract, the company
had displaced them from one o f its regular trains in favor of the
defendants, who were employees not in the employ o f the com
pany for as long a time as they were, and as a result they were trans
ferred from the list of regular to that of extra brakemen, because of
which they were given runs only when a regular brakeman failed to
take his run. The railroad company alleged that it had no real
interest in the controversy and that it was in fact a controversy be
tween its employees, and that it was willing to abide by and to com
ply with the court’s decree. A decree was entered and the defendants
appealed to the supreme court of the State. Chief Justice Smith o f
that court delivered an opinion reversing the decree of the lower
court and dismissing the bill of the plaintiffs on the grounds that the
bill sought a decree for specific performance of a contract for per
sonal services, which equity courts will not do. The court further
said:
Counsel for the appellees admit that such is the general rule, and
that a court o f equity would not interfere should the company dis
charge the appellees. Their contention is that the rule should not
apply here for the reason that the company has not and does not in
tend to discharge the appellees, and is willing to accord them their
claimed right of seniority if the court should decree that they are
entitled thereto. But this simply amounts to a request o f the court
to relieve the railroad company o f an embarrassing situation by
arbitrating a dispute between its employees as to their relative rights
under their contract with the company, and it would seem to be
unnecessary for us to say that such is not a proper function of the
courts.
We have not overlooked the case of Gregg v. Starks, 188 Ky. 834,
224 S. W. 459 [see Bui. No. 290, p. 82], cited bjr, and which supports
the contention of the appellees, but that case is not in accord with
the rule governing controversies o f the character of the one here in
question and, moreover, was not decided by a court of last resort,
but by one o f the judges of such a court on a motion for a temporary
injunction.

TEXT AND SUMMARIES OF DECISIONS.

Judge Anderson wrote a strong dissent, in which Judge Ethride
concurred. The dissent is in part as follow s:
As it appears to me, a wise public policy would require the courts
to entertain such suits. It would have a tendency, to say the least
o f it, to avoid strikes growing out o f controversies between large em
ployers o f labor and their employees. I f both employer and employ
ees in such cases understood that the courts were open to redress their
grievances, and were ready and willing to pass just judgment on the
rights o f the respective parties, it might result in great good to the
country. The courts ought to keep pace with the progress and ad
vancement o f the country. Old principles should be extended and
applied to new conditions; and, if necessary to the ends of justice,
new principles should be developed and declared by the courts. Since
under modern conditions employers and employees (especially large
employers o f labor and their employees) are dealing with each other
collectively as to many of the important terms o f employment, why
should not the courts deal with them in the same manner? Sooner
or later it will be done. Gregg v. Starks, 188 Ky. 834, 224 S. W. 459,
is directly in point, and I know of no authority to the contrary;
and, although that was not a decision of the Court o f Appeals o f
Kentucky, as stated in the majority opinion, it was concurred in by
a majority o f the members of the court, and is entitled to such weight
as its reasoning carries.
C o n tr a c t of E m p l o y m e n t — E n g a g in g i n

S im il a r B u s in e ss —

I n j u n c t io n — Federal Laundry Go. v. Zimmerman, Supreme Court
of Michigan ( March SO, 19%%), 187 Northwestern Reporter, page

335.—The Federal Laundry Co. was organized by the consolidation
o f several laundry companies, and from the time o f its organization
until January 15, 1921, it had in its employ as a driver and solicitor
one William H. Zimmerman. He worked on what was called route
8, collecting soiled clothes from customers and from agencies o f the
company and later returning the laundered articles. He solicited
business and was given the business o f all persons in his territory.
He was paid a commission and a salary. On January 15,1921, Zim
merman quit the employ o f the company and accepted employment
with a competitor o f the company. The Federal Laundry Co.
brought suit for an injunction to restrain Zimmerman from calling
for or delivering laundered goods o f its customers in route 8, or from
soliciting new customers for his new employer in that territory, or
from giving information to the new employer gained by Zimmerman
from the former employer’s laundry list. The case was tried and
the relief requested was not granted.
An appeal was taken to the supreme court o f the State. The court
said that it had previously decided in the case o f the Grand Union
Tea Co. v. Dodds, 164 Mich. 50, 128 N. W . 1090, 31 L. K. A. (N. S.)
260, that an injunction would not issue in a case o f this kind. The

COST OF LIVING.

court quoted from the case cited above to the effect that “ We
are o f the opinion, however, that he can not be restrained from
selling his commodities, for himself or for any employer, in any part
o f the city, or to any person, so long as he does not use any property
belonging to the complainant, or copies thereof that were surrepti
tiously made.”
The court said that unless they overruled the Dodds case the com
pany was not entitled to the decree sought. The court refused to
overrule the prior case because “ We think it sound in principle,
and that it protects the property rights o f the employer without
destroying the right of the employee to pursue a lawful occupation.”

C ost of L iv in g — P roduction a n d D is t r ib u t io n of C oal — P rices —
L ever A ct — C o n s t it u t io n a l it y — Fo rd v.

United States, United
States Circuit Court of Appeals, Sixth Circuit ( May 4, 1922), 281
Federal Reporter, page 298.—Criminal prosecutions were brought
against B. N. Ford and the Matthew Addy Co. upon charges of
violation o f the provisions of the Lever Act (40 Stat. 276), an emer
gency war measure effective August 10, 1917, the cases being heard
at the same time. On August 23, 1917, the President adopted a
series o f regulations under the act as to prices and margins to be
in force “ pending further investigations or determination thereof
by the President.” In the regulations a jobber buying and selling
bituminous coal was forbidden to add to his purchase price a gross
margin in excess of 15 cents per ton. The corporation and Ford
were separately indicted for making, subsequent to August 23, 1917,
various specific sales of coal at a price which included a profit of 25
cents per ton. The coal in question had been purchased previous to
the time the Lever Act took effect. This last fact was set up as
a defense at the trial but was held not good. Judgments of convic
tion were entered (265 Fed. 424) and the case was taken to the
Circuit Court o f Appeals. The convictions were affirmed in that
court and attacks against the constitutionality o f the statute were
held to be o f no force. Judge Knappen delivered the decision of
the court, saying in part:
It seems plain that the President’s order of August 23d should
not be construed as excluding from its operation coal previously
bought. Neither the statute nor the regulations were ordinary legis
lation. That they were designed to meet a real emergency is shown,
not only by the title o f the act, but by the preamble, which asserts
that the measures provided thereby for conserving the supply o f
food products, fuel, etc., the establishment of Government control,
and the issue o f regulations and orders provided for, were by reason
o f the existence of a state of war essential to the national security
and defense, for the successful prosecution of the war, and for the

TEXT AND SUMMARIES OF DECISIONS.

maintenance o f the Army and Navy. The act was in terms made
effective only until the end o f the then existing war. Even ordinary
remedial laws, although penal, are not to be so strictly construed as
to defeat the obvious legislative intent.
Plaintiffs in error complain that they were not allowed to show
that 15 cents per ton added as commission or gross margin to its
purchase price results in this case to loss or inadequate compensa
tion. Denial is made of the President’s authority to so limit the
gross margin as to accomplish that result. In this connection there
is a suggestion that the President’s authority can only be exercised
through the Federal Trade Commission. It is further urged that,
even if the immediate emergency justified the President in fixing
jobber’s prices, he was subject to the limitations imposed by the act
upon the Trade Commission, which (under paragraph 14) was re
quired in fixing maximum producers’ prices to u allow the cost of
production, including the expense o f operation, maintenance, de
preciation, and depletion,” plus “ a just and reasonable profit.”
In our opinion this contention overlooks the summary nature o f
the power which we think was conferred on the President, to meet
the emergency by making temporary orders which should, so far as
possible, save the immediate situation until the commission should
have time and opportunity, through its slower processes, to make
more complete investigation of conditions and remedies. It should
be conclusively presumed that the President gave the subject all
the investigation and consideration which the emergency permitted.
It was thus not open to plaintiffs in error to show that in their
specific cases the margin allowed was inadequate or resulted in loss;
The constitutionality of section 25 o f the act is vigorously assailed
on several grounds; the first being that it deprives plaintiffs in erroy
of their property without due process of law. The specific criticisms
are that the law is not clear and definite, and that no notice and
hearing upon the making of executive orders is provided for. The
first criticism is plainly without merit. Nothing could well be more
clear and definite than the plain inhibition against making the sell
ing price more than 15 cents per ton higher than the purchase price.
The case is- obviously not within the reasoning c f the Cohen Case,
255 U. S. 81, 89, 41 Sup. Ct. 298 [Bui. No. 809, p. 72], which held
section 4 o f the act invalid; and the instant case is not affected by
that decision.
As to the second criticism: While under ordinary conditions notice
and hearing would be conditions precedent to the making of an order
o f this kind, we agree with the court below that due process o f law
is not to be tested by form o f procedure merely, that public danger
warrants the substitution of executive processes for judicial process,
and that under the war conditions then existing, and as indicated
by the preamble of the act, the fixing o f prices in industries so vital
to the prosecution of the war as food and fuel was not the depriva
tion o f due process of law, but is within the power given to Congress
by article 1, section 8, of the Constitution, to make all laws necessary
and proper for carrying into execution the war powers expressly
enumerated.

EMPLOYEE AND EMPLOYEE.

E m p l o y e r a n d E m pl o y e e — S ervice L etter — C o n s t it u t io n a l it y
S t a t u t e —Prudential Insurance Go. of America v. Cheek, Su
preme Court of the United States ( June 5, 1922), 259 U. S. 530, 1$
Supreme Court Reporter, page 516.—This case was before the Su
preme Court on a writ of error to the St. Louis, Mo., Court of
Appeals. Robert T. Cheek sued the Prudential Insurance Co. to
recover damages alleged to be due on account of its failure to furnish
a letter “ setting forth the nature and character of the services
rendered by him to said corporation and the duration thereof, and
truly stating for what cause plaintiff had quit said service.”
There was another count based on an alleged unlawful agreement
between this company and two others which had a practical monop
oly of the industrial life insurance business in St. Louis, under
which no one leaving the service of one company could find employ
ment with the others for a term o f two years.
A Missouri law (sec. 3020, R. S. 1909) makes it the duty of a cor
poration doing business in this State to furnish its employees leaving
services, either voluntarily or on discharge, with a letter stating
the facts above indicated. Failure to do so is punishable by fine
or imprisonment, or both.
Th$ contention was made that this provision of law was not con
stitutional although it had been upheld by the Supreme Court of
Missouri (192 S. W. 387; see Bui. No. 246, p. 75). The opinion of
the court in this case was delivered by Justice Pitney, who quoted
from the opinion of the Supreme Court o f Missouri to indicate the
occasion o f the legislation in question.
This was, in brief, a custom among railroad and other corpora
tions o f requiring applicants for positions to furnish the name of
their last employer, with whom the company would then communi
cate, asking for the reason for the applicant’s leaving service. The
statute was enacted for the purpose of regulating an established
custom and protecting the workman from the evils of secret com
munications. The Missouri court had said that the law “ was
designed to protect the public interests as well as the wage earner
against an injurious custom given birth to and fostered by said
corporations.” Justice Pitney then said:
That freedom in the making of contracts of personal employment
by which labor and other services are exchanged for money or other
forms o f property is an elementary part of the rights of personal lib
erty and private property not to be struck down directly or arbi
trarily interfered with consistently with the due process of law
guaranteed by the fourteenth amendment, we are not disposed to
question. This court has affirmed the principle in recent cases.
But the right to conduct business in the form of a corporation,
and as such to enter into relations of employment with individuals,
is not a natural or fundamental right. It is a creature o f the law ;
of

TEXT AND SUMMARIES OF DECISIONS.

and a State, in authorizing its own corporations or those o f other
States to carry on business and employ men within its borders, may
qualify the privilege by imposing such conditions and duties as rea
sonably may be deemed expedient, in order that the corporation’s
activities may not operate to the detriment of the rights of others
with whom it may come in contact.
It was then pointed out that the law “ does not prevent the cor
poration from employing whom it pleases on any terms that may
be agreed upon; ” nor does it require that a commendatory letter be
given, but simply a statement signed by the superintendent or man
ager setting forth the nature, character, and duration of the service,
and for what cause, if any, it was terminated.
A number o f statutes o f similar tenor were then discussed and the
attitude of the State courts toward them, some having been upheld
and some declared unconstitutional. Concluding this discussion,
Justice Pitney said:
We have examined the opinions referred to with the care called for
by the importance o f the case before us and* are bound to say that
beyond occasional manifestations o f a disinclination to concede
validity to acts of legislation having the general character of service
letter laws, we have found nothing o f material weight; no wellconsidered judgment, much less a formidable body of opinion, worthy
to be regarded as supporting the view that a statute which, like the
Missouri statute, merely requires employing corporations to furnish
a dismissed employee with a certificate setting forth the nature and
character o f the service rendered, its duration, and for what cause,
if any, the employee has left such service, amounts to an interference
with freedom o f contract so serious and arbitrary as properly to be
regarded a deprivation of liberty or property without due process
o f law within the meaning of the fourteenth amendment.
As has been shown, the Missouri statute interposes no obstacle or
interference as to either the making or the termination of contracts
o f employment, and prescribes neither terms nor conditions. The
supreme court of the State, having ample knowledge o f the condi
tions which gave rise to the particular legislation, declares with an
authority not to be denied that it was required in order to protect
the laboring man from conditions that had arisen out o f customs
respecting employment and discharge o f employees introduced by
the corporations themselves. It sustains the act as an exercise of the
police power, but in truth it requires nor/ extraordinary aid, being
but a regulation o f corporations calling for an application of the
familiar precept, “ Sic utere tuo,” etc., in a matter of general public
concern.
What more reasonable than for the legislature o f Missouri to deem
that the public interest required it to treat corporations as having,
in a peculiar degree, the reputation and well-being o f their former
employees in their keeping and to convert what otherwise might be
but a legal privilege, or under prevailing customs a “ moral duty,”
into a legal duty, by requiring, as this statute does, that when an
employee has been discharged or has voluntarily left the service it

EMPLOYEE AND EMPLOYEE.

shall give him, on his request, a letter setting forth the nature and char
acter o f his service and its duration and truly stating what cause, if
any, led him to quit such service.
It is not for us to point out the grounds upon which the State
legislature acted or to indicate all the grounds that occur to us as
being those upon which they may have acted. We have not attempted
to do this, but merely to indicate sufficient grounds upon which they
reasonably might have acted and possibly did act to show that it is
not demonstrated that they acted arbitrarily, and hence that there is
no sufficient reason for holding that the statute deprives the corpora
tion o f its liberty or property without due process of law.
The argument was advanced that “ equal protection” was denied
corporations, but this was said to be “ unsubstantial.” Corporations
and individuals may easily be found by the legislature to belong in
separate classes as employers. The act applies to all corporations
doing business in the State, whether incorporated therein or in an
other State. The constitutionality of the act was therefore upheld,
three justices dissenting.
As to the count based on the alleged unlawful agreement between
the three industrial insurance companies to control the city’s busi
ness, Justice Pitney pointed out that the Missouri Supreme Court
had held that “ the corporations had no lawful right to enter a
combination or agreement the effect of which was to take from them
the right to employ whomsoever they deemed proper, and at the
same time deprive former employees of the constitutional right to.
seek employment.” Justice Pitney stated that this doctrine might
have been embodied in a statute without conflict with the fourteenth
amendment, and that “ the decision is as valid as a statute would be.”
A similar statute of the State of Oklahoma was passed upon by
the Supreme Court on the same day, Justice Pitney delivering the
opinion in that case. (Chicago E. I. & P. Ry. Co. v. Perry, 259
U. S. 548, 42 Sup. Ct. 524.)
This statute had been upheld by the Supreme Court o f Oklahoma
(75 Okla. 25, 181 Pac. 504; see Bui. No. 290, p. 90), as in the Cheek
case. Quotations were made from the law and the opinion thereon
delivered by the State supreme court. Close similarity was found
between this law and the Missouri statute above upheld, and the
right o f the legislature to exercise its judgment on the matter was
declared.
It was peculiarly a matter for the legislature to decide, and not the
least substantial ground is present for believing they acted arbi
trarily. We feel safe in relying upon the general presumption
that “ they knew what they were about.”
The judgment was therefore affirmed over the dissent of the same
three justices as in the Cheek case.

■78

TEXT AND SUMMARIES OF DECISIONS.

E mployers’ A ssociations— M onopolies— A ntitrust L aw — “ C om
C ommon U se ” — F oundations for B uildings—People v.

modity of

Amanna:, Supreme Court of New York, Appellate Division (Novem
ber 17, 192%), 196 New York Supplement, page 606.— This was a
criminal prosecution directed against Fiore Amanna and others,
charging an unlawful agreement for the purpose o f creating and
maintaining a monopoly for the production o f stone and concrete
building foundations. Amanna and his associates formed what was
known as the Stone Mason Contractors’ Association, a corpora
tion made up of contractors engaged in the business indicated. It
was charged that by their agreements they had conspired unlaw
fully to control and monopolize foundation work in the counties
of New York and Bronx, in violation o f section 340 of the general
business law (Consol. Laws, c. 20).
Contracts were made for the furnishing o f labor and material and
the furnishing of foundations at a fixed price per cubic foot. O f the
methods used, Judge Greenbaum, speaking for the court, said:
The purpose and methods o f the Stone Mason Contractors’ Asso
ciation as set forth in the indictment demonstrate beyond cavil a
scheme designed to circumvent the antimonopoly of this State. The
underlying idea which evidently prompted the formulation o f the
agreement under which the defendants operated was that, since the
mason’s contract with the builder includes the furnishing o f ma
terials and labor, there was no separate sale o f materials to the
builder, and hence, since the statute has no application to contracts
for work, labor, and services, there was no violation o f the law.
There can be no doubt that the members o f the contractor’s associa
tion by their agreement intended, among other advantages, to con
trol the price o f the materials which enter into the construction of
foundations by the device o f a fixed sum per cubic foot.
As to the contention that foundations are not a commodity, it
was said that “ the very scheme of compelling the builder to pay
for foundations at a given price per cubic foot indicates that the
mason contractors regarded the finished product as though it were
a piece o f merchandise, sold by weight or measure.” The judgment
of the trial court had been in favor o f the defendants, relieving
them o f the charge. This was reversed by the appellate division,
as indicated by the following quotation:
The practical effect o f the agreement which is assailed in the in
dictment is to prevent the builder from buying the stone, cement, or
sand which enter into the construction o f foundations from those
who are engaged in the sale of those materials and to enable the
mason contractors to charge the builders therefor any price they saw _
fit. Such a conclusion can not be affected by the fact that the price
fixed for the foundations includes the supplying o f labor for prepar
ing and setting the foundations.
It seems to us, too, that the contention o f the respondents on this
appeal has impliedly been disposed o f adversely to them in People v.

EMPLOYERS* ASSOCIATIONS.

John T. Hettrick, in which the judgment of conviction affirmed by
this court, without opinion was recently affirmed in the court of ap
peals without opinion.
The crime there charged was the violation of section 340-1 of the
general business law on the part o f the defendant, who conspired
with others to promote the continuance and to extend the operation
o f a certain combination whereby competition in the business o f
furnishing, selling, and installing plumbers’ supplies and materials
in buildings might be prevented. One of the points raised before
the appellate courts was that the phrase “ article or commodity of
common use ” does not include the labor required in installing plumb
ing fixtures in buildings, and that the act merely applied to tangi
ble articles o f trade or commerce. It was claimed in that case,, as it
is in this, that, while plumbing fixtures themselves are “ articles or
commodities,” labor is not a commodity, and hence the contracts with
builders for plumbing to be installed in buildings, including, as they
did, the labor o f installation, were not within the contemplation of
section 340 o f the general business law. It was also argued that the
commodities that were furnished under the contract were merely
incidental to the main contract which was for services and labor.
In behalf o f the people it was contended that the work, labor, and
services were mere incidents to the installation of the plumbing mate
rials. The court o f appeals, however, affirmed the conviction.
It is difficult to discover any difference in principle between the
facts here appearing and those involved in the Hettrick case, supra.
The only difference between the cases is in the character o f the mate
rials used. In the Hettrick case the contract embraced the supplying
o f plumbing materials, whereas in the instant case the agreement
includes the supplying of stone, cement, and sand. In both cases the
Contractor was also to supply the labor required for affixing the
materials to the freehold.
The judgment and order appealed from are reversed, and the de
fendants’ demurrer to the indictment is overruled. A ll concur.

E mployers’ A ssociations— M onopolies— R elief— Overland Pub lishing Co. v. Union Lithograph Co., District Court of Appeal of
California ( A p ril 18, 19%%), %07 Pacific Reporter, page 4,1%.—The
Overland Publishing Co. sued the Union Lithograph Co. and others
for injunction and damages. The Overland Co. is a corporation
engaged in the business o f printing and publishing. The Union
Lithograph Co. and some 200 others engaged in similar lines of work
formed what is known as “ The Printers’ Board of Trade,” which
had for its purpose the regulation of the printing and publishing
business and “ to investigate and check injurious trade practices and
encourage the opposite.”
Besides this association of employing printers, there were in San
Francisco associations of working printers, printing pressmen, etc.,
three such organizations being named. These organizations had
made an agreement with the employers’ association for mutually

TEXT AND SUMMARIES OF DECISIONS.

exclusive contracts o f employment and service. The Overland Co.
had frequently been solicited by the employers to join their associa
tion and had been told by the employees’ associations that unless it
did join its union workmen would be compelled to leave its service.
The plaintiff company refused to join the Printers’ Board o f Trade,
and the union employees left its employ.
The result o f this situation of boycott would be, it was averred, a
“ very great injury o f plaintiff.” An injunction was therefore
desired to prevent the continuance of the contract under which these
measures were being carried out. Presiding Judge Langdon, having
stated the facts as above, declared that “ the typographical agree
ment, in so far as it is set forth in the complaint, is one which is
perfectly legal and involves no restraint o f trade.” The antitrust
law o f the State (Acts o f 1907, p. 984, amended 1909, p. 594) con
tains a provision that “ labor, whether skilled or unskilled, is not a
commodity within the meaning o f this act.” The portion o f the
typographical agreement pleaded by the plaintiff is a contract con
cerning labor. It is an agreement by the unions to sell their labor
only to persons coming within a designated class. Decisions by the
supreme court o f the State announcing the right o f freedom to
contract or to refuse contracts o f employment, whether singly or in
cooperation, were cited, concluding with the follow ing:
In the case o f Parkinson Co. v. Bldg. Trades Council, 154 Calif,
at page 599, 98 Pac. 1034, 21 L. R. A. (N. S.) 550, 16 Ann. Cas.
1165, it is said:
“ In case o f a peaceable and ordinary strike, without breach of
contract, and conducted without violence, threats, or intimidation,
tins' court would not inquire into the motives of the strikers—their
acts being entirely lawful, their motives would be held immaterial.”
Judge Langdon then said:
In the light o f the foregoing cases, we think it clear that in so
far as the allegations o f the complaint so far enumerated are con
cerned, they state no ground for either injunctive relief or for the
recovery o f damages.
A second phase of the complaint was then taken up, which was to
the effect that the employers’ association in itself established a
monopoly offensive to the antitrust law already cited. It was
averred on information and belief that the Printers’ Board o f Trade
had for more than three years maintained a system of restricting
competition and fixing prices “ grossly in excess o f an amount that
would yield to the persons making the charge and collecting said
prices a fair and reasonable profit.” A ll new contracts involving an
amount in excess of $15 were required to be reported and submitted
to meetings o f members held daily in the office o f the board, when
a price is fixed and the person designated who shall make the bid
at the price named. Other members o f the association are not to

EMPLOYERS

LIABILITY.

bid on the same work except in an amount above the amount so
fixed. This is said to be an unjust and illegal procedure, persons
desiring work done or materials furnished being made to believe
that the price obtained is the result of competitive bidding, whereas
there is a limitation of competition between the members o f the
board o f trade, which embraces practically 95 per cent of the con
cerns engaged in the printing trade in the city and county o f San
Francisco. As to this Judge Langdon said:
Conceding, for the purposes of this opinion, that this be true, the
said association would, in consequence, be subject to forfeiture of
its charter rights, franchises, and privileges, and to dissolution upon
proceedings taken by the Attorney General or the district attorney.
(Section 2, Stats. 1907, p. 984.) But this is not such a proceeding.
This is an action by a private corporation, and, as such, is gov
erned by the provisions of section 11 of said act. In that section it
is provided that an action may be brought by “ any person who shall
be injured in his business or property by any other person or cor
poration * * * by reason of anything forbidden ” in said act.
The general allegation o f damages inflicted upon the Overland Co.
was said to be insufficient. It does not appear in what respect the
company “ has been or will be damaged by the restraint o f competi
tion among the members o f the Printers5Board of Trade.” The loss
o f contracts and the inability to continue business are due to the fact
that it can not secure union labor. I f the employing printers have
restricted competition among their members, so that only one person
w ill submit a bid at the agreed rate, this reduces the number o f com
petitors with which the Overland Co. must contend. “ I f plaintiff
could secure union labor and continue to operate its business, the
activities o f the Printers’ Board of Trade in restricting competition
among its own members would not injure plaintiff in the least.” In
the absence o f any proof of special damage to his business or prop
erty by reason o f the agreement, the plaintiff is unable to maintain
any action against the Printers’ Board of Trade. “ The statute gives
no right to injunctive relief to a private person in a case o f violation
of the provisions of the act, but such a person is merely given a right
to recover double damages.”
The injury resulting from the refusal of union workers to engage
with the company affords no ground for injunctive relief nor for
damages. Therefore the action of the court below adverse to all
claims o f the publishing company was affirmed.
E mployer’ s L iability —A dmiralty— H ydroaeroplane a V e s s e l
A dmiralty J urisdiction— Reinhardt v. Newport F lyin g

w ith in

/Service Corp. et al., Court of Appeals of New York {November
22, 1921), 133 Northeastern Reporter, page 371.—Aksel E. Rein-.

TEXT AND SUMMARIES OF DECISIONS.

hardt was employed in the care and management o f a hydroaeroplane
which was moored in navigable waters at Brooklyn, N. Y. He was
injured by the propeller while engaged in turning the plane about
in an attempt to prevent it from being wrecked. He brought pro
ceedings under the workmen’s compensation law to recover for the
injury. From an award o f compensation the employer and the in
surance company appealed. The award was affirmed in the appellate
division o f the supreme court and the defendants again appealed.
In the court o f appeals the order of the lower court and the award o f
the industrial commission were reversed and the claim dismissed.
The reason for this action was because it was determined that a hy
droaeroplane while on the water was a vessel. This being so, the juris
diction of admiralty would exclude the jurisdiction of the commis
sion as decided in the case o f Knickerbocker Ice Co. v. Stewart, 253
U. S. 149, 40 Sup. Ct. 438. (Bui. No. 290, p. 302.) The main ques
tion decided then was that Reinhardt was injured by a vessel. In
arriving at this conclusion Judge Cardozo speaking for the court
said:
Any structure used, or capable of being used, for transportation
upon water, is a vessel. The conclusion might be more dubious if the
word “ vessel ” had been interpreted grudgingly and narrowly. The
fact is that it has been interpreted liberally and broadly. It in
cludes a canal boat drawn by horses; a bathhouse upon floats; a ra ft;
a scow; a dredge; anything upon the water where movement is pre
dominant rather than fixity or permanence. A hydroaeroplane,
while in the air, is not subject to the admiralty, or so at least we may
assume, because it is not then in navigable waters, and navigability
is the test o f admiralty jurisdiction. A hydroaeroplane, while afloat
upon waters capable o f navigation, is subject to the admiralty, be
cause location and function stamp it as a means o f water transpor
tation. Such a plane is, indeed, two things—a seaplane and an aero
plane. To the extent that it is the latter, it is not a vessel, for the
medium through which it travels is the air. To the extent that it is
the former, it is a vessel, for the medium through which it travels
is the water.
E mployers’ L iability — A dmiralty — J urisdiction— L atte F isher
of pen v. Peter J . Fase <& Co ., Supreme Court of Michigan

m an — F

( June 17 1922)^ 188 Northwestern Reporter, page 51^1.—Peter J.
Fase & Co. were engaged in commercial fishing out o f Grand
Haven, Lake Michigan. On March 21, 1921, while returning from
the fishing grounds and when some 15 miles offshore an employee
on their boat was missed. No one saw the accident, but it was pre
sumed that he was washed overboard as there was a considerable
sea running. Compensation was awarded the dependents o f the de
ceased, and the case was taken to the supreme court for review. The
question before the court was as to whether recovery could be had

e m p l o y e r s ' l ia b il it y .

under the State workmen’s compensation act or whether the case was
one which was within the admiralty and maritime jurisdiction. The
court, through Chief Justice Fellows, vacated the award and held
that the occupation was maritime, and that therefore the court was
bound by the rulings of the United States Supreme Court, which
were held to decide that the decedent’s contract o f employment was
maritime in its nature, to be performed only on the high seas, and
that therefore the workmen’s compensation act was not applicable.

E mployers’ L iability — A dmiralty— N egligence— V iolation op
S tatutory P rohibition— Wilks v. United Marine Contracting Corp.,

Supreme Court of New Yo rk , Appellate Division ( February 3,
1922), 192 New York Supplement, page 521.—John Wilks was em
ployed by the company named to paint a steamship moored to a dock
in the city of New York. Through the collapse of the scaffold on
which he stood he fell some 20 feet to the flooring or deck and was
injured. It was in evidence that the scaffold collapsed on account of
the use by the riggers of a defective timber which broke under the
weight o f the plaintiff and his companion. In the trial court in
structions were given to the effect that the injured man must prove
negligence on the part of his employer and the absence of con
tributory negligence on his part; and that while the law imposed the
duty o f furnishing a safe place the jury might consider whether or
not the riggers who constructed the scaffold were fellow servants of
the injured man, so that he could not recover.
Exceptions were made to these instructions, and from a verdict
for the employer the case was appealed to the appellate division.
Judge Kelly, who gave the opinion, regarded the appeal as bringing
up a question “ hitherto undecided as far as I can ascertain, whether
the safety provisions [of the New York labor law] are available to a
plaintiff in an action based on the common-law remedy save to
suitors [by the Judicial Code] in maritime cases where the common
law is competent to give it.” The New York statute prohibits the
furnishing o f a scaffold that is unsafe, unsuitable, or improper or not
so constructed as to give proper protection to workmen. This was
held by the court to be only declaratory o f the common law and
within the grant of rights given by the provisions o f the Judicial
Code referred to. Cases in admiralty were cited in which the Supreme
Court had held that the New York compensation law was so wide a
departure from the maritime law that it could not be allowed to take
effect when applied to admiralty cases. On the other hand, changes
that do “ not work material prejudice to the characteristic features of
49978° —23----------- 7

TEXT AND SUMMARIES OF DECISIONS.

the maritime law ” are permitted to the States. (Western Fuel Co. v.
Garcia, 257 U. S. 233, 42 Sup. Ct. 89; see Bui. No. 309, p. 83.)
Judge Kelly then said:
But I have grave doubt whether the safety requirements in section
18 o f the New York labor law (Consol. Laws, c. 31) come within
the ban o f these decisions. The plaintiff in this case is not assert
ing a claim against the ship or the shipowner. He is suing his im
mediate employer, a domestic contracting corporation, for damages
occasioned by its failure to supply him with a safe scaffold. W e are
not considering any such novel, unusual statutory liability as that
imposed by the workmen’s compensation law. We are not consider
ing any change in the liability o f the master under employers’ lia
bility provisions o f the State labor law. The question in the case
at bar relates solely to labor law, section 18, which enlarged the duty
o f the master or employer and extended it to responsibility for the
safety of the scaffold itself and thus to want o f care in the details of
its construction.
He then pointed out that neither the plantiff nor his fellow worker
had any part in the construction o f the scaffold which they had been
using, so that fellow service could not be inferred. The opinion
concludes:
I can not see how this humane statutory requirement expressive o f
the public policy o f the State o f New York, .designed for the pro
tection o f the life and limb o f laborers upon scaffolds, introduces any
new principle o f substantive law. True, it is enforceable only in the
State o f New York, but in its application to an action by an em
ployee residing in the city of New York working for the time being
in painting a vessel moored to a dock in the city o f New York,
against his employer, a domestic contracting corporation, I can not
see how it offends any of the essentials referred to by Mr. Justice
McReynolds in Western Fuel Co. v. Garcia, supra. It does not in
terfere with the harmony o f uniformity o f the maritime law because
the litigants are both residents of the State of New York. The de
fendant is not a shipowner whose vessel may be in one jurisdiction
to-day and in another to-morrow. The plaintiff is not a sailor or
one o f a crew who may assert alleged causes o f action in divers juris
dictions. Employers o f labor in all jurisdictions are required by the
common law to furnish their employees with safe tools and appli
ances and scaffolds. In the State o f New York the statute, section 18,
declares the rule, and as to work performed in that State prohibits
employers from furnishing unsafe scaffolds. It takes from the em
ployer no defense which he might plead in any court in any jurisdic
tion save that it makes the duty absolute and prevents him from
pleading that the scaffold was built by a fellow servant o f the injured
employee, and that he, the master, is thus discharged from liability.
I can see nothing in the enforcement o f this safety requirement
between the litigants in the case at bar which “ contravenes the essen
tial purpose expressed by an act of Congress or works material preju
dice to the characteristic features o f the greater maritime law or
interferes with the proper harmony and uniformity of that law in its
international and interstate relations.”

e m p l o y e r s ' l ia b il it y .

The judgment o f the court below was therefore reversed and a
new trial granted on account of the erroneous instructions.
E mployers’ L iability — A ssumption of R isk — C ontributory N eg
ligence—Belkin

v. Skinner & E d d y Gory., Supreme Court of
Washington ( March IS ,91922), 201+ Pacific Reporter, page lOlfi.—•
Frank Belkin, a riveter, was an employee of the Skinner & Eddy
Corporation, and was engaged in work on a vessel being constructed
by it. During the course of the employment he was injured and
brought a suit for damages because of the injury. The facts brought
out at the trial show that three persons worked with him, one who
heated the rivets to a white heat, one who inserted the hot rivets
into prepared holes, and one who held a heavy bar against the rivet
while he with an automatic machine did the driving. The machine
was operated by compressed air and had a recoil similar to a gun.
To maintain his balance the riveter must brace himself by putting
one foot behind the other. On the day of the injury the company
foreman directed Belkin to rivet the beading around one of the
hatches. Belkin asked the foreman if the necessary staging was
prepared, and he received an affirmative reply. It was customary
for the staging upon which the riveter would stand to consist of
three planks each about a foot wide placed side by side. Belkin com
menced his work, and in the course of the duties he got in a position
where the planking was only two feet wide, and when he stepped
back for the purpose of bracing himself his foot went out beyond
the planking and he fell several feet and was seriously injured. A
verdict was returned in favor o f the injured man, and from a judg
ment based on this verdict the company appealed, contending that
Belkin fell as a result o f his own carelessness, or if the staging was
defective he should have known it, and consequently assumed the
risk o f working on it. The supreme court through Judge Bridges
answered these contentions as follow s:
Unquestionably the general rule is that the master must furnish his
servant with a reasonably safe place in which to work; but it is
equally well established that the servant may not blindly rely upon
this duty o f the master, for he must use some care and caution for his
own welfare and protection. In other words, the servant will be
held bound to observe those defects in a place where he is put to work,
-which are perfectly open and obvious, and which a person of ordi
nary care and caution, working under like circumstances, would
observe. But whether in a particular instance a servant must as a
matter o f law observe the defects and appreciate the dangers depends
to a large extent upon the particular circumstances surrounding him
and the opportunity given him to make such observations.
When we take into consideration, as we must, the rapidity with
which the respondent’s work must be done, and that each rivet must

TEXT AND SUMMARIES OF DECISIONS.

be driven while it is very hot, and that the instant he has completed
driving one rivet his companions have placed another in position to
be at once driven, and that the rivets in this particular instance were
about 6 inches apart, and that the work was being done by an instru
ment which required the riveter to almost constantly give his atten
tion to the work he was doing, we can not say as a matter o f law that
the respondent was bound to see the alleged defects in the staging.

E mployers’ L iability —A ssumption of R isk — L atent D anger—
D uty of E mployer—Hines, Director General of Railroads, v. Th u r

man, Court of Appeals of Kentucky ( June 20, 1922), 21$ South
western Reporter, page 857.—Clarence Y. Thurman, 36 years of age,
went to work for a railroad company under Federal control on
November 17, 1917, and remained in its employ until April 22, 1918.
He did general work and after a short time became a boiler maker’s
helper. It was his duty as such to assist the boiler makers and handy
men in tearing down and repairing oil boilers. He was ordered to
work with one Waterbury, a handy man. Shortly after beginning
the work a sliver of steel flew from the hammer used by Waterbury
and struck Thurman in the eye, destroying the sight. He brought
an action against the Director General of Railroads to recover dam
ages for personal injury. Evidence was introduced tending to show
that Thurman had never seen slivers fly from cold stay bolts, upon
which they were working at the time. He admitted having seen
boiler makers and handy men wear goggles for the protection of
their eyes, but he had never seen any helper wear goggles nor had
he been warned o f the danger or told that it was necessary for him
to wear goggles. It was shown that prior to Thurman’s employment
there was a rule requiring helpers to wear glasses, but there was no
evidence that Thurman had notice o f such a rule or that such a rule
was in force during the time o f his employment.
A judgment was rendered in favor o f Thurman amounting to
$1,600. An appeal was taken from this judgment. The court of
appeals had before it the duty o f employers and employees under the
facts stated. Thurman contended that the railroad was negligent in
not warning him of the danger so that he might take appropriate
steps to protect himself. On the other hand, the railroad company
contended that as the risk was one o f those ordinarily incident to the
business in which Thurman was employed, the company was under
no duty to warn him o f the danger. The judgment o f the lower
court was affirmed on grounds stated by the court through Judge
Moorman, in part as follow s:
It may be conceded that there is no duty to warn o f a danger in
cident to a risk assumed by the servant. The doctrine o f assumed

EMPLOYERS 9 LIABILITY.

risk proceeds on the theory that the servant has actual or implied
notice o f the risk. Hence, if the danger is known and appreciated
by the servant, or it is so obvious that a person of ordinary prudence
in his situation would have knjwn and appreciated it, he assumes
the risk and no warning is required. On the other hand, if the
danger is latent and unknown to the servant but is known to the
master or discoverable by the exercise of ordinary care, it is the duty
o f the master to warn the servant of the danger so that he may take
the necessary steps to protect himself against it.
The court had the question before it as to whether the danger was
so obvious to a person of ordinary prudence in Thurman’s situation
as to charge him with knowledge and appreciation o f the danger,
or whether it was a latent and hidden danger within the rule requir
ing the master to give warning of it. The court held that the evi
dence was sufficient to make it a question for the jury and under the
circumstances the judgment should be affirmed.

E mployers’ L iability — A ssumption of B i s k — N egligence—
F ailure to P rovide S afety D evices— G oggles— Emerson Branting-

ham Co . v. Growe , Supreme Court of Indiana {February 17, 1922)^
1SS Northeastern Reporter, page 919.—Arthur C. Growe was an
employee in the factory o f the Emerson Brantingham Co. During
the course o f his employment he was ordered by the foreman in
charge to assist other employees to trim up some steel braces for
gas-engine wheels. While thus employed a sliver o f steel flew from
the brace and struck Growe in the right eye, destroying the sight of
the eye. A suit for damages was brought against the employer,
which resulted in a judgment for $4,800 in favor of the injured man.
This judgment was affirmed in the appellate court. (Emerson
Brantingham Co. v. Growe, 125 N. E. 223, Bui. No. 290, p. 112.) The
case was then appealed to the supreme court of the State. The com
plaint o f Growe stated that the foreman knew that slivers would
fly and strike the workmen in the face and eyes in cutting the steel
with a cold chisel and sledge hammer; that he, Growe, did not
know this fact and that the foreman negligently failed to warn him
o f the danger; that he had never assisted in the work of trimming
braces before; and that by the use o f goggles the accident could have
been prevented.
The supreme court found in these allegations sufficient basis for a
suit at common law as against a general demurrer. However, the
effort to avoid the defense o f assumed risks was not successful, as it
was not shown that the foreman had given instructions as to the
method o f doing the w7ork. Other reasons were also found for a

TEXT AND SUMMARIES OF DECISIONS.

reversal o f the decision o f the appellate court, which are, in part, as
follow s:
Averments that it was practicable for appellant to supply appellee
“ with goggles or some other device 55 to prevent the dying slivers
from striking him in the eyes do not make out a cause o f action for
negligence. There is no statute which requires goggles to be fur
nished by the employer, the facts alleged do not show that any duty
to supply them had been imposed by custom or contract, either ex
press or implied, and no such duty was imposed by the common law
in the absence o f a contract.
There were some averments as to what “ it was necessary 55 to do
in trimming up the braces, and there was an averment that appellee
did not know the pieces of steel would fly nor that the work was
dangerous. But it was not alleged that the foreman nor anybody
directed appellee how to do the work, nor that the foreman or the
appellant had knowledge of his alleged ignorance o f the danger.
Merely giving a general order to trim up the braces, under the cir
cumstances alleged, was not actionable negligence, either at common
law or under the employers5 liability act. The court erred in over
ruling the demurrer to the second paragraph o f the complaint.
The record shows that at the trial appellee testified that when the
foreman ordered the braces to be trimmed he added that “ we are in
a hurry for them,55 and in his brief on appeal appellee stressed that
statement, and argued that appellant had shears for this work, but,
as they were in use and the foreman was in a hurry, he called ap
pellee to assist in trimming the braces in a manner appellee had
never seen used. It is fair to infer that a similar argument was
made before the jury. A ll this was a material variance from the
allegations o f the complaint, and should not have been permitted.
There was no allegation that there was a safe way to do this work,
and that the appellant negligently chose a dangerous method. A
party can not allege one state o f facts and recover upon proof o f
facts that are altogether different.
The case was therefore remanded for a new trial.

E mployers5L iability — A ssumption of R isk — S afe

F ijA c e -— Ring-

ham Mines Co. v. Bianco, United States Circuit Court of Appeals,
Eigh th Circuit ( October 18, 1921) , 276 Federal Reporter, page 513.—
James Ozzello was an employee of the Bingham Mines Co., in Utah,
during the month o f October, 1914. His work consisted o f loading
ore cars with ore and waste in the underground workings o f the mine.
The ore cars were moved into and out of the drift by means o f an elec
tric motor. The electric power for the motor was furnished through
a trolley wire which was extended at a height o f 5 feet and 2 inches
above the floor level at a place where Ozzello was working. On
October IB his body was found beneath the electric wire under condi
tions indicating that he had come into contact with the wire and had
been killed by the resulting shock. The administrator of the estate,

EMPLOYEES 9 LIABILITY.

Domenico Bianco, brought an action against the company and was
awarded damages for the benefit o f the widow and minor child o f
Ozzello. The case was taken up to the circuit court o f appeals on
w rit o f error. The company’s defense was based on the theory o f
assumption o f risk by the employee. This contention was upheld
and the judgment reversed. Judge Youmans, in delivering the opin
ion o f the court, noted that the deceased was 29 years of age; that he
had worked in the mine six months; and that he had been warned of
the danger from the wire. The question, said the court, “ is whether
in view o f his age, intelligence, and experience Ozzello knew o f the
existence o f the wire; that it transmitted a current of electricty; and
that he appreciated the danger that would result from coming in con
tact with it.” The court came to the conclusion that the employee
had assumed the risk of the employment, and the judgment was
reversed and the case remanded for a new trial.

E mployers’ L iability — A ssumption of R isk — S afe P lace— I m
H ealth — Newberry v. Central of Georgia R y. Co.,

pairment of

United States Circuit Court of Appeals, F ifth Circuit (November
11* 1921), 276 Federal Reporter, page 337.—M. J. Newb.rry was a
telegraph operator in the employ of the Central of Georgia Railway
Co. On March 3, 1917, he was sent to Slaughters, Ala., to take up
the duties o f a telegraph operator at that place to direct or assist in
the direction o f trains. He apparently went to the place without
any knowledge of the condition of his future working place. He
arrived at Slaughters after dark and immediately took up his duties
there. His place of work was a box car. The weather was cold and
it was raining during the night. As the roof o f the car was leaking,
making the floor wet, and as there was no fuel for the stove, he
worked through the night in a cold and wet place, which resulted,
he alleged, in the permanent impairment o f his health. He brought
action for damages against the railroad. The United States District
Court for the district entered judgment for the railroad company
upon several grounds, one o f which was that the plaintiff assumed
the risk involved in using a leaky, wet, and cold box car as a tele
graph office. This judgment was reversed in the circuit court. In
dealing with the question o f whether the employee assumed the risk
o f the employment the court, through Judge Bryan, said:
We are o f opinion that it was error to hold, as a matter of law,
that plaintiff in error assumed the risk of injury to his health either
by going to Slaughters or by remaining at work there in the leaky,
wet, ancl cold box car which he used as a telegraph office. There was
evidence that he went without any knowledge whatever of the condi
tion o f the box car. He had the right to assume that he would be

TEXT AND SUMMARIES OF DECISIONS.

furnished a safe place to work. Immediately upon his arrival he
proceeded to the work assigned him, as he was in duty bound to do.
The duties o f a telegraph operator in directing or assisting in the
direction o f trains are important, and the failure to perform them
may, and frequently does, result in collisions o f trains and the con
sequent destruction of property and injury and death. In the situa
tion which confronted plaintiff in error it can not be said, as a
matter o f law, that he should have neglected his important duties
and have concerned himself instead about his own personal comfort,
nor that a reasonable man would not have done as he did. Therefore
the question o f assumption o f risk was for the jury to decide.
The judgment is reversed and the cause remanded for a new trial.

E mployers’ L iability — A ssumption of R isk — S afe P lace and
A ppliances — I nterstate C ommerce — C ompany P roducing and
T ransporting G as—Smith v. United Fuel Gas Co., Supreme Court

of Appeals of West Virginia ( A p ril 25, 1922), 112 Southeastern Re
porter, page 205.— The United Fuel Gas Co. was engaged in West V ir
ginia in the production o f gas and its transportation within this State
and to other States. Bud C. Smith, an employee o f the company,
was injured while at work cleaning and repairing one of the engines
o f the company that was used in a compressor plant in driving the
gas across the State line into Ohio. The facts connected with the
injury show that eight machines were used for this purpose, four being
run at one time; that Smith, with another workman, was engaged in
repairing one of the engines that was not in use, and in doing so it
became necessary that he go beneath i t ; that the men were replacing
nuts, and in doing so, because of an obstruction by a pull rod, a cold
chisel and hammer were used instead o f a wrench; while doing this
a sliver o f steel from the nut flew into his left eye, penetrating the
ball and inflicting a severe injury. Smith brought a common-law
action for damages for the personal injuries based on the alleged
negligence o f the company to furnish a safe place to work. The
company, deeming itself not to have been within the scope o f the
workmen’s compensation act, did not set up the act, but denied the
negligence and set up the common-law defenses of assumption of
risk, contributory negligence, and the fellow-servant rule. A verdict
was returned in favor o f Smith, but it was set aside by the court and
judgment was rendered in favor o f the company. The case was taken
to the supreme court of appeals by writ of error, and in that court
the judgment was affirmed.
The president of the court, Judge Poffenbarger, rendered the opin
ion. It was held that Smith was engaged in interstate commerce at
the time o f the injury, and that, common-law defenses applying, he
assumed the risk of the employment, and therefore could not recover

EMPLOYEES 9 LIABILITY.

damages. The court, in its opinion with reference to the interstate
character o f the work, said:
The engine on which the plaintiff was working when hurt was a
part o f the compressor plant by which the gas was driven across the
State line into Ohio. It was not a mere movable instrument. On
the contrary, it was a very large, permanent machine, being about 60
feet long and at least 5 feet in diameter. Its use in interstate busi
ness, when running, is admitted. It was bought and installed for
such use and is never diverted to any other. Its occasional idleness
is merely incidental to its operation and its use in both kinds of
business at the same time. Repair of machinery is as much an inci
dent o f its operation as is its depreciation by use. In the large sense
o f the terms, its cleaning, repairing, and adjustment are parts of its
use. Such use, however, might not suffice in itself, but it is enlarged
and made conclusive by the fact that this engine while undergoing
treatment still remained a part of the permanent plant, which, as a
whole, was in constant use, and the cleaning, repair, and adjustment
amounted to work on the plant. Hence the work in which the
injury occurred was manifestly a part of the interstate business of
the defendant, and the trial court properly allowed interposition
o f the common-law defenses invoked in the trial, assumption of
risk, contributory negligence, and imputation of the negligence, if
any, to fellow servants.
Referring to the application of the common-law defenses the court
said in part:
There was no element of danger in the place in which the plaintiff
was working when injured. Nothing above could fall upon him.
Below him there was no pit into which he could fall. He was not
within reach o f any running machinery by which he could be struck
or caught. Nowhere about him were there any operations threaten
ing or working danger or injury to him. The unfortunate blow
emanated from his own work, though he may not have negligently
caused it. In this connection, no more is intended than the assertion
that it did not emanate from the place of work and was not caused
by it. To set or tighten a nut with a cold chisel and hammer in any
other place, with a like distance between the nut and the eye, would
expose the operator to a like injury. The danger, therefore, was
not in the place but in the manner in which the work was done.
That taken into consideration, the place was not dangerous within
the meaning o f the law. The master is not required to furnish the
employee an absolutely safe place of work. It suffices that he fur
nish him a reasonably safe place.
A suggestion that a chisel or bar long enough to permit the driv
ing of the nut from a standing position by the side of the engine was
a practicable and safer instrument or appliance than the one used
in the work in question, if sustained by the evidence, does not make
the defendant guilty of negligence in the omission to provide it. It
does not appear to have been an implement in general use for such
purpose. On the contrary, the proof is that it was improvised and
used by a workman or workmen of the defendant at another one of
its plants. Conceding it to have been safer, and known to the defend
ant, it was not negligent in its failure to provide the best and safest

TEXT AND SUMMARIES OF DECISIONS.

implement for the purpose. The measure o f its duty was reasonable
diligence to provide reasonably suitable and safe tools and ap
pliances.
E mployers’ L iability — C ourse of E mployment — A ccidental
D ischarge of P istol— American R y. Express Co. v. Davis et al.,

Supreme Court of Arkansas {February 27,1922), 288 Southwestern
Reporter, page 50.—Elmer Davis, a boy 16 years o f age, was in the
employ o f the American Railway Express Co. acting in the capacity
o f platform man. He was under the direction and supervision o f
Glyde Garrison, the depot agent and money clerk. The company
furnished Garrison with a pistol to use while on duty in the pro
tection o f valuables and it was used by the agent in meeting trains
and transporting valuable matter. Printed instructions were given
with respect to the careful use o f the weapon. Garrison was a young
man and was a good friend of Davis. On May 9, 1920, the two
young men met uptown and rode down to the station and just before
noon they went to a nearby restaurant and ate their midday lunch.
A fter leaving the restaurant they engaged in play which continued
after they reached the railroad station. The time for the arrival
o f a passenger train was approaching and as the play had been going
on for some time Garrison desired to bring it to an end. He told
Davis to prepare for the train and went to the office but Davis per
sisted in carrying on the frolic. Davis procured a rug, rolled it up
and was pushing it through a window in front of Garrison. A t
" this time Garrison attempted to end the play by frightening Davis
and for this purpose took the pistol and pointed it toward the
window. It was accidentally fired while in his hand. The bullet
struck Davis, who cried out in pain, and on examination it was
found that the bullet had struck him in the side. He lived but a few
days, dying from the effects of the wound. The next o f kin brought
an action for damages because o f the death. A t the trial the court
instructed the jury that if the company furnished the pistol to its
agent, Garrison, for use in connection with the performance of his
duties, and that Garrison, while in the express office, was guilty o f
negligence in handling the pistol and thereby caused the injury and
death o f Davis, the company was liable, even though the pistol was
not used in connection with the performance of any duty for which
it had been placed in the hands of the agent. A verdict for $15,000
damages favored the plaintiffs, but the company appealed to the
supreme court. That court reversed the judgment o f the trial court,
holding that the instruction o f the judge to the jury was erroneous.
Chief Justice McCulloch rendered the opinion o f the court in which
the law was stated to be as follow s:

EMPLOYERS, LIABILITY.

“ The test o f liability of a master for a tort committed by a servant
is whether the act complained of was done in the prosecution
o f the master’s business—not whether it was done during the ex
istence o f a servant’s employment.”
It is certainly not correct to state the rule to be that, merely be
cause a substance or instrumentality is dangerous, the master is
responsible for any use the servant makes of it. In order to render
the master liable the substance or instrumentality must be in Yise by
the servant while discharging his duties to the master, or the injury
must result from the inherent dangers lurking in such substance
or instrumentality, and not from the voluntary act o f the servant
in using it for his own purposes.

E mployer’ s L iability — C ourse of E mployment — I nju ry to
T hird P arty by E mployee— D uty of S electing E mployees—

Davis v. M errill, Supreme Court of Appeals of Virginia ( June 15,
1922), 112 Southeastern Reporter, page 628.—E. S. Merrill was ad
ministrator o f the estate o f Claudia Harrell, and sued the Director
General o f Railroads to recover damages on account of her death.
The death was the result of a wound inflicted by shooting, which was
the act o f a gatekeeper at a road crossing in Norfolk, Ya. The de
ceased was one of a party which arrived at the crossing about 1
o’clock in the morning and found the gate down, though no train
was passing or approaching. After repeated calls and requests,
the gatekeeper, one Ford, opened the gate under protest, and almost
immediately thereafter fired three shots at the automobile in which
Miss Harrell was riding. One o f these struck her, causing death.
The suit for damages went in the plaintiff’s favor in the circuit
court o f the city of Norfolk, from which this appeal was taken.
The administrator based his claim on two grounds, one that the
killing arose out o f and was a part o f a transaction between the
injured person and the railroad company, in which the gateman,
Ford, was acting for the company within the scope of his employ
ment. The second was that in employing Ford there was not the
exercise o f sufficient care, as otherwise he would have been known
to be an incompetent and dangerous person to entrust with duties
o f the character in question.
The court o f appeals affirmed the judgment of the court below,
Judge West delivering the opinion. The general principles involved
in the first point were laid down in the following quotation there
from :
Was Ford acting within the scope o f his employment when he
fired the fatal shot?
I f a person, acting for himself, willfully and maliciously inflict
an injury upon another, he is liable in damages for such injury.
And there is no reason why a master should be permitted to turn

TEXT AND SUMMARIES OF DECISIONS.

his business over to servants who have no regard for the public wel
fare and thereby escape the responsibility which he would otherwise
have to bear. It is manifestly right and just that both corporations
and individuals be required to answer in damages for wanton and
malicious assaults inflicted upon others by their servants, while act
ing within the-scope of the servants’ employment and duty, and it
matters not whether the act of the servant is due to a lack o f judg
ment, the infirmity o f temper, or the influence o f passion, or that the
servant goes beyond his strict line o f duty and authority in inflicting
such injury; and the authorities so hold.
Numerous cases were then cited, and the conclusion reached that—
When the foregoing authorities are applied to the facts in the
instant case, it is manifest that the defendant is liable for the act o f
its agent in inflicting the injuries complained of.
Taking up the lack of care in employing Ford, it was shown that
he had been discharged from this same railroad company years before
for drunkenness, and “ for a number o f years immediately preceding
the adoption of state-wide prohibition in Virginia was widely known
in police circles o f Norfolk as a common drunkard.” He was said
also to suffer from a form o f insanity superinduced by persistent
drunkenness and was easily incensed and would become dangerously
angry on slight provocation. On this point the court said:
We think it has been sufficiently shown supra that, whether Ford’s
homicidal act was due to drunkenness, ungovernable temper, or
malice, he was at the time o f its commission engaged in a service
which was in the scope o f his employment.
The record shows that Ford was employed by W. R. Crawley, who
had charge o f all the defendant’s watchmen around Norfolk, upon
the recommendation o f S. A. Coleman, who held a position as watch
man with the Norfolk & Western, and made no inquiry of anyone else
concerning Ford’s past record, habits, or general fitness for the posi
tion. Had he looked up his record with the Norfolk & Western
showing his discharge for drunkenness, and made some inquiry o f
the members o f the police force at Norfolk, he would probably not
have given him the position.
For the foregoing reasons, we are o f the opinion that there is am
ple evidence to support the verdict o f the jury and that the judgment
complained o f is plainly right and should be affirmed.

E mployers’ L iability — C ourse *of E mployment — I ntentional
I nju ry by F oreman to E mployee— Zaitz v. DraJce-Williams Mount

Go., Supreme Court of Nebraska ( December 1, 1921), 185 Northwest
ern Reporter, page IfH .—John Zaitz while in the employ o f the de
fendant company took a position in one o f the tanks under construc
tion at their manufacturing plant which the foreman thought dis
advantageous. The foreman directed him to take a different posi
tion, which Zaitz appeared to resent, whereupon he was discharged

EMPLOYERS, LIABILITY.

by the foreman. While putting on his coat preparatory to reporting
to the company’s office to be paid off he was struck by the foreman
and severely injured. It was claimed that Zaitz was angered be
cause o f his discharge and called the foreman a vile name. An
action for damages was brought against both the company and the
foreman. It was contended as a defense that the assault was not
made in connection with the work or wfith a view of disciplining
Zaitz. The court instructed the jury to return a verdict in favor of
the company after the plaintiff’s evidence went in but allowed the
case to proceed as against the foreman. An appeal was taken from
that ruling to the supreme court of the State. Chief Justice Morris
sey rendered the opinion of the court, affirming the action o f the
lower court and holding that the employer was not liable for the
injury, as he neither directed nor authorized the assault, and there
was no proof that the foreman was a person o f violent temper or
dangerous character, so that the employer knew, or should have
known, o f his infirmity. The court in part said:
Was the act o f the foreman in making the assault within the scope
o f his employment or so connected with his duty as to make his
employer responsible for his act? It is well settled that, when the
act complained o f is within the scope of the agent’s employment,
the master may be liable if the servant performed the act with a view
to the service for which he was employed, and in such cases whether
the servant did the act with a view to his master’s service or to serve
his own private ends is generally a question of fact for the jury.
The foreman had authority to direct the actions of the employees
in and about the performance of their work and to discharge them
e^1 -r with or without explanation. As the representative of the
employer, he had, of course, the right to maintain order and preserve
discipline, but this did not carry with it the right to inflict corporal
punishment.
The ruling as to the nonliability o f the employer was therefore
affirmed.
E mployers’ L iability — E mployee— T emporary A ssistant of E m
0 . 8. W. R. R. Co. v. Burtch , Supreme Court

ployee— Baltimore c&

of Indiana (March 14,1922), 134 Northeastern Reporter, page 858.—
On October 24,1917, the Baltimore & Ohio Southwestern Kailroad Co.
was engaged in operating a steam railroad in the State o f Indiana.
Ed Jackson, a conductor in the employ o f the railroad, was in charge
o f a freight train which, on the date named, had in one o f its cars
a machine weighing 2,000 pounds, known as an ensilage cutter, and
destined to the town of Commiskey. Jackson and the three brakemen on the train were unable to unload the machine at the station
safely. Thereupon J ackson requested one Gurney O. Burtch to assist
him. In compliance with the request, Burtch proceeded to assist the

TEXT AND SUMMARIES OF DECISIONS.

men in the work. While thus engaged one o f the planks used in un
loading the machine broke and the machine fell upon him, seriously
and permanently injuring him. Burtch brought an action against
the railroad for damages for personal injuries, based upon the negli
gence o f the railroad in failing to provide men sufficient to unload
the machine, failure to furnish safe appliances with which to per
form the work, and other acts o f negligence. The trial court re
turned a verdict and judgment in favor o f the injured man, and the
railroad company took the case up to the supreme court o f the State
on a writ o f error. Two o f the questions before the court were:
Whether or not Jackson was authorized to employ assistants, and
whether Burtch was entitled to the same protection afforded other
servants o f the company.
The supreme court decided both questions in favor o f Burtch and
affirmed the judgment o f the lower court. Judge Myers rendered the
opinion o f the court, and in his decision with reference to the ques
tions above noted, he said:
While the facts relied on by appellee in this paragraph as a basis
for recovery present, in form, a new question to this court, yet the
decision thereof does not require that we invoke a new principle.
Generally speaking, it is true the master is not bound nor is he under
any duty to those who perform services for him at the request o f a
servant engaged to do a given work, other than not to willfully in
jure him. Obviously this rule ordinarily must obtain; for, if it were
otherwise, the master might be involved in risk and responsibility
imposed by the act o f another without his authority or consent.
However this may be, the outstanding facts o f this paragraph take
this case without that rule and within the rule permitting a servant
to bind his master in case o f some unforeseen contingency or existing
emergency. It may be conceded that Jackson had no general au
thority to employ or discharge assistants, but, from all the facts and
circumstances here shown, Jackson, in the performance of his duty
o f unloading the machine, represented appellant. It also appears
that appellant failed to furnish him sufficient man power and appli
ances reasonably necessary for him to accomplish the work safely.
It may be argued with much force that an emergency employee is not
in the employ o f the master in a sense to create the relation o f master
and servant; but, when it appears that by reason o f some unfore
seen contingency or existing emergency reasonably requiring tempo
rary assistance to do work safely, the servant in charge thereof as
the representative o f the master in that particular may employ tem
porary assistants, as in this case, and his action in that regard will
bind the master on the principle o f implied authority so to do, the
person thus employed thereby, for the time, is entitled to the same
protection as is the servant or agent upon whose request he ren
dered the assistance, even though he may not be entitled to recover
wages. [Cases cited.]
A t the time appellee received his alleged injuries Jackson was in
charge o f the train and its crew. He was seeking to accomplish an

e m p l o y e r s ’ l ia b il it y .

end—the unloading o f the machine—which was within the scope of
his alleged employment.
When appellee accepted Jackson’s request and entered upon the
work, he had the right to expect that Jt: *kson, as the representative
o f appellant, would use ordinary care for his safety, and certainly
so in so far as he might be affected by the use of appliances fur
nished. The fact that there may have been other and more safe ways
and means o f handling the machine will not shield appellant from
the negligence here charged, for it was appellant, through Jackson, and not appellee, who chose the place and adopted the appliances
and the manner of doing the work.

E mployers’ L iability — E mployee— T emporary A ssistant of E m
E a rly v. Houser <& Houser, Court of Appeals

ployee— V olunteer—

of Georgia ( December Ilf, 1921 109 Southeastern Reporter, page
91If,.—Houser & Houser operated a public ginnery with the assistance
o f Jack Williams. R. M. Early brought a bale of seed cotton to the
establishment to have it ginned. While unloading his cotton, a belt
running from a countershaft to a pulley on the gin slipped and ran
off o f the pulley on the countershaft, causing the gin to stop, and
the countershaft continued to revolve at a very rapid and increased
speed. Williams, who was operating the gin alone, requested Early
to assist him in putting the belt back on the pulley o f the counter
shaft. This he did, but in so doing he came very near the counter
shaft and his clothing was caught upon an unguarded and projecting
set screw on the shaft, and as a result he received an injury, on ac
count o f which he brought suit for damages. The defendant con
tended there was no right to recover as Early was merely a volun
teer. The contention was upheld and the case was appealed. The
court o f appeals, speaking through Judge Hill, held that “ there can
not be a legal liability except upon a breach of some legal duty.”
It was held there was no legal duty owing Early as he was a volun
teer and as such assumed the risk. In this connection the court said:
The allegations of the petition show that the plaintiff was a volun
teer, and, in undertaking to render a voluntary service to the em
ployee o f the defendants who was operating the gin, he did so at his
own risk. These allegations, most favorably considered, show that
Williams, who was in charge o f the gin, was operating it simply as
an employee o f the defendants, and as such employee had no author
ity to employ assistance.
The allegations of the petition are not sufficient to show such an
emergency as would authorize the plaintiff voluntarily to interfere
and undertake the risk o f working with the dangerous revolving
machinery. The fact that an employee in charge of the gin re
quested him to do so did not warrant him in doing so. Certainly
his act was not one the responsibility for which he could legally^ im
pose upon the owners o f the gin, who were under no obligations

TEXT AND SUMMARIES OF DECISIONS.

whatever to him in so far as his meddling with the machinery was
concerned. The relation of master and servant was not created by
this unauthorized request o f the employee in charge of the gin.

E mployers’ L iability — E mployment of C hildren — I nterstate
C ommerce— S tate R egulation—St. Louis-San Francisco R y. Co. v.

Gorily, Supreme Court of Arkansas {M ay 29, 1922), 21^1 South
western Reporter, page 365.—The State of Arkansas in its regula
tion o f child labor makes provisions governing the employment of
minors under the age o f 16 years. Hal Conly, a minor 15 years o f
age, was in the employ o f the St. Louis-San Francisco Railway Co.
During the course of his employment, unloading lumber that had
been shipped in interstate commerce, he was injured because of the
manner in which the lumber was loaded and because of the hazard
ous nature of the work and the inexperience of youth. He brought
an action for damages against the railway company and recovered
a judgment. An appeal was taken to the supreme court of the State
on the ground that the trial court erred in their instruction to the
jury that if they found that the boy was under 16 years of age at
the time he was injured, and if they found that the injuries com
plained o f were the direct result of such unlawful employment, then
judgment should be rendered for Conly. The question before the
court was as to the application of the State child labor law. The
supreme court, speaking through Judge Wood, held that Conly
was engaged in interstate commerce at the time of the injury and
that therefore the Federal law alone would apply to this case. In
reversing the judgment o f the lower court, it was said:
Congress, through the Federal Employers’ Liability Act, has
covered the entire field o f liability of interstate carriers to their
employees for. injuries sustained bjr them while engaged in such
commerce. It is unquestionably within the power of Congress, under
the commerce clause of the Constitution, to prohibit carriers en
gaged in interstate commerce from employing minors under ascertain
age and to make such carriers liable for any injuries sustained by
such employees while engaged in interstate commerce. Congress
having such power and having entered upon such field of legislation,
State legislatures covering the same subject matter are as much
bound by the silence o f Congress as by what it has expressly de
clared within the scope o f its power. As is pungently expressed by
the Supreme Court o f the United States in one of its cases: “ W e
may not piece out this act o f Congress by resorting to the local
statutes.” It is therefore wholly beyond the power of the State
legislature to make carriers engaged in interstate commerce civilly
liable in damages for injuries to their employees while engaged in
such commerce for the violation o f some police regulation of the
State. This power o f Congress, under the commerce clause of the
Constitution, does not in any manner trench upon or dislodge the

EMPLOYERS* LIABILITY.

police power of the States over their own local and internal affairs
which are reserved to them under the tenth amendment to the Con
stitution.
E mployers’ L iability — E mployment of C hildren— M isrepresen
A ge— C ontributory N egligence— R eceipt of C ompensa
tion P ayments — Volpe v. Hammersley Mfg. Co., Court of Errors

tation of

and Appeals of New Jersey {November H , 1921), 115 Atlantic Re
porter, page 665.—John Volpe, a minor under 16 years of age, was
illegally employed at a cylinder printing press and suffered a frac
ture and crushing o f an arm, for which the trial court allowed dam
ages in the amount of $15,000. An appeal to the supreme court o f the
State led to an affirmation of the judgment, but with a reduction of
the amount to $10,000. The defendant again appealed.
The plaintiff had exhibited employment papers, showing his age to
be above 16, but they were not his, and were used for purposes of
deception. It was said by the supreme court, quoted on this appeal:
One o f the contentions upon which the defendant rests its right to
have the verdict set aside is that the plaintiff is estopped by his fraud
from claiming that he was under the statutory age, and that there
fore his only remedy (if he has one) is that provided by the work
men’s compensation act; but this contention has been settled ad
versely to the defendant by the cases of Feir v. Weil, 92 N. J. L. 610,
106 Atl. 402, and Leskow v. Liondale Bleach, etc., Works, 93 N. J. L.
4, 107 Atl. 275.
The defense o f contributory negligence was also urged, but this was
said to be settled by the cases above cited.
The legislature has by inference declared that children who are too
young to be put at work in factories, upon machines like that upon
which plaintiff was working, can not be guilty of contributory negli
gence, nor can they be held to have assumed the risks of the work.
The above statement and conclusions are quoted by Judge Swayze,
who delivered the opinion of the court of errors and appeals. Then
taking up the claim that the employer should be held absolved of
liability because the boy had shown a properly framed certificate of
age, Judge Swayze said:
This argument assumes that the defendant was justified in accept
ing the certificate itself as conclusive proof without any inquiry as to
the identity of the plaintiff with the person named in the certificate.
I f the same argument were made to exculpate the paying teller o f a
bank for cashing a check without any further proof than the mere
name o f the identity of the payee with the person presenting the
check, the fallacy of the argument would be obvious. I f less care is
required in employing children below the prohibited age in a factory,
it must be because reasonably prudent men accept the certificate of
49978°—23----- 8

100

TEXT AND SUMMARIES OF DECISIONS.

age without identification; but that is a question o f fact to be decided
by the jury.
It was suggested that compensation payments had been made to the
boy on account o f the injury, by which he would be estopped from
collecting damages in an action at law. This the court “ was unable
to agree with.”
The doctrine o f estoppel, if otherwise applicable, ought not to be so
applied as to make it possible for the parties to override the legisla
tive policy. I f the plaintiff has obtained money under false pretenses,
the defendant can recover it in a proper action. The judgment o f the
supreme court in this case is affirmed with costs.
E mployers’ L iability —E mployment of C hildren — M isrepre
A ge— R ecovery for D eath — International A gricul

sentation of

tural Gorp. v. Cobble, Supreme Court of Tennessee ( May /,

1922), 21fi Southwestern Reporter, page 295.— Chapter 57 of the
Acts o f 1911 for the State o f Tennessee is an act to regulate the
employment o f minor children. It was made unlawful for any “ pro
prietor, foreman, owner, or other person to employ, permit, or suffer
to work any child less than 14 years o f age in, about, or in connection
with any mill, factory, or workshop,” and by the amendment o f
chapter 77 o f the Acts o f 1917 it was further provided that it would
be unlawful for any proprietor, etc., to permit any child between the
ages o f 14 and 16 years to work in, about, or in connection with the
places above mentioned unless the employer keep on file an employ
ment certificate. A penalty was provided for the employer and the
parent or guardian who permitted a child to be employed in violation
o f the law. Ligon Cobble was a boy between the ages o f 14 and 16.
He had been employed by the International Agricultural Corpora
tion, but was discharged when the company was informed that he
was under the age o f 16 years. After working some time in a powder
plant at Nashville, his father, Dock Cobble, presented him to the
superintendent of the defendant corporation, stating, as the company
contends and the father denies, that the boy was then over 16 years
o f age. The father, who was in the employ o f the company, told
the superintendent that if the boy was not employed he (the
father) would quit and go where they both could get employ
ment. The boy was reemployed and put to work shoveling sand in
the plant. On January 29,1919, the driving belt o f an engine, which
was some distance from where the boy was working, broke without
any known cause. This caused the engine to be released and run
away, which in turn caused the large drive wheel to fly to pieces.
One o f these pieces struck the boy, causing such injuries that he died
shortly thereafter. The father, acting as administrator o f the boy's

em ployers

l ia b il it y

101

estate, brought a suit for damages against the employer. He ob
tained a verdict and judgment in the trial court for the sum of $2,125.
The company appealed to the court o f civil appeals and obtained a
reversal o f the judgment. Cobble then took the case to the supreme
court o f the State, where the judgment of the appellate court was
affirmed. The question decided was, whether or not the company,
having failed to obtain an employment certificate, is liable to the
plaintiff for the death o f the boy if it was found that the company
was induced to employ the boy by the representation o f the plaintiff
that his son was at the time o f the employment 16 years o f age, plain
tiff being the sole beneficiary o f any recovery that might be had in
the action for the death o f his son. In the decision of the case Judge
Hall, speaking for the court, said in part:
The law forbids that one shall profit by his own misconduct, fraud,
or deceit. It has been repeatedly held by this court that a person
whose negligence has proximately contributed to the death or injury
o f another can not recover in an action for his benefit for such death
or injury.
Plaintiff was guilty of a misdemeanor if he permitted or suffered
his son to be employed by defendant to work in violation o f the pro
visions o f said act. If, therefore, he did do so he should not be
entitled to recover, because his act was necessarily a direct, proxi
mate, and contributing cause of his son’s injury and death.
The judgment of the court o f civil appeals was affirmed, and the
case was remanded for a new trial.

E mployers’ L iability — E mployment of C hildren — S treet O c
D uring S chool T erm— Cincinnati Times

cupations— E mployment

Star Co. v. Clay's Administrator, Court of Appeals of Kentucky
( June 28, 1922), 248 Southwestern Reporter, page 16.—The statutes
o f Kentucky in regard to child labor forbid the employment of “ any
child under 14 years of age in any business or service whatever dur
ing any part of the term during which the public schools o f the
district in which the child resides are in session” (sec. 331a. 1 ); or,
under 16, in work “ injurious to the health or morals o f such child ”
(sec. 331a. 9, clause 24); or, if under 14, in street trades in cities of
the first, second, or third class (sec. 331a. 15).
The Cincinnati Times Star Co. had in its employ a boy 10 years of
age as a newsboy in London, Ky. The boy attended school and
delivered papers outside o f school hours. He contracted pneumonia
and died, and the father of the boy brought an action for damages
against the company because o f the death of his son, claiming that
the disease was due to his unlawful employment. Judgment amount
ing to $3,000 was rendered in favor of the father, and the company
appealed. The father contended that the employment o f the de

102

TEXT AND SUMMARIES OF DECISIONS.

ceased was unlawful because o f section 331a.l, because the contract
for his services was entered into during a term o f the public school
he attended regardless o f whether his services were to be performed
while school was actually in session. The court granted that recov
ery was warranted if the employment was unlawful and the proxi
mate cause o f the death, but it did not so construe the statutes.
Judge Clarke, speaking for the court, construed the section discussed
as follow s:
In our judgment neither the language employed nor the evident
legislative purpose sustains such a construction. They are careful to
say, and they must have meant, that such children must not be em
ployed in any service during any part o f the term during which
school was in session.
The public school this boy attended was not in session at any time
he was engaged in delivering papers for defendant, and it is not even
shown that it was in session when the contract for his services was
executed, if that were material, which is not true. The services were
performed during the term o f school which began in September and
ended in May or June, but not during any part o f the term while
school was in session.
The contention was raised by the father that the employment of a
boy under 14 years o f age to sell newspapers was unlawful, and from
this the court framed the question o f whether forbidding it in the
three larger classes o f cities impliedly permitted such employment in
the country and in towns and cities o f other classes, which was
answered in the affirmative, concluding that—
The ordinary dangers o f using the streets o f a city of the fourth,
fifth, or sixth class in selling papers, which dangers are not mate
rially different from those encountered by children in going to and
from school or doing simple errands in such cities, are not o f the kind
contemplated by clause 24 o f section 331a, subsection 9.
The judgment of the lower court was therefore reversed and the
cause remanded for proceedings consistent with this opinion.

E mployers’ L iability — E mployment of C hildren — V iolation
S tatute— C ontributory N egligence— I ndependent C ontrac

tor— Waldron

v. Garland Pocahontas Coal Co., Supreme Court of
Appeals of West Virginia (November 8, 1921), 109 Southeastern
Reporter, page 729.—Philip Waldron was a boy between the age o f 13
and 14, who had been sent to his grandfather’s home to be sent to
school. The grandfather, II. F. Short, obtained employment for the
boy in the defendant’s mine upon representation that the boy was 16
years o f age or over. A statement to that effect, apparently signed by
the boy’s father, was given to the manager of the mine, and the boy

EMPLOYERS 9 LIABILITY.

103

was given employment as a trapper in the mine. Short later visited
the boy’s father and spoke o f the employment. The father said that
he did not sign a statement that the boy was over 16 years o f age.
Short notified the foreman o f the mine that the boy’s father advised
that the boy be sent to school. The foreman notified the assistant
foreman to immediately discharge the boy. This he said he did at
noon, but the boy continued to work during the afternoon under his
direction. The foreman paid off the boy at 5 o’clock and told him
he was not to work any more. Later that night, however, he took a
pony to the mine to an alleged independent contractor named Thomp
son. The foreman saw him going into the mine and again told him
not to go, but was told by the boy that he would take the pony to
Thompson and come right out. During the evening he fell and a
loaded car passed over his body, causing death, and suit was brought
by the boy’s father for damages. The company’s defense was con
tributory negligence on the part o f the father and nonemployment of
the boy. A verdict and judgment favored the plaintiff and the com
pany appealed. In the supreme court the judgment was affirmed
in an opinion written by Judge Lively. It was held that the evi
dence was not such that the father could be charged with contribu
tory negligence as a conclusion o f law. To the contention o f the mine
owners that the boy was in the employ o f Thompson, an independent
contractor, the court said:
Thompson employed and discharged his help, a strong index o f the
relation of an independent contractor, but not conclusive. Thompson,
when asked if he had absolute control over driving the entry, replied
that he was under the mine foreman’s instructions; but that he had
absolute control of hauling the slate out of the mine, employing and
discharging the men, buying the explosives, and everything of that
kind, until “ they ” gave him further orders, and “ they didn’t give
me no further contrary orders about that.” I f a right o f control is
in the employer, it is immaterial whether he actually exercises it.
I f Thompson, in charge o f the work and representing defendant,
hired the boy (which he denies) defendant is liable; or if Thompson
permitted the boy to work in the mine (which is not disputed),
the liability is not changed. The statute says:
“ No child under the age o f 16 years shall be employed, permitted,
or suffered to work in any mine, quarry, tunnel, or excavation.”
This inhibition applies to the owner of the mine, as well as to
all other persons. It is his duty to see that no such child is employed
or permitted to work in his mine. He can not avoid this duty by
attempting to shift it upon another. This defendant had control
o f its mine as a whole, and was operating it. The driving o f the
entry was a mere incident of the operation, a detail; and when it
permitted, either advertently or inadvertently, this child to work
therein, it became civilly responsible for injuries resulting to him
therefrom:

104

TEXT AND SUMMARIES OF DECISIONS.

E mployers’ L iability —N egligence— C haritable C orporations—
U nlaw ful E mployment of M inor—Emery v. Jewish Hospital

Assn.) Court o f Appeals of Kentucky (December 16 1921)) 236
Southwestern Reporter page 577.—Andrew Emery, 15 years o f age,

was employed by the Jewish Hospital Association, in violation o f the
child labor law, as an elevator operator. During the course o f the
employment the boy received an injury caused by the negligence o f
the association, which resulted in the loss o f a toe. A suit for dam
ages was brought, which went against the claimant, and an appeal
was taken to the court o f appeals. Discussing the question that
arose, Chief Justice Hurt stated that in Kentucky charities created
for the purpose o f operating hospitals are not liable for damages
for the wrongful acts o f their employees to any person whatsoever.
It was held, however, that an employee will be liable in damages to
any person whom his negligent act, in the course o f his employment,
may injure. The reasons for this exemption from liability in other
jurisdictions were stated to be (1) public policy; (2) their funds
are held in trust and no diversion o f them will be permitted; (3)
they are agencies o f government and entitled to the government’s
immunity; (4) the doctrine o f respondeat superior does not apply.
The reason for the exemption in the State o f Kentucky was stated
to be the second in the above classification. The court stated that
the public policy denying the right to divert the funds donated
specifically for purely charitable uses had legislative sanction. The
claimant contended that the child labor law making it unlawful to
employ one under 16 years o f age to operate an elevator declared
the public policy o f the State. In answer to this contention the court
said, in part:
The statute itself, however, only imposes a penalty upon the one
violating it by the employment of a youth under the age o f 16 years
in the operation o f an elevator. The courts have construed it to
deprive the employer o f any defense, such as contributory negli
gence and assumed risk, when damages are sought against him for
an injury to such a servant, incurred in such an unlawful employ
ment, and have made the fact o f his unlawful employment a negli
gence sufficient to sustain a recovery. Neither the statute nor the
courts have made any employer liable who was not theretofore
liable to a servant for negligent injury. A charitable corporation
was not liable before the enactment o f the statute for a negligent
injury inflicted by a manager, servant, or employee upon another
employee or other person, and the statute has not changed the lia
bility in that respect.
The employer, which a youth under the prohibited age and injured
in a prohibited occupation, could have sued for a negligent injury
before the enactment o f sec. 331a, was the servant o f a charitable
corporation, who did him the injury and not the corporation, and
against such individual he yet has a cause o f action, governed by the

EMPLOYERS ’ LIABILITY.

105*

principles which the courts have applied to a violation o f that stat
ute, and under that statute against the person who employed him,
and the servants o f a charitable corporation, who set a youth to an
unlawful occupation, may have imposed upon them the penal conse
quences o f the statute, in addition to the civil liabilities incurred.
The judgment is therefore affirmed.

E mployers’ L iability — N egligence— C ontributory N egligence—
D u ty of E mployer—Mackay Telegraph-Gable Go. v. Armstrong,

Court of C ivil Appeals of Texas ( A p ril 12,1922), 21fl Southwestern
Reporter, page 795.— Young G. Armstrong was employed by J. H.
Cash, foreman in the employ o f the Mackay Telegraph-Cable Co.
Armstrong was an inexperienced day laborer, and with two other
men was under the direction, control, and authority o f Cash. In
the course o f their employment, unloading a car, one o f the men
working in the car moved the material to the door, while the other
two men would lift it down and carry it to a place o f deposit. After
removing several boxes, Cash, who was standing near by, told the
two men that the last box would be a little longer than the others
but that they could handle it. Relying upon his statement, the men
endeavored to lift it down, but it was too heavy for them and it fell
and struck Armstrong on the leg, injuring him severely. He brought
an action for damages against the company because o f the injury
and recovered a judgment in the trial court, whereupon an appeal
was taken. The company contended that no negligence had been
shown on its part, but the court o f civil appeals affirmed the judg
ment o f the lower court and said, speaking through Judge F ly :
The propositions contended for are that the work was as open to
appellee as to appellant, and he knew better than appellant his
strength and capability to lift heavy objects, and appellant would
not be liable for his failure to comprehend a patent danger. A p
pellee was not charged with a knowledge o f the weight o f the box
and had no opportunity to test its weight. He was in a position
where he could not lift the box and arrive at an estimate of its
weight, but he and his companion were compelled to rely upon the
agent o f appellant, who was their foreman, as to the weight o f the
box, and it was too late when they received it for them to measure
its weight, because it crushed the strength o f appellee and fell to the
ground. Appellee knew nothing whatever about the weight o f the
b o x ; the agent of appellant was charged with the knowledge of its
weight, and appellee was authorized to rely upon his assurance that
two men could handle the box. It is only in cases where the knowl
edge o f the servant is equal to that o f the master and the danger is
open and patent that the latter will be absolved from a charge o f
negligence in not warning the former.

106

TEXT AND SUMMARIES OF DECISIONS.

E mployers’ L iability — N egligence— C ontributory N egligence—
G uarding D angerous M achinery — V iolation of O rdinance— Un

rein y. Oklahoma Hide Go., Supreme Court of Missouri, Division No.
% (August %8,19% % ), %44 Southwestern Reporter, page 9%4>.—One Un
rein was employed as a laborer by the Oklahoma Hide Co., which was
engaged in the business o f buying and selling hides in Kansas City.
On October 15, 1918, in the course o f his employment at the com
pany’s warehouse he was assisting one Tilley, the company’s fore
man, in moving hides from the first floor to the basement. Working
together, they had taken a truck loaded with hides from the first
floor o f the building to the basement. Unrein proceeded to unload
the truck, and Tilley left him to get another truck load o f hides.
A fter completing the unloading o f the truck Unrein ran it into the
elevator shaft, thinking the platform o f the elevator was resting on
the basement floor. The bottom o f the elevator shaft was so con
structed that it was 2 inches below the level o f the floor, and built so
that when the elevator was at the bottom o f the shaft the floor o f the
elevator would be level with the floor o f the basement. The elevator
was operated by an electric motor, which was used only in lifting, as
the elevator descended by gravity and was controlled by means o f a
brake. When the elevator was at the bottom of the shaft light was
admitted down the shaft from the skylight; but when the elevator
was above the basement this light was cut off. The light in the base
ment was very dim. The elevator shaft was fenced off on two sides
only. One electric light was burning near the elevator. Two em
ployees entered the elevator above, intending to descend into the
basement. When they had descended a portion o f the way a scream,
was heard, followed by a crash before the elevator could be stopped.
On examination it was found that Unrein had been sitting on his
empty truck placed in a position squarely under the elevator and
that he had been crushed by it. Upon being released from the ele
vator he exclaimed, “ My G o d ! my back is hurt; I thought I was on
the elevator.” The injuries he received resulted in instant paralysis
and his death four days later. His widow brought an action for dam
ages for the death o f her husband, based upon the negligence of the
company. A trial resulted in a verdict for $8,000 in favor of the
widow. A n appeal was taken to the supreme court. The widow con
tended that due to the dim light and the absence of automatic gates
the deceased ran his truck into the shaft without noticing that he
was not on the elevator. The company admitted that there was
substantial proof o f its negligence in these particulars, but contended
that if the deceased had exercised due care he would have known that
the elevator was not at the basement. However, had the elevator
been protected by automatic gates properly operated (as were re
quired by the building code o f Kansas City), it would have been

em ployers ' l ia b il it y .

107

impossible for the deceased to have pushed his truck into the space
usually occupied by the elevator without discovering the elevator
was not there. The court said that the question before it was
u Whether the absence of light from the skylight would have warned
a man o f ordinary prudence, possessing the experience o f the de
ceased and in the exercise of reasonable care for his own safety, that
the elevator was not resting on the basement floor.” Through Judge
David E. Blair this defense of contributory negligence was decided
in favor o f the widow, as appears from the following quotation:
Statutes which require guarding o f dangerous machinery and that
automatic gates be furnished at elevator entrances are enacted for
the very purpose of protecting those coming within their provisions
against their own thoughtless acts in the performance o f their ordi
nary duties. They contemplate that at times such persons will fail
to observe the precautions necessary to protect them in the absence
o f guards, gates, etc. They can not be held to be guilty of negligence
as a matter o f law for the doing or the failure to do many acts
which would bar recovery if such acts were done in connection with
machinery or appliances not coming within the provisions o f such
statutes. The ordinance required automatic gates. The purpose of
such requirement was to keep persons from falling into the shaft or
being struck by or caught in the elevator. The only danger in the
basement came from the descending elevator—the very thing which
caused deceased’s injuries. His act in entering the shaft while the
elevator was on the first floor was therefore of the character the
ordinance requiring gates was designed to protect him against, and
he came within the rule above announced. The ordinance was de
signed to protect heedless acts on his part liable to be committed by
men o f ordinary prudence under a like situation.
The judgment was therefore affirmed.

E mployers’ L iability — N egligence— C ontributory N egligence—
L ast C lear C hance —Miller v. Canadian Northern R y. Co., United

States Circuit Court of Appeals, Eighth Circuit (June 2, 1922),
281 Federal Reporter, page 664.—Oscar O. Miller was a brakeman
o f many years’ experience, who for four months prior to December
12, 1916, had been employed on a mixed train running between Big
Valley and Vegreville, in the Province of Alberta, Canada. About
6 o’clock in the morning of that day, while it was still dark, he was
engaged in making up his train to go to Big Valley. In order to
make it up it was necessary to gather into it many cars located on
different tracks in the railroad yards and to move other cars in order
to reach them. Miller had a list of the cars his crew were to put in
the train. It was his duty to find the cars, turn the switches, and
by signals and orders direct the engineer when and in which direc
tion to move his engine and when and where to stop. It became

108

TEXT AND SUMMARIES OF DECISIONS.

necessary to switch the engine on a siding to get some cars to put
them in the train. Miller signaled the engineer to move after he
had thrown a switch. He threw the wrong switch, and in his error
walked down the same track as that to which he had shunted the
engine. Thinking that he was not on the same track, he did not
look backward. It was customary for the engineer to ring the bell
when signaled to move his engine, but this morning as the engine
moved forward the bell was not rung, and Miller, not noticing how
close it was, was struck and his leg broken. He brought a suit
against the railroad company to recover damages for the injury.
A trial was had, and after the evidence was in, the court directed
the jury to return a verdict for the defendant on the ground that
the evidence conclusively proved that Miller was guilty of negligence
which directly contributed to his injury. The court of appeals
affirmed this decision, saying even if the engineer saw him walking
down the track he would be warranted in presuming that he would
step aside in due time to escape injury; and that it was his own
action and failure to exercise reasonable care that caused his injury.

E mployers’ L ia b il it y — N egligence — D angerous I nstrumen
E mployee— K in g v. Smart et al.,

talities — V olunteer— M inor

Supreme Judicial Court of Massachusetts (November 23,1921), 133
Northeastern Reporter, page 562.—On September 24, 1919, Elmer
King, a boy 12 years o f age, was in the employ o f Theodore B.
Smart. Among other things it was the duty o f the boy to go in and
out o f a shed in which the employer kept tools. In the shed there
was also stored some dynamite. King was ignorant o f the nature
o f the explosive and while in the shed he picked up a piece o f the
dynamite which looked like a tool and thinking it was a tool that
needed polishing up he put it to the grindstone. An explosion fol
lowed which maimed the boy’s hand and injured him in other ways.
Suit was brought against the employer to recover damages. The
employer demurred to the declaration filed by the plaintiff, claiming
that the declaration showed contributory negligence, that the act
causing the injury was outside the scope o f the employment, and that
there was no actionable negligence on his part. The demurrer was
sustained and the case was appealed to the supreme court o f the
State. That court affirmed the action o f the lower court in an
opinion rendered by Justice Pierce, which states the reasoning o f
the court as follow s:
The demurrer to the first count o f the declaration was sustained
rightly. While it is alleged that the plaintiff was a young boy o f
the age o f 12, in the employ of the defendants when injured, and

e m p l o y e r s ' l ia b il it y .

109 !

that he had the duty in the course o f his employment to go in and
out o f the shed where the defendants had stored dynamite or other
explosives, it nowhere alleges that the plaintiff as a servant of the
defendants had any duty to perform which required that he should
touch, handle, or move the dynamite or explosive from the place
where it had been stored. The count does not allege that the dyna
mite or explosive untouched and undisturbed was likely to explode
and thereby cause harm to the plaintiff or to others unless such per
sons were warned o f its presence in the shed and o f its dangerous
nature, nor does it allege that any duty o f the plaintiff to the de
fendants brought him in such proximity to the explosive that it
was reasonably probable that the plaintiff would pick up the dyna
mite and polish it as a tool on a grindstone. In the circumstances
set out in the first count the plaintiff was injured as the result of his
own trespassing misconduct without which the dynamite would
have remained an innocuous thing. The defendant upon the facts
and according to common experience and the usual course o f events
oould not reasonably be expected to anticipate that a servant or
licensee on the premises would mistake dynamite or an explosive for
a tool o f the defendants’ business, and would outside his employment
voluntarily undertake to improve its condition by polishing it or
otherwise. As a master the defendants owed no duty to the plain
tiff as a servant, while acting outside the scope of his employment,
to instruct and warn him of the perils of place and instrumentali
ties which were incidental to the use o f the premises or the conduct
o f the business o f the master thereon; and there is no allegation o f
willful or wanton misconduct of the defendants in their relation to
the plaintiff as an individual.

E mployers’ L iability — N egligence— D angerous M achinery —
S tatute K equiring G uards— a O ther E stablishm ent ” —Stoll v.

Frank Adam, Electric Co., St. Louis Court of Appeals, Missouri
( A p ril 4 , 1922), 21fi Southwestern Reporter, page 2Jf£.—A statute o f
the State o f Missouri provides that:
The belting, shafting, machines, machinery, gearing, and drums
in all manufacturing, mechanical; and other establishments in this
State, when so placed as to be dangerous to persons employed there
in or thereabout while engaged in their ordinary duties, shall be
safely and securely guarded when possible, etc.
Meta Stoll was in the employ o f the Frank Adam Electric Co. as
a clerk or demonstrator o f appliances sold by the company in their
store in the city o f St. Louis. On December 12, 1918, in the course
of her employment, and after she had stooped to plug in the socket
to make an electrical connection with a Thor washing machine, she
rose, and as someone was attempting to pass her, she turned, and as
she did so the unguarded rollers of the wringer attached to the ma
chine caught her hand and injured it severely. She brought an
action fo r damages against her employer, based upon the above.

110

TEXT AND SUMMARIES OF DECISIONS.

statute. The evidence at the trial showed that it was possible to
guard the rollers o f the machine and that similar machines were
guarded in laundries. As she was unsuccessful in the trial court,
an appeal was taken. The question of law before the court on ap
peal was whether or not the employer in the retail sales business
comes within the provisions of the statute above and whether the
girl was guilty o f contributory negligence. The appellate court de
cided both questions in favor of the employee, reversed the judgment
o f the circuit court, and remanded the case for a new trial. Com
missioner Nipper, who recommended the judgment adopted by the
court, states the reasons for the decision in part as follow s:
Our supreme court, in Cole v. North American Lead Co., 240 Mo.
397, 144 S. W. 855, stated that this section of our statute was “ one
o f the wisest and most humane statutes to be found upon our statute
books, and should be given a broad and liberal interpretation, because
it is remedial and highly salutary.”
Defendant contends that the phrase “ and other establishments ” in
the connection it is used was intended to embrace places o f the same
general character as those enumerated, thus calling for the applica
tion o f the rule o f ejusdem generis. In view of what has been said
by the courts o f this State in construing this statute and the object,
purposes, and intent o f the legislature in its enactment we would not
be justified in placing this narrow and constrained construction
upon it.
As to the defense o f contributory negligence it appears that plain
tiff was required to use this narrow aisle while in the course of her
ordinary duties, and that while she was in the aisle for the purpose
o f demonstrating this machine to a prospective customer some other
person in the store attempted to pass her in this narrow passageway.
In attempting to permit this person to pass plaintiff in some man
ner thrust her hand toward this machine and her fingers were caught
in the rollers thereof, and she received the injuries in question; and
under such facts as are disclosed in this record we would not be
warranted in holding plaintiff guilty of contributory negligence as a
matter o f law.
E mployers’ L iability — N egligence— E ffect of D enial of C o m
S uit for D amages— Katzemnaier v. Doeren, Supreme

pensation on

Court of Minnesota ( December 23,1921), 185 Northwestern Reporter,
page 938.— Fred Katzenmaier was employed at the defendant’s fac
tory in St. Paul, Minn. On February 2,1914, he slipped and fell on
a cement walk leading into defendant’s factory from a public street,
which had negligently been permitted to become covered with danger
ous formations of ice. He brought proceedings for compensation
because of injuries resulting from the fall, but it was denied because
the accident did not arise out o f and in the course o f his employment.
He then brought a suit against his employer based on negligence.
The employer demurred, claiming that the prior decision in the com

EMPLOYERS, LIABILITY.

I ll

pensation proceedings was determinative. Katzenmaier contended
that this defense was not good in law, and the court upheld this view.
An appeal was taken to the supreme court o f the State, where the
judgment o f the trial court was affirmed. It was held that a judg
ment denying a workmen’s compensation claim was not a bar to an
action for negligence. Judge Holt rendered the opinion o f the court
in which he said in part:
Where the parties in an ordinary action for damages are within
the workmen’s compensation act, and upon the trial facts are found
which show that plaintiff is not entitled to damages, but is clearly
entitled to compensation from a defendant employer the court may
give that relief. But the reverse does not hold true. Negligence is
the foundation for a recovery in the ordinary action for damages.
It is o f no consequence in a workmen’s compensation proceeding.
In the latter there are matters which become decisive for or against
a recovery, but which may not be of much significance in the ordi
nary personal injury action.
The finding has no bearing on the question of defendant’s alleged
negligence in this action.
E mployers’ L iability — N egligence— E mployee of I ndependent
C ontractor— L iability for I njuries— Craig v. Riter-Conley M fg.

Co., Supreme Court of Pennsylvania ( January 3,1922), 116 Atlan
tic Reporter, page 167.—Harry N. Craig was employed by the
Hughes-Foulkrod Co. as a carpenter in the erection of an addition to
the factory o f the Riter-Conley Mfg. Co. While so engaged he was
struck and permanently injured by a moving crane, and brought
this suit in his own right and for the use of his immediate employer.
Judgment was in his favor in the court below and was affirmed on
this appeal. Craig was at work in a place where he would be struck
by the craile in its normal operation, but the workmen had been
promised protection by the manufacturing company and proper
warnings had been given of the approach of the crane for the three
days preceding the accident. No such warning was given at this
time. The crane operator could have seen Craig but excused his
failure to do so by stating that his duty required him to look down
at the floor, and that he had no knowledge of Craig’s presence in
the place o f danger.
The opinion of the court was given by Judge Walling, who made
the statement summarized above, and continuing, said:
The only complaint of appellant is that the trial court should
have decided the case in its favor as a matter of law, and that we can
not sustain. The work being done was for the mutual benefit of all
parties, and plaintiff was there by the implied invitation of the de
fendant company, which was therefore bound to use reasonable care
for his safety. While the evidence was conflicting, it sustains a

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TEXT AND SUMMARIES OF DECISIONS.

finding o f defendant’s negligence, although the jury might have
found the facts otherwise. The contractors men were known to be
working about the girder from time to time, and, in view o f this
fact, the failure o f the crane operator to glance in that direction
while moving along the track, or to give any warning, were circum
stances for the jury to consider on the question o f his neglect.
The noise o f the factory and o f the work upon the new building
naturally prevented plaintiff from hearing the approach of the
crane, as his stooped position while driving in the post prevented him
from seeing it. He was bound to be vigilant for his own safety;
yet, in view o f the promise of protection and its fulfillment thereto
fore, his presence on the girder in the performance o f his work can
not convict him o f contributory negligence as a legal conclusion.
Under the circumstances the finding o f the jury as to the facts was
held to control, and the judgment was affirmed.

E mployers’ L iability — N egligence— G uard F or D angerous M a
to E ye — P urpose of S tatute— Mansfield v.

chinery — I n ju ry

Wagner Electric Manufacturing Go., Supreme Court of Missouri,
Division No. 2 (June 8, 1922), 21$ Southwestern Reporter, page
lfiO.— Section 6798 o f the Revised Statutes o f 1919, as amended by
Laws o f 1919, page 443, provides:
Every person, firm, or corporation using any polishing wheel or
machine o f any character which generates dust, smoke, or poisonous
gases in its operation, shall provide each and every such wheel or
machine with a hood, which shall be connected with a blower or
suction fan o f sufficient power to carry off said dust, smoke, and
gases and prevent its inhalation by those employed about said wheel
or machine.
While in the employ o f the Wagner Electric Manufacturing Co.,
Louis Mansfield was engaged in polishing a large metal casting by
the use o f a movable emery wheel which was not protected in the
manner prescribed in the statute above. Particles either from the
casting or from the wheel injured one o f Mansfield’s eyes, whereupon
an action was brought for damages, and the statute was pleaded to
sustain the action. The trial court directed a verdict for the
company, and an appeal was taken. The supreme court affirmed
the action taken by the trial court, citing several authorities. A
case in which recovery was refused under somewhat similar facts
was quoted as holding that protection created by a statute intending
to prevent the feet from being caught and held could not be the
basis o f an action in which the hands and arms had been caught.
(Rutledge v. R. Co., 110 Mo. 312, 19 S. W . 38.)
A fter reviewing several other cases, the court said that even in
the absence o f the decisions in point, it was satisfied from the plain
language o f the statute that the injury received, even though it

em ployees ' lia b ility .

113

would not have occurred but for a violation of the statute, was not
one for which recovery could be had.
Judge David E. Blair said:
The plain purpose of the statute is to prevent injury to the health
o f operators o f emery wheels and other polishing wheels, due to
the necessity o f breathing into their lungs fumes, smoke, dust, and
poisonous gases generated by the friction between such polishing
wheels and the surface to be polished. The statute was designed to
promote the health o f employees operating such machines by pro
viding a means o f carrying off such smoke, dust, and gas by forced
drafts of air or by suction. Admit for the purposes of the case that
defendant violated the express provisions of the statute requiring
a hood and blower or suction fan; admit that the plaintiff’s injury
was received in consequence of defendant’s failure to install such
hood with blower or suction fan; still the legislature was not legis
lating to protect employees against the danger of particles flying
into their eyes, but for an altogether different purpose; its object
was not to regulate the duty o f employers for all purposes, but only
for one particular purpose, to wit, to 'prevent inhalation of smoke,
gas, and dust by those employed about such wheels.

E mployees’ L iability — N egligence— I nju ry to E mployee op
T hird P arty— J oinder of S ubrogated E mployer—W orkmen ’ s C om
pensation — Gentile v. Philadelphia & R. R y . Co., Supreme Court of

Pennsylvania ( May 15, 1922), 118 Atlantic Reporter, page 223.—
This was an action to recover damages for the death o f one Gentile,
employed by the Brooke Iron Co. Gentile’s duties required him to
unload cars o f stone at a trestle, and while so engaged he received
fatal injuries due to the alleged negligence o f the defendant railway
company which hauled the stone. The widow and her children had
secured an award under the compensation law o f the State, the widow
also suing the railroad company for the negligent injuries. In view
o f the compensation award, which under the act gave the employer
a right to subrogation, the widow joined the iron company as a party
plaintiff in the present proceedings. This was objected to, but the
court ruled that the railroad company “ was in no manner prejudiced
thereby; its liability was simply to the surviving widow and minor
children, and was neither increased nor diminished by that section
o f the workmen’s compensation act.” Continuing the court said :
It is o f no moment to defendant whether the amount recovered
from it goes to the widow or the iron company. The suit as orig
inally brought was by the widow, on behalf o f herself and minor
children, and by the E. & G. Brooke Iron Co., claiming $10,000;
later, and after the statute o f limitations had run, the trial court
properly allowed plaintiff to amend the record by adding “ for the
use o f the widow and the iron company, as their interests,” may
appear and also, by more specifically claiming for the widow and

114

TEXT AND SUMMARIES OF DECISIONS.

children for the financial loss resulting to them by the death o f the
deceased. The cause o f action and legal plaintiff (the widow) re
mained the same and defendant was deprived o f no right.
The railroad company claimed that the provision o f the compen
sation act referred to was unconstitutional, but this contention was
not considered, the court saying:
As defendant is not hurt by the above mentioned subrogation pro
vision in the workmen’s compensation act, it is not necessary to pass
upon its constitutionality; for a statute will not be declared invalid
at the instance o f one not injured thereby.
A judgment in favor o f the plaintiffs was therefore affirmed.

E mployer’ s L iability — N egligence— O ccupational D isease—
W orkmen ’ s C ompensation L aw — Trout v. Wickwire Spencer Steel

Corp., Supreme Court of New Y o rk , Special Term (June 6,
1922), 195 New York Supplement, page 528.—This was a proceed
ing at common law to recover damages for injuries sustained by the
employee, Trout, by reason o f chlorine gas poisoning. The em
ployer contended that the workmen’s compensation law o f the State
furnished an exclusive remedy. Trout claimed injuries by reason
o f the negligence o f the defendant in permitting him to work for
many months in its filtration plant, becoming poisoned by its failure
to inform him o f the dangerous condition resulting from the
chlorine gas that was used. This allegation o f negligence, and of
the nature o f the injury was said by Judge Rodenbeck to “ take
the case out o f the category o f accidental injuries due to gas
poisoning, coming within the purview o f the workmen’s compensa
tion law.” Cases were cited in which compensation had been al
lowed, as Odell v. Adirondack Electric Power Co. (233 N. Y. 686,
119 N. E. 1063), in which an electrician working in the cellar under
a boiler room became ill from the coal gas and died three months
later from pulmonary tuberculosis, the evidence being that gas
poisoning was the primary cause o f the disease. An award of the
industrial compensation commission affirmed by the appellate divi
sion (181 Appellate Div. 910, 167 N. Y . Supp. 1116), was again
affirmed by the court o f appeals, without opinion, over the con
tention that the injury was not accidental or a disease or infection
resulting from accidental injury; also Gray v. Semet Solvay Co.
(231 N. Y . 518, 132 N. E. 870), in which a night patrolman in a
chemical plant became fatally ill from inhaling chemical odors and
fumes “ constantly emitted from the plant.” The medical testimony
was to the effect that “ the cause o f death was mineral poisoning
or serous meningitis from the toxemia due to the poisonous fumes
where he worked.” Here again, over the contention that death was

E M P L O Y E R S 9 L IA B IL IT Y .

115

not the result o f an accidental personal injury, the court of appeals
affirmed the judgment of the appellate division sustaining the
award o f the industrial commission.
The workmen’s compensation law o f New York was amended in
1920 so as to include certain occupational diseases, but chlorine gas
poisoning is not enumerated. Therefore, there could be no award
under the compensation law under this provision. Judge Rodenbeck concluded:
The statute is exclusive as to cases coming within its scope (secs.
2, 49-a), but the common-law remedy still exists as to cases not
covered by the statute. The complaint contains allegations, which
must be accepted as true on this motion, of an occupational disease
not embraced in the statute, and is properly framed.
The motion to dismiss the complaint was therefore denied.

E mployers’ L iability — N egligence — O verexertion — R ule op
H aste—Jirmasek v. Great Northern Railway Go., Supreme Court

of Minnesota {February 17, 1922), 186 Northicestern Reporter,
page 81b.—The Great Northern Railway Co. is an interstate carrier
and transports the Government mails over its lines o f railroad.
On April 1, 1919, and for several months prior thereto Joseph Jirmasek was in the company’s employ as its transfer mail clerk at
Fargo, N. Dak. It was his duty to receive mail taken from the trains
and load mail on outgoing trains. His method of doing the work
was to draw a truck to the door of the mail car, load it with mail
bags, and move the truck. Outgoing mail which was loaded on
other trucks was then pulled up to the mail car door and placed
aboard the train. On April 1, 1919, he received a quantity of mail
from one o f the early trains and handled it in the customary man
ner. One bag was unusually heavy, weighing 170 pounds. Later
in the day it was necessary to load this bag with others on another
outgoing train. The regular stop of the train at the station was
10 minutes. The company’s foreman, under whose direction Jir
masek was working, ordered him to “ Hurry up so you don’t hold
the train.” Jirmasek, in compliance with the order, worked faster
and in handling the heavy bag strained his back severely. He
brought an action for damages because of the injury, against the
railway company. A t the trial he showed he was 40 years o f age,
that he did all the transfer work except during the Christmas sea
son when he had a helper, and that a rule of the postal authorities
prohibited the placing of more than 125 pounds of mail in a bag.
Judgment was rendered in favor of Jirmasek, and the company
appealed to the supreme court of the State. It was admitted that
49978°—23----- 9

116

TEXT A N D SUMMARIES OF DECISIONS.

the employer is not liable for an injury sustained by an adult serv
ant by overexertion in lifting heavy articles. The reason for this
rule is that every man o f ordinary intelligence is conclusively pre
sumed to be the best judge o f his own strength, and so, as the court
said, if this case came within the scope of the above rule, Jirmasek
could not recover damages. It was contended on his part that the
rule did not apply because he had so little time that he had no
opportunity to use his own judgment in measuring his strength or
ability to lift the mail bags, particularly in view of the order o f
the foreman to hurry and not delay the train. The supreme court
ruled against the contentions offered on. behalf o f Jirmasek and
decided in favor o f the company, saying:
This court has recognized what is known as the u rule o f haste99
in determining whether an employment involves a hazard peculiar
to the operation o f railroads, bringing the employee within the scope
o f the statute abolishing the fellow-servant rule. (Section 4427, G. S.
1913.) Consideration of the statute does not enter into the present
case. I f the “ rule o f haste ” has any application it must be on the
theory that the order to hurry created an emergency which deprived
plaintiff o f an opportunity to exercise his own judgment. We are
unable to adopt that theory, vigorously supported as it is by the
argument o f plaintiff’s counsel. An hour or two before plaintiff was
injured he handled the heavy bag, when it was put off train No. 9.
It seems clear to us that he must have discovered then and there that
it was unusually heavy, if such was the fact, although his testimony
as to this is not clear and contains the explicit statement that he did
not ascertain the weight o f the bag until the moment o f his injury.
No case has been called to our attention in which it has been held
that it is the master’s duty to make a preliminary test o f the weight
o f an object to ascertain whether a servant who is required to handle
it hurriedly has the physical strength to do so without, assistance.
W e therefore conclude that the “ rule o f haste ” does not take such a
case as this out o f the field covered by the rule relating to injury
from overexertion.
Order reversed and a new trial granted.

E mployers’ L iability — N egligence— S afe I nstrumentalities—
S afe P lace to W ork— Y outhful W orker—Sutton v. Melton-

Rhodes Go*. (In c.), Supreme Court o f North Carolina (A pril 19,
1982), 111 Southeastern Reporter page 630.—Bernice W . Sutton
when 15 years o f age was in the employ o f the Melton-Rhodes Co.
His employment required him to operate a molding machine in the
woodworking plant. The machine was not the kind approved and in
general use in similar mills, and in itself was defective and in a state
o f disrepair. The angled handle to the pressure bar, which originally
projected from under a belt and allowed pressure to be applied by
foot without coming in contact with or dangerously near to the belt,

e m p l o y e r s ' l ia b il it y .

117

had been broken off and negligently allowed to remain in that condi
tion. The machine as used had but a straight bar entirely under the
belt so that pressure could not be applied without bringing the foot
into contact with or dangerously near to the moving belt. While
working at the machine Sutton’s foot was caught in the belt and
carried into the pulley. His knee was held by a protruding shaft
while the pulley carried the foot on around itself, breaking the bones
and forcing them through the flesh. He was taken to the hospital,
where he remained seven weeks, and since then has used a crutch.
He brought a suit for damages because of the injury, by his next
friend, against the employer. The trial court allowed him $1,500 dam
ages and the employer appealed to the supreme court. Judge Walker
speaking for that court, in its decision affirming the action taken by
the lower court, stated the law on the subject of minors and inexperi
enced persons using defective machinery. He said in part :
The question at last was whether the defendant had selected the
machine with reasonable care and prudence so as to procure one
which had been approved and was in general use, and had used ordi
nary care to keep it in proper repair, so as to make it reasonably safe
for his employee to use it in performing his work, and, if the em
ployer knew it was defective, or should have known it, in the exer
cise o f ordinary care, he should have warned the employee o f any
danger arising therefrom. It is the duty o f the master to exercise
due care in furnishing his servant with a reasonably safe place to
work and reasonably safe and proper machines, tools, and appliances
with which to do the work, and in the case o f youthful or inexperi
enced employees this further duty rests upon him. Where the mas
ter knows, or ought to know, the dangers o f the employment, and
knows, or ought to know, that the servant, by reason of his immature
years or inexperience, is ignorant of or unable to appreciate such
danger, it is his duty to give him such instruction and warning as to
the dangerous character of the employment as may reasonably enable
him to understand his perils.

E mployers’ L ia b ility — N egligence— U nguarded M achinery —
L iability op L andlord for I njury to T enant ’ s E mployee— Tom

linson v. Marshall et al., Kansas City Court of Appeals, Missouri
(.December 5 , 1921), 236 Southwestern Reporter, page 680.—William
Tomlinson, an 18-year-old boy, was an employee in a steam laundry.
His duties were to oil the laundry machinery and to fire the engine.
He was inexperienced in such work, having done nothing of the kind
before, except to fire the engine o f a threshing machine for a short
time. About a week after he had been at work in the laundry he
was ordered by one Fredericks, the man in charge of the laundry,
to go behind one o f the laundry mangles and oil a part of its ma
chinery. After finishing the work he attempted to get by Fredericks’

118

TEXT AND SUMMARIES OF DECISIONS.

wife, who was in the narrow space between the machine and the wall,
by direction o f her husband. In the attempt to pass each other
Tomlinson lost his balance, and being about to fall, he involuntarily
threw out his hand, where it was caught by the rollers o f the mangle
and so badly mashed and burned that it had to be amputated. He
brought a suit for damages based upon negligence in the failure to
guard the machine as required by State law. A verdict and judg
ment of $2,000 favored the claimant, and the defendants appealed.
In the higher court it was not contended that the situation was such
that a guard was not required by law, but the defense was that about
10 days before the injury the defendants had leased the laundry to
their former foreman, Fredericks, and therefore the latter would
be liable, and not the defendants in this case. To this Tomlinson
insisted that, notwithstanding a written lease between the parties,
the defendants did not assume the relationship o f landlord, nor did
Fredericks occupy the position o f mere tenant, but that the defend
ants retained an interest in and control over the business either as
partners or employers; also, even if Fredericks could be said to be
a real tenant and the defendants merely landlords, nevertheless they
were liable, as they were owners o f the laundry plant and, in viola
tion o f the State statutes, did “ aid ” and “ abet ” the violation o f the
law by leasing the business to Fredericks with the machines thereof
in an unguarded condition. This contention was upheld by the ap
pellate court, and the judgment o f the lower court was affirmed in
an opinion rendered by Judge Trimble. The decision is in part as
follow s:
In this connection it may be well to observe that the contention
just stated does not mean that if the owner o f a building leasing the
same to the operator o f a factory, establishment, or business (who
in the conduct of such business violates section 6786 in failing to
guard his machines), such owner or landlord is rendered liable under
the aforesaid statutes. In this case the defendants did not own the
building; they merely owned the laundry plant or outfit and the
laundry business as a going concern. In the conduct o f such business
they failed to have the machine guarded, and they leased the plant,
establishment, and business, a going concern then in operation, with
the machines thereof in an unguarded condition. The question is
whether, under these circumstances, they come within the meaning
o f section 6806, in that they, as owners o f that going business, by
leasing the same with the machines thereof unguarded, have not
thereby assisted, or, as the statute puts it, aided and abetted the
tenant in violating section 6786 and thus rendered themselves liable
in damages to one injured by such unguarded machine. The ques
tion is an interesting one, but, so far as wTe have been able to find,
has never been directly and specifically passed on by the courts.
Section 6786 says such machines as the one in question shall be
guarded when possible, without saying who shall be required to place
or maintain the guards. Section 6806 is very sweeping in its terms

EM P L O Y E R S* L IA B IL IT Y .

119

and makes every one who assists, or aids, or abets the violation o f the
statute liable. That, it seems to me, means to include, and does
include, every person who is a party to putting the unguarded
machinery into operation or the maintaining of it in that condition.
The view that the parties to the so-called lease did not regard it
as such, or, if they did, they mutually agreed to disregard it as a
lease, and the business was carried on as before, with Fredericks
receiving as his pay one-half of the net profits, is further supported
by the following further facts: The so-called lease provided that the
relationship between defendants and Fredericks could be terminated
at the end o f any month on five days’ notice. So that if a tenancy
was created it was practically a tenancy at will, which in itself
would seem to cut the main element of a lease down to the vanishing
point and to coincide with the view that the parties did not have
any real intention to create a lease. Furthermore, it would rob the
so-called tenant of any incentive to make repairs or put on guards
and impel him to run the plant in the condition it was.

E mployers’

L iability — R ailroad C ompanies— F ederal S tat
R isk — C ontributory N egligence— Outcelt v.

ute— A ssumption op

Chicago, B. <fk Q. R. Co., Supreme Court of Minnesota {December 2,
1921), 185 Northwestern Reporter, page 495.—Clarence R. Outcelt
was the head brakeman on a freight train o f the C., B. & Q. R. Co.
On January 10, 1920, he lost his life through an accident in the
freight yards at Grand Crossing, Wis. His body was found by a
train inspector after his train had been placed on a siding. Suit
for damages was brought by his widow under the Federal liability
act, as he was engaged in interstate commerce when he was killed.
A t the trial o f the case circumstantial evidence was offered to prove
the cause o f his death. It appeared that the deceased was an ex
perienced brakeman and had run in and out o f the yards many times,
that the tracks in the yard where the accident occurred were so spaced
that the deceased could not safely ride on the side o f the tender if a
car chanced to be standing on an adjoining track, and that the
deceased while riding on the side o f the tender was knocked off by
a car on an adjoining track. The negligence charged to the railroad
was attempted to be offset by the defense o f the company, which
was that the brakeman was not proved to be riding on the tender
at the time o f the accident, that he had ample opportunity to see
how the tracks were located and was bound to know of his danger;
and that there was no reason for riding on the tender, and if he did
so he assumed the risk o f the employment and the company could
not be held liable for his death. A verdict and judgment were
rendered in favor o f the widow in the trial court and an appeal was
taken to the supreme court o f the State. The judgment was affirmed
by that court in an opinion by Commissioner Lees. It was held

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TEXT AND SUMMARIES OF DECISIONS.

that negligence charged could be established by circumstantial evi
dence and the finding o f the cap, lantern, and body, and the blood
on the track was persuasive evidence that the accident happened in
the manner alleged. With reference to the contention of the com
pany that the deceased assumed the risk o f the employment the court
said that the doctrine o f assumption o f risk is not favored by the
courts and ought to be cautiously applied.
Quoting from the language o f the court:
It is uniformly held that a servant is not charged with the assump
tion o f a risk merely because he is aware o f the existence of a danger
or defect. To be so charged, he must have known or appreciated,
or, in the exercise o f ordinary prudence, should have known and
appreciated, the risks to which he was exposed. The deceased had
the right to assume that the railroad company had used due care
to provide a reasonably safe place for the doing o f his work. The
fact that tracks 5 and 6 were so near together that it was dangerous
to ride where he rode was not so patent as to be readily observable,
and hence it was for the jury to determine whether he had assumed
the risk o f the injury which caused his death.
! But it is contended that in the discharge o f his duties the deceased
was not required to ride on the side o f the engine or cars, that there
was no necessity for his doing so, and that he voluntarily and un
necessarily took a position o f danger when one o f safety was reason
ably available, and hence there can be no recovery. The general rule
tis that when a danger is obvious and o f such a nature that it can
be appreciated and a servant is permitted to do his work in his own
way, he is negligent as a matter o f law if he selects a dangerous way
when a safe one is available and he has knowledge, actual or con
structive, that the way he selects is dangerous. This rule apparently
relates to the subject o f contributory negligence (Dun. Dig. 6008),
aiid contributory negligence does not bar a recovery in an action
brought under the Federal employers5 liability act; it merely
diminishes damages.
j E mployers5L iability — R ailroad C ompanies— F ederal S tatute—
A ssumption of R isk — N egligent A ct of F ellow S ervant—Reed v.

Director General of Railroads, Supreme Court of the United States
{February 2 7 ,1922), 258 U. S. 92, 1$ Supreme Court Reporter, page
191.— This case was before the Supreme Court on a writ of certiorari
to the Supreme Court o f Pennsylvania, the judgment o f that court
(267 Pa. 86, 110 Atl. 254) being reversed. Gertrude Reed sued as
administratrix o f the estate o f her husband, who was, as it was
alleged, negligently killed while engaged in interstate commerce by a
company then under the control o f the Director General. The trial
court had rendered judgment in her favor, but the supreme court o f
the State reversed this on appeal Several grounds were offered, but
the court considered only the question o f the assumption o f risk; and
finding that Reed had assumed the risk, entered judgment against the

e m p l o y e r s ' l ia b il it y .

121

widow, upon which the case was taken to the Supreme Court o f the
United States, where this last action was reversed.
Eeed, at the time of his fatal injury, was riding at the front o f a
caboose being pushed by an engine for the purpose o f signalling to
the engineer as to open track. The view was accepted “ that the engi
neer’s negligence was the proximate cause o f the fatal injury ” ; and
the Supreme Court o f Pennsylvania took the position that Eeed had
assumed the risk of such negligence, so that the employer was not
liable, citing the case Seaboard Air Line v. Horton, 233 U. S. 492, 34
Sup. Ct. 635 (see Bui. No. 169, p. 80). The Supreme Court held,
however, that while the assumption o f risk was not wholly abolished
by the Federal statute, it did abolish the rule “ that exempted the
employer from responsibility for the negligence of a fellow employee
o f the plaintiff.” The opinion, delivered by Mr. Justice McEeynolds,
concludes as follow s:
In actions under the Federal act the doctrine o f assumption o f risk
certainly has no application when the negligence o f a fellow servant
which the injured party could not have foreseen or expected is the
sole, direct, and immediate cause of the injury. T o hold otherwise
would conflict with the declaration o f Congress that every common
carrier by railroad while engaging in interstate commerce shall be
liable to the personal representative of any employee killed while
employed therein when death results from the negligence of any of
the officers, agents, or employees of such carriers.
Judgment was therefore reversed and the case remanded for fur
ther proceedings not inconsistent with the rule thus laid down.
E mployers’ L iability — E ailroad C ompanies— F ederal S tatute—
E mployees’ C ompensation A ct— A lternative E emedies— P anama
E ailw ay — Panama R. R. Go. v. M innix, United States Circuit Court

of Appeals, F ifth Circuit ( June 6,1922), 282 Federal Reporter, page
Jf7.—Warren E. Minnix was employed by the Panama Eailroad Co.
to act as a stevedore foreman to superintend a gang engaged in
coaling vessels. A few days after the date o f his employment, while
he was still under the general direction o f an experienced foreman,
his foot was badly injured by a lump of coal falling upon it. He
brought suit against the railroad company, claiming damages for
the injury under the Federal employers’ liability act. The facts
brought out show that Minnix was working underneath a conveyor
which carried coal to a shute. The railroad had other conveyors,
which were guarded by upright planks within which they ran, and
which prevented lumps o f coal from falling from such conveyors,
but the conveyor in question was not so guarded. Minnix claimed
he was not warned o f the danger o f falling coal. The entire capital
stock o f the corporation was owned by the United States, but the

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TEXT AND SUMMARIES OF DECISIONS,

corporate existence and organization o f the railroad were still main
tained. A verdict and judgment favored Minnix, and the company
took the case to the circuit court o f appeals. The company’s main
defense was that the sole rights o f an employee o f thy Panama
Railroad Co. were under the Federal compensation act o f September
7, 1916, and that Minnix could not maintain his action for damage
for the negligence on the part o f the railroad company.
The judgment o f the district court was affirmed, Judge King
saying:
It is evident that the first [liability] act declares a right o f action
against the Panama Railroad Co. for negligence; the second [com
pensation] act provides a scheme o f compensation for injured em
ployees without regard to the negligence o f the person inflicting the
injury. We do not think that the passage o f the compensation act
o f September 7, 1916, had the effect o f repealing the employers’
liability act as to employees o f the Panama Railroad Co.
Whiie the United States is the sole stockholder o f that corporation,
the corporate entity o f that company is maintained, and the railroad
is operated by the corporation. The employees are recognized by
the act itself as being those o f that corporation. It took an express
provision o f the compensation act to extend its benefits to them.
The liability o f the Panama Railroad Co. to suit, as any other
railroad company, and its property to seizure, is not affected by the
fact that the United States is the sole stockholder. (United States v.
Strand, 254 U. S. 491, 493, 41 Sup. Ct. 165.)
Minnix had two remedies—one to sue the railroad for the tort;
the other to apply for compensation under the compensation act.
In the first case his action is. based on the existence of, and ability
to prove, actionable negligence. In the second his claim is based on
injury sustained while in the line o f duty, regardless o f the negli
gence o f others.
E mployers’ L iability — R ailroad C ompanies — F ederal S tat
Gauthier v. Atchison T . & S . F . R y . C o

ute— F raud— L imitation —

/Supreme Court of Wisconsin ( February 7 , 1922) , 186 Northwestern
Reporter, page 619.—Paul Gauthier received an injury while in
the employ o f the Atchison, Topeka & Santa Fe Railway Co., while
engaged in interstate commerce in the company’s baggage room at
San Diego, Calif. The injury occurred February 2,1916. Gauthier
filed a claim with the Industrial Accident Board o f California for
an award o f compensation under the State workmen’s compensation
act. The claim was denied on October 31, 1916, on the ground that
the board was without jurisdiction, and that the remedy was solely
under the act o f Congress. No action was taken on the subject
until November 5, 1920. On that date suit was instituted against
the railway company for damages for the personal injuries sus
tained. Gauthier set up the fact that the company had promised

E M P L O Y E E S , L IA B IL IT Y .

123

to settle with him for the injuries received, and represented to him
that it would not be necessary to bring an action for the damages,
and that he relied on these representations, and that the company
should be estopped from setting up the statute of limitations to
bar the action. The complaint was dismissed at the trial court
because it did not show a legal cause of action. An appeal was
taken to the supreme court of the State. The Federal statute pro
vides that no action can be maintained unless commenced within
two years from the date the cause of action accrued. The supreme
court o f the State affirmed the judgment of the lower court, hold
ing that it was bound by the decisions of the Federal courts which
had uniformly held that the lapse o f time not only barred the remedy
but destroyed the liability. It was contended also by Gauthier that
recovery could be had on the grounds of fraud and deceit. The
theory set up was that he had been deprived of his cause o f action
by fraudulent representations, and that therefore a new cause of
action had been created and that the measure of damages would be
the value o f the claim as it existed when the fraud was practiced.
The court did not uphold this view, and based its decision on the
ground that ho facts were stated amounting to fraudulent repre
sentations.
The court said, in part, as follow s:
There was no fiduciary relation existing between plaintiff and de
fendant. No device or artifice which might induce plaintiff to post
pone action is alleged. It is true that there are the allegations that
defendant fraudulently represented and stated to plaintiff that it
would pay and settle for the injuries received, and that it would be
unnecessary for plaintiff to bring suit, and that plaintiff relied on
such statements and neglected to commence an action for two years
under the act of Congress.
The argument is made in the brief of appellant’s counsel that, when
defendant’s agent “ falsely and fraudulently represented that a debt
or obligation existed on defendant’s part and that the same would
be settled and paid without the necessity of plaintiff exercising his
legal remedies, a fraud was committed for which redress will be
granted.” There is no allegation that any false representation as
to defendant’s obligation was made, and, if there were, such an alle
gation would be contrary to the other allegations of the complaint
and the whole theory on which the action was commenced. We feel
compelled to construe the allegations as those relating to future
events and not existing facts, and therefore not actionable. Mere
promises to pay a debt in the future, although broken, are not fraudu
lent, although'they may be so labeled in the complaint. It is axio
matic that in drawing a complaint charging fraud, the pleader must
state facts constituting the fraud alleged, so that the court may form
its own opinion as to its sufficiency.

124

TEXT AND SUMMARIES OF DECISIONS.

E mployers’ L iability — R ailroad C ompanies— F ederal S tatute—
I nterstate C ommerce— C ar R epairer —Richter v. Chicago, M.

<& St. P . R y. Co., Supreme Court of Wisconsin (February 7,
1922) , 186 Northwestern Reporter, page 616.—Kasper Wulz was
employed by the Chicago, Milwaukee & St. Paul Railway Co. as a
car repairer, at Corliss, Wis. On the morning of July 24, 1917, he
was sent to Truesdell, Wis., to repair two cars which had come from
some place in Illinois. He finished the work, collected his tools, and
was walking from the platform of the station toward a freight train
which was slowly approaching from the south. He apparently had
the intention o f getting on the freight train. In attempting to do
so he was hit by an approaching passenger engine and instantly
killed. The administrator o f his estate brought an action against
the railway company for damages. Judgment was rendered in his
favor and an appeal was taken to the supreme court o f the State.
Several questions were raised, one o f which was as to whether Wulz
was engaged in interstate commerce at the time o f the accident. The
supreme court held that the trial court was right in holding that the
employee was engaged in interstate commerce at the time o f the acci
dent. The test to be applied was stated by Judge Jones, speaking
for the court, in the following terms:
In the present case the return of Wulz from his work in interstate
commerce was but a continuation o f the task he had to perform when
he started from Corliss, and not completed until he reported back
at Corliss for further instructions. It is not necessary that the work
man be working upon a car or siding or on a train engaged in inter
state commerce when the injury is received in order to bring him
within the provisions o f the Federal act. I f the act performed when
the injury occurs is upon an indivisible task connected with inter
state commerce, it is sufficient.

E mployers’ L iability — R ailroad C ompanies— F ederal S tatute—
I nterstate C ommerce— G oing to W ork— Atlantic Coast Line

Railway Co. v. Williams, United States Circuit Court of Appeals,
F if th Circuit ( October 17, 1922), 284 Federal Reporter, page 262.—
C. N. Williams was a fireman on a switch engine which was used in
making up and breaking up interstate railway freight trains at Sa
vannah, Ga. His employer, the Atlantic Coast Line Railway Co.,
operated a shuttle train between the city o f Savannah and its rail
way yards for the purpose o f transporting its employees without
charge to their work. Just as Williams was about to board the train
on his way to the railway yard, one day, the brakes on the train were
released and the train, which was moving slowly, suddenly increased
in speed. A t the rear end o f the car there was a defective hand hold

EMPjLOyers

liability .

125

which was not firm and secure, and when Williams seized it, it moved
about 6 inches, got away from him, caused him to lose his hold, and
he was thrown under the car and severely injured.
An action for damages was brought by Williams against the rail
way company because of the injuries. Judgment was rendered in
his favor, and the company appealed to the circuit court of appeals.
The first question before the court was whether Williams was engaged
in interstate commerce at the time of his injury. The court held that
he was, as “ he was engaged in going to his work with the railroad
compan}7, which was clearly an employment in interstate commerce.”
The court said that for all practical purposes Williams was on the
premises o f the company “ engaged in going to such work, using a
means the right to use which arose solely from his employment,
and that at the time his relation to his employer was that of an em
ployee engaged in interstate commerce.”
The judgment of the district court was therefore affirmed.

E mployers’ L iability — R ailroad C ompanies— F ederal S tatute—
I nterstate C ommerce— I nstalling E lectric T ransformers— H a l

ley v. Ohio Valley Electric R y. Go., Supreme Court of Appeals
of West Virginia ( October 31, 192£ ), 1 H Southeastern Reporter,
page 572.— The administrator o f the estate o f Calvin O. Halley sued
under the Federal employers’ liability act for the death of Halley,
his son, recovering a judgment of $6,000. The case was taken to the
supreme court on a writ o f error, the company contending that the
workman was not its employee, that he was not engaged in interstate
commerce so as to bring him under the statute, and that the amount
recovered was excessive.
Though three corporations were involved in the ownership and
management of the electric railway and the equipment and substa
tions connected with its operation, the evidence was held to show
employment. Halley was at the time of the fatal accident assisting
in changing electric transformers, a new type being installed in the
place o f old ones. While so employed he touched a “ live” trans
former bushing, and received a fatal shock. The syllabus prepared
by the court contains two paragraphs relating to this point, as
follow s:
One employed in the repair or maintenance o f an instrumentality
which is usedi by an electric railway company engaged in interstate
commerce, and which is essential to the successful operation of the
railway, is employed in such commerce, under the Federal employers’
liability act.
A workman was injured while installing a new rotary converter
and transformer in an electric substation, and connecting it with

126

TEXT AND SUMMARIES OF DECISIONS.

wires to the main or conductor bus that carries the electric current to
an electric railway’s trolley wires. The new transformer was to take
the place o f an old one, which regulated the current used in the
operation o f the railway company’s cars in interstate commerce, and
was an instrumentality essential to the successful operation of the
railway. Held, that the work was one o f repair and maintenance,
and that the workman so engaged was employed in interstate com
merce, within the meaning o f the Federal employers’ liability act.
The suit was by the parents of young Halley, who was 19 years o f
age, and was for damages suffered by them. As to the claims that
the verdict was excessive, the syllabus reads as follow s:
Where it is shown that decedent was a vigorous young man, earn
ing 50 cents an hour as electrical helper, not quite 20 years o f age,
good habits, industrious, kind, obedient, and affectionate to his par
ents, contributed occasionally small sums to their support, and had
expressed a desire to assist them in purchasing a home, a verdict of
$6,000 for his wrongful death will not be set aside because excessive.
The judgment o f the court below was therefore affirmed.

E mployers’ L iability — R ailroad C ompanies — F ederal S tat
— N egligence — A ttempted R escue — C ontributory N egli
gence— Bacon v. Payne , Supreme Court of Michigan ( December 5,
ute

1922 ), 190 Northwestern Reporter, page 716.— Charles W. Oliver
was a section foreman employed by the Michigan Central Railroad.
In 1919, while the road was under Federal control, Oliver, with his
crew, was clearing ice and snow from switches at a siding in Arenac
County. A “ trailing switch ” which diverted trains from the main
track had been recently used in removing the hand car of the crew
from the main track, anticipating the arrival of a fast through
train. As the train approached, one of the crew, Marks, thinking
that the switch was open, ran to it and threw the lever, actually
opening a closed switch so as to divert the train from its proper
track. Oliver seeing Marks so engaged, waved his arms and called
to Marks that the switch was all right, at the same time running
down alongside and close to the main track in his effort to prevent
the opening of the switch. While so running he was struck and
fatally injured by the approaching train.
Action by his administrator under the Federal employers’ lia
bility act o f 1908 resulted in a verdict in his favor in the circuit
court o f Arenac County, but on a writ o f error to the supreme
court o f the State this was reversed. The grounds for this removal
are stated, after a detailed discussion of the circumstances, in the
following language quoted from the opinion delivered by Judge
Steers:

E M P L O Y E R S* L IA B IL IT Y .

127

Oliver had worked for this railroad company since 1916, and for
other railroads before that time, in employment requiring him to
care for switches and become familiar with their use. He knew
they were required to be kept closed when not in use, and presump
tively had some knowledge of the effect of trains running through
trailing switches. He knew the switch should be closed when trains
passed, and, on discovering what Marks had done, impulsively ran
in that direction in a hopeless effort to correct it before the train
passed. He ran by the side of the track, not upon it, and in his
haste negligently ran too close to the rail to avoid the overhang of
the engine. The attending circumstances do not iustify the claimed
conclusion that he heroically rushed into danger “ to snatch from it
the life o f a fellow creature imperiled by the negligence of another.”
The trial court instructed the jury:
“ And if you find from the evidence that such emergency did
arise, and that said Charles Oliver in good faith attempted to have
the switch closed, and thus avoid damage to the defendant’s prop
erty, and that he was justified in so doing, you should not find him
guilty o f contributory negligence.”
The rule of exoneration from negligence where the injured
party acted in an emergency does not apply if his conduct is rash
and reckless. That by carelessly keeping too close to the track in
his haste Oliver voluntarily and recklessly exposed himself to an
extreme risk, which plaintiff claims was caused by another’s neg
ligence, is evident.
Conceding Marks’ negligence to the full and defendant’s respon
sibility for its consequences, his act in no sense imperiled Oliver,
who was then in a place of unquestioned safety from the closely
approaching train. His own subsequent reckless conduct in neg
ligently placing himself too close to the track in front of the swiftly
approaching train was the sole and proximate cause o f the accident,
not Marks throwing the switch. Without his independent interven
ing human agency no harm could have befallen him from what
Marks did. No precedent or concurrent causative act o f defendant
placed him in jeopardy.
Judgment must therefore be reversed without a new trial.

E mployers’ L iability — R elease— I nfancy — E ffect— Robison v.
Floesch Construction Co., Supreme Court of Missouri (December 19,
1921), 236 Southwestern Reporter, page 332.—Dewey Robison was a
minor 19 years of age, and had previously only worked on a farm.
On September 9, 1918, he was employed by the defendant company
to work as one of the night crew on its drag-line excavator in the
construction of a levee near Greenbrier, Mo. He had had no ex
perience in working about this kind of machinery and knew nothing
of its operation except such as he had gained from passing during
the time it had been operated near his home. The machine was not
operated the first night he worked because it was out of order.
During the following night he was instructed to tighten the jacks
that steadied the framework of the machine. In order to do aA

12 8

TEXT AND SUMMARIES OE DECISIONS.

directed it was necessary for him to go from the cabin on the
engine to the ground below. In the meantime the machine con
tinued in operation. The men sometimes used a ladder to descend
and sometimes climbed down the framework. Robison had been up
and down twice during the night but not when the machine was
running. It was very dark and as there was not enough light to
enable him to locate the ladder he waited until the dipper was
loaded with dirt and when it started its movement away from him
he walked toward the corner where he thought the ladder was.
When there he let himself down and felt along the side with his
feet for the ladder, but could not find it. He looked around and
saw the boom coming toward him. In his endeavor to escape his
left leg was caught and crushed against the upper part o f the
framework, finally requiring amputation above the knee. On
October 7, 1918, while still in the hospital, he was visited by one
L. W. Mees, attorney for the employer. Mees told Robison he had
come to make a settlement. When he was told by Robison that a
settlement would have to be made with the father because o f the
injured boy’s age, he replied that that was not necessary as the
boy was over 14 years of age and could settle by means o f a friendly
suit by a next friend. Mees asked Robison how much he would
take in settlement o f any claim he might have against the company,
and when the latter said $350, he said that he did not think the
company was at fault but offered $250 with hospital fees and doctor
bills anyway. Robison did not respond until Mees started to go
away and then he agreed. Mees got a justice o f the peace, who
witnessed the transaction, conducting it as a friendly suit, and a
check for $250 was given to Robison. Suit was later brought by
Robison to set aside the judgment o f the justice o f the peace, and
asking damages for the injury. He was successful, recovering a
judgment o f $10,000. The company appealed and the case went to
the supreme court o f the State. That court affirmed the later judg
ment and in a decision handed down by Commissioner Ragland
stated its reasons in part as follow s:
It is the generally accepted doctrine that an infant can not avoid
a judgment or decree against him merely on the ground of infancy,
and that he can not impeach such a judgment or decree by an original
bill except upon grounds that would be available to an adult, such as
fraud.
The evidence wholly fails to show that any untrue statement o f
fact was made by defendant’s agent, either in negotiating the settle
ment with plaintiff, or in procuring the entry o f a formal judgment
by the justice o f the peace, and for that reason appellant insists that
plaintiff failed to make a case entitling him to the relief prayed
under the first count o f his petition. But plaintiff does not predicate
his right to such relief solely on the ground o f fraudulent repre
sentation.

EM PLO YER S

L IA B IL IT Y .

129

There is no question but that plaintiff and defendant’s agent, Mees,
agreed upon a settlement whereby, in consideration of the payment
of $250, together with his hospital fees and doctor bills, plaintiff was
to release defendant from further liability for the injuries he had
sustained on account of its negligence. Such contract o f settlement,
even after it became executed, the plaintiff, being a minor, would
have had the right to disaffirm and repudiate at any time during his
minority, and within a reasonable time after coming o f age. In
order to cut off this right and make the contract absolute and final
on the part o f the plaintiff, Mees proceeded to cloak the transaction
in the guise o f a legal proceeding. This much the evidence clearly
shows.
There can be no doubt, o f course, but that in a suit instituted by a
minor by his next friend a judgment may be rendered that will be
valid and binding upon him. Such judgment, however, can not be
based merely on the consent o f the minor, for he is without discre
tion, nor on that o f the next friend because he is not invested with
either the power or the duty so to do.
The court in such case is charged with the duty of protecting the
minor’s interest, and it is only when its judgment is based upon facts
judicially ascertained, upon a real, and not a perfunctory, hearing,
that its judgment is binding upon him.
The judgment under consideration had no such basis. The pro
ceeding, if it may be so called, was colorable merely from beginning
to end; it did not possess a single element o f a judicial hearing and
determination. Its entire record was the handiwork o f Mees; he
prepared all the papers, and the next friend and the justice did noth
ing but complaisantly sign their names “ on the dotted lines ” pointed
out by him. It should be said, however, that the two gentlemen who
so obligingly signed the papers for Mees were given to understand,
and they considered, that their acts in the matter were purely formal.
And so they were. The “ friendly suit ” was not a suit in fa ct; it was
merely a screen contrived to conceal the real transaction, the con
tract o f settlement and release between plaintiff and defendant, and
having for its purpose the foreclosure o f plaintiff’s right to disaffirm
and repudiate his folly, upon reaching the age o f discretion, or upon
the receipt o f mature counsel. It is considered fraudulent to take
advantage o f the incompetency of an infant to protect his own in
terests, and, as the alleged proceeding before the justice o f the peace
w as designed for no other purpose, it should be so treated. On this
ground the court was warranted, under the pleadings and evidence,
in setting aside the pretended judgment.

E mployers’ L iability — R elease — I nfancy — F raud— Q uestion
J ury —Neversweat Mining Co. v. Ramsey, Supreme Court of

for

Oklahoma {December 13, 1921), 202 Pacific Reporter, page 787.—
Ollie Ramsey was in the employ of the Neversweat Mining Co. work
ing in the screen room o f its reduction plant. He was engaged in
screening rock and ore dirt hoisted from its lead and zinc mine. His
duty was to keep the screen clean by breaking up with a hammer

130

TEXT AND SUMMARIES OF DECISIONS. .

the large pieces o f rock containing ore and causing it to pass through
the screen into the hopper below. After he had been working about
30 minutes on the day in question a large can o f ore dirt was dumped
from the hoister upon the screen, from which several large bowlders
rolled off. In backing away from the screen to escape being hit, he
stumbled over other loose rocks strewn about upon the floor, and
fell backwards through the door onto the unguarded tramway and
from there to the waste rock pile 30 feet below. The fall resulted in
serious and permanent injuries, the most serious being a fractured
skull, as one o f the jagged rocks upon which he fell penetrated his
brain. Six weeks after the injury Ramsey signed a release in which
he stated that the injury was caused by fainting, and that the com
pany was not to blame for the accident. Later, suit was brought by
Ramsey for damages and a verdict and judgment in his favor
followed. The company appealed from the judgment to the supreme
court o f the State, but it was affirmed by that court in an opinion by
Judge Kane. The company contended that the signed release was
good unless fraud was proved. In answer to this contention the
court said:
But it was also alleged in plaintiff’s reply that if he did sign and
execute the release he did not have sufficient mental capacity to under
stand the nature and character and contents thereof, and that he did
not have sufficient mental capacity to make or enter into any contract
or agreement o f any kind or character respecting his person or
property rights; that he has no recollection o f signing or executing
said release; that the defendant presented to him and requested him
to sign a written instrument, which said agent stated and represented
to the plaintiff to be an application for the payment of his accident
insurance, and this is the instrument he thought he signed. Touching
the nature o f plaintiff’s injuries, the evidence shows that the plaintiff
sustained a grave fracture o f the skull and other injuries about the
head, which seriously affected his consciousness and his memory.
For several days after the injury he was speechless, his eyes were
crossed, his ears bled and rang with strange noises; it was only
gradually that he came back to consciousness, toward the last days
o f his stay in the hospital. Up to and including the day the release
was signed the plaintiff was constantly under the care and influence
o f Mr. Wills, the superintendent o f the defendant company, the com
pany doctor, and other agents and representatives o f the defendant,
all o f whom had been very kind to him, and did not have the benefit
o f advice from any disinterested source as to his probable rights in
the premises. While the release was signed the day the plaintiff was
discharged from the hospital, the evidence shows that the injury to
his head was still in an acute condition, and that the dangerous
fracture did not heal until a piece o f the fractured skull was removed
from the wound by an operation performed some two or three months
after the release was signed.
There can be no doubt o f the very serious character o f the injury
to plaintiff’s head, or that he suffered serious mental and physical

e m p l o y e e s ' l ia b il it y .

131

derangement therefrom for a long time after the release was signed.
In these circumstances, and on account o f his immature years, we are
not disposed to disturb the findings o f the jury on this point, which
were approved by the trial court. We are unable to say, in the face
o f the finding of the jury and o f the trial court to the contrary, that
the release was fairly and honestly entered into, or that the plaintiff
was mentally or physically in a condition to deal at arm’s length
with the parties representing the defendant.
The judgment in his favor was therefore affirmed.

E mployers’ L iability — R elease — J oint T ort-F easors — Mc
Namara v. Eastman Kodak Co. et al., Court of Appeals of New York
{October 18, 1921) , 133 Northeastern Reporter, page 113.—Edward
13. McNamara was working as a riveter for one John L. Mullen, who
had a contract for the steel work on a building in the city of Roch
ester, N. Y., that was being erected for the Eastman Kodak Co.
McNamara was working on the roof o f a building which was over
the sixteenth floor; and, under orders from his foreman, he, in an
attempt to lift a board which was to be placed on the sixteenth floor
to* protect the workmen below from falling rivets, fell through the
unprotected opening or well and was killed. Suit was brought by
McNamara’s widow against the Eastman Kodak Co., the owner of
the building, for damages because of its failure to comply with the
labor law which provides that contractors or owners shall thor
oughly plank over the entire tier with beams. The accident hap
pened in 1912. In 1915 the case had been dismissed in the trial
court and the appellate court had affirmed the ruling. On April 13,
1915, Mrs. McNamara wrote to Mullen, who, because of nonresidence,
was not a party to this suit, calling his attention to her deplorable
financial condition. The letter was never answered. In August,
1915, however, one McWade, a runner for a casualty company, paid
her $300 and got Mrs. McNamara to sign papers releasing her claim
against Mullen upon the representation that it was a charitable gift,
and not a settlement of any claim; that it in no way affected her
rights against the kodak company; that her case against the kodak
company had been finally dismissed, anyhow; that she could get
nothing from it; and that the papers she was signing were simply
receipts or papers in the nature of a receipt for Mullen’s books. In
1917 the Court of Appeals of the State o f New York reversed the
judgment o f the lower courts in the suit against the kodak company,
holding that there was a proper case to go to the jury, and a new
trial followed (McNamara v. Eastman Kodak Co., 220 N. Y. 180,
115 N. E. 452). This time judgment favored the Avidow, and it was
affirmed in the appellate division o f the supreme court. The case
49978°—23-----10

132

TEXT AND SUMMARIES OF DECISIONS.

was again taken to the court of appeals, and the judgment o f the
lower courts was again reversed, but in favor o f the kodak company,
and again a new trial was granted. The reason for the reversal now
was that Mullen and the kodak company were joint tort-feasors, and
the court held that a settlement with one would be a bar to an action
against the other. The appellant set up the release of Mullen ob
tained by the runner o f the casualty company, and it was held to be
a release o f all claims against all the parties. Chief Justice Hiscock
delivered the opinion o f the court, in which it was said that “ there
was no suggestion that she did not understand the English language,
and, unless we are to exonerate her from any obligation to under
stand such language and from any responsibilities which may come
from indorsing and collecting the money on a draft which so speci
fies the purpose for which it is given, we do not see how a jury can be
permitted to say that this plaintiff thought she was signing a receipt
and not making a settlement.” The court further said that as the
surrogate court had made an order authorizing the release, “ under
such circumstances it seems to us that the order, so long as it stands,
conclusively establishes between the widow and Mullen that the
settlement was a prudent and honest one and one which the wrong
doer as well as the administratrix might safely make.” Judges
Hogan and Crane dissented, the latter stating in part that in his
judgment “ there is some evidence justifying a jury in finding that
the plaintiff thought she was accepting $300 as a gift and simply
signed a receipt, and did not sign a release, knowing it to be such,
and that therefore she never released her claim against the defend
ant here.”

E mployers’ L iability — S tate’ s L iability —M oral and E quitable
O bligation—R elief S tatute—Fairfield, State Auditor, v. H unting-

ton, Supreme Court of Arizona (A p ril 8,1921), 205 Pacific Reporter,
page 81%.—Gordon G. Huntington, while in the employ o f the State
engineer o f Arizona sustained personal injuries arising out of and
in the course o f his employment which resulted in the loss of his
right eye and the permanent impairment o f the sight o f his left eye.
An act was passed for the relief of the injured man, and it was
provided that he was to receive $84.50 per month, which was 65 per
cent o f his average monthly wage, for the rest o f his natural life.
In pursuance to the provisions o f this act Huntington presented
claims to the State auditor and the claims were disallowed. Man
damus proceedings were brought by Huntington to compel the
auditor to allow the claims. The auditor brought up the question o f
the constitutionality of the law, contending that the State constitution

e m p l o y e r s ' l ia b il it y .

13 3

prohibited the legislature from enacting legislation making a donation
to any individual, association, or corporation, or enacting special leg
islation where a general law could be made applicable. The judge of
the superior court ruled against this contention and judgment was
entered in favor o f Huntington. An appeal was taken to the supreme
court o f the State, but that court affirmed the judgment o f the lower
court in an opinion rendered by Judge McAlister, in which the con
tentions raised were met in part as follow s:
It is true that if the act were passed solely in the exercise o f grati
tude and charity and did nothing more than make a gratuitous present
o f the public funds, the payments authorized by it would be merely
donations; but, since it is clear that it was the purpose of the legisla
ture in passing it to recognize a moral obligation then resting upon
the State and founded upon equity and justice, regardless of the fact
that the State was not liable therefor as a matter o f law, the question
presents itself whether an appropriation made out of considerations
o f this kind comes within the constitutional provision prohibiting
donations. Parting with money or other thing of value to satisfy a
moral or equitable claim, when such action could not be compelled in
law, is not making a donation any more than the voluntary payment
o f a note barred by limitation would be; it is rather the discharge of
an honest and just obligation. To hold otherwise is to say that the
payment o f an admitted indebtedness, not collectible by law, is
merely an act of charity, when such is not the case.
It is difficult to define, with absolute accuracy, just what is included
in the term “ moral or equitable obligation,” but in all those cases in
which the appropriation of the public funds of the State has been
upheld upon this ground the State has received some benefit as a
State, or the claimant has suffered some direct injury “ under circum
stances where in fairness the State might be asked to respond—where
something more than mere gratuity was involved.”
It would be difficult to imagine a case calling more strongly for the
discharge o f this duty than that o f an employee o f the State seriously
injured or killed in its service without fault on his part, but for whose
injury or death the State, by reason o f its legislature’s omission to
enact a law to that effect, can not be compelled to make any recom
pense whatsoever. Under the same circumstances an individual or
corporation would be legally liable. W hy then should the discharge
by the State o f such an obligation be regarded as a donation or as
anything other than the payment of an honest debt, a thing that the
State, as well as every good citizen, should do ?
Unless it appear very clearly from the character o f the appropri
ation that a general law would have been sufficient, the court would
not be justified in holding that a coordinate branch o f the government
abused its discretion in passing a special one.
And the fact that the law was passed for the benefit of only one
individual does not make it special legislation, since it was enacted to
satisfy an obligation resting upon all the people who constitute the
State. The discharge of such an obligation is merely the perform
ance o f a public act, and an appropriation for it is not expending the
public funds for a private purpose.
Hence the judgment is affirmed.

134

TEXT AND SUMMARIES OF DECISIONS.

E mployers5L iability — W orkmen ’ s C ompensation— N egligence—
I njury by T hird P erson— P arties to P roceedings— R ailroads—

Goldsmith v. Payne, Supreme Court of Illinois (December 13,1921),
133 Northeastern Reporter, page 52.—Joseph Goldsmith was an
employee o f the Great Lakes Fruit Co. While riding in a vehicle
upon a public street of Waukegan, 111., exercising all due care for
his own safety, he was injured by the negligence o f the servants
o f the railroad company, o f which appellee Payne was at the time in
control. Goldsmith brought suit against the railroad company for
damages. The company contended that it was engaged in both
intrastate and interstate commerce, that Goldsmith was an employee
o f the fruit company, an Illinois corporation, that all three were
subject to the provisions of the workmen’s compensation act, and
that as Goldsmith’s injuries arose out o f and in the course o f his
employment by the fruit company any recovery had should be
under the workmen’s compensation act. The lower court ruled in
favor of this contention, and the case was appealed to the supreme
court o f the State. In that court the judgment was reversed and
the case remanded to the lower court with directions. Reviewing
the provisions o f the act applicable to this case Judge Dunn saidi
Section 6 provides that no common-law or statutory right to
recover damages for injury or death sustained by an employee
engaged in the line o f his duty, other than the compensation pro
vided by the act, should be available to any employee covered by
the provisions of the act or his legal representative, or to anyone
dependent upon him or otherwise entitled to recover damages for
such injury. These provisions apply only to the right o f the em
ployee against his employer, and have no reference to the liability
o f third persons causing injury to the employee. By section 29,
however, the rights o f employees suffering injury or death in the
course o f or arising out o f the employment, not proximately caused
by the negligence of the employer, but caused under circumstances
creating a legal liability for damages on the part of some person
other than the employer, are dealt with, and it is declared that i f
the person, other than the employer who is liable for damages for
the injury or death, is bound by the provision o f the act, the right
to recover damages shall belong to the employer, and shall be
limited to the amount o f compensation payable under the act; but
if the person, other than the employer, so liable for damages is
not bound by the provisions o f the act, then legal proceedings may
be brought against such other person by either the employer or the
injured employee.
He then applied the law to the facts, as follow s:
Being engaged in carriage by land, appellee [Payne] is subject
to the provisions o f the workmen’s compensation act so far as the
intrastate business which he transacts is concerned, and would be
subject to its provisions as to all his business as a carrier but for
the fact that Congress, having assumed jurisdiction to regulate his
interstate business in this respect, has excluded it from the operation

EXAMINATION, LICENSING, ETC., OF WORKMEN.

135

o f the workmen’s compensation act. While the Federal employers’
liability act has no application to the appellant or his injury, it
does have the effect of excluding the appellee from the provisions
o f the workmen’s compensation act as to the business in which he
was engaged when the appellant was injured. Therefore, when
engaged in interstate commerce the appellee and his employees so
engaged are not bound by the act, and he is not entitled to the
benefit o f the provisions of section 29 in favor of employers who are
bound by the act.
E xamination , L icensing, etc., of W orkmen— B arbers— C o n
S tatute— Cooper v. Rollins, Supreme Court of

stitutionality of

Georgia ( February 11^ 192%), 110 Southeastern Reporter, page
727.— The Georgia “ barber a ct” (Laws 1914, p. 75) as amended
(Laws 1920, p. 109), regulating the occupation o f barbers within the
State, was brought before the courts to stand constitutional tests in
this case. Plaintiffs filed an equitable petition against the members
of the State board o f barber examiners, seeking to have the act de
clared unconstitutional. Judgment was rendered in favor of the
board and the case was appealed to the supreme court of the State
on constitutional questions alone. The contentions o f the plaintiffs
were that the act was unconstitutional:
(a) Because it discriminates between barbers and those engaged
in other kinds of manual labor; (b) because it does not operate uni
formly throughout the State, but is applicable only to barbers in
cities and towns in excess of 5,000 inhabitants ; (c) because it violates
article 1, section 4, of the constitution of this State, and the four
teenth amendment to the Constitution of the United States, in that
section 9 o f the original act exempts from its provisions barbers en
gaged within the State at the date of such act, and who had been
practicing such occupation for a period of three years prior to its
approval; (d) because it violates the same provisions of the State
and Federal constitutions, for the reason that it permits barbers
who had been engaged in their trade for the period of three years
prior to the approval of this act to continue their occupation by
making an affidavit of these facts and paying the sum of $2, while a
person who had learned to practice such occupation without the
State is required to pay the sum of $5 and to submit to an examina
tion before said board; (e) because the classification o f towns and
cities into those having populations in excess of 5,000 inhabitants and
those having less population, and making said act applicable to those
o f the former population, and not to those o f the latter, is arbitrary
and unreasonable.
The court, speaking through Judge Hines, affirmed the judgment
o f the lower court and held the law valid, answering the contentions
of the plaintiffs in part as follow s:
Every presumption will be made in favor o f the constitutionality
o f an act o f the legislature. Before an act o f the legislature will be
declared unconstitutional, the conflict between the act and the funda

136

TEXT AND SUMMARIES OF DECISIONS.

mental law must be clear and palpable. A State statute will not be
set aside by the courts in a doubtful case. These elementary prin
ciples do not require any elucidation. They have become firmly
imbedded in the constitutional law o f the State, and should not be
departed from.
The courts are generally agreed that it is competent for the legisla
ture to prohibit persons from practicing the calling o f a barber with
out first having obtained a license or certificate o f registration.
[Cases cited.] The power o f the legislature to regulate this trade
and to require barbers to be examined and licensed is derived from
the police power o f the State. This power enables the legislature to
make all needful rules and regulations for the health, power, and
welfare o f the people o f the State. The health o f the citizens as
affected by diseases spread from barber shops conducted by unclean
and incompetent barbers is justification for such laws.
The regulation o f the occupation o f barbers, and leaving other
occupations o f like kind unregulated, is not a denial o f the equal
protection o f laws, within the meaning o f the fourteenth amend
ment to the Constitution o f the United States. What such regula
tion shall be, and to what particular trade or business such regula
tion shall apply, are questions for the State to determine, and their
determination comes within the proper exercise o f the police power
o f the State; and, unless the regulations are so unreasonable and ex
travagant in their nature and purpose that the property or personal
rights o f the citizens are unnecessarily and in the main arbitrarily
interfered with or destroyed, and without due process o f law, they
are not beyond the power o f the State to pass.
The plaintiffs are residents o f Georgia; and it does not lie in
their mouths to attack the constitutionality o f this statute on the
ground that it discriminates against nonresident barbers. Only
those whose rights are directly affected can properly question the
constitutionality o f a State statute.
It is next insisted that this act is unconstitutional because o f the
classification o f the towns and cities therein provided. It is con
tended that such classification has no reasonable relation to the sub
ject matter o f the statute. The legislature may make classifications
for the purpose o f legislation. It may classify cities. The classifi
cation must have some reasonable relation to the subject matter o f
the statute. A State statute which, in carrying out a public purpose,
is limited in its application, is not a denial o f the equal protection
o f the laws, within the meaning o f the fourteenth amendment to the
Constitution of the United States and o f the similar provision in
our State constitution, if, within the sphere o f its operation, it af
fects all persons similarly situated.
The spread o f disease by insanitary barbers or barber shops will
affect more people in large towns or cities than small ones. The
character o f barbers and barber shops is more generally known in
villages than in large towns, and villagers can more easily protect
themselves against insanitary barbers. Knowledge of the personal
and professional habits o f barbers and o f the condition o f barber
shops is more easily acquired in small towns than in large cities.
The business o f the barber may be everybody’s business in the hamlet
or small town. This may not be so in large towns. In small towns

EXAMINATION, LICENSING, ETC., OP WORKMEN.

137

everybody knows the barber, his shop, and his personal and pro
fessional habits o f cleanliness. The relation between barbers in
small centers o f population and their customers is closer and more
intimate than in populous cities. This relation is friendlier in the
small town than in the big one. I f the barber in a small town has
a communicable disease, knowledge o f this fact spreads rapidly in a
village. Knowledge o f such fact travels more slowly in a city. I f
a customer catches a contagious disease from a village barber, this
becomes common knowledge at once o f all the villagers. This is
not so in Atlanta, Augusta, Macon, or Savannah.
For these reasons customers o f barbers in large towns need greater
protection than those o f barbers in small ones. Other reasons can
be given to justify this classification, but we deem the above suf
ficient. So we reach the conclusion that this classification has a
reasonable relation to the subject matter o f this statute, and that
the statute is not unconstitutional for any o f the reasons assigned.
Judgment affirmed. A ll the justices concur.

E xamination , L icensing , etc., op W orkm en — P lumbers — C on
S tatute— Trewitt v. C ity of Dallas, Court of

stitutionality op

C iv il Appeals of Texas ( M ay 27, 192$), 21$ Southwestern Re
porter, page 1078.—An ordinance o f the city o f Dallas, Tex., was
enacted on March 3, 1922, which created an examining and super
vising board for plumbers, in compliance with a State law which
provided for the licensing o f plumbers in cities o f a certain size.
The mayor and commissioners o f the city were about to attempt to
enforce the provisions o f the ordinance. A. P. Trewitt was engaged
in the business of a master plumber in the city of Dallas, em
ploying a number of plumbers in the course o f his business. He
brought an action for an injunction to restrain the enforcement o f
the ordinance. It was refused, and an appeal was taken to the court
o f civil appeals. Trewitt contended that the business o f a master
plumber is not related to and does not affect the public health,
comfort, or convenience so as to render such business the proper sub
ject for police regulation, all of which the court rejected.
The court further said:
It has been held to be o f the highest importance to the public that
plumbing work should be “ as skillfully planned and executed as the
modern standard o f sciences admits.”
This was said with reference to the business o f a master plumber.
The theory that the reasonable regulation o f the business o f master
plumbers, as well as journeyman plumbers, naturally may be ex
pected to promote the public health, seems to have been rather gen
erally entertained by the courts o f various States of the Union.
Objection was made to the statute on the ground that it was un
reasonable and arbitrary, but the court said that the ordinance ex
plicitly required that the examination should be reasonable, and this

138

TEXT AND STJMMAKIES OF DECISIONS.

requirement was emphasized by repetition running throughout the
ordinance.
Trewitt offered the proposition that the ordinance created an un
lawful, vicious, and burdensome monopoly by requiring plumbers
to pass an examination without making provision for apprentices
and helpers.
The court said that “ under the terms o f the ordinance we think
that apprentices and helpers are not excluded from the opportunity
to acquire sufficient skill and experience to enable them to pass the
examination and become licensed plumbers.”
The constitutionality o f the ordinance was questioned, but the
court upheld it, saying:
It is next contended that the ordinance is in violation o f both the
Federal and State constitutions, in that it denies to certain persons
the fundamental and inalienable right o f pursuing a lawful, useful,
and necessary business or calling, skill in which is o f necessity ac
quired through actual experience as an apprentice or helper; and
criticism is made that no provision is expressed by the terms o f the
ordinance for the use o f helpeu and apprentices. The right to labor
in any useful occupation is a sacred and natural right which can not
be disregarded. The right to follow any lawful business or occupa
tion as a means o f livelihood is recognized and protected both by the
United States Constitution and the constitution o f Texas, but such
right is subjected to the paramount, inherent right o f the State in
any given instance to impose upon it such reasonable limitations and
regulations as the general welfare and public good may demand.
The ordinance does not violate either the United States Constitution
or the constitution o f Texas.

H ours of L abor— D rug C lerks— N in e -H our D ay — P enal S tat
C onstrued— E x parte Ticing, Supreme Court of California

ute

{February 23, 1922), 2 0 Pacific Reporter, page 1082.—The Cali
fornia Statutes o f 1905, page 28, as amended by Statutes o f 1907,
page 273, and Statutes o f 1921, page 1323, limited the working
hours o f employees engaged in selling drugs and medicines at re
tail and compounding physicians’ prescriptions to nine per day.
The statute had a penalty provision for its violation. Jesse Twing,
an employee o f a drug store, with his employer, was arrested for
a violation o f the above act and found guilty. It was alleged that
Twing worked 10 hours in a drug store on a certain day, but it
was further alleged that he was actually engaged at intervals dur
ing the day in the work of selling drugs and medicines and in
compounding physicians’ prescriptions, amounting to only 2 hours,
and during the balance o f the 10 hours he was engaged in the work
o f selling cigars, candies, ice cream, soft drinks, and other articles
of general merchandise. An application was made for a writ o f

HOURS OF LABOR.

139

habeas corpus to secure the release o f Twing. The court held that
no offense was stated in the complaint, and the petitioner was or
dered released. The court, speaking through Judge Waste, passed
over the constitutional question of the right o f the State to regulate
the hours by stating that “ it is now generally recognized and held
that in the exercise of its police power the State may impose such
regulations and restrictions upon the relation of master and servant
as are conducive to the public welfare, health, and safety.” The
point upon which the decision turned and the opinion o f the court
are in part as follows:
The complaint appears to have been drawn for the purpose of
squarely presenting the contention o f the petitioner, which, con
cisely stated, is that the limitation o f working hours prescribed by
the statute applies only to the time the clerk is actually engaged
in performing the work of selling drugs or other medicines, or com
pounding physicians’ prescriptions, and that the time spent by him
in other duties is not to be taken into account in determining whether
or not the law has been violated. From this contention the peti
tioner argues that, as he is charged with having worked but two
hours at the prescribed work on the day in question, the complaint
falls short o f alleging a public offense. From a careful considera
tion of the language o f the statute we think this must be so. The
act by its terms relates specifically to employees engaged in selling
drugs and medicines and compounding physicians’ prescriptions.
Section 2 * * * forbids the selling of drugs, or other medi
cines, and the compounding o f physicians’ prescriptions by the
employee for more than 9 hours during any one day, or 54 hours
a week o f six days. It prohibits nothing else. The legislature
might well have provided that the total working hours of any emmedicines or compounding
p iiy s ic ia n s
j j i c s u n p L i u n o q u u u jx i
exceed a certain number in
each day, regardless o f whether he was actually and continuously
engaged in such work or not. It has not done so, and we are not
permitted to read into the act an interpretation that would make
it a crime to do something the legislature has not prohibited. We
are not unmindful o f the weight of the argument o f the attorney
general that the employment o f a drug clerk at other tasks while
waiting to serve purchasers of drugs and medicines may be as
fatiguing as any other kind of work, and may impair his efficiency
and accuracy to as great a degree, and that it is the possible harmful
results arising from the fatigue caused by long hours of continued
employment from which the legislature sought to protect the public,
but penal statutes must be construed to reach no further than their
words; no person can be made subject to them by implication.
iiu l

H ours of L abor— P ublic W orks— R egulation of W ages— H ours
S ervice A ct— C onstitutionality of S tatute— State v. Tibbetts,

Criminal Court of Appeals of Oklahoma ( March 5, 1922), 205 Pa
cific Reporter, page 776.—By section 3757 o f the Revised Laws of

140

TEXT AND SUMMARIES OF DECISIONS.

Oklahoma for 1910 it was provided that eight hours should constitute
a day’s work for certain employees, including persons employed by
or on behalf o f the State or a municipality; and it was further pro
vided that the employees covered by the act were to be paid on the
basis o f an eight-hour day and at the current rate o f wages paid in
the locality where the work was performed. A penalty o f not less
than $50 nor more than $500 or imprisonment for not less than three
months nor more than six months was provided to punish persons
violating the law. E. R. Tibbetts and Carl Pleasant, about December
20, 1920, were partners doing contract work for the city o f Pawhuska. They had in their employ laborers whom they paid at the
rate o f $5.60 per day at a time when the current rate o f wages in the
city of Pawhuska for the same class of labor was $6.50 per day.
They were charged with a violation of the law above noted, to which
they demurred upon the ground that the facts stated were not suffi
cient to constitute a public offense, pleading that the act unlawfully
interfered with the right to contract. The demurrer was sustained
in the county court and the State appealed. The criminal court o f
appeals reversed the judgment of the lower court. Judge Bessey in
rendering the opinion o f the court said:
We think there is no merit in the claim that the State has no inter
est in regulating the wages o f labor or the hours o f labor affecting
employment in the installation of a municipal sewer system in a city
having a special charter form of government. The police power is
an inherent attribute of State sovereignty, under which the State
may establish wholesome and reasonable laws and regulations de
signed to promote the good order and general welfare o f its subjects.
It is next urged that the act is unconstitutional, in that it impairs
the obligation of contracts and interferes with the freedom o f con
tracts between individuals. In construing a statute almost identical
with our statute, the United States Supreme Court held in Atkin
v. Kansas (191 U. S. 207, 24 Sup. Ct. 124, 48 L. Ed. 148) , that it
was within the power o f a State to enforce such a regulation, and
that it did not impair the obligation o f contracts or interfere with
any constitutional right. Our own court, in Byars v. State (2 Okla.
Cr. 481, 102 Pac. 804, Ann. Cas. 1912A, 765), has spoken in no un
certain terms, in an exhaustive opinion written by Presiding Judge
Doyle holding that this statute is valid and in no way infringes upon
the provisions of the constitution.
The law was therefore upheld as valid.
I nterference w ith E mployment — C onspiracy— M alice—Beards
ley v. K ilm er, Supreme Court of New Y o rk , Appellate Division
{March 17, 1922), 193 New York Supplement, page 285.—This case
was before the appellate division on appeal from a decision o f the
trial court dismissing a complaint brought by Guy W. Beardsley
against the defendant, Kilmer. Judge H. T. Kellogg, who delivered

INTERFERENCE W ITH EMPLOYMENT.

141

the opinion o f the court, pronounced “ this action novel in character.”
Beardsley was editor, manager, and part owner o f a newspaper,
the Evening Herald, published in Binghamton, N. Y. The defend
ant, Kilmer, and his father were owners of the business consisting
in the manufacture and sale o f a medicine known as “ Swamp Root.”
These men had become wealthy through the success of their busi
ness, but the Evening Herald had attacked them as manufacturers
and dealers in “ quack medicines,” not only ridiculing their medicines
but exploiting their domestic and business troubles and u the mis
fortunes o f their relatives.” The Kilmers had sought at various
times to stop the publication o f such articles but failed and threat
ened revenge, finally announcing and entering upon the publication
o f a rival newspaper, the Binghamton Press. They were able to
build up such competition as to draw away a large number o f the
employees o f the Herald and to cut off its business and circulation
so as to convert a profit “ as high as $1,000 per month ” into a con
tinuing loss. This entailed a reduction in Beardsley’s salary from
$100 per week to $40 per week, and finally, on the sale o f the Herald
for its debts, to the loss o f his position. This action was brought,
charging that the loss o f position and salary “ was due to an
unlawful conspiracy ” and that the publication o f the Press was
begun and continued “ with the sole purpose in view o f causing him
injury.”
Having stated these facts, Judge Kellogg stated that, “ It is a
principle o f general application that a malicious motive does not
render unlawful acts wThich in themselves are lawful,” citing a num
ber o f cases; “ or, as said by Sir Frederick Pollock in his book on
Torts, newly edited in the year 1920, ‘ Harm done without excuse can
not be made more wrongful than it is by the addition o f bad feeling
or personal ill will, nor made lawful by its absence.’ ”
An exception claimed in cases where damages have been held re
coverable for maliciously inducing employees to break their con
tracts o f employment was discussed and the conclusion reached that:
In any event it remains the law that a malicious motive does not
convert a right into a wrong. The plaintiff must succeed, therefore,
if at all, upon the theory that the defendants have intentionally
caused him injury without justification.
We think that the plaintiff must fail in the action for three
reasons: First, the acts o f competition complained o f were not ren
dered unlawful by the malicious intention o f the defendants to injure
the plaintiff by performing them; second, the defendants by their
acts interfered with no legal rights possessed by the plaintiff or
his employer; third, the acts of competition complained o f were not
oppressive or unfair and were fully justified as an exercise of the
lawful right of competition. We also consider that the acts com
plained o f did not become unlawful or actionable because the per

142

TEXT AND SUMMARIES OE DECISIONS.

sons engaged therein “ conspired” to commit them. W e therefore
hold that the dismissal o f the plaintiff’s complaint was proper.

L abor D isputes— I ndustrial C ourt— C onstitutionality of
S tatute—State ex rel. Hopkins, A tty. Gen., et al. v. Howat et al.,

Supreme Court of Kansas {November 12, 1921), 202 Pacific Re
porter, page 72.—Proceedings were brought by the State against
Alexander Howat and others for contempt in violating a court order
enjoining them from calling a strike in any o f the coal mines o f
Crawford County. There was a conviction and an appeal. But one
question was presented to the supreme court o f the State for its
decision, namely, the constitutionality o f the statute creating the
court o f industrial relations. The judgment o f the lower court
was affirmed and the act upheld on the authority o f State v. Howat,
109 Kans. 376, 198 Pac. 686 (Bui. No. 309, p. 168), and Court o f
Industrial Relations v. Packing Co., 109 Kans. 629, 201 Pac. 418
(Bui. No. 309, p. 128).
L abor D isputes— R ailroad L abor B oard— J urisdiction—Powers— United

States R . R . Labor Board et al. v. Pennsylvania R . R.
Co., United States Circuit Court of Appeals, Seventh Circuit (A p ril
Session, 1922), 282 Federal Reporter, page 701.— On December 28,
1917, the President, by authority o f the act of Congress o f August
29, 1917, took over the railroads o f the country and operated them
through the Director General of Railroads until March 1, 1920. On
this date the return o f the roads to the companies owning them
was made under the provisions o f the transportation act o f 1920.
During the period in which the railroads were operated by the
Director General, the wages had been increased, the hours had been
regulated, and rules with regard to working conditions were estab
lished. A t the time the railroads were returned to the owners,
many disputes were pending between the employer and the em
ployees. By title 3, the act provided for the creation o f the Rail
road Labor Board with jurisdiction over disputes between the rail
road companies and employees and for a publication o f its findings,
in its own discretion. The Labor Board was organized in April,
1920. A controversy as to wages and working conditions between
the railroads and their employees came before the board. Think
ing that the question as to wages was the more important, it took
up that question first and rendered a decision on July 20, 1920
(No. 2 ), and postponed the question as to rules and working condi
tions until April 14,1921.
On the later date it was decided that such rules and working con
ditions as were fixed in the agreements under the Director General

LABOR DISPUTES.

143

and had been continued by the board should continue until July 1,
1921. The board called upon the individual carriers and their re
spective employees to confer and decide as far as possible respecting
rules and working conditions for the operation o f such railroads
(decision No. 119). The board accompanied this decision with a
statement o f principles or rules o f decision which it intended to
follow in the settlement of disputes between carriers and employees,
two sections o f which are o f importance here. They are:
5. The right o f such lawful organization [o f employees] to act
toward lawful objects through representatives o f its own choice,
whether employees o f a particular carrier or otherwise, shall be
agreed to by management.
15. The majority of any craft or class o f employees shall have the
right to determine what organization shall represent members of
such craft or class. Such organization shall have the right to make
an agreement which shall apply to all employees in such craft or
class. No such agreement shall infringe, however, upon the right
o f employees not members o f the organization representing the
majority to present grievances either in person or by representatives
o f their own choice.
The officers of the Federated Shop Crafts of the Pennsylvania Sys
tem, a labor union of employees, met the representatives o f the
Pennsylvania Railroad Co. They said they represented the majority
o f employees in those crafts, but the representatives refused to
confer with the officers o f the union because of lack of proof that
it represented a majority o f the employees. The railroad sent out
.ballots to the employees over the protest o f the union officers. By
these ballots the employees were limited in their choice o f repre
sentatives to natural persons who were employees of the company,
which representatives should be selected regionally rather than from
the whole system. The union officers instructed its members not to
participate. Votes cast were something more than 3,000 out o f more
than 33,000 employees entitled to vote. The representatives thus
elected agreed upon certain rules and working conditions, whereupon
the union officers filed a complaint with the board and a hearing was
had. The board decided (decision No. 218) that the ballots were
not proper, that the representatives were not properly such, and that
the rules and working conditions agreed upon by them were void.
The company applied to the board to vacate this decision on the
ground that there was no dispute, and therefore that the board did
not have jurisdiction to render the decision. The board declined to
vacate its order. A suit in equity was brought by the Pennsylvania
Railroad Co. against the Railroad Labor Board and others for an
injunction to restrain the board from functioning generally, and
specifically from exercising its asserted right to make rules for the
selection o f the conferees provided for in section 301 o f the transpor

144

TEXT AND SUMMABIES OF DECISIONS.

tation act and from publishing its findings. A decree was entered
by the district court granting an injunction, on the ground that
the board was without jurisdiction in the absence o f a joint sub
mission. {Pennsylvania Railroad Co. v. United States Railroad
Labor Board et aL (May 4, 1922), 282 Fed. 693.) The case was
appealed to the United States Circuit Court o f Appeals, where the
decree o f the district court was reversed, with directions to dismiss
the bill. The company contended that if the act made the decisions
o f the Labor Board binding upon the carriers and enforceable by
appropriate proceedings it is unconstitutional. The court pointed
out that this contention was not timely, as the action o f the board
complained o f was in furtherance o f securing an agreement, with
the probable alternative that if the carriers and their employees
failed to agree the board itself would decide upon and prescribe rules
and working conditions. The court said that “ when this stage is
reached, and one or both o f the parties refuse to obey the board’s
decision, it will be time enough to interpose the defense o f uncon
stitutionality to any undertaking to enforce the decision as one bind
ing and conclusive on the parties.”
Judge Alsebuler, speaking for the court, then took up the construc
tion and application o f the law to the case, saying in part:
Section 301, by its terms, is applicable to “ any dispute between the
carrier and the employees.” I f the concluding sentence o f the sec
tion, providing that in case the dispute is not decided in conference,
it shall be referred u by the parties ” thereto to the board authorized
to deal with the dispute, means that unless both parties agree so to
refer it, the board can not in any event deal with the matter, title 3
might as well not have been enacted; for, if the right o f the board to
act depended upon the joint submission o f the parties to the dispute,
it lay in the power o f either party to block utterly any action by the
board, by simply refusing to join in the submission. Counsel for
appellee [the railroad company] do not contend that title 3 is to
that effect.
This brings us to appellee’s contention that there was here in
volved no dispute o f which the Labor Board could take cognizance,
or o f which under title 3 it had jurisdiction; and this, indeed, is the
ground upon which mainly rests the asserted right o f the court to
interfere. I t is maintained that the transportation act ended the
Railroad Administration, and that thereupon jurisdiction over rules
and working conditions was primarily with the carrier; that it might
adopt sueh as it saw fit, and unless complaint was made by employees,
and a dispute thus arose, the Labor Board had no right to interfere.
The transportation act changed the law, but it did not change the
fact o f the pendency o f the serious dispute respecting wages and
working conditions. The fact that the dispute existed long before
the board was created made it none the less a dispute cognizable by
the board, i f continuing to exist after the board began to function.
It is thus apparent that at the very outset this dispute as to rules and
working conditions was before the board, and was so treated by both

LABOR DISPUTES.

145

parties to the dispute, including appellee. Under these circumstances
it would be immaterial whether it got there by ex parte or joint sub
mission, or on the initiative of the board itself. Title 3 is broad and
remedial, and no fine jurisdictional lines should be drawn to circum
scribe its scope or by procedural technicalities to limit its applica
tion. Assuming the truth of the recitals of fact in decision No. 2,
if instead o f dividing the controversy the board had, at the hearing
o f the wage dispute, also heard the dispute concerning rules and
working conditions and decided it with the other, it would scarcely
have been contended that it had less jurisdiction to hear the one than
it did to hear that which it in fact then heard and determined.
This will answer also appellee’s contention that the Labor Board
had no power to order (as in decision No. 2) that existing rules and
working conditions, until further order, remain as they then wrere
under the national agreement. The whole subject matter being be
fore it, it could make such temporary order concerning it as in its
judgment the exigencies o f the case required. There is also the
further ground that wages and working conditions are closely inter
woven, and the board in fixing the wages in its decision No. 2 predi
cated its findings thereon upon the basis of “ the continuance in full
force and effect o f the rules, working conditions, and agreements in
force under the authority of the United States Railroad Administra
tion.” Thus the rules and working conditions entered into the wage,
and it was proper for the board to fix the wage with reference to
their continuance till changed by agreement or otherwise.
But appellee insists that it did ultimately make an agreement with
its employees respecting rules and working conditions, and that these
were by it put into force, and no dispute concerning them has arisen,
and that the Labor Board is therefore without jurisdiction.
As above stated, Federation No. 90, after vainly endeavoring to
have the ballots make provision for voting for an organization as
representative, conducted an election o f employees, and thereupon ex
parte submitted to the board as a dispute the question of whether the
employees o f a craft might designate an organization to represent
them in negotiations, and whether the law had been complied with in
the method pursued by appellee. Appellee answered, and the dis
pute was orally presented by both parties to the board. Decision No.
218 points out that the contention was made, and not disputed, that a
majority o f the employees did not vote for the representatives with
whom appellee conducted the negotiations, but that the company
maintained, since all had opportunity to vote, this made no difference.
As pointed out, decision No. 218 held that the company election was
void, because it restricted the choice of representatives to natural
p ersons and to actual employees of the road, and it held the em
ployees’ election void for restricting the choice to an organization,
and directed another election to be held, prescribing the form o f
ballot as stated.
It is urged for appellee [Pennsylvania Railroad Co.] that the
matter o f the election o f representatives by the employees is wholly
procedural and is something with which the board is in no wise con
cerned, and its action in this regard was wholly beyond its jurisdic
tion. The force o f the contention is not apparent. Title 3 confers
on the board important duties, and prescribes in section 308 (4) that

146

TEXT AND SUMMARIES OF DECISIONS.

it “ may make regulations necessary for the efficient execution of the
functions vested in it by this title.” This, alone, if, indeed, in the
very nature o f things it were not necessarily so, would empower the
board to make provision for determining whether those purporting
to represent disputants before the board do in fact so represent them.
I f it is claimed that a pending dispute has been adjusted between the
parties to it, it is very essential that the body before whom the dis
pute is pending assure itself of the authority to so dispose o f the
controversy o f those who purport to act for the parties. This is
especially true where one side o f the dispute is a body of individuals,
such as employees o f a great carrier. If, in a controversy pending
before a court, its discontinuance is asked because o f a settlement be
tween the parties, it is necessary that the court ascertain whether
those purporting to represent the parties were in fact such represen
tatives competent to make the agreement. I f this is disputed, the
court must pass upon that issue; and it is not material whether such
an issue is called procedural ” or otherwise. It arises and must be
decided. The same situation is presented to the board where its con
tinued jurisdiction over a pending controversy is denied on the
ground o f its having been settled between the parties. The repre
sentative capacity o f the purported representatives was here directly
challenged and constituted an issue or dispute which the board had
to decide, resulting in decision No. 218 and its subsequent modifica
tion. It was eminently proper that the board, either by general rule
or otherwise, indicate how in its best judgment such representation
should be manifested and the election conducted.
Whether the employees may, if they so choose, be represented by
an organization, as held by the board, or whether they may be rep
resented only by individuals who were employees o f the same em
ployer, as contended by appellee, is not properly a question for a
court. As abstract propositions much may be said on either side.
Title 3 in several instances recognizes representation of employees
by organizations (sections 302, 303, 307a, 307b, 309, 313), and that
was largely the practice with many carriers before Government
control, and generally so during Government control, the national
agreements having been so negotiated. But in so far as it was
for the board in its discretion to determine who was in fact the
authorized representative o f bodies o f employees, that question,
and the manner o f its disposition, was for the board, no question
here arising as to the board’s good faith or its abuse of discretion.
Even though the court were of the belief that more just and true
representation would result through the method o f appellee, it is
not for the court to substitute its opinion for that o f the board in
matters by law committed to the board.
Decision No. 119 directed that the employees choose representa
tives to confer with the carriers, and decision No. 218 directed the
employees to hold an election. This suggests the thought that it is
not for the employer to complain o f decision No. 218 directing the
employees to hold this election. The directed participation o f the
employer was to enable it to know whether the election was fairly
conducted, that all have opportunity to vote, and the ballots cast be
truly counted. True it is that, if the employees select as their rep
resentatives System Federation No. 90, or some other organization,

LABOR DISPUTES.

147

the carrier may decline to confer. This is merely to state that
when representatives are selected either o f the parties may, for any
cause or no cause at all, decline to enter into conference with them.
As applied to this situation, it would simply mean that the board
had failed in its effort to dispose of a pending dispute by affecting
an agreement between the parties interested, with the result that the
dispute still remains with the board, just as if it had not undertaken
to bring the parties to a mutual understanding.
Appellee contends that, wholly regardless of any agreement with
its employees, upon the termination o f Government control it had
the right on its own motion to prescribe rules and working conditions
which would be effective until and unless changed pursuant to the
provisions o f title 3, and that the board was without power over
those rules and working conditions which appellee did adopt,
unless on complaint as to them and hearing on such complaint. What
has been said on the subject of the dispute pending before the board
as to rules and working conditions applies as well to this contention.
It seems the hearing on the pending dispute began before the board
right after its organization. I f after this appellee could by
promulgating on its own motion new rules and working conditions
oust the board of its right to proceed further with the pending dis
pute, title 3 would be without practical effect. The carrier could in
any pending dispute, whether on rules or wages, put forth its own
rules or wage scale, and straightway the authority o f the board over
the dispute pending before it would be gone. The undertaking of
the board to have the parties agree did not withdraw from it the
dispute, and neither did the notice of May 3, 1920, o f the chair
man o f the Association o f Railway Executives to the labor organizat ons that that association had made recommendation to the member
roads (which included appellee) that negotiations respecting con
tinuance o f the national agreements and interpretations thereof be
handled by negotiation between the management and employees of
each road.
Under the foregoing views it follows that the Labor Board did not,
as to the matters involved, transcend its power and functions under
title 3, and that relief under the bill should have been denied. It
will not be necessary to consider the contention, earnestly pressed
for appellant, that the action is in effect one against the United
States, which has not given its consent thereto, and must for that
reason be dismissed.
The decree o f the district court is reversed, with direction to dis
miss the bill.
The railroad company appealed from this decision to the Supreme
Court o f the United States; that court on February 9,1923, affirmed
the decree o f the circuit court o f appeals. The court held that the
district court was wrong in enjoining the Labor Board from pro
ceeding to entertain further jurisdiction and from publishing its
opinions and that the circuit court of appeals was right in reversing
the district court and in dismissing the bill. (Pennsylvania R. R. Co.
49978°—28-----11

148

TEXT AND SUMMARIES OF DECISIONS.

v. United States Railroad .Labor Board et al. (Feb. 19,1923), 43 Sup.
CL 278.)
The line o f argument followed b y Chief Justice Taft, who de
livered the opinion o f the Supreme Court, closely corresponds to that
set forth .above. J ustiee T aft’s observations as to the force and effect
o f the findings o f the board were set forth in the following language:
Title 3 was not enacted to provide a tribunal to determine what
were the legal rights and obligations o f railway employers and em
ployees or to enforce or protect them. Courts can do that. The
Labor Board was created to decide how the parties ought to exercise
their legal rights so as to enable them to cooperate in running the
railroad. It was to reach a fair compromise between the parties
without regard to the legal rights upon which each side might insist
in a court o f law. The board is to act as a board o f arbitration.
It is to give expression to its view o f the moral obligation of each
side as members o f society to agree upon a basis for cooperation
in the work o f running the railroad in the public interest. The only
limitation upon the board’s decisions is that they should establish
a standard o f conditions, which, in its opinion, is just and reasonable.
The jurisdiction o f the board to direct the parties to do what it
deems they should do is not to be limited by their constitutional or
legal right to refuse to do it. Under the act there is no constraint
upon them to do what the board decides they should do except the
moral constraint, already mentioned, o f publication of its decision.
The statute provides the machinery for conferences, the hearings,
the decisions, and the moral sanction. The Labor Board must com
ply with the requirements of the statute; but having thus complied
it is not in its reasonings and conclusions limited as a court is limited
to a consideration o f the legal rights o f the parties.
It is not for us to express any opinion upon the merits o f these
principles and decisions. A ll that we may do in this case is to hold,
as we do, that they were within the lawful function of the board to
render, and not being compulsory, violate no legal or equitable right
o f the complaining company.
F or this reason we think that the district court was wrong in en
joining the Labor Board from proceeding to entertain further juris
diction and from publishing its opinions, and that the court of ap
peals was right in reversing the district court and in directing a
dismissal o f the bill.
L abor

O rganizations— C ollective A greement—B reach— I n
A pplication against E mployer and E mployee—

ju n c t io n —

Schwartz et al. v. Cigar Makers’ International Union el al., Supreme
Court of Michigan (J u ly 20, 192.2), 189 Northwestern Reporter,
page 55j Schwartz et al. v. Driscoll, Acting Circuit Judge, Supreme
Court of Michigan (February 8, 1922), 188 Northwestern Reporter,
page 522.—A labor agreement existed between Bernard Schwartz
and the Cigar Makers’ International Union, Local STo. 22. A
controversy arose as to labor conditions and the union shop plan.

LABOR ORGANIZATIONS.

149

A strike was called and picketing was carried on. Schwartz brought
proceedings in the equity court seeking an injunction against the
union and others. The union filed a cross bill alleging the existence
o f an agreement between the parties under which Schwartz & Sons
agreed, in consideration of the acceptance by the union o f a reduced
scale o f wages, to furnish employment to their shop capacity for a
year to members of the union only. The cross bill alleged a breach
o f this contract and sought a mandatory injunction to compel
Schwartz & Sons to discharge their then employees and reemploy
only members o f the union. A mandatory injunction was granted
by the circuit court, as sought by the union.
Proceedings were brought in the supreme court o f the State
against George O. Driscoll, acting circuit judge, to stay the pro
ceedings under the decree of his court until the case could be
heard and decided on its merits. A writ so doing was granted, for
reasons stated by Judge Moore, quoting several authorities, in
cluding 22 Cyc., page 856, as follow s:
Under ordinary circumstances an employee, whether classed as an
agent or as a servant, can not enforce a contract for service by
enjoining a breach on the part o f his employer. So the employer
will not be enjoined from dismissing an employee or from refusing
to continue to employ him, even though such action is a direct
violation o f contract. * * * For reasons similar to those given
for refusing to enjoin the dismissal o f an employee, the breach o f
a contract to employ only members of a certain union will not be
enjoined.
A t the hearing on its merits, the decree o f the lower court, seeking
to enforce the agreement, was reversed, and an injunction was
granted Schwartz & Sons against picketing, intimidation, etc., by
the union and others.
L abor O rganizations— C ollective A greement— V iolation by
E mployers— I njunction — Schlesinger v. Quinto, Supreme Court

of New York {January 11, 192%), 192 N . Y . Supp. 56!},.—The Inter
national Ladies’ Garment Workers’ Union, an organization o f em
ployees, entered into an agreement with the Cloak, Suit and Skirt
Manufacturers’ Protective Association on May 29, 1919, with regard
to wages and other conditions of employment. This agreement was
to be in effect until June 1, 1922. Among other things, this agree
ment substituted a uniform week work system for the piecework
system formerfy prevailing, and reduced the hours of labor from 48
to 44 per week. Claims were made that workmen were “ soldiering
on the job,” while, on the other hand, employees sought an increase
in the wage rates on account o f the increasing cost o f living during
the term o f the collective agreement. Acrimonious discussions, both

150

TEXT AND SUMMARIES OF DECISIONS.

in conversations and through the press, indicated and developed a
spirit o f controversy, but a supplemental agreement was at length
arrived at on June 3, 1921, providing for a joint commission, repre
senting equally employers and employees, to investigate and report
upon conditions claimed to call for a readjustment o f the agreement
o f May 29, 1919. This June agreement was regarded by the court
as “ being supplemental to that o f May 29, 1919,” so that “ no rec
ommendation under the former could override or make nugatory
the fundamental benefits secured to the plaintiffs under the latter,”
i. e., the earlier agreement.
On October 25, 1921, during the term o f the agreed activities o f
the joint commission, the employers’ association declared that it was
necessary to return to the piecework system, to increase the number
o f working hours, and to reduce the wages. This, o f course, was a
complete departure from the terms of the agreement o f 1919, which
had some months yet to run, and the president o f the union and those
associated with him sued for an injunction to restrain the manufac
turers’ association from its violation o f the agreement. Judge W ag
ner, speaking for the court, stated the facts as above, reaching the
conclusion that—
Out o f the mass o f affidavits submitted by both sides, with denials
and some conflict o f facts, there survives clearly a preponderance o f
evidence in favor o f plaintiff establishing its right to the extraordi
nary relief sought. While this application is novel, it is novel only
in the respect that for the first time an employees’ organization is
seeking to restrain their employers’ organization from violating a
contractual obligation.
On the assumption o f novelty, Judge Wagner laid down the fol
lowing principles as warranting the granting o f the injunction even
though a direct precedent was not at hand.
It is elementary, and yet sometimes requires emphasis, that the
door o f a court o f equity is open to employer and employee alike. It
is no respecter o f persons—it is keen to protect the legal rights o f all.
Heretofore the employer alone has prayed the protection o f a court
o f equity against threatened irreparable illegal acts o f the employee.
But mutuality o f obligation compels a mutuality o f remedy. The
fact that the employees have entered equity’s threshold by a hitherto
untraveled path does not lessen their right to the law’s decree.
Precedent is not our only guide in deciding these disputes, for
many are worn out by time, and made useless by the more enlight
ened and humane conception o f social justice. That progressive sen
timent o f advanced civilization, which has compelled legislative ac
tion to correct and improve conditions which a proper regard for
humanity would no longer tolerate, can not be ignored by the courts.
Our decisions should be in harmony with that modern conception,
and not in defiance o f it. Some nisi prius adjudications rendered
in these disputes, disputes in which the public is as much interested
as the contending parties, have in my judgment reflected a somewhat

LABOR ORGANIZATIONS.

151

imperfect understanding o f the trials and hardships experienced
by the workers in their just struggle for better living conditions.
The question was then discussed as to the power o f a court o f
equity to act under such circumstances, citing New York cases in
which an injunction had been allowed to restrain a labor union from
engaging in a strike in violation of its contract or a contract o f its
members with their employers, citing also “ the well-known case
o f Hitchman Coal & Coke Co. v. Mitchell, 245 U. S. 229, 38 Sup. Ct.
65 ” (see Bui. No. 246, p. 145), in which a labor union was restrained
from attempting to organize workmen who were under individual
contracts not to join the union.
As to the point that sufficient provision for relief existed in actions
at law the court said:
It can not be seriously contended that the plaintiffs have an ade
quate remedy at law. That the damages resulting from the alleged
violation o f the agreement would be irremediable at law is too
patent for discussion. There are over 40,000 workers whose rights
are involved, and over 300 members o f defendant organization. The
contract expires within six months, and a trial o f the issues can
hardly be had within that time. It is unthinkable that the court
would force the litigants into a court o f law. A court o f equity
looks to the substance and essence of things and disregards matters
o f form and technical niceties.
An injunction was therefore issued until a final determination of
the case. The nature of the injunction is indicated by the opening
and closing portions, as follow s:
The motion is granted, enjoining pendente lite defendants herein,
their and each o f their agents, servants, and attorneys, and each and
all o f their several members, and every officer, director, and repre
sentative o f every corporate member thereof, and all persons acting
in aid o f or in conjunction with them, or any o f them, including
members o f the said the Cloak, Suit and Skirt Manufacturers’ Pro
tective Association, from combining and conspiring in any way to
order, direct, instigate, counsel, advise or encourage the members of
the Cloak, Suit and Skirt Manufacturers’ Protective Association, or
any o f them, to cease performing or to violate the agreements of
May 29, 1919, and June 3, 1921, made between the said the Cloak,
Suit and Skirt Manufacturers’ Protective Association and the In
ternational Ladies’ Garment Workers’ Union and the Joint Board
o f Cloakmakers’ Union of the City o f New York, and from doing
or sanctioning any act in furtherance or support of such conspiracy;
* * * and from taking any steps whatsoever to put into execu
tion or to retain in force and effect the aforesaid resolution o f the
said the Cloak, Suit and Skirt Manufacturers’ Protective Associa
tion, adopted on the 25th day of October, 1921; and from taking
further action for the carrying out o f said resolution or o f any o f
the purposes thereof, and they are required to abrogate the same
and to cease acting thereunder or under any similar resolution, or
from taking or continuing in any concerted action involving the

152

TEXT AND SUMMARIES OF DECISIONS

violation or repudiation o f said agreement o f May 29, 1919, or o f
any o f the terms thereof.
Following the foregoing decision, the employers’ association ap
pealed the case to the appellate division o f the supreme court, which
rendered its decision May 26, 1922 (194 N. Y . Supp. 401). This
court discussed the history o f the case at length, repeating the state
ment made by the trial court that “ this is the first time that labor
has appealed to the courts.” 1 It was said, however, that the remedies
o f employers and employees are mutual. “ The law does not have
one rule for the employer and another for the employee. In a
court o f justice they stand on an exact equality, each case to be de
cided upon the same principles o f law, impartially applied to the
facts o f the case, irrespective o f the personality o f the litigants.”
The action o f the court below was affirmed, one justice dissenting.
Justice Page, who delivered the opinion of the court, having made
the foregoing statement, took up the principal grounds fo r the
appeal. The contention was made here that to enjoin the breach o f
contract is in effect a negative requirement of the specific perform
ance o f the contract; and that because the contracts govern per
sonal relations and regulate personal services, equity will not enforce
such contracts unless the employees’ services are unique or extra
ordinary. The court distinguished this case from those in which
there are contracts for individual employment. The present agree
ment was a collective one, representing a group o f employers on
the one hand and a group of employees on the other. Each organi
zation proposes to discipline its constituent members by provisions
established in its by-laws.
Each party knows the obligation that it has assumed and the
consequences o f failure or refusal to perform these requirements.
Through its control o f its members it can compel performance. An
organization having such power to require performance by individ
ual members can, through its officers, be compelled to exercise that
power. There is in this contract a mutuality o f obligation, and
there is also a mutuality o f remedy for its enforcement.
The employers had referred to the injunction as mandatory.
to this, the court said:

The only mandatory feature is that which required the association
to meet and rescind the resolution o f October 25,1921. Inasmuch as
1 In connection with this statement attention m ay be called to the case Atkins v. W . A
A. Fletcher Co. (1 9 04 ) ; 65 N. J. Eq. 568, 55 A tl. 1074, in which an association of ma
chinists sought an injunction against an employers’ association which was interfering
with the claimed right of the former to maintain pickets; also Bogni v. Perotti (1 9 1 6 ),
224 Mass. 152, 112 N. E . 853, where rival labor organizations were parties to a suit for
an injunction. (See also Mastell v, Salo (Ark. Sup. Ct. 1 9 1 9 ), 215 S. W . 5 8 3 ; Moody o.
Modern Window Glass Co. (Ark. Sup. Ct. 1 9 2 0 ), 224 S. W . 4 3 6 ; Gulla v. Barton ( 1 9 1 4 ),
149 N. Y . Supp. 9 5 2 ; Schwartz v. Driscoll, p. 1 4 8 ; Herman Leveranz v . Cleveland Home
Brewing Co., Court of Common Pleas, Cuyahoga Co., Ohio, June, 1922.)

LABOR ORGANIZATIONS.

153

the court enjoined the association from putting the same into effect
or proceeding under it, whether it remained on the minute book
o f the organization or was rescinded, made little difference.
The injunction merely required that the contract for three years
be continued for the remaining six months o f its duration.
The defendants were not required to do anything that they had
not agreed to do, nor were they prohibited from doing anything that
they had a right to do under the contract. The liberty o f the em
ployer to make agreements with his employees as to compensation
was preserved, subject only to the limits voluntarily assumed by the
terms o f the agreement.
Another proposition advanced by the employers was that the rate
o f wages fixed as a minimum was now excessive and onerous, on
account o f industrial changes, making their business unprofitable.
This excuse for the nonperformance of a contract has, within
the last few years, been frequently presented to the courts, but has
never been accepted. Unless the parties have stipulated, in terms,
for relief because o f changed conditions, they must perform their
contract as it is written.
The opinion concludes with a statement of the disastrous results
o f recourse to lockouts and strikes with their concomitant acts of
violence and the final yielding o f one side or the other under a
compulsion o f financial exhaustion, with the result that—
The employer and employee, instead o f cooperating to promote
the success o f the industry, become permanently divided into hos
tile groups, each resentful and suspicious of the other. Therefore,
when the employee, instead o f resorting to force to secure his rights,
an archaic method abandoned by civilized men, seeks redress in the
tribunal constituted by the Government to protect its citizens in
their rights and redress their wrongs, it is the duty of the court to
stop all individual attempts to take the law into their own hands,
and compel both parties to await an orderly judicial determination
o f the controversy.
L abor O rganizations— C onspiracy— I nterference w ith P erform
C ontract— I njunction — B ond to P ay D amages— Central

ance of

Metal Products C o rf. v. O'Brien et al., United States District
Court, Northern District of Ohio ( January 5, 1922), 278 Federal
Reporter, page 827.—The Central Metal Products Corporation has
two factories which manufacture, erect, and install metal doors,
metal frames, transoms, and sash. On June 30, 1921, it entered
into a contract in writing with the city of Cleveland, through its
duly authorized agents, to furnish and install certain interior metal
doors, metal sash, metal frames, and casings for the city hospital
o f the city o f Cleveland, which was under construction at the time.

154

TEXT AND SUMMARIES OF DECISIONS.

The company proceeded to carry out the contract. The company
sent its supervisory staff to the hospital and employed union car
penters at the union wage scale and on union terms and conditions.
Representatives o f the Amalgamated Sheet Metal Workers’ Inter
national Alliance demanded that the work o f installation should
be done by the members o f their sheet-metal workers’ union. The
company refused to comply with the request. O ’Brien, acting on
behalf o f the metal workers, demanded o f the city architect and
director o f public welfare that the company be required to comply with
their request or to break the contract with the company and take
over the work and do it itself. This was not done with sufficient
promptness, and a strike was called o f sheet-metal workers who were
working for other contractors on the city hospital, and later the metal
workers working upon an auditorium building under construction
on behalf o f the city were called from their work. The city architect
and the director o f public welfare finally acceded to the demands
o f the metal workers’ representatives and directed the company
to discontinue further erection work. This was not done, and police
officers o f the city interfered and excluded the company’s employees
from the premises and prevented further performance under threat
o f arrest. A fter procuring written assurances that the company
would have to employ members o f the sheet-metal workers’ union
or that the contract would be broken, the sympathetic strikers re
turned to work. A suit in equity was brought by the Metal Products
Corporation against O’Brien and others. A motion for a preliminary
injunction was made and granted. District Judge Westenhaver
heard the cause argued and rendered the opinion o f the court, stat
ing that “ Press o f business prevents the preparation and filing o f
an extended opinion at this time, and the urgency of the matter
is such that it should be disposed o f without delay; hence my con
clusion only will be stated briefly.”
With regard to the contract between the city and the corporation
he said:
That this contract was duly and legally entered into, that the city
o f Cleveland has not any right to cancel or terminate it, and that
the plaintiff is free to select and employ any competent labor to per
form this work of installation, are matters not in dispute. It fol
lows, therefore, that plaintiff’s right to this contract, to perform the
same, and to reap the profits resulting to it from such performance, is
a right o f property standing upon the same legal basis and entitled
to the same legal protection as is any person’s right to full possession
and ownership o f his private dwelling.
The court held that the corporation was within its legal rights in
refusing to comply with the request of the metal workers’ representa
tives. The court further said:

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No other conclusion therefrom can be drawn than that the de
fendants have entered into a conspiracy to deprive plaintiff o f its
property and to injure its business. A conspiracy is an agreement
o f two or more persons to commit an unlawful act, or to commit a
lawful act by unlawful means. It is immaterial if the city or its
architect and director of public welfare were induced to become mem
bers o f the conspiracy under coercion or to avoid pecuniary loss or
other trouble.
The conspiracy here was unlawful in its purpose. Its ultimate ob
ject was to prevent performance by plaintiff of its contract and to
deprive it o f its contract, unless it would comply with terms and con
ditions contrary to its contract rights, such as neither the city nor
the other defendants had any right to impose or exact. In making
this statement I am not unmindful o f the contention of defendants
other than those representing the city that they are members of
and acting for a labor union, and were seeking only to obtain an
advantage for the members of their respective unions, as to which
some observations will be here made. The means resorted to to carry
out the conspiracy were unlawful. In the first place, the defendants
O ’Brien and Nester were attempting to induce the city to break
its contract with the plaintiff, and it is settled law that one may not
induce or persuade, much less coerce, one to break his contract
with another. This rule is so fundamental that it has been held
that officers and agents o f a union may not induce or persuade em
ployees to break a contract of employment.
Defendants’ contention that the action herein noted was taken
solely in the interests of the union members of the Amalgamated
Sheet Metal Workers’ International Alliance and its Local Union
No. 65, for the purpose of enforcing a jurisdictional award, made by
some national board, of this class of work to the sheet-metal workers’
union, does not justify or protect the defendants. Plaintiff asserts
that the bodies joining in, creating, and enforcing the jurisdictional
award are a conspiracy or combination in restraint o f trade, having
for its object the creation o f a monopoly in the members of the sheetmetal workers’ union in the labor of erecting and installing sheetmetal work o f this kind and character. I deem it immaterial to
consider this last suggestion. The simple fact is that we do not have
here a controversy between employers and employees. In no legal
sense is this a labor dispute. A labor dispute, as defined in section
20 o f the Clayton Act (Comp. St., sec. 1243d) is one “ concerning
terms or conditions of employment.” In Duplex Printing Press Co.
v. Deering, 254 U. S. 443, 41 Sup. Ct. 172 [Bui. No. 290, p. 174], it is
held that this labor dispute, in order to be within the privileges
accorded employees by the Clayton Act, must be limited to a contro
versy between an employer and employees. A t page 471 of 254 U. S.,
at page 178 o f 41 Sup. Ct., Mr. Justice Pitney repudiates the view
that the words “ employers ” and “ employees,” as used in section 20,
can be treated as referring to the business class or clan to which the
parties litigant respectively belong, and declares that the controversy
must be one between some specific employer and persons who stand
to that employer as persons who have been in the past, or are in the
present, so employed or are seeking employment. It is further held
that sympathetic strikes or secondary boycotts as a means of coerc

156

TEXT AND SUMMARIES OF DECISIONS.

ing that employer are unlawful, and that an agreement lawful in
itself becomes illegal when means o f that character are resorted to
to carry the objects o f the agreement into effect. Whatever may have
been held in other jurisdictions, the principles o f law applicable to
this case will be found in Duplex Printing Press Co. v. Deering,
supra, and Hitchman Coal & Coke Co. v. Mitchell, 245 U. S. 249,
38 Sup. Ct. 65 [Bui. No. 246, p. 145]. These cases have been cited
with approval in American Steel Foundries v. Tri-City Central
Trades Council (December 5, 1921), 257 U. S. 184, 42 Sup. Ct. 72
[Bui. No. 309, p. 181], and Truax v. Corrigan (December 19, 1921),
257 U. S. 312, 42 Sup. Ct. 124 [Bui. No. 309, p. 191].
There is no dispute here between any o f the labor union defendants
and the plaintiff concerning terms or conditions o f employment.
They are not seeking to compel plaintiff to employ union labor or to
conduct its business on union terms and conditions. Plaintiff’s em
ployees are members o f the United Brotherhood o f Carpenters and
Joiners o f America, having a national membership o f 400,000, as
compared with a membership of 24,000 o f the Amalgamated Sheet
Metal Workers’ International Alliance. Plaintiff’s union employees
are satisfied with the terms and conditions o f their employment and
the rate o f pay, which the evidence shows are the same conditions
and wage scale as have been adopted by Local No. 65. I f plaintiff
accedes to the defendants’ demand and employs members o f the sheetmetal workers’ union, then the members o f the carpenters and
joiners’ union might with equal legal right indulge in the same con
duct as is here alleged against defendants. I f they did so, their
legal standing would be precisely the same. It results that all the
cases cited on behalf of defendants, even if not in conflict with the
decisions o f the United States Supreme Court and the greater weight
o f authority, have no application whatever to the controversy before
the court.
The union defendants have a right to obtain business in the way
o f employment and wages, which plaintiff has the power to dispose
o f on the same terms, and none other, as the plaintiff would have
the right to obtain a contract which a competitor was seeking to
obtain. In no event does that right include the right to induce or
ersuade another to break an existing contract, much less to do so
y coercion, or by the calling o f sympathetic strikes and the institu
tion o f secondary boycotts. I f plaintiff were employing nonunion
laborers and undertaking to perform this contract on an open-shop
basis, the better considered cases all hold that defendants might not
resort to the means to which they are now resorting, to prevent the
performance by plaintiff o f its contract. (See Hitchman Coal &
Coke Co. v. Mitchell, supra.)
The remedy at law by an action for breach o f contract against
the city is not adequate. In the first place, it does not appear that
the city, through any properly and lawfully constituted authority*
is a party to the conspiracy, and no one except the city council could
properly commit a legal breach o f plaintiff’s contract. In the second
lace the injury to plaintiff’s business, good will, and trade could not
e measured or included in determining the damages in an action
at law. For this and other reasons, it is settled law that injunction
is the proper remedy.

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A preliminary injunction will be granted as prayed for in para
graph 1, except as to the last sentence thereof, which does not appear
at this time to be justified upon the present state of the record. Bond
in the penalty o f $2,000 will be required, conditioned to pay such
costs and damages, if any, as the defendants or any one of them may
sustain, or as may be awarded against plaintiff in the event this
injunction shall be held to have been improvidently awarded.

L abor O rganizations— C onspiracy— L iability for D amages— ]
T orts of M embers— R elation of G eneral and L ocal O rganiza
tions— United Mine 'Workers of America v. Coronado Coal Co.,
Supreme Court of the United States ( June 5, 1922), 1$ Supreme
Court Reporter, page 570.—The Coronado Coal Co. and others had
sued the United Mine Workers of America and others to recover
damages for the destruction of mining property. A judgment was
in favor o f the plaintiffs in the district court, which was affirmed by
the circuit court of appeals with some modification (258 Fed. 829;
see Bui. No. 290, p. 192). The United Mine Workers brought the
case to the Supreme Court on a writ of error, where the judgment o f
the court below was reversed and the case remanded for further pro
ceedings not inconsistent with the opinion delivered by the Supreme
Court.
The plaintiffs were a group o f associated corporations engaged in
the mining o f coal in Sebastian County, Ark. A ll of these were
placed in the hands of a single receiver in July, 1914, and the receiver
ship continued up to the time of the decision in this case. These
mines were situated in what is known as District No. 21 o f the United
Mine Workers of America, in which are 27 local unions o f the organi
zation. These, with the national association and its officers, were the
defendants in the suit. The charge was made that these defendants
had entered into a conspiracy to restrain and monopolize interstate
commerce, in violation of the Federal antitrust act, the method
being the destruction of the plaintiffs’ property so as to prevent the
production o f coal for shipment in interstate commerce.
The original complaint was filed in September, 1914, shortly after
the destruction o f the property complained of. A verdict of $200,000
was awarded, and this was trebled under the law, to which were
added counsel fees and interest, making a judgment o f $745,000
against the union. The amount claimed by the plaintiffs was in
excess o f $2,000,000. These and other facts were set forth by Chief
Justice Taft, who delivered the opinion of the court.
The Chief Justice stated the 44five principal questions pressed by
the plaintiffs in error here, the defendants below.” The first of these
was that the plaintiff companies had improperly united to bring the
suit, but this was held not to be a valid contention, since the comity

158

TEXT AND SUMMARIES OF DECISIONS.

o f interest o f the parties involved was clear and the procedure was
in accordance with the laws of Arkansas.
The second question was as to whether “ the unincorporated asso, ciations, the International Union, District No. 21, and the local
union, were suable in their names.” The international union is so
called because it embraces all of the United States and also Canada,
its purpose being to unite “ all workers employed in and around coal
mines, coal washers, and coke ovens on the American Continent.”
Its purposes are the usual ones o f the betterment o f industrial con
ditions, the securing of joint agreements, and the enforcement of
such demands as the organization decides upon. “ The ultimate
authority is a general convention to which delegates selected by the
! members in their local organizations are elected.” Between conven
tions the international board has control o f affairs; and when the
board is not in session the president has large powers o f administra
tion and control. It was said that the machinery o f the organiza
tion is “ admirably framed for unit action under the direction of the
national officers.” A general strike may be recommended by a twothirds vote o f the board between conventions; “ but under no circum
stances shall it call such strike until approved by a referendum vote
o f the members.” No district may “ engage in a strike involving all
or a major portion o f its members without sanction o f the interna
tional convention or board.” The same article provides that dis
tricts may order local strikes “ on their own responsibility,” but if
they are to be financed by the international union they must be sanc
tioned by the international board. Strikes in unorganized fields must
be sanctioned by the convention or board, and no financial aid will
be given until after the strike has lasted four weeks unless otherwise
decided by the board.
1 The membership o f the organization was about 450,000, producing
a large income and expenditure, “ most o f all in strikes,” so that
“ an extensive financial business is carried on, money is borrowed,
notes are given to banks, and in every way the union acts as a busi
ness entity, distinct from its members. No organized corporation
has greater unity o f action, and in none is more power centered in the
governing executive bodies.” Conceding that at common law “ an
unincorporated association o f persons was not recognized as having
any other character than a partnership in whatever was done,” so
that it could only sue or be sued in the names o f its members, liability
being enforced against each member separately, it was declared that
“ the growth and necessities o f these great labor organizations have
brought affirmative legal recognition o f their existence and usefulness
and provisions for their protection, which their members have found
necessary.” Thus the right to strike is recognized, embezzlement of
funds by officers is punishable, the union label is protected, and labor

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organizations have been given specific recognition in the organiza
tion o f official labor boards and statutory arbitration bodies. Chief
Justice Taft then inserted as a footnote a long list of citations o f
laws recognizing unincorporated labor associations. Continuing, he
said:
More than this, equitable procedure adapting itself to modern
needs has grown to recognize the need o f representation by one per
son o f many, too numerous to sue or to be sued; and this has had its
influence upon the law side o f litigation, so that out o f the very
necessities o f the existing conditions and the utter impossibility of
doing justice otherwise, the suable character of such an organization
as this has come to be recognized in some jurisdictions, and many suits
for and against labor unions are reported, in which no question has
been raised as to the right to treat them in their closely united
action and functions as artificial persons capable o f suing and being
sued. It would be unfortunate if an organization with as great
power as this international union has in the raising o f large funds
and in directing the conduct of 400,000 members in carrying on, in a
wide territory, industrial controversies and strikes out o f which so
much unlawful injury to private rights is possible, could assemble its
assets to be used therein free from liability for injuries by torts
committed in course of such strikes. To remand persons injured to a
suit against each of the 400,000 members to recover damages, and to
levy on his share o f the strike would be to leave them remediless.
Though such a conclusion as to the suability o f trades-unions
is o f primary importance in the working out of justice and in pro
tecting individuals and society from possibility of oppression and
injury in their lawful rights from the existence o f such powerful
entities as trade-unions, it is after all in essence and principle merely
a procedural matter. As a matter o f substantive law, all the mem
bers o f the union engaged in a combination doing unlawful injury
are liable to suit and recovery, and the only question is whether when
they have voluntarily, and for the purpose of acquiring concentrated
strength and the faculty o f quick unit action and elasticity, created
a self-acting body with great funds to accomplish their purpose, they
may not be sued as this body, and the funds they have accumulated
may not be made to satisfy claims for injuries unlawfully caused in
carrying out their united purpose.
Our conclusion as to the suability of the defendants is confirmed in
the case at bar by the words o f sections 7 and 8 of the antitrust
law. The persons who may be sued under section 7 include “ cor
porations and associations existing under or authorized by the laws
o f either the United States, or the laws o f any o f the Territories,
the laws of any State, or the laws of any foreign country.” This lan
guage is very broad, and the words given their natural signification
certainly include labor unions like these. They are, as has been abun
dantly shown, associations existing under the laws o f the United
States, o f the Territories thereof, and o f the States o f the Union.
For the reasons stated the court ruled that the international union
and its subordinate elements o f district and local unions “ were prop

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TEXT AND SUMMARIES OF DECISIONS.

erly made parties defendant here and properly served by process on
their principal officers.”
The next question was as to the responsibility o f the international
union for the disturbances on which the present action was based.
Keeping in mind the distribution o f responsibility for the declara
tion and conduct o f strikes set forth in the provisions o f the constitu
tion already referred to, it was said that the evidence did not show
that the international board ever authorized the strike which had
been declared by the president and officers o f district No. 21, embrac
ing Arkansas, Oklahoma, and Texas. It was a local strike, affecting
certain Arkansas mines, and the international board took no part in
preparation for it or its maintenance; neither did it ratify it by
paying any o f the expenses.
Following this statement, the Chief Justice continued:
It came exactly within the definition o f a local strike in the con
stitutions o f both the national and the district organizations. The
district made the preparations and paid the bills. It does appear
that the president o f the national body was in Kansas City and heard
o f the trouble which had taken place on A pril 6 at Prairie Creek and
that at a meeting o f the international board he reported it as some
thing he had learned on his trip for their official information. He
said that a man named Bache had demanded in a suit an accounting
o f the funds o f the Southwestern Coal Operators’ Association; that
when he secured the information he “ went down to Arkansas and
started to run his mine nonunion. The boys simply marched in
on him in a day down there and kicked his Colorado guards out
o f there and broke their jaws and put the flag o f the United Mine
Workers on top of the tipple and pulled the fires out o f the boilers,
and that was all there was to it, and the mines have been idle ever
since. I do not say our boys did this, but I mean the people from
all through that country marched in and stopped the work, and
when the guards offered resistance several o f them were roughly
handled; but no lives were lost, as I understand it.” Later in May
he made a long speech at a special convention o f district No. 21
held at Fort Smith for a purpose not connected with this matter,
in which he referred especially to the Colorado and West Virginia
strikes in which the international union was engaged with all its
might, but he made no specific allusion to the Prairie Creek diffi
culty. It does appear that in 1916, after Stewart, the president o f
district 21, had been convicted o f conspiracy to defeat the injunction
issued to protect the Prairie Creek mines in this conflict, and had
gone to the penitentiary and was pardoned, White, the national
president, wrote a letter thanking the President for this, and that
subsequently he appointed Stewart to a position on a district com
mittee. It would be going very far to consider such acts of the
president alone a ratification by the international board creating
liability for a past tort. The president had no authority to order
or ratify a local strike. Only the board could do this. White’s
report in an executive meeting o f the board o f the riot o f April 6
shows sympathy with its purpose and a lack o f respect for law, but

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161

does not imply or prove on his part any prior initiation or indicate
a desire to ratify the transaction as his work. The board took no
action on his report. He did not request it.
Communications from outsiders and editorials published in the
United Mine Workers’ journal giving accounts o f the occurrences at
Prairie Creek, and representing that the troubles were due to the
aggression o f the armed guards of the mine owners, and that the
action o f the union men was justified because in defense o f their
homes against night attacks do not constitute such ratification by
the board or the president after the fact as to make the international
union liable for what had been done.
Counsel for the mining companies argued that, since the national
body possessed power o f discipline, it was required to superintend
any local strike of which it had knowledge, “ and prevent its becom
ing lawless at its peril.” The court did not find that any “ such re
sponsibility is imposed on the national body.” Such a rule would
surpass in strictness the requirements laid upon a corporation for
wrongs committed by its agents in the course of its business, and
“ surely no stricter rule can be enforced against an unincorporated
organization like this.”
Another contention and the answer thereto are stated as follow s:
But it is said that the district was doing the work of the interna
tional and carrying out its policies and this circumstance makes the
former an agent We can not agree to this, in the face of the specific
stipulation between them that in such a case, unless the international
expressly assumed responsibility, the district must meet it alone.
The subsequent events, showing that the district did meet the
responsibility with its own funds, confirm our reliance upon the
constitutions o f the two bodies.
We conclude that the motions of the international union, the
United Mine Workers of America, and of its president and its other
officers, that the jury be directed to return a verdict for them, should
have been granted.
The opinion then takes up the question of whether there was a
plot unlawfully to deprive the plaintiffs of their employees by
intimidation and violence, in the course of which the properties of
the companies were destroyed, and whether district No. 21 and the
individual defendants did these things in pursuance of a conspiracy
to restrain and monopolize interstate commerce.
As a basis for the answers of these questions, a detailed account
is given o f the attempt of the companies to change their mines
from a union to a nonunion basis, and the series of events that fol
lowed, leading up to assassinations, murders, and the destruction of
property by fire and dynamite. There was a contract for union
wages and terms with some three months yet to run, but in the at
tempt to reduce the cost of production an earlier change was sought.
To avoid the charge of a breach o f the union contract, a corporation
was organized with a capital of $100 for the purpose of taking over

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TEXT AND SUMMARIES OF DECISIONS.

and operating the business o f the various mines. As the new corpora
tion had made no contract, the manager, Bache, considered himself
free from obligation to the union in regard to operations under his
new corporation. The mines were shut down for a short time and
preparations were made to open them on a nonunion basis a few
days later. In anticipation o f trouble, guards were hired from the
Bums Detective Agency and elsewhere and supplied with Winchester
rifles and ammunition. A cable was strung on posts around the prin
cipal mining plant, and notices issued to former employees to vacate
the company’s houses which they occupied. Notices warning tres
passers were posted and nonunion workers, some 30 or more in num
ber, were gathered at the mine on the day fixed for the opening. A
mass meeting was called through the agency of the officers of the dis
trict and local unions, which “ was given a picnic character, and
women and children attended.” Large numbers were present and it
was addressed by various persons, following which a committee was
appointed to visit the superintendent in charge of the mine. This
committee was met by armed guards, but they admitted the com
mittee to see the superintendent. “ The guards had been directed not
to use their guns save to defend their own lives or another’s. The
union miners assaulted the guards, took the guns away, and so in
jured a number of the employees that four or five had to be sent to
the hospital.” The crowd invaded the premises, pulled the fires from
the engines and boilers, and hurled stones at the fleeing guards.
The result was that the mines were deserted, the pumps stopped, and
the mines flooded. “ One o f the crowd went up to the top o f the coal
tipple and planted a flag on which was the legend, 4This is a union
man’s country.’ ”
Following the above incident Mr. Bache secured an injunction
against the union miners and such agents as he could identify, and
undertook preparations to resume mining. Hostilities were incited
by false rumors as to the attitude and conduct of the guards toward
the women and girls o f the vicinity, and the president o f the district
union offered guns “ if the people would take them.” The secretarytreasurer o f district No. 21 bought some 40 or more Winchester rifles
and sent them secretly to a town in the neighborhood for the purpose
above stated. The district president announced “ that he would not
permit the Prairie Creek mine to run 6nonunion ’ and intended to
stop it.” Other guns were shipped in and the “ evidence leaves no
doubt that during the month o f June there was a plan and movement
among the union miners to make an attack upon Prairie Creek Mine
No. 4.” Some 70 or 80 workers had been procured and preparations
to resume mining were progressing. The tenseness o f feeling increased
until on Sunday night, July 12, a fusillade o f shots were fired into an

labor

o r g a n iz a t io n s .

163

adjacent village, and the cry was raised that “ the scabs were sur
rounding the town,” and guards were put out to defend against an
attack by the guards employed by Bache. That there should be such
an attack was said by the court to be a “ ridiculous improbability,”
as the guards were engaged in protecting themselves and the property
and were themselves in constant fear o f attack. There was also a
statement made by one o f the defendants, “ an active union man,” to
the effect that this shooting had been done by a local constable and
himself “ in order to arouse the hostility of the neighborhood against
the men at Prairie Creek.” Hostilities continued for a number of
days, ending in a direct attack upon the mine, after friends o f the
attackers had been warned to leave to avoid danger. The property
was burned or blown up, a number of the employees were made
prisoners, and several were killed while being held as captives, one
at least the nominal prisoner of the constable above referred to, who
was, according to the evidence, present at the killing with the men in
his custody, on the way, as he said, to the grand jury. “ The over
whelming weight of the evidence establishes that this was purely a
union attack, under the guidance of district officers.”
Testimony was offered by the defendants of “ a palpably artificial
character ” to the effect that this “ was only an uprising o f the in
dignant citizens o f the countryside.” The responsibility o f the
various officers o f the district and the union miners appeared “ so
clearly established that, had that been the only element needed to
justify a verdict, the court properly might have directed it.” The
district president and the union miners, including the constable
above mentioned, were present in the courtroom at the trial, but did
not take the stand to deny the facts established.
Indeed, they had been previously brought to trial for conspiracy
to defeat the Federal administration o f justice and for contempt
because o f these very acts, had pleaded guilty to the charge made,
and had been sentenced to imprisonment, and their expenses as de
fendants in and out of jail had been paid by the district out o f the
district treasury and the disbursements approved by the district
in convention.
A restricted liability was contended for, limiting it only to those
members who were shown by the evidence to have participated in
the wrongful acts committed. As to this the opinion states:
There was evidence to connect all these individual defendants
with the acts which were done, and in view of our finding that dis
trict No. 21 and the unions are suable, we can not yield to the argu
ment that it would be necessary to show the guilt o f every member
o f district No. 21 and o f each union in order to hold the union and
its strike funds to answer. District No. 21 and the local unions were
49978°—23----- 12

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TEXT AND SUMMARIES OF DECISIONS.

engaged in a work in which the strike was one o f the chief instru
mentalities for accomplishing the purpose for which their unions
were organized.
A provision o f the union constitution was then quoted to the ef
fect that responsibility for trouble o f a local character rests for its
adjustment first with the mine committee and officers, and then with
the officers o f the district, who may, if they believe that 44a strike
would best subserve the interests o f the localities affected,” order
such a strike.
Thus the authority is put by all the members o f the district No.
21 in their officers to order a strike, and if in the conduct o f that
strike unlawful injuries are inflicted, the district organization is
responsible and the fund accumulated for strike purposes may be
subjected to the payment o f any judgment which is recovered.
However, as the present suit was instituted under the provisions
o f the Federal antitrust act, it was necessary to show that there was
a conspiracy a with intent to restrain interstate commerce and to
monopolize the same, and to subject it to the control o f the union.”
The relation of the coal fields o f district No. 21, and specifically o f
the Arkansas fields, to the general production of coal in union and
nonunion fields was discussed at length. The proceedings o f the
annual conference and the proposals to secure a thorough organiza
tion in all mines are given in detail. On the basis of these events
the plaintiff companies charge 44a continuously operating conspiracy
between union coal operators and the international union to restrain
interstate commerce in coal and to monopolize it, and that the work
o f district No. 21 at Prairie Creek was a step in that conspiracy
for which it can be held liable under the antitrust act.”
Having stated these facts, Chief Justice Taft said: 44Coal mining
is not interstate commerce and the power o f Congress does not
extend to its regulation as such,” citing Hammer v. Dagenharfc,
247 U. S. 261, 38 Sup. Ct. 629 (see Bui. No. 258, p. 96), in which
the regulation o f the manufacture o f goods by child labor was held
to be outside the purview o f congressional action. Several other
cases were cited in which the court had 44had occasion to consider
the principles governing the validity o f congressional restraint of
such indirect obstructions to interstate commerce.” There is no
question that Congress 44has the power to punish conspiracies in
which such practices are part o f the plan to hinder, restrain, or
monopolize interstate commerce,” but such intention 44must appear
as an obvious consequence o f what is to be done, or be shown by
direct evidence or other circumstances.”
From the evidence it was decided that efforts at unionization o f
nonunion mines were intended 44not only as a direct means of
bettering the conditions and wages o f their workers, but also as a

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means o f lessening interstate competition for union operators,”
which would make it easier to maintain the union scale. I f unlawful
means had been found in use by the national body which affected
mines o f sufficient importance, actual or potential, as to affect prices
in interstate commerce, “ the evidence in question would clearly
tend to show that that body was guilty o f an actionable conspiracy
under the antitrust act.” However, this was a local strike, and
the case differed widely from those cases in which a restraint o f
commerce had been found punishable on account o f the direct
methods there pursued. (Loewe v. Lawlor, 208 U. S. 274, 28 Sup.
Ct. 301; Eastern States Retail Lumber Dealers’ Assn. v. U. S., 234
TJ. S. 600, 34 Sup. Ct. 951, etc.)
There was nothing in the present case to indicate a thought o f
interference with interstate commerce, but only the purpose o f pre
venting the operation o f the mines by nonunion men. Even the
burning o f a car loaded with coal and billed to a town in Louisiana
“ has no significance upon this head.” Bache had breached his con
tract three months before its expiration by employing nonunion men
and had attempted to avoid his obligation by “ a hugger-mugger o f
his numerous corporations,” and had anticipated violence, as was
evidenced by his posting o f signs, stringing of the cable, and post
ing guards with guns for defense. The “ bitter fight,” which he
acknowledged in a letter was anticipated, developed locally within
the meaning o f the international and district constitutions; “ so it
was in fact a local strike, local in its origin and motive, local in its
waging, and local in its felonious and murderous ending.” The out
put o f the mines affected could “ have no appreciable effect upon the
price o f coal or nonunion competition.” Assuming that there would
have been a saving in price from 17 to 20 cents per ton o f coal on
the weekly output o f some 5,000 tons, this should have no “ substan
tial effect on prices of coal in interstate commerce.” The conclu
sion was reached that—
The result o f our consideration o f the entire record is that there
was no evidence submitted to the jury upon which they properly
could find that the outrages, felonies, and murders of district No. 21
and its companions in crime were committed by them in a conspiracy
to restrain or monopolize interstate commerce. The motion to direct
the jury to return a verdict for the defendants should have been
granted.
The judgment was therefore reversed and the case remanded to
the district court for further proceedings in conformity with this
opinion.
L abor O rganizations— H ostile A ttitude— A nticipation of V io
A rmy — Consolidated Coal <& Coke Co.

lence— I njunction — U se of

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TEXT AND SUMMARIES OF DECISIONS.

y. Beale et al., United States District Court, Southern District of Ohio
{J u ly 19, 1922), 282 Federal Reporter, page 93%,.—A great pile o f
slack accumulated on certain premises owned by the Consolidated
Coal & Coke Co. in the mining district o f Perry County, Ohio. The
company wished to remove this slack, but by reason o f the threats
and hostile attitude o f strike sympathizers and inhabitants gener
ally o f the locality, the company thought it dangerous, if not im
possible, to ship the fuel or slack without incurring loss o f life or
bloodshed among its employees. A temporary injunction had been
issued against interference by certain persons with the removal o f
the fuel. The company made application in the equity court for an
order directing the marshal to police the vicinity in which the fuel
was located and the railroad leading thereto with a sufficient force
o f deputies to prevent violation o f the injunction and enable the
company peaceably to load and haul away the fuel.
The application provided for an alternative remedy by asking for
a certificate to the President o f the United States that a state o f
insurrection, within the purview o f section 5299 of the Revised Stat
utes o f the United States, existed in the county, which the State and
local officials could not or did not control and which obstructed the
orderly process o f law and the administration o f justice and required
the presence o f Federal troops. The petition stated that at least
three or four companies o f soldiers would be necessary. District
Judge Peck denied the application for the reasons that the marshal
could not be ordered to police the district and the court was without
jurisdiction to issue the certificate requested.
The court said:
As to the request for deputy marshals to guard the works: This
is not an application for an injunction, nor for the punishment of
persons charged to be guilty o f contempt o f court by violating an
injunction, but for the policing o f a district in anticipation of
future violations now threatened. The primary question involved
is whether the guarding o f an industry under such circumstances
is the function o f a court o f equity. Neither specific statutes nor
the general statutory equity jurisdiction, as interpreted by the
familiar usages of equity, confers any such power upon this court.
The textbooks recognize no such right. No reported case affirms its
existence.
An injunction is a judicial order or mandate requiring a party
to do or refrain from doing a particular thing. It acts in personam
and not in rem, and does not operate to bring the threatened prop
erty into court. The one who threatens injury is ordered to desist,
on the penalties prescribed for the punishment o f contempt. Should
any o f the defendants be shown to have violated the injunction,
they will, o f course, be amenable to such penalties, and it goes with
out saying that the court will employ all the power at its command
to enforce the punishment o f any who violate the order. The
court, however, is now asked to undertake the custody and guarding

LABOR ORGANIZATIONS.

167

o f the property in advance o f such contempt. To do so would be
to go beyond any well recognized or established jurisdiction, and
to undertake a function not devolving upon the court by statute
or the usages o f equity, but upon the executive branch o f the Gov
ernment.
Therefore it is thought that this court should not undertake to
make in advance a decision o f that which is solely for the deter
mination o f the President o f the United States; that is to say, the
necessity o f using troops in a State in any given emergency. Or
derly administration o f the affairs o f the government is never more
important than in difficult times. In such orderly administration
the function which this court is now asked to exercise belongs ex
clusively to the executive, and not to the judicial, branch o f the
government.
L abor O rganizations— I ndustrial W orkers of the W orld—
C riminal S yndicalism — M embership as V iolation of L aw —

People v. Roe, District Court of Appeal of California ( August h
1922) , 209 Pacific Reporter, page 381.—The Statutes o f 1919 of
the State o f California, at page 281, define and provide for the
punishment o f “ criminal syndicalism ” and “ sabotage.” The first
section o f the statute reads as follows:
The term “ criminal syndicalism ” as used in this act is hereby
defined as any doctrine or precept advocating, teaching, or aiding
and abetting the commission of crime, sabotage (which word is
hereby defined as meaning willful and malicious physical damage
or injury to physical property), or unlawful acts of force and vio
lence or unlawful methods of terrorism as a means o f accomplish
ing a change in industrial ownership or control, or effecting any
political change.
Subdivision 4 o f section 2 provides that any person who u organ
izes or assists in organizing, or is, or knowingly becomes a member
o f any organization, society, group, or assemblage o f persons organ
ized or assembled to advocate, teach, or aid and abet criminal syndi
calism,” is guilty o f a felony.
James Roe was arrested on June 22, 1921, in the city o f Sacra
mento while attempting to sell and distribute publications support
ing and advocating the cause of the organization known as the
Industrial Workers o f the World. The purpose o f the organiza
tion as disclosed by the publications was to secure control o f the
Government o f the United States and o f the State governments and
substitute for our present form o f government what the organiza
tion calls an industrial government.
He was indicted under the statute above referred to, and convicted.
Due to certain evidence that was admitted tending to show the pur
pose o f the organization he demanded a new trial, but this was
denied. He appealed to the district court. The court held that

168

TEXT AND SUMMARIES OE DECISIONS.

the question o f the necessity o f the prosecution to plead such publica
tions as would constitute the offense o f criminal syndicalism was
settled, and that it was not necessary, as decided in the cases o f
People v . Steelik, 203 Pac. 78, and People v. Taylor, 203 Pac. 85.
Certain testimony was admitted at the trial for the purpose o f
showing the character of the organization o f which Roe was alleged
to be a member. It was not for the purpose o f showing that Roe
was connected with the acts.
One witness testified that during the course of his employ
ment with several other men on a farm near the city o f Stockton
digging potatoes, 14 other men applied for work and were given
employment. After working all o f the afternoon the 14 men re
tired to the “ bunk house ” with the other men. The following
morning the new employees left the farm. The other men soon
afterwards felt pains in their feet. They found, upon removing
their shoes, that acid in the form o f powder had been deposited in
their shoes. A fter the 14 men had left, some I. W. W . papers were
found in the “ bunk house.” Other witnesses testified that this was
one o f the instrumentalities o f the organization to terrorize labor
ing men who were not members o f the organization for the purpose
o f causing them to refuse to take employment in the fields or fruit
orchards o f the country. This evidence was held properly admitted
at the trial.
Roe admitted that he had been a member o f the I. W . W . since the
year 1918. The conviction was affirmed by the court, Judge Hart
saying:
No one o f sense and fairness will deny the right o f the laboring
classes to maintain an organization for proper self-protection. No
sensible and fair person will deny that an equitable division o f the
profits accruing from the combined operation o f capital and labor
between these two essential elements o f industrial progress and pros
perity should be had. Nor is it a crime per se, or, for that matter,
a crime at all, for a person or a class o f persons to advocate a scheme
according to Utopian ideals for the government o f the peoples o f
the earth and an equal distribution among all the people o f the
fruits o f all material or industrial activity in all its manifold forms.
Yet, when in attempting to crystallize such a condition any organi
zation resorts to criminal acts of any character, or proposes to do it
by the destruction o f property and vested rights, then it has clearly
transcended the line o f demarcation between right and wrong; and
the vice o f the whole scheme o f the organization known as the I. W.
W. is, according to the testimony in this case, in the methods which
it advocates and to which its members without scruples resort for
carrying out its principles, and as to this phase o f the case the record
before us overflows with proof o f the most dastardly crimes known
to the criminal law which were resorted to for the avowed purpose
o f terrorizing the people, in the vain hope o f intimidating them into
accepting the propaganda o f the L W . W . as the true faith in the

LABOR ORGANIZATIONS.

169'

matter o f government. According to the testimony of the two wit
nesses, who, as above stated, were former members o f the Industrial
Workers o f the World (Coutts and Dymond by name), the mem
bers o f that organization not only believe in and teach the over
throw o f our present system o f government, but sanction as the
means o f accomplishing that result the crime of arson, sabotage,
which means the willful destruction o f the machinery of industry
and other property, and any other act which, in their judgment,
will instill into the people at large a feeling o f absolute terror.
While no specific action was ever taken by the organization as
such, authorizing the destruction o f property by the members thereof
by acts o f sabotage or other criminal means, it was, nevertheless, one
o f the rules o f the organization that the members thereof in such
matters should act upon their own initiative whenever they thought
it necessary to accomplish a particular object or the ends o f the
general purposes o f the organization. In a word, both he and Coutts
testified that the organization and its members believed in and
advocated “ direct action ” ; that is, instead of resorting to lawful
methods or pacific means for the redress of what they conceived to
be the industrial wrongs inflicted upon them or for the adjustment
o f any grievances arising between the laboring element and the
capitalistic class, they believed in and advocated the taking of such
matters into their own hands and settling them according to their
own methods.
There now has been presented herein a sufficient explanation or ex
posure o f the cardinal principles, the ultimate purpose, and the
methods o f the Industrial Workers of the World, as the same were
revealed by the testimony, documentary as well as oral, by the record
before us, to show that, as maintained at and before the trial o f this
case they constituted an organization which comes clearly within the
inhibitions of the criminal syndicalism act of this State.
The judgment of conviction was therefore affirmed.

L abor O rganizations— I njunction — C ontempt—J ury T rial—
C layton A ct— Canoe Creek Coal Co. v. Chris tinson, United States

District Court, Western District of Kentucky ( May 1, 1922), 281
Federal Reporter, page 559.—The Canoe Creek Coal Co., a New
Jersey corporation, operated coal mines in Henderson County, Ky.,
and transported its product in interstate commerce. On June 23,
1922, the company brought a bill o f complaint in equity against cer
tain officers and members of the United Mine Workers o f America,
District No. 23, to restrain them in their actions in connection with a
strike that was in progress in the company’s mines. After a hearing
the court concluded that a temporary restraining order should be
made, and the order of injunction was entered on January 27, 1922.
On March 16,1922, the company through its counsel moved the court
for a rule requiring certain of the defendants to show cause why they
should not be punished for disobedience of the injunction. A hear
ing was had and the court decided that two o f the men were guilty

170

TEXT AND SUMMARIES OF DECISIONS.

and should be punished for contempt o f the court. The defendants
had demanded a jury trial, but the court tentatively overruled the
motion, but did not pass sentence until it disposed o f the question
o f the right o f the defendants to a jury trial.
In deciding the case against the right o f the men to a jury trial
Judge Evans said in part:
There is in the Clayton Act no specific manifestation o f any pur
pose to repeal section 268 o f the Judicial Code, and it is this situation
that makes manifest the importance o f the inquiry whether section
21 o f the Clayton A ct (Comp. St., sec. 1245a), though very general
in terms, was intended to apply to or reach any and all contempt
cases, or was intended to be limited to those committed in cases
“ within the purview ” o f the Clayton Act, namely, the “ antitrust ”
laws, or was it so general as also to repeal section 268 of that code by
reason o f its being in different language?
In this connection the remarkable situation presents itself o f the
courts being required in equity cases within the purview o f the
Clayton Act. to impanel juries to hear and determine by a unanimous
vote the usually very minor questions o f disobedience o f the
court’s orders and process in such cases, though all other issues o f
fact raised therein, however vast their importance, must be tried
by the court alone without a jury. In short, in equity cases under the
antitrust laws, a jury must be impaneled to try the mere question
o f disobedience o f the court’s orders—thus leaving the court under
the domination o f the jury in respect to the enforcement- o f its
orders, while the immensely greater issues, involving the most impor
tant rights, are to be settled by the court alone, in conformity with
the equity practice established upon centuries o f experience and
recognized by the Constitution in article 3, section 2.
Such an anomaly might have been the result o f the effort to meet
some demand for provisions in the antitrust laws; that in great
measure, if not altogether, being the occasion o f the legislation. In
our effort to ascertain whether it was also the intention of Congress
in respect to cases outside the purview o f the antitrust laws to
require jury trials in the very subordinate matter o f disobedience
o f the court’s orders, or whether the requirement as to juries was
intended to be limited to the narrow field o f the antitrust legislation
and the purview of the Clayton Act, and thereby leave section 268
o f the Judicial Code in full operation outside that field or purview,
we have industriously gone over what we suppose are the important
factors, and have been convinced that this case, as made by the bill
o f complaint, is not one which is within the purview of the Clayton
Act in any o f its features, and therefore that the provisions of
that act as embodied in sections 21 and 22 thereof do not apply to
this case, but that section 268 of the Judicial Code, if not repealed,
may be applicable and controlling in this instance.
Upon these grounds we have concluded that the respondents,
S. C. Sandefur and Letcher Martin, were not entitled to demand a
jury trial, and that the refusal of that demand conformed to the
requirements of the situation. The court will therefore now impose
a sentence upon each of those respondents, which will not, however,
go beyond a fine.

LABOR ORGANIZATIONS.

171

L abor O rganizations— I njunction — C ontempt—P unishment —

Campbell v. Motion Picture Machine Operators et at., Supreme Court
of Minnesota ( January 27, 1922), 186 Northioestem Reporter, page
787.—This case involves the same parties and circumstances as the
case having the same title, noted at page 185. Certain parties were
found guilty o f contempt of court for violating the injunction issued
in that case and appealed.
The court below had awarded damages, in the form of a fine, and
also an attorney’s fee. The former was reversed, and the latter af
firmed, on grounds that appear in the following quotations from the
opinion o f the court:
Proceedings against persons charged with contempt of court are
o f two classes—those prosecuted to maintain and vindicate the au
thority o f the court; and those prosecuted to make effective the
remedy given to a private party. Proceedings o f the first class are
purely penal in their nature and their purpose is to enforce obedience
to lawful authority in the interest of the public. Those of the second
class are civil in their nature and their purpose is to secure to a pri
vate party the rights to which he is entitled. Contempts prosecuted
in proceedings of the first class are commonly designated as criminal
contempts, and those prosecuted in proceedings of the second class
as civil contempts. Both may be, and frequently are, combined in
one proceeding; but in such cases the punitive part of the proceed
ing must conform to the law governing criminal contempts and the
remedial part o f it to the law governing civil contempts.
The findings o f the court in the proceeding in contempt are
lengthy. It is sufficient to say that they are to the effect that the de
fendants had willfully and persistently violated and disobeyed the
judgment in the main action and the injunction issued thereunder
for the purpose of injuring the plaintiff, and thereby had prejudiced
plaintiff’s rights and were defeating the remedy given him by the
court.
The fine was imposed “ for the benefit o f plaintiff herein,” and
therefore can not be held to be a penalty imposed under section
8863 for the criminal contempt. (Gompers v. Buck’s Stove & Range
Co., 221 U. S. 418, 31 Sup. Ct, 492, 55 L. Ed. 797, 34 L. R. A. (N.
S.) 784.) Consequently it rests upon the provision o f section 8364
authorizing the court to award indemnity to plaintiff for “ any
actual loss or injury ” to him caused by the contempt. While the
record warrants an inference that he sustained a loss in his business
on account o f the acts of defendants, there is no evidence whatever
tending to show the amount of such loss. The statute does not
authorize the court to impose a penalty on defendants for the bene
fit o f plaintiff. It merely authorizes the court to award to plain
tiff a sum sufficient to indemnify him for the damages sustained and
for his costs and expenses; and if the award be accepted it operates
as a bar to an action for such damages. That the award may be
designated as a fine does not change its character. It is imposed
for the purpose o f compelling defendants to make compensation
for the loss and injury caused to plaintiff by their violation of the

172

TEXT AND SUMMARIES OF DECISIONS.

order and judgment o f the court; and it must be based on proof o f
the damage actually sustained.
As there is no proof o f the amount o f damage actually sustained
by plaintiff, the court erred in decreeing that the defendants each
pay a fine in the sum o f $125 for his benefit.
The payment o f the attorney’s fee o f $100 was imposed on de
fendants as a joint obligation arising out o f a joint offense, and
the judgment is valid in so far as it requires the payment o f this
fee and makes provision for enforcing payment thereof. [Cases
cited.]
It is urged that payment o f the money judgment entered by the
court can not be enforced by imprisonment without violating the
constitutional provision forbidding imprisonment for debt. That
a person convicted o f contempt, who fails to comply with the judg
ment imposed therefor, may be coerced to do so by imprisonment
without infringing this constitutional provision, whether the judg
ment directs the payment o f money or the doing o f some other act,
has been settled too long and too firmly to require further discussion
or the citation o f authorities.
The judgment appealed from is reversed in so far as it requires
the defendants to pay a fine in the sum o f $125 each for the benefit
o f plaintiff, and is affirmed in so far as it requires the defendants
to pay an attorney’s fee o f $100 and provides for the enforcement of
such requirement.
L abor O rganizations— I njunction — C ontempt— P unishm ent —
P ardoning P ower— State ex rel. Rodd v. Verage, County Clerk,

et at., Supreme Court of Wisconsin ( A p ril 11, 192%), 187 Northwestern Reporter, page 880.—The Rhinelander Paper Co. had labor
troubles with its employees, who, as a result, left its employ. The
company obtained an injunction against these former employees
and others, against intimidating, threatening, menacing, or offer
ing abuse or physical violence to the employees o f the company
or their families, or in any way interfering with the company in
securing employees, other than by recommending, advising, or per
suading persons by peaceful means not to enter into or continue in
the employ o f the plaintiff.
Peter Christ was subject to this injunction. On July 2, 1921, he
was sentenced to imprisonment for four months in the county jail
for contempt o f court for a violation o f the injunction. On the 26th
o f October, 1921, the governor pardoned Peter and ordered Hans
Rodd, the sheriff, to release him. This Rodd refuse 1 to do. The
governor then took proceedings to remove Rodd from office because
o f his alleged official misconduct. He was removed and one Charles
Asmundson was appointed to fill the vacancy. Rodd then took pro
ceedings to decide the question as to whether the order removing him
from office was a valid exercise o f executive power, and whether the
removal was lawful so as to create a vacancy in the office o f sheriff.

LABOR ORGANIZATIONS.

173

The supreme court, therefore, had several questions before it. The
first was:
What was the power in the governor to remove the sheriff, from
his office? The court held that he could only be removed for cause.
It was stated that a public office was regarded as a property right.
In stating its reasons for its decision the court said that if it held
otherwise the governor could remove those who were distasteful to
him from personal, political, or other reasons. But “ that idea is
not only obnoxious to an inherent sense o f plain and fundamental
justice, but it is out o f harmony with the genius and spirit o f our
institutions, and would seem to neutralize a fundamental principle
o f popular government, which was plainly intended to be intrenched
in the fundamental law o f the State.”
The court further said that it was not customary nor consistent
with the theory o f the government “ to vest in any person the power
to arbitrarily remove any elective officer.” But having decided that
point, another question arose, i. e., whether the conduct on the part
o f the sheriff upon which the governor based his order o f removal
constituted legal cause. I f the governor had the power to pardon the
prisoner, it was the undoubted legal duty o f the sheriff to recognize
the pardon and release him. On the other hand, if the governor
was without power or authority in the premises, the sheriff would
not be complying with the court’s order o f commitment, nor with his
legal duty in the premises, if he recognized the governor’s pardon.
The constitution o f the State empowered the governor “ to grant
reprieves, commutations, and pardons after conviction for all offenses
except treason and cases o f impeachment.”
The contention was raised on behalf o f the governor that under
this authority his power was similar to that exercised by the King of
England. The court pointed out that even the King could not pardon
“ where private justice is principally concerned in the prosecution
o f offenders.” And the King could not exercise the power o f pardon
in certain classes o f contempt cases. The contention was then raised
that the court was powerless to do more than impose criminal punish
ment for the wrongful act, in which punishment no one could have a
private interest.
Continuing the argument, it was contended that the court having
punished for a criminal contempt, the power o f the governor to
pardon sprang into existence. The court said that the result o f this
would be to make the court powerless except by sufferance of the gov
ernor to protect the individual in the enjoyment of his rights. It
was held by the court that for the purpose o f securing justice to all
it was necessary that the courts have power to compel respect for and
obedience to their orders and decrees, and “ for this purpose the

174

TEXT AND SUMMARIES OF DECISIONS.

power to punish for contempt, as a remedial and coercive measure, is
deemed an inherent and indispensable power o f the courts.”
Judge Owen, speaking for the majority o f the court on the power
o f the court in contempt cases, said further:
Should the governor disapprove o f the decision o f the court, and
consider the relief granted to be an act o f injustice, he could nullify
the action o f the court, and deprive a party litigant o f the relief to
which a court might hold him entitled, by granting in the form o f a
pardon a license to the contemnor to disregard the order o f the court.
This in effect would vest in the governor a power o f review of the
decision, not only o f a trial court, but o f this court, and, should a
decision be offensive to his views o f justice, he could by the exercise
o f his power o f pardon effectually deprive a party litigant o f rights
belonging to him under the law o f the land. It should be remem
bered that, if the governor has power to pardon Christ in this case,
he has power to pardon any other person who may be imprisoned for
violating an injunctional order. While there may be many who
think as a matter o f abstract principle that the governor should have
the power o f pardoning one who is committed for the violation o f a
labor injunction, it must not be forgotten that, if he be conceded
power to pardon in such cases, then he may pardon in all cases where
aii injunctional order is violated.
But, if the doctrine for which defendants contend is to prevail,
it is to prevail in spite, and not by reason, o f principles obtaining at
common law. By that law, punishment to compel restraint was no
less private in its character than punishment to compel action. There
was, o f course, this difference in the result to the contemnor: Where
he was imprisoned to compel action, he could secure his release by
complying with the order o f the court; but where he was imprisoned
because o f past executed wrongful conduct, it was beyond his power
to secure his release, because of the impossibility o f undoing that
which he had done.
In considering a similar situation in He Debs, 158 U. S. 564, at
page 596, 15 Sup. Ct. 900 (39 L. Ed. 1092), Mr. Justice Brewer
said:
“ In brief, a court, enforcing obedience to its orders by proceedings
for contempt, is not executing the criminal laws o f the land, but only
securing to suitors the rights which it has adjudged them entitled
to.”
So we arrive at the conclusion that where a court, in order to protect
private rights, issues its order restraining the commission o f certain
acts, and it subsequently is made to appear to the court that one has
committed the acts prohibited under circumstances which indicate
a purpose on his part to disregard the order o f the court, and
to continue in the performance o f the acts prohibited, and that such
continued conduct will injuriously affect the rights o f a party to
the action, the court may, as a refnedial measure, civil in charac
ter, and for the purpose o f preventing further injury to the suitor,
imprison the contemnor, and especially is that so when the court is
moved to action on the application o f the aggrieved party. The
dominant character o f the imprisonment is remedial and coercive,
although a punitive effect may also result. The proceeding being

LABOR ORGANIZATIONS.

175

civil, it is at all times under the control o f the court, and the court
may release the imprisoned contemnor when, in its judgment, the
exigency requiring the imprisonment no longer exists.
The contempt committed by Christ could have been punished
either criminally or civilly. While there was doubt as to whether
criminal or civil proceedings were instituted against him, the court
had the sole power o f determining whether such proceedings were
civil or criminal. It unmistakably construed them to be civil pro
ceedings. This construction was binding upon all the world, until
reversed. The only person who possessed a sufficient interest to
secure a review o f that determination was Christ. He made no
effort to secure a review or reversal o f the determination, and, con
sequently, it remains binding upon everyone, including the governor.
It being judicially determined that Christ was incarcerated in the
course o f civil proceedings, and for the dominant purpose o f pro
tecting civil rights, a determination which it is beyond the power
o f the governor to disregard or set aside, and it being conceded that
the power of the governor to pardon in contempt cases exists only
in cases o f punishment of a criminal nature, if it exists at all, it
follows that he was without any power to pardon Peter Christ.
Being without such power, his pretended pardon in no mamier
affected the duty o f the sheriff, which was to detain Christ under
the order o f commitment. In refusing to recognize the pardon, and
in retaining the custody o f Christ, the sheriff was but in the per
formance o f his legal duty, and a removal based upon his refusal
to honor or respect the pretended pardon constitutes a removal
without cause, and it necessarily follows that the order of removal
should be set aside.
L abor O rganizations— I njunction — P arties— E quitable R ights
R e m e d i e s — R . R. Kitchen & Co. v. Local Union No. H I , Inter
national Brotherhood of Electrical Workers, Supreme Court of A p
peals of West Virginia ( A p ril 25,1922), 112 Southeastern Reporter,
page 198.— In the city of Wheeling, W. Va., during the year 1921 there
existed a controversy over wages between contracting employers on
the one side and local organizations of union labor engaged in the
building trades on the other. The workers had been working under
an agreement which had prescribed wages, and when the contract ex
pired the dispute began. The employers demanded that the wages be
reduced and the workers resisted this demand. The employers asso
ciated together under the name o f Building Construction Employers,
and established an employment office in the city. This employers’
association was composed of 22 corporations, 8 partnerships, and 28
individuals, engaged in the following work: Contracting for wood
work, 19; for electrical work, 10; for plumbing, 16; for bricklaying,
6; for tin and sheet-metal work, 6; and for structural-iron work, 1.
They brought a suit in equity against certain labor unions, their offi
cers, and individual members, charging conspiracy to prevent the em
ployers from executing their construction contracts and from obtain
a n d

176

TEXT AND SUMMARIES OF DECISIONS.

ing other contracts and prosecuting their several and intimately re
lated businesses, by misrepresentation, persuasion, and intimidation,
through threats, violence, picketing, boycotting, and otherwise, and
praying for an injunction.
By way of defense the defendants set up that the employers did not
set forth in their bill a good cause o f action. The questions brought
up by this defense were decided in favor o f the employers, and the
defendants appealed to the supreme court o f appeals. In that court
the order o f the lower court was affirmed, in an opinion delivered
by the president, Judge Poffenbarger.
The questions settled and the reason for the conclusions arrived at
are in part as follow s:
Among the plaintiffs, there is complete unity and solidarity in the
demand for wage reductions in the vocations followed by the defend
ants. And there are like and equal unity and solidarity among the
defendants in their resistance of that demand. Nothing unlawful is
charged or perceived in the general purpose o f either group. In the
question o f a general wage scale affecting their business, all employ
ers o f the same class have a common interest and manifest right to
contend jointly for adoption or agreement upon one deemed by them
to be practicable, just, fair, and equitable, and the workmen have a
like right. Ordinarily, one class o f contractors might not have any
interest in wage scales pertaining to the business o f other classes and
not directly affecting them. However that may be, this bill alleges
the extraordinary case o f an association o f contractors to enforce a
demand for reduction of wages in all vocations, and o f the organized
workmen in all o f the building branches o f labor to resist it. In the
effort to maintain their position and accomplish their declared pur
pose, the former have jointly proclaimed inauguration o f the open
shop in all o f their respective departments o f industry and are en
deavoring to maintain it, by prosecution o f their businesses with
labor employed at what they conceive to be reasonable and fair
wages and without reference to affiliation with any labor organiza
tion. In resistance o f the demand for reduction, there was either a
lockout or a strike and a consequent cessation o f the business of the
plaintiffs. Their effort to resume under the open-shop principle is
resisted by refusal o f the defendants to accept employment at the
wages offered and under the conditions imposed. Although there is
a prayer for an injunction against the alleged strike, it is based upon
the methods by which it is alleged to be maintained or prosecuted.
There is no serious contention against the lawfulness o f the strike un
mixed with wrongful acts as a weapon; wherefore there is no occasion
to enter upon any inquiry as to its legal status. I f it is such, it is
not the only measure o f resistance alleged to have been adopted by
the defendants. The charges are that they picket the employment
agency, the places o f work, the lodging and boarding places of the
employees, and, in some instances, by persuasion or inducement, and,
in others by threats and violence, cause the employees to break their
contracts and refuse performance in some cases and cease it in others,
to the great injury and damage o f the plaintiffs. If, by the use of

LABOR ORGANIZATIONS.

177

such methods, directed and applied to the business o f each of the
plaintiffs, all are prevented from prosecution o f their respective
enterprises, they are all similarly affected by the same illegal cause,
wherefore they may unite in resisting it, and there is no misjoinder
o f parties plaintiff. [Cases cited.]
The allegations o f inducement to the breaking o f contracts of
service, by persuasion, express and implied threats, and actual vio
lence, and o f joint perpetration or procurement thereof are as full,
complete, and definite as such charges can be made, ordinarily, in
cases o f this kind. The wrongful acts are alleged to be of constant
occurrence and unrestricted scope. They occur around the employ
ment agency, along the streets, at the places of work, and about the
lodgings and homes of the employees. They are directed against
the business o f the plaintiffs through their employees, wherever and
whenever they can obtain any workmen. Their generality, per
vasiveness, constancy, and similarity are significant of concert and
direction, such as might characterize the activities of a committee o f
action representing all of the defendants, and the bill alleges that
they are the emanations of confederacy and conspiracy on their part.
In our opinion the sufficiency of these allegations is beyond doubt.
Such action may be enjoined.
A proper order will be entered, recording our opinion tha; the de
murrers were properly overruled by the court below, and certified
to that court.
L abor O rganizations— I nterference w ith E mployment — R e
W ork for N onunion E mployer— Sheehan v. Levy et al.,

fusal to

Commission of Appeals of Texas {March 22, 1922) , 238 Southwest
ern Reporter, page 900.—P. J. Sheehan was a plumbing contractor
in the city o f Dallas, Tex., in the year 1918. In his employ were
members o f Local Union No. 100 o f the Journeymen Plumbers under
a week-to-week employment agreement. Union wages and hours
were effective. In August, 1918, one Royse, the business agent of the
local union, advised Sheehan to join the master plumbers’ associa
tion and subscribe to the working agreement then existing between
the association and the union, under which the workmen received
many benefits Sheehan did not grant. Sheehan refused to join.
He was then given notice that after 60 days, if he still continued to
refuse to join the association, the union men in his employ would
be withdrawn. This was done about the middle o f October, 1918.
A t that time he had several contracts for work to be done, and be
cause o f this and for other reasons stated below he filed a petition in
the district court seeking damages for injuries already sustained
and an injunction to prevent the association and the union from
“ pulling ” his men or interfering with them in any way. The peti
tion alleged that the association and the union had conspired and
agreed that the union would “ pull ” the men; that the union with
drew its men with malice aforethought and for the sole purpose of

178

TEXT AND SUMMARIES OF DECISIONS.

injuring him ; that he could not get other competent men; and that
he was about to suffer irreparable injury.
The trial court refused to enjoin either the association or the union,
and its judgment was affirmed by the court o f civil appeals at Dallas
(215 S. W. 229; Bui. No. 290, p. 205.) The case was taken to the
supreme court and the judgment was again affirmed, this court
adopting the judgment recommended by the commission o f appeals
prepared by Judge Powell, which reads in part as follows:
The evidence was conflicting on Sheehan’s allegations that the
master plumbers’ association had conspired with the local union to
withdraw Sheehan’s laborers and injure him. The district court
and the court o f civil appeals decided the conflict against Sheehan’s
contention.
When the record upon any point contains conflicting evidence, and
the district court and court o f civil appeals make the same determi
nation o f the conflict, the result is binding upon the supreme court.
This brings us to the determination o f the contention by Sheehan,
that he was entitled to an injunction against the local union prevent
ing its members from ceasing work for him. W e think the court of
civil appeals also correctly decided that this injunction was properly
denied by the district court.
In the very recent case o f Griffin v. Insurance Co., 235 S. W . 202,
the commission o f appeals inserted in its opinion the notation made
by our supreme court in granting the writ o f error therein. We
quote from said notation as follows:
“ A man may lawfully refuse to have business relations with an
other for any reason—on account o f whim, caprice, prejudice, or ill
w?ill. He may lawfully induce others to refrain from having busi
ness relations with such third person, though it injuriously affects
such person, provided his action be to serve some legitimate interest
o f his own.”
In granting the writ o f error in the case at bar, our supreme court
says that, if the Sheehan workers were withdrawn for no other pur
pose than to injure his business, the withdrawal was wrongful and
therefore actionable. So the law is well settled, and we now come
to a consideration o f the statement o f facts to determine whether the
local union withdrew its men from Sheehan for the sole purpose of
injuring his business, or whether they did so in order that they might
serve some legitimate interest of their own. What are the facts ?
The court then stated that under the statute laws o f Texas as
well as under the common law as generally interpreted, working men
may organize and take action to promote their general welfare, and
that “ in the case at bar the action o f the local union in question was
well within its rights.” There was neither boycotting nor picketing.
Nor was there any evidence o f malice or ill will.
On the contrary, it [the evidence] is full of testimony showing
that their relations were at all times o f the most friendly character.
In the first place, the rule o f the local union requiring its members to
work only for contractors who were members o f the master plumbers’

LABOR ORGANIZATIONS.

179

association was entirely impersonal. It was not directed toward
Sheehan alone. It was a general rule. It further shows that the
local union did everything in its power in a friendly and proper way
to induce Sheehan to join the association and come within the rule.
But counsel for Sheehan insists that the latter should not be de
prived o f his liberty as an American citizen. No one made any
effort to so deprive him. He had the right to decide whether he
would join the association and subscribe to its working agreement
with this local union, and thereby continue to work the local’s mem
bers, or would refuse to do so and employ other laborers. The union
contained 40 or 50 members at the time. There is much evidence in
the record that Dallas had many other plumbers. There were non
union plumbing firms and other plumbers not connected with any
firm or union. Sheehan could have worked them and exercised his
option not to join the association. We see no reason why he should
be permitted to say he will not work anyone except members of
Local Union No. 100 and at the same time dictate the terms o f his
contract with the members o f that union. I f he wants to work them
and them only, and is unwilling to subscribe to their terms, which
they can obtain from other contractors, Sheehan can blame no one
but himself. Certainly men can not be censured for working where
they feel that their general welfare is better subserved.
We are not prepared to say that the withdrawal o f the men could
have been justified had Sheehan tendered them a contract contain
ing the 21 sections which are included in the working agreement
entered into July 22, 1918, between the local union in question and
the master plumbers’ association. I f the members o f the local union
could have gotten exactly the same contract with Sheehan that the
master plumbers offered them, we doubt if they would have had
the right to quit working for him just because he would not join the
association. The local union should not be permitted to dictate
membership in some outside organization as a condition precedent
to their working for a given individual, where the local union would
not reap any individual benefits by reason of its demand. We think,
in the case at bar, the local union was not interested primarily in
building up the master plumbers’ association. Its increase in mem
bership was only an incident to their chief purpose to better the work
ing conditions o f the men. The fact that Sheehan did not join
the association and avoid all this litigation is strong evidence, to
our minds, that he was unwilling to accede to the 21 conditions
embodied in the working agreement aforesaid. That being true he
has no right to complain. Certainly, no one can, in any wise, be cen
sured for choosing to work where he fares better. Sheehan paid
union wages and observed union hours, as hereinbefore stated, but
there is no pretense that he was willing to accede to the 21 rules in
question.
L abor O rganizations— M onopolies— F ixing P rice of P roducts—

Standard Engraving Go. v. Volz, Supreme Court of New Yo rk ,
Appellate Division {A p ril 21, 1922), 19S New York Supplement,
page 831.— The Standard Engraving Co., wTith others associated in
49978°—23-----13

180

TEXT AND SUMMARIES OF DECISIONS.

the Photo-Engravers’ Board o f Trade o f New York, had entered
into an agreement with the New York Plioto-Engravers’ Union, a
labor organization comprising about 90 per cent of the competent
journeyman photo-engravers in* the city o f New York. This agree
ment provided among other things for the maintenance o f a closed
shop, and was to cover the calendar year 1921. In 1918 a
decision had been rendered to the effect that the antitrust act (secs.
340, 341, ch. 20, Con. L.) was not applicable to photo-engravers,
but was intended to prevent restraint o f trade and the creation
o f a monopoly in articles or commodities for common use. Inasmuch
as photo-engraving is a service and not a commodity, the agree
ment for a closed shop was held not in violation o f this law. (People
v. Epstean, 102 Misc. Rep. 476,170 N. Y . Supp. 68.) Following this
decision the union “ had established and adopted a minimum selling
base for photo-engravings,” and notified the employers’ association
thereof, stating also that a sale below said base was a detriment to
the members o f the union and “ would be stopped by the withdrawal
o f members o f the union from the employment o f such concerns
as sell below the said so-called minimum selling ba§e.” Some em
ployers disregarded this notice and had strikes in their shops as a
consequence.
In 1921 the antitrust law was amended so as to include “ any
article or product used in the conduct of trade, commerce, or manu
facture ” (ch. 712, Acts o f 1921). Up to that time the plaintiff com
pany had conformed to the minimum selling base, but thereafter
disregarded it to meet the competition o f other concerns who, sub
sequent to the amendment, were making sales secretly below the
union rates. The act came into effect on May 13, 1921, and on
May 17 the company notified the union that this amendment made
the price-fixing plan illegal, so that it would be necessary for the
company to disregard the plan entirely. Threats o f coercive meas
ures and interference with the business o f the employer followed,
the members o f the union claiming that they were acting within
the law.
The original statute was enacted in 1897, and slightly amended in
1899. In 1918 a provision was added exempting cooperative associ
ations o f farmers, gardeners, etc., a provision that was admittedly
unconstitutional and void as creating an unwarranted discrimination.
(Connolly v. Union Sewer Pipe Co., 184 U. S. 540, 22 Sup. Ct. 431.)
This invalidity was held by the union to destroy the entire act, both
the act o f 1897 and its extension o f 1921. This contention the court
denied, pointing out that the amendment o f 1918 could by no pos
sibility o f construction be considered as an inducement to the enact
ment o f the law o f 1897; while the amendment o f 1921 was for the

LABOR ORGANIZATIONS.

181

purpose “ o f extending the scope o f the act and clarifying the
meaning o f section 340, due to the interpretation of the act in the
Epstean decision.” The amendment o f 1918 was therefore an in
effective gesture, and in no wise impaired the validity of the principal
act or its amendment of 1921. The opinion concludes;
It being our opinion that the Donnelly Act is in full force and
effect, regardless o f the unconstitutional amendment of 1918, it
inevitably follows that any attempt on the part of the defendants
to interfere with the management of the plaintiff’s business with
respect to the prices at which it may sell its products is unlawful,
and in direct violation of the statutes.
The injunctive order granted by the trial court restraining the
union from declaring a strike was therefore affirmed.

L abor O rganizations— P icketing— I njunction — A cts of U nion
W orkers— Keuffel & Esser v. International Association of Machin

ists, Court of Errors and Appeals of New Jersey ( January 26,1922),
116 Atlantic Reporter, page 9.— The company named sued the ma
chinists’ association, seeking an injunction to restrain picketing and
‘ other interference with the conduct of its business. A strike had been
organized, and active in it was one Bausch, “ who described himself
as business agent of District No. 15 of the International Association
o f Machinists.” The plant had not been fully organized, and Bausch
undertook to extend the organization o f the union, though it was in
evidence that he was not active as a picket. Only 140 of the 700 em
ployees went out on the order for the sympathetic strike involved in
the case, but later, due to mass picketing, largely by imported picketers, the force was reduced to about 25. The number o f picketers
“ reached as high as 200.”
On the evidence the offense was one o f picketing by numbers
rather than by the use of violence. A preliminary injunction had
been issued covering points of personal molestation, the annoyance
o f persons employed or willing to be employed, the use o f violence,
threats, insults, or coercive conduct, attempts to break off employment
by intimidation or annoyance, going to the homes o f employees
for the purpose o f intimidation, annoyance, or coercion, or in any
manner or by any means molesting or interfering with complainant’s
employees in going to or returning from their daily work. As to
these specific points no appeal was made. “ The object of the appeal
avowedly is to secure a decision as to the legality o f picketing
when unaccompanied with violence, molestation of others, annoying
language or conduct—in short, what is sometimes called peaceful
picketing.”

182

TEXT AND SUMMARIES OE DECISIONS.

Reference was made by Judge Swayze, who delivered the opinion
o f the court, to the decision o f the Supreme Court in the case, Ameri
can Steel Foundries v. Tri-City Central Trades Council, 257 U. S.
184, 42 Sup. Ct. 72 (see Rul. No. 309, p. 181). Though this case
applied provisions of the Clayton Act, “ Chief Justice Taft discussed
the case also as a matter o f common law,” so that the decision was
said to be practically controlling. That decision was regarded as
determining the right o f the employer to be protected and the right
o f his employees to have access to his place of business and egress
therefrom without intimidation or obstruction, while “ the em
ployees, recent or expected, have the right to use peaceable and lawful
means to induce present employees and would-be employees to join
their ranks.”
The failure o f the defendants to appeal against the restrictions
noted in the injunction granted was taken by the court to be a con
fession o f the conduct complained of. “ Injunctions against parad
ing and picketing must be read in the light o f such admitted con
duct.” Judge Swayze then said:
There can, as Chief Justice T aft said, be no such thing as peaceful
picketing in such surroundings, and the evidence shows how mere *
picketing by overwhelming fdrce runs into intimidation and breach
o f the peace. The law now recognizes the right o f members o f
trade-unions to combine in order that they may deal with their
employers on terms approaching equality. On the same principles
employees must be left unmolested in order that their conduct may
be controlled by their reason, unaffected by the vis metus o f great
numbers, which corresponds to the vis major o f physical force.
It might perhaps be claimed that the terms o f the injunction
from which an appeal was taken were unnecessary in view o f the
extent o f the restraint, but they were necessary to present the d if
ferent question o f the right to restraint when the situation is such
that what would otherwise be peaceful persuasion becomes in the
actual fact a system o f terrorism. It was in this view that the terms
appealed from were added; we think properly added.
Taking up the issue o f the injunction against Bausch, it was said
that the proof sufficed to show that he was directing the strikers
and endeavoring to secure members with a view to compelling the
unionization o f the shops.
He denies that he actively intervened; he admits that he accepted
their invitation to aid in forming an effective organization. We
think a man who takes part in forming, fomenting, or aiding an
effective organization for the illegal purpose for which this organi
zation was in fact used can not escape liability by letting others do
the work o f “ active intervention.” He aided in forming, fomented,
and aided an “ effective organization” which at once committed
unlawful acts, for which it was properly enjoined, as it admitted
by failing to appeal.

LABOR ORGANIZATIONS.

183

Kuling, therefore, that “ in the existing situation Bausch’s conduct
tended immediately and directly to unlawful conduct of men asso
ciated with him in a common enterprise,55 the order for the injunc
tion was affirmed with costs.
There were vigorous dissents, the conclusion for affirmance being
sustained by five justices of the court of errors and appeals and four
judges of the court of chancery, while opposed to it were four jus
tices and one judge. Chief Justice Gummere based his dissent
“ upon what seems to me to be the unwarranted scope o f the order
appealed from.55 The particular point excepted to was the abso
lute prohibition of picketing, which was regarded by the chief
justice and others in agreement with him to be unjustified, as “ re
straining the defendants in the future from the exercise of their
legal rights in a peaceful and orderly manner by prohibiting fur
ther picketing, even though done in a lawful way.55

L abor O rganizations— P icketing — O rdinance against D isplay
B anner — C onstitutionality — Watters v. City of Indianapolis,

Supreme Court of Indiana {March 14, 1922), IS4 Northeastern
Reporter, page 482.—Under clause 31, section 8655, Burns’s Statutes
o f 1914, the cities o f Indiana are given power “ to regulate and pro
hibit the exhibition or carrying of banners, placards, advertisements,
or hand bills on the streets, alleys, or public places.55 Under this
power an ordinance was passed in the city of Indianapolis, which
provided that:
It shall be unlawful for any person or persons, in or upon any
public street, sidewalk, alley, or other public place in the city of
Indianapolis, to carry any banner, placard, advertisement, or hand
bill, for the purpose o f displaying the same: Provided, That the
terms o f this ordinance shall not be held to apply to processions
o f menageries, circuses, minstrel shows, public processions, and the
like exhibitions.
After this ordinance became effective, one Charles Watters, wear
ing a shirt bearing the inscription on the front and back: “ Barber
Shop Unfair to Organized Labor,55 walked back and forth in front
o f a barber shop in the city of Indianapolis. He was arrested, and
the city recovered a penalty from him for violation of the ordinance.
He appealed upon the ground that the city was arbitrary and un
reasonable in the exercise of its power, and that he was denied the
equal protection of the laws by an ordinance that granted privileges
and immunities to public processions and like exhibitions, and
denied him his liberty and took away his property in the same cir
cumstances. He also contended^that he was restrained from “ the
free interchange o f thought and opinion, * * * the right to

184

TEXT AND SUMMARIES OF DECISIONS.

speak, write, or print freely,” etc., in violation o f section 9, article
1, o f tlie State constitution. The supreme court o f the State, how
ever, affirmed the judgment o f the lower court. Judge Townsend
delivered the opinion of the court, holding the ordinance in question
valid and constitutional. In the course o f his opinion, he said:
This court will not attempt to vie with a city council or the legis
lature in the expediency or wisdom o f legislation.
The reason for the classification in the ordinance, which inheres
in the subject matter and the circumstances, is very plain. The
carrying o f placards and banners may attract crowds and blockade
the streets and sidewalks. By this method, too, class hatred is
sometimes stirred up, and a breach o f the peace caused. Cities can
not afford police officers enough to watch all persons in all places
at all times. These powers to regulate and prohibit are given to
enable a city to encompass and control that which may attract
crowds or cause trouble. By the powers given under other pro
visions o f the statute, cities require that notice be given to the police
department o f public parades. By this method the officers know
when and where a crowd is apt to be attracted. They may accord
ingly make arrangements to properly police those streets, direct the
traffic, prevent congestion, and avoid danger and trouble. Appel
lant is not prevented from participating in these parades. He has
the same privileges and immunities that all other citizens have in
like circumstances.
Nor is he denied the right o f “ free interchange o f thought and
opinion,” or “ the right to speak, write, or print freely.” He may
hire a hall or print a paper. But this does not mean that he will
do as he pleases on a public street, which is kept by all the people
for use under such restrictions that, as near as possible, all may
enjoy it.
L abor O rganizations— P icketing — T ermination of S trike — I n
junction — Yates

Hotel Co. v. Meyers, Supreme Court of New Y o rk ,
Special Term (J u ly 15 1982), 195 New York Supplement, page
558.— The Yates Hotel Co. sued for ail injunction against John
Meyers individually and as president o f the Cooks’ and Waiters’
Local No. 150, and others. In September, 1920, when about 15
waiters were employed by the hotel company, a request for a closedshop contract with increased wages was refused, the company claim
ing that it was unable to grant the request on account o f business
depression. The waiters thereupon “ voluntarily left plaintiff’s em
ploy,” but their places were filled within a week with experienced
help and the hotel continued to operate with satisfactory service
to the company and its guests and patrons.
A chief engineer was discharged about this time on account o f
inefficiency, and a new chief put in his place at the same wages. The
other engineers were told that they could keep their positions as
union men at union hours and wages, but the demand was made that

LABOR ORGANIZATIONS,

185

the chief engineer join the union under penalty of a strike, which
followed. These places were also filled, but picketing was under
taken and maintained for some time, after which it ceased for some
seven or eight months, being renewed in the fall of 1921. This was
said to have developed into a public nuisance, with threats, abuse,
intimidation and acts of violence and interference with the use of
the sidewalk and entrances to the hotel.
The suit was for a preliminary injunction until final action de
ciding the rights and status of the parties. This was granted by
Judge Devendorf, who after stating the above charges and claims
announced the general principles governing the situation, includ
ing the right of the waiters to strike and the engineers and firemen to
withdraw if they did not wish to work with a nonunion chief. The
right to organize was recognized, as well as of picketing within
limitations. However, trespass and violations are illegal at any time,
while if no strike is in existence no right whatever to picket can be
established. In view of the liberty o f the employer to refuse an in
crease o f wages and to hire such help as was suited to its purpose
and willing to be employed, and o f the nonexistence o f any strike
at the present time, the injunction was granted.
The strike, if it may be termed as such, was long over. The men
had walked out and their places filled with efficient help a year
before; they were no longer employees. The whole affair o f 1920 was
a dead issue, and any picketing or interference with plaintiff’s busi
ness at that time was not only malicious but unlawful. A con
tinuance of these acts, as described by plaintiff, must necessarily
bring upon it irreparable financial damage, and no possible benefit
whatever can come to the defendants by giving them a free hand to
repeat or continue any and all acts, on their part, o f last year.

L abor O rganizations — R estraint op T rade — I njunction —

Campbell v. Motion Picture Machine Operators’ Union of Minne
apolis, Local 219, Supreme Court of Minnesota (<January 27, 1922),
186 Northwestern Reporter, page 781.—The Motion Picture Oper
ators’ Union o f Minneapolis, Local 219, is an unincorporated asso
ciation having a large membership composed of motion picture ma
chine operators. The Trades and Labor Assembly is an unincor
porated association composed o f delegates from local trade and labor
unions in the city o f Minneapolis. The Assembly edited and pub
lished a Labor Review. Until February 4, 1917, John J. Campbell,
the owner o f a moving picture theater in the city of Minneapolis
employed none but members of the local union to operate the ma
chines in this theater. However, on February 10, 1917, having de
cided to reduce his expenses, he terminated the contract o f employ

186

TEXT AND SUMMARIES OF DECISIONS,

ment with one o f his operators, and gave notice to the local union,
informing them that in his effort to reduce expenses he was going to
operate his own machine for the whole or a greater portion o f the
time, but was willing to employ one member o f the local at the wage
scale fixed by the union to relieve him a portion o f the time each
day. The union did not agree to this arrangement. Campbell then
attempted to join the union, but was not taken in because o f their
rules against the admission of an owner or proprietor o f a theater.
From and after February 24, 1917, the day o f the termination o f
the contract o f employment, Campbell operated his own machine
with the aid o f a nonunion operator. Campbell was mentioned in
the Labor Review as being unfair to organized labor, and was listed
in a “ We do not patronize list.” A picket was stationed with a
banner in front o f the theater. Prior to the action taken, Campbell
brought an action to restrain the union and others from continuing
the course o f conduct which they had pursued with reference to the
controversy. A n injunction was granted and an appeal was taken
to the supreme court o f the State. That court had before it the
questions o f whether the antitrust statute o f the State applied to this
case, and whether the acts o f the defendants amounted to an un
lawful boycott. The court in deciding the questions gave g*eat
weight to cases decided by the Supreme Court o f the United States
under the Federal antitrust laws. In affirming the action taken by
the lower court, Commissioner Lees said :
It would be an anomalous situation to have the Federal courts
sitting in this State administering one rule in the adjustment or
control o f labor troubles, while the State courts at the same time are
administering another and different rule upon the same facts—a con
dition inviting disrespect for law and leading to confusion and dis
order.
Nor have we any misgivings in construing the expression “ trade,”
as used in the [State] statute, to include labor. In fact, that would
seem the only conclusion justified under the construction given the
Sherman Act by the Supreme Court. I f the act was intended to
apply, and does apply, to a combination o f employers against em
ployees, there is in that combination restraint o f trade. For his
labor the laborer has nothing which may be the subject o f barter
and exchange like the goods and chattels o f the employer. And, if
lie is to have the protection o f the statute against a combination of
employers, his labor, as he offers it in exchange for what it may
earn, must be held trade within the meaning o f the statute. I f this
be not so, then the employee is without the protection o f the statute.
It would shield and protect the employers only— a conclusion not
justified by the general scheme and purpose o f the law or the con
struction given it by the Supreme Court. It would be unfair to at
tribute to the legislature an intent to exclude the laborer from the
protection o f the statute.

LABOR ORGANIZATIONS.

187

A contention was raised that the judgment went too far and was
an infringement on the right o f free speech guaranteed by the Con
stitution. <With reference to this the court said:
I f defendants’ only purpose was to notify the public that there
was a controversy between plaintiff and Local 219, the judgment
was too broad; but if they unlawfully combined to restrain plaintiff's
trade and the publications were made in furtherance of the combi
nation and portended injury to plaintiff or his patrons, the judgment
was proper.
It was found that the publications were made in furtherance of
the purpose of the combination. The purpose to be accomplished
was unlawful. Blows were aimed at plaintiff’s business, intended
to injure or destroy it, in order to subdue him to the defendants’
demands, and the statement that he was unfair was one of them.
The right o f free speech is abused when words become verbal acts,
and are then as much subject to injunction as the use o f any other
force whereby property is wrongfully injured.
In conclusion the court said:
The rights of labor organizations are defined by chapter 493, Laws
o f 1917, which enacts in the form o f a statute principles theretofore
announced by the courts. The rights o f employers have also been
defined. (Section 8890, G. S. 1913.) There should be no misunder
standing about the restrictions which the law has imposed on both
parties to a labor dispute, and necessity for resort to the courts
should seldom arise. Courts are not adapted to effect settlements of
controversies essentially economic in their nature, but when, in the
course o f such a controversy, fundamental personal or property
rights are invaded, the duty o f the courts is plain. This is such a
case. Serious injury to the personal and property rights of the
plaintiff has not only been threatened, but accomplished. Since
this opinion was formulated the Supreme Court of the United States
has decided the cases of American Steel Foundries v. Tri-City, etc.
Council, 257 U. S. 184, 42 Sup. Ct. 72 [see Bui. No. 309, p. 181], and
Truax v. Corrigan, 257 U. S. 312, 42 Sup. Ct. 124 [see Bui. No. 309,
p. 191]. Under the doctrine they announce, the result in this case
would necessarily be the same.
The judgment o f the district court went no farther than was
justified by the facts and the law, and it is accordingly affirmed.

L abor
O rganizations— R evocation op C harter— P roperty
R ights— Grand Lodge of International Association of Machinists v.

Reba, Supreme Court of Errors of Connecticut ( February 21, 1022),
116 Atlantic Reporter, p. 235.—A subordinate lodge of the organiza
tion named, known as Lodge No. 30, was duly chartered by the grand
lodge, and was in existence at Bridgeport, Conn. In August, 1919,
the grand lodge, for reasons not stated, revoked the charter of the
local and claimed the right to the possession of funds and property
o f the subordinate body, amounting in all to about $7,000. Frank

TEXT AND SUMMARIES OF DECISIONS.

188

Reba and others associated with him, officers and trustees o f the local
lodge, denied the right o f the grand lodge to this property and re
fused to deliver possession. The superior court of Fairfield County
upheld the claims o f the local lodge, from which the grand lodge
appealed, with the result that the action o f the lower court was
affirmed.
Judge Curtis, who delivered the opinion o f the court, said:
Primarily the right of possession o f the property o f a voluntary
association is in the association; that is, in its members or their
officers and agents.
The revocation by a grand lodge o f the charter o f a subordinate
lodge severs the relations o f the grand lodge and the subordinate
lodge, but it does not necessarily extinguish the voluntary association
o f the members o f the local lodge.
Their property continues theirs in title and possession, unless it is
otherwise provided in the constitution o f the parent organization,
which they agreed to and accepted when they became members o f
the association.
It appeared that the constitution prescribed by the grand lodge
provided that the trustees o f each local lodge should be legally
liable to the general executive board for all funds and other prop
erty under their control; also that in the case o f a lodge lapsing, the
trustees should turn over to the general secretary-treasurer funds
and property in their possession to be held for prescribed disposi
tion. The section containing this latter provision is entitled “ Merg
ing or disbanding.” In commenting on this section, Judge Curtis
said that the fact that the local lodge “ accepted a provision which
took the possession or title o f their property from them in any
event should appear without reasonable question.” The provisions
o f the constitution referred to were said not to meet the test.
When individuals associated to form Lodge No. 30 in order to
become chartered as a subordinate lodge o f the grand lodge, they
were not informed by any provision o f the constitution o f the grand
lodge, nor did they agree that if the officers o f the grand lodge
revoked its charter, the grand lodge would then become entitled to
the right o f possession o f the property o f their voluntary association.
In the absence o f such notice and agreement, the right to the
possession o f its property continued in the members voluntarily
associated in Lodge No. 30 and in their agents, the defendants.

L abor

O rganizations—R ules— E ffect

W aiver— S tatus—

Bruns v. M ilk Wagon Drivers’ Union, Local 603, St. Louis Court of
Appeals, Missouri ( June 6, 1922) , 21$ Southwestern Reporter, page
If19.—Henry Bruns was a member o f the Milk Wagon Drivers’
Union, Local 603, a labor organization o f St. Louis, Mo. The
by-laws o f the organization provide that dues shall be $1.25 per month

LABOR ORGANIZATIONS,

18 9

and must be paid in advance on or before the fourth Thursday,
and if not paid in accordance with the by-laws, no sick, accident,
or death benefits will be allowed. Henry Bruns had been a member
o f this union long enough to entitle his beneficiaries to $500. He
always paid his dues from three to five weeks behind the time
required by the by-laws. This money he paid to the secretarytreasurer of the union, who always accepted the payments.
He died on October 31, 1918. Demand for the benefit was made
on the union by the parents o f the deceased, but payment was re
fused. Suit was brought to recover the amount and the defense set
up by the union was the fact that deceased had not paid liis dues
in accordance with the rules of the organization. Judgment was
rendered for the beneficiaries and an appeal was taken.
In the higher court another contention was raised by the labor
union, which was to the effect that being a voluntary unincorporated
labor union they were not capable o f suing or being sued under the
laws o f the State. The appellate court, however, held against the
union, sustaining the judgment of the lower court. The court said
that under section 1186 of the Revised Statutes of 1919, the State
provided how writs were to be served upon voluntary or unincor
porated associations, and “ such an organization as this is a legal
entity and entitled to sue and be sued the same as corporations.”
With regard to the other defense the court said that the union had
always accepted the dues and assessments o f Bruns and “ never
undertook to forfeit his insurance, or made any protest, and would
therefore be precluded from successfully invoking such defense
now.”
L abor O rganizations— R ules— E xpulsion op L ocal from I nter
U nion — I njunction —Bricklayers', Masons’ and Plaster

national

ers' International Union of America, Local No. 7 v. Bowen, United
States District Court, Southern District of Texas ( January 11,
1922), 278 Federal Reporter, page 271.—The local named and others
made application for a temporary injunction against the interna
tional union and its executive board to restrain them from putting
into effect a judgment issued by the executive board suspending cer
tain members o f the union. A temporary injunction was issued with
out notice. Later a hearing was had and the following facts were
brought ou t: In the application of the local for a charter in the in
ternational union the members pledged themselves individually and
collectively to be governed by the constitution, rules, and usages of
the Bricklayers’, Masons’ and Plasterers’ International Union.
Among the rules of the order it was provided that all judicial and
executive authority o f the international union was to be vested in the
executive board. Provision for appeal from the executive board was

190

TEXT AND SUMMABIES OF DECISIONS.

provided for. and any proceedings brought in court without exhaust
ing the remedies provided by the constitution were to subject the
member to expulsion.
The local indulged in protests against the salaries o f the members
o f the executive board, criticised their conduct, and started a move
ment for a referendum election under which it was hoped new officers
would be elected. The executive board, in a proceeding to discipline
the local, alleged that the local had violated that provision o f the
constitution which prohibited the sending out o f circulars, etc., per
taining to official acts of the local or business affairs of the interna
tional union. The executive board suspended the local from mem
bership in the international union and proceeded to organize a new
local union to take the place o f the old one. A t the hearing on the
application for an injunction the defense set up was that the court
was without jurisdiction over the subject matter of the suit. The dis
trict court allowed the injunction, saying through Judge Hutcheson:
As to the lack o f jurisdictional amount, it is clear that complainants’
suit is a class or representative suit, and it is well settled that in
such suits the aggregate interests o f the whole class, and not the
several interests o f each individual, constitute the matter in dispute.
Further, it is the settled rule that the amount in controversy in
injunction suits is not the suifi which the plaintiff might recover in
a suit for the damage already sustained, but the amount or value
o f the right which the complainant seeks to protect from invasion,
or o f the object to be gained by the bill.
Nor is there any greater merit in the contention that the suit
must fail because o f the want o f the requisite diversity o f citizen
ship, since while it is true that the international union as such has
no such citizenship as would sustain jurisdiction, the members o f the
executive board have all been served and have duly answered, and
their citizenship is sufficient to give this court jurisdiction.
I am strongly o f the opinion that the field o f judicial interference
with the actions o f voluntary, nonpublic bodies, as to controversies
between their members as to the method and manner in which the
rights o f membership may be maintained and continued, is, and
should be, a very narrow one, and that its boundaries should be main
tained with the utmost care, so that only upon the clearest kind of
showing, either that the constitution and rules are violated by
the decisions o f the tribunals set up by them, or that the remedies
provided by the parties in their agreements for appeal from or the
review o f the decisions o f their own constituted tribunals are nonex
istent or unreasonable, should the courts permit their jurisdiction
to be invoked, and it is in that spirit that I approach the inquiries:
(1) Is the matter complained o f in this case one which has been
conducted to judgment in accordance with the constitution and by
laws o f the order? And if so—
(2) Are the complainants, by the rules and constitution o f the
order, and the procedure extended to them under it, furnished an
adequate appeal from that ruling, which they have not yet availed
themselves of?

LABOlt OBGANIZATIO jSTS.

191

A negative answer to the first question will make an answer to the
second question unnecessary, for, if the act o f the executive board
here complained of is void for want of authority or jurisdiction,
the aggrieved parties may at once apply to the courts for relief, since
such acts are in law viewed, not as the acts of the union itself,
within the meaning of its rules and by-laws, but as the acts of the
officers as individuals to whom the rules and by-laws of the union have
no more application than if a stranger to the union was endeavoring,
by force and violence, to interfere with these complainants in the
enjoyment o f the rights accorded to them as members o f it, just
as, though a suit may not be maintained against the State or its o f
ficers, when they are acting within the authority o f a valid law, it
is universally recognized that an injunction will lie against a State
officer, when he is acting without warrant or authority o f such law.
Section 2 of article 17 (constitution o f the international union)
contains a list o f crimes, and fixes penalties therefor; but in this
list there is no reference to the matters made the occasion for the
judgment which is the subject of complaint here.
It follows, then, that the attempted action o f the executive board
is without official sanction, or color o f sanction; that their judg
ment, and the acts done under the authority of and pursuant to that
judgment, are not the acts o f the union, and must be held to be the
acts o f intermeddlers and void; and that complainants, as citizens
o f a great Republic, which affords the protection of its courts against
arbitrary and despotic actions to those entitled to it, whether rich
or poor, union or nonunion, may therefore now apply to the court
for relief against the wrongs and aggressions which they have
suffered, from the illegal action o f the defendants, without being
obligated to take any steps within the union to relieve themselves
from these undoubted wrongs.
There is another aspect of this case which is sufficient to support
the view here announced that the judgment of the executive board
is a nullity—the want o f judicial fairness which characterized these
whole proceedings. It is a fundamental principle that no judicial
or quasi judicial hearing is valid where the maxim “ audi alteram
partem” [hear the other side] is ignored, and it is therefore of
the essence o f a valid judgment that the body which pronounces it
shall be unbiased, shall have no interest whatever in the outcome of
the issue, and shall not have in any manner prejudged or prede
termined it.
There is authority for the position that the very nature or this
controversy, involving as it did a proceeding to discipline com
plainants on account of protests made by them against the salaries
of the executive board, a criticism of their conduct, and a movement
to secure a referendum election, by which new officers could be
elected, rendered the executive board disqualified as a matter o f
law to sit in judgment and made their judgment a nullity.
The judgment and the proceedings of the executive board in the
matter o f the complaint of Charles L. Wilde against subordinate
Union No. 7 o f the Bricklayers’, Masons’ and Plasterers’ Interna
tional Union being, for the reasons heretofore stated, o f no effect, it
follows that their action in attempting to institute a new local is
also void and without force and effect, and complainants may have
a temporary injunction protecting them in their rights secured to

192

TEXT AND SUMMARIES OF DECISIONS.

them under the constitution and laws o f the order, just as though
the complaint o f Charles L. Wilde against Local No. 7 had never
been filed or determined.

L abor O rganizations— R ules— E xpulsion of M embers— R ight
P etition—F lyn n v. Brotherhood of Railroad Trainmen, Supreme

Court of Kansas ( June 10, 1922), 207 Pacific Reporter, page 829.—
The Brotherhood of Railroad Trainmen had an agreement with the
Missouri Pacific Railroad Co. which provided that “ any yardman
refusing to accept promotion when tendered will relinquish his
rights in favor o f the next senior man and shall not be eligible to
subsequent promotion until another vacancy occurs.” The company
had made rules putting in force the agreement. There were some
7,000 employees affected by the rule, some o f whom were dissatisfied
with it. About 75 signed a petition asking for a hearing to press
their views as to the fairness o f a seniority list issued under the above
agreement. A charge was made against Patrick J. Flynn for his
participation in the petition, which was said to have been addressed
to the Missouri Pacific superintendent. The charges were that he co
operated with others “ in interfering with the working o f the local
grievance committee” o f his lbdge. The laws o f the order con
tained the following provisions:
Whatever action may be taken by the general grievance committee
or board o f adjustment o f any system within the meaning o f the
above general rules, shall be law to the lodges on that road until
the next meeting of the grand lodge, and i f any member refuses to
abide by the action o f said general grievance committee, or board
o f adjustment, he shall be expelled from the brotherhood for viola
tion o f obligation.
Any member considering that he has been unjustly dealt with by
his employer, or that he is otherwise aggrieved, shall make a state
ment o f the grievance in writing and present the same at a meeting
o f the lodge. The lodge shall then determine by a majority vote o f
the members present, employees o f the division, whether to sustain
or reject the grievance. Should the grievance be sustained, the local
grievance committee shall lay the matter before the trainmaster,
superintendent, or other proper officer and use every means to effect
a satisfactory settlement and report their action and all things per
taining to the case to the lodge. I f the result is not satisfactory, it
may be referred to the general grievance committee for further
action. A member o f a lodge may withdraw a grievance placed in
the hands o f a general grievance committee, provided such action is
taken before said grievance has been presented by the general griev
ance committee to the officers o f the company, but not thereafter.
An order was made by the lodge expelling Flynn from the brother
hood upon the written charges and after a hearing. Several years
later he died. His widow brought an action against the Brotherhood

LABOR ORGANIZATIONS.

19 3

o f Railroad Trainmen upon a beneficiary certificate issued by it to
her husband. Payment was resisted, the defense being that he had
been expelled from that organization. But judgment was rendered
in favor o f the widow on the ground that the expulsion proceedings
were invalid. The brotherhood appealed to the supreme court of the
State, contending that Flynn was bound to exhaust his remedies
wdthin the organization before invoking the aid of the courts. Under
the laws o f the order Flynn might have appealed from the decisions
against him, first to the president, and later, if he desired, to the
grand lodge, but he took no appeal. The court held that the rule was
as contended by the brotherhood, subject to the exception that “ if
an order o f expulsion is made by the tribunal of the society acting
without jurisdiction or in disregard o f the accused member’s funda
mental rights, as, for instance, where no opportunity for a hearing
has been given him, relief at the hands o f a court may be sought
in the first instance.” The court held that Flynn was guilty of
such conduct as to make him subject to expulsion under the laws of
the order, and that he had not been deprived of his rights. In
behalf o f the widow it was argued that if the laws of the order were
“ interpreted as justifying the expulsion of a member of the order
for attempting by outside means to bring about a change on the part
o f the railroad company in a method o f treating its employees,
which had been adopted at the instance of the order, such interpre
tation rendered the provisions void and unenforceable, because in
conflict with the constitutional guaranty of the right o f petition.”
The State constitution provided that “ the people have the right
* * * to petition the Government, or any department thereof,
for the redress o f grievances.” The court did not sustain the above
contention, as the railroads were not in the hands o f the Govern
ment at the time and a railroad superintendent is not a public offi
cial. The court said:
W e see no sufficient reason for considering it against public policy
for a group o f employees to agree with one another that whatever
negotiations they have with their employer with reference to privi
leges to be accorded them shall be conducted through their organiza
tion collectively and not individually.
In answer to the suggestion that the by-laws did not give au
thority to a committee to prefer, charges or act upon them, the court
said that “ the right to expel members is clearly granted, and in the
absence o f express provisions any procedure resulting in a fair trial
is unobjectionable.” The judgment of the district court was reversed
and the cause remanded, with directions to render judgment in
favor o f the defendant.

194

TEXT AND SUMMARIES OF DECISIONS.

L abor O rganizations— R ules— P ayment for W ork D one for
U nion —Moore v. Marine Firemen, Oilers & Watertenders* Union of

the Pacific, Supreme Oourt of Washington ( Ju ly IS, 1922), 207 Pa
cific Reporter, page 1055.—The Marine Firemen, Oilers & Watea*lenders’ Union o f the Pacific is a labor union and is also a corpora
tion organized under the laws of the State of California, having its
principal office and headquarters in San Francisco and branch offices
in charge o f Pacific coast ports, including Seattle, Wash. The ob
ject o f the corporation, among other things, is to maintain good
working conditions for its members. On May 6,1921, a lockout had
occurred in Seattle, at which time the local agent o f the union in
Seattle, one J. Carney, was absent: The lockout involved the Ma
rine Firemen, Oilers & Watertenders’ Union o f the Pacific, the
Sailors’ Union, and the Marine Cooks’ and Stewards’ Union. A
meeting, apparently a voluntary one, was held by common consent
and not called by any officer or after notice. A t this meeting the
members o f the several unions were appointed as committees to
organize the men for picket duty in resisting the lockout.
One J. Moore, with four or five other members of the Marine Fire
men, Oilers & Watertenders’ Union o f the Pacific, performed serv
ices as committee men until May 26, when another meeting was
informally held. The same persons were elected at this meeting to
act as a lockout committee, and Moore was made chairman. The
second meeting seems to have been held for the purpose of deter
mining a controversy as to strike benefits in lieu o f board at a restau
rant. Moore brought an action to recover compensation for services
as a member and chairman o f the lockout committee during the period
o f the lockout, which lasted from May 6 to July 28, 1921. He based
his action upon a by-law o f the union which reads as follow s:
Section 16. Any member appointed at a regular meeting, on any
committee, to transact any necessary business or perform any work
for this union shall, if such business or work requires attendance
during working hours, be paid for his services. Such pay shall not
exceed $5 per day.
The trial court found that Moore was appointed or employed at a
regular meeting of the union, and that under the provision o f the
by-law upon which his action was based he was entitled to compen
sation at the rate of not to exceed $5 per day, and that he worked 12
weeks, or 84 days, making a total of $420, from which should be
deducted and was deducted the sum o f $50, which had been paid to
Moore.. The union appealed from the judgment of the trial court
to the Supreme Court o f Washington. That court reversed the
judgment, holding that Moore had no right to recover, saying,
through Judge Holcomb:

LABOR ORGANIZATIONS.

195

The trial court was in error. No regular meeting of the union
was held, or could be held, in Seattle under the constitution o f the
union. No regular meeting could be held at any place except at
San Francisco, the corporate headquarters and place of business of
the union, nor could any special meeting such as might have been
held in Seattle on May 26, although it was called in accordance with
the constitution of the union, pass upon any monetary matter. But
the special meeting was not such special meeting as was contemplated
by the constitution of the union, but was merely a voluntary mass
meeting.
.This union is not only a labor union but is a corporation. Its
constitution and by-laws constitute the law for it, by which respond
ent must abide.

L abor O rganizations— S ocialist P arty— W orkers’ E ducational
A ssociation— R estriction of M embership— Workers'1 Educational

Association v. Renner et al., Supreme Court of Michigan ( June 5,
1922), 188 Northwestern Reporter, page 289.—Act No. 171 o f the
Public Acts of 1903 o f the State of Michigan, under section 2, pro
vides : “ The certificate [o f incorporation] may also contain any de
sired provisions prescribing the qualifications of officers and mem
bers whereby they may be required to be members in good standing
o f any fraternal, religious, or beneficiary order or society, which pro
visions shall be binding upon the members and officers.” The work
ers’ educational association was organized in April, 1918, under the
above act, for the purpose o f promoting “ the social, intellectual, and
economic welfare of its members, and all workers.” The articles of
incorporation provided that “ A ll trustees and officers must have been
admitted to membership in this corporation, as provided in the by
laws thereof, and must have been good standing members of the
Socialist Party o f America for three years, and good standing mem
bers o f the Socialist Party, local, Wayne County, Mich., for six
months.” The organization owned a building known as the “ House
o f the Masses,” and from time to time accumulated equipment, funds,
and other property. The Socialist Party o f Michigan in a State
convention, made a declaration o f principles which, in May, 1918,
resulted in the expulsion o f all Michigan Socialists from the Social
ist Party o f America. Automatically thereby all members o f the
association above mentioned lost their standing as active members
and the right to hold office therein, if the articles and by-laws of the
association were binding. The corporation continued to function
as before. Its members joined other political parties, but several
were reinstated in the Socialist Party. These few held a meeting,
named certain o f their number as officers of the corporation, and de
nied the right of the existing officers to control and manage the af49978°— 23— s—14

196

TEXT AND SUMMARIES OF DECISIONS.

fairs o f the corporation. The property o f the corporation was de
manded by these few. They were refused, and then brought a suit
in which it was sought to recover the property and have the court
decree that the reinstated members were the lawful officers and mem
bers o f the corporation. The trial court refused the relief sought
and an appeal was taken to the supreme court. That court held that
the articles and by-laws of the association were void, saying:
The articles and by-laws restricting the membership o f the board
o f directors and the active membership of the society to those who
were members of the Socialist Party are void. Had the statute said
nothing respecting qualifications of officers and members, the corpo
ration might have made any reasonable regulation upon the subject.
But if the statute is to have any effect, it must be that o f limiting
and restricting the provisions prescribing the qualifications of offi
cers and members to those named in the statute, namely, “ members
in good standing in any fraternal, religious, or beneficiary order or
society.” The Socialist Party is none o f these. It is a political
party.
Having chosen a restriction contrary to the statutes under which
the corporation was organized, the result is as though no restriction
had been made. So the contention that the Socialists alone are quali
fied members, and hence that the persons named by them alone are
the officers o f plaintiff, can not be sustained.

L abor O rganizations— S trikes— A dvertisement for N ew E m
S tatute— Biersach & Neidermeyer
Co. v. State, Supreme Court of Wisconsin {June 6, 1922) , 188 North

ployees— C onstitutionality of

western Reporter, page 650.— Section 1729 p i of the Statutes o f 1919
provides penalties for false and deceptive statements in advertise
ments for labor, classifying as such the failure to mention the exist
ence o f a strike, if there is one. A strike existed at the plant of
Biersach & Neidermeyer Co. The sheet-metal workers, tinners, and
laborers had left their work because o f a disagreement. The com
pany advertised in the Milwaukee Journal for “ Tinners—experienced
in lining fire doors; good wages, permanent position guaranteed to
good men.” Information was brought against the company, and it
was found guilty o f violating the above statute. The constitution
ality o f the law under which the company was fined was questioned,
and the case was taken to the supreme court o f the State. That
court held the law in question constitutional, one judge dissenting.
Several contentions were raised by the company, one of which was
that the statute provided an improper classification, and that it was
class legislation. The court said that in order that the classification
may be valid, it must rest upon some real difference in the subject
matter, having some relation to the classification made and the

LABOR ORGANIZATIONS.

197

objects sought to be accomplished by the legislature, and must
affect alike all persons or things within a particular class.
Continuing, the court through Judge Doerfler said:
In this connection it is said that employers of workmen are placed
in one class and are required in the event of a strike or lockout, while
advertising for men, to state in the advertisement the fact that such
condition exists; and that employers of other workmen, such as
clerks, stenographers, telephone operators, etc., are at liberty to
advertise for help during the existence of a strike or lockout without
being required to make reference to the fact of the existence of such
labor troubles. It is a well-known fact that the labor troubles
referred to in the statute contemplate the existence of such troubles
in relation mainly to workmen, and by workmen are meant persons
employed in manual labor in various avocations where such labor
is required, and particularly to those employed in industrial labor.
Courts also can and must take notice that efforts on the part of
employers to hire labor to take the place of strikers or those locked
out from employment are frequently connected with acts of vio
lence, bloodshed, and breaches o f the peace. The existence of law
lessness under conditions as above stated was clearly in the mind
o f the legislators at the time of the enactment of the statute, and
it was the evident intention o f the legislature to meet such situation
and to provide protection for the benefit of the public. Without the
provisions o f this statute employers who had labor troubles could
indiscriminately advertise for help without apprising the prospec
tive employees o f actual conditions, as the result of which many
would leave their homes and travel long distances only to find that
a strike or lockout existed in the plant, which would make employ
ment uncomfortable, to say the least, and in many instances dan
gerous. So that in the enactment o f the statute it must be assumed
that the legislature had a clear, well-defined policy in mind, designed
to protect the interests o f the public in general.
The requirement o f the statute with respect to the advertisement
operates equally on all within the same class and is therefore valid.
This is true, as is stated in 12 C. J. 1128, 1130, even though the act
confers different rights or imposes different burdens on the several
classes.
The decision expressly approved o f similar decisions in the case of
Commonwealth v. Libbey, 216 Mass. 356,103 N. E. 923 (Bui. No. 169,
p. 184), and Kiter-Conley Mfg. Co. v. Wryn (Oklahoma Supreme
Court), 174 Pac. 280.

L abor O r g a n iza t io n s — S t r ik e s — A d ver tisem e n t for N e w E m
C o n stru ctio n of S ta tu te — Walter W. Oeftein (In c.) v.
State, Supreme Court of Wisconsin ( June 6, 1922), 188 Northwestern
Reporter, page 638.— Section 1729 p i of the statutes of the State of
Wisconsin, 1919, provided certain requirements with which em
ployers must comply in advertising for employees. Any violation
o f the statute was a criminal offense and punishable by a fine of not

ployees —

198

TEXT AND SUMMARIES OF DECISIONS.

more than $2,000, or by imprisonment in the county jail for not more
than one year, or by both fine and imprisonment.
On June 1,1920, Charles J. Ebert, the business agent of the brick
layers’ union, asked one Harmon Krenzin, a union bricklayer, who
was in the employ o f the Walter W. Oeflein Co., to quit his job. On
or about the 11th day of June two other union bricklayers left their
jobs. There had-been no dispute between the employer and these
employees, and no demand or request had been made for a change in
compensation or in labor conditions, though there seems to have been
some difficulty affecting other groups of workers. The employer had
conducted an open shop and did not discriminate between union and
nonunion help. The employer did not know why the three men had
left his employ, nor did he know that they were union men. A notice
had been sent to the employer by the bricklayers’ union stating that
on and after June 1 union bricklayers would be permitted to work
but eight hours during any given day, and that the rules o f the
union prohibited work on Saturday afternoons, Sundays, and holi
days. The employees working for the company in this case worked
nine and one-half hours daily and worked on Saturday afternoons.
On June 29, 1920, the employer advertised in the Milwaukee Journal
for bricklayers. In the advertisement it was said that no labor
trouble existed. Criminal proceedings were brought against the em
ployer and he was convicted o f violating the statute mentioned and
sentenced to pay a fine, etc. The employer took the case to the su
preme court of the State. One o f the questions presented to the
court was whether or not a strike o f the bricklayers existed on the
job in question on or about the date o f the advertisement. The ques
tion was answered in the negative. In deciding whether a strike
existed the court, speaking through Judge Doefler, said:
Webster’s New International Dictionary, on page 2058, defines the
word “ strike ” as follow s:
“ An act o f quitting, when done by mutual understanding by a
body o f workmen, as a means o f enforcing compliance with demands
made on their employer.”
Numerous other definitions o f the term “ strike” appear in law
dictionaries and decisions, all o f which, however, substantially in
clude the elements contained in the definition above set forth. The
number o f men necessary to constitute a strike in refusing to con
tinue work, pursuant to united effort, depends in each case upon the
peculiar facts in the case, and no definite rule can be laid down.
The legislature did not see fit to define the term “ strike,” but, on the
contrary, used the term in the sense that it is ordinarily used in
connection with labor troubles and as defined by standard authori
ties upon the subject. But it would appear quite clear that before
the employer can be involved in any action o f a labor union, with
respect to the failure to do the things required by a statutory enact
ment like the one under consideration, it first becomes incumbent

LABOR ORGANIZATIONS.

199

upon the members or representatives o f such unions to make a
demand upon the employer in order to lay the basis for a refusal.
We therefore arrive at the logical and inevitable conclusion that
under the evidence in the record it does not appear that a strike of
bricklayers actually existed at the place o f business of the plaintiff
in error on June 29,1920.
The State contended that subdivision (1) of the section contem
plated a strike in or about the plant or premises of the employer,
and that it was not confined to the particular craft in which an
effort was made to hire help by the use o f advertisement. In ref
erence to this contention the court said:
While the statute makes it an offense for an employer to advertise
for help when there is a strike or lockout at the place o f the pro
posed employment, when he fails to state in such advertisement that
such strike or lockout exists, such general language is clearly modi
fied by the subsequent language used, wherein it is stated wwhen in
fact such strike or lockout then actually exists in such employment at
such place” “ Such employment at such place” can not mean any
employment at the employer’s place of business, but the particular
employment for which the employer has advertised for help. It
can not be assumed, for instance, that the mere fact o f the existence
o f a strike o f electricians, carpenters, or other artisans on a given
job will in any way affect a bricklayer seeking employment, when in
fact no strike in this craft actually exists on the job.
The State further contended that in any case the employer had
violated the statute in question by a false and deceptive advertise
ment, in that he stated in the advertisement that no labor troubles
existed. As to this the court said:
This contention is not based upon that portion of the statute re
ferring to strikes or lockouts, but upon the prior provisions of the
statute, under which it is an offense, among other things, to induce
a workman to accept employment through or by means o f false
advertising. Under the statute such false advertising refers to the
kind and character of the work to be done, or the amount and char
acter o f the compensation to be paid for such work, or the sanitary
or other conditions o f the employment. Unless the phrase in the
statute “ or other conditions ” may be construed to refer to the
existence o f labor troubles, the contention o f counsel for the defend
ant in error is not well founded. Such phrase can have reference
only to such other conditions as are necessarily incident to and a
part of the employment itself, as, for instance, the time when work
shall begin in the morning, the length o f time allowed for lunch,
the time when employees shall be paid for their work, etc. The
legislature has seen fit to include in the statute an express provision
covering the subject of labor troubles, which is included in the strike
provision, and,, having specifically legislated upon the subject, it
must be necessarily and logically inferred that in the use o f the
phrase “ or other conditions ” labor troubles were not included.
The judgment o f conviction by the lower court was therefore
reversed.

200

TEXT AND SUMMARIES OF DECISIONS.

L abor O r g a n iz a t io n s — S tr ik e s — “ B r e a c h of G ood F a i t h ” — >
P er su a sio n to B r e a k C o n tr ac t —Rice, Barton & Poles Machine

& Iro n Go. v. W illard, Supreme Judicial Court of Massachusetts
( October 10,1922), 136 Northeastern Reporter, page 629.—The com
pany named sued for an injunction against Edward A. W illard and
others, members o f a molders’ union, to prevent certain acts in con
nection with a strike. The company ran its foundry as an open
shop, o f which fact notices were posted in the establishment. In the
spring o f 1921 it was found necessary to reduce wages, and the presi
dent o f the company requested a committee o f foundry employees to
meet with him in an effort to arrive at some satisfactory agreement.
Several conferences were held without reaching the desired result,
and at length, after the foundrymen of Boston had had their wages
reduced, the company established a scale by which about one-third o f
its employees should receive more than $6.25 per day, one-third
should receive $6.25, and one-third less than $6.25, but none less than
$6 per day. On May 23 the union met and voted to reject the scale*
demanding a minimum wage o f $6.25. During the next two weeks
conferences were continued between the officials o f the plant and a
shop committee o f the union, the endeavor being to secure the adop
tion o f the above minimum. The company declined to accept this
minimum, but announced that it was willing to discharge all em
ployees worth less than $6.25 per day, running the plant as an open
shop.
An arrangement for a presumably final determination was made
at a meeting planned for June 11 at 11 o’clock, o f which due notice
was given; but on the evening o f June 10 the molders struck at the
close o f their work without notice o f their intention and without
waiting for the conference agreed upon for the following day. The
company contended, upon this showing, that the strike was unlaw
ful. As to this Judge Crosby, speaking for the court, said:
There is much force in this contention. The failure, without ex
cuse, o f O’Neil, as the representative o f the union, to meet Mr. Bar
ton and discuss the situation for the purpose o f coming to some
satisfactory agreement was plainly a breach o f good faith.
However, assuming “ without deciding that the strike was insti
tuted for the purpose of securing higher wages and was lawful,”
it was found that the injunction was warranted for other reasons.
It is apparent that the strike was voted because the minimum wage
o f $6.25 was not agreed to be paid to the foundrymen. It appears,
however, from the master’s report that at a conference between the
shop committee and Mr. Barton he offered to discharge all employees
worth less than $6.25 a day, but that this offer was not agreed to by
the committee. It can not be doubted that the employer had a lawful
right to discharge any employee for inefficiency, and if the committee

LABOR ORGANIZATIONS.

201

had accepted his offer and all employees worth less than $6.25 a day
had been discharged, the respondents would have secured a minimum
wage o f $6.25 a day.
For a few days after the strike the foundry was closed, but on
June 21 it was opened and applicants for work were given employ
ment, signing contracts for the term of 60 days at various rates per
hour. Notice of these contracts was sent to the officials of the union,
so that they were informed as to their nature. Picketing and per
suasion, and in a number of cases threats of violence and the use of
profane and vile language followed the employment o f these men,
urging them to violate their contracts, in some cases offering strike
benefits.
The foregoing findings o f the master and the proper inferences to
be drawn therefrom make it plain that the methods adopted and
carried out in conducting the strike were illegal, even if it be as
sumed that it was lawful in the beginning.
It was equally illegal for the defendants to attempt to induce
workmen to break their contracts of employment, either by force
and intimidation or by peaceable means of persuasion. Nearly all
o f the men who were approached by the defendants and urged not
to work were under a written contract o f employment. Such conduct
is clearly unlawful whether made by an individual or by a combina
tion o f individuals.
While the contracts in the case at bar provided that the employ
ment should be for a period of 60 days, the action of the respondents
in attempting to induce the workmen to break them would have been
illegal if the employment had not been for a stated term.
Reliance was placed in a statute (ch. 690, Acts o f 1913, G. L. ch.
149, sec. 24) which authorizes persuasion without injury or threat
o f injury in connection with any undertaking not in violation of
marital or other legal duty. The court held this not to apply, since
no law would justify attempts to induce breach o f contract. After
notice o f their existence, and even if no contract had been involved,
the threats, intimidations, and annoyances and unlawful picketing
“ were sufficient in themselves to constitute an illegal carrying on o f
the strike.”
The decree issued by the superior court was therefore affirmed.

L abor O r g a n iza t io n s — S tr ik e s — I n j u n c t io n — C o n t e m p t — C iv il
C r i m i n a l P rocedure —Forrest v. United States et al., United
States Circuit Court of Appeals, Ninth Circuit ( January 9, 1922).
( Rehearing denied February 20, 1922), 277 Federal Reporter,
page 873.— On May 26, 1921, a restraining order was issued
against a number o f labor unions and their officers and agents,
including the Marine Cooks’ and Stewards’ Association o f the
or

202

TEXT AND SUMMARIES OF DECISIONS.

Pacific Coast, with headquarters at San Francisco, upon a com
plaint which charged that on May 1, 1921, the unions by strike
orders and other ways compelled men who had theretofore been
employed in operating merchant ships o f the United States to leave
the vessels. It was further charged in the complaint that the men
conspired to injure the property and rights o f the United States,
(hat they had caused seamen and others seeking employment or em
ployed to be intimidated, assaulted, and threatened with bodily harm.
Contempt proceedings were brought against one Edwin Forrest for
a violation o f the restraining order. Forrest pleaded not guilty and
demanded a jury trial, which was denied. Mendez, a witness for the
prosecution, swore to statements to the effect that he was a waiter
on the ship Golden State; that he went to union headquarters on
June 1 to turn in his union card and was told by the collector o f the
card that he should not return to work on the ship Golden State;
that two men followed him down the stairs as he left the union head
quarters and he was asked why he worked on the Golden State; that
he was seized by the men and that Forrest attempted to break his
arm. Forrest admitted that he was at the union headquarters on
June 1 and stated that he remained there but a few minutes and then
le ft; that on the stairs two men were standing in his way and upon*
requesting them to let him pass one o f the men insulted him; that he
•was going to ask him to take back the insult and “ grabbed hold o f
his arm ” ; that the man “ went to his pocket,” apparently for a gun,
whereupon Forrest slapped him; that he did not know Mendez or
where he was working; and that he knew there was a strike going on
but could not say that it was a matter o f common talk around union
headquarters that an injunction had been issued. After hearing the
testimony the district court adjudged Forrest guilty o f contempt
and ordered him imprisoned for 60 days and fined $100. Forrest
appealed, contending that there was no showing that he had notice
o f the restraining order. No error was found by the circuit court
and the judgment was affirmed. Judge Hunt handed down the de
cision o f the court which is in part as follow s:
On direct examination appellant testified in his own behalf that
he had no information o f the restraining order, but on cross-exami
nation said:
“ I might have heard o f it, but I never paid any attention to it,
because it was never called to my attention particularly.”
But, in any event, the association o f which Forrest was a member
having been a party to the suit in which the restraining order was
issued, the service upon the association was notice to him as a mem
ber. The mandate o f the court was expressly addressed to various
associations, including that to which Forrest belonged, and all per
sons associated with them. He therefore had notice, and his acts
must be judged accordingly. Upon the merits the court found the

LABOR ORGANIZATIONS.

203

account o f Mendez to be the true one, and we are satisfied that the
evidence clearly sustains the finding.
Eelying upon Gompers v. Bucks Stove & Eange Co., 221 U. S.
418, 31 Sup. Ct. 492 [Bui. No. 95, p. 323], appellant contends that
the moving papers were insufficient, in that the papers should have
disclosed knowledge that the Golden State belonged to one of the
plaintiffs in the equity suit, knowledge that Mendez worked on the
ship named, and was assaulted because he worked on that vessel, and
also should have contained a prayer for punishment. The Gompers
case is to be distinguished from this. There the contempt was ex
pressly held to be a civil one, established in a proceeding where the
complaining party sought a remedy for its benefit, and all parties
adopted the theory that the proceeding was part o f the original
cause and any punishment would be remedial, for the benefit of the
private party, rather than punitive, for the vindication o f the
authority o f the court. The court in its conclusions said:
u* * * This was a proceeding in equity for civil contempt,
where the only remedial relief possible was a fine payable to the
complainant.”
But in the case under examination the United States attorney
moved for attachment in the name of the United States and certain
agencies o f the Government. The affidavits made part o f the peti
tion set up the disobedience of the order. They disclosed the pub
licity o f the injunction, and made clear the fact that Forrest was a
member o f the association mentioned; that he assaulted Mendez,
who was an employee on the Golden State, a vessel of the United
States; and the petition prayed:
“ That an attachment issue, against * * * officers o f the de
fendant Marine Cooks’ and Stewards’ Association o f the Pacific
coiast and Edwin Forrest, * * * members, * * * for a vio
lation o f the temporary restraining order heretofore, to wit, on May
26,1921, issued in the above-entitled court and cause.”
Facts essential to jurisdiction sufficiently appeared, and the de
fendant was furnished with detailed information o f the specific
charge against him. Failure to pray for any special punishment
did not deprive the court o f power to proceed. In Creekmore v.
United States, 237 Fed. 743, section 268 o f the Judicial Code (Comp.
St. sec. 1245) is carefully examined, and the court o f appeals of the
eighth circuit said that, while the statute gives almost unlimited
discretion as to the character and extent o f punishment, no benefit
would be derived from requiring special prayer for a given kind of
punishment. The service performed by the prayer is simply to aid
in determining whether the proceeding is as for criminal or civil
contempt. Schwartz v. United States, 217 Fed. 866, holds that
there is no fixed formula for contempt proceedings, and that it is
sufficient if the offense is set out, so as to inform defendant clearly
o f the charge against him and whether a civil or criminal contempt
is alleged, “ and this is to be determined by an examination of the
whole record.”
It is quite apparent from the record that this was a case o f
criminal rather than civil contempt, and was rightly so regarded
by the district court; and the writ violated having issued in a suit
by the United States in its behalf, it is not within the class o f con

204

TEXT AND SUMMARIES OF DECISIONS.

tempts where trial by jury is allowed under the provisions o f the
Clayton Act (38 Stat. p. 738, sec. 22, act of Congress, October, 1914
[Comp. St. sec. 1245b]) ; and there was no error in denying a jury
trial.
L abor O r g a n iz a t io n s — S t r ik e s — I n j u n c t io n — I n t er fer en ce
I n te r st a te C o m m e rc e — Danville Local Union No. 115 of
United Brick and Clay Workers of America et al. v. Danville Brick
Co., United States Circuit Court of Appeals, Seventh Circuit ( Ju ly
27, 1982), 2SS Federal Reporter, page 909.— The Danville Brick
Co., an Illinois corporation, was engaged in the business o f manu
facturing brick at Danville, 111. The company had an agreement
with the Danville Local Union No. 115 o f United Brick and Clay
Workers o f America under which it agreed to operate as a union
shop. The agreement expired December 31,1920. The parties failed
to reach a new agreement and the factory was closed January 1,
1921. On April 7, 1921, it was reopened as a nonunion plant. A
strike followed, and picketing was resorted to by the former em
ployees, in the course o f which certain acts were committed which
the company used as a basis for an action for an injunction in the
District Court o f the United States. A preliminary injunction was
granted. An appeal was taken from this order to the United States
Circuit Court o f Appeals. The question before the court was as to
the jurisdiction o f the Federal court to issue an injunction. There
was no diversity o f citizenship. Jurisdiction was predicated solely
upon an alleged violation o f the Sherman Antitrust Act, which pro
vides that “ every contract, combination in the form o f trust or
otherwise, or conspiracy, in restraint o f trade or commerce among
the several States, or with foreign nations, is hereby declared to be
illegal.” The company alleged that in the course o f its business it
shipped its products out o f the State, and directed attention to a
certain contract to furnish brick in the city o f Lafayette, Ind., per
formance o f which was prevented by the acts o f the union. The
acts complained o f by the company were the interference with the
operation o f the plant, that is, with the process o f production,
which was held to affect the distribution o f the goods beyond the
State only to the extent that any interference with output ultimately
reduces the quantity o f goods available for distribution between
States.
The court o f appeals reversed the court below, with directions to
dismiss the bill. Judge Evans stated the reasons for this action,
as follows:

w it h

The question presented, therefore, is this: Does defendants’ in
terference with the operation o f plaintiff’s factory constitute “ re
straint o f trade or commerce among the several States,” either (a)

LABOR ORGANIZATIONS.

205’

on the ground that production of goods destined for shipment out
o f the State constitutes interstate commerce: or (b) on the ground
that the character of the course of conduct involved is such as to
have a necessary and direct effect upon interstate commerce $ That
production as sucli is not a part o f interstate commerce has been
repeatedly decided and affirmed.
That acts which interfere with production ultimately diminish the
quantity of goods moving in interstate trade is self-evident; and if
the interference were sufficiently widespread, the effect upon inter
state commerce would be immediate and appreciable. But interfer
ence which is purely local in character and confined to a single local
industry, as in this case, is so insignificant in its effect that it obviousfy can not be said to have any direct or appreciable influence
in restraining interstate commerce within the meaning o f the anti
trust act.
These views find direct support in the decision recently announced
in United Mine Workers of America v. Coronado Coal Co., 259 U. S.
844, 42 Sup. Ct. 570 (p. 157). It would serve no useful purpose to
restate the voluminous recital o f facts in that case. It is sufficient
to say that the issue upon which the judgment in that case was based
is identical with the issue in the case at bar.

L abor
w it h

O r g a n iza t io n s — S tr ik e s — I n j u n c t io n — I nter fer en ce

I n t e r st a te C o m m erce — Great Northern Railroad Co . v. Local

Great Falls Lodge of International Association of Machinists, No.
287, et al., United States District Court, District of Montana (J u ly
27,1922, and September 8,1922), 283 Federal Reporter, page 537.—
The Railroad Labor Board, under the authority of the transportat ion
act o f 1920 (41 Stat. 456, Bui. No. 292, p. 91), published its decision
No. 1086, fixing the wages and salaries o f members of what is known
as the Federal Shop Crafts, which was to be effective July 1, 1922.
The wage scale fixed by the decision was not acceptable to the em
ployees, and a nation-wide strike upon the railroads of the company
was called. The Great Northern Railroad Co. brought a suit in
equity in the United States District Court for the District o f Mon
tana, seeking an injunction against the Local Great Falls Lodge of
the International Association o f Machinists No. 287 and other local
lodges. No restraining order was issued, but because the situation
was “ fraught with possibilities of grave, irreparable injury ” a
hearing upon the motion for a temporary injunction was had. Dis
trict Judge Bourquin granted the injunction against a part of the
unions, saying in part:
O f the board’s functions and orders it suffices to say they are
advisory only, the teeth having been drawn from the bill for the
transportation act (41 Stat. 456J. Perhaps the strike may be charac
terized as mutual in that relations between the parties are severed
because plaintiff refuses to sell its opportunities for labor to defend

206

TEXT AND SUMMARIES OF DECISIONS.

ants, save on its terms, and defendants refuse to sell their labor to
plaintiff, save on their terms.
Be that as it may, as always in like struggles, the third party in
interest, society, the general public, is ground between the upper and
nether millstones of what it characterizes as the mutual selfishness of
servitots in quasi public employment. It justly suffers, for that it
fails to sufficiently control, as it rightfully can, the activities o f both
parties, and it will pay the price.
The strike hampers and threatens to incidentally stop plaintiff’s
interstate transportation. This is not unlawful and warrants no
injunction, so long as but an unintended consequence o f lawful exer
cise o f defendants’ right. Although in conflict in some particulars,
the evidence is clear and undisputed in sufficient others to disclose
that plaintiff’s efforts to continue train service are virtually nullified
by threats, force, and intimidation inflicted upon such employees as
it secures.
I f in the emergency defendants can not restrain their members, it
is the duty o f the court in law enforcement to do so, therein serving
the best interests o f defendants no less than those o f plaintiff, nor
overlooking those o f the third party aforesaid.
A ll voluntary associations, including labor unions, for acts o f their
members are responsible to some extent on the theory of agency. In
view o f the finding that members of some o f defendants, by threats,
force, and intimidation, inflict and threaten to inflict irreparable
injury within the meaning of that term upon plaintiff’s property
right to carry on interstate transportation, the law is settled and
clear, and virtually conceded by defendants, that plaintiff is now
entitled to therefrom restrain such defendants and their members.
No evidence was found to support the charges against some o f the
unions, and as to them the writ was dismissed. Others not present
were temporarily enjoined and directed to appear at a later sitting
o f the court. As to the injunction, Judge Bourquin said:
In respect to the terms o f the order, it is proper to observe that
they must be within section 20 of the Clayton Act (Comp. St., sec.
1243d), which provides that in strikes exemployees shall not be
restrained “ from recommending, advising, or persuading others by
peaceful means ” to quit work, or to refuse to work far the employer,
nor “ from attending at any place where any such person or persons
(exemployees) may lawfully be, for the purpose of peacefully ob
taining or communicating information ” or to exercise persuasion as
aforesaid, nor “ from peaceably assembling in a lawful manner and
for lawful purposes.” The order must also comply with section 19
o f the act (sec. 1243c), viz, “ Specific in terms, and shall describe in
reasonable detail * * * the act or acts sought to be restrained.”
It must be remembered the strike is lawful, and both parties thereto,
if so foolish, to put it mildly, as to persist in disagreement, are to
have the fullest freedom within the law, each to promote its or their
success over the other—that is, plaintiff to secure employees if it law
fully can, defendants to prevent if they lawfully can. They are
equally entitled to receive from the court protection against intimi
dation, and any order of restraint, though in terms directed to one

LABOR ORGANIZATIONS,

207

party alone, even as any like order in any suit, imposes correlative
restraint upon the other. Its office is protection and not a shelter
for aggression. I f abused, a pen may unmake it as a pen hath made.
The court’s order is to restrain defendants from exceeding the bounds
o f the Clayton Act, but not to intimidate them from enjoying all
within those bounds. In the exercise of the rights that the Clayton
Act assures to defendants they may go to the very line between the
lawful and the unlawful, carefully avoiding crossing into forbidden
territory.
The principal thing is that workmen conscientiously heed the
mandate o f the law and its instruments (the courts) that threats
and force and their intimidation must not be used to promote suc
cess in strikes, and that of necessity, their’s as well as others, such
methods always have been and always will be under the ban and
criminal. In respect to pickets, defendants will be allowed two at
any point o f access to plaintiff’s premises where men usually or
may be expected to enter. I f the entrants are numerous, perhaps
more may be necessary. The Clayton Act, by “ person or persons,”
intends that the number o f agents shall be governed by circum
stances. Obviously, not otherwise could the object o f the act be
attained.
Order accordingly, and effective on bond in the sum o f $5,000.
Either party may move to modify the order as circumstances may
require.
At the hearing on August 21, 1922, pursuant to the foregoing de
cision o f July 27, 1922, two o f the defendant unions sought the
dissolution o f the temporary order against them. The request was
granted as to one, but the other had engaged in conduct found to
call for restraint. In continuing the order the court said:
The right o f employees, o f men, to work (o f which so much is
heard during strikes and so little other times) is but incidental and
aids plaintiff [the railroad company] none. However much that
right be infringed, plaintiff can not complain, save to the extent
that it is part o f unlawful methods inflicting irreparable injury to
plaintiff’s property rights. The right itself is not absolute, but
qualified—the right to sell labor if a buyer be found, to solicit a
job (and often hopelessly and unavailingly), and to work if and as
long as the buyer or job giver consents and no longer. Society has
not yet progressed to insure work, or to recognize a substantial in
terest in a job had, though perhaps the spirit o f the times, if not
their necessity, even as the Clayton Act, tends in the direction o f the
latter at least.
In respect to the contention that the antitrust act (Comp. St., secs.
8820-8823, 8827-8830), in connection with section 16 o f the Clayton
Act (Comp. St. 8835o), warrants injunction against even peaceful
persuasion o f employees to cease work, if the result otherwise is
interruption o f plaintiff’s interstate transportation, it is unmain
tainable. The interruption, an unintended consequence o f lawful
exercise o f a right sanctioned by the law before and since the acts
aforesaid, sanctioned by section 20 of the latter act aforesaid, is
damnum absque injuria, and not within said acts, so far as in
junctive relief is concerned.

208

TEXT AND SUMMARIES OF DECISIONS.

In the matter o f defendants’ request that the order enjoin plaintiff .
from maintaining more guards than pickets where the latter are sta
tioned, if and when it is made to appear that guards in any number
are infringing upon defendants’ rights, a corrective can be applied.
The order in respect to the number o f defendants’*agents or pickets
can be amended when necessity is made to appear as suggested in the
earlier and foregoing decision. Neither that decision nor this
assumes to limit the number composing any defendants’ groups for
persuasion only. What is reasonable and only persuasive is a safe
guide.
Order accordingly, effective on bond in the sum o f $5,000.

L abor O r g a n iza t io n s — S t r ik e s — I n j u n c t io n — I n terferen ce
w it h

I n t er st ate C o m m e rc e — S h e r m a n

A ct — C l a y t o n

A ct —

United States v. Railway Employees’ Department of American
Federation of Labor et al.f United States District Court, Northern
District of Illinois (September 23, 1922), 283 Federal Reporter,
page lfl9.—The Railroad Labor Board was created in 1920, for the
purpose o f settling disputes between railroad employers and em
ployees (41 Stat. 469). On June 5, 1922, the board published its
decision No. 1036, fixing the wages o f members of what is known
as the Federal Shop Crafts, to be effective July 1, 1922. The em
ployees affected by the decision were dissatisfied with it and as
a result a strike order was issued, to become effective on the same
date. About 90 per cent o f the 400,000 members o f the Federal
Shop Crafts left their employment. On September 1, 1922, appli
cation was made before Judge James H. Wilkerson in the United
States District Court for the Northern District o f Illinois by the
United States, through the Attorney General, for an injunction
against the strikers and others. A temporary restraining order
was granted the same day (Monthly Labor Review, October, 1922,
p. 176). On September 11 the order was renewed with some modi
fications, and the hearing was proceeded with. Evidence was pre
sented and arguments heard for and against the issuance o f an
injunction, but a preliminary injunction was granted. Judge
Wilkerson, in granting the injunction, reviewed the facts and de
cided in favor of the Government, stating reasons as follow s:
In disposing o f this motion it may be well at the outset to em
phasize what this case is not. It is not a case between an employer
and employees, or between employers and employees, or between
employees, or between persons employed and persons seeking em
ployment, involving, or growing out of, a dispute concerning terms
or conditions o f employment. It is not a private bill to enjoin
indirect injury, as one caused by a secondary boycott, to the prop
erty o f the complainant. It is, to use the language of Circuit
Judge Baker, speaking for the court of appeals, seventh circuit,

LABOR ORGANIZATIONS.

209

in Gasaway v. Borderland Coal Corporation (C. C. A .), 278 Fed.
56, 63, a bill “ in the public interest by the government, as parens
patriae, to enjoin * * * an unlawful conspiracy or combination
in restraint o f trade.” It is the conspiracy which is inflicting the
public injury for which redress is sought.
The right o f the United States to maintain a bill like this under
its general equity jurisdiction is no longer open to debate. In the
Debs Case, 158 U. S. 564,15 Sup. Ct. 900, 39 L. Ed. 1092, the court
held that the National Government is charged with the duty of
keeping the highways of interstate commerce, including railroads,
free from obstruction. Holding that such obstruction is a public
nuisance, and sustaining, after an exhaustive review o f the authori
ties, the power o f a court of equity to take jurisdiction in such
cases by an information filed by the Attorney General, the court
said:
“ Indeed, it. may be affirmed that in no well-considered case has
the power o f a court of equity to interfere by an injunction in cases
o f public nuisance been denied, the only denial ever being that of a
necessity for the exercise of that jurisdiction under the circum
stances o f the particular case.”
Certainly an obstruction which results from blocking the tracks
or tearing up the rails does not differ in substance from an ob
struction which results from preventing the maintenance of rolling
stock and equipment and thereby destroying the instruments by
which passengers and property are carried over the rails. Nor can
the Debs case be differentiated because the strike was called in aid
o f a boycott. The ground o f jurisdiction asserted in the Debs case
was the obstruction of interstate commerce and the mails, not the
motive which actuated those who created the obstruction.
That the provisions o f the Sherman Act apply with particular
force to attempt to interfere with and obstruct the highways of
commerce and the instrumentalities by which commerce is carried
on is pointed out in Northern Securities Co. v . United States, 193
U. S. 197, 342, 24 Sup. Ct. 436, 459.
The language of the statute makes no distinction between classes.
It prohibits any combination whatever, whether o f labor or capi
tal, to secure action which essentially obstructs the free flow of com
merce between the States.
The defendant union claimed that the Clayton Act, sections 6
and 20, restricted the issue o f injunctions in such cases as the
present. Judge Wilkerson found the essential characteristics of
a labor dispute, within the meaning of this act, not to exist here,
saying:
This [twentieth] section introduces an exception to the power of
a Federal court o f equity to give injunctive relief under general prin
ciples o f equity jurisdiction. The field of that exception is hedged
about with limitations o f a threefold character. Those who rely on
the exception must bring themselves within all three limitations
in order to take advantage of its exemption and privilege. The
first limitation is to the character of the parties to the suit. The
second limitation is in the subject matter o f the action. The third
limitation o f the exception is in the definition of acts that may not

210

TEXT AND SUMMARIES OF DECISIONS.

be enjoined in such cases as fulfill the previous requirements. That
this suit o f the United States does not fall within the exception is
too plain for argument. The only portion of the section which even
remotely touches any question involved in this case are the con
cluding words:
Certainly it was not the intention o f the Congress to make the acts
specified in section 20 immune from punishment, even though they
are done in furtherance of an unlawful or criminal conspiracy.
Granting that those acts may not be punished when done under cir
cumstances which amount to nothing more than a labor dispute,
that controversy jmay broaden out so that the purpose o f those wag
ing it may include the accomplishment o f unlawful ends. Can it
be said that, merely because the element o f a labor controversy re
mains in the situation, the actors may not be punished when their
purpose is not only the accomplishment o f something with respect
to wages or conditions o f employment, but also the destruction of
property, the invasion of the rights of others, and the infliction of
injury upon the public? Such an interpretation conflicts with ele
mentary rules o f statutory construction. Moreover, it must be borne
in mind that the Sherman Act punishes the conspiracies at which
it is aimed on the common-law footing; that is to say, it does not
make the doing o f any act other than the act o f conspiring a condi
tion o f liability. To give to section 20 any such construction as
has been here urged by the defendants would be to make, as to labor
combinations, a law under which the restraint o f trade could be en
joined but the means through which the restraint was accomplished
could not be enjoined.
The law is clear, in my opinion, that if the dominating, primary
purpose o f the combination is to restrain trade, or to do things;
unlawful in themselves, and in which, by reason o f their inherent
nature operate to restrain trade, the purpose o f the combination is
unlawful, and that purpose may not be carried out, even by means,
that otherwise would be legal.
Continuing, he said:
We come, then, to a determination o f the question o f fact. Have
we here a combination, the primary, controlling purpose of which,
regardless o f disputes about wages and conditions o f employment, is
the obstruction of interstate commerce; or, from another point o f
view, have we a combination of actors in a labor dispute, adopting
for the accomplishment o f their ends unlawful means necessarily
obstructive o f interstate commerce, and so interwoven with acts
lawful in themselves that the whole plan must be condemned as a
restraint o f trade ? In cases o f this kind the proof is, of necessity,
largely circumstantial. Acts must be taken in their relation to
each other. Men must be presumed to intend the natural conse
quence o f their acts. Proclamations of nonparticipation and exhor
tations to keep the peace can not relieve from responsibility for a
series o f acts so inter-related and interwoven that they bear on their
face proof o f design and plan.
None o f the defendants in this case have answered the bill. Two;,
have filed motions to dismiss, and have presented affidavits which
leave a large number o f averments o f the bill unchallenged on the

LABOR ORGANIZATIONS.

211

record. The fact that the defendants have been acting in combina
tion is not denied. On the contrary, the defendants themselves have
produced evidence of the closest association and cooperation on the
part o f the defendant organizations. That the officers of the unions
gave directions concerning the strike from the outset is likewise
admitted. The only material question really in dispute on the
record is the responsibility in law of the defendants for the large
number o f unlawful acts shown to have been committed, many of
them by unknown parties.
Notwithstanding the warnings against acts of violence set out in
the instructions of June 27, 1922, there began, throughout the coun
try, a series o f depredations which rapidly developed,~ in some por
tions, into a veritable reign of terror. Eailroad bridges were dyna
mited; spikes were removed from rails; obstructions were placed
upon railway tracks; bombs were exploded on tracks and in railroad
yards and hurled at moving trains. Notwithstanding the admoni
tions o f the leaders of the combination to use peaceful means only,
the real situation at most of the places where the strike was in
progress was that employees were insulted, assaulted, and otherwise
intimidated. The word of the “ peaceful” picket, spoken in the
vicinity o f the shops, was emphasized in the darkness of night by
the club and pistol of the “ unknown party.” Begardless of the in
structions that no injury must be inflicted upon property, there was
sabotage on a large scale. Engines, cars, and equipment were tam
pered with, and innumerable acts of malicious mischief committed,
which endangered the lives of both passengers and those operating
trains.
These unlawful acts are shown to have been on such a large scale,
and in point o f time and place so connected with the admitted con
duct o f the strike, that it is impossible on the record here to view
them in any other light than as done in furtherance o f a common
purpose and as part of a common plan. This record does not permit
the conclusion that those who are at the head o f this combination did
not actually know that these things were being done, and that they
were the direct result of the methods by which the strike was being
conducted. And if they did not actually knowT they were charged
with such knowledge.
What is legal knowledge o f a fact ? It seems to have been assumed
by the defendants that no one is chargeable with more knowledge
than he chooses to have; that he is permitted to close his eyes when
he pleases upon all sources of information, and then excuse his
ignorance by saying that he does not see anything. In criminal as
well as civil affairs, every man is presumed to know everything that
he can learn upon inquiry, when he has facts in his possession which
suggest the inquiry. Yet, with knowledge of this intolerable situa
tion, nation-wide in its scope, the leaders of this combination re
peatedly sent out to the members of their organizations bulletins and
communications urging the men to greater activity.
These defendants will not be permitted, upon the record here, to
deny responsibility for these unlawful acts. They wTill not be per
mitted to continue acts which, even though they may be peaceable
and lawful in themselves, it has been demonstrated are only part
49978°—23----- 15

212

TEXT AND SUMMARIES OF DECISION’S.

o f a program o f unlawful conduct and are done for the accomplish
ment o f an unlawful purpose. It hardly need be said that this con
clusion is upon the record as it now stands, and leaves the defendants
free to present their contention again, if and when a different case
is made by the pleadings and proof.
It is asserted by the defendants that to prohibit some o f the acts
against which the complainant seeks an injunction is to deprive them
o f fundamental rights guaranteed by the Constitution. This conten
tion has been answered by what has been said with reference to the
unlawful purpose o f the conspiracy. “ The cardinal error o f de
fendants’ position,” to use the language o f the Supreme Court in
Hitchman Coal & Coke Co. v. Mitchell, 245 U. S. 229, 253, 38 Sup.
Ct. 65, 73, “ lies in the assumption that the right is so absolute that
it may be exercised under any circumstances and without any qualifi
cation; whereas in truth, like other rights that exist in civilized so
ciety, it must always be exercised with reasonable regard for the con
flicting rights o f others.
The record in this case shows that the so-called peaceable and law
ful acts are so interwoven with the whole plan o f intimidation and
obstruction that to go through the formality o f enjoining the com
mission o f assaults and other acts of violence and leave the de
fendants free to pursue the open and ostensibly peaceful part of their
program would be an idle ceremony.
Defendants assert, as a ground against the granting of the relief
sought by the complainant, that the strike was a defensive measure
against a plot o f the railway companies to destroy the unions. The
argument seems to be that the defendants are justified in inflicting
upon the public any injury which it may be proper for them to in
flict upon their adversaries in this conflict. It must be remembered,
however, that this is a suit brought for the benefit o f the public. Re
straint o f trade may not be adopted as a weapon in industrial war
fare. The court must act upon the case now before it, and give its
aid to the removal of the obstructions to commerce which are found
to exist.
It has been suggested by the defendants that, as the strike has
been settled on some of the railroads, there is no need for the injunc
tion, or at least for one o f the breadth sought by the Government.
The right to relief is to be determined by the status existing at the
time o f the filing of the bill. Rights do not ebb and flow. I f they
are invaded, a recourse to courts of justice is rendered necessary,
and it is no defense to the invasion o f right that since the institution
o f the suit the invasion has, ceased. With emphasis would this be
true where, as here, the right to invade is not disclaimed.
Defendants have submitted a motion to dismiss the bill. The first
two grounds challenge the sufficiency o f the bill as a basis for the
relief sought. The third ground is that—
“ Relief was sought in said bill and was obtained in said restrain
ing order for ulterior and unlawful purposes, upon misrepresentation
and suppression o f matters o f fact and law, the disclosure o f which
was required by good faith.”
During the hearing, which has lasted almost two weeks, the de
fendants have neither offered nor suggested a scintilla o f proof tend
ing to establish this averment in the motion to dismiss. The restrain

LABOR ORGANIZATIONS.

213

ing order was entered after a hearing at which both the averments o f
the bill and the questions o f law involved were fully and fairly pre
sented.
It follows, therefore, that the motion to dismiss the bill must be
denied. It follows, also, that the complainant is entitled to an in
junction prohibiting the parties to this combination from commit
ting the unlawful acts charged, the effect o f which is to obstruct inter
state transportation and the carriage of the mails or to restrain inter
state commerce, as well as the acts charged which are lawful in them
selves, when done in furtherance o f a conspiracy to obstruct inter
state transportation and the carriage of the mails or to restrain inter
state commerce. The parties will be heard as to the form of order
to be entered in conformity with the views here expressed.

L abor O rganizations— S trikes— I njunction — O rder of R ail
L abor B oard—Portland Terminal Co. v. Foss et dl., United

road

States District Court, District of Marne {J u ly 29, 1922), 283 Federal
Reporter, page 201±.—The United States Railroad Labor Board was
established by the transportation act o f 1920 (41 Stat. 456, see Bui.
No. 292, p. 91). Under this act the Portland Terminal Co. entered
into an agreement with Thomas C. Foss and others, members of an
organization known as the Brotherhood of Railroad Station Em
ployees. The agreement was to be effective December 16, 1921, and
with an addendum of March 8, 1922, was said to be continuing in
force. On March 21, 1922, the union requested a conference with
the company for the purpose o f revising certain rules in the agree
ment. On April 5, 1922, this conference was held between repre
sentatives o f both parties, but they failed to reach an agreement
and decide their differences. There being no adjustment board, as
provided in the transportation act, the union referred the dispute to
the United States Railroad Labor Board under a provision o f the
transportation act. The company filed its reply, and a hearing was
had thereon on June 21, 1922. In accordance with the decision of
the Labor Board the wages o f employees were changed from time to
time following a decision effective July 1, 1922. Foss, chairman of
the board o f adjustment o f the union, requested the railroad to re
store the rates of pay that were in effect prior to this last decision
o f the Labor Board. The company arranged for a conference with
the representatives o f the brotherhood to be held on July 17, 1922,
and pending such conference the secretary o f the union, with the
approval o f the chairman, distributed to the members o f the union
a strike ballot. Upon obtaining information that & meeting had
been held on July 14, 1922, and that a large majority o f the mem
bership o f the union favored the calling o f a strike, proceedings
were brought in equity to obtain an injunction against the union,
.and a restraining order was granted. A t the hearing on the motion

214

TEXT AND SUMMARIES OE DECISIONS.

for a preliminary injunction the case was submitted under the act,
claiming that it was the duty of the employees to remain under the
wages which the Labor Board had established until those wages
were changed in accordance with the terms of the transportation act.
The union contended that under the circumstances a court o f equity
could not by injunction prevent an individual, alone or in concert
with others, from quitting the personal service o f another, and that
these employees were not bound to follow the method of settling dis
putes marked out by the transportation act, but at any time could
abandon their contract under the statute and pursue the strike
remedy.
The questions presented to the court were whether the complainant
had a right o f action, and, if so, did the facts show an irreparable
injury that would be protected by an injunction. These questions
were settled in favor o f the company, and a temporary injunction
was granted. District Judge Hale stated the reasons of the court,
as follows:
Many cases have been brought to my attention, decided before the
transportation act was passed, where it has been held that courts
may not enjoin a man from quitting the personal service o f another,
either individually or in concert with others; that the right to quit
work and to strike is a personal privilege which can not be pre
vented by injunctive process, and that this is true, even when a
strike is made in violation o f a service contract.
The rights o f these parties depend largely upon the transportation
act o f 1920, under which their contract was made.
This statute was passed some years after the Clayton Act, and
with an evident intention to meet some questions raised by that
statute. Congress clearly had public conditions in view, and took
into consideration such suggestions as were made by Mr. Justice
Harlan, to which I have alluded, that certain great evils “ should be
met and remedied by legislation restraining alike employees and
employers.” The act was clearly intended to cover the transporta
tion field, and to regulate, so far as possible, the relation between
common carriers engaged in interstate commerce and other parties.
It sought to protect the public by conferring on the Interstate Com
merce Commission a very extensive control in the matter o f rates
and regulations. It imposed the duty on that commission o f estab
lishing rates which would enable railroads to earn such a remunera
tion as the commission might deem fair upon the value o f the road
property and public use. The statute sought further to regulate
the relations between carriers and their employees by establishing
means for the adjustment o f all matters o f controversy; it protected
carriers from extortionate demands o f their employees, and em
ployees from arbitrary conditions imposed by employers. It recog
nized the interest o f tne general public in transportation service and
sought to protect it from disasters incident to an interruption o f the
transportation business. It undertook to establish a working means
for the settlement o f labor disputes without resort to strikes and
other old methods.

LABOR ORGANIZATIONS.

215

Congress had power to pass an act o f this sort regulating rates.
In Wilson v. New, 243 U. S. 332, 352, 353, 37 Sup. Ct. 298 [Bui. No.
224, p. 144], the Supreme Court held, Mr. Chief Justice White speak
ing for the court, that Congress had an inherent power to take action
with reference to the settlement of disputes between parties by estab
lishing the legislative standard o f rules and o f wages binding as a
matter o f law upon the parties.
In the transportation act, Congress imposed no impossible burden
upon the employees; it did not compel them to make a contract
under the transportation act. Without doubt the law favors the
settlement o f disputes without resort to force.
In the case before me the employees made the agreement shown
by the facts between the parties. It appears that these individuals
did “ consent to waive their right to the use o f force,” and to regu
late their conduct by the act which was clearly intended to “ settle ”
disputes, and not to project parties into the midst o f a dispute and
then leave them to adopt other methods of settlement.
It appears that, by theii agreement in the case before me, the em
ployees do expressly consent that the change in their working agree
ment made by the Labor Board should be made. The decision of the
Labor Board appears to provide expressly that it should be incor
porated in the existing agreement and become a part o f said agree
ment. The employees, then, are under a distinct obligation, I think,
to accept the decision o f the Labor Board as a part of the working
agreement which they have made.
I find nothing in the facts brought to my attention to lead me to
the conclusion that the agreement has been terminated. The request
for a conference on the part of the employees, in accordance with
the provision o f the agreement, indicates that the employees have
not regarded the agreement as terminated, either by the decision of
the Labor Board or in any other way. O f course, each employee
has the right to quit the personal service o f another when he chooses;
but the strike ballot was a clear challenge to the method of settle
ment marked out by the transportation act and adopted by the em
ployees in their contract.
In leaving parties to their remedy under the transportation act, in
pursuance o f a contract signed by them, the court is not imposing a
burden upon the parties; it is recognizing the position in which the
parties have placed themselves. There are many instances where
parties elect to proceed under certain remedies and thereby waive
their rights to other remedies. In cases where parties have pro
ceeded in suits under the employers’ liability act (Comp. St., secs.
8657-8665), such parties are held to have waived their common-law
remedy. In the case at bar, I think it must be held that these de
fendants have, by their contract, elected to have their rights adjudged
under the transportation act, and to have referred their case to the
Labor Board, with the understanding that such board is “ to hear
and decide the dispute.” The rights o f the defendants are, then, in
my opinion, to be adjudged under the transportation act o f 1920, in
pursuance o f which their contract is made.
The Clayton Act provides that no injunction shall be granted by
courts o f the United States involving any dispute concerning terms

216

TEXT? AND SUMMARIES OF DECISIONS.

or conditions o f employment, 44unless necessary to prevent irrepara
ble injury to property or to a property right.”
In passing upon the question of irreparable injury, we must recog
nize that the legislature has attempted to 44substitute processes of
justice for the more primitive method.” It appears by the state
ment o f facts in the case at bar that the strike would seriously in
terrupt the operation o f the Portland Terminal Co. An examina
tion o f the contract and o f the whole case shows that a question is
raised involving rights o f the public. I think the court may well
find that an irreparable injury would be done to the complainant and
to the public by the issuing and carrying out of the strike order.
The transportation act marks out no method for its enforcement;
it leaves this to the courts. No method has been brought to my at
tention by which the rights of the parties could be determined, ex
cept by a bill in equity, containing substantially such prayers as are
found in the bill before me.
A temporary injunction is ordered as prayed for.

L abor O rganizations — S trikes — I njunction — P roperty
E ights— I nterference of S trikers— Crane cfe Co, v. Snowden, Su

preme Court of Kansas {November h 1922), 210 Pacific Reporter,
page lf75.— Crane & Co. was a corporation engaged in the business o f
furnishing printing, binding, stationery, and office supplies. On May
2, 1921, the printers, binders, and persons employed in various print
ing establishments in Topeka, including that o f Crane & Co.’s, de
clared a strike and quit work by reason o f a controversy between
them and their employers involving hours o f labor.
Crane & Co. continued to carry on its business and employed other
workmen to take the places o f the men on strike. The company,
however, brought an action to enjoin certain of the strikers and
others from continuing a course of unlawful conduct.
The defendants, it was alleged, 44were pursuing a course o f con
duct which would result in serious and irreparable damage to plain
tiff by attempting to intimidate and frighten its employees, causing
many o f them through fear and annoyance to stop work.” The de
fendants demurred to the petition, contending that it did not state
a case falling within section 7149 o f the General Statutes, 1915.
That section provides:
That no restraining order or injunction shall be granted by any
court o f the State o f Kansas, or a judge or the judges thereof, in any
case between an employer and employee, or between employers and
employees, or between employees, or between persons employed and
persons seeking employment, involving or growing out of a dis
pute concerning terms or conditions o f employment, unless necessary
to prevent irreparable injury to property or to a property right of
the party making the application, for which injury there is no ade
quate remedy at law, and such property or property right must

LABOR ORGANIZATIONS.

217

be described with particularity in the application, which must be
in writing and sworn to by the applicant or by his agent or attorney.
The demurrer was overruled, and an appeal was taken to the su
preme court. But this court affirmed the ruling of the lower court,
saying:
The petition here alleges that plaintiff has no remedy at common
law, for the reason that the defendants are not financially respon
sible; in the same connection it alleges that the injury plaintiff suf
fers, and will suffer, at their hands is irreparable in its character and
can only be prevented by the equitable action o f the court. The
petition alleges that the defendants conspiring and cooperating to
gether, as well as acting individually, have placed themselves about
the premises o f the plaintiff and trespassed thereon and upon the
sidewalks in front of its place of business, congregating at times in
numbers o f more than 100, that they have attacked, annoyed, in
sulted, and interfered with plaintiff’s employees, many of whom are
in constant fear o f violence and injury from the defendants, who
have repeatedly called the employees of plaintiff, 64scabs,” 44rats,”
and other insulting and abusive names, and have interfered physi
cally with the ingress and egress of plaintiff’s employees to and from
the plaintiff’s building.
It appears from the averments o f the petition that some o f the
plaintiff’s employees are former members of unions and that others
are persons who have sought employment with plaintiff. The peti
tion alleges that the defendants have assailed plaintiff’s employees
with covert threats implying violence, 44in that they have stated in
a frightening tone of voice ” that if plaintiff’s employees did not quit
their jobs they would wish they had and would regret remaining
with plaintiff as employees; that defendants are systematically, col
lectively, and individually engaged in such conduct; that this con
duct on the part of the defendants tends to demoralize plaintiff’s
employees, reduce their efficiency as employees, and injures plaintiff
in getting out work which its employees have been hired to perform,
and to delay plaintiff in completing and making delivery under his
contracts with the public. These averments are sufficient to show
that the plaintiff has no adequate remedy at law.
Another contention is that the petition fails to show or allege any
irreparable injury to property or to a property right. It is said that
44property ” as used in the statute means something both physical
and tangible, something concrete, and 44right,” something growing
out o f this physical, tangible, concrete thing. This in the face of
the averments o f the petition that the interference and annoyance of
plaintiff’s employees by threats have interfered and continue to inter
fere with and obstruct the plaintiff’s business. To assert that the
only possible support for this claim of plaintiff’s is that it has a pro
prietary interest in its employees—in other words, that plaintiff’s
claim in this respect can be upheld in the courts only upon the theory
that plaintiff’s employees are its chattels and slaves—is absurd. The
plaintiff is not required to do more than state the facts upon which it
bases its cause o f action. Its right to conduct its own business, with
out interference of the defendants physically and otherwise as set

218

TEXT AND SUMMARIES 6 f DECISIONS.

forth in the petition, is a right which the courts will recognize as a
property right; and the acts and conduct o f the defendants, which
the demurrer admits, show that the injury to plaintiff’s business is
irreparable. The judgment is affirmed.

L abor O rganizations— S trikes— I njunction — P ublic W elfare—
M il k D elivery— Gottlieb v. Matching Supreme Court of New York,

Special Term (November, 1921), 191 Neio York Supplement, page
777.— This case was before the supreme court on application for an
injunction to restrain the drivers o f milk wagons from interfering,
by picketing or otherwise, with the delivery o f milk in the city o f
New York. The opinion states no facts except by inference. It is
reproduced in full as follow s:
Uninterrupted delivery o f the milk supply to the people o f this
city is so vital for the preservation o f the general health o f the com
munity, and especially children and invalids, that any organized
effort to interfere therewith must be regarded as an act o f hostility
to the public weal and such an unlawful purpose as calls for the
exercise o f the full authority o f the courts and police authorities.
Whatever may be the right or wrong of the present wage controversy,
the health o f this entire community can not be made subservient
thereto. Picketing and other acts alleged against the defendants
have been held not to be unlawful under ordinary conditions, but
when linked with a purpose inimical to the welfare of the commu
nity, they become unlawful. This court would hesitate in an ordi
nary wage dispute to grant the relief asked for herein, but feels that
it is its duty to assert the full power o f the court under the circum
stances to protect the lives and health of the people of New York.
The motion to restrain the defendants is therefore granted, with
notice to the defendants that any disobedience o f the order herein
will be visited with the fullest measure o f punishment within the
power o f this court.
L abor O rganizations — S trikes — I njunction — S urrender of
R oute B ooks of D rivers—Borden's Farm Products Co. (In c.) v.

Sterbinsky, Supreme Court of New York, Special Term (January
1922), 192 New York Supplement, page 757.—This case arose out o f
the same industrial dispute as the Gottlieb case above, and involved
the refusal o f drivers o f milk wagons to surrender their route
books. The action was brought by the company named and others
against Sterbinsky, president o f the Local No. 584 o f the Milk
Wagon Drivers’ Union, seeking a mandatory injunction. It was
the custom o f dealers to furnish their drivers with route books in
which were the names o f customers, and in which the drivers en
tered the amounts collected. On the basis of monthly settlements
based on these entries the men were paid for their services and the
company reimbursed for the milk sold. The drivers o f this union

LABOR ORGANIZATIONS.

219

refused to return their books when they went on strike, the number
o f such books being about 2,200. More than 400,000 customers were
said to be listed in these books, and the amount of uncollected money
was in excess of $1,500,000. u It is obvious that a serious situation
arises because the plaintiff companies are powerless, by not possess
ing these books, to know who their customers for the month of
October were, and what the amount o f the individual indebtedness
o f each customer was.”
Judge Dike, speaking for the court, stated the facts as above, and
said:
It is apparent that the individual members of the unions can not
be punished for contempt in case any order of the court should be
made directed against them unless the court is satisfied that they
have knowledge o f the injunction; it being conceded that none of
the individual drivers have been served, and that the president of
the union alone has appeared. If, however, the court is satisfied
that such defendant drivers have knowledge, it would seem that they
would be amenable to punishment.
The unionization of labor has developed rapidly in the last few
years, and the organizations have become more elaborate, as well as
more extensive. The court must assume that in such labor unions
there is complete organization, as would be expected in such elaborate
associations; that members are amenable to discipline; and that
members are subject to notice from their officers. It is inconceivable,
after the publicity given to the injunction order of Mr. Justice
Kelby, that any member of these unions is ignorant o f its pro
visions. The injunction here runs against the president named and
each and every one of its members.
Cases were then cited in which the members of unions were held
to be subject to injunctions because of the fact o f membership in
the union against which the injunction ran, it not being necessary
that each one be a party to the suit or named in the injunction, if
only knowledge of the injunction appears to exist; quoting from a
decision by the United States Supreme Court, In re Lennon, 166
U. S. 548, 17 Sup. Ct. 658, in wThich it was ruled that so long as a
person “ appears to have had actual notice,” he need not be either
a party to the suit nor be actually served with a copy of the in
junction.
The concluding paragraph sets forth the nature of the complaint
and the terms of the order. It is as follow s:
The gist o f the bill of complaint is conspiracy. It is urged that
the members o f Local Union No. 584 are conspiring together to
withhold the route books. Another union, Local No. 147, upon
direction of its president, immediately delivered the route books to
the respective employers. I therefore feel that a mandatory in
junction is propel*, but I also feel that each of these drivers, by
virtue of the entries made by each one of his October sales, has also

220

TEXT AND SUMMARIES OF DECISIONS.

a property right or interest in the book issued by the respective
plaintiff companies, and it is for that reason that I m odify the relief
demanded by the plaintiff companies, and direct that the defendant
local unions, their officers, agents, and each and every member thereof
who have not returned their books to the respective plaintiff com
panies shall deposit said books in this court, where either side may
have such proper access to them, under order o f the court, as may
protect the interests that each may have therein.
This order was affirmed by the appellate division without opinion
on February 3,1922 (192 N. Y. Supp. 915).

L abor O rganizations— S trikes— P icketing *—I njunction — A n ti L aw of O regon— C onstitutionality — Greenfield v.

injunction

Central Labor Council of Portland and Vicinity, Supreme Court of
Oregon {M ay 21, 1922), 207 Pacific Reporter, page 168.—This case
was before the Supreme Court o f Oregon on a rehearing, an opinion
therein having been previously announced October 1, 1920 (192 Pac.
783, see Bui. No. 290, p. 262). George L. Greenfield was a merchant
o f Portland, conducting retail stores for the sale o f boots, shoes,
and other footwear. The defendants were a union and its officers
and members. An injunction against picketing had been allowed in
the trial court, whereupon the union appealed, claiming that under
the statute o f the State such an injunction could not issue. The
supreme court at that time upheld the law as constitutional, and
modified the injunction in certain respects. In its modified form
the union was permitted to employ two pickets during the business
hours o f each day and to station one of these on the outer edge o f
the sidewalk in front o f each o f the two stores o f the plaintiff,
wearing a sash bearing the words: “ Unfair to organized labor,
Local Union 1257.” From this Greenfield appealed, asserting that
all picketing was an unlawful invasion of a property right, consti
tuting a continuous trespass, and, whether peaceful or not, “ is a
means employed by men acting in concert and in furtherance o f a
conspiracy to do an unlawful act.”
The facts as found by the trial court were accepted, including
the account o f the nature of picketing in which misrepresentations
were made as to the higher prices of goods in the plaintiff’s store;
the use o f loud tones in addressing customers, and the interference
with business inflicting “ direct and intentional injury upon plain
tiff’s business,” and a finding that “ such injury was not the inci
dental result o f defendants’ lawful efforts to benefit themselves or
their friends.” Damage would be inflicted which was irreparable,
the defendants being insolvent, and no “ plain, speedy, or adequate
remedy at law ” being available.

LABOR ORGANIZATIONS.

221

Chapter 346 of the Acts of the Oregon Legislature of 1919 re
semble in essential parts the Clayton Act and the Arizona statute
found unconstitutional in the case o f Truax v. Corrigan, 257 U. S.
312, 42 Sup. Ct. 124 (see Bui. No. 309, p. 191). This statute was said
by the defendant union to authorize picketing and the other acts
engaged in, o f which Judge Brown, speaking for the court, said:
The language of the statute is plain. The words are to be given
their ordinary meaning. It was the intention of the law-making
body to pass a valid and constitutional act. It is our duty, whenever
possible, so to construe a statute as to make it square with the State
and Federal Constitutions. This statute, however, could not be held
valid, if intended and construed as a shield of protection for persons
unlawfully engaged in the destruction of plaintiff’s property rights.
It is a fundamental principle of law that courts are open to all on
like terms.
The fact that a similar law of Massachusetts (ch. 778, Acts of
1914) had been held unconstitutional by the supreme court of that
State in Bogni v. Perotti, 224 Mass. 152, 122 N. E. 853 (see Bui. No.
224, p. 181), was adverted to, as well as the ruling o f the supreme
court in the case o f Truax v. Corrigan. In the latter, the Arizona
statute was held unconstitutional “ as construed by the Supreme Court
o f Arizona in that case.” Extensive quotations were made from this
and other decisions, pronouncing the Truax case 44the most im
portant case involving trade disputes that has been determined in
years. Under that opinion construing the fourteenth amendment, no
State can pass a law legalizing such picketing as took place in the
Truax case.” The opinion concludes:
In view o f the teaching of the authorities, we could not hold chap
ter 346, Laws o f 1919, valid if construed to be a justification of the
manner and method of picketing in the case at issue. The patrolling
was not done for the purpose o f obtaining information, nor yet in
order peacefully to persuade the employees to quit work. It is a
case of boycotting. Had no strike existed, would it have been lawful
for the pickets employed in this case to take their stand at the
entrances to plaintiff’s places of business, or to patrol the sidewalks
in front thereof, so as to cause the entrances to such stores to be ob
structed to some extent, and during all the business hours of the
day, week after week, to call out in loud tones, denouncing plaintiff
to his customers and others, advising them not to purchase anything
from him, but to go elsewhere if they would buy, thus causing annoy
ance and substantial loss in business? We think not. I f such con
duct is not lawful in the absence of a strike, it is not legalized by a
strike. A man has a right to pursue his vocation in a peaceful
manner.
From the authorities we deduce the doctrine that it is as much the
duty o f a court of equity to protect a man’s right to follow his
lawful business without illegal interference as to grant injunctive
relief to prevent the destruction of his physical property. The first
duty o f the State is so to administer its laws as to enforce order.

222

TEXT AND SUMMARIES OF DECISIONS.

Intimidation and good order can not coexist in front o f the entrances
to plaintiff’s stores.
This case is affirmed.
L abor O rganizations— S trikes— P icketing — I njunction — G ood
W ill as P roperty—Robinson v. Hotel & Restaurant Employees,

Local No. 782, Supreme Court of Idaho (A p ril, 1922), 207 Pacific
Reporter, page 182.—W. P. Robinson and others, proprietors of cer
tain restaurants in Boise, sought an injunction against the labor
union named to prevent picketing and other interference with the
conduct o f business. The complaint alleged that on or about March
20, 1920, the union ordered the employees o f the plaintiffs to strike,
which they did. Since that date other employees have been se
cured, but boycotts and picketing have interfered with the con
duct o f the business. Placards carrying the words, “ This house
is unfair to organized labor ” have been displayed and pickets have
loudly declared the same, using such remarks as “ Go where they
have all white help; this beanery is on the bum; why not patronize a
union house, and you won’t have to turn your back to the public, and
you will not be ashamed; this house is unfair and will be unfair to
you.” As a result the daily receipts o f the various restaurants
affected have been reduced in large sums, as from $180 to $75 per day,
from $850 to $200, from $200 to $85, etc. It is charged that these
acts “ were and are a part o f a scheme to prevent persons from enter
ing the employment o f the plaintiff and continuing in their employ
ment, and from patronizing them at their said places o f business.”
An injunction was sought against the parties as maintaining “ a
nuisance and obstruction to the plaintiffs and to persons in their
employ.”
The complaint was demurred to, but the district court o f Ada
County issued an order directing the union to show cause why an
injunction should not be granted, issuing at the same time a tempo
rary restraining order. This order required the union and its mem
bers to “ absolutely desist and refrain from in any manner interfer
ing with or hindering or obstructing the plaintiffs ” by the use o f
pickets or going upon the premises occupied by the plaintiffs, “ or
in any manner coercing or compelling or inducing, or attempting to
coerce or induce, by any species o f threat, intimidation, force, or
fraud, or violence,” any present or prospective employees or patrons
in regard to their relations with the plaintiffs. The use of insults,
gibes, or jeers, or the carrying of placards or banners containing
covert or open or other threats or intimidations was also forbidden.
u Engaging in what is commonly known and designated as picket
ing,” whether singly or collectively, at the entrances to the several
restaurants o f the plaintiffs was enjoined.

LABOR ORGANIZATIONS.

223

On the return day the union filed affidavits to the effect that
pickets were instructed to and did walk at least 10 feet away from
the buildings wherein the business of respondents was conducted;
that they were instructed to make no remarks except in an ordinary
tone o f voice, and that not more than two pickets were engaged at
any one time or place, these being for the most part waitresses be
longing to the union. The affidavits disavowed malice or any pur
pose to destroy the business of the plaintiffs or to damage it, but the
movement “ was conducted for the sole purpose of the economic
benefit o f the members of the organization as laborers and in pur
suance and furtherance of the purposes of the strike.” They claimed
that there w^as no intimidation that would prevent the exercise of
one’s own free will as to patronizing or not patronizing the places
picketed.
Cases recently before the Supreme Court of the United States, as
well as others, were cited, after which Chief Justice Rice, speaking for
the court, announced that “ a right to conduct a business is property.
Incident to this property right is the good will of the business, and
the right to appeal to the public for patronage.” In conducting one’s
business he may contract with his employees, and may discharge
them at will, subject to the contracts made. “ Those who labor for
wTages have certain rights equally unquestioned.” These include the
i*ight to contract and the right to cease work unless restrained by
contract; also the right to form unions for the purpose of improv
ing economic and social conditions, or to refrain from joining such
unions; also the right to strike and to inform the public of the ex
istence o f a strike and the causes thereof, appealing for “ sympa
thetic aid by a request to withhold patronage.” A primary boycott,
“ if in any degree successful, will result in damage to the business of
the person boycotted; but where it is lawfully conducted this is one
o f the inconveniences for which the law does not afford a remedy.”
Strikes for unlawful objects or using illegal means are wrongs for
which the law affords a remedy. In the present case, “ no question
is raised as to the legality of the object for which the strike was
called.” As to means, speaking generally, they “ must be free from
falsehood, libel, or defamation, and from physical violence, coercion,
or moral intimidation.” To declare that “ this house is unfair to
organized labor,” is to use a term that is well understood, and does
not involve charges of fraud, breach of faith, or dishonorable con
duct. To say, “ Go where they have all white help,” is legitimate or
not “ according to the truthfulness or falsity of the implication that
the house is employing other than white help.” The expression,
“ This beanery is on the bum ” is such as can not be upheld. “ A l
though it may not have been intended seriously, it carried with it
an implication of deterioration of service and is not permissible.”

224

TEXT AND SUMMARIES OF DECISIONS.

The same is said o f the expression, “ W hy not patronize a union
house and you will not have to turn your back to the public and you
will not be ashamed.” This was evidently “ intended to cause moral
intimidation upon the patrons of the place and doubtless with many
people would have that effect. Neither do we think justifiable the
expression, t This house is unfair and will be unfair to you.’ This
was addressed to the patrons o f the restaurant, and, when addressed
to the public generally, carried an implication o f dishonesty or lack
o f integrity.”
The court then came to “ the most important question for consid- •
eration
i. e., that o f enjoining the stationing o f pickets. The pres
ent case was said to be one “ o f first impression in this State.” Con
sidering the pickets as a part of the public, the streets are for their
use as well as any other. The ownership o f adjacent property does
not give the right to control abutting sidewalks. The owner must
have some other basis for his objection, “ such, for instance, as the
creation o f a private or public nuisance.” Continuing, the court
said:
On behalf o f appellants it is urged that having “a right to acquaint
the public with the facts concerning the strike and to appeal for
sympathetic aid, they should be permitted to make use of this right
in the most effective manner by bringing the knowledge of their dis
pute with respondents to the notice o f intending patrons; that they
should be permitted to go where the patrons are most likely to be;
and that they are therefore within their rights so long as they are
peaceable and their conduct is not unseemly and so long as they do
not obstruct the entrance to or egress from the business houses o f re
spondents. There is much force in this position. But in our opin
ion it is overcome by the fact that the act o f stationing pickets in
front o f places o f business o f respondents inevitably leads to results *
directly opposite to appellants’ intentions and protestations.
Where the principal purpose o f picketing is to appeal to the in
tending patrons, consisting o f men, women, and children, o f a busi
ness house, such as a restaurant, we think the following from the
opinion in the case of Local Union No. 313 v. Stathakis, 135 Ark.
86, 205 S. W. 450 [see Bui. No. 258, p. 124], is worthy o f considera
tion :
“ And can there be any real question as to the meaning o f the pres
ence o f the pickets? Were they not doing something more than
giving notice to the public that they had an undecided issue with
the business which they were picketing? Were they not saying, even
though it was silently said: i See what we are doing to this man be
cause he has incurred our displeasure! Beware a similar fa te! ’
And was it not necessarily true that many people who had no knowl
edge or opinion in regard to the existing controversy, and who felt
no interest in the terms o f its final settlement, were deterred from
according the patronage which might otherwise have been given
appellee simply because there was a controversy in which they did
not desire to even appear to be parties? ”

MINE REGULATIONS.

225

In view o f the thought suggested by this quotation, added em
phasis is placed upon the allegation o f the complaint that prospec
tive patrons o f the respondents were deterred by intimidation from
entering respondents’ places of business.
Taking into consideration the facts as presented, the court con
cluded “ that the stationing o f pickets in front of or near to respond
ents’ places of business in this case was necessarily intimidating in
character, and was properly enjoined. This does not mean, however,
that appellants are to be barred from the use of the streets generally
or from displaying truthful placards or banners or using other legiti
mate means of appealing for support.” It was found that the in
junction was unnecessarily broad in its terms, since no force or vio
lence had been used or threatened, nor should there be a requirement
to desist or refrain absolutely from in any manner interfering with
the business o f the respondents. “ Neither should it include every
species o f expostulation or entreaty.” The case was thereupon re
manded with directions to modify the injunction “ so as to accord
with the views herein expressed.”

M ine K egulations— W ash R oom— E xercise of O ption — C onsti
tutionality — Commonwealth

v. Beaver Dam Coal Co., Court of
Appeals of Kentucky (February 28, 1922), 237 Southioestern Re
porter, page 1086.— Section 1, chapter 20, o f the acts o f Kentucky
for the year 1920 required certain employers to provide wash rooms
for their employees after 30 per cent or more o f the employees decide
by a vote to ask and to notify the employer to provide a wash room.
The Beaver Dam Co. was indicted for failure to provide wash
rooms for its employees, in compliance with the provisions of the
act above noted, but the trial court sustained a demurrer which
questioned the validity of the law upon which the indictment was
founded, and the case was dismissed. The State appealed to the
higher court, but the law was held unconstitutional and the judg
ment o f the lower court affirmed. The contentions o f the defendants
in their attack upon the validity o f the law were based on several
sections o f the State and Federal Constitutions, but the decision of
the court as stated by Judge Clarke considered the law from only
one angle—the violation of section 60 of the State constitution, which
forbids the enactment of laws “ to take effect upon the approval of
any other authority than the general assembly,” with certain ex
ceptions.
The opinion o f the court is in part as follow s:
It is a familiar general rule that the legislature can not delegate
its powers o f legislation; and section 60 of our constitution simply
adopts that rule as applicable to all laws save such as relate to the

226

TEXT AND SUMMARIES OE DECISIONS.

named subjects, as to which by necessary implication the legislature
may enact laws to take effect upon the approval o f an authority other
than the legislature, as this court has frequently held. These are laws
relating to the sale, loan, or gift o f spirituous, vinous, and malt
liquors, bridges, turnpikes or other public roads, public buildings
or improvements, fencing, roaming at large of stock, matters per
taining to public schools, paupers and the regulation o f counties,
cities, towns, and other municipalities o f their local affairs.
It is clear that the establishment o f bathrooms in connection with
private industries is not within any o f these exceptions, nor is the
power to enact such a law to take effect upon other than legislative
authority expressly or inferentially granted by any other provision
o f the constitution. It is therefore clear that the enactment o f this
act is prohibited by this section o f the constitution if, as contended
by appellee, it is to take effect, not as a direct and necessary result
o f legislative action, but rather only upon some other than legislative
authority.
This act, although enacted by the legislature, approved by the
governor, and published with all the formalities o f a law, very
clearly provides by its unambiguous terms that it shall be o f no
force or effect whatever even though all the conditions upon which it
could operate may exist, until and unless another tribunal than the
legislature shall have decided by vote that its provisions shall be
come effective, not uniformly throughout the State or any subdi
vision thereof, but merely in the particular establishment where
those empowered to decide the matter happen to be employed at
the time.
It surely must be clear that the legislature has not here prescribed
the conditions upon which the act will uniformly operate throughout
the State or at all, or has attempted to do more than create a means
whereby, within prescribed limits, a minority o f a particular class
o f employees may or not, as they choose, accept or reject the pro
visions o f the act regardless of existing conditions, and that there
fore the legislature has not determined when or whether the act
shall become effective, except as it may appear wise or desirable to a
minority o f the employees to be benefited thereby, and this, too, in
dependently o f the action o f employees in other like enterprises and'
without regard to any judgment of the legislature as to whether or
not the act should become effective in any particular mine or factory.
The act, therefore, it seems perfectly clear to us, is not only an at
tempt to delegate legislative power but to delegate this power to be
exercised locally and discriminatively even within a particular lo
cality, which is a power the legislature itself does not possess.
The chief reliance o f those upholding the law was a decision of
the Supreme Court of Indiana, sustaining a similar law, under
quite similar terms of the State constitution. Though persuasive,
such a precedent is not binding, and the affirmance by the Supreme
Court o f the United States is not significant, since no question of
Federal law is involved. (Booth v. State, 179 Ind. 405, 100 N. E.
563; affirmed, 237 U. S. 391, 35 Sup. Ct. 617; see Bui. No. 189,
p.171.)

RAILROADS.

227

M unicipality E ngaging in B usiness— C oal and W ood Y ard—
C onstitutionality of S tatute— P ublic P urpose— Central Lumber
Co . y . City of Waseca et al., Supreme Court of Minnesota ( May 19,

192%), 188 Northwestern Reporter, page 275.—The charter o f the
city o f Waseca, Minn., authorized the city council “ to establish and
operate a municipal coal and wood yard and to purchase coal, wood,
and fuel and sell the same at retail to the inhabitants of the city.”
The city was about to establish a coal and wood yard and finance
the project by taxation. An action was brought by the Central
Lumber Co., which sought a temporary injunction against the city
The question raised was whether the establishment of a municipal
coal and wood yard is a public purpose, for which taxation may be
levied. The temporary injunction was denied and the case was ap
pealed to the supreme court o f the State. The company alleged that
the charter provision was unconstitutional because o f a provision
(section 1 of article 9) of the State constitution which provided that
taxes “ shall be levied and collected for public purposes.” The su
preme court said that the principle that the power o f taxation,
though unrestrained in terms, can not be exercised for other than a
public purpose, was fundamental and the question before the court
was narrowed down to whether the establishment of the coal and
wood yard was a public purpose. The court held that it was, and
speaking through Judge Dibell, said in part:
The constitutional validity o f the charter is presumed. It is to
be assumed that in framing their charter the people were informed
o f conditions, such as the sources of supply, the ability and disposi
tion o f dealers to care for local demands, and other relevant factors
affecting the situation, and found that public necessities and con
veniences were such that the establishment of a municipal fuel yard
was a public purpose. They have the responsibility o f their finding
and the wisdom or folly of the policy which they authorize. Their
determination o f public purpose is not final. It is accorded weight;
but finally the court must determine as a judicial question whether
the purpose for which taxes are exacted is public.
Economic and industrial conditions are not stable. Times change.
Many municipal activities the propriety o f which is not now ques
tioned were at one time thought, and rightly enough so, o f a private
character. The constitutional provision that taxes can be levied only
for public purposes remains, but conditions which go to make a pur
pose public change.
In our judgment the establishment o f a municipal fuel yard is a
public purpose.
R ailroads — S helters for W orkmen — P aint - S praying M a
of S tatute— I njunction — C riminal

chines — C onstitutionality

L a w — Chicago & N. W. R y . Co. v. Railroad and Warehouse Commis-

49978°—23---- 16

228

TEXT AND SUMMARIES OF DECISIONS.

sion of Minnesota, United States District Court, District of Minne
sota, T h ird Division ( M ay 15, 1922), 280 Federal Reporter, page
387.— The Legislature of Minnesota at the session o f 1919 passed an
act (chap. 514) entitled:
An act requiring railroads, car shops, and other concerns manu
facturing or repairing cars, car trucks, and other equipment used
as conveyances by rail, for either freight or passengers, and other
equipment used in repair work or otherwise and operated by rail
road companies, to provide buildings that will protect their em
ployees from heat, rain, cold, snow, and other inclement weather.
Chapter 481 o f the Laws o f 1921 amended section 3 o f the act, which
provided certain specifications for the buildings ordered to be
erected by the act. It was provided further that employees should
not be required to work in the rain, heat, cold, or snow, and viola
tion o f the statute was made punishable as a misdemeanor. A suit
in equity was instituted by the Chicago & N. W. Ky. Co. against the
Eailroad and Warehouse Commission of Minnesota to enjoin the
enforcement o f the statute on grounds* of its alleged unconstitution
ality. A t the commencement of the suit a temporary restraining
order was issued, and by written stipulation o f the parties the
restraining order was continued in force and the case was brought to
final hearing on the merits o f the case. The defense set up by the
commission was that the court was without jurisdiction, inasmuch
as equity will not undertake to enjoin the enforcement of a crimi
nal statute, and further that the plaintiff had an adequate remedy
at law. To these contentions Judge Booth said:
These contentions can not be sustained. Though a court o f equity
has in general no power to enjoin criminal proceedings or to prohibit
the enforcement o f an unconstitutional criminal law, yet where
property rights are involved and are threatened with destruction
by criminal proceedings under an alleged unconstitutional law, a
court o f equity may afford relief by injunction [citing Dobbins v .
Los Angeles, 195 U. S. 223, 25 Sup. Ct. 18, and many other cases].
In support of the contention that the plaintiff has a plain adequate
remedy at law, the defendants point out that it was perfectly pos
sible for the plaintiff to await an order made by the commission pur
suant to the statute in question and then take an appeal, as provided
by the statutes of the State, to the State district court, and if neces
sary to the supreme court o f the State and thereafter to the Supreme
Court o f the United States. Doubtless this course o f procedure
might be pursued, but the remedy is not o f such character as to pre
clude a suit in equity in the Federal court. The adequate remedy at
law contemplated by section 267, Judicial Code (K. S., sec. 723
[Comp. St., sec. 1244]), must be one which* is as prompt and effi
cient as the equitable remedy.
The remedy must be one that plaintiff may resort to o f his own
volition and not at the will o f the defendant. It must be a legal
remedy in the Federal court and not merely in the State court. The

RAILROADS.

229

legal remedy suggested in the case at bar does not fulfill these requi
sites and therefore does not prevent the maintenance of a suit in
equity.
The company made the contention that, as sheds were required to
be built where 6 or more men were employed at one time for a period
o f not less than 30 days on the work o f constructing, etc., certain
equipment, the law was purely arbitrary. The court held the objec
tion was bad, saying:
It is contended that there is no relation between six men working
for 30 days and the public health and welfare. This method of
classification o f points where sheds are required and points where
they are not required may at first appear fanciful; but it is evident
that some classification had to be made. . It is suggested that only
repair points used in the wintertime should have been included. But
the legislature evidently concluded that inclement weather conditions
for workmen were not confined to the winter season. The evidence
shows that there are four repair points on plaintiff’s railroad lines
in Minnesota which come within the provisions of the statute, and
several other points where repairs are made which do not come within
the provisions. It was evidently the purpose o f the legislature to
include the more important repair points and to exclude the others,
and, while the method of classification employed may not be logically
perfect, it is at least practicable, and one which has not infrequently
been adopted.
With reference to the invalidity of the statute because it burdens
and interferes with interstate commerce, the court said that as the
burden and interference were indirect and incidental only, such re
sults were not sufficient to invalidate the law ; nor could the statute
be held invalid because o f the cost or inconvenience to the company,
nor because it applied only to certain classes of employees or o f em
ployers, nor as an arbitrary interference with the company’s right to
manage its own property, or a delegation of arbitrary power to the
commission.
Up to this point the statute was held valid, but the further con
tention was made thaf it was void because it attempted to cover a
field already occupied by Federal statutes. The court referred to
the “ safety appliance acts,” especially section 4 of the act o f April
14, 1910 (36 Stat. 298), and said:
The section o f the safety appliance act above cited requires that
defective cars upon the lines of carriers subject to the act be repaired
at the place where they are first discovered to be defective, if feasible ;
otherwise, at the nearest available repair point. The provisions of
the statute involved in the case at bar are in my judgment in conflict
with this requirement o f the Federal act. The Federal statute is,
o f course, paramount, and the provisions of the State statute in so
far as they conflict with the Federal statute are inoperative and
void. (Penn. R. R. Co. v. Pub. Ser. Com., 250 U. S. 566. 40 Sup. Ct.
36.) But, though this may limit the scope of the State statute, it

23 0

TEXT AND SUMMABIES OF DECISIONS.

does not render it wholly void; the statute still has a field o f opera
tions.
However, the court found other reasons why the statute in question
should be held invalid, which are as follow s:
The prohibition o f paint-spraying machines within the proposed
sheds is claimed to be unreasonable, purely arbitrary, and not a valid
exercise of the police power o f the State. The evidence shows that
at one time the use of such machines was thought to be deleterious to
health, on account o f certain ingredients contained in the paint. But
the evidence further shows that these ingredients are not found in
the paint used at present, and furthermore the evidence shows that
the State itself makes use, upon its own work, o f these same paint
spraying machines ifiside buildings. Under these circumstances I am
o f opinion that the prohibition of the use o f such machines is not a
valid exercise of the police power.
It remains to consider the contention o f the plaintiff that the
statute is void for indetiniteness and uncertainty.
The alleged uncertainty rests in the words “ rain, heat, cold, snow,
or other inclement weather ” [in section 4*]. It is to be borne in mind
that we are dealing with a criminal statute, violation o f which con
stitutes a misdemeanor, punishable by a fine of from $100 to $500.
In U. S. v. Brewer, 139 U. S. 278,11 Sup. Ct. 538, the court, in pass
ing upon, the construction to be given criminal statutes relating to
elections, said:
“ Laws which create crime ought to be so explicit that all men sub
ject to their penalties may know what acts it is their duty to avoid.”
Cases were then cited in which the application o f this principle
had resulted in certain laws being declared invalid, and the court
continued:
The words “ rain and snow ” are hardly definite enough in a crimi
nal statute. The words “ heat and co ld ” are so elastic in their
meaning as to cover the whole range of temperature. The words
“ inclement weather ” are equally indefinite. What is meant by “ in
clement weather” ? W ill a fog or mist come within the language?
W ill wind be included? It is surely necessary that limitations shall
be placed upon all o f these terms. But who* is to supply the limi
tations, the employer or the employee or the court or the jury ?
The legislature is the only proper authority to define a statutory
crime against the State. This power can not be delegated to indi
viduals, courts, or juries. The uncertainty and indefiniteness in the
present statute is in my judgment as great as was found to exist in
the statutes considered in the cases above cited.
In the case at bar it is not possible, in my judgment, under the
tests above given, to separate section 4 and that portion o f section
1 above referred to from the remainder of the statute. These por
tions o f the statute are vital. They embody the real ground and
purpose o f the passage o f the statute. It is extremely improbable,
in my judgment, that the legislature would have passed the statute
with these portions eliminated. Under these circumstances, the
whole statute must fall.

STATE ENGAGING IN BUSINESS.

231

A permanent injunction against the enforcement of the law was
therefore directed to be prepared.
R elief

A ssociations — T axation — “ C haritable

P urposes ” —

Board of County Commissioners of Chaffee County et al. v. Denver
<& R. G. R . Co. Employees' Relief Assn., Supreme Court of Colo
rado {January 9, 1922), 203 Pacific Reporter, page 850.— The
Denver & Rio Grande Railroad Co. Employees’ Relief Association
owned about 3 acres of land, upon which were hospital buildings, in
the city o f Salida, Colo. During the year 1913 taxes were assessed
upon the property and paid for the year. Suit was then brought to
recover back the amounts paid, on the theory that the property was
exempt from taxation under the State constitution which provides
that “ Lots, with the buildings thereon, if said buildings are used
solely and exclusively for * * * strictly charitable purposes
* * * shall be exempt from taxation, unless otherwise provided
by general law.” The trial court upheld the contention that the
property in question was “ used solely and exclusively for strictly
charitable purposes,” and rendered judgment for the recovery of the
taxes paid. The case was then taken to the supreme court of the
State, where the decision o f the trial court was reversed. The rea
sons o f the court set forth by Judge Allen for not exempting the
property in question from taxation are in part as follow s:
It is clear that the primary purpose of plaintiff’s incorporation
was to create a common fund by the contribution of its members to
secure and maintain a hospital for such members. The purpose is
here mentioned because it throws light on the use made o f the prop
erty. Whether it is exempt from taxation must depend on the use
made of the property, rather than upon the charitable character
of the owner.
In the instant case the contributions of the members o f the plain
tiff association “ were for the advantage o f the members only,” and
hence did not constitute a charity. Plaintiff furnishes its members
with hospital facilities. It is in no different position on that account
than if it furnished its members, in case of sickness or injury, with
funds with which to procure those facilities and treatment, as if
it were a mutual benefit society. It is no more a charitable institu
tion than such a society.
The judgment was therefore reversed, and the cause remanded
with directions to dismiss the complaint.

S tate E ngaging in B usiness— O peration of C oal M ines—
E mergency —Dakota Coal Co. v. Fraser, Adjutant General of North

Dakota, United States District Court, District of North Dakota
(December 4, 1919), 283 Federal Reporter, page 415.— The western

232

TEXT AND SUMMARIES OF DECISIONS.

half o f the State o f North Dakota uses lignite coal as its fuel.
Plants have been adapted to the use o f this lignite coal, and as the
industry o f producing this coal has been developing for a period o f
25 years, the public have come to depend upon the operation o f the
mines for its fuel supply, and it is not practicable to substitute some
other fuel, even if it could be obtained. Lignite is a peculiar kind
o f fuel in that if it is exposed to the weather it disintegrates and
becomes unfit for fuel. This makes the continuous operation o f the
mines necessary to meet public needs. A strike at the mines was
announced to occur on the 1st o f November, 1919. A few days after
that date a storm swept over the State and the mercury fell 8° to 10°
below zero over the territory supplied by lignite. To meet the
crisis, the governor issued his proclamation, calling upon the mine
owners to operate their mines, and warned them that if they failed
to do so, the State would take them over and operate them. They
failed to do this. The governor called out the militia, took over
the mines, and operated them. A suit in equity was instituted by
certain coal companies to enjoin the adjutant general o f the State
from operating the mines. The injunction was denied by District
Judge Amidon, who stated his reasons for denying the injunction
in an opinion which is in part as follows:
Every strike in a key industry involves three rights—the rights of
employer, the rights o f employees, and the rights o f the public.
The greatest o f these is the rights of the public. The firm establish
ment o f the supremacy by law of the rights o f the public is the
next step in the life o f the American people. Heretofore the public
has been the sufferer. Private rights have been placed above public
welfare. Employer and employees have been permitted to fight,
while the public has acted simply as a police officer and borne most
o f the loss. By long suffering we have got sufficient wisdom to end
that regime.
The question before the court in the present case is : May he deal
with the causes which need only the ordinary course of nature to
result in death by freezing and by disease, and the disturbed con
dition o f society which would necessarily result from such conse
quences—I say, may he deal with the causes, rather than wait and
deal as a mere police officer with the direful consequences ? I answer*
the question in the affirmative. He may. It is his duty to do so,
and it would be an abuse o f judicial power, in my judgment, to
define his powers in such a restricted manner as to forbid him to
protect society.
The owners o f the coal mines had already charged their right o f
private property therein with a public use. The continuance o f the
public service, which such use involves, can not be separated from
the right o f private ownership. As to compensation, that can best
be fixed by negotiation between the parties. But, if this fails, the
State has expressly waived its exemption from suit, and the plain
tiff may recover the reasonable value o f the use o f its property.

STATE ENGAGING IN BUSINESS.

233

W e can get instruction from the experiences of the present strike.
One o f the outstanding facts is that the mines in North Dakota
have actually been operated. The coal has been produced. The
rights o f private property have only been invaded to the extent that
was necessary to safeguard society against a great and threatened
disaster. A t the same time the power o f the Nation has been used,
as I am asked to use the power of the district court of this district
in the present application. A ll that can be achieved by means of
writs o f injunction has been tried, and it has not produced a ton
o f coal. Nearly a half million miners continue the strike. As the
winter advances the crisis in the East deepens. It needs only the
presence o f North Dakota temperatures in that section to call into
immediate action something besides injunctions. The reserve execu
tive power is being held in abeyance day by day, waiting negotiations.
I can not doubt that, if the actual crisis arises, the power will be used.
In other words, the moment the situation becomes acute, and there
is present in the East the same imperative necessity that existed
when the lignite mines in the western part of the State were taken
over, some power similar to the power which was exercised here
will be exercised there, unless the strike is settled and production,
o f coal is actually begun. To meet such a crisis, violent rhetoric is
a poor substitute for coal. T o meet the needs o f the people in the
western part of the State, mere declamation is no substitute for
coal. The only thing that would meet the needs o f the situation
and safeguard society from a great disaster that was impending
was the actual operation of the mines. The mines have been oper
ated here; they have not been operated elsewhere. That is one of
the outstanding facts o f the present nation-wide strike.
I am asked to issue a writ o f injunction which will necessarily
say that the acts of the governor have been illegal and unconstitu
tional. I f I do that, I am not simply dealing with his acts; I am
defining the powers o f the chief executive o f an American Common
wealth to meet a crisis which threatens loss of life. I am not
willing to strip the governor o f his power to protect society. I do
not believe it comports with good order, with wise government, with
a sane and ordered life, to thus limit the agencies o f the State to
protect the rights of the public as against the exaggerated assertions
o f private rights.
The coal mines in the western part of this State, by a long course
o f life, have been dedicated by their owners to supplying the public
with coal. While they as owners performed that duty, they were
entitled to the possession o f their property. But when, as the result
o f a quarrel between the owners and their workmen, in the dead of
a North Dakota winter, they suspend that service and leave a large
district destitute o f the fuel upon which it has been taught to rely,
I am unwilling to say that the executive officer of the State has not
the power to operate the mines, when thac seems to bn a reasonable
and probably the only method by which disaster and resultant dis
order can be avoided.
The writ o f injunction is not a writ o f absolute right. The plain
tiffs in this case are applying to a court of equity, which from of old
has been called a court o f conscience. When it acts it ought to take
into view public as well as private rights. It ought to consider

234

TEXT AND SUMMARIES OF DECISIONS.

whether, if the writ is issued, it will probably result in obstructing
public officers in the performance o f what they believe to be their
duty, and what seems to be necessary in order to protect society
against a great disaster. Viewing the situation in that light, and
upon the showing that has been made here, and from that showing
finding, as I do, and as I have stated in this opinion, that the acts
o f the governor were reasonably necessary to prevent what threat
ened to be a widespread disaster, I deny the application for a tem
porary injunction.
From the order denying the motion for a temporary injunction the
companies appealed to the United States Circuit Court o f Appeals.
The adjutant general filed a motion to dismiss the appeal on the
ground that the subject matter of the appeal had become moot, be
cause before the case came up for hearing in the court o f appeals
the adjutant general had withdrawn from the mine and ceased to
exercise any control over the operation of it. The court o f appeals
held that the possession o f the mines by the State was not reviewable, as possession had been restored, but the court reversed the judg
ment o f the district court and remanded the case, with directions to
set aside and vacate the order denying the motion for a temporary
injunction, on the ground that the main case had never been decided,
and that the company should be allowed its day in court. Leave' was
therefore given it to present an amended complaint, if it desired
to do so. (Dakota Coal Co. v. Fraser, United States Circuit Court
o f Appeals, 8th Circuit (Aug. 28,1920), 267 Fed. 130).

T rade S ecrets— R ight of E mployee to E ngage in C ompetitive
B usiness— I njunction —Fulton Grand Laundry Go. v. Johnson}

Court of Appeals of Maryland {January 25, 1922), 117 Atlantic
Reporter, p. 758.—Edward Johnson had been employed by the ap
pellant laundry company as a driver and collector on one o f its
routes in the city o f Baltimore. After some three years of such em
ployment Johnson decided to go into business for himself, and so
advised the customers of the plaintiff company on the route which
he had served. This was alleged to be without the knowledge or
permission o f the employer, and even in contradiction o f statements
made by the employee only a few days before he left his position,
while he was “ undermining its business by attempting to entice its
customers away from it.” On September 5, 1921, it was alleged
that Johnson collected laundry bundles from nearly all the
customers who usually sent their work to the Fulton laundry on
Monday morning and turned the work over to another laundry. To
prevent the “ great and irreparable damage” which would result
from such action, the company sought an injunction to restrain

TRADE SECRETS.

235

Johnson therefrom. The theory on which this action was brought
was that the list of customers of the company was a trade secret
obtained from the employer by reason of his confidential relation
ships, and that the use of such list should be forbidden.
Judge Adkins, speaking for the court, was unable to find such a
list a “ trade secret,” since any person interested enough to secure
the information could have followed the driver each day for a week
and noticed where he stopped on his daily route. Continuing, he
said:
While we do not decide that there might not be cases in which an
employer should be protected from the use by an employee of a list
o f customers fraudulently and surreptitiously obtained, or where,
in the nature of the particular case, or by reason of the care used
in concealing them, the names o f customers are so guarded as not
to be easily obtainable by others than confidential employees, we
are not willing to hold that, in any ordinary business, an employee,
on going into business for himself or into the employ of another,
should be enjoined from seeking to do business with friends he has
made in the course of a previous employment merely because he be
came acquainted with them while so engaged, and as a result o f such
previous employment. Under such a rule a traveling salesman,
every time he changed employers, if in a like business, would be com
pelled to give up all the friends and business acquaintances made
during the previous employment. Such a rule would tend to
destroy the freedom of employees and to reduce them to a condition
o f industrial servitude.
Recognizing the possibility of a contract which would restrain
the employee from engaging in competitive business, the facts in
the present case did not fall within that principle. The judgment
o f the court below denying the injunction was therefore affirmed,
one judge dissenting.
T rade S ecrets— U se of L ist of C ustomers— I nterference w ith
E mployment — P rocuring B reach of C ontract— I njunction —

Shevers Ice Cream Co. v. Polar Products Co., Supreme Court of New
Yo rk, Special Term ( October, 1921), 194 New York Supplement,
page 44-— This was an action by the Shevers Ice Cream Co. to secure
an injunction against a rival corporation, largely made up o f former
employees o f the plaintiff, to prevent interference with existing con
tracts and the use of confidential records or information. For two
months plans had been secretly developed, following which two of
the employees o f the Shevers company resigned and the Polar com
pany engaged in business. Its trade was solicited at first principally
from the plaintiff’s customers. “ In fact, during the first month of
its existence, the Polar company had only two customers who had
not been customers of the plaintiff.” As the business had been man

236

TEXT AND SUMMARIES OE DECISIONS.

aged, the Shevers company had written contracts with its customers,
among other considerations being the loan o f refrigerators, etc., and
an agreement not to buy ice cream of any other concern so long as
service was satisfactory or until an opportunity might be given to
adjust differences that might arise. The former employees sought
this trade, telling the customers that “ the agreements were of no
value, and were mere scraps o f paper.” Other statements were to
the effect that the Polar company was practically the same as the
plaintiff company; that it was new in name only; that practically all
the competent employees o f the old company were with the new one;
that the old company could not continue in business, as no one who
knew the business had remained with it; that the principal men in
the Polar company had been unfairly treated by the Shevers company
and were forced out; that the ice cream made by the plaintiff was not
good; that the plaintiff was not honest in its dealings with its
customers, etc. The statements that the plaintiff could not continue
in business; that Fauerbach. and Rein were to be forced out, and
had to leave because plaintiff insisted on making an inferior grade
o f cream, and that its cream was not o f high grade were untruthful,
as was the statement that the Polar company was practically the
plaintiff concern and was new in name only.
While still in the old company’s employ, but planning to organize
the Polar company, these employees had made up lists o f plaintiff’s
customers, with names, addresses, and the amount o f business done.
From these, sets o f cards were made up, at least one o f which was
taken by the defendants and used in canvassing for trade. In view
o f these facts, and specifically in view o f the deception and mis
representation, an injunction was granted by the court restraining
the employees in particular and the new company in general from
specific acts o f competition.
Judge Cropsey, speaking for the court, said:
The plaintiff’s employees had a perfect right to leave its service
and enter that o f the Polar company, but they had no right to take
with them a list o f plaintiff’s customers. This holding is not in
conflict with those that are to the effect that employees leaving their
services may solicit customers o f their former employer. The em
ployees may use information they have obtained so long as it was
not acquired in confidence, but they have no right to make lists o f
customers and take them with them.
The false statements made were said to constitute unfair competi
tion, and the interference with contracts was also condemned. The
contention that the agreements were without binding effect and not
enforceable was said, conceding its truth, not to give the defendants
the right to solicit customers under such contracts and to endeavor
to get them not to live up to them. “ The defendants were wrong

WAGES, •

237

in so doing, and equity will enjoin attempts such as the defendants
made,” citing Hitchman Coal & Coke Co. v. Mitchell, 245 U. S. 229,
38 Sup. Ct. 65 (see Bui. No. 246, p. 145) ; Vegelahn v. Gunther, 167
Mass. 92, 44 N. E. 1077, etc.
It was found that no case was developed against two of the de
fendants, and the complaint against them was dismissed. As to the
others it was found that there had been “ an unlawful and uncon
scionable plan to appropriate and interfere with the plaintiff’s trade
and business and o f unfair competition with plaintiff.” An order
was therefore issued perpetually restraining the defendant company
as such, and the named defendants, former employees of the Shevers
company, from using in any place or any way, directly or indirectly,
“ any or any part o f the data and records, whether o f customers’
names, addresses, prices, or other information set out or contained
in plaintiff’s card index of customers,” or other office records or lists
o f customers. The injunction also forbade attempts to secure trans
fer o f patronage of the customers named in the plaintiff’s list, “ and
in any manner, directly or indirectly, injuring or impairing or inter
fering with or destroying the business and custom of plaintiff upon
which any o f the defendants called or with which they dealt while
in plaintiff’s employ.” The routes established by the old company
were not to be traveled over to solicit trade by calling on plaintiff’s
customers, nor were they to take advantage of the established clien
tele o f the plaintiff. The card index and other material in the hands
o f the Polar Products Co. were required to be deposited with the
court until further order, and all “ information and knowledge or
pretended knowledge acquired or claimed to have been acquired by
the other defendants ” as to discriminatory rates or rebates shall
not be offered or revealed to any customer. The matter o f damages
was to be ascertained and assessed, and judgment upon the referee’s
report should be entered as a judgment against the defendants.

W ages— A ssignment— A bsolute S ale— C onstruction of S tat
ute— Tollison

v. George, Supreme Court of Georgia ( January
15, 1922), 112 Southeastern Reporter, page 896.—In company with
a majority o f States, Georgia has a law regulating small loans and
the assignment o f wages as security for loans (Acts of 1920, p. 215).
O. L. Tollison was arrested for an alleged violation o f this statute,
and sued out a writ of habeas corpus to secure his release. The
superior court o f Fulton County refused the petition, and the case
was carried to the supreme court, where the action of the court below
was reversed.
A young man named Duke had worked for one Brockman, earning
wages amounting to $11, and offered to sell the account to Tollison

238

TEXT AND SUMMARIES OF DECISIONS.

for $10. It was in evidence that the transaction was an absolute and
unconditional sale, was not a loan or advance o f money, nor was
Duke in debt to Tollison. He agreed to take $10 for the account and
authorized Tollison to give a full receipt, directing Brockman, his
employer, to pay over to Tollison the amount o f the account.
Judge Beck, who delivered the opinion o f the court, recited the
facts as above, following which the statute was discussed. It was
said that the statute o f 21 sections deals in the first 17 “ with the
business of making loans and the regulation o f that business and
with the regulation of ‘ assignment o f wages or salaries, earned or
to be earned, when taken as security for any such loan.’ ” Nothing
was found in these sections to indicate an intention to penalize “ the
absolute sale o f choses in action and the making o f a bona fide con
tract for such sale.” Evidently this case was one o f a sale. The
eighteenth section contains provisions o f penalty for the violation o f
preceding sections. Section 19 exempts certain persons and corpora
tions from the operation of the act. Section 20 was claimed to
establish requirements applicable to the case in hand, and “ there is
language in section 20 which seems to indicate that the purchase o f
wages or salary comes within the purview o f the act.” The consti
tutionality o f this section was challenged on the ground that it
“ contains matter different from what is expressed in the title o f the.
act.” The question o f constitutionality was not considered, however,
as “ section 18 makes it a crime only to violate certain o f the preced
ing sections o f the act, and has no relation to section 20.” For this
reason any failure to comply with the requirements o f section 20
would not sustain the issue of a warrant or the seizure o f a person
not complying with its requirements. Since the provisions o f the
earlier sections were not violated, and the violation o f section 20 of
the law, if committed, was not punishable, there was no ground for
holding Tollison and he should be discharged. The judgment of
the court below was therefore reversed.

W ages— A ssignment— C onstitutionality of S tatute— P resen
V oid A ssignment C ausing D ischarge— D amages— A la

tation of

bama Brokerage Go. v. Boston, Court of Appeals of Alabama (A p ril
18, 1922), 93 Southern Reporter, page 289.—Joe Boston was an
employee o f the St. Louis-San Francisco Railroad Co. and had bor
rowed money from the brokerage company, giving an assignment of
future earnings as security. The assignment did not conform to
the “ money lenders act ” o f 1901, a local statute applicable to four
counties, in one o f which the parties resided; it was also forbidden
by an act o f 1911 (p. 370) regulating the assignment o f wages. In
spite o f these facts, the brokerage company presented the assignment

WAGES.

239

to Boston’s employer and insisted upon payment, which resulted in
Boston’s discharge. Boston thereupon sued the brokerage company,
claiming $5,000 as damages for the “ willful, wanton, and inten
tional ” act o f the company in placing before his employer this notice
o f assignment, which it was alleged was known to be void. Judgment
was in his favor in the circuit court of Jefferson County in the sum
o f $1,000, and the brokerage company appealed. The appeal was
based mainly on the contention of unconstitutionality o f the statutes
named. Judge Bricken, who delivered the opinion of the court, did
not go into the discussion of this contention to any extent, but stated
that many o f the objections raised to the act of 1901 had been
satisfactorily answered in the opinion in the ease In re Home Dis
count Co., 147 Fed. 538, where this act was construed and its consti
tutionality upheld. Judge Bricken stated that the act was not, in
his opinion, violative of any of the constitutional provisions referred
to by the appellant company. “ The business of money lending may
be regulated by the legislature without doing violence to any con
stitutional provision, and we think this statute is not subject to any
o f the criticisms directed against it in the brief on file.”
The judgment of the circuit court was therefore affirmed.
W ages— A ssignment— U sury L aws— E vasion by F raud— Ten
nessee Finance Co. v. Thompson, United States Circuit Court of
Appeals, Sixth Circuit (February 7, 1921), 278 Federal Reporter,
page 597.— Frank G. Moseley, an employee of the Nashville Ter
minals Co., was accustomed to borrow money from the Tennessee
Finance Co. The procedure followed was to make application in
writing on a printed form, which purported to sell the applicant’s
wages to the company, and on another printed form the applicant
consented to assign to the company a stipulated amount o f his earned
wages, and instructed his employer to pay to the loaning company
the amount set out in the assignment. The applicant, Moseley, filled
out the required papers and later became a bankrupt. Robert W.
Thompson was appointed trustee, and as such brought proceedings
to have determined the rights of the parties to the wages earned by
the bankrupt under the assignment of the wages. The trustee ob
tained the wages in question from the terminal company, with notice
o f the assignments. In the proceedings the trustee stated that title
to the wages was claimed by certain companies claiming under
written instruments purporting on their face to be unconditional
sales or assignments of wages or salary, but which were “ merely
devices to evade the usury statutes,” and the so-called sales were
“ mere shams and frauds, intended only to cover up the loans of
moneys at usurious rates of interest,” both principal and interest

240

TEXT AND SUMMARIES OF DECISIONS.

being thus forfeited to the borrower under the laws o f Tennessee
(Shannon’s Code, 1917, sec. 3522a21). The Tennessee Finance Co.
denied that its transaction was a loan or device to evade the usury
statutes, asserting it to be a good-faith purchase o f such wages to the
extent o f $22 for a cash consideration o f $20 paid the bankrupt.
A fter a hearing before the referee it was held that the assignment
o f wages in question was “ merely a colorable scheme for the pur
pose o f loaning money at a usurious rate o f interest.” The com
pany charged $1 for the use o f $10 and $2 for the use o f $20 and a
similar ratio for sums above that amount. The district judge held
that the controlling question was one o f fact, and affirmed the order
o f the referee, as the conclusion reached was in accord with the
greater weight o f the evidence. The case was taken to the circuit
court o f appeals, but that court affirmed the order o f the lower
court, and held the claim o f the Tennessee Finance Co. usurious and
therefore void as to all genuine creditors.

W ages— B ankruptcy — “ E mployee ” — “ M echanic ” — “ W ork
” — “ L aborer ” — Van Vlaanderen v. Peyet Silk Dyeing

ingman

Corp., United States District Court, Southern District of New
Yo rk ( October 19, 1921) , 278 Federal Reporter, page 993.—A suit
was instituted by Peter Van Vlaanderen and another, copartners,
doing business under the firm name and style o f the Van Vlaanderen
Machine Co., against the Peyet Silk Dyeing Corp., a bankrupt con
cern. A petition was filed by Jerome Peyet against the receiver,
so as to get a preference in a wage claim which he filed over other
creditors o f the corporation. It appeared that the petitioner was
the president and general manager o f the corporation. As general
manager he was required to supervise all its work, and was entitled
to a salary o f $200 a week. It further appeared that he and his
wife and an assistant were the sole owners o f the stock o f the cor
poration. The law under which the claim for preferred wages was
filed sets forth that “ The wages o f the employees * * * shall be
preferred.” And the word “ employee” is defined as a “ mechanic,
workingman, or laborer.” The petition was denied, Judge L. Hand
saying:
These three words are plain enough, and there remains no pe
numbra o f uncertainty such as overshadowed the use o f “ employee ”
in the act o f 1885. A ll three, o f them include only a man hired to
contribute by manual labor to the production of goods or of plant
and factory. Hence all the earlier authorities are no longer in point,
nor have I found any which construed this particular section in
what the petitioner is here pleased to call a broad sense. Its scope,
on the contrary, is narrower, designed, no doubt, to protect only
those whose weekly wage was assumed to leave them in most cases

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no margin o f subsistence and who were thought to need some favors
in the distribution of what was left. To include a manager, a
superintendent, or even a bookkeeper would be a clear disregard of
its language and its purpose.
It would be a curious result if these two men, running a business
in corporate form, should under the guise of their voluntary manual
assistance in the business absorb the greater part of the assets and
exclude those from whom they had bought or borrowed. Obvi
ously, the statute means nothing of the sort; it is to protect such
manual workers as are genuine employees, not of themselves but of
the stockholders. Manual work was not what the applicant was
hired to d o ; he did it in a very natural desire to make the business,
his business, a success by every effort in his power. But if he had
not been so moved he could quite legitimately have drawn his salary
without touching a machine. He was general manager, with only
the duty to do whatever might “ reasonably be required o f him in
connection therewith.” No general manager can reasonably be
required to do the manual work of a mechanic. I f he choose to, it
is out o f abundant good will to his employer, a good will amply
accounted for in this case by his general interest.

W ages— B onus— B ights of D ischarged E mployee—Roberts v.
Mays M ills, Supreme Court of North Carolina (November 22,1922),
11h Southeastern Reporter, page 530.— Seth Boberts and his wife were
employed in a cotton mill operated by the company named. Early
in the year 1920 the company posted a notice offering a 10 per cent
bonus payable at Christmas “ to those who have been continuously
in the company’s employ since this present month o f January.” It
was uncontradicted that Boberts saw the notice offering the bonus
and was thereby induced to stay and work until he could draw the
bonus. He had intended to quit “ and would have done so but for
its being raised to 10 per cent,” the prior offer having been of a
5 per cent bonus. His wife and coplaintiff made the same statement.
It was in evidence that the work of these employees was satisfactory,
and their discharge was not caused by the nature of their work but
was due to alleged remarks made by Seth Boberts outside the mill,
criticizing an officer employed by it. This criticism he denied
having made. However, it was contended that if the allegations as
to this conversation were true they did not authorize the discharge
o f Boberts, there being no complaint as to his work. The chiefexecutive o f the mill said that he “ had no other reason ” than the
remarks attributed to Boberts.
This action was brought to recover wages due and unpaid at the
time of the discharge, the amount o f the bonus to which they claimed
themselves to be entitled, and wages from the date of the discharge
to December 25 at the rate of pay theretofore earned, the latter as
damages for the breach of contract. The company maintained that

242

TEXT AND SUMMARIES OF DECISIONS.

the bonus was no part of the stipulated compensation, but admitted
the claim for wages earned up to the time o f discharge. In the trial
court judgment was given only for this sum, holding that neither
Roberts nor his wife was entitled to recover on the claim for the
bonus nor for damages on the breach o f contract.
On this appeal a new trial was ordered, the court saying that “ it
should have been left to the jury to determine whether the alleged
conversation took place at all, and, if so, whether it was good and
sufficient cause for the discharge.” The right to the bonus covering
the period o f their actual employment was declared by Chief Justice
Clark, who discussed the case at length. Special reference was made
to the case o f Zwolenek v. Mfg. Co., 150 Wis. 517,137 N .w
W. 769 (see
Bui. No. 112, p. 178), in which the subject was “ fully and clearly dis
cussed.” Stating the principles, Justice Clark said:
Until the offer is accepted by beginning performance there is no
contract, executory or otherwise. When it is accepted by beginning
work the obligation is fastened upon the defendant to pay what is
due under it, and it is not essential that the employee should inform
the employer that he relied on the offer in undertaking the work.
Mention was then made o f the status of the parties as employees,
and o f the fact that while the wife was not herself expressly dis
charged, since the husband was ordered to vacate the house they
Occupied, “ this reasonably implied that his wife should go too.”
The opinion continues:
It appears in this case that the contract for employment was by
the week, and hence either party could terminate it at the end o f any
week. The offer o f a bonus and its acceptance by entering upon the
work was a supplementary contract for a reward in consideration o f
the employee remaining in the service for the specified time. It did
not change the terms o f the contract o f employment by the week,
but by this agreement the employee, if he failed to remain the speci
fied time, forfeited all claims to the bonus, and, on the other hand,
if the employer discharged the employee without good and sufficient
cause, he was liable to the employee for the bonus lost thereby. In
asmuch as the employee knew that the employment could be termi
nated at the end o f any week, he is entitled, upon such violation o f
the supplementary contract for continuous service, upon a quantum
meruit for the length of time he served at the rate o f 10 per cent on
the wages earned up to that date according to the employer’s offer.
The employee is not entitled to recover damages for the wages for
the unexpired time, for the contract o f employment was terminable
at the end o f any week, nor can he recover the bonus for the unex
pired time, for the bonus for continuous employment was based upon
the continuance o f the service which under his contract the employer
could terminate. He is entitled to recover if discharged without
legal and sufficient cause the bonus o f 10 per cent up to the time o f
the discharge, for that is the extent o f the wrong done him by wrong
ful discharge.

WAGES.

243

W ages— G arnishment — P ublic O fficers— S alaries— C onstitu
S tatute— Cavender v. Hewitt et al., Supreme Court of

tionality of

Tennessee (March 18, 1922), 239 Southwestern Reporter, page 767.—
Chapter 29 o f the Public Acts of 1921 placed officers and employees
o f any county or municipality o f the- State of Tennessee on the same
basis as employees of individuals with regard to making their wages
subject to garnishment proceedings. Several creditors undertook by
the process o f garnishment to reach the wages due P. W . Cavender
as policeman in the employ of the city o f Nashville. Cavender
filed a bill in equity to enjoin collection under judgments rendered
by justices o f the peace in favor of the creditors. Under the com
mon law the wages of the policeman would be exempt from garnish
ment and the power o f the legislature to make the salaries of the
officers named subject to this process was questioned. A hearing
was had and the chancellor decreed that the act was constitutional
and therefore dismissed the bill. An appeal was taken to the su
preme court o f the State and the constitutionality o f the act was
questioned on the following grounds: That it was class legislation;
that it granted to individuals rights, privileges, immunities, and ex
emptions other than such as may be by the same law extended to any
member o f the community who may be able to bring himself within
the provisions o f the law; and that States are prohibited by the
Federal Constitution from depriving any person of his property
without due process o f law. The decree of the lower court was
affirmed in the supreme court. Judge L. D. Smith stated the reasons
for this action in part as follow s:
It is argued that it is the settled policy in this State to hold im
mune all municipal and other government agencies, and that there
is an implied restraint in our constitution against such legislation.
It is quite true that this court has universally held that the wages
o f an employee in the services of a municipal corporation can not
be reached by the process of garnishment upon the theory and for the
reason that a municipal corporation is but an arm o f the government,
and the duties to be performed by the officers o f the municipality are
incompatible with such proceedings.
There is nothing in our constitution from which it can be inferred
that a policy different from that stated should never be adopted by
the legislature. That being so, the legislative department o f the
State government has exclusive and ample power to determine the
State’s policy. When the legislature, acting within its constitutional
powers, has spoken upon a particular subject its utterance is the
public policy o f the State upon that subject, and the courts are with
out power to read into the constitution a restraint o f the legislature
with respect thereto. The prohibition must be expressed or neces
sarily implied from that which is expressed.
The argument is further based upon the thought that the act in
question is class legislation, because it subjects coimty and municipal
49978°—23---- 17

244

TEXT AND SUMMARIES OF DECISIONS.

officers and employees to the burden o f having their wages and
salaries attached by process o f garnishment, whereas the State offi
cers and employees are exempt from this burden.
The rule o f interpretation o f statutes as they relate to this provi
sion o f the constitution is that the legislature has a wide range o f
discretion in distinguishing, selecting, and classifying objects o f
legislation because o f the function of the legislation and the purposes
to which it is addressed. It suffices if it is practical, and is not
reviewable unless palpably arbitrary.
The act applies to officers and employees o f the counties and muni
cipalities. Every employee and every officer o f every county and
o f every municipality is included in the burden—if it may be so
termed—imposed by this statute, and every member of the com
munity, on becoming an officer or employee o f the county or munici
pality, falls within the provisions o f the statute. The classification
is the more natural and reasonable by reason o f the fact that coun
ties and municipalities themselves are subject to be sued in their cor
porate capacity, whereas the State can not be sued.
It is not necessary for us to find a good purpose on the part o f
the legislature for this classification. It is sufficient that the legisla
ture has so enacted with or without reasons since the classification
itself is not vicious but natural and reasonable in itself.

W ages— M echanics ’ L iens— M a n u a l L abor— U se of T eams;—

Messercdl v. Dreyer, Supreme Court of Minnesota (Ju ly 7, 1922),
189 Northwestern Reporter, page 446.—The General Statutes o f Min
nesota, 1913, section 7058, provide for workers’ liens in the following
terms:
Whoever performs manual labor or other personal service for hire
in or in aid o f the cutting, hauling * * * any logs * * * or
other timber, shall have a lien thereon for the price or value o f such
labor or service.
George Messerall and his son were partners engaged in the cut
ting and skidding o f logs, and as such partners they performed cer
tain work for Fred Dreyer and others at the request o f Dreyer. The
price for cutting and skidding certain logs was fixed, the partners
working themselves and using teams. They were not paid. They
brought an action to recover the amount. On questions being sub
mitted to a jury the amount owed the men for their work was fixed
at $436.18. The court rendered judgment in favor o f the father and
son and held that they were entitled to a lien upon the logs which
were the subject o f the labor performed. From this judgment an
appeal was taken. The contention was that the father and son were
in fact contractors and performed the work as such, using the labor
o f others and making use o f teams, and that therefore the statute
above quoted did not give them any right o f lien.

WAGES.

245

The supreme court affirmed the judgment below, holding that the
father and son were entitled to a lien.
Speaking through Judge Hallam, the court said:
The labor performed was manual, and the work of the teams was
necessary to the performance of such labor. In Martin v. Wake
field, 42 Minn. 176, 43 N. W. 966, 6 L. R. A. 362, it was held that
“ manual labor,” as those words were used in the statute then in
force, “ includes the use and earnings o f all implements, instrumen
talities, and agencies such as ax, cantliook, team, or the like which
are actually used in and necessary to the performance o f such labor
by the lumberman or logger,” and it was held that one who furnished
a team and teamster to a contractor to haul logs at a gross price for
both is entitled to a lien, even though the man and the team during
a great part o f the time worked separately.

W ages— M in im u m W age L aw — C onstitutionality of S tatute—
F reedom of Contract— Childrens Hospital of the District of Co

lumbia v. Adkins et al., Court of Appeals of the District of Columbia
(November 6, 1922), 60 Washington Law Reporter, page 721; 286
Federal Reporter, page 618.—An act o f Congress o f September 19,
1918 (40 Stat. 960), established a minimum wage board for the Dis
trict o f Columbia, with power to determine wages for women and
children in the District. The constitutionality o f this statute was
challenged by the Children’s Hospital of the District o f Columbia
and a woman elevator operator, each claiming that the law interfered
with satisfactory relationships and prevented the exercise of their
constitutional rights of contract. The cases were joined, and in the
District Supreme Court a decision was rendered on June 2, 1920,
sustaining the constitutionality of the law. From the foregoing an
appeal was taken to the District Court of Appeals, resulting in the
affirmation o f the judgment of the court below on June 6, 1921, one
justice dissenting. Neither o f the above opinions was reported offi
cially. A rehearing was denied on the first motion; but following
the return to the bench of a judge temporarily absent, the majority
against rehearing was reversed, and it was allowed July 13, 1921, one
justice dissenting. The rehearing was held in October, 1921, and a
second decision rendered on November 13, 1922, holding the law
unconstitutional, one justice dissenting.
The opinion o f the court was delivered by Judge Van Orsdel.
After stating the principles of the law and the relations of the
parties, the opinion reads:
The act clearly was neither passed to meet a temporary emergency
nor “ to tide over a passing trouble.” Its interpretation may be
pursued without reference to the modern rule of emergency resorted
to in support o f certain so-called war legislation; nor does it appear
that any situation has arisen in the District o f Columbia, in respect

246

TEXT AND SUMMAKIES OF DECISIONS.

o f woman workers, which has become so “ publicly notorious ” as to
justify the inference o f an emergency. True, Congress declared the
purpose o f the act to be “ to protect the women and minors of the
District from conditions detrimental to their health and morals
resulting from wages which are inadequate to maintain decent staiidards o f living.” It then undertakes to direct the interpretation o f
the act and forbids appeal to the courts, except upon questions o f
law. While statements of fact by a legislature, as an inducement for
the enactment o f the law, are entitled to respect, they are by no
means conclusive upon the courts; nor are the limitations upon in
terpretation and appeal, since the courts will have the last word in
the event o f any arbitrary action on the part o f the board in carrying
out the provisions of the act.
Another contention may be disposed o f in a word. True, a num
ber o f States have enacted similar laws and they have generally been
upheld by the State courts, but that by no means forecloses considera
tion o f the present case. In Coppage v. Kansas, 236 U. S. 1, 35 Sup.
Ct. 240 (Bui. No. 169, p. 147), the court condemned an act making
it a criminal offense for an employer to prevent, by contract, his
employees joining labor unions, notwithstanding such laws existed
in 13 States and the Territory o f Porto Rico.
W e are here called upon to weigh the subject matter o f certain
legislation in the balance o f the Constitution, the general power o f
Congress to fix wage contracts between private individuals. I f Con
gress may establish a minimum wage for women, it may establish
a maximum wage, or it may name a fixed wage. I f it may regulate
wages for women, it may by the exercise o f the same power establish
the wages to be paid men. The power o f Congress to fix wages
between private individuals is either constitutional or unconstitu
tional. There is no leeway for legislative or judicial discretion. A
fundamental principle is involved, and it does not lie in the courts
to declare a law fixing the wages o f women constitutional and a law
fixing the wages o f men unconstitutional. The moral stimulus in
the one instance is no greater than in the other. I f higher wages are
essential to preserve the morals of women, they are equally essential
to preserve the morals o f men.
It was further argued that equitably to enforce such a law inquiry
would necessarily be made into living conditions, and “ the power
must likewise be conceded to fix the prices o f all commodities enter
ing into the determination o f an equitable wage.” The fifth and
fourteenth amendments protecting freedom o f contract were re
ferred to, and while certain demands o f public safety and welfare
might admittedly justify certain restrictive legislation, it was said
that “ such regulations affect only the mode of operation and do not
invade the domain o f prices. * * * The police power can not be
employed to level inequalities o f fortune. Private property can not
by mere legislative or judicial fiat be taken from one person and
delivered to another, which is the logical result o f price fixing.”
Reference was made to the case o f Wilson v. New (243 U. S. 332,
27 Sup. Ct. 298, see Bui. No. 224, p. 144), in which the Adamson law,

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247

so called, was declared constitutional. This law established an eighthour standard working day and provided for the maintenance of the
then existing scale of wages until changed by agreement. It was
declared that this was not a wage fixing statute; it does not intimate
that Congress could legislate upon the question of wages where an
agreed scale existed nor in the exercise of its delegated authority to
regulate commerce.
Another case relied upon to uphold the statute was Block v. Hirsh
(256 U. S. 135, 41 Sup. Ct. 458, Bui. No. 309, p. 135), sustaining a
rent regulation act for the District o f Columbia. This was said to
be sustainable as applying to an existing emergency to meet a “ pub
licly notorious situation” which was “ embarrassing the Federal
Government in the transaction of the public business.” Neither of
these was regarded as involving the principles necessary to the up
holding o f the statute in question.
Taking up the question o f the act as a proper exercise o f the
police power, the court was “ o f the opinion that it can not be
upheld.”
A wage based upon competitive ability is just, and leads to fru
gality and honest industry, and inspires an ambition to attain the
highest possible efficiency, while the equal wage paralyzes ambition
and promotes prodigality and indolence. It takes away the strong
est incentive to human labor, thrift, and efficiency, and works injus
tice to employee and employer alike, thus affecting injuriously the
whole social and industrial fabric. Experience has demonstrated
that a fixed minimum wage means, in the last analysis, a fixed wage;
since the employer, being compelled to advance some to a wage
higher than their earning capacity, will, to equalize the cost o f opera
tion, lower the wage o f the more competent to the common basis.
The tendency of the times to socialize property rights under the
subterfuge o f police regulation is dangerous and if continued will
prove destructive of our free institutions. It should be remembered
that o f the three fundamental principles which underlie govern
ment and for which government exists—the protection o f life, lib
erty, and property—the chief of these is property; not that any
amount o f property is more valuable than the life or liberty of the
citizen, but the history o f civilization proves that when the citizen
is deprived o f the free use and enjoyment of his property, anarchy
and revolution follow, and life and liberty are without protection.
Take from the citizen the right to freely contract and sell his labor
for the highest wage which his individual skill and efficiency will
command, and the laborer would be reduced to an automaton—a
mere creature o f the State. It is paternalism in the highest degree,
and the struggle of the centuries to establish the principle that the
State exists for the citizen, and not the citizen for the State, would
be lost.
The judgment sustaining the act was therefore reversed and the
causes remanded for further proceedings.

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TEXT AND SUMMARIES OF DECISIONS*

Chief Justice Smyth dissented, claiming, first, that proper pro
cedure had been violated in entertaining the second motion for a
rehearing after the matter had been legally finally disposed of, citing
numerous authorities. Taking up then the question o f constitu
tionality, he said:
The question presented by these cases is not one o f economics. It
does not call for a decision with respect to what constitutes thrift or
lack o f thrift. Nor is the wisdom or nonwisdom o f the statute before
the court. It is no part o f our function to deal with such matters,
and any discussion o f them is quite beside the case. Our authority
is limited to the single question, Had Congress the right to pass the
act % When we decide that, we decide everything we have any right
to touch. A ll else that is said, no matter how vehemently, is merely
obiter.
The scope o f the act was then pointed out, being the protection o f
“ women and minors of the District from conditions detrimental to
the health and morals, resulting from wages which are inadequate to
maintain decent standards o f living,” as stated in the act. Differ
ences o f economic opinion were declared not entitled to consideration
in the case, and it was said “ that the high respect due from one
coordinate branch o f the Government to another forbids the judi
ciary to declare an act o f Congress invalid unless it is manifestly
so.” The relationship o f the statute to the end in view was then
considered as warranting the enactment o f the law as an exercise
o f the police power, no legislation having been enacted until Con
gress “ had thoroughly investigated the subject involved,” reaching
the conclusion that “ women and minor workers in the District were
paid inadequate wages, and this had a tendency to affect injuriously
their health and morals.” Numerous cases were cited in which the
restriction o f the freedom o f contract was held to be valid, such
enactments being for the public welfare. Minimum wage statutes
in various States have been assailed, but uniformly sustained.
Much was said during the argument at the bar to the effect that
if this statute is sustained it will lead to sovietism, and so forth.
When statutes having that effect come up for judgment we shall deal
with them. It is no part of our duty to engage in speculation con
cerning them now.
It appears to me conclusively that a minimum wage has a real and
substantial relation to the health and morals o f women and minor
girls who work, and that Congress by providing for the establish
ment o f such a wage in the manner outlined in the statute, has not
acted arbitrarily or spoliatively, but clearly within the limits of the
police power with which it is intrusted.
After the necessary proceedings in the Supreme Court o f the
District, to which the case was remanded, arrangements were per

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fected for an appeal to the Supreme Court o f the United States for a
final decision o f the questions involved.
In accordance with the foregoing program, the cases above were
argued in the Supreme Court o f the United States, a decision being
handed down April 9, 1923. Five justices united in declaring the
law unconstitutional, Justice Brandeis taking no part, while Mr.
Chief Justice Taft and Justices Holmes and Sanford dissented
(Adkins v. Children’s Hospital o f the District of Columbia, 42
Sup. Ct. 394).
The majority opinion was delivered by Mr. Justice Sutherland,
who, after stating the facts in the case, disposed of the question
o f jurisdiction by saying that the Supreme Court o f the District
was within its rights in entertaining the second appeals, and it
was from these that the present consideration o f the law arose,
so that the cases were properly before the United States Supreme
Court. Taking up then the substantive question involved, the
rule was announced that “ every possible presumption is in favor
o f the validity o f an act of Congress until overcome beyond rational
doubt.” However, this statute was attacked on the ground of
authorizing “ an unconstitutional interference with the freedom of
contract included within the guaranties o f the due-process clause of
the fifth amendment.” The contracts thus guaranteed include con
tracts o f employment o f labor in which, “ generally speaking, the
parties have an equal right to obtain from each other the best terms
they can as the result of private bargaining.”
The cases in hand were distinguished from those involving busi
ness impressed with a public interest and those relating to contracts
for the performance of public work, which are admittedly
subject to regulation. Statutes prescribing the character, methods,
and time for payment of wages were said to have for their purpose
the prevention of “ unfair and perhaps fraudulent methods in the
payment o f wages, and in no sense can they be said to be, or to
furnish a precedent for, wage-fixing statutes.”
Statutes fixing hours o f labor were next taken up and considered
at length, because “ such cases approach most nearly the line of
principle applicable to the statute here involved.” Laws enacted
for the protection o f the health o f workers, as in mines and smelters,
are a proper exercise o f the police power; but in the absence of such
a basis, interference with the work time o f adult males is “ an un
reasonable, unnecessary, and arbitrary interference with the liberty
o f contract, and therefore void under the Constitution.” (Lochner
v. New York, 198 U. S. 45, 25 Sup. Ct. 539.) In this decision a law
o f the State which restricted the employment o f all persons in
bakeries to 10 hours in one day was declared unconstitutional.

250

TEXT AND SUMMARIES OE DECISIONS.

The next decision cited was Bunting v. Oregon (243 U. S. 426,
37 Sup. Ct. 435.) Here a law of Oregon limiting to 10 per day the
hours o f work o f any person in mills, factories, and manufacturing
establishments, but permitting overtime for not exceeding 3 hours
at a rate o f time and a half was sustained “ on the ground that since
the State legislature and State supreme court had found such a law
necessary for the preservation of the health o f employees in these
industries this court would accept their judgment, in the absence o f
facts to support the contrary conclusion.55
Taking up cases limited to female workers, Justice Sutherland
cited Muller v. Oregon (208 U. S. 412, 28 Sup. Ct. 328), in which an
Oregon statute limiting the hours o f labor o f women was sustained,
though its attackers cited the Lochner case in support o f their con
tention o f unconstitutionality. The law was upheld “ upon the
theory that the difference between the sexes may justify a different
rule restricting hours o f labor in the case o f women than in the case
o f men.55 Similar laws o f California, Massachusetts, and Ohio were
subsequently upheld by the Supreme Court on the authority o f the
Muller case. “ But the ancient inequality o f the sexes, otherwise
than physical, as suggested in the Muller case, has continued ‘ with
diminishing intensity.5 In view o f the great—not to say revolu
tionary— changes which have taken place since that utterance in
the contractual, political, and civil status o f women, culminating in
the nineteenth amendment, it is not unreasonable to say that these d if
ferences have now come almost, if not quite, to the vanishing point.55
Though conceding that “ physical differences must be recognized in
appropriate cases,55 as in fixing hours or conditions o f work, “ we
can not accept the doctrine that women o f mature age, sui juris,
require or may be subjected to restrictions upon their liberty of
contract which could not lawfully be imposed in the case of men
under similar circumstances.55
The opinion then proceeds to point out “ the essential character
istics o f the statute now under consideration, which differentiate it
from the laws fixing hours o f labor.55 The present statute was said
to be “ simply and exclusively a price-fixing law, confined to adult
women (for we are not now considering the provisions relating
to minors), who are legally as capable o f contracting for themselves
as men. It forbids two parties having lawful capacity—under pen
alties as to the employer— \o freely contract with one another in
respect o f the price for which one shall render services to the other
in a purely private employment where both are willing, perhaps
anxious, to agree, even though the consequence may be to oblige
one to surrender a desirable engagement and the other to dispense
with the services of a desirable employee.55 It is said that “ the price

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fixed by the board need have no relation to the capacity of earning
power o f the employee,” and while it is based on “ assumed neces
sities ” o f the employee, “ it takes no account of any independent
resources she may have.”
The standard furnished by the statute for the guidance of the
board was said to be “ so vague as to be impossible of practical
application with any reasonable degree of accuracy.” The amount
needed to maintain health and protect morals was said to be so vari
able and incapable of standardization as to furnish no reasonable
basis for making a determination. “ The board probably found it
impossible to follow the indefinite standard of the statute, and
brought other and different factors into the problem; and this goes
far in the direction of demonstrating the fatal uncertainty of the act,
an infirmity which, in our opinion, plainly exists.”
The next point made is that—
The law takes account of the necessities of only one party to the
contract. It ignores the necessities o f the employer by compelling
him to pay not less than a certain sum, not only whether the em
ployee is capable of earning it, but irrespective of the ability of his
business to sustain the burden, generously leaving him, of course,
the privilege o f abandoning his business as an alternative for going
on at a loss. It compels him to pay at least the sum fixed in any
event, because the employee needs it, but requires no service of equiv
alent value from the employee. * * * To the extent that the sum
fixed exceeds the fair value of the services rendered, it amounts to a
compulsory exaction from the employer for the support of a par
tially indigent person, for whose condition there rests upon him no
peculiar responsibility, and therefore, in effect, arbitrarily shifts to
his shoulders a burden which, if it belongs to anybody, belongs to
society as a whole.
The opinion continues:
The feature of this statute which, perhaps more than any other,
puts upon it the stamp o f invalidity is that it exacts from the
employer an arbitrary payment for a purpose and upon a basis hav
ing no causal connection with his business, or the contract, or the
work the employee engages to do. The declared basis, as already
pointed out, is not the value of the service rendered, but the extra
neous circumstance that the employee needs to get a prescribed sum
o f money to insure her subsistence, health, and morals. Certainly
the employer by paying a fair equivalent for the service rendered,
though not sufficient to support the employee, has neither caused nor
contributed to her poverty. On the contrary, to the extent of what
he pays he has relieved it. In principle, there can be no difference
between the case of selling labor and the case of selling goods. I f
one goes to the butcher, the baker, or grocer to buy food, lie is mor
ally entitled to obtain the worth of his money; but he is not entitled
to more. I f what he gets is worth wThat he pays he is not justified
in demanding more simply because he needs more; and the shop
keeper, having dealt fairly and honestly in that transaction, is not

252

TEXT AND SUMMARIES OF DECISIONS.

concerned in any peculiar sense with the question o f his customer’s
necessities. Should a statute undertake to vest in a commission
power to determine the quantity o f food necessary for individual
support and require the shopkeeper, if he sell to the individual at
all, to furnish that quantity at not more than a fixed maximum, it
would undoubtedly fall before the constitutional test. The fallacy
o f any argument in support o f the validity o f such a statute would
be quickly exposed. The argument in support of that now being
considered, is equally fallacious, though the weakness of it may not
be so plain. A statute requiring an employer to pay in money, to
pay at prescribed and regular intervals, to pay the value o f the serv
ices rendered, even to pay with fair relation to the extent o f the
benefit obtained from the service, would be understandable. But
a statute which prescribes payment without regard to any o f these
things and solely with relation to circumstances apart from the con
tract o f employment, the business affected by it and the work under
it, is so clearly the product o f a naked, arbitrary exercise o f power
that it can not be allowed to stand under the Constitution o f the
United States.
Noting the economic arguments in behalf o f such legislation, it
was said that they might be considered by legislatures, but “ reflect
no legitimate light upon the question o f its validity.” I f the public
welfare is invoked to justify the fixing o f a minimum wage, u it may,
when the public welfare is thought to require it, be invoked to justify
a maximum wage. The power to fix high wages connotes, by like
course o f reasoning, the power to fix low wages. * * * A wrong
decision does not end with itself; it is a precedent, and, with the
swing o f sentiment, its bad influence may run from one extremity
o f the arc to the other.”
A dissenting opinion by Mr. Chief Justice Taft, concurred in by
Mr. Justice Sanford, stated the basis o f legislation limiting freedom
o f contract between employee and employer as “ the assumption that
employees, in the class receiving less pay, are not upon a full level
o f equality o f choice with their employer and by their necessitous cir
cumstances are prone to accept pretty much anything that is offered.”
How far statutory regulation may be a useful remedy for the evils
at which it is directed was admittedly a disputable question. “ But
it is not the function o f this court to hold congressional acts invalid
simply because they are passed to carry out economic views which the
court believes to be unwise or unsound.”
Referring to the decision in the Lochner case (which was handed
down in 1905) and to that in the Bunting case (in 1917), the Chief
Justice said, “ It is impossible for me to reconcile the Bunting case
and the Lochner case and I have always supposed that the Lochner
case was thus overruled sub silentio. Yet the opinion o f the court
herein in support o f its conclusion quotes from the opinion in the

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Lochner case as one which has been sometimes distinguished but
never overruled. Certainly there was no attempt to distinguish it in
the Bunting case.” 1
Assuming that “ the conclusion in this case rests on the distinction
between a minimum of wages and a maximum of hours in the limit
ing o f liberty to contract,” it was said that both enter equally into
the consideration given and received, and that there is no essential
difference in the restriction o f either, as the two factors of time and
rate are o f the same kind. “ One is the multiplier and the other the
multiplicand.” The conclusion that the concession of power to fix
a minimum must carry with it the concession to fix a maximum
wage was said not to follow.
The relation o f wages to health was said to be not less direct than
that o f the hours of labor, on “ very respectable authority from close
observers, disclosed in the record and in the literature on the subject.
Congress took this view and we can not say it was not warranted in
so doing.”
Cases were then cited in which the court had sustained legislative
limitations in respect to the wage term in contracts for private
employment, as the payment o f miners by weight of coal, redemption
o f store orders in cash, and the payment o f wages to seamen in ad
vance. Without expressing an opinion as to the validity of a law fix
ing a wage for adult men, “ it is enough to say that the case before us
involves only the application of the minimum wage to women ” ; and
in view o f the evidence that “ a sweating wage has as great and as
direct a tendency to bring about an injury to the health and morals
o f workers ” as long hours, “ then I respectfully submit that Muller
v. Oregon controls this case.”
The opinion concludes:
I am not sure from a reading of the opinion whether the court
thinks the authority of Muller v. Oregon is shaken by the adoption
o f the nineteenth amendment. The nineteenth amendment did not
change the physical strength or limitations of women upon which
the decision in Muller v. Oregon rests. The amendment did give
women political power and makes more certain that legislative
provisions for their protection will be in accord with their interests
as they see them. But I do not think we are warranted in varying
constitutional construction based on physical differences between
men and women because of the amendment.
But for my inability to agree with some general observations in the
forcible opinion o f Mr. Justice Holmes, who follows me, I should be
silent and merely record my concurrence in what he says. It is per
haps wiser for me, however, in a case of this importance separately
to give my reasons for dissenting.
1 Counsel attacking the Oregon statute cited the Lochner case as supporting their con
tention, but it was not even mentioned in the opinion of the court.

254

TEXT AND SUMMARIES OF DECISIONS.

Mr. Justice Holmes cited various cases in which liberty of contract
had been interfered with “ quite as seriously and directly as the one
before us,” as where interest and insurance rates and wage pay
ments were regulated, the size of a loaf o f bread established, and
employers’ responsibility to their employees “ profoundly modified.”
Justice Holmes was not able to “ understand the principle on which
the power to fix a minimum for the wages o f women can be denied by
those who admit the power to fix a maximum for the hours of work.
* * * The bargain is equally affected whichever half you regu
late. Muller v . Oregon, I take it, is as good law to-day as it was
in 1908. It will need more than the nineteenth amendment to con
vince me that there are no differences between men and women, or
that legislation can not take those differences into account. After
Bunting v. Oregon, I had supposed that Lochner v. New York would
be allowed a deserved repose.”
Continuing, he said:
This statute does not compel anybody to pay anything. It siniply
forbids employment at rates below those fixed as the minimum re
quirement of health and right living. It is safe to assume that women
will not be employed at even the lowest wages allowed unless they
earn them or unless the employer’s business can sustain the burden.
In short, the law in its character and operation is like hundreds o f
so-called police laws that have been upheld.
The criterion of constitutionality is not whether we believe the
law to be for the public good. We certainly can not be prepared
to deny that a reasonable man reasonably might have that belief in
view o f the legislation of Great Britain, Victoria, and a number
o f the States o f the Union. The belief is fortified by a very remark
able collection o f documents submitted on behalf o f the appellants,
material here, I conceive, only as showing that the belief reasonably
may be held.
I am o f opinion that the statute is valid and that the decree should
be reversed.
W ages— M ode and T im e of P ayment — D eduction for A dvance
P ayment — Princeton Goal Co. v. Dorthy Supreme Court of Indiana

(.December 22,1921), 133 Northeastern Reporter, page 386.—Charles
L. Dorth was a laborer in the employ o f the Princeton Coal Co. from
October 15, 1912, until November 30, 1916. The company paid its
employees on the 10th and 25th o f each month for the half month
ending 10 days previous to the day of payment. It was the practice
o f the company, known to Dorth, that there would be a 10 per
cent deduction on partial payments of wages paid before the regular
pay days. This suit was brought to recover $190.70, the total
amount deducted as discounts for the advance payment o f wages.
There were also items amounting to $102.55 deducted from Dorth’s

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255

wages and paid to a store not owned by the company. Dortli, dur
ing the period of his employment, acquiesced in the deductions.
The circuit court allowed the recovery of the $190.70. From this
judgment the company appealed. The lower court was reversed
on appeal, as it was held that this was a case of accord and satis
faction and that the employee was bound by his acceptance of the
lower amount. It was also held that the wage assignment law does
not render illegal discounts made by an employer in making pay
ments to employees at their request before pay day. Judge Town
send stated the opinion of the court in part as follows:
I f a debtor pays his creditor at or after the due date less than
the liquidated amount due, this is not satisfaction, because there is
no consideration. I f the debtor pays a different consideration than
that in the contract, it may be satisfaction, even though what the
creditor receives may seem of less value than that for which the
contract calls. Courts have no practical way to fathom the mental
processes o f the creditor in accepting a consideration different
in kind than that in the contract. The creditor is his own judge
in this matter. He is deemed to have seen something more advan
tageous in the consideration received than the consideration in
the contract, even though it may appear to the court to be o f less
value.
When the debtor pays his creditor before the debt is due a less
sum than the contract calls for at the due date, it must be assumed
by the court that the creditor deemed a lesser amount paid before
the due date more advantageous to him than the whole amount
on that date. This consideration moves to the creditor. The thing
lost by the debtor is the right to stand on his contract and not
pay until the due date. And if he, in consideration of this loss, de
mands and gets from his creditor a discount, courts are not re
quired to inquire into the reasonableness or unreasonableness of
the debtor’s conduct in so demanding, nor of the creditor’s conduct
in accepting payment sc reduced. Appellee is bound by his accept
ance of an amount less than the face of his claim, in consideration
that he got it before it was due.
It is contended, however, by counsel for appellee that the dis
counts for payment before due are illegal, because o f a statute con
cerning the assignment o f wages. (Acts 1909, p. 76.) This has no
application. The present case is not an assignment of wages in the
sense of the act, and does not come within the purview o f it. What
we have here is an acceptance of an employee— who is not an infant,
not a person o f unsound mind, not under guardianship—of an
amount less than the wages earned in consideration o f payment of
wages before pay day. Appellee’s counsel also contends that appellee
had a right to have his wages paid each week, pursuant to section
7981, Burns’ "1914 (Acts 1911, p. 110). It is true that this statute
gives him this right, “ if demanded.” But he did not demand it.
The court erred in its conclusion o f law allowing appellee to
recover $190.70.

2 56

TEXT AND SUMMAKIES OF DECISIONS.

In Princeton Coal Co. v. Dorth, 134 N. E. 275, decided February
23, 1922, a petition for a rehearing was denied, Judge Townsend,
speaking for the court, stating in part as follow s:
Appellee contends again in his petition for rehearing that section
7981, Burns’ 1914, controls this case; that is to say, that it shall be
unlawful to enter into a contract to pay an employee under the cir
cumstances of this case in anything but lawful money of the United
States, and that any contract to the contrary shall be void. The
answer to this contention is that it has no application. The con
tract between appellant and appellee was to pay in money. Making
a contract which established the relation o f employer and employee
is one thing; mutually settling what shall be paid after the work has
been performed, before pay is due, is a very different thing.
Appellee further insists in the petition for rehearing the facts
found warrant the inference that he made demand for the payment
o f his wages each week. On the contrary, the findings expressly
show that the discounts were always 15 to 16 days apart during all
o f the time covered by the findings.
Statutes o f the character relied on here are in derogation of com
mon law. They give a new right to the employee. They impose a
new and additional burden upon the employer. One section o f the
statute requires weekly payment o f wages, if demanded; another
authorizes the employer to pay on the 10th and 25th o f each month.
I f appellee wants to exclude himself from the operation o f one stat
ute and invoke the operation of the other, it is his duty to do so by
a clear and' explicit demand. It is not for this court to become
paternalistic to extend the meaning o f these statutes beyond the
clear legislative intent. They are not only in derogation o f common
law, but are also penal.
Appellant and appellee operated under section 7989a, Burns’ 1914,
which provides for semimonthly payments. I f appellee wanted to
bring himself within section 7981, which provides for weekly pay
ment, he did not do so by asking for payments semimonthly. '
Chief Justice Ewbank dissented from both opinions.

W ages— N onpayment — P enalty — A ssignment—Martin v. Going,
District Court of Appeal of California ( M ay 8, 1922), 207 Pacific
Reporter, page 935.— Several men performed labor upon the ranch
o f J. S. Going, in the State o f California, during the summer months
o f 1920. Their wages were not paid, and they assigned their right
to them to J. C. Martin. Section 955 o f the Civil Code o f California
provides:
No assignment of, or order for, wages or salary shall be valid un
less made in writing by the person by whom the said #wages or salary
are earned.

The Statutes o f 1919, page 294, provide that as to an employee
not working under a written contract for a definite period, his wages
shall become due and payable not later than 72 hours after termina

WAGES.

257

tion o f the employment, and that where an employer willfully fails
to pay such wages, “ as a penalty for such nonpayment the wages
or compensation of such employees shall continue from the due date
thereof at the same rate until paid, or until an action therefor shall
be commenced: Provided, That in no case shall such wages continue
for more than 30 days. * * * ”
The assignee, J. C. Martin, combined the assignments, amounting
to $264.80, thereby taking the jurisdiction out o f the justice’s court,
and giving jurisdiction to the superior court, and brought an action
to recover the total amount. The trial court rendered judgment,
allowing besides the $264.80 claimed an amount for penalties for
30 days, bringing the total judgment up to $485.30. An appeal was
taken to the district court of appeal. That court reversed the judg
ment below, stating several reasons for its action. The burden o f
proving the assignment to be legal was upon Martin. A t the trial
witnesses had testified that the claims had been assigned without
stating the manner in which the assignment was made. The court
o f appeal held that this fell short of establishing the fact in the
manner required by law. Going raised a contention as to the validity
o f the additional sums allowed by the trial court as penalties for nonpayment o f the alleged wages. He showed that all o f the amounts
claimed weie alleged to have accrued on August 5,1920, and that the
original complaint was filed by Martin on August 24, 1920. Judge
James, o f the court o f appeal, in finding that the judgment o f the
trial court could not be sustained, said in part :
These facts suggest two questions, which may be thus answered:
(1) Under the terms of the statute the “ penalty wages ” would stop
running upon the commencement o f an action to collect the same,
where the action is brought by an original claimant. But 19 days
elapsed between the cessation o f labor and the commencement o f the
action; hence in no event could there be a 30-day penalty allowed.
(2) An assignment o f a labor claim can not carry with it and pre
serve in favor o f the assignee the right to a penalty accruing sub
sequent to the date o f the assignment. For aught that appears in
the findings o f the court, the assignment may have been made on any
day subsequent to the cessation o f work.

W ages— N onpayment — P enalty — E ffect of T ender— Robinson
v. St. Maries Lumber Co., Supreme Court of Idaho ( December 30,
1921), 204 Pacific Reporter, page 671.—Mike Carter, George McDon
ald, and several other men were in the employ of the St. Maries Lum
ber Co. on June 25,1917, as laborers. On that day they stopped work
and demanded their time from the foreman in charge o f the work.
They were each given a statement of the amount due them, payable
at the Lumbermen’s State Bank, St. Maries, and they thereupon left

258

TEXT AND SUMMARIES OF DECISIONS.

the place o f their employment and proceeded to the city of St.
Maries. The Lumbermen’s State Bank refused payment, and the
time checks were returned to the men. Carter and McDonald, there
after, on June 26 or 27, 1917, delivered their time checks to an attor
ney for collection. On July 3, 1917, the attorney was tendered the
full amount of the wages due the men, but the penalties due under
the statute that provided that an employee u may charge and collect
wages in the sum agreed upon in the contract of employment for
each day his employer is in default until he is paid in full, without
rendering any service therefor,” were not tendered. The tender of
wages was refused. The matter was taken into court with the claims
for wages by the other men, and the case eventually found its way
by appeal into the supreme court o f the State. In the opinion of
that court upon the question of the amount due Carter and McDon
ald it was held that “ upon the payment or tender o f the wages, the
running o f the penalty provided by the Compiled Statutes, section
7381, stopped.” However, it was held that the employee still had
the right to bring suit for the penalty that had accrued up to the
time o f the tender. A tender, it was held, had the same effect as
payment. The chief justice and one judge dissented from the opinion
o f the majority o f the court because o f their view that the tender
should be the amount due, including the accrued penalty. The two
claimants were allowed the amount o f wages due on the date de
manded and $6 each per day (the wage rate), together with interest
up to the time of the tender, with costs.
W ages — B ates — B asis — J urisdiction of I ndustrial C ourt—
E nterprise O perated at a L oss— Court of Industrial Relations v.

Charles Wolff Packing Co., Supreme Court of Kansas ( June 10,
1922), 207 Pacific Reporter, page 806.1—The court o f industrial rela
tions brought proceedings against the Charles W olff Packing Co. to
compel the acceptance o f a prescribed scale o f wages and the estab
lishment o f certain hours of labor in the company’s plant. The con
stitutionality o f the law authorizing the court to do this was ques
tioned, and other contentions arose which were decided in a previous
decision reported in 201 Pacific Beporter, at page 418 (Bui. No. 309,
p. 128). This opinion is a part of the same action and disposes of the
questions that were not disposed o f in the former opinion. The Su
preme Court o f Kansas appointed a commissioner to take evidence
and make findings of fact and conclusions of law in connection with
this case. The evidence was taken, and it shows that the company
was engaged in operating a packing plant in the city o f Topeka for
the purpose o f slaughtering animals for fo o d ; that about 300 work
men were employed by the company in the operation o f the plant;
1 Reversed: 43 Supreme Court Reporter, p. 630.

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259

that a difference arose between the company and its employees con
cerning wages, hours of labor, and certain working conditions; that
a meeting o f the employees was called for the purpose of voting on
a proposition to strike on account of the controversy; that at the
meeting the employees voted to present the controversy to the court
o f industrial relations; and that thereafter proceedings were taken
before the court. The company insisted that the evidence did not
show such an emergency as would give jurisdiction to the court of
industrial relations to make any order in this case. The former
opinion decided this question in favor o f the employees, and that
opinion was in this case expressly approved in this respect. On this
subject Judge Marshall, speaking for the court, said:
The defendant’s plant is a small one, and it may be admitted that,
if it should cease to operate, the effect on the supply of meat and food
in this State would not greatly inconvenience the people o f Kansas;
yet the plant manufactures food products and supplies meat to a
part o f the people o f this State, and if it should cease to operate
that source o f supply would be cut off. The plant comes within
the operation o f the law, and the court o f industrial relations has
power tQ make the orders provided by law under the circumstances
named in the statute. The petition alleged facts which show that
such an emergency as the law contemplates existed, and gave to the
plaintiff authority to inquire concerning the matters alleged in the
complaint. The evidence established facts sufficient to give to the
court o f industrial relations authority to make proper orders
thereunder.
The commissioner appointed by the court reported as one of his
conclusions o f law that the orders contained in paragraphs 1, 5, 6,
,7, 8, 10, 12, 13, and 16 of the order o f the court of industrial rela
tions were made without jurisdiction and were unenforceable. The
paragraphs o f the order objected to provided for certain working
conditions, and the conclusion reached by the commissioner was
based on the fact that the employees did not allege anything in
their petition to the court that would give jurisdiction to the court
to make the orders objected to. The contention of the court of
industrial relations was that it had jurisdiction because the para
graphs objected to were embraced within the contract between the
company and its employees and that a copy of the contract was
attached to the complaint. The commissioner’s conclusions were
sustained, the court saying:
The notice served on the defendant was a copy o f the complaint,
with a copy of the contract between the defendant and its em
ployees. Such a notice as is required by the statute was not given to
the defendant concerning the subjects named in paragraphs 1, 5, 6,
7, 8, 10, 12, 13, and 16 of the order of the court o f industrial rela
tions, and the defendant did not voluntarily submit to an inquiry
49978°— 23----- 18

260

TEXT AND SUMMARIES OF DECISIONS.

into those matters. It follows that the court had no jurisdiction to
make any order concerning any o f them. However, it should be
stated that if in the course of its investigation matters that ought to
be considered should come to the knowledge o f the court, it may
investigate them and make orders concerning them after taking the
necessary steps to acquire jurisdiction.
One o f the findings o f the commissioner was that for some time
prior to the making of the order fixing hours and wages the company
had been operating its plant at a loss, but no evidence was presented
showing what was the cause o f the loss. The order of the court
slightly raised the wages o f the employees over the wages that were
in effect at the time the order was made. The question was whether
this fixing of wages was a State regulation which would deprive a
person o f his property without due process o f law and deny any per
son within its jurisdiction the equal protection of the laws as
guaranteed by the fourteenth amendment. The court pointed out the
difference between fixing rates for public utilities at an amount re
sulting in loss, which under the circumstances would not be good,
and the fixing o f wages, which was held to be a proper exercise of the
State’s power. The court said that “ wages, for the purposes now
under discussion, are that part of the cost o f the finished product
given to those who perform service in its production,” and sustained
the right to regulate such wages, even though the establishment was
being operated at a loss.
In arriving at this conclusion the court said:
The operators o f a packing plant can not by law be compelled to
sell the finished product o f their plants at a price that will not allow
them a fair return upon the investment, but that does not say that
those operating the packing plant can not be compelled by law to pay
a living wage to their employees, notwithstanding the tact that the
plant is being operated at a loss. An industry o f any kind that can
not be operated except at the sacrifice o f its employees ought to quit
business. An industry ought not be permitted to recoup its losses
out o f the wages o f its employees, where those employees are in such
a condition that they can not prevent it. It may be argued that a
laboring man is not compelled to work for any particular employer,
and that the laboring man can quit at any time and go elsewhere.
So far as the law is concerned, this is true—he has an absolute right
to go and seek work in some other place; but actually, and in fact,
it is often impossible for a working man to quit the work in which
he is engaged and readily find other work. Economic conditions are
such that, most of the time, when a working man finds himself out
o f work, he must remain out o f work for days, weeks, and months,
during which time he and his family suffer. Many a working man
can not quit when he desires so to do. He must continue to work
although his wages are not sufficient to properly feed and clothe him
self and his family and educate his children. Public welfare de
mands that all industries that provide food, clothing, fuel, and trans
portation shall continue to operate because without their operation

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261

suffering must result; but public welfare likewise demands that the
working man engaged in the production of the things that minister
to the comfort o f all, must be paid such compensation for his services
as will enable him to live in the manner described in the court of
industrial relations act.
A peremptory writ o f mandamus, directing the company to put
into force the portions of the orders found valid, was therefore
authorized.
W ages— R ates— C ity O rdinance— C onstitutionality —John v.
City of Seattle, Supreme Court of Washington ( June 13, 1922), 207
Pacific Reporter, page 667.—In the charter o f the city o f Seattle,
Wash., there is a provision to the effect that every contractor and
subcontractor performing any local or other improvement work for
the city o f Seattle shall pay or cause to be paid to his employees on
such work or under such contract not less than the current rate of
wages paid by the city of Seattle for work of like character, and in
any event not less than $2.75 per day. Ordinance No. 68415 provided
that contractors or subcontractors performing any local or other im
provement work for the city of Seattle shall pay or cause to be paid
to his employees on such work or under such contract not less than
the current or prevailing wage paid by the city o f Seattle for work
of like character. Ordinances No. 41689 and No. 42219 provided that
for common labor employed in the different departments, the heads
o f those departments should fix the amount o f the wages, provided
that they should not exceed $4.75 per day for employees just enter
ing the city’s service and $5.25 for those who had been in such service
90 days or more.
Mr. F. T. Jahn and others, contractors with the city, instituted
proceedings for an injunction against the city of Seattle to prevent
further arrests because they were paying less than the amount which
certain departments of the city o f Seattle paid for common labor,
and the constitutionality of the three ordinances mentioned was ques
tioned. They were not successful in the lower court, and the case
was appealed to the supreme court o f the State. That court sus
tained the judgment below and upheld the constitutionality o f the
ordinances in question. With regard to the contention of the con
tractors that the going rate of wages was less than that which they
were being called upon to pay and that the ordinances were therefore
invalidated for the reason that they were unreasonable, the court
said:

This argument is fallacious, because the validity of statutes and
ordinances similar to the one here under consideration does not de
pend upon the exercise of the police power. The police power, of
course, must be exercised in a reasonable manner, but the right o f

262

TEXT AND SUMMARIES OF DECISIONS.

the State and its municipalities to say upon what conditions a
public work shall be or not be performed is not a right arising
from the exercise o f the police power, and therefore the question
whether the ordinances in this case prescribe a reasonable rate of
compensation does not enter into the discussion of the matter.
The contractors also contended that as the city council had not
fixed by ordinances the wages which were to be paid by the city in its
several departments they were, therefore, not bound to pay $4.75 a
day, for the reason that the rate had been established by the heads
o f some departments only and that this was an illegal attempt to
delegate to those department heads the power to fix the rates o f
wages. The court, speaking through Judge Mackintosh, met these
contentions as follows:
An examination o f the ordinances shows that the minimum wage
for labor such as we have under consideration has been fixed at
$2.75 per day and that the maximum to be paid is $4.75 per day
(with $5.25 for longer service), and that the heads o f departments
can not pay less than the one amount nor more than the other. The
provision o f the charter is that the contractor upon public work
shall pay the same wages as the departments pay. We can not see
how it can be said to be a delegation o f the legislative power for the
city council to say to the heads of the departments, “ You pay your
laborers an amount between $2.75 and $4.75 per day,” without fixing
the exact amount between those figures.
It appears that the heads o f city departments have no funds to
pay laborers; the city council appropriates the money for that pur
pose, and in accordance with the recommendation of the department
heads, if it follows recommendations, or it fixes the appropriation
itself, and in either event it in reality fixes the wages which are paid.
For the reason that the fixing o f the minimum wage upon public
work is constitutional and for the further reason that power to fix
that wage by the city of Seattle has not been delegated by the city
council but is being exercised by it the lower court was correct in
sustaining the demurrer to the complaint.
Judgment affirmed.
W ages— R ates— P ower of M unicipality — D elegation of P ow
O rdinance— Wagner v. C ity of M il

ers— C onstitutionality of

waukee et al., Supreme Court of Wisconsin (June 6, 1922), 188
Northwestern Reporter, page 187,—On September 26,1921, the com
mon council o f the city of Milwaukee adopted an ordinance govern
ing the employment o f laborers on contracts for work for the city.
It provided that all laborers employed in any work done by or for
the city by any contractor or subcontractor performing work for the
city “ shall receive and be paid a sum not less than that paid by the
city for such laborers by direct employment for a day’s work of
eight hours ” ; also that they “ shall be paid a sum which shall not
be less than the prevailing wage in this city for such skilled labor,

WAGES.

263

said prevailing wage to be determined by the wage paid to members
o f any regular and recognized organization of such skilled laborers
for such skilled labor,” such rate to “ first be determined and ap
proved by a majority vote of the members of the common council.”
In pursuance of this ordinance a resolution was adopted by the
council fixing a scale of wages of persons employed in all public
work. Herman A. Wagner, a resident taxpayer of the city of Mil
waukee, for himself and others, brought a suit to restrain the en
forcement and the resolution passed in compliance therewith. It
was alleged by him that the ordinance was unconstitutional and void
as being a delegation of the legislative function of the common
council to labor unions or organizations, and that it was in viola
tion of the charter of the city o f Milwaukee providing that all public
contracts are to be let to the lowest bidder. It was further contended
that the wage scale fixed by the resolution was 25 per cent in excess
o f the actual prevailing wages in the city of Milwaukee and vicinity
in the trades mentioned for which work was to be done and contracts
let. The trial court did not grant the relief sought, and an appeal
w7as taken to the supreme court. That court reduced the contentions
of the parties to the questions:
(1) May a common council fix and determine what shall be a
minimum prevailing wage scale to be paid by the city to its own
employees and also require its contractors to pay their employees
such rate?
(2) I f there be such a power, is there here an unwarranted dele
gation to some outside body of the authority to determine such wage
scale ?
The supreme court, four justices dissenting, reversed the action
taken by the lower court, stating its reasons through Judge Eschweiler, who spoke, in part, as follows:
For the common council to fix a prevailing minimum wage scale
is but a step in advance of, but nevertheless in line with, what was
held to be a proper exercise of its legislative discretion and function
in the case o f the City o f Milwaukee v. Raulf, 164 Wis. 172, 159
N. W. 819 [Bui. No. 224, p. 142], and we think what was said and
held in that case controls on the question now discussed. As to city
employees, such a provision as to hours of labor has long been recog
nized. (Vogt v. Milwaukee, 99 Wis. 258, 74 N. W. 789.)
As a general proposition, therefore, such a legislative body as the
common council o f Milwaukee under its charter power may fix,
within 2 reasonable and fair compass, the rate of wages to be paid
to laborers on city work as much so as it may prescribe the hours
o f labor as held in the Raulf case, supra, and as well as it may pre
scribe the quality of materials that shall go into its public buildings
and works, as has been its unquestioned power and practice.
Upon the second of these questions we see no escape from the
conclusion that by the terms o f the ordinance in question and the

2 64

TEXT AND SUMMARIES OF DECISIONS.

resolution passed in accordance therewith there is manifest a declara
tion by the common council that in fixing a minimum wage scale it
will and does adopt and establish as such scale and prevailing wage
the rate paid to the members of any regular and recognized organiza
tion o f the skilled laborers for each particular class of labor. The
only exception recognized as to such being the standard is in the
case where to any particular class o f labor the city itself is then
paying a higher scale o f wages.
This in effect declares that some body or organization outside
of, and independent from, the common council, and other than a
State or local administrative body, shall exercise the judgment re
quired to fix and determine a prevailing wage scale. It amounts to
nothing less than a surrender by the members o f the common council
o f the exercise o f their independent, individual judgments in the
determination o f a matter of legislative concern, and an agreement
that if they act upon the subject at all the determination o f such
outside body rather than their own shall control. There is no dis
cretion left with the common council as to the scale; if it fixes any,
it must fix that scale determined by the unions. The action and
judgment o f determining the wage scale is that o f the unions, not
that o f the common council. The power to exercise such legislative
function is exclusively in the common council, and their duty and
obligation as representatives o f the people to so exercise it is coex
tensive with the power itself.
The language, the reason, and the logic o f repeated former rulings
o f this court and o f other courts plainly declare that any attempted
vesting o f the determination o f such a legislative question in an out
side body is an abdication, and not an exercise, o f the legislative
discretion that exclusively belongs to the common council itself.
The ordinance provides that neither o f the various sections thereof
is passed as an inducement for the enactment for either o f the others.
It is argued that upon this express declaration and under the general
rules o f law the particular portion o f the ordinance which we are
now compelled to hold as beyond the constitutional power of the
common council to enact can be separated from the rest and the
balance upheld. We can not, however, so regard it. The control
ling, dominant feature of this entire ordinance is the fixing, in con
crete, definite form and in express terms of dollars and cents, the
prevailing wage scale for the various crafts and industries. This
essential and dominant feature is by the ordinance fixed by the labor
unions rather than by the common council. Such rule o f action is
one, we are constrained to hold, beyond the power of the common
council to make. It permeates the entire measure, and when it falls
the rest must fall.
W ages— R ates— P owter op R ailroad L abor B oard— C onstitu
tionality op S tatute— R ecovery op W ages— Rhodes v. New O r-

leans Great Northern R y . Co., Supreme Court of Mississippi, D iv i
sion B (A p ril 10, 1922), 9T Southern Reporter, page 281.1—The
United States Labor Board wras created by authority o f an act of
Congress known as the transportation act o f 1920 (41 Stat. 456).*
* See p. 142.

WAGES.

265

The board was authorized to establish rates of wages of employees
and salaries o f subordinate officials in certain cases. In pursuance
o f this authority the board on July 20, 1920, set the rate of pay of
all labor on the New Orleans Great Northern Ry. Co. at 36-£ cents
per hour. The railroad company paid Edward Rhodes, a laborer in
its employ, on this basis up to January 1, 1921. From January 1
to June 30, 1921, Rhodes continued in the employ of the company
and during this time worked 1,449 hours, but at the rate o f 20 cents
per hour. According to the rate set by the board, which continued
in effect, Rhodes was entitled to $°39.08 on June 30, and for this
amount he brought suit against the company. The railroad com
pany defended on the grounds that, admitting the facts, Rhodes did
not have a right to recover the $239.08, because that part of the act
that attempted to give power to regulate wages of employees was
unconstitutional; that the board has only a limited jurisdiction in
that it can only set wages in case of a dispute and other special cir
cumstances; that the employee had waived any rights he had by
accepting 20 cents an hour; and lastly because the court of Missis
sippi was not given power to render judgment in any suit to enforce
any order o f the board. Judgment was rendered in favor of the
railroad company and Rhodes appealed to the supreme court of the
State. Judge Ethridge, speaking for that court in an opinion re
versing the lower court, answered the contentions o f the defendant
in part as follows:
In reference to the fourth ground of demurrer, it does not appear
from the declaration that the plaintiff waived any right he may
have had to recover the 36£ cents per hour. The acceptance of part
payment does not per se waive the right to demand the balance due.
I f there are any facts constituting estoppel or waiver, that may be
raised by appropriate pleading. A demurrer does not lie to the
declaration as drawn on this ground.
It will be seen from the act that the board is given power to
establish rates o f wages and salaries in cases therein provided for.
T3te purpose o f the act is to establish a legal tribunal with powers to
fix the rate o f wages between carriers and their employees and subor
dinate officials when they can not be settled by agreement, to the
end that commerce may not be interrupted. In our view the act
creates a system o f compulsory arbitration with notice to the parties
and a right to produce evidence, and the finding of the board in
the cases provided for in the act has the effect of an award. The
purpose o f Congress was to prevent the possibility of tying up the
transportation o f the country during disputes as has been done here
tofore in numerous cases, and has been threatened in cases of such
magnitude as to seriously jeopardize the business and welfare o f
the country. The living and business conditions of the great public
are dependent upon the carriers for the transportation of the neces
saries of life, as well as ordinary articles o f utility. The legal effect
o f the action o f the board is to fix, for the time being (a temporary

266

TEXT AND SUMMARIES OF DECISIONS.

period), the wages and salaries o f the employees until the parties
can agree upon such wages or salaries, or can make other arrange
ments with other men for the carrying on of the business of the
carrier. It has the effect, in our opinion, o f giving a right of action
against the carrier by the employee or official for the salary so fixed
under the provisions o f the act if services are performed thereunder,
and the courts are open for the enforcement o f this obligation. The
courts are open to the carriers also. O f course it was within the
powers o f Congress to fix the conditions upon which suits could be
brought, or the courts in which the obligation could be enforced.
But, Congress having designated no tribunal to take cognizance o f
the matter, any court having jurisdiction o f the parties and subject
matter may enforce the obligation as in the case of any other money
obligation or contractual right.
This brings us, then, to the question o f the constitutionality o f the
act.
Congress has been given the power to regulate interstate commerce
in broad and comprehensive terms. This power, being given by the
Constitution, is only limited by other provisions of the Constitution.
The act in question seems to us to have been drawn under the deci
sions o f Wilson v. New, 243 U. S. 332, 37 Sup. Ct. 298 [Bui. No. 224,
p. 144], in which case the court considered the power o f Congress
under the Adamson Act (U. S. Comp. St., secs. 8680a-8680d) to
legislate with reference to a grave situation involving, among other
things, the right to fix wages and hours for employees, and upheld
the power o f Congress so to do. The applicable authorities are
found iii that opinion and in the elaborate briefs before the United
State Supreme Court in that case as set out in 61 L. Ed. 775 et seq.
The power conferred in the present act to fix wages is not a fixing
o f wages permanently, but a temporary fixing of wages with full
_power o f the Labor Board to modify its orders as exigencies may
arise.
;*
W e do not think the act here under review unconstitutionally
abridges the freedom o f contract, nor that it deprives the defendant
o f its property without due process o f law. As pointed out in W il
son v. New, supra, and numerous other cases, the fact that a busi
ness is affected with the public use makes it different from, and its
right o f contract also different from, that o f ordinary business.
This is pointed out clearly in the majority opinion in Wilson v. New,
supra. Mr. Justice McReynolds in his dissenting opinion closes his
opinion with this language:
44But, considering the doctrine now affirmed by a majority of the
court as established, it follows as of course that Congress has power
to fix a maximum as well as a minimum wage for trainmen; to re
quire compulsory arbitration of labor disputes which may seriously
and directly jeopardize the movement o f interstate traffic; and to
take measures effectively to protect the free flow o f such commerce
against any combination, whether o f operatives, owners, or
strangers.”
It follows from what we have said that the judgment o f the court
below must be reversed, and the cause remanded.
Reversed and remanded.

WAGES.

267

W ages— S eamen — C ontract of E mployment — F ishermen — S ea
V essel— L abor C ertificates I ssued under D uress—

worthiness of

Heino v. Libb y, McNeill & Libby, Supreme Court of W ashington
{June 21, 1921), 205 Pacific Reporter, page 85If,.—This case was a
consolidation o f 10 suits by a crew o f seamen and fishermen, suing
for themselves and as assignees of 84 others. The action was for the
recovery o f wages claimed to be due under a contract to operate a
ship and to engage as fishermen, going from Seattle, Wash., to Libbyvilie, Alaska, and return. The contract obligated the men to carry
out their agreement subject to a penalty of $5, recoverable from each
member o f the crew, for each day they refused to work. The fishing
season is during the summer, and the vessel, a sailing ship, the Abner
Cobum, left Seattle April 10, 1919, with cannery and fishery sup
plies and about 325 or 330 men. The men were divided into three
groups, the first group comprising what were known as seamen, fish
ermen, beachmen, and trapmen; the second, monthly men, and the
third, China crew. The plaintiffs in this case were members of the
first group, and all belonged to the Alaska Fishermen’s Union. Be
sides the statutory contract, complying with the provisions of the
Federal law, there was a supplemental agreement known as the
“ fisherman’s contract,” specifying the duties and compensation of
this group. The shipping articles and the fisherman’s agreement
were executed together and constituted one contract.
On the way out the ship encountered a storm which lasted about
24 hours, and began to take water at the rate of about 9 or 10 inches
,per hour. Some of the crew became alarmed and demanded a return
to Seattle. The vessel was then about half way to its destination,
and though a petition to return was signed by many of the crew
and monthly men, the master went forward, being o f the opinion
that this was as safe as to return. The boat completed its journey
safely, the water being controlled by the power pumps, and the
cargo suffering no damage. After partially unloading the vessel,
the leaks were discovered, the joints between the ends of the planks
having opened somewhat, due to the' oakum with which the joints
were calked working out. While lying in harbor the vessel was
completely overhauled and the leaking joints repaired.
The crew on its arrival at Libbyville met and agreed among them
selves that “ under no circumstances would they sail the ship on the
return voyage, and so notified the superintendent of appellant’s
cannery.” This was before the vessel was unloaded and the cause
o f the leakage discovered. After repair, the company’s representa
tive had it “ surveyed by three disinterested master mariners from
other ships, and as a result of their examination they pronounced
the ship seaworthy and in all respects fit to make the return trip to
Seattle.”

268

TEXT AND SUMMARIES OF DECISIONS.

The return trip was planned for August 12, the vessel being only
partly loaded, so that the joints that had leaked on the outward trip
were above water. However, the seamen refused to obey an order to
go aboard, and no effort to induce them to do so availed. Recourse
was had to the United States Coast Guard, and the captain in charge
o f a vessel of that service was directed from Washington to render
assistance in the case. He instituted a second survey, and pro
nounced the vessel seaworthy and so informed the crew, but without
effecting any change in their attitude or conduct. A dispatch from
the fishermen’s union at headquarters, advising the men to sail the
boat home, was also ignored. The vessel finally arrived at Seattle,
having been towed most o f the way, developing leakage in only “ an
inconsequential amount,” with the cargo undamaged. “ The proof
shows that a wooden vessel will leak more when being towed than
when being sailed.”
The men offered no violence at any time but were “ simply stub
bornly determined.” However, the captain o f the Coast Guard cutter
had agreed to furnish safe transportation to Seattle and pay all ex
penses o f the men until they arrived.
The captain o f the
Coburn had not ratified this and it was said that the agreement was
acceded to as a means o f getting the men out of the region for the
winter, to avoid the hardships that would have followed had they
remained. The crew were returned by steamer, the master and the
monthly men remaining on board the Cobum .
The contract was determined to be maritime, the Cobum being
classed as a merchantman. “ Being governed by maritime law, the men
have no right to conspire together to abandon the ship and its enter
prise before the voyage is completed.” Although there had been an
appearance o f danger none had actually developed, and the outcome
shows that the fears of the crew were unfounded. The repairs o f
the vessel and the finding of seaworthiness by two surveys appeared
to the court to warrant the attitude o f the employer in demanding
the fulfillment o f the contract and refusing pay to the men who had
violated it. The opinion continues:
We are convinced, under the law and the facts governing this case,
that the crew of the Coburn willfully and unreasonably acted upon
their own opinion as .to the seaworthiness o f the vessel to make
the return trip to Seattle; refused to be governed by the disinter
ested and independent surveys made by competent master mariners;
refused to go aboard the ship in response to the master’s order;
demanded no survey by impartial persons competent to make such
survey, and willfully refused to make the return voyage to Seattle
without just cause or reason; and under such circumstances they
became deserters. Such being the case, they forfeited their wages
and all emoluments then earned.

WAGES.

269

As to the effect o f the labor certificates issued in the circumstances
above set forth, the court discussed the situation and the resultant
conditions as follow s:
Here the men deserted and abandoned the ship and its enterprise
in a body, at a remote point where other men could not be obtained
to continue the enterprise and voyage, and where, from humanitarian
motives alone, it was absolutely impossible to evade the duty of
returning the men from that region to the initial p ort; and, because
they unanimously abandoned and deserted the ship and refused all
efforts to persuade them to perform their duty and fulfill their con
tract, they compelled the appellant to give them certificates of labor
performed while in Alaska or on the voyage thereto, and to furnish
them maintenance and transportation out of that region— all of
which constituted duress of the most forcible kind, and gives no
validity to the labor certificates issued in Alaska or to recovery upon
the original contract willfully forfeited and abandoned by the men
themselves.
Therefore, although mindful that we “ should be careful not to
so construe the law as to force a crew to risk their lives on an unseaworthy ship,” we are convinced by the record in this case and the
law applying that appellant did everything in its power to humanely
care for these men, and paid out a great deal of money in excess of
their contract pay on account of their unreasonable, obstinate, and
arbitrary conduct, and that the men forfeited and are not entitled
to recover their wages. The jury should have been instructed to
render a verdict for appellant. The judgments are reversed and
the cases dismissed.
W ages — S e a m e n — L ia b il it y of O w n e r a n d M aster — Everett v.
United States, United States District Court, Western District of
Washington ( December o, 1921), 277 Federal Reporter, page 256.—
The ship Agron was built by the United States Shipping Board
through the United States Shipping Board Emergency Fleet Corpora
tion and was included in a contract of sale between the United States,
represented by the Shipping Board, and the National Oil Co., dated
March 5,1920. One provision of the contract of sale read: “ It is ex
pressly agreed that the title to the said hulls and bills of material, and
any additions or improvements made thereto, shall remain in the Fleet
Corporation until the same shall be completed and documented and
the buyer shall have executed the mortgages and notes hereinafter
provided for.” One Tory Hedemark was employed by the National
Oil Transport Co., operating company for the National Oil Co., as
master o f the vessel. Seamen were employed by the master under an
agreement to work from Seattle, Wash., via port o f Sydney, Aus
tralia, thence to such other ports and places in any part o f the world
as the master may direct, and back to a final port of discharge, to be
designated by the master, in the United States, for a term not
exceeding 12 calendar months. The vessel arrived at Balboa in ^

270

TEXT AND SUMMARIES OF DECISIONS.

January, 1921. The seamen not having been paid, and the vessel
being out of supplies, the seamen applied to the United States con
sul for relief. Provision was made for them. After leaving Balboa
and being several days out the vessel, running short o f fuel, got in
contact with the master of the steamship Lake Fanbush and was
assisted into port. The master of the Lake Fanbush libeled the
Agron for a large sum for salvage, but the seamen intervened and
sought to impress upon the vessel their unpaid wage claims. The
libel for salvage was dismissed, and the case proceeded on the inter
vening libels, with the result that the ship was sold and the proceeds
applied to the payment of the wage claims. But the proceeds of the
sale were not enough to pay all the claims, so proceedings were
brought against the owner and master of the ship. The defenses set
up by the United States Shipping Board Emergency Fleet Cor
poration and Hedemark were the denial of ownership by the cor
poration and that the parties were estopped from proceeding against
the matter in personam because o f the proceedings against the vessel.
The case was heard in the District Court of the United States, and
Judge Neterer delivered the opinion of the court, which is in part
as follow s:
(1) The seamen under the shipping articles have a threefold
remedy for their wages against (a) the ship; (b) the owners; and
(c) the master. There is no diversity to this rule, so far as I am
advised. The laws of the United States as well as those of England
have provided such remedy.
The general owner is liable for seamen’s wages only when privity
with the master is shown.
An owner may not escape liability for wages by transfer of
ownership pending fulfillment o f articles, nor during a voyage, nor
by abandoning the ship to underwriters, but where the owner makes
a bona fide sale, and delivers possession o f the ship, and surrenders
control to the purchaser, he is not liable for the wages of the seamen
employed by the master, who was hired by the purchaser; the vessel
being navigated by such master and seamen, and voyage directed
by the purchaser or his crew. And the fact that the sale was not
consummated by execution o f formal transfer, and the ship still
documented in the name of such owner, would not change the
status. Failure to take a mortgage was the hazard o f the re
spondents, which can not affect the seamen.
A decree in rem does not of itself defeat a contractual right to
seek a remedy in personam for the balance of an unliquidated claim,
if the two remedies exist and the remedy in rem has been exhausted.
Under the shipping articles the master is obligated to pay the
wages of the seamen. This is an extreme hardship, brought on by
no fault of the master. It is a liability which was not contemplated
by either the master or the seamen. The master lost his earnings
on the voyage, he could not even participate in the proceeds o f sale
o f the vessel, and now to be adjudged liable for the unpaid wages
o f the seamen will take from him all his savings, and the provision

WAGES.

271

made for the education of his children, and leave his family desti
tute, except such exemptions as are given by law to the head of a
family. The form of article is provided by section 4612, It. S.
“ Schedule” “ Table A ” (Comp. St., sec. 8392). This form was
adopted when the relation o f the master to the ship and to the
owner was very different from that of the present time. The
reasons for this stipulation, it would seem, do not obtain in the
modern shipping world, and a change should be made, but it can
not be made by the court.
A judgment must be entered against the master for the unpaid
wages and return transportation to Seattle for the officers and men,
who returned immediately, as provided in the shipping articles.

W ages — S e a m e n — R elease — G ood C a u se for

S e t t in g A side —

Brown et al. v. United States, United States District Court, District
of California ( Ju ly 22, 1922)) 283 Federal Reporter, page 1$5.—In
January, 1921, J. Brown and others signed articles as seamen for a
voyage on the Palo Alto from San Francisco to the Atlantic coast.
They were to be paid off on the Atlantic coast and furnished with
transportation back to San Francisco and wages to the time of their
return. They went into the service o f the ship and served five days
in San Francisco Harbor preparing the ship for the contemplated
voyage. In the meantime they were paying for their own support on
shore as the ship was not in readiness to keep them on board. At
the expiration o f the five days they were discharged for the reason,
they were told, that the ship was in need o f repairs and it would take
20 days to complete the work. Later it appeared that the voyage was
abandoned because o f the uncertainty o f business upon the Atlantic
coast. Section 4527 o f the Revised Statutes o f the United States
provides that: “ Any seaman who has signed an agreement and is
afterwards discharged before the commencement o f the voyage or
before one month’s wages are earned, without fault on his part justi
fying such discharge, and without his consent, shall be entitled to
receive from the master or owner, in addition to any wages he may
have earned, a sum equal in amount to one month’s wages as com
pensation * *
The men claimed the month’s wages in addi
tion to the amount they had already earned. This was refused by the
master and by the shipping commissioner. The employers refused to
pay them the amounts that they had earned in the five days except
on the condition that they sign a release for all wages between the
parties, as provided by section 4552 of the Revised Statutes. They
protested, contending that they were entitled to a month’s wages in
addition, but signed the release in order that they might be paid
the amount earned by them, about which there was no dispute.
They then brought a suit for the additional month’s wages in the

272

TEXT AND SUMMARIES OF DECISIONS.

United States District Court. The defense set up to the claim was
that they could not recover because o f the release. The district
court decided in favor o f the seamen, and entered a decree for a
month’s wages and costs, saying through Judge D ooling:
Section 4552 makes such release “ a mutual discharge and settle
ment o f all demands for wages between the parties thereto, on ac
count o f wages, in respect of the past voyage or engagement,” and
if this were all, the case of The Pennsylvania (D. C .), 98 Fed. 744,
affirmed Pettersson v . Empire Transp. Co., I l l Fed. 931, would be
controlling. But a later statute provides that this release may
be set aside by the court for good cause, and such action taken
as justice may require. 38 Stats, at Large, p. 1165 (Comp. St., sec.
8322). This “ good cause ” must mean something other than fraud,
duress, or other undue influence, because for these latter reasons
the release could have been set aside before the enactment o f this
statute.
I am firmly convinced that, where a seaman is compelled by the
master, owner, or commissioner to sign such a release before they
will pay him the wages actually and concededly due him, thus
taking advantage o f his necessities and compelling him to abandon
his claim to the very thing in dispute before he can receive that
which is due him without dispute, there is presented a case o f
“ good cause for setting aside the release and taking such action as
justice may require,” within the meaning of the later statute. I f
there were any compromise o f the matter in dispute, the release
would be held to be binding; but where, on such release, the sea
man receives only what is undisputedly his, and can not even re
ceive that until the release is signed, unless he recover it in court,
I am, as I have said, convinced that justice requires that the ship
owner should not be permitted to plead such release in bar o f a
claim for the only matter in dispute, when such claim is presented
in court.
W ag es — S e a m e n — “ S t r ik e r s ” — D eserters — F o rfe itu r e of
W ages by D esertio n — ? 7^ u M. S . E llio tt,” United States Circuit

Court of Appeals, Fourth Circuit ( December 28,1921), 277 Federal
•Reporter, page 800.—On April 28, 1921, at the port o f New York,
the crew o f the steamship M. S. Elliott signed for coastwise service
thereon in various capacities for a period “ not exceeding 12 calendar
months.” Shortly afterwards the ship proceeded to Texas City, Tex.,
and from that port to the port of Charleston, S. C., where she ar
rived on the morning of the 11th o f May. A seaman’s strike was
in progress, and while the ship was docking a motor boat came along,
manned by strikers, who had some conversation with the crew,
though what passed between them is not clearly known. During
that day, however, at different times, most o f the men left the ship,
taking their belongings with them. On the following day 16 o f
them brought a libel suit to recover the full wages earned by them

273

WORKMEN *S COMPENSATION.

up to that time, on the ground that they had demanded payment
o f one-half the wages then due them, as provided in section 4530
o f the Kevised Statutes, as amended June 5, 1020 (41 Stat. 1006),
and that such demand had been refused. The trial court found that
two o f the libelants, upon arrival o f the ship at Charleston, had
demanded half wages and been refused and were therefore entitled
to full wages, under the terms o f the amended section. As to the
others the court decided no sufficient demand for wages had been
made. A decree was entered, and as to six o f the men an appeal
was taken. The question before the court was whether or not the
men were guilty o f desertion. This question was answered in the
affirmative in an opinion handed down by Judge Knapp, in part
as follows:
Without citing other authorities, we may accept the definition of
desertion, quoted with approval in The Italier, 257 Fed. 712, 714,
168 C. C. A. 662, 664, as “ a quitting o f the ship and her service, not
only without leave and against the duty o f the party, but with an
intent not again to return to the ship’s duty.” The trial court found,
on testimony wholly convincing, that none of the six had demanded
half pay, that all of them left the ship without leave and without
sufficient reason, and that they had not returned for service; and we
find no evidence that they intended to return. On the contrary, the
circumstances under which they left, taking their belongings with
them, indicate unmistakably, as we think, that they deliberately and
purposely abandoned the service which they had agreed to perform.
In point o f fact, none of them did return, or offer to return, or show
the slightest disposition to return. Only two o f the six were witnesses
at the trial; both o f them admitted that they left the ship with the
intention o f not returning, and nothing appears from which a d if
ferent intention on the part of the other four can be inferred. In
short, there is no testimony which disputes or discredits the state
ment o f the master that the men told him they were leaving per
manently, although he admonished them not to do so and warned
them o f the consequences. We are of opinion that they must be
deemed deserters. ( The Nigretia, 255 Fed. 56, 166 C. C. A. 384.)
As the penalty for desertion is the “ forfeiture * * * of all or
any part of the wages or emoluments which he has then earned”
(Kevised Statutes, sec. 4596, as amended [Comp. St., sec. 8380]), the
decree will be reversed and the cause remanded, with instructions to
dismiss the libel as to the six libelants named in the notice of appeal.

W o r k m e n ’s
W eakened

C o m p e n sa t io n — A cc id en t — D e a t h

C o n d itio n

C aused

A cid

fr o m

Shock—

P o iso n in g — M e n t a l

S h o c k —Klein et al. v. Len II . Darling Go. et al., Supreme Court of
Michigan ( March 30, 1922), 187 Northicestern Reporter, page 400.—
Otto Klein was in the employ o f the Len H. Darling Co., manufac
turer o f separators for batteries. His duties required him to treat
the wood separators. The treatment was accomplished by boiling

274

TEXT AND SUMMARIES OF DECISIONS.

the wood in a solution of caustic soda and sulphuric acid. He
worked for about 18 months for the company at this work. On sev
eral occasions during the course o f his employment he spilled the
solution on his hands, arms, and legs, causing sores on his wrists
and legs. The fumes from the sulphuric acid in the vat room caused
Klein to suffer from a toxic and nervous condition. On January 3,
1920, while putting a radiator in place in a hole on the second floor
o f the plant where he was working, he accidentally let the radiator
slip through the hole and it fell, striking one Harris on the head,
causing a wound and rendering him unconscious. Klein became ex
cited because o f the injury to Harris, because he at first thought he
had killed Harris. He continued to work four days after the acci
dent, but he was in a highly nervous condition. He was taken to
his bed in a delirious condition which grew worse until January 15,
when he died. His widow instituted proceedings under the work
men’s compensation law to recover an award for the death of her
husband. The industrial accident board found that the death re
sulted from shock brought about by an accidental happening and
granted an award. The employer and its insurer took the case to
the supreme court o f the State to have the award annulled.
The question before the court was whether Klein came to his death
by reason o f an accident within the meaning of the law. The court
said he did and affirmed the award. Judge Moore, speaking for the
court, said:
In the instant case Mr. Klein could not anticipate that, when he
removed the register, it would slip from his hand, nor could he antici
pate it would hit a fellow employee, rendering him unconscious, nor
could he anticipate that he himself would receive a shock which
would so affect him in his weakened condition that he would, as a
result thereof, pass away in less than three weeks. This, however,
was just what happened in the opinion o f the attending physician
and the other doctors. This also was the conclusion o f the industrial
accident board.
Judge Wiest in a concurring opinion said:
An accident happened in which the deceased was an actor, and the
shock to him was so acute and so depressed his vital forces as to kill
him. We must not overlook man’s nervous system and mental make
up and their intimate relation to his vital forces.
This man died because his vital forces could not meet and with
stand the acute depression occasioned by what he had done in the
course o f his employment. The injury to him was no less real and
fatal in its consequences than a mortal wound. “ Accidents,” within
the comprehension of the workmen’s compensation law, include all
accidents actionable at law and all former nonactionable accidents,
except in case of intentional and willful misconduct on the jjart o f
the employee.

w o r k m e n ' s c o m p e n s a t io n .

275

W o r k m e n ’ s C o m p e n sa t io n — A ccid en t — H ea rt D isease — Helder
v. Luce Furniture Co. et al., Supreme Court of Michigan (March 30,.
1922), 187 Northwestern Reporter, page 263.—Dirk Helder, a big,,
strong, and apparently healthy man, 46 years of age, worked for the
Luce Furniture Co. for nearly 20 years as an operator of a miter saw
in the cabinet room. It was not heavy 'work. On January 31,1920,.
he was called upon to help install three pieces of a new line shafting
requiring metal hangers, weighing 70 pounds, to suspend the shafting
from the ceiling of the factory. It being Saturday he worked a half
day at this work. On February 2, 1920, he returned to work and
lifted the hanger from the floor up over his head six feet to the scaf
fold, from which he again lifted it over his head against the ceiling
while the carpenter bored the holes in the ceiling and put in the lag
bolts. In repeating this work with the second hanger, he suddenly
gave way and vomited blood profusely. He immediately left the
factory and went to his home too wTeak to punch the time clock as he
passed by. A doctor was called, but he died just as the doctor arrived.
The doctor stated that death was due to acute dilation of the heart
which was caused by overexertion. An award was granted. The
company and its insurer took the case to the supreme court of the
State for review. The contention of the company was that there was
no evidence o f an actual accident in the sense of a fortuitous, un
foreseen mishap. This contention was not upheld by the supreme
court, which held that it was an accident within the provisions of the
workmen’s compensation law, and therefore an award of compensa
tion under that act as here granted would be affirmed, on the principle
o f an unexpected consequence of an intended act. (La Veck v. Parke,
Davis & Co., 190 Mich. 604,157 N. W. 72; see Bui. No. 224, p. 226.)

W o r k m e n ’ s C o m p e n sa t io n — A ccid ent — H ea rt
in g s of

F a il u r e — F in d

F a c t b y B oard C o nclusive —Busch v. Louisville Water Co.

et al., Court of Appeals of Kentucky (February 10, 1922), 237 South
western Reporter, page 389.—Allen Busch was an employee of the
Louisville Water Co. Both were subject to the workmen’s compensa
tion law o f the State. On April 4, 1918, a valve connected with the
steam boiler where Busch was working blew out, and he with another
employee ascended a ladder and closed the opening. After descend
ing he walked out the door for a few steps, staggered, and fell to
the ground dead. The widow of the deceased filed a claim for
compensation before the workmen’s compensation board.
The
board found that the death of Busch was not the result of traumatic
injury by accident but was due to preexisting disease o f the heart, and
further that excitement and hurry at the critical moment, taken in
49978 ° — 23---------- 19

276

TEXT AND SUMMARIES OF DECISIONS.

connection with a diseased heart, caused the heart to fail. The claim
was dismissed and the widow appealed. The decision o f the board
was affirmed in the lower court, and on another appeal the court of
appeals affirmed the action taken. It was there held that the findings
o f the board as to questions of fact if supported by credible evidence
are to be given the same force and effect as the verdict of a properly
instructed jury. In view of the findings of the board, the only ques
tion before the court was the legal effect o f the findings. The ma
terial part of the workmen’s compensation act is the section that pro
vides compensation for injury—
by accident arising out o f and in the course o f his employment or for
death resulting from such accidental injury: Provided, however,
That personal injury by accident as herein defined shall not include
disease except where the disease is a natural and direct result of a
traumatic injury by accident, nor shall they include the results of a
preexisting disease.
The court in its decision said in part:
The legal effect o f the facts found by the board brings the case
directly within the clause referred to. The language of the statute is
too clear to admit of doubt as to its meaning. Whatever the legisla
ture may have intended to do, it clearly expressed the purpose of re
lieving the employer from liability in cases o f this kind. Unfortunate
as was the death of Rusch, his dependents are bound by the statute
which denies to them compensation. We, therefore, concur in the
view adopted by the compensation board as to the legal effect of the
established facts.
W o r k m e n ’ s C o m p e n sa t io n — A c c id e n t — H e r n ia — R u les of C o m
m is s io n —Stoker

v. Industrial Commission et dl., Supreme Court of
Utah ( October 7, 192%), 209 Pacifie Reporter, page 880.—Hernia
cases being difficult to decide by industrial accident commissions,
various rules have been adopted to guide their action. The Utah
commission adopted the follow ing:
In all future hernia cases coming before the Industrial Commis
sion o f Utah for decision, the commission will pursue the following
policy in the determination as to whether or not the injured would
be entitled to compensation:
“ ( A) Real traumatic hernia is an injury to the abdominal (belly)
wall o f sufficient severity to puncture or tear asunder said wall, and
permit the exposure or protruding of the abdominal viscera or some
part thereof. Such an injury will be compensated as a temporary
total disability and as a temporary partial disability, depending upon
the lessening o f the injured individual’s earning capacity.
“ (B) A ll other hernias whenever occurring or discovered, and
whatsoever the cause, except as under ( A ) , are considered to be
diseases causing incapacitating conditions, or permanent partial dis
ability, but the permanent partial disability and the causes of such
are considered to be, as shown by medical facts, either to have existed

WORKMEN *S COMPENSATION.

277

from birth, to have been years in formation, or both, and are not
compensable, except as hereinafter provided.
“ (C) A ll cases ( B ) , in which it can b% proved, (1) that the im
mediate cause which calls attention to the presence of the hernia is
a sudden effort or severe strain or blow received while in the course
o f employment; (2) that the descent o f the hernia occurred im
mediately following the cause; (3) that the cause was accompanied
or immediately followed by a severe pain in the hernial region; (4)
that the above facts were of such severity that the same were noticed
by the claimant and communicated immediately to one or more per
sons, are considered to be aggravations of previous ailments, or
diseases, and will be compensated as such for time lost only to a
limited extent, depending upon the nature of the proof submitted
and the result o f the local medical examination, but not to exceed
two months.”
One E. L. Staker made an application for compensation, after
these rules were adopted, claiming that while lifting a 140-pound
sack o f flour in the course of his employment with the Sperry Flour
Co., he had accidentally slipped and strained himself, thereby im
mediately sustaining a hernia on his right side, by reason of which
he had become disabled. A hearing was had but the commission re
fused to make an award. Staker appealed to the supreme court o f
the State.
The court assumed that the rules laid down by the commission,
above noted, were both reasonable and lawful as they were not as
sailed or questioned by the claimant. One doctor testifying thought
the hernia came within rule A, whereas another testified that he was
o f the opinion that it came under rule B. The court refused to
reverse the commission’s findings, as to do that “ we would have not
only to usurp the functions of an administrative body, but we would
have to determine the weight o f the evidence and the credibility of
the witnesses who testified,” and such power the court did not have;
and “ moreover, we think there is some substantial evidence in the
record to sustain the commission’s findings as made by it.”

W o r k m e n ’ s C o m p e n sa t io n — A cc id en t — O c c u p a t io n a l D isease —
F u m e s fr o m M o lte n B rass — General American Tank Car Corp. v.

Weirick, Appellate Court of Indiana ( December 23, 1921), 133
Northeastern Reporter, page 391.—Joseph E. Weirick, on November
4,1920, was in the employ of the General American Tank Car Corpo
ration. On that day he became affected by poisonous gas arising
from molten brass and died. Proceedings were brought before the
industrial board. That board found thatWeirick received a personal
injury by an accident arising out o f and in the course of his employ
ment which resulted in his death the same day, and rendered an
award to the claimants. An appeal was taken, but the award was

278

TEXT AND SUMMARIES OF DECISIONS.

affirmed in the appellate court. The court held that the death re
sulted from an accident within the meaning of that term as used in
the compensation act, and decided that the finding of the board in
this case was justified. Judge Nichols, in stating the opinion of the
court, said in part:
There was some evidence that the deceased breathed the fumes and
gases arising from molten brass and was thereby accidentally injured,
which injury resulted in death, and we hold that the industrial board
was fully justified in its finding that the deceased came to his death
by accidental means while in the due course of his employment.
An accident has been repeatedly defined by this court in industrial
appeals as an unlooked-for mishap, an untoward event, which is not
expected or designed. An injury may be the result of accidental
means though the act involving the accident was intentional.
While it appeals that the decedent had been affected by the poison
ous gas before, it is apparent that he did not anticipate or design the
serious consequences resulting in his death. Yet the evidence abun
dantly justifies the inference that the immediate cause o f the death
was the injury by the inhalation of the noxious gas. That the
deceased man was diseased at the time o f his injury can not be denied,
but such disease had not progressed to the point o f disability. He
was with substantial regularity performing the duties of his employ
ment up to the time of his injury, and if the disease was thereby
accelerated so as to produce death so soon after the injury, the injury
must be regarded as the cause of the death.
W o r k m e n ’ s C o m p e n s a t io n — A cc id en t — O ve rw o r k a n d S t r a in —

Young v. Melrose Granite Go., Supreme Court of Minnesota ( Ju ly
14) 1922) , 189 Northwestern Reporter, page 4®6.—Julius J. Young
was a stonecutter by trade and had worked many years in the granite
shops at St. Cloud, Minn. On August 9, 1920, he worked for the
Melrose Granite Co., using a stone surfacing machine. The machine
was a movable contrivance carrying a hammer which was operated
by compressed air to dress the surface o f the granite. The operator
of this machine moves the hammer back and forth on the arm of
the machine, which is operated by one hand while the other controls
the hammer. On the day in question he was using a machine which
w7as defective in that it would work toward the operator, and it re
quired great effort to keep it away or keep it in the place where the
operator wanted it. A t the end of the day Young found himself
exhausted to such an extent that he complained to the foreman that
he was “ all in ” from working on the machine. Young complained
o f suffering great pain in his shoulder and back that night. He re
turned to work the following morning, but as the same machine
worked as heavy as before, he stopped work at 10 o’clock and told
the foreman that u if he stayed at it, it would kill him.” That after
noon he went to work for another firm, where he continued until

WORKMEN S COMPENSATION.

279

December, 1920, though suffering pain in the shoulder and arm, his
shoulder also becoming stiff. In February, 1921, he demanded com
pensation for the injuries. An award was made in his favor, and it
was found that—
The muscles which control the shoulder have become atrophied
through degeneration of the nerves supporting them, and that “ these
nerves under the heavy strain required by the work of this machine,
as aforesaid, were subjected to excessive traction and became, for all
practical purposes, dead.”
The employer took the case to the Supreme Court o f Minnesota.
There was a purely legal question before the court as to whether
there was any evidence to support the award in law. The court held
there was not. The court reviewed some of the evidence, which
showed that all machines o f the type used, operated by compressed
air, vibrate. No sudden or violent strain could come to the muscles
in guiding the machine, even though it worked hard. The court
said that—
I f any effect at all could come to the operator o f this machine it
must be attributed to wearying the muscles from a too long continu
ance at a heavy work.
^
It was held that the injury in question could not come at any par
ticular moment of time, “ but only as the work continued until the
exhaustion became too great for the ordinary recuperative forces.”
Judge Holt, speaking for the court, brought out the legal questions
involved, in part as follow s:
Although our legislation as well as that of other States may be
said to be patterned in a great measure upon the compensation legis
lation o f England, there is a divergence in the different acts as to
the injuries sought to be covered. Our act does not seek to cover
occupational diseases or gradually inflicted ailments, but confines the
injuries to those caused by accident [defining the term].
The compensation act was not designed to cover cases where in
juries result from ordinary overwork, too long continued effort, with
out any sudden or violent rupture, or collapse o f some physical
structure or function o f the body.
Judgment reversed.
W o r k m e n ’s

C o m p e n sa t io n — A cc id en t — P o iso n in g — D ip p in g

H a n d i n P oisonous S o lu t io n —Jeffreyes v. Charles H . Sager Co. et

a lS u p re m e Court of Neio York, Appellate Division ( November 16,
1921), 191 Neiv York Supplement, page 851^.—Hila Jeffreyes was
employed by the defendant company, a photographer, to develop
photographic plates. It was necessary in doing this work to dip
plates, held in her left hand, into a poisonous chemical solution more
than 500 times each day. She did this work continuously for more
than a week when her fingers became red and swollen. She went

280

TEXT AND SUMMARIES OF DECISIONS.

to a physician, who gave her treatment. Later the end o f the little
finger of her left hand became mummified, gangrene set in, which
made it necessary to amputate the finger, and this was done. The
pathological cause of. her injuries was the contraction o f the blood
vessels o f her finger through the gradual action of the chemical
solution. Claim was made under the workmen’s compensation law
and an award was granted by the State industrial board. The em
ployer and the insurer appealed to the appellate division o f the su
preme court, where the award was reversed and the claim dismissed
by a court divided three to two. Judge H. T. Kellogg delivered the
opinion of the majority o f the court, in which he held that the injury
was not due to an accident and therefore not compensable. The
opinion is in part as follow s:
In my opinion there was no accident involved for two reasons:
First, the contact made by claimant between her hand and the solu
tion was voluntary and intentional.
The coming into contact of the hand and the solution was expected,
and therefore not accidental. Secondly, the injuries resulted from
no occurrence which is referable to any particular moment o f time
which is definitive. The word “ accident ” is derived from the
Latin verb “ accidere,”#signifying “ fall upon, befall, happen, chance ”
(Century Dictionary), and denotes an event which occurs upon the
instant, "rather than something which continues, progresses, or de
velops. “ The accident must be something which is capable o f being
assigned to a particular date.”
In Steel v. Cammell, Laird & Co. (L td.), 7 W. C. C. 9, it was
held that lead poisoning, being due to a gradual process, could not
be accidental in its origin. One of the reasons assigned by the court
for its decision was the fact that the statute required a notice of
an accident to be given within a stated period after it occurred, and
that from this it was to be inferred that the accident contemplated
must be one having a definite moment o f origin. The same con
clusion can be drawn from our statute requiring a notice o f an accident
to be given within 30 days thereafter. It seems to me, therefore, that
as the injurie's in this case arose from the application of a poisonous
solution during the working hours o f claimant for a period of more
than seven days, and as the application was voluntarily made, she
received no accidental injury for which an award could properly
be granted.
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 — C o n str u c tio n of V es
sel — Grant

Smith-Porter Ship Co. v. Rohde, Supreme Court of the
United States {January 3, 1922), 257 U. S. 459, 1$ Supreme Court
Reporter, page 157.—Herman F. Rohde was a ship carpenter, em
ployed at the time o f his injury on a vessel that had been launched
and was lying in navigable waters in the Willamette River at Port
land, Oreg. The vessel was not completed, and in answer to proceed
ings in admiralty to recover for the injuries received the employers

w o r k m e n 's

c o m p e n s a t io n .

281

set up a defense that they were operating under the workmen’s com
pensation law. In the district court Rohde had recovered a judg
ment in admiralty, and the company appealed to the circuit court of
appeals. This court certified questions to the Supreme Court as
follow s:
(1) Is there jurisdiction in admiralty because the alleged tort
occurred on navigable waters? (2) Is libelant entitled because of
his injury to proceed in admiralty against respondent for the dam
ages suffered ?
Justice McReynolds delivered the opinion of the court, holding
that “ the contract for constructing ‘ The A h ala'* was nonmaritime,”
and though the vessel was lying in navigable waters, Rohde’s duties
had no direct relation to navigation or commerce. “ The injury was
suffered within a State whose positive enactment prescribed an ex
clusive remedy therefor” which both parties had accepted. Con
tinuing, Justice McReynolds said:
Under such circumstances regulation o f the rights, obligations,
and consequent liabilities of the parties as between themselves by a
local rule would not necessarily work material prejudice to any char
acteristic feature o f the general maritime law or interfere with the
proper harmony or uniformity of that law in its international or
interstate relations.
This case was distinguished from Southern Pacific Co. v. Jensen,
244 U. S. 205, 37 Sup. Ct. 524 (see Bui. No. 246, p. 203), and
Knickerbocker Ice Co. v . Stewart, 253 U. S. 149, 40 Sup. Ct. 438 (see
Bui. No. 290, p. 302), in which “ the employment or contract was
maritime in nature and the rights and liabilities of the parties were
prescribed by general rules o f maritime law essential to proper har
mony and uniformity.” The parties in this case were found to have
contracted with reference to the State law, and there was nothing to
affect navigation, so that the local law might well control.
The questions asked were said to be “ not wholly free from un
certainty,” so that they were restated so as to set forth “ our view
o f their real intendment.” The form in which they were restated
and the answers are as follow s:
Construing the first question as meaning to inquire whether the
general admiralty jurisdiction extends to a proceeding to recover
damages resulting from a tort committed on a vessel in process of
construction when lying on navigable waters within a State, we
answer yes.
Assuming that the second question presents the inquiry whether in
the circumstances stated the exclusive features of the Oregon W ork
men’s Compensation Act would apply and abrogate the right to re
cover damages in an admiralty court which otherwise would exist,
we also answer yes.
The application o f the State law was therefore clearly upheld.

282

TEXT AND SUMMARIES OF DECISIONS.

W orkmen ’ s C ompensation —A dmiralty — C onstruction of V es
C ompulsory C ompensation S tatute— Los Angeles Shipbuild

sel-

ing & Drydock Go. v. Industrial Accident Commission, District
Court of Appeal of California {A p ril 15, 192% ) , 207 Pacific Reporter,
page 410.—M. Toutain was a marine machinist, injured while in
stalling machinery in a vessel under construction by his employer.
The vessel had been launched in the waters of California, in Los A n
geles Harbor, and was at the time o f the injury afloat in navigable
waters. Toutain had been awarded compensation under the Cali
fornia law, and the employers claimed that this law was not appli
cable in the case, which was said by them to be based on a maritime
tort.
Speaking on this point Judge Finlay son, who delivered the opin
ion o f the court, said:
With this contention we find ourselves unable to agree. In the
first place, we fail to see any ground for the assumption that the
award under review here was based upon a tort, maritime or nonmar itime. Nowhere in the record is there the slightest hint that
the injury was the result of any negligence or fault. To entitle
Toutain to the compensation provided for by our workmen’s com
pensation act it was not necessary that there should be any wrongful
act or omission. That act allows compensation for all injuries aris
ing out o f employment irrespective o f negligence or fault.
However, the court did not understand that the nature of the
case, whether in tort or merely contractual, was o f importance.
“ Nor is it a matter o f moment that the State compensation act be
either elective or compulsory.” In those cases in which the work is
o f a maritime nature or performed in pursuance of a maritime
contract, the maritime law must be presumed to control.
But where, as in the case before us, the contract of employment
is nonmaritime, and the work is not of a maritime character, the
workmen’s compensation law fastens upon the relation of employer
and employee the obligation to compensate for injuries received in
the course o f employment.
W orkmen ’ s C ompensation— A dmiralty — D iver L aying S ub
C able—De Gaetano v. Merritt dk Chapman Derrick <&

marine

Wrecking Co., Supreme Court of New York, Appellate Division
(November 15, 1922), 196 New York Supplement, page 57S.—Vin
cenzo De Gaetano was employed by the company named under
circumstances described in the following quotation from the opinion
o f the court, delivered by Judge Hinman:
The deceased was a member o f the crew o f a scow, equipped as a
floating derrick with a hoisting engine, and engaged generally in
the wrecking business. It was also equipped with an air compressor

w o r k m e n ' s c o m p e n s a t io n .

283

for supplying air to divers operating from the vessel in subaqueous
work. It was registered as a vessel with the United States custom
house, and was towed at times to various places along the coast in
the vicinity of New York City. At the time of the accident it was
made fast to a dock on the Harlem River and on concededly
navigable waters.
The duties of the deceased were those of deck hand and diver,
principally the latter. On the day in question the vessel was being
used to aid in laying an electric submarine cable from shore to
shore o f the river. The deceased was working as a diver. He
dressed for diving on the vessel, and entered the water from the
boat. His diving outfit was connected by an air tube to the air
compressor, which was a part of the equipment of the boat. His
particular work at the time was to stand on the bottom o f the river,
where he guided the cables through a hole in the bulkhead as they
were pulled through the dock.
He met his death while so employed, and his widow submitted
a claim for compensation, which was awarded by the industrial
board o f the State; this was on appeal reversed and the claim
dismissed on the ground that the employment was maritime. On
this point the opinion reads:
The deceased was one of the crew of a vessel and at the time of
his accident was engaged in the very service for which the vessel
was equipped and operated. He was a “ seaman,” actually attached
to the vessel at the time through the instrumentality of the diver’s
uniform, the air tube, the compressor tank, and the engine of the
boat, all of which were being simultaneously operated as equipment
of the boat by himself, the deck hand, and the engineer as members
o f the crew. The nature of the scow’s employment at the time is
not material, since he was a seaman of a vessel, and he was con
structively on the vessel, doing the work of the vessel under a
maritime contract.
The award was therefore reversed and the claim dismissed, Judge
Hasbrouck dissenting.
W orkmen ’ s C ompensation— A dmiralty — I nsurance in S tate
F und— C ontract— West v. Kozer, Supreme Court of Oregon ( A p ril

27, 1922), 206 Pacific Reporter, page 51$ .—The Supreme Court of
Oregon had before it a number of cases in which awards had been
made by the State industrial commission for injuries to persons on
and about vessels. The State insurance fund is under the control of
the secretary o f state, and in view of certain expressions used by the
Supreme Court of the United States in similar or related cases, the
secretary was in doubt as to the right to make payments under the
awards. The beneficiaries therefore sued for a writ of mandamus to
secure payments. Further facts are set forth in the following state

284

TEXT AND SUMMARIES OF DECISIONS.

ment made by Judge McBride, who delivered the opinion o f the
court:
These cases all arise upon mandamus to compel the secretary of
state to issue warrants for sums awarded by the State industrial acci
dent commission, as compensation to various parties for injuries,
some resulting in death, and others being o f a minor character, which
injuries were sustained in the course of employment upon the navi
gable waters o f the United States and within the State of Oregon.
Five different occupations are involved: (1) Shipbuilding work after
launching; (2) ferry operations across the Willamette River; (3)
stevedoring work on board a seagoing vessel, under contract o f em
ployment with a stevedoring company operating in Portland, Oreg.;
(4) cannery work, including operation o f a motor boat on the waters
o f the Columbia River and within the boundaries o f the State of
Oregon; and (5) freight transportation work, including the opera
tion of a steamboat upon the waters of Coos Bay in Oregon.
In all of these cases the injuries were the result of accident, and no
questions o f maritime tort are involved. In each instance, the State
industrial accident commission awarded compensation, and in every
case the employer and the injured employee had accepted the pro
visions o f the State workman’s compensation act (Laws 1913, p. 188)
and paid the sums required thereunder, so that there is no doubt of
the existence o f a contract between the employer, the employee, and
the State, that, in case o f injury to the employee his compensation
should be adjusted and paid from the fund provided in that act.
The cases that seemed to the secretary o f state to raise questions
o f the legality o f the payments directed were Southern Pacific Co.
v. Jensen, 244 U. S. 205, 37 Sup. Ct. 524 (see Bui. 246, p. 203), and
Knickerbocker Ice Co. v. Stewart, 253 U. S. 149, 40 Sup. Ct. 438
(see Bui. 290, p. 302). It was pointed out that both these cases arose
under the compulsory compensation act o f New York, affecting cases
o f maritime cognizance, so that if the statute was enforced it “ would
have made every foreign vessel entering the port o f New York at
once liable to pay compensation under the laws o f the State, without
the consent o f its owners, an obligation unknown to admiralty and
one seriously affecting those 6rules o f the sea whose uniformity is
essential.’ ”
In the latter case, an attempted amendment o f the judicial code
was found invalid in its attempt to confer certain jurisdiction, the
Supreme Court holding that “ it was not competent for Congress to
subtract from the admiralty jurisdiction conferred by the Constitu
tion.” Distinguishing the present case, Judge McBride said:
We do not understand the court as holding that an employer and
an employee may not, as between themselves, contract to take out a
form o f accident insurance which shall be the measure of the liability
o f the employer in case o f accident, and preclude the necessity o f
litigation in the Federal courts, which is the case here presented.
The method is a beneficent one, insuring to every employee a certain

w o r k m e n ' s c o m p e n s a t io n .

285^

remedy and fair compensation instead of difficult litigation, a doubt
ful remedy and in many cases resulting in no compensation.
Reference was then made to the recent cases, Western Fuel Co. v.
Garcia, 257 U. S. 233, 42 Sup. Ct. 89 (see Bui. 309, p. 83), and Grant
Smith-Porter Ship Co. v. Rohde, p. 280), in which State laws were
held to be applicable under circumstances not interfering with the
essential harmony and uniformity o f the general maritime law.
Judge.McBride declared that it could not be shown that the allow
ance o f the awards stipulated in the various employment contracts
involved “ would work material prejudice to the characteristic fea
tures o f the general maritime law,” or interfere with its uniform
application.
•
It is not the policy o f the law, international or otherwise, to pull
parties into court by the hair when they have agreed between them
selves upon a method of keeping out, and, in view of the decision
last quoted, this ought to terminate the present controversy in favor
o f the petitioners.
As in the Rohde case, these cases presented no question of extra
territorial jurisdiction; the contracts were made within the State,
the parties were doing business within it, and the place o f perform
ance was “ at or upon waters lying within the boundaries of the
State.” The opinion concludes:
Counsel for defendant have failed to point out any possible con
tingency under which an application o f the compensation law might
prejudicially interfere with the application of any o f the rules of
maritime law, which are so essential to the commerce of the country;
and it is not believed that it is possible for such a contingency to
arise. On the contrary, the encouragement of such agreements be
tween employer and employee as is contemplated by our compensa
tion laws has a tendency to prevent litigation and, in instances like
the present, to relieve the already overburdened Federal courts of
vexatious litigation.
The finding was therefore in favor o f the petitioners, and a man
date was authorized “ directing the secretary of state to issue the
warrants as prayed for.”
W orkmen ’ s C ompensation— A dmiralty —L ongshoreman U n V essel— State Industrial Commission v. Nordenholt Corp.,

Supreme Court of the United States ( March 29, 1922), 1$ Supreme
Court Reporter, page IflS.—A longshoreman, Insana by name, was
killed while unloading bags of cement from a vessel lying at a
dock in Brooklyn, KT. Y. His death was found to be due to a fall
from a pile o f bags to the floor o f the dock, and the industrial
commission gave his mother, on proper application, an award o f
compensation. This was reversed by the appellate division. T hej

286

TEXT AND SUMMARIES OF DECISIONS.

court o f appeals likewise ruled adversely (232 N. Y. 507, 134, N. E.
549). The case came to the Supreme Court on a writ o f certiorari,
where the judgment of the courts below was reversed. Justice Mc
Reynolds delivered the opinion o f the court, distinguishing this case
from those in which it had been ruled that State compensation laws
could not operate on account of the maritime nature of the employ
ment.
It was pointed out that the New York courts had made de
ductions from Southern Pacific Co. v. Jensen (244 U. S. 205, 37 Sup.
Ct. 524; see Bui. No. 246, p. 203), and other cases decided by the
Supreme Court, which were declared to be unwarranted and based
on an erroneous rule of Federal law. After this Justice McReynolds
said:
When an employee working on board a vessel in navigable waters,
sustains personal injuries there, and seeks damages from the em
ployer, the applicable legal principles are very different from those
which would control if he had been injured on land while unloading
the Vessel. In the former situation the liability of employer must
be determined under the maritime law; in the latter, no general mari
time rule prescribes the liability, and the local law has always been
applied. The liability of the employer for damages on account o f
injuries received on shipboard by an employee under a maritime con
tract is a matter within the admiralty jurisdiction; but not so when
the accident occurs on land.
The application of this principle in various cases was discussed,
including Western Fuel Co. v. Garcia (257 U. S. 233, 42 Sup. Ct.
89; see Bui. No. 309, p. 83). In this case it was held that the death
o f a stevedore occurring on a ship within a State in which a right of
recovery is given by statute, in the absence of an opposing Federal
statute or positive maritime rule, could be compensated for under
the State law :
The subject is maritime and local in character and the specified
modification of or supplement to the rule applied in admiralty courts
wh?n following the common law, will not work material prejudice
to the characteristic features of the general maritime law nor inter
fere with the proper harmony and uniformity of that law in its in
ternational and interstate relations.
Reference was also made to the Grant Smith-Porter Ship Co. v.
Rohde case (page 280), and in accordance with the doctrine there laid
down the right of recovery under the State compensation law was
asserted, Justice McReynolds saying:
Insana was injured upon the dock, an extension of the land, and
certainly prior to the workmen’s compensation act the employer’s
liability for damages would have depended upon the common law
and the State statutes. Consequently, when the compensation act
superseded other State laws touching the liability in question, it did
not come into conflict with any superior maritime law. And this

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287

is true whether awards under the act made as upon implied agree
ments or otherwise. The stevedore’s contract of employment did
not contemplate any dominant Federal rule concerning the master’s
liability for personal injuries received on land. In Jensen’s case,
rights and liabilities were definitely fixed by maritime rules, whose
uniformity was essential. With these the local law came into con
flict.
Here no such antagonism exists. There is no pertinent
Federal statute; and application o f the local law will not work ma
terial prejudice to any characteristic feature of the general mari
time law.
The judgment of the court below must be reversed, and the cause
remanded for further proceedings not inconsistent with this opinion.

W orkmen ’ s C ompensation — A lien
B eneficiaries — T reaty
B ights—Frasca v. City Coal Co., Supreme Court of Errors of Con

necticut {February 1, 19* 2)) 116 Atlantic Reporter, page 189,—
Belma A. Frasca, a citizen and resident o f Italy, claimed compensa
tion for the death o f her husband, employed at the time of his death
by the company named. An award was made in her favor, from
which she appealed on the ground that the treaty between the United
States and Italy guaranteed to her an equivalent award to that of
residents o f the United States, while the Connecticut compensation
law, as then in force, allowed nonresident alien dependents only
one-lialf the amount payable to residents of the United States.1
Judge Burpee, who gave the opinion of the court, discussed the
treaty with Italy in its original form as agreed to in 1871, in which
the citizens o f the respective nations were guaranteed protection and
security for persons and property, with “ the same rights and privi
leges as are or should be granted to natives.” It was pointed out
that under this treaty the right of action for death given by a State
law did not extend to relatives of a deceased workman, they being
aliens resident in Italy (Maiorano v, Baltimore & Ohio B. Co., 213
U. S. 268, 29 Sup. Ct. 424). It was said in this opinion that the
protection and security for the personal property of the plaintiff
herself (the widow o f the deceased workman) could not be said to
be withheld from her in the territory of the United States since she
has never been within that territory. “ She, herself, therefore is
entirely outside the scope of the article.”
Apparently because of this construction the treaty was redrafted
as to this article so as to give a right to “ that form o f protection
granted by any State or national law which establishes a civil respon
1 The distinction between nonresident aliens and others is abolished by an amendment
of 1921, except that actual dependents in the State may share with nonresident alien
dependents as described by the law, the commission having jurisdiction to make an
iequitable apportionment. The decision is of interest, since discriminatory provisions
exist in a number of the State laws.

288

TEXT AND SUMMARIES OF DECISIONS.

sibility for injuries or for death caused by negligence or fault and
gives to relatives or heirs o f the injured party a right o f action, which
right shall not be restricted on account o f the nationality o f said
relatives or heirs.” In commenting on this article Judge Burpee
said:
By the original treaty an Italian sojourning in the United States
should receive all the direct protection for person and property
secured by our laws to our own people, including all rights of action
for himself or his personal representatives. Among these, of course,
was the right o f action granted by our laws to a workman for
injuries caused by negligence or fault of his employer. In the article
substituted in 1913, the same right was extended in case o f the death
o f the injured person to his relatives or heirs, and this is the right
referred to in this new article by the words “ which right shall not
be restricted on account of the nationality of said relatives or heirs.”
This prohibition does not mention any restriction on account of non
residence. Nor are dependents included in its terms; for relatives
and heirs are not necessarily dependents, and the use o f the former
words indicates plainly that the parties to the amendment of 1913
had in mind the connection of kinship rather than o f dependency.
The title o f the original treaty and the language used in article 1,
which have not been changed, and the expressed purpose and the
•terms o f the amendment of 1913, seem to indicate clearly that the
latter provision does not, and was not intended to, affect the rights
of Italian subjects not residing in this country. And we find nothing
in the terms o f the original treaty or of the substituted provision
which applies to the privileges or rights granted to an alien depend
ent o f a deceased Italian workman by the workmen’s compensation
act.
We concede that these treaties should be as broadly construed as
they reasonably may be construed. But, if we could admit that their
provisions are applicable to the amount o f compensation to be paid
to this nonresident Italian claimant, it would not follow that she
should receive the same amount as a resident of the United States
or Canada. A t most she may enjoy only the same rights and privi
leges as are granted to our dependent nationals. Exactly those
rights and privileges are granted to her by the clause of our act
which is in question. It limits the compensation to be paid to “ alien
dependents” unless they are also residents—that is, to dependents
who themselves are nonresident aliens. Whether the workman on
whom they were dependent was an alien or a citizen does not concern
this limitation. I f he was a citizen his nonresident alien dependents
may be awarded only one-half the compensation indicated in the act
for his resident dependents; if he was an alien, his nonresident alien
dependents will be treated in the same manner. The restriction
affects the alien dependents of nationals and Italians alike. There
is no discrimination unfavorable to the subjects of Italy or of any
foreign country because o f nationality. The resident alien depend
ents o f any nationality are not affected;
Belatives and heirs as such are not mentioned in our compensation
act; but whenever relatives or heirs are also dependents, their rights
and privileges as dependents have not been restricted by that act on

WORKMEN *S COMPENSATION.

289

account o f their nationality nor affected in any way differently from
those of our native citizens.
The judgment of the court therefore was that the superior court
be advised that the compensation commissioner had made a proper
award o f one-half the compensation available for a resident.
The claimant's counsel cited a contrary conclusion arrived at by
the Supreme Court o f Kansas, Vietti v. Mackie Fuel Co., 109 Kans.
179, 197 Pac. 881 (see Bill. No. 309, p. 329). it was pointed out that
the dependents in this case were not nonresidents, though not citizens
o f Kansas, and that the law o f the latter discriminated “ on the
ground o f nationality and residence,'’ so that the decision is not a
precedent, nor were the conclusions in the instant case inconsistent
with those formulated by the Kansas court.

W orkmen ’ s C ompensation— A ssault b y F oreman— W illful I n
Petvy v. Beverage, Supreme Court of Washington

jury — D amages—

{October 20, 1922), 209 Pacific Reporter, page 1102.—The Webb
Logging & Timber Co. operated a logging camp near Duckabush in
the State o f Washington during the month o f December, 1920. They
had in their employ as foreman or superintendent in charge o f the
camp one James Beverage.
On the morning o f December 17, 1920, John Perry, who was em
ployed in the camp as a bucker, gave notice to Beverage that he de
sired to quit his employment that evening.
One Earle McArdle was requested to scale the logs which Perry had
bucked and for which Perry was entitled to compensation. Perry
worked that day and about 6.30 o’clock went to the office of the com
pany at the camp and entered into a controversy with McArdle over the
scale that the latter had turned in. Perry claimed the scale was too
small, but McArdle insisted that it was accurate and properly made.
After listening to the discussion for some minutes, Beverage, who
was in the office at the time, went over to near where Perry was
standing and told him that he had said enough. Some further con
versation followed, during which Beverage struck Perry a violent
blow on the face with an enameled water pitcher.
Perry brought an action for damages against Beverage and the
company and a judgment was rendered in his favor against both.
An appeal was taken to the supreme court of the State. That court
affirmed the judgment of the lower court as to Beverage, but reversed
it as to the company. In disposing o f the contentions raised the
court, through Judge Main, held that the relation o f employer and
employee existed at the time of the assault ; that the superintendent
was acting within the scope o f his employment, so that the injury

290

TEXT AND SUMMARIES OF DECISIONS.

was covered by the compensation act; and that the blow was de
liberately struck with the intention of injuring Perry, thereby au
thorizing an action under the compensation act for any excess of
damages over the amount received or receivable under that act. As
this was not shown as against the company the amount recoverable
as excess could not be determined and the judgment as to it must be
reversed; but this did not affect the judgment against the foreman.

W orkmen ’ s C ompensation—A ward— B asis—Loss of S ight of
O ne E ye— E arning C apacity —Abbott v. Concord Ice Go., Supreme -

Court of New Hampshire (February 7, 19*22), 116 Atlantic Re
porter, page 751.—William H. Abbott was at the time o f his injury
employed by the Concord Ice Co. During part of each year he had
customarily worked as a stonemason for higher wages than paid by
his present employer. The injury resulted in the loss o f the sight
o f his right eye, which did not affect his earning capacity in the
employment o f the ice company, but did impair his capacity to
earn as a mason. The compensation law o f the State provides for
a consideration o f the “ average weekly earnings when at work on
full time during the preceding year during which he shall have
been in the employment of the same employer, or if he shall have
been in the employment of the same employer for less than a year,
then a weekly payment of not exceeding one-half the average weekly
earnings on full time for such less period.” Compensation is to be
based on the difference in the earning capacity before and after
the accident “ in the same employment or otherwise.” The case
was before the supreme court by transfer from the superior court
o f Merrimack County for the determination of a proper basis o f
computing the award. It was determined that the earnings to be
considered were those able to be earned after the accident in the
employment in which he was engaged. Abbott returned to work
after a time loss of but 4 days, the State law providing no com
pensation unless the disability continues for a period of at least 2
weeks. The determination was against any award whatever, the
conclusions o f the court being set forth in the following quotation
from the opinion by Judge Peaslee:
There are then two sufficient answers to the plaintiff’s claim for
compensation under the act. The accident disabled him from earn
ing full wages at the work in which he was employed for only
four days. Such injuries are excluded by the proviso in section 3,
heretofore considered.
While the plaintiff’s capacity to earn money in another employ
ment, in which he worked part of the time beiore the accident, was
decreased, his capacity after the accident was such that he could
earn the same wages as the defendant paid him before the accident.

w o r k m e n ' s c o m p e n s a t io n .

291

As before pointed out, this damage is not one covered by the com
pensation features of the act, and could not be recovered here, even
if recovery were not defeated upon another ground.

W orkmen ’ s C ompensation— A ward— B asis—Loss of U se of
R ight A rm — E arning C apacity— Kerw in v. American R y. Express

Go., Supreme Court of Pennsylvania {February 20, 1922), 116 A t l.
Rep., page 665.—This case was before the supreme court on appeal
from the court o f common pleas of Philadelphia County. The
claimant, John Kerwin, was so injured while working as a “ trucker ”
for the company named as to be unable to continue in his former em
ployment. The scope of motion in the shoulder was but 10 per
cent o f normal, and Kerwin was unable to use his arm in manual
labor, though he could write to some extent if the arm was supported
in a particular position. The company appealed from an award as
for loss o f use o f the right arm, claiming that the plaintiff was able
to do clerical work, though it was conceded that he could not pursue
his former occupation. The award in behalf of the claimant was
affirmed, Judge Frazer, speaking for the court, saying in part:
Followed to its logical conclusion the argument is that, if plaintiff
was able to earn, at another occupation for which he is fitted, as much
as, or more than, he was earning at the time of the injury, he is not
entitled to receive compensation for loss of the use of his arm. I f
such were the case, compensation would depend, not upon the nature
and extent of the injury, but wholly upon the extent of reduction
of earning power, and defendant’s liability would in each case de
pend upon his ability to establish that a claimant, who had been en
gaged in manual work could, by changing his occupation, earn as
much or more than he had earned in the past, notwithstanding the
total loss of an arm, leg, eye, or other member of his body. In our
opinion, such conclusion would entirely change the intent and pur
pose of the workmen’s compensation act. The compensation pro
vided for under the provisions of the act is for injury sustained.
While loss of earning power may be evidence tending to show the
extent of injuries, the mere fact that earning power has not decreased
wall not prevent recovery for injuries actually sustained. I f an in
jury results in amputation of an arm or leg, compensation for such
loss can not be avoided by showing the victim’s ability to earn as
much in another occupation not requiring the use of the missing
member. The undisputed evidence in the case warrants the finding
o f the compensation board and the court below.

W orkmen ’ s C ompensation— A ward— B asis of C omputation—

Georgia Casualty Co. v. Darnell, Court of C ivil Appeals of Texas,
San Antonio {M ay 10,1922), 21$ Southwestern Reporter, page 579.—
Marvin B. Darnell while employed as a mechanic by the Axtell Co.
49978°—23----- 20

292

TEXT AND SUMMARIES OF DECISIONS.

was caught in the machinery with which he was working and so
badly injured that he died on the following day as a result of the in
juries he received. He lacked a month o f being 21 years old at the
time o f his employment. Proceedings for an award of compensation
were instituted. Judgment was rendered in favor of the dependents
o f the deceased and the company’s insurer appealed. The statutes
o f the State provided that in fixing compensation for injuries re
sulting in death the daily wage received during the year shall be
multiplied by 300 to determine the average annual wage. Darnell,
however, had been employed only six weeks at the time of his death.
The statutes o f the State provided for such contingency in a provi
sion o f the employees liability act, which reads:
I f the injured employee shall not have worked in such employment
during substantially the whole o f the year, his average annual wages
shall consist o f 300 times the average daily wage or salary whieh an
employee o f the same class working substantially the whole o f such
immediately preceding year in the same or in a similar employment
in the same or a neighboring place, shall have earned in such employ
ment during the days when so employed.
The insurer contended that if young Darnell had continued to
work through the year doing the same class, quantity, and amount o f
work and no better work than he did during the first six weeks, the
compensation must be based on no higher rate o f pay than he was
receiving at the time o f his death. The court of civil appeals held
that this proposition was “ without any merit whatever,” and said:
Without undertaking to follow and analyze this somewhat finely
spun theory, we will simply say that it is inapplicable here. It is
based upon the assumption, indulged in alone by appellant, that the
young man was a slothful dullard, who would go through the full
first year o f his employment without making any improvement in
the class, quality, or quantity o f his work. I f any presumption is to
be indulged it should be to the contrary.
The award was therefore affirmed, with 10 per cent damages for
delay.
W orkmen ’ s C ompensation— A ward— D eath of B eneficiary —
V ested R ights— State Accident Fund v. Jacobs, Court of Appeals

of Maryland ( March 22, 1922), 118 Atlantic Reporter, page 159.—
Frank Jacobs, a son o f Julia Jacobs, was killed while employed in
an occupation within the provisions o f the compensation act o f
Maryland. The mother was awarded compensation for the period
o f 8 years, but at the expiration o f less than one-half this period she
died, and the insurer, the State accident fund, contended that no
further payments under the award were due. The administrator of
her estate claimed that the balance o f the award up to the end o f the

w o r k m e n 's

c o m p e n s a t io n .

293

eight-year period should be paid, amounting to $1,039.50. The State
commission ordered the balance paid according to this claim, where
upon an appeal was taken to the circuit court for Caroline County,
which affirmed the order of the commission. This action was again
affirmed on further appeal to the court o f appeals.
The exact question had not arisen under the Maryland law prior
to the instant case, and the court went fully into a discussion of the
principle involved, examining the provisions o f law and the de
cisions under laws of other States involving the question under con
sideration. An Ohio case (State ex rel. Munding v. Industrial
Commission, 92 Ohio St. 434, 111 N. E. 291, see Bui. No. 224, p.
258) was regarded as o f much weight because o f the “ great similar
ity between the Ohio statute and ours, which was in force when the
accident resulting in the death o f young Jacobs occurred.” In this
case an award was said to be a vested right in the beneficiary, so that
in case o f death, “ his or her personal representative is entitled to the
balance, if any, remaining unpaid.” In concluding, Chief Justice
Boyd, who delivered the opinion o f the court, said:
We have thus referred at some length to the cases cited by ap
pellant, but, after all, it must largely depend upon the language o f
the statute o f the particular State where the question is being con
sidered. As we have already indicated, our statute, in force at the
time o f this accident, is so very similar to the Ohio statute under
consideration in the Munding case, and the facts are so nearly alike,
that, in so far as we should be influenced or governed by decisions of
other courts, it would be difficult, i f not impossible, to find a case in
another jurisdiction which we would be more justified in following
than that— especially as the conclusion is, in our judgment, well
reasoned, and is based on the sound ground that courts should be
governed by the plain language of the statute, and not by a strained
construction making the legislature say something which it did not
say, even if the court was inclined to differ as to the wisdom of the
legislation. That is not for the court to determine; its duty is to
ascertain what the legislature said, and, if it had the right to say
what it did say, to be governed by it. The order o f the court will
be affirmed.
W orkmen ’ s C ompensation— A ward— D isability F ollowed by
D eath — D eductions— P ayments to C hildren—Nupp v. Estep

Bros. Goal Mining G oSuprem e Court of Pennsylvania ( January J,
1922), 116 Atlantic Reporter, page 391.—This case involved the con
struction o f the compensation law of Pennsylvania in a case where
an injured workman died as the result of injuries after having re
ceived compensation for 58 weeks. The law provides that in such
case the period o f compensation to dependents should be reduced by
the term o f such payment to the injured man. Following the death
o f the workman a settlement was tendered to the widow by the insur

294

TEXT AND SUMMARIES OF DECISIONS.

ance carrier, allowing her the statutory benefits for 300 weeks
reduced by 58 weeks, also proposing to terminate the subsequent
payments to the children 58 weeks prior to the arrival o f each at its
sixteenth birthday. This the widow declined to sign, and a referee
ruled that the only period that should be reduced was the 300 weeks
allowance to the widow, the law providing that “ the compensation
o f each child shall continue after said period o f 300 weeks until such
child reach the age o f 16.”
This finding of the referee was approved by the compensation
board and by the court o f common pleas on appeal to it. This posi
tion was sustained by the supreme court, Judge Schaffer pronouncing
the opinion, which concludes as follow s:
Two o f the children will be under 16 years o f age when payments
cease to the widow. The effect of giving to the section o f the act
under consideration the construction contended for would be to stop
the payments, not when the act says they shall cease, when these
children are 16 years old, but when they are 14 years and 10 months
old. The answer to this contention is that the law is not so written.
The act does not provide for the double deduction from the widow
and the children, but that “ the period,” thereby meaning in this case
the 300-week period, shall be reduced “ by the period ” during which
the deceased received compensation in his lifetime.
The judgment o f the court below was correct, and we affirm it.
W orkmen ’ s C ompensation— A ward— L um p S um — J urisdiction
C ourts—Employers* Indemnity Gorp. v. Woods, Commission

of Appeals of Texas, Section B ( October 11, 1922), 21$ South
western Reporter, page 1085.— On November 26,1918, Willie Woods,
while in the employ o f the Ineeda Laundry & Dye Works, had
his right arm seriously crushed and injured in an electric wringer
while in the discharge o f his duties. His employer was a subscriber
under the workmen’s compensation act, and carried a policy o f in
surance with the Employers’ Indemnity Corp.
The insurer paid the injured boy weekly compensation amount
ing to $9 regularly from December, 1918, until the 24th o f March,
1919. Woods decided he would prefer a lump sum settlement. After
considerable negotiations between his attorney and the insurer, a
written agreement was drawn up “ subject to the apprpval of the in
dustrial accident board ” in which $150 was to be paid Woods in
full settlement o f all claims. The agreement was forwarded to the
industrial accident board, but Woods grew impatient and endeavored
to get the company to pay the $150 before the board had given its
approval. The company declined to make this payment. The at
torney for Woods suggested a suit for $150 in the justice court at
Houston, Tex., in which judgment could be obtained which would be

w o r k m e n 's

c o m p e n s a t io n .

295

binding. To this the insurer agreed. A suit was filed and the insurer
answered immediately, alleging the necessity for and a lack of the
approval o f the board. Judgment was given, the $150 paid, and a
release was given by Woods to the insurer; no appeal was taken.
It will be noted that in less than one week from the time all parties
submitted this matter to the jurisdiction of the board at Austin, they
attempted to defeat the jurisdiction of the board by a proceeding in
the justice court.
The accident board, however, refused to recognize the judgment
o f the justice court, and did not approve the lump sum settlement.
On October 16, 1919, they entered an award allowing $9 per week
payable weekly for a period of 200 weeks, but allowed deductions
for the amounts already paid. The indemnity company appealed
from this order o f the accident board, and Woods, through a new at
torney, contested the appeal. The court sustained the award of the
accident board. The case was appealed to the court of civil appeals,
where it was again affirmed (Bui. No. 809, p. 326). The case was
then taken to the Commission of Appeals of Texas.
The question before the commission was “ whether or not the
justice court judgment is res adjudicata of this controversy, and
therefore a bar to the award of the accident board.”
The commission called attention to the act of 1917, which amended
the workmen’s compensation act of 1913, and provided that all ques
tions arising under the act should be determined by the board if
not settled by agreement of the parties, which settlement must be
“ within the terms and provisions of the act.” The commission of
appeals also favored Woods and the board in its recommendation to
the supreme court that judgment be rendered against the insurer.
The supreme court entered as judgment the recommendations of the
commission. The reasons stated by Judge Powell are, in part, as
follow s:
We are much impressed with the idea that there is a large element
o f public interest in the administration of this compensation act.
The only body which can protect the public is the accident board. It
would be idle to expect the employer or the insurance company to
exercise any particular degree of care in behalf of the public. Their
natural desire would be to get rid of the claim as economically as
possible to themselves. It is also true that the injured employee is
frequently tempted to accept a sum which, paid all at once, looks
large to him, and thereby, in fact, “ sell his birthright for a mess of
pottage.” The accident board alone can protect the public interest
and in a large measure save these claimants from themselves. Many
o f them do not need this protection. I f so, the supervision of the
accident board, at least, does no harm. To those who do need it, this
supervision is exceedingly valuable.
The legislature undoubtedly desired that, in nearly all cases, the
compensation should be paid weekly. It so expressly provided. It

296

TEXT AKD SUMMARIES OF DECISIONS.

enacted that in certain exceptional cases the board could approve or
decree a lump-sum settlement. This latter character of adjustments
was not authorized, under any circumstances, without first running
the gauntlet of the board at Austin. The case at bar is a splendid
example o f the wisdom of having the board supervise lipnp-sum
settlements. Here a young man, desiring to take a long trip, de
cided to release his probable right to a recovery of some $1,800 for
the rather nominal sum of $150, in order that he might get sufficient
funds in hand at one time for his prospective trip. I f this settle
ment had been binding, the result would have been that he would
probably have speedily become a public charge, when the small
payment had been improvidently spent. The public has a right to
protect itself from the speeding return o f such people to a position
where they are likeljrto become charges upon public charity. In
other words, the claimant and insurance company can not, just
among themselves, deprive the accident board o f the jurisdiction
conferred upon it by the legislature and thereby ignore the rights
o f the public generally.
W orkmen ’ s C ompensation— A ward— P ower to E evoke— E ights
Two W ives— D eath of C laimant B efore A ward—Industrial

Commission of Ohio v. Dell et al., Supreme Court of Ohio ( March
21,1922), 135 Northeastern Reporter, page 669.—Hiram J. Plumsteel
was married to his wife, Sarah, in Canada sometime during the year
1875. Several children were born of this marriage and a domicile
was established in the State of New York at Niagara Falls. As
Plumsteel was a traveling salesman he was necessarily away from
home a great part of the time. About 1904 he left on one o f his trips
and never returned to or even visited his family. No trouble appears
to have arisen between him and his family but he had some difficulties
with his creditors, which might have caused him to remain out of
New York State for a while. Contributions o f $50 a month were
made for the support o f his family up to about the year 1912. As
his wife Sarah was a helpless invalid for many years, the children
wrote frequently to their father urging support for their mother,
but without results. These letters were sent as late as July, 1917. In
the year 1915, Hiram met one Maggie Berg, whom he married at
Columbus, Ohio,’ after telling her and her brother that his first wife
was dead. On September 28, 1917, Hiram was killed while in the
course o f his employment at the plant o f F. O. Schoedinger at Co
lumbus, Ohio. Immediately after his death the wife by the second
marriage filed an application with the industrial commission for
compensation, and about October, 1917, was awarded the full amount
due to a person wholly dependent. When the first wife learned o f the
death, soon after the award was made, she also filed application for
an award. A t this stage o f the case the commission on November 21,
1918, revoked their former order, and payments thereon were sus

w o r k m e n 's

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29f

pended upon the ground that she was not the widow of the deceased,
and the commission also refused the application of the first wife upon
the grounds that she was not a dependent, that she was not living
with the deceased at the time of his death and that she had not been
supported by him for several years prior to his death. Both women
filed an appeal from the order o f the commission but both died before
the case came up for trial and the case was revived as to both parties
in the names of their administrators. The court of common pleas
decided that the first wife was not dependent upon her husband at
the time o f his death, and that the second wife was not a member of
Hiram’s family and therefore decided against the contentions of both
claimants. The case was then taken to the court of appeals, where
the judgment as to the estate o f the second wife was affirmed and
tl\e judgment as to the estate o f the first wife reversed and remanded
for further proceedings. Then the industrial commission and the
administrator o f the second wife took the case to the supreme court
for further review. That court affirmed the judgment of the court of
appeals and remanded the case with directions. Chief Justice
Marshall in rendering the opinion of the court drew from the con
tentions three legal questions for determination and answered each in
turn as follow's:
For convenience the parties hereto will be referred to by their
Christian names, Sarah being the wife of the first marriage and
Maggie the wife of the second marriage.
This error proceeding presents three legal questions for determina
tion :
(1) Did the industrial commission have authority to revoke the
award which was made to Maggie in October, 1917, and suspend the
unpaid installments of the award theretofore made?
(2) What are the respective relative rights of Maggie and Sarah as
between themselves?
(3) Has the executrix of Sarah the right to prosecute her claim, no
award having been made to her by the commission and no judgment
having been rendered in her favor on appeal during her lifetime?
The first question depends primarily upon statutory provision. A
claim was regularly made for an award by Maggie shortly after the
death o f Hiram Plumsteel, and the claim was allowed in October,
1917, and some installments paid thereon. The claim was allowed
on the theory that Maggie was the lawful wife of Hiram Plumsteel.
On this theory she was clearly a person wholly dependent, and there
fore entitled to an award (1465-82, General Code). Thereafter the
commission determined that she was not the lawful wife of Hiram
Plumsteel, and revoked the order and discontinued the payments.
Section 1465-86, General Code, provides:
“ The powers and jurisdiction of the board over each case shall be
continuing, and it may from time to time make such modification or
change with respect to former findings or orders with respect thereto,
as, in its opinion may be justified.”

298

TEXT AND SUMMARIES OF DECISIONS.

It is impossible to find any ambiguity in the language employed,
and by its terms power and jurisdiction are clearly conferred upon
the commission to modify or change any findings or orders as in its
opinion may be justified. It is well understood that the primary
purpose o f a continuing jurisdiction is to give a board or tribunal
the power to modify or change a judgment or order to meet changed
conditions, or to do justice in the light of newly discovered evidence,
or to correct an order which was made as the result of fraud or im
position, or an order which would not have been made if certain facts
later discovered had then been known to exist.
Even without the express provisions of the statute, the commission
might very well be held to have inherent right to revoke an order
where it was clear that the order had been obtained by imposition or
upon a showing of facts which were later found not to exist.
The first question must therefore be determined in the affirmative,
to the effect that the commisson had the power, under section
1465-86, to revoke the award theretofore made to the wife o f the sec
ond marriage.
Let us next inquire concerning the respective and relative rights
o f these two unfortunate women. It has been argued with much
force, supported with much authority, that a presumption should
be indulged o f the validity o f the second marriage, and that, even
though conceding that there was a former valid marriage, the burden
will be imposed upon the wife of the first marriage, and especially
so when, as in the case at bar, it is clearly shown that the first wife
is living, to overcome the presumption that a divorce was obtained
before contracting the second marriage.
It is inconceivable that she would have continued to receive sup
port up to 1912 or 1913 if a divorce had been obtained prior to that
time, or that she would have made any effort, or that her daughters
would have made any effort in her behalf, to obtain further support,
if there had been a legal separation at the suit o f the husband. No
where does it appear that he ever claimed to have been divorced.
Even if this court should follow the rule so frequently declared in
other jurisdictions, we must still reach the conclusion from this rec
ord that there is enough to overcome any such presumption and to
place upon the second wife the obligation o f proving that by valid
divorce proceedings Hiram Plumsteel was free to contract a valid
second marriage.
We therefore approve the conclusion o f the court o f appeals in
this case that the first wife is the lawful dependent in the case.
Finally, it must be determined whether the first wife is a depend
ent within the true meaning of section 1465-82, and whether an
award can be made to her estate, she having died before the cause
was heard upon appeal in the court o f common pleas.
The section above referred to provides that—
“ The following persons shall be presumed to be wholly dependent
for support upon a deceased employee:
“ ( A ) A wife upon a husband with whom she lives at the time of
his death.”
“ In all other cases, the question of dependency, in whole or in
part, shall be determined in accordance with the tacts in each par
ticular case existing at the time o f the injury resulting in the death

WORKMEN *S COMPENSATION.

299

o f such employee, but no person shall be considered as dependent
unless a member o f the family o f the deceased employee, or bear to
him the relation o f husband, or widow, lineal descendant, ancestor,
or brother or sister.”
Dependency rests upon an obligation of support, and not upon the
question as to whether that obligation is being discharged. To hold
that a recreant husband can relieve himself of such an obligation by
his mere defiant refusal to discharge the obligation would be to per
mit a person to take advantage o f his own wrongdoing. It is not a
question of how well he fulfilled his legal obligations, or how faithful
he was in fact in the performance of those promises o f support which
are a part o f the marriage contract and which are supplemented by
elaborate statutory provisions clearly defining his duty to support
and maintain his wife in so far as he is able to do so; the question
is : Was there a duty on his part and has anything occurred to relieve
him o f that duty ?
Under the language of section 1465-82, General Code, Sarah Plumsteel must be held to have been a partial dependent, and therefore
entitled to have the question of the value o f her dependency deter
mined in accordance with the facts of this particular case existing
at the time of the death of Hiram Plumsteel. Inasmuch as she has
deceased before that matter has been adjudicated, it becomes a very
simple proposition. Under paragraph 3 o f section 1465-82 she
should be awarded two-thirds of his average weekly wages, and it
should continue from the time o f his death to the time o f her death.
The case was therefore remanded for further proceedings in ac
cordance with the foregoing decision.

W orkmen ’ s C ompensation— A ward— R eopening and R eview—
P ower of C ommission— Terry v. General Electric Co., Court of A p

peals of New York ( November 22,1921), 13S Northeastern Reporter,
page 373.— George H. Terry while in the employ o f the General
Electric Co. slipped upon a sidewalk upon its premises and fractured
one of his ribs. The State industrial commission allowed an award
o f compensation in his favor because o f the injury. After he re
covered, Terry returned to work, doing the same kind o f labor and
receiving the same pay. A few months later he voluntarily quit the
employment to accept work as a janitor for another employer. Four
months later, because of his physical condition, he left, returned to
his home, and soon thereafter died. After his death the commis
sion o f its own motion opened the proceeding relating to the claim
originally filed by him. On the day his widow was made adminis
tratrix the commission made an award of compensation based on
the decreased earnings of Terry while janitor and for wages lost
after giving up his position as janitor and before his death. It was
•found by the commission that the injuries he received “ so accelerated
and lighted up a preexisting tubercular condition as to cause him to

300

TEXT AND SUMMARIES OF DECISIONS.

be disabled between the dates hereinbefore referred to and subse
quently caused his death.”
An appeal was taken from the award but it was affirmed in the
appellate division. The court of appeals, however, reversed the
lower court, and through Judge McLaughlin held that the commis
sion was without power to act as it did in this case. The court
stated that there was a distinction between compensation and bene
fits. Compensation is paid only to employees, benefits are payable
only to dependents of vsuch employees. On this subject the court
sa id :
This award is not made to the widow or any of the persons speci
fied in the statute, nor could it be, because nothing was due Terry on
an award for compensation when he died. The award made to him
had been fully paid and satisfied. To insure the payments to the
persons intended, the section contains a provision that—
u Claims for compensation or benefits due under this chapter shall
not be assigned, released, or commuted except as provided by this
chapter, and shall be exempt from all claims o f creditors and from
levy, execution, and attachment or other remedy for recovery or col
lection o f a debt, which exemption may not be waived.”
Here the award for compensation was made payable, as above
indicated, to the administratrix o f Terry’s estate, and as such be
comes the property o f his estate, subject, like other funds, to the pay
ment o f all claims which may be legally made against it. The right
to compensation was extinguished by Terry’s death. The commis
sion therefore had no power to make the award in question.

W orkmen ’ s C ompensation— A ward— T otal W eekly W ages—

Two E mployers— Bamberger Electric R . R. Co. v. Industrial Com
mission of Utah, Supreme Court of Utah ( December 24, 1981), 203
Pacific Reporter, page 345.—Walter Berg was an employee of both
the Bamberger Electric Railroad Co. and the Utah Power and Light
Co. on June 2,1921. The power company paid him $61.25 per month,
and the railroad company $59.95. His duties required him to start
the machinery for the railroad company at 5.30 a. m. on the date
mentioned but this he did not do. His dead body was found between
7 and 8 a. m. in the power company’s building with burns upon the
body, indicating that he had come into contact with an electric cur
rent while working for the power company. The Industrial Commis
sion o f Utah made an award in favor o f the mother o f the deceased
against both companies. The case was taken to the supreme court
o f the State, where the award was vacated as to the railroad com
pany, and the award against the power company, in whose employ
the deceased was working when killed, was changed so that thev
company would be liable for the full amount o f the award based
upon the total amount o f earnings received by deceased from both

w o r k m e n ’s

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301

companies. The status of the employee at the time of his fatal in
jury was thus defined by the court:
Without going into further details as to the evidence, it is sufficient
to say that no joint contract existed between the railroad company
and the power company to pay Berg’s wages; that each company was
liable for its share of Berg’s wages, and no more; that either com
pany could have discharged the deceased from its employ, but neither
could have discharged the deceased from the employ o f the other.
Therefore, while doing work for the power company the condition
o f employer and employee existed between the deceased and the
power company, but not between him and the railroad company.
Moreover, at the time o f his death the railroad company had no con
trol over deceased, and he was entirely, according to the undisputed
evidence, under the direction of the power company, and hence there
was no joint employment, and the railroad company can not be
held liable for any part of the compensation awarded to the mother
o f the deceased.
The power company should pay the full amount o f the award,
based upon the total amount o f his earnings received by him from
both companies.
W orkmen ’ s C ompensation— A ward for S pecific I njury — D eath
B eneficiary — V ested R ights— Wenning et al. v. Turk et al.,

Appellate Court of Indiana (June 8, 1922), 1S5 Northeastern Re
porter, page 665.—Robert Turk was an employee of William Wen
ning and others at a weekly wage of $18.42. In the course o f his
employment he received an injury which resulted in the loss of an
eye. An agreement was entered into between the employers and
employee in which it was agreed that Turk would be paid $5.80 for
150 weeks. Compensation was paid under this agreement, without
the approval of the industrial board, from August 18, 1918, to Feb
ruary 22, 1921, a period of 79 weeks. On March 20, 1921, Turk died
from causes other than the injury for which compensation had been
paid. The only surviving heirs were his widow, Bettie Turk, and
his child, Lola, 5 years of age. They made application for an award
o f compensation to the industrial board under the provisions of
the workmen’s compensation act. The board found that a mistake
had been made in the previous agreement, and that Mr. Turk was
entitled to $10.13 per week instead o f $5.80, and therefore awarded
the claimants a weekly compensation of $4.33 for 79 weeks beginning
August 18, 1918, and also 71 weeks additional compensation at the
rate o f $10.13. The employers conceded that the claimants were en
titled to be paid all the compensation that was due at the death o f
the employee, but contended that the right to compensation ended
with the death o f Turk. From the ruling against them, the em
ployers appealed to the appellate division, but in that court the

.3 0 2

TEXT AND SUMMARIES OF DECISIONS.

award o f the board was affirmed. The decision of the court, ren
dered by Judge McMahon, is in part as follows:
Section 36 of the workmen’s compensation act, section 8020t, 1
Burns’ Supp. 1921, reads as follows:
“ When an employee receives or is entitled to compensation under
this act for an injury and dies from any other cause than the injury
for which he was entitled to compensation, payment o f the unpaid
balance o f compensation shall be made to his next of kin dependent
upon him for support.”
The right o f an injured employee to compensation is not such a
vested right that in the absence of statute survives upon the death
o f the employee. Such right does not on the death of the employee
pass to his heirs or personal representatives.
In the absence o f a statute to the contrary, the employer is only
required to pay compensation up to the death of the injured em
ployee.
Appellees base their claim to the unpaid balance of the compensa
tion accruing after the death of the injured employee on section 36.
Appellants, however, insist that the “ unpaid balance o f compensa
tion ” must be construed to mean the unpaid balance due when the
injured employee dies, and that it has no reference to the install
ments that would have become due and payable to the employee had
he not died.
There is nothing ambiguous about section 36. There is nothing in
it that calls for judicial construction. W e are not at liberty to read
into the statute the words “ due at the time o f the death o f such em
ployee,” as we would have to do in order to have it read as appellants
contend.
We hold that where an injured employee dies from causes other
than the one for which he has been allowed compensation, the next
of kin are entitled to an award directing that the unpaid balance of
the compensation accruing after the death o f the employee be paid
to them.
W orkmen ’ s C ompensation— C laim — L imitation — F inding of
C ourt— E x parte Sloss-Sheffield Steel & Iro n Go. (Steagall Case),

Supreme Court of Alabama (A p ril 20, 1922), 98 Southern Reporter,
page 1$5.—Alpha Steagall was killed on March 26, 1920, while em
ployed by the above-named company, under circumstances warrant
ing a compensation award. His widow petitioned the circuit court
of Jefferson County, asking for a settlement under the compensation
law o f the State. This was on September 14, 1920, and the com
plaint was found lacking as to form. On October 23. 1920, an
amended complaint in proper form was submitted by leave of the
court. To this the company answered that there was no dispute as
to the claim, and that it had been ready and willing to settle with
the petitioner according to the provisions o f the law, and on the
basis o f the facts set forth in her petition, which it did not contest.
A proposed settlement was filed with the answer, which it was

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303

ready to make with the petitioner, subject to the approval of the
court. The court made an order dismissing the cause on the ground
that there was no controversy in the case either as to liability or
the amount due, “ or any other matter of controversy requiring an
adjustment in this court as contemplated by the compensation act.”
On November 5, 1921, more than one and one-half years after the
accident, the widow again petitioned for a settlement, referring to
the previous petition and answer. To this the company demurred,
pleading that as claims were outlawed after one year there was
no liability on its part, also making other pleas in demurrer. Judge
Sayre, who delivered the opinion of the court, announced that,
on the facts having been admitted, as they were in the court below,
judgment should have been entered for the petitioner; but as the
“ petition was dismissed and not renewed within one year of the
death o f petitioner’s husband,” the question of defeat by limitation
arises. A dismissal by the court did not operate as a bar; but as
the case was disposed of, that petition “ became as if it had never
been.” This “ left the parties the same rights of prosecution as if
the subsequent new petition constituted petitioner’s first effort to
prosecute her claim.” The law specifically provides that claims
“ shall be forever barred unless within one year after death ” agree
ment is made or a verified complaint filed. Though stating that
“ the act should be liberally construed in favor of the workman or
his dependents,” the court has “ no legally sufficient reason ” for
varying “ the plain language of the statute ” and a judgment of
the lower court in favor of the widow was reversed.

W orkmen ’ s C ompensation— C laim — L imitation — I nju ry A ris
O ut of and in C ourse of E mployment — A ssault— S econd I n
jury — T otal D isability — Guderian v. Sterling Sugar & R y. Co-

ing

( L t d ) , Supreme Court of Louisiana (March 27, 1922), 91 Southern
Reporter, page
—August Guderian was in the employ of the
defendant company in the capacity o f foreman o f laborers. On
January 9, 1919, he told one Porter, a laborer under his charge, that
he had absented himself from his work for too long a period. An
altercation followed, as a result of which, Porter was discharged.
More angry words were exchanged and Porter struck Guderian over
the left eye with his naked fist. Guderian had but one good eye at
the time, as some years before he had lost his right eye. In the early
part o f the following April he observed dark spots before his eye.
He was alarmed and consulted a local physican, who informed him
that the condition was due to a probable derangement of the kidneys
or indigestion. He returned to his work but about April 23 he
noticed that his eyesight was failing and he immediately consulted

304

TEXT AND SUMMARIES OF DECISIONS.

the same physician. This time he was advised to consult a specialist
in New Orleans, which he did and was treated in that city on
April 29. During the month of May he lost his left eye completely
and became totally blind. On April 22, 1920, more than a year after
the blow had been struck he brought suit for compensation for his
injuries. The employer defended on the ground that the limitation
o f one year, provided for by statute, had run, that the accident did
not rise out o f and in the course of the employment, and that, in the
event it did, the incapacity is not total but partial. There was an
award made and the employer appealed. But in the upper court the
judgment allowing compensation was affirmed and the contentions
o f the employee upheld in an opinion rendered by Judge Overton,
which is in part as follow s:
Undoubtedly the blow injured the optic nerve at the time it was
given, but plaintiff did not know that, and had no means of ascertain
ing it. His eyesight was not perceptibly affected. He continued his
work, stopping only long enough to have the wound on the forehead
dressed. He had no cause of action at that time under the employers’
liability act. His cause o f action was in process o f development, but
without knowledge o f this fact on his part, or means o f knowledge.
The first symptom that arose suggesting the possibility that his eye
was injured was not sufficient to excite the slightest alarm in his
physician, whose opinion dissipated plaintiff’s fears. He had no
knowledge o f even what might happen until A pril 23, 1919, which
was within one year prior to this suit, unless the symptom above men
tioned be deemed knowledge, but we think it should not.
Plaintiff’s cause of action did not arise until he lost his eye. It is
self-evident that one can not sue until his cause o f action arises.
This court, in South Arkansas Lumber Co. v. Tremont Lumber Co.,
146 La. 61, 83 South. 378, said :
“ A person can not bring suit until his cause o f action has accrued,
and until a cause o f action has accrued, prescription can not run
against it.”
The prescription is suspended if it be made to appear that there
was good legal reason for not bringing the action earlier. We, there
fore, overrule the plea o f prescription.
When a foreman, in the performance o f his duty, is assaulted by a
laborer under him, and is injured as a consequence, the injury is con
sidered as caused by an accident within the meaning o f employers’
liability acts.
The above rule also applied if, as in this case, the foreman is
assaulted and injured immediately after the discharge when the
assault is caused by the discharge, and when the foreman, as in this
case, pursuant to his duty, is in the act o f settling with the laborer.
Defendant also urges that plaintiff’s disability to do work o f any
reasonable nature is not total, but only partial. Under section 8 of
act 38 o f 1918 the loss o f both eyes is classified as total disability, and
properly so. Where one loses his only eye, and it does not appear
that he is able to do remunerative work o f any reasonable character,
the disability will be considered total, and he will be awarded com
pensation as for permanent total disability.

WORKMEN*S COMPENSATION.

W orkmen ’ s

C ompensation— C laim — L imitation — M ental

305
I

capacity — Lough y .

State Industrial Accident Commission, Supreme
Court of Oregon (June 6, 1922), 207 Pacific Reporter, page 35If,—
Fred V. Lougli claimed to have been injured October 1, 1919, while
at work in Multnomah County, Oreg., and presented his claim for
compensation on April 3, 1921. The commission refused compensa
tion, under the provision of the law which requires claims to be
filed within three months after the date of the injury, except in fatal
cases, when one year is allowed. The case was taken to the circuit
court o f the county, which sustained the finding of the commission.
Further appeal to the supreme court of the State led to the same
result.
The claim was based on an injury to Lough’s head, caused by a
bolt falling upon it. The disabling effects were not immediately
apparent, but subsequently a partial insanity affected the claimant,
disabling him, as he claimed, from taking the necessary action to
protect his rights.
Judge Burnett, speaking for the court, found precedents in a
number o f States for holding that the occurrence of the injury dates,
not from the time of the accident, but from the disabling results
thereof, which may occur some weeks or months later. He found,
however, that these cases arose “ under statutes differing largely
from our own.” The Oregon law contains no such provisions, and
“ without equivocation it is said that the notice must be given within
three months after the date upon which the injury occurred.”
The opinion concludes:
Without making any exception in favor of the insane, the disabled,
or the infant, the legislature has seen fit to prescribe the terms upon
which the bounty of the State may be enjoyed. Those who would
avail themselves o f the privilege thus extended must comply with
its terms, and it does not lie within the power o f any judicial
tribunal, however beneficial it may be, to add terms that have not
been put there by the law-making power. We may well regard this
ease as one o f great misfortune, and yet we are powerless to extend
relief where none is awarded by the statute. The judgment of the
circuit court must be affirmed.

W orkmen ’ s C ompensation — C laim — L im itation — S ettlement—

Hopper v. Wilson & Co,, Supreme Court of Kansas ( June 10,1922),
207 Pacific Reporter, page 757,—J. N. Hopper was injured on April
18, 1918, while in the employ of Wilson & Co. He executed a statu
tory release in consideration o f the payment of $25, May 7, 1918.
He died on September 28, 1918, from pneumonia (lobar) and con
tributory valvular heart disease. More than 10 months later his
widow made a demand for arbitration under the workmen’s compen

306

TEXT AND SUMMARIES OF DECISIONS.

sation law. This was the first notice given to the company of a claim
that Hopper’s death was due to the injury referred to. The State
statute provided that proceedings for the recovery o f compensation
would not be maintainable unless written notice of the accident had
been given in the case o f death within six months from the date
thereof. The widow was unsuccessful in the lower court, and an
appeal was taken to the supreme court of the State. That court de
cided against her, saying:
Whatever may be the rule under other circumstances, we think in
the situation here presented the statute is to be interpreted as requir
ing the making of a claim by the plaintiff after her husband’s death
and within six months of its occurrence. Such a requirement is in
keeping with the spirit and policy of the law because the defendant,
having settled with her husband during his lifetime, had no reason
to anticipate the making of a further demand, and the assertion of
one after the lapse of six months (in this instance over 10 months)
might well find it disabled from obtaining the information and pre
serving the evidence necessary for a defense. It does not appear
that any claim for compensation was made upon the defendant by the
injured employee, but the settlement made with him would render
that fact immaterial as between them. But this settlement having
been effected, the defendant was justified in assuming, in the absence
o f any notice to the contrary, that the whole affair was ended, and in
treating it as a closed incident.
Whatever considerations make it desirable that a claim for com
pensation shall be made upon the employer within six months after
the death of the employee in any case apply fully here.
The steps that had been taken—the settlement and release—so far
from warning the employer of the prospect of a further demand,
tended to lull him into security in the belief that the whole affair had
been finally disposed of.
W orkmen ’ s C ompensation — C laim — N otice — A bsence of
P rejudice— I n re Troutman, In re K irk , Appellate Court of Indiana

(.December 9, 1921), IBS Northeastern Reporter, page 150.—Helen
Troutman and Lorenzo Kirk were employees who received personal
injuries by accidents arising out of and in the course o f their em
ployment. In neither case was the employer notified o f the injury
within 30 days as required by the statute. The act provided that
“ Unless such notice is given or knowledge acquired within 30 days
from the date of the injury or death, no compensation shall be paid
until and from the date such notice is given or knowledge obtained.”
It was provided further that “ No lack of knowledge by the employer
or his representative and no want, failure, defect, or inaccuracy o f
the notice shall bar compensation, unless the employer shall show
that he is prejudiced by such want, failure, defect, or inaccuracy o f
the notice, and then only to the extent of such prejudice.” In neither

w o r k m e n 's

c o m p e n s a t io n .

307

case was the employer prejudiced by lack of notice of the injury.
The industrial board certified to the appellate court the question of
whether the failure to give notice merely postpones the time when the
payment o f compensation begins or bars the claimants of their rights
to part o f the compensation. The court held, through Judge Enloe,
that the former was the correct interpretation of the law and fur
ther said that, “ even if there were doubts as to whether the claim
ants, under the facts stated, were entitled to compensation for the
full periods claimed, we would be compelled to resolve all reasonable
doubts in favor of such claimants.”

W orkmen ’ s

C ompensation — C laim — N otice— A ctual K nowl
E xcuse—Patton Hotel Co . v. Milner , Supreme

edge— R easonable

Court of Tennessee ( December 17, 1921) ,238 Southwestern Reporter,
page 75.—Wilson Milner was a cook in the employ o f the Patton
Hotel Co. on May 24, 1920. On that day it was very warm in the
kitchen and Milner became too hot and was stricken with a feeling
o f faintness. He went out into the alley to get fresh air. While
standing there he fainted and fell and his arm was run over by the
rear wheel o f an automobile truck that was passing along, the alley.
The arm was severely bruised and lacerated and after he was re
moved to the hospital in an unconscious condition lockjaw set in.
He died soon thereafter, leaving a widow and a minor son by a
former marriage who was 5 years o f age. The deceased’s brother,
James Milner, qualified as administrator o f the deceased’s estate and
on August 16, 1920, filed a petition seeking compensation. The com
pany resisted the claim on the grounds that they had not been given
written notice o f the claim for compensation in writing within 30
days, as required by the compensation act. After a hearing a judg
ment was rendered in favor of the claimants but the case was ap
pealed to the supreme court, where the judgment of the lower court
was overruled. Judge Hall wrote the opinion, giving reasons for
this action o f the court, in part as follow s:
The deceased’s overheated and fainty condition arose out of his
employment, and it was on account of this condition that he became
exposed to the danger which produced the injury. We, therefore,
think the necessary causal connection between the employment and
the injury appears.
The question of notice presents a more serious question.
It is conceded by claimants that no notice whatsoever was given to
the hotel company of the injury within 30 days after its occurrence,
and no excuse was offered for their failure to give notice.
The accident happened on May 24,1920. The first ami only notice
that was ever given the hotel company of said accident is contained
49978°—23----- 21

308

TEXT AND SUMMARIES OE DECISIONS.

in a letter from Messrs. Crutchfield & Chamlee, attorneys for ap
pellees, o f date o f August 9, 1920, which was more than two months
after the accident.
This court held that sections 22 and 23 o f the workmen’s compensa
tion statute mean just what they say, and that written notice must
be given within 30 days after the injury, or else a reasonable excuse
for failing to give the notice must be made to the satisfaction o f the
tribunal trying the ease.
It is said in the instant case that notice was unnecessary because
the hotel company was shown to have had actual knowledge o f the
accident and injury to the deceased.
In Black Diamond Collieries v. Deal (Tenn.), 234 S. W. 322, this
court said:
“ Unless the employer has actual knowledge of the accident, the
employee shall not be entitled to any compensation which may have
accrued prior to written notice to the employer. Unless such written
notice is given within 39 days after the occurrence o f the accident no
compensation shall be payable under the provisions o f the act, except
a reasonable excuse for failure to give the notice is made to the satis
faction o f the tribunal trying the case. Such is the effect o f sec
tion 22.”
It is next said that it appears that Wilson Milner, jr., the minor
son o f the deceased, was only 5 years o f age at the time o f his father’s
injury and death, and was without a regular guardian until March
2.6, 1921, and that this fact itself was sufficient to excuse him from
giving the employer notice o f the injury required by sections 22 and
23 o f the workmen’s compensation act.
By subsection 6 o f section 30 o f said act it is provided that if the
deceased employee leave a widow and dependent child the compen
sation provided by said act shall be paid to the widow for the benefit
o f herself and such child. The right, therefore, was in the widow to
make claim for the compensation due in the instant case, and it was
her duty to give the notice required by sections 22 and 23 o f said
act and, not having done so and having offered no reasonable excuse
for not giving said notice, she can not recover in this action.
It,, therefore, results that, for the want o f notice as required by
sections 22 and 23 o f the statute, and the widow’s failure to show a
sufficient excuse for not giving such notice, the judgment o f the court
below will be reversed, and the petitions o f appellees will be dis
missed, with costs.

W orkmen ’ s C ompensation — C laim — N otice— P rejudice — M edi
S ervice-—Law&on v. Wallace & Keeney /Supreme Court at New

cal

Yorhj Appellate Division (July 6y1922).rW5 New York Supplement
page 673.—James Lawson was employed as salesman by a wholesale

fish merchant, and white at his work received a sharp Mow from
a falling box, which struck him between the knee and hip. The
accident caused pain and “ a red spot,” but suggested no serious
injury. A coemployee witnessed it, and the injured man used lini
ment for two or three days* Some two. months later “ the teg began
to bother,” and Lawson went to see his family physician, a lady,

w o rk m en 's

c o m p e n s a t io n .

309

Doctor Peebles. “ Owing to liis apparent recovery from the bruise
received a couple o f months before, it did not occur to him to mention
the1accident, nor did his physician question him as to whether he had
sustained an injury to the leg.” She had formerly treated him for
rheumatism following an attack o f typhoid fever, and continued to
treat for rheumatism for two or three months; but as the leg kept
getting worse, the doctor finally sent Lawson to a specialist,, who
found “ ail abscess deep in his thigh, which had worked its way to
the top slowly.” The abscess was at the point where the box struck
the* leg, and the surgeon asked Lawson whether he could remember
when he had been hurt. This for the first time reminded Lawson of
the falling o f the box, of which he told the surgeon. This was about
six months after the injury, and claimant then immediately notified
his employer, making a report o f the injury. On the date o f the
mailing o f this report the surgeon operated, draining the abscess,
but did not recognize any immediate communication with the bone.
Three months later another operation was performed for chronic
osteomyelitis. This condition o f the bone had probably continued
latent since the typhoid fever, but the actual situation, including the
existence o f the blood clot formed by the bruise, could not be known
without the use o f the X ray and was not definitely disclosed until
the second- operation.
The foregoing testimony as- to the nature of the injury and the
latent disease which it excited into a cause of disability was sup
ported by the opinion o f the surgeon o f the board, and both doctors
agreed that there was nothing in the history of the case or o f the
accident to indicate the necessity of any other treatment than that
which had been given, so that it could not be claimed that the failure'
to give notice had cut off the rendering o f suitable medical service.
Indeed, there was nothing in the development o f the disability prior
to the diagnosis by the specialist to indicate a connection between the
accident and tlie disability.
The claim was at first disallowed on the employee’s statement that
he had not notified his employer until after the expiration o f 30
days after the accident, this being the time for notice fixed by the law.
The case was subsequently reopened upon application of the em
ployer, who wrote a letter strenuously urging a disregard o f the
strict letter o f the law, and a recognition o f the equities as they ap
peared to him; “ As soon as the diagnosis showed the cause o f his
trouble, a report was at once made to us, and we in turn reported to
the insurance company. We have been paying compensation insur
ance for a long while and have never had; a claim before. It does
seem outrageous that nothing has been done for this man, as this
is one o f the eases that, obviously, the compensation insurance is
meant to cover.”

310

TEXT AND SUMMARIES OF DECISIONS.

This letter was written by the president of the employer company,
who also appeared as attorney for the injured man. Judge Hinman,
who delivered the opinion o f the court, in commenting on this fact,
said: “ Upon the question of notice, we have an attitude on the part
o f the employer which is unusual, if not unique.” On the basis o f
the employer’s statement that there were bruises and scratches nearly
every day which it would be impossible to report and the expression
o f the employer’s opinion that the claim was made in good faith,
and that the accident had occurred as narrated, the case was recon
sidered, setting forth that “ the purpose o f notice is to permit an
early investigation o f the circumstances o f the accident by the em
ployer and to give opportunity to furnish prompt medical service to
claimant to prevent serious disability.” Attention was called to the
30 days’ limitation established by the law.. This was said to be a
“ fair provision,” but “ is not inflexible,” the law providing that it
may be waived where employer has not been prejudiced by the failure
to give notice.
Despite the desire o f the employer that the claim be favorably
acted upon, the insurance company raised the question of the limi■tation, but the court decided that “ it was not necessary for the com
mission to find facts tending to indicate lack o f prejudice on the part of
the insurance company.” As the law was enacted, the company might
have made such a claim, but by an amendment o f 1918 only the
employer’s interests are safeguarded by this provision as to “ lack
o f prejudice.” “ Strange as it may seem, the legislature has taken
away from the insurance company, directly chargeable with the
payment o f the compensation, any right to object on the ground o f
its own prejudice. The insurance company may only raise the point
that the employer has been prejudiced.”
Another point involved was the claim for medical bills, the in
surance carrier contending that no recovery could be had since the
employer and insurance carrier had not authorized the medical
treatment in this case. It was shown, however, that before the
surgeon, Doctor Jennings, operated upon Lawson, the latter com
municated with his employer, who went to the hospital and talked
over the possibilities o f the treatment. From this Judge Hinman
reached the conclusion that the employer had consented to the em
ployment o f the physicians selected by the employee, and that he
had the right so to do. As to the amount of the bills, the only ques
tion raised by the carrier was whether they were reasonable and fair.
“ There was sufficient testimony to justify the hospital bills as reason
able in amount.” The doctor called by the insurance carrier testified
that the operating surgeon’s “ reputation is o f the very highest,”
and that his charges in this case were “ reasonable for a man in good
circumstances,” However, for one in the circumstances and station

W O R K M E N ^ COMPENSATION;

311

in life o f the claimant they were too high. Section 13 of the work
men’s compensation law requires that limitation be placed upon al
lowances for medical services. The bill of the family physician was
found not to be supported by the necessary testimony, and for such
services as were rendered prior to the notice to the employer o f the
fact o f the injury could not be accepted as a proper charge. For
services rendered after the operation, when the case was turned
over to her for dressing, a reasonable allowance could be made;
while the bills o f the surgeon himself must be submitted to the com
mission for further consideration in view of the requirement that the
station in life controls.
The amount awarded for disability was therefore affirmed, and that
for medical treatment reversed and remanded to the State industrial
board for further consideration.

W orkmen ’ s C ompensation— C laim — R eliance on P romise to
S ettle— L iberal C onstruction— E stoppel— Mulhall v. Nashua M fg.

Co*, Supreme Court of New Hampshire {November 1, 1921), 115
Atlantic Reporter, page ^ 9 .—Jane Mulhall was injured while in the
employ o f the defendant company, on August 8, 1919. The accident
arose out o f and in the course o f employment and was not caused by
her willful misconduct. She received emergency treatment from the
mill doctor and nurse on the day of the accident and the mill doctor,
who was employed by the defendant company, attended her every day
for a year from the date of the accident. The defendant company
held a policy o f insurance by the terms of which the insurance com
pany contracted to pay promptly any sum due under the workmen’s
compensation law. The insurance company, through an agent, about
eight weeks after the accident called on and took the statement of
Miss Mulhall and then told her to wait until she saw how she got
along, but not to bring in a lawyer and that the insurance company
would pay her for six years. After waiting for three or four months
from the date of the accident and not hearing from the agent she
employed counsel. The agent failed to keep an appointment with
her attorney. A day or two before the expiration o f the six months,
the time within which the act required notice to be filed, the at
torney called the agent on the phone in regard to filing notice. The
agent told him that the company waived the filing o f notice as they
knew all about the accident. Relying on this assurance no notice of
claim for compensation was filed until March 20, 1920. Proceedings
were brought under the act and the defendant made a motion to
dismiss the proceedings because no claim for compensation was made
within six months from the occurrence of the accident. The motion
was denied, and the court awarded compensation for the full term of

312

TEXT AND SUMMARIES OF DECISIONS.

300 weeks from the date o f the accident. The case was then taken to
the supreme court o f the State. Judge Snow rendered an elaborate
decision on the interpretation o f the compensation act and held that
in view o f the uncertainty o f the meaning of the finding, justice re
quired a further hearing and the case was discharged. The court
reviewed many decisions stating the object, policy, theory and method
o f construction of the workmens compensation acts. It was held
that a compensation claim was. not barred by the failure to make
claim within six months unless the employer is prejudiced by the
delay; that a sufficient notice of the accident is a sufficient claim for
compensation; and that the workmen’s compensation act, although in
derogation. o£ the common law, should be construed liberally in order
to effectuate the purpose for which it was enacted. Applying these
conclusions to the facts in this case it was held that a statutory pro
vision enacted for the benefit of the employer may be so far waived
by him as to estop him from insisting on the protection afforded by
it, ami that a claimant may assume that agents o f the insurer o f the
employer have the usual and ordinary means o f investigating and
settling claims and where a claimant relied on the agent’s assurances
and did not present a claim for compensation the employer is estopped
to plead tile six months’ limitation as a defense. The court in the
course ©f its opinion said:
The plaintiff and her attorney had a right to assume that these
agents were clothed with authority to employ the usual and ordinary
means of accomplishing that for which the agency was created. The
suspension o f technical requirements is, not infrequently, a means
employed to prolong negotiations in order to secure amicable settle
ments.
The plaintiff relying and acting upon the assurances o f defendant’s
agent, having deferred the presentation o f her claim for compensa
tion, the defendant is estopped to set up such limitation as a defense.

f W orkmen ’ s C ompensation — C overage— B usiness for G ain — R e
ligious C orporation— G rave D igging— B illon v. Trustees of St.

Patrick’s Cathedral, Court of Appeals of New York ( November 21,
1922), 1S7 Northeastern Reporter, page 311.—This case was before
the court on appeal from the appellate division of the supreme court,
where Janies Dillon, a laborer, was allowed an award of compensa
tion against the corporation named. The employer was a religious
corporation under the laws o f New York, the trustees having control
o f the property of the corporation and o f its revenues. However, the
revenues must be applied to the maintenance of the corporation or
to some religious, charitable, benevolent, or educational object con
ducted by the corporation, or in connection with it or with the
denomination to which it belongs. Dillon was engaged in excavating

WORKMEN *S COMPENSATION,

313

the foundation for a monument, the nature o f his employment being
hazardous under the compensation law. The responsibility o f the
employer turned on the question o f whether or not the business was
for pecuniary gain. Judgment in the court below was affirmed (189
N. Y. Supp. 594, see Bui. No. 309, p. 278) on the ground that there
was a measure of gain in certain of the activities of the corporation,
and it did not matter to the claimant to what purpose that gain was
devoted. The court of appeals, however,, took a contrary view, re
versing the judgment of the courts below and granting a new trial.
The law permits compensation only in trades and occupations “ car
ried on by the employer for pecuniary gain.” Judge Andrews, speak
ing for the court, having stated the foregoing facts, asks, “ Was the
appellant [board o f trustees] carrying on business for pecuniary
gain ? ” The conclusion o f the court and its grounds are set forth in
the following paragraphs:
In our opinion it was not. It owned a cemetery. In it it sold
burial privileges. For them it received money. But the one fact that
money is received by the employer for property sold or privileges
granted is not sufficient to bring him within the definition o f carrying
on business for pecuniary gain. We may concede that the regular
sale o f burial rights in a large cemetery to an applicant who agrees
to comply with conditions imposed is a business. That is not enough.
The purpose o f the business must be profit. “ 6Pecuniary ga in ’ as
used in the statute merely means that the employer must be carrying
on a trade, business, or occupation for gain.”
The rule is illustrated in Uhl v. Hartwood Club, 221 N. Y . 588, 116
N. E. 1000. The club was a membership corporation owning a large
tract o f forest land* used by its members as a pleasure resort. On
these lands it engaged in forestry and logging, selling the timber so
cut by it. The proceeds of these sales might under its by-laws be
divided among the members as dividends, or might be paid into the
club treasury and used to diminish assessments and dues.. Under
those circumstances we held that it was engaged in business for
pecuniary gain.
Here no such situation exists. There are no salaries, no dividends,
no division o f profits, directly or indirectly. Substantially all sums
received are used for the maintenance of the cemetery. I f incident
ally there is any surplus, it is used for the charitable objects o f the
corporation. To say it is engaged in business for profit is an abuse
o f language.
W orkmen ’ s

C ompensation— C overage— F armers as

M iners—

Hanna et al v. Warren,, Appellate Court of Indiana ( November 29,
1921), 133 Northeastern Reporter, pafe 9.—Louis Warren was in the
employ o f Newton and Lemuel Hanna. The Hannas operated a farm
in Indiana and had been doing this kind o f work all their lives. They
contracted with one Roy Price to engage in mining and loading coal
from an outcrop on their farm. W ith the assistance o f Warren and

314

•TEXT AND SUMMARIES OF DECISIONS,

others, but without making any investment in new machinery or
mining tools, they proceeded to mine coal under the contract. Warion, while engaged in the work o f mining, received an injury which
resulted in the loss o f sight o f his right eye. The industrial board
found that the accident arose out o f and in the course o f his employ
ment and made an award o f compensation in his favor. The Hannas
contended that they were farmers and as such were not subject to the
workmen’s compensation law. An appeal was taken to the appellate
court, when the question was disposed o f in favor o f the injured man.
Judge McMahon, who delivered the opinion o f the court, said as to
the point o f occupation:
Appellants while engaged in this work were not engaged in farm
labor as that term is generally understood. They were at the time of
the accident and injury to appellee engaged in the mining business,
and subject to the provisions o f the workmen’s compensation laws.

W orkmen ’ s C ompensation — C overage— “ F our or M ore W ork
” — E mployee W orking S eparately— Ward & Gow v. Krinsky,

m en

'Sycpreme Court of the United States ( June 5, 1922), 259 U. S. SOS,
' \2 Supreme Court Reporter, page 529.—Himan Krinsky was em
ployed by Ward & Gow as a salesman at a booth in a subway station
in the Bronx, the employer being a company maintaining a large
number o f such booths at which were sold newspapers and other
periodicals, candies, etc. There were 307 employees, including truck
drivers, porters, and office employees, besides the 125 newspaper sales
men who worked alone at their different stands.
Krinsky was furnished with a pail for water to keep his hands
clean while handling merchandise in the dusty air o f the subway,
and while emptying this pail for the purpose of securing a fresh
supply he was struck by an approaching train and severely injured.
On application he was awarded compensation by the State industrial
commission, and this award was affirmed by the appellate division
o f the supreme court (193 App. Div. 557,184 N. Y. Supp. 443), and
again by the court o f appeals without opinion.
The employer contended that the declaration made by the legis
lature that the employment was hazardous because four or more
workmen were employed therein was not conclusive, and that the
“ validity o f compulsory workmen’s compensation acts depends upon
the inherently hazardous character o f the occupations covered.”
As to this, Justice Pitney, who delivered the opinion o f the court,
said:
The argument rests upon the curious misconception that the legis
lature regarded the workmen or operatives as the sole source o f
danger to those engaged in the same business with them, and upon

w o r k m e n 's

c o m p e n s a t io n .

315

the assumption, equally untenable, that the occupation of a salesman
at a subway station, protected ordinarily by the comparative security
o f a steel booth, but called upon at times, in the line o f duty, to go
into the moving throngs of passengers and into close proximity to
the rails upon which locomotives and trains are moving, is free from
inherent hazard to the salesman.
|
It had been sufficiently determined that Krinsky’s injury arose out
o f and in the course of his employment. Whatever alternative meth~*
ods o i accomplishing his purpose might have been used it could not
be said that his action in the case was a violation o f or departure
from his line o f duty.
|
A sufficient vindication o f compulsory legislation in this field was
said to exist in the “ public interest of the State in the lives and per
sonal security of those who are under the protection of its laws.”
This warrants the placing of the responsibility for pecuniary losses
by injury to employees on the employer—the one “ who organizes and
directs the enterprise, hires the workmen, fixes the wages, sets a
price upon the product, pays the costs and the losses, and takes for
his reward the net profits, if any.”
, i
It was said to be conclusively shown by the fact of the serious, in
jury that there was inherent hazard in Krinsky’s occupation. The
claim that by extending the law to every employee simply because
four or more workmen were employed by the same employer was
unreasonable, was said to be disproved by Krinsky’s experience. In
any case, if employment is entirely free from hazard, no responsi
bility is entailed; if there is a reasonable regulation the obligation
is not increased, as “ presumably the premiums will not exceed a rea
sonable estimate o f the risk.”
;
Other contentions were raised involving a consideration of uncon
stitutionality, as denying the equal protection of the laws, improper
classification, etc. It was found that this classification, based on the
number o f workmen, had been incorporated after some years of prac
tical experience. Various reasons were considered as possible sup
ports for the action taken, and the conclusion was reached that there
was no violation of the fourteenth amendment by establishing a
general liability for all employees of an employer who came under
the act, even though some o f them might be isolated and remote from
the “ four or more workmen ” who brought him primarily within
the law.
The provision of law in controversy was therefore sustained, and
the judgment of the court below affirmed, two justices dissenting.
W orkmen ’ s C ompensation — C overage — P olicemen — P ublic
O fficers— Marlow v. Mayor and Aldermen of City of Savannah,

Court of Appeals of Georgia ( March 9, 1922), 110 Southeastern Be-

316

TEXT AND SUMMARIES OF DECISIONS.

porter, page 923.—Walter IL Marlow was appointed a* policeman o f
the city o f Savannah, on March 10* 1921. On March 27,1921, while
on duty and in the discharge o f his duty, he was killed by an unknown
person. It was agreed and understood when Marlow was employed
that the policeman could be discharged at any time by the mayor of
the city o f Savannah with or without cause. The widow brought
proceedings under the workmen’s compensation act and was granted
an award, but on appeal to the superior court the award was set
aside. The claimant took the case up to the court o f appeals. The
sole question was whether the policeman was an employee of the city
or a public officer. The court decided against the claimant and held
that a policeman is a public officer. The court held that the police
man was not an employee under contract, express or implied. As the
relationship o f employer and employee must exist under the act in
order to sustain an award, the judgment o f tlie lower court dismissing
the award was affirmed5.
W orkmen ’ s C ompensation — C overage— S pecial Officer — O ffi
cial —Walker

v. C ity of Port Huron, Supreme Court of Michigan
(.December 21y 1921), 185 Northwestern Reporter, page 754-—The
charter o f the city o f Port Huron required all officers to take the
constitutional oath o f office before entering upon their duties. W il
liam R. Walker was hired by the commissioner o f parks and public
property to perform certain duties in a park in the eity during
the summer o f 1920. His duties were o f the same nature as that o f a
park, policeman or watchman. Walker took the constitutional oath,
in which he was designated as a “ special officer.” A few days later
he was. injured. He presented a claim, for compensation and an
award was made in. his favor under the workmen’s compensation
Jaw,. The employer brought the case up to the supreme court o f the
State-for a decision as to whether Walker was within that part o f
the act that excepted “ any official o f * * * any city ” from its
provisions. In deciding this question Judge Sharpe said that the
fact that he took the oath o f office was persuasive but not controlling.
On the authority o f an older case it was. held that an officer was one
who holds an. office, place, or position created for him either by
general or local legislation. The position here filled, was not that
o f a regular policeman created by charter or ordinance but the em
ployment was one created by contract.. Walker was held to be a
mere employee o f the city and therefore entitled to the award.
W orkmen ’ s C ompensation — C overage— W orkmen R egularly

Junman v; Hebrew National Sausage Factory et dl.,
Supreme Court, MppeUtale Division {November 16y 1921) , 191 New
E m plo yed —

workmen ' s compensation.

317

Yo rk Supplement, page 339.-.—Samuel Jurinan, while in the employ
o f the Hebrew National Sausage Factory, received personal injuries
for which he brought proceedings under the workmen’s compensa
tion law. There was an award o f compensation by the State indus
trial commission, from which the employer and insurance carrier
appealed.. The question was whether or not “ four or more workmen
or operatives ” were “ regularly ” employed, so that the employment
could be considered hazardous and therefore within the provisions
o f the workmen’s compensation act.. The facts showed that the em
ployer conducted a combination delicatessen and lunch-room busi
ness. Five persons were regularly employed—a cook, a cashier, a
waiter,, a counterman, and a general helper. In the case o f Europe
v. Addison Amusements, 133 K E. 750 (Bui. No. 309, p. 285.), it was
lield that:
Generally speaking, a workman is a man. employed in manual
labor, whether skilled or unskilled, an. artificer, mechanic, dr artisan,
and an operative is a factory hand, one who operates machinery.
The court arrived at the conclusion that there were four work
men employed and that therefore the employer and employee were
subject to the workmen’s compensation act. The reasoning o f the
court, as stated by Judge H. T. Kellogg, is as follows:
Employments are there made hazardous where there are engaged
“ four or more workmen or operatives regularly, in the same busi
ness or in or about the same establishment, * * * except farm
laborers and domestic servants.” This express exception o f domestic
servants out o f the workmen class shows that the legislature regarded
the service o f all such persons to be that o f “ workmen,” for it is
self-evident that none can be taken from a class who do not, without
such taking, belong to it. It is true that the work o f this cook and
waiter, because not performed in a private home, was not domestic.
However, it was identical in character with that o f domestic cooks
and waiters. Consequently the legislature has clearly indicated that
the nature o f their service is that o f “ workmen.” The helper was
also described as “ a general utility man.” Apparently he helped the
waiter, the cook, and the counterman. He was a man o f all work,
and therefore a “ workman.”
The counterman presents a more'difficult question. We know that
he cut meats* at the counter and sold articles from it to customers.
I f his work was simply that of cutting and handing over food,
together with charge checks to be delivered to the cashier, his work
was, perhaps, more manual than it was clerical. However, it is a
proven fact that for an hour every day he acted as waiter at the
lunch tables. This was not as if he were a clerk, who incidentally
and intermittently did waiter’s work. Rather was he a clerk
at one time (if ever such) and a waiter at another. It is just as
clear that he was thus employed “ regularly” as a waiter as that
lunch was “ regularly ’’ served in the room each day.. It seems to us,
therefore, that this employee may be counted, so that it can justly

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TEXT AND SUMMARIES OF DECISIONS.

be said that in this employment there were four “ workmen ”
“ regularly ” employed, and that the employment was within the
.workmen’s compensation law.
The award should be affirmed.
W orkmen ’ s C ompensation— D ecedent W ithout B eneficiaries—
P ayment to S tate— Cook v. West Side Trucking Co., Supreme

Court of New Yo rk , Appellate Division ( November 16, 1921), 191
'New York Supplement, page Slfi.—Bichard Cook died o f injuries
received while in the employ of the defendant company. The de
ceased left a widow, but she was not dependent. After a year was
up, which time was set by the statute within which all claims had
to be filed, the State industrial board had an informal hearing at
which no evidence was taken. The board ordered the employer
and insurance carrier to pay $100 to the State treasurer as pro
v id ed by law in cases o f death with no dependents surviving. The
employer and insurance carrier appealed on the ground that no
clairn had been filed within a year by any person entitled to com, i pensation. The appellate division affirmed the award and overruled
the contention o f the appellants in an opinion by J. M. Kellogg,
1 in part as follow s:
The direction by the commission to pay the treasurer is not an
award o f compensation, but it is the direction to the carrier to pay
the amount which the statute directs it to pay. The treasurer’s right
to the money, and the power o f the commission to grant it, is not
barred by the failure to file a claim under section 28. The allowance
is not compensation, or death benefits (State Industrial Commission
v. Newman, 222 N. Y . 363,118 N. E. 794 [Bui. No. 258, p. 223]). It
can not be known with certainty whether there is a party entitled
to compensation until the lapse o f the year during which a claimant
may file a claim.
W orkmen ’ s C ompensation— D ecedent Without B eneficiaries—
P ayment to S tate— C onstitutionality of S tatute— P owers of
C ommission— Yosemite Lumber Co. v. Industrial Accident Commis

sion of California, Supreme Court of California {January 27,1922),
page 226.—The Legislature o f California, at
its session o f 1919, passed a statute, chapter 183, which provided
that when an employee received a fatal injury that would be com
pensable under the provisions o f the workmen’s compensation in
surance and safety act, if no one survived who was entitled to the
benefits o f the act, the employer was to pay $350 into the treasury
o f the State, which amount was to be added to a fund known as
the “ Industrial Kehabilitation Fund.” One John Moore was killed
^while in the employ o f the Yosemite Lumber Co. and left surviving

204 Pacific Reporter,

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319

him no person entitled to a death benefit under the compensation
act. Proceedings were brought on behalf of the State to recover the
amount allowed by the act noted. This was awarded and t\\6 de
fendants took the case to the supreme court of the State. That
court ordered the award o f the industrial accident commission an
nulled in an opinion by Chief Justice Shaw. In the course o f the
opinion holding certain provisions o f chapter 183 unconstitutional,
the court ruled that the constitution only authorized the creation of
a liability on the part of the employer to compensate his own work
men and their dependents, and further said :
In so far as the act purports to exact from employers a sum to
be used by the State for disabled workmen in general, it is in reality
a taxing law, a revenue measure. It requires any employer to pay
to th e’ State the sum of $350 whenever one of his workmen who
has no dependents is killed by an injury received in the course of
his employment, and the fund thus raised is to be used for voca
tional reeducation o f workmen not connected in any way with
such employer, and the surplus, if any, to go to pay the expenses of
the State in carrying on the department or bureau administered by
the industrial accident commission, all o f which are public purposes.
This is purely a tax. “ A tax is a charge upon persons or property
to raise money for public purposes.”
Our conclusion is that section 21 of article 20, as amended in
1918, did not authorize the legislature to impose a liability on an
employer to pay money to the State for the purposes specified in
the act o f 1919. It follows by necessity that said section gives no
authority to the legislature to confer on the industrial accident
commission jurisdiction to determine any dispute that may arise
concerning the liability of employers sought to be imposed by said
act o f 1919. It may be conceded that under its general powers the
legislature might provide a fund for the benefit of persons disabled
in industry in this State and commit the administration of the
fund to the industrial accident commission, and might also levy a
tax in some form to raise such fund. But any disputes that might
arise concerning such tax would be cognizable only by the courts
established by or under the provisions of article 6 of the constitu
tion, since no section of the constitution gives the legislature power
to confer jurisdiction thereof upon the industrial accident commis
sion.
W orkmen ’ s C ompensation— D ependency— A ged F ather— T rus
tee— Tintic

M illing Co. v. Industrial Commission of Utah, Supreme
Court of Utah ( June 19, 1922), 207 Pacific Reporter, page 1114.—
Peter Christensen, a man 80 years o f age, could do little work and
had practically no means of support except what he received from his
son, Soren Christensen. His son usually contributed about $300 per
year to his father’s support. He had been doing this over a period
o f years and the father depended upon this money for maintenance
and support. On January 27, 1922, Soren died as the result of an

320

TEXT AND SUMMARIES OF DECISIONS.

accidental: injury sustained by him two days before, while working
as a miner for the. Tintie Milling Go. An application for an. award
o f compensation was made to the industrial commission by the father.
Upon hearing: the evidence the commission made an award to Peter,
payable iii installments of. $13.85 per week for a period: o f 90 weeks
less $55.40 already paid. The weekly payments,. with the consent o f
Peter, were ordered to: be made to the Tracy Loan & Trust Co*, as
trustee for the use and.benefit of the father, the trust company to pay
tlie sum o f $20 per month to Peter from the trust fund thus created.
The employer and its insurance carrier petitioned the supreme court
for review. One o f the contentions raised was that the case came
within the doctrine laid down in previous cases in which it was held
that occasional gifts or contributions made at the pleasure o f the
donor do not establish dependency within the workmen's compensa
tion act. In answering this contention the supreme court said:
Certainly it was never the legislative intent that contributions for
maintenance and support o f a dependent father must have been made
at the very time o f the injury to establish dependency. Such a nart
row construction would in many cases defeat the plains intent o f the
law. In eases o f partial dependency the question is not whether the
contributions were made at regular intervals, but whether they were
made for the purpose o f continued support, whether at the time of
the injury resulting* in the death of the contributor there was actual
dependency, and whether the facts in the particular case indicate that
the contributions for maintenance and support would have con
tinued: had the death: o f the employee not occurred. The workmen’s
compensation act o f this State does not limit the period o f time
preceding the injury during which the fact o f contribution made for
support must be shown.. That subject is wisely left to the discretion
o f the commission, whose conclusions, when based upon some substaaitial evidence*, are not assailable on review.
The arrangement made by the commission in appointing a. trustee
to disburse the money to Peter was complained o f as being beyond its
power. Thecourt disposed o f this contention, by stating:
As long, as the beneficiary has no objection to having, the money
handled by the trustee, as long as he is satisfied, the plaintiffs have no
cause for complaint.
The court said that the commission, was prudent in making the
order relating tothe payment o f the compensation and “ unreservedly
approve its course of. action.” The award was affirmed*

W orkmen ’ s C ompensation.— D ependency— C hild L iving w ith
G randmother— Statutory P resumption as to D ependency— Mad

era Sugar Pine Co. v. Industrial Accident Commission of California,
Supreme Court of California {J u ly 31, 1922), 208 Pacific Reporter,

WORKMEN *S- COMPENSATION.

321

page 278.—Lilburn Mankin had a son whom he named Lilburn Milton Mankin. When, the child was but 2 years o f age its mother died*,
and the father placed the boy in the care of Mrs. Kate Manley,
mother o f Mankind deceased wife. Mankin made an arrangement
with Mrs. Manley under which he was to pay $15 per month for the
support o f the boy, and supply necessary clothing. This arrange
ment was being faithfully carried out While in the employ o f the
Madera Sugar Pine Co. as a laborer, Mankin sustained injuries occur
ring in the course o f and arising out o f his employment, which re
sulted in his death. Proceedings were had5before the industrial
accident commission, and an award was made in favor o f the child
amounting to $4,900, based upon the finding that the deceased em
ployee left surviving, alone, and wholly dependent upon him the
5-year-old boy. Tlie company took the case to the supreme court
o f the State to review the award1
, raising the question o f the correct
ness o f the award predicated on the total dependency o f the child.
Because o f the fact that Mrs. Manley’s 18-year-old boy earned $18 a
week, lived with her and contributed to the household expenses, and
because Mrs. Manley did washing as a means o f supporting herself,
the company contended that they contributed to the support o f the
boy and that therefore the boy was not wholly dependent upon the
father for support. The supreme court did not discuss the conten
tion made as to the constitutionality o f the statutory provision that
certain persons are conclusively presumed to have been wholly de
pendent for support upon a deceased parent; but said as to that con
cerning the' child’s dependency on his father that it was “ scarcely
worth the consideration here given to it,” adding that “ irrespective of
the ‘ conclusive presumption ’ declared by the statute, it otherwise
satisfactorily appears that the claimant before the industrial accident
commission was wholly dependent upon the deceased employee o f the
petitioner for his support.”

W orkmen ’ s C ompensation— D ependency—M ember op F am ily —
A bsence of M arriage R elationship**—Federal Mutual Liability I n

surance Co. v. Industrial' Accident Commission, Supreme Court of
California ( December 5, 1921), 202 Pacific Reporter, page 66fy.—
Cassander K. Gnash and George Gnash, parents o f Bertha Fern
Gnasli, were married in Kansas in 1896 and later moved to Cali
fornia. Mr. Gnash was a poor provider and ‘was in the habit o f
leaving his family for weeks at a time and finally left them perma
nently. Mrs. Gnash thereafter supported herself by various kinds
o f work until October, 191T, when she was employed* as a cook by
William G. Thompson at Yermo. Bertha was then 6 years o f age.

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TEXT AND SUMMARIES OF DECISIONS.

Later the three moved to a mine near Baxter, and at about this
time the-relationship between Thompson and Mrs. Gnash changed.
He. stopped paying her wages and began paying the expenses of
herself and Bertha. In May, 1918, Mrs. Gnash started proceedings
to secure a divorce from her husband, which suit was never deter
mined. From that time on Thompson and Mrs. Gnash lived to
gether openly as husband and wife. Thompson entirely supported
Mrs. Gnash and Bertha and they used his name. On February 19,
1920, while this relationship existed, the three living in Kedlands,
Thompson fell from a scaffold, sustaining injuries from which he
died. A compensation award was made in favor o f Bertha, as the
industrial accident commission found that she was a member o f
Thompson’s family in good faith and wholly supported by him.
The decision was appealed to the supreme court o f the State, the
insurer contending that Mrs. Gnash was an employee o f Thompson
in domestic service and therefore neither she nor Bertha were mem
bers o f his family within the meaning o f the workmen’s compensa
tion ^ct, and as Bertha Gnash was a legal dependent o f her father
she could not be a total dependent of Thompson. The supreme court,
speaking through Judge Lawlor, held that the three were living
together and were , members o f one household, and as Bertha was
in fact a dependent o f Thompson, she was entitled to the award
whether or not her father was living.

W orkmen ’ s C ompensation— D ependency— M ember of F am ily —
A liens— Passini v. Aberthaw Construction Co., Supreme Court of

Errors of Connecticut (December 23, 1921), 115 Atlantic Reporter,
page 689.— The claimant in this case was the sister o f a deceased
employee o f the company named, not residing with him. Her home
was in New York City, while he, a single man, boarded and lodged
at the place o f his employment in Connecticut. His average weekly
wage was in excess o f $36 per week, which permitted the maximum
allowance under the State compensation act of $18 on a 50 per cent
basis. The deceased had contributed to the support o f his sister
and also to the support o f his parents, aliens residing in Italy. Upon
the application of the latter the commissioner awarded them com-4
pensation at the rate o f $5 per week for 312 weeks, reduced onehalf on account o f alienage. The contributions to the sister had
been $13 per week, and this amount was awarded in full for the
term o f 312 weeks. From this award the company appealed to the
superior court, which asked the advice o f the supreme court o f
errors. The advice given was to dismiss the appeal and affirm the
award o f the commissioner.

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323

Under the State compensation law the word “ family ” is not
defined, and in the absence o f such definition it was said that the
word should be held to have such meaning recognized by the common
law o f the State as is consistant with the remedial purpose o f the
act. “ Its meaning in our law is not limited to that o f all members
o f a collective body o f persons living in one household and under
one head and domestic government. Individuals related through
descent, without regard to unity o f residence, also constitute a fam
ily.” It was held therefore not error to consider the sister, though
resident in another locality, as a member o f the family o f the dieceased workman.
Under the law benefits to partial dependents may not exceed the
sum contributed, if more than $5 weekly; if less, $5 is paid as a mini
mum. In the case o f alien beneficiaries, however, benefits were re
duced one-half by the law as it stood at the time o f the accident. The
claim was made that this limitation barred any benefits to the sister
in excess o f the sum o f $2.50 per week, but the court held that the
statutory provision as to nonresident aliens in no wise affected her
rights; the award as a whole, therefore, was approved.
W orkmen ^ C ompensation— D ependency— M ember of F am ily —
C ousins—Holmberg v. Cleveland-Clijfs Iro n Co., Supreme Court of

Michigan (J u ly 20, 1922), 189 Northwestern Reporter, page 26:—
In March, 1893, Matilda Holmberg's husband deserted her, leaving
her with five small children and so destitute that she had to apply to
the county for aid. The husband was never thereafter heard from.
In the fall o f 1894 she appealed to Alfred Franzen, her first cousin,
a single man, to come to her aid. He did, and made the Holmberg
home his home. He helped her rear her five children to maturity
and maintained a home with Mrs. Holmberg until September, 1921.
During this time he acted as head o f the family, making the family
. his family as far as he could by living in the home and assuming and
performing the obligation o f maintaining the domestic body. On
September 8, 1921, Mr. Franzen, while in the employ o f the Cleveland-Cliffs Iron Co., was accidentally killed. Matilda Holmberg
made application for an award o f compensation under the State
workmen^ compensation act. She based her claim on the fact o f her
being a dependent member o f his family. An award was made in
her favor, based upon the compiled laws o f 1915, section 436, which
provided that “ No person shall be considered a dependent unless a
member o f the family o f the deceased employee or bears to him the
relation o f husband or widow, or lineal descendant, or ancestor, or
brother, or sister.” The case was taken to the supreme court o f the
4997S0— 28---22

324

TEXT AND SUMMARIES OF DECISIONS.

State on the contention that the relation between the parties was at
all times contractual, that Mrs. Holmberg was a housekeeper, and
that dependency did not exist within the provisions o f the law.
This contention was not upheld, and the award was affirmed.
The court said:
We think this too narrow a view of the testimony and wholly
inconsistent with the demonstrated purpose of Mr. Franzen. It is
true Mr. Franzen was under no legal obligation to make a home for
plaintiff; his moral obligation, however, to do so rested with him to
determine, and the evidence discloses that he assumed such duty in
a most comprehensive and worthy manner and carried the burden to
the day o f his death. He not only made it possible for plaintiff and
her-children to have a home and their needs supplied, but as well
established a family circle, with himself as the head,' and when the
children departed from the roof tree he continued to maintain the
family relation for the comfort, security, and society it afforded him
as well as plaintiff. Not only that, but in recognition of the de
pendence o f plaintiff and her assistance in maintaining liis home and
his solicitude about her future he purchased their last home in their
joint names and by will left her his whole estate.
We hold that their blood relationship; his recognition and accept
ance o f the moral duty to provide her with a home; the devotion o f
his earnings for over a quarter of a century to their needs in the
home; the negation of any sordid motive on the part o f either; their
joint efforts and labors for their common comfort in such home life ;
their community management o f financial matters and his pro
vision for her needs for 27 years—constituted her in fact and under
the statute a dependent member o f his family at the time o f his
death.
W orkmen ’ s C ompensation — D isability — D eath — S tatus of
C laims — N otice—H ill v. Ancram Paper M ills, Supreme Court of

New Yo rk , Appelate Division (J u ly 6 ,1922), 195 New York Supple
ment, page 522.—Walter B. H ill was employed as a machinist by
the defendant company and, as was alleged, received an injury on
January 24, 1920, which for the first time disabled him on Novem
ber 26 o f that year, finally resulting in his death on May 14, 1921.
The injury was claimed to be due to the fall of an icicle, which
fell and hit him on the head as he went out o f the building to get
some oil. There was no statement by Mr. Hill when he ‘claimed
compensation for disability as to the distance which the icicle fell
nor as to the severity o f the blow nor whether it left any mark
other than a cut on his head. His work was not interrupted and
he gave no notice o f injury, though he told o f the incident in con
versation with his superintendent and assistant superintendent. He
continued his work with the company for about two weeks and then
went to another employer without loss o f time. However, on
November 26, 10 months after the accident, he experienced a spasm

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325

which was followed by others, and he was thereafter unable to
work. On January 5, 1921, there was an operation performed on
his skull “ to remove the pressure.” Compensation for disability
was awarded from November 26, 1920, to February 11, 1921, and
on the testimony of the physician who operated on H ill a second
award was made carrying compensation to April 15, 19211
The employer and insurance carrier appealed, and the appellate
division reversed the award as to disability, Judge Cochrane, speaking for the court, saying:
In my opinion no causal relation was established between the
injury on January 24 and the malady which first asserted itself
on November 26, 1920. Although the icicle as described by the
claimant was sufficiently large to kill him, if it had fallen a sufficient
distance, it may not have fallen more than an inch, as far as the
evidence discloses. He may very easily have received, after the
icicle incident, many injuries more serious than that as described by
himself. He regarded it as a mere incident and as a matter of no
importance. There was no effort on the part of the physician to
connect the fractured skull with the fall of the icicle. Claimant
himself did not testify that he had not received a blow on the head
at or shortly prior to the time when the epilepsy made its appear
ance. He "testified to no symptoms, nor premonitions, nor any
unusual or unnatural feelings which might be deemed to herald the
approach o f epilepsy.
Much weight was attached to the failure o f the physician to testify
that a fracture might have caused a pressure on the brain for 10
months without noticeable effect and then suddenly and without
warning frequent spasms of epilepsy should develop. The burden
o f proof had not been met at the time, and as u a disability award is
personal to the injured employee,” the defects in evidence could not
be supplied by evidence produced after the claimant’s death. The
awards for disability were therefore reversed.
There was also a claim for death submitted by the dependents,
which the industrial commission allowed, and this was affirmed by
the appellate division, being found to rest “ on a surer foundation.”
So far as the testimony o f the deceased employee was apt, it was
held to be competent, and entitled, in the consideration o f the death
claim, to “ the probative effect to which it was entitled on the dis
ability claim.” Continuing the court said:
Unsupplemented by other testimony, as we have seen, it is in
sufficient. In addition, however, at the hearings on the death claim,
the superintendent and assistant superintendent o f the employer
testified that Mr. Hill, shortly after the accident, showed them his
head, and that they saw contusions and blood thereon. His wife
testified that she at different times washed his head where it was
injured and endeavored to cleanse it. It is also a fair inference from
her testimony that he had no other serious injury prior to his
convulsions on November 26. Other physicians, not called as wit

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TEXT AND SUMMARIES OF DECISIONS.

nesses on the disability claim, testified in effect that the condition
which developed on November 26, 1920, might have resulted from a
fractured skull occasioned by the fall o f the icicle, on the preceding
January 24. There is also evidence o f a fractured skull, independ
ently o f the testimony o f Doctor Dingman given on the disability
claim, and who did not testify on the death claim. Thus the deficiency
in the evidence which existed in respect to the disability claim was
supplied in respect to the death claim.
Notice o f the death had not been given within the time fixed by the
compensation law, and the waiver o f this requirement by the indus
trial commission was challenged by the defendants. Though the
reasons for not giving the notice earlier were said to be not beyond
criticism, it was found that the agents o f the employer had all the
knowledge which the employee possessed, in regard to the accident
and his injury. They had participated in the proceedings in regard
to the claim for disability, and also had prompt knowledge o f the
death o f the employee. They knew that disability awards had been
made and had every reason to expect that a claim for death would be
submitted. “ It is clear beyond peradventure that they had not been
prejudiced by the failure to give the statutory notice.” The claim
for disability awards was dismissed and the award for death affirmed,
both without costs.
W orkmen ’ s C ompensation— D isability A fter R eturn to
W ork— B usiness D epression—Johnson's Case, Supreme Judicial

Court of Massachusetts September 1h 192%), 1S6 Northeastern Re
porter, page 563.—John Johnson was a blacksmith employed by the
Bethlehem Shipbuilding Corporation, who received injuries in the
course o f his employment on May 14, 1917. After about seven
months, during which he received compensation, he returned to work
with the same employer, remaining until July, 1921, “ earning as
much or more than before.” The ability to earn wages was there
fore found not to have been affected by his injury, but any differ
ences arising would be attributable to industrial conditions. On ac
count o f slack work he lost his position in July, 1921, and since
then he has been able to secure employment only at less wages. The
industrial board found that “ his physical disability arising out o f
the injury has adversely affected his ability to earn wages, and that
he is able to do work in his regular calling o f a blacksmith only
within restricted limits.”
The injury was a fracture in the region o f the elbow joint, im
pairing the movement o f the elbow, making him unable to close the
hand, and producing pain. The insurer contended that the facts
did not warrant a renewal o f compensation. The statute provides
for benefits where incapacity is partial, the law as it stood at the

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327

time o f the injury providing for payments for 500 weeks from
the time o f the injury. Admitting that the employee, in common
with others, must bear the loss resulting from business depression
“ this does net mean that when the earning capacity is reduced by
reason o f the injury there may not be recovery even though busi
ness conditions may have become contemporaneously less favor
able. * * * The circumstance that nearly four years intervened
between the return to work and the appearance of reduced ability to
earn resulting directly from the injury is no bar to the recovery of
compensation.”
The finding o f the industrial accident board was therefore sus
tained, and compensation allowed accordingly at the rate, ..of $10
per week.
W orkmen ’ s C ompensation— E lection— N otice to E mployees—

Producers’ O il Co. v. Daniels, Commission of Appeals of Texas,
Section A (October 18, 1922), 244 Southwestern Reporter, page
117.— Clyde Daniels was employed by the Producers’ Oil Co. in
Texas; During the course of his employment he sustained personal
injury, for which he brought an action for damages. He contended
that the injuries were caused through the negligence o f his em
ployer in permitting a ladder leading from an upper platform of an
oil derrick to become defective. The company pleaded its nonlia
bility on the ground that at the time of the injury it had complied
with the requirements o f the workmen’s compensation law and had
contracted with the Texas Employers’ Association for the payment
o f indemnities to its injured employees. They stated that the facts
were well known to Daniels at the time o f his employment and that
the employer had given him notice in writing o f these facts and that
proper notice in writing had been given the State industrial board.
Judgment was rendered in favor o f Daniels, but this was reversed
by the court o f civil appeals. A motion was made for a rehearing,
and pending the consideration o f the motion the court certified a
question to the supreme court o f the State. The evidence showed
that the company through signs or posters had given notice to its
employees that the employer had provided insurance with the Texas
Employers’ Insurance Association. The question before the court
was, “ What was notice by employers to employees within the mean
ing o f the act ? ”
The commission said that the act did not prescribe how such notice
should be given, and held that:
When a statute directs that notice in writing shall be given, but is
silent with reference to the manner of giving the same, personal
service o f such notice or a copy thereof upon the person to whom it
is to be given is necessary.

328

TEXT AND SUMMARIES OF DECISIONS.

The commission further said:
The giving o f the notice required by the statute by a subscribing
employer to his employee vitally affects them both. The employer
is thereby relieved o f liability to his employee receiving the same
for damages for personal injuries suffered by such employee in the
course of his employment, notwithstanding such injuries may have
been caused by the negligence of such employer or his servants.. The
employee who continues in the service of a subscribing employer
after such notice waives or surrenders his cause of action against
such employer for such damages, and is required to look alone to the
insuring association for compensation therefor.
.We think the legislature, in failing to prescribe the manner o f
service o f a notice of such importance to all the parties concerned,
intended that the general rules of law respecting the giving of notice
should apply. There is nothing anywhere in the act to justify an
inference to the contrary.

W orkmen ’ s C ompensation— E lection— O riginal A cceptance
B inding on S ubsequent E mployment— Sizemore v. Beattyville Co.,

Court of Appeals of Kentucky ( June 20, 1922), 21fS Southwestern
Reporter, page 10102— Guy Sizemore was employed by the Beatty
ville Co. as a driver in its coal mine in Kentucky, and went to work
on April 4, 1921. He accepted the provisions of the workmen’s com
pensation act by signing the register kept by the company. He
continued to work until May 20, 1921, when a disagreement arose
because o f an order o f the assistant mine foreman to do a particular
kind o f work. Whether he voluntarily left the employment or was
discharged was a subject the two men could not later agree on. He
went to work for the Biggs Coal Co. and worked for that company
until June 15, 1921. On that date he returned to work for the
Beattyville Co., but worked only half a day. He again went to work
for the Biggs Co., working there until July 22, when for a third
time he was employed by the Beattyville Co. On the 25th of July
while in the coal mine as a driver he was injured. He brought a
suit against the company to recover damages for personal injuries.
The defense to the suit set up by the company was that the work
men’s compensation act would apply and that therefore the suit for
damages should be dismissed.
The record showed that the register was signed only at the time
o f his original employment. The suit was dismissed and the case
appealed. The question before the court was whether the original
acceptance o f the workmen’s compensation act was binding on Size
more at the time o f his third employment, during which employ-1
1 Compare with this decision another by the same court, McCune v. Win. B. Pell &
Bro., 232 S* W . 43, Bui. No. 309, p. 261.

w o r k m e n 's

c o m p e n s a t io n .

329

ment he was injured. The court of appeals affirmed the lower court,
holding that it was.
The reasoning o f the court is in part as follow s:
Doubtless there are some employments where the relation of master
and servant continues, although the employee is not working at the
time. In other instances, men are employed and paid by the day
or by the hour, and when that time ends, they are no longer in the
service o f the master. There are also cases where employees become
sick and ask for and receive their time, or the plant is shut down
and the employees are paid off, and the relation of master and
servant no more exists than if the employees had been discharged or
quit the service of the master. It is apparent, therefore, that the
mere severance of the relation of master and servant can not be re
garded as controlling, and that there is no sound basis for a distinc
tion between a case where the employee voluntarily quits or is dis
charged and a case where he is compelled to stop work on account of
sickness or because the plant is shut down. Indeed, it would be going
far afield to say that the legislature intended that a prior acceptance
o f the workmen’s compensation act should not be binding on an em
ployee who returned to work the morning after he quit or was dis
charged. In

Full text of Decisions of Courts and Opinions Affecting Labor : Decisions of Courts and Opinions Affecting Labor, 1922 : Bulletin of the United States Bureau of Labor Statistics, No. 344

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